FIRST AMENDED AND RESTATED CREDIT AGREEMENT among CAPLEASE DEBT FUNDING, LP, as Borrower, PREFCO II LIMITED PARTNERSHIP, CAPLEASE, INC., CAPLEASE, LP, and CAPLEASE SERVICES CORP., as Guarantors, THE LENDERS PARTY HERETO, and WELLS FARGO BANK, NATIONAL...
among
CAPLEASE
DEBT FUNDING, LP,
as
Borrower,
PREFCO II
LIMITED PARTNERSHIP,
CAPLEASE,
LP, and
CAPLEASE
SERVICES CORP.,
as
Guarantors,
THE
LENDERS PARTY HERETO,
and
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Administrative Agent
Dated as
of July 16, 2010
XXXXX
FARGO SECURITIES, LLC,
as Sole
Lead Arranger and Sole Bookrunner
Prepared
by:
|
![](https://www.sec.gov/Archives/edgar/data/1057689/000114420410038410/ex10-1_logo.jpg)
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
TABLE OF
CONTENTS
Page
|
||
ARTICLE
I DEFINITIONS
|
1
|
|
Section
1.1
|
Defined
Terms.
|
1
|
Section
1.2
|
Other
Definitional Provisions.
|
23
|
Section
1.3
|
Accounting
Terms.
|
23
|
Section 1.4
|
Time
References.
|
23
|
Section 1.5
|
Execution
of Documents.
|
23
|
Section 1.6
|
UCC
Terms.
|
23
|
Section 1.7
|
References
to Discretion.
|
23
|
Section 1.8
|
References
to Payment.
|
24
|
ARTICLE
II THE LOANS; AMOUNT AND TERMS
|
24
|
|
Section
2.1
|
Revolving
Loans.
|
24
|
Section
2.2
|
[Reserved].
|
26
|
Section
2.3
|
Fees.
|
26
|
Section
2.4
|
Commitment
Reductions.
|
26
|
Section
2.5
|
Prepayments.
|
27
|
Section
2.6
|
Default
Rate and Payment Dates.
|
28
|
Section
2.7
|
Conversion
Options.
|
28
|
Section
2.8
|
Computation
of Interest and Fees; Usury.
|
29
|
Section
2.9
|
Pro
Rata Treatment and Payments.
|
29
|
Section
2.10
|
Non-Receipt
of Funds by the Administrative Agent.
|
31
|
Section
2.11
|
Inability
to Determine Interest Rate.
|
32
|
Section
2.12
|
Yield
Protection.
|
32
|
Section
2.13
|
Indemnity;
Eurocurrency Liabilities.
|
33
|
Section
2.14
|
Taxes.
|
33
|
Section
2.15
|
Illegality.
|
35
|
Section
2.16
|
Obligations
Absolute.
|
35
|
Section
2.17
|
Additional
Collateral.
|
35
|
Section
2.18
|
Reallocations.
|
35
|
ARTICLE
III REPRESENTATIONS AND WARRANTIES
|
35
|
|
Section
3.1
|
Financial
Condition.
|
36
|
Section
3.2
|
No
Material Adverse Effect; Internal Control Event.
|
36
|
Section
3.3
|
Corporate
Existence; Compliance with Law.
|
36
|
Section
3.4
|
Corporate
Power; Authorization; Enforceable Obligations.
|
36
|
Section
3.5
|
No
Legal Bar; No Default.
|
36
|
Section
3.6
|
No
Material Litigation.
|
36
|
37
|
||
Section
3.8
|
Margin
Regulations.
|
37
|
Section
3.9
|
ERISA.
|
37
|
Section
3.10
|
Environmental
Matters.
|
37
|
Section
3.11
|
Use
of Proceeds.
|
38
|
Section
3.12
|
Subsidiaries;
Joint Ventures; Partnerships.
|
38
|
Section
3.13
|
Ownership.
|
38
|
Section
3.14
|
Indebtedness.
|
38
|
Section
3.15
|
Taxes.
|
38
|
Section
3.16
|
Solvency.
|
38
|
Section
3.17
|
Investments.
|
38
|
Section
3.18
|
Location.
|
38
|
Section
3.19
|
No
Burdensome Restrictions.
|
38
|
Section
3.20
|
Brokers’
Fees.
|
38
|
Section
3.21
|
Labor
Matters.
|
38
|
Section
3.22
|
Accuracy
and Completeness of Information.
|
39
|
Section
3.23
|
Material
Contracts.
|
39
|
Section
3.24
|
Insurance.
|
39
|
Section
3.25
|
Security
Documents.
|
39
|
Section
3.26
|
Anti-Terrorism
Laws.
|
39
|
Section
3.27
|
Compliance
with OFAC Rules and Regulations.
|
39
|
Section
3.28
|
Compliance
with FCPA.
|
39
|
Section
3.29
|
Consent;
Governmental Authorizations.
|
39
|
Section
3.30
|
Bulk
Sales.
|
40
|
Section
3.31
|
Income
and Required Payments.
|
40
|
Section
3.32
|
Full
Payment.
|
40
|
Section
3.33
|
Irrevocable
Instructions.
|
40
|
Section
3.34
|
Compliance
with Covenants.
|
40
|
Section
3.35
|
Collateral
Agreements.
|
40
|
Section
3.36
|
No
Reliance.
|
40
|
Section
3.37
|
Collateral.
|
40
|
Section
3.38
|
REIT
Status.
|
40
|
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
2
Section
3.39
|
Insider.
|
40
|
Section
3.40
|
No
Defenses.
|
41
|
Section
3.41
|
Interest
Rate Protection Agreements.
|
41
|
Section
3.42
|
Selection
Procedures.
|
41
|
Section
3.43
|
Value
Given.
|
41
|
Section
3.44
|
Separateness.
|
41
|
Section
3.45
|
Qualified
Transferees.
|
41
|
Section
3.46
|
Eligibility
of Mortgage Assets.
|
41
|
Section
3.47
|
Ability
to Perform.
|
41
|
Section
3.48
|
Certain
Tax Matters.
|
41
|
Section
3.49
|
Set-Off,
etc.
|
42
|
Section
3.50
|
Representations
and Warranties.
|
42
|
ARTICLE
IV CONDITIONS PRECEDENT
|
42
|
|
Section
4.1
|
Conditions
to Restatement Date.
|
42
|
Section
4.2
|
Conditions
to All Extensions of Credit.
|
44
|
ARTICLE
V AFFIRMATIVE COVENANTS
|
47
|
|
Section
5.1
|
Financial
Statements.
|
47
|
Section
5.2
|
Certificates;
Other Information.
|
48
|
Section
5.3
|
Payment
of Taxes and Other Obligations.
|
49
|
Section
5.4
|
Conduct
of Business and Maintenance of Existence.
|
49
|
Section
5.5
|
Maintenance
of Property; Insurance.
|
49
|
Section
5.6
|
Inspection
of Property; Books and Records; Discussions.
|
49
|
Section
5.7
|
Notices.
|
49
|
Section
5.8
|
Environmental
Laws.
|
50
|
Section
5.9
|
Financial
Covenants.
|
51
|
Section
5.10
|
Additional
Credit Parties.
|
51
|
Section
5.11
|
Compliance
with Law.
|
51
|
Section
5.12
|
Pledged
Assets.
|
51
|
Section
5.13
|
Interest
Rate Protection Agreements.
|
52
|
Section
5.14
|
Control
Agreements.
|
52
|
Section
5.15
|
Further
Assurances.
|
52
|
Section
5.16
|
Performance
and Compliance with Collateral.
|
52
|
Section
5.17
|
Delivery
of Income and Required Payments.
|
52
|
Section
5.18
|
Exceptions.
|
52
|
Section
5.19
|
Distributions
in Respect of Collateral.
|
52
|
Section
5.20
|
REIT
Status.
|
53
|
Section
5.21
|
[Reserved].
|
53
|
Section
5.22
|
Remittance
of Prepayments.
|
53
|
Section
5.23
|
Escrow
Imbalance.
|
53
|
Section
5.24
|
Separateness.
|
53
|
Section
5.25
|
Registration
of Securities.
|
53
|
Section
5.26
|
Termination
of Securities Account.
|
54
|
Section
5.27
|
Independence
of Covenants.
|
54
|
Section
5.28
|
ERISA.
|
54
|
Section
5.29
|
Mortgage
Assets.
|
54
|
ARTICLE
VI NEGATIVE COVENANTS
|
54
|
|
Section
6.1
|
Indebtedness.
|
54
|
Section
6.2
|
Liens.
|
55
|
Section
6.3
|
Nature
of Business.
|
55
|
Section
6.4
|
Consolidation,
Merger, Sale or Purchase of Assets, etc.
|
55
|
Section
6.5
|
Advances,
Investments and Loans.
|
55
|
Section
6.6
|
Transactions
with Affiliates.
|
55
|
Section
6.7
|
Ownership
of Subsidiaries; Restrictions.
|
55
|
Section
6.8
|
Corporate
Changes; Material Contracts.
|
55
|
Section
6.9
|
Limitation
on Restricted Actions.
|
56
|
Section
6.10
|
Restricted
Payments.
|
56
|
Section
6.11
|
Sub-Limits.
|
56
|
Section
6.12
|
No
Further Negative Pledges.
|
56
|
Section
6.13
|
Collateral
Not to be Evidenced by Instruments.
|
56
|
Section
6.14
|
Deposits.
|
56
|
Section
6.15
|
Servicing
Agreements.
|
56
|
Section
6.16
|
Extension
or Amendment of Collateral.
|
56
|
Section
6.17
|
Stock
Repurchase.
|
57
|
Section
6.18
|
No
Future Liens.
|
57
|
Section
6.19
|
Margin
Regulations.
|
57
|
Section
6.20
|
Senior
and Pari Passu
Interests.
|
57
|
Section
6.21
|
Portfolio
Assets.
|
57
|
Section
6.22
|
Inconsistent
Agreements.
|
57
|
ARTICLE
VII EVENTS OF DEFAULT
|
57
|
|
Section
7.1
|
Events
of Default.
|
57
|
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
3
Section
7.2
|
Acceleration;
Remedies.
|
60
|
ARTICLE
VIII THE ADMINISTRATIVE AGENT
|
60
|
|
Section
8.1
|
Appointment
and Authority.
|
60
|
Section
8.2
|
Nature
of Duties.
|
60
|
Section
8.3
|
Exculpatory
Provisions.
|
60
|
Section
8.4
|
Reliance
by Administrative Agent.
|
61
|
Section
8.5
|
Notice
of Default.
|
61
|
Section
8.6
|
Non-Reliance
on Administrative Agent and Other Lenders.
|
61
|
Section
8.7
|
Indemnification.
|
61
|
Section
8.8
|
Administrative
Agent in Its Individual Capacity.
|
61
|
Section
8.9
|
Successor
Administrative Agent.
|
61
|
Section
8.10
|
Collateral
and Guaranty Matters.
|
62
|
ARTICLE
IX ADMINISTRATION AND SERVICING
|
62
|
|
Section
9.1
|
Servicing.
|
62
|
Section
9.2
|
Borrowers
as Servicer.
|
62
|
Section
9.3
|
Third
Party Servicer.
|
63
|
Section
9.4
|
Duties
of the Borrowers.
|
63
|
Section
9.5
|
Authorization
of the Borrowers.
|
63
|
Section
9.6
|
Event
of Default.
|
64
|
Section
9.7
|
Modification.
|
64
|
Section
9.8
|
Inspection.
|
64
|
Section
9.9
|
Servicing
Compensation.
|
64
|
Section
9.10
|
Payment
of Certain Expenses by Servicer.
|
64
|
Section
9.11
|
Pooling
and Servicing Agreements.
|
64
|
Section
9.12
|
Servicer
Default.
|
64
|
ARTICLE
X MISCELLANEOUS
|
65
|
|
Section
10.1
|
Amendments,
Waivers and Release of Collateral.
|
65
|
Section
10.2
|
Notices.
|
66
|
Section
10.3
|
No
Waiver; Cumulative Remedies.
|
67
|
Section
10.4
|
Survival
of Representations and Warranties.
|
67
|
Section
10.5
|
Payment
of Expenses and Taxes; Indemnity.
|
67
|
Section
10.6
|
Successors
and Assigns; Participations.
|
69
|
Section
10.7
|
Right
of Set-off; Sharing of Payments.
|
71
|
Section
10.8
|
Table
of Contents and Section Headings.
|
71
|
Section
10.9
|
Counterparts;
Integration; Effectiveness; Electronic Execution.
|
71
|
Section
10.10
|
Severability.
|
72
|
Section
10.11
|
Integration.
|
72
|
Section
10.12
|
Governing
Law.
|
72
|
Section
10.13
|
Consent
to Jurisdiction; Service of Process and Venue.
|
72
|
Section
10.14
|
Confidentiality.
|
72
|
Section
10.15
|
Acknowledgments.
|
73
|
Section
10.16
|
Waivers
of Jury Trial.
|
73
|
Section
10.17
|
Patriot
Act Notice.
|
73
|
Section
10.18
|
Resolution
of Drafting Ambiguities.
|
73
|
Section
10.19
|
Continuing
Agreement.
|
73
|
Section
10.20
|
Lender
Consent.
|
74
|
Section
10.21
|
Appointment
of the Administrative Borrower.
|
74
|
Section
10.22
|
Counterclaims.
|
74
|
Section
10.23
|
Legal
Matters.
|
74
|
Section
10.24
|
Recourse
Against Certain Parties.
|
74
|
Section
10.25
|
Protection
of Right, Title and Interest in the Collateral; Further Action Evidencing
Loans.
|
74
|
Section
10.26
|
Credit
Parties’ Waiver of Setoff.
|
75
|
Section
10.27
|
Periodic
Due Diligence Review.
|
75
|
Section
10.28
|
Character
of Loans for Income Tax Purposes.
|
75
|
Section
10.29
|
Joint
and Several Liability; Full Recourse Obligations.
|
75
|
Section 10.30
|
Amendment
and Restatement.
|
76
|
Section 10.31
|
Modification
of Other Credit Documents.
|
76
|
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
4
Schedules
Schedule
1.1(a)
|
Investments
|
Schedule
1.1(b)
|
Collection
Account
|
Schedule
1.1(c)
|
Asset
Representations
|
Schedule
1.1(d)
|
Securities
Account
|
Schedule
1.1(f)
|
Construction
Draw Deliveries
|
Schedule
3.3
|
Jurisdictions
of Organization and Qualification
|
Schedule
3.12
|
Subsidiaries
|
Schedule
3.18
|
Location
|
Schedule
6.1(b)
|
Indebtedness
|
Schedule
9.3
|
Servicers
|
Exhibits
Exhibit
1.1(a)
|
Form
of Account Designation Notice
|
Exhibit
1.1(b)
|
Form
of Assignment and Assumption
|
Exhibit
1.1(c)
|
Form
of Account Control Agreement
|
Exhibit
1.1(d)(i)
|
Form
of Borrower Joinder Agreement
|
Exhibit
1.1(d)(ii)
|
Form
of Guarantor Joinder Agreement
|
Exhibit
1.1(e)
|
Form
of Notice of Borrowing
|
Exhibit
1.1(f)
|
Form
of Notice of Conversion
|
Exhibit
1.1(g)
|
Form
of Assignment
|
Exhibit
1.1(h)
|
Form
of Borrower Release Letter
|
Exhibit
1.1(i)
|
Form
of Compliance Certificate
|
Exhibit
1.1(j)
|
Form
of Irrevocable Instruction
|
Exhibit
1.1(k)
|
Form
of Servicer Redirection Notice
|
Exhibit
1.1(l)
|
Form
of Warehouse Lender’s Release Letter
|
Exhibit
1.1(m)
|
Form
of Securities Account Control Agreement
|
Exhibit
2.1(a)
|
Form
of Funding Indemnity Letter
|
Exhibit
2.1(b)
|
Form
of Confirmation
|
Exhibit
2.1(f)
|
Form
of Revolving Note
|
Exhibit
4.1(a)
|
Form
of Lender Consent
|
Exhibit
4.1(n)
|
Form
of Closing Officer’s Certificate
|
Exhibit
4.1(o)
|
Form
of Patriot Act Certificate
|
Exhibit
4.1(q)(i)
|
Form
of Power of Attorney -
Borrower
|
Exhibit
4.1(q)(ii)
|
Form
of Power of Attorney -
Pledgor
|
Exhibit
5.2(h)
|
Form
of Mortgage Asset Data
Summary
|
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
5
THIS FIRST AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of July 16, 2010, among CAPLEASE DEBT FUNDING,
LP, a Delaware limited partnership (together with its successors and permitted
assigns, “Funding”), as a
Borrower, PREFCO II LIMITED PARTNERSHIP, a Connecticut limited partnership
(together with its successors and permitted assigns, “Prefco”), as a
Guarantor, CAPLEASE, INC. (f/k/a Capital Lease Funding, Inc.), a Maryland
corporation (together with its successors and permitted assigns, “Caplease Inc.”), as a
Guarantor, CAPLEASE, LP, a Delaware limited partnership (together with its
successors and permitted assigns, “Caplease”), as a
Guarantor, CAPLEASE SERVICES CORP., a Delaware corporation (together with its
successors and permitted assigns, “Services”), as a
Guarantor, the other entities from time to time party hereto pursuant to Section 5.10, the
several banks and other financial institutions as are, or may from time to time
become parties to this Agreement (each, together with its successors and
assigns, a “Lender” and,
collectively, the “Lenders”), and XXXXX
FARGO BANK, NATIONAL ASSOCIATION (as successor-by-merger to Wachovia Bank,
National Association), a national banking association, as administrative agent
for the Lenders hereunder (in such capacity, the “Administrative
Agent”).
WHEREAS, the Credit Parties
(as hereinafter defined) have requested that the Lenders make loans and other
financial accommodations to the Credit Parties in an aggregate principal amount
of up to $140,000,000, as more particularly described herein; and
WHEREAS, the parties hereto
are parties to that certain Credit Agreement, dated as of April 29, 2008, as
amended by the First Amendment and Waiver to Credit Agreement, dated as of
December 23, 2008, the Omnibus Amendment to Credit Agreement and Other Credit
Documents, dated as of August 20, 2009, the Second Amendment to Credit
Agreement, dated as of October 23, 2009, and the Third Amendment to Credit
Agreement, dated as of March 2, 2010 (the “Original Agreement”);
and
WHEREAS, the parties hereto
desire to amend and restate the Original Agreement.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, such parties hereby agree as
follows:
ARTICLE
I
As used
in this Agreement, terms defined in the preamble to this Agreement have the
meanings therein indicated, and the following terms have the following
meanings:
“40 Act” shall mean
the Investment Company Act of 1940, as amended, restated or modified from time
to time.
“ABR Default Rate”
shall have the meaning set forth in Section 2.6.
“Accepted Servicing
Practices” shall mean, with respect to each item of Collateral, those
mortgage, mezzanine loan and/or secured lending servicing practices, as
applicable, of prudent lending institutions that service Collateral of the same
type, size and structure as such Collateral in the jurisdiction where the
related Underlying Mortgaged Property is located, as applicable, but in any
event, (a) in accordance with the terms of the Credit Documents and
Requirements of Law, (b) without prejudice to the interests of the
Administrative Agent or any Lender, (c) with a view to the maximization of
the recovery on such Collateral on a net present value basis and
(d) without regard to (i) any relationship that any Credit Party or
any Affiliate or any Subsidiary of the foregoing may have with the
related Obligor, mortgagor, any Servicer, any PSA Servicer, any Credit Party or
any Affiliate or any Subsidiary of any of the foregoing; (ii) the right of
any Credit Party or any Subsidiary or Affiliate of the foregoing to receive
compensation or other fees for its services rendered pursuant to this Agreement,
the other Credit Documents, the Mortgage Loan Documents or any other document or
agreement; (iii) the ownership, servicing or management by any Credit Party
or any Affiliate or any Subsidiary of the foregoing for others of any
other mortgage loans, assets or mortgaged property; (iv) any obligation of any
Credit Party or any Affiliate or any Subsidiary of the foregoing to
repurchase, repay or substitute any item of Collateral; (v) any obligation
of any Credit Party or any Affiliate or any Subsidiary of the
foregoing to cure a breach of a representation and warranty with respect to any
Collateral and (vi) any debt any Credit Party or any Affiliate or any
Subsidiary of the foregoing has extended to any Obligor, mortgagor or
any Affiliate of such Obligor or mortgagor.
“Account Control
Agreement” shall mean that certain letter agreement, dated as of the
Closing Date, among the Borrowers, Prefco, the Administrative Agent and Xxxxx
Fargo substantially in the form of Exhibit 1.1(c)
attached hereto, as amended, restated, modified or supplemented from time to
time.
“Account Designation
Notice” shall mean the Account Designation Notice dated as of the Closing
Date from the Borrowers to the Administrative Agent in substantially the form
attached hereto as Exhibit 1.1(a),
as amended, restated, modified or supplemented from time to time.
“Additional
Collateral” shall mean those Pledged Mortgage Assets identified in Schedule 1 to the Fee
Letter.
“Additional Credit
Party” shall mean each Person that becomes a Borrower or Guarantor by
execution of a Joinder Agreement in accordance with Section 5.10.
“Adjusted Total
Assets” shall mean the sum of Total Assets plus Off–Balance
Sheet Assets.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
“Adjusted Total
Liabilities” shall mean the sum of Total Liabilities plus Off–Balance
Sheet Liabilities.
“Administrative Agent”
or “Agent”
shall have the meaning set forth in the first paragraph of this Agreement and
shall include any successors in such capacity.
“Administrative
Borrower” shall mean Funding.
“Administrative
Questionnaire” shall mean an Administrative Questionnaire in a form
supplied by the Administrative Agent, as amended, restated, modified or
supplemented from time to time.
“Affiliate” shall
mean, 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.
“Agreement” or “Credit Agreement”
shall mean this Agreement, as amended, modified, extended, restated, replaced,
or supplemented from time to time in accordance with its terms.
“Allocated Revolving Loan
Amount” shall mean, for each item of Revolving Loan Collateral, the
outstanding principal amount of the Revolving Loans allocated by the
Administrative Agent, in its discretion, to the related Revolving Loan
Collateral, which Allocated Revolving Loan Amount shall be set forth in the
related Confirmation, as such Allocated Revolving Loan Amount may be increased
(based on the funding of additional Revolving Loans) pursuant to one or more
additional Confirmations or reduced (based on the application of principal
payments under this Agreement) from time to time. The Administrative Agent
shall maintain a schedule of all reductions in the Allocated Revolving Loan
Amount for all Revolving Loan Collateral and such schedules shall be conclusive
and binding absent manifest error.
“Alternate Base Rate”
shall mean, for any day, a rate per annum equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%.
For purposes hereof: “Prime Rate” shall
mean, at any time, the rate of interest per annum publicly announced or
otherwise identified from time to time by Xxxxx Fargo at its principal office in
Charlotte, North Carolina as its prime rate. Each change in the Prime Rate
shall be effective as of the opening of business on the day such change in the
Prime Rate occurs. The parties hereto acknowledge that the rate announced
publicly by Xxxxx Fargo as its Prime Rate is an index or base rate and shall not
necessarily be its lowest or best rate charged to its customers or other banks;
and “Federal Funds
Effective Rate” shall mean, for any day, the weighted average 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 on the next succeeding Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it. If
for any reason the Administrative Agent shall have determined (which
determination shall be conclusive in the absence of manifest error) that it is
unable to ascertain the Federal Funds Effective Rate, for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms above, the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
on the opening of business on the date of such change.
“Alternate Base Rate
Loans” shall mean Loans that bear interest at an interest rate based on
the Alternate Base Rate.
“A Note” shall mean
one of up to three promissory notes issued in connection with a Commercial Real
Estate Loan secured primarily by the Underlying Mortgaged Property and an
assignment of leases and rents on the Underlying Mortgaged Property. An A
Note shall be characterized by a first Lien against the Underlying Mortgaged
Property and payments under the related leases and a first Lien (subordinate
only to the related B Note) on any unsecured claim in bankruptcy for past due
rents owing under the leases. The Mortgage Loan Documents for the A Note
shall contain appropriate intercreditor provisions acceptable to the
Administrative Agent in its discretion.
“A-1 Note” shall mean
one of up to three promissory notes issued in connection with a Commercial Real
Estate Loan secured primarily by the Underlying Mortgaged Property and an
assignment of leases and rents on the Underlying Mortgaged Property. An
A-1 Note shall be
characterized by a first Lien (subordinate only to the related A Note) against
the Underlying Mortgaged Property and payments under the related leases and a
first Lien (subordinate to the related B Note and A Note) on any unsecured claim
in bankruptcy for past due rents owing under the leases. The Mortgage Loan
Documents for the A-1
Note shall contain appropriate intercreditor provisions acceptable to the
Administrative Agent in its discretion.
“Applicable Advance
Rate” shall mean, with respect to each Mortgage Asset, the Applicable
Advance Rate determined by the Administrative Agent in its discretion and set
forth in the related Confirmation; provided, however, in no event
shall the Applicable Advance Rate for any New Mortgage Asset exceed the Maximum
Applicable Advance Rate.
“Applicable
Percentage” shall have the meaning set forth in the Fee Letter, which
definition is incorporated herein by reference.
“Approved Bank” shall
have the meaning set forth in the definition of “Cash Equivalents.”
“Approved Fund” shall
mean any Fund that is administered, managed or underwritten by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
“Arranger” shall mean
Xxxxx Fargo Securities, LLC, together with its successors and
assigns.
“Asset Schedule and Exception
Report” shall have the meaning set forth in the Custodial
Agreement.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
2
“Asset Value” shall
have the meaning set forth in the Fee Letter, which definition is incorporated
herein by reference.
“Assignment and
Assumption” shall mean an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is
required by the definition of Eligible Assignee and Section 10.6), and
accepted by the Administrative Agent, in substantially the form of Exhibit 1.1(b)
or any other form approved by the Administrative Agent.
“Assignment of Leases”
shall mean, with respect to any Mortgage, an assignment of leases thereunder,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the Underlying Mortgaged Property is
located to reflect the assignment of leases to the holder of the Mortgage or any
secured party, as applicable, as any such Assignment of Leases may be amended,
restated, modified or supplemented from time to time.
“Assignment of
Mortgage” shall mean, with respect to any Mortgage, an assignment of the
Mortgage, notice of transfer or equivalent instrument in recordable form,
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect the assignment of the Mortgage to the holder of
the Mortgage or any secured party, as applicable, as any such Assignment of
Mortgage may be amended, restated, modified or supplemented from time to
time.
“Assignments” shall
mean the transfer of all of the Borrowers’ rights and interests under an
Eligible Asset pursuant to an assignment executed by the Borrowers in blank,
which assignment shall be in the form of Exhibit 1.1(g) and
shall be otherwise satisfactory to the Administrative Agent in its discretion,
as any such Assignments may be amended, restated, modified or supplemented from
time to time.
“Authority Documents”
shall mean, as to any Person, the articles or certificate of incorporation or
formation, by-laws, limited liability company agreement, general partnership
agreement, limited partnership agreement, trust agreement, joint venture
agreement or other applicable organizational or governing documents and the
applicable resolutions of such Person.
“Availability” shall
mean at any time, an amount equal to the positive excess (if any) of (a) the
lesser of (i) the Revolving Committed Amount, and (ii) the Asset Value of
all Revolving Loan Collateral, minus (b) the
aggregate outstanding principal amount for all Revolving Loans on such day;
provided, however, for so long
as and to the extent that the Administrative Agent does not have a first
priority perfected security interest in any item of Collateral, then such
Collateral shall be disregarded for the purposes of calculating Availability;
provided, further, however, on and after
the occurrence of the Maturity Date or an Event of Default, the Availability
shall be zero (0).
“Availability Correction
Deadline” shall have the meaning set forth in Section
2.5.
“Bailee” shall mean,
with respect to each Table Funded Mortgage Asset, the
related title company or other settlement agent, in each case, approved in
writing by the Administrative Agent in its discretion.
“Bailee Agreement”
shall mean, the Bailee Agreement among the applicable Borrower, the
Administrative Agent and the Bailee in the form of Annex 13 to the
Custodial Agreement.
“Bailee’s Trust
Receipt” shall have the meaning set forth in the Custodial
Agreement.
“Bankruptcy Code”
shall mean the Bankruptcy Code in Title 11 of the United States Code, as
amended, modified, succeeded or replaced from time to time.
“Bankruptcy Event”
shall mean any of the events described in Section 7.1(f).
“Bankruptcy Event of
Default” shall mean an Event of Default specified in Section 7.1(f).
“Basic Mortgage Asset
Documents” shall have the meaning set forth in the Custodial
Agreement.
“B Note” shall mean
one of up to three promissory notes issued in connection with a Commercial Real
Estate Loan secured primarily by the Underlying Mortgaged Property and an
assignment of leases and rents on the Underlying Mortgaged Property. A B
Note shall be characterized by a first Lien (subordinate to the related A Note
and A-1 Note) against
the Underlying Mortgaged Property and payments under the related leases and a
first Lien on any unsecured claim in bankruptcy for past due rents owing under
the leases. The Mortgage Loan Documents for the B Note shall contain
appropriate intercreditor provisions acceptable to the Administrative Agent in
its discretion.
“Book Value” shall
mean, with respect to any Mortgage Asset at any time (other than the Johnston RI
Pledged Mortgage Asset), an amount as certified by the applicable Borrower,
equal to the lesser of (a) face or par value and (b) the price that the
applicable Borrower initially paid or advanced in respect thereof plus any additional
amounts advanced by the applicable Borrower for or in respect of such Mortgage
Asset, as such Book Value may be marked down by the applicable Borrower from
time to time, including, as applicable, any loss/loss reserve/price adjustments,
less an amount
equal to the sum of all principal payments, prepayments or paydowns paid and
realized losses and other writedowns recognized relating to such Mortgage Asset;
provided, however, any such
markdowns or adjustments must be made in good faith and shall be disclosed
contemporaneously therewith in writing to the Administrative Agent, which xxxx
downs or adjustments, without a corresponding payment and application of
principal, may result in a mandatory payment under Section
2.5.
“Borrower” or “Borrowers” shall
mean, individually and/or collectively, Funding and any other entity that
becomes a party to this Agreement pursuant to Section 5.10 from
time to time, in each case together with their successors and permitted
assigns.
“Borrower Joinder
Agreement” shall mean a Borrower Joinder Agreement in substantially the
form of Exhibit 1.1(d)(i),
executed and delivered by an Additional Credit Party in accordance with the
provisions of Section 5.10, as
amended, restated, supplemented or modified from time to
time.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
3
“Borrower Asset
Schedule” shall have the meaning set forth in the Custodial
Agreement.
“Borrower Release
Letter” shall mean a letter in the form of Exhibit 1.1(h), duly
executed by the applicable Borrower.
“Borrowing Date” shall
mean the date any Loan is made or any item of Collateral is pledged to the
Administrative Agent pursuant to the terms hereof and the other Credit
Documents.
“Business” shall have
the meaning set forth in Section 3.10.
“Business Day” shall
mean any day other than a Saturday, Sunday or other day on which commercial
banks in North Carolina, New York or Minnesota are authorized or required by
Requirements of Law to close; provided, however, that when
used in connection with a rate determination, borrowing or payment in respect of
a LIBOR Rate Loan, the term “Business Day” shall also exclude any day on which
banks in London, England are not open for dealings in Dollar deposits in the
London interbank market.
“Caplease” shall have
the meaning set forth in the first paragraph of this Agreement.
“Caplease Inc.” shall
have the meaning set forth in the first paragraph of this
Agreement.
“Capital Lease” shall
mean any lease of (or other agreement conveying the right to use) Property, real
or personal, the obligations with respect to which are required to be
capitalized on a balance sheet of the lessee in accordance with
GAAP.
“Capital Lease
Obligations” shall mean, for any Person and its Consolidated
Subsidiaries, all obligations of such Person to pay rent or other amounts under
a Capital Lease, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
“Cash Collateral”
shall mean the cash or payments received by the Administrative Agent pursuant to
Section 2.5 of
this Agreement or as Income on any Collateral.
“Cash Equivalents”
shall mean any of the following: (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof) having
maturities of not more than one (1) year from the date of acquisition, (b)
time deposits or certificates of deposit of any commercial bank incorporated
under the laws of the United States or any state thereof, of recognized standing
having capital and unimpaired surplus in excess of $1,000,000,000 and whose
short-term commercial paper rating at the time of acquisition is at least A-1 or
the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Xxxxx’x (any such bank, an “Approved Bank”), with
such deposits or certificates having maturities of not more than one (1)
year from the date of acquisition, (c) repurchase obligations with a term of not
more than seven (7) days for underlying securities of the types described
in clauses (a) and (b) above entered into with any Approved Bank, (d)
commercial paper or finance company paper issued by any Person incorporated
under the laws of the United States or any state thereof and rated at least A-1
or the equivalent thereof by S&P or at least P-1 or the equivalent thereof
by Xxxxx’x, and in each case maturing not more than one (1) year after the
date of acquisition, and (e) investments in money market funds that are
registered under the 40 Act, which have net assets of at least
$1,000,000,000 and at least 85% of whose assets consist of securities and other
obligations of the type described in clauses (a) through (e) above.
All such Cash Equivalents must be denominated solely for payment in
Dollars.
“CDO Issuance” shall
mean any securitization transaction involving the issuance of collateralized
debt obligations.
“Change in Law” shall
mean the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty
or in the administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any
Governmental Authority.
“Change of Control”
shall mean, with respect to any Borrower or any Guarantor, a change of
control shall be deemed to have occurred upon the occurrence of any of the
following: (a) a Person or two or more Persons acting in concert
shall have acquired “beneficial ownership”, directly or indirectly, of, or shall
have acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of,
or control over, Voting Interests of such Borrower or such Guarantor (or other
securities convertible into such Voting Interests) representing more
than 25% of the combined voting power of all Voting Interests of any
Borrower or any Guarantor, (b) Continuing Directors shall cease for any
reason to constitute a majority of the members of the board of directors of any
Borrower or any Guarantor then in office, (c) the sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or a series of related transactions, of all or substantially all of the
assets of any Borrower (together with its Subsidiaries), or any Guarantor
(together with its Subsidiaries) taken as a whole to any “person” (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act) or (d) the
adoption by the equity holders of any Borrower or any Guarantor of a plan or
proposal for the liquidation or dissolution of any Borrower or any
Guarantor. As used herein, “beneficial ownership” shall have the meaning
provided in Rule 13d-3 and 13d-5 of the Exchange Act. Notwithstanding
the foregoing, neither the Administrative Agent nor any Lender shall be deemed
to approve or have approved any internalization of management as a result of
this definition or any other provision.
“Class” shall mean
with respect to a Mortgage Asset, such Mortgage Asset’s classification as a
Whole Loan, a Floater, a Junior Interest, a Mezzanine Loan, a Construction Loan,
a CMBS Security, a Letter of Credit Loan or a Direct CTL
Transaction.
“Closing Date” shall
mean April 29, 2008.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
4
“Closing Officer’s
Certificate” shall mean a certificate substantially in the form of Exhibit 4.1(n), duly
executed by each of the Credit Parties.
“CMBS Security” shall
mean (a) a security representing a class of a commercial mortgage loan
securitization backed by first lien mortgage loans secured by commercial and/or
multifamily properties or other loans secured directly or indirectly by a
mortgage encumbering an interest in property or (b) a security representing
non-recourse or limited recourse collateralized debt obligations issued by a
special purpose vehicle, secured solely by the assets
thereof.
