Exhibit (f)(4)
Consent,
Waiver And Agreement
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THIS CONSENT, WAIVER AND AGREEMENT, dated as of July 8, 2005 (this “Agreement”)
is made by and among Wilton Funding, LLC, a Delaware limited liability company
(“ Wilton” or “ Borrower”). Wilton Funding Holdings, LLC, a Delaware limited
liability company (“ Holdings” and, together with Wilton, the “ Borrower”),
Patriot Capital Funding, Inc., a Delaware corporation (“ Patriot”), and iStar
Financial Inc., a Maryland corporation (“ iStar”), Capitalized terms used but not
defined herein shall have the respective meanings assigned to such terms in that
certain Credit Agreement, dated as of February 11, 2003, by and between Wilton
and iStar (as heretofore amended, supplemented, restated or otherwise modified
from time to time, the “ iStar Credit Agreement”). |
RECITALS
WHEREAS, Wilton is a wholly-owned subsidiary of Holdings;
WHEREAS, Holdings desires to merge (the “Merger”) Wilton with and into
Patriot, with Patriot as the surviving entity (the “Surviving Entity”) and,
immediately thereafter, cause the Surviving Entity to (i) effect a stock split
(the “Stock Split”) and (ii) offer shares of common stock in a qualified initial
public offering pursuant to a registration statement filed with the Securities
and Exchange Commission (the “QIPO” and, together with the Merger and the Stock
Split, the “Transaction”):
WHEREAS, the Borrower has informed iStar of its desire to engage in the
Transaction and has requested that iStar waive certain provisions of, and
certain obligations of Borrower under, the iStar Credit Agreement, that certain
Security Agreement dated February 11, 2003 between Wilton and iStar (the “Wilton
Security Agreement”), that certain Guaranty dated February 11, 2003 by Holdings
in favor of iStar (the “Guaranty”), and that certain Pledge Agreement dated
February 11, 2003 between Holdings and iStar (the “Pledge Agreement” and,
together with the iStar Credit Agreement, the Wilton Security Agreement and the
Guaranty, each as heretofore amended, supplemented or otherwise modified, the
"iStar Credit Facility Documents”), all so as to permit the Borrower to
consummate the Transaction;
WHEREAS, the Surviving Entity shall succeed to all of the liabilities,
duties and obligations of the Borrower under the iStar Credit Agreement
following consummation of the Merger and it is intended, in connection with the
Transaction and within the time frame provided below, that the Surviving Entity
shall repay in full all amounts outstanding under the iStar Credit Facility
Documents, including any prepayment penalties thereunder, and that the Liens of
iStar in the Collateral shall, until such prepayment, continue to be valid,
first priority perfected security interests in all respects;
WHEREAS, Patriot Partners LP, a Bahamas limited partnership (“Patriot
Partners”), owns 100% of the issued and outstanding capital Stock of Patriot
and, together with Holdings, shall continue to own not less than 99% of the
issued and outstanding capital Stock of the Surviving Entity following the
Merger (but prior to the consummation of the QIPO) and has agreed to guaranty
the Obligations of the Surviving Entity under the iStar Credit Agreement
after
consummation of the Merger and to secure its obligations under such
guaranty by pledging all capital Stock of the Surviving Entity to iStar as
additional collateral security for the Obligations; and
WHEREAS, iStar is willing to consent to the Transaction and to waive such
provisions of the iStar Credit Facility Documents as are necessary to permit
such Transaction, all subject to and on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the Recitals set forth above, which are
incorporated below in their entirety, the promises of the parties hereunder and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree, as follows:
1. iStar Consent and Waiver. Effective upon satisfaction of the conditions
precedent set forth in Section 4 below and in reliance of the agreements and
covenants set forth herein, iStar hereby consents to the Transaction pursuant to
and in accordance with, inter alia, the terms of the Merger Agreement and hereby
waives the provisions of the iStar Credit Agreement and the other iStar Credit
Facility Documents, to the extent, but only to the extent, necessary to permit
the consummation of the Transaction or as could reasonably be construed to
prohibit the consummation thereof. The foregoing is a limited, one time consent
and waiver in contemplation of repayment ensuing from consummation of the QIPO
and is not intended as, nor should it be construed as being, a consent to or
waiver of any other provision of the iStar Credit Agreement or of any other
iStar Credit Facility Document and, except as expressly set forth herein, shall
not be deemed to: (a) constitute a waiver of any Event of Default, (b)
constitute a waiver of any of the rights or remedies of iStar under the iStar
Credit Facility Documents (all such rights and remedies being expressly reserved
by iStar), (c) establish a custom or course of dealing or conduct between iStar,
Borrower or any other Person, or (d) promise to consent to any other action or
request of Borrower, whether in connection with the transactions contemplated
hereunder or otherwise. The consents and waivers granted hereunder shall not
obligate iStar to make any other or additional consents or waivers, whether
related or unrelated to the foregoing consents and waivers.
