EXECUTION COPY
CREDIT AGREEMENT Dated as of December 10, 2009 among BERKADIA COMMERCIAL MORTGAGE LLC as the Borrower, and BH FINANCE LLC as the Lender
TABLE OF CONTENTS Page
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ARTICLE I. |
DEFINITIONS AND ACCOUNTING TERMS |
1 |
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1.01 |
Defined Terms |
1 |
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1.02 |
Other Interpretive Provisions |
11 |
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1.03 |
Accounting Terms |
12 |
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1.04 |
Times of Day |
12 |
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ARTICLE II. |
THE COMMITMENT AND LOANS |
12 |
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2.01 |
Loans |
12 |
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2.02 |
Loans and Loan Notices |
12 |
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2.03 |
Prepayments |
13 |
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2.04 |
Repayment of Loans |
13 |
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2.05 |
Interest |
14 |
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2.06 |
Computation of Interest |
14 |
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2.07 |
Evidence of Debt |
14 |
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2.08 |
Payments Generally; Lender153s Clawback |
15 |
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ARTICLE III. |
TAXES, YIELD PROTECTION AND ILLEGALITY |
15 |
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3.01 |
Taxes |
15 |
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ARTICLE IV. |
CONDITIONS PRECEDENT TO LOANS |
16 |
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4.01 |
Conditions of Effectiveness |
16 |
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4.02 |
Conditions to All Loans |
17 |
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ARTICLE V. |
REPRESENTATIONS AND WARRANTIES |
17 |
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5.01 |
Existence, Qualification and Power; Compliance with Laws |
17 |
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5.02 |
Authorization; No Contravention |
17 |
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5.03 |
Governmental Authorization; Other Consents |
18 |
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5.04 |
Binding Effect |
18 |
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5.05 |
Liens |
18 |
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5.06 |
Margin Regulations; Investment Company Act |
18 |
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5.07 |
Collateral Documents |
18 |
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5.08 |
Solvency |
18 |
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ARTICLE VI. |
AFFIRMATIVE COVENANTS |
18 |
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6.01 |
Financial Statements |
19 |
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Page
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6.02 |
Payment of Obligations |
19 |
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6.03 |
Preservation of Existence, Etc |
19 |
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6.04 |
Compliance with Laws |
19 |
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6.05 |
Books and Records |
19 |
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6.06 |
Use of Proceeds |
19 |
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6.07 |
Covenant to Guarantee Obligations and Give Security |
20 |
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6.08 |
Further Assurances |
21 |
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ARTICLE VII. |
NEGATIVE COVENANTS |
21 |
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7.01 |
Liens |
21 |
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7.02 |
Indebtedness |
21 |
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7.03 |
Fundamental Changes |
21 |
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7.04 |
Dispositions |
21 |
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7.05 |
Change in Nature of Business |
22 |
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7.06 |
Use of Proceeds |
22 |
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ARTICLE VIII. |
EVENTS OF DEFAULT AND REMEDIES |
22 |
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8.01 |
Events of Default |
22 |
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8.02 |
Remedies upon Event of Default |
24 |
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8.03 |
Application of Funds |
24 |
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ARTICLE IX. |
MISCELLANEOUS |
25 |
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9.01 |
Amendments, Etc |
25 |
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9.02 |
Notices; Effectiveness; Electronic Communication |
25 |
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9.03 |
No Waiver; Cumulative Remedies |
26 |
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9.04 |
Expenses; Indemnity; Damage Waiver |
26 |
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9.05 |
Payments Set Aside |
27 |
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9.06 |
Successors and Assigns |
27 |
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9.07 |
Right of Setoff |
28 |
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9.08 |
Interest Rate Limitation |
28 |
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9.09 |
Counterparts; Integration; Effectiveness |
28 |
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9.10 |
Survival of Representations and Warranties |
29 |
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9.11 |
Severability |
29 |
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9.12 |
Governing Law; Jurisdiction; Etc |
29 |
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9.13 |
Waiver of Jury Trial |
30 |
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Page
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SIGNATURES |
S-1 |
EXHIBITS
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Form of |
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A |
Loan Notice |
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B |
Guaranty |
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C |
Security Agreement |
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D |
Subsidiary Guaranty |
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CREDIT AGREEMENT This CREDIT AGREEMENT (this "Agreement") is entered into as of December 10, 2009 between BERKADIA COMMERCIAL MORTGAGE LLC, a Delaware limited liability company (the "Borrower"), and BH FINANCE LLC, a Nebraska limited liability company (the "Lender"). The Borrower has requested that the Lender provide a revolving credit facility, and the Lender is willing to do so on the terms and conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: "Affiliate" means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. "Agreement" has the meaning specified in the introductory paragraph hereto. "APA" means that certain Asset Put Agreement, dated September 2, 2009, by and among the Borrower (f/k/a Berkadia III, LLC), Capmark Financial Group, Inc., Capmark Finance Inc. and Capmark Capital Inc., and solely with respect to specified Sections thereof, Berkshire Hathaway Inc. and Leucadia National Corporation. "Applicable Rate" means, as of any date of determination, an interest rate per annum equal to the greater of (i) 2.0%, and (ii) the sum of (a) the three-month LIBOR (as reported two (2) Business Days prior to such date of determination on the Telerate Page 3750 (or if such screen shall cease to be publicly available, as reported on Reuters Screen page "LIBO" or by any other publicly available source of such market rate as determined by the Lender from time to time)) for London interbank offered rates for U.S. Dollar deposits and (b) 25 basis points; provided, however, that, if the Lender is unable to obtain the three-month LIBOR as specified herein, then the Applicable Rate shall be 2.0%. "Availability Period" means the period from and including the Effective Date to the earlier of (a) the Maturity Date, and (b) the date of termination of the Commitment of the Lender to make Loans pursuant to Section 8.02. "Bankruptcy Court Order" has the meaning given to such term in the APA. "Borrower" has the meaning specified in the introductory paragraph hereto.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are required or authorized to close under the Laws of, or
are in fact closed in, the States of New York and Nebraska. "Change of
Control" means an event or series of events by which (a) the holders of the
equity securities of the Guarantor immediately prior to such event or events
would hold less than 50% of the equity securities of the Guarantor and less than
50% of the voting power of the surviving or resulting entity immediately after
such event events; or (b) any Person or two or more Persons acting in concert
shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation thereof, will result in its or
their acquisition of the power to exercise, directly or indirectly, a
Controlling influence over the management or policies of the Guarantor, or
Control over the equity securities of the Guarantor entitled to vote for members
of the management committee or equivalent governing body of the Guarantor on a
fully-diluted basis (and taking into account all such securities that such
Person or group has the right to acquire pursuant to any option right)
representing 30% or more of the combined voting power of such securities;
provided, however, that neither of the foregoing shall constitute a Change of
Control so long as Ian M. Cumming and Joseph S. Steinberg beneficially own,
individually or in the aggregate, not less than 10% of the outstanding common
Equity Interests of the Guarantor. "Closing" has the meaning given to such
term in the APA. "Code" means the Internal Revenue Code of 1986.
