Amendment to Third Amended and Restated Credit Agreement

FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.1

 

CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED, AND RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.

 

FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT

 

FIRST AMENDMENT, dated as of August 1, 2018 (this “Amendment”), to the Third Amended and Restated Credit Agreement, dated as of February 28, 2018 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among Starwood Property Mortgage Sub-10, L.L.C. and Starwood Property Mortgage Sub-10-A, L.L.C., as Borrowers, Starwood Property Trust, Inc. and the subsidiaries of Starwood Property Trust, Inc. from time to time party thereto, as Guarantors, Bank of America, N.A., as Administrative Agent thereunder (in such capacity, the “Administrative Agent”) and the Lenders from time to time party thereto (collectively, the “Lenders”).  Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement.

 

WHEREAS, the Borrowers have requested that the Credit Agreement be modified as herein set forth.

 

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

SECTION 1.   Amendments to Credit Agreement Relating to “Flex Period”.

1.1        New Definitions.    Section 1.01 of the Credit Agreement is hereby amended by inserting the following new definitions in the appropriate alphabetical order:

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

First Amendment” means the First Amendment to this Agreement, dated as of August 1, 2018, among the Loan Parties, the Administrative Agent and the Lenders party thereto.

First Amendment Effective Date” has the meaning specified in Section 3.1 of the First Amendment.

Flex Amendment Effective Date” has the meaning specified in Section 3.2 of the First Amendment.

Flex Period” means the period commencing on the Flex Amendment Effective Date and ending on the earlier to occur of (i) September 28, 2018 and (ii) the first Business Day following receipt by the Administrative Agent of a written notice from the Borrowers stating that they have elected to terminate the Flex Period.

1.2        Definition of Applicable PercentageThe last sentence of the definition of “Applicable Percentage” contained in Section 1.01 of the Credit Agreement is hereby amended and restated to read as follows:

The Applicable Percentage of each Lender as of the Flex Amendment Effective Date is set forth opposite the name of such Lender (i) on Part A of Schedule 2.01 at any time during the Flex Period, (ii) on Part B of Schedule 2.01 at any time other than during the Flex Period, or (iii) with

 

 


 

 

respect to any Lender that becomes a party to this Agreement after the Flex Amendment Effective Date, as set forth in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, in each case as such amount may be adjusted from time to time in accordance with this Agreement.

1.3        Definition of Commitment.  The definition of “Commitment” contained in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

Commitment” means, as to each Lender, its obligation to make Revolving Credit Loans to the Borrowers pursuant to Section 2.01 and purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name (i) on Part A of Schedule 2.01 at any time during the Flex Period, (ii) on Part B of Schedule 2.01 at any time other than during the Flex Period, or (iii) with respect to any Lender that becomes a party to this Agreement after the Flex Amendment Effective Date, as set forth in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, in each case as such amount may be adjusted from time to time in accordance with this Agreement.

 

1.4        Definition of Release Conditions.  Clause (d) of the definition of “Release Conditions” contained in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

(d)         the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, in the case of Section 5.27, in all respects) on and as of the effective date of the proposed Release Transaction and, both before and after giving effect to such removal and/or release, except (A) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, (B) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (A)) after giving effect to such qualification and (C) for purposes of this clause, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01;

 

1.5        Amendment to Section 2.12(a)(ii)(D).  Section 2.12(a)(ii)(D) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

(D)        The Administrative Agent shall have received a certificate of each Loan Party dated as of the effective date of such Maturity Date extension signed by a Responsible Officer of such Loan Party certifying that, before and after giving effect to such extension, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, in the case of Section 5.27, in all respects) on and as of such date, except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, (y) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such date after giving effect to such qualification and (z) for purposes of this Section 2.12(a), the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists;

 

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1.6        Amendments to Section 2.12(b)(iv).

 

1.6.1.    Section 2.12(b)(iv)(E) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

(E)        The Administrative Agent shall have received a certificate of each Loan Party dated as of the effective date of such First Extended Maturity Date extension signed by a Responsible Officer of such Loan Party certifying that, before and after giving effect to such extension, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, in the case of Section 5.27, in all respects) on and as of such date, except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, (y) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such date after giving effect to such qualification and (z) for purposes of this Section 2.12(b), the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists;

 

1.6.2     The word “and” appearing at the end of Section 2.12(b)(iv)(F) of the Credit Agreement is hereby deleted, the period appearing at the end of Section 2.12(b)(iv)(G) of the Credit Agreement is hereby deleted and replaced with a semi-colon and the following clauses are hereby added to the end of Section 2.12(b)(iv):

 

(H)        upon the reasonable request of any Lender made at least ten days prior to the effectiveness of an extension of the First Extended Maturity Date, the Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the U.S. Patriot Act, in each case at least five days prior to such effectiveness date; and

(I)         at least five days prior to the effectiveness of an extension of the First Extended Date, if either Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation it shall deliver to each Lender that so requests the same at least ten days prior to the effectiveness of such extension a Beneficial Ownership Certification in relation to such Borrower.

 

1.7        Amendment to Section 2.15(e)Section 2.15(e) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

(e)         Conditions to Effectiveness of Increase.  As conditions precedent to each such increase, (i) the Borrowers shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (x) (1) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on

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the Restatement Effective Date (if such resolutions include approval to increase the Aggregate Commitments to an amount at least equal to $650,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption, and (y) in the case of the Borrowers, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, in the case of Section 5.27, in all respects) on and as of such Increase Effective Date, except to the extent that (1) such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default shall have occurred and is then continuing, (ii) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrowers and each Eligible Assignee that is becoming a Lender in connection with such increase, which New Lender Joinder Agreement shall (in order to be effective) be acknowledged and consented to in writing by the Administrative Agent and the Swing Line Lender and (y) written confirmation from each existing Lender, if any, participating in such increase of the amount by which its Commitment will be increased, which confirmation shall (in order to be effective) be acknowledged and consented to in writing by the Swing Line Lender and (iii) the Borrowers shall have paid to the Arranger any fee required to be paid by the Borrowers as agreed to in writing by the Arranger and the Borrowers in connection therewith.

 

1.8        New Section 2.17.  The following is hereby added to the Credit Agreement as Section 2.17 thereof:

 

2.17.     Flex Period Settlements.

 

(a)         On the Flex Amendment Effective Date, (i) the participation interests of the Lenders in any outstanding Swing Line Loans shall be automatically reallocated among the Lenders in accordance with their respective Applicable Percentages as set forth in Part A of Schedule 2.01, and any Lender whose Commitment has increased by virtue of such reallocation shall pay to the Administrative Agent such amounts as are necessary to fund its new or increased share of all Revolving Credit Loans in accordance with its adjusted Applicable Percentage, (ii) the Administrative Agent will use the proceeds thereof to pay to each existing Lender whose Applicable Percentage is decreasing such amounts as are necessary so that each Lender’s share of all Revolving Credit Loans will be equal to its adjusted Applicable Percentage, and (iii) if the Flex Amendment Effective Date occurs on a date other than the last day of an Interest Period applicable to any outstanding Revolving Credit Loan that is a Eurodollar Rate Loan, then the Borrowers shall pay any amounts required pursuant to Section 3.05 on account of the payments made pursuant to clause (ii) of this sentence.

(b)         Upon expiration or termination of the Flex Period, (i) the participation interests of the Lenders in any outstanding Letters of Credit shall be automatically reallocated among the Lenders in accordance with their respective Applicable Percentages as set forth in Part B of Schedule 2.01, and any Lender whose Commitment has increased by virtue of such reallocation shall pay to the Administrative Agent such amounts as are necessary to fund its new or increased share of all Revolving Credit Loans in accordance with its adjusted Applicable Percentage, (ii)

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the Administrative Agent will use the proceeds thereof to pay to each existing Lender whose Applicable Percentage is decreasing such amounts as are necessary so that each Lender’s share of all Revolving Credit Loans will be equal to its adjusted Applicable Percentage, and (iii) if the Flex Period expires on a date other than the last day of an Interest Period applicable to any outstanding Revolving Credit Loan that is a Eurodollar Rate Loan, then the Borrowers shall pay any amounts required pursuant to Section 3.05 on account of the payments made pursuant to clause (ii) of this sentence.

 

1.9        Amendment to Section 3.03(b).  Section 3.03(b) of the Credit Agreement is hereby amended to add the following sentence at the end thereof:

The provisions of this Section 3.03(b) shall supersede any provision in Section 11.01 to the contrary.

1.10      New Section 5.27.  The following is hereby added to the Credit Agreement as Section 5.27 thereof:

Section 5.27  Beneficial Ownership.  As of the Flex Amendment Effective Date, each Increase Effective Date and the date that an extension of the First Extended Maturity Date pursuant to Section 2.12(b) becomes effective, the information included in each Beneficial Ownership Certification delivered to the Administrative Agent and/or any Lender on such date is true and correct in all respects.

 

1.11      Amendment to Section 6.02(e)Section 6.02(e) of the Credit Agreement is hereby amended and restated in its entirety as follows:

 

(e) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the U.S. Patriot Act and the Beneficial Ownership Regulation;

1.12      Amendment to Section 11.01.  Clause (ii) of the second proviso to Section 11.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:

(ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, (x) affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document or (y) change any provisions of Section 3.03(b) or any term defined in such clauses.

1.13      Amended and Restated Schedule 2.01Schedule 2.01 to the Credit Agreement is hereby replaced with the Schedule 2.01 attached to this Amendment as Annex I.

SECTION 2.  Amendments to Credit Agreement Relating to Eligibility of Loan Assets.

2.1  Definition of Loan Asset.   The definition of “Loan Asset” is hereby amended and restated in its entirety to read as follows:

 

Loan Asset” means (i) a commercial mortgage loan originated or acquired by a Borrower or (ii) a commercial mortgage loan, together with the related mezzanine loan,

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originated or acquired by a Borrower, excluding, in each case of clause (i) and (ii), any future funding obligations set forth under the definitive documentation evidencing or governing such commercial mortgage loan and any advances in respect thereof unless and until such future advances are acquired by a Borrower.  For the avoidance of doubt, a mezzanine loan itself does not constitute a Loan Asset but as described in clause (ii) may comprise part of a Loan Asset.  Further, a Loan Asset shall not include any future funding obligations set forth under the definitive documentation in respect of any Loan Asset.

 

2.2        Definition Permitted Collateral LiensClause (d) of the definition of Permitted Collateral Liens set forth in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:

 

(d)  Commercially reasonable restrictions on permitted transfers that are set forth in the documentation governing such Loan Asset; provided, that for the avoidance of doubt, in order to constitute a Permitted Collateral Lien under this clause (d), (i) any identified restricted transferees or categories thereof must be approved by the Administrative Agent and (ii) in no event may any such restrictions limit the ability to transfer (including by way of foreclosure) any portion of such Loan Asset to the Administrative Agent (or a Wholly Owned Subsidiary of one or more Secured Parties) for the benefit of the Secured Parties.

2.3        Amendments to 2.14(a).

 

2.3.1.    Amendment to Section 2.14(a)(ii)Section 2.14(a)(ii) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

(ii)  A Borrower shall:

(A)  be the sole owner of such Loan Asset;

(B)  be the exclusive administrative agent, collateral agent, trustee and any similar agent or servicer under such Loan Asset if the documents evidencing or governing such Loan Asset include the designation of any such Person or, in the case of any such agent, trustee or servicer, have the exclusive right to direct, appoint and remove such agent, trustee or servicer; and

(C)  have the exclusive right (whether by virtue of (i) the express terms of the documents evidencing or governing such Loan Asset, (ii) a co-lender or similar agreement among the lenders to such Loan Asset, (iii) its status as administrative agent, collateral agent, trustee or similar agent or servicer under such Loan Asset or (iv) the percentage of loans held by such Borrower in respect of such Loan Asset) to act on behalf of all lenders party to such Loan Asset, without the consent or approval of any other lender party thereto, with respect to all matters, including (x) waivers, consents and amendments of all provisions contained in the documents evidencing or governing such Loan Asset, (y) decisions with respect to matters involving any collateral securing such Loan Asset and (z) the exercise of rights and remedies under such Loan Asset.

2.3.2.    New Section 2.14(a)(viii)Section 2.14(a) of the Credit Agreement is hereby amended by adding the following to the end thereof as clause (viii) thereto:

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(viii)  If and to the extent the definitive documentation in respect of such Loan Asset contemplates any future funding obligations, all such future funding obligations and any advances in respect thereof are held by a subsidiary of Parent (other than advances that constitute a Loan Asset that has been included in the calculation of the Borrowing Base Amount in accordance with the terms of this Agreement).

2.4        Amendment to Section 7.03(A)Clause (A) of Section 7.03 of the Credit Agreement is hereby amended and restated in its entirety as follows:

 

(A)        No Intermediate Parent shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except:

(i)     Indebtedness under the Loan Documents;

(ii)    in the case of a Borrower, customary contractual indemnities owed to the administrative agent, collateral agent, trustee or any similar agent or servicer under a Loan Asset that is included in the calculation of the Borrowing Base Amount; and

(iii)   in the case of any Property Asset Subsidiary Guarantor, unsecured trade payables incurred in the ordinary course of business relating to the ownership and operation of Property, so long as such unsecured trade payables are paid within sixty (60) days of the date incurred.

SECTION 3.   Conditions of Effectiveness.

3.1        Section 2 Amendments.  The provisions of this Amendment other than Section 1 hereof shall become effective on the date the Administrative Agent shall have received counterparts of this Amendment duly executed by each of the Loan Parties, the Administrative Agent and Lenders constituting Majority Lenders (such date being referred to herein as the “First Amendment Effective Date”).

3.2        Section 1 Amendments.  The provisions of Section 1 of this Amendment shall become effective on the first date that the Administrative Agent shall have received counterparts of this Amendment duly executed by each of the Loan Parties, the Administrative Agent and each of the Lenders and all of the conditions precedent set forth below shall have been satisfied or waived in writing (such date being referred to herein as the “Flex Amendment Effective Date”):

(a)         Fees.  The Borrowers shall have paid, by wire transfer of immediately available funds, to the Administrative Agent for the account of each Lender that has agreed to increase its Commitment pursuant to the terms of this Amendment (as reflected in Annex I hereto), a fee equal to *** of the aggregate amount of such increase.

(b)         Corporate Documentation.   The Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Loan Party to execute, deliver and perform this Amendment and of each of Responsible Officer thereof to act as a Responsible Officer in connection with this Amendment and the transactions contemplated hereby.

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(c)         Opinions.  The Administrative Agent shall have received (i) a favorable opinions of Sidley Austin LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request and (ii) a favorable opinion of Morrison & Foerster LLP, Maryland counsel to the Parent, addressed to the Administrative Agent and each Lender, as to such matters concerning the Parent and the Loan Documents to which the Parent is a party as the Administrative Agent may reasonably request.

(d)         Beneficial Ownership.  Upon the request of any Lender made at least ten days prior to the Flex Amendment Effective Date, each Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the U.S. Patriot Act, in each case at least five days prior to the Flex Amendment Effective Date.  At least five days prior to the Flex Amendment Effective Date, if either Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation it shall deliver to each Lender that so requests the same at least ten days prior to the effectiveness of such extension a Beneficial Ownership Certification in relation to such Borrower.

(e)         Additional Information.  The Administrative Agent shall have received such other assurances, information, certificates, documents, instruments or consents as the Administrative Agent reasonably may require.

SECTION 4.   Representations and Warranties.  After giving effect to this Amendment, the Loan Parties, jointly and severally, reaffirm and restate the representations and warranties set forth in the Credit Agreement and in the other Loan Documents and all such representations and warranties shall be true and correct in all material respects (or, in the case of Section 5.27, in all respects) on and as of the date hereof, except to the extent that (i) such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, (i) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (i)) after giving effect to such qualification and (iii) the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01.  Each of the Loan Parties represents and warrants (which representations and warranties shall survive the execution and delivery hereof) to the Administrative Agent and the Lenders that:

(a)         it has the power and authority to execute, deliver and carry out the terms and provisions of this Amendment and the transactions contemplated hereby and has taken or caused to be taken all necessary action to authorize the execution, delivery and performance of this Amendment and the transactions contemplated hereby;

(b)         no consent of any Person (including, without limitation, any of its equity holders or creditors), and no action of, or filing with, any governmental or public body or authority is required to authorize, or is otherwise required in connection with, the execution, delivery and performance of this Amendment;

(c)         this Amendment has been duly executed and delivered on its behalf by a duly authorized officer, and constitutes its legal, valid and binding obligation enforceable in

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accordance with its terms, subject to bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and the exercise of judicial discretion in accordance with general principles of equity;

(d)         no Default or Event of Default has occurred and is continuing;

(e)         the execution, delivery and performance of this Amendment will not violate any law, statute or regulation, or any order or decree of any court or governmental instrumentality, or conflict with, or result in the breach of, or constitute a default under, any contractual obligation of any Loan Party or any of its Subsidiaries; and

(f)         nothing contained in this Amendment, including the amendments to the Credit Agreement effected pursuant hereto, (i) impairs the validity, effectiveness or priority of the Liens granted pursuant to any Loan Document, and such Liens continue unimpaired with the same priority to secure repayment of all Obligations, whether heretofore or hereafter incurred, or (ii) requires that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens.

SECTION 5.   Affirmation of Guarantors.  Each Guarantor hereby approves and consents to this Amendment and the transactions contemplated by this Amendment and agrees and affirms that its guarantee of the Obligations continues to be in full force and effect and is hereby ratified and confirmed in all respects and shall apply to the Credit Agreement, as amended hereby, and all of the other Loan Documents, as such are amended, restated, supplemented or otherwise modified from time to time in accordance with their terms.

SECTION 6.   Costs and Expenses.  The Loan Parties acknowledge and agree that their payment obligations set forth in Section 11.04 of the Credit Agreement include the costs and expenses incurred by the Administrative Agent in connection with the preparation, execution and delivery of this Amendment and any other documentation contemplated hereby (whether or not this Amendment becomes effective or the transactions contemplated hereby are consummated and whether or not a Default or Event of Default has occurred or is continuing), including, but not limited to, the reasonable fees and disbursements of Arnold & Porter Kaye Scholer LLP, counsel to the Administrative Agent.

SECTION 7.   Ratifications.

(a)         Except as herein agreed, the Credit Agreement and the other Loan Documents remain in full force and effect and are hereby ratified and affirmed by the Loan Parties.

(b)         This Amendment shall be limited precisely as written and, except as expressly provided herein, shall not be deemed (i) to be a consent granted pursuant to, or a waiver, modification or forbearance of, any term or condition of the Credit Agreement or any of the instruments or agreements referred to therein or a waiver of any Default or Event of Default under the Credit Agreement, whether or not known to the Administrative Agent or any of the Lenders, or (ii) to prejudice any right or remedy which the Administrative Agent or any of the Lenders may now have or have in the future against any Person under or in connection with the Credit Agreement, any of the instruments or agreements referred to therein or any of the transactions contemplated thereby.

