Exhibit 10.1
Execution Version
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), with an effective date of July 11, 2023 (the “Effective Date”), is entered into by and among GREYSTONE HOUSING IMPACT INVESTORS LP, a Delaware limited partnership (“Borrower”), the Lenders signatory hereto, and BANKUNITED, N.A., a national banking association, as administrative agent for the Lenders (together with its successors and assigns in such capacity and any replacement administrative agent, "Administrative Agent").
WHEREAS, Borrower (f/k/a AMERICA FIRST MULTIFAMILY INVESTORS, L.P.), Administrative Agent, and Lenders entered into that certain Credit Agreement dated as of June 11, 2021, as amended by that certain First Amendment to Credit Agreement dated as of November 30, 2021, as further amended by that certain Second Amendment to Credit Agreement dated as of June 9, 2023 (as further amended hereby and as may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
WHEREAS, Borrower has requested, and Administrative Agent and Lenders have agreed to amend the terms and conditions of the Credit Agreement, pursuant to Section 10.15 of the Credit Agreement, as set forth in this Amendment. Except as expressly modified hereby, the terms of the Credit Agreement remain in full force and effect.
NOW, THEREFORE, in consideration of the foregoing premises, and promises and mutual agreements herein contained and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
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REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written.
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BORROWER: |
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GREYSTONE HOUSING IMPACT INVESTORS LP |
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By: |
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America First Capital Associates Limited Partnership Two, its general partner |
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By: |
Greystone AF Manager LLC, its general partner |
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By: |
/s/ Curtis Pollock |
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Name: |
Curtis Pollock |
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Title: |
Vice President |
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ADMINISTRATIVE AGENT AND LENDER: |
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BANKUNITED, N.A. |
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By: |
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/s/ Adrienne Horkley |
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Name: |
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Adrienne Horkley |
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Title: |
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Vice President |
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LENDER: |
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BANKERS TRUST COMPANY |
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By: |
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/s/ Scott Leighton |
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Name: |
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Scott Leighton |
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Title: |
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Senior Vice President |
Signature Page to Third Amendment to Credit Agreement
MORTGAGOR AND GUARANTOR ACKNOWLEDGEMENT
In consideration of Administrative Agent’s and Lenders’ agreement to enter into this Third Amendment to Credit Agreement, which will be of material economic benefit to the undersigned, the undersigned consents to the within Third Amendment to Credit Agreement and agrees to comply with the terms and provisions thereof, confirms that its Mortgage or Guaranty, as applicable, is and shall remain in full force and effect, and that neither this Third Amendment to Credit Agreement nor any event preceding the date hereof shall operate to diminish, release or terminate such Mortgage or Guaranty or otherwise relieve the undersigned of any obligations hereunder or under any other Loan Document.
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GUARANTOR: |
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GREYSTONE SELECT INCORPORATED, a Delaware corporation |
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By: |
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/s/ Curtis Pollock |
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Name: |
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Curtis Pollock |
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Title: |
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Vice President |
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MORTGAGOR: |
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LINDO PASEO LLC |
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By: |
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/s/ Jesse Coury |
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Name: |
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Jesse Coury |
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Title: |
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Chief Financial Officer |
Mortgagor and Guarantor Acknowledgement to Third Amendment to Credit Agreement
ANNEX A TO THIRD AMENDMENT
CREDIT AGREEMENT
GREYSTONE HOUSING IMPACT INVESTORS LP f/k/a AMERICA FIRST MULTIFAMILY INVESTORS, L.P.,
as Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
and
BANKUNITED, N.A.,
as Sole Lead Arranger and Administrative Agent
Dated as of June 11, 2021, as amended by the First Amendment to Credit Agreement dated as of November 30, 2021, as further amended by the Second Amendment to Credit Agreement dated as of June 9, 2023, as further amended by the Third Amendment to Credit Agreement dated as of July 11, 2023
TABLE OF CONTENTS
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Page |
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ARTICLE 1 DEFINITIONS AND INTERPRETATION |
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1 |
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1.1 |
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Definitions |
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1 |
1.2 |
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Accounting Terms |
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31 |
1.3 |
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Rates |
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31 |
1.4 |
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Interpretation, Etc |
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3031 |
ARTICLE 2 LOANS |
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33 |
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2.1 |
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Loans |
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33 |
2.2 |
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Borrowing Mechanics |
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33 |
2.3 |
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Proportionate Shares; Availability of Funds |
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34 |
2.4 |
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Use of Proceeds |
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35 |
2.5 |
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Evidence of Debt; Register; Lenders’ Books and Records; Note |
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35 |
2.6 |
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Interest |
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3435 |
2.7 |
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Default Interest |
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36 |
2.8 |
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Fees |
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3536 |
2.9 |
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Extension Options |
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37 |
2.10 |
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Non-Receipt of Funds by Administrative Agent |
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38 |
2.11 |
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Increases in Commitments. |
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38 |
ARTICLE 3 PAYMENT OF OBLIGATIONS |
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3840 |
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3.1 |
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Voluntary Prepayments |
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3840 |
3.2 |
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Mandatory Prepayments |
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3841 |
3.3 |
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Application of Prepayments |
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3841 |
3.4 |
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General Provisions Regarding Payments |
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3942 |
3.5 |
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Ratable Sharing |
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4043 |
3.6 |
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Increased Costs; Capital Requirements |
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4143 |
3.7 |
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Alternate Rate of Interest |
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4245 |
3.8 |
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Illegality |
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4850 |
3.9 |
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Compensation |
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4851 |
3.10 |
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Taxes; Withholding, Etc. |
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4951 |
3.11 |
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Mitigation of Obligations |
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5255 |
3.12 |
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Replacement of Lenders |
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5355 |
ARTICLE 4 CONDITIONS PRECEDENT |
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5356 |
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4.1 |
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Conditions to Initial Funding |
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5356 |
4.2 |
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Conditions to All Loans |
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5759 |
ARTICLE 5 REPRESENTATIONS AND WARRANTIES |
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5860 |
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5.1 |
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Organization; Requisite Power and Authority; Qualification; Principal Office |
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5860 |
5.2 |
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Capital Stock of Borrower; Ownership of Subsidiaries |
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5860 |
5.3 |
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Due Authorization |
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5961 |
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5.4 |
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No Conflict |
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5961 |
5.5 |
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Governmental Consents |
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5961 |
5.6 |
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Binding Obligation |
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5961 |
5.7 |
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No Material Adverse Change |
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6061 |
5.8 |
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Indebtedness |
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6062 |
5.9 |
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Adverse Proceedings, Etc. |
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6062 |
5.10 |
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Payment of Taxes |
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6062 |
5.11 |
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Title to Assets; Priority |
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6062 |
5.12 |
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No Defaults |
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6163 |
5.13 |
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Material Contracts and Encumbered Pool Documentation |
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6163 |
5.14 |
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Investment Company Act |
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6163 |
5.15 |
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Margin Stock |
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6163 |
5.16 |
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Employee Matters |
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6163 |
5.17 |
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Employee Benefit Plans |
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6163 |
5.18 |
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Brokers and Financial Advisors |
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6264 |
5.19 |
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Solvency |
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6264 |
5.20 |
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Compliance with Statutes, Etc. |
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6364 |
5.21 |
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Disclosure |
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6365 |
5.22 |
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Sanctions; Anti-Corruption Laws; Anti-Terrorism Laws; Etc. |
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6365 |
5.23 |
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Hazardous Substances |
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6466 |
5.24 |
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Environmental Report |
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6466 |
5.25 |
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Borrowing Base Certificates |
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6466 |
ARTICLE 6 AFFIRMATIVE COVENANTS |
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6467 |
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6.1 |
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Financial Statements and Other Reports |
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6467 |
6.2 |
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Existence |
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6870 |
6.3 |
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Payment of Taxes and Claims |
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6870 |
6.4 |
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Maintenance of Properties; Insurance |
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6871 |
6.5 |
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Inspections; Lender Meetings |
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6971 |
6.6 |