“CMBS Security
Certificate” shall have the meaning set forth in the Custodial
Agreement.
“Code” shall mean the
Internal Revenue Code of 1986, as amended from time to time.
“Collateral” shall
mean the collective reference to the collateral described in the Security
Documents which secures all Obligations (including, without limitation, the
Revolving Loan).
“Collateral Default”
shall mean any Mortgage Asset included or proposed to be included in the
Collateral (a) that is thirty (30) or more days delinquent under the terms of
the related Mortgage Loan Documents, (b) for which there is a non-monetary
default (beyond any applicable notice and cure period) under the terms of the
related Mortgage Loan Documents, (c) for which there is any breach of a
representation or warranty under Schedule 1.1(c) or
(d) with respect to which the related Obligor is the subject of an Insolvency
Proceeding or Insolvency Event.
“Collection Account”
shall mean the account set forth on Schedule 1.1(b),
which is established in the name of one or more Borrowers and subject to the
Account Control Agreement and into which all Income and Cash Collateral shall be
deposited. Funds in the Collection Account may be invested at the
direction of the Administrative Agent in Cash Equivalents.
“Commercial Real
Estate” shall mean any real estate included in the definition of Property
Type.
“Commercial Real Estate
Loan” shall mean any loan secured directly or indirectly by Commercial
Real Estate or, as applicable, Equity Interests in an entity that owns directly
or indirectly Commercial Real Estate.
“Commitment” shall
mean the Revolving Commitments.
“Commitment Fee” shall
mean the “Commitment Fee” payable under the Fee Letter.
“Commitment
Percentage” shall mean the Revolving Commitment Percentage.
“Commitment Period”
shall mean the period from and including the Restatement Date to but excluding
the Maturity Date.
“Commonly Controlled
Entity” shall mean an entity, whether or not incorporated, which is under
common control with a Borrower or any other Credit Party within the meaning of
Section 4001(b)(1) of ERISA or is part of a group which includes any
Borrower or any other Credit Party and which is treated as a single employer
under Section 414(b) or 414(c) of the Code or, solely for purposes of
Section 412 of the Code to the extent required by such section,
Section 414(m) or 414(o) of the Code.
“Compliance
Certificate” shall mean a certificate in the form of Exhibit 1.1(i)
attached hereto, duly executed by the Credit Parties.
“Confirmation” shall
have the meaning set forth in Section
2.1(b)(i)(3).
“Consolidated” shall
mean, when used with reference to financial statements or financial statement
items of the Borrowers, the Guarantor and their Subsidiaries or any other
Person, such statements or items on a consolidated basis in accordance with the
consolidation principles of GAAP.
“Consolidated Adjusted
EBITDA” shall mean, for any period, with respect to any Person, the sum,
without duplication, for such period of (a) the Net Income of such Person
and its Consolidated Subsidiaries determined on a consolidated basis for such
period, (b) the sum of the provisions for such period for income taxes,
interest expense, and depreciation and amortization expense used in determining
such Net Income for such Person and its Consolidated Subsidiaries,
(c) amounts deducted in accordance with GAAP in respect of other non–cash
expenses in determining such Net Income for such Person and its Consolidated
Subsidiaries and (d) the amount of any aggregate net loss (or minus the amount of
any gain) during such period arising from the sale, exchange or other
disposition of capital assets by such Person and its Consolidated Subsidiaries
determined on a consolidated basis, in each event, excluding unrealized
gains/losses, any fees payable to advisors for raising private equity capital,
amortization of financing fees and amortization of bond discount associated with
convertible debt outstanding.
“Consolidated Tangible Net
Worth” shall mean, as of a particular date: (a) all amounts
that would be included under capital or stockholder equity (or the equivalent)
on a consolidated balance sheet of the Guarantor and its Consolidated
Subsidiaries at such date determined in accordance with GAAP, less (b) in each case
with respect to the Guarantor and its Consolidated Subsidiaries (i) amounts
owing to the Guarantor from Affiliates, or from officers, employees, partners,
members, directors, shareholders or other Persons similarly affiliated with the
Guarantor or its respective Affiliates, (ii) intangible assets of the
Guarantor (other than real estate intangibles under Statement of Financial
Accounting Standards No. 141, but including, without limitation, synthetic or
derivative products or positions), as determined in accordance with GAAP,
(iii) prepaid taxes and/or expenses, and (iv) the value of any REO Property
and Foreclosed Loans; provided, however, for the
avoidance of doubt, Consolidation Tangible Net Worth shall add back accumulated
depreciation and amortization on real estate investments .
“Construction Loan”
shall mean a performing Whole Loan (except that the Underlying Mortgaged
Property is not stabilized or is transitional) entirely owned by a Borrower and
the proceeds of which are applied to finance the acquisition of the Underlying
Mortgaged Property and the initial construction of improvements thereon and as
to which scheduled construction and occupancy shall occur on or before 30 days
prior to the Maturity Date.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
5
“Construction Costs”
shall mean with respect to a Mortgage Asset that is a Construction Loan, as of
any date of determination, the reasonable hard and soft costs of proposed
construction of the improvements on the Underlying Mortgaged Property, which
reasonable costs shall be disclosed to and approved by the Administrative in its
discretion, plus the market value
of the related Underlying Mortgaged Property at such time, as determined by the
Administrative Agent in its discretion based on such sources of information as
the Administrative Agent may determine to rely on in its
discretion.
“Construction Draw
Deliveries” shall mean the deliveries required under Schedule 1.1(f) to
this Agreement.
“Contingent
Liabilities” shall mean, with respect to any Person and its Consolidated
Subsidiaries (without duplication): (a) liabilities and obligations
(including any Guarantee Obligations) of such Person or any Consolidated
Subsidiary of such Person in respect of “off-balance sheet arrangements” (as
defined in the SEC Off-Balance Sheet Rules), (b) any obligation, including,
without limitation, any Guarantee Obligation, whether or not required to be
disclosed in the footnotes to such Person’s and its Consolidated
Subsidiaries’ financial statements, guaranteeing partially or in whole any
Non-Recourse Indebtedness, lease, dividend or other obligation, exclusive of (i)
contractual indemnities (including, without limitation, any indemnity or
price-adjustment provision relating to the purchase or sale of securities or
other assets) and (ii) guarantees of non-monetary obligations (other than
guarantees of completion, environmental indemnities and guarantees of customary
carve-out matters made in connection with Non-Recourse Indebtedness, such as
(but not limited to) fraud, misappropriation, bankruptcy and misapplication)
which have not yet been called on or quantified, of such Person or of any other
Person, and (c) any forward commitment or obligation to fund or provide proceeds
with respect to any loan or other financing which is obligatory and
non-discretionary on the part of the lender. The amount of any Contingent
Liabilities described in clause (b) shall be deemed to be, (i) with respect
to a guarantee of interest or interest and principal, or operating income
guarantee, the sum of all payments required to be made thereunder (which, in the
case of an operating income guarantee, shall be deemed to be equal to the debt
service for the note secured thereby), through, (x) in the case of an
interest or interest and principal guarantee, the stated date of maturity of the
obligation (and commencing on the date interest could first be payable
thereunder), or (y) in the case of an operating income guarantee, the date
through which such guarantee will remain in effect, and (ii) with respect to all
guarantees not covered by the preceding clause (i), an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as recorded on the balance sheet and on the footnotes to the
most recent financial statements of such Person. As used in this
definition, the term “SEC Off-Balance Sheet Rules” means the Disclosure in
Management’s Discussion and Analysis About Off-Balance Sheet Arrangements and
Aggregate Contractual Obligations, Securities Act Release No. 33-8182,
34-47264; FR-67 International Series Xxxxxxx Xx. 0000 Xxxx Xx. X0-00-00, 68 Fed.
Reg. 5982 (Feb. 5, 2003) (codified at 17 CFR pts. 228, 229 and
249).
“Continuing Director”
shall mean (a) an individual who is a member of any Person’s board of directors
(or the equivalent thereof) on the date hereof or (b) any new director (or the
equivalent thereof) whose appointment was approved by a majority of the
individuals who were already Continuing Directors at the time of such
appointment, election or approval.
“Contractual
Obligation” shall mean, as to any Person, any provision of any security
issued by such Person or of any contract, agreement, instrument or undertaking
to which such Person is a party or by which it or any of its Property is
bound.
“Control” shall mean
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. “Controlling” and
“Controlled”
have meanings correlative thereto.
“Correction Amount”
shall have the meaning set forth in Section
2.5(b)(i)(A).
“Credit Documents”
shall mean this Agreement, each of the Notes, any Joinder Agreement, the Fee
Letter, the Guaranty, each Notice of Borrowing, each Confirmation, the Custodial
Fee Letter and the Security Documents and all other agreements, documents,
certificates and instruments delivered to the Administrative Agent or any Lender
by any Credit Party in connection therewith, as each such agreement, document,
certificate or instrument is amended, restated, modified or supplemented from
time to time.
“Credit Party” shall
mean any of the Borrowers, the Guarantor, the Pledgors, any Additional Credit
Party or any pledgor or obligor under the Security Documents.
“Credit Party–Related
Obligations” shall mean any obligations, liabilities and/or Indebtedness
of the Credit Parties under each Credit Document and under any other arrangement
between any Credit Party or any Affiliate or Subsidiary of any Credit Party, on
the one hand, and the Administrative Agent, any Affiliate or Subsidiary of the
Administrative Agent and/or any commercial paper conduit for which Xxxxx Fargo
or an Affiliate or Subsidiary of Xxxxx Fargo acts as a liquidity provider,
administrator or agent, on the other hand, including, without limitation, such
obligations, liabilities and/or Indebtedness under any Derivatives Contract
involving Xxxxx Fargo, as any such Credit Party-Related Obligations are amended,
restated or modified from time to time.
“Credit Tenant Lease”
shall mean a financeable lease to a tenant or guaranteed by a Person with a
rating of BBB- by S&P or Baa3 by Xxxxx’x, or better, which lease provides
that the tenant will pay all maintenance, insurance, and property and sales
taxes, or, to the extent such maintenance, insurance and/or property and/or
sales tax obligations are the responsibility of a Borrower, such obligations
will be paid by insurance, from reserves or by such other means acceptable to
the Administrative Agent. Notwithstanding the foregoing, leases to tenants
or guaranteed by Persons not meeting such requirements may be deemed Credit
Tenant Leases in the Administrative Agent’s discretion.
“Current Appraisal”
shall mean an appraisal dated within twelve (12) months of the date of
determination; provided, however, (i) in
the case of the valuation of an Underlying Mortgaged Property, such appraisal
shall be a FIRREA Appraisal and (ii) in the case of the valuation of a
Mortgage Asset, such appraisal shall be from a nationally recognized appraisal
firm (other than the Borrowers, the Guarantor or any Affiliate of the foregoing)
(A) with substantial experience valuing assets similar in type, size and
structure to the Mortgage Asset in question, (B) having substantial
familiarity with the market for such Mortgage Asset and (C) that is
otherwise acceptable to the Administrative Agent in its discretion.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
6
“Custodial Agreement”
shall mean that certain Custodial Agreement, dated as of the Closing Date, by
and among the Borrowers, the Administrative Agent and the Custodian, as the same
shall be amended, modified, waived, supplemented, extended, replaced or restated
from time to time.
“Custodial Fee Letter”
shall mean that certain Custodial Fee Letter, between the Borrowers and the
Custodian, as such letter may be amended, modified, waived, supplemented,
extended, restated or replaced from time to time.
“Custodial Identification
Certificate” shall have the meaning set forth in the Custodial
Agreement.
“Custodian” shall mean
Xxxxx Fargo Bank, National Association, and its successor in interest as the
custodian under the Custodial Agreement, and any successor Custodian under the
Custodial Agreement.
“Debt Issuance” shall
mean the issuance of any indebtedness for borrowed money by any Borrower, any
Guarantor or any Consolidated Subsidiary or Affiliate of any Borrower or
Guarantor, including, without limitation, (a) Preferred Securities to the extent
such Preferred Securities constitute Indebtedness and (b) any such issuance
in accordance with Requirements of Law relating to Taxes; provided, however, the term
Debt Issuance shall not include (i) any Equity Issuances and (ii) Indebtedness
permitted by Section
6.1(a) of this Agreement.
“Debt Service Coverage
Ratio” or “DSCR” shall mean with
respect to any Mortgage Asset (other than the Johnston RI Pledged Mortgage
Asset), as of any date of determination, for the period of time to be determined
in the Administrative Agent’s discretion (it being understood that it is the
Administrative Agent’s intent to make the determination based on the period of
twelve (12) consecutive complete calendar months preceding such date (or,
if such Mortgage Asset was originated less than twelve (12) months from the
date of determination, the number of months from the date of origination)), the
ratio of (a) the aggregate Net Cash Flow in respect of the Underlying
Mortgaged Properties relating to such Mortgage Asset for such period (including,
in the case of Construction Loans, interest reserves held by a Borrower or a
Servicer with respect to such asset), to (b) the sum
of (i) the aggregate of all amounts due for such period in respect of all
Indebtedness that was outstanding from time to time during such period that is
secured, directly or indirectly, by such Underlying Mortgaged Properties
(including, without limitation, by way of a pledge of the equity of the owner(s)
of such Underlying Mortgaged Properties) or that is otherwise owing by the
owner(s) of such Underlying Mortgaged Properties, including, without limitation,
all scheduled principal and/or interest payments due for such period in respect
of each Mortgage Asset that is secured or supported by such Underlying Mortgaged
Properties plus
(ii) the amount of all Ground Lease payments to be made in respect of such
Underlying Mortgaged Properties during such period, as any of the foregoing
elements of DSCR may be adjusted by the Administrative Agent as
determined by the Administrative Agent in its discretion; provided, however, that all
such calculations shall be made taking into account any senior or pari passu debt or other
obligations including debt or other obligations secured directly or indirectly
by the applicable Underlying Mortgaged Property.
“Debt Yield” shall
mean, with respect to a Mortgage Asset and for any relevant time period, the
percentage equivalent of the quotient obtained by dividing (a) the Net Cash Flow
from the related Underlying Mortgaged Properties securing such Mortgage Asset,
by (b) the outstanding Allocated Revolving Loan Amount of such Mortgage Asset on
the last day of such time period; provided that the
Administrative Agent shall use an annual number for Net Cash Flow in the
numerator.
“Default” shall mean
any of the events specified in Section 7.1,
whether or not any requirement for the giving of notice or the lapse of time, or
both, or any other condition, has been satisfied.
“Deficit” shall have
the meaning set forth in Section
2.5(b)(vi).
“Defaulting Lender”
shall mean, at any time, any Lender that, at such time (a) has failed to
make a Loan required pursuant to the terms of this Agreement, (b) has
failed to pay to the Administrative Agent or any Lender an amount owed by such
Lender pursuant to the terms of this Agreement and such default remains uncured,
or (c) has been deemed insolvent or has become subject to an Insolvency
Proceeding, Insolvency Event or to a receiver, trustee or similar
official.
“Derivatives
Contract” shall mean any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the
foregoing, the term “Derivatives Contract” includes any and all transactions of
any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement, including any such
obligations or liabilities under any such master agreement.
“Derivatives Termination
Value” shall mean, in respect of any one or more Derivatives Contracts,
after taking into account the effect of any legally enforceable netting
agreement relating to such Derivatives Contracts, (a) for any date on or
after the date such Derivatives Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a), the
amount(s) determined as the xxxx-to-market value(s) for such Derivatives
Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Derivatives
Contracts (which may include the Administrative Agent).
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
7
“Direct CTL
Transaction” shall mean a Whole Loan, an A-1 Note or B Note made by a
Subsidiary wholly-owned by Caplease Inc. or
Caplease and payable to a Borrower secured by Underlying Mortgaged Property
owned by such Subsidiary, which includes a Credit Tenant Lease under which the
Subsidiary is the lessor under the Credit Tenant Lease. With respect to
Direct CTL Transactions involving Whole Loans, the Subsidiary owning the
Underlying Mortgaged Property shall be an SPE Subsidiary and the Equity
Interests in such SPE Subsidiary shall be subject to Section
6.18.
“Dollars” and “$” shall mean dollars
in lawful currency of the United States of America.
“Domestic Lending
Office” shall mean, initially, the office of each Lender designated as
such Lender’s Domestic Lending Office shown in such Lender’s Administrative
Questionnaire; and thereafter, such other office of such Lender as such Lender
may from time to time specify to the Administrative Agent and the Borrowers as
the office of such Lender at which Alternate Base Rate Loans of such Lender are
to be made.
“Domestic Subsidiary”
shall mean any Subsidiary that is organized and existing under the laws of the
United States or any state or commonwealth thereof or under the laws of the
District of Columbia.
“DTC” shall mean The
Depository Trust Company, a limited purpose company under the banking laws of
the State of New York.
“Due Diligence Review”
shall mean the performance by the Administrative Agent of any or all of the
reviews permitted under Section 10.27 with
respect to any or all of the Collateral, as desired by the Administrative Agent
from time to time.
“Electronic
Transmission” shall mean the delivery of information and executed
documents in an electronic format acceptable to the applicable recipient
thereof.
“Eligible Asset” shall
mean a Mortgage Asset that as of any date of determination:
(a) is
not subject to a Collateral Default;
(b) with
respect to the portion of such Mortgage Asset to be pledged to the
Administrative Agent, the funding obligations have been satisfied in full and
there is no unfunded commitment with respect thereto;
(c) has
been approved in writing by the Administrative Agent in its
discretion;
(d) has,
to the extent applicable, an LTV not in excess of the Maximum LTV, and, with
respect to Construction Loans, an LTC not in excess of the Maximum
LTC;
(e) has,
to the extent applicable, a DSCR equal to or greater than the Minimum
DSCR;
(f)
with respect to any New Mortgage Asset, shall have
a Debt Yield of at least the Required Debt Yield Percentage;
(g) with
respect to any New Mortgage Asset, is a Whole Loan;
(h) other
than a Construction Loan, is not a construction loan;
(i)
is not a loan to an operating business (other than a
hotel);
(j)
the pledge of such Mortgage Asset will not violate any
applicable Sub–Limit;
(k) satisfies
each of the applicable representations and warranties set forth in
Article III of this Agreement and the Security Documents (to the extent any
such representations or warranties relate to the Mortgage Assets or
the Administrative Agent’s rights or remedies with respect thereto), in
Schedule 1.1(c) hereto, the Mortgage Loan Documents and in any statement,
affirmation or certification made or information, document, agreement, notice or
report provided to the Administrative Agent with respect to such Mortgage
Asset;
(l)
in the case a Ground Lease, the Ground Lease
has a remaining term including extensions of no less than twenty (20) years
from the maturity date of the Mortgage Asset;
(m) in
the case of any Mortgage Asset the Mortgage Property for which is a hotel, that
hotel must be a national flag hotel;
(n) the
Underlying Mortgage Property is located, and the Obligor is domiciled, in
the United States of America;
(o) such
Mortgage Asset (other than a CMBS Security and the Johnston RI Pledged Mortgage
Asset) includes an original Mortgage Note, Participation Certificate or
Mezzanine Note, as applicable;
(p) such
Mortgage Asset is denominated and payable in Dollars;
(q) the Obligor
is not a Sanctioned Person or Sanctioned Entity; and
(r)
does not involve an equity or similar interest by any Credit Party
that would result in (i) except with respect to Direct CTL Transactions
involving A-1 Notes
and B Notes, a conflict of interest or a potential conflict of interest or
(ii) an affiliation with an Obligor under the terms of the Mortgage
Loan Documents which results or could reasonably be expected to result in the
loss or impairment of any material rights of the holder of the Mortgage Asset;
provided, however,
the Borrowers must disclose to the Administrative Agent prior to
the related Borrowing Date all equity or similar interests held or to be
held by any Credit Party regardless of whether it satisfies any of the
foregoing clauses (i) or (ii);
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
8
provided, however, (i) CMBS
Securities shall not be Eligible Assets for the purposes of the Revolving Loans
and may not be pledged as Revolving Loan Collateral and (ii) notwithstanding a
Mortgage Asset’s failure to conform to the criteria set forth above, the
Administrative Agent may, in its discretion, designate in writing any such
non–compliant Mortgage Asset as an Eligible Asset, which may include a temporary
or permanent waiver of one (1) or more Eligible Asset
requirements.
“Eligible Assignee”
shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an
Approved Fund, and (d) any other Person (other than a natural person)
approved by the Administrative Agent; provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrowers, Guarantor or any Borrower’s or Guarantor’s Affiliates or
Subsidiaries.
“Environmental Laws”
shall mean any and all applicable foreign, federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees,
requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time be in effect during the term of this
Agreement.
“Equity Interests”
shall mean with respect to any Person, any share, interest, participation and
other equivalent (however denominated) of capital stock of (or other ownership,
equity or profit interests in) such Person, any warrant, option or other right
for the purchase or other acquisition from such Person of any share of capital
stock of (or other ownership, equity or profit interests in) such Person, any
security convertible into or exchangeable for any share of capital stock of (or
other ownership or profit interests in) such Person or warrant, right or option
for the purchase or other acquisition from such Person of such shares (or such
other interests), and any other ownership or profit interest in such Person
(including, without limitation, partnership, member or trust interests therein),
whether voting or nonvoting, and whether or not such share, warrant, option,
right or other interest is authorized or otherwise existing on any date of
determination.
“Equity Issuance”
shall mean any issuance by any Borrower, Guarantor or any Consolidated
Subsidiary or Affiliate of any Borrower or any Guarantor to any Person that is
not a Borrower, Guarantor or Consolidated Subsidiary or Affiliate of a Borrower
or Guarantor of (a) shares or interests of its Equity Interests,
(b) any shares or interests of its Equity Interests pursuant to the
exercise of options, warrants or similar rights, (c) any shares or
interests of its Equity Interests pursuant to the conversion of any debt
securities to equity or (d) warrants, options or similar rights that are
exercisable or convertible into shares or interests of its Equity Interests;
provided, however, “Equity
Issuance” shall not include the items excluded in the Fee Letter, which
exclusions are incorporated herein by reference.
“ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as amended from time to
time.
“Event of Default”
shall mean any of the events specified in Section 7.1;
provided, however, that any
requirement for the giving of notice or the lapse of time, or both, or any other
condition, has been satisfied.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended.
“Exceptions” shall
have the meaning set forth in the Custodial Agreement.
“Exception Report”
shall have the meaning set forth in the Custodial Agreement.
“Excluded Taxes” shall
mean, with respect to the Administrative Agent, any Lender, or any other
recipient of any payment to be made by or on account of any obligation of the
Borrowers hereunder, (a) taxes imposed on or measured by its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which a Borrower
is located and (c) in the case of a Foreign Lender, any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party hereto (or designates a new lending office) or is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with Section 2.14,
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrowers with respect to such withholding
tax pursuant to Section 2.14.
“Extension of Credit”
shall mean, as to any Lender, the making of a Loan by such Lender, any
conversion of a Loan from one Type to another Type, any extension of any Loan
and any pledge of a Mortgage Asset to the Administrative Agent.
“Extraordinary
Receipt” shall mean any Income received by or paid to or for the account
of any Credit Party relating to any item of Collateral and not in the ordinary
course of business, including tax refunds, pension plan reversions, proceeds of
insurance (other than proceeds of business interruption insurance to the extent
such proceeds constitute compensation for lost earnings), condemnation awards
(and payments in lieu thereof), indemnity payments and any purchase price
adjustments.
“Fair Market Value”
shall mean, with respect to (a) a security listed on a national securities
exchange or recognized automated quotation system, the price of such security as
reported on such exchange by any widely recognized reporting method customarily
relied upon by financial institutions, and (b) with respect to any other
assets or Property, including realty, the price that could be negotiated in an
arm’s-length free market transaction, for cash, between a willing seller and a
willing buyer, neither of which is under pressure or compulsion to complete the
transaction.
“Federal Funds Effective
Rate” shall have the meaning set forth in the definition of “Alternate
Base Rate”.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
9
“Fee Letter” shall
mean the first amended and restated letter agreement, dated as of the
Restatement Date, among the Borrowers and the Administrative Agent, as amended,
modified, extended, restated, replaced, or supplemented from time to
time.
“Financial Covenants”
shall mean the covenants set forth in Section 5.9 of this
Agreement.
“FIRREA Appraisal”
shall mean an appraisal prepared by an independent third party appraiser
approved in writing by the Administrative Agent in its discretion and satisfying
the requirements of Title XI of the Federal Institutions, Reform, Recovery
and Enforcement Act of 1989 and the regulations promulgated thereunder (as
the foregoing are amended, modified, restated, replaced, waived, substituted,
supplemented or extended from time to time), as in effect on the date of such
appraisal.
“Fitch” shall
mean Fitch Ratings,
Inc.
“Floater” shall mean a
performing Whole Loan with a floating rate of interest payable under the related
Mortgage Loan Documents.
“Foreclosed Loan”
shall mean a loan the security for which has been foreclosed upon by the
Borrowers.
“Foreign Lender” shall
mean any Lender that is organized under the laws of a jurisdiction other than
that in which a Borrower is resident for tax purposes. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single
jurisdiction.
“Fund” shall mean any
Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
“Funding” shall have
the meaning set forth in the first paragraph of this Agreement.
“GAAP” shall mean
generally accepted accounting principles in effect in the United States of
America applied on a consistent basis, subject, however, in the case
of determination of compliance with the financial covenants set out in Section 5.9, to
the provisions of Section 1.3.
“Governmental
Authority” shall mean the government of the United States of America or
any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank).
“Ground Lease” shall
mean with respect to any Underlying Mortgaged Property for which the Obligor has
a leasehold interest in the related Underlying Mortgaged Property or space lease
within such Underlying Mortgaged Property, the lease agreement creating such
leasehold interest.
“GSA” shall mean U.S.
General Services Administration, or any successor Governmental
Authority.
“Guarantee
Obligation” shall mean, as to any Person (the “guaranteeing
person”), without duplication, any obligation of (a) the
guaranteeing person or (b) another Person (including, without limitation,
any bank under any letter of credit) to induce the creation of the obligations
for which the guaranteeing person has issued a reimbursement, counterindemnity
or similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends, Contractual Obligation, Derivatives Contract or
other obligations (the “primary obligations”)
of any other third Person (the “primary obligor”) in
any manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any Property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase Property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or
hold harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of
any Guarantee Obligation of any guaranteeing person shall be deemed to be the
maximum stated amount of the primary obligation relating to such Guarantee
Obligation (or, if less, the maximum stated liability set forth in the
instrument embodying such Guarantee Obligation); provided, however, that in the
absence of any such stated amount or stated liability, the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably
anticipated liability in respect thereof as reasonably determined by such Person
in good faith.
“Guarantor” shall
mean, Prefco, Caplease Inc., Caplease, Services and any other entity that
becomes party to this Agreement pursuant to Section 5.10 from
time to time, in each case together with their successors and permitted
assigns.
“Guarantor Joinder
Agreement” shall mean a Guarantor Joinder Agreement in substantially the
form of Exhibit 1.1(d)(ii),
executed and delivered by an Additional Credit Party in accordance with the
provisions of Section 5.10, as
amended, restated, supplemented or modified from time to time.
“Guaranty” shall mean
the guaranty of the Guarantor set forth in that certain Guaranty Agreement,
dated as of the Closing Date, by and among the Guarantor and the Administrative
Agent, as amended, restated, supplemented or modified from time to
time.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
10
“Income” shall mean
with respect to the Collateral and to the extent of a
Borrower’s or the holder’s interest therein, at any time, all of the
following: all payments, collections, prepayments, recoveries,
proceeds (including, without limitation, insurance and condemnation proceeds),
Extraordinary Receipts and all other payments or amounts of any kind or nature
whatsoever paid, received, collected, recovered or distributed on, in connection
with or in respect of the Collateral or any other collateral for the
Obligations, including, without limitation, principal payments, interest
payments, principal and interest payments, prepayment fees, extension fees, exit
fees, defeasance fees, transfer fees, late charges, late fees and all other fees
or charges of any kind or nature, premiums, yield maintenance charges,
penalties, default interest, dividends, gains, receipts, allocations, rents,
interests, profits, payments in kind, returns or repayment of contributions and
all other distributions, payments and other amounts of any kind or nature
whatsoever payable thereon, in connection therewith, or with respect thereto,
together with amounts received from any Interest Rate Protection Agreement;
provided, however, (i) prior to
an Event of Default, the Borrowers may net the Servicing Fee from Income and
(ii) Income shall not include any Obligor Reserve Payments unless a Borrower, a
Servicer or a PSA Servicer has exercised rights with respect to such payments
under the terms of the related Mortgage Loan Documents, the Servicing Agreements
or the Pooling and Servicing Agreements, as applicable. For purposes of
the FM Pledged Mortgage Asset, Income shall also include all amounts paid or
payable by any tenant of the related Underlying Mortgaged Property or any
Obligor under a lease of the related Underlying Mortgaged Property.
“Indebtedness” shall
mean, with respect to any Person, including such Person’s Consolidated
Subsidiaries determined on a consolidated basis, at the time of computation
thereof, all indebtedness of any kind including, without limitation (without
duplication): (a) all obligations of such Person in respect of
money borrowed (including, without limitation, principal, interest, assumption
fees, prepayment fees, yield maintenance charges, penalties, exit fees,
contingent interest and other monetary obligations whether xxxxxx or inchoate
and whether by loan, the issuance and sale of debt securities or the sale of
Property or assets to another Person subject to an understanding or agreement,
contingent or otherwise, to repurchase such Property or assets, or otherwise);
(b) all obligations of such Person, whether or not for money borrowed
(i) represented by notes payable, letters of credit or drafts accepted, in
each case representing extensions of credit, (ii) evidenced by bonds,
debentures, notes or similar instruments, (iii) constituting purchase money
indebtedness, conditional sales contracts, title retention debt instruments or
other similar instruments, upon which interest charges are customarily paid or
that are issued or assumed as full or partial payment for property or services
rendered, or (iv) in connection with the issuance of trust preferred
securities; (c) Capital Lease Obligations of such Person; (d) all
reimbursement obligations of such Person under any letters of credit or
acceptances (whether or not the same have been presented for payment);
(e) all Off–Balance Sheet Obligations of such Person; (f) all
obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Mandatory Redeemable Stock issued by such
Person or any other Person (inclusive of forward equity contracts), valued at
the greater of its voluntary or involuntary liquidation preference plus accrued
and unpaid dividends; (g) as applicable, all obligations of such Person
(but not the obligation of others) in respect of any keep well arrangements,
credit enhancements, contingent or future funding obligations under any Mortgage
Asset or any obligation senior to the Mortgage Asset, unfunded interest reserve
amount under any Mortgage Asset or any obligation that is senior to the Mortgage
Asset, purchase obligation, repurchase obligation, sale/buy–back agreement,
takeout commitment or forward equity commitment, in each case evidenced by a
binding agreement (excluding any such obligation to the extent the obligation
can be satisfied by the issuance of Equity Interests (other than Mandatory
Redeemable Stock)); (h) net obligations under any Derivatives Contract not
entered into as a hedge against existing indebtedness, in an amount equal to the
Derivatives Termination Value thereof; (i) all Non–Recourse Indebtedness,
recourse indebtedness and all indebtedness of other Persons which such Person
has guaranteed or is otherwise recourse to such Person; (j) all
indebtedness of another Person secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien (other than certain Permitted Liens) on Property or assets owned by
such Person, even though such Person has not assumed or become liable for the
payment of such indebtedness or other payment obligation; provided, however, if such
Person has not assumed or become liable for the payment of such indebtedness,
then for the purposes of this definition the amount of such indebtedness shall
not exceed the market value of the property subject to such Lien; (k) all
Contingent Liabilities; (l) all obligations of such Person incurred in
connection with the acquisition or carrying of fixed assets by such Person or
obligations of such Person to pay the deferred purchase or acquisition price of
Property or assets, including contracts for the deferred purchase price of
Property or assets that include the procurement of services;
(m) indebtedness of general partnerships of which such Person is liable as
a general partner (whether secondarily or contingently liable or otherwise); and
(n) obligations of such Person to fund capital commitments under any
Authority Document, subscription agreement or otherwise.
“Indemnified Amounts”
shall have the meaning set forth in Section
10.5(b).
“Indemnified Taxes”
shall mean Taxes other than Excluded Taxes.
“Indemnitee” shall
have the meaning set forth in Section
10.5(b).
“Independent Director”
shall mean natural Person who (a) is not at the time of initial appointment
as Independent Director, and may not have been at any time during the
five (5) years preceding such initial appointment or at any time while
serving as Independent Director, (i) a stockholder, partner, member or
direct or indirect legal or beneficial owner of a Borrower, a Guarantor or any
Subsidiary or Affiliate of any Credit Party; (ii) a contractor, creditor,
customer, supplier, director (with the exception of serving as the Independent
Director of a Borrower), officer, employee, attorney, manager or other Person
who derives any of its purchases or revenues from its activities with a
Borrower, a Guarantor or any Affiliate or Subsidiary of any Credit Party;
(iii) a natural Person who controls (directly or indirectly or otherwise) a
Borrower, a Guarantor or any Affiliate or Subsidiary of any Credit Party or who
controls or is under common control with any Person that would be excluded from
serving as an Independent Director under (i) or (ii), above; or (iv) a
member of the immediate family of a natural Person excluded from servicing as an
Independent Director under clauses (i) or (ii) above, (b) otherwise
satisfies the then current requirements of the Rating Agencies and (c) is an
employee of a nationally recognized organization that supplies independent
directors.
“Information
Materials” shall have the meaning set forth in Section
5.15.
“Insolvency” shall
mean, with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of such term as used in Section 4245 of
ERISA.
“Insolvency Event”
shall mean, with respect to a specified Person, (a) the filing of a decree
or order for relief by a court having jurisdiction in the premises in respect of
such Person or any substantial part of its Property in an involuntary case under
any applicable Insolvency Law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its Property, or
ordering the winding-up or liquidation of such Person’s affairs, and such decree
or order shall remain unstayed and in effect for a period of sixty (60)
consecutive days; or (b) the commencement by such Person of a voluntary
case under any applicable Insolvency Law now or hereafter in effect, or the consent
by such Person to the entry of an order for relief in an involuntary case under
any such law, or the consent by such Person to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official for such Person or for any substantial part of its Property,
or the making by such Person of any general assignment for the benefit of
creditors, or the failure by such Person generally to pay its debts as such
debts become due, or the taking of action by such Person in furtherance of any
of the foregoing.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
11
“Insolvency Laws”
shall mean the Bankruptcy Code and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, suspension of payments or similar debtor relief laws
from time to time in effect affecting the rights of creditors
generally.
“Insolvency
Proceeding” shall mean any case, action or proceeding before any court or
other Governmental Authority relating to any Insolvency Event.
“Instrument” shall
mean any “instrument” (as defined in Article 9 of the UCC), other than an
instrument that constitutes part of chattel paper.
“Interest Expense”
shall mean for any period and any Person, total interest expense, of such Person
for such period with respect to all outstanding Indebtedness of such Person
(including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers’ acceptance financing
and net costs under interest rate protection agreements), determined in
accordance with GAAP, excluding amortization of deferred financing fees and
amortization of bond discounts associated with convertible debt to the extent
included in GAAP Interest Expense.