(c)         Each Loan Party party to the Security Agreement hereby (i) affirms its obligations under the Security Agreement, (ii) confirms its grant of a security interest in and the Lien on

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the Collateral of such Loan Party contained in the Security Agreement and (ii) acknowledges and agrees that the Liens granted by such Loan  Party to the Administrative Agent, for the benefit of the Secured Parties, in the Security Agreement are and remain valid and perfected Liens in the Collateral of such Loan Party securing the payment and performance of all of the Obligations.  Each Loan Party party to the Pledge Agreement hereby (i) affirms its obligations under the Pledge Agreement, (ii) confirms its grant of a security interest in and the Lien on the Collateral of such Loan Party contained in the Pledge Agreement and (iii) acknowledges and agrees that the Liens granted by such Loan  Party to the Administrative Agent, for the benefit of the Secured Parties, in the Pledge Agreement are and remain valid and perfected Liens in the Collateral of such Loan Party securing the payment and performance of all of the Obligations.

SECTION 8.   Modifications.  Neither this Amendment, nor any provision hereof, may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the parties hereto.

SECTION 9.   References.  The Loan Parties acknowledge and agree that this Amendment constitutes a Loan Document. Each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in each other Loan Document (and the other documents and instruments delivered pursuant to or in connection therewith) to the “Credit Agreement”, “thereunder”, “thereof” or words of like import, shall mean and be a reference to the Credit Agreement as modified hereby and as the Credit Agreement may in the future be amended, restated, supplemented or modified from time to time.

SECTION 10.   Counterparts.  This Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page by telecopier or electronic mail (in a .pdf format) shall be effective as delivery of a manually executed counterpart.

SECTION 11.   Successors and Assigns.  The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

SECTION 12.   Severability.  If any provision of this Amendment shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or enforceability without in any manner affecting the validity or enforceability of such provision in any other jurisdiction or the remaining provisions of this Amendment in any jurisdiction.

SECTION 13.   Governing LawTHIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS, BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).

SECTION 14.   Headings.  Section headings in this Amendment are included for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment.

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IN WITNESS WHEREOF, the Loan Parties, the Administrative Agent and each of the undersigned Lenders have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

BORROWERS:

 

STARWOOD PROPERTY MORTGAGE SUB-10, L.L.C.

 

By:       /s/ ANDREW J. SOSSEN                       

             Name: Andrew J. Sossen

             Title: Authorized Signatory

 

STARWOOD PROPERTY MORTGAGE SUB-10-A, L.L.C.

 

By:       /s/ ANDREW J. SOSSEN                       

             Name: Andrew J. Sossen

             Title: Authorized Signatory

 

 


 

 

GUARANTORS:

 

STARWOOD PROPERTY TRUST, INC.

 

By:       /s/ ANDREW J. SOSSEN                       

             Name: Andrew J. Sossen

             Title: Authorized Signatory

 

STARWOOD PROPERTY MORTGAGE SUB-10 HOLDCO, L.L.C.

 

By:       /s/ ANDREW J. SOSSEN                       

             Name: Andrew J. Sossen
             Title: Authorized Signatory

 

STARWOOD PROPERTY MORTGAGE SUB-10-A HOLDCO, L.L.C.

 

By:       /s/ ANDREW J. SOSSEN                       

Name: Andrew J. Sossen
Title: Authorized Signatory

 

SPT ACQUISITIONS HOLDCO, LLC

 

By:       /s/ ANDREW J. SOSSEN                       

             Name: Andrew J. Sossen

             Title:   Authorized Signatory

 

SPT ACQUISITIONS SUB-1, LLC

 

By:       /s/ ANDREW J. SOSSEN                       

             Name: Andrew J. Sossen

             Title:   Authorized Signatory

 

SPT ACQUISITIONS SUB-1-A, LLC

 

By:       /s/ ANDREW J. SOSSEN                       

             Name: Andrew J. Sossen

             Title:   Authorized Signatory

 

 


 

 

BANK OF AMERICA, N.A., as Administrative Agent

 

By:       /s/ MOLLIE S. CANUP                          

Name:  Mollie S. Canup
Title:  Vice President

 

 


 

 

BANK OF AMERICA, N.A., as a Lender

 

By:       /s/ DENNIS KWAN                          

Name:  Dennis Kwan
Title:  Vice President

 

 


 

 

CITIBANK, N.A., as a Lender

 

By:       /s/ DAVID BOUTON                   

Name: David Bouton
Title:  Managing Director

 

 


 

 

BARCLAYS BANK PLC, as a Lender

 

By:       /s/ CRAIG MALLOY                

Name:  Craig Malloy
Title:  Director

 

 


 

 

DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender

 

By:       /s/ J.T. JOHNSTON COE                  

Name: J.T. Johnston Coe
Title:  Managing Director

 

By:       /s/ DARRELL L. GUSTAFSON                 

Name: Darrell L. Gustafson
Title:  Managing Director

 

 


 

 

GOLDMAN SACHS BANK USA, as a Lender

 

By:       /s/ ANNIE CARR                

Name: Annie Carr
Title:  Authorized Signatory

 

 


 

 

JPMORGAN CHASE BANK, N.A., as a Lender

 

By:       /s/ MATTHEW GRIFFITH                 

Name:  Matthew Griffith
Title:  Executive Director
 

 


 

 

Credit suisse ag, cayman islands branch, as a Lender

 

By:       /s/ WILLIAM O’DALY                

Name: William O’Daly
Title:  Authorized Signatory

 

By:       /s/ JOAN PARK                             

Name: Joan Park
Title:  Authorized Signatory

 

 

 


 

 

ANNEX I TO FIRST AMENDMENT TO

SPT THIRD AMENDED AND RESTATED CREDIT AGREEMENT

 

 

SCHEDULE 2.01

Commitments and Applicable Percentages

 

 

 

PART A

Commitments and Applicable Percentages during the Flex Period

 

 

 

 

 

Lender

Commitment

Applicable Percentage

Bank of America, N.A.

$130,000,000.00

20.000000000%

Citibank, N.A.

$86,666,666.68

13.333333333%

Barclays Bank PLC

$86,666,666.67

13.333333333%

Deutsche Bank AG New York Branch

$86,666,666.67

13.333333333%

Goldman Sachs Bank USA

$86,666,666.66

13.333333333%

JPMorgan Chase Bank, N.A.

$86,666,666.66

13.333333333%

Credit Suisse AG, Cayman Islands Branch

$86,666,666.66

13.333333333%

Aggregate Commitments

$650,000,000

100%

 

 

PART B

Commitments and Applicable Percentages other than during the Flex Period

 

 

Lender

Commitment

Applicable Percentage

Bank of America, N.A.

$60,000,000

20.000000000%

Citibank, N.A.

$40,000,000

13.333333333%

Barclays Bank PLC

$40,000,000

13.333333333%

Deutsche Bank AG New York Branch

$40,000,000

13.333333333%

Goldman Sachs Bank USA

$40,000,000

13.333333333%

JPMorgan Chase Bank, N.A.

$40,000,000

13.333333333%

Credit Suisse AG, Cayman Islands Branch

$40,000,000

13.333333333%

Aggregate Commitments

$300,000,000

100%

 

 

 

 


 

CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED, AND RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.

CUSIP Number: 85569NAE3

 

THIRD AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of February 28, 2018

among

STARWOOD PROPERTY MORTGAGE SUB-10, L.L.C.

and

STARWOOD PROPERTY MORTGAGE SUB-10-A, L.L.C.,

as Borrowers,

and

STARWOOD PROPERTY TRUST, INC.

 

and

 

THE SUBSIDIARIES OF

STARWOOD PROPERTY TRUST, INC.

FROM TIME TO TIME PARTY HERETO,

as Guarantors,

 

and

BANK OF AMERICA, N.A.,

as Administrative Agent

and

The Other Lenders Party Hereto,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Sole Bookrunner and Sole Lead Arranger

and

 

CITIBANK, N.A.,

as Syndication Agent

 

and

 

BARCLAYS BANK PLC

and

DEUTSCHE BANK SECURITIES INC.,

as Documentation Agents

 

 

 


 

TABLE OF CONTENTS

 

 

 

 

Section

 

Page

 

 

 

ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS

1

1.01

Defined Terms

1

1.02

Other Interpretive Provisions

41

1.03

Accounting Terms

42

1.04

Rounding

43

1.05

Times of Day; Rates

43

ARTICLE II. THE COMMITMENTS AND REVOLVING CREDIT LOANS

43

2.01

Borrowings

43

2.02

Borrowings, Conversions and Continuations of Revolving Credit Loans

43

2.03

Prepayments and Repayments of Loans

45

2.04

Termination or Reduction of Commitments

47

2.05

Collections

47

2.06

Interest

49

2.07

Fees

49

2.08

Computation of Interest and Fees

50

2.09

Evidence of Debt

50

2.10

Payments Generally; Administrative Agent’s Clawback

51

2.11

Sharing of Payments by Lenders

52

2.12

Extensions of Maturity Date

53

2.13

Defaulting Lenders

57

2.14

Loan Asset Eligibility Criteria; Sales and other Removals of Loan Assets and Properties Included in the Borrowing Base Amount

59

2.15

Increase in Commitments.

62

2.16

Swing Line Loans

64

ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY

66

3.01

Taxes

66

3.02

Illegality

71

3.03

Inability to Determine Rates

72

3.04

Increased Costs; Reserves on Eurodollar Rate Loans

74

3.05

Compensation for Losses

75

3.06

Mitigation Obligations; Replacement of Lenders

76

3.07

Survival

76

ARTICLE IV. CONDITIONS PRECEDENT

76

4.01

Conditions of Effectiveness

76

4.02

Conditions to all Revolving Credit Loans

79

ARTICLE V. REPRESENTATIONS AND WARRANTIES

80

5.01

Existence, Qualification and Power

80

5.02

Authorization; No Contravention

80

i


 

 

 

 

Section

 

Page

 

 

 

5.03

Governmental Authorization; Other Consents

80

5.04

Binding Effect

81

5.05

Financial Statements; No Material Adverse Effect

81

5.06

Litigation

82

5.07

No Default

82

5.08

Ownership of Property; Liens

82

5.09

Environmental Compliance

82

5.10

Insurance

82

5.11

Taxes

82

5.12

ERISA Compliance

83

5.13

Loan Parties

84

5.14

Margin Regulations; Investment Company Act

84

5.15

Disclosure

84

5.16

Compliance with Laws

85

5.17

Taxpayer Identification Number

85

5.18

Intellectual Property; Licenses, Etc.

85

5.19

Solvency

85

5.20

Casualty, Etc.

85

5.21

OFAC

85

5.22

Collateral Documents

86

5.23

Anti-Money Laundering; Anti-Corruption Laws; Sanctions

86

5.24

REIT Status; Stock Exchange Listing

86

5.25

Eligible Assets

86

5.26

EEA Financial Institutions

87

ARTICLE VI. AFFIRMATIVE COVENANTS

87

6.01

Financial Statements, Borrowing Base Certificates and Related Information

87

6.02

Certificates; Other Information

88

6.03

Notices

90

6.04

Payment of Obligations

90

6.05

Preservation of Existence, Etc.

91

6.06

[Intentionally Omitted]

91

6.07

Maintenance of Insurance

91

6.08

Compliance with Laws

91

6.09

Books and Records

91

6.10

Inspection Rights

91

6.11

Use of Proceeds

92

6.12

Additional Loan Parties; Additional Collateral

92

6.13

Anti-Corruption Laws

94

6.14

Compliance with Environmental Laws

94

6.15

Further Assurances

94

6.16

Maintenance of REIT Status; New York Stock Exchange Listing

94

6.17

Information Regarding Collateral

95

ARTICLE VII. NEGATIVE COVENANTS

95

7.01

Liens

95

7.02

Investments

96

ii


 

 

 

 

Section

 

Page

 

 

 

7.03

Indebtedness

96

7.04

Fundamental Changes

97

7.05

Dispositions

98

7.06

Restricted Payments

99

7.07

Change in Nature of Business

100

7.08

Transactions with Affiliates

100

7.09

Burdensome Agreements

100

7.10

Use of Proceeds

100

7.11

Amendments, Waivers and Terminations of Certain Agreements

100

7.12

Financial Covenants

101

7.13

Accounting or Tax Changes

101

7.14

Permitted Activities of Intermediate Parents

101

7.15

Sanctions

102

7.16

Anti-Corruption Laws

102

ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES

102

8.01

Events of Default

102

8.02

Remedies Upon Event of Default

105

8.03

Application of Funds

105

ARTICLE IX. ADMINISTRATIVE AGENT

106

9.01

Appointment and Authority

106

9.02

Rights as a Lender

106

9.03

Exculpatory Provisions

106

9.04

Reliance by Administrative Agent

107

9.05

Delegation of Duties

107

9.06

Resignation of Administrative Agent

108

9.07

Non-Reliance on Administrative Agent and Other Lenders

109

9.08

No Other Duties, Etc.

109

9.09

Administrative Agent May File Proofs of Claim; Credit Bidding

109

9.10

Collateral and Guaranty Matters

111

9.11

ERISA

112

ARTICLE X. CONTINUING GUARANTY

113

10.01

Guaranty

113

10.02

Rights of Lenders

114

10.03

Certain Waivers

115

10.04

Obligations Independent

115

10.05

Subrogation

115

10.06

Termination; Reinstatement

115

10.07

Subordination

116

10.08

Stay of Acceleration

116

10.09

Condition of the Borrowers

116

10.10

Limitations on Enforcement

116

10.11

Contribution

116

iii


 

 

 

 

Section

 

Page

 

 

 

ARTICLE XI. MISCELLANEOUS

118

11.01

Amendments, Etc.

118

11.02

Notices; Effectiveness; Electronic Communication

119

11.03

No Waiver; Cumulative Remedies; Enforcement

121

11.04

Expenses; Indemnity; Damage Waiver

122

11.05

Payments Set Aside

124

11.06

Successors and Assigns

124

11.07

Treatment of Certain Information; Confidentiality

130

11.08

Right of Setoff

131

11.09

Interest Rate Limitation

131

11.10

Counterparts; Integration; Effectiveness

132

11.11

Survival of Representations and Warranties

132

11.12

Severability

132

11.13

Replacement of Lenders

132

11.14

Governing Law; Jurisdiction; Etc.

133

11.15

Waiver of Jury Trial

134

11.16

No Advisory or Fiduciary Responsibility

135

11.17

Electronic Execution of Assignments and Certain Other Documents

135

11.18

USA PATRIOT Act

136

11.19

Joint and Several Liability; Recourse Nature of Obligations

136

11.20

ENTIRE AGREEMENT

137

11.21

Amendment and Restatement; Continuing Obligations; Affirmation of Security Agreement and Pledge Agreement

137

11.22

Pledges of Additional Collateral Assets

138

11.23

Removal of Eligible Assets at Request of Loan Parties; Release of Collateral or Property Asset Subsidiary Guarantors at Request of Loan Parties

139

11.24

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

140

 

iv


 

 

 

 

 

 

SCHEDULES

 

2.01

Commitments and Applicable Percentages

 

5.12(d)

Pension Plans

 

5.13

Loan Parties

 

7.08

Transactions with Affiliates

 

11.02

Administrative Agent’s Office; Certain Addresses for Notices

 

 

 

EXHIBITS

 

Form of

 

 

A-1

Committed Loan Notice

 

A-2

Swing Line Loan Notice

 

B

Note

 

C

Compliance Certificate

 

D-1

Assignment and Assumption

 

D-2

Administrative Questionnaire

 

E

[intentionally omitted]

 

F

[intentionally omitted]

 

G

Solvency Certificate

 

H

U.S. Tax Compliance Certificates

 

I

Certification of Market Value of Near Cash Securities

 

J

Borrowing Base Certificate

 

K

Eligible Loan Asset Credit Memorandum

 

L

Pledged Additional Collateral Assets Report

 

M

Eligible Loan Assets Report

 

 

 

v


 

 

THIRD AMENDED AND RESTATED CREDIT AGREEMENT

This THIRD AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of February 28, 2018 among STARWOOD PROPERTY MORTGAGE SUB-10, L.L.C., a Delaware limited liability company (“Starwood Property Mortgage Sub-10”), STARWOOD PROPERTY MORTGAGE SUB-10-A, L.L.C., a Delaware limited liability company (“Starwood Property Mortgage Sub-10-A”; and together with Starwood Property Mortgage Sub-10, each a “Borrower” and collectively, the “Borrowers”), STARWOOD PROPERTY TRUST, INC., a Maryland corporation (the “Parent”), CERTAIN SUBSIDIARIES OF THE PARENT, as Guarantors, each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent.

PRELIMINARY STATEMENTS:

WHEREAS, the Borrowers, the Parent and certain Subsidiaries of the Parent, as guarantors, the lenders party thereto and the Administrative Agent previously entered into that certain Second Amended and Restated Credit Agreement, dated as of July 28, 2015 (as amended or otherwise modified prior to the date hereof, the “Existing Credit Agreement”).

WHEREAS, the parties to the Existing Credit Agreement propose to amend and restate the Existing Credit Agreement in its entirety, but not as a novation, on the terms and subject to the conditions hereinafter set forth.

In consideration of the mutual covenants and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree that the Existing Credit Agreement shall be, and hereby is, amended and restated in its entirety as follows, effective on and as of the Restatement Effective Date (as defined below):

ARTICLE I.  DEFINITIONS AND ACCOUNTING TERMS

1.01    Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:

Accepted Offer to Purchase” means, with respect to any Eligible Loan Asset of a Borrower, a written, bona fide offer to purchase such Eligible Loan Asset (which shall include, in the case of any Eligible Loan Asset that includes both a commercial mortgage loan and a related mezzanine loan, a written, bona fide offer to purchase the entire commercial mortgage loan or the entire related mezzanine loan or both) received by such Borrower from a Person not affiliated with the Parent, which written, bona fide offer has been accepted by such Borrower.

Additional Collateral Asset”  means, on any date, (i) a loan (or participation therein) (x) made to a direct or indirect owner of one or more entities which own a single commercial Property or group of related Properties as to which the Administrative Agent has received an Approved Appraisal and (y) that is secured by one or more equity pledges of the underlying borrower’s direct or indirect ownership interests in the Property-owning entities, and subordinated (whether structurally, contractually or legally) to one or more whole mortgage loans, mezzanine loans, notes or securities, in each case, secured by first or second mortgage

 

 


 

 

liens on the applicable Property or Properties, or (ii) a loan or promissory note (or a participation interest in such loan or promissory note) that (x) is secured by a first mortgage on a single commercial Property or group of related commercial Properties as to which the Administrative Agent has received an Approved Appraisal and (y) subordinated or junior (whether in lien priority, right of payment or payment waterfall, and whether structurally, contractually or legally) to one or more other loans or notes secured by the same first mortgage on the same Property or group of Properties, in the case of each of clauses (i) and (ii), that has been identified in writing by the Administrative Agent as acceptable (in the exercise of its reasonable judgment).  For the avoidance of doubt, a Non-Qualifying Additional Collateral Asset shall not qualify as an Additional Collateral Asset.