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Compliance with Legal Requirements |
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6971 |
6.7 |
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Compliance with Material Contracts |
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6971 |
6.8 |
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CollateralDesignated Account and Distributions from Portfolio Companies |
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6972 |
6.9 |
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Further Assurances |
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7072 |
6.10 |
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Valuations; Releases |
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7072 |
6.11 |
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Anti-Corruption Laws; Anti-Terrorism Laws; Sanctions; PATRIOT Act; Etc. |
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7173 |
ARTICLE 7 NEGATIVE COVENANTS |
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7274 |
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7.1 |
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Indebtedness |
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7274 |
7.2 |
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Liens |
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7275 |
7.3 |
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No Further Negative Pledges |
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7275 |
7.4 |
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Restricted Payments |
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7375 |
7.5 |
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Contractual Restrictions on Distributions |
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7375 |
7.6 |
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Investments |
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7476 |
7.7 |
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Transactions with Shareholders and Affiliates |
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7476 |
7.8 |
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Fundamental Changes |
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7476 |
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7.9 |
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Conduct of Business |
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7577 |
7.10 |
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Amendments to Organizational Agreements and Material Contracts |
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7577 |
7.11 |
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Calculation of Total Valuation |
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7577 |
7.12 |
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Fiscal Year; Auditor |
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7577 |
7.13 |
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Collateral |
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7577 |
7.14 |
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Sales and Leasebacks |
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7678 |
7.15 |
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Financial Covenants |
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7678 |
7.16 |
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Environmental Matters |
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7678 |
ARTICLE 8 EVENTS OF DEFAULT |
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7679 |
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8.1 |
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Events of Default |
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7679 |
8.2 |
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Remedies upon Event of Default |
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7981 |
8.3 |
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Remedies Cumulative |
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8082 |
ARTICLE 9 AGENCY |
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8183 |
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9.1 |
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Appointment and Authority; Powers and Immunities |
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8183 |
9.2 |
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Reliance By Administrative Agent |
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8284 |
9.3 |
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Defaults |
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8284 |
9.4 |
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Delegation of Duties |
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8789 |
9.5 |
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Resignation of Administrative Agent |
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8789 |
9.6 |
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Special Servicing |
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8890 |
9.7 |
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Non-Reliance on Administrative Agent and Other Lenders |
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8991 |
9.8 |
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Rights as a Lender |
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9092 |
9.9 |
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Standard of Care; Indemnification |
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9192 |
9.10 |
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Failure to Act |
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9294 |
9.11 |
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Consents Under Loan Documents |
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9294 |
9.12 |
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Authorization |
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9495 |
9.13 |
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Agency Fee |
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9495 |
9.14 |
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Defaulting Lenders |
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9496 |
9.15 |
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Liability of Administrative Agent |
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9899 |
9.16 |
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Transfer of Agency Function |
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9899 |
9.17 |
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Administrative Agent May File Proofs of Claim |
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98100 |
9.18 |
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PATRIOT Act Notice; Compliance |
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99100 |
9.19 |
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Several Obligations; No Liability, No Release |
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99100 |
9.20 |
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No Reliance on Administrative Agent’s Customer Identification Program |
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99101 |
9.21 |
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Erroneous Payments |
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100101 |
ARTICLE 10 MISCELLANEOUS PROVISIONS |
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101102 |
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10.1 |
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Notices |
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101102 |
10.2 |
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Expenses; Indemnity; Damage Waiver |
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102104 |
10.3 |
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Set Off |
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104105 |
10.4 |
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No Waiver; Remedies Cumulative |
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104106 |
10.5 |
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Administrative Agent’s Discretion |
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105106 |
10.6 |
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Successors and Assigns; Participations |
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105106 |
10.7 |
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Independence of Covenants |
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110111 |
10.8 |
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Survival of Representations, Warranties and Agreements |
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110111 |
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10.9 |
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Marshalling; Payments Set Aside |
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110112 |
10.10 |
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Severability; Inconsistency with Other Loan Documents |
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110112 |
10.11 |
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Entire Agreement |
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111112 |
10.12 |
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Obligations Several; Actions in Concert |
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111112 |
10.13 |
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Headings, Schedules and Exhibits |
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111113 |
10.14 |
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Governing Law |
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111113 |
10.15 |
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Modification; Waiver in Writing |
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112114 |
10.16 |
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WAIVER OF JURY TRIAL |
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113114 |
10.17 |
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Treatment of Certain Information; Confidentiality |
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113115 |
10.18 |
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Platform |
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114115 |
10.19 |
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Interest Rate Limitation; No Usury |
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115116 |
10.20 |
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No Advisory or Fiduciary Responsibility |
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115117 |
10.21 |
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Counterparts |
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116117 |
10.22 |
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Arranger |
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116117 |
10.23 |
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Publicity |
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116118 |
10.24 |
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No Third Party Beneficiary |
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116118 |
10.25 |
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Waiver of Notice |
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116118 |
10.26 |
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[Reserved] |
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116118 |
10.27 |
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[Reserved] |
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116118 |
10.28 |
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Limitation on Liability of Administrative Agent’s and the Lenders’ Officers, Employees |
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116118 |
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SCHEDULES: |
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Commitments |
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Value of Investments |
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Borrower Organizational Information |
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Structure Chart |
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Portfolio Company/Eligible Encumbered Assets Indebtedness |
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Borrower’s Valuation Policy |
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Competitors |
EXHIBITS: |
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A |
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Form of Loan Notice |
B |
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Form of Note |
C |
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Form of Compliance Certificate |
D |
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Form of Assignment and Assumption Agreement |
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Forms of U.S. Tax Compliance Certificates |
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Form of Closing Certificate |
G |
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Form of Borrowing Base Certificate |
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Form of Request for Extension Term |
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Form of Incremental Commitment Request |
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CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of June 11, 2021, as amended by the First Amendment to Credit Agreement dated as of November 30, 2021, as further amended by the Second Amendment to Credit Agreement dated as of June 9, 2023, as further amended by the Third Amendment to Credit Agreement dated as of July 11, 2023 (as the same may be modified, supplemented, amended or otherwise changed, this “Agreement”), is entered into by and among AMERICA FIRST MULTIFAMILY INVESTORS, L.P., a Delaware limited partnership, as borrower (together with its permitted successors and assigns, the “Borrower”), the LENDERS party hereto from time to time, and BANKUNITED, N.A. (“BankUnited”), as administrative agent for the Lenders (together with its successors and assigns in such capacity and any replacement administrative agent appointed pursuant hereto, “Administrative Agent”), a Lender, and as the sole lead arranger (in such capacity, “Sole Lead Arranger”).
RECITALS:
WHEREAS, Borrower has requested that the Lenders extend credit to Borrower;
WHEREAS, the Lenders have agreed to extend a senior secured revolving loan facility to Borrower, in an aggregate amount not to exceed Forty Million and 00/100 Dollars $40,000,000.00, on the terms and conditions set forth herein;
WHEREAS, Borrower has agreed to secure the Obligations hereunder by granting to Administrative Agent, for the benefit of Secured Parties, a first priority (except for Permitted Liens) Lien on all of Borrower’s rights in and to (i) any distributions, withdrawals, dividends, disbursements and any other payments of any type arising from or with respect to Borrower’s direct or indirect ownership interests in certain Portfolio Companies, Senior Housing Investments and Other Senior Real Estate Investments (collectively, the “Encumbered Pool”); and (ii) the Collateral Account into which all distributions, withdrawals, dividends, disbursements and any other payments arising from or with respect to Borrower's ownership of the Encumbered Pool are to be deposited;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
“Administrative Agent” has the meaning assigned to such term in the preamble hereto.
