FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER
FOURTH
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
WAIVER
This
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND WAIVER (this “Amendment”)
is entered into and effective as of January 29, 2007
among FORTRESS INVESTMENT GROUP LLC, a Delaware limited liability company and
certain of its Affiliates (collectively the “Borrowers”),
certain Subsidiaries and Affiliates of the Borrowers
(the “Guarantors”),
the Lenders party hereto and BANK OF AMERICA, N.A., as Administrative Agent and
L/C Issuer (the “Administrative
Agent”).
Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement (as
defined below).
RECITALS
WHEREAS,
the Borrowers, the Guarantors, the Lenders and the Administrative Agent
are
party to that certain Amended and Restated Credit Agreement dated as of June
23, 2006 (as amended
and modified from time to time, the “Credit
Agreement”);
WHEREAS,
the Borrowers are in violation of Section 8.05(h) of the Credit Agreement as a
result of the Disposition of Promote Fees related to FIF IV (and its related
funds) and Drawbridge
Long Dated Value Fund, L.P (and its related funds) in excess of the amounts
permitted
thereunder;
WHEREAS,
the Borrowers have requested that the Lenders waive any Default or Event
of
Default that has resulted from such violation of Section 8.05(h);
WHEREAS,
the Borrowers have also requested certain amendments to the Credit Agreement
relating to Promote Fees; and
WHEREAS,
the Required Lenders and, as applicable, the Revolving Lenders holding a
majority of the Revolving Commitments have agreed to grant such waiver and
consent to such amendments,
subject to the terms set forth herein as more fully set forth
below.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. Amendments
to Credit Agreement.
(a)
New
Definitions. The
following definitions shall be added to Section 1.01 to
the Credit Agreement in the appropriate alphabetical order:
“Drawbridge
Long Dated Value Funds”
means Drawbridge Long Dated Value
Fund LP, Drawbridge Long Dated Value Fund (B) LP, Drawbridge Long Dated
Value
Fund II LP, Drawbridge Long Dated Value Fund II (B) LP and Drawbridge Long
Dated
Value Fund II (C) LP.
“Fund
I”
means all Private Equity Funds under the heading “Fund I (Fund
and Sister)” on Schedule
6.13 (a) (ii).
“Fund
IV”
means all Private Equity Funds under the heading “Fund IV
(Funds,
Coinvestment Funds, SisterCos and Sidecars)” on Schedule
6.13(a)(ii).
(b)
Section
7.15.
Clauses (b) and (c) of Section 7.15 of the Credit Agreement
are amended and restated in their entirety to read as follows:
(b) at
least 40% of all Promote Fees from Fund I, at least 50% of all Promote
Fees
from Fund IV and any Private Equity Fund formed after September 1, 2006 and at
least
60% of all Promote Fees from all other Private Equity Funds, (c) at least 45%
of all
Promote Fees from Drawbridge Special Opportunities Advisors LLC and at least
50%
of all Promote Fees from all other Hedge Funds (other than Drawbridge Relative
Value
Advisors LLC, Drawbridge Relative Value GP LLC and the Drawbridge Long
Dated
Value Funds) (in each case net of the allocation of Promote Fees required to be
paid
to managers of a Hedge Fund whose entitlement to a portion of Promote Fees is
calculated
on a basis other than as a percentage of the Promote Fees payable generally
with
respect to such Hedge Fund),
(c) Section
8.05. The
first sentence of Section 8.05(h) of the Credit Agreement
is amended and restated in its entirety to read as follows:
Notwithstanding
anything in clauses (a) through (g) above to the contrary, no Disposition
or issuance of Equity Interests may occur that would cause the Loan Parties to
be
entitled to receive amounts (free and clear of any Liens) less than (i) 40% of
the Promote
Fees of Fund I, 50% of the Promote Fees of Fund IV and any Private Equity
Fund formed after September 1, 2006 and 60% of the Promote Fees of all other
Private Equity Funds,
(ii) 45% of the Promote Fees of Drawbridge Special Opportunities Advisors LLC
and
Drawbridge Special Opportunities GP LLC, and 50% of the Promote Fees of all
other Hedge Funds, other than Drawbridge Relative Value Advisors LLC,
Drawbridge Relative Value
GP LLC and the Drawbridge Long Dated Value Funds (in each case, net of the
allocation
of Promote Fees required to be paid to managers of a Hedge Fund whose
entitlement
to a portion of Promote Fees is calculated on a basis other than as a
percentage
of Promote Fees payable generally with respect to such Hedge Fund), (iii) 55%
of
the Promote Fees of Eurocastle and (iv) 45% of the Promote Fees of Newcastle,
Northcastle
and all other investment funds.