"Collateral" means all of the "Collateral" referred to in the Collateral
Documents and all of the other property that is or is intended under the terms
of the Collateral Documents to be subject to Liens in favor of the Secured
Parties. "Collateral Documents" means, collectively, the Security Agreement,
each of collateral assignments, security agreements, pledge agreements or other
similar agreements delivered to the Lender pursuant to Sections 6.07 and 6.08,
and each of the other agreements, instruments or documents that creates or
purports to create a Lien in favor of Secured Parties. "Commitment" means the
Lender153s agreement to make Loans to the Borrower pursuant to Section 2.01 on the
terms and conditions set forth in this Agreement, in an aggregate principal
amount at any time outstanding not to exceed One Billion Dollars
($1,000,000,000). "Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound. "Control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and all
other liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rear-
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rangement, receivership, insolvency, reorganization, or similar debtor relief
Laws of the United States or other applicable jurisdictions from time to time in
effect and affecting the rights of creditors generally. "Default" means any
event or condition that constitutes an Event of Default or that, with the giving
of any notice, passage of time or both, would be an Event of Default. "Default
Rate" means an interest rate equal to the Applicable Rate plus 2% per annum.
"Disposition" or "Dispose" means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith. "Dollar" and "$" mean lawful money of the United States.
"DUS Program" means the Delegated Underwriting and Servicing Program of Fannie
Mae in which the Borrower participates. "Dynex Fannie Mae Note" has the
meaning given to such term in the APA. "Effective Date" means the date on
which the conditions specified in Section 4.01 are satisfied or waived by the
Lender. "Equity Interests" means, with respect to any Person, all of the
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the warrants, options or other rights for the purchase or
acquisition from such Person of shares of capital stock of (or other ownership
or profit interests in) such Person, all of the securities convertible into or
exchangeable with such Person for shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, options or rights for the
purchase or acquisition from such Person of such securities (or such other
interests), and all of the other ownership or profit interests in such Person
(including partnership, member or trust interests therein), whether voting or
nonvoting. "ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code); provided, however, that none of
Berkshire Hathaway Inc. and its Affiliates or Leucadia National Corporation and
its Affiliates, in each case other than the Borrower and the Borrower153s
Subsidiaries, shall be deemed to be ERISA Affiliates for purposes of this
Agreement. "ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is in reorganization;
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(d) the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Sections 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate. "Event of Default" means an event specified as such in Section
8.01. "Excluded Taxes" means, with respect to the Lender or any other
recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, taxes imposed on or measured by its overall net income
(however denominated) by the United States of America (or any political
subdivision thereof). "FRB" means the Board of Governors of the Federal
Reserve System of the United States. "Funding Account" means an account
designated by the Borrower by written notice to the Lender, including pursuant
to a Loan Notice (which may be changed by Borrower by providing the Lender with
a new written notice). "GAAP" means generally accepted accounting principles
in the United States set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant
segment of the accounting profession in the United States, that are applicable
to the circumstances as of the date of determination, consistently applied.
"Governmental Authority" means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government. "Guarantee"
means, as to any Person, any (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other financial obligation payable or performable by another
Person (the "primary obligor") in any manner, whether directly or indirectly,
and including any obligation of such Person, direct or indirect, (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other financial obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or financial per-
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formance thereof or to protect such obligee against loss in respect thereof
(in whole or in part), or (b) any Lien on any assets of such Person securing any
Indebtedness or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness to obtain any such
Lien). The amount of any Guarantee shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term "Guarantee" as a
verb has a corresponding meaning. "Guarantor" means Leucadia National
Corporation. "Guaranty" means the Guaranty made by the Guarantor in favor of
the Lender substantially in the form of Exhibit B. "Indebtedness" means, as to
any Person at a particular time, without duplication, all of the following,
whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds (other than performance bonds),
debentures, notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers153 acceptances, bank
guaranties, surety bonds and similar instruments; (c) all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable and accrued obligations incurred in
the ordinary course of business); (d) indebtedness or other
obligations of a third party (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether or
not such indebtedness or other obligations shall have been assumed by such
Person or is limited in recourse, but limited to the fair market value of such
property; (e) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Equity Interest
in such Person or any other Person, valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and (f) all Guarantees
of such Person in respect of any of the foregoing. For all purposes hereof,
the Indebtedness of any Person shall include the Indebtedness of any partnership
or joint venture (other than a joint venture that is itself a corporation,
limited partnership or limited liability company) in which such Person is a
general partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person.
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"Indemnified Taxes" means Taxes other than Excluded Taxes. "Indemnitee" has
the meaning specified in Section 9.04(b). "Interest Payment Date" means the
first Business Day of each April, July, October and January. "Interest Rate
Contracts" means all interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and interest rate insurance.
"Laws" means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law. "Lender" has the meaning
specified in the introductory paragraph hereto. "Lien" means any mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to Real
Property, and any financing lease having substantially the same economic effect
as any of the foregoing). "Loan" means an extension of credit by the Lender to
the Borrower made pursuant to Article II. "Loan Documents" means this
Agreement, each Note, the Security Agreement, the Guaranty, the Subsidiary
Guaranty and each other Collateral Document. "Loan Notice" means a notice
requesting a Loan, pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A, or such other form as may be agreed
between the Borrower and the Lender. "Loan Parties" means, collectively, the
Borrower, the Guarantor and the Subsidiary Guarantors. "Material Adverse
Effect" means (a) a material adverse change in, or a material adverse effect
upon, the operations, business, properties, liabilities (actual or contingent)
or condition (financial or otherwise) of the Borrower and its Subsidiaries
(taken as a whole); (b) a material impairment of the rights and remedies of the
Lender under any Loan Document or the ability of any Loan Party to perform its
obligations under any Loan Document to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document to which it is a party.