Without limiting or qualifying the generality of the foregoing, iStar
hereby waives the following provisions of the iStar Credit Facility Documents,
but only with respect to and to the extent necessary to the consummation of the
Transaction, and provided that any waiver granted hereunder by iStar shall be
null and void, ab initio, on the first to occur of (the
“Waiver Termination Date”) (i) August 15, 2005 and (ii) ten days following the Merger:
(a) The requirement in Section 5.01(g) of the iStar Credit Agreement to
give 30 days prior written notice of any change to Borrower’s limited liability
company status;
(b) The requirements in Section 5.01 (j) of the iStar Credit Agreement,
provided that Surviving Entity shall continue to perform all services and
functions heretofore performed by it pursuant to the Servicing Agreement;
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(c) The negative covenant in Section 5.02(d)(i) of the iStar Credit
Agreement restricting the ability of Borrower to merge with any other Person,
dissolve itself or modify its organizational documents;
(d) The negative covenant in Section 5,02(d)(iii) of the iStar Credit
Agreement prohibiting Borrower to modify its organizational documents;
(e) The negative covenant in Section 5.02(i) (Security Issuances) of the
iStar Credit Agreement regarding the issuance of equity securities;
(f) The negative covenants in Section 5.02(m) restricting transactions
among Affiliates of Borrower;
(g) The restriction on the disclosure of the terms and documents relating
to the iStar Credit Agreement, including but not limited to this Agreement and
the use of iStar’s name as lender under Section 8.12 of the iStar Credit
Agreement, but only to the extent required to be disclosed by applicable SEC
regulations or applicable law, used in connection with consummating the
Transaction, used in documents filed with the SEC or otherwise in connection
with promoting or facilitating the QIPO; and
(h) The requirement to update schedules under Section 2(e) of the Security
Agreement within five (5) days after the Transaction, solely as may otherwise be
required in connection with the Transaction.
2. Senior Liens. Patriot and the Borrower each hereby acknowledges,
warrants and agrees that, notwithstanding the consummation of the Transaction
(including the Merger), any and all obligations, liabilities and indebtedness of
Borrower under the iStar Credit Agreement will be, by operation of law and by
express assumption, assumed and affirmed by the Surviving Entity and that all
security interests in and Liens upon the Collateral granted to iStar by the
Borrower under the iStar Credit Facility Documents shall continue and remain as
valid, first priority perfected security interests, enforceable against the
Surviving Entity and the Collateral in all respects.
3. Repayment in Full. Borrower and Patriot each hereby agrees that upon or
prior to the Waiver Termination Date, Borrower or the Surviving Entity, as
applicable, shall pay and satisfy in full, in cash, all Loans and other
Obligations, together with the payment of any applicable prepayment premiums in
accordance with Section 2.03(c) of the iStar Credit Agreement.
4. Conditions. The effectiveness of this Agreement, including the waivers
and consents hereunder, is subject to the following conditions precedent or
subsequent, as the case may be:
(a) the execution and delivery to iStar of this Agreement, together with
any and all consents, acknowledgements and ratifications hereof, by each Credit
Party and by Patriot;
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(b) the delivery to iStar of such other documents and other items as iStar
shall reasonably require, all in form and substance reasonably satisfactory to
iStar, including, without limitation, (i) a joinder by Patriot to that certain
Security Agreement dated February 11, 2003 made by Borrower in favor of iStar
and (ii) evidence that all liens and security interests in any assets of Patriot
in favor or for the benefit of any Affiliate thereof (including its sole
shareholder, Patriot Partners LP) have been terminated, released and that all
debt secured thereby has been paid and discharged in full and that, except for
such statutory or other Hens reasonably acceptable to iStar, the assets of
Patriot are free and clear of all liens, adverse claims and encumbrances;
(c) concurrently with the consummation of the Merger if requested by iStar,
butt in any event no later than four Business Days after consummation of the
Merger, the execution and delivery to and for the benefit of iStar by Patriot
Partners, of (i) an assumption or affirmation agreement from the Surviving
Entity with respect to the Obligations, (ii) a guaranty by Patriot Partners of
the Obligations, (iii) a stock pledge agreement in form and substance acceptable
to iStar, pledging to iStar 100% of the issued and outstanding capital Stock of
the Surviving Entity owned by Patriot Partners as security for the obligations
of Patriot Partners under its guaranty, together with irrevocable proxies and
stock powers executed in blank, (iv) an amendment to any UCC financing
statements as iStar shall require, and (v) such opinions of legal counsel to
Patriot Partners and/or the Surviving Entity as iStar shall reasonably require;
and
(d) there shall be no Default or Event of Default in existence.
