Exhibit 10.30


 




 





AMENDED
AND RESTATED CREDIT AGREEMENT




Dated as of
January 30, 2009




among




GPF
ACQUISITION, LLC,




as Borrower


 


WALKER &
DUNLOP MULTIFAMILY, INC., WALKER & DUNLOP GP, LLC,

and GREEN PARK FINANCIAL LIMITED PARTNERSHIP,


 


as Guarantors




WALKER &
DUNLOP, LLC,




as Pledgor




BANK
OF AMERICA, N.A.,




as
Administrative Agent and Collateral Agent




and




THE
LENDERS PARTY HERETO




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I. DEFINITIONS
  AND ACCOUNTING TERMS

  	
  2

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined Terms

  	
  2

  
	
  1.02

  	
  Other Interpretive Provisions

  	
  26

  
	
  1.03

  	
  Accounting Terms

  	
  26

  
	
  1.04

  	
  Rounding

  	
  27

  
	
  1.05

  	
  Times of Day

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE II. THE
  COMMITMENTS AND LOANS

  	
  27

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Loans

  	
  27

  
	
  2.02

  	
  Conversions and Continuations of Loans

  	
  27

  
	
  2.03

  	
  Prepayments and Repayments

  	
  27

  
	
  2.04

  	
  Extension Option

  	
  28

  
	
  2.05

  	
  Interest

  	
  28

  
	
  2.06

  	
  Computation of Interest

  	
  29

  
	
  2.07

  	
  Evidence of Debt

  	
  29

  
	
  2.08

  	
  Payments Generally; Administrative Agent’s
  Clawback

  	
  29

  
	
  2.09

  	
  Sharing of Payments by Lenders

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE III. TAXES,
  YIELD PROTECTION AND ILLEGALITY

  	
  31

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
  31

  
	
  3.02

  	
  Illegality

  	
  32

  
	
  3.03

  	
  Inability to Determine Rates

  	
  33

  
	
  3.04

  	
  Increased Costs; Reserves on LIBOR Rate
  Loans

  	
  33

  
	
  3.05

  	
  Compensation for Losses

  	
  34

  
	
  3.06

  	
  Mitigation Obligations; Replacement of
  Lenders

  	
  35

  
	
  3.07

  	
  Survival

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV. CONDITIONS
  PRECEDENT TO LOANS

  	
  35

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions of Loan

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE V. REPRESENTATIONS
  AND WARRANTIES

  	
  38

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Existence, Qualification and Power

  	
  38

  
	
  5.02

  	
  Authorization; No Contravention

  	
  38

  
	
  5.03

  	
  Governmental Authorization; Other Consents

  	
  38

  
	
  5.04

  	
  Binding Effect

  	
  38

  
	
  5.05

  	
  Base Line Projections

  	
  39

  
	
  5.06

  	
  Litigation

  	
  39

  
	
  5.07

  	
  No Default

  	
  39

  
	
  5.08

  	
  Ownership of Property; Liens

  	
  39

  
	
  5.09

  	
  Environmental Compliance

  	
  39

  
	
  5.10

  	
  Insurance

  	
  40

  
	
  5.11

  	
  Taxes

  	
  40

  
	
  5.12

  	
  ERISA Compliance

  	
  40

  
	
  5.13

  	
  Subsidiaries; Equity Interests

  	
  41

  
	
  5.14

  	
  Margin Regulations; Investment Company Act

  	
  41

  
	
  5.15

  	
  Disclosure

  	
  42

  
	
  5.16

  	
  Compliance with Laws

  	
  42

  
	
  5.17

  	
  Intellectual Property; Licenses, Etc.

  	
  42

  



 


1

















 


	
  5.18

  	
  Labor Matters

  	
  42

  
	
  5.19

  	
  Security Documents

  	
  43

  
	
  5.20

  	
  Solvency

  	
  43

  
	
  5.21

  	
  Deposit Accounts

  	
  43

  
	
  5.22

  	
  Brokers

  	
  43

  
	
  5.23

  	
  Customer and Trade Relations

  	
  43

  
	
  5.24

  	
  Material Contracts

  	
  43

  
	
  5.25

  	
  Casualty

  	
  44

  
	
  5.26

  	
  Transaction

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI. AFFIRMATIVE COVENANTS

  	
  45

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Financial Statements

  	
  45

  
	
  6.02

  	
  Certificates; Other Information

  	
  46

  
	
  6.03

  	
  Notices

  	
  47

  
	
  6.04

  	
  Payment of Obligations

  	
  47

  
	
  6.05

  	
  Preservation of Existence, Etc.

  	
  48

  
	
  6.06

  	
  Maintenance of Properties

  	
  48

  
	
  6.07

  	
  Maintenance of Insurance

  	
  48

  
	
  6.08

  	
  Compliance with Laws

  	
  48

  
	
  6.09

  	
  Books and Records; Accountants

  	
  48

  
	
  6.10

  	
  Inspection Rights; Appraisals

  	
  49

  
	
  6.11

  	
  Information Regarding the Collateral

  	
  49

  
	
  6.12

  	
  Environmental Laws

  	
  50

  
	
  6.13

  	
  Further Assurances

  	
  50

  
	
  6.14

  	
  Material Contracts

  	
  50

  
	
  6.15

  	
  Operating Accounts

  	
  50

  
	
  6.16

  	
  Subsequent Transaction Documents

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII. NEGATIVE
  COVENANTS

  	
  51

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Liens; Negative Pledges

  	
  51

  
	
  7.02

  	
  Investments

  	
  51

  
	
  7.03

  	
  Indebtedness

  	
  51

  
	
  7.04

  	
  Fundamental Changes

  	
  51

  
	
  7.05

  	
  Dispositions

  	
  52

  
	
  7.06

  	
  Restricted Payments; Restricted
  Distributions; Affiliate Tax Loans

  	
  52

  
	
  7.07

  	
  Prepayments of Indebtedness

  	
  54

  
	
  7.08

  	
  Change in Nature of Business

  	
  55

  
	
  7.09

  	
  Transactions with Affiliates

  	
  55

  
	
  7.10

  	
  Burdensome Agreements

  	
  56

  
	
  7.11

  	
  Use of Proceeds

  	
  56

  
	
  7.12

  	
  Amendment of Material Documents

  	
  56

  
	
  7.13

  	
  Corporate Name; Fiscal Year

  	
  56

  
	
  7.14

  	
  Financial Covenants

  	
  56

  
	
  7.15

  	
  Warehousing Agreement

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII. SPECIAL
  PROVISIONS REGARDING GREEN PARK AND WDLLC

  	
  59

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Special Representations, Warranties and
  Covenants Concerning Green Park Eligibility as Seller/Servicer of Mortgage
  Loans

  	
  59

  
	
  8.02

  	
  Special Representation, Warranty and
  Covenant with respect to Green Park Concerning Fannie Mae Program Reserve
  Requirements

  	
  59

  
	
  8.03

  	
  Green Park Pledge of Fannie Mae Servicing
  Contract Rights

  	
  59

  



 


2

















 


	
  8.04

  	
  Special Representations, Warranties and
  Covenants Concerning WDLLC Eligibility as Seller/Servicer of Mortgage Loans

  	
  61

  
	
  8.05

  	
  Special Representation, Warranty and
  Covenant with respect to WDLLC Concerning Fannie Mae Program Reserve
  Requirements

  	
  61

  
	
  8.06

  	
  WDLLC Pledge of Fannie Mae Servicing Contract
  Rights

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX. EVENTS
  OF DEFAULT AND REMEDIES

  	
  63

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Events of Default

  	
  63

  
	
  9.02

  	
  Remedies Upon Event of Default

  	
  66

  
	
  9.03

  	
  Application of Funds

  	
  66

  
	
  9.04

  	
  Fannie Mae Limitations

  	
  67

  
	
  9.05

  	
  Freddie Mac Limitations

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE X. ADMINISTRATIVE
  AGENT

  	
  67

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Appointment and Authority

  	
  67

  
	
  10.02

  	
  Rights as a Lender

  	
  68

  
	
  10.03

  	
  Exculpatory Provisions

  	
  68

  
	
  10.04

  	
  Reliance by Agents

  	
  69

  
	
  10.05

  	
  Delegation of Duties

  	
  69

  
	
  10.06

  	
  Resignation of Agents

  	
  69

  
	
  10.07

  	
  Non-Reliance on Administrative Agent and
  Other Lenders

  	
  70

  
	
  10.08

  	
  Administrative Agent May File Proofs
  of Claim

  	
  70

  
	
  10.09

  	
  Collateral and Guaranty Matters

  	
  71

  
	
  10.10

  	
  Notice of Transfer

  	
  71

  
	
  10.11

  	
  Reports and Financial Statements

  	
  71

  
	
  10.12

  	
  Agency for Perfection

  	
  72

  
	
  10.13

  	
  Indemnification of Agents

  	
  72

  
	
  10.14

  	
  Relation among Credit Parties

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI. GUARANTEE;
  PLEDGES OF NON-FANNIE MAE SERVICING CONTRACTS

  	
  72

  
	
   

  	
   

  	
   

  
	
  11.01

  	
  The Guarantee

  	
  72

  
	
  11.02

  	
  Obligations Unconditional

  	
  73

  
	
  11.03

  	
  Reinstatement

  	
  74

  
	
  11.04

  	
  Subrogation; Subordination

  	
  74

  
	
  11.05

  	
  Remedies

  	
  74

  
	
  11.06

  	
  Continuing Guarantee

  	
  74

  
	
  11.07

  	
  Pledge of Investor Servicing Rights by
  Green Park

  	
  74

  
	
  11.08

  	
  Pledge of Investor Servicing Rights by
  WDLLC

  	
  76

  
	
  11.09

  	
  Grant of Security Interest in Transaction
  Documents

  	
  78

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII. MISCELLANEOUS

  	
  79

  
	
   

  	
   

  	
   

  
	
  12.01

  	
  Amendments, Etc.

  	
  79

  
	
  12.02

  	
  Notices; Effectiveness; Electronic
  Communications

  	
  80

  
	
  12.03

  	
  No Waiver; Cumulative Remedies

  	
  81

  
	
  12.04

  	
  Expenses; Indemnity; Damage Waiver

  	
  82

  
	
  12.05

  	
  Payments Set Aside

  	
  83

  
	
  12.06

  	
  Successors and Assigns

  	
  83

  
	
  12.07

  	
  Treatment of Certain Information;
  Confidentiality

  	
  86

  
	
  12.08

  	
  Right of Setoff

  	
  86

  
	
  12.09

  	
  Interest Rate Limitation

  	
  87

  



 


3

















 


	
  12.10

  	
  Counterparts; Integration; Effectiveness

  	
  87

  
	
  12.11

  	
  Survival

  	
  87

  
	
  12.12

  	
  Severability

  	
  87

  
	
  12.13

  	
  Replacement of Lenders

  	
  88

  
	
  12.14

  	
  Governing Law; Jurisdiction; Etc.

  	
  88

  
	
  12.15

  	
  Waiver of Jury Trial

  	
  89

  
	
  12.16

  	
  No Advisory or Fiduciary Responsibility

  	
  89

  
	
  12.17

  	
  USA PATRIOT Act Notice

  	
  90

  
	
  12.18

  	
  Time of the Essence

  	
  90

  
	
  12.19

  	
  Press Releases

  	
  90

  
	
  12.20

  	
  Additional Waivers

  	
  91

  
	
  12.21

  	
  No Strict Construction

  	
  92

  
	
  12.22

  	
  Attachments

  	
  92

  



 


4

















 


	
  SCHEDULES

  
	
   

  
	
  2.01

  	
  Commitments and Applicable Percentages

  
	
  5.01

  	
  Loan Parties Organizational Information

  
	
  5.10

  	
  Insurance

  
	
  5.13

  	
  Subsidiaries; Other Equity Investments

  
	
  5.21

  	
  Deposit Accounts

  
	
  5.24

  	
  Material Contracts

  
	
  7.01

  	
  Existing Liens

  
	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
   

  
	
  A

  	
  Form of Note

  
	
  B

  	
  Form of Compliance Certificate

  
	
  C

  	
  Form of Assignment and Assumption

  



 


1

















 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


This AMENDED
AND RESTATED CREDIT AGREEMENT is entered into as of January 30,
2009 among


 


GPF
ACQUISITION, LLC, a Delaware limited liability company
(the “Borrower”),


 


WALKER &
DUNLOP MULTIFAMILY, INC., a Delaware corporation,
and WALKER & DUNLOP GP, LLC, a
Delaware limited liability company, as Guarantors,


 


GREEN PARK
FINANCIAL LIMITED PARTNERSHIP, a District of Columbia
limited partnership (“Green Park”),


 


WALKER &
DUNLOP, INC., a Delaware corporation (“WD”),


 


WALKER &
DUNLOP, LLC, a Delaware limited liability company (“WDLLC”),


 


each lender from time to time party hereto
(collectively, the “Lenders” and
individually, a “Lender”), and


 


BANK OF
AMERICA, N.A., a national banking association, as
Administrative Agent and Collateral Agent.


