CREDIT AGREEMENT
Between
PACIFIC WESTERN BANK,
a California state-chartered bank
as Lender
and
CIM REAL ASSETS & CREDIT FUND,
a Delaware statutory trust
as Borrower
Dated as of December 23, 2021
TABLE OF CONTENTS
Page | ||
ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS | 1 | |
1.1 | Certain Defined Terms | 1 |
1.2 | Computation of Time Periods | 9 |
1.3 | Accounting Terms | 9 |
1.4 | UCC Terms | 9 |
ARTICLE 2 AMOUNTS AND TERMS OF THE BORROWINGS | 9 | |
2.1 | The Commitment | 9 |
2.2 | Interest Rate | 11 |
2.3 | Default Rate | 12 |
2.4 | Maximum Interest | 12 |
2.5 | Increased Costs; Capital Adequacy | 13 |
2.6 | Extension of Maturity Date | 13 |
2.7 | Accordion | 13 |
2.8 | Quarterly Facility Fee | 15 |
ARTICLE 3 CONDITIONS OF BORROWING | 15 | |
3.1 | Conditions Precedent to Initial Borrowing | 15 |
3.2 | Conditions Precedent to Each Borrowing | 16 |
ARTICLE 4 REPRESENTATIONS AND WARRANTIES | 17 | |
4.1 | Organization; Business Activities | 17 |
4.2 | Authorization: Absence of Breach | 17 |
4.3 | Financial Information | 17 |
4.4 | Legal Effect | 17 |
4.5 | Reserved | 17 |
4.6 | Compliance With Law | 17 |
4.7 | Hazardous Substances | 18 |
4.8 | Environmental Matters | 18 |
4.9 | Litigation and Claims | 18 |
4.10 | Taxes | 19 |
4.11 | Reserved | 19 |
4.12 | Employee Benefit Plans | 19 |
4.13 | Location of Offices and Records | 19 |
4.14 | Regulated Entities | 19 |
4.15 | Subsidiaries | 19 |
4.16 | Other Debt | 19 |
4.17 | Reserved | 19 |
4.18 | Reserved | 20 |
4.19 | Information | 20 |
4.20 | Anti-Corruption Laws; Sanctions; Anti-Terrorism Laws | 20 |
4.21 | No Material Adverse Effect | 20 |
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Table of Contents continued
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4.22 | Survival of Representations and Warranties | 20 |
ARTICLE 5 AFFIRMATIVE COVENANTS | 20 | |
5.1 | Changes in Financial Condition; Litigation | 21 |
5.2 | Financial Records | 21 |
5.3 | Reporting Requirements | 21 |
5.4 | Insurance | 22 |
5.5 | Other Agreements | 22 |
5.6 | Indebtedness, Taxes, Charges and Liens | 22 |
5.7 | Reserved | 22 |
5.8 | Compliance With Law | 22 |
5.9 | Inspection | 23 |
5.10 | Existence | 23 |
5.11 | Licenses, Intellectual Property | 23 |
5.12 | Use of Proceeds | 23 |
5.13 | Additional Assurances | 23 |
5.14 | Reserved | 23 |
5.15 | Reserved | 23 |
5.16 | Defense of Title | 23 |
5.17 | Reserved | 23 |
5.18 | Reserved | 24 |
5.19 | Compliance with Agreements | 24 |
5.20 | Reserved | 24 |
5.21 | Reserved | 24 |
5.22 | Reserved | 24 |
5.23 | Reserved | 24 |
5.25 | Reserved | 24 |
5.25 | Patriot Act, Bank Secrecy Act and Office of Foreign Assets Control | 24 |
ARTICLE 6 NEGATIVE COVENANTS | 24 | |
6.1 | Indebtedness | 24 |
6.2 | Reserved | 25 |
6.3 | Loans, Investments and Guaranties | 25 |
6.4 | Liquidation, Merger; Sale of Assets | 25 |
6.5 | Reserved | 25 |
6.6 | Transactions with Affiliates | 25 |
6.7 | Reserved | 25 |
6.8 | Reserved | 25 |
6.9 | Reserved | 25 |
6.10 | Reserved | 25 |
6.11 | Environmental Protection | 25 |
6.12 | Reserved | 25 |
6.13 | Judgments | 25 |
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Table of Contents continued
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6.14 | Change in Location, Jurisdiction of Organization or Name | 26 |
6.15 | Financial Covenants | 26 |
6.16 | Reserved | 26 |
6.17 | Reserved | 26 |
ARTICLE 7 DEFAULT AND REMEDIES | 26 | |
7.1 | Events of Default | 26 |
7.2 | Remedies | 28 |
7.3 | Right of Offset | 28 |
7.4 | Cumulative Remedies | 28 |
7.5 | Application of Payments | 28 |
7.6 | Reserved | 29 |
7.7 | Reserved | 29 |
7.8 | Other Recourse | 29 |
7.9 | Reserved | 29 |
7.10 | Reserved | 29 |
7.11 | Reserved | 29 |
7.12 | Lender Not in Control | 29 |
7.13 | Waivers | 29 |
7.14 | Cumulative Rights | 29 |
7.15 | INDEMNIFICATION OF LENDER | 29 |
7.16 | Limitation of Liability | 30 |
7.17 | Actions by Lender | 30 |
7.18 | Termination | 30 |
7.19 | Cumulative Rights | 30 |
ARTICLE 8 MISCELLANEOUS | 31 | |
8.1 | Amendments | 31 |
8.2 | Notices | 31 |
8.3 | No Waiver; Remedies | 32 |
8.4 | Costs and Expenses; Indemnification | 32 |
8.5 | Binding Effect; Assignments and Participations | 33 |
8.6 | Execution in Counterparts | 33 |
8.7 | Governing Law | 33 |
8.8 | Severability | 33 |
8.9 | Entire Agreement | 33 |
8.10 | Descriptive Headings | 33 |
8.11 | Gender and Number | 33 |
8.12 | No Fiduciary Duty | 33 |
8.13 | WAIVER OF JURY TRIAL; JUDICIAL REFERENCE | 34 |
8.14 | Imaging | 36 |
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Table of Contents continued
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EXHIBIT A | PENDING LITIGATION OF BORROWER | |
EXHIBIT B | SUBSIDIARIES OF BORROWER | |
EXHIBIT B1 | OTHER DEBT | |
EXHIBIT C | FORM OF BORROWING BASE CERTIFICATE | |
EXHIBIT D | FORM OF COMPLIANCE CERTIFICATE |
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THIS CREDIT AGREEMENT (this “Agreement”) dated as of December 23, 2021, is made by and between CIM REAL ASSETS & CREDIT FUND, a Delaware statutory fund (“Borrower”), and PACIFIC WESTERN BANK, a California state-chartered bank (“Lender”).
