Common use of Subsection 2 Clause in Contracts

Subsection 2. 02 (a) of the Original Loan Agreement is hereby deleted in its entirety and the following subsection shall be inserted in lieu thereof: (a) The Loans made by Lender shall be evidenced by a single promissory note of Borrower substantially in the form of Exhibit A hereto, dated the date hereof, payable to Lender in the principal amount of One Hundred Million Dollars ($100,000,000.00), as otherwise duly completed. Notwithstanding the foregoing, provided that no Default or Event of Default shall have occurred and be continuing hereunder or under any Affiliate Credit Facility, Borrower may request, upon no less than ten (10) Business Days prior written notice delivered to Lender, that the aggregate credit available to Borrower hereunder, under the Conduit Loan Agreement and under any Affiliate Credit Agreement be reallocated among such credit agreements; provided, however, that in no event shall the Maximum Credit plus (i) the aggregate of the Maximum Credit hereunder and the Maximum Credit (as such term is defined in the Conduit Loan Agreement) under the Conduit Loan Agreement plus (ii) the aggregate Maximum Credit (as such term is defined in any Affiliate Credit Facility) under any existing Affiliate Credit Facility, exceed Four Hundred Million Dollars ($400,000,000.00). In the event (i) that the Maximum Credit is increased or decreased as a result of a reallocation of the Maximum Credit available hereunder or under any Affiliate Credit Facility, Borrower shall deliver to Lender a substitute Note evidencing such increase or decrease and such other documents, certificates and amendments as Lender shall request. Lender shall have the right to have its Note subdivided, by exchange for promissory notes of lesser denominations or otherwise and shall have the right to sell participating interests in such Note; provided, however, that Lender must retain (i) in excess of fifty percent (50%) ownership interest in the Note and (ii) have control over all decisions with respect to loan pricing and the exercise of remedies with respect to each item of Collateral; and provided, further, however, that Lender may subject up to one hundred percent (100%) of the Loans made hereunder to a repurchase agreement."

Subsection 2. 02 (a12(a) of the Original Loan Credit Agreement is hereby deleted amended and restated in its entirety and the following subsection shall be inserted in lieu thereofto read as follows: (a) The Each borrowing by the Borrower from the Revolving Credit Lenders hereunder, each payment by the Borrower on account of any commitment fee hereunder and any reduction of the Revolving Credit Commitments of Revolving Credit Lenders shall be made pro rata according to the respective Commitment Percentages of the Revolving Credit Lenders. Except during any period in which an Event of Default has occurred and is continuing, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Credit Loans, and any application by the Administrative Agent of the proceeds of any Collateral, shall be made pro rata according to the respective outstanding principal amounts of such Loans then held by the Lenders. All payments (including prepayments) to be made by Lender the Borrower hereunder in respect of any Loan, whether on account of principal, interest, Reimbursement Obligations (whether in respect of Domestic L/Cs or Foreign L/Cs), fees, expenses or otherwise, shall be evidenced by made without set off or counterclaim and shall be made prior to 11:00 A.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders with respect to such Loans, at the Administrative Agent's office specified in subsection 10.2, in Dollars and in immediately available funds; provided, that with respect to any Reimbursement Obligations of the Borrower arising from the presentment to the Issuing Lender of a single promissory note of draft under a Foreign L/C, the Borrower substantially may make payment in the form of Exhibit A hereto, dated applicable Alternative Currency if such payment is received by the Issuing Lender on the date hereofsuch draft is paid by the Issuing Lender. (1) to the ratable payment of all amounts due and owing by the Borrower pursuant to subsection 10.5 of this Agreement, payable subsection 10.5 of the Facility B Credit Agreement or subsection 10.5 of the Facility C Credit Agreement (if Facility C exists) to the Agents, the Facility B Agents and/or the Facility C Agents (if Facility C exists) and, after payment in full thereof, to any other Lender, Facility B Lender in or Facility C Lender (if Facility C exists); (2) to the ratable payment of all interest, fees and commissions due and owing under this Agreement, the Facility B Credit Agreement or the Facility C Credit Agreement (if Facility C exists) or to the Agents, the Facility B Agents, the Facility C Agents (if Facility C exists), the Swing Line Lender, any Lender, any Facility B Lender or any Facility C Lender (if Facility C exists); and (3) to the ratable payment (or cash collateralization) of all other obligations of the Borrower to the Agents, the Facility B Agents, the Facility C Agents (if Facility C exists), the Swing Line Lender, any Lender, any Facility B Lender or any Facility C Lender (if Facility C exists) under any Credit Document, Facility B Credit Document, Facility C Credit Document (if Facility C exists) or Interest Rate Agreement with any Lender, any Facility B Lender or any Facility C Lender (if Facility C exists), including, without limitation the aggregate outstanding principal amount of One Hundred Million Dollars Loans, Facility B Loans and Facility C Loans ($100,000,000.00if Facility C exists), as otherwise duly completed. Notwithstanding the foregoingaggregate L/C Obligations, provided that no Default