“Interest Period”
shall mean, with respect to any LIBOR Rate Loan,
(a) initially,
the period commencing on the Borrowing Date or conversion date, as the case may
be, with respect to such LIBOR Rate Loan and ending one month thereafter,
subject to availability to all applicable Lenders, as selected by Borrowers in
the Notice of Borrowing or Notice of Conversion given with respect thereto;
and
(b) thereafter,
each period commencing on the last day of the immediately preceding Interest
Period applicable to such LIBOR Rate Loan and ending one month thereafter,
subject to availability to all applicable Lenders, as selected by the Borrowers
by irrevocable notice to the Administrative Agent not less than three Business
Days prior to the last day of the then current Interest Period with respect
thereto; provided that the
foregoing provisions are subject to the following:
(i) if
any Interest Period pertaining to a LIBOR Rate Loan would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) any
Interest Period pertaining to a LIBOR Rate Loan that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the relevant calendar month;
(iii) if
the Borrowers shall fail to give notice as provided above, the applicable
Borrower shall be deemed to have selected an Alternate Base Rate Loan to replace
the affected LIBOR Rate Loan;
(iv) no
Interest Period in respect of any Loan shall extend beyond the applicable
Maturity Date; and
(v) no
more than six (6) LIBOR Rate Loans may be
in effect at any time. For purposes hereof, LIBOR Rate Loans with
different Interest Periods shall be considered as separate LIBOR Rate Loans,
even if they shall begin on the same date and have the same duration, although
borrowings, extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to constitute a new
LIBOR Rate Loan with a single Interest Period.
“Interest Rate Protection
Agreement” shall mean with respect to any or all of the Mortgage Assets,
(a) any Derivatives Contract required under the terms of the related Mortgage
Loan Documents providing for protection against fluctuations in interest rates
or the exchange of nominal interest obligations, either generally or under
specific contingencies, and acceptable to the Administrative Agent in its
discretion and (b) any Derivatives Contract put in place by any Borrower, any
Guarantor or any Subsidiary or Affiliate of the foregoing with respect to any
Mortgage Asset.
“Internal Control
Event” shall mean a material weakness in, or fraud that involves
management or other employees who have a significant role in, any Credit Party’s
internal controls over financial reporting, in each case as described in the
Securities Laws.
“Investment” shall
mean, with respect to any Person, any acquisition or investment (whether or not
of a controlling interest) by such Person, whether by means of (a) the
purchase or other acquisition of any Equity Interests in another Person,
(b) a loan, advance or extension of credit to, capital contribution to,
guaranty or credit enhancement of Indebtedness of, or purchase or other
acquisition of any Indebtedness of, another Person, including any partnership or
joint venture interest in such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute the business or a division or operating unit of
another Person. Any binding commitment or option to make an Investment in
any other Person shall constitute an Investment. Except as expressly
provided otherwise, for purposes of determining compliance with any covenant
contained in the Credit Documents, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
12
“Irrevocable
Instruction” shall mean an irrevocable instruction letter in the
form of Exhibit 1.1(j)
hereto duly executed by the applicable Credit Party, as amended, restated,
modified or supplemented from time to time.
“Johnston RI Pledged Mortgage
Asset” shall mean the Johnston RI Real Estate pledged to the
Administrative Agent on behalf of the Lenders under the Security
Documents.
“Johnston RI Real
Estate” shall mean all interests of Prefco in that certain Commercial
Real Estate located in Johnston, Providence County, Rhode Island and more
specifically described in the Prefco Mortgage.
“Joinder Agreement”
shall mean a Borrower Joinder Agreement and/or a Guarantor Joinder Agreement, as
applicable, as each may be amended, restated, supplemented or modified from time
to time.
“Junior Interest”
shall mean (a) a senior, pari passu or junior
participation interest in one or more performing Commercial Real Estate Loans or
(b) a senior, pari
passu or junior note or certificate in an “A/B” or similar structure in
one or more performing Commercial Real Estate Loans (including without
limitation, an A Note, an A-1 Note and a B Note), in
each case where the Underlying Mortgaged Property is stabilized and
non-transitional.
“Junior Interest
Document” shall mean the original executed promissory note, Participation
Certificate, Participation Agreement and any other evidence of a Junior
Interest, as applicable.
“Kroger Pledged Mortgage
Asset” shall mean the Kroger Portfolio pledged to the Administrative
Agent on behalf of the Lenders under the Security Documents.
“Legacy Mortgage
Asset” means any Mortgage Asset initially financed under this Agreement
prior to the Restatement Date.
“Lender” shall have
the meaning set forth in the first paragraph of this Agreement and shall include
the Revolving Lenders.
“Lender Commitment
Letter” shall mean, with respect to any Lender, the letter (or other
correspondence) to such Lender from the Administrative Agent notifying such
Lender of its Revolving Commitment Percentage and its portion of the Commitment
Fee.
“Lender Consent” shall
mean any lender consent delivered by a Lender on the Restatement Date in the
form of Exhibit 4.1(a).
“Letter of Credit”
shall mean, with respect to any Letter of Credit Loan, a freely transferable,
irrevocable and unconditional standby letter of credit (in form and content and
having durations and credit quality acceptable to Administrative Agent in its
discretion) issued by a bank that has a credit rating at least as high as the
credit tenant being financed, but in no event less than BBB-/Baa3 by
S&P/Xxxxx’x.
“Letter of Credit
Loan” shall mean a performing Construction Loan which is entirely owned
by a Borrower and for which the indebtedness thereunder is also secured by a
Letter of Credit, which loan includes, without limitation, (i) a Mortgage Note
and related Mortgage, (ii) a Letter of Credit supporting payments under such
loan, and (iii) all right, title and interest of a Borrower in and to the
Mortgaged Property covered by such Mortgage.
“LIBOR” shall mean,
for any LIBOR Rate Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBORO1 Page (or any successor page) as the London interbank offered rate
for deposits in Dollars at approximately 11:00 A.M. (London time)
two (2) Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period. If for any reason such rate is
not available, then “LIBOR” shall mean the rate per annum at which, as
determined by the Administrative Agent in accordance with its customary
practices, Dollars in an amount comparable to the Loans then requested are being
offered to leading banks at approximately 11:00 A.M. London time,
two (2) Business Days prior to the commencement of the applicable Interest
Period for settlement in immediately available funds by leading banks in the
London interbank market for a period equal to the Interest Period
selected.
“LIBOR Lending Office”
shall mean, initially, the office(s) of each Lender designated as such Lender’s
LIBOR Lending Office in such Lender’s Administrative Questionnaire; and
thereafter, such other office of such Lender as such Lender may from time to
time specify to the Administrative Agent and the Borrowers as the office of such
Lender at which the LIBOR Rate Loans of such Lender are to be made.
“LIBOR Rate” shall
mean a LIBOR rate per annum (rounded upwards, if necessary, to the next higher
1/100th of 1%) determined by the Administrative Agent in accordance with the
definition of “LIBOR”.
“LIBOR Rate Loan”
shall mean Loans the rate of interest applicable to which is based on the LIBOR
Rate.
“Lien” shall mean any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement and any Capital Lease having substantially the same
economic effect as any of the foregoing).
“Liquidity” shall mean
an amount equal to the (a) sum of (without duplication) (i) the amount
of unrestricted cash and unrestricted Cash Equivalents plus (ii) the
borrowing availability (if any) under the Revolving Commitments under this
Agreement, less,
(b) amounts necessary to satisfy prepayment obligations under this
Agreement.
“Loan” shall mean a
Revolving Loan.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
13
“Loan–to–Value Ratio”
or “LTV” shall
mean with respect to any Mortgage Asset (other than any CMBS Security and the
Johnston RI Pledged Mortgage Asset), as of any date of determination, the ratio
of the outstanding principal amount of such Mortgage Asset to the market value
of the related Underlying Mortgaged Property at such time, as determined by the
Administrative Agent in its discretion, as such LTV may be adjusted by the
Administrative Agent as the Administrative Agent determines in its discretion;
provided, however, that all
such calculations shall be made taking into account any senior or pari passu debt or other
obligations including debt or other obligations secured directly or indirectly
by the applicable Underlying Mortgaged Property.
“LTC” shall mean, with
respect to any Mortgage Asset that is a Construction Loan, as of any date of
determination, the ratio of the outstanding principal amount of such Mortgage
Asset to the Construction Costs for such Mortgage Asset, as determined by the
Administrative Agent in its discretion, as such LTC may be adjusted by the
Administrative Agent as the Administrative Agent determines in its discretion;
provided, however, that all
such calculations shall be made taking into account any senior or pari passu debt or other
obligations including debt or other secured directly or indirectly by the
applicable Underlying Mortgaged Property.
“Mandatory Redeemable
Stock” shall mean, with respect to any Person and any Subsidiary thereof,
any Equity Interests of such Person which by the terms of such Equity Interests
(or by the terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise
(a) matures or is required to be redeemed, pursuant to a sinking fund
obligation or otherwise (other than an Equity Interest to the extent redeemable
in exchange for common stock or other equivalent common Equity Interests),
(b) is convertible into or exchangeable or exercisable for Indebtedness or
Mandatory Redeemable Stock, or (c) is redeemable at the option of the
holder thereof, in whole or in part (other than an Equity Interest which is
redeemable solely in exchange for common stock or other equivalent common Equity
Interests); in the case of each clause (a) through (c), on or prior to the
Maturity Date.
“Market Value” shall
mean, as of any date of determination in respect of any Mortgage Asset, the
price at which such Mortgage Asset could readily be sold, as determined by
the Administrative Agent in its discretion based on such sources and
information (if any) as the Administrative Agent may determine to rely on
in its discretion (which value may be determined to be zero (0)), as such Market
Value may be adjusted at any time by the Administrative Agent as the
Administrative Agent determines in its discretion (subject to the last
sentence of the definition of Asset Value).
“Material Adverse
Effect” shall mean, any material adverse effect on or change in or to
(a) the Properties, assets, business, operations, financial condition,
credit quality or prospects of any Borrower or any Guarantor, taken as a whole,
(b) the ability of any Borrower, any Guarantor or any other Credit Party to
perform its obligations under any of the Credit Documents or any of the Mortgage
Loan Documents to which it is a party, (c) the validity, enforceability,
legality or binding effect of any of the Credit Documents or any Loan granted
thereunder, (d) the rights and remedies of the Administrative Agent or any
Lender under any of the Credit Documents or the Collateral, (e) the timely
payment of any amounts payable under the Credit Documents or the Mortgage Loan
Documents, or (f) any Collateral, the perfection or priority of any
Collateral granted with respect to any Loan or the value, Asset Value, rating or
liquidity of any Collateral.
“Material Contract”
shall mean (a) any contract or other agreement listed in Form 8-K filed with the
SEC, (b) any contract or other agreement, written or oral, of the Credit
Parties or any of their Subsidiaries involving monetary liability of or to any
such Person in an amount in excess of $1,000,000 per annum, (c) any
contract or other agreement, written or oral, of the Credit Parties or any of
their Subsidiaries representing at least $1,000,000 of the total
Consolidated revenues of the Credit Parties and their Subsidiaries for any
fiscal year and (d) any other contract, agreement, permit or license,
written or oral, of the Credit Parties or any of their Subsidiaries as to which
the breach, nonperformance, cancellation or failure to renew by any party
thereto, individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
“Materials of Environmental
Concern” shall mean any gasoline or petroleum (including crude oil or any
extraction thereof) or petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or under any Environmental
Law, including, without limitation, asbestos, perchlorate, polychlorinated
biphenyls and urea-formaldehyde insulation.
“Maturity Date” shall
mean the date that is three (3) years following the Restatement
Date.
“Maximum Applicable Advance
Rate” shall have the meaning set forth in the Fee Letter, which
definition is incorporated herein by reference.
“Maximum LTC” shall
mean with respect to any Legacy Mortgage Asset that is a Construction Loan, the
Maximum LTC determined by the Administrative Agent in its discretion and set
forth in the related Confirmation and, with respect to any New Mortgage Asset,
the amount set forth in the Fee Letter; provided, however, that all
such calculations shall be made taking into account any senior or pari passu debt or other
obligations, including debt or other obligations secured directly or indirectly
by the applicable Underlying Mortgaged Property.
“Maximum LTV” shall
mean, with respect to any Legacy Mortgage Asset (other than any CMBS Security
and the Johnston RI Pledged Mortgage Asset), at any time, the Maximum LTV for
the related Underlying Mortgaged Property determined by the Administrative Agent
in its discretion and set forth in the related Confirmation and, with respect to
any New Mortgage Asset, the amount set forth in the Fee Letter; provided, however, that all
such calculations shall be made taking into account any senior or pari passu debt or other
obligations, including debt or other obligations secured directly or indirectly
by the applicable Underlying Mortgaged Property.
“Mezzanine Loan” shall
mean a performing mezzanine loan secured by pledges of all (or, in the
Administrative Agent’s discretion, less than all) the Equity Interest of the
Person that owns, directly or indirectly, income producing Underlying Mortgaged
Property that is stabilized and non-transitional.
“Mezzanine Note” shall
mean the original executed promissory note or other evidence of Mezzanine Loan
Indebtedness.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
14
“Minimum DSCR” shall
mean with respect to any Mortgage Asset (other than any CMBS Security and the
Johnston RI Pledged Mortgage Asset), at any time, the Minimum DSCR determined by
the Administrative Agent in its discretion and set forth in the related
Confirmation; provided, however, that all
such calculations shall be made taking into account any senior or pari passu debt or other
obligations, including debt or other obligations secured directly or indirectly
by the applicable Underlying Mortgaged Property.
“Moody’s” shall mean
Xxxxx’x Investors Service, Inc.
“Mortgage” shall mean
each mortgage, assignment of rents, security agreement and fixture filing, or
deed of trust, assignment of rents, security agreement and fixture filing, or
similar instrument creating and evidencing a Lien on real property, fixtures and
other Property and rights incidental thereto.
“Mortgage Asset” shall
mean a Whole Loan, a Junior Interest, a Mezzanine Loan or a CMBS Security, in
each case, the Underlying Mortgaged Property for which is included in the
categories for Property Types of Mortgage Assets; provided, however, the portion
of any Mortgage Asset to be pledged to the Administrative Agent shall not
include any Retained Interest (if any); provided, further, however, a New
Mortgage Asset shall only be a Whole Loan. Notwithstanding the foregoing,
Johnston RI Real Estate is deemed a Mortgage Asset.
“Mortgage Asset Data
Summary” shall have the meaning set forth in Section
5.2(h).
“Mortgage Asset File”
shall have the meaning set forth in the Custodial Agreement.
“Mortgage Asset File
Checklist” shall have the meaning set forth in the Custodial
Agreement.
“Mortgage Asset Security
Agreement” shall mean, with respect to any Mortgage Asset, any contract,
instrument or other document related to security for repayment thereof (other
than the related Mortgage, Mortgage Note, Mezzanine Note or any other note,
certificate or instrument) executed by an Obligor and/or others in connection
with such Mortgage Asset, including, without limitation, any security agreement,
UCC financing statement, Liens, warranties, guaranty, title insurance policy,
hazard insurance policy, chattel mortgage, letter of credit, accounts, bank
accounts or certificates of deposit or other pledged accounts, and any other
documents and records relating to any of the foregoing.
“Mortgage Loan
Documents” shall have the meaning set forth in the Custodial
Agreement.
“Mortgage Note” shall
mean, that certain original executed promissory note or other evidence of the
Indebtedness of an Obligor under a Whole Loan which is secured by a Mortgage on
the related Underlying Mortgaged Property.
“Mortgaged Property”
shall mean the Commercial Real Estate (including all improvements, buildings,
fixtures, building equipment and personal property thereon and all additions,
alterations and replacements made at any time with respect to the foregoing and
any Credit Tenant Lease to which such real property is subject) and all other
collateral securing repayment of the related debt evidenced by the Mortgage Loan
Documents.
“Mortgagee” shall mean
the record holder of a Mortgage Note secured by a Mortgage.
“Multiemployer Plan”
shall mean a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
“Net Cash Flow” shall
mean, with respect to any Underlying Mortgaged Property, for any period, (i) if
the Underlying Mortgaged Property is subject to a Credit Tenant Lease, the net
rents paid during such period under the related Credit Tenant Lease and (ii) if
the Underlying Mortgaged Property is not subject to a Credit Tenant Lease, the net income (or
deficit) attributable to such Underlying Mortgaged Property for such period,
determined in accordance with GAAP, less the amount of
all (a) capital expenditures incurred, (b) reserves established,
(c) leasing commissions paid and (d) tenant improvements paid during
such period, in each case attributable to such Property, plus all non–cash
charges deducted in the calculation of such net income.
“Net Cash Proceeds”
shall mean the aggregate cash proceeds, Cash Equivalents and the Fair Market
Value of all other Property and assets received by, or payable to, any Credit
Party or any Subsidiary or Affiliate in respect of any sale or other disposition
of any Collateral, net of (a) direct costs (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) associated
therewith, and (b) taxes paid or payable as a result thereof; it being
understood that “Net Cash Proceeds” shall include, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration
received by any Credit Party, any Subsidiary or any Affiliate in any sale or
other disposition of any Collateral.
“Net Income” shall
mean, with respect to any Person and its Consolidated Subsidiaries for any
period, the net income of such Person and its Consolidated Subsidiaries
determined on a consolidated basis for such period as determined in accordance
with GAAP.
“New Mortgage Asset”
means any Mortgage Asset that becomes a Pledged Mortgage Asset on or after the
Restatement Date.
“Non-Recourse
Indebtedness” shall mean, with respect to any Person, Indebtedness for
borrowed money in respect of which recourse for payment (except for customary
exceptions for fraud, misapplication of funds, environmental indemnities, and
other similar exceptions to non-recourse provisions (including exceptions
relating to bankruptcy, insolvency, receivership, non-approved transfers or
other customary or similar events)) is contractually limited to specific assets
of such Person encumbered by a Lien securing such Indebtedness.
“Non–Table Funded Mortgage
Asset” shall mean a Mortgage Asset that is not a Table Funded Mortgage
Asset.
“Non–Xxxxx Fargo
Assets” shall mean any Mortgage Asset issued, extended or originated by a
Person other than Xxxxx Fargo Corporation or an Affiliate of Xxxxx Fargo
Corporation.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
15
“Note” or “Notes” shall mean the
Revolving Notes, separately or individually, as appropriate, as any shall be
amended, restated, modified or supplemented from time to time.
“Notice of Borrowing”
shall mean a request for a Revolving Loan borrowing pursuant to Section 2.1(b)(i),
as amended, restated, modified or supplemented from time to time. A Form
of Notice of Borrowing is attached as Exhibit 1.1(e).
“Notice of Conversion”
shall mean the written notice of conversion of a LIBOR Rate Loan to an Alternate
Base Rate Loan or an Alternate Base Rate Loan to a LIBOR Rate Loan,
substantially in the form of Exhibit 1.1(f).
“Obligations” shall
mean, without duplication, all of the obligations, indebtedness and liabilities
of the Credit Parties to the Lenders and the Administrative Agent, whenever
arising, under the Loans, this Agreement, the Notes, any of the other Credit
Documents and all of the Credit Party-Related Obligations,
including principal, interest, fees, reimbursements and indemnification
obligations and other amounts (including, but not limited to, any interest
accruing after the occurrence of a filing of a petition of bankruptcy under the
Bankruptcy Code with respect to any Credit Party, regardless of whether such
interest is an allowed claim under the Bankruptcy Code).
“Obligor” shall mean,
individually and collectively, as the context may expressly provide or require,
the borrowers, mortgagors, obligors or debtors under a Mortgage Asset,
including, but not limited to, any guarantor, any pledgor, any subordinator, any
credit support party, any indemnitor, any tenant under a lease and any Person
that is directly or indirectly obligated in respect thereof, the borrowers,
mortgagors, obligors or debtors of any debt, including any guarantor, any
pledgor, any subordinator, any credit support party, any indemnitor, any tenant
under a lease and any Person that is directly or indirectly obligated in respect
thereof, senior to the Mortgage Asset, including any of the foregoing such
Persons with respect to the debt secured by any Underlying Mortgaged Property,
and any Person that has not signed the related Mortgage Note, Junior Interest
Documents, Mezzanine Note or other note, certificate or instrument but owns an
interest in the related Underlying Mortgaged Property, which interest has been
encumbered to secure such Mortgage Asset. For the purposes of the Johnston
RI Pledged Mortgage Asset, Obligor shall include any tenant of the related
Underlying Mortgaged Property and Prefco in its capacity as lessee under the
related ground lease.
“Obligor Reserve
Payments” shall mean any payments made by an Obligor under the applicable
Mortgage Loan Documents which, pursuant to the terms of such Mortgage Loan
Documents, are required to be deposited into escrow or into a reserve to be used
for a specific purpose (e.g., tax and insurance escrows).
“OFAC” shall mean The
Office of Foreign Assets Control of the U.S. Department of the
Treasury.
“Off–Balance Sheet
Assets” shall mean, with respect to any Person, any asset that is subject
to an off–balance sheet financing, and as a result of such transaction such
asset does not (and is not required pursuant to GAAP) to appear as an asset on
the balance sheet of such Person.
“Off–Balance Sheet
Liabilities” shall mean, with respect to any Person, any
(a) repurchase obligation or liability, contingent or otherwise, of such
Person with respect to any mortgages, mortgage notes, accounts or notes
receivable sold, transferred or otherwise disposed of by such Person,
(b) repurchase obligation or liability, contingent or otherwise, of such
Person with respect to Property or assets leased by such Person as lessee and
(c) obligations, contingent or otherwise, of such Person under any
Off–Balance Sheet Transaction, in each case, if the transaction giving rise to
such obligation (i) is considered Indebtedness for borrowed money for tax
purposes, and (ii) does not (and is not required pursuant to GAAP) to
appear as a liability on the balance sheet of such Person.
“Off-Balance Sheet
Obligations” shall mean, with respect to any Person and its Consolidated
Subsidiaries, as of any date of determination thereof, without duplication and
to the extent not included as a liability on the consolidated balance sheet of
such Person and its Consolidated Subsidiaries in accordance with
GAAP: (a) the monetary obligations under any financing lease or
so-called “synthetic”, tax retention or off-balance sheet lease transaction
which, upon the application of any Insolvency Laws to such Person or any of its
Consolidated Subsidiaries, would be characterized as indebtedness; (b) the
monetary obligations under any sale and leaseback transaction which does not
create a liability on the consolidated balance sheet of such Person and its
Consolidated Subsidiaries; or (c) any other monetary obligation arising
with respect to any other transaction which (i) is characterized as
indebtedness for tax purposes but not for accounting purposes in accordance with
GAAP or (ii) is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance
sheet of such Person and its Consolidated Subsidiaries (for purposes of this
clause (c), any transaction structured to provide tax deductibility as
interest expense of any dividend, coupon or other periodic payment will be
deemed to be the functional equivalent of a borrowing).
“Off–Balance Sheet
Transaction” shall mean, with respect to any Person, any synthetic lease,
tax retention operating lease, commercial mortgage backed securities
transaction, securitization transaction, collateralized debt obligation
transaction, off balance sheet loan or similar off balance sheet
financing.
“Officer’s
Certificate” shall mean, a certificate signed by a Responsible Officer of
a Borrower or a Guarantor, as applicable.
“Omaha Pledged Mortgage
Asset” shall mean the Landmark Building pledged to the Administrative
Agent on behalf of the Lenders under the Security Documents.
“Opinion of Counsel”
shall mean, a written opinion of counsel, which opinion and counsel are
acceptable to the Administrative Agent in its discretion.
“Original Agreement”
shall have the meaning set forth in the Recitals hereto.
“Originator” shall
mean, with respect to each Mortgage Asset, the Person who originated such
Mortgage Asset.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
16
“Other Taxes” shall
mean all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made
hereunder or under any other Credit Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Credit
Document.
“Participant” has the
meaning assigned to such term in Section
10.6(d).
“Participation
Agreement” shall mean, with respect to any Junior Interest, any executed
participation agreement, sub–participation agreement, intercreditor, servicing,
loan or administrative agreement or any agreement that is similar to any of the
foregoing agreements under which the Junior Interest is created, evidenced,
issued, serviced, administered and/or guaranteed.
“Participation
Certificate” shall mean, with respect to any Junior Interest, an executed
certificate, note, instrument or other document representing the interest,
participation interest or sub–participation interest granted under a
Participation Agreement.
“Patriot Act” shall
mean The Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub.
L. No. 107-56 (signed into law October 26, 2001)), as amended,
restated modified or supplemented from time to time.
“Paying Borrower”
shall have the meaning set forth in Section
10.29(b).
“Payment Date” shall
mean (a) the 20th day of each calendar month; provided, however, if such day
is not a Business Day (i) if the next Business Day occurs during the succeeding
month, the previous Business Day and (ii) if the next Business Day does not
occur during the succeeding month, the next succeeding Business Day and (b) as
to any Loan which is the subject of a mandatory prepayment required pursuant to
Section 2.5(b),
the date on which such mandatory prepayment is due.
“PBGC” shall mean the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title IV of ERISA.
“Permitted
Investments” shall mean:
(a) cash
and Cash Equivalents;
(b) Investments
existing as of the Closing Date as referenced in the financial statements
referenced in Section
3.1 (and as set forth more specifically on Schedule 1.1(a));
(c) Derivatives
Contracts to the extent permitted hereunder; and
(d) acquisition
or financing of real estate or real estate-related assets after the
Closing Date.
“Permitted Liens”
shall mean any of the following as to which no enforcement, collection,
execution, levy or foreclosure proceeding shall have been
commenced: (a) Liens for state, municipal or other local Taxes
if such Taxes shall not at the time be due and payable, (b) Liens imposed
by Requirements of Law, such as materialmen’s, mechanics’, carriers’, workmen’s
and repairmen’s Liens and other similar Liens, arising in the ordinary course of
business securing obligations that are not overdue for a period of more than
thirty (30) days, (c) Liens granted pursuant to or by the Security
Documents, and (d) in the case of the Mortgage Assets only and not any
Borrower’s interest therein, with respect to any Underlying Mortgaged Property,
Liens which are permitted pursuant to the terms of the Mortgage Loan
Documents.
“Person” shall mean
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
“Plan” shall mean, as
of any date of determination, any employee benefit plan which is covered by
Title IV of ERISA and in respect of which any Credit Party or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.
“Pledge Agreement”
shall mean the Pledge and Security Agreement, dated as of the Closing Date,
between the Administrative Agent, the Pledgor and the other parties from time to
time party thereto, and any other Pledge and Security Agreement entered into
after the date hereof between the Administrative Agent, a Pledgor and the other
parties from time to time party thereto, as each such amendment is amended,
modified, waived, supplemented, extended, restated or replaced from time to
time.
“Pledged Collateral”
shall have the meaning given to such term in the Pledge Agreements.
“Pledged Mortgage
Asset” shall mean the Mortgage Assets that have been pledged to the
Administrative Agent as Collateral under the Security Documents.
“Pledgor” shall mean
Caplease Inc. and CLF OP General Partner LLC, a Delaware limited liability
company, in each case together with their successors and permitted
assigns.
“Pooling and Servicing
Agreements” shall mean any and all pooling and servicing agreements
governing servicing and other matters entered into in connection with (a) a CMBS
Security or (b) a securitization of one (1) or more interests that are senior,
junior or pari passu
with a Mortgage Asset.
“Prefco” shall have
the meaning set forth in the first paragraph of this Agreement.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
17
“Prefco Mortgage”
shall mean the Open-End Leasehold and Fee Mortgage to Secure Present and Future
Loans Under Chapter 25 Of Title 34 Of Rhode Island General Laws, Security
Agreement and Fixture Filing, dated as of even date herewith, executed by Prefco
in favor of the Administrative Agent, as amended, modified, restated, replaced,
waived, substituted, supplemented or extended from time to time.
“Prefco Assignment of
Leases” shall mean the Assignment of Leases and Rents, dated as of even
date herewith, executed by Prefco in favor of the Administrative Agent, as
amended, modified, restated, replaced, waived, substituted, supplemented or
extended from time to time.
“Preferred Securities”
shall mean, with respect to any Person, Equity Interests in such Person that are
entitled to preference or priority over any other Equity Interests in such
Person in respect of the payment (or accrual) of dividends or distribution of
assets upon liquidation, or both.
“Prime Rate” shall
have the meaning set forth in the definition of Alternate Base
Rate.
“Private Information”
shall have the meaning set forth in Section
5.15.
“Property” shall mean
any right or interest in or to property of any kind whatsoever, whether real,
personal or mixed, and whether tangible or intangible; provided that the
term “Property” or “Properties” as used in Section 3.10 shall
include only the right or interest in or to property of any kind whatsoever,
whether real, personal or mixed, and whether tangible or intangible of any
Credit Party.
“Property Type” shall
mean, with respect to a Mortgage Asset, such Mortgaged Property’s classification
as one of the following: multifamily, retail, office, medical office,
industrial, warehouse, GSA, hotel, self–storage facility or such other
classification as may be approved by the Administrative Agent in its discretion
from time to time.
“PSA Servicer” shall
mean a third party servicer (other than a Borrower) servicing all or a portion
of the Collateral under a Pooling and Servicing Agreement.
“Public Information”
shall have the meaning set forth in Section
5.15.
“Purchase Agreement”
shall mean any purchase agreement by and between a Borrower and any third
party, including, without limitation, any Affiliate of a Borrower, pursuant
to which a Borrower has purchased Mortgage Assets which are
subsequently pledged to the Administrative Agent
hereunder.
“Rating Agencies”
shall mean each of S&P, Xxxxx’x, Fitch and any other nationally recognized
statistical rating agency that has been requested to issue a rating with respect
to the matter at issue, including successors of the foregoing.
“Reallocation” shall
have the meaning set forth in Section
2.18.
“Register” shall have
the meaning set forth in Section
10.6(c).
“REIT” shall mean a
“real estate investment trust” within the meaning of the Code.
“Related Parties”
shall mean, with respect to any Person, such Person’s Subsidiaries and
Affiliates and the partners, directors, officers, employees, agents and advisors of such
Person and of such Person’s Subsidiaries and Affiliates.
“Related Party Loan”
shall mean any loan, Indebtedness or preferred equity investment identified or
presented as a related party loan in such Person’s and its Consolidated
Subsidiaries’ consolidated financial statements or in the notes to the
consolidated financial statements, in accordance with GAAP; provided, however, Related
Party Loan shall not include any loan or preferred equity investment to
which the Administrative Agent in its discretion has consented in writing to its
exclusion from the definition of Related Party Loan.
“Release” shall mean
any generation, treatment, use, storage, transportation, manufacture,
refinement, handling, production, removal, remediation, disposal, presence or
migration of Materials of Environmental Concern on, about, under or within all
or any portion of any Property or Underlying Mortgaged Property.
“Release Amount” shall
mean with respect to any Additional Collateral, the release amount for such item
of Additional Collateral as set forth in Schedule 1 to the Fee
Letter.
“Remedial Work” shall
mean any investigation, inspection, site monitoring, containment, clean–up,
removal, response, corrective action, mitigation, restoration or other remedial
work of any kind or nature because of, or in connection with, the current or
future presence, suspected presence, Release or threatened Release in or about
the air, soil, ground water, surface water or soil vapor at, on, about, under or
within all or any portion of any Property or Underlying Mortgaged Property of
any Materials of Environmental Concern, including any action to comply with any
applicable Environmental Laws or directives of any Governmental Authority with
regard to any Environmental Laws.
“REMIC” shall mean a
real estate mortgage investment conduit.
“REO Property” shall
mean real property acquired by the Borrowers, including a Mortgaged Property,
acquired through foreclosure of a Mortgage Asset or by deed in lieu of such
foreclosure.
“Reorganization” shall
mean, with respect to any Multiemployer Plan, the condition that such Plan is in
reorganization within the meaning of such term as used in Section 4241 of
ERISA.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
18
“Reportable Event”
shall mean any of the events set forth in Section 4043(c) of ERISA, other than
those events as to which the thirty-day notice period is waived under PBGC
Reg. §4043.
“Required Debt Yield
Percentage” shall have the meaning set forth in the Fee Letter, which
definition is incorporated herein by reference.
“Required Lenders”
shall mean, as of any date of determination, Lenders holding at least a majority
of (a) the outstanding Revolving Commitments or (b) if the Revolving
Commitments have been terminated, the outstanding Loans; provided, however, that if any
Lender shall be a Defaulting Lender at such time, then there shall be excluded
from the determination of Required Lenders the Obligations owing to such
Defaulting Lender and such Defaulting Lender’s Commitments.
“Required Payments”
shall mean all payments required under Section 2.5(b)(ii)
through (v) of
this Agreement or subject to or required to be subject to an Irrevocable
Instruction, which amounts shall be free of any deductions for or on account of
any set–off, counterclaim or defense and shall be deposited into the Collection
Account for application in accordance with the terms of this
Agreement.
“Requirement of Law”
shall mean, as to any Person, (a) the Authority Documents of such Person,
and (b) all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes, executive orders,
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority
(in each case whether or not having the force of law); in each case applicable
to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.
“Responsible Officer”
shall mean, for any Credit Party, any duly authorized officer thereof with
direct responsibility for the administration of the Credit Documents, and also,
with respect to any particular matter, any other duly authorized officer with
knowledge of or familiarity with the particular subject matter and, in each
case, the Administrative Agent has an incumbency certificate indicating such
officer is a duly authorized officer thereof.
“Restatement Date”
shall mean the date of this Agreement.
“Retained Interest”
shall mean (a) with respect to any Mortgage Asset with an unfunded
commitment on the part of a Borrower, all of the obligations, if any, to
provide additional funding, contributions, payments or credits with respect to
such Mortgage Asset, (b) all duties, obligations and liabilities of a
Borrower under any Mortgage Asset or any related Interest Rate Protection
Agreement, including but not limited to any payment or indemnity obligations and
(c) with respect to any Mortgage Asset that is pledged or to be
pledged to the Administrative Agent, (i) all of the obligations,
if any, of the agent(s), trustee(s), servicer(s), administrators or other
similar Persons under the documentation evidencing such Mortgage Asset and
(ii) the applicable portion of the interests, rights and obligations under
the documentation evidencing such Mortgage Asset that relate to such
portion(s) of the Indebtedness that is owned by another lender or is being
retained by a Borrower pursuant to clause (a) of this
definition.
“Revolving Prepayment”
shall have the meaning set forth in Section
2.5(b)(viii)(A).
“Revolving Commitment”
shall mean, with respect to each Revolving Lender, the commitment of such
Revolving Lender to make Revolving Loans in an aggregate principal amount at any
time outstanding up to an amount equal to such Revolving Lender’s Revolving
Commitment Percentage of the Revolving Committed Amount.
“Revolving Commitment
Percentage” shall mean, for each Lender, the percentage identified as its
Revolving Commitment Percentage in its Lender Commitment Letter or in the
Assignment and Assumption pursuant to which such Lender became a Lender
hereunder, as such percentage may be modified in connection with any assignment
made in accordance with the provisions of Section
10.6(b).
“Revolving Committed
Amount” shall have the meaning set forth in Section 2.1(a).
“Revolving Lender”
shall mean, as of any date of determination, a Lender holding a Revolving
Commitment or a Revolving Loan on such date.
“Revolving Loan” shall
have the meaning set forth in Section 2.1(a).
“Revolving Loan Average
Advance Rate” shall mean a fraction, the numerator of which is the
outstanding principal amount of all Revolving Loans, and the denominator of
which is the Asset Value of all Revolving Loan Collateral (without taking into
account any Applicable Advance Rates), as such Asset Values are determined by
the Administrative Agent in accordance with the definition of Asset
Value.