“Administrative Questionnaire” means an Administrative Questionnaire in the form supplied by Administrative Agent.
“Advance Date” has the meaning assigned to such term in Section 2.10.
“Advanced Amount” has the meaning assigned to such term in Section 9.14(d).
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“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Borrower) at law or in equity, or before or by any Governmental Authority, domestic or foreign, whether pending or threatened in writing against Borrower or any property of Borrower that would reasonably be expected to have a Material Adverse Effect.
“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling (including any member of the senior management group of such Person), controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.
“Agency Fee” means the agency fee agreed to by Borrower and Administrative Agent pursuant to the applicable Fee Letter.
“Agent Parties” has the meaning assigned to such term in Section 10.18(c).
“Aggregate Amounts Due” has the meaning assigned to such term in Section 3.5.
“Agreement” has the meaning assigned to such term in the preamble hereto.
“Anti-Corruption Laws” means any and all Requirements of Law related to anti- bribery or anti-corruption matters, including the United States Foreign Corrupt Practices Act of 1977.
“Anti-Terrorism Laws” means any and all Requirements of Law related to engaging in, financing, or facilitating terrorism or money laundering, including the PATRIOT Act, 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), Trading With the Enemy Act (50 U.S.C. §1 et seq.), Executive Order 13224 (effective September 24, 2001) and any enabling legislation, executive order or regulations issued pursuant or relating thereto and each of the laws, regulations, and executive orders administered by OFAC (31 C.F.R., Subtitle B, Chapter V), and any other applicable federal or state laws relating to “know your customer” or anti-money laundering rules and regulations.
“Appraisal” means an appraisal of the Suites on Paseo Property, contracted by Administrative Agent and paid for by Borrower, prepared by an independent third-party appraiser certified in the state in which the Suites on Paseo Property is located, which appraisal must comply in all respects with the standards for real estate appraisal established pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, and must otherwise be in form and substance reasonably satisfactory to Administrative Agent.
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“Approved Fund” means any Person (other than a natural Person or a Competitor of Borrower or Guarantor or any of their Material Subsidiaries) that (a) 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 business (b) is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender, (iii) an entity or an Affiliate of an entity that administers or manages a Lender or an Affiliate of a Lender, or (iv) an Eligible Institution.
“Assignment and Assumption Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit D, with such amendments or modifications as may be approved by Administrative Agent.
“Assignment of Leases and Rents” has the meaning set forth in the definition of Loan Documents.
“Assumed Tax Liability” has the meaning assigned to such term in Section 7.4.
“Authorized Officer” means, as applied to any Person, any officer authorized to bind such Person.
“Auto-debit Account” has the meaning set forth in Section 3.4(a), as may be updated by written notice to Administrative Agent.
“Availability” means, at any time, an amount equal to (a) the lesser of (i) the Revolving Credit Maximum and (ii) the Borrowing Base minus (b) the aggregate outstanding principal amount of the Loans.
“Availability Period” means the period from and including the Closing Date to but excluding the Commitment Termination Date.
“Available Tenor” has the meaning assigned to such term in Section 3.7(g).
“ATAX Vantage Holdings” means ATAX Vantage Holdings LLC.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
“BankUnited” has the meaning assigned to such term in the preamble hereto.
“Base Rate” means a fluctuating rate per annum equal to the Prime Rate plus the Interest Rate Spread.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Basel Committee” means the Basel Committee on Banking Supervision and any successor or similar authority.
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“Basel III” means the global regulatory standards issued on January 13, 2011, by the Basel Committee and any requests, rules, regulations, guidelines, interpretations or directions promulgated by any Governmental Authority in connection therewith.
“Benchmark” has the meaning assigned to such term in Section 3.7(g).
“Benchmark Replacement” has the meaning assigned to such term in Section 3.7(g).
“Benchmark Replacement Adjustment” has the meaning assigned to such term in Section 3.7(g).
“Benchmark Replacement Conforming Changes” has the meaning assigned to such term in Section 3.7(g).
“Benchmark Replacement Date” has the meaning assigned to such term in Section 3.7(g).
“Benchmark Replacement Rate Loan” means a Loan that bears interest at a rate based on the Benchmark Replacement.
“Benchmark Transition Event” has the meaning assigned to such term in Section 3.7(g).
“Benchmark Transition Start Date” has the meaning assigned to such term in Section 3.7(g).
“Benchmark Unavailability Period” has the meaning assigned to such term in Section 3.7(g).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Borrower” has the meaning assigned to such term in the preamble hereto, and as of December 5, 2022 shall mean Greystone Housing Impact Investors LP, a Delaware limited partnership, together with its permitted successors and assigns.
“Borrower-Related Lender” has the meaning assigned to such term in Section 10.6(g).
“Borrowing Base” means, at any time, an amount equal to the product of (i) fortythirty-five percent (40.0035.00%) multiplied by (ii) the aggregate value of the Eligible Encumbered Assets consisting of Equity Partnership Investments and, Other Senior Real Estate Investments, and Senior Housing Investments, including one hundred percent (100.00%) of Borrower’s capital contributions to the Portfolio Companies solely to the extent that (x) as to each Portfolio Company, the ratio of (A) the Portfolio Company Indebtedness to (B) the stabilized value of the real property investment held
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by the Portfolio Company does not exceed eighty percent (80.00%), and (y) as to the aggregate of Portfolio Companies, the ratio of (A) the Portfolio Company Indebtedness to (B) the stabilized value of the real property investment held by the Portfolio Companies does not exceed sixty-seven percent (67.00%).
“Borrowing Base Certificate” means a certificate executed by an authorized financial or accounting officer of Borrower (or any other Authorized Officer of Borrower reasonably satisfactory to Administrative Agent) in form and substance agreeable to Administrative Agent and delivered by Borrower to Administrative Agent pursuant to the terms of this Agreement substantially in the form of Exhibit G.
“Broker” has the meaning assigned to such term in Section 5.18(a).
“Business Day” means any day that is not a Saturday, Sunday or other day that is a legal holiday under the laws of the State of New York or is a day on which banking institutions in such state are authorized or required by Law to close; provided that, whenever any payment (including but not limited to the Monthly Payment Due Dates) or other obligation required under this Agreement or any other Loan Document shall be due on a day that is not a Business Day, such payment may be made or shall be debited on the Business Day Adjustment Date, unless such next succeeding Business Day would fall after the applicable Maturity Date, in which event payment shall be made on the immediately preceding Business Day.
“Business Day Adjustment Date” means the next succeeding Business Day.
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person, as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests, membership interests and other equity interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
“Cash Equivalents” means, as at any date of determination, (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government, or (ii) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date; (b) marketable direct obligations issued by any state of the United States or the District of Columbia or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (d) certificates of deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary U.S. federal banking regulator), and (ii) has Tier 1 capital (as defined in such regulations) of not less than One Hundred Million and 00/100 Dollars ($100,000,000.00); and (e) shares of any money market mutual
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fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than Five Hundred Million and 00/100 Dollars ($500,000,000.00), and (iii) has the highest rating obtainable from either S&P or Moody’s.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the interpretation 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 (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“Change of Control” means, at any time, (a) America First Capital Associates Limited Partnership Two, a Delaware limited partnership, ceases to be the sole general partner of Borrower and is not replaced by an Affiliate or other Person reasonably acceptable to the Administrative Agent; (b) a sale of all or substantially all of the consolidated assets of Borrower and its Subsidiaries in one transaction or a series of related transactions (whether by way of merger, stock purchase, asset purchase or otherwise); (c) a merger, consolidation, combination or similar transaction involving Borrower in which Borrower is not the surviving Person; (d) a transaction or series of related transactions, as a result of which the Manager does not (directly or indirectly) control the investment and management decisions of Borrower; or (e) Borrower shall cease to collectively and beneficially own and control at least the same percentage on a fully diluted basis of the economic and voting interests in the Capital Stock of any of its Subsidiaries as Borrower owns on the Closing Date (other than pursuant to a transaction expressly permitted by this Agreement).