 


PRELIMINARY
STATEMENTS:


 


Pursuant to the Partnership Interest Purchase
Agreement dated as of October 26 2006 by and among the Borrower, Sun GP
Corp. and SunAmerica Life Insurance Company, as sellers, the Borrower acquired
(the “Acquisition”)  all  of the interests of such sellers in
Green Park.


 


At the request of the Borrower the Lenders
provided a $42,500,000 term loan facility to finance the Acquisition, pursuant
to the terms and subject to the conditions set forth in that certain Credit
Agreement dated as of the Original Closing Date entered in to among the
Borrower, Multifamily Inc., GP, Green Park, WD, the Lenders party thereto, and
Bank of America, N.A., as Administrative Agent and Collateral Agent (as amended
and in effect, the “Existing Credit
Agreement”). As of
the date hereof the current outstanding principal balance of the Loan is
$33,300,000.00.


 


Green Park and WD have advised Administrative
Agent and the Lenders that they have entered into the Transaction Documents
with CGL (as hereafter defined), pursuant to which they have formed WDLLC for
the purpose of creating a vehicle by which they may aggregate their assets and
experience for the purpose of enhancing the business of each of Green Park, WD
and CGL.


 


In connection with the consummation of the
transactions contemplated by the Transaction Documents (the “Transaction”), parties to the Existing Agreement desire to amend and restate
the Existing Credit Agreement as provided herein.


 


NOW, THEREFORE, in consideration of the
mutual conditions and agreements set forth in this Agreement, and for good and
valuable consideration, the receipt of which is hereby acknowledged, the
Lenders, the Agents, the Guarantors and the Borrower hereby agree that the
Existing Credit Agreement shall be amended and restated, without novation, in
its entirety to read as follows:


 


1

















 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


1.01 Defined
Terms. In addition to terms which are defined
elsewhere in this Agreement, as used in this Agreement, the following terms
shall have the meanings set forth below:


 


“ACH” means automated clearing house
transfers.


 


“Accommodation Payment” has the
meaning specified in Section 12.20(d).


 


“Acquisition” has the meaning
specified in the Preliminary Statements hereto. 


 


“Additional Distribution” has the
meaning specified in Section 7.06(c).


 


“Additional Distribution Subordinated Note”
has the meaning specified in Section. 7.06(c).


 


“Adjusted LIBOR Rate” means, with
respect to any LIBOR Rate Loan for any Interest Period, an interest rate per
annum (rounded upwards, if necessary, to the next 1/16 of one percent (1%))
equal to (a) the LIBOR Rate for such Interest Period multiplied by
(b) the Statutory Reserve Rate. The Adjusted LIBOR Rate will be adjusted
automatically as to all LIBOR Rate Loans then outstanding as of the effective
date of any change in the Statutory Reserve Rate.


 


“Adjusted Tangible Net Worth” means
with respect to WDLLC, as of the date of determination thereof (net of intercompany
accounts and without duplication):


 


(a)           the result of total assets minus
total liabilities, each determined on in accordance with GAAP,


 


plus


 


(b)           the Fair Market Value of all
Servicing Contracts of WDLLC,


 


minus


 


the sum of (i) the GAAP value of all Servicing
Contracts of WDLLC and (ii) intangible assets of WDLLC and its
Subsidiaries (only to the extent not included in the immediately preceding
clause (i)).


 


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


 


“Administrative Agent’s Office” means
the Administrative Agent’s address and, as appropriate, account, as set forth
in Section 12.02 or such other address or account as the
Administrative Agent may from time to time notify the Borrower and the Lenders.


 


“Affiliate” means, with respect to any
Person, (i) another Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common Control
with the Person specified (and, if the specified Person is an individual,
including any member of such Person’s immediate family (by blood or marriage)),
(ii) any director, officer, managing member, partner, trustee, or
beneficiary of that Person, (iii) any other Person directly or indirectly
holding 10% or more of any class of the Equity Interests of that Person, and
(iv) any other Person 10% or more of any class of whose Equity Interests
is held directly or indirectly by that Person.


 


2

















 


“Affiliate Tax Loan” has the meaning
specified in Section 7.06.


 


“Agent(s)” means, individually, the
Administrative Agent or the Collateral Agent, and collectively means both of
them.


 


“Aggregate Commitments” means the
Commitments of all the Lenders.


 


“Agreement” means this Credit
Agreement, as the same may be from time to time amended, modified, or restated,
or any provision hereof waived.


 


“Applicable Margin” means 3.50%.


 


“Applicable Percentage” means with
respect to each Lender, that percentage of the Commitments of all Lenders
hereunder to make Loans to the Borrower. The initial Applicable Percentage of
each Lender is set forth opposite the name of such Lender on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.


 


“Appraised Value” has the meaning
specified in Section 6.10(c).


 


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


 


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


 


“Assignment and Assumption” means an
assignment and assumption entered into by a Lender and an Eligible Assignee
(with the consent of any party whose consent is required by Section 12.06(b)),
and accepted by the Administrative Agent, in substantially the form of Exhibit C
or any other form approved by the Administrative Agent.


 


“At Risk Mortgage Loans” means
Mortgage Loans as to which WDLLC has any loss sharing arrangement or otherwise
are with recourse to WDLLC.


 


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


 


“Bankruptcy Code” is defined within
the definition of “Debtor Relief Laws.”


 


“Base Line Projections” means the
projections provided to the Administrative Agent pursuant to Section 4.01(c).


 


“Base Rate” means for any day a
fluctuating rate per annum equal to the greater of (a) the Prime Rate for
such day, or (b) sum of (i) the Federal Funds Rate for such day, plus
(ii) 0.50%.


 


“Base Rate Loan” means the Term Loan
at any time that it is required to bear interest based on the Base Rate in
accordance with applicable provisions of this Agreement.


 


“Borrower” has the meaning specified
in the introductory paragraph hereto.


 


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


 


3

















 


such day on which dealings in Dollar deposits
are conducted by and between banks in the London interbank market.


 


“Cash Management Services” means any
one or more of the following types or services or facilities provided to any
Loan Party by the Administrative Agent or any of its Affiliates: (a) ACH
transactions, (b) cash management services, including, without limitation,
controlled disbursement services, treasury, depository, overdraft, and
electronic funds transfer services, or (c) foreign exchange facilities.


 


“CERCLA” means the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et
seq.


 


“CERCLIS” means the Comprehensive
Environmental Response, Compensation, and Liability Information System
maintained by the United States Environmental Protection Agency.


 


“CGL” means Column Guaranteed LLC, a Delaware
limited liability company.


 


“Change in Law” means the occurrence,
after the date of this Agreement, of any of the following: (a) the
adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration,
interpretation or application thereof by any Governmental Authority or (c) the
making or issuance of any request, guideline or directive (whether or not
having the force of law) by any Governmental Authority.


 


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


 


(a)           Mallory Walker, Howard W. Smith III,
William M. Walker and Taylor S. Walker shall cease to own and control legally
and beneficially (free and clear of all Liens other than Related Party
Permitted Encumbrances) not less than 51% on a fully-diluted basis, of all the
issued and outstanding Equity Interests in Multifamily Inc.;


 


(b)           Mallory Walker, Howard W. Smith III,
William M. Walker and Taylor S. Walker shall cease to own and control legally
and beneficially (free and clear of all Liens other than Related Party
Permitted Encumbrances) not less than 51% on a fully-diluted basis, of all the
issued and outstanding Equity Interests in WD; provided, however,
that the parties hereto agree that a proportionate reduction in the ownership
percentages set forth in this clause (b) resulting from the WD Disposition
shall not constitute a Change of Control;


 


(c)           Mallory Walker, Howard W. Smith III,
William M. Walker and Taylor S. Walker shall cease to own and control legally
and beneficially (free and clear of all Liens other than Related Party
Permitted Encumbrances) not less than 51% on a fully-diluted basis, of all the
issued and outstanding Equity Interests in GP;


 


(d)           Other than pursuant to a Permitted
Transfer, Mallory Walker, Howard W. Smith III, William M. Walker and Taylor S.
Walker shall cease to own and control legally and beneficially (free and clear
of all Liens other than Related Party Permitted Encumbrances) not less than 51%
on a fully-diluted basis, of all the issued and outstanding Equity Interests in
the Borrower;


 


(e)           Multifamily Inc., GP and Borrower
shall cease to collectively and directly own and Control, legally and
beneficially (free and clear of all Liens), 100% of all the issued and
outstanding Equity Interests in Green Park;


 


4














 


(f)            GP shall cease to be
the managing general partner of Green Park;


 


(g)           WD, Green Park, and
their Affiliates shall cease to collectively and directly own and Control,
legally and beneficially (free and clear of all Liens), not less than 51% of
all the issued and outstanding Common Units or other voting Equity Interests
issued by WDLLC, or otherwise shall cease to collectively and directly Control
WDLLC;


 


(h)           Both Principals cease
to be actively involved in the management of the Loan Parties and their Subsidiaries
to the same extent as on the Original Closing Date, and, with respect to WDLLC
as contemplated as of the Closing Date (except due to the Principals’ death or
disability, provided, however, in such instance, any replacement of such
Principals shall be subject to approval in writing by the Administrative Agent,
in its sole discretion, within 60 days of such death or disability); or


 


(i)            any Person or two or
more Persons acting in concert shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or policies
of any Loan Party or of WDLLC, or Control over the Equity Interests of any Loan
Party or of WDLLC which is entitled to vote for members of the board of
directors or equivalent governing body of the subject Person, on a
fully-diluted basis (and taking into account all such securities that such Person
or Persons have the right to acquire pursuant to any option right);


 


provided,
however, that any change in the ownership percentages set forth in any
of clauses (a), (b) or (c) resulting from (i) the exercise by WD
or Multifamily, Inc., as applicable, of foreclosure rights with respect to
Related Party Permitted Encumbrances as permitted under the Smith Intercreditor
Agreement or (ii) the exercise of any repurchase of Equity Interests from
a Minority Holder or a Principal permitted under the Loan Documents, shall not
constitute a Change of Control; provided, further, that in the
event of a transfer of Equity Interests by operation of law which violates any
of clauses (a) through (j), (I) the Borrower agrees to notify the
Administrative Agent promptly and in any event within two (2) Business
Days following Borrower becoming aware of such transfer and (II) the Loan
Parties, WDLLC and the Administrative Agent agree to work together in good
faith for a period of 30 days following the delivery of such notice to seek a
mutually satisfactory resolution of such breach, during which 30 days any
breach of clauses (a) through (j) resulting from such transfer shall
not be deemed to be an Event of Default hereunder. Any transfer which is
mutually agreed to by the Administrative Agent, the Loan Parties and WDLLC in
accordance with the foregoing shall be referred to as a “Permitted Operation of Law Transfer”.


 


“Closing Date” means the first date
all the conditions precedent in Section 4.01 are satisfied or
waived in accordance with Section 12.01.


 


“Code” means the Internal Revenue Code
of 1986, and the regulations promulgated thereunder, as amended and in effect.


 


“Collateral” means any and all
collateral as defined in, or in which a security interest shall be granted pursuant
to, this Agreement and each other applicable Security Document and all other
property that is or is intended under the terms of the this Agreement and/or
other Security Documents to be subject to Liens in favor of the Collateral
Agent.


 


“Collateral Agent” means Bank of
America, N.A., acting in such capacity for its own benefit and the ratable
benefit of the other Credit Parties.


 


5

















 


“Commitment” means, as to each Lender,
its obligation to make a Loan to the Borrower pursuant to Section 2.01,
in the principal amount set forth opposite such Lender’s name on Schedule
2.01.