Borrower has requested that Lender make loan advances to it from time to time. Subject to the terms and conditions of this Agreement and of the other Loan Documents (as defined below), Lender is willing to extend certain credit facilities to Borrower as provided in this Agreement. Accordingly, the parties agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Advance” means an advance or disbursement of proceeds by Lender to Borrower pursuant to Section 2.1 of this Agreement.
“Affiliate” means any Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, Borrower. A Person shall be deemed to control a corporation or other entity if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such corporation or other entity, whether through the ownership of voting securities, by contract or otherwise.
“Anti-Terrorism Laws” has the meaning set forth in Section 4.19.
“Authorized Representative” means the following officers and other representatives of Borrower, and such other officer or other individual as Borrower may designate as an Authorized Representative by means satisfactory to Lender:
Xxxxx Xxxxxxxx |
Xxxxxx X. XxXxxxxx |
Xxxxx Xxxxxx |
Xxxxxxx Xxxx |
Xxx Wee |
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“Base Rate” means mean the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (0.50%)per annum.
“Benchmark” means, initially, Term SOFR; provided that if a Benchmark Transition Event or an Early Opt-in Election, as applicable, has occurred with respect to Term SOFR or the then current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event or Early Opt-in Election, the alternate benchmark rate selected by Lender giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then current Benchmark for U.S. dollar-denominated credit facilities at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Contract Rate”, the definition of “Business Day”, the timing and frequency of determining rates and making payments of interest, the timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, Section 2.2, and other technical, administrative or operational matters) Lender decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Lender in a manner substantially consistent with market practice (or, if Lender decides adoption of any portion of such market practice is not administratively feasible or if Lender determines no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as Lender decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Temporary Unavailability” shall mean the period of time commencing on the date of the Nonavailability Notice and continuing through and including the date Lender notifies Borrower that reasonable means again exist for ascertaining the Benchmark.
“Benchmark Transition Event” means, with respect to any then current Benchmark, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating (a) such administrator has ceased or will cease on a specified date to provide such Benchmark, permanently or indefinitely, provided at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark or (b) such Benchmark is or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.
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“Borrower” has the meaning specified in the preamble to this Agreement.
“Borrowing” means a borrowing consisting of the making of an Advance.
“Borrowing Base” shall mean, as of any date of determination, an amount equal to twenty five percent (25%) of the Consolidated Asset Value.
“Borrowing Base Certificate” shall mean a borrowing base certificate, in substantially the form of Exhibit C attached hereto, executed by an Authorized Representative of Borrower.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in California or New York City are authorized or required by law to remain closed.
“Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating Group (“S&P”) or Xxxxx’x Investors Service, Inc. (“Moody’s”), (c) commercial paper maturing no more than 270 days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit, time deposits, overnight bank deposits or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia or any United States branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $1,000,000,000, (e) deposit accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States or any state thereof so long as the full amount maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (f) repurchase obligations of any commercial bank satisfying the requirements of clause (d) of this definition or of any recognized securities dealer having combined capital and surplus of not less than $1,000,000,000, having a term of not more than seven days, with respect to securities satisfying the criteria in clauses (a) or (d) above, (g) debt securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d) above, and (h) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (g) above.
“Change in Law” means the occurrence after the date of this Agreement of: (a) the adoption or effectiveness of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration, interpretation, implementation or application by any Governmental Authority of any law, rule, regulation, guideline or treaty, or (c) the making or issuance by any Governmental Authority of any request, rule, guideline or directive, whether or not having the force of law; provided, that, notwithstanding anything in this Agreement to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, and (ii) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
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“CIM Entity” means CIM Group, LLC or any entity that directly or indirectly Control CIM Group, LLC.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commitment” means Forty Million Dollars ($40,000,000).
“Consolidated Asset Value” shall mean, at any time, the value of all of the assets of the Borrower at such time, determined in accordance with GAAP, and certified to be accurate by an Authorized Representative of Borrower.
“Contract Rate” means a rate per annum equal to the Initial Margin plus the then-applicable Term SOFR; provided, however, from and after any date on which Lender selects any Benchmark Replacement pursuant to Section 2.2(c), “Contract Rate” shall be deemed to refer to the Benchmark Replacement plus the Replacement Spread; provided, further, that during any period of Benchmark Temporary Unavailability, “Contract Rate” shall be deemed to refer to the Base Rate plus the Initial Margin, unless a Benchmark Transition Event or Early Opt-in Election has occurred, in which event “Contract Rate” shall be deemed to refer to the Base Rate plus the Replacement Spread. In no event shall the Contract Rate be less than the Floor.
“Current Prospectus” means the Prospectus dated January 29, 2021, as supplemented by Supplement No. 1 dated May 28, 2021 and Supplement No. 2 dated September 8, 2021.
“Debt to Asset Value Ratio” shall mean, at any time, the ratio of (a) the aggregate amount of Indebtedness owing by the Borrower at such time determined, to (b) the Consolidated Asset Value at such time.
“Default” has the meaning specified in the definition of “Event of Default.”
“Default Rate” has the meaning specified in Section 2.3.
“Dollars”, “dollars” or the symbol “$” means lawful money of the United States of America denominated in United States dollars.
“Early Opt-in Election” means the occurrence of (i) a determination by Lender that U.S. dollar-denominated credit facilities being executed or amended at such time contain (as a result of amendment or as originally executed) a new benchmark interest rate to replace the then current Benchmark and (ii) an election by Lender to declare an Early Opt-in Election has occurred and the provision, as applicable, by Lender of written notice of such election to Borrower.