“Revolving Loan
Collateral” shall mean the portion of the Pledged Mortgage Assets
included in the Collateral with respect to which Revolving Loans (if any) are
calculated and determined.
“Revolving Note” or
“Revolving
Notes” shall mean the promissory notes of the Borrowers provided pursuant
to Section 2.1(f)
in favor of any of the Revolving Lenders evidencing the Revolving Loans provided
by any such Revolving Lender pursuant to Section 2.1(a),
individually or collectively, as appropriate, as such promissory notes may be
amended, modified, extended, restated, replaced, or supplemented from time to
time.
“S&P” shall mean
Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies,
Inc.
“Sale” shall have the
meaning set forth in Section
5.7(j).
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
19
“Sanctioned Entity”
shall mean (a) a country or a government of a country, (b) an agency
of the government of a country, (c) an organization directly or indirectly
controlled by a country or its government, or (d) a person or entity
resident in or determined to be resident in a country, that is subject to a
country sanctions program administered and enforced by OFAC described or
referenced at xxxx://xxx.xxxxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/
or as otherwise published from time to time.
“Sanctioned Person”
shall mean a person named on the list of Specially Designated Nationals
maintained by OFAC available at or through xxxx://xxx.xxxxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/
or as otherwise published from time to time.
“Xxxxxxxx-Xxxxx” shall
mean the Xxxxxxxx-Xxxxx Act of 2002, as amended or modified from time to
time.
“SEC” shall mean the
Securities and Exchange Commission or any successor Governmental
Authority.
“Secured Parties”
shall mean the Administrative Agent and the Lenders.
“Securities Act” shall
mean the Securities Act of 1933, together with any amendment thereto or
replacement thereof and any rules or regulations promulgated
thereunder.
“Securities Account”
shall mean the securities account set forth on Schedule 1.1(d)
established in the name of the Borrowers into which all CMBS Securities that are
Pledged Mortgage Assets and other Collateral related thereto shall be deposited
(except those CMBS Securities that are certificated securities within the
meaning of Article 8 of the UCC), which Securities Account shall be subject
to the Securities Account Control Agreement. Any Income on deposit or
credited to the Securities Account shall be transferred by the Administrative
Agent from the Securities Account to the Collection Account on or prior to each
Payment Date.
“Securities Account Control
Agreement” shall mean a letter agreement, dated as of the Closing Date,
among the Borrowers, the Administrative Agent and Xxxxx Fargo in the form of
Exhibit 1.1(m)
attached hereto.
“Securities Laws”
shall mean the Securities Act, the Exchange Act, Xxxxxxxx-Xxxxx and the
applicable accounting and auditing principles, rules, standards and practices
promulgated, approved or incorporated by the SEC or the Public Company
Accounting Oversight Board, as each of the foregoing may be amended and in
effect on any applicable date hereunder.
“Securitization” shall
have the meaning set forth in Section
2.5(b)(iv).
“Security Agreement”
shall mean the Security Agreement, dated as of the Closing Date, executed by the
Borrowers in favor of the Administrative Agent, for the benefit of the Secured
Parties, as amended, modified, extended, restated, replaced, or supplemented
from time to time in accordance with its terms.
“Security Documents”
shall mean the Security Agreement, the Account Control Agreement, the Securities
Account Control Agreement, the Custodial Agreement, all Assignments, all
Irrevocable Instructions, the Pledge Agreements, the Prefco Mortgage, the Prefco
Assignment of Leases and all other agreements, documents and instruments
relating to, arising out of, or in any way connected with any of the foregoing
documents or granting to the Administrative Agent Liens or security interests to
secure, inter alia, the Obligations, whether now or hereafter executed and/or
filed, executed and delivered in connection with the granting, attachment and
perfection of the Administrative Agent’s security interests and Liens arising
thereunder, including, without limitation, UCC financing statements, as such
agreements or instruments are amended, restated, modified or supplemented from
time to time.
“Servicer” shall mean
a Person (other than a Borrower) servicing all or a portion of a Mortgage Asset
under a Servicing Agreement, which Servicer shall be acceptable to the
Administrative Agent in its reasonable discretion.
“Servicer Account”
shall mean any account established by a Servicer or a PSA Servicer in connection
with the servicing of the Mortgage Asset.
“Servicer Default”
shall have the meaning set forth in Section
9.12.
“Servicer Redirection
Notice” shall mean a notice from a Borrower to a Servicer, substantially
in the form of Exhibit
1.1(k) attached hereto, duly executed by the parties
thereto.
“Services” shall have
the meaning set forth in the first paragraph of this Agreement.
“Servicing Agreement”
shall mean an agreement entered into by the applicable Borrower and a third
party for the servicing of a Mortgage Asset, the form and substance of which has
been approved in writing by the Administrative Agent in its reasonable
discretion.
“Servicing Fee” shall
have the meaning set forth in Section
9.9.
“Servicing File” shall
mean, with respect to each Mortgage Asset, the file retained by a Borrower
consisting of the originals of all documents in the Mortgage Asset File that are
not delivered to the Custodian and copies of all documents in the Mortgage Asset
File set forth in Section 3.1 of the Custodial
Agreement.
“Servicing Records”
shall have the meaning set forth in Section
9.2.
“Single Employer Plan”
shall mean any Plan that is not a Multiemployer Plan.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
20
“SPE Subsidiary” shall
mean a Subsidiary of Caplease or Caplease Inc. formed under a Direct CTL
Transaction that involves a Whole Loan, which Subsidiary shall have such
corporate and capital structure, and have Authority Documents having such terms
and restrictions, as shall be consistent with bankruptcy-remote “special-purpose entities”,
satisfying Section
5.24 and otherwise reasonably satisfactory to the Administrative
Agent.
“Solvent” shall mean,
as to any Person at any time, having a state of affairs such that all of the
following conditions are met: (a) the fair value of the Property of such
Person is greater than the amount of such Person’s liabilities (including
disputed, contingent and unliquidated liabilities) as such value is established
and liabilities evaluated for purposes of Section 101(32) of the Bankruptcy
Code; (b) the present fair salable value of the Property of such Person in
an orderly liquidation of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured; (c) such Person is able to realize upon its
Property and pay its debts and other liabilities (including disputed, contingent
and unliquidated liabilities) as they mature in the normal course of business;
(d) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay as such debts and
liabilities mature;
and (e) such Person is not engaged in a
business or a transaction, and is not about to engage in a business or a
transaction, for which such Person’s Property would constitute unreasonably
small capital.
“Stock Exchange” shall
have the meaning set forth in Section
3.38.
“Sub–Limit” shall
mean, with respect to the characteristics of the Revolving Loan
Collateral:
(a) the
aggregate Allocated Revolving Loan Amount for all outstanding Revolving Loans
involving Mortgage Assets the Obligor of which is a single named credit or
tenant concentration shall not exceed 50% of the Revolving Committed
Amount;
(b) the
aggregate Allocated Revolving Loan Amount for all outstanding Revolving Loans
involving Mezzanine Loans and B Notes shall not collectively exceed 50% of the
Revolving Committed Amount;
(c) the
aggregate Allocated Revolving Loan Amount for all outstanding Revolving Loans
involving Mortgage Assets having maturity dates that are less than five (5)
years from the date such Mortgage Asset is pledged to the Administrative Agent
under the Credit Documents shall not exceed 15% of the Revolving Committed
Amount; and
(d) the
aggregate Allocated Revolving Loan Amount for all outstanding Revolving Loans
involving Construction Loans or Floaters shall not collectively exceed 5% of the
Revolving Committed Amount.
“Subsidiary” shall
mean, as to any Person, a corporation, partnership, limited liability company or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, limited
liability company, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of any Credit
Party.
“Table Funded Mortgage
Asset” shall mean a Mortgage Asset which is pledged to the Administrative
Agent simultaneously with the origination or acquisition thereof, which
origination or acquisition, pursuant to a Borrower’s request, is financed with
the proceeds of a Revolving Loan and paid directly to a title company or other
settlement agent, in each case, approved in writing by the Administrative Agent
in its discretion, for disbursement to the parties entitled thereto in
connection with such origination or acquisition. A Mortgage Asset shall
cease to be a Table Funded Mortgage Asset after the Custodian has delivered a
Trust Receipt (along with a completed Mortgage Asset File Checklist attached
thereto) to the Administrative Agent certifying its receipt of the Mortgage
Asset File therefor.
“Table Funded Trust
Receipt” shall mean a Trust Receipt in the form of Annex 2–B to the
Custodial Agreement.
“Targeted Revolving Loan
Average Advance Rate” shall have the meaning set forth in the Fee Letter,
which definition is incorporated herein by reference.
“Taxes” shall mean all
present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority,
including any interest, additions to tax or penalties applicable
thereto.
“Test Period” shall
mean the immediately preceding calendar quarter.
“Total Assets” shall
mean total assets of the Borrowers and its Consolidated Subsidiaries, determined
in accordance with GAAP, plus accumulated depreciation and amortization on real
estate investments.
“Total Liabilities”
shall mean, all Indebtedness and Contingent Liabilities of any Person (without
duplication) and all Subsidiaries thereof determined on a consolidated basis in
accordance with GAAP.
“Tranche” shall mean
the collective reference to (a) LIBOR Rate Loans whose Interest Periods
begin and end on the same day and (b) Alternate Base Rate Loans made on the
same day.
“Transactions” shall
mean the closing of this Agreement, the other Credit Documents and the other
transactions contemplated hereby to occur in connection with such closing
(including, without limitation, the initial borrowings under the Credit
Documents and the payment of fees and expenses in connection with all of the
foregoing).
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
21
“Transfer Effective
Date” shall have the meaning set forth in each Assignment and
Assumption.
“Transferor” shall
mean the seller of mortgage assets under a Purchase Agreement.
“True Sale
Opinion” shall mean an Opinion of Counsel to the Borrowers
opining that the subject transaction constitutes a “true sale”.
“Trust Receipt” shall
have the meaning set forth in the Custodial Agreement.
“Type” shall mean, as
to any Loan, its nature as an Alternate Base Rate Loan or LIBOR Rate Loan, as
the case may be.
“UCC” shall mean the
Uniform Commercial Code from time to time in effect in any applicable
jurisdiction.
“Unconsolidated
Affiliates” shall mean, with respect to any Person, any other Person in
whom such Person holds an Investment, which Investment is accounted for in the
financial statements of such Person on an equity basis of accounting and whose
financial results would not be consolidated under GAAP with the financial
results of such Person on the consolidated financial statements of such
Person.
“Underlying Mortgaged
Property” shall mean (a) in the case of a Whole Loan, the
Mortgaged Property securing the Whole Loan, (b) in the case of a Junior
Interest, the Mortgaged Property securing such Junior Interest (if the Junior
Interest is of the type described in clause (b) of the definition thereof),
or the Mortgaged Property securing the mortgage loan in which such Junior
Interest represents a participation (if the Junior Interest is of the type
described in clause (a) of the definition thereof), (c) in the case of
a Mezzanine Loan or a Junior Interest in a Mezzanine Loan, the Mortgaged
Property that is owned directly or indirectly by the Person the Equity Interests
of which are pledged as collateral security for such Mezzanine Loan, (d) in
the case of a Construction Loan, the Mortgaged Property securing such
Construction Loan, (e) in the case of a CMBS Security, the Mortgaged Property or
other collateral securing the mortgage loans or debt obligations related to such
security, (f) in the case of a Letter of Credit Loan, the Mortgaged Property
securing such Letter of Credit Loan and (g) in the case of the Xxxxxxxx RI
Pledged Mortgage Asset, the Johnston RI Real Estate.
“Underwriting Package”
shall mean, any internal document prepared by the applicable Borrower for its
evaluation of a Mortgage Asset, to include at a minimum the data required in the
relevant Confirmation. In addition, with respect to each Mortgage Asset
(other than a CMBS Security), the Underwriting Package shall include, to the
extent applicable, (a) a copy of the Current Appraisal or, if unavailable, any
other recent appraisal, (b) the lease of the current tenant, (c) the current
rent roll, (d) a minimum of two (2) years of property level financial
statements to the extent available, (e) the current financial statements of the
Obligor under the Mortgage Asset, and, if such Mortgage Asset is not a Whole
Loan, the Obligor under the Commercial Real Estate Loan to the extent provided
to or reasonably available to the applicable Borrower upon request, (f) current
financial statement and credit information regarding the lessee of the property
for any credit tenant, (g) current form of the estoppel certificate to be
obtained from the credit tenant, (h) the complete Mortgage Asset File, (i) the
loan documents, Authority Documents and title commitment/policy to be included
in the Mortgage Asset File, together with copies of any appraisals,
environmental reports, studies or assessments (to include, at a minimum, a phase
I report), evidence of zoning compliance, property management agreements,
assignments of property management agreements, contracts, licenses and permits,
in each case to the extent in the Borrower’s possession or reasonably available
to the Borrower, (j) any financial analysis, site inspection, market studies,
environmental reports and any other diligence conducted by or provided to the
Borrower, (k) a copy of the most recent property tax xxxx, (l) a copy of the
property insurance certificates, showing the Administrative Agent as loss payee,
(m) a copy of the Obligor’s tax returns, (n) a resume of the
principals/developer, (o) copies of UCC, bankruptcy, lien and judgment searches
on the Obligor and its principal, (p) a copy of the contract of sale for the
underlying property if the Mortgage Asset is an acquisition financing, (q) a
copy of the property management agreement, if applicable, (r) a copy of
Borrower’s offset memorandum, (s) a copy of the operating and capital
improvements budget if the Credit Tenant Lease is not a “triple net” lease, (t)
copies of credit or other reports obtained regarding the Obligor and/or its
principals, (u) for any Letter of Credit Loan, copies of the form of the
applicable Letter of Credit and financial and rating information as to the
issuer of such Letter of Credit, (v) a detailed cash flow analysis of any Credit
Tenant Lease and/or the Mortgage Asset, (w) with respect to Construction Loans,
the Construction Draw Deliveries for each Extension of Credit and (x) such
further documents or information as the Administrative Agent may reasonably
request. With respect to any CMBS Security, the Underwriting Package shall
consist of, to the extent applicable, (i) the related prospectus or
offering circular, (ii) all structural and collateral term sheets and all
other computational or other similar materials provided to the applicable
Borrower in connection with its acquisition of such CMBS Security,
(iii) all distribution date statements issued in respect thereof during the
immediately preceding twelve (12) months (or, if less, since the date such
CMBS Security was issued), (iv) all monthly reporting packages issued in
respect of such CMBS Security during the immediately preceding twelve (12)
months (or, if less, since the date such CMBS Security was issued), (v) all
Rating Agency pre–sale reports, (vi) all asset summaries and any other due
diligence materials, including, without limitation, reports prepared by third
parties, provided to the Borrower in connection with its acquisition of such
CMBS Security, and (vii) such further documents or information as the
Administrative Agent may reasonably request.
“Voting Interests”
shall mean, with respect to any Person, Equity Interests issued by such Person
the holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar functions)
of such Person, even though the right so to vote has been suspended by the
happening of such a contingency.
“Xxxxx Fargo Assets”
shall mean, any Mortgage Asset issued, extended or originated by Xxxxx Fargo
Corporation or an Affiliate of Xxxxx Fargo Corporation.
“Warehouse Lender’s Release
Letter” shall mean a letter in the form of Exhibit 1.1(l)
hereto, duly executed by the applicable warehouse lender.
“Xxxxx Fargo” shall
mean Xxxxx Fargo Bank, National Association (as successor-by-merger to Wachovia
Bank, National Association), a national banking association, together with its
successors and/or assigns.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
22
“Whole Loan” shall
mean a performing Commercial Real Estate whole loan owned entirely by the
Borrower and secured by a first priority security interest in all of the related
Underlying Mortgaged Property, which is stabilized and non-transitional, which
includes, without limitation, a Mortgage Note and related Mortgage and all
rights, title and interest of a Borrower in and to the Mortgaged Property
covered by such Mortgage. For the avoidance of doubt, but subject to the
definitions thereof, Floaters, Construction Loans, Direct CTL Transactions and
Letter of Credit Loans are also Whole Loans.
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,
(e) any reference to any law or regulation herein shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented
from time to time and (f) the word “asset” shall be construed to have the
same meaning and effect as Property.
Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent with the most recent audited
Consolidated financial statements of the Borrowers delivered to the Lenders;
provided that,
if the Borrowers shall notify the Administrative Agent that they wish to amend
any definitions or covenant incorporated in Section 5.9 to
eliminate the effect of any change in GAAP on the operation of any such
definition or provision (or if the Administrative Agent notifies the Borrowers
that the Required Lenders wish to amend any such definition or provision for
such purpose), then the Borrowers’ compliance with such provisions shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such
definition or provision is amended in a manner satisfactory to the Borrowers,
the Administrative Agent and the Required Lenders.
The
Borrowers shall deliver to the Administrative Agent and each Lender at the same
time as the delivery of any annual or quarterly financial statements given in
accordance with the provisions of Section 5.1,
(a) a description in reasonable detail of any material change in the
application of accounting principles employed in the preparation of such
financial statements from those applied in the most recently preceding quarterly
or annual financial statements as to which no objection shall have been made in
accordance with the provisions above and (b) a reasonable estimate of the
effect on the financial statements on account of such changes in
application.
Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable). Reference to day or
days without further qualification means calendar days. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but
excluding”.
Unless
otherwise specified, all Credit Documents and all other certificates executed in
connection therewith must be signed by a Responsible Officer. Unless
otherwise expressly provided in this Agreement, reference to any notice,
request, approval, consent or determination provided for, permitted or required
under the terms of the Credit Documents with respect to the Credit Parties,
the Administrative Agent and the Lenders means, in order for such notice,
request, approval, consent or determination to be effective hereunder, such
notice, request, approval or consent must be in writing.
All terms
used in Articles 8 and 9 of the UCC in the State of New York, and used but
not specifically defined herein, are used herein as defined in such
Article 8 and 9.
Reference
herein or in any Credit Document to the Administrative Agent’s
or a Lender’s discretion shall mean, unless otherwise stated herein or
therein, the Administrative Agent’s or a Lender’s (as the case may be) sole
and absolute discretion, and the exercise of such discretion shall be final and
conclusive. In addition, whenever the Administrative Agent or a
Lender has a decision or right of determination or request, exercises any right
given to it to agree, disagree, accept, consent, grant waivers, take action or
no action or to approve or disapprove, or any arrangement or term is to be
satisfactory or acceptable to or approved by (or any similar language or terms)
the Administrative Agent or a Lender (as the case may be), the decision of
the Administrative Agent or a Lender with respect thereto shall be in the
sole and absolute discretion of the Administrative Agent or the Lender (as
the case may be), and such decision shall be final and conclusive, except as may
be otherwise specifically provided herein.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
23
Unless
otherwise specifically provided herein, all payments due by any Credit Party to
the Administrative Agent or the Lenders shall be due by 3:00p.m. on the date
due.
ARTICLE
II
(1) The
Borrowers may request Revolving Loans for the purpose of financing Eligible
Assets approved by the Administrative Agent in its discretion and for no other
purpose. The Borrowers shall request a Revolving Loan borrowing by
delivering a written Notice of Borrowing (or telephone notice promptly confirmed
in writing by delivery of a written Notice of Borrowing, which delivery may be
by Electronic Transmission) to the Administrative Agent along with a Compliance
Certificate, Borrower Asset Schedule and Underwriting Package for the related
Eligible Asset(s) to be financed not later than (A) twelve (12) Business Days for
Non-Xxxxx Fargo Assets and (B) seven (7) Business Days for Xxxxx Fargo Assets
from the delivery of the applicable Notice of Borrowing. Each such Notice
of Borrowing shall be irrevocable and shall specify (A) that a Revolving
Loan is requested, (B) the date of the requested borrowing (which shall be
a Business Day), (C) the aggregate principal amount to be borrowed,
(D) whether the borrowing shall be comprised of Alternate Base Rate Loans,
LIBOR Rate Loans or a combination thereof, and if LIBOR Rate Loans are
requested, the Interest Period(s) therefor, (E) the applicable Borrower and the
Eligible Asset to be financed and (F) a calculation of the Availability.
If the Borrowers shall fail to specify in any such Notice of Borrowing
(1) an applicable Interest Period in the case of a LIBOR Rate Loan, then
such notice shall be deemed to be a request for an Interest Period of one month,
or (2) the Type of Revolving Loan requested, then such notice shall be
deemed to be a request for a LIBOR Rate Loan hereunder.
(2) The
Administrative Agent shall notify the applicable Borrower in writing of the
Administrative Agent’s tentative approval (and the proposed Allocated Revolving
Loan Amount for each Eligible Asset) or final disapproval of each proposed
Eligible Asset within, (i) in the case of Non–Xxxxx Fargo Assets,
ten (10) Business Days (or such greater time as the Administrative Agent
determines in its discretion for multiple assets or assets with multiple
Mortgaged Properties) and, (ii) in the case of Xxxxx Fargo Assets,
five (5) Business Days (or such greater time as the Administrative Agent
determines in its discretion for multiple assets or assets with multiple
Mortgaged Properties) after its receipt of the Notice of Borrowing, the Borrower
Asset Schedule, the Compliance Certificate, the complete Underwriting Package
and any supplemental requests (requested orally or in writing) relating to such
proposed Eligible Asset. Unless the Administrative Agent notifies the
Borrowers in writing of the Administrative Agent’s approval of such proposed
Eligible Asset within the applicable period, the Administrative Agent shall be
deemed not to have approved such proposed Eligible Asset. The
Administrative Agent in its discretion may waive, shorten or increase any of the
applicable time periods for the review of proposed Eligible Assets or the
delivery of documents.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
24
(3) Provided
that the Administrative Agent on behalf of the Lenders has tentatively agreed to
finance the Eligible Asset described in the Notice of Borrowing and the proposed
Allocated Revolving Loan Amount is acceptable to the applicable Borrower, the
applicable Borrower shall forward to the Administrative Agent, via Electronic
Transmission, at least two (2) Business Days prior to the requested
Borrowing Date (which must be received by the Administrative Agent no later than
10:00 a.m. two (2) Business Days prior to the requested Borrowing
Date) an executed confirmation for each Eligible Asset, substantially in the
form of Exhibit 2.1(b)
attached hereto (a “Confirmation”).
The Confirmation shall specify the Allocated Revolving Loan Amount for the
related Eligible Asset and any additional terms or conditions of the related
Revolving Loan not inconsistent with this Agreement. The Confirmation
shall be irrevocable. The delivery of the Confirmation to the
Administrative Agent shall be deemed to be a certification by the applicable
Borrower that, among other things, all conditions precedent to such Revolving
Loan set forth in Articles II and IV have been satisfied (except the
Administrative Agent’s consent). Unless otherwise agreed in writing, upon
receipt of the Confirmation, the Administrative Agent, on behalf of the Lenders,
may, in the Administrative Agent’s discretion, agree to enter into the requested
Revolving Loan with respect to an Eligible Asset, and such agreement shall be
evidenced by the Administrative Agent’s signature on the Confirmation. Any
Confirmation executed by the Administrative Agent shall be deemed to have been
received by the applicable Borrower on the date actually received by the
applicable Borrower.
(4) Upon
receipt of the Confirmation executed by the Administrative Agent, (i) the
applicable Borrower shall release or cause to be released to the Custodian in
accordance with the Custodial Agreement (1) in the case of a Non–Table
Funded Mortgage Asset, no later than 3:00 p.m. two (2) Business Days
prior to the requested Borrowing Date, and (2) in the case of a Table
Funded Mortgage Asset, no later than 1:00 p.m. three (3) Business Days
following the applicable Borrowing Date, the Mortgage Asset File pertaining to
each Eligible Asset to be financed by the Revolving Lenders, and (ii) the
applicable Borrower shall deliver to the Custodian, in connection with the
applicable delivery under clause (i) above, a Custodial Identification
Certificate and a Mortgage Asset File Checklist required under Section 3.2 of
the Custodial Agreement.
(5) Each
Confirmation, together with this Agreement, shall constitute conclusive evidence
of the terms agreed between the Administrative Agent and the applicable Borrower
with respect to the Revolving Loan to which the Confirmation relates, and the
applicable Borrower’s acceptance of the related proceeds shall constitute the
applicable Borrower’s agreement to the terms of such Confirmation. It is
the intention of the parties that each Confirmation shall not be separate from
this Agreement but shall be made a part of this Agreement. To the extent
of a conflict between this Agreement and the related Confirmation, the
Confirmation shall control.
(6) Pursuant
to the Custodial Agreement, the Custodian shall deliver to the Administrative
Agent and the applicable Borrower by 11:00 a.m. on the Borrowing Date for
each Non–Table Funded Mortgage Asset a Trust Receipt (along with a completed
Mortgage Asset File Checklist attached thereto) and an Asset Schedule and
Exception Report relating to the Basic Mortgage Asset Documents with respect to
the Eligible Assets that the applicable Borrower has requested the Revolving
Lenders to finance on such Borrowing Date. With respect to each Table
Funded Mortgage Asset, the applicable Borrower shall cause the Bailee to deliver
to the Custodian with a copy to the Administrative Agent no later than
10:00 a.m. on the Borrowing Date by facsimile the related Basic Mortgage
Asset Documents, the insured closing letter (if any), the escrow instructions
(if any), a fully executed Bailee Agreement, a Bailee’s Trust Receipt issued by
the Bailee thereunder and such other evidence satisfactory to the Administrative
Agent in its discretion that all documents necessary to effect a pledge of the
related Eligible Asset and the related Collateral to the Administrative Agent on
behalf of the Lenders have been delivered to Bailee. With respect to each
Table Funded Mortgage Asset, the Custodian shall deliver to the Administrative
Agent a Table Funded Trust Receipt no later than 1:00 p.m. on the Borrowing
Date, which documents shall be acceptable to the Administrative Agent in its
discretion. In the case of a Table Funded Mortgage Asset, on the
second (2nd) Business Day following the Custodian’s receipt of the related
Mortgage Loan Documents comprising the Mortgage Asset File, the Custodian shall
deliver to the Administrative Agent a Trust Receipt (along with a completed
Mortgage Asset File Checklist attached thereto) certifying its receipt of the
documents required to be delivered pursuant to the Custodial Agreement, together
with an Asset Schedule and Exception Report relating to the Basic Mortgage Asset
Documents, with any Exceptions identified by the Custodian as of the date and
time of delivery of such Asset Schedule and Exception Report. The
Custodian shall deliver to the Administrative Agent an Asset Schedule and
Exception Report relating to all of the Mortgage Loan Documents within
five (5) Business Days of its receipt of the related Mortgage Asset
Files.
(7) Once
the Confirmation is executed by the Administrative Agent, the Administrative
Agent shall give notice to each Revolving Lender at least one (1) Business Day
prior to the Borrowing Date of each such Revolving
Lender’s share thereof.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
25
Interest
on Revolving Loans shall be payable in arrears on each Payment
Date.
(f) [Reserved].
Section 2.2 [Reserved].
The Borrowers shall pay all fees
provided for in the Fee Letter to the Administrative Agent for distribution to
the Lenders and the Administrative Agent in accordance therewith.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
26
(ii) [Reserved].
(iii) [Reserved].
(iv) [Reserved].
(v) [Reserved].
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
27
(1) Unless
otherwise set forth in this Section 2.5, all
amounts required to be paid pursuant to this Section 2.5(b) shall
be applied to the outstanding Revolving Loans and Revolving Loan Collateral in
such manner as the Administrative Agent may elect in its discretion until the
outstanding principal amount of the Revolving Loans has been paid in
full. Within the parameters of the applications set forth above,
prepayments shall be applied first to Alternate Base Rate Loans and then to
LIBOR Rate Loans in direct order of Interest Period maturities. All
prepayments under this Section shall be subject to Section 2.13 and
be accompanied by interest on the principal amount prepaid through the date of
prepayment, but otherwise without premium or penalty; and
(2) All
amounts required to be paid pursuant to this Section 2.5(b) shall
be deposited in the Collection Account and shall be accompanied by any
applicable costs incurred pursuant to Section 2.13 (if any)
and any applicable interest payments.
(c) Junior/Senior
Positions. Notwithstanding anything contained in this
Agreement to the contrary, in the event the Borrowers pledge to the
Administrative Agent (whether simultaneously or on separate occasions) the
senior and junior positions with respect to certain Commercial Real Estate and
the Loans with respect to the Eligible Asset(s) that are senior in priority have
been repaid or prepaid by the Borrowers or the related Obligors, (i) the Asset
Value of the junior–most Eligible Asset(s) shall be reduced to zero (0) and
(ii) the Administrative Agent shall not release its Lien on the Eligible
Asset(s) (including any Income related thereto) that are senior in priority to
the junior–most Eligible Asset(s) that the Administrative Agent continues to
have a Lien on (regardless of whether the outstanding Allocated Revolving Loan
Amount or Release Amount, as applicable, and related amounts due have been paid
in full) until the junior–most Eligible Asset(s) is repaid or prepaid and the
outstanding Allocated Revolving Loan Amount or Release Amount, as applicable,
for the junior-most Eligible Asset plus any accrued and unpaid interest and any
related breakage costs under Section 2.3 are paid
in full; provided, however, if (A) the
Loans with respect to the senior position are repaid due to repayments or
prepayments by the related Obligor, (B) the Administrative Agent has
reevaluated the remaining junior–most Eligible Asset(s), including, without
limitation, a reassessment and possible redetermination of the Asset Value of
such Eligible Asset, and, based on the reevaluation, the Administrative Agent is
satisfied in its discretion with continuing to hold the junior–most Eligible
Asset(s) as Collateral as is or upon certain specified conditions, including,
without limitation, assigning a new Asset Value to such Eligible Asset, which
approval shall be in writing to be effective, and (C) there are no Events
of Default or Defaults outstanding (each to be evidenced by an Officer’s
Certificate), then the Administrative Agent will consent in writing to and
effect the release of the senior Eligible Asset from the
Collateral.
(a) If
all or a portion of the principal amount of any Loan which is a LIBOR Rate Loan
shall not be paid when due or continued as a LIBOR Rate Loan in accordance with
the provisions of Section 2.7
(whether at the stated maturity, by acceleration or otherwise), such overdue
principal amount of such Loan shall be converted to an Alternate Base Rate Loan
at the end of the Interest Period applicable thereto.
(b) (i) If
all or a portion of the principal amount of any LIBOR Rate Loan shall not be
paid when due, such overdue amount shall bear interest at a rate per annum which
is equal to the rate that would otherwise be applicable thereto plus 2%, until the
end of the Interest Period applicable thereto, and thereafter at a rate per
annum which is equal to the Alternate Base Rate plus the sum of the
Applicable Percentage then in effect for Alternate Base Rate Loans and 2% (the
“ABR Default
Rate”) or (ii) if any interest payable on the principal amount of
any Loan or any fee or other amount, including the principal amount of any
Alternate Base Rate Loan, payable hereunder shall not be paid when due (whether
at the stated maturity, by acceleration or otherwise), such overdue amount shall
bear interest at a rate per annum which is equal to the ABR Default Rate, in
each case from the date of such non-payment until such amount is paid in full
(after as well as before judgment). Upon the occurrence, and during
the continuance, of any other Event of Default hereunder, at the option of the
Required Lenders, the principal of and, to the extent permitted by Requirements
of Law, interest on the Loans and any other amounts owing hereunder or under the
other Credit Documents shall bear interest, payable on demand, at a per annum
rate which is (A) in the case of principal, the rate that would otherwise
be applicable thereto plus 2% or
(B) in the case of interest, fees or other amounts, the ABR Default Rate
(after as well as before judgment).
(c) Interest
on each Loan shall be payable in arrears on each Payment Date; provided that
interest accruing pursuant to paragraph (b) of this Section shall be payable
from time to time on demand.
(a) The
Borrowers may elect from time to time to convert Alternate Base Rate Loans to
LIBOR Rate Loans by delivering a Notice of Conversion to the Administrative
Agent at least three Business Days prior to the proposed date of
conversion. In addition, the Borrowers may elect from time to time to
convert all or any portion of a LIBOR Rate Loan to an Alternate Base Rate Loan
by giving the Administrative Agent irrevocable written notice thereof by
11:00 a.m. one (1) Business Day prior to the proposed date of
conversion. If the date upon which an Alternate Base Rate Loan is to
be converted to a LIBOR Rate Loan is not a Business Day, then such conversion
shall be made on the next succeeding Business Day and during the period from
such last day of an Interest Period to such succeeding Business Day such Loan
shall bear interest as if it were an Alternate Base Rate Loan. LIBOR
Rate Loans may only be converted to Alternate Base Rate Loans on the last day of
the applicable Interest Period. If the date upon which a LIBOR Rate
Loan is to be converted to an Alternate Base Rate Loan is not a Business Day,
then such conversion shall be made on the next succeeding Business Day and
during the period from such last day of an Interest Period to such succeeding
Business Day such Loan shall bear interest as if it were an Alternate Base Rate
Loan. All or any part of outstanding Alternate Base Rate Loans may be
converted as provided herein; provided that
(i) no Loan may be converted into a LIBOR Rate Loan when any Default or
Event of Default has occurred and is continuing and (ii) partial
conversions shall be in an aggregate principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof. All or any part of
outstanding LIBOR Rate Loans may be converted as provided herein; provided that partial
conversions shall be in an aggregate principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
28
(b) Any
LIBOR Rate Loan may be continued as such upon the expiration of an Interest
Period with respect thereto unless and until a Notice of Conversion is received
by the Administrative Agent or the LIBOR Rate Loan is automatically converted as
provided below. No LIBOR Rate Loan may be continued as such when any
Default or Event of Default has occurred and is continuing, in which case such
Loan shall be automatically converted to an Alternate Base Rate Loan at the end
of the applicable Interest Period with respect thereto and the Borrower may not
convert to LIBOR Rate Loans when any Default or Event of Default has occurred
and is continuing. If the continuation of LIBOR Rate Loans is not
permitted hereunder, such LIBOR Rate Loans shall automatically be converted to
Alternate Base Rate Loans at the end of the applicable Interest Period with
respect thereto.
(a) Interest
payable hereunder with respect to any Alternate Base Rate Loan based on the
Prime Rate shall be calculated on the basis of a year of 365 days (or 366 days,
as applicable) for the actual days elapsed. All other fees, interest
and all other amounts payable hereunder shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrowers and the Lenders of each
determination of a LIBOR Rate on the Business Day of the determination
thereof. Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate shall become effective as of the opening of
business on the day on which such change in the Alternate Base Rate shall become
effective. The Administrative Agent shall as soon as practicable
notify the Borrowers and the Lenders of the effective date and the amount of
each such change.
(b) Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrowers and
the Lenders in the absence of manifest error. The Administrative
Agent shall, at the request of the Borrowers, deliver to the Borrowers a
statement showing the computations used by the Administrative Agent in
determining any interest rate.
