\n| <\/td>\n | \n D<\/p>\n<\/td>\n | \n Subsidiary Guaranty<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n – iii –<\/p>\n
\n<\/p>\n CREDIT AGREEMENT This CREDIT AGREEMENT (this “Agreement”) is entered into
\nas of December 10, 2009 between BERKADIA COMMERCIAL MORTGAGE LLC, a Delaware
\nlimited liability company (the “Borrower”), and BH FINANCE LLC, a Nebraska
\nlimited liability company (the “Lender”). The Borrower has requested that the
\nLender provide a revolving credit facility, and the Lender is willing to do so
\non the terms and conditions set forth herein. In consideration of the mutual
\ncovenants and agreements herein contained, the parties hereto covenant and agree
\nas follows: ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined
\nTerms. As used in this Agreement, the following terms shall have the meanings
\nset forth below: “Affiliate” means, with respect to any Person, another Person
\nthat directly, or indirectly through one or more intermediaries, Controls or is
\nControlled by or is under common Control with the Person specified.
\n“Agreement” has the meaning specified in the introductory paragraph hereto.
\n“APA” means that certain Asset Put Agreement, dated September 2, 2009, by and
\namong the Borrower (f\/k\/a Berkadia III, LLC), Capmark Financial Group, Inc.,
\nCapmark Finance Inc. and Capmark Capital Inc., and solely with respect to
\nspecified Sections thereof, Berkshire Hathaway Inc. and Leucadia National
\nCorporation. “Applicable Rate” means, as of any date of determination, an
\ninterest rate per annum equal to the greater of (i) 2.0%, and (ii) the sum of
\n(a) the three-month LIBOR (as reported two (2) Business Days prior to such date
\nof determination on the Telerate Page 3750 (or if such screen shall cease to be
\npublicly available, as reported on Reuters Screen page “LIBO” or by any other
\npublicly available source of such market rate as determined by the Lender from
\ntime to time)) for London interbank offered rates for U.S. Dollar deposits and
\n(b) 25 basis points; provided, however, that, if the Lender is unable to obtain
\nthe three-month LIBOR as specified herein, then the Applicable Rate shall be
\n2.0%. “Availability Period” means the period from and including the Effective
\nDate to the earlier of (a) the Maturity Date, and (b) the date of termination of
\nthe Commitment of the Lender to make Loans pursuant to Section 8.02.
\n“Bankruptcy Court Order” has the meaning given to such term in the APA.
\n“Borrower” has the meaning specified in the introductory paragraph hereto.\n<\/p>\n
\n<\/p>\n “Business Day” means any day other than a Saturday, Sunday or other day on
\nwhich commercial banks are required or authorized to close under the Laws of, or
\nare in fact closed in, the States of New York and Nebraska. “Change of
\nControl” means an event or series of events by which (a) the holders of the
\nequity securities of the Guarantor immediately prior to such event or events
\nwould hold less than 50% of the equity securities of the Guarantor and less than
\n50% of the voting power of the surviving or resulting entity immediately after
\nsuch event events; or (b) any Person or two or more Persons acting in concert
\nshall have acquired by contract or otherwise, or shall have entered into a
\ncontract or arrangement that, upon consummation thereof, will result in its or
\ntheir acquisition of the power to exercise, directly or indirectly, a
\nControlling influence over the management or policies of the Guarantor, or
\nControl over the equity securities of the Guarantor entitled to vote for members
\nof the management committee or equivalent governing body of the Guarantor on a
\nfully-diluted basis (and taking into account all such securities that such
\nPerson or group has the right to acquire pursuant to any option right)
\nrepresenting 30% or more of the combined voting power of such securities;
\nprovided, however, that neither of the foregoing shall constitute a Change of
\nControl so long as Ian M. Cumming and Joseph S. Steinberg beneficially own,
\nindividually or in the aggregate, not less than 10% of the outstanding common
\nEquity Interests of the Guarantor. “Closing” has the meaning given to such
\nterm in the APA. “Code” means the Internal Revenue Code of 1986.
\n“Collateral” means all of the “Collateral” referred to in the Collateral
\nDocuments and all of the other property that is or is intended under the terms
\nof the Collateral Documents to be subject to Liens in favor of the Secured
\nParties. “Collateral Documents” means, collectively, the Security Agreement,
\neach of collateral assignments, security agreements, pledge agreements or other
\nsimilar agreements delivered to the Lender pursuant to Sections 6.07 and 6.08,
\nand each of the other agreements, instruments or documents that creates or
\npurports to create a Lien in favor of Secured Parties. “Commitment” means the
\nLender153s agreement to make Loans to the Borrower pursuant to Section 2.01 on the
\nterms and conditions set forth in this Agreement, in an aggregate principal
\namount at any time outstanding not to exceed One Billion Dollars
\n($1,000,000,000). “Contractual Obligation” means, as to any Person, any
\nprovision of any security issued by such Person or of any agreement, instrument
\nor other undertaking to which such Person is a party or by which it or any of
\nits property is bound. “Control” means the possession, directly or indirectly,
\nof the power to direct or cause the direction of the management or policies of a
\nPerson, whether through the ability to exercise voting power, by contract or
\notherwise. “Controlling” and “Controlled” have meanings correlative thereto.
\n“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all
\nother liquidation, conservatorship, bankruptcy, assignment for the benefit of
\ncreditors, moratorium, rear-
\n – 2 –<\/p>\n
\n<\/p>\n rangement, receivership, insolvency, reorganization, or similar debtor relief
\nLaws of the United States or other applicable jurisdictions from time to time in
\neffect and affecting the rights of creditors generally. “Default” means any
\nevent or condition that constitutes an Event of Default or that, with the giving
\nof any notice, passage of time or both, would be an Event of Default. “Default
\nRate” means an interest rate equal to the Applicable Rate plus 2% per annum.
\n “Disposition” or “Dispose” means the sale, transfer, license, lease or other
\ndisposition (including any sale and leaseback transaction) of any property by
\nany Person, including any sale, assignment, transfer or other disposal, with or
\nwithout recourse, of any notes or accounts receivable or any rights and claims
\nassociated therewith. “Dollar” and “$” mean lawful money of the United States.
\n “DUS Program” means the Delegated Underwriting and Servicing Program of Fannie
\nMae in which the Borrower participates. “Dynex Fannie Mae Note” has the
\nmeaning given to such term in the APA. “Effective Date” means the date on
\nwhich the conditions specified in Section 4.01 are satisfied or waived by the
\nLender. “Equity Interests” means, with respect to any Person, all of the
\nshares of capital stock of (or other ownership or profit interests in) such
\nPerson, all of the warrants, options or other rights for the purchase or
\nacquisition from such Person of shares of capital stock of (or other ownership
\nor profit interests in) such Person, all of the securities convertible into or
\nexchangeable with such Person for shares of capital stock of (or other ownership
\nor profit interests in) such Person or warrants, options or rights for the
\npurchase or acquisition from such Person of such securities (or such other
\ninterests), and all of the other ownership or profit interests in such Person
\n(including partnership, member or trust interests therein), whether voting or
\nnonvoting. “ERISA” means the Employee Retirement Income Security Act of 1974.
\n “ERISA Affiliate” means any trade or business (whether or not incorporated)
\nunder common control with the Borrower within the meaning of Section 414(b) or
\n(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
\nprovisions relating to Section 412 of the Code); provided, however, that none of
\nBerkshire Hathaway Inc. and its Affiliates or Leucadia National Corporation and
\nits Affiliates, in each case other than the Borrower and the Borrower153s
\nSubsidiaries, shall be deemed to be ERISA Affiliates for purposes of this
\nAgreement. “ERISA Event” means (a) a Reportable Event with respect to a
\nPension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a
\nPension Plan subject to Section 4063 of ERISA during a plan year in which it was
\na substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
\ncessation of operations that is treated as such a withdrawal under Section
\n4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any
\nERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
\nPlan is in reorganization;
\n – 3 –<\/p>\n
\n<\/p>\n (d) the filing of a notice of intent to terminate, the treatment of a Plan
\namendment as a termination under Sections 4041 or 4041A of ERISA, or the
\ncommencement of proceedings by the PBGC to terminate a Pension Plan or
\nMultiemployer Plan; (e) an event or condition which constitutes grounds under
\nSection 4042 of ERISA for the termination of, or the appointment of a trustee to
\nadminister, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
\nliability under Title IV of ERISA, other than for PBGC premiums due but not
\ndelinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
\nAffiliate. “Event of Default” means an event specified as such in Section
\n8.01. “Excluded Taxes” means, with respect to the Lender or any other
\nrecipient of any payment to be made by or on account of any obligation of the
\nBorrower hereunder, taxes imposed on or measured by its overall net income
\n(however denominated) by the United States of America (or any political
\nsubdivision thereof). “FRB” means the Board of Governors of the Federal
\nReserve System of the United States. “Funding Account” means an account
\ndesignated by the Borrower by written notice to the Lender, including pursuant
\nto a Loan Notice (which may be changed by Borrower by providing the Lender with
\na new written notice). “GAAP” means generally accepted accounting principles
\nin the United States set forth in the opinions and pronouncements of the
\nAccounting Principles Board and the American Institute of Certified Public
\nAccountants and statements and pronouncements of the Financial Accounting
\nStandards Board or such other principles as may be approved by a significant
\nsegment of the accounting profession in the United States, that are applicable
\nto the circumstances as of the date of determination, consistently applied.