or Event Facility ▇ ▇/C Obligations and Facility C L/C Obligations (if Facility C exists) and the aggregate outstanding amount of Default shall have occurred and be continuing hereunder or under Interest Rate Agreement Obligations to any Affiliate Credit Facility, Borrower may request, upon no less than ten (10) Business Days prior written notice delivered to Lender, that any Facility B Lender and any Facility C Lender (if Facility C exists). For purposes of applying payments and proceeds distributed under clause 3 above, each Lender will first apply such amounts to all outstanding Loans and Interest Rate Agreement Obligations then due and owing to such Lender before such amounts will be held as cash collateral for L/C Obligations in which such Lender is a L/C Participant. The Administrative Agent, the aggregate credit available to Borrower hereunder, under the Conduit Loan Agreement and under any Affiliate Credit Agreement be reallocated among such credit agreements; provided, however, that in no event shall the Maximum Credit plus (i) the aggregate of the Maximum Credit hereunder Facility B Administrative Agent and the Maximum Credit Facility C Administrative Agent (if Facility C exists) shall ratably distribute such payments to the applicable Lenders, the Facility B Lenders and the Facility C Lenders (if Facility C exists) promptly upon receipt in like funds as received. If any payment hereunder becomes due and payable on a day other than a Business Day, such term is defined in payment shall be extended to the Conduit Loan Agreement) under the Conduit Loan Agreement plus (ii) the aggregate Maximum Credit (as such term is defined in any Affiliate Credit Facility) under any existing Affiliate Credit Facilitynext succeeding Business Day, exceed Four Hundred Million Dollars ($400,000,000.00). In the event (i) that the Maximum Credit is increased or decreased as a result of a reallocation of the Maximum Credit available hereunder or under any Affiliate Credit Facilityand, Borrower shall deliver to Lender a substitute Note evidencing such increase or decrease and such other documents, certificates and amendments as Lender shall request. Lender shall have the right to have its Note subdivided, by exchange for promissory notes of lesser denominations or otherwise and shall have the right to sell participating interests in such Note; provided, however, that Lender must retain (i) in excess of fifty percent (50%) ownership interest in the Note and (ii) have control over all decisions with respect to loan pricing and payments of principal, interest thereon shall be payable at the exercise of remedies with respect to each item of Collateral; and provided, further, however, that Lender may subject up to one hundred percent (100%) of the Loans made hereunder to a repurchase agreementthen applicable rate during such extension."

Subsection 2. 02 (a12(a) of the Original Loan Credit Agreement is hereby deleted amended and restated in its entirety and the following subsection shall be inserted in lieu thereofto read as follows: (a) The Each borrowing by the Borrower from the Revolving 364 Day Lenders hereunder, each payment by the Borrower on account of any commitment fee hereunder and any reduction of the Revolving 364 Day Commitments of Revolving 364 Day Lenders shall be made pro rata according to the respective Commitment Percentages of the Revolving 364 Day Lenders. Except during any period in which an Event of Default has occurred and is continuing, each payment (including each prepayment) by the Borrower on account of principal of and interest on any Term Loans and/or the Revolving 364 Day Loans, and any application by the Administrative Agent of the proceeds of any Collateral, shall be made pro rata according to the respective outstanding principal amounts of such Loans then held by the Lenders. All payments (including prepayments) to be made by Lender the Borrower hereunder in respect of any Loan, whether on account of principal, interest, Reimbursement Obligations (whether in respect of Domestic L/Cs or Foreign L/Cs), fees, expenses or otherwise, shall be evidenced by made without set off or counterclaim and shall be made prior to 11:00 A.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders with respect to such Loans, at the Administrative Agent's office specified in subsection 10.2, in Dollars and in immediately available funds; provided, that with respect to any Reimbursement Obligations of the Borrower arising from the presentment to the Issuing Lender of a single promissory note of draft under a Foreign L/C, the Borrower substantially may make payment in the form of Exhibit A hereto, dated applicable Alternative Currency if such payment is received by the Issuing Lender on the date hereofsuch draft is paid by the Issuing Lender. (1) to the ratable payment of all amounts due and owing by the Borrower pursuant to subsection 10.5 of this Agreement, payable subsection 10.5 of the Facility A Credit Agreement or subsection 10.5 of the Facility C Credit Agreement (if Facility C exists) to the Agents, the Facility A Agents and/or the Facility C Agents (if Facility C exists) and, after payment in full thereof, to any other Lender, Facility A Lender in or Facility C Lender (if Facility C exists); (2) to the ratable payment of all interest, fees and commissions due and owing under this Agreement, the Facility A Credit Agreement or the Facility C Credit Agreement (if Facility C exists) or to the Agents, the Facility A Agents, the Facility C Agents (if Facility C exists), the Swing Line Lender, any Lender, any Facility A Lender or any Facility C Lender (if Facility C exists); and (3) to the ratable payment (or cash collateralization) of all other obligations of the Borrower to the Agents, the Facility A