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“Effective Date” means the first Business Day on which all conditions to the making of Advances set forth in Article 3 have been satisfied or waived in writing by Lender.
“Environmental Laws” means any and all federal, state and local laws, regulations, judicial decisions, orders, decrees, plans, rules, permits, licenses, and other governmental restrictions and requirements pertaining to health, safety or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901, et seq., the Occupational Safety and Health Act, 29 U.S.C. Section 651, et seq., the Clean Air Act, 42 U.S.C. Section 7401, et seq., the Clean Water Act, 33 U.S.C. Section 1251, et seq., and the Toxic Substances Control Act, 15 U.S.C. Section 2601, et seq., as the same may be amended, supplemented or replaced from time to time.
“Environmental Liabilities” means, as to any Person, all liabilities, obligations, responsibilities, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including, without limitation, all reasonable fees, disbursements and expenses of counsel, expert and consulting fees and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, by an Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, including any Environmental Law, permit, order or agreement with any Governmental Authority or other Person, arising from environmental, health or safety conditions or the release or threatened release of a Hazardous Material into the environment, resulting from the past, present or future operations of such Person or its Affiliates.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Event of Default” means any of the events specified in Section 7.1, provided that there has been satisfied any requirement in connection with such event for the giving of notice, or the lapse of time, or the happening of any further condition, event or act, and “Default” shall mean any of such events, whether or not any such requirement has been satisfied.
“FCPA” has the meaning set forth in Section 4.19.
“Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for such day on such transactions received by Lender from three Federal funds brokers of recognized standing selected by Lender.
“Floor” means four and five one hundredths of one percent (4.05%) per annum.
“GAAP” means generally accepted accounting principles applicable in the United States, consistently applied.
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“Governmental Authority” means the United States of America, any applicable state, county, city or other political subdivision, agency, department, commission, district, board, bureau or instrumentality of any of the foregoing, which now or hereafter has jurisdiction over the Borrower.
“Hazardous Material” means any toxic substance, hazardous substance, hazardous material, hazardous chemical or hazardous waste defined or qualifying as such in (or for the purposes of) any Environmental Law, or any pollutant or contaminant, and shall include, but not be limited to, petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature or pressure, any radioactive material, including, but not limited to, any source, special nuclear or by-product material as defined in 42 U.S.C. section 2011 et seq., as amended or hereafter amended, polychlorinated biphenyls, and asbestos in any form or condition.
“Indebtedness” means, with respect to any Person: all items of long-term liabilities as shown on the consolidated balance sheet of such Person as of the date of determination; provided, that Indebtedness shall not include (i) for the avoidance of doubt, current liabilities as shown on the consolidated balance sheet of such Person as of the date of determination and (ii) any preferred equity interests of such Person as of the date of determination.
“Initial Margin” means four percent (4.0%) per annum.
“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, any assignment for the benefit of creditors, or any other proceeding seeking reorganization, arrangement or other relief from Indebtedness.
“Interest Period” means the period from and including each Monthly Payment Date to (but excluding) the next Monthly Payment Date; provided that the initial Interest Period shall begin on (and shall include) the Effective Date and shall end on (and shall include) the day immediately preceding the first Monthly Payment Date of the Term.
“Investment” is any beneficial ownership interest in any Person (including stock, partnership interest or other securities), and any loan, advance or capital contribution to any Person.
“Lien” means any pledge, security interest, encumbrance, lien or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of or agreement to give any financing statement under the Uniform Commercial Code of any jurisdiction).
“Liquidity” means cash and Cash Equivalents of Borrower, wherever located.
“Loan Documents” means this Agreement, and any and all other documents, instruments and agreements related thereto, and any and all other agreements executed by Borrower from time to time that evidence, secure or relate to any Indebtedness of Borrower to Lender, together with all amendments, supplements, extensions and replacements from time to time to any of the foregoing.
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“Material Adverse Effect” means any condition or set of circumstances or events which could reasonably be expected to cause an Event of Default or any material adverse effect on: (a) the business, operations, performance, condition (financial or otherwise) or prospects of Borrower; (b) the ability of Borrower to pay and perform its obligations as they become due, including all obligations under the Loan Documents.
“Maturity Date” means December 23, 2026.
“Monthly Payment Date” means the first (1st) day of each calendar month (or, if such first (1st) day is not a Business Day, then the first (1st) Business Day thereafter).
“Nonavailability Notice” shall have the meaning given to such term in Section 2.2(f).
“Organizational Documents” means (a) in the case of a corporation, its articles of incorporation and bylaws, (b) in the case of a general partnership, its partnership agreement, (c) in the case of a limited partnership, its certificate of limited partnership and limited partnership agreement, (d) in the case of a limited liability company, its articles of organization and operating agreements or regulations, and (e) in the case of any other entity, its organizational and governance documents and agreements.
“Outstanding” means, as of any date of determination, the aggregate principal amount of Advances remaining unpaid and owing by Borrower.
“Patriot Act” means Title III of Pub. L. 107 56 (signed into law October 26, 2001).
“Permitted Discretion” means a determination made in the exercise of reasonable (from the perspective of a lender) business judgment. This Permitted Discretion standard shall apply in each instance in the Loan Documents that calls for Lender to make a “reasonable” determination.
“Permitted Investments” means:
(a) | investments in cash and Cash Equivalents, |
(b) investments made by Borrower in any other Person that is consolidated with Borrower for financial reporting purposes under GAAP,
(c) investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business,
(d) advances made in connection with purchases of goods or services in the ordinary course of business,
(e) investments received in settlement of amounts due to Borrower effected in the ordinary course of business or owing to Borrower as a result of Insolvency Proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of Borrower,
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(f) equity Interests or other securities acquired in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to Borrower (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security for any such Indebtedness or claims,
(g) deposits of cash made in the ordinary course of business to secure performance of operating leases,
(h) | any of the uses permitted in Section 5.12, |
(i) investments that are described in the Current Prospectus or, with the prior written consent of Lender, in the exercise of its Permitted Discretion, investments that are described in a Prospectus or supplement that is, in each case, dated after the date hereof and that are not described in the Current Prospectus.