2.
Waiver. The
Borrowers have advised the Administrative Agent and the Lenders that
prior to the effectiveness of this Amendment, the Borrowers are in violation of
Section 8.05(h)
of the Credit Agreement as a result of Disposition, on or before January 28,
2007, of Promote Fees related to FIF IV and Drawbridge Long Dated Value Fund,
LP in excess of the amounts
permitted thereunder (the “Promote
Fee Default”).
The Administrative Agent, the Required
Lenders and the Revolving Lenders holding a majority of the Revolving
Commitments hereby
waive any Default or Event of Default that existed from the Closing Date or
exists as a result
of the Promote Fee Default. This waiver is a one-time waiver and shall not be
deemed to modify
or affect the obligations of the Borrower and the Guarantors to comply with
each obligation
under the Credit Agreement and the other Credit Facility Documents from and
after the date
hereof, including, without limitation, the obligations under Sections 7.15 and
8.05 of the
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Credit
Agreement, as amended by this Amendment, or of any rights or remedies the
Administrative
Agent or any Lender may have under the Credit Agreement or any other Loan
Document
or under applicable law.
3. Effectiveness;
Conditions Precedent. This
Amendment shall be and become effective
upon receipt by the Administrative Agent of copies of this Amendment duly
executed by the
Borrowers, the Guarantors, the Required Lenders and the Revolving Lenders
holding a majority
of the Revolving Commitments and the payment of all fees and expenses then due
and payable.
4. Ratification
of Credit Agreement. The
term “Credit Agreement” as used in each of the Loan Documents shall
hereafter mean the Credit Agreement as amended and modified by this
Amendment. Except as herein specifically agreed, the Credit Agreement, as
amended by this Amendment,
is hereby ratified and confirmed and shall remain in full force and effect
according to its
terms. Each of the Loan Parties acknowledge and consent to the modifications
set forth herein
and agree that this Amendment does not impair, reduce or limit any of its
obligations under
the Loan Documents (including, without limitation, the indemnity obligations
and guaranty obligations
set forth therein) and that, after the date hereof, this Amendment shall
constitute a Loan
Document.
5. Authority/Enforceability. Each
of the Loan Parties represents and warrants as follows:
(a) It has
taken all necessary action to authorize the execution, delivery and
performance
of this Amendment.
(b) This
Amendment has been duly executed and delivered by such Person and
constitutes such Person’s legal, valid and binding obligations,
enforceable in accordance
with its terms, except as such enforceability may be subject to (i) bankruptcy,
insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar
laws
affecting creditors’ rights generally and (ii) general principles of
equity (regardless of
whether such enforceability is considered in a proceeding at law or in
equity).
(c) No
consent, approval, authorization or order of, or filing, registration or
qualification
with, any court or governmental authority or third party is required in
connection
with the execution, delivery or performance by such Person of this Amendment.
(d) The
execution and delivery of this Amendment does not (i) violate, contravene
or conflict with any provision of its, or its Subsidiaries’ organizational
documents
or (ii) materially violate, contravene or conflict with any Requirement of Law
or any
other law, regulation, order, writ, judgment, injunction, decree or permit
applicable
to it or any of its Subsidiaries.
6.
Representations
and Warranties of the Loan Parties. The
Loan Parties represent and
warrant to the Administrative Agent and the Lenders that (a) the
representations and warranties
of the Loan Parties set forth in Article VI of the Credit Agreement are true
and correct in all
material respects as of the date hereof, (b) after giving effect to this
Amendment, no event has
occurred and is continuing which constitutes a Default or an Event of Default
and (c) the
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Collateral
Documents continue to create a valid perfected security interest in the
Collateral prior to all Liens other than Permitted Liens.
7. Release. In
consideration of the Administrative Agent and the Required Lenders entering
into this Amendment on behalf of the Lenders, the Loan Parties hereby release
the Administrative
Agent, the L/C Issuer, each of the Lenders, and the Administrative
Agent’s, the L/C
Issuer’s and each of the Lenders’ respective officers, employees,
representatives, agents, counsel
and directors from any and all actions, causes of action, claims, demands,
damages and liabilities of whatever kind or nature, in law or in equity, now
known or unknown, suspected or unsuspected
to the extent that any of the foregoing arises from any action or failure to
act solely in
connection with the Loan Documents on or prior to the date hereof.