(c) It
is the intent of the Lenders and the Credit Parties to conform to and contract
in strict compliance with applicable usury law from time to time in
effect. All agreements between the Lenders and the Credit Parties are
hereby limited by the provisions of this subsection which shall override and
control all such agreements, whether now existing or hereafter arising and
whether written or oral. In no way, nor in any event or contingency
(including, but not limited to, prepayment or acceleration of the maturity of
any Obligation), shall the interest taken, reserved, contracted for, charged, or
received under this Agreement, under the Notes or otherwise, exceed the maximum
nonusurious amount permissible under Requirements of Law. If, from
any possible construction of any of the Credit Documents or any other document,
interest would otherwise be payable in excess of the maximum nonusurious amount,
any such construction shall be subject to the provisions of this paragraph and
such interest shall be automatically reduced to the maximum nonusurious amount
permitted under Requirements of Law, without the necessity of execution of any
amendment or new document. If any Lender shall ever receive anything
of value which is characterized as interest on the Loans under Requirements of
Law and which would, apart from this provision, be in excess of the maximum
nonusurious amount, an amount equal to the amount which would have been
excessive interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest, or
refunded to the Borrowers or the other payor thereof if and to the extent such
amount which would have been excessive exceeds such unpaid principal amount of
the Loans. The right to demand payment of the Loans or any other
Indebtedness evidenced by any of the Credit Documents does not include the right
to receive any interest which has not otherwise accrued on the date of such
demand, and the Lenders do not intend to charge or receive any unearned interest
in the event of such demand. All interest paid or agreed to be paid
to the Lenders with respect to the Loans shall, to the extent permitted by
Requirements of Law, be amortized, prorated, allocated, and spread throughout
the full stated term (including any renewal or extension) of the Loans so that
the amount of interest on account of such Indebtedness does not exceed the
maximum nonusurious amount permitted by Requirements of Law.
(i) Each borrowing of Revolving Loans
and any reduction of the Revolving Commitments shall be made pro rata according
to the respective Revolving Commitment Percentages of the Revolving
Lenders. Each payment on account of any fees pursuant to Section 2.3
shall be made pro rata in accordance with the respective amounts due and
owing. Each payment (other than prepayments) by the Borrowers on
account of principal of and interest on the Revolving Loans shall be applied to
such Loans on a pro rata basis in accordance with the terms of Section 2.5
hereof. Each optional prepayment on account of principal of the Loans
shall be applied in accordance with Section 2.5(a). Each
mandatory prepayment on account of principal of the Loans shall be applied in
accordance with Section 2.5(b). Unless
this Agreement otherwise expressly provides for or requires a different manner
for application of payments, all payments are shared pari passu and pro rata
(based on the amounts of such Loans) between Revolving Loans. All payments
(including prepayments) to be made by the Borrowers on account of principal,
interest and fees shall be made without defense, set-off or counterclaim and
shall be made to the Administrative Agent for the account of the Lenders at the
Administrative Agent’s office specified on Section 10.2 in
Dollars and in immediately available funds not later than 1:00 p.m. on the
date when due. The Administrative Agent shall distribute such
payments to the Lenders entitled thereto promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the LIBOR
Rate Loans) becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day, and, with respect
to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension. If any payment on a LIBOR Rate
Loan becomes due and payable on a day other than a Business Day, such payment
date shall be extended to the next succeeding Business Day unless the result of
such extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding Business
Day.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
29
(ii) The
Administrative Agent as agent for the Secured Parties shall be entitled to
receive an amount equal to all Income paid or distributed on or in respect of
the Collateral, which amount shall be deposited by the Borrowers, the Credit
Parties and any Servicer or PSA Servicer under a Pooling and Servicing Agreement
into the Collection Account. The Borrowers hereby agree to instruct
each applicable Servicer to transfer within two (2) Business Days of
receipt thereof, and each applicable PSA Servicer under a Pooling and Servicing
Agreement to deposit within two (2) Business Days of the date on which such
Person is obligated under the applicable Pooling and Servicing Agreement to
disburse such funds, all Income with respect to the Collateral directly into the
Collection Account. On each Payment Date, any Cash
Collateral and any amounts on deposit in the Collection Account shall
be withdrawn by the Administrative Agent and shall be applied as
follows:
FIRST, pari passu and pro rata
(based on the amounts owed to such Persons under this clause) to the payment of
all fees, expenses, and other obligations then due to the Administrative Agent
and the Lenders pursuant to this Agreement and/or the Fee Letter, other than the
interest and principal on the Loans;
SECOND, to the extent not
paid by the Borrowers, to the payment of fees and expenses owed to the Custodian
under the Custodial Agreement or Custodial Fee Letter;
THIRD, pari passu and pro rata
(based on the amounts owed to such Persons under this clause) to the Lenders for
the payment of accrued and unpaid interest on the Loans
outstanding;
FOURTH, without limiting the
Borrowers’ obligations to make mandatory prepayments under Section 2.5(b) in a
timely manner as provided in this Article II, pari passu and pro rata
(based on the amounts owed to such Persons under this clause) for the payment of
the amounts and Loans provided for in Section
2.5(b);
FIFTH, pari passu and pro rata
(based on the amounts owed to such Persons under this clause) to the extent any
Income or Cash Collateral includes payments or prepayments of principal on or
from any Collateral (including, without limitation, insurance or condemnation
proceeds or recoveries from any foreclosures not otherwise applied under Section 2.5(b) or
clause FOURTH above),
such payments shall be applied to reduce the Allocated Revolving Loan Amount for
the related Revolving Loan Collateral;
SIXTH, pari passu and pro rata
(based on the amounts owed to such Persons under this clause) to the extent not
previously paid pursuant to Article II, to the Lenders to pay any other
principal payments then due or required to be paid;
SEVENTH, pari passu and pro rata
(based on the amounts owed to such Persons under this clause) to the payment of
all other amounts then due and owing to the Administrative Agent, the Lenders or
any other Person pursuant to this Agreement and the other Credit Documents;
and
EIGHTH, to the Borrowers, for
such purposes as the Borrowers shall determine in their sole
discretion;
provided, however, that if a
Default or Event of Default has occurred and is continuing or a mandatory
prepayment under Section 2.5 is due
but the applicable time period for payment of such amount has not expired, such
amounts under clause “EIGHTH” shall not be transferred to the Borrowers but
shall remain in the Collection Account and applied (i) in the case of a
mandatory prepayment under Section 2.5, in
reduction of such mandatory prepayments when due and payable, with the balance
being remitted to the Borrowers and (ii) in the case of a Default or Event of
Default, in reduction of the Obligations in accordance with Section 2.9(b).
Notwithstanding
anything to the contrary contained herein, in the event any Obligor Reserve
Payments are
deposited into the Collection Account, such Obligor Reserve Payments shall, upon written
request of the Borrowers, be promptly transferred from the Collection Account to
the Borrowers for the Borrowers to transfer into the appropriate escrow or
reserve accounts.
In
carrying out the foregoing, amounts received shall be applied in the numerical
order provided until exhausted prior to application of the next succeeding
category.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
30
FIRST, to
the payment of all reasonable out-of-pocket costs and expenses (including
without limitation reasonable attorneys’ fees) of the Administrative Agent in
connection with enforcing the rights of the Lenders under the Credit Documents
and any protective advances made by the Administrative Agent with respect to the
Collateral under or pursuant to the terms of the Security
Documents;
SECOND,
to the payment of any fees owed to the Administrative Agent;
THIRD,
pari passu and pro rata
(based on the amounts owed to such Persons under this clause) to the payment of
all reasonable out-of-pocket costs and expenses (including without limitation,
reasonable attorneys’ fees) of each of the Lenders in connection with enforcing
its rights under the Credit Documents or otherwise with respect to the
Obligations owing to such Lender;
FOURTH
pari passu and pro rata
(based on the amounts owed to such Persons under this clause) to the payment of
all of the Obligations consisting of accrued fees and interest;
FIFTH
pari passu and pro rata
(based on the amounts owed to such Persons under this clause) to the payment of
the outstanding principal amount of the Obligations;
SIXTH,
pari passu and pro rata
(based on the amounts owed to such Persons under this clause) to all other
Obligations and other obligations which shall have become due and payable under
the Credit Documents or otherwise and not repaid pursuant to
clauses ”FIRST” through “FIFTH” above; and
SEVENTH,
pari passu and pro rata
(based on the amounts owed to such Persons under this clause) to the payment of
the surplus, if any, to whoever may be lawfully entitled to receive such
surplus.
In
carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the Lenders shall receive an amount
equal to its pro rata share (based on the proportion of the then outstanding
Loans held by such Lender) of amounts available to be applied pursuant to
clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above.
A notice
of the Administrative Agent to any Lender or the Borrowers with respect to any
amount owing under subsections (a) and (b) of this Section shall be
conclusive, absent manifest error.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
31
Notwithstanding
any other provision of this Agreement, if (a) the Administrative Agent
shall reasonably determine (which determination shall be conclusive and binding
absent manifest error) that, by reason of circumstances affecting the relevant
market, reasonable and adequate means do not exist for ascertaining the LIBOR
Rate for such Interest Period, or (b) the Required Lenders shall reasonably
determine (which determination shall be conclusive and binding absent manifest
error) that the LIBOR Rate does not adequately and fairly reflect the cost to
such Lenders of funding LIBOR Rate Loans that the Borrowers have requested be
outstanding as a LIBOR Tranche during such Interest Period, the Administrative
Agent shall forthwith give telephone notice of such determination, confirmed in
writing, to the Borrowers and the Lenders at least two (2) Business Days
prior to the first day of such Interest Period. Unless the Borrowers
shall have notified the Administrative Agent upon receipt of such telephone
notice that it wishes to rescind or modify its request regarding such LIBOR Rate
Loans, any Loans that were requested to be made as LIBOR Rate Loans shall be
made as Alternate Base Rate Loans and any Loans that were requested to be
converted into or continued as LIBOR Rate Loans shall remain as or be converted
into Alternate Base Rate Loans. Until any such notice has been
withdrawn by the Administrative Agent, no further Loans shall be made as,
continued as, or converted into, LIBOR Rate Loans for the Interest Periods so
affected.
(i) impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except any
reserve requirement reflected in the LIBOR Rate);
(ii) subject
any Lender to any tax of any kind whatsoever with respect to this Agreement or
any LIBOR Rate Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 2.14 and
the imposition of, or any change in the rate of, any Excluded Tax payable by
such Lender); or
(iii) impose
on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or LIBOR Rate Loans made by such
Lender;
and the
result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any LIBOR Rate Loan (or of maintaining its obligation to
make any such Loan), or to reduce the amount of any sum received or receivable
by such Lender hereunder (whether of principal, interest or any other amount),
then, upon request of such Lender, the Borrowers will pay to such Lender, such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered. Each Lender agrees to use
reasonable efforts (including reasonable efforts to change its LIBOR Lending
Office) to avoid or to minimize any amounts which may otherwise be payable
pursuant to this Section; provided, however, that such
efforts shall not cause the imposition on such Lender of any additional costs or
legal or regulatory burdens deemed by such Lender in its sole discretion to be
material
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
32
The
provisions of this Section shall survive the termination of this Agreement and
the payment in full of the Obligations.
(a) The
Credit Parties hereby agree to indemnify each Lender and to hold such Lender
harmless from any funding loss or expense which each Lender may sustain or incur
as a consequence of (a) the failure by the Borrowers to pay the principal
amount of or interest on any Loan by any Lender in accordance with the terms
hereof, (b) the failure by the Borrowers to accept a borrowing after the
Borrowers have given a notice in accordance with the terms hereof,
(c) default by the Borrowers in making any prepayment after the Borrowers
have given a notice in accordance with the terms hereof, and/or (d) the
making by the Borrowers of a prepayment of a Loan, or the conversion thereof, on
a day which is not the last day of the Interest Period with respect thereto, in
each case including, but not limited to, any such loss or expense arising from
interest or fees payable by any Lender to lenders of funds obtained by it in
order to maintain its Loans hereunder. A certificate setting forth in
reasonable detail as to any additional amounts payable pursuant to this Section
submitted by any Lender, through the Administrative Agent, to the Borrowers
shall be conclusive in the absence of manifest error. The agreements
in this Section shall survive termination of this Agreement and payment of the
Obligations.
(b) The
Borrowers shall pay to each Lender, as long as such Lender shall be required to
maintain reserves under Regulation D with respect to “Eurocurrency liabilities”
within the meaning of Regulation D, or under any similar or successor regulation
with respect to Eurocurrency liabilities or Eurocurrency funding, additional
interest on the unpaid principal amount of each LIBOR Loan equal to the actual
costs of such reserves allocated to such LIBOR Loan by such Lender (as
determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is
payable on such LIBOR Loan, provided the Borrowers shall have received at least
fifteen (15) days prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give
notice fifteen (15) days prior to the relevant Payment Date, such additional
interest shall be due and payable fifteen (15) days from receipt of such
notice.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
33
(i) duly
completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States of America is a
party,
(ii) duly
completed copies of Internal Revenue Service Form W-8ECI,
(iii) in
the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (i) a certificate to
the effect that such Foreign Lender is not (A) a “bank” within the meaning
of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of
any Borrower within the meaning of section 881(c)(3)(B) of the Code, or
(C) a “controlled foreign corporation” described in
section 881(c)(3)(C) of the Code and (ii) duly completed copies
of Internal Revenue Service Form W-8BEN, or
(iv) any
other form prescribed by Requirements of Law as a basis for claiming exemption
from or a reduction in United States Federal withholding tax duly completed
together with such supplementary documentation as may be prescribed by
Requirements of Law to permit the Credit Parties to determine the withholding or
deduction required to be made.
The
provisions of this Section shall survive the termination of this Agreement and
the payment in full of the Obligations.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
34
Notwithstanding
any other provision of this Credit Agreement, if any Change in Law shall make it
unlawful for such Lender or its LIBOR Lending Office to make or maintain LIBOR
Rate Loans as contemplated by this Credit Agreement or to obtain in the
interbank eurodollar market through its LIBOR Lending Office the funds with
which to make such Loans, (a) such Lender shall promptly notify the
Administrative Agent and the Borrowers thereof, (b) the commitment of such
Lender hereunder to make LIBOR Rate Loans or continue LIBOR Rate Loans as such
shall forthwith be suspended until the Administrative Agent shall give notice
that the condition or situation which gave rise to the suspension shall no
longer exist, and (c) such Lender’s Loans then outstanding as LIBOR Rate
Loans, if any, shall be converted on the last day of the Interest Period for
such Loans or within such earlier period as required by Requirements of Law as
Alternate Base Rate Loans. The Borrowers hereby agree to promptly pay
any Lender, upon its demand, any additional amounts necessary to compensate such
Lender for actual and direct costs (but not including anticipated profits)
reasonably incurred by such Lender in making any repayment in accordance with
this Section including, but not limited to, any interest or fees payable by
such Lender to lenders of funds obtained by it in order to make or maintain its
LIBOR Rate Loans hereunder. A certificate (which certificate shall
include a description of the basis for the computation) as to any additional
amounts payable pursuant to this Section submitted by such Lender, through
the Administrative Agent, to the Borrowers shall be conclusive in the absence of
manifest error. Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its LIBOR Lending Office) to avoid or to
minimize any amounts which may otherwise be payable pursuant to this Section;
provided, however, that such
efforts shall not cause the imposition on such Lender of any additional costs or
legal or regulatory burdens deemed by such Lender in its sole discretion to be
material.
Except as
set forth to the contrary in the Credit Documents, all sums payable by the
Credit Parties hereunder or under the Credit Documents shall be paid without
notice, demand, counterclaim, setoff, deduction or defense (as to any Person or
any reason whatsoever) and without abatement, suspension, deferment, diminution
or reduction (as to any Person or any reason whatsoever), and the obligations
and liabilities of each Credit Party hereunder shall in no way be released,
discharged or otherwise affected (except as expressly provided herein) by reason
of: (a) any damage to or destruction of or any taking of any
asset, any Property, any Collateral or any portion of the foregoing;
(b) any restriction or prevention of or interference with any use of any
asset, any Property, any Collateral or any portion of the foregoing;
(c) any title defect or encumbrance or any eviction from any Property, by
title paramount or otherwise; (d) any Insolvency Proceeding relating to any
Credit Party, any Affiliate or Subsidiary of the foregoing or any Obligor,
account debtor or indemnitor under the Collateral, or any action taken with
respect to this Agreement or any other Credit Document by any trustee or
receiver of any Credit Party, any Affiliate or Subsidiary of the foregoing or
any Obligor, account debtor or indemnitor under the Collateral, or by any court,
in any such proceeding; (e) any claim that any Credit Party has or might
have against the Administrative Agent, any Lender and/or any Indemnitee;
(f) any default or failure on the part of the Administrative Agent, any
Lender and/or any Indemnitee to perform or comply with any of the terms hereof,
the Credit Documents or of any other agreement with any Credit Party, any
Subsidiary or Affiliate of the foregoing and/or any other Person; (g) the
invalidity or unenforceability of any Collateral or Loan; (h) anything
related to or arising out of any Credit-Party-Related Obligation; or
(i) any other occurrence whatsoever, whether similar or dissimilar to the
foregoing, whether or not any Credit Party or any Affiliate or Subsidiary of the
foregoing shall have notice or knowledge of any of the foregoing.
The terms
and conditions governing the Administrative Agent’s release of its Lien on the
Additional Collateral is set forth in the Fee Letter, which terms and provisions
are hereby incorporated by reference.
In the
event of a Deficit in accordance with Section 2.5(b)(vi)
hereof, the Administrative Agent may, in its discretion, so long as no Default
or Event of Default has occurred and is continuing, attempt to reallocate such
Deficit (a “Reallocation”) by
increasing the Allocated Revolving Loan Amount for one or more other Pledged
Mortgage Assets not subject to the Deficit (such Pledged Mortgage Assets and the
amounts of such increases to be determined in the Administrative Agent’s
discretion) so long as (a) such Reallocations do not result in an Event of
Default or a Deficit with respect to any other Pledged Mortgage Asset as
determined by the Administrative Agent in its discretion and (b) as a result of
such Reallocations, (i) the Applicable Advance Rate shall not be exceeded for
any Pledged Mortgage Asset, (ii) no Pledged Mortgage Asset will have a LTV
greater than the Maximum LTV or a LTC greater than the Maximum LTC, and (iii)
each Pledged Mortgage Asset must have a Debt Yield at least equal to the
Required Debt Yield Percentage, in each case, as determined by the
Administrative Agent in its discretion. In connection with any such
Reallocation, the Borrowers shall execute new Confirmations promptly (but, in
any event, within one (1) Business Day) following request of the Administrative
Agent. The Borrowers understand and acknowledge that Reallocations
may not be possible or, if possible, may not fully eliminate the Deficit and
that the manner, method and all other factors relating to such Reallocation are
in the Administrative Agent’s discretion.
ARTICLE
III
To induce
the Lenders to enter into this Agreement and to make the Extensions of Credit
herein provided for, the Credit Parties hereby represent and warrant, as of the
date of this Agreement and on any date a Loan is made hereunder and at all times
while any Credit Document or any Loan is in full force and effect, to the
Administrative Agent and to each Lender that:
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
35
(a) The
audited consolidated balance sheet of the Guarantor, the Borrowers and the
Guarantor’s and the Borrowers’ Consolidated Subsidiaries as of December 31, 2009
provided to the Administrative Agent and the related consolidated statements of
income, of changes
in stockholders’ equity and of cash flows for the fiscal year ended December 31,
2009, copies of which have heretofore been furnished to the Administrative
Agent, are complete and correct and present fairly in all material respects the
consolidated financial condition of the Guarantor, the Borrowers and the
Guarantor’s and the Borrowers’ Consolidated Subsidiaries as at such date, and
the consolidated results of their operations and their consolidated cash flows
as of the date of such financial statements and other
information. All such financial statements, including the related
schedules and notes thereto (if any), have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as disclosed
therein). Except as disclosed in writing, neither the Guarantor, the
Borrowers nor any of the Guarantor’s or the Borrowers’ Consolidated Subsidiaries
had, at the date of the most recent balance sheet referred to above, any
material contingent liability or liability for taxes, or any long term lease or
unusual forward or long term commitment, including, without limitation, any
interest rate or foreign currency swap or exchange transaction or other
financial derivative, that is not reflected in the foregoing statements or in
the notes thereto. During the period from the date of the financial
statements and other financial information delivered to the Administrative
Agent, to and including the date hereof, there has been no sale, transfer or
other disposition by the Guarantor, the Borrowers or any of the Guarantor’s or
the Borrowers’ Consolidated Subsidiaries of any material part of their business
or Property and no purchase or other acquisition of any business or Property
(including any Equity Interests of any other Person) material in relation to the
consolidated financial condition of the Guarantor, the Borrower and the
Guarantor’s or the Borrowers’ Consolidated Subsidiaries on the date
hereof.
(b) The
operating forecast and cash flow projections of the Guarantor, the Borrowers and
the Guarantor’s and the Borrowers’ Consolidated Subsidiaries, copies of which
have heretofore been furnished to the Administrative Agent, have been prepared
in good faith under the direction of a Responsible Officer of the Guarantor and
the Borrowers. The Guarantor and the Borrowers have no reason to
believe that as of the date of delivery thereof such operating forecast and cash
flow projections are materially incorrect or misleading in any material respect
or omit to state any material fact which would render them misleading in any
material respect. The Guarantor and the Borrowers shall not be
required to provide information in its projections if the disclosure of such
information would violate any Requirement of Law relating to xxxxxxx
xxxxxxx.
Since December 31, 2007 (and,
in addition, after delivery of annual audited financial statements in accordance
with Section 5.1(a),
from the date of the most recently delivered annual audited financial
statements), (a) there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect and (b) no
Internal Control Event has occurred.
Each of
the Credit Parties (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, organization
or formation, (b) has the requisite power and authority and the legal right
to own, operate and pledge all its Property, to lease the Property it operates
as lessee and to conduct the business in which it is currently engaged and has
taken all actions necessary to maintain all rights, privileges, licenses and
franchises necessary or required in the normal conduct of its business,
(c) is duly qualified to conduct business and in good standing under the
laws of (i) the jurisdiction of its organization or formation and
(ii) each other jurisdiction where its ownership, lease or operation of
Property or the conduct of its business requires such qualification, in each
case, except for any failure to qualify that would not have a Material Adverse
Effect, (d) is in compliance with all Requirements of Law (including,
without limitation, all government permit and licensing requirements), Authority
Documents, government permits and government licenses and (e) is in material
compliance with all Contractual Obligations, Guarantee Obligations and
Indebtedness. The jurisdictions in which the Credit Parties are
organized and qualified to do business, and each Credit Party’s organizational
identification number and tax identification number, are described on Schedule 3.3. The
Borrowers shall update Schedule 3.3
from time to time, in accordance with Section 5.2, to
update information and to add Additional Credit Parties.
Each of
the Credit Parties has full power and authority and the legal right to make,
deliver and perform the Credit Documents to which it is party and has taken all
necessary limited liability company, partnership or corporate action to
authorize the execution, delivery and performance by it of the Credit Documents
to which it is party. Each Credit Document to which it is a party has
been duly executed and delivered on behalf of each Credit Party. Each
Credit Document to which it is a party constitutes a legal, valid and binding
obligation of each Credit Party, enforceable against such Credit Party in
accordance with its terms, except as enforceability may be limited by applicable
Insolvency Laws and by general equitable principles (whether enforcement is
sought by proceedings in equity or at law).
The
execution, delivery and performance by each Credit Party of the Credit Documents
to which such Credit Party is a party, the borrowing of Loans hereunder, the
pledge of Collateral under the Credit Documents and the use of the proceeds of
the Loans (a) will not violate any Requirement of Law, (b) will not
conflict with, result in a breach of or constitute a default under the Authority
Documents of the Credit Parties or any Contractual Obligation, Indebtedness or
Guarantee Obligations of any Credit Party (except those as to which waivers or
consents were obtained) or any material approval or material consent from any
Governmental Authority relating to such Credit Party, and (c) will not
result in, or require, the creation or imposition of any Lien on any Credit
Party’s Properties or revenues pursuant to any Requirement of Law, Contractual
Obligations, Indebtedness or Guarantee Obligations other than the Permitted
Liens. No Credit Party is in default under or with respect to any of
its Contractual Obligation, Indebtedness or Guarantee Obligations in any
material respect. No Default or Event of Default has occurred and is
continuing.
No
litigation, investigation, claim, criminal prosecution, civil investigative
demand, imposition of criminal or civil fines and penalties, or any other
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best knowledge of the Credit Parties, threatened by or against any Credit
Party or any of its Subsidiaries or Affiliates or against any of its or their
respective Properties or revenues (a) with respect to the Credit Documents,
any Extension of Credit, any Collateral or any of the transactions contemplated
hereby, or (b) which could reasonably be expected to have a Material
Adverse Effect. No permanent injunction, temporary restraining order
or similar decree has been issued against any Credit Party or any of its
Subsidiaries or Affiliates which could reasonably be expected to have a Material
Adverse Effect.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
36
No Credit
Party is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the 40 Act. No Credit Party is
subject to regulation under the Federal Power Act, the Interstate Commerce Act,
or any federal or state statute or regulation limiting its ability to incur the
Obligations.
No part
of the proceeds of any Extension of Credit hereunder will be used directly or
indirectly for any purpose that violates, or that would require any Lender to
make any filings in accordance with, the provisions of Regulation T, U
or X of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect. The Credit Parties and their
Subsidiaries and Affiliates (a) are not engaged, principally or as one of
their important activities, in the business of extending credit for the purpose
of “purchasing” or “carrying” “margin stock” within the respective meanings of
each of such terms under Regulation U and (b) taken as a group do not own
“margin stock”. No Borrower is subject to any Requirement of Law that
purports to restrict or regulate its ability to borrow money. No
portion of the proceeds of any Extension of Credit will be used to repurchase
any Equity Interests in, or to fund dividends or distributions by, any Credit
Party or any Subsidiary or Affiliate.
Neither a
Reportable Event nor an “accumulated funding deficiency” (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during
the five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No
termination of a Single Employer Plan has occurred resulting in any liability
that has remained underfunded, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period. The present value of all
accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued
benefits. Neither any Credit Party nor any Commonly Controlled Entity
is currently subject to any liability for a complete or partial withdrawal from
a Multiemployer Plan.
Except as
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect:
(a) The
Properties owned, leased or operated by the Credit Parties or any of their
Subsidiaries do not contain any Materials of Environmental Concern in amounts or
concentrations which (i) constitute a violation of, or (ii) could
reasonably be expected to give rise to liability on behalf of any Credit Party
under, any Environmental Law.
(b) The
Properties and all operations of the Credit Parties and/or their Subsidiaries at
the Properties are in compliance, and have in the last five years been in
compliance, in all material respects with all applicable Environmental Laws, and
to the knowledge of the Credit Parties there is no contamination at, under or
about the Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Credit Parties or any of their
Subsidiaries (the “Business”).
(c) Neither
the Credit Parties nor their Subsidiaries have received any written or actual
notice of violation, alleged violation, non-compliance, liability or potential
liability on behalf of any Credit Party with respect to environmental matters or
Environmental Laws regarding any of the Properties or the Business, nor do the
Credit Parties or their Subsidiaries have knowledge or reason to believe that
any such notice will be received or is being threatened.
(d) None
of the Credit Parties and to the knowledge of the Credit Parties no other Person
has transported or disposed of any Materials of Environmental Concern from the
Properties in violation of, or in a manner or to a location that could
reasonably be expected to give rise to liability on behalf of any Credit Party
under any Environmental Law, and none of the Credit Parties and to the knowledge
of the Credit Parties no other Person has generated, treated, stored or disposed
of any Materials of Environmental Concern at, on or under any of the Properties
in violation of, or in a manner that could reasonably be expected to give rise
to liability on behalf of any Credit Party under, any applicable Environmental
Law.
(e) No
judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Credit Parties and their Subsidiaries, threatened, under
any Environmental Law to which any Credit Party or any Subsidiary is or could
reasonably be expected to be named as a party with respect to the Properties or
the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
the Properties or the Business.
(f) There
has been no release or threat of release of Materials of Environmental Concern
at or from the Properties, or arising from or related to the operations of any
Credit Party or any Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in a manner that
could reasonably be expected to give rise to liability on behalf of any Credit
Party under Environmental Laws.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
37
The
proceeds of the Extensions of Credit shall be used by the Borrowers solely to
acquire or finance Eligible Assets.
The
organizational chart attached as Schedule 3.12 sets
forth the name of each Consolidated Subsidiary of each Credit
Party.
Each of
the Credit Parties and its Subsidiaries is the owner of, and has good and
marketable title to or a valid leasehold interest in, all of its respective
Properties, which, together with Properties leased or licensed by the Credit
Parties and their Subsidiaries, represents all Properties in the aggregate
material to the conduct of the business of the Credit Parties and their
Subsidiaries, and (after giving effect to the Transactions) none of such
Properties included in the Collateral is subject to any Lien other than
Permitted Liens. Each Credit Party and its Subsidiaries enjoys
peaceful and undisturbed possession under all of its leases and all such leases
are valid and subsisting and in full force and effect.
Except as
otherwise permitted under Section 6.1, the
Credit Parties and their Subsidiaries have no Indebtedness or Guarantee
Obligations. To each Credit Party’s knowledge, no material defaults
or events of default exist under the Indebtedness and Guarantee Obligations
permitted under Section
6.1.
Each of
the Credit Parties and its Subsidiaries has filed, or caused to be filed, all
income tax returns and all other material tax returns (federal, state, local and
foreign) required to be filed and paid (a) all amounts of taxes shown
thereon to be due (including interest and penalties) and (b) all other
taxes, fees, assessments and other governmental charges (including mortgage
recording taxes, documentary stamp taxes and intangibles taxes) owing by it,
except for such taxes (i) that are not yet delinquent or (ii) that are
being contested in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with GAAP. None
of the Credit Parties or their Subsidiaries is aware of any proposed tax
assessments against it or any of its Subsidiaries.
No Credit
Party is the subject of any Insolvency Proceeding or Insolvency
Event. The Loans under this Agreement and any other Credit Document
do not and will not render any Credit Party not Solvent. The Credit
Parties are not entering into the Credit Documents or any Extension of Credit
with the intent to hinder, delay or defraud any creditor of the Credit Parties
or any Subsidiary and the Credit Parties have received or will receive
reasonably equivalent value for the Credit Documents and each Extension of
Credit.
All
Investments of each of the Credit Parties and its Subsidiaries are Permitted
Investments.
Each
Credit Parties’ location (within the meaning of Article 9 of the UCC) is
set forth on Schedule
3.18. The office where each Credit Party keeps all the records
(within the meaning of Article 9 of the UCC) is at the address set forth on
Schedule 3.18
to this Agreement (or at such other locations as to which the notice and other
requirements specified in Section 10.2 shall
have been satisfied).
None of
the Credit Parties or their Subsidiaries or Affiliates is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any Requirement of Law which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
None of
the Credit Parties or their Subsidiaries or Affiliates has any obligation to any
Person in respect of any finder’s, broker’s, investment banking or other similar
fee in connection with any of the transactions contemplated under the Credit
Documents other than the closing and other fees payable pursuant to this
Agreement and as set forth in the Fee Letter.
There are
no collective bargaining agreements or Multiemployer Plans covering the
employees of the Credit Parties or any of their Subsidiaries, and none of the
Credit Parties or their Subsidiaries (a) has suffered any strikes,
walkouts, work stoppages or other material labor difficulty within the last five
years, or (b) has knowledge of any potential or pending strike, walkout or
work stoppage. No unfair labor practice complaint is pending against
any Credit Party or any of its Subsidiaries. There are no
strikes, walkouts, work stoppages or other material labor difficulty pending or
threatened against any Credit Party or their Subsidiaries or
Affiliates.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
38
To each
Credit Parties’ actual knowledge, the information, reports, certificates,
documents, financial statements, books, records, files, exhibits and schedules
furnished in writing by or on behalf of each Credit Party to the Administrative
Agent in connection with the negotiation, preparation or delivery of this
Agreement and the other Credit Documents or included herein or therein or
delivered pursuant hereto or thereto, when taken as a whole, do not contain any
untrue statement of material fact or omit to state any material fact necessary
to make the statements herein or therein, in light of the circumstances under
which they were made, not misleading. All written information
furnished after the date hereof by or on behalf of each Credit Party to the
Administrative Agent and the Lenders in connection with this Agreement and the
other Credit Documents and the transactions contemplated hereby and thereby will
be true, complete and accurate in every material respect, or (in the case of
projections) based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to a
Responsible Officer of any Credit Party, after due inquiry, that could
reasonably be expected to have a Material Adverse Effect that has not been
disclosed to the Administrative Agent. All projections furnished on
behalf of each Credit Party to the Administrative Agent were prepared and
presented in good faith by or on behalf of each Credit Party.
Each
Material Contract is, and after giving effect to the Transactions will be, in
full force and effect in accordance with the terms thereof. To the
extent requested by the Administrative Agent, the Credit Parties have delivered
to the Administrative Agent a true and complete copy of each requested Material
Contract.
Each
Credit Party has and maintains, with respect to its Properties and business,
insurance which meets the requirements of Section 5.5.
The
Security Documents create valid security interests in, and Liens on, the
Collateral purported to be covered thereby. Except as set forth in
the Security Documents, such security interests and Liens are currently (or will
be, upon (a) the filing of appropriate financing statements with the
Secretary of State of the state of incorporation or organization for each Credit
Party, in each case in favor of the Administrative Agent, on behalf of the
Lenders, and (b) the Administrative Agent obtaining control or
possession over those items of Collateral in which a security interest is
perfected through control or possession) perfected security interests and Liens,
prior to all other Liens other than Permitted Liens. None of the
Collateral is subject to any Lien other than Permitted Liens. None of
the Credit Parties nor any Person claiming through or under any Credit Party
shall have any claim to or interest in the Collection Account or the Securities
Account, except for the interest of the Borrowers in such property as a debtor
for purposes of the UCC.
Neither
any Credit Party nor any of its Subsidiaries or Affiliates is an “enemy” or an
“ally of the enemy” within the meaning of Section 2 of the Trading with the
Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et seq.), as
amended. None of the Credit Parties or their Subsidiaries or
Affiliates is in violation of (a) the Trading with the Enemy Act, as
amended, (b) any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or
any enabling legislation or executive order relating thereto or (c) the
Patriot Act. None of the Credit Parties nor any Subsidiary or
Affiliate of any Credit Party (i) is a blocked person described in Section
1 of the Anti-Terrorism Order or (ii) to the best of its knowledge, engages
in any dealings or transactions, or is otherwise associated, with any such
blocked person.
(a) None
of the Credit Parties or their Subsidiaries or their respective Affiliates is in
violation of and shall not violate any of the country or list based economic and
trade sanctions administered and enforced by OFAC that are described or
referenced at xxxx://xxx.xxxxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/ or as otherwise
published from time to time.
(b) None
of the Credit Parties or their Subsidiaries or their respective Affiliates
(i) is a Sanctioned Person or a Sanctioned Entity, (ii) has a more
than 10% of its assets located in Sanctioned Entities, or (iii) derives
more than 10% of its operating income from investments in, or transactions with
Sanctioned Persons or Sanctioned Entities. The proceeds of any Loan
will not be used and have not been used to fund any operations in, finance any
investments or activities in or make any payments to, a Sanctioned Person or a
Sanctioned Entity.
Each of
the Credit Parties and their Subsidiaries and Affiliates is in compliance with
the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., and any foreign
counterpart thereto. None of the Credit Parties or their Subsidiaries
or Affiliates has made a payment, offering, or promise to pay, or authorized the
payment of, money or anything of value (a) in order to assist in obtaining
or retaining business for or with, or directing business to, any foreign
official, foreign political party, party official or candidate for foreign
political office, (b) to a foreign official, foreign political party or
party official or any candidate for foreign political office, and (c) with
the intent to induce the recipient to misuse his or her official position to
direct business wrongfully to such Credit Party or its Subsidiary, its
Affiliates or to any other Person, in violation of the Foreign Corrupt Practices
Act, 15 U.S.C. §§ 78dd-1, et
seq.