“CIP Regulations” has the meaning assigned to such term in Section 9.20.
“Closing Certificate” means a certificate of an Authorized Officer of Borrower substantially in the form of Exhibit F.
“Closing Date” means the date on which all of the requirements set forth in Article 4 shall have been satisfied or waived in accordance with Section 9.11.
“Collateral” means, collectively, all of the personal property in which Liens are granted or purported to be granted pursuant to the Collateral Documents as security for the Obligations.
“Collateral Account” means deposit account number 9855336684 at Deposit Bank held in the name of Borrower, and pledged to Administrative Agent as security for the Obligations.
“Collateral Documents” means the Security Agreement, Pledge Agreement, any Control Agreement, the Deed of Trust and Security Agreement with respect to the Suites on Paseo Property made by Mortgagor in favor of Administrative Agent for the benefit of the Lenders (the “Mortgage”), and all other instruments, documents and agreements delivered by Borrower pursuant
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to this Agreement or any other Loan Document in order to grant or maintain a Lien on any property owned directly or indirectly by Borrower as security for the Obligations.
“Commitment” means the commitment of a Lender to make or otherwise fund one or more Loans, and “Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Commitment, if any, is set forth on Schedule 1 or in the applicable Assignment and Assumption Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof.
“Commitment Termination Date” means the Initial Maturity Date, as the same may be extended in accordance with Section 2.9 (except that, if such date is not a Business Day, the Commitment Termination Date shall be the Business Day Adjustment Date).
“Communications” has the meaning assigned to such term in Section 10.18(c).
“Competitor” means those Persons listed on Schedule 7 and any other Person that Borrower may identify in writing to the Administrative Agent from time to time which update shall be effective upon Administrative Agent’s written confirmation to the Borrower thereof.
“Compliance Certificate” means a Compliance 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.
“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Control” means with respect to any Person, either (a) ownership, directly or indirectly, of more than fifty percent (50.00%) of all equity interests in such Person or (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities, by contract or otherwise. “Controlling” and “Controlled” shall have the correlative meaning to Control.
“Control Agreement” means with respect to the Collateral Account, a deposit account control agreement in form and substance reasonably acceptable to Administrative Agent executed and delivered by Borrower, the Deposit Bank and Administrative Agent.
“Controlled Entity” means Borrower’s Controlled Affiliates.
“Corresponding Tenor” has the meaning assigned to such term in Section 3.7(g).
“Covered Entity” has the meaning assigned to such term in Section 5.22(a).
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
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rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Deconsolidated Balance Sheet” means the consolidated balance sheet, less the consolidated assets and liabilities from existing and future debt and/or equity funds and variable interest entities.
“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
“Default Rate” means any interest payable pursuant to Section 2.7.
“Defaulting Lender” has the meaning assigned to such term in Section 9.14(a).
“Deposit Bank” means BankUnited, N.A., or such other bank or depository selected by Administrative Agent in its discretion.
“Designated Account” means deposit account number 9855336684 at Deposit Bank held in the name of Borrower.
“Disposition” or “Dispose” means the voluntary or involuntary, by operation of law or otherwise, sale, transfer, license, lease or other disposition (including any sale and leaseback transaction or Division) of any property (including Capital Stock) by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Capital Stock” means any Capital Stock issued by any Person that (a) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise or (b) is convertible or exchangeable at the option of the holder thereof for Indebtedness or Capital Stock described in this definition, in each case of clauses (a) and (b), on or prior to the first anniversary of the Maturity Date.
“Dividing Person” has the meaning assigned to such term in the definition of “Division.”
“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Dollars” and the sign “$” mean the lawful money of the United States.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.6(b).
“Eligible Encumbered Assets” means at any time, assets directly or indirectly owned by Borrower which the Lenders determine in their reasonable business judgment are eligible as the basis for the extension of Loans. Eligible Encumbered Assets shall be limited as follows:
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For the avoidance of doubt, only Eligible Encumbered Assets as described in clause (b) above shall be subject to designation as Eligible Encumbered Assets (or not), in the reasonable business judgment of the Lenders.
“Eligible Institution” means any of (i) a commercial bank organized under the laws of the United States, or any State thereof, and having (x) total assets in excess of One Billion and 00/100 Dollars ($1,000,000,000.00) and (y) a combined capital and surplus of at least Two Hundred and Fifty Million and 00/100 Dollars ($250,000,000.00); (ii) a commercial bank organized under the laws of any other country which is a member of the Organization of Economic Cooperation and Development (“OECD”), or a political subdivision of any such country, and having (x) total assets in excess of One Billion and 00/100 Dollars ($1,000,000,000.00) and (y) a combined capital and surplus of at least Two Hundred and Fifty Million and 00/100 Dollars ($250,000,000.00), provided that such bank is acting through a branch or agency located in the country in which it is organized or another country which is also a member of OECD; (iii) a life insurance company organized under the laws of any State of the United States, or organized under the laws of any country and licensed as a life insurer by any State within the United States and having admitted assets of at least One Billion and 00/100 Dollars ($1,000,000,000.00); (iv) a nationally recognized investment banking company or other financial institution in the business of making loans, or an Affiliate thereof (other than any Person which is directly or indirectly a Borrower or Guarantor or directly or indirectly an Affiliate of Borrower or Guarantor) organized under the laws of any State of the United States, and licensed or qualified to conduct such business under the laws of any such State and having (1) total assets of at least One Billion and 00/100 Dollars ($1,000,000,000.00) and (2) a net worth of at least Two Hundred and Fifty Million and 00/100 Dollars ($250,000,000.00); (v) an Approved Fund; or (vi) any Affiliate of BankUnited, any other Person into which, or with which, BankUnited is merged, consolidated or reorganized, or which is otherwise a successor to BankUnited by operation of law, or which acquires all or substantially all of the assets of BankUnited, any other Person which is a successor to the business operations of BankUnited and engages in substantially the same activities, or any Affiliate of any of the foregoing.
“Encumbered Pool” has the meaning assigned to such term in the preamble hereto.
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“Environmental Complaint” means any complaint, order, demand, citation or notice threatened or issued in writing to Borrower or any of its Subsidiaries by any Person with regard to air emissions, water discharges, Releases, or disposal of any Hazardous Material, noise emissions or any other environmental matter affecting Borrower, any of its Subsidiaries or any of Borrower’s or such Subsidiaries’ Properties.
“Environmental Indemnity” means that certain Environmental Indemnity, dated as of the date hereof, made by Borrower, Mortgagor and Guarantor, jointly and severally, collectively as indemnitors, in favor of Administrative Agent (for the benefit of the Lenders), as amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time.
“Environmental Laws” means any and all U.S. federal, state, local, and foreign statutes, Legal Requirements, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions, including all common law, relating to pollution or the protection of human health (as it relates to exposure to Hazardous Materials) or the environment or the release of any Hazardous Materials into the environment, including those related to air emissions and discharges to wastewater treatment systems.
“Environmental Liability” means any liability or obligation, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly, resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment, disposal or permitting or arranging for the 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 Lien” means a Lien in favor of any Governmental Authority: (a) under any Environmental Law, or (b) for any liability or damages arising from, or costs incurred by, any Governmental Authority in response to the Release or threatened Release of any Hazardous Material.
“Environmental Report” has the meaning set forth in the Environmental Indemnity.
“Equity Holder” means a Person who holds an economic interest (whether as a limited partner, general partner or assignee) in Borrower.