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"Maturity Date" means December 10, 2014; provided, however, that if such date
is not a Business Day, the Maturity Date shall be the next preceding Business
Day. "Mortgage Business" has the meaning given to such term in the APA, and
includes business of a type that is similar, complementary or reasonably related
to, the Mortgage Business, and reasonable extensions thereof. "Multiemployer
Plan" means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is
obligated to make contributions, or during the preceding five plan years, has
made or been obligated to make contributions. "Note" means a promissory note
made by the Borrower in favor of the Lender or its assigns evidencing Loans made
by the Lender, in form and substance reasonably satisfactory to the Lender.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue after
the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding. "Organization Documents" means, (a) with respect to any
corporation, the certificate or articles of incorporation and the bylaws (or
equivalent or comparable constitutive documents with respect to any non-United
States jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement;
and (c) with respect to any partnership, joint venture, trust or other form of
business entity, the partnership, joint venture or other applicable agreement of
formation or organization and any agreement, instrument, filing or notice with
respect thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity. "Other Taxes" means all present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or under any other Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document. "Outstanding Amount" means with
respect to Loans outstanding at any time, the aggregate outstanding principal
amount thereof after giving effect to any borrowing of Loans occurring on such
date. "PBGC" means the Pension Benefit Guaranty Corporation. "Pension Plan"
means any "employee pension benefit plan" (as such term is defined in Section
3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of
ERISA
- 7 -
and is sponsored or maintained by the Borrower or any ERISA Affiliate or to
which the Borrower or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years. "Permitted Indebtedness" means:
(a) the Obligations under the Loan Documents; (b) All of
Borrower's obligations to Fannie Mae under the DUS Program;
(c) Guarantee obligations incurred by the Borrower in respect of
Indebtedness of any other Loan Party that is otherwise permitted by Section 7.02
(other than clause (a) above); (d) capital lease obligations and
purchase money Indebtedness incurred by the Borrower to finance the acquisition
of fixed assets, together with any Permitted Refinancing of any Indebtedness
permitted by this clause (d); provided, however, that the aggregate outstanding
principal amount of all such capital lease obligations and purchase money
Indebtedness shall not exceed $10,000,000 at any time;
(e) Indebtedness arising from intercompany loans owing to any Loan
Party; (f) Indebtedness arising under any performance or surety bond
entered into in the ordinary course of business; (g) Obligations
under Interest Rate Contracts entered into in the ordinary course of business;
(h) the Dynex Fannie Mae Note and any Permitted Refinancings thereof;
and (i) unsecured Indebtedness not otherwise permitted by the
foregoing paragraphs (a) through (h); provided, however, that the aggregate
outstanding principal amount of all such unsecured Indebtedness shall not exceed
$20,000,000 at any time. "Permitted Liens" means: (a) Liens
pursuant to any Loan Document; (b) All Liens granted by the Borrower
in favor of Fannie Mae pursuant to the DUS Program; (c) Liens for
taxes, assessments or other governmental charges or levies not yet delinquent or
thereafter payable without penalty not yet due or which are being contested in
good faith and by appropriate actions, if adequate reserves with respect thereto
are maintained on the books of the applicable Person in accordance, and to the
extent required by, with GAAP;
- 8 -
(d) carriers153, warehousemen153s, mechanics153, materialmen153s,
repairmen153s or other like Liens (i) arising in the ordinary course of business
which are not overdue for a period of more than 60 days, or (ii) which are being
contested in good faith and by appropriate actions, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with, and to the extent required by, GAAP; (e) pledges or
deposits in the ordinary course of business in connection with workers153
compensation, unemployment insurance and other social security legislation,
other than any Lien imposed by ERISA; (f) deposits to secure the
performance of bids, trade contracts and leases (other than Indebtedness for
borrowed money), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course of
business; (g) easements, rights-of-way, restrictions and other
similar encumbrances affecting Real Property which, in the aggregate and which
do not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of the
applicable Person; (h) present or future zoning laws and ordinances
or other laws and ordinances restricting the occupancy, use, or enjoyment of
Real Property; (i) Liens securing writs of attachments or similar
instruments or judgments for the payment of money not constituting an Event of
Default under Section 8.01(h); (j) bankers153 Liens, rights of setoff
and other similar Liens existing solely with respect to cash and cash
equivalents on deposit in one or more accounts maintained by any Loan Party, in
each case granted in the ordinary course of business in favor of the bank or
banks with which such accounts are maintained, securing amounts owing to such
bank with respect to cash management and other account arrangements; provided
that, unless such Liens are non-consensual and arise by operation of law, in no
case shall any such Liens secure (either directly or indirectly) the repayment
of any Indebtedness for borrowed money; (k) Liens in favor of
lessors securing operating leases; (l) purchase money Liens granted
by the Borrower or any of its Subsidiaries (including the interest of a lessor
under a capital lease and purchase money Liens to which any property is subject
at the time, on or after the date hereof, of the Borrower153s or such Subsidiary153s
acquisition thereof) securing Indebtedness permitted under Section 7.02 and
limited in each case to the property purchased with the proceeds of such
purchase money Indebtedness or subject to such capital lease;
(m) the filing of UCC financing statements solely as a precautionary
measure in connection with operating leases; and
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(n) Liens not otherwise permitted by the foregoing paragraphs (a)
through (m) securing obligations or other liabilities (other than Indebtedness)
of any Loan Party; provided, however, that the aggregate outstanding amount of
all such obligations and liabilities shall not exceed $25,000,000 at any time.
"Permitted Refinancing" means renewals, extensions, refinancings and refundings
of any Permitted Indebtedness that (a) are in an aggregate principal amount not
greater than the principal amount of such Permitted Indebtedness, and are on
terms no less favorable to any Loan Party obligated thereunder and (b) have a
weighted average maturity and final maturity (measured as of the date of such
renewal, refinancing, extension or refunding) no shorter than that of such
Permitted Indebtedness. "Person" means any natural person, corporation,
limited liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity. "Plan" means any
"employee benefit plan" (as such term is defined in Section 3(3) of ERISA)
established by the Borrower or, with respect to any such plan that is subject to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate. "Purchase
and Sale" has the meaning given to such term in the APA. "Real Property"
means, collectively, all right, title and interest (including any leasehold,
mineral or other estate) in and to any and all parcels of or interests in real
property owned, leased or operated by any Person, whether by lease, license or
other means, together with, in each case, all easements, hereditaments and
appurtenances relating thereto, all improvements and appurtenant fixtures and
equipment, all general intangibles and contract rights and other property and
rights incidental to the ownership, lease or operation thereof. "Related
Parties" means, with respect to any Person, such Person153s Affiliates and the
partners, directors, officers, employees, agents, trustees and advisors of such
Person and of such Person153s Affiliates. "Reportable Event" means any of the
events set forth in Section 4043(c) of ERISA, other than events for which the 30
day notice period has been waived. "Responsible Officer" means the chief
executive officer, president, chief financial officer, treasurer, managing
member, management committee member or manager of a Loan Party and any other
officer of the applicable Loan Party so designated by any of the foregoing
officers in a notice to the Lender. Any document delivered hereunder that is
signed by a Responsible Officer of a Loan Party shall be conclusively presumed
to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party. "Secured
Parties" means, collectively, the Lender and the other Persons the Obligations
owing to which are or are purported to be secured by the Collateral under the
terms of the Collateral Documents.