Adjusted Appraised Value” means, at any time, (a) with respect to any Underlying Real Property Asset that directly secures mortgage Indebtedness owing to a Loan Party at such time, an amount equal to (i) the appraised value of such Underlying Real Property Asset at such time, less the aggregate outstanding amount at such time of any Indebtedness owing to any Person (other than a Loan Party) that is secured directly by a Lien on such Underlying Real Property Asset which is senior in priority to the Lien of such Loan Party on such Underlying Real Property Asset (such Indebtedness owing to such other Person being referred to herein as “Priority Secured Indebtedness”), multiplied by (ii) a fraction, (x) the numerator of which is the outstanding amount of the mortgage Indebtedness owing to such Loan Party at such time secured directly by a Lien on such Underlying Real Property Asset and (y) the denominator of which is the aggregate outstanding amount of all mortgage Indebtedness (other than Priority Secured Indebtedness) owing to all Persons (including such Loan Party) secured directly by Liens on such Underlying Real Property Asset and (b) with respect to any Underlying Real Property Asset held by a Person whose Equity Interests secure a commercial real estate mezzanine loan owing to a Loan Party from such Person, an amount equal to the greater of (i) (x) the appraised value of such Underlying Real Property Asset at such time, less the aggregate outstanding amount at such time of any mortgage Indebtedness secured directly by a Lien on such Underlying Real Property Asset, multiplied by (y) a fraction, (A) the numerator of which is the outstanding principal amount of such commercial real estate mezzanine loan owing to such Loan Party at such time and (B) the denominator of which is the aggregate outstanding amount of all Indebtedness owing to all Persons (including such Loan Party) secured by Liens on such Equity Interests and (ii) $0; provided, that if at any time such Loan Party is not the only lender of a commercial real estate mezzanine loan secured by such Equity Interests, the Adjusted Appraised Value of such Underlying Real Property Asset shall not exceed the outstanding principal amount of the commercial real estate mezzanine loan owing to such Loan Party at such time.

Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

Administrative Agents Office” means the Administrative Agents address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrowers and the Lenders.

Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit D-2 or any other form approved by the Administrative Agent.

2


 

 

Advance Rate” means:

(a)  with respect to any Eligible Warehouse Asset ***; and

(b)  with respect to any Eligible Non-Warehouse Asset ***.

Notwithstanding anything to the contrary contained herein:

(i)         in the event a Borrower has received an Accepted Offer to Purchase with respect to any Eligible Warehouse Asset (or, in the case of any Eligible Warehouse Asset that includes both a commercial mortgage loan and a related mezzanine loan, such commercial mortgage loan or mezzanine loan) ***; and

(ii)       in the event a Borrower has received an Accepted Offer to Purchase with respect to any Eligible Non-Warehouse Asset (or, in the case of any Eligible Non-Warehouse Asset that includes both a commercial mortgage loan and a related mezzanine loan, such commercial mortgage loan or mezzanine loan) ***.

Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

Agent Parties” has the meaning specified in Section 11.02(c).

Aggregate Commitments” means, at any time, the aggregate amount of the Lenders’ Commitments at such time.  On the Restatement Effective Date, the Aggregate Commitments are $300,000,000.

Aggregate Deficit Amount” has the meaning specified in Section 10.11.

Aggregate Excess Amount” has the meaning specified in Section 10.11.

Agreement” means this Credit Agreement.

Anti-Money Laundering Laws” means any and all laws, judgments, orders, executive orders, decrees, ordinances, rules, regulations, statutes, case law or treaties applicable to a Loan Party, its Subsidiaries or Affiliates, related to terrorism financing or money laundering including any applicable provision of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001 (Title III of Pub. L. 107-56) and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).

Applicable Fee Rate” means, with respect to any calendar quarter (or portion thereof, as applicable), a per annum fee rate of 0.25%.

Applicable Percentage” means, with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such

3


 

 

Lender’s Commitment at such time, subject to adjustment as provided in Section 2.13.  If the commitment of each Lender to make Revolving Credit Loans has been terminated pursuant to Section 8.02 or otherwise, or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender as of the date of such termination or expiration, as applicable, giving effect to any subsequent assignments.  The Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.  The Applicable Percentage of each Lender as of the Restatement Effective Date is set forth opposite the name of such Lender on Schedule 2.01, or with respect to any Lender that becomes a party to this Agreement after the Restatement Effective Date, as set forth in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, in each case as such amount may be adjusted from time to time in accordance with this Agreement.

Applicable Rate” means (a) 1.25% for Base Rate Loans and (b) 2.25% for Eurodollar Rate Loans.

Appraised Value” means, with respect to any Property (including any Underlying Real Property Asset), the appraised value of such Property as reflected in an Approved Appraisal (or a draft appraisal that, if issued, would constitute an Approved Appraisal) that has been delivered to the Administrative Agent.

Approved Appraisal” means, on any date and with respect to any Property, a FIRREA-compliant appraisal of such Property.  For purposes of this definition, the appraisal of any Property located in Europe shall be deemed to be FIRREA-compliant even if not conducted in accordance with U.S. FIRREA so long as (i) the appraiser of such Property is sufficiently independent to meet all applicable requirements under U.S. FIRREA with respect to appraiser independence and (ii) the Administrative Agent receives an opinion of counsel to the applicable Loan Party, in form and substance satisfactory to the Administrative Agent, stating that the valuation standards used in conducting such appraisal conform to the U.S. FIRREA standards.

Approved Extension” has the meaning specified in Section 2.12(b)(iii)(A).

Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Approving Lender” has the meaning specified in Section 2.12(b)(iii)(A).

Arranger” means Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), in its capacity as sole bookrunner and sole lead arranger.

Assignee Group” means two (2) or more Eligible Assignees that are Affiliates of one another or two (2) or more Approved Funds managed by the same investment advisor.

4


 

 

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit D-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

Audited Financial Statements” means the audited consolidated balance sheet of the Parent and its consolidated Subsidiaries for the fiscal year ended December 31, 2016, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Parent and its consolidated Subsidiaries, including the notes thereto.

Availability Period” means the period from and including the Original Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.04, and (c) the date of termination of the commitment of each Lender to make Revolving Credit Loans pursuant to Section 8.02.

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, with respect to any EEA Member Country, implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bank of America” means Bank of America, N.A. and its successors.

Base Rate”  means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar Rate plus 1.00%.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

Base Rate Loan” means that portion of a Loan or a Borrowing that bears interest based on the Base Rate.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

Borrower” and “Borrowers” have the meanings specified in the introductory paragraph hereto.

Borrower Materials” has the meaning specified in Section 6.02.

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Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing, as the context may require.

Borrowing Base Amount” means, at any time, an amount equal to (a) the aggregate Borrowing Base Contributions for all Eligible Assets at such time, minus (b) the amount, if any, by which the aggregate Non-Warehouse Eligible Amounts for all Eligible Non-Warehouse Assets at such time exceeds $100,000,000, minus (c) the amount, if any, of any Borrowing Base Shortfall at such time.

Borrowing Base Certificate” means a certificate executed by a Responsible Officer of the Parent, substantially in the form of Exhibit J (or another form acceptable to the Administrative Agent) setting forth the calculation of the Borrowing Base Amount.  All calculations of the Borrowing Base Amount in connection with the preparation of any Borrowing Base Certificate shall originally be made by the Parent and certified to the Administrative Agent; provided, that the Administrative Agent shall have the right to review and make reasonable adjustments to any such calculation to the extent the Administrative Agent reasonably determines that such calculation contains errors or is not otherwise in accordance with this Agreement and notifies the Parent of such adjustment.

Borrowing Base Contribution”  means, (i) for each Eligible Loan Asset at any time, an amount equal to (A) the Outstanding Value of such Eligible Loan Asset at such time, multiplied by (B) the applicable Advance Rate for such Eligible Loan Asset at such time and (ii) for each Eligible Property Asset at any time, an amount equal to the Outstanding Value of such Eligible Property Asset at such time.

Borrowing Base Shortfall” means, at any time, the amount (if any) by which:

(a)        the sum of (i) the aggregate outstanding Borrowing Base Contributions of all Eligible Loan Assets included in the calculation of clause (a) of Borrowing Base Amount at such time and for which an Approved Appraisal of the Properties securing any such Eligible Loan Asset has not been received by the Administrative Agent on or prior to such time and (ii) the aggregate Outstanding Value of all Eligible Property Assets included in the computation of Borrowing Base Amount at such time and for which an Approved Appraisal has not been received by the Administrative Agent on or prior to such time, exceeds

(b)        an amount equal to eighty five percent (85%) of the then aggregate Adjusted Appraised Values of each Property that relates to a Pledged Additional Collateral Asset and is described in either clause (i) or clause (ii) of the definition of Additional Collateral Asset.

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day.

Capital Lease Obligations” means, with respect to any Person, the amount of all obligations of such Person to pay rent or other amounts under a lease of property to the extent

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and in the amount that such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person.

Cash Equivalents” means:

(a)        United States dollars (including such dollars as are held as overnight bank deposits and demand deposits with banks);

(b)        marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency or instrumentality thereof and backed by the full faith and credit of the United States of America, in each case maturing within one year from the date of acquisition thereof;

(c)        marketable direct obligations issued by any State of the United States of America or any political subdivision of any such State or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having a rating of at least A-2 from S&P or at least P-2 of Moody’s;

(d)        commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A‑2 from S&P or at least P‑2 from Moody’s;

(e)        time deposits, demand deposits, certificates of deposit, Eurodollar time deposits, time deposit accounts, term deposit accounts or bankers’ acceptances maturing within one year from the date of acquisition thereof or overnight bank deposits, in each case, issued by any bank organized under the laws of the United States of America or any State thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $500.0 million; and

(f)        investments in money market funds which invest substantially all their assets in securities of the types described in clauses (a) through (e) above.

Cash Liquidity” means, at any time with respect to the Parent and its Subsidiaries, on a consolidated basis, the amount of Unrestricted Cash held by such Persons at such time.

Change in Law” means the occurrence, after the date of this Agreement (or, with respect to any Lender which becomes a party hereto after the date of this Agreement, the date such Lender becomes a party hereto), of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to

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Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Change of Control” means an event or series of events by which:

(a)        prior to an internalization of management by the Parent, neither the Manager nor any Affiliate of the Manager is the manager of the Parent;

(b)        after such time as the Parent is internally managed, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of a percentage of the total voting power of all classes of Equity Interests of the Parent entitled to vote generally in the election of directors, of 20% or more;

(c)        prior to an internalization of management by the Parent, a change in Control of the Manager and/or Starwood Capital Group Global, L.P. from the Person or Persons who directly or indirectly Controlled such entities on the Original Closing Date;

(d)        the Parent shall cease to own and control, directly or indirectly, 100% of the outstanding Equity Interests of each Intermediate Parent; or

(e)        (i) Starwood Property Mortgage Sub-10 HoldCo shall cease to own and control, directly, 100% of the outstanding Equity Interests of Starwood Property Mortgage Sub-10 or (ii) Starwood Property Mortgage Sub-10-A HoldCo shall cease to own and control, directly, 100% of the outstanding Equity Interests of Starwood Property Mortgage Sub-10-A.

Notwithstanding the foregoing, the Administrative Agent and the Majority Lenders shall not be deemed to approve or to have approved any internalization of management by the Parent as a result of this definition or any other provision herein.

CMBS” means mortgage pass-through certificates or other securities issued pursuant to a securitization of commercial real estate loans.

Code” means the Internal Revenue Code of 1986.

Collateral” means, collectively, (i) all of each Borrower’s and each Loan Asset Subsidiary Guarantor’s personal property (including, without limitation, Eligible Loan Assets and Pledged Additional Collateral Assets, and all payments related thereto and voting rights in respect thereof, the Collection Accounts and all other bank accounts, general intangibles, financial assets, investment property, hedge agreements, documents, instruments and cash) and proceeds thereof now or hereafter acquired or arising by any Borrower or Loan Asset Subsidiary Guarantor in or upon which a Lien now or hereafter exists in favor of the Administrative Agent for the benefit of the Secured Parties to secure payment or performance of any or all of the Obligations, (ii) all Equity Interests of each Borrower, each Subsidiary of a Borrower and each Property Asset Subsidiary Guarantor and (iii) all proceeds and products of, and income from, the foregoing.

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Collateral Documents” means, collectively, the Security Agreement, the Pledge Agreement, any Control Agreement and each of the other agreements, instruments or documents that creates or perfects or purports to create or perfect a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.

Collection Accounts” has the meaning specified in Section 2.05(a).

Commitment” means, as to each Lender, its obligation to (a) make Revolving Credit Loans to the Borrowers pursuant to Section 2.01 and (b) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01, or with respect to any Lender that becomes a party to this Agreement after the Restatement Effective Date, as set forth in the Assignment and Assumption or New Lender Joinder Agreement pursuant to which such Lender becomes a party hereto, as applicable, in each case as such amount may be adjusted from time to time in accordance with this Agreement.

Committed Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a conversion of Revolving Credit Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, in each case pursuant to Section 2.02(a), and which, if in writing, shall be substantially in the form of Exhibit A-1 or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of each Borrower.

Compliance Certificate” means a certificate substantially in the form of Exhibit C.

Connection Income Taxes”  means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Contingent Commitment Termination Notice” has the meaning specified in Section 2.04.

Contingent Liabilities” means, with respect to any Person as of any date of determination, all of the following as of such date:  (a) liabilities and obligations (including any Guarantees) of such Person in respect of “off-balance sheet arrangements” (as defined in the Off-Balance Sheet Rules defined below) and (b) obligations, including Guarantees, whether or not required to be disclosed in the footnotes to such Person’s financial statements, guaranteeing in whole or in part any Non-Recourse Indebtedness, lease, dividend or other obligation, excluding, however, (i) contractual indemnities (including any indemnity or price-adjustment provision relating to the purchase or sale of securities or other assets), and (ii) guarantees of non-monetary obligations which have not yet been called on or quantified, of such Person or any other Person.  The amount of any Contingent Liabilities described in the preceding clause (b) shall be deemed to be (i) with respect to a guarantee of interest or interest and principal, or operating income guarantee, the sum of all payments required to be made thereunder (which, in the case of an operating income guarantee, shall be deemed to be equal to the debt service for the note secured thereby), through (x) in the case of an interest or interest and principal guarantee, the stated date

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of maturity of the obligation (and commencing on the date interest could first be payable thereunder), or (y) in the case of an operating income guarantee, the date through which such guarantee will remain in effect, and (ii) with respect to all guarantees not covered by the preceding clause (i), an amount equal to the stated or determinable amount of the primary obligation in respect of which such guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as recorded on the balance sheet and in the footnotes to the most recent financial statements of such Person.  “Off-Balance Sheet Rules” means the Disclosure in Management’s Discussion and Analysis About Off-Balance Sheet Arrangements and Aggregate Contractual Obligations, Securities Act Release Nos. 33-8182; 34-47264; FR-67 International Series Release No. 1266 File No. S7-42-02, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified of 17 CFR Parts 228, 229 and 249).

Contractual Obligation” means, as to any Person, any provision of any securities issued by such Person or of any indenture, mortgage, deed of trust, deed to secure debt, contract, undertaking, agreement, instrument or other document to which such Person is a party or by which it or any of its property or assets are bound or are subject.

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.

Control Agreement” means a deposit account control agreement or securities account control agreement, as applicable, executed by a Loan Party, the Administrative Agent and the applicable depository bank or securities intermediary granting the Administrative Agent control over the applicable deposit account or securities account, which agreement shall be in form and substance satisfactory to the Administrative Agent.

Convertible Debt Securities” means debt securities, the terms of which provide for conversion into Equity Interests, cash by reference to such Equity Interests or a combination thereof.

Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Declining Lender” has the meaning specified in Section 2.12(b)(ii).

Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

Default Rate” means an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans plus (iii) 2% per annum.

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Defaulting Lender” means, subject to Section 2.13(b), any Lender that (a) has failed to (i) fund all or any portion of its Revolving Credit Loans within two (2) Business Days of the date such Revolving Credit Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Swing Line Loans) within two (2) Business Days of the date when due, (b) has notified the Borrowers, the Administrative Agent or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Revolving Credit Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrowers, to confirm in writing to the Administrative Agent and the Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrowers), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.13(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrowers, the Swing Line Lender and each other Lender promptly following such determination.

Designated Jurisdiction” means any country, region or territory to the extent that such country, region or territory, or the government of any such country, region or territory, is the subject of any Sanction.

Direct Owner” has the meaning specified in the definition of “Eligible Property Asset.”

Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale,

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assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

Dollar” and “$” mean lawful money of the United States.

DSC Amount”  means, as of any date of determination and with respect to any Eligible Property Asset, an amount determined for the period of four full fiscal quarters of the Parent ended on or most recently ended prior to such date, equal to the maximum principal amount of unsecured indebtedness that can be supported by the aggregate Net Operating Income from such Eligible Property Asset for such period, assuming (i) such indebtedness is fully amortizing with equal monthly payments of principal and interest over a period of 30 years with an interest rate which is the greater of (x) the 10 year treasury rate + 2.50% and (y) 5.75% per annum and (ii) a minimum debt service coverage of 1.25 to 1.0.

EBITDA” with respect to the Parent and its Subsidiaries on a consolidated basis for any Test Period, an amount equal to the sum of (a) Net Income (or loss) (prior to any impact from minority interests or joint venture net income and before deduction of any dividends on preferred stock), plus the following (but only to the extent actually included in determination of such Net Income (or loss)): (i) depreciation and amortization expense, (ii) Interest Expense, (iii) income tax expense, and (iv) extraordinary or non-recurring gains and losses, plus (b) such Person’s proportionate share of Net Income of the joint venture investments and unconsolidated Affiliates of such Person, all with respect to such Test Period, plus (c) amounts deducted in accordance with GAAP in respect of other non-cash expenses in determining such Net Income for such Person.

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country”:  any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority”:  any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Eligible Asset” means an Eligible Loan Asset or an Eligible Property Asset.

Eligible Assets Interest Coverage Ratio” means, for any Test Period, the ratio of (i) the sum of (A) the aggregate amount of cash interest income actually received by the Borrowers during such Test Period in respect of all Eligible Loan Assets and (B) Net Operating Income for all Eligible Property Assets for such Test Period to (ii) the amount of total interest expense incurred by the Borrowers, including capitalized or accruing interest, with respect to the Loans and other Obligations during such Test Period.

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Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06(b)(ii), (iii) and (v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).

Eligible Ground Lease” means a ground lease as to which no default or event of default has occurred or with the passage of time or the giving of notice would occur and containing the following terms and conditions: (a) a remaining term (inclusive of any unexercised extension options) of thirty (30) years or more from the date the Property is included as an Eligible Property Asset; (b) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor; (c) the obligation of the lessor to give the holder of any mortgage lien on such leased property written notice of any defaults on the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunity to cure or complete foreclosure, and fails to do so; (d) reasonable transferability of the lessee's interest under such lease, including the ability to sublease; and (e) such other rights customarily required by mortgagees making a loan secured by the interest of the holder of the leasehold estate demised pursuant to a ground lease; provided that Administrative Agent may in its sole discretion waive any of the requirements in the preceding clauses (a), (b), (c), (d) or (e) with respect to any proposed Eligible Ground Lease.

Eligible Loan Asset” means, at any time, a Loan Asset that at such time satisfies each of the Loan Asset Eligibility Criteria.

Eligible Loan Asset Principal Payment” means any payment on account of principal on any Eligible Loan Asset (whether by virtue of an amortization payment, a prepayment, a release of collateral, an enforcement or otherwise).

Eligible Loan Assets Report” means, for any fiscal quarter of the Parent, a written report, certified by a Responsible Officer of the Parent, of the Eligible Loan Assets included in the calculation of the Borrowing Base Amount during such fiscal quarter, which report shall be substantially in the form attached hereto as Exhibit M.