8. Counterparts/Telecopy. This
Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall
constitute one and the same instrument. Delivery of executed counterparts of
this Amendment
by telecopy shall be effective as an original and shall constitute a
representation that an original shall be delivered promptly upon
request.
9. GOVERNING
LAW. THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
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IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Amendment
to be duly executed and delivered and this Amendment shall be effective as of
the date first
above written.
BORROWERS:
a
Delaware limited liability company
FORTRESS
PRINCIPAL INVESTMENT HOLDINGS II LLC,
a
Delaware limited liability company
FORTRESS
PRINCIPAL INVESTMENT HOLDINGS III LLC,
a
Delaware limited liability company
FORTRESS
PRINCIPAL INVESTMENT HOLDINGS IV LLC,
a
Delaware limited liability company
FORTRESS
CANADA MANAGEMENT TRUST,
a
Delaware statutory trust
| By: | /s/ Xxxxxx X. Xxxx | |
|
|
||
| Name: Xxxxxx X. Xxxx | ||
| Title: Chief Financial Officer of each of the above-referenced Borrowers | ||
FIG
PARTNERS POOL (A) LLC,
a
Delaware limited liability company
| By: | /s/ Xxxxxx X. Xxxx | |
|
|
||
| Name: Xxxxxx X. Xxxx | ||
| Title: Chief Financial Officer | ||
FIG
PARTNERS POOL (P) LLC,
a
Delaware limited liability company
| By: | /s/ Xxxxxx X. Xxxx | |
|
|
||
| Name: Xxxxxx X. Xxxx | ||
| Title: Chief Financial Officer | ||
FIG
PARTNERS POOLS (P2) LLC,
a
Delaware limited liability company
| By: | /s/ Xxxxxx X. Xxxx | |
|
|
||
| Name: Xxxxxx X. Xxxx | ||
| Title: Chief Financial Officer | ||
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GUARANTORS:
FORTRESS
INVESTMENT HOLDINGS LLC,
a
Delaware limited liability company
FORTRESS
PRINCIPAL INVESTMENT HOLDINGS LLC,
a
Delaware limited liability company
FORTRESS
PRINCIPAL INVESTMENT GROUP LLC,
a
Delaware limited liability company
| By: | /s/ Xxxxxx X. Xxxx | |
|
|
||
| Name: Xxxxxx X. Xxxx | ||
| Title: Chief Financial Officer of each of the above-referenced Guarantors | ||
FORTRESS FUND
III GP (HOLDINGS) LLC,
a
Delaware limited liability company
| By: | /s/ Xxxxxx X. Xxxxxxx | |
|
|
||
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Chief Operating Officer | ||
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|
ADMINISTRATIVE
AGENT:
|
BANK
OF AMERICA, N.A., |
|
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxxx | |
|
|
||
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Vice President | ||
|
LENDERS:
|
BANK
OF AMERICA, N.A., as a
Lender and L/C Issuer |
|
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxxx | |
|
|
||
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Vice President | ||
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|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as a
Lender |
||
| |
|
|
| By: | /s/ J. Xxxxxxxx Xxxx | |
|
|
||
| Name: J. Xxxxxxxx Xxxx | ||
| Title: Managing Director | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
|
|
||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Vice President | ||
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|
DEUTSCHE
BANK AG NEW YORK BRANCH,
as a
Lender |
||
| |
|
|
| By: | /s/ Xxxxx XxXxxxx | |
|
|
||
| Name: Xxxxx XxXxxxx | ||
| Title: Director | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
|
|
||
| Name: Xxxxxx Xxxxxxx | ||
| Title: Vice President | ||
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|
KEYBANK
NATIONAL ASSOCIATION,
as a
Lender |
||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxxxxxxxx | |
|
|
||
| Name: Xxxxxx X. Xxxxxxxxxxxx | ||
| Title: Sr. Banker | ||
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|
JPMORGAN
CHASE BANK, N.A.,
as
a Lender |
||
| |
|
|
| By: | /s/ Xxxxx X. Coffmen | |
|
|
||
| Name: Xxxxx X. Coffmen | ||
| Title: Executive Director | ||
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|
XXXXXXX
XXXXX CREDIT PARTNERS L.P.,
as
a
Lender
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxx | |
|
|
||
| Name: Xxxxx X. Xxxxxx | ||
| Title: Authorized Signatory | ||
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|
XXXXXX
COMMERCIAL PAPER INC.,
as a
Lender |
||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxx | |
|
|
||
| Name: Xxxxx Xxxxxxxx | ||
| Title: Authorized Signatory | ||
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