- 10 -
"Security Agreement" means the security agreement in substantially the form
of Exhibit C executed and delivered pursuant to Section 4.01(a)(iv). "Solvent"
and "Solvency" mean, with respect to any Person on any date of determination,
that on such date (a) the fair value of the property of such Person is greater
than the total amount of liabilities, including contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person153s ability to pay such debts and liabilities as they mature,
(d) such Person is not engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such Person153s property would
constitute an unreasonably small capital, and (e) such Person is able to pay its
debts and liabilities, contingent obligations and other commitments as they
mature in the ordinary course of business. The amount of contingent liabilities
at any time shall be computed as the amount that, in the light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability. "Subsidiary"
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities
or other interests having ordinary voting power for the election of directors or
other governing body (other than securities or interests having such power only
by reason of the happening of a contingency) or a majority of the economic
interests are at the time beneficially owned by such Person. "Subsidiary
Guarantors" means Berkadia Commercial Mortgage Inc. and each other Subsidiary of
the Borrower organized under the Laws of a jurisdiction in the United States
from time to time. "Subsidiary Guaranty" means the Subsidiary Guaranty made by
the Subsidiary Guarantors in favor of the Lender substantially in the form of
Exhibit D, or such other form as may be agreed between the Borrower and the
Lender. "Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto. "UCC" means the Uniform Commercial Code as in effect in
the State of New York; provided that, if perfection or the effect of perfection
or non-perfection or the priority of any security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, "UCC" means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the provisions
hereof relating to such perfection, effect of perfection or non-perfection or
priority. "United States" means the United States of America. 1.02 Other
Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:
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(a) The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter
forms. The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation." The word "will" shall be construed
to have the same meaning and effect as the word "shall." Unless the context
requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person153s successors and assigns, (iii) the words
"herein," "hereof" and "hereunder," and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its entirety
and not to any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending,
replacing or interpreting such law and any reference to any law or regulation
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights. (b) In the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to but excluding";
and the word "through" means "to and including." (c) Section headings herein
and in the other Loan Documents are included for convenience of reference only
and shall not affect the interpretation of this Agreement or any other Loan
Document. 1.03 Accounting Terms. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement not specifically or
completely defined herein shall be prepared in conformity with, GAAP applied on
a consistent basis, as in effect from time to time, except as otherwise
specifically prescribed herein. 1.04 Times of Day. Unless otherwise
specified, all references herein to times of day shall be references to Eastern
time (daylight or standard, as applicable). ARTICLE II. THE COMMITMENT AND
LOANS 2.01 Loans. Subject to the terms and conditions set forth herein, the
Lender agrees to make Loans to the Borrower from time to time, on any Business
Day during the Availability Period, in an aggregate amount not to exceed at any
time outstanding the amount of the Lender153s
- 12 -
Commitment. Within the limits of the Lender153s Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.01, prepay under Section 2.03, and reborrow under this Section 2.01.
2.02 Loans and Loan Notices. (a) Each Loan shall be made upon the Borrower153s
irrevocable notice to the Lender, which may be given by telephone. Each such
notice must be received by the Lender not later than 5:00 p.m. (i) on the
Business Day prior to the requested date of such Loan. Each telephonic notice
by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly, but
in any case prior to the funding of the Loan, by delivery to the Lender of a
written Loan Notice, appropriately completed and signed by a Responsible Officer
of the Borrower (which confirmation may be delivered by email or
facsimile). Each Loan shall be in a minimum principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. Each Loan Notice (whether
telephonic or written) shall specify (i) the requested date of the Loan (which
shall be a Business Day) and (ii) the principal amount of the Loan to be
borrowed. (b) Following receipt of a Loan Notice and upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Loan is the
initial Loan, Section 4.01), the Lender shall make the principal amount of the
Loan to be borrowed as specified in the applicable Loan Notice available to the
Borrower by wire transfer of immediately available funds to the Funding
Account. No more than one (1) Loan shall be made to the Borrower on any
Business Day. (c) Following the occurrence and existence of a Default, no
Loans may be requested without the prior consent of the Lender.
2.03 Prepayments. (a) The Borrower may at any time or from time to time
voluntarily prepay Loans in whole or in part without premium or penalty;
provided that any prepayment shall be in a minimum principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof or, if less, the
entire principal amount then outstanding. Any prepayment of Loans shall be
accompanied by all accrued and unpaid interest on the amount prepaid. (b) If
for any reason the Outstanding Amount at any time exceeds the Commitment then in
effect, the Borrower shall immediately prepay Loans in an aggregate amount equal
to such excess. 2.04 Repayment of Loans. (a) Following the occurrence and
during the existence of an Event of Default, all amounts received by the Lender
shall be applied first, to the costs and expenses of protecting and preserving
the security interests of the Lender under the Loan Documents, second, to the
costs and expenses of protecting and preserving the Collateral, third, to all
other outstanding financial Obligations due under this Agreement and the other
Loan Documents (other than principal and interest on the Loans), fourth, to
accrued and unpaid interest on the Loans, fifth, to the aggregate outstanding
principal balance of the Loans and, after all outstanding amounts evidenced and
secured by the Loan Documents have been paid in full and the Loan Parties have
performed their
- 13 -
obligations under the Loan Documents and the Commitment has terminated, the
balance, if any, shall be delivered to the Borrower. (b) The Borrower shall
repay the Outstanding Amount to the Lender on the Maturity Date, plus all
accrued and unpaid interest, and all other Obligations then outstanding.