\n“Governmental Authority” means the government of the United States or any other
\nnation, or of any political subdivision thereof, whether state or local, and any
\nagency, authority, instrumentality, regulatory body, court, central bank or
\nother entity exercising executive, legislative, judicial, taxing, regulatory or
\nadministrative powers or functions of or pertaining to government. “Guarantee”
\nmeans, as to any Person, any (a) any obligation, contingent or otherwise, of
\nsuch Person guaranteeing or having the economic effect of guaranteeing any
\nIndebtedness or other financial obligation payable or performable by another
\nPerson (the “primary obligor”) in any manner, whether directly or indirectly,
\nand including any obligation of such Person, direct or indirect, (i) to purchase
\nor pay (or advance or supply funds for the purchase or payment of) such
\nIndebtedness or other financial obligation, (ii) to purchase or lease property,
\nsecurities or services for the purpose of assuring the obligee in respect of
\nsuch Indebtedness or other obligation of the payment or performance of such
\nIndebtedness or other obligation, (iii) to maintain working capital, equity
\ncapital or any other financial statement condition or liquidity or level of
\nincome or cash flow of the primary obligor so as to enable the primary obligor
\nto pay such Indebtedness or other obligation, or (iv) entered into for the
\npurpose of assuring in any other manner the obligee in respect of such
\nIndebtedness or other obligation of the payment or financial per-
\n – 4 –<\/p>\n
\n<\/p>\n formance thereof or to protect such obligee against loss in respect thereof
\n(in whole or in part), or (b) any Lien on any assets of such Person securing any
\nIndebtedness or other obligation of any other Person, whether or not such
\nIndebtedness or other obligation is assumed by such Person (or any right,
\ncontingent or otherwise, of any holder of such Indebtedness to obtain any such
\nLien). The amount of any Guarantee shall be deemed to be an amount equal to the
\nstated or determinable amount of the related primary obligation, or portion
\nthereof, in respect of which such Guarantee is made or, if not stated or
\ndeterminable, the maximum reasonably anticipated liability in respect thereof as
\ndetermined by the guaranteeing Person in good faith. The term “Guarantee” as a
\nverb has a corresponding meaning. “Guarantor” means Leucadia National
\nCorporation. “Guaranty” means the Guaranty made by the Guarantor in favor of
\nthe Lender substantially in the form of Exhibit B. “Indebtedness” means, as to
\nany Person at a particular time, without duplication, all of the following,
\nwhether or not included as indebtedness or liabilities in accordance with GAAP:
\n (a) all obligations of such Person for borrowed money and all
\nobligations of such Person evidenced by bonds (other than performance bonds),
\ndebentures, notes, loan agreements or other similar instruments;
\n(b) all direct or contingent obligations of such Person arising under
\nletters of credit (including standby and commercial), bankers153 acceptances, bank
\nguaranties, surety bonds and similar instruments; (c) all
\nobligations of such Person to pay the deferred purchase price of property or
\nservices (other than trade accounts payable and accrued obligations incurred in
\nthe ordinary course of business); (d) indebtedness or other
\nobligations of a third party (excluding prepaid interest thereon) secured by a
\nLien on property owned or being purchased by such Person (including indebtedness
\narising under conditional sales or other title retention agreements), whether or
\nnot such indebtedness or other obligations shall have been assumed by such
\nPerson or is limited in recourse, but limited to the fair market value of such
\nproperty; (e) all obligations of such Person to purchase, redeem,
\nretire, defease or otherwise make any payment in respect of any Equity Interest
\nin such Person or any other Person, valued, in the case of a redeemable
\npreferred interest, at the greater of its voluntary or involuntary liquidation
\npreference plus accrued and unpaid dividends; and (f) all Guarantees
\nof such Person in respect of any of the foregoing. For all purposes hereof,
\nthe Indebtedness of any Person shall include the Indebtedness of any partnership
\nor joint venture (other than a joint venture that is itself a corporation,
\nlimited partnership or limited liability company) in which such Person is a
\ngeneral partner or a joint venturer, unless such Indebtedness is expressly made
\nnon-recourse to such Person.
\n – 5 –<\/p>\n
\n<\/p>\n “Indemnified Taxes” means Taxes other than Excluded Taxes. “Indemnitee” has
\nthe meaning specified in Section 9.04(b). “Interest Payment Date” means the
\nfirst Business Day of each April, July, October and January. “Interest Rate
\nContracts” means all interest rate swap agreements, interest rate cap
\nagreements, interest rate collar agreements and interest rate insurance.
\n“Laws” means, collectively, all international, foreign, Federal, state and local
\nstatutes, treaties, rules, guidelines, regulations, ordinances, codes and
\nadministrative or judicial precedents or authorities, including the
\ninterpretation or administration thereof by any Governmental Authority charged
\nwith the enforcement, interpretation or administration thereof, and all
\napplicable administrative orders, directed duties, requests, licenses,
\nauthorizations and permits of, and agreements with, any Governmental Authority,
\nin each case whether or not having the force of law. “Lender” has the meaning
\nspecified in the introductory paragraph hereto. “Lien” means any mortgage,
\npledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
\n(statutory or other), charge, or preference, priority or other security interest
\nor preferential arrangement in the nature of a security interest of any kind or
\nnature whatsoever (including any conditional sale or other title retention
\nagreement, any easement, right of way or other encumbrance on title to Real
\nProperty, and any financing lease having substantially the same economic effect
\nas any of the foregoing). “Loan” means an extension of credit by the Lender to
\nthe Borrower made pursuant to Article II. “Loan Documents” means this
\nAgreement, each Note, the Security Agreement, the Guaranty, the Subsidiary
\nGuaranty and each other Collateral Document. “Loan Notice” means a notice
\nrequesting a Loan, pursuant to Section 2.02(a), which, if in writing, shall be
\nsubstantially in the form of Exhibit A, or such other form as may be agreed
\nbetween the Borrower and the Lender. “Loan Parties” means, collectively, the
\nBorrower, the Guarantor and the Subsidiary Guarantors. “Material Adverse
\nEffect” means (a) a material adverse change in, or a material adverse effect
\nupon, the operations, business, properties, liabilities (actual or contingent)
\nor condition (financial or otherwise) of the Borrower and its Subsidiaries
\n(taken as a whole); (b) a material impairment of the rights and remedies of the
\nLender under any Loan Document or the ability of any Loan Party to perform its
\nobligations under any Loan Document to which it is a party; or (c) a material
\nadverse effect upon the legality, validity, binding effect or enforceability
\nagainst any Loan Party of any Loan Document to which it is a party.
\n – 6 –<\/p>\n
\n<\/p>\n “Maturity Date” means December 10, 2014; provided, however, that if such date
\nis not a Business Day, the Maturity Date shall be the next preceding Business
\nDay. “Mortgage Business” has the meaning given to such term in the APA, and
\nincludes business of a type that is similar, complementary or reasonably related
\nto, the Mortgage Business, and reasonable extensions thereof. “Multiemployer
\nPlan” means any employee benefit plan of the type described in Section
\n4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is
\nobligated to make contributions, or during the preceding five plan years, has
\nmade or been obligated to make contributions. “Note” means a promissory note
\nmade by the Borrower in favor of the Lender or its assigns evidencing Loans made
\nby the Lender, in form and substance reasonably satisfactory to the Lender.
\n“Obligations” means all advances to, and debts, liabilities, obligations,
\ncovenants and duties of, any Loan Party arising under any Loan Document or
\notherwise with respect to any Loan, whether direct or indirect (including those
\nacquired by assumption), absolute or contingent, due or to become due, now
\nexisting or hereafter arising and including interest and fees that accrue after
\nthe commencement by or against any Loan Party or any Affiliate thereof of any
\nproceeding under any Debtor Relief Laws naming such Person as the debtor in such
\nproceeding, regardless of whether such interest and fees are allowed claims in
\nsuch proceeding. “Organization Documents” means, (a) with respect to any
\ncorporation, the certificate or articles of incorporation and the bylaws (or
\nequivalent or comparable constitutive documents with respect to any non-United
\nStates jurisdiction); (b) with respect to any limited liability company, the
\ncertificate or articles of formation or organization and operating agreement;
\nand (c) with respect to any partnership, joint venture, trust or other form of
\nbusiness entity, the partnership, joint venture or other applicable agreement of
\nformation or organization and any agreement, instrument, filing or notice with
\nrespect thereto filed in connection with its formation or organization with the
\napplicable Governmental Authority in the jurisdiction of its formation or
\norganization and, if applicable, any certificate or articles of formation or
\norganization of such entity. “Other Taxes” means all present or future stamp
\nor documentary taxes or any other excise or property taxes, charges or similar
\nlevies arising from any payment made hereunder or under any other Loan Document
\nor from the execution, delivery or enforcement of, or otherwise with respect to,
\nthis Agreement or any other Loan Document. “Outstanding Amount” means with
\nrespect to Loans outstanding at any time, the aggregate outstanding principal
\namount thereof after giving effect to any borrowing of Loans occurring on such
\ndate. “PBGC” means the Pension Benefit Guaranty Corporation. “Pension Plan”
\nmeans any “employee pension benefit plan” (as such term is defined in Section
\n3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of
\nERISA
\n – 7 –<\/p>\n
\n<\/p>\n and is sponsored or maintained by the Borrower or any ERISA Affiliate or to
\nwhich the Borrower or any ERISA Affiliate contributes or has an obligation to
\ncontribute, or in the case of a multiple employer or other plan described in
\nSection 4064(a) of ERISA, has made contributions at any time during the
\nimmediately preceding five plan years. “Permitted Indebtedness” means:
\n(a) the Obligations under the Loan Documents; (b) All of
\nBorrower’s obligations to Fannie Mae under the DUS Program;
\n(c) Guarantee obligations incurred by the Borrower in respect of
\nIndebtedness of any other Loan Party that is otherwise permitted by Section 7.02
\n(other than clause (a) above); (d) capital lease obligations and
\npurchase money Indebtedness incurred by the Borrower to finance the acquisition
\nof fixed assets, together with any Permitted Refinancing of any Indebtedness
\npermitted by this clause (d); provided, however, that the aggregate outstanding
\nprincipal amount of all such capital lease obligations and purchase money
\nIndebtedness shall not exceed $10,000,000 at any time;
\n(e) Indebtedness arising from intercompany loans owing to any Loan
\nParty; (f) Indebtedness arising under any performance or surety bond
\nentered into in the ordinary course of business; (g) Obligations
\nunder Interest Rate Contracts entered into in the ordinary course of business;
\n(h) the Dynex Fannie Mae Note and any Permitted Refinancings thereof;
\nand (i) unsecured Indebtedness not otherwise permitted by the
\nforegoing paragraphs (a) through (h); provided, however, that the aggregate
\noutstanding principal amount of all such unsecured Indebtedness shall not exceed
\n$20,000,000 at any time. “Permitted Liens” means: (a) Liens
\npursuant to any Loan Document; (b) All Liens granted by the Borrower
\nin favor of Fannie Mae pursuant to the DUS Program; (c) Liens for
\ntaxes, assessments or other governmental charges or levies not yet delinquent or
\nthereafter payable without penalty not yet due or which are being contested in
\ngood faith and by appropriate actions, if adequate reserves with respect thereto
\nare maintained on the books of the applicable Person in accordance, and to the
\nextent required by, with GAAP;
\n – 8 –<\/p>\n
\n<\/p>\n (d) carriers153, warehousemen153s, mechanics153, materialmen153s,