No
approval, consent or authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority or any other Person is required in
connection with acceptance of Extensions of Credit by the Borrowers or the
making of the Guaranty or with the execution, delivery or performance of any
Credit Document by the Credit Parties (other than those which have been
obtained) or with the validity or enforceability of any Credit Document against
the Credit Parties (except such filings as are necessary in connection with the
perfection of the Liens created by such Credit Documents).
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
39
The
execution, delivery and performance of this Agreement, the Credit Documents and
the transactions contemplated hereby do not require compliance with any “bulk
sales” act or similar law by any Credit Party.
Each
Credit Party acknowledges that all Income and Required Payments received after
the Closing Date by it or its Affiliates or its Subsidiaries or any Person
acting on its behalf with respect to the Collateral shall be held for the
benefit of the Administrative Agent until deposited into the Collection Account
as required herein.
No Credit
Party has any knowledge of any fact that should lead it to expect that each Loan
will not be paid in full.
The
Borrowers have delivered each Irrevocable Instruction required to be delivered
by the terms of this Agreement. The Credit Parties are not aware of
any Required Payment that has been made after the date of this Agreement but has
not been deposited into the Collection Account. No Irrevocable
Instruction violates any Requirement of Law, any Contractual Obligation or other
prohibition and such Irrevocable Instructions are the valid and binding
obligations of the parties thereto.
The
Guarantor and its Consolidated Subsidiaries and the Borrowers are in full
compliance with the Financial Covenants and all Credit Parties are in full
compliance with all other applicable covenants, duties and agreements contained
in the Credit Documents.
The
Credit Parties have delivered to the Administrative Agent or the Custodian all
documents and agreements related to, governing or affecting the Collateral,
including, without limitation, the Mortgage Loan Documents, the Servicer
Agreements, the Pooling and Servicing Agreements and all documents relating to
any Debt Issuance, Equity Issuance or Securitization or any proposed Debt
Issuance, proposed Equity Issuance or proposed Securitization, and, to the best
of the Borrowers’ knowledge, no material default or event of default exists
thereunder.
Each
Credit Party has made its own independent decisions to enter into the Credit
Documents and each Loan and as to whether such Loan is appropriate and proper
for it based upon its own judgment and upon advice from such advisors
(including, without limitation, legal counsel and accountants) as it has deemed
necessary. No Credit Party is relying upon any advice from the
Administrative Agent or any Lender as to any aspect of the Loans, including,
without limitation, the legal, accounting or tax treatment of such
Loans.
(a) There
are no outstanding rights, options, warrants or agreements for the purchase,
sale or issuance of the Collateral created by, through, or as a result of any
Credit Party’s actions or inactions; (b) there are no agreements on the
part of any Credit Party to issue, sell or distribute the Collateral, other than
this Agreement and the Credit Documents; and (c) no Credit Party has any
obligation (contingent or otherwise) to purchase, redeem or otherwise acquire
any securities or any interest therein or to pay any dividend or make any
distribution in respect of the Collateral, except, in the case of (a) and (b),
for purchase rights that may be contained in any applicable intercreditor
agreement included in the Mortgage Asset File.
Caplease
Inc. is a REIT, a publicly traded company that is listed, quoted or traded on
and is in good standing in respect of the New York Stock Exchange, NASDAQ or any
other nationally recognized stock exchanges (each, a “Stock Exchange”) and
is not subject to any ratings downgrade by any Rating
Agency. Caplease Inc. has not engaged in any material “prohibited
transactions” as defined in Section 857(b)(6)(B)(iii) and (C) of the
Code. Caplease Inc. for its current “tax year” (as defined in the
Code) is and for all prior tax years subsequent to its election to be a REIT has
been entitled to a dividends paid deduction under the requirements of
Section 857 of the Code with respect to any dividends paid by it with
respect to each such year for which it claims a deduction in its Form 1120-REIT
filed with the United States Internal Revenue Service for such
year.
No Credit
Party is an “executive officer”, “director”, or “person who directly or
indirectly or acting through or in concert with one or more persons owns,
controls, or has the power to vote more than 10% of any class of voting
securities” (as those terms are defined in 12 U.S.C. § 375(b) or in
regulations promulgated pursuant thereto) of any Lender, of a bank holding
company of which any Lender is a Subsidiary, or of any Subsidiary, of a bank
holding company of which any Lender is a Subsidiary, of any bank at which any
Lender maintains a correspondent account or of any Lender which maintains a
correspondent account with any Lender.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
40
There are
no defenses, offsets, counterclaims, abatements, rights of rescission or other
claims, legal or equitable, available to any Credit Party with respect to this
Agreement, the Credit Documents, the Collateral or any other instrument,
document and/or agreement described herein or in the other Credit Documents, or
with respect to the obligation of the Credit Parties to repay the Obligations or
any other obligation under the Credit Documents.
Borrowers
have entered into all Interest Rate Protection Agreements contemplated by
Borrowers’ hedging strategy (as disclosed to the Administrative Agent) and to
the actual knowledge of Borrowers, as of the date of this Agreement and as of
the Borrowing Date for the financing of any Pledged Mortgage Asset subject to an
Interest Rate Protection Agreement, each such Interest Rate Protection Agreement
is in full force and effect in accordance with its terms and no default or event
of default exists thereunder. The Borrowers and the Guarantors
represent and warrant that no “default” has occurred or is continuing under any
Interest Rate Protection Agreement to which it is a party.
No
procedures believed by any Credit Party to be adverse to the interests of the
Administrative Agent or the Lenders were utilized by any Credit Party in
identifying and/or selecting the Collateral. In addition, each
Mortgage Asset shall have been underwritten in accordance with and satisfy any
applicable standards that have been established by the Credit Parties and any of
their Subsidiaries or Affiliates and are then in effect.
To the
extent the Borrowers acquired Mortgage Assets from Transferors,
the Borrowers have given reasonably equivalent value to each Transferor
in consideration
for the transfer to the Borrowers of the Collateral under the applicable
Purchase Agreement, no such transfer has been made for or on account
of an antecedent debt owed by the Transferor thereunder to the Borrowers,
and no such transfer is or may be voidable or subject to avoidance under any
section of the Bankruptcy Code.
Each SPE
Subsidiary is in compliance with the requirements of Section
5.24.
With
respect to each Mortgage Asset, each Borrower and the Administrative Agent are
“qualified transferees”, “qualified institutional lenders” or “qualified
lenders” (however such terms are phrased or denominated) under the terms of the
applicable Mortgage Loan Documents with respect to each party’s ability to hold
and/or to be a pledgee and/or transferee of each such Mortgage
Asset. The Assignments and the pledge of the Mortgage Assets to the
Administrative Agent, on behalf of the Lenders, do not violate any provisions of
the underlying Mortgage Loan Documents.
With
respect to each Mortgage Asset, such asset is an Eligible Asset and each
representation and warranty set forth in Schedule 1.1(c) applicable thereto is
true and correct. Each of the representations and warranties
contained in the Mortgage Loan Documents and in any statement, affirmation or
certification made or any information, document, report, notice or agreement
provided to the Administrative Agent relating to any Mortgage Asset is true and
correct in all material respects.
None of
the Credit Parties believes, or has any reason or cause to believe, that it
cannot perform each and every agreement, duty, obligation and covenant contained
in the Credit Documents applicable to it and to which it is a
party. None of the Credit Parties is subject to any restriction which
would unduly burden its ability to timely and fully perform each and every
applicable covenant, duty, obligation and agreement contained in the Credit
Documents and/or the Mortgage Loan Documents. None of the Credit
Parties is a party to any agreement or instrument or subject to any restriction
which could reasonably be expected to have a Material Adverse
Effect.
Each
Credit Party represents and warrants, and acknowledges and agrees, that it does
not intend to treat the Loans and the related transactions hereunder as being a
“reportable transaction” (within the meaning of United States Treasury
Department Regulation Section 1.60114). In the event a Credit Party
determines to take any action inconsistent with such intention, it will promptly
notify the Administrative Agent and the Lenders. If a Credit Party so
notifies the Administrative Agent and the Lenders, the Credit Parties
acknowledge and agree that the Administrative Agent and the Lenders may treat
the Loans as part of a transaction that is subject to United States Treasury
Department Regulation Section 301.61121, and the Administrative Agent and the
Lenders will maintain the lists and other records required by such Treasury
Regulation.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
41
No
Collateral has been compromised, adjusted, extended, satisfied, subordinated,
rescinded, set-off or modified by the Credit Parties, any Transferor or any
obligor thereof, and no Collateral is subject to compromise, adjustment,
extension (except as set forth in the related documents provided to the
Administrative Agent), satisfaction, subordination, rescission, set-off,
counterclaim, defense, abatement, suspension, deferment, deduction, reduction,
termination or modification, whether arising out of transactions concerning the
Collateral or otherwise, by the Credit Parties, any Transferor or any obligor
with respect thereto.
The
representations and warranties contained herein, required by or identified in
this Agreement and the other Credit Documents and the review and inquiries made
on behalf of the Credit Parties in connection therewith have all been
made by Persons having the requisite expertise, knowledge and background to
provide such representations and warranties. On the Borrowing Date
for each Extension of Credit and on each day that Collateral becomes and/or
remains subject to this Agreement and the Credit Documents, the Credit Parties
shall be deemed to restate and make each of the representations and warranties
made by it in this Article III and in Schedule 1.1(c) of
this Agreement.
The
representations and warranties made by the Transferors to a Borrower in the
Purchase Agreements are hereby remade by the Borrowers on each date to
which they speak in the Purchase Agreement as if such representations and
warranties were set forth herein. For purposes of this Section 3.51, such
representations and warranties are incorporated herein by reference as if made
by the Borrowers to the Administrative Agent and Lenders under the
terms hereof mutatis mutandis.
The
Borrowers and the Guarantors are in full compliance with the covenants set forth
in Section
5.31 of this
Agreement.
ARTICLE
IV
This
Agreement shall become effective upon, and the obligation of each Lender to make
the initial Revolving Loans on the Restatement Date is subject to, the
satisfaction of the following conditions precedent:
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
42
(i) (A) searches
of UCC filings in the jurisdiction of incorporation or formation, as applicable,
of each Credit Party, copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist (or the same have been
appropriately terminated) other than Permitted Liens and (B) tax lien,
judgment, bankruptcy and pending litigation searches, the results of which shall
be acceptable to the Administrative Agent in its discretion;
(ii) completed
UCC financing statements (including any UCC-3 financing statements) for each
appropriate jurisdiction as is necessary, in the Administrative Agent’s
discretion, to perfect the Administrative Agent’s security interest in the
Collateral;
(iii) stock
or membership certificates, if any, evidencing the Equity Interests pledged to
the Administrative Agent pursuant to the Pledge Agreements and duly executed in
blank undated stock or transfer powers;
(iv) duly
executed consents as are necessary, in the Administrative Agent’s discretion, to
perfect the Lenders’ security interest in the Collateral;
(v) all
Instruments and chattel paper in the possession of any of the Credit Parties,
together with allonges or assignments as may be necessary or appropriate to
perfect the Administrative Agent’s and the Lenders’ security interest in the
Collateral;
(vi) the
Account Control Agreement and the Securities Account Control Agreement;
and
(vii) if
applicable, executed control agreements necessary to perfect any Collateral
where the perfection thereof is by control.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
43
The
obligation of each Lender to make any Extension of Credit hereunder, including
the obligation of each Lender to make the initial Revolving Loans on the
Restatement Date and the pledge by any Borrower of any Collateral is subject to
the following conditions:
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
44
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
45
(i) The
Mortgage Asset subject to such Direct CTL Transaction shall have been originated
and documented by a Borrower as a Whole Loan, an A-1 Note or B Note pursuant
to customary credit-tenant lease mortgage loan documentation used by the
Borrowers, in accordance with the Borrowers’ program standards and otherwise
satisfactory to the Administrative Agent in its discretion (including a note,
lease, mortgage, pledge, title policy and Authority Documents);
(ii) With
respect to Direct CTL Transactions involving Whole Loans, the Obligor under such
Mortgage Asset shall be an SPE Subsidiary;
(iii) With
respect to Direct CTL Transactions involving Whole Loans, the SPE Subsidiary
shall satisfy the separateness covenants in Section 5.24 of this
Agreement, the SPE Subsidiary’s Authority Documents, corporate structure and all
legal matters related to the SPE Subsidiary shall be acceptable to the
Administrative Agent in its discretion and, if required by the Administrative
Agent in its discretion, such SPE Subsidiary shall have an Independent Director;
and
(iv) With
respect to all types of Direct CTL Transactions if required by the
Administrative Agent in its discretion, the Administrative Agent shall have
received a “non-consolidation” Opinion of Counsel to the Borrower and the
Obligor under the Direct CTL Transaction in form and substance satisfactory to
the Administrative Agent in its discretion.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
46
The
failure of any Credit Party, as applicable, to satisfy any of the foregoing
conditions precedent in respect of any Extension of Credit shall, unless such
failure was expressly waived in writing by the Administrative Agent on or prior
to the related Borrowing Date, give rise to a right of the Administrative Agent,
which right may be exercised at any time on the demand of the Administrative
Agent, to rescind the related Extension of Credit and direct the Borrowers to
pay to the Administrative Agent as agent for the Lenders an amount equal to the
outstanding principal amount of such Extension of Credit, accrued interest and
other amounts due in connection therewith during any such time that any of the
foregoing conditions precedent were not satisfied.
Each
request for an Extension of Credit and each acceptance by the Borrowers of any
such Extension of Credit shall be deemed to constitute representations and
warranties by the Credit Parties as of the date of the request and as of the
date of such Extension of Credit that the conditions set forth in Sections 4.1 and
4.2 have been
satisfied.
ARTICLE
V
Each of
the Credit Parties hereby covenants and agrees that on the Restatement Date, and
thereafter (a) for so long as this Agreement is in effect, (b) until
the Commitments have terminated, and (c) until no Note remains outstanding
and unpaid and the Obligations and all other amounts owing to the Administrative
Agent or any Lender hereunder are paid in full, such Credit Party shall, and
shall cause each of their Subsidiaries (other than in the case of Sections 5.1 or
5.2 hereof),
to:
Furnish
to the Administrative Agent and each of the Lenders:
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
47
all such
financial statements to be complete and correct in all material respects
(subject, in the case of interim statements, to normal recurring year-end audit
adjustments) and to be prepared in reasonable detail and, in the case of the
annual and quarterly financial statements provided in accordance with
subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein and further accompanied by a
description of, and an estimation of the effect on the financial statements on
account of, a change, if any, in the application of accounting principles as
provided in Section 1.3,
provided that
any financial statements delivered with respect to an Obligor under any Mortgage
Asset may be delivered to the Administrative Agent in the form
received.
Notwithstanding
the foregoing, financial statements and reports required to be delivered
pursuant to the foregoing provisions of this Section may be delivered by
Electronic Transmission and if so, shall be deemed to have been delivered on the
date on which the Administrative Agent receives such reports from the Borrowers
through electronic mail; provided that, upon
the Administrative Agent’s request, the Borrowers shall provide paper copies of
any documents required hereby to the Administrative Agent.
The
Borrowers and the Guarantor shall furnish to the Administrative Agent and each
of the Lenders:
(e) [Reserved].
(g) [Reserved].
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
48
Pay,
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, subject, where applicable, to specified grace
periods, (a) all of its taxes (Federal, state, local and any other Taxes)
and (b) all of its other obligations and liabilities of whatever nature in
accordance with industry practice and (c) any additional costs that are
imposed as a result of any failure to so pay, discharge or otherwise satisfy
such Taxes, obligations and liabilities, except when the amount or validity of
any such Taxes, obligations and liabilities is currently being contested in good
faith by appropriate proceedings and reserves, if applicable, in conformity with
GAAP with respect thereto have been provided on the books of the Credit
Parties.
Continue
to engage in business of the same general type as now conducted by it on the
Closing Date and preserve, renew and keep in full force and effect its corporate
or other formative existence and good standing, take all action to maintain all
rights, privileges, licenses and franchises necessary, required or desirable in
the normal conduct of its business and to maintain its goodwill and comply with
all Contractual Obligations and Requirements of Law.
(a) Keep
all material Property useful and necessary in its business in good working order
and condition (ordinary wear and tear and obsolescence excepted).
(b) Maintain
with financially sound and reputable insurance companies liability, casualty,
property and business interruption in at least such amounts and against at least
such risks as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to the Administrative
Agent, upon the request of the Administrative Agent, full information as to the
insurance carried.
Keep
proper books, records and accounts in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its businesses and activities; and permit,
during regular business hours and upon reasonable notice by the Administrative
Agent or any Lender, the Administrative Agent or any Lender to visit and inspect
any of its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired, and to
discuss the business, operations, properties, financial conditions and other
conditions of the Credit Parties and their Subsidiaries and Affiliates with
officers and employees of the Credit Parties and their Subsidiaries and
Affiliates and with its independent certified public accountants.
Give
notice in writing to the Administrative Agent (which shall promptly transmit
such notice to each Lender):
(a) promptly,
but in any event within two (2) Business Days after any Credit Party knows
thereof, the occurrence of any Default or Event of Default;
(b) promptly,
(i) any default or event of default under any Contractual Obligation,
Indebtedness or Guarantee Obligation of any Credit Party or any of its
Subsidiaries which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or involve a monetary claim in excess
of $1,000,000, (ii) any material default or event of default (beyond any
applicable notice and cure period) related to any Collateral or Required Payment
or (iii) any default or event of default under any Credit Party-Related
Obligations.
(c) promptly,
any litigation, or any investigation or proceeding known or threatened to any
Credit Party (i) affecting any Credit Party or any of its Subsidiaries
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or involve a monetary claim in excess of $750,000 or
involving injunctions or requesting injunctive relief by or against any Credit
Party or any Subsidiary of any Credit Party, (ii) affecting or with respect
to this Agreement, any other Credit Document, any security interest or Lien
created under any Security Document, any Collateral or any Required Payment,
(iii) involving an environmental claim or potential liability under
Environmental Laws which could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, or (iv) by any Governmental
Authority relating to the Credit Parties or any Subsidiary thereof and alleging
fraud, deception or willful misconduct by such Person;
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
49
(d) of
any labor controversy that has resulted in, or threatens to result in, a strike
or other work action against any Credit Party which could reasonably be expected
to have a Material Adverse Effect;
(e) of
any attachment, judgment, levy or order exceeding $750,000 that may be assessed
against or threatened against any Credit Party, or of any Lien or claim asserted
against any Collateral, other than Permitted Liens;
(f) as
soon as possible and in any event within thirty (30) days after any Credit
Party knows or has reason to know thereof: (i) the occurrence or
expected occurrence of any Reportable Event with respect to any Plan, a failure
to make any required contribution to a Plan, the creation of any Lien in favor
of the PBGC (other than a Permitted Lien) or a Plan or any withdrawal from, or
the termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by
the PBGC or any Credit Party, any Commonly Controlled Entity or any
Multiemployer Plan, with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan;
(g) promptly
after becoming aware of the occurrence of any Internal Control
Event;
(h) promptly,
any notice of any violation received by any Credit Party from any Governmental
Authority including, without limitation, any notice of violation of
Environmental Laws; and
(i) promptly
upon notice or knowledge thereof, notice of any change in Caplease Inc.’s status
as a REIT or Caplease Inc.’s membership or good standing on any recognized
securities exchange;
(j) promptly
upon notice or knowledge thereof, notice of the conveyance, sale, lease (other
than minor lease amendments that do not impact economic terms including
maturity), assignment, transfer or other disposition (any such transaction, or
related series of transactions, a “Sale”) of any
Property, business or assets of any Credit Party or any Subsidiary whether now
owned or hereafter acquired, with the exception of (A) this Agreement and
(B) any Sale of Property by any Credit Party or any Subsidiary that is not
material to the conduct of its business and is effected in the ordinary course
of business;
(k) promptly
upon notice or knowledge thereof, notice of the establishment of a rating
assigned to the long-term unsecured debt issued by any Credit Party by Xxxxx’x
or S&P (or other rating agency acceptable to the Administrative Agent) and
of any downgrade in such rating once established;
(l) with
respect to any Collateral hereunder, promptly upon receipt of notice or
knowledge that the Underlying Mortgaged Property has been damaged by waste,
fire, earthquake or earth movement, flood, tornado or other casualty, or
otherwise damaged so as to affect adversely the Asset Value of such
Collateral;
(m) promptly
upon notice or knowledge thereof, provide written notice to the Administrative
Agent of any loss, expected loss or material change in the value of any
Collateral, any Required Payment, any Property or asset of any Credit Party or a
Subsidiary (to the extent that such loss with respect to any such Property or
asset could reasonably be expected to have a Material Adverse Effect), or any
other event or change in circumstances or expected event or change in
circumstances that could reasonably be expected to result (A) in a default with
respect to any Mortgage Asset included in the Collateral, or (B) in a material
decline in value or cash flow of any Collateral, any Underlying Mortgaged
Property for any Collateral, any Required Payment or any Property or asset of a
Credit Party or a Subsidiary (to the extent that such event or change with
respect to any such Property or asset could reasonably be expected to have a
Material Adverse Effect);
(n) the
Borrowers shall provide written notice to the Administrative Agent at least
ten (10) days prior to any Credit Party or any Affiliate or Subsidiary
thereof acquiring any interest that would be senior in priority to any existing
Mortgage Asset that is included in the Collateral;
(o) promptly
upon notice or knowledge thereof, notice of the termination of any Servicer
under any Servicing Agreement relating to any Collateral or of any PSA Servicer
under any Pooling and Servicing Agreement;
(p) promptly
upon notice of knowledge thereof notice that any representation or warranty set
forth in Schedule 1.1(c) to this Agreement is or was not satisfied in any
material respect at any time; and
(q) promptly,
any other development or event which could reasonably be expected to have a
Material Adverse Effect.
Each
notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Credit Parties propose to take with respect
thereto. In the case of any notice of a Default or Event of Default,
the Borrowers shall specify that such notice is a Default or Event of Default
notice on the face thereof.
(a) Except
as could not reasonably be expected, either individually or in the aggregate, to
have a Material Adverse Effect, comply with, and ensure compliance in all
material respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and ensure that all
tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws;
(b) Except
as could not reasonably be expected, either individually or in the aggregate, to
have a Material Adverse Effect, conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws except
to the extent that the same are being contested in good faith by appropriate
proceedings; and
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
50
(c) Defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective employees, agents, officers and directors and affiliates, from and
against any and all claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of the Credit Parties or any of their Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, reasonable attorney’s and
consultant’s fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of the party seeking
indemnification therefor. The provisions of this Section shall
survive the termination of this Agreement and the payment in full of the
Obligations.
The
Borrowers and the Guarantor, as applicable, shall comply with the following
Financial Covenants:
(a) Comply
with all Requirements of Law (including Environmental Laws and Securities Laws)
and all applicable restrictions imposed by all Governmental Authorities,
applicable to it and the Collateral.
(b) Comply
in all material respects with all Contractual Obligations, all Indebtedness and
all Guarantee Obligations.
With
respect to the Collateral, the Credit Parties shall (a) take all action
necessary to perfect, protect and more fully evidence the Administrative Agent’s
first priority perfected security interest in the Collateral, including, without
limitation, (i) filing and maintaining effective financing statements
against the Borrowers and other Credit Parties, as applicable in all necessary
or appropriate filing offices, and filing continuation statements, amendments or
assignments with respect thereto in such filing offices, (ii) executing or
causing to be executed such other instruments, notices or control agreements as
may be necessary or appropriate, and (iii) to the extent that anyone other
than Xxxxx Fargo is the Administrative Agent, entering into a new Account
Control Agreement and Securities Account Control Agreement, and (b) taking
all additional action that the Administrative Agent may reasonably request to
perfect, protect and more fully evidence the respective interests of the parties
to this Agreement and the Credit Documents in such Collateral. To the
extent any Collateral is created or comes into existence after the Restatement
Date, the Credit Parties shall take such actions as the Administrative Agent
shall require to obtain a first priority perfected security interest in such
Collateral.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
51
Each
Credit Party shall perform its duties and obligations under and shall otherwise
maintain any existing Interest Rate Protection Agreements to which it is a
party.
The
Borrowers shall maintain the Account Control Agreement and the Securities
Account Control Agreement in full force and effect and shall not amend or modify
the Account Control Agreement or the Securities Account Control
Agreement or waive compliance with any provisions thereunder without the prior
written consent of the Administrative Agent.
The
Credit Parties shall, at their expense, timely and fully perform and comply (and
shall cause their Consolidated Subsidiaries, the Transferors, the Servicers and
the PSA Servicers to timely and fully perform and comply) with all provisions,
covenants and other promises required to be observed by them under the
Collateral and all other agreements related to such Collateral.
The
Credit Parties shall deposit, and shall cause the other Credit Parties, each of
their Subsidiaries and all other Persons to deposit, all Income, Required
Payments and other amounts payable to the Borrowers or the other Credit Parties
in respect of the Collateral or payable to any Credit Party or Subsidiary or
Affiliate in respect of any Required Payment into the Collection Account within
two (2) Business Days of such Person’s receipt thereof. The
Borrowers and the Credit Parties shall deposit, or cause to be deposited, into
the Collection Account, on or before the date required by the Credit Documents,
all other amounts required by the terms of the Credit Documents. The
Credit Parties shall provide the Administrative Agent with fully executed copies
of all Irrevocable Instructions required by this Agreement. The
Credit Parties shall take steps necessary to enforce such Irrevocable
Instructions and shall immediately inform the Administrative Agent of, and
rectify any default, breach, failure or unwillingness to perform thereunder, any
dispute or controversy in connection therewith or any other matter that may,
could or will result in payments not being made as contemplated under the terms
of such Irrevocable Instructions. The Credit Parties shall not, and
shall not permit any Credit Party or any Subsidiary or Affiliate to, modify or
revoke or permit any modifications or revocations of the Irrevocable
Instructions without the Administrative Agent’s prior written consent in its
discretion. The Borrowers and the Credit Parties shall deliver such
other Irrevocable Instructions as the Administrative Agent may require in its
discretion. All distributions from the Collection Account and the
Securities Account shall be made solely in accordance with the terms, provisions
and conditions of this Agreement, the Account Control Agreement and the
Securities Account Control Agreement.
The
Borrowers shall promptly correct any and all Exceptions set forth on any Asset Schedule and
Exception Report.
If the
Credit Parties or any Subsidiary or Affiliate shall receive any rights, whether
in addition to, in substitution of, as a conversion of, or in exchange for any
Collateral, or otherwise in respect thereof, the Credit Parties shall accept the
same as the Administrative Agent’s agent, hold the same in trust for the
Administrative Agent and deliver the same forthwith to the Administrative Agent
(or its designee) in the exact form received, together with duly executed
instruments of transfer, assignments in blank, executed and undated stock powers
in blank and such other documentation as the Administrative Agent shall
reasonably request. If any sums of money or property are paid or
distributed in respect of the Collateral (other than the Obligor Reserve
Payments) and received by any Credit Party or any Subsidiary or Affiliate, the
Credit Parties shall promptly pay or deliver, or caused to be paid or delivered,
such money or property to the Administrative Agent and, until such money or
property is so paid or delivered to the Administrative Agent, hold such money or
property in trust for the Administrative Agent, segregated from other funds of
the Credit Parties, their Subsidiaries and Affiliates and other
Persons.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
52
Caplease
Inc. shall at all times continue to be (i) qualified as a REIT as defined in
Section 856 of the Code without giving any effect to any cure or corrective
periods or allowances, (ii) entitled to a dividends paid deduction under
Section 857 of the Code with respect to dividends paid by it with respect
to each taxable year for which it claims a deduction on its Form 1120-REIT filed
with the United States Internal Revenue Service for such year, or the entering
into by it of any material “prohibited transactions” as defined in
Sections 857(b) and 856(c) of the Code, and (iii) a publicly traded
company listed, quoted or traded on and in good standing in respect of any Stock
Exchange.
The
Borrowers shall remit or cause to be remitted to the Administrative Agent, with
sufficient detail, via Electronic Transmission, to enable the Administrative
Agent to appropriately identify the Collateral to which any amount remitted
applies, all full or partial principal prepayments (regardless of the source of
repayment) on any Collateral that a Borrower, a Servicer or a PSA Servicer has
received or that have been deposited into the Collection Account no later than
two (2) Business Days following the date such prepayment was received or
deposited.
The
Borrowers shall (to the extent it is acting as a servicer) or shall cause the
Servicer to, no later than five (5) Business Days after learning (from any
source) of any material imbalance in any reserve or escrow account related to
any Collateral, fully and completely correct and eliminate such imbalance,
including, without limitation, depositing its own funds into such account to
eliminate any overdraw or deficit, to the extent required by the applicable
Servicing Agreement (in the case of a Servicer).
Notwithstanding
any term contained in this Agreement or the other Credit Documents to the
contrary, each SPE Subsidiary shall (a) own no assets other than Commercial Real
Estate and assets ancillary to the ownership thereof that is pledged as security
for the Direct CTL Transaction involving a Whole Loan, which Whole Loan is pledged to the
Administrative Agent as Collateral, and shall not engage in any business, other
than the operation of such assets; (b) not incur any Indebtedness or obligation,
secured or unsecured, direct or indirect, absolute or contingent (including
guaranteeing any obligation), other than (i) Mortgage Loan Documents for the
Whole Loan that is pledged to the Administrative Agent as Collateral, (ii)
customary representations, warranties, indemnities and other agreements under
the Mortgage Loan Documents for the Whole Loan that is pledged to the
Administrative Agent as Collateral, and (iii) obligations under zoning and other
governmental regulations, rules, prohibitions and ordinances and proposed
restrictions, covenants, conditions, limitations, easements, rights–of–way and
other matters existing of public record or proposed to be recorded or filed in
the future governing or affecting mortgaged real Property or that may otherwise
require the consent of or joinder by a mortgagee; (c) not make any loans or
advances to any Affiliate and shall not acquire obligations or securities of its
Affiliates; (iv) pay its debts and liabilities (including, as applicable,
shared personnel and overhead expenses) only from its own assets; (d) comply
with the provisions of its Authority Documents; (vi) do all things
necessary to observe organizational formalities and to preserve its existence,
and will not amend, modify or otherwise change its Authority Documents without
the consent of the Administrative Agent; (e) maintain all of its books, records,
financial statements and bank accounts separate from those of its Affiliates
(except that such financial statements may be consolidated to the extent
consolidation is required under the GAAP consistently applied or as a matter of
the Requirements of Law) and file its own tax returns (except to the extent
consolidation is required or permitted under Requirements of Law); (f) be, and
at all times will hold itself out to the public as, a legal entity separate and
distinct from any other entity (including any Affiliate), shall correct any
known misunderstanding regarding its status as a separate entity, shall conduct
business in its own name, and shall not identify itself or any of its Affiliates
as a division of the other; (g) maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and character and
in light of its contemplated business operations; (h) not engage in or suffer
any change of ownership, dissolution, winding up, liquidation, consolidation or
merger in whole or in part; (i) not commingle its funds or other assets with
those of any Affiliate or any other Person; (j) maintain its accounts separate
from those of any Affiliate or any other Person; (k) shall not hold itself out
to be responsible for the debts or obligations of any other Person; (l) shall
not, except in accordance with its organizational documents and without the vote
of its Independent Director (to the extent an Independent Director is required
by the Administrative Agent in its discretion at the time the related Whole Loan
is pledged to the Administrative Agent as Collateral), (i) file or consent to
the filing of any Insolvency Proceeding with respect to itself, institute any
proceedings under any applicable Insolvency Law or otherwise seek any relief
under any Requirements of Law relating to the relief from debts or the
protection of debtors generally with respect to itself, (ii) seek or consent to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator,
custodian or any similar official for itself or a substantial portion of its
properties, or (iii) make any assignment for the benefit of it’s creditors; (m)
to the extent required by the Administrative Agent in its discretion at the time
the related Whole Loan is pledged to the Administrative Agent as Collateral,
shall have at all times at least one (1) Independent Director (or such
greater number as required by the Administrative Agent or the Rating Agencies);
(n) shall maintain an arm’s length relationship with its Affiliates; (o)
maintain a sufficient number of employees in light of contemplated business
operations; (p) use separate stationary, invoices and checks; and (q) allocate
fairly and reasonably any overhead for shared office space.
In the
case of any Pledged Mortgage Asset not physically delivered to the
Administrative Agent as agent for the Lenders (or the Custodian on its behalf)
unless otherwise consented to by the Administrative Agent, the Borrowers shall
maintain, or cause to be maintained, each of the Securities (as defined in the
UCC) with either DTC or with the National Book Entry System of the Federal
Reserve, DTC or any similar firm or agency, as applicable, in the name of the
Administrative Agent as agent for the Lenders.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
53
Upon the
Borrowers’ receipt of notice from any securities intermediary (as defined in the
UCC) of its intent to terminate any securities account (as defined in the UCC)
of the Borrowers held by such securities intermediary and relating to a Pledged
Mortgage Asset or collateral for a Pledged Mortgage Asset, prior to the
termination of such securities account the collateral in such account (a) shall
be transferred to a new securities account, upon the request of the
Administrative Agent, which shall be subject to an executed control agreement as
provided in Section 5.12 of
this Agreement or (b) transferred to an account held by the Administrative Agent
as agent for the Lenders in which such collateral will be held until a new
securities account is established with an executed control agreement acceptable
to the Administrative Agent in its discretion.
All
covenants contained in this Agreement shall be given independent effect so that
if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or be otherwise within
the limitations of, another covenant shall not avoid the occurrence of an
Default or Event of Default if such action is taken or condition
exists.
Each
Borrower and the Guarantor shall, and each shall cause each of its Subsidiaries
to, comply in all material respects with all requirements of ERISA applicable
with respect to each Plan.
The Borrowers
shall (i) acquire the Mortgage Assets pursuant to and in accordance with
the terms of the Purchase Agreements (if applicable), (ii) take all action
necessary to perfect, protect and more fully evidence the Borrowers'
ownership of such Mortgage Assets under the Purchase Agreements (if any) free
and clear of any Lien other than Permitted Liens, including, without limitation,
(A) filing and maintaining effective financing statements against the
Transferors in all necessary or appropriate filing offices, and filing
continuation statements, amendments or assignments with respect thereto in such
filing offices, and (B) executing or causing to be executed such other
instruments or notices as may be necessary or appropriate, and (iii) take
all additional action that the Administrative Agent may reasonably request
to perfect, protect and more fully evidence the respective interests of the
parties to this Agreement in the Collateral.
Section
5.30 [Reserved].
If any
Credit Party or any Affiliate or Subsidiary of a Credit Party enters into any
additional Indebtedness in connection with an Equity Issuance as a result of
purchasing any real property in connection with such Equity Issuance, then such
Indebtedness will have a maturity date that is at least five (5) years from the
date of such Equity Issuance and the related real property shall generate Income
in an amount greater than or equal to 110% multiplied by the debt service
related to such additional Indebtedness, as determined by the Administrative
Agent in its discretion. The Borrowers shall provide such
documentation as the Administrative Agent shall request at least ten (10)
Business Days in advance of the purchase or such real estate to permit the
Administrative Agent to verify compliance with this Section
5.31.