“Person” means an individual, partnership, corporation (including a business trust), joint stock company, limited liability company, trust, unincorporated association, joint venture or other entity, or any governmental authority or entity.
“Pre-Replacement Rate” means the immediately previous Contract Rate set forth in this Agreement.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York, or any successor thereto.
“Remedial Action” means all actions required to (a) clean up, remove, treat, or otherwise address Hazardous Materials in the environment, (b) prevent the release or threatened release or minimize the further release of Hazardous Materials so that they do not migrate or endanger or threaten to endanger public health or welfare or the environment, or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care.
“Replacement Rate Notice” has the meaning given to such term in Section 2.2(c).
“Replacement Spread” has the meaning given to such term in Section 2.2(c).
“Sanctions” has the meaning set forth in Section 4.19.
“Subsidiary” means any corporation, limited liability company, partnership or other entity in which a majority of (i) the total combined voting power of all classes of stock or other equity interests of which or (ii) the outstanding equity interests of which shall, at the time as of which any determination is made, be owned by Borrower either directly or through Subsidiaries
“Taxes” means all present and future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any governmental or taxing authority, and all liabilities (including any interest, fines, additions to tax and penalties) relating thereto.
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“Term SOFR” means a rate per annum which is identified and normally published by Bloomberg Professional Service page SR1M Index as the offered rate for loans in United States dollars for a one (1) month period, rounded upwards, if necessary, to the nearest 1/100th of one percent (0.01%). Such rate shall be determined monthly and shall be the rate set by the CME Group Benchmark Administration Limited as of 5:00 a.m. (Chicago time) two (2) Business Days prior to commencement of each Interest Period and effective for such Interest Period.
“Treasury Regulations” means the final or temporary United States federal income tax regulations promulgated under the Code, as may be amended from time to time.
“UCC” means the Uniform Commercial Code as enacted in the state of California.
1.2 Computation of Time Periods. In this Agreement, in the computation of periods of time from a specified date to a later specified date: (a) the word “from” means “from and including,” (b) the words “to” and “until” each means “to but excluding”; and (c) the word “through” means “through and including.”
1.3 Accounting Terms. Unless as otherwise provided, all accounting terms not specifically defined in this Agreement shall be construed, and all accounting procedures shall be performed, in accordance with GAAP.
1.4 UCC Terms. Terms (whether or not capitalized) defined in the UCC which are not otherwise defined in this Agreement shall have the meanings as defined in the UCC as in effect on the date of this Agreement..
ARTICLE 2
AMOUNTS AND TERMS OF THE BORROWINGS
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(c) Repayment of Principal; Maturity. Outstanding principal shall be repaid as follows:
(i) If, at any time the amount Outstanding of Advances exceeds Availability, Borrower shall pay to Lender, within three (3) Business Days, an amount sufficient to reduce the amount Outstanding of Advances to an amount that is less than Availability.
(ii) Subject to the other provisions of this Agreement, the principal amount Outstanding of Advances, together with all accrued and unpaid interest thereon and all other amounts owing by Borrower to Lender under the Loan Documents, shall be repaid on or before the Maturity Date.
(e) Payments and Computations.
(i) Borrower shall make each payment hereunder, without offset or deduction of any kind, not later than 5:00 P.M. (Los Angeles, California time) on the day when due in U.S. Dollars to Lender at Pacific Western Bank, 0000 Xx Xxxxx Xx., Xxxxx 000, Xxxxxxxx, XX 00000, Attention: Note Department, or at such other location designated by notice from Lender pursuant to the notice provision of this Agreement, in immediately available funds. Any payment received by Lender after such time shall be deemed to have been received on the next succeeding Business Day. All payments hereunder will be free and clear of any Taxes such that the Lender will receive the entire amount of all amounts payable hereunder, regardless of the source of payment.
(ii) All computations of interest shall be made by Lender on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable. Each determination by Lender of an interest rate or an increased cost or of illegality hereunder shall be presumptive evidence thereof and binding for all purposes absent a showing of material error.
(iii) Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.
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2.2 | Interest Rate. |
(a) The outstanding principal balance of the Advances shall bear interest at the Contract Rate. The monthly interest due on the principal balance of the Advances outstanding shall be computed for the actual number of days elapsed during the month in question on the basis of a year consisting of three hundred sixty (360) days and shall be calculated by determining the average daily principal balance outstanding for each day of the month in question. The daily rate shall be equal to 1/360th times the then applicable Contract Rate. If any statement furnished by Lender for the amount of a monthly payment due exceeded the actual amount that should have been paid because the then current Benchmark decreased and such decrease was not reflected in the monthly statement, Borrower shall make the payment specified in the monthly statement from Lender and Borrower shall receive a credit for the overpayment, which credit shall be applied towards the next subsequent monthly payment due hereunder. If any statement furnished by Lender for the amount of a monthly payment due was less than the actual amount that should have been paid because the then current Benchmark increased and such increase was not reflected in the monthly statement, Borrower shall make the payment specified in the monthly statement from Lender and Borrower shall be required to pay any resulting underpayment with the next subsequent monthly payment due hereunder.
(b) Lender does not warrant or accept responsibility for, and shall not have any liability with respect to (i) the administration of, submission of, calculation of or any other matter related to the rates in the definition of Term SOFR, any component definition thereof or rates referenced in the definition thereof or any alternative, comparable or successor rate thereto (including any then current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of any such alternative, comparable or successor rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, Term SOFR or (ii) the effect, implementation or composition of any Benchmark Replacement Conforming Changes. Lender shall use reasonable efforts to select a Benchmark Replacement and set a Replacement Spread that Lender in good faith believes is a practical means of preserving Lender’s and Borrower’s intent relative to the economics of the Advances under the Pre-Replacement Rate. Borrower agrees Lender shall not be liable in any manner for its selection of a Benchmark Replacement the reliability, availability and/or economic returns intended when Lender chose the then current Benchmark, provided that Lender makes such selection in good faith and the same is generally being applied across Lender’s commercial real estate loan portfolio.