The execution and delivery of this Agreement by iStar shall conclusively
evidence the satisfaction or waiver of the conditions precedent set forth in
clauses (a), (b) and (d) above, but shall, in no way, limit the applicability of
the conditions subsequent set forth in clause (c) above.
5. Reaffirmation. Each Credit Party, as guarantors, debtors, grantors,
pledgors (including in connection with any negative pledges), assignors, or in
other similar capacities in which such parties guarantee the liabilities and
obligations of Borrower, grant Hens or security interests in their properties or
otherwise act as accommodation parties, as the case may be, in any case under
the Credit Documents, each ratifies and reaffirms (by signing a counterpart of
this Agreement or a separate Acknowledgement hereof) all of its payment and
performance obligations, contingent or otherwise, affirmative or negative, under
each of such existing Credit Documents to which it is a party and, to the extent
such party granted liens on or security interests in any of its properties
pursuant to any such existing Credit Documents as security for the Borrower’s
obligations under or with respect to the Credit Agreement, each hereby ratifies
and reaffirms such grant of liens and security interests and confirms and agrees
that such liens and security interests continue to secure all of the liabilities
and obligations of Borrower owing to Lender. Each of the foregoing hereby
acknowledges that each of the Credit Documents remains in full force and effect
and is hereby ratified and confirmed. Without limiting or qualifying the
foregoing in any manner, Holdings hereby acknowledges and affirms the facts set
forth in the Recitals hereto and affirms that nothing contained herein shall
modify in any respect whatsoever its guaranty of the obligations of Borrower to
iStar pursuant to the terms of the Guaranty and reaffirms that the Guaranty and
the Pledge Agreement are and shall continue to remain in full force and effect
following the consummation of the Merger. The execution of this
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Agreement shall not operate as a waiver of any right, power or remedy of Lender
nor constitute a waiver of any provision of any of the Credit Documents, except
as expressly set forth herein and shall be limited to the particular instance
expressly set forth. The Borrower and each Credit Party confirms and agrees that
the Credit Agreement, the Security Agreement and each Credit Document and each
and every covenant, condition, obligation, representation (except those
representations which relate only to a specific date, which are confirmed as of
such date only), warranty and provision set forth therein are, and shall
continue to be, in full force and effect and are hereby confirmed, reaffirmed
and ratified in all respects.
6. Representations and Warranties. To induce Lender to enter into this
Agreement, each of the Borrower and Patriot represents and warrants to Lender
that (i) no Default or Event of Default exists, (ii) the execution, delivery and
performance by it of this Agreement are within its corporate power, have been
duly authorized by all necessary corporate action and do not and will not
contravene or conflict with any provision of law applicable to Borrower or
Patriot, as applicable, the Articles of Organization or Operating Agreement of
Borrower or of Patriot, or any order, judgment or decree of any court or other
agency of government or any contractual obligation binding upon Borrower or upon
Patriot; and (iii) this Agreement is the legal, valid and binding obligation of
the Borrower and of Patriot, enforceable against such Person in accordance with
its terms, subject to the effects of bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent conveyance and other similar laws affecting
the rights and remedies of creditors generally and general principles of equity,
whether applied by a court of law or equity.
7. Fees. Borrower and Patriot hereby agree to pay to iStar an Amendment and
Waiver Fee in the amount of $20,000 (the “Amendment Fee”) in connection with and
to compensate iStar with respect to the preparation, negotiation, execution and
delivery of this Agreement. The Amendment Fee shall be deemed fully earned and
non-refundable upon execution and delivery of this Agreement, but shall be due
and payable on the Waiver Termination Date, unless the Transaction is
consummated and the Obligations are fully paid and discharged as otherwise
contemplated hereunder on or before such date (in which event, the Amendment Fee
automatically shall be waived by iStar). The requirement to pay the Amendment
Fee shall be exclusive and independent of any other fee, charge or payment due,
payable or otherwise required in connection with any future amendment or
agreement relating to the iStar Credit Agreement.
8. Miscellaneous.
Section 8.01 Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original but all of which when taken together
shall constitute one contract, and shall become effective when copies hereof
which, when taken together, bear the signatures of each of the parties hereto
shall be delivered to Wilton. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile shall be effective as delivery of a manually
executed signature page hereto.
Section 8.02 Governing Law. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE
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IN WITNESS WHEREOF, the parties hereto have caused this Consent, Waiver and
Agreement to be duly executed and delivered as of the day and year first above
written.
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WILTON FUNDING
HOLDINGS, LLC,
a Delaware limited liability company |
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WILTON FUNDING,
LLC,
a Delaware limited liability company |
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By:
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Wilton Funding Holdings, LLC,
a Delaware limited liability company |
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By:
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PATRIOT CAPITAL
FUNDING, INC.,
a Delaware corporation |
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iSTAR FINANCIAL
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