ARTICLE
VI
Each of
the Credit Parties hereby covenants and agrees that on the Restatement Date, and
thereafter (a) for so long as this Agreement is in effect, (b) until
the Commitments have terminated, (c) until no Note remains outstanding and
unpaid and the Obligations and all other amounts owing to the Administrative
Agent or any Lender hereunder are paid in full, that:
No Credit
Party will, nor will it permit any Subsidiary to, contract, create, incur,
assume or permit to exist any Indebtedness, Guarantee Obligations or Contractual
Obligations, except:
(a) Indebtedness
arising or existing under this Agreement and the other Credit
Documents;
(b) Indebtedness
of the Credit Parties and their Subsidiaries existing as of the Closing Date as
referenced in the financial statements referenced in Section 3.1 (and
set out more specifically in Schedule 6.1(b)
hereto) and any renewals, refinancings or extensions thereof in a principal
amount not in excess of that outstanding as of the date of such renewal,
refinancing or extension and with a maturity of not less than five (5) years
from the date of such renewal, refinancing or extension;
(c) Indebtedness
of the Credit Parties and their Subsidiaries incurred after the Closing Date to
acquire Mortgage Assets or provide funding thereunder, provided, however, if
such Indebtedness is recourse to a Credit Party, the maturity thereof must be no
less than five (5) years from the date the Indebtedness is
incurred;
(d) Indebtedness
and obligations owing under Interest Rate Protection Agreements entered into in
order to manage existing or anticipated interest rate, exchange rate or
commodity price risks related to the Mortgage Assets and not for speculative
purposes;
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
54
(e) Indebtedness
arising out of the acquisition or financing of real estate or real estate-related assets after the
Closing Date; and
(f) Indebtedness
in compliance with Section
5.31.
The
Credit Parties and the Subsidiaries and Affiliates shall not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume, suffer
or permit to exist any Lien on all or any portion of the Collateral or the
Required Payments, other than Permitted Liens, whether now existing or hereafter
transferred hereunder, or any interest therein, and the Credit Parties and the
Subsidiaries and Affiliates shall not sell, pledge, assign or suffer to exist
any Lien, or any circumstance which, if adversely determined, would be
reasonably likely to give rise to a Lien, on its interest, if any, hereunder or
under the other Credit Documents. Immediately upon notice to any
Credit Party of a Lien or any circumstance which, if adversely determined would
be reasonably likely to give rise to a Lien (other than in favor of the
Administrative Agent or created by or through the Administrative Agent), on all
or any portion of the Collateral or the Required Payments, the Borrowers shall
notify the Administrative Agent and the Borrowers shall further defend the
Collateral and the Required Payments against, and will take such other action as
is necessary to remove, any Lien or claim on or to the Collateral or the
Required Payments (other than any Permitted Liens created under this Agreement
and the Credit Documents), and the Borrowers shall defend the right, title and
interest of the Credit Parties and their Subsidiaries and Affiliates in and to
any of the Collateral and the Required Payments against the claims and demands
of all Persons whomsoever. Notwithstanding the foregoing, if a Credit
Party or any Subsidiary or Affiliate shall xxxxx x Xxxx on any of the Collateral
or Required Payments in violation of this Section, then it shall be deemed to
have simultaneously granted an equal and ratable Lien on any such Collateral or
Required Payments in favor of the Administrative Agent for the ratable benefit
of the Lenders to the extent such Lien has not already been granted to the
Administrative Agent.
No Credit
Party will, nor will it permit any Subsidiary to, alter the character of its
business in any material respect from that conducted as of the Closing
Date. The Borrowers shall not engage in any activity other than
activities specifically permitted by this Agreement, including, but not limited
to, investment in mortgage loans, mezzanine loans, participations and other real
estate related assets and the purchasing, financing and holding of commercial
mortgage-backed securities, collateralized debt obligation securities and
activities incident thereto.
No Credit
Party shall enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation, winding up or dissolution) or sell all or substantially all of its
assets; provided, however, that any
Credit Party may merge or consolidate with (i) any wholly owned Subsidiary
of such Credit Party, or (ii) any other Person if a Credit Party is the
surviving entity; and provided, further, that, if
after giving effect thereto, no Default or Event of Default would exist
hereunder.
The
Credit Parties will not, nor will they permit any Subsidiary to, make any
Investment except for Permitted Investments.
Unless
otherwise approved in writing by the Administrative Agent in its discretion, the
Credit Parties will not, nor will they permit any Subsidiary to, enter into any
transaction or series of transactions, whether or not in the ordinary course of
business, with any officer, director, shareholder or Affiliate other than on
terms and conditions substantially as favorable as would be obtainable in a
comparable arm’s-length transaction with a Person that is not an officer,
director, shareholder or Affiliate; provided, however, that in no
event shall the Borrowers pledge to the Administrative Agent hereunder
any Eligible Asset acquired by the Borrowers from an Affiliate of
the Borrowers unless the Borrowers shall have delivered to
the Administrative Agent prior to the Borrowing Date a certified
copy of the related Purchase Agreement and, if requested by
the Administrative Agent in its discretion, a True Sale
Opinion.
Except in
connection with a Permitted Investment or Permitted Indebtedness, the Credit
Parties shall not create or own Subsidiaries without the Administrative Agent’s
consent in its discretion. Except in connection with a Permitted
Investment (other than Direct CTL Transactions involving Whole Loans) or
Permitted Indebtedness (other than Direct CTL Transactions involving Whole
Loans), the Credit Parties will not sell, transfer, pledge or otherwise dispose
of any Equity Interest or other equity interests in any of their Subsidiaries,
nor will they permit any of their Subsidiaries to issue, sell, transfer, pledge
or otherwise dispose of any of their Equity Interest or other equity interests,
except in a transaction permitted by Section 6.4.
No Credit
Party will, nor will it permit any of its Subsidiaries to, (a) change its
fiscal year, (b) amend, modify or change its Authority Documents in any
respect without the prior written consent of the Administrative Agent; provided that no
Credit Party shall (i) except to the extent permitted under this Agreement,
alter its legal existence or, in one transaction or a series of transactions,
merge into or consolidate with any other entity, or sell all or substantially
all of its assets, (ii) change its state of incorporation or organization,
or (iii) change its registered legal name, without providing thirty
(30) days prior written notice to the Administrative Agent and without
filing (or confirming that the Administrative Agent has filed) such financing
statements and amendments to any previously filed financing statements as the
Administrative Agent may require, (c) amend, modify, cancel or terminate
other than on its terms or fail to renew or extend at the Credit Party’s or the
Subsidiary’s option or permit the amendment, modification, cancellation or
termination other than on its terms of any of the Material Contracts in any
respect materially adverse to the interests of the Lenders without the prior
written consent of the Required Lenders, (d) change its state of
incorporation, organization or formation without the consent of the
Administrative Agent or have more than one state of incorporation, organization
or formation or (e) change its accounting method (except in accordance with
GAAP) in any manner adverse to the interests of the Lenders without the prior
written consent of the Required Lenders.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
55
The
Credit Parties will not, nor, in connection with clauses (a) through (d) below
will they permit any Subsidiary to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any Lien or restriction on the
ability of any such Person to (a) other than dividends to the Guarantor by
direct or indirect Subsidiaries of the Guarantor, pay dividends or make any
other distributions to any Credit Party on its Equity Interest or with respect
to any other interest or participation in, or measured by, its profits,
(b) other than in connection with Direct CTL Transactions that are pledged
to the Administrative Agent under this Agreement, pay any Indebtedness or other
obligation owed to any Credit Party, (c) other than in connection with
Permitted Investments or Permitted Indebtedness, make loans or advances to any
Credit Party, (d) sell, lease or transfer any of its Properties to any
Credit Party, or (e) act as a Borrower or Guarantor, to obtain loans or to
pledge its assets pursuant to the Credit Documents or any renewals,
refinancings, exchanges, refundings or extension thereof, except (in respect of
any of the matters referred to in clauses (a)-(d) above) for such Liens or
restrictions existing under or by reason of (i) this Agreement and the
other Credit Documents or (ii) Requirements of Law.
Except as
otherwise required or permitted by the Credit Documents, no Credit Party shall
declare or make any payment on account of, or set apart assets for, a sinking or
other analogous fund for the purchase, redemption, defeasance, retirement or
other acquisition of any Equity Interest of any Credit Party whether now or
hereafter outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or Property or in obligations of any
Credit Party, except that a Credit Party may (a) declare and pay dividends in an
amount necessary to maintain its status as a REIT and (b) declare and pay
dividends in accordance with its Authority Documents and redeem Equity Interests
of Caplease in June 2008, provided (i) there is no Default or Event of Default,
(ii) no mandatory prepayments obligation is outstanding and (iii) the
distribution will not violate any Financial Covenant.
The
Borrowers shall not pledge to the Administrative Agent any Eligible Assets if,
after such pledge a Sub-Limit would be exceeded, unless waived in writing by the
Administrative Agent in its discretion.
None of
the Credit Parties or any of their Subsidiaries shall grant, allow or enter into
any agreement or arrangement with any Person that prohibits or restricts, or
purports to prohibit or restrict, the granting of any Lien or other encumbrance
on any of the assets or Properties of the Credit Parties or their Subsidiaries;
provided, however, that the
foregoing shall not apply to (i) the negative pledge contained in Section 6.18, (ii)
Indebtedness identified on Schedule
6.1(b) or (iii) any other negative pledge or grant of any Lien
or other encumbrance approved by the Administrative Agent in its
discretion.
No Credit
Party shall take any action to cause all or any portion of the Collateral that
is not, as of the applicable Borrowing Date, evidenced by an Instrument to be so evidenced
except, with the Administrative Agent’s consent, in connection with the
enforcement or collection of such Collateral.
The
Credit Parties will not deposit or otherwise credit, or cause or permit to be so
deposited or credited, to the Collection Account or Securities Account cash or
cash proceeds other than (i) in the case of the Collection Account, Income in
respect of Collateral, Cash
Collateral and other payments required to be deposited therein under the Credit
Documents, and (ii) in the case of the Securities Account, the CMBS Securities
that are Mortgage Assets and other Collateral related thereto (except those CMBS
Securities that are certificated securities within the meaning of Article 8 of
the UCC).
The
Credit Parties will not materially amend, modify, waive or terminate any
provision of any Purchase Agreement, Servicing Agreement or Pooling and
Servicing Agreement without the prior written consent of the Administrative
Agent. Notwithstanding the foregoing, but subject to the
Administrative Agent’s rights under Article IX, the Borrowers shall
have the right to terminate any of the foregoing upon the occurrence of a
material default (beyond any applicable notice and cure period) of the other
party thereto.
Except as
provided in Section
9.7 or unless otherwise agreed to by the Administrative Agent in its
discretion, the Credit Parties will not extend, amend, waive or otherwise
modify, or permit any Servicer or PSA Servicer (except as provided in a Pooling
and Servicing Agreement) to extend, amend, waive or otherwise modify the
material terms of any Collateral or the Mortgage Loan Documents related thereto
or to exercise the material rights of a holder of said
Collateral. Unless otherwise agreed to by the Administrative Agent in
its discretion, the Credit Parties, the Servicers and the PSA Servicers (except
as provided in a Pooling and Servicing Agreement) shall have no right to waive,
amend, modify or alter the material terms of any Collateral or the related
Mortgage Loan Documents thereto or otherwise exercise any material right of the
holder of any Collateral. The Administrative Agent agrees to promptly
consider any request for consent under this Section
6.16.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
56
No Credit
Party shall repurchase any outstanding common stock of any Credit Party in
excess of an amount equal to $50,000,000 in the aggregate prior to the later of
(a) the Maturity Date and (b) the payment in full of the
Obligations.
No Credit
Party shall grant or permit, or suffer to be granted or permitted, any Lien on,
or any encumbrances upon, any Collateral and/or any Required Payment in favor of
any Person, other than Liens in favor of the Administrative Agent as agent for
the Secured Parties. The Credit Parties shall not sell, pledge,
assign or transfer to any Person, or grant, create, incur, assume, suffer or
permit to exist any Lien on, the Equity Interests of an SPE Subsidiary under any
Direct CTL Transaction that involves a Whole Loan, including, without
limitation, the Equity Interests of the SPE Subsidiaries that own the Commercial
Real Estate leased to the Kroger Company, Quest Corporation and Factory Mutual
Insurance Company.
No part
of the proceeds of any Loan hereunder shall be used for any purpose which
violates, or would be inconsistent with, the provisions of Regulation T, U
or X.
Senior and
Pari
Passu Interests.
|
No Credit
Party shall acquire or maintain any right or interest in any Mortgage Asset (or,
directly or indirectly, the Underlying Mortgaged Property with respect thereto)
that is senior to or pari
passu with the rights and interests of the Administrative Agent therein
under this Agreement and the Credit Documents unless such interest is also part
of the Collateral; provided that that
foregoing negative covenant shall not apply to CMBS Securities.
To the
extent the Administrative Agent acquires a pledge of multiple Mortgage Assets as
a part of a portfolio or package, the Borrowers shall not repay or obtain the
release of any Lien on less than all such Collateral without repaying all Loans
related to all such Collateral included in the portfolio or package, unless the
Administrative Agent otherwise consents in its discretion.
The
Credit Parties shall not directly or indirectly, enter into any agreement
containing any provision that would be violated or breached by any transaction,
Loan or pledge of Collateral under the Credit Documents or by the performance by
any Credit Party of its duties, covenants or obligations under any Credit
Document.
ARTICLE
VII
An Event
of Default shall exist upon the occurrence of any of the following specified
events (each an “Event
of Default”):
First
Amended and Restated Credit Agreement
(Xxxxx
Xxxxx/Xxxxxxxx)
00
(e) [Reserved];
(i) Change of
Control. There shall occur a Change of Control;
or
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
58
(m) 40
Act. Any Credit Party shall become required to register as an
“investment company” within the meaning of the 40 Act or the arrangements
contemplated by the Credit Documents shall require registration as an
“investment company” within the meaning of the 40 Act; or
(s) REIT. Caplease
Inc. ceases to qualify as a REIT (without giving any effect to any cure or
corrective periods or allowances), is subject to a ratings downgrade by any
Rating Agency or ceases to be a publicly traded company listed, quoted or traded
on or in good standing in respect of any Stock Exchange; or
In making
a determination as to whether an Event of Default has occurred, the
Administrative Agent and the Lenders shall be entitled to rely on reports
published or broadcast by media sources believed by the Administrative Agent
and/or any Lender to be generally reliable and on information provided to it by
any other sources believed by it to be generally reliable, provided that the
Administrative Agent and/or the Lender reasonably and in good faith believes
such information to be accurate and has taken such steps as may be reasonable in
the circumstances to attempt to verify such
information. Notwithstanding anything contained in the Credit
Documents to the contrary, unless waived by the Administrative Agent in its
discretion, neither the Credit Parties nor any other Person shall be permitted
to cure an Event of Default after the acceleration of any of the
Obligations.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
59
Upon the
occurrence and during the continuance of an Event of Default, then, and in any
such event, (a) if such event is a Bankruptcy Event of Default,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon), and all Obligations and other amounts under the
Credit Documents shall immediately become due and payable, and (b) if such
event is any other Event of Default, any or all of the following actions may be
taken: (i) with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the Required Lenders,
the Administrative Agent shall, declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; (ii) the
Administrative Agent may, or upon the written request of the Required Lenders,
the Administrative Agent shall, declare the Loans (with accrued interest
thereon) and all Obligations and other amounts owing under this the Credit
Documents to be due and payable forthwith, whereupon the same shall immediately
become due and payable; and/or (iii) with the written consent of the
Required Lenders, the Administrative Agent may, or upon the written request of
the Required Lenders, the Administrative Agent shall, exercise such other rights
and remedies as provided under the Credit Documents and under Requirements of
Law.
ARTICLE
VIII
Each of
the Lenders hereby irrevocably appoints Xxxxx Fargo to act on its behalf as the
Administrative Agent hereunder and under the other Credit Documents 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 or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent and the Lenders, and neither the Borrowers
nor any other Credit Party shall have rights as a third party beneficiary of any
of such provisions.
Anything
herein to the contrary notwithstanding, none of the bookrunners, Arrangers or
other agents listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Credit Documents,
except in its capacity, as applicable, as the Administrative Agent, or a Lender
hereunder. Without limiting the foregoing, none of the Lenders or
other Persons so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has
not relied, and will not rely, on any of the Lenders or other Persons so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Credit Document 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 of its
duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article 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.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Credit Documents. Without
limiting the generality of the foregoing, the Administrative Agent:
(a) shall
not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(b) shall
not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Credit Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the
other Credit Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Credit Document or Requirements of Law;
and
(c) shall
not, except as expressly set forth herein and in the other Credit Documents,
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrowers or any of their Affiliates that is
communicated to or obtained by the Person serving as the 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
(i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.1
and 7.2) or
(ii) in the absence of its own gross negligence or willful
misconduct.
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 or any other Credit Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default or Event of Default,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Credit Document 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.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
60
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 (including any electronic
message, internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated 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 have been 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, the Administrative Agent may presume that such condition is
satisfactory to such Lender unless the 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 Borrowers), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or
experts.
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received written notice from a Lender or one of the
Borrowers referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”. In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders; provided, however, that unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders except
to the extent that this Agreement expressly requires that such action be taken,
or not taken, only with the consent or upon the authorization of the Required
Lenders, or all of the Lenders, as the case may be.
Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representation or warranty to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of any Credit
Party, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties 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 or any of their Related Parties 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 other Credit Document or any related agreement or any document
furnished hereunder or thereunder.
The
Lenders agree to indemnify the Administrative Agent in its capacity hereunder
and its Affiliates and its respective officers, directors, agents and employees
(to the extent not reimbursed by the Borrowers and without limiting the
obligation of the Borrowers to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought
under this Section, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Obligations) be imposed on,
incurred by or asserted against any such indemnitee in any way relating to or
arising out of any Credit Document or any documents contemplated by or referred
to herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by any such indemnitee under or in connection with any
of the foregoing; provided, however, that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting from such indemnitee’s gross
negligence or willful misconduct, as determined by a court of competent
jurisdiction. The provisions of this Section shall survive the
termination of this Agreement and the payment in full of the
Obligations.
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 the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates
may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Borrowers or any Subsidiary or other Affiliate thereof as if such Person
were not the Administrative Agent hereunder and without any duty to account
therefor to the Lenders.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
61
The
Administrative Agent may at any time give notice of its resignation to the
Lenders and the Borrowers. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the
Borrowers, to appoint a successor, or an Affiliate of any such
bank. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the
Lenders, appoint a successor Administrative Agent meeting the qualifications set
forth above provided that if the
Administrative Agent shall notify the Borrowers and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Credit Documents (except that in the
case of any Collateral held by the Administrative Agent on behalf of the Lenders
under any of the Credit Documents, the retiring Administrative Agent shall
continue to hold such Collateral until such time as a successor Administrative
Agent is appointed) and (b) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this
paragraph. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other
Credit Documents (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrowers to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such
successor. After the retiring Administrative Agent’s resignation
hereunder and under the other Credit Documents, the provisions of this Article
and Section
10.5 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 the retiring Administrative Agent
was acting as Administrative Agent.
(a) The
Lenders irrevocably authorize and direct the Administrative Agent:
(i) to
release any Lien on any Collateral granted to or held by the Administrative
Agent under any Credit Document (A) upon termination of the Revolving
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations for which no claim has been made or cannot be
reasonably identified by an Indemnitee based on the then-known facts and
circumstances), or (B) subject to Section 10.1, if
approved, authorized or ratified in writing by the Required Lenders or (C)
subject to Sections
2.5(c), 2.17 and 6.21 and other
restrictions on releases, upon a prepayment in full of all amounts owed
hereunder with respect to a Pledged Mortgage Asset by the Borrowers pursuant to
Section
2.5(b)(viii), provided there is no Default, no Event of Default and no
mandatory prepayment is due or will become due upon such release or upon the
expiration of the applicable time period under Section
2.5.
(ii) to
subordinate any Lien on any Collateral granted to or held by the Administrative
Agent under any Credit Document to the holder of any Lien on such Collateral
that is permitted by Section 6.2;
and
(iii) to
release the Guarantor from its obligations under the applicable Guaranty if such
Person ceases to be a Guarantor as a result of a transaction permitted
hereunder.
(b) In
connection with a termination or release pursuant to this Section, the
Administrative Agent shall promptly execute and deliver to the applicable Credit
Party, at the Borrowers’ expense, all
documents that the applicable Credit Party shall reasonably request to evidence
such termination or release. Upon request by the Administrative Agent
at any time, the Required Lenders will confirm in writing the Administrative
Agent’s authority to release or subordinate its interest in particular types or
items of Collateral, or to release the Guarantor from its obligations under the
Guaranty pursuant to this Section.
ARTICLE
IX
(a) The
Administrative Agent hereby appoints each of the Borrowers as its agent to
service the Collateral and enforce its rights in and under such
Collateral. The Borrowers hereby accept such appointment and agree to
perform the duties and obligations with respect thereto as set forth
herein.
(b) The
Borrowers covenants to maintain or cause the servicing of the Collateral to be
maintained in conformity with Accepted Servicing Practices and in a manner at
least equal in quality to the servicing Borrowers provides for Mortgage Assets
that it owns. In the event that the preceding language is interpreted
as constituting one or more servicing contracts, each such servicing contract
shall terminate automatically upon the earliest of (i) an Event of Default,
(ii) the date on which this Agreement terminates or the Administrative
Agent releases its Lien with respect to the related item of Collateral or
(iii) the transfer of servicing approved in writing by the Administrative
Agent.
(c) For
the purposes of this Article IX, the term Borrower shall also refer to Prefco
but only with respect to the Johnston RI Pledged Mortgage Asset.
If the
Collateral is serviced by the Borrowers, the Borrowers agree that, until the
item of Collateral is released from the Administrative Agent’s Lien, the
Administrative Agent has a security interest in all servicing records for the
period that the Administrative Agent has a Lien on the Collateral, including,
but not limited to, any and all servicing agreements, files, documents, records,
data bases, computer tapes, copies of computer tapes, computer programs, proof
of insurance coverage, insurance policies, appraisals, other closing
documentation, payment history records, and any other records relating to or
evidencing the servicing of such Collateral (the “Servicing
Records”). The Borrowers covenant to safeguard such Servicing
Records and to deliver them promptly to Administrative Agent or its designee
(including the Custodian) at the Administrative Agent’s request.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
62
The
Borrowers shall not cause the Collateral to be serviced by a third party other
than pursuant to the Servicing Agreements or the Pooling and Servicing
Agreements or, if not serviced thereunder, by any Servicer other than a Servicer
expressly approved in writing by the Administrative Agent in its discretion,
which approval shall be deemed granted by the Administrative Agent with respect
to each Servicer listed on Schedule 9.3
attached hereto, as such schedule may be amended or supplemented from time to
time, after the execution of this Agreement. If the Collateral is
serviced by a Servicer or a PSA Servicer pursuant to a Servicing Agreement or
Pooling and Servicing Agreement, as applicable, the Borrowers (i) shall, in
accordance with Section 4.2,
provide to the Administrative Agent (subject to the last sentence of this
Section) a copy of each Servicing Agreement and Pooling and Servicing Agreement,
which agreements shall be in form and substance acceptable to the Administrative
Agent, and a Servicer Redirection Notice, fully executed by the Borrowers and
the related Servicer or PSA Servicer, and (ii) hereby irrevocably assigns
to the Administrative Agent and the Administrative Agent’s successors and
assigns all right, title and interest of the Borrowers in, to and under, and the
benefits of (but not the obligations of), each Servicing Agreement and each
Pooling and Servicing Agreement with respect to the
Collateral. Notwithstanding the fact that the Borrowers have
contracted with the Servicers or PSA Servicers to service the Collateral, the
Borrowers shall remain liable to the Administrative Agent for the acts of the
Servicers and PSA Servicers and for the performance of the duties and
obligations set forth herein. The Borrowers agree that no Person
shall assume the servicing obligations with respect to the Collateral as
successor to a Servicer or PSA Servicer unless such successor is approved in
writing by the Administrative Agent prior to such assumption of servicing
obligations. Unless otherwise approved in writing by the
Administrative Agent, if the Collateral is serviced by a Servicer or PSA
Servicer, such servicing shall be performed pursuant to a written Servicing
Agreement or Pooling and Servicing Agreement approved by the Administrative
Agent.
(a) The
Administrative Agent hereby authorizes the Borrowers (including any successor
thereto) to take any and all reasonable steps in its name and on its behalf
necessary or desirable and not inconsistent with the pledge of the Collateral to
the Administrative Agent to collect all amounts due under any and all
Collateral, including, without limitation, endorsing any checks and other
instruments representing Income, executing and delivering any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Collateral
and, after the delinquency of any Collateral and to the extent permitted under
and in compliance with Requirements of Law, to commence proceedings with respect
to enforcing payment thereof, to the same extent as the Borrowers could have
done if it had continued to own such Collateral free of the Lien of the
Administrative Agent. The Administrative Agent shall furnish the
Borrowers (and any successors thereto) with any powers of attorney and other
documents necessary or appropriate to enable the Borrowers to carry out their
servicing and administrative duties hereunder and shall cooperate with the
Borrowers to the fullest extent in order to ensure the collectibility of the
Collateral. In no event shall the Borrowers be entitled to make the
Administrative Agent a party to any litigation without the Administrative
Agent’s express prior written consent.
(b) Subject
to all other rights of the Administrative Agent contained herein, after an Event
of Default has occurred and is continuing, at the direction of the
Administrative Agent, the Borrowers shall take such action as the Administrative
Agent may deem necessary or advisable to enforce collection of the Collateral;
provided, however, subject to
all other rights of the Administrative Agent contained herein, the
Administrative Agent may, at any time that an Event of Default or Default has
occurred and is continuing, notify any Obligor with respect to any Collateral of
the assignment of such Collateral to the Administrative Agent and direct that
payments of all amounts due or to become due be made directly to the
Administrative Agent or any servicer, collection agent or lock–box or other
account designated by the Administrative Agent and, upon such notification and
at the expense of the Borrowers, the Administrative Agent may enforce collection
of any such Collateral and adjust, settle or compromise the amount or payment
thereof.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
63
If the
servicer of the Collateral is any Borrower, upon the occurrence of an Event of
Default, the Administrative Agent shall have the right to terminate the
Borrowers as the servicer of the Collateral and transfer servicing to its
designee, at no cost or expense to the Administrative Agent, at any time
thereafter. If the servicer of the Collateral is not any of the
Borrowers, the Administrative Agent shall have the right, as contemplated in the
applicable Servicer Redirection Notice, upon the occurrence of an Event of
Default, to terminate any Servicer and any applicable Servicing Agreement and
any PSA Servicer and any applicable Pooling and Servicing Agreement to the
extent a PSA Servicer signed a Servicer Redirection Notice and, in each case, to
transfer servicing to its designee, at no cost or expense to the Administrative
Agent, it being agreed that the Borrowers will pay any and all fees required to
terminate each such Servicer, PSA Servicer, Servicing Agreement and Pooling and
Servicing Agreement and to effectuate the transfer of servicing to the designee
of the Administrative Agent. The Borrowers shall cooperate fully and
shall cause all Servicers and applicable PSA Servicers to cooperate fully with
the Administrative Agent in transferring the servicing of the Collateral to the
Administrative Agent’s designee.
Unless
otherwise agreed to by the Administrative Agent in its discretion until the
Administrative Agent releases its Lien on any item of Collateral, neither the
Borrowers, the Servicers, PSA Servicer (unless otherwise provided in a Pooling
and Servicing Agreement) nor any other Person acting on behalf of the foregoing
shall have any right without the Administrative Agent’s prior written consent in
its discretion to (i) waive, amend, modify or alter the material terms of
any item of Collateral (including, without limitation, the related Mortgage Loan
Documents), the Servicing Agreements or the Pooling and Servicing Agreements or
(ii) exercise any material rights of a holder of any item of Collateral
under any document or agreement governing or relating to such
Collateral. The Administrative Agent agrees to promptly consider any
request for consent under this Section
9.7.
In the
event the Borrowers or their Affiliates are servicing the Collateral, the
Borrowers shall permit the Administrative Agent to inspect the Borrowers’ and
any of their Affiliates’ servicing facilities, books and records and related
documents and information, as the case may be, for the purpose of satisfying the
Administrative Agent that that Borrowers or their Affiliates, as the case may
be, have the ability to service and are servicing the Collateral as provided in
this Agreement. If a Servicer or PSA Servicer is servicing any
Collateral, the Borrowers shall cooperate with the Administrative Agent in
causing each Servicer and PSA Servicer to permit inspections of the Servicer’s
and PSA Servicer’s facilities, books and records and related documents and
information relating to the Collateral.
As
compensation for their servicing activities hereunder and reimbursement for its
expenses, the Borrowers shall be entitled to receive a servicing fee to the
extent of funds available therefor in the aggregate amount of 25 basis
points per annum calculated on the outstanding principal amount of the Loans
(the “Servicing
Fee”), which, prior to an Event of Default, may be netted from the Income
prior to the same being deposited into the Collection Account.
The
Borrowers and any Servicer will be required to pay all expenses incurred by them
in connection with their activities under this Agreement and the other Credit
Documents, including fees and disbursements of independent accountants, Taxes
imposed on the Borrowers or the Servicers, expenses incurred in connection with
payments and reports pursuant to this Agreement and the other Credit Documents,
and all other fees and expenses under this Agreement and the other Credit
Documents for the account of the Borrowers. The Borrowers shall be
required to pay all reasonable fees and expenses owing to any bank or trust
company in connection with the maintenance of the Collection Account and all
other collection, reserve or lock–box accounts related to the
Collateral. The Borrowers shall be required to pay such expenses for
their own account and shall not be entitled to any payment therefor other than
the Servicing Fee.
Notwithstanding
the provisions of this Article IX, to the extent the Collateral (or
portions thereof) are serviced by a PSA Servicer (other than the Borrowers or
any Servicer) under a Pooling and Servicing Agreement, (a) the standards
for servicing such items of Collateral shall be those set forth in the
applicable Pooling and Servicing Agreement, to the extent of the items covered
therein, and otherwise as provided in this Agreement, (b) the Borrowers
shall enforce its rights and interests under such agreements for and on behalf
of the Administrative Agent, (c) the Borrowers shall instruct the
applicable PSA Servicer to deposit all Income received in respect of the
Collateral into the Collection Account in accordance with Section 5.17 of
this Agreement, (d) the Borrowers shall not take any action or fail to take
any action or consent to any action or inaction under any Pooling and Servicing
Agreement where the effect of such action or inaction would prejudice or
adversely affect the interests of the Administrative Agent, (e) the
Administrative Agent shall be entitled to exercise any and all rights of the
Borrowers or the holder of any such item of Collateral under such Pooling and
Servicing Agreements as such rights relate to the Collateral, and (f) the
Borrowers shall not consent to any amendment or modification to any Pooling and
Servicing Agreement without the prior written consent of the Administrative
Agent in its discretion. The Administrative Agent agrees to promptly
consider any request for consent under this Section
9.11.
Any
material breach by the Borrowers, any of their Servicers or any of the PSA
Servicers of the obligations contained in this Article IX or in Sections 2.9(a)
and 5.17 shall
constitute a “Servicer
Default”.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
64
ARTICLE
X
Neither
this Agreement nor any of the other Credit Documents, nor any terms hereof or
thereof may be amended, modified, waived, extended, restated, replaced, or
supplemented (by amendment, waiver, consent or otherwise) except in accordance
with the provisions of this Section nor may Collateral be released except as
specifically provided herein or in the Security Documents or in accordance with
the provisions of this Section. The Required Lenders may or, with the
written consent of the Required Lenders, the Administrative Agent may, from time
to time, (a) enter into with the Borrowers written amendments, supplements
or modifications hereto and to the other Credit Documents for the purpose of
adding any provisions to this Agreement or the other Credit Documents or
changing in any manner the rights of the Lenders or of the Borrowers hereunder
or thereunder or (b) waive or consent to the departure from, on such terms
and conditions as the Required Lenders may specify in such instrument, any of
the requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; provided, however, that no such
amendment, supplement, modification, release, waiver or consent
shall:
(i) reduce
the amount or extend the scheduled date of maturity of any Loan or Note or any
installment thereon (except in accordance with Section 2.1(f) or
Section
2.2(e)), or reduce the stated rate of any interest or fee payable
hereunder (except in connection with a waiver of interest at the increased
post-default rate set forth in Section 2.6
which shall be determined by a vote of the Required Lenders) or extend the
scheduled date of any payment thereof or increase the amount or extend the
expiration date of any Lender’s Commitment, in each case without the written
consent of each Lender directly affected thereby; provided that, it is
understood and agreed that (A) no waiver, reduction or deferral of a
mandatory prepayment required pursuant to Section 2.5(b),
nor any amendment of Section 2.5(b)
or the definitions of Asset Value, Debt Issuance, Equity Issuance,
Securitization or Extraordinary Receipt shall constitute a
reduction of the amount of, or an extension of the scheduled date of, the
scheduled date of maturity of, or any installment of, any Loan or Note, and
(B) any reduction in the stated rate of interest on Revolving Loans shall
only require the written consent of each Lender holding a Revolving Commitment;
or
(ii) amend,
modify or waive any provision of this Section or reduce the percentage specified
in the definition of Required Lenders, without the written consent of all the
Lenders; or
(iii) release
any Borrower or the Guarantor from obligations under the Guaranty, without the
written consent of all of the Lenders; or
(iv) release
all or substantially all of the Collateral without the written consent of all of
the Lenders; or
(v) subordinate
the Loans to any other Indebtedness without the written consent of all of the
Lenders; or
(vi) permit
any Borrower to assign or transfer any of its rights or obligations under this
Agreement or other Credit Documents without the written consent of all of the
Lenders; or
(vii) amend,
modify or waive any provision of the Credit Documents requiring consent,
approval or request of the Required Lenders or all Lenders without the written
consent of the Required Lenders or all the Lenders as appropriate;
or
(viii) without
the consent of Revolving Lenders holding in the aggregate more than 50% of the
outstanding Revolving Commitments (or if the Revolving Commitments
have been terminated, the aggregate principal amount of outstanding Revolving
Loans), amend, modify or waive any provision in Section 4.2 or
waive any Default or Event of Default (or amend any Credit Document to
effectively waive any Default or Event of Default) if the effect of such
amendment, modification or waiver is that the Revolving Lenders shall be
required to fund Revolving Loans when such Lenders would otherwise not be
required to do so; or
(ix) amend,
modify or waive the order in which Obligations are paid or in a manner that
would alter the pro rata sharing of payments by and among the Lenders in Section 2.9
without the written consent of each Lender and directly affected thereby;
or
(x) amend,
modify or waive any provision of Article VIII without the written consent
of the then Administrative Agent; or
(xi) amend,
modify or waive any provision in Sections 3.3 through
3.6 without the
written consent of the Custodian; or
(xii) amend
or modify the definition of Obligations to delete or exclude any obligation or
liability described therein without the written consent of each Lender directly
affected thereby;
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
65
provided, further, that no
amendment, waiver or consent affecting the rights or duties of the
Administrative Agent under any Credit Document shall in any event be effective,
unless in writing and signed by the Administrative Agent, in addition to the
Lenders required hereinabove to take such action. Unless otherwise
expressly provided herein, waivers shall be effective only in the specific
instance and for the specific purpose for which given.