2.05 Interest. (a) Subject to the provisions of subsection (b) below, the
Loans shall bear interest on the outstanding principal amount thereof at a rate
per annum equal to the Applicable Rate then in effect. The Applicable Rate
shall be set on the Effective Date and shall be reset on each Interest Payment
Date thereafter. (b) (i) If any amount of principal of any Loan is not paid
when due, whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable
Laws. (ii)If any amount (other than principal of any Loan)
payable by the Borrower under any Loan Document is not paid when due, whether at
stated maturity, by acceleration or otherwise, then upon the request of the
Lender, such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. (iii)While any Event of Default
exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws. (iv)Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and payable upon
demand. (c) Interest on the Loans shall be due and payable in arrears on each
Interest Payment Date, the Maturity Date and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance
with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law. 2.06 Computation
of Interest. (a) All computations of interest hereunder shall be made on the
basis of a 360-day year and actual days elapsed. Interest shall accrue on each
Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall,
subject to Section 2.08, bear interest for one day. Each determination by the
Lender of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error. 2.07 Evidence of Debt. The Loans made by the
Lender shall be evidenced by one or more accounts or records maintained by the
Lender in the ordinary course of business. The accounts or records maintained
by the Lender shall be conclusive absent manifest error of the
- 14 -
amount of the Loans made by the Lender to the Borrower and the interest and
payments thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrower hereunder to
pay any amount owing with respect to the Obligations. Upon the request of the
Lender, the Borrower shall execute and deliver to the Lender a Note, which shall
evidence the Lender153s Commitment and Loans in addition to such accounts or
records. The Lender may attach schedules to its Note and endorse thereon the
date, amount and maturity of its Loans and payments with respect thereto.
2.08 Payments Generally; Lender153s Clawback. All payments to be made by the
Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by the Borrower hereunder shall be made to the Lender in Dollars
and in immediately available funds not later than 4:00 p.m. on the date
specified for payment herein. All payments received by the Lender after 4:00
p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be
reflected in computing interest. ARTICLE III. TAXES, YIELD PROTECTION AND
ILLEGALITY 3.01 Taxes. (a) Payments Free of Taxes. Any and all payments by
or on account of any obligation of a Loan Party hereunder or under any other
Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if the
applicable Loan Party shall be required by applicable law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Lender receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the applicable Loan Party shall
make such deductions and (iii) the applicable Loan Party shall timely pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law. (b) Payment of Other Taxes by the Borrower. Without limiting
the provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the Lender,
and shall make payment in respect thereof within 10 days after demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the Lender
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by the Lender shall be conclusive absent manifest error.
- 15 -
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by a Loan Party to a Governmental Authority,
such Loan Party shall deliver to the Lender evidence of such payment reasonably
satisfactory to the Lender. ARTICLE IV. CONDITIONS PRECEDENT TO LOANS
4.01 Conditions of Effectiveness. The effectiveness of this Agreement is
subject to satisfaction of the following conditions precedent: (a) The
Lender153s receipt of the following, each of which shall be an original properly
executed by a Responsible Officer of the signing Loan Party (or an electronic
copy of an executed original), and each in form and substance satisfactory to
the Lender: (i) executed counterparts of this Agreement, the Guaranty and the
Subsidiary Guaranty; (ii) upon the Lender153s request, a Note executed by the
Borrower and dated as of the Effective Date in favor of the Lender; (iii) a
copy of the Bankruptcy Court Order; (iv) the Security Agreement, duly executed
by the Borrower and the Subsidiary Guarantor, together with:
(A) proper financing statements in form appropriate for filing under
the UCC of all jurisdictions that the Lender requests, covering the Collateral
described in the Security Agreement, (B) evidence of the completion
of all other actions, recordings and filings of or with respect to the Security
Agreement that the Lender may deem necessary or desirable in order to perfect
the Liens created thereby, and (C) evidence that all other action
that the Lender may deem necessary or desirable in order to perfect the Liens
created under the Security Agreement has been taken; (v) such certificates of
resolutions or other action, incumbency certificates and/or other certificates
of Responsible Officers of each Loan Party as the Lender may reasonably require
evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Lender may reasonably require to
evidence that each Loan Party is duly organized or formed, and that each Loan
Party is validly existing, in good standing and qualified to engage in
- 16 -
business in each jurisdiction where the conduct of its business requires such
qualification, except to the extent that failure to do so would not reasonably
be expected to have a Material Adverse Effect; (vii) a certificate signed by a
Responsible Officer of the Borrower, dated as of the Effective Date, certifying
(A) that the conditions specified in Sections 4.02(a) and (b) have been
satisfied and (B) that there has been no event or circumstance since the
formation of the Borrower as a Delaware limited liability company on August 26,
2009 that has had or could be reasonably expected to have, either individually
or in the aggregate, a Material Adverse Effect; and (viii) such other
assurances, certificates, documents, consent or opinions as the Lender
reasonably may require; (b) pursuant to the terms of the APA, the Closing
effecting the Purchase and Sale shall have occurred; and (c) the Effective
Date shall have occurred on or before January 31, 2010. 4.02 Conditions to All
Loans. The obligation of the Lender to honor any Loan Notice is subject to the
following conditions precedent: (a) The representations and warranties of the
Borrower and each other Loan Party contained in Article V or any other Loan
Document, or which are contained in any document furnished at any time under or
in connection herewith or therewith, shall be true and correct in all material
respects on and as of the date of such Loan Notice (except where already
qualified by materiality, in which case such representation and warranty shall
be true and correct in all respects), except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date. (b) No Default
shall exist, or would result from such proposed Loan or from the application of
the proceeds thereof. ARTICLE V. REPRESENTATIONS AND WARRANTIES The
Borrower represents and warrants to the Lender that the statements contained in
this Article V are true and correct as of (1) the Effective Date and (2) the
Closing: 5.01 Existence, Qualification and Power; Compliance with Laws. The
Borrower (a) is duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its organization, (b) has all requisite
power and authority and all requisite governmental licenses, authorizations,
consents and approvals to (i) own or lease its assets and carry on the Mortgage
Business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, and (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where the conduct of the
Mortgage Business requires such
- 17 -
qualification or license, except in each case referred to in clause (b)(i) or
(c), to the extent that failure to do so would not reasonably be expected to
have a Material Adverse Effect. 5.02 Authorization; No Contravention. The
execution, delivery and performance by the Borrower of each Loan Document to
which it is party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of the Borrower153s Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, or require any
payment to be made under any material Contractual Obligation to which the
Borrower is a party; or (c) violate any Law. The Borrower is in compliance with
all Contractual Obligations referred to in clause (b), except to the extent that
failure to do so would not reasonably be expected to have a Material Adverse
Effect. 5.03 Governmental Authorization; Other Consents. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement has been, and each other Loan Document to
which the Borrower is a party, when delivered hereunder, will have been, duly
executed and delivered by the Borrower. This Agreement constitutes, and each
other Loan Document to which the Borrower is a party when so delivered will
constitute, a legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors153 rights generally, and general
principles of equity. 5.05 Liens. The property of the Borrower is subject to
no Liens, other than Permitted Liens. 5.06 Margin Regulations; Investment
Company Act. (a) The Borrower is not engaged and will not engage, principally
or as one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary
of the Borrower is or is required to be registered as an "investment company"
under the Investment Company Act of 1940. 5.07 Collateral Documents. The
provisions of the Security Agreement are effective to create, in favor of the
Lender, valid and perfected first priority Liens on all property described in
the Security Agreement subject only to the Permitted Liens. 5.08 Solvency. The
Borrower is, individually and together with its Subsidiaries on a consolidated
basis, Solvent.