 


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


 


“Consent” means actual consent given
by a Lender from whom such consent is sought.


 


“Contractual Obligation” means, as to
any Person, any provision of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.


 


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


 


“Credit Party” or “Credit Parties”
means (a) individually, (i) each Lender and its Affiliates, (ii) each
Agent, (iii) each beneficiary of each indemnification obligation
undertaken by any Loan Party under any Loan Document, (iv) any other Person
to whom Obligations under this Agreement and other Loan Documents are owing,
and (v) the successors and assigns of each of the foregoing, and (b) collectively,
all of the foregoing.


 


“Credit Party Expenses” means, without
limitation,


 


(a)           all reasonable
out-of-pocket expenses incurred by the Agents and their respective Affiliates,
in connection with


 


(i)           this Agreement and the other Loan Documents,
including without limitation the reasonable fees, charges and disbursements of
counsel for the Agents, outside consultants for the Agents, appraisers and all
such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of the Obligations, and


 


(ii)          the syndication of the credit facilities
provided for herein, the preparation, negotiation, administration, management,
execution and delivery of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), the
enforcement or protection of their rights in connection with this Agreement or
the Loan Documents or efforts to preserve, protect, collect, or enforce the
Collateral, or any workout, restructuring or negotiations in respect of any
Obligations; and


 


(b)           all reasonable
out-of-pocket expenses incurred by the Credit Parties who are not the Agents or
any Affiliate of any of them, after the occurrence and during the continuance
of an Event of Default, provided that such Credit Parties shall be entitled to
reimbursement for no more than one counsel representing all such Credit Parties
(absent a conflict of interest in which case the Credit Parties may engage and
be reimbursed for additional counsel).


 


“Debtor Relief Laws” means Title 11 of
the United States Code (as amended from time to time, and any successor statute
or statutes, the “Bankruptcy Code”), and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors generally.


 


6

















 


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


 


“Default Rate” means the following:


 


(a)           with respect to Base
Rate Loans an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Margin applicable to Base Rate Loans, plus (iii) 4% per
annum; and


 


(b)           with respect to a LIBOR
Rate Loan, an interest rate equal to (i) the Adjusted LIBOR Rate, plus
(ii) the Applicable Margin applicable to LIBOR Rate Loans, plus (iii) 4%
per annum.


 


“Defaulting Lender” means any Lender
that (a) has failed to pay over to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within one Business
Day of the date when due, unless the subject of a good faith dispute, or (b) has
been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.


 


“Disposition” or “Dispose”
means the sale, transfer, license, lease or other disposition (including any
sale and leaseback transaction and any sale, transfer, license or other
disposition of (whether in one transaction or in a series of transactions) all
or substantially all of its assets) to or in favor of any Person) of any
property (including, without limitation, any Equity Interests) by any Person
(or the granting of any option or other right to do any of the foregoing),
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 .


 


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


 


“EBITDA” means, at any date of
determination thereof, an amount equal to the following, all as determined in
accordance with GAAP (net of intercompany transactions and without
duplication):


 


(c)           Net Income for the most
recently completed Measurement Period;


 


plus


 


(d)           to the extent deducted
in calculating Net Income, and to the extent prefunded or to be funded by CGL
(i) up to $500,000, in the aggregate, of termination fees and other costs
associated with terminating WDLLC’s servicing contract with Capmark and
transferring the services previously provided by Capmark to WDLLC, (ii) up
to $4,833,205, in the aggregate in compensation expenses associated with WDLLC
employment of former employees of CGL, (iii) up to $750,000, in the
aggregate, of operating deficits assumed by WDLLC in respect of CGL’s FHA
lending operation, and (iv) up to $2,973,805.75, in the aggregate, of
losses arising out of CGL’s Servicing Portfolio;


 


plus


 


(e)           an amount equal to any
Passed-Through Interest Distributions made during the applicable Measurement
Period.


 


7

















 


minus


 


(f)            to the extent
included in calculating Net Income, (i) capitalized amounts attributable
to origination of Servicing Contract rights and (ii) cash received under
the Rate Cap Agreement and any unrealized gains under the Rate Cap Agreement.


 


“Eligible Assignee” means (a) a
Credit Party or any of its Affiliates; (b) a bank, insurance company, or
company engaged in the business of making commercial loans, which Person,
together with its Affiliates, has a combined capital and surplus in excess of
$250,000,000; (c) an Approved Fund; (d) any Person to whom a Credit
Party assigns its rights and obligations under this Agreement as part of an
assignment and transfer of such Credit Party’s rights in and to a material
portion of such Credit Party’s portfolio of asset based credit facilities, and
(e) any other Person (other than a natural person) approved by (i) the
Administrative Agent, and (ii) unless an Event of Default has occurred and
is continuing, the Borrower (each such approval not to be unreasonably withheld
or delayed); provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include a Loan Party or any of the Loan Parties’ Affiliates
or Subsidiaries.


 


“Employee LLC” means Walker &
Dunlop II, LLC, a Delaware limited liability company.


 


“Environmental Laws” means any and all
Federal, state, local, and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment,
including those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.


 


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


 


“Equity Interests” means, with respect
to any Person, all of the shares of capital stock of (or other ownership or
profit interests in) such Person, all of the warrants, options or other rights
for the purchase or acquisition from such Person of shares of capital stock of
(or other ownership or profit interests in) such Person, all of the securities
convertible into or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights or options
for the purchase or acquisition from such Person of such shares (or such other
interests), and all of the other ownership or profit interests in such Person
(including partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such shares, warrants, options, rights or other
interests are outstanding on any date of determination.


 


“ERISA” means the Employee Retirement
Income Security Act of 1974.


 


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


 


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


 


8

















 


cessation of operations that is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete
or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA, other than
for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon
the Borrower or any ERISA Affiliate.


 


“Event of Default” has the meaning
specified in Section 9.01. An Event of Default shall be deemed to
be continuing unless and until that Event of Default has been duly waived as
provided in Section 12.03.


 


“Excluded Taxes” means, with respect
to the Administrative Agent, a Lender or any other recipient of any payment to
be made by or on account of any obligation of the Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable Lending Office is located, (b) any
branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction in which the Borrower is located and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 12.13), any withholding tax that is imposed
on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party hereto (or designates a new Lending Office) or is attributable
to such Foreign Lender’s failure or inability (other than as a result of a Change
in Law) to comply with Section 3.01(e), except to the extent that
such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new Lending Office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to Section 3.01(a).


 


“Extension Option” has the meaning
specified in Section 2.04.


 


“Extraordinary Receipt” means any cash
received by or paid to or for the account of any Person not in the ordinary
course of business, including tax refunds, pension plan reversions, proceeds of
insurance (other than proceeds of business interruption insurance to the extent
such proceeds constitute compensation for lost earnings), condemnation awards
(and payments in lieu thereof), indemnity payments and any purchase price
adjustments.


 


“Fair Market Value” means, at any time
for any Servicing Contract as of any date of determination, the Appraised Value
thereof, using the mid-point if such Appraised Value is expressed as a range,
based upon the most recent appraisal approved by the Administrative Agent, or,
if the most recent approved appraisal is more than 90 days old, based upon the
estimated fair market value thereof determined as of the then most recently
ended Fiscal Quarter by WDLLC in good faith, and subject to the Administrative
Agent’s prior approval, not to be unreasonably withheld or delayed, by applying
the same metrics (same stratifications by type and same valuation factors
(including the mid-point thereof if such appraisal expressed the valuation
factors as a range)) utilized by the appraiser who provided the most recent
Appraised Value to the updated Servicing Contracts (i.e., the updated principal
balances of Mortgage Loans being serviced thereunder).


 


“Fannie Mae” means Fannie Mae, a
corporation created under the laws of the United States, and any successor
corporation or other entity.


 


9

















 


“Fannie Mae Agreements” has the
meaning specified in Section 8.03(a).


 


“Fannie Mae Aggregation Program” means
Fannie Mae’s program for the purchase of Mortgage Loans described in the
Aggregation Product Line portion of Fannie Mae’s Negotiated Transactions Guide,
as amended from time to time.


 


“Fannie Mae DUS Mortgage Loan” means a
permanent Mortgage Loan on a Multifamily Property originated under Fannie Mae’s
Delegated Underwriting and Servicing Guide, as amended from time to time.


 


“Fannie Mae DUS Program” means Fannie
Mae’s program for the purchase of Mortgage Loans originated under Fannie Mae’s
Delegated Underwriting and Servicing Guide, as amended from time to time.


 


“Fannie Mae Program” means any of (i) the
Fannie Mae DUS Program, (ii) Fannie Mae Aggregation Program, (iii) Fannie
Mae Small Mortgage Loan Program (successor to the former 3MaxExpress Program),
(iv) Fannie Mae DUS Plus Program and (v) any other program offered by
Fannie Mae at any time and from time to time in which WDLLC participates, or
Green Park and CGL participate (but only during the applicable transitional
periods set forth in the Transition Services Agreement).


 


“Fannie Mae Servicing Contracts” has
the meaning specified in Section 8.03(a).


 


“Federal Funds Rate” means, for any
day, the rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate
for such day shall be the average rate (rounded upward, if necessary, to a
whole multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.


 


“First Extended Maturity Date” has the
meaning specified in Section 2.04.


 


“Fiscal Month” means any fiscal month
of any Fiscal Year.


 


“Fiscal Quarter” means any fiscal
quarter of any Fiscal Year.


 


“Fiscal Year” means any period of
twelve consecutive months ending on December 31 of any calendar year.


 


“FM Designated Loans” has the meaning
specified in Section 8.03(a).


 


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


 


“Formation Agreement” means the
Formation Agreement dated as of January 30, 2009 by and among Green Park,
WD, CGL and WDLLC.


 


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


 


10

















 


“Freddie Mac” means Freddie Mac, a
corporation organized under the laws of the United States, and any successor
corporation or other entity.


 


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


 


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


 


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


 


“GP” means Walker & Dunlop
GP, LLC, a Delaware limited liability company. 


 


“Green Park” has the meaning specified
in the introductory paragraph hereto. 


 


“Green Park FM Collateral” has the
meaning specified in Section 8.03(a).


 


“Green Park FM Security Interest” has
the meaning specified in Section 8.03(a).


 


“Green Park Investor Collateral” has
the meaning specified in Section 11.07(a).


 


“Green Park Investor Designated Loans”
has the meaning specified in Section 11.07(a).


 


“Green Park Investor Security Interest”
has the meaning specified in Section 11.07(a).


 


“Guarantee” means, as to any Person,
(a) any obligation, contingent or otherwise, of such Person guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including any obligation of
such Person, direct or indirect, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of
assuring in any other manner the obligee in respect of such Indebtedness or
other obligation of the payment or performance thereof or to protect such
obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is
assumed by such Person (or any right, contingent or otherwise, of any holder of
such Indebtedness to obtain any such Lien). The amount of any Guarantee shall
be deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum


 


11

















 


reasonably anticipated liability in respect
thereof as determined by the guaranteeing Person in good faith. The term
“Guarantee” as a verb has a corresponding meaning.


 


“Guarantor” means each of Multifamily
Inc., GP and Green Park, and each other Person that shall at any time become a
guarantor hereunder.


 


“Hazardous Materials” 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 all other substances or wastes of any
nature regulated pursuant to any Environmental Law.


 


“Hedging Arrangements” means, with
respect to any Person, any agreements or other arrangements (including interest
rate swap agreements, interest rate cap agreements and forward sale agreements)
entered into to protect that Person against changes in interest rates or the
market value of assets.


 


“HUD” means the Department of Housing
and Urban Development, and any successor agency or other entity.