\nrepairmen153s or other like Liens (i) arising in the ordinary course of business
\nwhich are not overdue for a period of more than 60 days, or (ii) which are being
\ncontested in good faith and by appropriate actions, if adequate reserves with
\nrespect thereto are maintained on the books of the applicable Person in
\naccordance with, and to the extent required by, GAAP; (e) pledges or
\ndeposits in the ordinary course of business in connection with workers153
\ncompensation, unemployment insurance and other social security legislation,
\nother than any Lien imposed by ERISA; (f) deposits to secure the
\nperformance of bids, trade contracts and leases (other than Indebtedness for
\nborrowed money), statutory obligations, surety and appeal bonds, performance
\nbonds and other obligations of a like nature incurred in the ordinary course of
\nbusiness; (g) easements, rights-of-way, restrictions and other
\nsimilar encumbrances affecting Real Property which, in the aggregate and which
\ndo not in any case materially detract from the value of the property subject
\nthereto or materially interfere with the ordinary conduct of the business of the
\napplicable Person; (h) present or future zoning laws and ordinances
\nor other laws and ordinances restricting the occupancy, use, or enjoyment of
\nReal Property; (i) Liens securing writs of attachments or similar
\ninstruments or judgments for the payment of money not constituting an Event of
\nDefault under Section 8.01(h); (j) bankers153 Liens, rights of setoff
\nand other similar Liens existing solely with respect to cash and cash
\nequivalents on deposit in one or more accounts maintained by any Loan Party, in
\neach case granted in the ordinary course of business in favor of the bank or
\nbanks with which such accounts are maintained, securing amounts owing to such
\nbank with respect to cash management and other account arrangements; provided
\nthat, unless such Liens are non-consensual and arise by operation of law, in no
\ncase shall any such Liens secure (either directly or indirectly) the repayment
\nof any Indebtedness for borrowed money; (k) Liens in favor of
\nlessors securing operating leases; (l) purchase money Liens granted
\nby the Borrower or any of its Subsidiaries (including the interest of a lessor
\nunder a capital lease and purchase money Liens to which any property is subject
\nat the time, on or after the date hereof, of the Borrower153s or such Subsidiary153s
\nacquisition thereof) securing Indebtedness permitted under Section 7.02 and
\nlimited in each case to the property purchased with the proceeds of such
\npurchase money Indebtedness or subject to such capital lease;
\n(m) the filing of UCC financing statements solely as a precautionary
\nmeasure in connection with operating leases; and
\n – 9 –<\/p>\n
\n<\/p>\n (n) Liens not otherwise permitted by the foregoing paragraphs (a)
\nthrough (m) securing obligations or other liabilities (other than Indebtedness)
\nof any Loan Party; provided, however, that the aggregate outstanding amount of
\nall such obligations and liabilities shall not exceed $25,000,000 at any time.
\n“Permitted Refinancing” means renewals, extensions, refinancings and refundings
\nof any Permitted Indebtedness that (a) are in an aggregate principal amount not
\ngreater than the principal amount of such Permitted Indebtedness, and are on
\nterms no less favorable to any Loan Party obligated thereunder and (b) have a
\nweighted average maturity and final maturity (measured as of the date of such
\nrenewal, refinancing, extension or refunding) no shorter than that of such
\nPermitted Indebtedness. “Person” means any natural person, corporation,
\nlimited liability company, trust, joint venture, association, company,
\npartnership, Governmental Authority or other entity. “Plan” means any
\n“employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
\nestablished by the Borrower or, with respect to any such plan that is subject to
\nSection 412 of the Code or Title IV of ERISA, any ERISA Affiliate. “Purchase
\nand Sale” has the meaning given to such term in the APA. “Real Property”
\nmeans, collectively, all right, title and interest (including any leasehold,
\nmineral or other estate) in and to any and all parcels of or interests in real
\nproperty owned, leased or operated by any Person, whether by lease, license or
\nother means, together with, in each case, all easements, hereditaments and
\nappurtenances relating thereto, all improvements and appurtenant fixtures and
\nequipment, all general intangibles and contract rights and other property and
\nrights incidental to the ownership, lease or operation thereof. “Related
\nParties” means, with respect to any Person, such Person153s Affiliates and the
\npartners, directors, officers, employees, agents, trustees and advisors of such
\nPerson and of such Person153s Affiliates. “Reportable Event” means any of the
\nevents set forth in Section 4043(c) of ERISA, other than events for which the 30
\nday notice period has been waived. “Responsible Officer” means the chief
\nexecutive officer, president, chief financial officer, treasurer, managing
\nmember, management committee member or manager of a Loan Party and any other
\nofficer of the applicable Loan Party so designated by any of the foregoing
\nofficers in a notice to the Lender. Any document delivered hereunder that is
\nsigned by a Responsible Officer of a Loan Party shall be conclusively presumed
\nto have been authorized by all necessary corporate, partnership and\/or other
\naction on the part of such Loan Party and such Responsible Officer shall be
\nconclusively presumed to have acted on behalf of such Loan Party. “Secured
\nParties” means, collectively, the Lender and the other Persons the Obligations
\nowing to which are or are purported to be secured by the Collateral under the
\nterms of the Collateral Documents.
\n – 10 –<\/p>\n
\n<\/p>\n “Security Agreement” means the security agreement in substantially the form
\nof Exhibit C executed and delivered pursuant to Section 4.01(a)(iv). “Solvent”
\nand “Solvency” mean, with respect to any Person on any date of determination,
\nthat on such date (a) the fair value of the property of such Person is greater
\nthan the total amount of liabilities, including contingent liabilities, of such
\nPerson, (b) the present fair salable value of the assets of such Person is not
\nless than the amount that will be required to pay the probable liability of such
\nPerson on its debts as they become absolute and matured, (c) such Person does
\nnot intend to, and does not believe that it will, incur debts or liabilities
\nbeyond such Person153s ability to pay such debts and liabilities as they mature,
\n(d) such Person is not engaged in business or a transaction, and is not about to
\nengage in business or a transaction, for which such Person153s property would
\nconstitute an unreasonably small capital, and (e) such Person is able to pay its
\ndebts and liabilities, contingent obligations and other commitments as they
\nmature in the ordinary course of business. The amount of contingent liabilities
\nat any time shall be computed as the amount that, in the light of all the facts
\nand circumstances existing at such time, represents the amount that can
\nreasonably be expected to become an actual or matured liability. “Subsidiary”
\nof a Person means a corporation, partnership, joint venture, limited liability
\ncompany or other business entity of which a majority of the shares of securities
\nor other interests having ordinary voting power for the election of directors or
\nother governing body (other than securities or interests having such power only
\nby reason of the happening of a contingency) or a majority of the economic
\ninterests are at the time beneficially owned by such Person. “Subsidiary
\nGuarantors” means Berkadia Commercial Mortgage Inc. and each other Subsidiary of
\nthe Borrower organized under the Laws of a jurisdiction in the United States
\nfrom time to time. “Subsidiary Guaranty” means the Subsidiary Guaranty made by
\nthe Subsidiary Guarantors in favor of the Lender substantially in the form of
\nExhibit D, or such other form as may be agreed between the Borrower and the
\nLender. “Taxes” means all present or future taxes, levies, imposts, duties,
\ndeductions, withholdings, assessments, fees or other charges imposed by any
\nGovernmental Authority, including any interest, additions to tax or penalties
\napplicable thereto. “UCC” means the Uniform Commercial Code as in effect in
\nthe State of New York; provided that, if perfection or the effect of perfection
\nor non-perfection or the priority of any security interest in any Collateral is
\ngoverned by the Uniform Commercial Code as in effect in a jurisdiction other
\nthan the State of New York, “UCC” means the Uniform Commercial Code as in effect
\nfrom time to time in such other jurisdiction for purposes of the provisions
\nhereof relating to such perfection, effect of perfection or non-perfection or
\npriority. “United States” means the United States of America. 1.02 Other
\nInterpretive Provisions. With reference to this Agreement and each other Loan
\nDocument, unless otherwise specified herein or in such other Loan Document:
\n
\n – 11 –<\/p>\n
\n(a) The definitions of terms herein shall apply equally to the singular and
\nplural forms of the terms defined. Whenever the context may require, any
\npronoun shall include the corresponding masculine, feminine and neuter
\nforms. The words “include,” “includes” and “including” shall be deemed to be
\nfollowed by the phrase “without limitation.” The word “will” shall be construed
\nto have the same meaning and effect as the word “shall.” Unless the context
\nrequires otherwise, (i) any definition of or reference to any agreement,
\ninstrument or other document (including any Organization Document) shall be
\nconstrued as referring to such agreement, instrument or other document as from
\ntime to time amended, supplemented or otherwise modified (subject to any
\nrestrictions on such amendments, supplements or modifications set forth herein
\nor in any other Loan Document), (ii) any reference herein to any Person shall be
\nconstrued to include such Person153s successors and assigns, (iii) the words
\n“herein,” “hereof” and “hereunder,” and words of similar import when used in any
\nLoan Document, shall be construed to refer to such Loan Document in its entirety
\nand not to any particular provision thereof, (iv) all references in a Loan
\nDocument to Articles, Sections, Exhibits and Schedules shall be construed to
\nrefer to Articles and Sections of, and Exhibits and Schedules to, the Loan
\nDocument in which such references appear, (v) any reference to any law shall
\ninclude all statutory and regulatory provisions consolidating, amending,
\nreplacing or interpreting such law and any reference to any law or regulation
\nshall, unless otherwise specified, refer to such law or regulation as amended,
\nmodified or supplemented from time to time, and (vi) the words “asset” and
\n“property” shall be construed to have the same meaning and effect and to refer
\nto any and all tangible and intangible assets and properties, including cash,
\nsecurities, accounts and contract rights. (b) In the computation of periods of
\ntime from a specified date to a later specified date, the word “from” means
\n“from and including”; the words “to” and “until” each mean “to but excluding”;
\nand the word “through” means “to and including.” (c) Section headings herein
\nand in the other Loan Documents are included for convenience of reference only
\nand shall not affect the interpretation of this Agreement or any other Loan
\nDocument. 1.03 Accounting Terms. All accounting terms not specifically or
\ncompletely defined herein shall be construed in conformity with, and all
\nfinancial data (including financial ratios and other financial calculations)
\nrequired to be submitted pursuant to this Agreement not specifically or
\ncompletely defined herein shall be prepared in conformity with, GAAP applied on
\na consistent basis, as in effect from time to time, except as otherwise
\nspecifically prescribed herein. 1.04 Times of Day. Unless otherwise
\nspecified, all references herein to times of day shall be references to Eastern
\ntime (daylight or standard, as applicable). ARTICLE II. THE COMMITMENT AND
\nLOANS 2.01 Loans. Subject to the terms and conditions set forth herein, the
\nLender agrees to make Loans to the Borrower from time to time, on any Business
\nDay during the Availability Period, in an aggregate amount not to exceed at any
\ntime outstanding the amount of the Lender153s
\n – 12 –<\/p>\n
\n<\/p>\n Commitment. Within the limits of the Lender153s Commitment, and subject to the
\nother terms and conditions hereof, the Borrower may borrow under this Section
\n2.01, prepay under Section 2.03, and reborrow under this Section 2.01.