(c) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, Lender may replace the current Benchmark with a Benchmark Replacement and set a replacement spread determined by Lender pursuant to this Section 2.2(c) (the “Replacement Spread”); provided that in determining the Replacement Spread (i) Lender may determine the Replacement Spread after considering the spread, any margin, continuing interest rate protection agreement requirements, and other economic factors that would be implemented simultaneously with the selection of such Benchmark Replacement for the purpose of preserving Lender’s, and Borrower’s intent relative to the economics of the Loan under the Pre-Replacement Rate and (ii) Lender may give due consideration to (A) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then current Benchmark with the Benchmark Replacement by the Relevant Governmental Body or (B) any evolving or industry-accepted means for determining a spread adjustment, or method of calculating or determining such spread adjustment, for the replacement of the then current Benchmark. Lender shall provide written notice to Borrower of any new Benchmark Replacement and set a Replacement Spread (the “Replacement Rate Notice”), which notice shall (y) make the Benchmark Replacement and set a Replacement Spread effective beginning with the next Interest Period, or such other effective date set forth therein and (z) identify both the Benchmark Replacement and Replacement Spread, which shall be used to calculate the Contract Rate until such time, if any, as Lender determines that the current Benchmark should be replaced pursuant to this Section 2.2(c). Any determination, decision or election that may be made by Lender pursuant to this Section 2.2(c) will be conclusive and binding absent manifest error and may be made its sole discretion and without consent from any other party to this Agreement or any other Loan Document.
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(d) Effective on and after the effective date set forth in the Replacement Rate Notice, all references in the Loan Documents to the Benchmark shall refer to the Benchmark Replacement, and all references to the Contract Rate shall be deemed to refer to the Contract Rate as calculated based on the Benchmark Replacement plus the Replacement Spread.
(e) In connection with the implementation of a Benchmark Replacement, Lender will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(f) If Lender determines (which determination shall be conclusive and binding upon Borrower) that reasonable means do not exist for ascertaining the Benchmark and such circumstances are likely to be temporary, Lender shall give notice thereof to Borrower (the “Nonavailability Notice”).
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2.5 | Increased Costs; Capital Adequacy. |
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve (including pursuant to regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement) with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by any Lender); or
(ii) impose on Lender any other condition affecting this Loan Agreement or the Advances,
and such Change in Law increases the cost to Lender of making or maintaining the Advances (or of maintaining its obligation to make the Advances) or reduces the amount of any sum received or receivable by Lender under this Loan Agreement (whether of principal, interest or otherwise), then Borrower shall pay to such Lender such additional amount or amounts as will compensate Lender for such additional costs incurred or reduction suffered; however, in determining such amounts (or the applicability of same under this Section 2.5(a)), Lender shall treat Borrower in the same manner as other similarly situated borrowers of Lender with loans similar to the Advances.
(b) No Event of Default shall have occurred and be continuing, either at the time the notice of intent is delivered to the Lender or on the then-current Maturity Date;
(c) The Borrower shall have paid to the Lender, on or before the then-current Maturity Date, an extension fee equal to fifty (50) basis points multiplied by the Commitment at such time;
(d) The Debt to Asset Value Ratio at such time shall not be more than 25%; and
(e) Any extension shall be evidenced by such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.7.
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(a) At any time during the period from and after the Effective Date through but excluding the Maturity Date, at the option of Borrower (but subject to the conditions set forth in clause (b) below), the Commitment may be increased (each, an “Increase”), by an amount in the aggregate for all such increases, up to $100,000,000. Any Increase shall be in an amount of at least $10,000,000 and integral multiples of $10,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Commitment exceed $60,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Commitment in connection therewith:
(i) Lender shall have obtained internal credit approval for such Increase,
(ii) each of the conditions precedent set forth in Section 3.2 are satisfied,
(iii) in connection with any Increase, if Borrower or any of its Subsidiaries owns or will acquire any Margin Stock, Borrower shall deliver to Lender an updated Form U-1, duly executed and delivered by the Borrower, together with such other documentation as Lender shall reasonably request, in order to enable Lender to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board,
(iv) the Borrower shall have paid to the Lender, on or before the then-current Maturity Date, an extension fee equal to fifty (50) basis points multiplied by the Commitment at such time;
(v) a current Borrowing Base Certificate and Compliance Certificate;
(vi) Lender shall have received new certified board resolutions from Borrower approving the increase in the Commitment; and
(vii) the interest rate margins with respect to the Advances to be made pursuant to the increased Commitment shall be the same as the interest rate margin applicable to Advances hereunder immediately prior to the applicable date of the effectiveness of the increased Commitment. Any Increase shall be evidenced by such amendments to this Agreement, including the definition of Commitment, and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.7.
(c) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Advances shall be deemed, unless the context otherwise requires, to include Advances made pursuant to the increased Commitment pursuant to this Section 2.7.
(d) The Advances established pursuant to this Section 2.7 shall constitute Advances under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents
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ARTICLE 3
(a) Lender shall have received all of the Loan Documents including, without limitation, the following documents in form and substance satisfactory to Lender and, as appropriate, duly executed by the parties thereto:
(i) The Resolution to Borrow; and
(ii) The following Lender-prepared documents: Notice of Final Agreement and Disbursement Request and Authorization.
(b) Lender shall have received:
(i) A facility fee equal to $100,000 and a documentation fee equal to $1,250, or written authorization to debit such fees from a Borrower deposit account held at Lender; and
(ii) reimbursement of all legal fees and costs incurred by Lender to its outside counsel.
(c) Lender shall have received all of the following documents and information in form and substance reasonably satisfactory to Lender and, as appropriate, duly executed by the parties thereto:
(i) A copy of the certificate of formation of Borrower certified by the Secretary of State of the State of Delaware, and a copy of the trust agreement/operating agreement of Borrower certified by its secretary or other authorized officer.
(ii) Certified copies of the resolutions of the board of trustees of Borrower approving the Borrowings contemplated hereby and authorizing the execution and delivery of the Loan Documents by Borrower and performance of Borrower’s obligations thereunder, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Advances and the Loan Documents.
(iii) An officer’s certificate, on behalf of Borrower certifying the names and true signatures of the officers or other representatives of Borrower authorized to sign the Loan Documents and the other documents to be delivered hereunder.
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(iv) A certificate of good standing for Borrower from the Secretary of State of the State of Delaware and each other state in which it is authorized to do business, dated within thirty (30) days of the initial Borrowing.