Eligible Non-Warehouse Asset” means an Eligible Loan Asset that is a Non-Warehouse Asset.

Eligible Property Asset” means a Property that at all times satisfies each of the following criteria (the “Eligible Property Asset Criteria”):

(a)        The Property is an office, retail, industrial or apartment/multifamily property.

(b)        The Property is located in the continental United States of America.

(c)        The Property is Wholly-Owned in fee simple directly by, or is ground leased pursuant to an Eligible Ground Lease directly to, a Property Asset Subsidiary Guarantor.

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(d)        The Property Asset Subsidiary Guarantor that directly owns the Property (the “Direct Owner”) is a Wholly-Owned Subsidiary of SPT Acquisitions Holdco and is organized in a state within the United States.

(e)        The Equity Interests of the Direct Owner of such Property constitute Collateral, and are not subject to any Liens, negative pledges or other encumbrances (including any restriction contained in the Organization Documents of such Direct Owner that limits the ability to create a Lien thereon as security for Indebtedness), other than Permitted Equity Encumbrances.

(f)        The Property is not subject to any ground lease (other than an Eligible Ground Lease), lien, negative pledge and/or encumbrance or any restriction on the ability of any Loan Party or any Subsidiary thereof to transfer or encumber such Property or income therefrom or proceeds thereof other than Permitted Property Encumbrances.

(g)        The Property does not have any title, survey, environmental, structural, architectural or other defects that would interfere with the use of such Property for its intended purpose in any material respect and shall not be subject to any condemnation or similar proceeding affecting a material portion of the Property.

(h)        The Direct Owner of such Property has received a final certificate of occupancy or equivalent certification allowing legal occupancy of the Property for its intended purpose.

(i)         The Direct Owner of such Property is not subject to any proceedings under any Debtor Relief Law, and is not a borrower or guarantor of, or otherwise obligated in respect of, any Indebtedness other than (i) Indebtedness arising under the Loan Documents and (ii) unsecured trade payables incurred in the ordinary course of business relating to the ownership and operation of such Property, so long as such unsecured trade payables are paid within sixty (60) days of the date incurred.

(j)         The Occupancy Rate for such Property is at least 85%.

(k)        The Administrative Agent has received an Approved Appraisal for such Property within forty five (45) days following the date it is first included in the computation of Borrowing Base Amount.

(l)         The Borrowers shall have provided the Administrative Agent with a written notice that it is including such Property in calculation of the Borrowing Base Amount at least two (2) Business Days (or such shorter period of time as agreed to by the Administrative Agent in writing) prior to its inclusion.

(m)       The Administrative Agent shall have received a Borrowing Base Certificate presenting the Borrowers’ computation of the Borrowing Base Amount immediately after giving effect to the inclusion of such Property in the calculation of the Borrowing Base Amount.

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Eligible Property Asset Criteria” has the meaning specified in the definition of Eligible Property Asset.

Eligible Warehouse Asset” means an Eligible Loan Asset that is a Warehouse Asset.

Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetlands, flora and fauna.

Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, agreements or governmental restrictions relating to pollution or the protection of the Environment or of human health (to the extent related to exposure to Hazardous Materials), including those relating to the manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous Materials.

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of a Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

Equity Interests” means, with respect to any Person, (a) any share, interest, participation and other equivalent (however denominated) of capital stock of (or other ownership, equity or profit interests in) such Person, (b) any warrant, option or other right for the purchase or other acquisition from such Person of any of the foregoing, (c) any security convertible into or exchangeable for any of the foregoing, and (d) any other ownership or profit interest in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date.

ERISA” means the Employee Retirement Income Security Act of 1974 and the rules and regulations promulgated thereunder.

ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with a Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of a Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal

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under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Borrower or any ERISA Affiliate; or (i) a failure by a Borrower or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by a Borrower or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.

Eurodollar Rate” means:

(a)        for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London interbank offered rate (“LIBOR”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;

(b)        for any interest calculation (i) with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two (2) Business Days prior to such date for Dollar deposits with a term of one (1) month commencing that day or (ii) with respect to a Eurodollar Rate Loan specified in the applicable Committed Loan Notice as bearing interest in accordance with this clause (b)(ii) (a “LIBOR Daily Floating Rate Loan”), the LIBOR Daily Floating Rate; and

(c)        if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement;

provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

Eurodollar Rate Loan” means a Revolving Credit Loan that bears interest at a rate based on clause (a) or clause (b)(ii) of the definition of “Eurodollar Rate.”

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

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Event of Default” has the meaning specified in Section 8.01.

Excluded Taxes”  means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated, including gross receipts Taxes imposed in lieu of net income Taxes), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii), (a)(iii) or (c), amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.

Existing Credit Agreement” has the meaning specified in the first recital hereto.

FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code.

Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.  Notwithstanding anything to the contrary contained herein, at any time that the Federal Funds Rate determined in accordance with the foregoing is less than zero, such rate shall be deemed zero for purposes of this Agreement.

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FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), as amended.

First Extended Maturity Date” has the meaning specified in Section 2.12(a)(i).

First Extension Request” has the meaning specified in Section 2.12(a)(i).

Fitch” means Fitch Ratings and its successors.

Fixed Charge Coverage Ratio” means, with respect to the Parent and its Subsidiaries on a consolidated basis for any Test Period the ratio of (i) EBITDA for such Test Period to (ii) Fixed Charges for such Test Period.

Fixed Charges” means, with respect to the Parent and its Subsidiaries on a consolidated basis for any Test Period, Interest Expense with respect to such Test Period (excluding amortization of debt discount, debt premium and deferred issuance costs).

Foreign Lender” means any Lender that is resident or organized under the Laws of a jurisdiction other than that in which a Borrower is resident for tax purposes.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

FRB” means the Board of Governors of the Federal Reserve System of the United States.

Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.

Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

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Grantor” means the applicable Loan Party that is party to a Collateral Document.

Guarantee” means, with respect to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of the obligations for which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends, Contractual Obligation, Swap Contract or other obligations or indebtedness (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation, or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, that the term “Guarantee” shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee of any guaranteeing person shall be deemed to be the maximum stated amount of the primary obligation relating to such Guarantee (or, if less, the maximum stated liability set forth in the instrument embodying such Guarantee); provided, that in the absence of any such stated amount or stated liability, the amount of such Guarantee shall be such guaranteeing person’s maximum anticipated liability in respect thereof as reasonably determined by such Person in good faith.  The term “Guarantee” as a verb has a corresponding meaning.

Guarantors” means, collectively, at any time (i) the Parent, (ii) the Intermediate Parents, (iii) each Subsidiary of each Borrower, (iv) each Direct Owner of an Eligible Property Asset and (v) each other Person that becomes a guarantor of the Obligations pursuant to Section 6.12.

Guaranty” means the Guaranty made by the Guarantors under Article X in favor of the Secured Parties.

Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances or wastes, including petroleum or petroleum distillates, natural gas, natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or compounds of any nature in any form regulated pursuant to any Environmental Law.

IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein.

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Impacted Loan” has the meaning specified in Section 3.03.

Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a)        obligations in respect of money borrowed (including principal, interest, assumption fees, prepayment fees, yield maintenance charges, penalties, exit fees, contingent interest and other monetary obligations whether choate or inchoate and whether by loan, the issuance and sale of debt securities or the sale of property or assets to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets, or otherwise);

(b)        obligations, whether or not for money borrowed (i) represented by notes payable, letters of credit or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments, (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or services rendered, or (iv) in connection with the issuance of preferred equity or trust preferred securities;

(c)        Capital Lease Obligations;

(d)        reimbursement obligations under any letters of credit or acceptances (whether or not the same have been presented for payment);

(e)        Off–Balance Sheet Obligations;

(f)        obligations to purchase, redeem, retire, defease or otherwise make any payment in respect of any mandatory redeemable stock issued by such Person or any other Person (inclusive of forward equity contracts), valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends;

(g)        as applicable, all obligations of such Person (but not the obligation of others) in respect of any keep well arrangements, credit enhancements, contingent or future funding obligations, purchase obligations, repurchase obligations, sale/buy–back agreements, takeout commitments or forward equity commitments, in each case evidenced by a binding agreement (excluding any such obligation to the extent the obligation can be satisfied by the issuance of Equity Interests (other than mandatory redeemable stock));

(h)        net obligations under any Swap Contract not entered into as a hedge against existing indebtedness, in an amount equal to the Swap Termination Value thereof;

(i)         all Non–Recourse Indebtedness, recourse indebtedness and all indebtedness of other Persons which such Person has guaranteed or is otherwise recourse to such Person;

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(j)         all indebtedness of another Person secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien (other than Liens permitted hereunder) on property or assets owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness or other payment obligation; provided, that if such Person has not assumed or become liable for the payment of such indebtedness, then for the purposes of this definition the amount of such indebtedness shall not exceed the market value of the property subject to such Lien;

(k)        all Contingent Liabilities;

(l)         all obligations of such Person incurred in connection with the acquisition or carrying of fixed assets by such Person or obligations of such Person to pay the deferred purchase or acquisition price of property or assets, including contracts for the deferred purchase price of property or assets that include the procurement of services;

(m)       indebtedness of general partnerships of which such Person is liable as a general partner (whether secondarily or contingently liable or otherwise); and

(n)        obligations to fund capital commitments under any articles or certificate of incorporation or formation, by-laws, partnership, limited liability company, operating or trust agreement and/or other organizational, charter or governing documents, subscription agreement or otherwise.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.

Indemnified Taxes” means (a) Taxes other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

Indemnitee” has the meaning specified in Section 11.04(b).

Information” has the meaning specified in Section 11.07.

Initial Maturity Date” means February 28, 2021.

Insolvency Event” means, with respect to any Person, (a) the filing of a decree or order for relief by a court having jurisdiction in the premises with respect to such Person or any substantial part of its assets or property in an involuntary case under any applicable Insolvency Law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its assets or property, or ordering the winding–up or liquidation of such Person’s affairs, and such decree or order shall remain unstayed and in effect for a period of thirty (30) days, (b) the commencement by such Person of a voluntary case under any applicable Insolvency Law now or hereafter in effect, (c) the consent by such Person to the entry of an order for relief in an involuntary case under any

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Insolvency Law, (d) the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its assets or property, (e) the making by such Person of any general assignment for the benefit of creditors, (f) the admission in a legal proceeding of the inability of such Person to pay its debts generally as they become due, (g) the failure by such Person generally to pay its debts as they become due, or (h) the taking of any action by such Person in furtherance of any of the foregoing.

Insolvency Laws” means Title 11 of the United States Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments and similar debtor relief laws from time to time in effect affecting the rights of creditors generally.

Intangible Assets” means assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs; provided that, “Intangible Assets” shall not include any rights to service mortgage loans under any loan servicing agreement.

Interest Expense” means, with respect to the Parent and its Subsidiaries on a consolidated basis for any Test Period, the amount of total interest expense incurred by such Person, including capitalized or accruing interest (but excluding interest funded under a construction loan), all with respect to such Test Period.

Interest Payment Date” means, (a) as to any Eurodollar Rate Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate”, the last day of each Interest Period applicable to such Eurodollar Rate Loan and the Maturity Date applicable to such Eurodollar Rate Loan; provided,  however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date of such Base Rate Loan and (c) as to any LIBOR Daily Floating Rate Loan, the last Business Day of each calendar month and the Maturity Date applicable to such Eurodollar Rate Loan.

Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two or three months thereafter (in each case, subject to availability), as selected by the Borrowers in a Committed Loan Notice or, if requested by the Borrowers and consented to by all Lenders, six months thereafter; provided that:

(i)         any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

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(ii)       any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(iii)      no Interest Period shall extend beyond the Maturity Date.

Notwithstanding the foregoing, the Interest Period shall be one Business Day for each Revolving Credit Borrowing of a Eurodollar Rate Loan that bears interest at a rate based on clause (b)(ii) of the definition of “Eurodollar Rate.”

Intermediate Parents” means, collectively, (i) Starwood Property Mortgage Sub-10 HoldCo, (ii) Starwood Property Mortgage Sub-10-A HoldCo and (iii) SPT Acquisitions Holdco.

Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

IRS” means the United States Internal Revenue Service.

Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

Lender” has the meaning specified in the introductory paragraph hereto and, unless the context requires otherwise, includes the Swing Line Lender.

Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrowers and the Administrative Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.

Leverage Ratio” means, with respect to the Parent and its Subsidiaries, on a consolidated basis, as of any date of determination, the ratio as of such date of (i) Total Indebtedness of the Parent, to (ii) Total Assets of the Parent.

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LIBOR” has the meaning specified in the definition of “Eurodollar Rate.”

LIBOR Daily Floating Rate” means, for any day, a fluctuating rate of interest per annum equal to LIBOR, or a comparable or successor rate which rate is approved by Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by Administrative Agent from time to time), at or about 11:00 a.m., London time, two (2) London Banking Days prior to such date for Dollar deposits with a term of one (1) month commencing that day; and if the LIBOR Daily Floating Rate shall be less than zero, such rate shall be zero for purposes of this Agreement; provided that to the extent a comparable or successor rate is approved by Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided,  further that to the extent such market practice is not administratively feasible for Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by Administrative Agent.

LIBOR Daily Floating Rate Loan” has the meaning specified in clause (b) of the definition of “Eurodollar Rate” contained herein.

LIBOR Screen Rate” means the LIBOR quote on the applicable screen page Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).

LIBOR Successor Rate” has the meaning specified in Section 3.03(b)(iii).

LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as Administrative Agent determines in consultation with the Borrowers).

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, easement, right-of-way or other encumbrance on title to real property, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing).

Loan” means an extension of credit by a Lender to the Borrowers under Article II in the form of a Revolving Credit Loan or a Swing Line Loan.

Loan Asset” means (i) a commercial mortgage loan originated or acquired by a Borrower or (ii) a commercial mortgage loan, together with a related mezzanine loan, originated

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or acquired by a Borrower.  For the avoidance of doubt, a mezzanine loan itself does not constitute a Loan Asset but as described in clause (ii) above may comprise part of an Loan Asset.

Loan Asset Designation Certificate” has the meaning specified in Section 2.14(a)(iii).

Loan Asset Eligibility Criteria” has the meaning specified in Section 2.14(a).

Loan Asset Subsidiary Guarantor” means a Subsidiary Guarantor that is a Subsidiary of a Borrower.

Loan Documents” means this Agreement, each Note and the Collateral Documents.

Loan Parties” means, collectively, the Borrowers and the Guarantors.

Loan-to-Value Ratio” means, at any time with respect to any Non-Warehouse Asset, the ratio (expressed as a percentage) (i) the numerator of which is the sum of (x) the aggregate outstanding principal amount of such Non-Warehouse Asset (including, in the case where such Non-Warehouse Asset includes a mezzanine loan, the outstanding principal amount of such mezzanine loan) at such time and (y) the aggregate outstanding principal amount of all other Indebtedness of the borrower(s) with respect to such Non-Warehouse Asset that is, whether by contract, operation of law or otherwise, senior or pari passu in right of payment to or with all or any portion of such Non-Warehouse Asset (including, for the avoidance of doubt, in the case where such Non-Warehouse Asset includes a mezzanine loan that is “structurally subordinated” to a mortgage loan, all such other Indebtedness of the subject mortgage borrower) and (ii) the denominator of which is the Appraised Value of the Underlying Real Property Asset relating to such Non-Warehouse Asset.

London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

Majority Lenders” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Majority Lenders at any time; provided that, the amount of any participation in any Swing Line Loan that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender in making such determination.

Management Fees” means, with respect to each Property for any period, an amount equal to the greater of (i) actual management fees payable with respect thereto and (ii) three percent (3.0%) per annum on the aggregate base rent and percentage rent due and payable under leases with respect to such Property.

Manager” means SPT Management, LLC, a Delaware limited liability company.

Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of any Borrower, the Parent or the Parent and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan Party to perform its obligations under

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any Loan Document to which it is a party; (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party; or (d) a material adverse effect upon the Collateral or the validity, enforceability, perfection or priority of the Administrative Agent’s Liens on the Collateral.

Maturity Date” means, with respect to the Revolving Credit Loans and Commitment (or portion thereof, as applicable) of any Lender, the later of (a) the Initial Maturity Date, (b) if the Initial Maturity Date is extended with respect to the Revolving Credit Loans and Commitments of all Lenders, the First Extended Maturity Date and (c) if the First Extended Maturity Date is extended with respect to the Revolving Credit Loans and Commitment (or any portion thereof) of such Lender pursuant to Section 2.12, the Second Extended Maturity Date;  provided,  however, that (i) in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day and (ii) if only a portion of the Revolving Credit Loans and Commitment of a Lender is extended pursuant to Section 2.12, the Second Extended Maturity Date shall only apply to the portion of such Revolving Credit Loans and Commitment of such Lender so extended.

Moody’s” means Moody’s Investors Service, Inc. and its successors.

Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including any Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

Near Cash Liquidity” means, with respect to the Parent and its Subsidiaries on a consolidated basis, as of any date of determination, the sum of (i) the market value of Near Cash Securities held by the Parent and its Subsidiaries as of such date and (ii) the amount of Undrawn Borrowing Capacity of Parent and its Subsidiaries under repurchase and credit facilities to which they are a party as of such date.  “Market Value” of Near Cash Securities shall be determined on a quarterly basis by at least one independent third party financial institution reasonably acceptable to the Administrative Agent.

Near Cash Securities” means (i) CMBS having, at all times, a maturity or weighted average life of twelve (12) months or less as determined by the applicable service, (ii) RMBS having a duration of twelve (12) months or less as determined by the Parent (and, at the Administrative Agent’s request, the assumptions used in such determination shall be provided to the Administrative Agent for the Administrative Agent’s review), in each case, having a rating of Baa1 or BBB (or the equivalent) or higher by at least one Rating Agency (it being acknowledged that such securities may also have a lower rating from one or more Rating Agencies) or (iii) other public or privately placed securities approved by the Administrative Agent.

Net Cash Proceeds” means, with respect to any issuance or sale by the Parent of any of its Equity Interests, the excess of (i) the sum of the cash and Cash Equivalents received by the

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Parent in connection with such issuance or sale, less (ii) the underwriting discounts and commissions, and other out-of-pocket expenses, incurred by the Parent in connection with such issuance or sale.

Net Income” means, with respect to any Test Period, the net income of Parent and its Subsidiaries on a consolidated basis for such Test Period as determined in accordance with GAAP.

Net Operating Income” means, with respect to any Property for any period, property rental and other income derived from the operation of such Property from tenants paying rent as determined in accordance with GAAP, minus the amount of all expenses (as determined in accordance with GAAP) incurred in connection with and directly attributable to the ownership and operation of such Property for such period, including, without limitation, Management Fees and amounts accrued for the payment of real estate taxes and insurance premiums, but excluding (i) any general and administrative expenses related to the operation of the Parent and its Subsidiaries, (ii) any interest expense or other debt service charges and (iii) any non-cash charges such as depreciation or amortization of financing costs.

New Guarantor Deliverables” means, with respect to any Subsidiary that is required to become a Guarantor after the Restatement Effective Date pursuant to Section 6.12, the following items: (i) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of such Subsidiary as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Subsidiary is a party, (ii) such documents and certifications as the Administrative Agent may reasonably require to evidence that such Subsidiary is duly organized or formed, and that such Subsidiary is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization or formation, (iii) a certificate of a Responsible Officer of such Subsidiary either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Subsidiary and the validity against such Subsidiary of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required and (iv) to the extent requested by the Administrative Agent, a favorable opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such matters concerning such Subsidiary and the Loan Documents to which such Subsidiary is a party as the Administrative Agent may reasonably request.