\n2.02 Loans and Loan Notices. (a) Each Loan shall be made upon the Borrower153s
\nirrevocable notice to the Lender, which may be given by telephone. Each such
\nnotice must be received by the Lender not later than 5:00 p.m. (i) on the
\nBusiness Day prior to the requested date of such Loan. Each telephonic notice
\nby the Borrower pursuant to this Section 2.02(a) must be confirmed promptly, but
\nin any case prior to the funding of the Loan, by delivery to the Lender of a
\nwritten Loan Notice, appropriately completed and signed by a Responsible Officer
\nof the Borrower (which confirmation may be delivered by email or
\nfacsimile). Each Loan shall be in a minimum principal amount of $5,000,000 or a
\nwhole multiple of $1,000,000 in excess thereof. Each Loan Notice (whether
\ntelephonic or written) shall specify (i) the requested date of the Loan (which
\nshall be a Business Day) and (ii) the principal amount of the Loan to be
\nborrowed. (b) Following receipt of a Loan Notice and upon satisfaction of the
\napplicable conditions set forth in Section 4.02 (and, if such Loan is the
\ninitial Loan, Section 4.01), the Lender shall make the principal amount of the
\nLoan to be borrowed as specified in the applicable Loan Notice available to the
\nBorrower by wire transfer of immediately available funds to the Funding
\nAccount. No more than one (1) Loan shall be made to the Borrower on any
\nBusiness Day. (c) Following the occurrence and existence of a Default, no
\nLoans may be requested without the prior consent of the Lender.
\n2.03 Prepayments. (a) The Borrower may at any time or from time to time
\nvoluntarily prepay Loans in whole or in part without premium or penalty;
\nprovided that any prepayment shall be in a minimum principal amount of
\n$1,000,000 or a whole multiple of $500,000 in excess thereof or, if less, the
\nentire principal amount then outstanding. Any prepayment of Loans shall be
\naccompanied by all accrued and unpaid interest on the amount prepaid. (b) If
\nfor any reason the Outstanding Amount at any time exceeds the Commitment then in
\neffect, the Borrower shall immediately prepay Loans in an aggregate amount equal
\nto such excess. 2.04 Repayment of Loans. (a) Following the occurrence and
\nduring the existence of an Event of Default, all amounts received by the Lender
\nshall be applied first, to the costs and expenses of protecting and preserving
\nthe security interests of the Lender under the Loan Documents, second, to the
\ncosts and expenses of protecting and preserving the Collateral, third, to all
\nother outstanding financial Obligations due under this Agreement and the other
\nLoan Documents (other than principal and interest on the Loans), fourth, to
\naccrued and unpaid interest on the Loans, fifth, to the aggregate outstanding
\nprincipal balance of the Loans and, after all outstanding amounts evidenced and
\nsecured by the Loan Documents have been paid in full and the Loan Parties have
\nperformed their
\n – 13 –<\/p>\n
\n<\/p>\n obligations under the Loan Documents and the Commitment has terminated, the
\nbalance, if any, shall be delivered to the Borrower. (b) The Borrower shall
\nrepay the Outstanding Amount to the Lender on the Maturity Date, plus all
\naccrued and unpaid interest, and all other Obligations then outstanding.
\n2.05 Interest. (a) Subject to the provisions of subsection (b) below, the
\nLoans shall bear interest on the outstanding principal amount thereof at a rate
\nper annum equal to the Applicable Rate then in effect. The Applicable Rate
\nshall be set on the Effective Date and shall be reset on each Interest Payment
\nDate thereafter. (b) (i) If any amount of principal of any Loan is not paid
\nwhen due, whether at stated maturity, by acceleration or otherwise, such amount
\nshall thereafter bear interest at a fluctuating interest rate per annum at all
\ntimes equal to the Default Rate to the fullest extent permitted by applicable
\nLaws. (ii)If any amount (other than principal of any Loan)
\npayable by the Borrower under any Loan Document is not paid when due, whether at
\nstated maturity, by acceleration or otherwise, then upon the request of the
\nLender, such amount shall thereafter bear interest at a fluctuating interest
\nrate per annum at all times equal to the Default Rate to the fullest extent
\npermitted by applicable Laws. (iii)While any Event of Default
\nexists, the Borrower shall pay interest on the principal amount of all
\noutstanding Obligations hereunder at a fluctuating interest rate per annum at
\nall times equal to the Default Rate to the fullest extent permitted by
\napplicable Laws. (iv)Accrued and unpaid interest on past due
\namounts (including interest on past due interest) shall be due and payable upon
\ndemand. (c) Interest on the Loans shall be due and payable in arrears on each
\nInterest Payment Date, the Maturity Date and at such other times as may be
\nspecified herein. Interest hereunder shall be due and payable in accordance
\nwith the terms hereof before and after judgment, and before and after the
\ncommencement of any proceeding under any Debtor Relief Law. 2.06 Computation
\nof Interest. (a) All computations of interest hereunder shall be made on the
\nbasis of a 360-day year and actual days elapsed. Interest shall accrue on each
\nLoan for the day on which the Loan is made, and shall not accrue on a Loan, or
\nany portion thereof, for the day on which the Loan or such portion is paid,
\nprovided that any Loan that is repaid on the same day on which it is made shall,
\nsubject to Section 2.08, bear interest for one day. Each determination by the
\nLender of an interest rate hereunder shall be conclusive and binding for all
\npurposes, absent manifest error. 2.07 Evidence of Debt. The Loans made by the
\nLender shall be evidenced by one or more accounts or records maintained by the
\nLender in the ordinary course of business. The accounts or records maintained
\nby the Lender shall be conclusive absent manifest error of the
\n – 14 –<\/p>\n
\n<\/p>\n amount of the Loans made by the Lender to the Borrower and the interest and
\npayments thereon. Any failure to so record or any error in doing so shall not,
\nhowever, limit or otherwise affect the obligation of the Borrower hereunder to
\npay any amount owing with respect to the Obligations. Upon the request of the
\nLender, the Borrower shall execute and deliver to the Lender a Note, which shall
\nevidence the Lender153s Commitment and Loans in addition to such accounts or
\nrecords. The Lender may attach schedules to its Note and endorse thereon the
\ndate, amount and maturity of its Loans and payments with respect thereto.
\n2.08 Payments Generally; Lender153s Clawback. All payments to be made by the
\nBorrower shall be made without condition or deduction for any counterclaim,
\ndefense, recoupment or setoff. Except as otherwise expressly provided herein,
\nall payments by the Borrower hereunder shall be made to the Lender in Dollars
\nand in immediately available funds not later than 4:00 p.m. on the date
\nspecified for payment herein. All payments received by the Lender after 4:00
\np.m. shall be deemed received on the next succeeding Business Day and any
\napplicable interest shall continue to accrue. If any payment to be made by the
\nBorrower shall come due on a day other than a Business Day, payment shall be
\nmade on the next following Business Day, and such extension of time shall be
\nreflected in computing interest. ARTICLE III. TAXES, YIELD PROTECTION AND
\nILLEGALITY 3.01 Taxes. (a) Payments Free of Taxes. Any and all payments by
\nor on account of any obligation of a Loan Party hereunder or under any other
\nLoan Document shall be made free and clear of and without reduction or
\nwithholding for any Indemnified Taxes or Other Taxes, provided that if the
\napplicable Loan Party shall be required by applicable law to deduct any
\nIndemnified Taxes (including any Other Taxes) from such payments, then (i) the
\nsum payable shall be increased as necessary so that after making all required
\ndeductions (including deductions applicable to additional sums payable under
\nthis Section) the Lender receives an amount equal to the sum it would have
\nreceived had no such deductions been made, (ii) the applicable Loan Party shall
\nmake such deductions and (iii) the applicable Loan Party shall timely pay the
\nfull amount deducted to the relevant Governmental Authority in accordance with
\napplicable law. (b) Payment of Other Taxes by the Borrower. Without limiting
\nthe provisions of subsection (a) above, the Borrower shall timely pay any Other
\nTaxes to the relevant Governmental Authority in accordance with applicable law.
\n (c) Indemnification by the Borrower. The Borrower shall indemnify the Lender,
\nand shall make payment in respect thereof within 10 days after demand therefor,
\nfor the full amount of any Indemnified Taxes or Other Taxes paid by the Lender
\non or with respect to any payment by or on account of any obligation of the
\nBorrower hereunder (including Indemnified Taxes or Other Taxes imposed or
\nasserted on or attributable to amounts payable under this Section) and any
\npenalties, interest and reasonable expenses arising therefrom or with respect
\nthereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
\nlegally imposed or asserted by the relevant Governmental Authority. A
\ncertificate as to the amount of such payment or liability delivered to the
\nBorrower by the Lender shall be conclusive absent manifest error.