 


“Indebtedness” means, as to any
Person, all obligations, contingent and otherwise, that in accordance with GAAP
should be classified upon the consolidated balance sheet of such Person and
such Person’s Subsidiaries as liabilities, or to which reference should be made
by footnotes thereto, including in any event and whether or not so classified:
(a) all obligations for borrowed money or other extensions of credit
whether secured or unsecured, absolute or contingent, including, without
limitation, unmatured reimbursement obligations with respect to letters of
credit or guarantees issued for the account of or on behalf of such Person and
its Subsidiaries and all obligations representing the deferred purchase price
of property; (b) all obligations evidenced by bonds, notes, debentures or
other similar instruments; (c) all liabilities secured by any mortgage,
pledge, security interest, lien, charge, or other encumbrance existing on
property owned or acquired subject thereto, whether or not the liability
secured thereby shall have been assumed; (d) all guarantees, endorsements
and other contingent obligations whether direct or indirect, in respect of
indebtedness of others or otherwise, including any obligations under Hedging
Arrangements and otherwise with respect to puts, swaps, and other similar
undertakings, any obligation to supply funds to or in any manner to invest in,
directly or indirectly, the debtor, to purchase indebtedness, or to assure the
owner of indebtedness against loss, through an agreement to purchase goods,
supplies, or services for the purpose of enabling the debtor to make payment of
the indebtedness held by such owner or otherwise, and the obligations to
reimburse the issuer in respect of any letters of credit; and (e) that
portion of all obligations arising under capital leases that is required to be
capitalized on the consolidated balance sheet of such Person and its
Subsidiaries; but excluding, in all events obligations arising under operating
leases and accounts payable arising in the ordinary course of business.


 


“Indemnified Taxes” means Taxes other
than Excluded Taxes.


 


“Indemnitees” has the meaning
specified in Section 12.04(b).


 


“Information” has the meaning
specified in Section 12.07.


 


“Initial Maturity Date” means October 31,
2009.


 


“Interest Payment Date” means, (a) as
to any LIBOR Rate Loan, the last day of each Interest Period applicable to such
Loan and the Maturity Date; and (b) as to any Base Rate Loan, the last
Business Day of each month and the Maturity Date.


 


12

















 


“Interest Period” means, unless the
Term Loan has become a Base Rate Loan, the period commencing on the first day
following each expiring Interest Period (as provided in Section 2.02), or
on the first day that the Term Loan resumes as a LIBOR Rate Loan after having
been required to become a Base Rate Loan as required by applicable provisions
of this Agreement, and ending in each case on the date one month thereafter; provided
that:


 


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


 


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


 


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


 


(iv)            notwithstanding
the provisions of clause (iii), no Interest Period shall have a duration of
other than one (1) month, and if any Interest Period applicable to a LIBOR
Rate Loan would be for a shorter period, such Interest Period shall not be
available hereunder.


 


“Investment” means, as to any Person,
any direct or indirect acquisition or investment by such Person, whether by
means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee
or assumption of debt of, or purchase or other acquisition of any other debt or
interest in, another Person; provided, however, that trade
advances, prepaid expenses and similar transactions made in the ordinary course
of business shall not be deemed “Investments”, (c) any acquisition, or (d) any
other investment of money or capital in order to obtain a profitable return.
For purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.


 


“Investor” means any Person (other
than Fannie Mae) that purchases Mortgage Loans serviced by Green Park.


 


“Investor Servicing Contracts” has the
meaning specified in Section 11.07(a).


 


“Investor Agreements” has the meaning
specified in Section 11.07(a).


 


“IRS” means the United States Internal
Revenue Service.


 


“Laws” means each international,
foreign, Federal, state and local statute, treaty, rule, guideline, regulation,
ordinance, code and administrative or judicial precedent or authority,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and each applicable administrative order, directed duty, request,
license, authorization and permit of, and agreement with, any Governmental
Authority, in each case whether or not having the force of law.


 


“Lender” has the meaning specified in
the introductory paragraph hereto.


 


13

















 


“Lending Office” means, as to any
Lender, the office or offices of such Lender from time to time described as
such in a written notice to the Borrower and the Administrative Agent, at least
three (3) Business Days before any payment is due hereunder or any other
Loan Documents to any such Lender.


 


“LIBOR Rate” means for any Interest
Period applicable to the Term Loan, the rate per annum equal to the British
Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated
by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, for Dollar deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the “LIBOR Rate” for such Interest
Period shall be the rate per annum determined by the Administrative Agent to be
the rate at which deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the Term Loan
with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period.


 


“LIBOR Rate Loan” means the Term Loan
at any time other than when it is required to be a Base Rate Loan in accordance
with applicable provisions of this Agreement.


 


“Lien” means (a) any mortgage,
deed of trust, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other
security interest or preferential arrangement in the nature of a security
interest of any kind or nature whatsoever 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 the following
unrestricted and unencumbered assets owned by a Person (and, if applicable,
that Person’s Subsidiaries, on a consolidated basis) as of any date of
determination: (a) cash, (b) funds on deposit in accounts with any
bank located in the United States, (c) investment grade commercial paper,
(d) money market funds, (e) marketable securities actively traded on
a major U.S. exchange, (f) securities issued or fully guarantied or
insured by the United States government or any agency thereof (but subject to
the full faith and credit of the United States) or Fannie Mae and (g) Mortgage
Loans secured by Multifamily Properties that are presold to Fannie Mae, Freddie
Mac or a conduit or investor approved in writing by the Administrative Agent,
in its sole discretion.


 


“Liquidation” means the exercise by
the Administrative Agent or Collateral Agent of those rights and remedies
accorded to such Agents under the Loan Documents and applicable Law as a
creditor of the Loan Parties with respect to the realization on the Collateral,
including (after the occurrence and during the continuation of an Event of
Default) the conduct by the Loan Parties acting with the consent of the
Administrative Agent, of any public, or private sale or other disposition of
the Collateral for the purpose of liquidating the Collateral. Derivations of
the word “Liquidation” (such as “Liquidate”) are used with like meaning in this
Agreement.


 


“Loan” means the extension of credit
by a Lender to the Borrower under Article II.


 


“Loan Account” has the meaning
assigned to such term in Section 2.07.


 


“Loan Documents” means this Agreement,
each Note, the Security Documents, and any other instrument or agreement now or
hereafter executed and delivered in connection herewith, or in connection with
any transaction arising out of any Cash Management Services, each as amended
and in effect from time to time.


 


14














 


“Loan Parties” means, collectively,
the Borrower, each Guarantor, and WD.


 


“LTSV Ratio” means, at any time of
determination, the quotient, expressed as a percentage, of (a) the then
Outstanding Amount of the Loan, divided by (b) the then Fair Market Value
of all Servicing Contracts of WDLLC.


 


“Material Adverse Effect” means (a) a
material adverse change in, or a material adverse effect upon, the operations,
business, properties, liabilities (actual or contingent), or condition (financial
or otherwise) of any Loan Party, WDLLC or the Loan Parties taken as a whole;
(b) a material impairment of the ability of any Loan Party or WDLLC to
perform its obligations under any Loan Document to which it is a party; or (c) a
material impairment of the rights and remedies of the Agent or the Lenders
under any Loan Document or a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party or WDLLC of
any Loan Document to which it is a party. In determining whether any individual
event would result in a Material Adverse Effect, notwithstanding that such
event in and of itself does not have such effect, a Material Adverse Effect
shall be deemed to have occurred if the cumulative effect of such event and all
other then existing events would result in a Material Adverse Effect.


 


“Material Contract” means any
Contractual Obligation the default or breach of which by any party thereto
could be reasonably expected to have a Material Adverse Effect.


 


“Maturity Date” means, as applicable,
the Initial Maturity Date, the First Extended Maturity Date, or the Second
Extended Maturity Date.


 


“Maximum Rate” has the meaning
provided therefor in Section 12.09.


 


“Measurement Period” means, at any
date of determination, the most recently completed four Fiscal Quarters of the
applicable Person. For purposes of calculating any financial ratio or financial
covenant for a Measurement Period (a) other than with respect to the last
Fiscal Quarter of any Fiscal Year, the financial statements delivered to the
Administrative Agent pursuant to Section 6.01(b) shall be used with
respect to each respective Fiscal Quarter covered thereby, provided that, when
a Measurement Period includes a Fiscal Quarter which is covered by the then
most recently delivered audited financial statements required to be delivered
to the Administrative Agent pursuant to Section 6.01(a), then the financial
statements relating to such prior covered Fiscal Quarters shall be adjusted
pursuant to any adjustments made in such audited financial statements, and (b) for
the fourth Fiscal Quarter, the audited financial statements for the Fiscal Year
then ended shall be used.


 


“Minority Holders” means each holder
of five percent or less of Equity Interests in a Loan Party. 


 


“Moody’s” means Moody’s Investors
Service, Inc. and any successor thereto.


 


“Mortgage” means a mortgage or deed of
trust on real property that is improved and substantially completed.


 


“Mortgage Loan” means any loan
evidenced by a Mortgage Note and secured by a Mortgage and, if applicable, a
Mortgage Security Agreement.


 


“Mortgage Note” means a promissory
note secured by one or more Mortgages and, if applicable, one or more Mortgage
Security Agreements.


 


15

















 


“Mortgage Security Agreement” means a
security agreement or other agreement that creates a Lien on personal property,
including furniture, fixtures and equipment, to secure repayment of a Mortgage
Loan.


 


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


 


“Multifamily Inc.” means Walker &
Dunlop Multifamily, Inc., a Delaware corporation.


 


“Multifamily Property” means real
property that contains or that will contain more than 4 dwelling units.


 


“National City Agreement” means that
certain Third Amended and Restated Loan Agreement, dated as of January 31,
2009, by and between Green Park and National City Bank, as amended from time to
time.


 


“Net Income” means, as of any date of
determination, the net income of WDLLC for the most recently completed
Measurement Period, after deduction of (a) all expenses, taxes, and other
proper charges, all as determined in accordance with GAAP, and (b) Passed-Through
Interest Distributions.


 


“Non-Consenting Lender” has the
meaning provided therefor in Section 12.01.


 


“Non-Compete Agreement” shall mean the
Non-Competition Agreements, each dated as of the Original Closing Date, among
WD, Green Park and each of Mallory Walker and William M. Walker.


 


“Normal Warehousing Line” means,
collectively, the Warehousing Agreement, the National City Agreement, and any
substantially similar replacement warehousing line of credit entered into in
each case for the sole purpose of financing the origination of Mortgage Loans
secured by Multifamily Properties which Mortgage Loans are pre-sold to Fannie
Mae, Freddie Mac, or a conduit or investor approved in writing by the Required
Lenders in their sole discretion; provided, however, that any
increase in the maximum committed loan amount under any such Normal Warehousing
Line from the maximum committed loan amount in effect on the Closing Date shall
be subject in any event to Section 7.15 and shall not be
permitted without the prior written consent of the Required Lenders, which
consent shall be granted or withheld in the Required Lender’s reasonable
discretion and shall take into consideration, among other things, the
developments in the business of WDLLC, including, without limitation, its then
current borrowing needs.


 


“Notes” means the promissory notes of
the Borrower substantially in the form of Exhibit A, issued at the
request of a Lender pursuant to Section 2.07 and each payable to
the order of such Lender, evidencing the Loan made by such Lender, and “Note”
means any one of such Notes.


 


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


 


16

















 


“Operating Agreement” means the
Operating Agreement of WDLLC dated as of January 30, 2009.


 


“Optional Prepayment” has the meaning
provided therefor in Section 2.03(a).


 


“Organization Documents” means, (a) with
respect to any corporation, the certificate or articles of incorporation and
the bylaws (or equivalent or comparable constitutive documents with respect to
any non-U.S. jurisdiction); (b) with respect to any limited liability
company, the certificate or articles of formation or organization and operating
agreement; (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its
formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such entity, and (d) in
each case, all shareholder or other equity holder agreements, voting trusts and
similar arrangements to which such Person is a party or which is applicable to
its Equity Interests and all other arrangements relating to the Control or
management of such Person.


 


“Original Closing Date” means October 31,
2006.


 


“Other Liabilities” means (a) any
Cash Management Services furnished to any of the Loan Parties, WDLLC or any of
their Subsidiaries, and (b) any hedging product between any Loan Party,
WDLLC or any of their Subsidiaries and the Agent or any of its Affiliates, each
as may be amended from time to time.


 


“Other Taxes” means all present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder or under any
other Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document. In no
event shall Other Taxes include any Excluded Taxes.


 


“Outstanding Amount” means on any
date, the aggregate outstanding principal amount of Loans after giving effect
to any prepayments or repayments of Loans occurring on such date.


 


“Participant” has the meaning
specified in Section 12.06(d).


 


“Passed-Through Interest Distributions”
means cash distributions made by WDLLC to Green Park pursuant to the Operating
Agreement for the purposes of, and which actually are used by Green Park for,
further distribution to the Borrower or Multifamily Inc. for the payment of
interest under this Agreement or the United Bank Credit Facility, to the extent
actually paid by the Borrower.