New Lender Joinder Agreement” has the meaning specified in Section 2.15(c).

Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

Non-Qualifying Additional Collateral Asset” has the meaning specified in Section 11.22(b).

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Non-Recourse Indebtedness” means Indebtedness of a Person for borrowed money in respect of which recourse for payment (except for customary exceptions for fraud, misapplication of funds, environmental indemnities, Insolvency Events, non-approved transfers or other events) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness.

Non-Warehouse Asset” has the meaning specified in Section 2.14(a)(iii).

Non-Warehouse Eligible Amount” means, at any time with respect to any Eligible Non-Warehouse Asset, an amount equal to the greater of (i) such Eligible Non-Warehouse Asset’s contribution to the Borrowing Base Amount at such time pursuant to clause (a) of the definition of Borrowing Base Amount and (ii) $0.

Note” means a promissory note made by the Borrowers in favor of a Lender evidencing the Revolving Credit Loans made by such Lender, substantially in the form of Exhibit B.

Obligations” means, collectively, all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Revolving Credit Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

Occupancy Rate” means for any Property, the percentage of the rentable area of the Property leased and occupied by bona fide tenants of the Property pursuant to bona fide tenant leases, in each case, which tenants are not past due in the payment of any rent or other similar payments due under such leases beyond any grace period for payment thereof contained in the applicable leases (as such leases are in effect on the date such Property is first included in the computation of Borrowing Base Amount).

OFAC”  means the Office of Foreign Assets Control of the United States Department of the Treasury.

Off-Balance Sheet Obligations” means, with respect to any Person and any date, to the extent not included as a liability on the balance sheet of such Person, all of the following with respect to such Person as of such date: (a) monetary obligations under any financing lease or so–called “synthetic,” tax retention or off–balance sheet lease transaction which, upon the application of any Insolvency Laws, would be characterized as indebtedness, (b) monetary obligations under any sale and leaseback transaction which does not create a liability on the balance sheet of such Person, or (c) any other monetary obligation arising with respect to any other transaction which (i) is characterized as indebtedness for tax purposes but not for accounting purposes, or (ii) is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person (for purposes of this clause (c), any transaction structured to provide tax deductibility as interest expense of any

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dividend, coupon or other periodic payment will be deemed to be the functional equivalent of a borrowing).

Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

Original Closing Date” means August 3, 2012.

Original Note” means a “Note” as defined in the Existing Credit Agreement.

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).

Outstanding Amount” means with respect to any Loan on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Loan occurring on such date.

Outstanding Value” means, at any time:

(a) in the case of each Eligible Loan Asset that is acquired by a Borrower, the least of (i) the acquisition price paid by such Borrower for such Eligible Loan Asset at the time such Eligible Loan Asset was acquired by such Borrower, less the sum of (x) the aggregate amount of all Eligible Loan Asset Principal Payments received by such Borrower in respect of such Eligible Loan Asset and (y) the amount, if any, by which such Borrower has reduced the value of such Eligible Loan Asset on its books and records subsequent to the acquisition thereof by such Borrower, (ii) if such Eligible Loan Asset is the subject of an Accepted Offer to Purchase at such time, the agreed and accepted purchase price for such Eligible Loan Asset as set forth in such Accepted Offer to Purchase, less the aggregate amount of all Eligible Loan Asset Principal Payments

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received by such Borrower from such Eligible Loan Asset and not reflected in the purchase price set forth in such Accepted Offer to Purchase and (iii) if such Eligible Loan Asset was previously included in the borrowing pool under a Warehouse Line but has been removed from such borrowing pool, the excess of (x) the value that was attributed to such Eligible Loan Asset for purposes of calculating the Parent’s and its Subsidiaries’ borrowing capacity under the Warehouse Line from which such Eligible Loan Asset was most recently removed, as determined under such Warehouse Line immediately prior to the removal of such Eligible Loan Asset therefrom, minus (y) the sum of (A) the aggregate amount of all Eligible Loan Asset Principal Payments received by such Borrower from such Eligible Loan Asset after the date such Eligible Loan Asset was removed from such Warehouse Line and (B) the amount, if any, by which such Borrower has reduced the value of such Eligible Loan Asset on its books and records subsequent to the date such Eligible Loan Asset was removed from such Warehouse Line;

(b) in the case of each Eligible Loan Asset that is originated by a Borrower, the least of (i) the face amount of such Eligible Loan Asset at the time of its origination by such Borrower, minus the sum of (A) the amount of any upfront fee that was paid by the borrower or any other obligor on such Eligible Loan Asset to such Borrower at the time of its origination, (B) the amount of any original issue or similar discount that was applied to such Eligible Loan Asset in connection with its origination by such Borrower, (C) the aggregate amount of all Eligible Loan Asset Principal Payments received by such Borrower in respect of such Eligible Loan Asset and (D) the amount, if any, by which such Borrower has reduced the value of such Eligible Loan Asset on its books and records subsequent to the origination thereof, (ii) if such Eligible Loan Asset is the subject of an Accepted Offer to Purchase at such time, the agreed and accepted purchase price for such Eligible Loan Asset as set forth in such Accepted Offer to Purchase, less the aggregate amount of all Eligible Loan Asset Principal Payments received by such Borrower from such Eligible Loan Asset and not reflected in the purchase price set forth in such Accepted Offer to Purchase and (iii) if such Eligible Loan Asset was previously included in the borrowing pool under a Warehouse Line but has been removed from such borrowing pool, the excess of (x) the value that was attributed to such Eligible Loan Asset for purposes of calculating the Parent’s and its Subsidiaries’ borrowing capacity under the Warehouse Line from which such Eligible Loan Asset was most recently removed, as determined under such Warehouse Line immediately prior to the removal of such Eligible Loan Asset therefrom, minus (y) the sum of (A) the aggregate amount of all Eligible Loan Asset Principal Payments received by such Borrower from such Eligible Loan Asset after the date such Eligible Loan Asset was removed from such Warehouse Line and (B) the amount, if any, by which such Borrower has reduced the value of such Eligible Loan Asset on its books and records subsequent to the date such Eligible Loan Asset was removed from such Warehouse Line; and

(c) in the case of each Eligible Property Asset, ***.

For the avoidance of doubt, for purposes of calculating the Outstanding Value of an Eligible Loan Asset consisting of a commercial mortgage loan and a related mezzanine loan, all references in this definition to Eligible Loan Asset shall include both the commercial mortgage loan and related mezzanine loan that comprise such Eligible Loan

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Asset.  In the case of any such Eligible Loan Asset where the commercial mortgage loan or related mezzanine loan (but not both) is subject to an Accepted Offer to Purchase, the “Outstanding Value” of such Eligible Loan Asset under clause (a)(ii) or (b)(ii) above, as applicable, shall equal the sum of (x) the agreed and accepted purchase price for the portion of such Eligible Loan Asset that is subject to the Accepted Offer to Purchase plus (y) the “Outstanding Value” of the portion of such Eligible Loan Asset that is not subject to the Accepted Offer to Purchase as determined under clause (a)(i) or (b)(i) above.

Parent” has the meaning specified in the introductory paragraph hereto.

Partial Approving Lender” has the meaning specified in Section 2.12(b)(iii)(B).

Participant” has the meaning specified in Section 11.06(d).

Participant Certification” has the meaning specified in Section 11.06(d).

Participant Register” has the meaning specified in Section 11.06(d).

PBGC” means the Pension Benefit Guaranty Corporation.

Pension Act” means the Pension Protection Act of 2006.

Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by a Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

Permitted Collateral Liens” means:

(a)  Liens pursuant to any Loan Document;

(b)  Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted (which actions or proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to any such Lien), if adequate reserves with respect thereto are maintained on the books of the Parent or the applicable Subsidiary thereof in accordance with GAAP;

(c)  Liens in favor of a bank or other financial institution arising as a matter of law or under a Control Agreement encumbering deposits (including the right of setoff) and which are within the general parameters customary in the banking industry so long as those deposits are not given in connection with the issuance or incurrence of Indebtedness; and

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(d)  in the case of the portion (if any) of a Loan Asset consisting of a mezzanine loan, restrictions on permitted transferees that may be set forth in the documentation governing such mezzanine loan (but only to the extent such restrictions on permitted transferees are reasonably standard and customary for loans of the same type as such mezzanine loan and in any event would permit the transfer (including by way of foreclosure) of such interest to the Administrative Agent (or a Wholly Owned Subsidiary of one or more Secured Parties) for the benefit of the Secured Parties).

Permitted Equity Encumbrances” means:

(a)  Liens pursuant to any Loan Document; and

(b)  Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted (which actions or proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to any such Lien), if adequate reserves with respect thereto are maintained on the books of the Parent or the applicable Subsidiary thereof in accordance with GAAP.

Permitted Liens” means, collectively, Permitted Equity Encumbrances, Permitted Property Encumbrances and Permitted Collateral Liens.

Permitted Property Encumbrances” means:

(a)  Liens pursuant to any Loan Document;

(b)  Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted (which actions or proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to any such Lien), if adequate reserves with respect thereto are maintained on the books of the Parent or the applicable Subsidiary thereof in accordance with GAAP;

(c)  easements, rights-of-way, sewers, electric lines, telegraph and telephone lines, restrictions (including zoning restrictions), encroachments, protrusions and other similar encumbrances affecting a Property which could not reasonably be expected to result in a material adverse effect with respect to the use, operations or marketability thereof;

(d)  mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business that are not overdue for a period of more than sixty (60) days or are being contested in good faith and by appropriate actions or proceedings diligently conducted (which actions or proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to any such Lien), if adequate reserves with respect thereto are maintained on the books of the Parent or the applicable Subsidiary thereof;

(e)  any interest or right of a lessee of a Property under leases entered into in the ordinary course of business of the applicable lessor; and

(f)  rights of lessors under Eligible Ground Leases.

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Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of a Loan Party or any ERISA Affiliate or any such Plan to which a Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.

Platform” has the meaning specified in Section 6.02.

Pledge Agreement” means the Pledge Agreement dated as of the Original Closing Date, as amended as of the Restatement Effective Date, among the Intermediate Parents and the Administrative Agent, as such agreement may be further amended, restated, supplemented or otherwise modified from time to time in accordance with its terms.

Pledged Additional Collateral Asset” means, at any time, an Additional Collateral Asset owned by a Borrower or any Loan Asset Subsidiary Guarantor that at such time is subject to a first priority perfected security in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Obligations and is subject to no other Liens, negative pledges or other encumbrances other than Permitted Collateral Liens.

Pledged Additional Collateral Assets Report” means, for any fiscal quarter of the Parent, a written report, certified by a Responsible Officer of the Parent, of the Pledged Additional Collateral Assets during such fiscal quarter, which report shall be substantially in the form attached hereto as Exhibit L.

Property” as to any Person means all of the right, title, and interest of such Person in and to land, improvements and fixtures.

Proposed Additional Collateral Assets” has the meaning specified in Section 6.13(a).

Property Asset Subsidiary Guarantor” means a Subsidiary Guarantor that is a Subsidiary of SPT Acquisitions Holdco.

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

Rating Agency” means each of Fitch, Moody’s and S&P.

Recipient” means the Administrative Agent or any Lender.

Register” has the meaning specified in Section 11.06(c).

REIT” means a Person satisfying the conditions and limitations set forth in Section 856(b) and 856(c) of the Code which are necessary to qualify such Person as a “real estate investment trust,” as defined in Section 856(a) of the Code.

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Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching of any Hazardous Material into the Environment, or into, from or through any building, structure or facility.

Release Conditions” means, with respect to (i) the release of any Property Asset Subsidiary Guarantor from its obligations under the Guaranty, (ii) the release of any Collateral consisting of an Eligible Loan Asset or Pledged Additional Collateral Asset from the Liens created under the Security Agreement, in each case in connection with a sale, transfer or other disposition thereof to a Person that is not a Borrower or Loan Asset Subsidiary Guarantor, (iii) the release of any Collateral consisting of the Equity Interests in a Property Asset Subsidiary Guarantor from the Liens created under the Pledge Agreement or (iv) the removal of any Eligible Asset from the calculation of the Borrowing Base Amount (each a “Release Transaction”), each of the following:

 

(a)  the Borrowers or the Parent shall have delivered to the Administrative Agent, at least five (5) Business Days prior to the date of the proposed Release Transaction (or such shorter period of time as agreed to by the Administrative Agent in writing), a written notice requesting such Release Transaction (a “Release Notice”), which Release Notice shall identify each Eligible Loan Asset, each Pledged Additional Collateral Asset and/or the Equity Interests of a Property Asset Subsidiary Guarantor to be released from the Liens created under the applicable Collateral Document, the Property Asset Subsidiary Guarantor to be released from the Guaranty, or the Eligible Asset to be removed from the calculation of the Borrowing Base Amount, as applicable, as part of the proposed Release Transaction, and the date proposed for consummation of the Release Transaction;

 

(b)  no Default or Event of Default has occurred and is continuing on such date (or would exist immediately after giving effect to the proposed Release Transaction);

 

(c)  the Total Outstandings shall not, after giving effect to the proposed Release Transaction (and any contemporaneous prepayment of Loans), exceed the lesser of (1) the Borrowing Base Amount at such time and (2) the Aggregate Commitments at such time;

 

(d)  the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the effective date of the proposed Release Transaction and, both before and after giving effect to such removal and/or release, except (A) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, (B) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (A)) after giving effect to such qualification and (C) for purposes of this clause, the representations and warranties contained in subsections (a)

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and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01;

 

(e)  the Loan Parties will be in compliance with all financial covenants on a pro forma basis immediately after giving effect to the proposed Release Transaction; and

 

(f)  at least two (2) Business Days (or such shorter period of time as agreed to by the Administrative Agent in writing), the Administrative Agent shall have received (1) a Borrowing Base Certificate demonstrating to its satisfaction that, after giving effect to the proposed Release Transaction, the condition set forth in clause (c) above will be satisfied and (2) a certificate executed by a Responsible Officer of the Borrowers certifying to the Administrative Agent and the Lenders that the conditions in clauses (c) through (e) above have been satisfied; and

 

(g)  a certificate executed by a Responsible Officer of the Borrowers certifying to the Administrative Agent and the Lenders that immediately before and after giving effect to such Release Transaction, no Default or Event of Default has occurred and is continuing on such date (or would exist immediately after giving effect to the proposed Release Transaction).

 

Release Notice” has the meaning specified in the definition of “Release Conditions.”

Release Transaction” has the meaning specified in the definition of “Release Conditions.”

Relevant Payment” has the meaning specified in Section 10.11.

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a Committed Loan Notice and (b) with respect to a Swing Line Loan, a Swing Line Loan Notice.

Required Lenders” means, at any time, Lenders having Total Credit Exposures representing at least 66-2/3% of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that, the amount of any participation in any Swing Line Loan that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender in making such determination.

Requisite Sale/Syndication Efforts” means, with respect to any Loan Asset, the following actions taken with respect to such Loan Asset by the Borrower that owns such Loan Asset: (i) within 30 days after such Loan Asset is first included in the computation of the Borrowing Base Amount as an Eligible Loan Asset, such Borrower has made available to one or more prospective purchasers that are not affiliated with the Parent copies of a written, bona fide offering memorandum or property listing pursuant to which such Loan Asset has been offered

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for syndication or sale, as applicable, and (ii) thereafter such Borrower pursues such syndication or sale diligently and in good faith.

Responsible Officer” means the chief executive officer, president, chief financial officer, vice president, general counsel, treasurer, assistant treasurer or controller of a Loan Party and solely for purposes of the delivery of incumbency certificates pursuant to Article IV, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a written notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

Restatement Effective Date” has the meaning specified in Section 4.01.

Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.  Notwithstanding the foregoing, the conversion of (including any cash payment upon the conversion of), payment of any principal or premium on, or payment of any interest with respect to, any Convertible Debt Securities shall not constitute a Restricted Payment.

Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.

Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Credit Loans and such Lender’s participation in Swing Line Loans at such time.

Revolving Credit Loan” has the meaning specified in Section 2.01.

RMBS” means mortgage pass-through certificates or other securities issued pursuant to a securitization of residential mortgage loans.

Sanction(s)” means any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.

Scheduled Unavailability Date” has the meaning specified in Section 3.03(b)(ii).

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SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

Second Extended Maturity Date” has the meaning specified in Section 2.12(b)(i).

Second Extension Request” has the meaning specified in Section 2.12(b)(i).

Secured Parties” means, collectively, the Administrative Agent, the Lenders, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.

Security Agreement” means the Security Agreement dated as of the Original Closing Date, among the Borrowers, the Loan Asset Subsidiary Guarantors and the Administrative Agent, as such agreement may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms.

Significant Subsidiary” means, at any date of determination, each Subsidiary or group of Subsidiaries of the Parent (a) whose total assets at the last day of the most recent fiscal period for which financial statements have been delivered pursuant to clause (a) or (b) of Section 6.01 were equal to or greater than 10% of the consolidated total assets of the Parent and its Subsidiaries at such date or (b) whose gross revenues for the most recently completed period of four fiscal quarters for which financial statements have been delivered pursuant to clause (a) or (b) of Section 6.01 were equal to or greater than 10% of the consolidated gross revenues of the Parent and its Subsidiaries for such period, in each case, determined in accordance with GAAP (it being understood that such calculations shall be determined in the aggregate for all Subsidiaries of the Company subject to any of the events specified in clause (e), (f), (g) or (h) of Section 8.01).

Solvent” and “Solvency”  mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Solvency Certificate”  means a Solvency Certificate of the chief financial officer of the Parent, substantially in the form of Exhibit G.

S&P” means Standard & Poor’s Ratings Group and its successors.

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SPT Acquisitions Holdco” means SPT Acquisitions Holdco, LLC, a Delaware limited liability company.

Starwood Property Mortgage Sub-10 HoldCo” means Starwood Property Mortgage Sub-10 HoldCo, L.L.C., a Delaware limited liability company.

Starwood Property Mortgage Sub-10-A HoldCo” means Starwood Property Mortgage Sub-10-A HoldCo, L.L.C., a Delaware limited liability company.

Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent.

Subsidiary Guarantors” means, collectively, each Guarantor that is a Subsidiary of a Borrower or of SPT Acquisitions Holdco.

Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

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Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.16.

Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

Swing Line Loan” has the meaning specified in Section 2.16(a).

Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.16(b), which shall be substantially in the form of Exhibit A-2 or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approve by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

Swing Line Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b) the Aggregate Commitments; provided that, without limiting the discretion of the Swing Line Lender to make or decline to make Swing Line Loans, the Swing Line Lender may from time to time, in its sole discretion, agree to increase the Swing Line Sublimit (on a temporary or permanent basis) to an amount not to exceed the lesser of (a) $100,000,000 and (b) the Aggregate Commitments.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.

Tangible Net Worth” means, as of any date of determination, with respect to any Person, all amounts which would be included under capital or shareholder’s equity (or any like caption) on a balance sheet of such Person, minus (a) amounts owing to such Person from any Affiliate thereof, or from officers, employees, partners, members, directors, shareholders or other Persons similarly affiliated with such Person or any Affiliate thereof, (b) Intangible Assets and (c) prepaid taxes and/or expenses, all on or as of such date.