\n – 15 –<\/p>\n
\n<\/p>\n (d) Evidence of Payments. As soon as practicable after any payment of
\nIndemnified Taxes or Other Taxes by a Loan Party to a Governmental Authority,
\nsuch Loan Party shall deliver to the Lender evidence of such payment reasonably
\nsatisfactory to the Lender. ARTICLE IV. CONDITIONS PRECEDENT TO LOANS
\n4.01 Conditions of Effectiveness. The effectiveness of this Agreement is
\nsubject to satisfaction of the following conditions precedent: (a) The
\nLender153s receipt of the following, each of which shall be an original properly
\nexecuted by a Responsible Officer of the signing Loan Party (or an electronic
\ncopy of an executed original), and each in form and substance satisfactory to
\nthe Lender: (i) executed counterparts of this Agreement, the Guaranty and the
\nSubsidiary Guaranty; (ii) upon the Lender153s request, a Note executed by the
\nBorrower and dated as of the Effective Date in favor of the Lender; (iii) a
\ncopy of the Bankruptcy Court Order; (iv) the Security Agreement, duly executed
\nby the Borrower and the Subsidiary Guarantor, together with:
\n(A) proper financing statements in form appropriate for filing under
\nthe UCC of all jurisdictions that the Lender requests, covering the Collateral
\ndescribed in the Security Agreement, (B) evidence of the completion
\nof all other actions, recordings and filings of or with respect to the Security
\nAgreement that the Lender may deem necessary or desirable in order to perfect
\nthe Liens created thereby, and (C) evidence that all other action
\nthat the Lender may deem necessary or desirable in order to perfect the Liens
\ncreated under the Security Agreement has been taken; (v) such certificates of
\nresolutions or other action, incumbency certificates and\/or other certificates
\nof Responsible Officers of each Loan Party as the Lender may reasonably require
\nevidencing the identity, authority and capacity of each Responsible Officer
\nthereof authorized to act as a Responsible Officer in connection with this
\nAgreement and the other Loan Documents to which such Loan Party is a party;
\n(vi) such documents and certifications as the Lender may reasonably require to
\nevidence that each Loan Party is duly organized or formed, and that each Loan
\nParty is validly existing, in good standing and qualified to engage in
\n – 16 –<\/p>\n
\n<\/p>\n business in each jurisdiction where the conduct of its business requires such
\nqualification, except to the extent that failure to do so would not reasonably
\nbe expected to have a Material Adverse Effect; (vii) a certificate signed by a
\nResponsible Officer of the Borrower, dated as of the Effective Date, certifying
\n(A) that the conditions specified in Sections 4.02(a) and (b) have been
\nsatisfied and (B) that there has been no event or circumstance since the
\nformation of the Borrower as a Delaware limited liability company on August 26,
\n2009 that has had or could be reasonably expected to have, either individually
\nor in the aggregate, a Material Adverse Effect; and (viii) such other
\nassurances, certificates, documents, consent or opinions as the Lender
\nreasonably may require; (b) pursuant to the terms of the APA, the Closing
\neffecting the Purchase and Sale shall have occurred; and (c) the Effective
\nDate shall have occurred on or before January 31, 2010. 4.02 Conditions to All
\nLoans. The obligation of the Lender to honor any Loan Notice is subject to the
\nfollowing conditions precedent: (a) The representations and warranties of the
\nBorrower and each other Loan Party contained in Article V or any other Loan
\nDocument, or which are contained in any document furnished at any time under or
\nin connection herewith or therewith, shall be true and correct in all material
\nrespects on and as of the date of such Loan Notice (except where already
\nqualified by materiality, in which case such representation and warranty shall
\nbe true and correct in all respects), except to the extent that such
\nrepresentations and warranties specifically refer to an earlier date, in which
\ncase they shall be true and correct as of such earlier date. (b) No Default
\nshall exist, or would result from such proposed Loan or from the application of
\nthe proceeds thereof. ARTICLE V. REPRESENTATIONS AND WARRANTIES The
\nBorrower represents and warrants to the Lender that the statements contained in
\nthis Article V are true and correct as of (1) the Effective Date and (2) the
\nClosing: 5.01 Existence, Qualification and Power; Compliance with Laws. The
\nBorrower (a) is duly organized or formed, validly existing and in good standing
\nunder the Laws of the jurisdiction of its organization, (b) has all requisite
\npower and authority and all requisite governmental licenses, authorizations,
\nconsents and approvals to (i) own or lease its assets and carry on the Mortgage
\nBusiness and (ii) execute, deliver and perform its obligations under the Loan
\nDocuments to which it is a party, and (c) is duly qualified and is licensed and
\nin good standing under the Laws of each jurisdiction where the conduct of the
\nMortgage Business requires such
\n – 17 –<\/p>\n
\n<\/p>\n qualification or license, except in each case referred to in clause (b)(i) or
\n(c), to the extent that failure to do so would not reasonably be expected to
\nhave a Material Adverse Effect. 5.02 Authorization; No Contravention. The
\nexecution, delivery and performance by the Borrower of each Loan Document to
\nwhich it is party, have been duly authorized by all necessary corporate or other
\norganizational action, and do not and will not (a) contravene the terms of any
\nof the Borrower153s Organization Documents; (b) conflict with or result in any
\nbreach or contravention of, or the creation of any Lien under, or require any
\npayment to be made under any material Contractual Obligation to which the
\nBorrower is a party; or (c) violate any Law. The Borrower is in compliance with
\nall Contractual Obligations referred to in clause (b), except to the extent that
\nfailure to do so would not reasonably be expected to have a Material Adverse
\nEffect. 5.03 Governmental Authorization; Other Consents. No approval,
\nconsent, exemption, authorization, or other action by, or notice to, or filing
\nwith, any Governmental Authority or any other Person is necessary or required in
\nconnection with the execution, delivery or performance by, or enforcement
\nagainst, any Loan Party of this Agreement or any other Loan Document.
\n5.04 Binding Effect. This Agreement has been, and each other Loan Document to
\nwhich the Borrower is a party, when delivered hereunder, will have been, duly
\nexecuted and delivered by the Borrower. This Agreement constitutes, and each
\nother Loan Document to which the Borrower is a party when so delivered will
\nconstitute, a legal, valid and binding obligation of the Borrower, enforceable
\nagainst the Borrower in accordance with its terms, subject to applicable
\nbankruptcy, insolvency, reorganization, moratorium or other similar laws now or
\nhereafter in effect relating to creditors153 rights generally, and general
\nprinciples of equity. 5.05 Liens. The property of the Borrower is subject to
\nno Liens, other than Permitted Liens. 5.06 Margin Regulations; Investment
\nCompany Act. (a) The Borrower is not engaged and will not engage, principally
\nor as one of its important activities, in the business of purchasing or carrying
\nmargin stock (within the meaning of Regulation U issued by the FRB), or
\nextending credit for the purpose of purchasing or carrying margin stock.
\n(b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary
\nof the Borrower is or is required to be registered as an “investment company”
\nunder the Investment Company Act of 1940. 5.07 Collateral Documents. The
\nprovisions of the Security Agreement are effective to create, in favor of the
\nLender, valid and perfected first priority Liens on all property described in
\nthe Security Agreement subject only to the Permitted Liens. 5.08 Solvency. The
\nBorrower is, individually and together with its Subsidiaries on a consolidated
\nbasis, Solvent.
\n – 18 –<\/p>\n
\nARTICLE VI. AFFIRMATIVE COVENANTS So long as the Lender shall have any
\nCommitment hereunder, or any Loan or other Obligation hereunder shall remain
\nunpaid or unsatisfied, the Borrower shall: 6.01 Financial Statements. To the
\nextent that the Lender shall not have otherwise received any of the following
\nitems, deliver to the Lender, in form and detail reasonably satisfactory to the
\nLender: (a) within 120 days after the end of each fiscal year of the Borrower
\n(commencing with the fiscal year ending December 31, 2009), a consolidated
\nbalance sheet of the Borrower as at the end of such fiscal year, and the related
\nconsolidated statements of operations and cash flows for such fiscal year, all
\nin reasonable detail and prepared in accordance with GAAP; and (b) within 60
\ndays after the end of each of the first three fiscal quarters of each fiscal
\nyear of the Borrower (commencing with the fiscal quarter ended March 31, 2010),
\na consolidated balance sheet of the Borrower as at the end of such fiscal
\nquarter, and the related consolidated statements of operations and cash flows
\nfor such fiscal quarter and for the portion of the Borrower153s fiscal year then
\nended, all in reasonable detail and prepared in accordance with GAAP.
\n6.02 Payment of Obligations. Pay and discharge as the same shall become due and
\npayable, all its obligations and liabilities, including (a) all Tax liabilities,
\nassessments and governmental charges or levies upon it or its properties or
\nassets, unless the same are being contested in good faith by appropriate
\nproceedings diligently conducted and with adequate reserves; (b) all lawful
\nclaims which, if unpaid, would by law become a Lien upon its property, unless
\nthe same are being contested in good faith by appropriate proceedings diligently
\nconducted and with adequate reserves; and (c) all Indebtedness, as and when due
\nand payable, but subject to any subordination provisions contained in any
\ninstrument or agreement evidencing such Indebtedness. 6.03 Preservation of
\nExistence, Etc. (a) Preserve, renew and maintain in full force and effect
\nits legal existence and good standing under the Laws of the jurisdiction of its
\norganization; and (b) except to the extent that failure to do so would not
\nreasonably be expected to have a Material Adverse Effect, take all reasonable
\naction to maintain all rights, privileges, permits and licenses necessary or
\ndesirable in the normal conduct of its business. 6.04 Compliance with
\nLaws. Comply in all material respects with the requirements of all Laws and all
\norders, writs, injunctions and decrees applicable to it or to its business or
\nproperty, except in such instances in which (a) such requirement of Law or
\norder, writ, injunction or decree is being contested in good faith by
\nappropriate actions; or (b) the failure to comply therewith would not reasonably
\nbe expected to have a Material Adverse Effect. 6.05 Books and Records. (a)
\nMaintain proper books of record and account, in which full, true and correct
\nentries in conformity with GAAP consistently applied shall be made of all
\nfinancial transactions and matters involving the assets and business of the
\nBorrower; and (b)
\n – 19 –<\/p>\n
\n<\/p>\n maintain such books of record and account in material conformity with all
\napplicable requirements of any Governmental Authority having regulatory
\njurisdiction over the Borrower. 6.06 Use of Proceeds. Use the proceeds of the
\nLoans for any one or more of the following: (i) to fund the purchase of
\noutstanding advances and loans from Capmark Finance Inc., Capmark Capital Inc.