(v) Evidence of Borrower’s insurance as required in Section 5.4 of this Agreement, together with appropriate loss payee and additional insured endorsements in favor of Lender, all in form and substance acceptable to Lender; and
(vi) Such other documents or instruments as Lender may reasonably request.
(d) Lender shall have received reimbursement for all documented search fees, filing fees and other out-of-pocket fees and costs incurred by Lender in connection with this Agreement and transaction contemplated hereby.
3.2 Conditions Precedent to Each Borrowing.
In addition to the conditions precedent set forth in Section 3.1 above, the obligation of Lender to make Advances shall be subject to the following further conditions precedent:
(a) on the date of a Borrowing pursuant to Section 2.1, before and immediately after giving effect thereto, the following statements shall be true and correct, and the making by Borrower of the applicable borrowing request shall constitute its representation and warranty that on and as of the date of such Borrowing, before and immediately after giving effect thereto, the following statements are true and correct:
(i) The representations and warranties contained in Article 4 of this Agreement or anywhere else in this Agreement are correct in all material respects as though made on and as of such date (other than any representation or warranty that expressly speaks only as of a different date or Exhibit A or Exhibit B, each of which may be supplemented from time to time);
(ii) After giving effect to a requested Advance, Availability shall not be less than zero;
(iii) No event has occurred and is continuing, or would result from such Borrowing, which constitutes or would constitute an Event of Default or Default;
(iv) The most recent financial statements of Borrower delivered pursuant to Section 5.3(a) present fairly the financial position and results of operations of Borrower as of the date of, and for the periods presented in, such financial statements, and since the date of such financial statements there has not been any material adverse change in the financial condition or operations of Borrower;
(v) Lender shall have received a borrowing request; and
(vi) Lender shall have received such additional approvals or documents as Lender may reasonably request.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
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(a) Borrower and all of its properties, assets and operations are in full compliance with all Environmental Laws. Borrower is not aware of nor has Borrower received notice of any past, present, or future conditions, events, activities, practices or incidents which may interfere with or prevent the compliance or continued compliance of Borrower and the Subsidiaries with all Environmental Laws;
(b) Borrower has obtained all permits, licenses, and authorizations that are required under applicable Environmental Laws and all such permits are in good standing and Borrower is in compliance with all of the terms and conditions of such permits.
(c) No Hazardous Materials (except in nominal amount) exist on, about, or within or have been used, generated, stored, transported, disposed on, or released from any of the properties or assets of Borrower. The use which Borrower makes and intends to make of its properties and assets will not result in the use, generation, storage, transportation, accumulation, disposal, or release of any Hazardous Material on, in or from any of their properties or assets;
(d) Neither Borrower nor any of its currently or previously owned or leased properties or operations is subject to any outstanding or threatened order from or agreement with any Governmental Authority or other Person or subject to any judicial or docketed administrative proceeding with respect to (i) failure to comply with Environmental Laws, (ii) Remedial Action, or (iii) any Environmental Liabilities arising from a release or threatened release;
(e) There are no conditions or circumstances associated with the currently or previously owned or leased properties or operations of Borrower that could reasonably be expected to give rise to any Environmental Liabilities;
(f) Borrower has not filed or failed to file any notice required under applicable Environmental Law reporting a release; and
(g) No Lien arising under any Environmental Law has attached to any property or revenues of Borrower.
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(a) All Tax returns and reports of Borrower that are required to have been filed have been filed. All Taxes that have become due and payable by Borrower have been paid in full, except those presently being or to be contested by Borrower in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP.
(b) Borrower does not know of any pending Tax investigation, audit or deficiency with respect to the Borrower or any of Borrower’s assets.
(c) Borrower is not a party to any tax sharing agreement or similar contractual obligation.
All tax returns and reports of Borrower that are required to have been filed, have been filed, and all taxes, assessments and other governmental charges which have become due and payable by Borrower have been paid in full, except those presently being or to be contested by Borrower in good faith, by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP.
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4.20 Anti-Corruption Laws; Sanctions; Anti-Terrorism Laws.
(a) Neither Borrower nor any of its Subsidiaries nor, to their knowledge, any director, officer, employee or affiliate of Borrower or any of its Subsidiaries has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”) or any other applicable anti-corruption law; and Borrower and its Subsidiaries have instituted and maintain policies and procedures designed to ensure continued compliance therewith.
(b) Neither Borrower nor any of its Subsidiaries nor, to their knowledge, any director, officer, employee or affiliate of Borrower or any of its Subsidiaries, is a Person that is, or is owned or controlled by, a Person that is: (i) subject to any sanctions administered or enforced by OFAC or the U.S. State Department (collectively, “Sanctions”), or (ii) located, organized, or resident in a country or territory that is, or whose government is, the subject to Sanctions (including Cuba, Iran, North Korea, Sudan, and Syria).
(c) Neither Borrower nor any of its Subsidiaries nor, to their knowledge, any director, officer, employee or affiliate of Borrower or any of its Subsidiaries, is a Person that is, or is owned or controlled by, a Person that is: (i) 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 (50 U.S.C. App. §§ 1 et seq.), or (ii) in violation of (A) the Trading with the Enemy Act, (B) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) or any enabling legislation or executive order relating thereto or (C) the Patriot Act (collectively, the “Anti-Terrorism Laws”).
ARTICLE 5
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So long as any amount payable by Borrower under the Loan Documents shall remain unpaid or Lender shall have any Commitment hereunder, Borrower covenants and agrees that it will:
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ARTICLE 6
So long as any amount payable by Borrower under the Loan Documents shall remain unpaid or Lender shall have any Commitment hereunder, Borrower covenants and agrees that it will not, without the prior written consent of Lender (which consent may be granted or withheld in Lender’s Permitted Discretion):
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6.15 Financial Covenants. Borrower will not have:
ARTICLE 7
(i) Violation by Borrower of any of the covenants contained in Article 6 of this Agreement, or
(ii) Failure by Borrower to perform, keep, or observe any other material term, provision, condition, covenant, or agreement contained in this Agreement, in any of the other Loan Documents, or in any other present or future agreement between Borrower and Lender and as to any Default under such other term, provision, condition, covenant or agreement that can be cured and does not pose an imminent risk of loss to Lender, has failed to cure such Default within ten (10) days after Borrower receives written notice thereof from Lender or any officer, member, manager or partner of Borrower becomes aware thereof; provided, however, that if the Default cannot by its nature be cured within the ten (10) day period or cannot after diligent attempts by Borrower be cured within such ten (10) day period, and such Default is likely to be cured within a reasonable time, then Borrower shall have an additional reasonable period (which shall not in any case exceed an additional thirty (30) days) to attempt to cure such Default, and within such reasonable time period the failure to have cured such Default shall not be deemed an Event of Default (provided that no Advances will be required to be made during such cure period).