“Equity Partnership Investments” means, at any time, with respect to any Portfolio Company, any Investment by Borrower (directly or indirectly) in any such Portfolio Company, or any evidence of Indebtedness or other security issued by such Portfolio Company and held (directly or indirectly) by Borrower.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means, any person that for purposes of Title I or Title IV of ERISA or Section 412 of the Internal Revenue Code would be deemed at any relevant time to be a “single employer” or otherwise aggregated with Borrower under Section 414(b), 414(c), 414(m) or 414(o) of the Internal Revenue Code or Section 4001 of ERISA.
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“ERISA Event” means (a) any “reportable event” as defined in Section 4043 of ERISA with respect to a Pension Plan (other than an event as to which the PBGC has waived under subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043 the requirement of Section 4043(a) of ERISA that it be notified of such event); (b) any failure to make a required contribution to any Pension Plan that would result in the imposition of a lien or other encumbrance or the provision of security under Section 430 of the Internal Revenue Code or Section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance, there being or arising any “unpaid minimum required contribution” or “accumulated funding deficiency” (as defined or otherwise set forth in Section 4971 of the Internal Revenue Code or Part 3 of Subtitle B of Title 1 of ERISA), whether or not waived, or any filing of any request for or receipt of a minimum funding waiver under Section 412 of the Internal Revenue Code or Section 303 of ERISA with respect to any Pension Plan or Multiemployer Plan, or that such filing may be made, or any determination that any Pension Plan is, or is expected to be, in at-risk status under Title IV of ERISA; (c) any incurrence by Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to any Pension Plan or Multiemployer Plan (other than for premiums due and not delinquent under Section 4007 of ERISA); (d) any institution of proceedings, or the occurrence of an event or condition which would reasonably be expected to constitute grounds for the institution of proceedings by the PBGC, under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (e) any incurrence by Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan, or the receipt by Borrower or any of its ERISA Affiliates of any notice that a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA; (f) any receipt by Borrower or any of its ERISA Affiliates of any notice, or any receipt by any Multiemployer Plan from Borrower or any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (g) engaging in a non-exempt prohibited transaction within the meaning of Section 4975 of the Internal Revenue Code or Section 406 of ERISA with respect to a Pension Plan; or (h) any filing of a notice of intent to terminate any Pension Plan if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, any filing under Section 4041(c) of ERISA of a notice of intent to terminate any Pension Plan, or the termination of any Pension Plan under Section 4041(c) of ERISA.
“Erroneous Payment” has the meaning assigned to it in Section 9.21(a).
“Erroneous Payment Notice” has the meaning assigned to it in Section 9.21(b).
“Estimated Accrued Interest” has the meaning assigned to such term in Section 3.1.
“Event of Default” has the meaning assigned to such term in Section 8.1.
“Exchange Act” means the Securities Exchange Act of 1934 and any successor statute.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to Administrative Agent or any Lender or required to be withheld or deducted from a payment to Administrative Agent or any Lender, (a) Taxes (i) imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, imposed as a result of Administrative Agent or such Lender being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such
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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 Borrower under Section 3.12) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.10, 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 Administrative Agent’s or such Lender’s failure to comply with Section 3.10(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Extension Fee” means the amount that is equal to twenty-five one-hundredths of one percent (0.25%) of aggregate amount of the Commitments (whether or not utilized) in effect on the effective date of each extension of the Initial Maturity Date or the extended Maturity Date, as applicable. Once paid, the Extension Fee shall be non-refundable.
“Extension Term” has the meaning assigned to such term in Section 2.9.
“Facility” means the Commitments and all Loans made to Borrower subject to the terms and conditions of Section 2 of this Agreement (reduced or increased in accordance with the provisions of Section 2.1, or any other applicable provision of this Agreement).
“Fair Market Value” means, as of any date of determination, with respect to any asset or property, the most recent fair market value of such asset or property as determined in good faith by Borrower in accordance with the Valuation Policy; provided that the Fair Market Value of any asset or property shall be adjusted in the event of any valuation conducted in accordance with Section 6.10.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue 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.
“Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/32 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, provided that if such day is not a Business Day, the Federal Funds Rate for the immediately preceding Business Day shall be applicable, as determined by Administrative Agent, or such other commercial bank as selected by Administrative Agent.
“Federal Reserve Bank” means a regional bank of the Federal Reserve System of the United States.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States.
“Fee Letter” means each letter agreement, (a) dated the date hereof, and as amended and restated on the Third Amendment Effective Date, or (b) executed in connection with an Incremental Commitment increase on an Incremental Commitment Effective Date, among (i)
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Borrower, on the one hand, and any of (ii) Administrative Agent, the Sole Lead Arranger, or any Lender, on the other hand, in each case, with respect to certain fees payable by Borrower in connection with the Loans, as the same may be further modified or amended from time to time.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of Borrower ending on December 31 of each calendar year.
“Fitch” means Fitch, Inc., a division of Fitch Ratings Ltd., or any successor thereto.
“Floor” has the meaning assigned to such term in Section 3.7(g).
“Foreign Lender” means a Lender that is not a U.S. Person.
“Funding Date” has the meaning assigned to such term in Section 2.2(b).
“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, United States generally accepted accounting principles in effect as of the date of the applicable financial report.
“Governmental Authority” means the government of the United States of America 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).
“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly and including any obligation, direct or indirect, of the guarantor (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued in support of such Indebtedness or obligation; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall equal the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.
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“Guarantor” means any guarantor of all or any part of the Obligations, including without limitation Greystone Select Incorporated under the terms and conditions of that certain Amended and Restated Guaranty, dated as of November 30, 2021, made by Greystone Select Incorporated in favor of Administrative Agent (for the benefit of the Lenders), as amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time. Unless otherwise specified herein or the context requires otherwise, “Guarantor” shall mean and refer to Greystone Select Incorporated.
“Guaranty” means that certain Guaranty, dated as of the date hereof, made by Greystone Select Holdings LLC in favor of Administrative Agent (for the benefit of the Lenders), as amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time, and that certain Amended and Restated Guaranty, dated as of November 30, 2021, made by Greystone Select Incorporated in favor of Administrative Agent (for the benefit of the Lenders), as amended and restated by that certain Second Amended and Restated Guaranty made by Greystone Select Incorporated in favor of Administrative Agent (for the benefit of the Lenders) dated as of the Third Amendment Effective Date, as may be further amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time.
“Hazardous Material” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes, and other substances or wastes of any nature regulated under or with respect to which liability or standards of conduct are imposed pursuant to any Environmental Law.
“Hedging Obligations” of any Person means any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired under (a) any and all Hedging Transactions, (b) any and all cancellations, buy backs, reversals, terminations or assignments of any Hedging Transactions and (c) any and all renewals, extensions and modifications of any Hedging Transactions and any and all substitutions for any Hedging Transactions.
“Hedging Transaction” of any Person means (a) any transaction (including an agreement with respect to any such transaction) now existing or hereafter entered into by such Person that is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, 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.
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“Incremental Commitment” has the meaning specified in Section 2.11.
“Incremental Commitment Fee” means the fee payable with respect to anyIncremental Commitment in accordance with Section 2.11, as set forth in the Fee Letter.
“Incremental Commitment Effective Date” has the meaning specified in Section 2.11.
“Incremental Commitment Request” means the notice in the form of Exhibit I pursuant to which the Borrower requests an increase of the Commitments in accordance with Section 2.11.
“Incremental Lender” has the meaning specified in Section 2.11.
“Indebtedness”, as applied to any Person, means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person in respect of the deferred purchase price of property or services (other than current trade payables which are not overdue by more than 90 days), (d) all obligations of such Person under any conditional sale or other title retention agreement(s) relating to property acquired by such Person, (e) all obligations in respect of Capital Leases of such Person, (f) all obligations, contingent or otherwise, of such Person in respect of letters of credit, banker’s acceptances or similar extensions of credit, (g) all Guarantees of such Person of the type of Indebtedness described in clauses (a) through (f) above, (h) all Indebtedness of a third party secured by any Lien on any property or asset owned or held by such Person, whether or not such Indebtedness has been assumed by such Person, (i) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Disqualified Capital Stock of such Person, (j) all Off-Balance Sheet Liabilities and (k) all Hedging Obligations. The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor. For purposes of determining the amount of attributed Indebtedness from Hedging Obligations, the “principal amount” of any Hedging Obligations at any time shall be the Net Mark-to-Market Exposure of such Hedging Obligations.