\nor Capmark Financial Group Inc., (ii) to fund the purchase of mortgage servicing
\nrights and (iii) to fund ongoing working capital and other general corporate
\npurposes of the Borrower. 6.07 Covenant to Guarantee Obligations and Give
\nSecurity. (a) Upon the formation or acquisition of any new direct or indirect
\nSubsidiary organized under the Laws of a jurisdiction in the United States by
\nthe Borrower, the Borrower shall (at its expense) promptly, but in any event
\nwithin 10 Business Days after any such formation or acquisition: (i) cause
\nsuch Subsidiary to duly execute and deliver to the Lender a Subsidiary Guaranty
\nor a joinder to a Subsididary Guaranty, as specified by and in form and
\nsubstance reasonably satisfactory to the Lender, guaranteeing the other Loan
\nParties153 obligations under the Loan Documents, (ii) cause such Subsidiary to
\nduly execute and deliver to the Lender deeds of trust, trust deeds, deeds to
\nsecure debt, mortgages and security and pledge agreements or joinders to the
\nSecurity Agreement, as specified by and in form and substance reasonably
\nsatisfactory to the Lender, securing payment of all the Obligations of such
\nSubsidiary under the Loan Documents and constituting Liens on all real and
\npersonal properties of such Subsidiary (other than real and personal property
\nsubject to Permitted Liens and Equity Interests in any Subsidiary organized
\noutside of the United States), and (iii) cause such Subsidiary to take
\nwhatever action (including the recording of mortgages, the filing of UCC
\nfinancing statements, the giving of notices and the endorsement of notices on
\ntitle documents) requested by the Lender to vest in the Lender valid and
\nsubsisting Liens on all real and personal properties of such Subsidiary (other
\nthan real and personal property subject to Permitted Liens and Equity Interests
\nin any Subisidiary organized outside of the United States), enforceable against
\nall third parties in accordance with their terms. (b) Upon the formation or
\nacquisition of any new direct Subsidiary organized outside of the United States
\nby the Borrower, the Borrower shall (at its expense) promptly, but in any event
\nwithin 10 Business Days after any such formation or acquisition, pledge
\nsixty-five percent (65%) of such Subsidiary153s outstanding voting stock and stock
\nequivalents owned by the Borrower and one hundred percent (100%) of such
\nSubsidiary153s outstanding non-voting stock and stock equivalents owned by the
\nBorrower for the benefit of the Secured Parties to secure the Obligations.
\n(c) Upon the acquisition of any real or personal property by the Borrower, the
\nBorrower shall (at its expense) promptly, but in any event within 10 Business
\nDays after any such acquisition:
\n – 20 –<\/p>\n
\n(i) furnish to the Lender a description of the property so acquired in detail
\nreasonably satisfactory to the Lender, (ii) duly execute and deliver to the
\nLender deeds of trust, trust deeds, deeds to secure debt, mortgages and other
\nsecurity and pledge agreements, as specified by and in form and substance
\nsatisfactory to the Lender, securing payment of all the Obligations of the
\nBorrower under the Loan Documents and constituting Liens on all such properties,
\nand (iii) take all action (including the the filing of UCC financing
\nstatements, the giving of notices and the endorsement of notices on title
\ndocuments) requested by the Lender to vest in the Lender (or in any
\nrepresentative of the Lender designated by it) valid and subsisting Liens on
\nsuch property, enforceable against all third parties. 6.08 Further
\nAssurances. Promptly upon request by the Lender, (a) correct any defect or
\nerror that may be discovered in any Loan Document or in the execution,
\nacknowledgment, filing or recordation thereof, which defect or error the Lender
\nin its reasonable judgment deems material, and (b) do, execute, acknowledge,
\ndeliver, record, re-record, file, re-file, register and reregister any and all
\nsuch further acts, deeds, certificates, assurances and other instruments as the
\nLender may reasonably require from time to time in order to (i) carry out more
\neffectively the purposes of the Loan Documents, (ii) to the fullest extent
\npermitted by applicable law, subject the Borrower153s properties, assets, rights
\nor interests to the Liens now or hereafter intended to be covered by any of the
\nCollateral Documents, (iii) perfect and maintain the validity, effectiveness and
\npriority of any of the Collateral Documents and any of the Liens intended to be
\ncreated thereunder and (iv) assure, convey, grant, assign, transfer, preserve,
\nprotect and confirm more effectively unto the Secured Parties the rights granted
\nor now or hereafter intended to be granted to the Secured Parties under any Loan
\nDocument or under any other instrument executed in connection with any Loan
\nDocument to which any Loan Party is or is to be a party. ARTICLE VII.
\nNEGATIVE COVENANTS So long as the Lender shall have any Commitment hereunder
\nor any Loan or other Obligation hereunder shall remain unpaid or unsatisfied,
\nthe Borrower shall not directly or indirectly: 7.01 Liens. Except with the
\napproval of the Lender, create, incur, assume or suffer to exist any Lien upon
\nany of its property, assets or revenues, whether now owned or hereafter
\nacquired, other than Permitted Liens. 7.02 Indebtedness. Except with the
\napproval of the Lender, create, incur, assume or suffer to exist any
\nIndebtedness, other than Permitted Indebtedness. 7.03 Fundamental
\nChanges. Merge, dissolve, liquidate, consolidate with or into another Person,
\nor Dispose of (whether in one transaction or in a series of transactions) all or
\nsubstantially all of its assets (whether now owned or hereafter acquired) to or
\nin favor of any Person. 7.04 Dispositions. Make any Disposition or enter into
\nany agreement to make any Disposition, except (a) Dispositions of obsolete,
\nsurplus or worn out property, whether now
\n – 21 –<\/p>\n
\n<\/p>\n owned or hereafter acquired, in the ordinary course of business, and (b)
\nDispositions of inventory or assets in the ordinary course of the Mortgage
\nBusiness; provided, however, that any Disposition pursuant to clauses (a) and
\n(b) shall be for fair market value. 7.05 Change in Nature of Business. Except
\nwith the approval of the Lender, (a) engage in any practice, take any action, or
\nenter into any transaction outside the ordinary course of business or (b) engage
\nin any material line of business other than the Mortgage Business or any
\nbusiness substantially related or incidental thereto. 7.06 Use of
\nProceeds. Use the proceeds of any Loan, whether directly or indirectly, and
\nwhether immediately, incidentally or ultimately, to purchase or carry margin
\nstock (within the meaning of Regulation U of the FRB) or to extend credit to
\nothers for the purpose of purchasing or carrying margin stock or to refund
\nindebtedness originally incurred for such purpose. ARTICLE VIII. EVENTS OF
\nDEFAULT AND REMEDIES 8.01 Events of Default. Any of the following shall
\nconstitute an Event of Default: (a) Non-Payment. The Borrower or any other
\nLoan Party fails to pay (i) when and as required to be paid herein, any amount
\nof principal of any Loan, or (ii) within three Business Days after the same
\nbecomes due, any interest on any Loan, or (iii) within three Business Days after
\nthe same becomes due, any other amount payable hereunder or under any other Loan
\nDocument; or (b) Specific Covenants. The Borrower fails to perform or observe
\nany term, covenant or agreement contained in any of Section 6.01, 6.03, 6.06,
\n6.07 or Article VII; or (c) Other Defaults. Any Loan Party fails to perform
\nor observe any other covenant or agreement (not specified in subsection (a) or
\n(b) above) contained in any Loan Document on its part to be performed or
\nobserved and such failure continues for 30 days; or (d) Representations and
\nWarranties. Any representation, warranty, certification or statement of fact
\nmade or deemed made by or on behalf of the Borrower or any other Loan Party
\nherein, in any other Loan Document, or in any document delivered in connection
\nherewith or therewith shall be incorrect or misleading in any material respect
\nwhen made or deemed made; or (e) Cross-Default. The Borrower (i) fails to
\nmake any payment when due after giving effect to any applicable notice and cure
\nperiods (whether by scheduled maturity, required prepayment, acceleration,
\ndemand, or otherwise) in respect of any Indebtedness or Guarantee (other than
\nIndebtedness hereunder), or (ii) fails to observe or perform any other agreement
\nor condition relating to any such Indebtedness or Guarantee or contained in any
\ninstrument or agreement evidencing, securing or relating thereto, or any other
\nevent occurs, in each case after giving effect to any applicable notice and cure
\nperiods, the effect of which default or other event is to cause, or to permit
\nthe holder or hold-
\n – 22 –<\/p>\n
\n<\/p>\n ers of such Indebtedness or the beneficiary or beneficiaries of such
\nGuarantee (or a trustee or agent on behalf of such holder or holders or
\nbeneficiary or beneficiaries) to cause, with the giving of notice if required,
\nsuch Indebtedness to be demanded or to become due or to be repurchased, prepaid,
\ndefeased or redeemed (automatically or otherwise), or an offer to repurchase,
\nprepay, defease or redeem such Indebtedness to be made, prior to its stated
\nmaturity, or such Guarantee to become payable or cash collateral in respect
\nthereof to be demanded; provided, however, that it shall not constitute an Event
\nof Default pursuant to this paragraph (e) unless the aggregate amount of all
\nsuch Indebtedness referred to in clauses (i) and (ii) exceeds $10,000,000 at any
\none time; or (f) Insolvency Proceedings, Etc. Any Loan Party institutes or
\nconsents to the institution of any proceeding under any Debtor Relief Law, or
\nmakes an assignment for the benefit of creditors; or applies for or consents to
\nthe appointment of any receiver, trustee, custodian, conservator, liquidator,
\nrehabilitator or similar officer for it or for all or any material part of its
\nproperty; or any receiver, trustee, custodian, conservator, liquidator,
\nrehabilitator or similar officer is appointed without the application or consent
\nof such Person and the appointment continues undischarged or unstayed for 60
\ncalendar days; or any proceeding under any Debtor Relief Law relating to any
\nsuch Person or to all or any material part of its property is instituted without
\nthe consent of such Person and continues undismissed or unstayed for 60 calendar
\ndays, or an order for relief is entered in any such proceeding; or
\n(g) Inability to Pay Debts; Attachment. (i) Any Loan Party becomes unable or
\nadmits in writing its inability or fails generally to pay its debts as they
\nbecome due, or (ii) any writ or warrant of attachment or execution or similar
\nprocess is issued or levied against all or any material part of the property of
\nany such Person and is not released, vacated or fully bonded within 60 days