- 18 -
ARTICLE VI. AFFIRMATIVE COVENANTS So long as the Lender shall have any
Commitment hereunder, or any Loan or other Obligation hereunder shall remain
unpaid or unsatisfied, the Borrower shall: 6.01 Financial Statements. To the
extent that the Lender shall not have otherwise received any of the following
items, deliver to the Lender, in form and detail reasonably satisfactory to the
Lender: (a) within 120 days after the end of each fiscal year of the Borrower
(commencing with the fiscal year ending December 31, 2009), a consolidated
balance sheet of the Borrower as at the end of such fiscal year, and the related
consolidated statements of operations and cash flows for such fiscal year, all
in reasonable detail and prepared in accordance with GAAP; and (b) within 60
days after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower (commencing with the fiscal quarter ended March 31, 2010),
a consolidated balance sheet of the Borrower as at the end of such fiscal
quarter, and the related consolidated statements of operations and cash flows
for such fiscal quarter and for the portion of the Borrower153s fiscal year then
ended, all in reasonable detail and prepared in accordance with GAAP.
6.02 Payment of Obligations. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all Tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and with adequate reserves; (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property, unless
the same are being contested in good faith by appropriate proceedings diligently
conducted and with adequate reserves; and (c) all Indebtedness, as and when due
and payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness. 6.03 Preservation of
Existence, Etc. (a) Preserve, renew and maintain in full force and effect
its legal existence and good standing under the Laws of the jurisdiction of its
organization; and (b) except to the extent that failure to do so would not
reasonably be expected to have a Material Adverse Effect, take all reasonable
action to maintain all rights, privileges, permits and licenses necessary or
desirable in the normal conduct of its business. 6.04 Compliance with
Laws. Comply in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate actions; or (b) the failure to comply therewith would not reasonably
be expected to have a Material Adverse Effect. 6.05 Books and Records. (a)
Maintain proper books of record and account, in which full, true and correct
entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the
Borrower; and (b)
- 19 -
maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower. 6.06 Use of Proceeds. Use the proceeds of the
Loans for any one or more of the following: (i) to fund the purchase of
outstanding advances and loans from Capmark Finance Inc., Capmark Capital Inc.
or Capmark Financial Group Inc., (ii) to fund the purchase of mortgage servicing
rights and (iii) to fund ongoing working capital and other general corporate
purposes of the Borrower. 6.07 Covenant to Guarantee Obligations and Give
Security. (a) Upon the formation or acquisition of any new direct or indirect
Subsidiary organized under the Laws of a jurisdiction in the United States by
the Borrower, the Borrower shall (at its expense) promptly, but in any event
within 10 Business Days after any such formation or acquisition: (i) cause
such Subsidiary to duly execute and deliver to the Lender a Subsidiary Guaranty
or a joinder to a Subsididary Guaranty, as specified by and in form and
substance reasonably satisfactory to the Lender, guaranteeing the other Loan
Parties153 obligations under the Loan Documents, (ii) cause such Subsidiary to
duly execute and deliver to the Lender deeds of trust, trust deeds, deeds to
secure debt, mortgages and security and pledge agreements or joinders to the
Security Agreement, as specified by and in form and substance reasonably
satisfactory to the Lender, securing payment of all the Obligations of such
Subsidiary under the Loan Documents and constituting Liens on all real and
personal properties of such Subsidiary (other than real and personal property
subject to Permitted Liens and Equity Interests in any Subsidiary organized
outside of the United States), and (iii) cause such Subsidiary to take
whatever action (including the recording of mortgages, the filing of UCC
financing statements, the giving of notices and the endorsement of notices on
title documents) requested by the Lender to vest in the Lender valid and
subsisting Liens on all real and personal properties of such Subsidiary (other
than real and personal property subject to Permitted Liens and Equity Interests
in any Subisidiary organized outside of the United States), enforceable against
all third parties in accordance with their terms. (b) Upon the formation or
acquisition of any new direct Subsidiary organized outside of the United States
by the Borrower, the Borrower shall (at its expense) promptly, but in any event
within 10 Business Days after any such formation or acquisition, pledge
sixty-five percent (65%) of such Subsidiary153s outstanding voting stock and stock
equivalents owned by the Borrower and one hundred percent (100%) of such
Subsidiary153s outstanding non-voting stock and stock equivalents owned by the
Borrower for the benefit of the Secured Parties to secure the Obligations.
(c) Upon the acquisition of any real or personal property by the Borrower, the
Borrower shall (at its expense) promptly, but in any event within 10 Business
Days after any such acquisition:
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(i) furnish to the Lender a description of the property so acquired in detail
reasonably satisfactory to the Lender, (ii) duly execute and deliver to the
Lender deeds of trust, trust deeds, deeds to secure debt, mortgages and other
security and pledge agreements, as specified by and in form and substance
satisfactory to the Lender, securing payment of all the Obligations of the
Borrower under the Loan Documents and constituting Liens on all such properties,
and (iii) take all action (including the the filing of UCC financing
statements, the giving of notices and the endorsement of notices on title
documents) requested by the Lender to vest in the Lender (or in any
representative of the Lender designated by it) valid and subsisting Liens on
such property, enforceable against all third parties. 6.08 Further
Assurances. Promptly upon request by the Lender, (a) correct any defect or
error that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, which defect or error the Lender
in its reasonable judgment deems material, and (b) do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and reregister any and all
such further acts, deeds, certificates, assurances and other instruments as the
Lender may reasonably require from time to time in order to (i) carry out more
effectively the purposes of the Loan Documents, (ii) to the fullest extent
permitted by applicable law, subject the Borrower153s properties, assets, rights
or interests to the Liens now or hereafter intended to be covered by any of the
Collateral Documents, (iii) perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and any of the Liens intended to be
created thereunder and (iv) assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Secured Parties the rights granted
or now or hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any Loan
Document to which any Loan Party is or is to be a party. ARTICLE VII.