Taxes”  means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Test Period” means the time period commencing on the first day of each calendar quarter through and including the last day of such calendar quarter.

Threshold Amount” means (i) with reference to an Intermediate Parent, a Borrower, a Property Asset Subsidiary Guarantor or any Subsidiary of a Borrower, $100,000 and (ii) with reference to any other Loan Party or any Significant Subsidiary thereof (other than an Intermediate Parent, a Borrower, a Property Asset Subsidiary Guarantor or any Subsidiary of a Borrower), $25,000,000.

Total Assets” shall mean, with respect to any Person on any date, an amount equal to (a) the aggregate book value of all assets owned by such Person and its Subsidiaries on a consolidated basis and the proportionate share of assets owned by non-consolidated Subsidiaries of such Person, less (i) amounts owing to such Person or any of its Subsidiaries from any Affiliate thereof, or from officers, employees, partners, members, directors, shareholders or other Persons similarly affiliated with such Person or any Affiliate thereof, (ii) Intangible Assets and

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(iii) prepaid taxes and expenses, all on or as of such date and determined in accordance with GAAP, plus (b) the amount of any future funding obligations under any loans or financings (including any construction loans) outstanding as of any date, which future funding obligations are included in Total Indebtedness for purposes of the calculation of the Leverage Ratio as of such date.

Total Credit Exposure” means, as to any Lender at any time, the unused Commitments and Revolving Credit Exposure of such Lender at such time.

Total Indebtedness” means, with respect to the Parent, as of any date of determination, all Indebtedness (other than Contingent Liabilities not reflected on Parent’s consolidated balance sheet), plus the proportionate share of all Indebtedness (other than Contingent Liabilities not reflected on Parent’s consolidated balance sheet) of all non-consolidated Affiliates of Parent, on or as of such date of determination.

Total Outstandings” means, at any time, the aggregate Outstanding Amount of all Loans at such time.

Type” means, when used in reference to the Loans or any Borrowing, whether the rate of interest on the Loans, or on that portion of the Loans comprising such Borrowing, is determined by reference to the Base Rate or the Eurodollar Rate.

Underlying Real Property Asset” means Property that (i) secures an Eligible Loan Asset and/or (ii) relates to a Pledged Additional Collateral Asset and is described in clause (i) or clause (ii) of the definition of “Additional Collateral Asset.”

Undrawn Borrowing Capacity” means, with respect to any Person and its consolidated Subsidiaries, as of any date, the total undrawn borrowing capacity available to such Person and its direct or indirect consolidated Subsidiaries under any repurchase and credit facilities and similar agreements to which such Person or any of its consolidated Subsidiaries is a party as of such date, but (i) with respect to any such repurchase or credit facility or similar agreement that is a secured facility, solely to the extent that collateral has been approved by and pledged to the related buyer or lender under such facility, and (ii) with respect to any such credit facility or similar agreement that is an unsecured facility, solely to the extent that such undrawn borrowing capacity (i.e., remaining availability) is committed by the related lender.

United States” and “U.S.” mean the United States of America.

Unrestricted Cash” means (i) cash and Cash Equivalents (other than prepaid rents and security deposits made under tenant leases) held by the Parent or any of its Subsidiaries that are not subject to any Lien (excluding statutory liens in favor of any depositary bank where such cash is maintained or any Lien granted to the Administrative Agent for the benefit of the Secured Parties), minus (ii) amounts included in the foregoing clause (i) that are with an entity other than the Parent or any of its Subsidiaries as deposits or security for Contractual Obligations.

Unused Fee” has the meaning specified in Section 2.07(a).

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U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).

Warehouse Asset” has the meaning specified in Section 2.14(a)(iii).

Warehouse Lines” means, collectively, (i) each warehouse credit facility provided to any Subsidiary of the Parent on the Restatement Effective Date by one or more lenders that are not affiliated with the Parent, the material terms and provisions of which have been disclosed to the Administrative Agent in writing prior to the Restatement Effective Date (each, a “Restatement/Closing Date Warehouse Line”) and (ii) each warehouse credit facility provided to any Subsidiary of the Parent after the Restatement Effective Date by one or more lenders that are not affiliated with the Parent, the material terms and provisions of which (including, without limitation, advance rates and borrowing base eligibility criteria) are substantially similar to those set forth in one or more of the Restatement/Closing Date Warehouse Lines.

Wholly-Owned” means with respect to the ownership by any Person of any Property, that one hundred percent (100%) of the title to such Property is held in fee directly or indirectly by, or one hundred percent (100%) of such Property is ground leased pursuant to an Eligible Ground Lease directly by, such Person.

Wholly-Owned Subsidiary” means, with respect to any Person on any date, any corporation, partnership, limited liability company or other entity of which one hundred percent (100%) of the Equity Interests and one hundred percent (100%) of the ordinary voting power are, as of such date, owned and Controlled, directly or indirectly, by such Person.

Wholly Owned Unrestricted Subsidiary” means, as to any Borrower and as of any date of determination, any other Person (i) all of the Equity Interests of which (other than directors’ qualifying shares required by law) is owned directly and/or through other Wholly Owned Unrestricted Subsidiaries by such Borrower or by both Borrowers and (ii) who is not, as of such date of determination, prohibited from becoming a guarantor of the Obligations under the express terms of its Organization Documents or any contract, instrument or other agreement to which such Person is a party.

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

1.02    Other Interpretive Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a)        The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will

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shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(b)        In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

(c)        Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

1.03    Accounting Terms.

(a)        Generally.  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

(b)        Changes in GAAP; Changes in Accounting Policies or Reporting Practices.  If at any time any change in GAAP (including the adoption of IFRS), or any change in accounting policies or reporting practices of the Parent or any of its Subsidiaries that are permitted by but not required under, GAAP, would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrowers or the Majority Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change(s)

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(subject to the approval of the Majority Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP and the accounting policies and reporting practices (as the case may be) in effect prior to such change(s) and (ii) the Borrowers shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change(s).  Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.

1.04    Rounding.  Any financial ratios required to be maintained by the Parent pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

1.05    Times of Day; Rates.  Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).  The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of “Eurodollar Rate” or with respect to any comparable or successor rate thereto or to LIBOR.

ARTICLE II.  THE COMMITMENTS AND REVOLVING CREDIT LOANS

2.01    Borrowings.  Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “Revolving Credit Loan”) to the Borrowers from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided,  however, that after giving effect to any Revolving Credit Borrowing, (i) the Total Outstandings shall not exceed the lesser of (x) the Borrowing Base Amount at such time and (y) the Aggregate Commitments at such time and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment.  Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under Section 2.03, and reborrow under this Section 2.01.  Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.  Each Lender that is a party to this Agreement on the Restatement Effective Date hereby represents and warrants that, on and as of the Restatement Effective Date, it is a “qualified purchaser” (within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder) and a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities Act of 1933, as amended).

2.02    Borrowings, Conversions and Continuations of Revolving Credit Loans.

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(a)        Each Revolving Credit Borrowing, each conversion of Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrowers’ irrevocable notice to the Administrative Agent, which may be given by (A) telephone, or (B) a Committed Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Administrative Agent of a Committed Loan Notice.  Each such Committed Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three (3) Business Days prior to the requested date of any Revolving Credit Borrowing of, conversion to or continuation of Eurodollar Rate Loans (other than Eurodollar Loans referred to in the following clause (ii)) or of any conversion of (x) Eurodollar Rate Loans to Base Rate Loans or (y) Eurodollar Rate Loans that bear interest based on clause (a) of the definition of Eurodollar Rate to Eurodollar Loans that bear interest based on clause (b)(ii) of the definition of Eurodollar Rate, and (ii) on the requested date of any Revolving Credit Borrowing of Base Rate Loans or Eurodollar Loans that bear interest based upon clause (b)(ii) of the definition of Eurodollar Rate;  provided,  however, that if the Borrowers wish to request Eurodollar Rate Loans having an Interest Period of six (6) months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such Revolving Credit Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Lenders of such request and determine whether the requested Interest Period is acceptable to all of them.  Not later than 11:00 a.m., three (3) Business Days before the requested date of a Revolving Credit Borrowing, conversion or continuation of Eurodollar Rate Loans having an Interest Period of six (6) months, the Administrative Agent shall notify the Borrowers (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders; and if such consent has not been given by all Lenders, the requested Borrowing shall automatically be converted to a request for a Revolving Credit Borrowing of Eurodollar Rate Loans bearing interest based on clause (b)(ii) of the definition of Eurodollar Rate.  Any Eurodollar Rate Loan that the Borrowers have elected to bear interest based on clause (b)(ii) of the definition of Eurodollar Rate shall continue to so bear interest for successive Interest Periods of one Business Day, without any further notice of continuation, until a notice of conversion is effective with respect thereto or such Eurodollar Rate Loan is repaid.  Each Revolving Credit Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.  Each Revolving Credit Borrowing of, or conversion to, Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.  Each Committed Loan Notice shall specify (i) whether the Borrowers are requesting a Revolving Credit Borrowing, a conversion of Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Revolving Credit Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Revolving Credit Loans to be borrowed, converted or continued, (iv) the Type of Revolving Credit Loans to be borrowed or to which existing Revolving Credit Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto (which shall be one, two, three or six months (or, in the case of a Eurodollar Rate Loan that bears interest based on clause (b)(ii) of the definition of Eurodollar Rate, successive Interest Periods of one (1) Business Day)).  If the Borrowers fail to specify a Type of Revolving Credit Loan in a Committed Loan Notice or if the Borrowers fail to give a timely notice requesting a conversion or continuation, then the applicable Revolving Credit Loans shall be made as, or converted to, Base Rate Loans.

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Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrowers request a Revolving Credit Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fail to specify an Interest Period, they will be deemed to have specified an Interest Period of one (1) month.

(b)        Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Revolving Credit Loans, and if no timely notice of a conversion or continuation is provided by the Borrowers, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in Section 2.02(a).  Each Lender shall make the amount of its Revolving Credit Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the conditions set forth in Section 4.02, the Administrative Agent shall make all funds so received available to the Borrowers in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrowers on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrowers.

(c)        Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Majority Lenders.

(d)        The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.

(e)        After giving effect to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall not be more than six (6) Interest Periods in effect.

(f)        Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrowers, the Administrative Agent, and such Lender.

2.03    Prepayments and Repayments of Loans.

(a)        Optional Prepayments.  The Borrowers may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Credit Loans in whole or in part without premium or penalty; provided that (i) such notice must be in a form acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (A) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans shall

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be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and amount of such prepayment and the Type(s) of Revolving Credit Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Revolving Credit Loans.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrowers, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided, that if a Contingent Commitment Termination Notice is revoked by the Borrowers in accordance with Section 2.04, as result of the refinancing specified therein not having occurred, the Borrowers shall not be required to prepay the Revolving Credit Loans (and the Revolving Credit Loans shall not become due and payable) on the payment date set forth in such revoked Contingent Commitment Termination Notice.  Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.  Subject to Section 2.13, each such prepayment shall be applied to the Revolving Credit Loans of the Lenders in accordance with their respective Applicable Percentages.

The Borrowers may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrowers, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

(b)        Mandatory Prepayments.

(i)         If for any reason the Total Outstandings at any time exceeds the Aggregate Commitments then in effect, the Borrowers shall immediately prepay Loans in an aggregate amount equal to such excess.

(ii)       If for any reason the Total Outstandings at any time exceeds the Borrowing Base Amount at such time, the Borrowers shall within two (2) Business Days thereof prepay Loans (including Swing Line Loans) in an aggregate amount equal to such excess.  Each prepayment pursuant to the foregoing sentence shall be applied, first, to the outstanding Swing Line Loans until paid in full, and second, ratably to the outstanding Revolving Credit Loans (without any reduction of the Aggregate Commitments).

(c)        Repayment of Loans.  The Borrowers shall repay to each Lender on the Maturity Date of such Lender’s Commitment, the aggregate principal amount of all Revolving Credit Loans of such Lender outstanding on such Maturity Date; provided, that if a portion, but not all, of a Lender’s Commitment is extended in accordance with Section 2.12(b), the Borrowers shall, on the Maturity Date with respect to the portion of such Lender’s Commitment not extended (the “Non- Extended Portion Maturity Date”), repay such portion of such Lender’s Revolving Credit

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Loans to the extent such Revolving Lender’s Revolving Credit Loans would exceed the amount of such Lender’s reduced Commitment (giving effect to the Non-Extended Portion Maturity Date).

(d)        The Borrowers shall repay each Swing Line Loan on the earlier to occur of (i) the date five (5) Business Days after such Loan is made and (ii) the earliest Maturity Date applicable to Revolving Credit Loans made by Bank of America.

2.04    Termination or Reduction of Commitments.  The Borrowers may, upon  written notice to the Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be in a form acceptable to the Administrative Agent and be received by the Administrative Agent not later than 12:00 noon five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) after giving effect to any partial reduction of the Aggregate Commitments, the remaining Aggregate Commitments shall be greater than or equal to $25,000,000, (iv) the Borrowers shall not terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the lesser of (x) the Aggregate Commitments then in effect and (y) the Borrowing Base Amount at such time, (v) if, after giving effect to any reduction of the Aggregate Commitments, the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, the Swing Line Sublimit shall be automatically reduced by the amount of such excess and (vi) the Borrowers shall, jointly and severally, pay any amounts required to be paid under Section 3.05 resulting from any prepayment of Revolving Credit Loans made in connection with such termination or reduction of Commitments; provided further, that any such notice delivered in connection with a termination in full of the Aggregate Commitments, due to a refinancing of the Loans with the proceeds of such refinancing, may be, if expressly so stated to be, contingent upon the consummation of such refinancing (any such contingent termination notice being referred to herein as a “Contingent Commitment Termination Notice”) and may be revoked by the Borrowers in the event such refinancing is not consummated (and the Borrowers shall, jointly and severally, pay any amounts required to be paid under Section 3.05 resulting from any such revocation of such notice).  The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments.  Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage.  All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.

2.05    Collections.

(a)        Collection Accounts.  Each Borrower has established an account (collectively, the “Collection Accounts”) with Bank of America that is subject to a Control Agreement.  All funds on deposit in the Collection Account shall be collateral security for the Obligations.  Each Collection Account shall be an interest-bearing account, with all accrued interest to become part of the balance in such Collection Account.  Each Borrower agrees that it shall include all interest and earnings on any such balance in its Collection Account as its income (and, if such Borrower is a partnership or other pass-through entity, the income of all partners, members or beneficiaries, as the case may be), and shall be the owner of all funds on deposit in its Collection

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Account for federal and applicable state and local tax purposes.  Subject to subsection (c) below, the Administrative Agent shall have the exclusive right to manage and control all funds in the Collection Accounts, but the Administrative Agent shall have no fiduciary duty with respect to such deposited funds.

(b)        Each Borrower has instructed (and after the Restatement Effective Date will continue to instruct), the applicable obligors, agents, trustees, servicers or sub-servicers (as the case may be) with respect to all Eligible Loan Assets owned by such Borrower to deposit or otherwise transfer into the Collection Account of such Borrower all principal, interest and other income, distributions, receipts, payments, collections, prepayments, recoveries, proceeds (including insurance and condemnation proceeds) and other payments or amounts of any kind paid, received, collected, recovered or distributed on, or in connection with or in respect of the Eligible Loan Assets owned by such Borrower.  Neither Borrower shall make any change in the foregoing instructions.  If, despite such instructions, any amount in respect of any Eligible Loan Asset is received by a Borrower in contravention of the prior sentence, such Borrower shall receive such amount in trust for the benefit of the Administrative Agent, shall segregate such amount from all other funds of such Borrower and shall within two (2) Business Days following receipt thereof cause such amount to be deposited into a Collection Account.

(c)        On the last Business Day of each calendar quarter, each Interest Payment Date, each date on which the Borrowers request or are required to make a prepayment or repayment under Section 2.03 and any other date upon the written request of the Borrowers, the Administrative Agent shall:

(i)         cause an amount equal to any interest on the Loans then due and payable to be applied to pay such Obligations;

(ii)       cause an amount equal to the amount of any prepayment that is then due and payable pursuant to Section 2.03(b) to be to be applied to pay such Obligations;

(iii)      cause an amount equal to any then due and payable Obligations not described in the foregoing clauses (i) or (ii) to be applied to pay such Obligations; and

(iv)       after application of funds as described in the foregoing clauses (i) through (iii), transfer any remaining funds on deposit in such Collection Account by wire transfer to an account designated by the Borrowers, but if and only if each of the following conditions are satisfied at the time:

(A)       no Default or Event of Default shall exist; and

(B)       the Borrowers have delivered a Borrowing Base Certificate to the Administrative Agent setting forth the calculation of the Borrowing Base Amount at such time, which calculation shall demonstrate that, after giving effect to the transfer of such funds in the Collection Account to the Borrowers, the Total Outstandings do not exceed the lesser of (x) the Aggregate Commitments at such time and (y) the Borrowing Base Amount at such time.

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(d)        Any account fees and charges may be deducted from the balance, if any, in the Collection Accounts.  Each Collection Account may be established and held in such name or names as the Administrative Agent may deem appropriate, including in the name of the Administrative Agent for the Lenders.  Each Borrower hereby constitutes and appoints the Administrative Agent and any officer or agent of the Administrative Agent its true and lawful attorneys-in-fact with full power of substitution to open a Collection Account for such Borrower and to do any and every act that such Borrower might do on its own behalf to fulfill the terms of this Section 2.05.  To the extent permitted by law, each Borrower hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof.  It is understood and agreed that this power of attorney, which shall be deemed to be a power coupled with an interest, cannot be revoked.

2.06    Interest.

(a)        Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan (including each Swing Line Loan) shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

(b)        (i)        While any Event of Default exists, the Borrowers shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(ii)       Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

(c)        Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

2.07    Fees.  In addition to certain fees described in Sections 2.12(a)(iii)(C) and 2.12(b)(iv)(D):

(a)        Unused Fee.  The Borrowers shall, jointly and severally, pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, an unused line fee (the “Unused Fee”) equal to the Applicable Fee Rate times the actual daily amount by which the Aggregate Commitments exceeds the Outstanding Amount of Revolving Credit Loans, subject to adjustment as provided in Section 2.13For the avoidance of doubt, the Outstanding Amount of Swing Line Loans shall not be counted towards or considered usage of the Aggregate Commitments for purposes of determining the Unused Fee.  The Unused Fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing

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with the first such date to occur after the Restatement Effective Date, and on the last day of the Availability Period.

(b)        The Borrowers shall pay to the Arranger and the Administrative Agent for their own respective accounts the fees as have been separately agreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

(c)        The Borrowers shall pay to the Administrative Agent for the account of the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

2.08    Computation of Interest and Fees.  All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the day on which such Loan is made, and shall not accrue on such Loan, or any portion thereof, for the day on which such Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(a), bear interest for one (1) day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent demonstrable error.