“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 Borrower under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning assigned to such term in Section 10.2(b).
“Information” has the meaning assigned to such term in Section 10.17.
“Initial Maturity Date” means JulyJune 12, 20232025.
“Insurance/Condemnation Event” means any event or occurrence (i) under any casualty, business interruption or “key man” insurance policies in respect of any covered loss thereunder, or (ii) resulting in the taking of any assets of Borrower or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking.
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“Interest Period” means (a) with respect to any Term SOFR Rate Loan, (i) initially, the period beginning on (and including) the date of the initial funding of such Loan and ending on (but excluding) the first Monthly Payment Due Date, and (ii) thereafter, the period beginning on (and including) the last day of the previous Interest Period and ending on (but excluding) the day one (1) month following the previous Interest Period; provided that if any Interest Period would otherwise end on a day which is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day or (b) with respect to any Benchmark Replacement Rate Loan, (i) the period beginning on (and including) the Benchmark Transition Start Date and ending on (but excluding) the next Monthly Payment Due Date and (ii) thereafter, the period beginning on (and including) the last day of the previous Interest Period and ending on (but excluding) the day one (1) month following the previous Interest Period; provided that if any Interest Period would otherwise end on a day which is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day. Notwithstanding the foregoing, any Interest Period scheduled to end after the Maturity Date shall end on the Maturity Date.
“Interest Rate” means the interest rate then in effect with respect to the Loan, whether that be the Term SOFR Rate (subject to implementation of a Benchmark Replacement in accordance with Section 3.7), or the Base Rate, as applicable.
“Interest Rate Spread” means, at any time, (a) with respect to a Term SOFR Rate Loan or Benchmark Replacement Rate Loan, 3.253.50% (325350 basis points) per annum; and (b) with respect to a Base Rate Loan, 2.252.50% (225250 basis points) per annum, provided that for any Benchmark Replacement Rate Loan, the Interest Rate Spread may be subject to adjustment in accordance with the requirements for determining the Benchmark Replacement in Section 3.7.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.
“Investment” means (a) any direct or indirect purchase or other acquisition by any Person of, or of a beneficial interest in, any of the Capital Stock, Securities or evidence of Indebtedness of any other Person; (b) any direct or indirect loan, advance, investment or capital contributions by any Person to any other Person, including all indebtedness and accounts receivable from that other Person; (c) any Guarantee by any Person of any obligations of another Person; and (d) any direct or indirect acquisition by any Person.
“IRS” means the United States Internal Revenue Service.
“ISDA” means International Swaps and Derivatives Association, Inc.
“Joinder Agreement” means a joinder or similar agreement entered into by any Person (including any Lender) under Section 2.11 pursuant to which such Person shall provide an Incremental Commitment hereunder and (if such Person is not then a Lender) shall become a Lender party hereto.
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“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided, in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.
“Late Payment Charge” means an amount equal to five percent (5.00%) of the unpaid amount.
“Legal Requirements” means, statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting Borrower, any Loan Document or all or part of the Collateral or the ownership, use, or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instrument, either of record or known to Borrower, at any time in force affecting all or part of the Collateral.
“Lender” means each Person listed on the signature pages hereto as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment and Assumption Agreement.
“Lender Funding Amount” means a Loan, an unreimbursed Protective Advance or any other amount that a Lender is required to fund under this Agreement.
“Lien” means (a) any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing, and (b) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.
“Liquid Assets” means assets in the form of cash, cash equivalents, and (a) direct obligations of (or fully guaranteed as to, or obligations on which the principal and interest by)are unconditionally guaranteed by, the United States of America (or by any agency or instrumentality thereof (providedto the extent such obligations are backed by the full faith and credit of the United States supports such obligation or guarantee), certificates of deposit issued by a commercial bank, acceptable to Administrative Agent, having net assets of not less than Five Hundred Million and 00/100 Dollars ($500,000,000.00), marketable securities listed and traded on a recognized stock exchange or traded over the counter and listed in the National Association of Securities Dealers Automatic Quotations, or liquid debt instruments that have a readily ascertainable value and are regularly traded in a recognized financial market (including any unencumbered stock, shares, voting trust certificates, bonds, debentures, notes or other evidences of indebtedness commonly known as "securities", secured or unsecured, convertible, subordinated or otherwise, and in general any instruments commonly known as "securities" or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing which can readily be bought and sold on any nationally recognized securities exchange and would properly be classified as "marketable securities" on the personal financial statement of Borrower or Guarantor, as applicable; provided, however, in no event shall investments or ownership interests in hedge funds be deemed to be included as a marketable security for the purposes of this Agreement) which are: (a) owned by Borrower or Guarantor alone (and not jointly with any other Person, unless such other Person is a party included in the definition of "Borrower" or "Guarantor" hereunder, in a non-margin account identified as being owned by Borrower or Guarantor alone or an entity wholly owned by Borrower or Guarantor, as applicable, and
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(b) free and clear of any lien, security interest, assignment, right of setoff, or other encumbrance of any kind (including, without limitation, any such lien or claim on any amount posted as collateral or margin under the ISDA agreement associated with a Hedging Obligation).if America), in each caser maturing within one year from the date of issuance thereof; (b) investments in commercial paper maturing within 270 days from the date of issuance thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s; (c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000 and that issues (or the parent of which issues) commercial paper related at least “Prime-1” (or the then equivalent grade) by Moody’s or “A-1” (or the then equivalent grade) by S&P; (d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria of clause (c) above; (e) (i) mortgage loans that are subject to a commitment to purchase from any of Fannie Mae, Freddie Mac, Ginnie Mae, the United States Federal Housing Administration or the United States Department of Housing and Urban Development (each, individually, an “Agency”), (ii) securities issued or guaranteed by any Agency in connection with the sale or transfer of mortgage loans, and (iii) commercial mortgage backed securities rated at least “Prime-1” or “Aaa” (or the then equivalent grade) by Moody’s or “A-1” or “AAA” (or the then equivalent grade) by S&P; (f) undrawn funds available from committed unsecured facilities; and (g) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a) through (f) above.
“Loan” means the loans and advances made from time to time to Borrower by Administrative Agent, on behalf of the Lenders, on a Funding Date pursuant to Article 2 (each a “Loan” and collectively, the “Loans”).
“Loan Documents” means, collectively, this Agreement, the Note(s) (if any), the Collateral Documents, each Fee Letter, the Guaranty, the Assignment of Leases and Rents from Mortgagor to Administrative Agent for the benefit of the Lenders (the “Assignment of Leases and Rents”), the Environmental Indemnity, each Assignment and Assumption Agreement and all other documents, instruments or agreements executed and delivered by or on behalf of Borrower, Guarantor or Mortgagor in connection with this Agreement or any other Loan Document.
“Loan Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Loans of such Lender; provided, at any time prior to the making of the Loans, the Loan Exposure of any Lender shall be equal to such Lender’s Commitment.
“Loan Notice” means a notice substantially in the form of Exhibit A, that is appropriately completed by Borrower.
“Manager” means Greystone AF Manager LLC, a Delaware limited liability company.
“Margin Stock” has the meaning assigned to such term in Regulation U of the Federal Reserve Board as in effect from time to time.