\nafter its issue or levy; or (h) Judgments. There is entered against the
\nBorrower (i) a final judgment or order for the payment of money in an aggregate
\namount exceeding $10,000,000 (to the extent not covered by independent
\nthird-party insurance as to which the insurer does not dispute coverage), or
\n(ii) any one or more non-monetary final judgments that have, or could reasonably
\nbe expected to have, individually or in the aggregate, a Material Adverse Effect
\nand, in either case, (A) enforcement proceedings are commenced by any creditor
\nupon such judgment or order, or (B) there is a period of 20 consecutive days
\nduring which a stay of enforcement of such judgment, by reason of a pending
\nappeal or otherwise, is not in effect; or (i) ERISA. (i) An ERISA Event
\noccurs with respect to a Pension Plan or Multiemployer Plan which has resulted
\nor could reasonably be expected to result in liability of the Borrower under
\nTitle IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an
\naggregate amount in excess of $5,000,000, or (ii) the Borrower or any ERISA
\nAffiliate fails to pay when due, after the expiration of any applicable grace
\nperiod, any installment payment with respect to its withdrawal liability under
\nSection 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
\nexcess of $5,000,000; or
\n – 23 –<\/p>\n
\n<\/p>\n (j) Invalidity of Loan Documents. Any Loan Document, at any time after its
\nexecution and delivery and for any reason other than as expressly permitted
\nhereunder or thereunder or satisfaction in full of all the Obligations, ceases
\nto be in full force and effect; or any Loan Party or any other Person contests
\nin any manner the validity or enforceability of any Loan Document; or any Loan
\nParty denies that it has any or further liability or obligation under any Loan
\nDocument, or purports to revoke, terminate or rescind any Loan Document; or
\n(k) Change of Control. There occurs any Change of Control; or
\n(l) Governmental Approvals. Any Loan Party shall fail to obtain, renew,
\nmaintain or comply with any such governmental approvals as shall be necessary
\n(i) for the execution, delivery or performance by such Loan Party of its
\nobligations, or the exercise of its rights, under the Loan Documents, or (ii)
\nfor the grant of the Liens created under the Security Agreement or for the
\nvalidity and enforceability or the perfection of or exercise by the Lender of
\nits rights and remedies under the Security Agreement; or any such governmental
\napproval shall be revoked, terminated, withdrawn, suspended, modified or
\nwithheld or shall cease to be effective; or any proceeding shall be commenced by
\nor before any Governmental Authority for the purpose of revoking, terminating,
\nwithdrawing, suspending, modifying or withholding any such governmental approval
\nand such proceeding is not dismissed within 60 days. 8.02 Remedies upon Event
\nof Default. If any Event of Default occurs and is continuing, the Lender may
\ntake any or all of the following actions: (a) terminate the obligation of the
\nLender to make Loans; (b) declare the unpaid principal amount of all
\noutstanding Loans, all interest accrued and unpaid thereon, and all other
\namounts owing or payable hereunder or under any other Loan Document to be
\nimmediately due and payable, without presentment, demand, protest or other
\nnotice of any kind, all of which are hereby expressly waived by the Borrower;
\nand (c) exercise all rights and remedies available to it under the Loan
\nDocuments; provided, however, that upon the occurrence of an actual or deemed
\nentry of an order for relief with respect to the Borrower under the Bankruptcy
\nCode of the United States, the obligation of the Lender to make Loans shall
\nautomatically terminate, the unpaid principal amount of all outstanding Loans
\nand all interest and other amounts as aforesaid shall automatically become due
\nand payable, in each case without further act of the Lender. 8.03 Application
\nof Funds. After the exercise of remedies provided for in Section 8.02 (or after
\nthe Loans have automatically become immediately due and payable as set forth in
\nthe proviso in Section 8.02), any amounts received on account of the Obligations
\nshall be applied by the Lender in the following order:
\n – 24 –<\/p>\n
\nFirst, to payment of that portion of the Obligations constituting
\nindemnities, expenses and other amounts (including charges and disbursements of
\ncounsel to the Lender and amounts payable under Article III) payable to the
\nLender; Second, to payment of that portion of the Obligations constituting
\naccrued and unpaid interest on the Loans and other Obligations payable to the
\nLender; Third, to payment of that portion of the Obligations constituting
\nunpaid principal of the Loans payable to the Lender; and Last, the balance, if
\nany, after all of the Obligations have been indefeasibly paid in full, to the
\nBorrower or as otherwise required by Law. ARTICLE IX. MISCELLANEOUS
\n9.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement
\nor any other Loan Document, and no consent to any departure by the Borrower or
\nany other Loan Party therefrom, shall be effective unless in writing signed by
\nthe Lender and the Borrower or the applicable Loan Party, as the case may be,
\nand each such waiver or consent shall be effective only in the specific instance
\nand for the specific purpose for which given. 9.02 Notices; Effectiveness;
\nElectronic Communication. (a) Notices Generally. Except in the case of
\nnotices and other communications expressly permitted to be given by telephone
\n(and except as provided in subsection (b) below), all notices and other
\ncommunications provided for herein shall be in writing and shall be delivered by
\nhand or overnight courier service, mailed by certified or registered mail or
\nsent by telecopier as follows, and all notices and other communications
\nexpressly permitted hereunder to be given by telephone shall be made to the
\napplicable telephone number, as follows: (i) if to the Borrower, to:
\nBerkadia Commercial Mortgage LLC 118 Welsh Road Horsham, Pennsylvania 19044
\nAttention: Joseph Funk Electronic mail address: joseph.funk@berkadia.com
\nTelephone number: (215) 328-3200 Telecopier number: (215) 328-3478
\nWith a copy to:
\nThomas Miraglia at address listed above
\nWith a copy to (but which shall not constitute notice):<\/p>\n – 25 –<\/p>\n
\n<\/p>\n Leucadia National Corporation 315 Park Avenue South New York, New York 10010
\nAttention: Joseph A Orlando Electronic mail address: jorlando@leucadia-nyc.com
\nTelephone number: (212) 460-1900 Telecopier number: (212) 598-3245; and
\n(ii) if to the Lender, to: BH Finance LLC 3555 Farnam Street Omaha, Nebraska
\n68131 Attention: Kerby Ham Electronic mail address: ksham@brka.com Telephone
\nnumber: (402) 978-5430 Telecopier number: (402) 346-3375
\nNotices sent by hand or overnight courier service, or mailed by certified or
\nregistered mail, shall be deemed to have been given when received; notices sent
\nby telecopier shall be deemed to have been given when sent (except that, if not
\ngiven during normal business hours for the recipient, shall be deemed to have
\nbeen given at the opening of business on the next Business Day for the
\nrecipient). Notices delivered through electronic communications to the extent
\nprovided in subsection (b) below, shall be effective when received, except if
\nreceived after normal business hours of the recipient, in which case such notice
\nshall be deemed received upon the opening of business the following day. Any
\nparty hereunder may change its address, telecopier or telephone number for
\nnotices and other communications hereunder by notice to the other party.
\n(b) Electronic Communications. Notices and other communications hereunder may
\nbe delivered or furnished by electronic communication (including e-mail) unless
\na party hereunder notifies the other party to the contrary. 9.03 No Waiver;
\nCumulative Remedies. No failure by the Lender to exercise, and no delay by the
\nLender in exercising, any right, remedy, power or privilege hereunder shall
\noperate as a waiver thereof; nor shall any single or partial exercise of any
\nright, remedy, power or privilege hereunder preclude any other or further
\nexercise thereof or the exercise of any other right, remedy, power or
\nprivilege. The rights, remedies, powers and privileges herein provided are
\ncumulative and not exclusive of any rights, remedies, powers and privileges
\nprovided by law. 9.04 Expenses; Indemnity; Damage Waiver. (a) Costs and
\nExpenses. The Borrower shall pay all reasonable out-of-pocket expenses incurred
\nby the Lender (including the reasonable fees, charges and disbursements of any
\ncounsel for the Lender) in connection with the enforcement or protection of its
\nrights (A) in connection with this Agreement and the other Loan Documents,
\nincluding its rights under this Section, or (B) in connection with the Loans
\nmade hereunder, including all such out-of-pocket expenses incurred during any
\nworkout, restructuring or negotiations in respect of such Loans.
\n – 26 –<\/p>\n
\n<\/p>\n (b) Indemnification by the Borrower. The Borrower shall indemnify the Lender
\nand each Related Party of the Lender (each such Person being called an
\n“Indemnitee”) against, and hold each Indemnitee harmless from, any and all
\nlosses, claims, damages, liabilities and related expenses (including the
\nreasonable fees, charges and disbursements of any counsel for any Indemnitee)
\nincurred by any Indemnitee or asserted against any Indemnitee by any third party
\nor by the Borrower or any other Loan Party arising out of, in connection with,
\nor as a result of (i) the execution or delivery of this Agreement, any other
\nLoan Document or any agreement or instrument contemplated hereby or thereby, the
\nperformance by the parties hereto of their respective obligations hereunder or
\nthereunder, the consummation of the transactions contemplated hereby or thereby,
\n(ii) any Loan or the use or proposed use of the proceeds therefrom, or (iii) any
\nactual or prospective claim, litigation, investigation or proceeding relating to
\nany of the foregoing, whether based on contract, tort or any other theory,
\nwhether brought by a third party or by the Borrower or any other Loan Party, and
\nregardless of whether any Indemnitee is a party thereto; provided that such
\nindemnity shall not, as to any Indemnitee, be available to the extent that such
\nlosses, claims, damages, liabilities or related expenses are determined by a
\ncourt of competent jurisdiction by final and nonappealable judgment to have
\nresulted from the gross negligence or willful misconduct of such Indemnitee or
\nto the extent related to any such Indemnitee solely in its capacity as a direct
\nor indirect shareholder of the Borrower and without relation to the matters
\nspecified in clauses (i) and (ii) above; provided, further, that the Borrower
\nshall not be required to indemnify any Indemnitee for the costs and expenses of
\nmore than one legal counsel to all the Indemnitees in any one jurisdiction,
\nexcept where an actual conflict of interest between Indemnitees exists.