 


“PBGC” means the Pension Benefit
Guaranty Corporation.


 


“Pension Plan” means any “employee
pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by the Borrower or any ERISA Affiliate or to
which the Borrower or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.


 


“Permitted Encumbrances” means:


 


17

















 


(a)           Liens imposed by law
for Taxes that are not yet due or are being contested in compliance with Section 6.04;


 


(b)           Liens in respect of
judgments that would not constitute an Event of Default hereunder;


 


(c)           Liens securing
Indebtedness permitted under clause (e) of the definition of Permitted
Indebtedness;


 


(d)           Liens in favor the
Collateral Agent securing the Obligations;


 


(e)           Purchase money Liens
securing no more than $250,000 in the aggregate amount outstanding (i) on
equipment acquired or held by the applicable Person incurred for financing the
acquisition of the equipment, or (ii) existing on equipment when acquired,
if, in either case, the Lien is confined to property and improvements and the
proceeds of equipment;


 


(f)            Liens, including
without limitation, Related Party Permitted Encumbrances, existing on the date
hereof as set forth on Schedule 7.01 hereto;


 


(g)           Liens in favor of
landlords, suppliers, mechanics, carriers, materialmen or workmen and other
Liens imposed by law created in the ordinary course of business for amounts not
yet due that are being contested in good faith by appropriate proceedings;


 


(h)           Liens relating to
personal property leased in the ordinary course of business, and limited to
such personal property; and


 


(i)            Liens incurred in the
extension, renewal or refinancing of the Indebtedness secured by Liens
described in (a) through (h), provided that any extension, renewal or
replacement Lien must be limited to the property encumbered by the existing
Lien and the principal amount of the Indebtedness may not increase;


 


“Permitted Indebtedness” means:


 


(a)           Indebtedness of
Multifamily Inc. under the United Bank Agreement as such Agreement was in
effect on the Original Closing Date, subject to the United Bank Subordination
Agreement;


 


(b)           Indebtedness of any
Loan Party, Green Park or WDLLC to any other Loan Party, Green Park or WDLLC;


 


(c)           Indebtedness of any
Loan Party, Green Park or WDLLC (including with respect to an Affiliate Tax
Loan) to a Principal or Minority Holder, so long as such Principal or Minority
Holder shall have entered into a subordination agreement with Administrative
Agent on terms and conditions satisfactory to Administrative Agent;


 


(d)           obligations (contingent
or otherwise) of any Loan Party or any Subsidiary thereof existing or arising
under the Rate Cap Agreement;


 


(e)           Subject to Section 7.15, Indebtedness
of WDLLC or, for the applicable periods under the Transition Services
Agreement, Green Park, under any (i) Normal Warehousing Line or (ii) any
Supplemental Warehousing Line;


 


18

















 


(f)          Contigent liabilities
under Green Park’s or WDLLC’s loss sharing agreements with Fannie Mae;


 


(g)             Contingent
obligations of WDLLC under agreements with Fannie Mae previously disclosed to
the Administrative Agent of not more than $1,000,000, with respect to the
obligations of W&D Multifamily Equity I to Apartment Fund I;


 


(h)             the Obligations;


 


(i)              Indebtedness (not
for borrowed money) incurred in the ordinary course of business for normal and
customary operating activities and in any event to be paid in the ordinary
course;


 


(j)              Extensions, refinancings,
modifications, amendments and restatements of any items of Permitted
Indebtedness (a) through (i) above; provided, that the principal
amount thereof is not increased , the terms thereof are not modified to impose
more burdensome terms upon any Loan Party or Green Park, and, if applicable,
the collateral thereunder is of substantially the same type.


 


“Permitted Operation of Law Transfer”
has the meaning specified in the last sentence to the definition of Change of
Control.


 


“Permitted Transfer” means an
assignment by any Person which is a holder of Equity Interests in the Borrower
on the Closing Date (each, an “Original
Owner”) or the issuance of additional Equity Interests in the
Borrower after the Closing Date, subject to the following:


 


(a)               Borrower shall:


 


(i)              provide
the Administrative Agent with at least ten (10) Business Days prior written
notice of any proposed transfer or issuance, which notice shall describe in
detail the proposed transfer or issuance, including, without limitation, the
number or percentage of membership interests being transferred and/or issued,
the identity of the transferor and transferee and/or new member, as applicable,
as well as a pro forma schedule listing all holders of Equity Interests in
Borrower and their percentage ownership of all such Equity Interests, together
with such other information regarding the identity of the transferee and/or new
member, as applicable, as Administrative Agent shall reasonably request;


 


(ii)            provide
the Administrative Agent with true and accurate copies of all documents,
instruments and agreements to effectuate such transfer or issuance;


 


(iii)           execute
and deliver to the Collateral Agent an amendment to any, or a new, applicable
Pledge Agreement to reflect such transfer and/or issuance, or in Collateral
Agent’s sole discretion, a replacement Ownership Interests Pledge and Security
Agreement (in either case, a “Replacement
Pledge”) in form and substance satisfactory to Collateral Agent; and


 


(iv)           reimburse
the Agents for any costs incurred by the Agents in connection with the issuance
of an endorsement to the UCC Insurance Policy which insures the applicable
Pledge Agreement, as modified, or any Replacement Pledge, which endorsement
shall reflect such transfer or new issuance;


 


(b)         Any such transfer
and/or issuance shall be subject to the consent of Administrative Agent, such
consent not to be unreasonably withheld or delayed (but in any event shall be


 


19

















 


subject to Administrative Agent’s
satisfaction of the results of regulatory and/or internal policies and
procedures regarding due diligence of its customers and their owners); and


 


(c)          The aggregate amount of
Equity Interests in Borrower held by Persons who were not Original Owners shall
at no time exceed 49% of the issued and outstanding Equity Interests in
Borrower, on a fully-diluted basis, provided that, the Principals and Taylor S.
Walker, individually or collectively, shall at all times have Control over the
management and policies of Borrower and shall have control over the Equity
Interests of Borrower which are entitled to vote for members of the board of
directors or equivalent governing body of Borrower.


 


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


 


“Plan” means any “employee benefit
plan” (as such term is defined in Section 3(3) of ERISA) established
by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.


 


“Pledge Agreement” means,
collectively, the Pledge Agreements dated as of the Original Closing Date and
the Closing Date among the pledgors party thereto and the Collateral Agent, as
amended and in effect from time to time.


 


“Pledgor” means any pledgor under a
Pledge Agreement. 


 


“Prepayment” has the meaning specified
in Section 2.03(a).


 


“Prime Rate” means on any day, the rate
of interest per annum then most recently established by Bank of America as its
“prime rate,” it being understood and agreed that such rate is set by Bank of
America as a general reference rate of interest, taking into account such
factors as Bank of America may deem appropriate, that it is not necessarily the
lowest or best rate actually charged to any customer or a favored rate, that it
may not correspond with future increases or decreases in interest rates charged
by other lenders or market rates in general, and that Bank of America may make
various business or other loans at rates of interest having no relationship to
such rate. If Bank of America ceases to exist or to establish or publish a
prime rate from which the Prime Rate is then determined, the applicable
variable rate from which the Prime Rate is determined thereafter shall be
instead the prime rate reported in The Wall Street Journal (or the
average prime rate if a high and a low prime rate are therein reported), and
the Prime Rate shall change without notice with each change in such prime rate
as of the date such change is reported.


 


“Principals” means William M. Walker
and Howard W. Smith, III.


 


“Production Report” has the meaning
specified in Section 6.01(d).


 


“Rate Cap Agreement” means the
Interest Rate Swap Stand Alone Transaction Rate Cap/Floor dated on or about the
Original Closing Date between the Borrower and Bank of America which caps the
30 day Adjusted LIBOR Rate at not more than 6.5%, in form and substance
acceptable to the Administrative Agent.


 


“Real Estate” means all land, together
with the buildings, structures, parking areas, and other improvements thereon,
now or hereafter owned by any Loan Party, including all easements, rights-of-way,
and similar rights relating thereto and all leases, tenancies, and occupancies
thereof.


 


20

















 


“Register” has the meaning specified
in Section 12.06(c).


 


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


 


“Related Party Loan” has the meaning
provided in Section 7.09(a).


 


“Related Party Permitted Encumbrances”
means any Lien (a) securing any Related Party Loan (to the extent
satisfying all of the requirements applicable thereto as set forth in this
Agreement, including subordination of any such Lien to Liens in favor of the
Collateral Agent securing the Obligations), (b) in favor of the Collateral
Agent securing the Obligations, or (c) relating to the repurchase of any
Equity Interest from a Minority Holder contemplated by, and subject to
compliance with the applicable provisions of, Section 7.06(f)); provided,
however, that for purposes of clauses (a), (b) and (c) of the
definition of Change of Control, and Section 5.13, “Related
Party Permitted Encumbrances” shall be deemed to include any Lien relating
to the repurchase of any Equity Interest from a Principal.


 


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


 


“Reports” has the meaning provided in Section 10.11(a).


 


“Required Lenders” means, as of any
date of determination, Lenders holding more than 50% of the Outstanding Amount
of the Loans; provided that the portion of the Outstanding Amount of the Loans
held or deemed held by any Defaulting Lender shall be excluded for purposes of
making a determination of Required Lenders; and provided  further,
that if there shall be two Lenders at any time, Required Lenders shall mean
both Lenders.


 


“Responsible Officer” means the chief
executive officer, president, chief financial officer, treasurer or assistant
treasurer of a Loan Party or any of the other individuals designated in writing
to the Administrative Agent by an existing Responsible Officer of a Loan Party
as an authorized signatory of any certificate or other document to be delivered
hereunder. Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.


 


“Restricted Distribution” means, with
respect to any Person:


 


(a)           the retirement,
redemption, purchase, or other acquisition for value of any Equity Interests
issued by such Person;


 


(b)           the declaration or
payment of any dividend or distribution on or with respect to any Equity
Interests;


 


(c)           any loan or advance by
such Person to, or other investment by such Person in, the holder of any of
such Equity Interests; and


 


(d)           any other payment by
such Person in respect of such Equity Interests.


 


“Restricted
Payment” means:


 


21

















 


(a)           any retirement,
redemption, repurchase, prepayment or other acquisition, or the setting aside
of any money for a sinking, defeasance or other analogous fund for any such
retirement, redemption, repurchase, prepayment or other acquisition, prior to
the stated maturity thereof or prior to the due date of any regularly scheduled
installment or amortization payment with respect thereto, of any Indebtedness
of a Person (other than the Obligations and mandatory prepayments otherwise
permitted under this Agreement and the other Loan Documents and trade debt);


 


(b)           any payments in respect
of Subordinated Indebtedness to the extent such payments are not permitted
under the terms and conditions of any Subordination Agreement entered into in
connection with such Subordinated Indebtedness;


 


(c)           the payment by any
Person of the principal amount of or interest on any Indebtedness (other than
trade debt) owing to an Affiliate of such Person, including, without
limitation, payments in respect of the Affiliate Tax Loans; and


 


(d)           the payment of any
management, consulting or similar fee by any Person to an Affiliate of such
Person.


 


“Restriction List” and “Restriction
Lists” means each and every list of Persons who are Specially Designated
Nationals and Blocked Persons or otherwise are Persons to whom the Government
of the United States prohibits or otherwise restricts the provision of
financial services. For the purposes of this Agreement, Restriction Lists
include the list of Specially Designated Nationals and Blocked Persons
established pursuant to Executive Order 13224 (September 23, 2001) and
maintained by the U.S. Department of the Treasury’s Office of Foreign Assets
Control or any successor agency or other entity, U.S. Department of the
Treasury, current as of the day the Restriction List is used for purposes of
comparison in accordance with the requirements of this Agreement.


 


“S&P” means Standard &
Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and
any successor thereto.


 


“Second Extended Maturity Date’ has
the meaning specified in Section 2.04.”


 


“Security Documents” means each Pledge
Agreement (and related Control Agreement) and each other security agreement or other
instrument or document executed and delivered to the Collateral Agent pursuant
to this Agreement or any other Loan Document granting a Lien to secure any of
the Obligations, and includes this Agreement to the extent that security
interests are granted pursuant to the terms hereof.


 


“Security Interest” has the meaning
specified in Section 8.03(a).


 


“Servicing Contract” means, with
respect to any Person, the arrangement, whether or not in writing, under which
that Person has the right to service Mortgage Loans.