2.09    Evidence of Debt.

(a)        The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent demonstrable error of the amount of the Loans made by the Lenders to the Borrowers and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of demonstrable error.  Upon the request of any Lender made through the Administrative Agent, the Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

(b)        In addition to the accounts and records referred to in subsection (a) above, each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Swing Line Loans.  In the event of any conflict between the accounts and records maintained by the

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Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

2.10    Payments Generally; Administrative Agent’s Clawback.

(a)        General.  All payments to be made by the Borrowers shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.  The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by a Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

(i)         Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Revolving Credit Borrowing of Eurodollar Rate Loans (or, in the case of any Revolving Credit Borrowing of Base Rate Loans or Eurodollar Loans that bear interest based on clause (b)(ii) of the definition of Eurodollar Rate, prior to 12:00 noon on the date of such Revolving Credit Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Revolving Credit Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Revolving Credit Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02)  and may, in reliance upon such assumption, make available to the Borrowers a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Revolving Credit Borrowing available to the Administrative Agent, then the applicable Lender and the Borrowers jointly and severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrowers to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowers, the interest rate applicable to Base Rate Loans.  If the Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrowers the amount of such interest paid by the Borrowers for such period.  If such Lender pays its share of the applicable Revolving Credit Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Revolving

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Credit Loan included in such Revolving Credit Borrowing.  Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have against a Lender that shall have failed to make such payment to the Administrative Agent.

(ii)       Payments by the Borrowers; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have received notice from the Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due.  In such event, if the Borrowers have not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

A notice of the Administrative Agent to any Lender or the Borrowers with respect to any amount owing under this subsection (a) shall be conclusive, absent demonstrable error.

(b)        Failure to Satisfy Conditions Precedent.  If any Lender makes available to the Administrative Agent funds for any Revolving Credit Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrowers by the Administrative Agent because the conditions to the Revolving Credit Loans set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(c)        Obligations of Lenders Several.  The obligations of the Lenders hereunder to make Revolving Credit Loans, to fund participations in Swing Line Loans and to make payments pursuant to Section 11.04(c) are several and not joint.  The failure of any Lender to make any Revolving Credit Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Revolving Credit Loan, to purchase its participation or to make its payment under Section 11.04(c).

(d)        Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain the funds for its Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for its Loan in any particular place or manner.

2.11    Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on the Revolving Credit Loans made by it, or the participations in Swing Line Loans held by it, resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Revolving Credit Loans or participations and accrued interest thereon greater than its pro rata

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share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Revolving Credit Loans and subparticipations in Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Loans and other amounts owing them, provided that:

(i)         if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii)       the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Loans or subparticipations in Swing Line Loans to any assignee or participant, other than an assignment to a Borrower or any Affiliate thereof (as to which the provisions of this Section shall apply).

Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.

2.12    Extensions of Maturity Date.

(a)        Extension of Initial Maturity Date.

(i)         Request for Extension of Initial Maturity Date.  The Borrowers may, by written notice to the Administrative Agent not earlier than 240 days and not later than 30 days prior to the Initial Maturity Date (such notice, a “First Extension Request”), extend the Maturity Date for an additional 364 days beyond the Initial Maturity Date (the “First Extended Maturity Date”).The Administrative Agent shall make available any such First Extension Request to the Lenders promptly following its receipt thereof.

(ii)       Conditions Precedent to Effectiveness of Initial Maturity Date Extension.  As conditions precedent to the effectiveness of an extension of the Initial Maturity Date to the First Extended Maturity Date, each of the following requirements shall be satisfied:

(A)       The Administrative Agent shall have received a First Extension Request within the period required under subsection (a)(i) above;

(B)       On the date of such First Extension Request and both immediately before and immediately after giving effect to such extension of the Initial

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Maturity Date, no Default or Event of Default shall have occurred and be continuing;

(C)       The Borrowers shall have paid to the Administrative Agent, for the pro rata benefit of each Lender, an extension fee in an amount equal to *** of the aggregate amount of the Commitments of the Lenders being extended pursuant to such First Extension Request, it being agreed that such fee shall be fully earned when paid and shall not be refundable for any reason;

(D)       The Administrative Agent shall have received a certificate of each Loan Party dated as of the effective date of such Maturity Date extension signed by a Responsible Officer of such Loan Party certifying that, before and after giving effect to such extension, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of such date, except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, (y) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such date after giving effect to such qualification and (z) for purposes of this Section 2.12(a), the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists;

(E)       The Borrowers shall have delivered to the Administrative Agent a Solvency Certificate executed on behalf of each of the Loan Parties (with respect to the Solvency of each such Loan Party both before and after giving effect to such extension); and

(F)       The Borrowers and the other Loan Parties shall have delivered to the Administrative Agent such reaffirmations of their respective obligations under the Loan Documents (after giving effect to the extension), and acknowledgments and certifications that they have no claims, offsets or defenses with respect to the payment or performance of any of the Obligations, including, without limitation, reaffirmations of each of the Pledge Agreement, the Security Agreement and Guaranty, executed by the Loan Parties party thereto.

(b)        Extension of First Extended Maturity Date.

(i)         Request for Extension of First Extended Maturity DateThe Borrowers may by written notice to the Administrative Agent not earlier than 240 days and not later than 30 days prior to the First Extended Maturity Date (such notice, a “Second Extension Request”), request that the Lenders extend the Maturity Date to the 364th day following the First Extended Maturity Date (the “Second Extended Maturity Date”).  The Administrative Agent shall distribute any such Second Extension Request to the Lenders promptly following its receipt thereof.

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(ii)       Lender Elections to Extend the Maturity Date.  Each Lender shall notify the Administrative Agent on or prior to the fifteenth (15th) day after the date of the Administrative Agent’s receipt of a Second Extension Request as to whether or not such Lender desires to extend its Commitment in accordance with such Second Extension Request and, if such Lender desires to extend only a portion of its Commitment, the amount of such portion that it desires to extend (but in no event shall any partial extension of a Commitment be in an amount less than $5,000,000).  Any Lender not responding within such time period shall be deemed to have declined to extend the First Extended Maturity Date of its Commitment (each such non-responding Lender, together with any Lender who has responded to a Second Extension Request by declining to have the First Extended Maturity Date of any of its Commitment extended, being referred to herein as a “Declining Lender”).

(iii)      Notification by Administrative Agent; Additional Lenders.

(A)       The Administrative Agent shall notify the Borrowers of the Lenders’ responses to a Second Extension Request made hereunder.  If the Required Lenders have consented to the requested extension of the First Extended Maturity Date with respect to all or a portion of their respective Commitments (and in any event in respect of at least $25,000,000 in the aggregate of Commitments) pursuant to such Second Extension Request (such Required Lender consent being referred to herein as an “Approved Extension”), then (i) subject to the satisfaction of the conditions precedent to such extension set forth in Section 2.12(b)(iv), the extension of the First Extended Maturity Date of the Commitments (or portions thereof) of those Lenders who have consented in whole or in part to such extension (each such Lender, an “Approving Lender”) shall become effective with respect to such Commitments (or portions thereof), (ii) the Maturity Date of the Commitments of each Declining Lender shall be the First Extended Maturity Date and all Obligations owing to each Declining Lender shall be due and payable on the First Extended Maturity Date and (iii) the portion, if any, of the Commitment of each Approving Lender that such Approving Lender has requested not be extended shall terminate on the First Extended Maturity Date, and the amount of all Revolving Credit Loans owing such Approving Lender on the First Extended Maturity Date in excess of the amount of its reduced Commitment (giving effect to the First Extended Maturity Date) shall be due and payable to such Approving Lender on the First Extended Maturity Date.  If the Required Lenders have not consented to the requested extension of the First Extended Maturity Date with respect to all or a portion of their respective Commitments, then (i) the First Extended Maturity Date shall not be extended for any Commitment hereunder (including with respect to the Commitments of the Approving Lenders) and (ii) the Maturity Date of the Commitments of all Lenders (including Approving Lenders) shall be the First Extended Maturity Date and all Obligations owing to each Lender shall be due and payable on the First Extended Maturity Date.

(B)       If, with respect to any Second Extension Request, an Approved Extension occurs but there are (x) one or more Declining Lenders with respect to

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such Second Extension Request and/or (y) one or more Approving Lenders who have only consented to have a portion of their Commitments extended (any such Approving Lender, a “Partial Approving Lender”), the Borrowers may (A) in accordance with Section 11.13, replace any such Declining Lender with one or more Approving Lenders and/or Eligible Assignees (which Eligible Assignee(s) shall be deemed “Approving Lenders” for purposes of Section 2.12(b)) that are willing to have the full amount of their respective Commitments (after giving effect to any assignment to such Approving Lender(s) and/or Eligible Assignee(s) of the Commitment of such Declining Lender) extended to the Second Extended Maturity Date and (B) request in writing that any Partial Approving Lender assign (and following its receipt of such written request, such Partial Approving Lender shall assign), pursuant to an Assignment and Assumption, the portion of its Commitment not being extended to one or more Approving Lenders and/or Eligible Assignees (which Eligible Assignee(s) shall be deemed “Approving Lenders” for purposes of Section 2.12(b)) that are willing to have the full amount of their respective Commitments (after giving effect to any assignment to such Approving Lender(s) and/or Eligible Assignee(s) of such portion of the Commitment of such Partial Approving Lender) extended to the Second Extended Maturity Date.

(iv)       Conditions Precedent to Effectiveness of First Extended Maturity Date Extension.  As conditions precedent to the effectiveness of an extension of the First Extended Maturity Date to the Second Extended Maturity Date, each of the following requirements shall be satisfied:

(A)       The Administrative Agent shall have received a Second Extension Request within the period required under subsection (b)(i) above;

(B)       The Required Lenders (determined based on the Commitments held by the Lenders at the time such Second Extension Request is submitted to the Administrative Agent, but giving effect to any contemplated assignments pursuant to Section 2.12(b)(iii)(B)) shall have consented to the requested extension of the First Extended Maturity Date with respect to all or a portion of their respective Commitments pursuant to such Second Extension Request (and in any event in respect of at least $25,000,000 in the aggregate of Commitments);

(C)       On the date of such Second Extension Request and both immediately before and immediately after giving effect to such extension of the First Extended Maturity Date, no Default or Event of Default shall have occurred and be continuing;

(D)       The Borrowers shall have paid to the Administrative Agent, for the pro rata benefit of each Approving Lender, an extension fee in an amount equal to *** of the aggregate amount of the Commitments of the Approving Lenders being extended pursuant to such Second Extension Request, it being agreed that such fee shall be fully earned when paid and shall not be refundable for any reason;

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(E)       The Administrative Agent shall have received a certificate of each Loan Party dated as of the effective date of such First Extended Maturity Date extension signed by a Responsible Officer of such Loan Party certifying that, before and after giving effect to such extension, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of such date, except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, (y) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such date after giving effect to such qualification and (z) for purposes of this Section 2.12(b), the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists;

(F)       The Borrowers shall have delivered to the Administrative Agent a Solvency Certificate executed on behalf of each of the Loan Parties (with respect to the Solvency of each such Loan Party both before and after giving effect to such extension); and

(G)       The Borrowers and the other Loan Parties shall have delivered to the Administrative Agent such reaffirmations of their respective obligations under the Loan Documents (after giving effect to the extension), and acknowledgments and certifications that they have no claims, offsets or defenses with respect to the payment or performance of any of the Obligations, including, without limitation, reaffirmations of each of the Pledge Agreement, the Security Agreement and Guaranty, executed by the Loan Parties party thereto.

(v)        Settlement.      In the event that not all of the Commitments are extended (or replaced) in connection with an Approved Extension, the Administrative Agent will effect a settlement on the First Extended Maturity Date of all outstanding Revolving Credit Loans among the Lenders to cause the Revolving Credit Loans to be held on a pro rata basis by the Approving Lenders in accordance with their Applicable Percentages (after giving effect to such Approved Extension).

2.13    Defaulting Lenders.

(a)        Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

(i)         Waivers and Amendments.  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definitions of “Majority Lenders” and “Required Lenders” and in Section 11.01.

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(ii)       Defaulting Lender Waterfall.  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise), or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08, shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second,  to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Revolving Credit Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement;  fifth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; sixth,  so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lenders breach of its obligations under this Agreement; and seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans and funded and unfunded participations in Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.13(a)(iv)Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii)      Certain Fees.  No Defaulting Lender shall be entitled to receive any Unused Fee payable under Section 2.07(a) for any period during which such Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(iv)       Reallocation of Applicable Percentages to Reduce Fronting Exposure.  All or any part of such Defaulting Lender’s participation in Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment.  Subject to Section 11.24, no reallocation hereunder

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shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v)        Repayment of Swing Line Loans.  If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, prepay Swing Line Loans in an amount equal to the Swing Line Lender’s Fronting Exposure.

(b)        Defaulting Lender CureIf the Borrowers, the Administrative Agent and the Swing Line Lender agree in writing that a Lender shall no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Loans and funded and unfunded participations in Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.13(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided,  further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

2.14    Loan Asset Eligibility Criteria; Sales and other Removals of Loan Assets and Properties Included in the Borrowing Base Amount.

(a)        Requirements for Loan Assets to be Included in the Borrowing Base Amount.  Prior to any Loan Asset being included in the calculation of the Borrowing Base Amount, each of the following requirements shall have been satisfied with respect to such Loan Asset (such requirements being referred to herein as the “Loan Asset Eligibility Criteria”):

(i)         The Borrowers shall have provided the Administrative Agent with a written request for such Loan Asset to be included in calculation of the Borrowing Base Amount at least two (2) Business Days (or such shorter period of time as agreed to by the Administrative Agent in writing) prior to its inclusion, which request shall be accompanied by a draft of a credit memorandum regarding such Loan Asset, in form reasonably satisfactory to the Administrative Agent (it being agreed that the form attached as Exhibit K hereto is satisfactory to the Administrative Agent).

(ii)       Such Loan Asset shall be owned exclusively by a Borrower.

(iii)      The Parent shall have delivered to the Administrative Agent a certificate, executed by a Responsible Officer of the Parent (an “Loan Asset Designation Certificate”), certifying to the Administrative Agent and the Lenders that either (x) the

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Parent believes in its reasonable, good faith judgment that such Loan Asset satisfies all criteria necessary for such Loan Asset to be an “eligible asset” (or similar term) under at least one Warehouse Line (any such Loan Asset, a “Warehouse Asset”) or (y) (A) such Loan Asset is not a Warehouse Asset, (B) the Loan-to-Value Ratio of such Loan Asset (a reasonably detailed calculation of which shall be included in such Loan Asset Designation Certificate) does not exceed (1) in the case of an Loan Asset that is secured by one or more apartment/multi-family properties, eighty percent (80%) and (2) in the case of any other Loan Asset, seventy-five percent (75%) and (C) the Requisite Sale/Syndication Efforts are being made with respect to such Loan Asset (any such Loan Asset satisfying all of the criteria of this subclause (y), a “Non-Warehouse Asset”).

(iv)       (x) Such Loan Asset shall be secured by a first mortgage on a Property (provided that this clause (x) shall not apply with respect to any mezzanine loan comprising such Loan Asset so long as the related commercial mortgage loan is secured by a first mortgage on a Property), (y) unless an Approved Appraisal with respect to the Property that secures such Loan Asset has been delivered to the Administrative Agent pursuant to the following clause (z), shall be the subject of a draft appraisal delivered to the Administrative Agent which draft, if issued, would constitute an Approved Appraisal and (z) the Property that secures such Loan Asset shall, within forty five (45) days after the inclusion of such Loan Asset in the calculation of the Borrowing Base Amount, be the subject of an Approved Appraisal delivered to the Administrative Agent.

(v)        Such Loan Asset shall be free and clear of all Liens and of all negative pledges or other restrictions on the ability of the Borrower that owns such Loan Asset to transfer or encumber such Loan Asset (other than notices that may be required under the documentation governing such Loan Asset and other than Permitted Collateral Liens)).

(vi)       Such Loan Asset shall be denominated in U.S. dollars and the Property securing such Loan Asset shall be located in the continental United States.

(vii)     The Administrative Agent shall have received a Borrowing Base Certificate presenting the Borrowers’ computation of the Borrowing Base Amount after giving effect to the inclusion of such Loan Asset in the calculation of the Borrowing Base Amount.

(b)        Removal of Loan Assets from the Borrowing Base Amount for Failure to Satisfy Loan Asset Eligibility Criteria or Failure to Deliver a Final Credit Memorandum; Removal of Properties from the Borrowing Base Amount for Failure to Satisfy Eligible Property Asset Criteria.

(i)         If at any time any Loan Asset included in the calculation of the Borrowing Base Amount no longer satisfies any of the Loan Asset Eligibility Criteria set forth in Section 2.14(a)(ii) through (vi) (including (A) in the case of a Warehouse Asset, the failure of such Warehouse Asset to satisfy any of the criteria set forth in Section 2.14(a)(iii)(x), (B) in the case of a Non-Warehouse Asset, the failure of such Non-Warehouse Asset to satisfy any of the criteria set forth in Section 2.14(a)(iii)(y) and (C) the failure of an Approved Appraisal to be delivered to the Administrative Agent with

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respect to the Property securing such Loan Asset within the time period specified in Section 2.14(a)(iv)(z)), then (x) such Loan Asset shall be automatically removed from the Borrowing Base Amount and (y) the Parent shall, within two (2) Business Days after becoming aware that such Loan Asset no longer satisfies any such Loan Asset Eligibility Criteria, provide the Administrative Agent and the Lenders with written notice thereof, together with a Borrowing Base Certificate setting forth the calculation of the Borrowing Base Amount (giving effect to the removal of such Loan Asset from the Borrowing Base Amount).  If, after giving effect to any such removal of the applicable Loan Asset from the calculation of the Borrowing Base Amount, any mandatory prepayment of Revolving Credit Loans is required under Section 2.03(b), the Borrowers shall make such mandatory prepayment in accordance with the terms of Section 2.03(b).

(ii)       If, within ten (10) Business Days after any Eligible Loan Asset is first included in the calculation of the Borrowing Base Amount (or such longer period of time as agreed to by the Administrative Agent in its sole discretion), the Borrowers have failed to provide the Administrative Agent with a final credit memorandum regarding such Eligible Loan Asset in a form substantially similar to the draft credit memorandum provided to the Administrative Agent with respect to such Eligible Loan Asset pursuant to Section 2.14(a)(i), such Eligible Loan Asset shall be removed from the calculation of the Borrowing Base Amount until such time as such final credit memorandum is delivered to the Administrative Agent.  If such Eligible Loan Asset is removed from the calculation of the Borrowing Base Amount pursuant to the prior sentence, the Borrowers shall promptly (and in any event within two (2) Business Days after its removal) deliver an updated Borrowing Base Certificate to the Administrative Agent setting forth the calculation of the Borrowing Base Amount (after giving effect to the removal of such Loan Asset from the calculation of the Borrowing Base Amount).  If, after giving effect to the removal of such Eligible Loan Asset from the calculation of the Borrowing Base Amount, any mandatory prepayment of Revolving Credit Loans is required under Section 2.03(b), the Borrowers shall make such mandatory prepayment in accordance with the terms of Section 2.03(b).

(iii)      If at any time any Property included in the calculation of the Borrowing Base Amount no longer satisfies any of the Eligible Property Asset Criteria (other than clause (l) and (m) thereof) (including the failure of an Approved Appraisal to be delivered to the Administrative Agent with respect to such Property within the time period specified in clause (k) of the definition of Eligible Property Asset), then (x) such Property shall be automatically removed from the Borrowing Base Amount and (y) the Parent shall, within two (2) Business Days after becoming aware that such Property no longer satisfies any Eligible Property Asset Criteria, provide the Administrative Agent and the Lenders with written notice thereof, together with a Borrowing Base Certificate setting forth the calculation of the Borrowing Base Amount (giving effect to the removal of such Property from the Borrowing Base Amount).  If, after giving effect to any such removal of the applicable Property from the calculation of the Borrowing Base Amount, any mandatory prepayment of Loans is required under Section 2.03(b), the Borrowers shall make such mandatory prepayment in accordance with the terms of Section 2.03(b).