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(h) Dissolution. The dissolution of Borrower for any reason whatsoever.
(i) Change in Control, etc. If a CIM Entity fails to be the investment adviser to Borrower.
(m) Reserved ..
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ARTICLE 8
CIM Real Assets & Credit Fund | ||
0000 Xxxxxxxx Xxxx | ||
Xxx Xxxxxxx | ||
XX 00000 | ||
Attention: General Counsel (RACR-PacWest) | ||
Email: xxxxxxxxxxxxxx@xxxxxxxx.xxx | ||
With a copy to: | ||
CIM Real Assets & Credit Fund | ||
0000 X Xxxxxxxxx Xx 0xx xxxxx | ||
Xxxxxxx | ||
XX 00000 | ||
Attention: Operations (RACR – PacWest) | ||
Email: xxxxxxxxxxx@xxxxxxxx.xxx; xxxxxxxxx@xxxxxxxx.xxx; and xxxxx@xxxxxxxx.xxx |
Notices to Lender shall be delivered to its address as set forth under its name on the signature page of this Agreement; or, as to any party, at such other address as shall be designated by such party in a written notice to the other party or parties. All such notices and communications shall, (a) if mailed, be effective three (3) Business Days following deposit in the United States mail, postage prepaid; (b) if delivered by recognized overnight delivery service (such as Federal Express) be effective upon delivery, (c) if via facsimile, be effective when sent and electronic confirmation of transmission is received, except that notices and communications to Lender pursuant to Article 2 shall not be effective until received by Lender and (d) if via email, be effective upon delivery unless the sender receives an out-of-office message from the primary intended recipient, a message to the effect that the primary intended recipient is no longer employed by the organization to which the email is directed, an error message or any other message similar in nature to the foregoing messages. A notice received by Lender by telephone pursuant to a provision of this Agreement providing for telephone notice shall be effective if Lender believes in good faith that it was given by an Authorized Officer of Borrower and acts pursuant thereto, notwithstanding the absence of written confirmation.
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8.4 Costs and Expenses; Indemnification.
(i) Arbitration, judicial reference or other alternative dispute resolution proceedings, trial court actions and appeals;
(ii) bankruptcy or other insolvency proceedings of Borrower or other party liable for any of the obligations under this Agreement or any of the other Loan Documents, or any party having any interest in any security for any of those obligations; (iii) judicial or nonjudicial foreclosure on, or appointment of a receiver for, any property securing the obligations of Borrower; (iv) post judgment collection proceedings; (v) all claims, counterclaims, cross-claims and defenses asserted in any of the foregoing whether or not they arise out of or are related to this Agreement or any other Loan Document; (vi) all preparation for any of the foregoing; and (vii) all settlement negotiations with respect to any of the foregoing.
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8.7 Governing Law. All of the Loan Documents shall be governed by and construed in accordance with the laws of the state of California as applicable to contracts entered into in the state of California between residents of such state and which are to be wholly performed in such state.
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8.13 WAIVER OF JURY TRIAL; JUDICIAL REFERENCE.
(i) In the event the jury trial waiver set forth above is not enforceable, the parties elect to proceed under this judicial reference provision.
(ii) With the exception of the items specified in clause (iii), below, any controversy, dispute or claim (each, a “Claim”) between the parties arising out of or relating to this Agreement, the Notes or the other Loan Documents, any other will be resolved by a reference proceeding in California in accordance with the provisions of Sections 638 et seq. of the California Code of Civil Procedure (“CCP”), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as otherwise provided in this Agreement, the Notes or the other Loan Documents, venue for the reference proceeding will be in the state or federal court in the county or district where the real property involved in the action, if any, is located or in the state or federal court in the county or district where venue is otherwise appropriate under applicable law (the “Court”).
(iii) The matters that shall not be subject to a reference are the following: (a) foreclosure of any security interests in real or personal property, (b) exercise of self-help remedies (including, without limitation, set-off), (c) appointment of a receiver and (d) temporary, provisional or ancillary remedies (including, without limitation, writs of attachment, writs of possession, temporary restraining orders or preliminary injunctions). This reference provision does not limit the right of any party to exercise or oppose any of the rights and remedies described in clauses (a) and (b) or to seek or oppose from a court of competent jurisdiction any of the items described in clauses (c) and (d). The exercise of, or opposition to, any of those items does not waive the right of any party to a reference pursuant to this reference provision as provided herein.
(iv) The referee shall be a retired judge or justice selected by mutual written agreement of the parties. If the parties do not agree within ten (10) days of a written request to do so by any party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the Court (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and the parties agree that irreparable harm would result if ex parte relief is not granted. Pursuant to CCP § 170.6, each party shall have one peremptory challenge to the referee selected by the Presiding Judge of the Court (or his or her representative).
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(v) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (a) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (b) if practicable, try all issues of law or fact within one hundred twenty (120) days after the date of the conference and (c) report a statement of decision within twenty (20) days after the matter has been submitted for decision.
(vi) The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
(vii) Except as expressly set forth herein, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.
(viii) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a court proceeding, including motions for summary judgment or summary adjudication. The referee shall issue a decision at the close of the reference proceeding which disposes of all claims of the parties that are the subject of the reference. Pursuant to CCP § 644, such decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court and any such decision will be final, binding and conclusive. The parties reserve the right to appeal from the final judgment or order or from any appealable decision or order entered by the referee. The parties reserve the right to findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
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(ix) If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or justice, in accordance with the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding.
(x) THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR IN ANY WAY RELATED TO, THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS.