Any such
waiver, any such amendment, supplement or modification and any such release
shall apply equally to each of the Lenders and shall be binding upon the
Borrowers, the other Credit Parties, the Lenders, the Administrative Agent and
all future holders of the Notes. In the case of any waiver, the
Borrowers, the other Credit Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
outstanding Loans and Notes and other Credit Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
Notwithstanding
any of the foregoing to the contrary, the consent of the Borrowers and the other
Credit Parties shall not be required for any amendment, modification or waiver
of the provisions of Article VIII (other than the provisions of Section 8.9).
Notwithstanding
the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (a) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (b) the Required Lenders may consent to allow a Credit Party to use
cash collateral in the context of a bankruptcy or insolvency
proceeding.
For the
avoidance of doubt and notwithstanding any provision to the contrary contained
in this Section
10.1, this Agreement may be amended (or amended and restated) with the
written consent of the Credit Parties and the Required Lenders (i) to
increase the aggregate Commitments of the Lenders (provided that no
Lender shall be required to increase its commitment without its consent),
(ii) to add one or more additional borrowing Tranches to this Agreement and
to provide for the ratable sharing of the benefits of this Agreement and the
other Credit Documents with the other then outstanding Obligations in respect of
the extensions of credit from time to time outstanding under such additional
borrowing Tranche(s) and the accrued interest and fees in respect thereof and
(iii) to include appropriately the lenders under such additional borrowing
Tranches in any determination of the Required Lenders and/or to provide consent
rights to such lenders under subsections (ix) and/or (x) of Section 10.1
corresponding to the consent rights of the other Lenders
thereunder.
(i) If
to the Borrowers or any other Credit Party:
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxx
X. Xxxxxx
Telephone:
(000) 000-0000
Fax: (000)
000-0000
(ii) If
to the Administrative Agent:
Xxxxx
Fargo Bank, National Association
Mail
Code: NC0166
000 Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxxx
Xxxxxx
Phone
No.: (704)
383–8238
Facsimile
No.: (704)
715–0066
with a
copy to:
Xxxxx
& Xxx Xxxxx PLLC
000 X.
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxx, Esq.
Facsimile
No.: (704)
378–2097
Confirmation
No.: (704)
331–1145
Attention: Xxxxxx
Xxxxxx, Esq.
Facsimile
No.: (704)
378–1916
Confirmation
No.: (704)
331–1116
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
66
(iii) if
to a Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire.
Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to
the extent provided in paragraph (b) below, shall be effective as provided
in said paragraph (b).
Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such
notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at
its e-mail address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website
address therefor.
No
failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by Requirements of Law.
All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes and the making of the
Loans; provided
that all such representations and warranties shall terminate on the date upon
which the Commitments have been terminated and all Obligations owing under any
Notes or the other Credit Documents have been paid in full.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
67
(i) The
Borrowers shall indemnify the Administrative Agent (and any sub-agent thereof),
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 claims, penalties, fines,
actual, out-of-pocket losses, actual,
out-of-pocket damages, actual,
out-of-pocket liabilities, and
related actual, out-of-pocket expenses (including
the actual fees, charges and disbursements of any counsel for any Indemnitee),
in each case incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrowers or any other Credit Party (collectively, the
“Indemnified
Amounts”) arising out of, in connection with, or as a result of (A) this
Agreement, the Credit Documents, any Loan, any Collateral, the Mortgage Loan
Documents, any transaction or Extension of Credit contemplated hereby or
thereby, or any amendment, supplement, extension or modification of, or any
waiver or consent under or in respect of this Agreement, the Credit Documents,
any Loan, any Collateral, the Mortgage Loan Documents or any transaction or
Extension of Credit contemplated hereby or thereby, (B) any Mortgage Asset or
any other Collateral under the Credit Documents, (C) any violation or alleged
violation of, non–compliance with or liability under any Requirement of Law
(including, without limitation, violation of Securities Laws and Environmental
Laws), (D) ownership of, Liens on, security interests in or the exercise of
rights and/or remedies under the Credit Documents, the Mortgage Loan Documents,
the Collateral, any other collateral under the Credit Documents, the Underlying
Mortgaged Property, any other related Property or collateral or any part thereof
or any interest therein or receipt of any Income or rents, (E) any accident,
injury to or death of any person or loss of or damage to Property occurring in,
on or about any Underlying Mortgaged Property, any other related Property or
collateral or any part thereof, the related Collateral or on the adjoining
sidewalks, curbs, parking areas, streets or ways, (F) any use, nonuse or
condition in, on or about, or possession, alteration, repair, operation,
maintenance or management of, any Underlying Mortgaged Property, any other
related Property or collateral or any part thereof or on the adjoining
sidewalks, curbs, parking areas, streets or ways, (G) any failure on the part of
the Credit Parties to perform or comply with any of the terms of the Mortgage
Loan Documents, the Credit Documents, the Collateral or any other collateral
under the Credit Documents, (H) performance of any labor or services or the
furnishing of any materials or other Property in respect of the Underlying
Mortgaged Property, any other related Property or collateral, the Collateral or
any part thereof, (I) any claim by brokers, finders or similar Persons claiming
to be entitled to a commission in connection with any lease or other transaction
involving any Underlying Mortgaged Property, any other related Property or
collateral, the Collateral or any part thereof or the Credit Documents, (J) any
Taxes including, without limitation, any Taxes attributable to the execution,
delivery, filing or recording of any Credit Document, any Mortgage Loan Document
or any memorandum of any of the foregoing, (K) any Lien or claim arising on or
against the Underlying Mortgaged Property, any other related Property or
collateral, the Collateral or any part thereof under any Requirement of Law or
any liability asserted against the Administrative Agent or any Lender with
respect thereto, (L) the claims of any lessee or any Person acting through or
under any lessee or otherwise arising under or as a consequence of any leases
with respect to any Underlying Mortgaged Property, related Property or
collateral, or any claims of an Obligor, (M) any civil penalty or fine assessed
by OFAC against, and all reasonable costs and expenses (including counsel fees
and disbursements) incurred in connection with the defense thereof, by any
Indemnitee as a result of conduct of any Credit Party that violates any sanction
enforced by OFAC, (N) any and all Indemnified Amounts arising out of,
attributable or relating to, accruing out of, or resulting from (1) a past,
present or future violation or alleged violation of any Environmental Laws in
connection with any Property or Underlying Mortgaged Property by any Person or
other source, whether related or unrelated to any other Credit Party or any
Obligor, (2) any presence of any Materials of Environmental Concern in, on,
within, above, under, near, affecting or emanating from any Property or
Underlying Mortgaged Property, (3) the failure to timely perform any
Remedial Work, (4) any past, present or future activity by any Person or other
source, whether related or unrelated to any Credit Party or any Obligor in
connection with any actual, proposed or threatened use, treatment, storage,
holding, existence, disposition or other release, generation, production,
manufacturing, processing, refining, control, management, abatement, removal,
handling, transfer or transportation to or from any Property or Underlying
Mortgaged Property of any Materials of Environmental Concern at any time located
in, under, on, above or affecting any Property or Underlying Mortgaged Property,
(5) any past, present or future actual Release (whether intentional or
unintentional, direct or indirect, foreseeable or unforeseeable) to, from, on,
within, in, under, near or affecting any Property or Underlying Mortgaged
Property by any Person or other source, whether related or unrelated to any
Credit Party or any Obligor, (6) the imposition, recording or filing or the
threatened imposition, recording or filing of any Lien on any Property or
Underlying Mortgaged Property with regard to, or as a result of, any Materials
of Environmental Concern or pursuant to any Environmental Law, or (7) any
misrepresentation or inaccuracy in any representation or warranty in any
material respect or material breach or failure to perform any covenants or other
obligations pursuant to this Agreement, the other Credit Documents or any of the
Mortgage Loan Documents or relating to environmental matters in any way
including, without limitation, under any of the Mortgage Loan Documents or (O)
any Credit Party’s conduct, activities, actions and/or inactions in connection
with, relating to or arising out of any of the foregoing clauses of this Section
that, in each case, results from anything other than any Indemnitee’s gross
negligence or willful misconduct. In any suit, proceeding or action
brought by an Indemnitee in connection with any Collateral or any other
collateral under the Credit Documents for any sum owing thereunder, or to
enforce any provisions of any Collateral or any other collateral under the
Credit Documents, the Credit Parties shall save, indemnify and hold such
Indemnitee harmless from and against all expense, loss or damage suffered by
reason of any defense, set–off, counterclaim, recoupment or reduction of
liability whatsoever of the account debtor, obligor or Obligor thereunder
arising out of a breach by any Credit Party of any obligation thereunder or
arising out of any other agreement, indebtedness or liability at any time owing
to or in favor of such account debtor, obligor or Obligor or its successors from
any Credit Party. Each of the Credit Parties also agrees to reimburse
an Indemnitee as and when billed by such Indemnitee for all such Indemnitee’s
actual, out-of-pocket costs, expenses and
fees incurred in connection with the enforcement or the preservation of such
Indemnitee’s rights under this Agreement, the Credit Documents, the Mortgage
Loan Documents and any transaction or Extension of Credit contemplated hereby or
thereby, including, without limitation, the reasonable fees and disbursements of
its counsel. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section applies, such indemnity shall
be effective whether or not such investigation, litigation or proceeding is
brought by any Credit Party and/or any of their officers, directors,
shareholders, employees or creditors, an Indemnitee or any other Person or any
Indemnitee is otherwise a party thereto and whether or not any transaction
contemplated hereby is consummated.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
68
(ii) Any
amounts subject to the indemnification provisions of this Section shall be paid
by the Credit Parties to the Indemnitee within ten (10) Business Days
following such Person’s demand therefor. For the avoidance of doubt,
an Indemnitee may seek payment of any Indemnified Amount at any time and
regardless of whether a Default or an Event of Default then exists or is
continuing.
(iii) If
for any reason the indemnification provided in this Section is unavailable to
the Indemnitee or is insufficient to hold an Indemnitee harmless, then the
Credit Parties shall contribute to the amount paid or payable by such Indemnitee
as a result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by such
Indemnitee on the one hand and the Credit Parties on the other hand but also the
relative fault of such Indemnitee as well as any other relevant equitable
considerations.
(iv) The
obligations of the Credit Parties under this Article X are joint and
several and shall survive the termination of this Agreement.
(v) Indemnification
under this Section shall be in an amount necessary to make the Indemnitee whole
after taking into account any tax consequences to the Indemnitee of the receipt
of the indemnity provided hereunder, including the effect of such tax or refund
on the amount of tax measured by net income or profits that is or was payable by
the Indemnitee.
(A) in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum
amount need be assigned; and
(B) in
any case not described in paragraph (b)(i)(A) of this Section, the aggregate
principal amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect,
the principal outstanding balance of the Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date) shall not be less than $1,000,000, in the case of any assignment in
respect of a revolving facility, or $1,000,000, in the case of any assignment in
respect of a term facility (provided, however, that
simultaneous assignments shall be aggregated in respect of a Lender and its
Approved Funds), unless the Administrative Agent consents.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
69
(A) the
consent of the Borrowers (such consent not to be unreasonably withheld,
conditioned or delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment, or (y) such
assignment is to an existing Lender, an Affiliate of an existing Lender or an
Approved Fund; and
(B) the
consent of the Administrative Agent (such consent not to be unreasonably
withheld, conditioned or delayed) shall be required for assignments in respect
of a Revolving Commitment if such assignment is to a Person that is not a Lender
with a Commitment in respect of such facility, an Affiliate of such Lender or an
Approved Fund with respect to such Lender.
Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 2.12
and 10.5 with respect to facts
and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
paragraph (d) of this Section.
Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver that
affects such Participant. Subject to paragraph (e) of this
Section, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 2.12 and 2.13 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by
Requirements of Law, each Participant also shall be entitled to the benefits of
Section 10.7 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.9 as though it were a
Lender.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
70
(a) If
an Event of Default shall have occurred and be continuing, each Lender, and each
of their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by Requirements of Law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, or any such Affiliate to or for the
credit or the account of the Borrowers or any other Credit Party against any and
all of the obligations of the Borrowers or such Credit Party now or hereafter
existing under this Agreement or any other Credit Document to such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement or any other Credit Document and although such obligations of the
Borrowers or such Credit Party may be contingent or unmatured or are owed to a
branch or office of such Lender different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender
and its respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender or its
respective Affiliates may have. Each Lender agrees to notify the
Borrowers and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
(b) If
any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Loans or other obligations hereunder resulting in such Lender’s receiving
payment of a proportion of the aggregate principal amount of its Loans and
accrued interest thereon or other such obligations greater than its pro rata share thereof as
provided herein, then the Lender receiving such greater proportion shall
(i) notify the Administrative Agent of such fact, and (ii) purchase
(for cash at face value) participations in the Loans and such other obligations
of the other Lenders, or make such other adjustments as shall be equitable, 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 and other amounts owing them, 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 (A) any
payment made by the Borrowers pursuant to and in accordance with the express
terms of this Agreement or (B) 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 Credit Parties or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply).
(c) Each
Credit Party consents to the foregoing and agrees, to the extent it may
effectively do so under Requirements of Law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against each
Credit Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of each Credit
Party in the amount of such participation.
The table
of contents and the Section and subsection headings herein are intended for
convenience only and shall be ignored in construing this Agreement.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
71
(b) Electronic Execution of
Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as
the case may be, to the extent and as provided for in any Requirement of Law,
including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
This
Agreement and the other Credit Documents represent the agreement of the
Borrowers, the other Credit Parties, the Administrative Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent, the
Borrowers, the other Credit Parties, or any Lender relative to the subject
matter hereof not expressly set forth or referred to herein or
therein.
This
Agreement shall be governed by, and construed in accordance with, the law of the
State of New York.
(a) Consent to
Jurisdiction. Each of the Borrowers and each other Credit Party
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the courts of the State of 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 Credit Document, or for recognition or enforcement of any
judgment, and each of the parties hereto irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York sitting State court or,
to the fullest extent permitted by Requirements of Law, in 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
Requirements of Law. Nothing in this Agreement or in any other Credit
Document 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 Credit Document against the Borrowers or any other Credit Party or its
properties in the courts of any jurisdiction.
The
provisions of this Section shall survive the termination of this Agreement and
the payment in full of the Obligations.
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 Affiliates and to its and its Affiliates’ respective partners,
directors, officers, employees, agents, advisors and other representatives (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 purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by Requirements of Law or by any
subpoena or similar legal process, (d) to any other party hereto,
(e) in connection with the exercise of any remedies hereunder, under any
other Credit Document or any action or proceeding relating to this Agreement,
any other Credit Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement and/or the other Credit Documents, (g) (i) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Credit Parties and their obligations, (ii) an investor or
prospective investor in securities issued by an Approved Fund that also agrees
that Information shall be used solely for the purpose of evaluating an
investment in such securities issued by the Approved Fund, (iii) a trustee,
collateral manager, custodian, servicer, backup servicer, noteholder or secured
party in connection with the administration, servicing and reporting on the
assets serving as collateral for securities issued by an Approved Fund, or
(iv) a nationally recognized rating agency that requires access to
information regarding the Credit Parties, the Loans and Credit Documents in
connection with ratings issued in respect of securities issued by an Approved
Fund (in each case, 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), (h) with the consent of
the applicable Credit Parties or (i) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any Lender,
or any of their respective Affiliates on a nonconfidential basis from a source
other than the Credit Parties.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
72
For
purposes of this Section, “Information” means
all information received from the Credit Parties or any of their Subsidiaries
relating to the Credit Parties or any of their Subsidiaries or any of their
respective businesses, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Credit Parties or any of their Subsidiaries, provided that, in the
case of information received from the Credit Parties or any of their
Subsidiaries 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.
The
provisions of this Section shall survive the termination of this Agreement and
the payment in full of the Obligations.
The
Borrowers and the other Credit Parties each hereby acknowledge
that:
(a) it
has been advised by counsel in the negotiation, execution and delivery of each
Credit Document;
(b) neither
the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to the Borrowers or any other Credit Party arising out of or in connection
with this Agreement and the relationship between the Administrative Agent and
the Lenders, on one hand, and the Borrowers and the other Credit Parties, on the
other hand, in connection herewith is solely that of debtor and creditor;
and
(c) no
joint venture exists among the Lenders or among the Borrowers or the other
Credit Parties, the Lenders and the Administrative Agent.
EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
REQUIREMENTS OF 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
OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
The
provisions of this Section shall survive the termination of this Agreement and
the payment in full of the Obligations.
Each
Lender and the Administrative Agent (for itself and not on behalf of any other
party) hereby notifies the Borrowers that, pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies the Borrowers and the other Credit Parties, which information
includes the name and address of the Borrowers and the other Credit Parties and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrowers and the other Credit Parties in accordance
with the Patriot Act.
Each
Credit Party acknowledges and agrees that it was represented by counsel in
connection with the execution and delivery of this Agreement and the other
Credit Documents to which it is a party, that it and its counsel reviewed and
participated in the preparation and negotiation hereof and thereof and that any
rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation hereof or
thereof.
This
Credit Agreement shall be a continuing agreement and shall remain in full force
and effect until all Loans, interest, fees and other Obligations (other than
those obligations that expressly survive the termination of this Credit
Agreement) have been paid in full and all Commitments have been
terminated. Upon termination, the Credit Parties shall have no
further obligations (other than those obligations that expressly survive the
termination of this Credit Agreement) under the Credit Documents and the
Administrative Agent shall, at the request and expense of the Borrowers, deliver
all the Collateral in its possession to the Borrowers and release all Liens on
the Collateral; provided that should
any payment, in whole or in part, of the Obligations be rescinded or otherwise
required to be restored or returned by the Administrative Agent or any Lender,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, then the Credit Documents shall automatically be reinstated and all
Liens of the Administrative Agent shall reattach to the Collateral and all
amounts required to be restored or returned and all costs and expenses incurred
by the Administrative Agent or any Lender in connection therewith shall be
deemed included as part of the Obligations.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
73
Each
Person signing a Lender Consent (a) approves of this Agreement and the
other Credit Documents, (b) authorizes and appoints the Administrative
Agent as its agent in accordance with the terms of Article VIII,
(c) authorizes the Administrative Agent to execute and deliver this
Agreement on its behalf, and (d) is a Lender hereunder and therefore shall
have all the rights and obligations of a Lender under this Agreement as if such
Person had directly executed and delivered a signature page to this
Agreement.
Each of
the Borrowers hereby appoint the Administrative Borrower to act as its agent for
all purposes under this Agreement (including, without limitation, with respect
to all matters related to the borrowing and repayment of Loans) and agree that
(a) the Administrative Borrower may execute such documents on behalf of such
Borrower as the Administrative Borrower deems appropriate in its sole discretion
and each Borrower shall be obligated by all of the terms of any such document
executed on its behalf, (b) any notice or communication delivered by the
Administrative Agent or the Lender to the Administrative Borrower shall be
deemed delivered to each Borrower and (c) the Administrative Agent or the
Lenders may accept, and be permitted to rely on, any document, instrument or
agreement executed by the Administrative Borrower on behalf of each
Borrower.
The Credit Parties each hereby
knowingly, voluntarily and intentionally waives any right to assert a
counterclaim, other than a compulsory counterclaim, in any action or proceeding
brought against it by the Administrative Agent, the Lenders or any of the
Affiliates or agents of the foregoing. The provisions of this Section
shall survive the termination of this Agreement and the payment in full of the
Obligations.
In the
event of any conflict between the terms of this Agreement, any other Credit
Document or any Confirmation with respect to any Collateral, the documents shall
control in the following order of priority: first, the terms of the
related Confirmation shall prevail, then the terms of this Agreement shall
prevail, and then the terms of the other Credit Documents shall
prevail.
No
recourse under or with respect to any obligation, covenant or agreement
(including, without limitation, the payment of any fees or any other
obligations) of the Administrative Agent, the Lenders, or the Credit Parties, as
contained in this Agreement, the Credit Documents or any other agreement,
instrument or document entered into by the Administrative Agent, the Lenders,
the Credit Parties or any such party pursuant hereto or thereto or in connection
herewith or therewith shall be had against any administrator of the
Administrative Agent, the Lenders, or the Credit Parties or any incorporator,
Affiliate (direct or indirect), owner, member, partner, stockholder, officer,
director, employee, agent or attorney of the Administrative Agent, the Lenders,
or the Credit Parties or of any such administrator, as such, by the enforcement
of any assessment or by any legal or equitable proceeding, by virtue of any
statute or otherwise; it being expressly agreed
and understood that the agreements of the Administrative Agent, the
Lenders or the Credit Parties contained in this Agreement, the Credit Documents
and all of the other agreements, instruments and documents entered into by it
pursuant hereto or thereto or in connection herewith or therewith are, in each
case, solely the corporate obligations of the Administrative Agent, the Lenders
or the Credit Parties and that no personal liability whatsoever shall attach to
or be incurred by any administrator of the Administrative Agent, the Lenders or
the Credit Parties or any incorporator, owner, member, partner, stockholder,
Affiliate (direct or indirect), officer, director, employee, agent or attorney
of the Administrative Agent, the Lenders or the Credit Parties or of any such
administrator, as such, or any other of them, under or by reason of any of the
obligations, covenants or agreements of the Administrative Agent, the Lenders or
the Credit Parties contained in this Agreement, the Credit Documents or in any
other such instruments, documents or agreements, or that are implied therefrom,
and that any and all personal liability of every such administrator of the
Administrative Agent, the Lenders or the Credit Parties and each incorporator,
owner, member, partner, stockholder, Affiliate (direct or indirect), officer,
director, employee, agent or attorney of the Administrative Agent, the Lenders,
the Credit Parties or of any such administrator, or any of them, for breaches by
the Administrative Agent, the Lenders, or the Credit Parties of any such
obligations, covenants or agreements, which liability may arise either at common
law or at equity, by statute or constitution, or otherwise, is hereby expressly
waived as a condition of and in consideration for the execution of this
Agreement. The provisions of this Section shall survive the
termination of this Agreement and the payment in full of the
Obligations.
(a) The
Credit Parties shall cause all financing statements and continuation statements
and any other necessary documents covering the right, title and interest of the
Administrative Agent to the Collateral to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by Requirements of Law fully to
preserve and protect the right, title and interest of the Administrative Agent
(on behalf of the Lenders) hereunder to all Property comprising the
Collateral. The Credit Parties shall deliver to the Administrative
Agent file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing. The Credit Parties shall execute
any and all documents reasonably required to fulfill the intent of this
Section.
(b) The
Credit Parties agree that from time to time, at their expense, they will
promptly execute and deliver all instruments and documents, and take all
actions, that the Administrative Agent or any Lender may reasonably request in
order to perfect, protect or more fully evidence the Loans hereunder and the
security interest granted in the Collateral, or to enable the Administrative
Agent to exercise and enforce their rights and remedies hereunder or under any
Credit Document.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
74
(c) If
the Credit Parties fail to perform any of their obligations hereunder, the
Administrative Agent may (but shall not be required to) perform, or cause
performance of, such obligation; and the Administrative Agent’s costs and
expenses incurred in connection therewith shall be payable by the
Borrowers. The Credit Parties irrevocably appoint the Administrative
Agent as their attorney-in-fact and authorize the Administrative Agent to act on
behalf of the Credit Parties (i) to execute on behalf of the Credit Parties
as debtor and to file financing statements necessary or desirable in the
Administrative Agent’s discretion to perfect and to maintain the perfection and
priority of the interest in the Collateral, and (ii) to file a carbon,
photographic or other reproduction of this Agreement or any financing statement
with respect to the Collateral as a financing statement in such offices as the
Administrative Agent in its discretion deems necessary or desirable to perfect
and to maintain the perfection and priority of the interests in the
Collateral. This appointment is coupled with an interest and is
irrevocable.
(d) Without
limiting the generality of the foregoing, the Credit Parties will not earlier
than six (6) months and not later than three (3) months prior to the
fifth anniversary of the date of filing of the financing statement referred to
in Section 4.1(d) or any other financing statement filed pursuant to this
Agreement, the Credit Documents or in connection with any Loan hereunder, unless
this Agreement has terminated in accordance with the provisions
hereof:
(i) execute
and deliver and file or cause to be filed an appropriate continuation statement
with respect to such financing statement; and
(ii) deliver
or cause to be delivered to the Administrative Agent an Opinion of Counsel for
the Credit Parties, confirming and updating the opinion delivered pursuant to
Section 4.1(c) with respect to perfection and otherwise to the effect that the
security interest hereunder continues to be an enforceable and perfected
security interest, subject to no other Liens of record except as provided herein
or otherwise permitted hereunder, which opinion may contain usual and customary
assumptions, limitations and exceptions.
Each
Credit Party hereby waives any right of setoff it may have or to which it may be
entitled under this Agreement, the other Credit Documents or otherwise from time
to time against the Administrative Agent, any Lender, or any Property or assets,
or any of the foregoing.
Each
Credit Party acknowledges that the Administrative Agent and each Lender has the
right to perform continuing due diligence reviews with respect to the Collateral
and the Credit Parties and Consolidated Subsidiaries of the foregoing for
purposes of verifying compliance with the representations, warranties,
covenants, agreements and specifications made hereunder, or otherwise, and each
Credit Party agrees that upon reasonable (but no less than one (1) Business
Day) prior notice, unless an Event of Default shall have occurred, in which case
no notice is required, to the Credit Parties, as applicable, the Administrative
Agent, the Lenders or their authorized representatives shall be permitted during
normal business hours to examine, inspect, and make copies and extracts of, the
Collateral and any and all documents, records, agreements, instruments or
information relating to such Collateral, the Credit Parties and the Consolidated
Subsidiaries of the foregoing in the possession or under the control of any
Credit Party. Each Credit Party also shall make available to the
Administrative Agent a knowledgeable financial or accounting officer for the
purpose of answering questions respecting the Collateral, the Credit Parties and
the Consolidated Subsidiaries of the foregoing. Each Credit Party
shall also make available to the Administrative Agent and the Lenders any
accountants or auditors of any Credit Party to answer any questions or provide
any documents as the Administrative Agent or the Lenders may
require. The Administrative Agent has the right to request appraisals
for the Collateral and proposed Collateral and the Borrowers shall pay all costs
related to any appraisals required by the Administrative Agent in connection
with the Collateral or proposed Collateral. The Credit Parties
acknowledge that the Administrative Agent has the right at any time to review
all aspects of the Collateral and the Asset Value thereof, which review shall
occur no less than quarterly and such reviews may result in mandatory
prepayments under Section 2.5.
The Lenders and the Borrowers shall
treat all Loans hereunder as indebtedness of the Borrowers for United States
federal income tax purposes.
(a) At
all times during which there is more than one (1) Borrower under this
Agreement, each Borrower hereby acknowledges and agrees that (i) such
Borrower shall be jointly and severally liable to the Administrative Agent and
the Lenders to the maximum extent permitted by the Requirements of Law for all
representations, warranties, covenants, duties and indemnities of the Borrowers,
arising under this Agreement and the other Credit Documents, as applicable, and
the Obligations, (ii) such Borrower has consented to the Administrative Borrower
delivering all Notices of Borrowing on behalf of all Borrowers and any such
Notice of Borrowing delivered by the Administrative Borrower on behalf of the
Borrowers is binding upon and enforceable against each Borrower, (iii) the
liability of each Borrower (A) shall be absolute and unconditional and
shall remain in full force and effect (or be reinstated) until all the
Obligations shall have been paid in full and the expiration of any applicable
preference or similar period pursuant to any bankruptcy, insolvency,
reorganization, moratorium or similar law, or at law or in equity, without any
claim having been made before the expiration of such period asserting an
interest in all or any part of any payment(s) received by the Administrative
Agent, and (B) until such payment has been made, shall not be discharged,
affected, modified or impaired on the happening from time to time of any event,
including, without limitation, any of the following, whether or not with notice
to or the consent of the Credit Parties or any other Person, (1) the
waiver, compromise, settlement, release, termination or amendment (including,
without limitation, any extension or postponement of the time for payment or
performance or renewal or refinancing) of any or all of the obligations or
agreements of any Credit Party under this Agreement or any Credit Document,
(2) the failure to give notice to the Credit Parties of the occurrence of
an Event of Default under any of the Credit Documents, (3) the release,
substitution or exchange by the Administrative Agent of any or all of the
Collateral (whether with or without consideration) or the acceptance by the
Administrative Agent of any additional collateral or the availability or claimed
availability of any other collateral or source of repayment or any nonperfection
or other impairment of collateral, (4) the release of any Person primarily
or secondarily liable for all or any part of the Obligations, whether by the
Administrative Agent or in connection with any voluntary or involuntary
liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors or similar event or proceeding affecting any or all of
the Credit Parties or any other Person who, or any of whose Property, shall at
the time in question be obligated in respect of the Obligations or any part
thereof, or (5) to the extent permitted by Requirements of Law, any other
event, occurrence, action or circumstance that would, in the absence of this
Section, result in the release or discharge of any or all of the Borrowers from
the performance or observance of any obligation, covenant or agreement contained
in this Agreement or the Credit Documents, (iv) the Administrative Agent
shall not be required first to initiate any suit or to exhaust its remedies
against the Credit Parties or any other Person to become liable, or against any
of the Collateral, in order to enforce this Agreement or the Credit Documents
and the Credit Parties expressly agree that, notwithstanding the occurrence of
any of the foregoing, each Borrower shall be and remain directly and primarily
liable for all sums due under this Agreement or any of the other Credit
Documents, (v) when making any demand hereunder against any Borrower, the
Administrative Agent or the Lenders may, but shall be under no obligation to,
make a similar demand on the other Borrowers, and any failure by the
Administrative Agent or Lenders to make any such demand or to collect any
payments from the other Borrowers, or any release of such other Borrowers, shall
not relieve any Borrower in respect of which a demand or collection is not made
or the Borrowers not so released of their obligations or liabilities hereunder,
and shall not impair or affect the rights and remedies, express or implied, or
as a matter of law, of the Administrative Agent or the Lenders against the
Borrowers and (vi) on disposition by the Administrative Agent of any
Property encumbered by any Collateral, each Borrower shall be and shall remain
jointly and severally liable for any deficiency.
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
75
(b) Each
Borrower hereby agrees that, to the extent another Borrower shall have paid more
than its proportionate share of any payment made hereunder, the Borrowers shall
be entitled to seek and receive contribution from and against any other
Borrowers which have not paid their proportionate share of such payment; provided however, that the
provisions of this Section shall in no respect limit the obligations and
liabilities of each Borrower to the Administrative Agent and the Lenders and,
notwithstanding any payment or payments made by a Borrower (the “paying Borrower”)
hereunder or any set-off or application of funds of the paying Borrower by the
Administrative Agent or the Lenders, the paying Borrower shall not be entitled
to be subrogated to any of the rights of the Administrative Agent or the Lenders
against any other Borrowers or any collateral security or guarantee or right of
offset held by the Administrative Agent or the Lenders, nor shall the paying
Borrower seek or be entitled to seek any contribution or reimbursement from the
other Borrowers in respect of payments made by the paying Borrower hereunder,
until all amounts owing to the Administrative Agent and the Lenders by the
Borrowers under the Credit Documents and the Obligations (but only to the extent
that an event of default, an event that, with the notice or the lapse of time,
would become an event of default, or any acceleration has occurred with respect
to such other Obligations) are paid in full. If any amount shall be
paid to the paying Borrower on account of such subrogation rights at any time
when all such amounts shall not have been paid in full, such amount shall be
held by the paying Borrower in trust for the Administrative Agent, segregated
from other funds of the paying Borrower, and shall, forthwith upon receipt by
the paying Borrower, be turned over to the Administrative Agent in the exact
form received by the paying Borrower (duly indorsed by the paying Borrower to
the Administrative Agent, if required), to be applied against amounts owing to
the Administrative Agent and the Lenders by the Borrowers under the Credit
Documents and the Obligations (but only to the extent that an event of default,
an event that, with the notice or the lapse of time, would become an event of
default, or any acceleration has occurred with respect to such other
Obligations) in such order as the Administrative Agent may determine in its
discretion.
(c) The
obligations of the Borrowers and the Guarantor under the Credit Documents are
full recourse obligations to each Borrower and the Guarantor and the Borrowers
and the Guarantor hereby forever waive, demise, acquit and discharge any and all
defenses, and shall at no time assert or allege any defense, to the
contrary.
The
amendments and modifications to this Agreement shall amend and modify the other
Credit Documents to the extent such other Credit Documents are not separately
amended or modified on the Restatement Date. The Credit Parties agree
that all other Credit Documents that are not separately amended or modified on
the Restatement Date are binding and enforceable obligations and are in full
force and effect, as modified and amended by this Agreement. Upon the
effectiveness of this Agreement, each reference to Wachovia Bank, National
Association in any other Credit Document, or document, instrument or agreement
executed and/or delivered in connection therewith, shall mean and be a reference
to Xxxxx Fargo Bank, National Association (as successor-by-merger to Wachovia
Bank, National Association) unless the context otherwise requires.
[Signature
Pages Follow]
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
76
BORROWER:
|
CAPLEASE DEBT FUNDING,
LP,
|
||
a
Delaware limited partnership
|
|||
By:
|
CLF
OP GENERAL PARTNER LLC,
|
||
its
General Partner
|
|||
By:
|
CapLease,
Inc., the sole member
|
||
of
CLF OP GENERAL PARTNER LLC
|
|||
By:
|
/s/ Xxxxxx X. Xxxxx
|
||
Name:
Xxxxxx X. Xxxxx
|
|||
Title:
Senior Vice
President
|
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
S-1
GUARANTORS:
|
CAPLEASE,
INC., a Maryland corporation
|
||||
By:
|
/s/
Xxxxxx X. Xxxxx
|
||||
Name:
Xxxxxx X. Xxxxx
|
|||||
Title:
Senior Vice President
|
|||||
CAPLEASE,
LP, a Delaware limited partnership, for itself and on behalf
of
certain
special-purpose
entity subsidiaries thereof
|
|||||
By:
|
CLF
OP GENERAL PARTNER LLC,
|
||||
its General Partner | |||||
By:
|
CapLease,
Inc., the sole member
|
||||
of
CLF OP GENERAL PARTNER LLC
|
|||||
By: |
/s/
Xxxxxx X. Xxxxx
|
||||
Name:
Xxxxxx X. Xxxxx
|
|||||
Title:
Senior Vice President
|
|||||
CAPLEASE SERVICES CORP., a Delaware corporation | |||||
By:
|
/s/
Xxxxxx X. Xxxxx
|
||||
Name:
Xxxxxx X. Xxxxx
|
|||||
Title:
Senior Vice President
|
|||||
PREFCO
II LIMITED PARTNERSHIP,
|
|||||
a
Connecticut limited partnership
|
|||||
By:
|
PREFCO
II GP LLC, its sole general partner
|
||||
By:
|
/s/
Xxxxxx X. Xxxxx
|
||||
Name:
Xxxxxx X. Xxxxx
|
|||||
Title:
Senior Vice
President
|
First
Amended and Restated Credit Agreement
(Xxxxx
Fargo/Caplease)
S-2
ADMINISTRATIVE AGENT:
|
XXXXX
FARGO BANK, NATIONAL
|
||
ASSOCIATION, as
Administrative Agent on behalf of the Lenders
|
|||
By:
|
/s/ Xxxx Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
|
|||
Title:
Managing Director
|
|||
LENDER:
|
XXXXX
FARGO BANK, NATIONAL
|
||
ASSOCIATION, as
Lender
|
|||
By:
|
/s/ Xxxx Xxxxxx
|
||
Name:
Xxxx Xxxxxx
|
|||
Title:
Managing Director
|
|||
(Xxxxx
Xxxxx/Xxxxxxxx)
X-0