NEGATIVE COVENANTS So long as the Lender shall have any Commitment hereunder
or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied,
the Borrower shall not directly or indirectly: 7.01 Liens. Except with the
approval of the Lender, create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than Permitted Liens. 7.02 Indebtedness. Except with the
approval of the Lender, create, incur, assume or suffer to exist any
Indebtedness, other than Permitted Indebtedness. 7.03 Fundamental
Changes. Merge, dissolve, liquidate, consolidate with or into another Person,
or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person. 7.04 Dispositions. Make any Disposition or enter into
any agreement to make any Disposition, except (a) Dispositions of obsolete,
surplus or worn out property, whether now
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owned or hereafter acquired, in the ordinary course of business, and (b)
Dispositions of inventory or assets in the ordinary course of the Mortgage
Business; provided, however, that any Disposition pursuant to clauses (a) and
(b) shall be for fair market value. 7.05 Change in Nature of Business. Except
with the approval of the Lender, (a) engage in any practice, take any action, or
enter into any transaction outside the ordinary course of business or (b) engage
in any material line of business other than the Mortgage Business or any
business substantially related or incidental thereto. 7.06 Use of
Proceeds. Use the proceeds of any Loan, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit to
others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose. ARTICLE VIII. EVENTS OF
DEFAULT AND REMEDIES 8.01 Events of Default. Any of the following shall
constitute an Event of Default: (a) Non-Payment. The Borrower or any other
Loan Party fails to pay (i) when and as required to be paid herein, any amount
of principal of any Loan, or (ii) within three Business Days after the same
becomes due, any interest on any Loan, or (iii) within three Business Days after
the same becomes due, any other amount payable hereunder or under any other Loan
Document; or (b) Specific Covenants. The Borrower fails to perform or observe
any term, covenant or agreement contained in any of Section 6.01, 6.03, 6.06,
6.07 or Article VII; or (c) Other Defaults. Any Loan Party fails to perform
or observe any other covenant or agreement (not specified in subsection (a) or
(b) above) contained in any Loan Document on its part to be performed or
observed and such failure continues for 30 days; or (d) Representations and
Warranties. Any representation, warranty, certification or statement of fact
made or deemed made by or on behalf of the Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered in connection
herewith or therewith shall be incorrect or misleading in any material respect
when made or deemed made; or (e) Cross-Default. The Borrower (i) fails to
make any payment when due after giving effect to any applicable notice and cure
periods (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) in respect of any Indebtedness or Guarantee (other than
Indebtedness hereunder), or (ii) fails to observe or perform any other agreement
or condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, in each case after giving effect to any applicable notice and cure
periods, the effect of which default or other event is to cause, or to permit
the holder or hold-
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ers of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; provided, however, that it shall not constitute an Event
of Default pursuant to this paragraph (e) unless the aggregate amount of all
such Indebtedness referred to in clauses (i) and (ii) exceeds $10,000,000 at any
one time; or (f) Insolvency Proceedings, Etc. Any Loan Party institutes or
consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any
such Person or to all or any material part of its property is instituted without
the consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party becomes unable or
admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of
any such Person and is not released, vacated or fully bonded within 60 days
after its issue or levy; or (h) Judgments. There is entered against the
Borrower (i) a final judgment or order for the payment of money in an aggregate
amount exceeding $10,000,000 (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 20 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or (i) ERISA. (i) An ERISA Event
occurs with respect to a Pension Plan or Multiemployer Plan which has resulted
or could reasonably be expected to result in liability of the Borrower under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an
aggregate amount in excess of $5,000,000, or (ii) the Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of $5,000,000; or
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(j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect; or any Loan Party or any other Person contests
in any manner the validity or enforceability of any Loan Document; or any Loan
Party denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Governmental Approvals. Any Loan Party shall fail to obtain, renew,
maintain or comply with any such governmental approvals as shall be necessary
(i) for the execution, delivery or performance by such Loan Party of its
obligations, or the exercise of its rights, under the Loan Documents, or (ii)
for the grant of the Liens created under the Security Agreement or for the
validity and enforceability or the perfection of or exercise by the Lender of
its rights and remedies under the Security Agreement; or any such governmental
approval shall be revoked, terminated, withdrawn, suspended, modified or
withheld or shall cease to be effective; or any proceeding shall be commenced by
or before any Governmental Authority for the purpose of revoking, terminating,
withdrawing, suspending, modifying or withholding any such governmental approval
and such proceeding is not dismissed within 60 days. 8.02 Remedies upon Event
of Default. If any Event of Default occurs and is continuing, the Lender may
take any or all of the following actions: (a) terminate the obligation of the
Lender to make Loans; (b) declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and all other
amounts owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower;
and (c) exercise all rights and remedies available to it under the Loan
Documents; provided, however, that upon the occurrence of an actual or deemed
entry of an order for relief with respect to the Borrower under the Bankruptcy
Code of the United States, the obligation of the Lender to make Loans shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable, in each case without further act of the Lender. 8.03 Application
of Funds. After the exercise of remedies provided for in Section 8.02 (or after
the Loans have automatically become immediately due and payable as set forth in
the proviso in Section 8.02), any amounts received on account of the Obligations
shall be applied by the Lender in the following order:
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First, to payment of that portion of the Obligations constituting
indemnities, expenses and other amounts (including charges and disbursements of
counsel to the Lender and amounts payable under Article III) payable to the
Lender; Second, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and other Obligations payable to the
Lender; Third, to payment of that portion of the Obligations constituting
unpaid principal of the Loans payable to the Lender; and Last, the balance, if
any, after all of the Obligations have been indefeasibly paid in full, to the
Borrower or as otherwise required by Law. ARTICLE IX. MISCELLANEOUS
9.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent to any departure by the Borrower or
any other Loan Party therefrom, shall be effective unless in writing signed by
the Lender and the Borrower or the applicable Loan Party, as the case may be,
and each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. 9.02 Notices; Effectiveness;
Electronic Communication. (a) Notices Generally. Except in the case of
notices and other communications expressly permitted to be given by telephone
(and except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows: (i) if to the Borrower, to:
Berkadia Commercial Mortgage LLC 118 Welsh Road Horsham, Pennsylvania 19044
Attention: Joseph Funk Electronic mail address: joseph.funk@berkadia.com
Telephone number: (215) 328-3200 Telecopier number: (215) 328-3478
With a copy to:
Thomas Miraglia at address listed above
With a copy to (but which shall not constitute notice):
- 25 -
Leucadia National Corporation 315 Park Avenue South New York, New York 10010
Attention: Joseph A Orlando Electronic mail address: jorlando@leucadia-nyc.com
Telephone number: (212) 460-1900 Telecopier number: (212) 598-3245; and
(ii) if to the Lender, to: BH Finance LLC 3555 Farnam Street Omaha, Nebraska
68131 Attention: Kerby Ham Electronic mail address: ksham@brka.com Telephone
number: (402) 978-5430 Telecopier number: (402) 346-3375
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next Business Day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective when received, except if
received after normal business hours of the recipient, in which case such notice
shall be deemed received upon the opening of business the following day. Any
party hereunder may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other party.