\n(c) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
\napplicable law, the Borrower shall not assert, and hereby waives, any claim
\nagainst any Indemnitee, on any theory of liability, for special, indirect,
\nconsequential or punitive damages (as opposed to direct or actual damages)
\narising out of, in connection with, or as a result of, this Agreement, any other
\nLoan Document or any agreement or instrument contemplated hereby, the
\ntransactions contemplated hereby or thereby, any Loan or the use of the proceeds
\nthereof. (d) Payments. All amounts due under this Section shall be payable
\nnot later than ten Business Days after demand therefor. (e) Survival. The
\nagreements in this Section shall survive the termination of the Commitment and
\nthe repayment, satisfaction or discharge of all the other Obligations.
\n9.05 Payments Set Aside. To the extent that any payment by or on behalf of the
\nBorrower is made to the Lender, or the Lender exercises its right of setoff
\npursuant to Section 9.07 below, and such payment or the proceeds of such setoff
\nor any part thereof is subsequently invalidated, declared to be fraudulent or
\npreferential, set aside or required (including pursuant to any settlement
\nentered into by the Lender in its discretion) to be repaid to a trustee,
\nreceiver or any other party, in connection with any proceeding under any Debtor
\nRelief Law or otherwise, then to the extent of such recovery, the obligation or
\npart thereof originally intended to be satisfied shall be revived and continued
\nin full force and effect as if such payment had not been made or such setoff had
\nnot occurred.
\n – 27 –<\/p>\n
\n9.06 Successors and Assigns. (a) Successors and Assigns Generally. The
\nprovisions of this Agreement shall be binding upon and inure to the benefit of
\nthe parties hereto and their respective successors and assigns permitted hereby,
\nexcept that neither the Borrower nor any other Loan Party may assign or
\notherwise transfer any of its rights or obligations hereunder without the prior
\nwritten consent of the Lender and the Lender may not assign or otherwise
\ntransfer any of its rights or obligations hereunder except in accordance with
\nthe provisions of subsection (b) of this Section. (b) Assignments by
\nLender. The Lender may at any time assign to (a) an Affiliate of the Lender or
\n(b) any other Person approved by, unless an Event of Default has occurred and is
\ncontinuing at such time, the Borrower (such approval not to be unreasonably
\nwithheld or delayed), all or a portion of its rights and obligations under this
\nAgreement (including all or a portion of its Commitment and the Loans at the
\ntime owing to it). From and after the effective date of each assignment and
\nassumption, such assignee thereunder shall be a party to this Agreement and, to
\nthe extent of the interest assigned, have the rights and obligations of the
\nLender under this Agreement, and the Lender thereunder shall, to the extent of
\nthe interest assigned by such assignment and assumption, be released from its
\nobligations under this Agreement (and, in the case of an assignment and
\nassumption covering all of the Lender153s rights and obligations under this
\nAgreement, the Lender shall cease to be a party hereto) but shall continue to be
\nentitled to the benefits of Sections 3.01 and 9.04 with respect to facts and
\ncircumstances occurring prior to the effective date of such assignment.
\n9.07 Right of Setoff. If an Event of Default shall have occurred and be
\ncontinuing, the Lender and each of its Affiliates are hereby authorized at any
\ntime and from time to time to the fullest extent permitted by applicable law, to
\nset off and apply any and all deposits (general or special, time or demand,
\nprovisional or final, in whatever currency, but excluding in any event any
\naccounts containing trust or escrow deposits) at any time held and other
\nobligations (in whatever currency) at any time owing by the Lender or any such
\nAffiliate to or for the credit or the account of the Borrower or any other Loan
\nParty against any and all of the obligations of the Borrower or such Loan Party
\nnow or hereafter existing under this Agreement or any other Loan Document to the
\nLender, irrespective of whether or not the Lender shall have made any demand
\nunder this Agreement or any other Loan Document and although such obligations of
\nthe Borrower or such Loan Party may be contingent or unmatured or are owed to a
\nbranch or office of the Lender different from the branch or office holding such
\ndeposit or obligated on such indebtedness. The rights of the Lender and its
\nAffiliates under this Section are in addition to other rights and remedies
\n(including other rights of setoff) that the Lender or its Affiliates may have.
\n9.08 Interest Rate Limitation. Notwithstanding anything to the contrary
\ncontained in any Loan Document, the interest paid or agreed to be paid under the
\nLoan Documents shall not exceed the maximum rate of non-usurious interest
\npermitted by applicable Law (the “Maximum Rate”). If the Lender shall receive
\ninterest in an amount that exceeds the Maximum Rate, the excess interest shall
\nbe applied to the principal of the Loans or, if it exceeds such unpaid
\nprincipal, refunded to the Borrower. In determining whether the interest
\ncontracted for, charged, or received by the Lender exceeds the Maximum Rate, the
\nLender may, to the extent permitted by applicable Law, (a) characterize any
\npayment that is not principal as an expense, fee, or premium rather than
\ninterest, (b) exclude voluntary prepayments and the effects thereof, and (c)
\namortize,
\n – 28 –<\/p>\n
\n<\/p>\n prorate, allocate, and spread in equal or unequal parts the total amount of
\ninterest throughout the contemplated term of the Obligations hereunder, in each
\ncase, provided that the Loan Parties are not thereby required to make any
\ngreater payments hereunder than would be required prior to any such action.
\n9.09 Counterparts; Integration; Effectiveness. This Agreement may be executed
\nin counterparts (and by different parties hereto in different counterparts),
\neach of which shall constitute an original, but all of which when taken together
\nshall constitute a single contract. This Agreement and the other Loan Documents
\nconstitute the entire contract among the parties relating to the subject matter
\nhereof and supersede any and all previous agreements and understandings, oral or
\nwritten, relating to the subject matter hereof. Except as provided in Section
\n4.01, this Agreement shall become effective when it shall have been executed by
\nthe parties hereto. Delivery of an executed counterpart of a signature page of
\nthis Agreement by telecopy shall be effective as delivery of a manually executed
\ncounterpart of this Agreement. 9.10 Survival of Representations and
\nWarranties. All representations and warranties made hereunder and in any other
\nLoan Document or other document delivered pursuant hereto or thereto or in
\nconnection herewith or therewith shall survive the execution and delivery hereof
\nand thereof. Such representations and warranties have been or will be relied
\nupon by the Lender, regardless of any investigation made by the Lender or on
\ntheir behalf and notwithstanding that the Lender may have had notice or
\nknowledge of any Default at the time of any Loan, and shall continue in full
\nforce and effect as long as any Loan or any other Obligation hereunder shall
\nremain unpaid or unsatisfied. 9.11 Severability. If any provision of this
\nAgreement or the other Loan Documents is held to be illegal, invalid or
\nunenforceable, (a) the legality, validity and enforceability of the remaining
\nprovisions of this Agreement and the other Loan Documents shall not be affected
\nor impaired thereby and (b) the parties shall endeavor in good faith
\nnegotiations to replace the illegal, invalid or unenforceable provisions with
\nvalid provisions the economic effect of which comes as close as possible to that
\nof the illegal, invalid or unenforceable provisions. The invalidity of a
\nprovision in a particular jurisdiction shall not invalidate or render
\nunenforceable such provision in any other jurisdiction. 9.12 Governing Law;
\nJurisdiction; Etc.
\n (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
\nACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. (b) SUBMISSION TO
\nJURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
\nUNCONDITIONALLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
\nSTATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
\nCOURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY
\nTHEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
\nAGREEMENT OR ANY OTHER LOAN DOCUMENT. EACH OF THE PARTIES HERETO AGREES THAT A
\nFINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
\nENFORCED IN OTHER JURISDICTIONS.
\n – 29 –<\/p>\n
\n<\/p>\n THE BORROWER AND EACH OTHER LOAN PARTY HEREBY IRREVOCABLY WAIVE ANY
\nOBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
\nGROUNDS OF FORUM NON CONVENIENS, THAT ANY OF THEM MAY NOW OR HEREAFTER HAVE TO
\nTHE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH JURISDICTIONS.
\n(c) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
\nPROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.02. NOTHING IN THIS
\nAGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
\nOTHER MANNER PERMITTED BY APPLICABLE LAW. 9.13 Waiver of Jury Trial. THE
\nBORROWER AND EACH OTHER LOAN PARTY, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL
\nRIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN
\nCONNECTION WITH OR RELATING TO, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ANY
\nOTHER TRANSACTION CONTEMPLATED HEREBY AND THEREBY. THIS WAIVER APPLIES TO ANY
\nACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.
\n
\n – 30 –<\/p>\n
\n<\/p>\n IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
\nexecuted as of the date first above written. <\/p>\n \n\n\n| <\/td>\n | \n BERKADIA COMMERCIAL MORTGAGE LLC<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n <\/p>\n \n\n\n| <\/td>\n | \n BH FINANCE LLC<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n <\/p>\n
\n<\/p>\n EXHIBIT A<\/p>\n LOAN NOTICE<\/p>\n Date: ______________<\/p>\n To: Kerby Ham This notice is delivered pursuant to that certain
\nCredit Agreement, dated as of December 10, 2009 (as amended, modified,
\nsupplemented or restated and in effect from time to time, the “Credit
\nAgreement”), among Berkadia Commercial Mortgage LLC, a Delaware limited
\nliability company and BH Finance LLC, a Nebraska limited liability
\ncompany. Capitalized terms used but not defined herein have the meanings given
\nto them in the Credit Agreement. The undersigned hereby requests a Loan:
\n1. On _____________ (a Business Day). 2. In the amount
\nof dollars ($ )
\n
\n Note: Pursuant to Section 2.02(a) of the Credit Agreement, each Loan shall be
\nin a minimum principal amount of $5,000,000 or a whole multiple of $1,000,000 in
\nexcess thereof. The Loan requested herein complies with Section 4.02 of the
\nCredit Agreement. <\/p>\n \n\n\n| <\/td>\n | \n Berkadia Commercial Mortgage LLC<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n \n\n\n| <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n <\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8047],"corporate_contracts_industries":[9446],"corporate_contracts_types":[9561,9560],"class_list":["post-40977","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-leucadia-national-corp","corporate_contracts_industries-insurance__property","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40977","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40977"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40977"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40977"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40977"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}} | | | | |