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(c)        Releases and Removals of Eligible Assets Included in the Calculation of Borrowing Base Amount.  Except as set forth in Section 2.14(b), Eligible Assets may be removed from the calculation of the Borrowing Base Amount and/or released from the Collateral only in accordance with Section 11.23.

2.15    Increase in Commitments.

(a)        Request for Increase.  Provided that no Default shall have occurred and is then continuing, upon written notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to time, request an increase in the Aggregate Commitments to an amount not exceeding $650,000,000 in the aggregate after giving effect to such increase; provided that any such request for an increase shall be in a minimum amount of $25,000,000 (or such lesser amount as the Borrowers and the Administrative Agent shall agree).  At the time of sending such notice, the Borrowers (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the Lenders).

(b)        Lender Elections to Increase.  Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase.  Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.

(c)        Notification by Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the Borrowers and each Lender of the Lenders’ responses to each request made by the Borrowers under this Section.  To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) and the Swing Line Lender, the Borrowers may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (a “New Lender Joinder Agreement”).

(d)        Effective Date and Allocations.  If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Lenders of the final allocation of such increase and the Increase Effective Date.  The Administrative Agent is authorized and directed to amend and distribute to the Lenders, including any party becoming a Lender on the Increase Effective Date, a revised Schedule 2.01 that gives effect to the increase and the allocation among the Lenders.

(e)        Conditions to Effectiveness of Increase.  As conditions precedent to each such increase, (i) the Borrowers shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (x) (1) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase or (2) certifying that, as of such

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Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Restatement Effective Date (if such resolutions include approval to increase the Aggregate Commitments to an amount at least equal to $650,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption, and (y) in the case of the Borrowers, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of such Increase Effective Date, except to the extent that (1) such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default shall have occurred and is then continuing, (ii) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrowers and each Eligible Assignee that is becoming a Lender in connection with such increase, which New Lender Joinder Agreement shall (in order to be effective) be acknowledged and consented to in writing by the Administrative Agent and the Swing Line Lender and (y) written confirmation from each existing Lender, if any, participating in such increase of the amount by which its Commitment will be increased, which confirmation shall (in order to be effective) be acknowledged and consented to in writing by the Swing Line Lender and (iii) the Borrowers shall have paid to the Arranger any fee required to be paid by the Borrowers as agreed to in writing by the Arranger and the Borrowers in connection therewith.

(f)        Settlement ProceduresOn each Increase Effective Date, promptly following fulfillment of the conditions set forth in clause (e) of this Section 2.15, the Administrative Agent shall notify the Lenders of the occurrence of the increase of the Aggregate Commitments effected on such Increase Effective Date and the amount of the Commitment and Applicable Percentage of each Lender as a result thereof.  In the event that the increase in the Aggregate Commitments results in any change to the Applicable Percentage of any Lender, then on the Increase Effective Date (i) the participation interests of the Lenders in any outstanding Swing Line Loans shall be automatically reallocated among the Lenders in accordance with their respective Applicable Percentages after giving effect to such increase, (ii) any new Lender, and any existing Lender whose Commitment has increased, shall pay to the Administrative Agent such amounts as are necessary to fund its new or increased Applicable Percentage of all existing Revolving Credit Loans, (iii) the Administrative Agent will use the proceeds thereof to pay to all existing Lenders whose Applicable Percentage is decreasing such amounts as are necessary so that each Lender’s participation in existing Revolving Credit Loans will be equal to its adjusted Applicable Percentage, and (iv) if the Increase Effective Date occurs on a date other than the last day of an Interest Period applicable to any outstanding Revolving Credit Loan that is a Eurodollar Rate Loan, then the Borrowers shall pay any amounts required pursuant to Section 3.05 on account of the payments made pursuant to clause (iii) of this sentence.

(g)        Conflicting Provisions.  This Section shall supersede any provisions in Section 2.11 or 11.01 to the contrary.

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2.16    Swing Line Loans.

(a)        The Swing Line.  Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.16, may in its sole discretion make loans (each such loan, a “Swing Line Loan”) to the Borrowers from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Credit Loans of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided,  however, that (x) after giving effect to any Swing Line Borrowing, (i) the Total Outstandings shall not exceed the lesser of (A) the Borrowing Base Amount at such time and (B) the Aggregate Commitments at such time, and (ii) the Revolving Credit Exposure of any Lender (other than the Lender acting as Swing Line Lender to the extent such excess results solely by virtue of outstanding Swing Line Loans) shall not exceed such Lender’s Commitment, (y) the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (z) without limiting the absolute discretion of the Swing Line Lender to make or decline to make Swing Line Loans, the Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Swing Line Loan may have, Fronting Exposure.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.16, prepay under Section 2.03, and reborrow under this Section 2.16.  Each Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.

(b)        Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrowers’ irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing Line Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice.  Each such Swing Line Loan Notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day.  Promptly after receipt by the Swing Line Lender of any Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.16(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrowers.

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(c)        Refinancing of Swing Line Loans.

(i)         The Swing Line Lender at any time in its sole discretion may request, on behalf of the Borrowers (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Revolving Credit Loan as a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02(a) and (b).  The Swing Line Lender shall furnish the Borrowers with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.16(c)(ii), each Lender that so makes funds available shall be deemed to have made a Revolving Credit Loan as a Base Rate Loan to the Borrowers in such amount.  The Administrative Agent shall remit the funds so received to the Swing Line Lender.

(ii)       If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Loan in accordance with Section 2.16(c)(i), the request for Revolving Credit Loan submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.16(c)(i) shall be deemed payment in respect of such participation.

(iii)      If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.16(c) by the time specified in Section 2.16(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Revolving Credit Borrowing or funded participation in the relevant Swing Line Loan, as the case may be.  A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

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(iv)       Each Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.16(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrowers or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided,  however, that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.16(c) (but not its obligation to purchase and fund risk participations in Swing Line Loans) is subject to the conditions set forth in Section 4.02.  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swing Line Loans, together with interest as provided herein.

(d)        Repayment of Participations.

(i)         At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.

(ii)       If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent will make such demand upon the request of the Swing Line Lender.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

(e)        Interest for Account of Swing Line Lender.  The Swing Line Lender shall be responsible for invoicing the Borrowers for interest on the Swing Line Loans.  Until each Lender funds its Revolving Credit Loan or risk participation pursuant to this Section 2.16 to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.

(f)        Payments Directly to Swing Line Lender.  The Borrowers shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

ARTICLE III.  TAXES, YIELD PROTECTION AND ILLEGALITY

3.01    Taxes.

(a)        Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.  (i)       Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as

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required by applicable Laws.  If any applicable Laws (as determined in the good faith discretion of the Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party, then the Administrative Agent or such Loan Party shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below unless the Administrative Agent or such Loan Party has actual knowledge that any such information or documentation is incorrect.

(ii)       If any Loan Party or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent (or, in the case of a Swing Line Loan, such Loan Party) shall withhold or make such deductions as are determined by such Loan Party or the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e) below unless the Administrative Agent or such Loan Party has actual knowledge that any such information or documentation is incorrect, (B) the Administrative Agent (or, in the case of a Swing Line Loan, such Loan Party) shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(b)        Payment of Other Taxes by the Loan Parties.  Without limiting the provisions of subsection (a) above, each Loan Party shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c)        Tax Indemnifications.  (i)       Each Loan Party shall, and does hereby, jointly and severally, indemnify each Recipient, and shall make payment in respect thereof within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrowers by a Lender or (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent demonstrable error.  Each Loan Party shall, and does hereby, jointly and severally, indemnify the Administrative Agent, and shall make payment in respect thereof within ten (10) days after demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to Section 3.01(c)(ii) below.

(ii)       Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within ten (10) days after demand therefor, (x) the

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Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (y) the Administrative Agent and the Loan Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register and (z) the Administrative Agent and the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent or a Loan Party in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent or a Loan Party shall be conclusive absent demonstrable error.  Each Lender hereby authorizes the Administrative Agent and each Loan Party to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent or a Loan Party under this clause (ii).

(iii)      For purposes of determining withholding Taxes imposed under FATCA, the Borrowers and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Obligations as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

(d)        Evidence of Payments.  As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.01, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e)        Status of Lenders; Tax Documentation.

(i)         Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A),  (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such

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Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.  Unless the applicable withholding agent has received forms or other documents reasonably satisfactory to it indicating that payments under any Loan Document to or for a Lender are not subject to withholding tax or are subject to such Tax at a rate reduced by an applicable tax treat, the Borrowers, the other Loan Parties, Administrative Agent or other applicable withholding agent shall withhold amounts required to be withheld by applicable Law from such payments at the applicable statutory rate.

(ii)       Without limiting the generality of the foregoing:

(A)       any Lender that is a U.S. Person shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B)       any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:

(i)         in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed  copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii)       executed copies of IRS Form W-8ECI;

(iii)      in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrowers within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed  copies of IRS Form W-8BEN-E (or W-8BEN, as applicable); or

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(iv)       to the extent a Foreign Lender is not the beneficial owner, executed  copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;

(C)       any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed  copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and

(D)       if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(iii)      Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.

(f)        Treatment of Certain Refunds.  Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender.  If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has

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been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that such Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to such Loan Party pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other Person.

(g)        Survival.  Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.

(h)        Payments made by Administrative Agent.  For the avoidance of doubt, any payments made by the Administrative Agent to any Lender shall be treated as payments made by the applicable Loan Party.

(i)         Lender treated as Partnership.  If any Lender is treated as partnership for purposes of an applicable Indemnified Tax or Other Tax, any withholding made by such Lender shall be treated as if such withholding had been made by the applicable Loan Party or the Administrative Agent.

3.02    Illegality.  If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to perform any of its obligations hereunder or make, maintain or fund or charge interest with respect to any Loan or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, (i) any obligation of such Lender  to issue, make, maintain, fund or charge interest with respect to any such Loan or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the

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Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal  for such Lender to determine or charge interest rates based upon the Eurodollar Rate.  Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.

3.03        Inability to Determine Rates.  (a)(i) If in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof,  (A)  the Administrative Agent determines that (1) Dollar deposits are not being offered to banks in the London interbank market for the applicable amount and Interest Period of such Eurodollar Rate Loan, or (2) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each case with respect to clause (A)(1) above, “Impacted Loans”), or (B) the Administrative Agent or affected Lenders determine that for any reason  the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Rate Loan, the Administrative Agent will promptly so notify the Borrowers and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended, (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent upon the instruction of the affected Lenders revokes such notice.  Upon receipt of such notice, the Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

Notwithstanding the foregoing, if the Administrative Agent has made the determination described in clause (A)(1) of this section, the Administrative Agent, in consultation with the Borrowers and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (I) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a) of the first sentence of this section, (II) the Administrative Agent or the affected Lenders notify the Administrative Agent and the Borrowers that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (III) any Lender determines that any Law has made it unlawful, or that

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any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrowers written notice thereof.

(b)        Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if Administrative Agent determines (which determination shall be conclusive absent manifest error), or any of the Borrowers or Majority Lenders notify Administrative Agent (with, in the case of the Majority Lenders, a copy to the Borrowers) that the Borrowers or Majority Lenders (as applicable) have determined, that:

(i)         adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period, including, without limitation, because the LIBOR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or

(ii)       the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over Administrative Agent has made a public statement identifying a specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”), or

(iii)      syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,

then, reasonably promptly after such determination by Administrative Agent or receipt by Administrative Agent of such notice, as applicable, Administrative Agent and the Borrowers may amend this Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. Dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a “LIBOR Successor Rate”), together with any proposed LIBOR Successor Rate Conforming Changes and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth (5th) Business Day after Administrative Agent shall have posted such proposed amendment to all Lenders and Borrowers unless, prior to such time, Lenders comprising the Majority Lenders have delivered to Administrative Agent written notice that such Majority Lenders do not accept such amendment.

If no LIBOR Successor Rate has been determined and the circumstances under clause (i) above exist or the Scheduled Unavailability Date has occurred (as applicable), Administrative Agent will promptly so notify the Borrowers and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain LIBOR Daily Floating Rate Loans or Eurodollar Rate Loans shall be suspended (to the extent of the affected LIBOR Daily Floating Rate Loans, Eurodollar Rate Loans or Interest Periods) and (y) the Eurodollar Rate component shall no longer be utilized in determining the Base Rate.  Upon receipt of such notice, the Borrowers may revoke any

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pending request for a Borrowing of, conversion to or continuation of LIBOR Daily Floating Rate Loans or Eurodollar Rate Loans (to the extent of the affected LIBOR Daily Floating Rate Loans, Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.

Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.

3.04        Increased Costs; Reserves on Eurodollar Rate Loans.

(a)        Increased Costs Generally.  If any Change in Law shall:

(i)         impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e));

(ii)       subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii)      impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrowers will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered; provided, however, that Borrowers’ obligations with respect to any Taxes shall be governed solely by Section 3.01.

(b)        Capital Requirements.  If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitment of such Lender or the Loans made by, or participations in Swing Line Loans held by, such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrowers will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

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(c)        Certificates for Reimbursement.  A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrowers shall be conclusive absent manifest error.  The Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.

(d)        Delay in Requests.  Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s right to demand such compensation, provided that the Borrowers shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

(e)        Reserves on Eurodollar Rate Loans.  The Borrowers shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Eurodollar Rate Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Eurodollar Rate Loan, provided the Borrowers shall have received at least ten (10) days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender.  If a Lender fails to give notice ten (10) days prior to the relevant Interest Payment Date, such additional interest shall be due and payable ten (10) days from receipt of such notice.

3.05        Compensation for Losses.  Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

(a)        any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

(b)        any failure by the Borrowers (for a reason other than the failure of such Lender to make a Revolving Credit Loan) to prepay, borrow, continue or convert any portion of the Revolving Credit Loans (other than a Base Rate Loan) on the date or in the amount notified by the Borrowers; or

(c)        any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrowers pursuant to Section 11.13;

including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain the Revolving Credit Loans or from fees payable to terminate the deposits from

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which such funds were obtained.  The Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

For purposes of calculating amounts payable by the Borrowers to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.

3.06        Mitigation Obligations; Replacement of Lenders.

(a)        Designation of a Different Lending Office.  Each Lender may make any Loan to the Borrowers through any Lending Office, provided that the exercise of this option shall not affect the obligation of the Borrowers to repay the Loan in accordance with the terms of this Agreement. If any Lender requests compensation under Section 3.04, or requires the Borrowers to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at the request of the Borrowers such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)        Replacement of Lenders.  If any Lender requests compensation under Section 3.04, or if the Borrowers are required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrowers may replace such Lender in accordance with Section 11.13.

3.07        Survival.  All of the Borrowers’ obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all Obligations hereunder, and resignation of the Administrative Agent.

ARTICLE IV.  CONDITIONS PRECEDENT

4.01        Conditions of Effectiveness.  This Third Amended and Restated Credit Agreement shall become effective on and as of the first date (the “Restatement Effective Date”) on which all of the following conditions precedent shall have been satisfied or waived in accordance with Section 11.01:

(a)        The Administrative Agent’s receipt of the following, each of which shall be originals, .pdf copies sent via electronic mail or telecopied (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Restatement Effective Date (or, in the case of certificates of governmental

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officials, a recent date before the Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:

(i)         executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrowers;

(ii)       a Note executed by the Borrower in favor of each Lender requesting a Note;

(iii)      a Borrowing Base Certificate, as of the Restatement Effective Date;

(iv)       a certificate of each Loan Party dated as of the proposed Restatement Effective Date signed by a Responsible Officer of such Loan Party certifying that, on the Restatement Effective Date before and after giving effect to the effectiveness of this Agreement, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of such date, except (x) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date and (y) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such date after giving effect to such qualification, and (B) no Default exists; and

(v)        such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;

(vi)       such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization or formation;

(vii)     a favorable opinion of Sidley Austin LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;

(viii)    a favorable opinion of Morrison & Foerster LLP, Maryland counsel to the Parent, addressed to the Administrative Agent and each Lender, as to such matters concerning the Parent and the Loan Documents to which the Parent is a party as the Administrative Agent may reasonably request;

(ix)       a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and

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approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;

(x)        certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party (other than Parent) as debtor and that are filed in those state and county jurisdictions in which any Loan Party (other than Parent) is organized or maintains its principal place of business and such other searches, if any, that the Administrative Agent reasonably deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted to exist pursuant to the terms hereof);

(xi)       [intentionally omitted];

(xii)     [intentionally omitted];

(xiii)    the Administrative Agent shall have received such other agreements and documents, and evidence that all other actions, recordings and filings have been taken, in each case that the Administrative Agent may reasonably deem necessary or desirable in order to create or perfect the Liens created under the Collateral Documents (including all actions the delivery of the certificates representing any Equity Interests in any Person that have been pledged pursuant to the Pledge Agreement (together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests);

(xiv)     the absence of any action, suit, investigation or proceeding, pending or threatened, in any court or before any arbitrator or Governmental Authority that purports to materially affect any of the Borrowers, the Guarantors or any of their respective Subsidiaries, or any transaction contemplated hereby, or that could have a material adverse effect on any of the Borrowers or the Guarantors, or any of their respective Subsidiaries, or any transaction contemplated hereby or on the ability of any of the Borrowers or the Guarantors to perform its obligations under the Loan Documents; and

(xv)      a Solvency Certificate from the Loan Parties demonstrating that each Loan Party is Solvent.

(b)        At least five (5) Business Days prior to the Restatement Effective Date, the Administrative Agent and each Lender, as applicable, shall have received documentation and other information with respect to each of the Loan Parties which is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act reasonably requested by the Administrative Agent or such Lender at least ten (10) Business Days prior to the Restatement Effective Date.

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(c)        Any fees required to be paid on or before the Restatement Effective Date shall have been paid.

(d)        Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Restatement Effective Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).

Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01 each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Restatement Effective Date specifying its objection thereto.

4.02        Conditions to all Revolving Credit Loans.  The obligation of each Lender to honor any Request for Credit Extension is subject to the following conditions precedent:

(a)        The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Revolving Credit Loan, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (ii) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such date after giving effect to such qualification and (iii) for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.

(b)        No Default shall exist, or would result from such proposed Loan or from the application of the proceeds thereof.

(c)        The Administrative Agent and, in the case of a Swing Line Borrowing, the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.

(d)        The Administrative Agent shall have received a Borrowing Base Certificate from the Borrowers with the information set forth therein being as of the date of such requested Borrowing.

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(e)        After giving effect to the proposed Loan, the Total Outstandings shall not exceed the lesser of (i) the Borrowing Base Amount at such time and (ii) the Aggregate Commitments at such time.

Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Revolving Credit Loans to the other Type or a continuation of Eurodollar Rate Loans or a Committed Loan Notice delivered by the Swing Line Lender pursuant to Section 2.16(c)(i)) submitted by the Borrowers shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a),  (b) and (e) have been satisfied on and as of the