(b) Electronic Communications. Notices and other communications hereunder may
be delivered or furnished by electronic communication (including e-mail) unless
a party hereunder notifies the other party to the contrary. 9.03 No Waiver;
Cumulative Remedies. No failure by the Lender to exercise, and no delay by the
Lender in exercising, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law. 9.04 Expenses; Indemnity; Damage Waiver. (a) Costs and
Expenses. The Borrower shall pay all reasonable out-of-pocket expenses incurred
by the Lender (including the reasonable fees, charges and disbursements of any
counsel for the Lender) in connection with the enforcement or protection of its
rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans
made hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans.
- 26 -
(b) Indemnification by the Borrower. The Borrower shall indemnify the Lender
and each Related Party of the Lender (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee)
incurred by any Indemnitee or asserted against any Indemnitee by any third party
or by the Borrower or any other Loan Party arising out of, in connection with,
or as a result of (i) the execution or delivery of this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby,
(ii) any Loan or the use or proposed use of the proceeds therefrom, or (iii) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
to the extent related to any such Indemnitee solely in its capacity as a direct
or indirect shareholder of the Borrower and without relation to the matters
specified in clauses (i) and (ii) above; provided, further, that the Borrower
shall not be required to indemnify any Indemnitee for the costs and expenses of
more than one legal counsel to all the Indemnitees in any one jurisdiction,
except where an actual conflict of interest between Indemnitees exists.
(c) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds
thereof. (d) Payments. All amounts due under this Section shall be payable
not later than ten Business Days after demand therefor. (e) Survival. The
agreements in this Section shall survive the termination of the Commitment and
the repayment, satisfaction or discharge of all the other Obligations.
9.05 Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to the Lender, or the Lender exercises its right of setoff
pursuant to Section 9.07 below, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then to the extent of such recovery, the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such setoff had
not occurred.
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9.06 Successors and Assigns. (a) Successors and Assigns Generally. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby,
except that neither the Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Lender and the Lender may not assign or otherwise
transfer any of its rights or obligations hereunder except in accordance with
the provisions of subsection (b) of this Section. (b) Assignments by
Lender. The Lender may at any time assign to (a) an Affiliate of the Lender or
(b) any other Person approved by, unless an Event of Default has occurred and is
continuing at such time, the Borrower (such approval not to be unreasonably
withheld or delayed), all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it). From and after the effective date of each assignment and
assumption, such assignee thereunder shall be a party to this Agreement and, to
the extent of the interest assigned, have the rights and obligations of the
Lender under this Agreement, and the Lender thereunder shall, to the extent of
the interest assigned by such assignment and assumption, be released from its
obligations under this Agreement (and, in the case of an assignment and
assumption covering all of the Lender153s rights and obligations under this
Agreement, the Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01 and 9.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment.
9.07 Right of Setoff. If an Event of Default shall have occurred and be
continuing, the Lender and each of its Affiliates are hereby authorized at any
time and from time to time to the fullest extent permitted by applicable law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency, but excluding in any event any
accounts containing trust or escrow deposits) at any time held and other
obligations (in whatever currency) at any time owing by the Lender or any such
Affiliate to or for the credit or the account of the Borrower or any other Loan
Party against any and all of the obligations of the Borrower or such Loan Party
now or hereafter existing under this Agreement or any other Loan Document to the
Lender, irrespective of whether or not the Lender shall have made any demand
under this Agreement or any other Loan Document and although such obligations of
the Borrower or such Loan Party may be contingent or unmatured or are owed to a
branch or office of the Lender different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of the Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that the Lender or its Affiliates may have.
9.08 Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Lender exceeds the Maximum Rate, the
Lender may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize,
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prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder, in each
case, provided that the Loan Parties are not thereby required to make any
greater payments hereunder than would be required prior to any such action.
9.09 Counterparts; Integration; Effectiveness. This Agreement may be executed
in counterparts (and by different parties hereto in different counterparts),
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have been executed by
the parties hereto. Delivery of an executed counterpart of a signature page of
this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement. 9.10 Survival of Representations and
Warranties. All representations and warranties made hereunder and in any other
Loan Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery hereof
and thereof. Such representations and warranties have been or will be relied
upon by the Lender, regardless of any investigation made by the Lender or on
their behalf and notwithstanding that the Lender may have had notice or
knowledge of any Default at the time of any Loan, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied. 9.11 Severability. If any provision of this
Agreement or the other Loan Documents is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be affected
or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. 9.12 Governing Law;
Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. (b) SUBMISSION TO
JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT. EACH OF THE PARTIES HERETO AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS.
- 29 -
THE BORROWER AND EACH OTHER LOAN PARTY HEREBY IRREVOCABLY WAIVE ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, THAT ANY OF THEM MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH JURISDICTIONS.
(c) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.02. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW. 9.13 Waiver of Jury Trial. THE
BORROWER AND EACH OTHER LOAN PARTY, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN
CONNECTION WITH OR RELATING TO, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ANY
OTHER TRANSACTION CONTEMPLATED HEREBY AND THEREBY. THIS WAIVER APPLIES TO ANY
ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.
- 30 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
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EXHIBIT A
LOAN NOTICE
Date: ______________
To: Kerby Ham This notice is delivered pursuant to that certain
Credit Agreement, dated as of December 10, 2009 (as amended, modified,
supplemented or restated and in effect from time to time, the "Credit
Agreement"), among Berkadia Commercial Mortgage LLC, a Delaware limited
liability company and BH Finance LLC, a Nebraska limited liability
company. Capitalized terms used but not defined herein have the meanings given
to them in the Credit Agreement. The undersigned hereby requests a Loan:
1. On _____________ (a Business Day). 2. In the amount
of dollars ($ )
Note: Pursuant to Section 2.02(a) of the Credit Agreement, each Loan shall be
in a minimum principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. The Loan requested herein complies with Section 4.02 of the
Credit Agreement.
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