LENDER: | PACIFIC WESTERN BANK | |
By: | ![]() |
||
Name: | Xxx X. Xxxxxxxxxxx | ||
Title: | Senior Vice President |
Address for Notices: | |
Pacific Western Bank | |
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 | |
Xxxxxx, XX 00000 | |
Attn: Xxx X. Xxxxxxxxxxx | |
Phone: (000) 000-0000 | |
Email: xxxxxxxxxxxx@xxxxxxx.xxx |
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With a copy to: | |
Pacific Western Bank | |
000 Xxxx 0xx Xxxxxx, Xxxxx 000 | |
Xxx Xxxxxxx, XX 00000 | |
Attn: Xxxxx Xxxxx, EVP and General Counsel | |
Phone: (000) 000-0000 | |
Email: xxxxxx@xxxxxxxxxxxxxxxxxx.xxx | |
With a copy to: | |
Xxxxxxxxx | |
0000 Xxxxxxxx Xxxx., Xxxxx 0000 | |
Xxx Xxxxxxx, XX 00000 | |
Attn: Xxxxxx Xxxxx | |
Phone: 000-000-0000 | |
Email: xxxxxx@xxxxxxxxx.xxx |
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IN WITNESS WHEREOF, the parties hereto have executed this Credit Agreement as of the day and year first written above.
BORROWER: | CIM REAL ASSETS & CREDIT FUND, | |
a Delaware statutory trust | ||
By: | ![]() | |
Name: | Xxxxx Xxxxxxxx | |
Title: | Chief Executive Officer |
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EXHIBIT A
PENDING LITIGATION
None
A-1 |
EXHIBIT B
LIST OF SUBSIDIARIES OWNED BY BORROWER
Entity Name | Entity Type | State of Formation | ||
RACR 0000 Xxxxxxx Xxx. XX (DC) Member, LLC |
|
Limited Liability Company |
|
Delaware |
RACR Epic Phase 2, LLC | Limited Liability Company | Delaware | ||
RACR SLO, LLC | Limited Liability Company | Delaware | ||
RACR Sora, LLC | Limited Liability Company | Delaware | ||
RACR-FS, LLC | Limited Liability Company | Delaware |
B-1 |
EXHIBIT B1
OTHER DEBT
(mil.) | ||||||
Real Estate Equity Interests | Property Type | Location | Borrower Ownership % | Borrower's Proportionate Fair Value | Borrower's Proportionate Other Debt | Comments |
Epic II | Office | Dallas, TX | 8.26% | $18.7 | $6.9 | Note to unaffiliated JV partner and construction loan |
Vale | Multifamily | Washington, DC | 8.00% | $10.7 | $5.7 | Mortgage |
Sora | Multifamily | Los Angeles, CA | 100% | $52.2 | $41.6 | Mortgage |
C-2 |
EXHIBIT C
FORM OF BORROWING BASE CERTIFICATE
Calculated as of ____________, 201_ (the “Calculation Date”)
To: | Pacific Western Bank | |
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 | ||
Xxxxxx, XX 00000 | ||
Attn: Xxx X. Xxxxxxxxxxx | ||
Phone: (000) 000-0000 | ||
Email: xxxxxxxxxxxx@xxxxxxx.xxx |
The undersigned does hereby certify, pursuant to that certain Credit Agreement dated as of December 23, 2021 (the “Agreement”), between CIM Real Assets & Credit Fund and Pacific Western Bank, as follows (capitalized terms used herein and not otherwise defined shall have the meanings given to such terms in the Agreement):
1. Attached as Schedule 1 is a true and correct calculation of the Borrowing Base as of __________, 20__ (the “Calculation Date”).
2. The principal amount of Outstanding Advances __does __does not exceed Availability as of the Calculation Date.
CIM REAL ASSETS & CREDIT FUND | ||
By: | ||
Its: | [Authorized Representative] |
SCHEDULE I
Borrowing Base
Calculation Date: ______________, 202_
The Consolidated Asset Value is: $__________________
C-1 |
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
[on Borrower’s letterhead]
To: | Pacific Western Bank | |
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 | ||
Xxxxxx, XX 00000 | ||
Attn: Xxx X. Xxxxxxxxxxx | ||
Phone: (000) 000-0000 | ||
Email: xxxxxxxxxxxx@xxxxxxx.xxx |
Re: Compliance Certificate dated ____________ __, 20__
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement, dated as of December 23, 2021 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”), by and between CIM Real Assets & Credit Fund (the “Borrower”) and Pacific Western Bank, a national banking association (“Lender”). Capitalized terms used herein, but not specifically defined herein, shall have the meanings ascribed to them in the Credit Agreement.
Pursuant to Section Error! Reference source not found. of the Credit Agreement, the undersigned Authorized Representative of Borrower hereby certifies as of the date hereof that:
1. Such Authorized Representative has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision, a review in reasonable detail of the transactions and financial condition of Borrower and its Subsidiaries during the accounting period covered by the financial statements delivered pursuant to Section Error! Reference source not found. of the Credit Agreement.
2. Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default, except for such conditions or events listed on Schedule 1 attached hereto, in each case specifying the nature and period of existence thereof and what action Borrower has taken, are taking, or propose to take with respect thereto.
3. Except as set forth on Schedule 2 attached hereto, the representations and warranties of Borrower set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date).
5. As of the date hereof, Borrower is in compliance with the applicable covenants contained in Section 6.15 of the Credit Agreement as demonstrated on Schedule 3 hereof.
[Signature page follows]
IN WITNESS WHEREOF, this Compliance Certificate is executed by the undersigned this ____ day of _______________, 20___.
CIM REAL ASSETS & CREDIT FUND, | ||
a Delaware statutory trust | ||
By: | ||
Name: | ||
Title: | [Authorized Representative] |
D-1 |
[add Schedules 1 and 2, if and as appropriate]
SCHEDULE 3
Section 6.15(a) Maximum Debt to Asset Value Ratio (ratio and calculation):
Ratio:
Calculation:
__ complies with subsection
__ does not comply with subsection
Section 6.15(b) Minimum Liquidity (dollar amount):
$___________________________ |
__ complies with subsection
__ does not comply with subsection