 


“Servicing Portfolio” means, as to any
Person, the unpaid principal balance of Mortgage Loans serviced by that Person
under Servicing Contracts, minus the principal balance of all Mortgage Loans
that are serviced by that Person for others under subservicing arrangements.


 


“Servicing Portfolio Report” has the
meaning set forth in Section 6.01(c).


 


“Smith Intercreditor Agreements”
means, collectively, the Intercreditor Agreement between WD and the Agent with
respect to Equity Interest in WD owned by Howard W Smith, III and the
Intercreditor


 


22

















 


Agreement between Multifamily and the Agent
with respect to Equity Interest in Multifamily owned by Howard W Smith, III,
each dated the Original Closing Date.


 


“Solvent” and “Solvency” means,
with respect to any Person on a particular date, that on such date (a) at
fair valuation, all of the properties and assets of such Person are greater
than the sum of the debts, including contingent liabilities, of such Person,
(b) the present fair saleable value of the properties and assets of such
Person is not less than the amount that would be required to pay the probable
liability of such Person on its debts as they become absolute and matured, (c) such
Person is able to realize upon its properties and assets and pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the normal course of business, (d) such Person does not intend to, and
does not believe that it will, incur debts beyond such Person’s ability to pay
as such debts mature, and (e) such Person is not engaged in a business or
a transaction, and is not about to engage in a business or transaction, for
which such Person’s properties and assets would constitute unreasonably small
capital after giving due consideration to the prevailing practices in the
industry in which such Person is engaged. The amount of all contingent
liabilities at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at the time, can reasonably be expected to
become an actual or matured liability.


 


“Statutory Reserve Rate” means a
fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the FRB to which the
Administrative Agent is subject with respect to the Adjusted LIBOR Rate, for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation
D of the Board). Such reserve percentages shall include those imposed pursuant
to such Regulation D. LIBOR Rate Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and
as of the effective date of any change in any reserve percentage; provided,
however, that no adjustment to the Statutory Reserve Rate shall be made
under this Agreement if any such change in a reserve percentage is not imposed
generally on all clients of the Lenders with loans with interest rates that are
determined in a manner substantially similar to the manner by which the rate of
interest applicable to LIBOR Rate Loans hereunder is determined.


 


“Subordinated Indebtedness” means
Indebtedness which is expressly subordinated in right of payment to the prior
payment in full of the Obligations and which is in form and on terms approved
in writing by the Administrative Agent.


 


“Subsidiary” of a Person means a
corporation, partnership, joint venture, limited liability company or other
business entity of which a majority of the shares Equity Interests having
ordinary voting power for the election of directors or other governing body are
at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise specified, all references herein to a
“Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries
of a Loan Party. Further, unless the context specifically contemplates
otherwise, Green Park and WDLLC shall be deemed to be a Subsidiary of each Loan
Party (therefor, for example, if a representation or warranty or covenant is
stated to include or encompass the Subsidiaries of the Loan Parties (or any of
them), Green Park and WDLLC shall be deemed to be covered by such
representation, warranty or covenant, whether or not Green Park or WDLLC is
specifically referred to therein, unless the context or the specific terms
thereof require otherwise; provided,
however, the inclusion of a specific reference to Green Park and/or
WDLLC, for clarity or emphasis, in any such provision that also refers to
Subsidiaries of a Loan Party shall not be construed to in any way limit this
provision).


 


23

















 


“Supplemental Distribution” has the
meaning specified in Section 7.06(d).


 


“Supplemental Warehousing Line” means
at any time (a) an increase in the amount Green Park or WDLLC may borrow
under any Normal Warehousing Line and/or (b) a new warehousing line of
credit for the sole purpose of financing the origination of Mortgage Loans
secured by Multifamily Properties which are pre-sold to Fannie Mae, Freddie Mac
or a conduit or investor approved in writing by the Administrative Agent, in
its sole discretion; provided, however, that (a) the
aggregate amount of all such increases outstanding at any time under any Normal
Warehousing Line plus the maximum commitment amount of any new warehousing
line(s) or credit, shall not exceed $250,000,000 and (b) the maturity
date related to any such increase or new warehousing line(s) or credit
shall not exceed ninety (90) days.


 


“Tax Distribution” has the meaning
specified in Section 7.06(b).


 


“Tax Distribution Refund Agreement”
has the meaning specified in Section 7.06(b).


 


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


 


“Termination Date” means the earliest
to occur of (i) the Maturity Date, (ii) the date on which the
maturity of the Obligations is accelerated (or deemed accelerated) in
accordance with Article IX.


 


“Term Loan” means, taken as a whole,
the Loans made hereunder by the Lenders pursuant to Article II.


 


“Transaction” has the meaning
specified in the Preliminary Statements hereto.


 


“Transaction Documents” means the
Formation Agreement, the Operating Agreement, the Transition Services
Agreement, and each document, instrument and agreement executed and delivered
by any Person in connection with the Transaction.


 


“Transaction Documents Collateral” has
the meaning specified in Section 11.09(a).


 


“Transaction Documents Security Interest”
has the meaning specified in Section 11.09(a).


 


“Transition Services Agreement” means
the Transition Services Agreement dated as of January 30, 2009 by and
among Green Park, WD, CGL and WDLLC.


 


“Type” means, with respect to a Loan,
its character as a Base Rate Loan or a LIBOR Rate Loan.


 


“UCC” or “Uniform Commercial Code”
means the Uniform Commercial Code as in effect from time to time in the
Commonwealth of Massachusetts; provided, however, that if a term
is defined in Article 9 of the Uniform Commercial Code differently than in
another Article thereof, the term shall have the meaning set forth in
Article 9; provided further that, if by reason of
mandatory provisions of law, perfection, or the effect of perfection or non-perfection,
of a security interest in any Collateral or the availability of any remedy
hereunder is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the Commonwealth of Massachusetts, “Uniform
Commercial Code” means the Uniform Commercial Code as in effect in such
other jurisdiction for purposes of the provisions hereof relating to such
perfection or effect of perfection or non-perfection or availability of such
remedy, as the case may be.


 


24














 


“Unfunded Pension Liability” means the
excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16)
of ERISA, over the current value of that Pension Plan’s assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant to
Section 412 of the Code for the applicable plan year.


 


“United Bank Credit Facility” means
that certain $7,600,000 loan arrangement between Multifamily Inc. and United
Bank, evidenced by a certain Loan Agreement dated January 19, 2006,
between United Bank and Multifamily Inc., a certain Promissory Note dated
January 19, 2006, as amended by a letter agreement dated May 1, 2006,
and a certain Guaranty dated January 19, 2006, executed and delivered to
United Bank by Mallory Walker and Diana Walker.


 


“United Bank Subordination Agreement”
means the Subordination and Standstill Agreement dated as of the Original
Closing Date among United Bank, Multifamily Inc., the Administrative Agent,
Mallory Walker and Diana Walker.


 


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


 


“Warehousing Agreement” means the
Warehousing Credit And Security Agreement, dated on or about the date of this
Agreement among WDLLC, Green Park and Bank of America, as amended, modified or
supplemented from time to time.


 


“WD” means Walker & Dunlop, Inc.,
a Delaware corporation.


 


“WD Disposition” has the meaning
assigned to such term in Section 7.05.


 


“WDLLC” has the meaning specified in
the introductory paragraph hereto.


 


“WDLLC Fannie Mae Servicing Contracts”
has the meaning specified in Section 8.06(a).


 


“WDLLC FM Collateral” has the meaning
specified in Section 8.06(a).


 


“WDLLC FM Designated Loans” has the
meaning specified in Section 8.06(a).


 


“WDLLC FM Security Interest” has the
meaning specified in Section 8.06(a).


 


“WDLLC Investor” means any Person
(other than Fannie Mae) that purchases Mortgage Loans serviced by WDLLC.


 


“WDLLC Investor Agreements” has the
meaning specified in Section 11.08 (a).


 


“WDLLC Investor Collateral” has the
meaning specified in Section 11.08(a).


 


“WDLLC Investor Designated Loans” has
the meaning specified in Section 11.08(a).


 


“WDLLC Investor Security Interest” has
the meaning specified in Section 11.08(a).


 


“WDLLC Investor Servicing Contracts”
has the meaning specified in Section 11.08 (a).


 


25

















 


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


 


(a)           The definitions of
terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the
phrase “without limitation.” The word “will” shall be construed to have
the same meaning and effect as the word “shall.” Unless the context
requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person
shall be construed to include such Person’s successors and assigns (but in no
event shall imply approval or consent to any assignment or the like that is otherwise
prohibited hereunder or under any other Loan Document or requires consent or
approval hereunder or under any other Loan Document), (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used
in any Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
the Loan Document in which such references appear, (v) any reference to
any law shall include all statutory and regulatory provisions consolidating,
amending replacing or interpreting such law and any reference to any law or
regulation shall, unless otherwise specified, refer to such law or regulation
as amended, modified or supplemented from time to time, (vi) the words “asset”
and “property” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights, and (vii) the
phrases, “to the knowledge of any Loan Party,” a “Loan Party’s
knowledge,” or phrases or words of similar import shall be references to
the actual knowledge of any of Mallory Walker, Howard W. Smith, III, William M.
Walker and/or the chief financial officer (or individual having the
responsibilities customarily assigned to an organization’s chief financial
officer) of any Loan Party, or of Green Park or WDLLC, or to such knowledge
that a person acting with appropriate diligence and care would have in carrying
out such person’s responsibilities for the subject Loan Party, or Green Park or
WDLLC.


 


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


 


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


 


1.03        Accounting Terms.


 


(a)         Generally. All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all fmancial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Base Line Projections, as applicable, except as
otherwise specifically prescribed herein.


 


26

















 


(b)         Changes in GAAP.
If at any time any change in GAAP would affect the computation of any financial
ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders
and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Administrative Agent and the Required
Lenders); provided that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


 


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


 


1.05        Times of Day. Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight saving or standard, as applicable).


 


ARTICLE II.

THE COMMITMENTS AND LOANS


 


2.01        Loans. Subject to the
terms and conditions set forth in the Existing Credit Agreement, each Lender
severally made a single Loan to the Borrower on the Original Closing Date in an
amount equal to such Lender’s Commitment, to be maintained and continued on and
subject to the terms and conditions set forth herein. The Term Loan consists of
the Loans made simultaneously by the Lenders in accordance with their
respective Commitments as provided initially in the Existing Credit Agreement,
and, as of the Closing Date, herein. Amounts borrowed under this Section 2.01
and repaid or prepaid may not be reborrowed.


 


2.02        Conversions and
Continuations of Loans.


 


(a)           The entire Term Loan
shall be a LIBOR Rate Loan, unless required to be a Base Rate Loan pursuant to
applicable provisions of this Agreement.


 


(b)           Upon the expiration of
each Interest Period applicable to the Term Loan, the Term Loan shall
automatically continue as a LIBOR Rate Loan, having an Interest Period
commencing immediately upon the expiration of the then expiring Interest Period
as specified in the definition of “Interest Period” in Section 1.01; provided, however, upon the expiration of
any Interest Period during the existence and continuance of an Event of
Default, the Term Loan shall be converted to a Base Rate Loan.


 


2.03        Prepayments and
Repayments.


 


(a)         The Borrower may,
upon irrevocable notice to the Administrative Agent, voluntarily prepay the
Loans (each, a “Prepayment”), without
premium or penalty at any time, provided that (i) such notice must
be received by the Administrative Agent not later than 11:00 a.m. (A) three
(3) Business Days prior to any date of a Prepayment of LIBOR Rate Loans
and (B) on the date of a


 


27

















 


Prepayment of Base Rate Loans; and (ii) on
the last day of each of the first four Fiscal Quarters immediately succeeding
the Closing Date, the Borrower may voluntarily prepay the Loans (each an “Optional Prepayment”) in a principal
amount of $500,000, less any other Prepayments made during such Fiscal Quarter.
The Administrative Agent will promptly notify each Lender of its receipt of
each such notice, and of the amount of such Lender’s Applicable Percentage of
such Prepayment. If such notice is given by the Borrower, the Borrower shall make
such Prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein. Any prepayment of a LIBOR Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.


 


(b)             Commencing on January 31,
2009, and continuing on the last day of each April, July, October and
January thereafter, Borrower shall make quarterly payments of principal in
the amount of $900,000.