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“Master Agreement” has the meaning assigned to such term in the definition of “Hedging Transaction”.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, properties, assets or financial condition, as the case may be, of Borrower and Mortgagor, taken as a whole, or Guarantor, as applicable; (b) the ability of Borrower and Mortgagor, taken as a whole, or Guarantor, as applicable, to fully and timely perform its Obligations; (c) the legality, validity, binding effect, or enforceability against Borrower, Guarantor or Mortgagor, as applicable, of any Loan Document; or (d) the rights, remedies and benefits available to, or conferred upon, Administrative Agent and any Lender under any Loan Document.
“Material Contract” means any contract or other arrangement to which Borrower is a party (other than the Loan Documents) pertaining to the Encumbered Pool or any Collateral for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to have a Material Adverse Effect, including for the avoidance of doubt, the Organizational Documents of the Portfolio Companies (and any intermediate holding companies through which Borrower owns the relevant Portfolio Companies).
“Material Subsidiary” means, as to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity that (a) meets the criteria set forth in the first sentence of the definition of the term “Subsidiary” and (b) has net assets in excess of Ten Million Dollars ($10,000,000.00) as determined in accordance with GAAP.
“Maturity Date” means the earlier of (a) the Initial Maturity Date, as the same may be extended in accordance with Section 2.9, and (b) the date that all Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.
“Maximum Leverage Ratio” means, as of any date of determination, the ratio of Total Debt to Total Net Worth.
“Measurement Date” has the meaning assigned to such term in Section 7.15(a).
“Minimum Consolidated Liquidity” means, as of any date of determination, the amount of Liquid Assets of Borrower or Guarantor, as applicable, and its respective consolidated Subsidiaries., which are: (a) majority owned by Borrower or Guarantor, (b) in a non-margin account identified as being majority owned by Borrower or Guarantor or any such respective consolidated Subsidiaries, and (c) fully available to such Borrower or Guarantor or any such respective consolidated Subsidiaries on an unencumbered basis.
“Minimum Consolidated Tangible Net Worth” means, as of any date of determination, an amount equal to the Tangible Net Worth of Borrower or Guarantor, as applicable, and its respective Subsidiaries.
“Minimum Consolidated Total Net Worth” means, the sum of (a) an amount equal to 99% of the members’ equity of the Deconsolidated Balance Sheet of Greystone Select Company II LLC, (b) an amount equal to 60% of the members’ equity of Greystone Select Company LLC and (c) the net book value (‘NBV’) of assets and liabilities held directly by Guarantor and any wholly owned subsidiary of the Guarantor, in each case, determined in accordance with GAAP.
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“Monthly Payment Due Date” means (a) the fifth (5th) day of each calendar month. occurring after the Closing Date and (b) the Maturity Date; provided that for any Monthly Payment Due Date that occurs on a day other than a Business Day, such Monthly Payment Due Date shall be deemed to be the Business Day Adjustment Date.
“Moody’s” means Moody’s Investor Services, Inc. or any successor thereto.
“Mortgage” has the meaning set forth in the definition of Collateral Documents.
“Mortgagor” means Lindo Paseo LLC, owner of the Suites on Paseo Property.
“Multiemployer Plan” means any “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, which is contributed to by (or to which there is or may be an obligation to contribute of) Borrower, any of its Subsidiaries or an ERISA Affiliate, and each such plan for the five-year period immediately following the latest date on which Borrower, any of its Subsidiaries or an ERISA Affiliate contributed to or had an obligation to contribute to such plan.
“NCREIF RS” means the National Council of Real Estate Investment Fiduciaries Reporting Standards.
“Net Cash Proceeds” means, with respect to any (a) Disposition or Insurance/Condemnation Event, an amount equal to: (i) cash payments received by Borrower or any of its Subsidiaries from such Disposition (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise (including by way of a milestone payment, as applicable), but only as and when so received) or Insurance/Condemnation Event, minus (ii) any bona fide costs incurred in connection with such Disposition or Insurance/Condemnation Event (to the extent incurred in connection with the adjustment or settlement of any claims of Borrower or such Subsidiary in respect thereof or any sale of assets referred to in clause (ii) of the definition of Insurance/Condemnation Event), including (A) income or gains taxes payable by Borrower or any of such Subsidiaries as a result of any gain recognized in connection with such Disposition or Insurance/Condemnation Event during the tax period the sale occurs, (B) a reasonable reserve for delayed expenses or invoices and any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Disposition undertaken by Borrower or any of such Subsidiaries in connection with such Disposition; provided that upon release of any such reserve, the amount released shall be considered Net Cash Proceeds and (C) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Disposition or Insurance/Condemnation Event and (b) issuance of Indebtedness or Capital Stock, or a cash contribution in respect of Capital Stock, an amount equal to: (i) cash proceeds received by or for the account of Borrower or any of its Subsidiaries of such issuance or contribution, as applicable, minus (ii) underwriting discounts and commissions and other documented costs and expenses associated therewith, including documented legal fees and expenses, in each case, solely to the extent such discounts, commissions, costs, fees and expenses are paid to non-Affiliates.
“Net Mark-to-Market Exposure” of any Person means, as of any date of determination with respect to any Hedging Obligation, the excess (if any) of all unrealized losses over all unrealized profits of such Person arising from such Hedging Obligation. “Unrealized losses” means the fair
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market value of the cost to such Person of replacing the Hedging Transaction giving rise to such Hedging Obligation as of the date of determination (assuming the Hedging Transaction were to be terminated as of that date), and “unrealized profits” means the fair market value of the gain to such Person of replacing such Hedging Transaction as of the date of determination (assuming such Hedging Transaction were to be terminated as of that date). For purposes of clarification, the calculation of Net Mark-to-Market Exposure shall include any amount posted as collateral or margin under the ISDA agreement associated with the Hedging Obligation as of the date of determination.
“Non-Pro Rata Advance” means a Protective Advance or a disbursement under the Loans with respect to which fewer than all Lenders have funded their respective Proportionate Shares in breach of their obligations under this Agreement.
“Note” means a promissory note substantially in the form of Exhibit B, made by Borrower to the respective order of any Lender in the principal amount equal to such Lender’s Loan.
“Obligations” means all obligations of every nature of Borrower and/or Mortgagor, as applicable, from time to time owed to Administrative Agent and the Lenders or any of them, under any Loan Document, whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to Borrower or Mortgagor, as applicable, would have accrued on any Obligation, whether or not a claim is allowed against Borrower or Mortgagor, as applicable, for such interest in the related bankruptcy proceeding), fees, expenses, indemnification or otherwise.
“OECD” has the meaning assigned to such term in the definition of “Eligible Institution.”
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Off-Balance Sheet Liabilities” of any Person means (a) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (b) any liability of such Person under any sale and leaseback transactions that do not create a liability on the balance sheet of such Person, (c) any Synthetic Lease Obligations or (d) any obligation arising with respect to any other transaction which 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.
“Organizational Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its by-laws, (b) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with respect to any general partnership, its partnership agreement, and (d) with respect to any limited liability company, its articles of organization or certificate of formation and its operating agreement. In the event any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“Other Connection Taxes” means, with respect to Administrative Agent or any Lender, Taxes imposed as a result of a present or former connection between Administrative Agent or such
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Lender and the jurisdiction imposing such Tax (other than connections arising from Administrative Agent or such Lender 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 Senior Real Estate Investments” means, at any time, with respect to Mortgagor, any Investment by Borrower (directly or indirectly) in Mortgagor, or any evidence of Indebtedness or other security issued by Mortgagor and held (directly or indirectly) by Borrower.
“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 3.12).
“Overadvance” shall mean, at any time, the amount by which (a) the principal amount of all outstanding Loans at such time exceeds (b) the Availability at such time.
“Participant” has the meaning assigned to such term in Section 10.6(c).
“Participant Register” has the meaning assigned to such term in Section 10.6(c).
“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as the same may be amended from time to time, and corresponding provisions of future laws related thereto.