Agents, the Facility C Agents (if Facility C exists), the Swing Line Lender, any Lender, any Facility A Lender or any Facility C Lender (if Facility C exists) under any Credit Document, Facility A Credit Document, Facility C Credit Document (if Facility C exists) or Interest Rate Agreement with any Lender, any Facility A Lender or any Facility C Lender (if Facility C exists), including, without limitation the aggregate outstanding principal amount of One Hundred Million Dollars Loans, Facility A Loans and Facility C Loans ($100,000,000.00if Facility C exists), as otherwise duly completed. Notwithstanding the foregoingaggregate L/C Obligations, provided that no Default or Event Facility A L/C Obligations and Facility C L/C Obligations (if Facility C exists) and the aggregate outstanding amount of Default shall have occurred and be continuing hereunder or under Interest Rate Agreement Obligations to any Affiliate Credit Facility, Borrower may request, upon no less than ten (10) Business Days prior written notice delivered to Lender, that any Facility A Lender and any Facility C Lender (if Facility C exists). For purposes of applying payments and proceeds distributed under clause 3 above, each Lender will first apply such amounts to all outstanding Loans and Interest Rate Agreement Obligations then due and owing to such Lender before such amounts will be held as cash collateral for L/C Obligations in which such Lender is a L/C Participant. The Administrative Agent, the aggregate credit available to Borrower hereunder, under the Conduit Loan Agreement and under any Affiliate Credit Agreement be reallocated among such credit agreements; provided, however, that in no event shall the Maximum Credit plus (i) the aggregate of the Maximum Credit hereunder Facility A Administrative Agent and the Maximum Credit Facility C Administrative Agent (if Facility C exists) shall ratably distribute such payments to the applicable Lenders, the Facility A Lenders and the Facility C Lenders (if Facility C exists) promptly upon receipt in like funds as received. If any payment hereunder becomes due and payable on a day other than a Business Day, such term is defined in payment shall be extended to the Conduit Loan Agreement) under the Conduit Loan Agreement plus (ii) the aggregate Maximum Credit (as such term is defined in any Affiliate Credit Facility) under any existing Affiliate Credit Facilitynext succeeding Business Day, exceed Four Hundred Million Dollars ($400,000,000.00). In the event (i) that the Maximum Credit is increased or decreased as a result of a reallocation of the Maximum Credit available hereunder or under any Affiliate Credit Facilityand, Borrower shall deliver to Lender a substitute Note evidencing such increase or decrease and such other documents, certificates and amendments as Lender shall request. Lender shall have the right to have its Note subdivided, by exchange for promissory notes of lesser denominations or otherwise and shall have the right to sell participating interests in such Note; provided, however, that Lender must retain (i) in excess of fifty percent (50%) ownership interest in the Note and (ii) have control over all decisions with respect to loan pricing and payments of principal, interest thereon shall be payable at the exercise of remedies with respect to each item of Collateral; and provided, further, however, that Lender may subject up to one hundred percent (100%) of the Loans made hereunder to a repurchase agreementthen applicable rate during such extension."

Subsection 2. 02 (a) of the Original Loan and Security Agreement is hereby deleted in its entirety and the following subsection shall be inserted in lieu thereof: (a) The Loans made by Lender shall be evidenced by a single promissory note of Borrower substantially in the form of Exhibit A hereto, dated the date hereof, payable to Lender in the principal amount of One Hundred Million Dollars ($100,000,000.00), as otherwise duly completed. Notwithstanding the foregoing, provided that no Default or Event of Default shall have occurred and be continuing hereunder or under any Affiliate Credit Facility, Borrower may request, upon no less than ten (10) Business Days prior written notice delivered to Lender, that the aggregate credit available to Borrower hereunder, under the Conduit CMBS Loan Agreement and under any Affiliate Credit Agreement be reallocated among such credit agreements; provided, however, that in no event shall the Maximum Credit plus (i) the aggregate of the Maximum Credit hereunder and the Maximum Credit (as such term is defined in the Conduit CMBS Loan Agreement) under the Conduit CMBS Loan Agreement plus (ii) the aggregate Maximum Credit (as such term is defined in any Affiliate Credit Facility) under any existing Affiliate Credit Facility, exceed Four Hundred Million Dollars ($400,000,000.00). In the event (i) that the Maximum Credit is increased or decreased as a result of a reallocation of the Maximum Credit available hereunder or under any Affiliate Credit Facility, Borrower shall deliver to Lender a substitute Note evidencing such increase or decrease and such other documents, certificates and amendments as Lender shall request. Lender shall have the right to have its Note subdivided, by exchange for promissory notes of lesser denominations or otherwise and shall have the right to sell participating interests in such Note; provided, however, that Lender must retain (i) in excess of fifty percent (50%) ownership interest in the Note and (ii) have control over all decisions with respect to loan pricing and the exercise of remedies with respect to each item of Collateral; and provided, further, however, that Lender may subject up to one hundred percent (100%) of the Loans made hereunder to a repurchase agreement."