 


(c)             In any event, all
Obligations shall be due and payable in full on the Termination Date.


 


2.04        Extension Option


 


Subject to the conditions set forth below,
the Borrower shall have two (2) options (each, an “Extension Option”) to extend the then
Maturity Date, first from the Initial Maturity Date until October 31, 2011
(the “First Extended Maturity Date”), and
second from the First Extended Maturity Date until October 31, 2013 (the “Second Extended Maturity Date”). In order
to exercise an Extension Option, the Borrower shall give the Administrative
Agent a written notice (each, a “Notice to
Extend”), not less than thirty (30) days prior to the then Maturity
Date, stating that the Borrower has elected to exercise the Extension Option.
Borrower’s delivery of a Notice to Extend shall be irrevocable. Borrower’s
right to exercise each Extension Option shall be subject to the following terms
and conditions:


 


(a)           No Default or Event of
Default shall have occurred and be continuing either on the date Borrower
delivers the Notice to Extend to the Administrative Agent or on the date that
the Obligations otherwise would have become due.


 


(b)           The Borrower shall have
delivered a fully completed Compliance Certificate to the Administrative Agent
not less than ten (10) Business Days prior to the then Maturity Date.


 


(c)           The Borrower shall have
paid to the Administrative Agent and the Lenders any fees that respectively may
be due to them in connection with the subject extension.


 


2.05           Interest.


 


(a)           Subject to the
provisions of Section 2.05(b), (i) while the Term Loan is a
LIBOR Rate Loan, the Term Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the LIBOR
Rate for such Interest Period plus the Applicable Margin; and (ii) while
the Term Loan is a Base Rate Loan, the Term Loan shall bear interest on the
outstanding principal amount thereof at a rate per annum equal to the Base Rate
plus the Applicable Margin.


 


(b)           If any amount payable
under any Loan Document is not paid when due, whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws. If any other Event of Default
exists, then the Administrative Agent may, and upon the request of


 


28

















 


the Required Lenders shall, notify the
Borrower that all outstanding Obligations shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate and
thereafter such Obligations shall bear interest at the Default Rate to the
fullest extent permitted by applicable Laws.


 


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


 


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


 


2.06        Computation of Interest. All
computations of interest and any fees that are or may become payable under or
in respect of this Agreement and/or the Loans, shall be made on the basis of a
360-day year and actual days elapsed. Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.


 


2.07        Evidence of Debt. The
Loans made by each Lender shall be evidenced by one or more accounts or records
maintained by the Administrative Agent (the “Loan
Account”) in the ordinary course of business. In addition, each
Lender may record in such Lender’s internal records, an appropriate notation
evidencing the date and amount of each Loan from such Lender, each payment and
prepayment of principal of any such Loan, and each payment of interest, fees
and other amounts due in connection with the Obligations due to such Lender.
The accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Loans made by
the Lenders to the Borrower and the interest and payments thereon. Any failure
to so record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrower hereunder to pay any amount owing with
respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error. Upon
the request of any Lender made through the Administrative Agent, the Borrower
shall execute and deliver to such Lender (through the Administrative Agent) a
Note, which shall evidence such Lender’s Loan in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loan and payments with
respect thereto. Upon receipt of an affidavit of a Lender as to the loss,
theft, destruction or mutilation of such Lender’s Note and upon cancellation of
such Note, the Borrower will issue, in lieu thereof, a replacement Note in
favor of such Lender, in the same principal amount thereof and otherwise of
like tenor.


 


2.08        Payments Generally;
Administrative Agent’s Clawback.


 


(a)         General. All
payments to be made by the Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the
date specified herein. The Administrative Agent will promptly distribute to
each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender’s Lending Office. All payments received by the Administrative Agent
after


 


29

















 


2:00 p.m. shall be deemed received on
the next succeeding Business Day and any applicable interest or fee shall
continue to accrue until such next succeeding Business Day. If any payment to
be made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.


 


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


 


(c)             Obligations of
Lenders Several. The failure of any Lender to make any payment under Section 12.04(c) on
any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to make its payment under Section 12.04(c).


 


2.09        Sharing of Payments by
Lenders. If any Credit Party shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of,
interest on, or other amounts with respect to, any of the Obligations resulting
in such Credit Party’s receiving payment of a proportion of the aggregate
amount of such Obligations greater than its pro rata share thereof as
provided herein (including as in contravention of the priorities of payment set
forth in Section 9.03), then the Credit Party receiving such
greater proportion shall (a) notify the Administrative Agent of such fact,
and (b) purchase (for cash at face value) participations in the
Obligations of the other Credit Parties, or make such other adjustments as
shall be equitable, so that the benefit of all such payments shall be shared by
the Credit Parties ratably and in the priorities set forth in Section 9.03;
provided, however, that:


 


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


 


(ii)           the
provisions of this Section shall not be construed to apply to (x) any
payment made by the Loan Parties pursuant to and in accordance with the express
terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loan to any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).


 


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


 


30

















 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


(a)           Payments Free of
Taxes. Any and all payments by or on account of any obligation of the
Borrower hereunder or under any other Loan Document shall be made free and clear
of and without reduction or withholding for any Indemnified Taxes or Other
Taxes, provided that if the Borrower shall be required by applicable Law
to deduct any Indemnified Taxes (including any Other Taxes) from such payments,
then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or the applicable
Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable Law.
Notwithstanding anything contained herein or in any Loan Document to the
contrary, in the event that the Borrower is required by applicable Law to
reduce or withhold from any such payments for any Indemnified Taxes or Other
Taxes of a Foreign Lender, the Borrower shall not be obligated to increase any
sums payable to the Administrative Agent or to such Foreign Lender after making
any such deduction or withholding or otherwise compensate the Administrative
Agent or such Foreign Lender for the reduced or withheld amounts.


 


(b)           Payment of Other
Taxes by the Borrower. Without limiting the provisions of subsection (a) above,
the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Law.


 


(c)           Indemnification by
the Loan Parties. The Loan Parties shall indemnify Credit Parties, within
30 days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by such Credit
Party and any penalties, interest and reasonable expenses arising therefrom or
with respect thereto in each case arising from any payment made hereunder or
under any other Loan Document, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Credit Party (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Credit Party shall be conclusive absent manifest error.


 


(d)           Evidence of Payments.
As soon as practicable after any payment of Indemnified Taxes or Other Taxes in
each case arising from any payment made hereunder or under any other Loan
Document, by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.


 


(e)           Status of Lenders.
Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with
respect to payments hereunder or under any other Loan Document shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding
or at a reduced rate of withholding. In addition, any


 


31

















 


Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information
reporting requirements.


 


Without limiting the generality of the
foregoing, in the event that Borrower is resident for tax purposes in the
United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the request
of the Borrower or the Administrative Agent, but only if such Foreign Lender is
legally entitled to do so), whichever of the following is applicable:


 


(i)                 duly completed copies of Internal
Revenue Service Form W-8BEN claiming eligibility for benefits of an income
tax treaty to which the United States is a party,


 


(ii)                duly completed copies of Internal
Revenue Service Form W-8ECI,


 


(iii)              in the case of a Foreign Lender claiming
the benefits of the exemption for portfolio interest under section 881(c) of
the Code, (x) a certificate to the effect that such Foreign Lender is not
(A) a “bank” within the meaning of section 881(c)(3)(A) of the Code,
(B) a “10 percent shareholder” of the Borrower within the meaning of
section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code and (y) duly
completed copies of Internal Revenue Service Form W-8BEN, or


 


(iv)               any other form prescribed by applicable
law as a basis for claiming exemption from or a reduction in United States
Federal withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.


 


(f)          Treatment of Certain
Refunds. If the Administrative Agent or any other Credit Party determines,
in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to
which the Borrower has paid additional amounts pursuant to this Section, it
shall pay to the Borrower an amount equal to such refund (but only to the extent
of indemnity payments made, or additional amounts paid, by the Borrower under
this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all reasonable out-of-pocket expenses of the Administrative
Agent or such Lender related thereto and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund), provided that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This subsection shall not be construed
to require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes that it deems
confidential) to the Borrower or any other Person.


 


3.02        Illegality. If any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to maintain LIBOR Rate Loans, or to determine or charge interest
rates based upon the LIBOR Rate, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the London interbank market, then, on notice
thereof by such Lender to the Borrower through the Administrative Agent, any
obligation of such Lender to continue


 


32

















 


LIBOR Rate Loans shall be suspended until
such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt
of such notice, the Borrower shall, upon demand from such Lender (with a copy
to the Administrative Agent), prepay or, if applicable, convert such Lender’s
Applicable Percentage of the Term Loan to a Base Rate Loan, either on the last
day of the Interest Period therefor, if such Lender may lawfully continue to
maintain LIBOR Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such LIBOR Rate Loans. Upon any such prepayment
or conversion, the Borrower shall also pay accrued interest on the amount so
prepaid or converted.


 


3.03        Inability to Determine
Rates. If the Required Lenders determine that for any reason in connection
with any automatic continuation of the Term Loan as a LIBOR Rate Loan, that (a) Dollar
deposits are not being offered to banks in the London interbank market for the
applicable amount and Interest Period of such LIBOR Rate Loan, (b) adequate
and reasonable means do not exist for determining the LIBOR Rate for any
particular applicable Interest Period, or (c) the LIBOR Rate for any
Interest Period will not adequately and fairly reflect the cost to such Lenders
of maintaining such Lender’s Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, the obligation of the Lenders
to maintain and continue the Term Loan as a LIBOR Rate Loan shall be suspended
until the Administrative Agent (upon the instruction of the Required Lenders)
revokes such notice. Upon receipt of such notice, the Term Loan shall convert
to a Base Rate Loan.


 


3.04        Increased Costs; Reserves
on LIBOR Rate Loans.


 


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


 


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


 


(ii)          subject any Lender to any tax of any kind
whatsoever with respect to this Agreement or any LIBOR Rate Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Indemnified Taxes or Other Taxes covered by Section 3.01
and the imposition of, or any change in the rate of, any Excluded Tax payable
by such Lender); or


 


(iii)         impose on any Lender or the London interbank
market any other condition, cost or expense affecting this Agreement or such
Lender’s Applicable Percentage of the Term Loan as a LIBOR Rate Loan


 


and the result of any of the foregoing shall
be to increase the cost to such Lender of maintaining its Applicable Percentage
of the Term Loan any LIBOR Rate Loan, or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest
or any other amount) then, upon request of such Lender, the Borrower will pay
to such Lender such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.


 


(b)           Capital Requirements.
If any Lender determines that any Change in Law affecting such Lender or any
Lending Office of such Lender or such Lender’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender’s capital or on the capital of such Lender’s
holding company, if any, as a consequence of this Agreement or the Loan made by
such Lender, to a level below that which such Lender or such Lender’s


 


33

















 


holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s policies and the
policies of such Lender’s holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender’s or holding
company for any such reduction suffered that is attributable to this Agreement
or the Lender’s Loan outstanding hereunder.


 


(c)           Certificates for
Reimbursement. A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 30 days after receipt thereof.


 


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


 


(e)           Reserves on LIBOR
Rate Loans. The Borrower shall pay to each Lender, as long as such Lender
shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
“Eurocurrency liabilities”), additional interest on the unpaid principal amount
of Term Loan as a LIBOR Rate Loan equal to the actual costs of such reserves
allocated to such Lender’s Loan by such Lender (as determined by such Lender in
good faith, which determination shall be conclusive absent manifest error),
which shall be due and payable on each date on which interest is payable on
such Loan, provided the Borrower shall have received at least 15 days’
prior notice (with a copy to the Administrative Agent) of such additional
interest from such Lender. If a Lender fails to give notice 15 days prior to
the relevant Interest Payment Date, such additional interest shall be due and
payable 15 days from receipt of such notice.


 


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


 


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


 


(b)           any assignment of such
Lender’s Loan while a LIBOR Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section 12.13;


 


including any loss of anticipated profits and
any loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing.


 


34














 


For purposes of calculating amounts payable
by the Borrower to each affected Lender under this Section 3.05,
each Lender shall be deemed to have funded its Applicable Percentage of the
LIBOR Rate Loan at the LIBOR Rate for such Loan by a matching deposit or other
borrowing in the London interbank market for a comparable amount and for a
comparable period, whether or not such Lender’s Applicable Percentage of the
LIBOR Rate Loan was in fact so funded.