“Payor” has the meaning assigned to such term in Section 2.10.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Plan” means any “employee benefit plan” as defined in Section 3 of ERISA (other than a Multiemployer Plan) maintained or contributed to by Borrower or any ERISA Affiliate or to which Borrower or any ERISA Affiliate has or may have an obligation to contribute and that is subject to Title IV of ERISA anytime during the five-year period immediately following the latest date on which Borrower or any ERISA Affiliate maintained, contributed to or had an obligation to contribute to (or is deemed under Section 4069 of ERISA to have maintained or contributed to or to have had an obligation to contribute to, or otherwise to have liability with respect to) such plan.
“Periodic Term SOFR Determination Day” has the meaning assigned to such term in Section 3.7(g).
“Permitted Liens” means, collectively, the following:
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“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies,
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Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities, and any fiduciary acting in such capacity on behalf of any of the foregoing.
“Plan” means (a) an employee benefit or other plan established or maintained by Borrower or any ERISA Affiliate or to which Borrower or any ERISA Affiliate makes or is obligated to make contributions and (b) which is subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the Internal Revenue Code.
“Platform” has the meaning assigned to such term in Section 10.18(a).
“Pledge Agreement” means the Pledge and Security Agreement, dated as of even date herewithJune 11, 2021, between Borrower and Administrative Agent made with respect to Borrower’s interest in Mortgagor, in form and substance reasonably acceptable to Administrative Agent, as may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Portfolio Company” means each entity listed as a Portfolio Company in which the Borrower is not the managing member and which is not consolidated with Borrower’s financial statements. The Portfolio Companies as of the Closing Date are set forth on Schedule 4, as updated from time to time in accordance with Section 6.10.
“Portfolio Company Indebtedness” means Indebtedness incurred by a Portfolio Company for the purpose of acquiring, owning, managing or improving upon real estate assets owned by such Portfolio Company.
“Post-Foreclosure Plan” has the meaning assigned to such term in Section 9.3(e). “Prime Rate” means the rate of interest per annum equal to the “U.S. prime rate” as reported on such day in the Money Rates Section of the Eastern Edition of The Wall Street Journal, or if the Eastern Edition of The Wall Street Journal is not published on such day, the last published rate. In the event the Eastern Edition of The Wall Street Journal ceases to publish such rate or an equivalent on a regular basis, the term “Prime Rate” shall be determined on any day by reference to such other regularly published average prime rate for such date applicable to commercial banks as is determined by Lender in its reasonable discretion. Any change in such prime rate shall take effect on the date of any change as published in The Wall Street Journal. Any change in the Prime Rate shall take effect at the opening of business on the day such change is publicly announced or quoted as being effective.
“Property” means any real property, improvements thereon and any leasehold or similar interest in real property which is owned, directly or indirectly, by Borrower, or secures any investment of Borrower.
“Proportionate Share” means with respect to all payments, computations and other matters relating to the Loan of any Lender, the percentage obtained by dividing (i) the Loan Exposure of that Lender, by (ii) the aggregate Loan Exposure of all Lenders. For all other purposes with respect to each Lender, “Proportionate Share” means, the percentage set forth opposite set forth such Lender’s name on Schedule 1 attached hereto or in the Assignment and Assumption Agreement (in accordance with the terms of this Agreement) pursuant to which such Lender became a party hereto, in any case, as such percentage may be modified in the most recent Assignment and Assumption Agreement (in
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accordance with the terms of this Agreement) to which such Lender is a party. The aggregate Proportionate Shares of all Lenders shall equal one hundred percent (100.00%).
“Protective Advances” has the meaning assigned to such term in Section 9.3(b).
“Public Lender” has the meaning assigned to such term in Section 10.18(b).
“Qualified Special Servicer” has the meaning assigned to such term in Section 9.6(c).
“Rating Agency” means each of S&P, Moody’s, and Fitch, or any other nationally-recognized statistical rating organization.
“Reference Time” has the meaning assigned to such term in Section 3.7(g).
“Register” has the meaning assigned to such term in Section 10.6(i).
“Related Parties” means, with respect to any Person, such Person’s Affiliates, successors, assigns, and the partners, members, managers, 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, leaking, pumping, injection, deposit, disposal, discharge or dispersal of Hazardous Materials into the environment, other than pursuant to a Governmental Authorization or in compliance with Environmental Law.
“Relevant Governmental Body” has the meaning assigned to such term in Section 3.7(g).
“Required Lenders” means one or more Lenders having or holding more than sixty-six and two-thirds of one percent (66 2/3%) of the sum of the aggregate Loan Exposure of all Lenders; provided that in determining such percentage at any given time, the Loans held by and Commitments made by all then-existing Defaulting Lenders will be disregarded and excluded, and the pro rata interests in the Loans and Commitments shall be redetermined, for voting or approval purposes only, to exclude the pro rata interests in the Loans and Commitments of such Defaulting Lenders, provided further, if there are only two (2) Lenders, Required Lenders shall mean all Lenders that are not Defaulting Lenders and if there are only three (3) Lenders, Required Lenders shall mean at least two (2) Lenders (unless there is only one (1) Lender that is not a Defaulting Lender, in which case it may be one (1) Lender) holding at least sixty-six and two-thirds of one percent (66 2/3%) of the aggregate outstanding principal amount of the Loans or, if the Loans shall not have been made, at least sixty-six and two-thirds of one percent (66 2/3%) of the Commitments, provided that in determining such percentage at any given time, the Loans held by and Commitments made by all then-existing Defaulting Lenders will be disregarded and excluded, and the pro rata interests in the Loans and Commitments shall be redetermined, for voting or approval purposes only, to exclude the pro rata interests in the Loans and Commitments of such Defaulting Lenders.
“Required Payment” has the meaning assigned to such term in Section 2.10.
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“Requirements of Law” means as to any Person, any law (statutory or common), treaty, rule, ordinance, order, judgment, Governmental Authorization, or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.
“Reset Date” means the first day of each Interest Period.
“Restricted Payment” means (a) any dividend or other distribution (whether in cash, Securities or other property), direct or indirect, on account of any shares of any class of Capital Stock of any Person now or hereafter outstanding, except a dividend payable solely in shares of that class of Capital Stock to the holders of that class; (b) any redemption, retirement, sinking fund or similar payment (whether in cash, Securities or other property), purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of such Person now or hereafter outstanding; (c) any payment (whether in cash, Securities or other property) made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of such Person now or hereafter outstanding; (d) management or similar fees payable to any Affiliate of Borrower; and (e) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in substance or legal defeasance), sinking fund or similar payment with respect to, any subordinated Indebtedness.
“Revolving Credit Maximum” means Forty Million and 00/100 Dollars ($40,000,000.00) as it may be increased from time to time pursuant to Section 2.11.
“S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation, or any successor thereto.
“Sanctioned Country” means, at any time, a country, territory or region that is, or whose government is, the subject or target of any Sanctions.
“Sanctioned Person” means, at any time, any Person with whom dealings are restricted or prohibited under Sanctions, including (a) any Person listed in any Sanctions-related list of designated Persons maintained by the United States (including by OFAC, the U.S. Department of the Treasury, or the U.S. Department of State), or by the United Nations Security Council, the European Union or any EU member state, Her Majesty’s Treasury of the United Kingdom or any other relevant sanctions authority, (b) any Person located, operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled, directly or indirectly, by any such Person described in clause (a) or (b) of this definition.
“Sanctions” means sanctions or trade embargoes enacted, imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC, U.S. Department of State, or U.S. Department of Commerce, (b) the United Nations Security Council, the European Union or any of its member states, Her Majesty’s Treasury of the United Kingdom, or (c) any other relevant sanctions authority.
“Secured Parties” means, collectively, Administrative Agent and the Lenders.
“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
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convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
“Security Agreement” means the Pledge and Security Agreement, dated as of