 


3.06        Mitigation Obligations; Replacement of
Lenders.


 


(a)             Designation of a Different
Lending Office. If any Lender requests compensation under Section 3.04,
or the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender gives a notice pursuant to Section 3.02, then such
Lender shall use reasonable efforts to designate a different Lending Office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agree to pay
all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


(b)             Replacement of Lenders. If
any Lender requests compensation under Section 3.04, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
the Borrower may replace such Lender in accordance with Section 12.13.


 


3.07        Survival. All
of the Borrower’s obligations under Sections 3.01, 3.04 and 3.05 of this Article III
shall survive termination of the Obligations hereunder.


 


ARTICLE IV.

CONDITIONS PRECEDENT TO LOANS


 


4.01        Conditions of Loan. The
obligation of each Lender to amend, restate and continue its Loan on the
Closing Date is subject to satisfaction of the following conditions precedent:


 


(a)           The
Administrative Agent’s receipt of the following, each of which shall be originals
or electronically transmitted facsimiles (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible Officer of
the signing Loan Party, Green Park, or WDLLC, as applicable, each dated the
Closing Date (or, in the case of certificates of governmental officials, a
recent date before the Closing Date) and each in form and substance
satisfactory to the Administrative Agent:


 


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


 


(ii)           such certificates of resolutions or
other action, incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party, Green Park and WDLLC as the Administrative Agent
may require evidencing (A) the authority of each Loan Party, Green Park
and WDLLC to enter into this Agreement and the other Loan


 


35

















 


Documents to which such Loan Party is a party
or is to be a party and (B) the
identity, authority and capacity of each Responsible Officer thereof authorized
to act as a Responsible Officer in connection with this Agreement and the other
Loan Documents to which such Loan Party is a party or is to be a party;


 


(iii)         copies of each Loan Party’s, Green
Park’s and WDLLC’s Organization Documents and such other documents and
certifications as the Administrative Agent may reasonably require to evidence
that each Loan Party, Green Park and WDLLC is duly organized or formed, and
that each Loan Party, Green Park and WDLLC is validly existing, in good
standing and qualified to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect;


 


(iv)          an opinion of Morgan, Lewis &
Bockius LLP, counsel to the Loan Parties, Green Park and WDLLC, addressed to
the Administrative Agent and each Lender, as to such matters concerning the
Loan Parties, Green Park and WDLLC and the Loan Documents as the Administrative
Agent may reasonably request;


 


(v)           evidence that all insurance required
to be maintained pursuant to the Loan Documents and all endorsements in favor
of the Agents required under the Loan Documents have been obtained and are in
effect;


 


(vi)          the Security Documents and
certificates evidencing any certificated securities being pledged thereunder,
together with undated stock powers executed in blank, each duly executed by the
applicable parties;


 


(vii)        all other Loan Documents, each duly
executed by the applicable parties;


 


(viii)       written consent of Fannie Mae and Freddie
Mac reasonably acceptable to Administrative Agent;


 


(ix)          copies of all agreements with Fannie
Mae and Freddie Mac, approving the Transaction, including, without limitation,
with respect to Fannie Mae, the Fannie Mae Transfer Agreement, Mortgage Selling
and Servicing Contract, DUS Addendum Reserve Agreement, Master Loss Sharing
Agreement, Firewall Agreement, DUS Obligations Agreement and Guaranty
(previously from WD. for the benefit of Fannie Mae);


 


(x)           written consent of National City
Bank;


 


(xi)          results of searches or other evidence
reasonably satisfactory to the Collateral Agent (in each case dated as of a
date reasonably satisfactory to the Collateral Agent) indicating the absence of
Liens on the assets of the Loan Parties, Green Park and WDLLC, except for
Permitted Encumbrances and the absence of Liens on any assets to be pledged or
in which a security interest is to be granted by any Person pursuant to this
Agreement or any Security Document;


 


(xii)        all documents and instruments, including
Uniform Commercial Code financing statements, required by law or reasonably
requested by the Collateral Agent to be filed, registered or recorded to create
or perfect the first priority Liens intended to be


 


36

















 


created under the Loan Documents and all such
documents and instruments shall have been so filed, registered or recorded to
the satisfaction of the Collateral Agent; and


 


(xiii)       such
other assurances, certificates, documents, consents or opinions as the Agents
reasonably may require.


 


(b)           The Administrative Agent shall have
received such financial and other information and documentation concerning the
Loan Parties, Green Park, WDLLC, and CGL as it has deemed appropriate, and be
reasonably satisfied that any financial statements delivered to it fairly
present the business and financial condition of the Loan Parties, Green Park,
WDLLC and CGL, and that there has been no Material Adverse Effect since the
date of the most recent financial information delivered to the Administrative
Agent.


 


(c)           The Administrative Agent shall have
received and be reasonably satisfied with (i) a detailed forecast with
respect to WDLLC for the period commencing on the Closing Date and ending on
December 31, 2009 and 2010, which shall include a balance sheet and income
statement for the Fiscal Years respectively ending December 31, 2009 and
2010, by Fiscal Year, each prepared on a basis consistent with GAAP in all
material respects and consistent with Green Park’s current practices (as
previously detailed to the Administrative Agent), and (ii) such other
information (financial or otherwise) reasonably requested by the Administrative
Agent.


 


(d)           There shall not be pending any
litigation or other proceeding, the result of which, either individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.


 


(e)           There shall not have occurred any
default of any Material Contract of any Loan Party, or of Green Park or WDLLC
which could reasonably be expected to have a Material Adverse Effect.


 


(f)            The consummation of the transactions
contemplated hereby shall not violate any applicable Law or any Organization
Document, in either case which could have a Material Adverse Effect.


 


(g)           All fees required to be paid to the
Credit Parties on or before the Closing Date shall have been paid in full.


 


(h)           The Borrower shall have paid all
fees, charges and disbursements of counsel to the Administrative Agent to the
extent invoiced prior to or on the Closing Date, plus such additional amounts
of such fees, charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to be incurred by
it following the Closing Date in connection with the closing of the Term Loan
and related matters (provided that such estimate shall not thereafter preclude
a final settling of accounts between the Borrower and the Administrative
Agent).


 


Without limiting the generality of the
provisions of Section 10.04, for purposes of determining compliance
with the conditions specified in this Section 4.01, each Lender
that has signed this Agreement shall be deemed to have Consented to, approved
or accepted or to be satisfied with, each document or other matter required
thereunder to be Consented to or approved by or acceptable or satisfactory to a
Lender.


 


37

















 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


To induce the Credit Parties to enter into
this Agreement and to make Loans hereunder, each Loan Party, Green Park and
WDLLC, as applicable, each represents and warrants to the Administrative Agent
and the other Credit Parties that:


 


5.01        Existence, Qualification and Power. Each
Loan Party, Green Park and WDLLC (a) is a corporation, limited liability
company, partnership or limited partnership, duly organized or formed, validly
existing and, where applicable, in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite
power and authority and all requisite governmental licenses, permits,
authorizations, consents and approvals to (i) own or lease its assets and
carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party, and (c) is
duly qualified and is licensed and, where applicable, in good standing under
the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or
license; except in each case referred to in clause (b)(i) or (c), to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect. Schedule 5.01 annexed hereto sets forth, as of
the Closing Date, each Loan Party’s, Green Park’s and WDLLC’s name as it
appears in official filings in its state of incorporation or organization, its
state of incorporation or organization, its organization type, its organization
number, if any, issued by its state of incorporation or organization, and its
federal employer identification number.


 


5.02        Authorization; No Contravention. The
execution, delivery and performance by each Loan Party and of Green Park and
WDLLC of each Loan Document to which such Person is or is to be a party, has
been duly authorized by all necessary corporate or other organizational action,
and does not and will not (a) contravene the terms of any of such Person’s
Organization Documents; (b) conflict with or result in any
breach, termination, or contravention of, or constitute a default under, or
(other than pursuant to the Transaction Documents) require any payment to be
made, under (i) any agreement or Indebtedness to which such Person is a
party or affecting such Person or the properties of such Person or any of its
Subsidiaries, or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its
property is subject, in either case that could be reasonably expected to have a
Material Adverse Effect; (c) result in or require the creation of any Lien
upon any asset of any Loan Party or Green Park (other than Liens in favor of
the Collateral Agent under the Security Documents and other Permitted
Encumbrances); or (d) violate any Law that could be reasonably be expected
to have a Material Adverse Effect.


 


5.03        Governmental Authorization; Other
Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party, Green Park or WDLLC of this Agreement or any other
Loan Document, except for (a) the perfection or maintenance of the Liens
created under this Agreement and the Security Documents (including the first priority
nature thereof), or (b) such as have been obtained or made and are in full
force and effect (and copies of which have been provided to the Administrative
Agent prior to the date hereof).


 


5.04        Binding Effect. This
Agreement has been, and each other Loan Document, when delivered, will have
been, duly executed and delivered by Green Park and WDLLC (as to this Agreement
and any other Loan Document to which it may be a party) and each Loan Party
that is party thereto. This


 


38

















 


Agreement constitutes, and each other Loan
Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, Green Park and WDLLC, enforceable against Green
Park, WDLLC and each Loan Party that is party thereto in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.


 


5.05        Base Line Projections. The
Base Line Projections fairly present in all material respects the pro forma
financial condition of WDLLC as at the subject dates and the pro forma results
of operations of WDLLC for the subject dates, after giving effect to the
Transaction, and were prepared in good faith on the basis of the assumptions
stated therein, which assumptions were reasonable in light of the conditions
existing at the time of delivery of such forecasts, and represented, at the
time of delivery, WDLLC’s reasonable estimate of their respective and
collective future financial performance.


 


5.06        Litigation. There
are no actions, suits, proceedings, investigations, claims or disputes pending
or, to the best knowledge of the Loan Parties, Green Park and WDLLC threatened,
at law, in equity, in arbitration or before any Governmental Authority, by or
against any Loan Party, or any of their Subsidiaries, or Green Park or WDLLC,
or against any of its properties or revenues that (a) purport to affect or
pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect.


 


5.07        No Default. No
Loan Party, any Subsidiary, Green Park or WDLLC is in default under or with
respect to, or party to, any agreement to which it is a party or by which it is
bound or any Indebtedness. that could reasonably be expected to have a Material
Adverse Effect. No such default would result from the consummation of the
transactions contemplated by this Agreement, any other Loan Document, or the
Transaction.


 


5.08        Ownership of Property; Liens.


 


(a)           Each of the Loan Parties and each
Subsidiary thereof, Green Park and WDLLC has title in fee simple to or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each of the Loan Parties, each Subsidiary, Green Park and WDLLC
has title to, valid leasehold interests in, or valid licenses to use all
personal property and assets material to the ordinary conduct of its business,
except for such defects in title as could not reasonably be expected to have a
Material Adverse Effect. None of the Loan Parties, any Subsidiaries thereof,
Green Park or WDLLC own any Real Estate as of the Closing Date.


 


(b)           A complete and accurate list of all
Investments held by any Loan Party, any Subsidiary of a Loan Party, Green Park
or WDLLC on the date hereof, is set forth in Section 7.02.


 


5.09        Environmental Compliance


 


(a)           No Loan
Party or any Subsidiary thereof (i) has failed to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability (other than an Environmental Liability comprised of an
indemnity or similar covenant pursuant to a contract, agreement


 


39

















 


or other consensual arrangement but with
respect to which no claim has been made or liability actually incurred), (iii) has
received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability, except, in each
case, as could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.


 


(b)           None of the properties currently or
formerly owned or operated by any Loan Party or any Subsidiary thereof is
listed or proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property; there are no
and never have been any underground or above-ground storage tanks or any
surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed on any property
currently owned or operated by any Loan Party or any Subsidiary thereof or, to
the best of the knowledge of the Loan Parties, on any property formerly owned
or operated by any Loan Party or Subsidiary thereof; there is no asbestos or
asbestos-containing material on any property currently owned or operated by any
Loan Party or Subsidiary thereof; and Hazardous Materials have not been
released, discharged or disposed of on any property currently or formerly owned
or operated by any Loan Party or any Subsidiary thereof.


 


(c)           No Loan Party or any Subsidiary
thereof is undertaking, and no Loan Party or any Subsidiary thereof has
completed, either individually or together with other potentially responsible
parties, any investigation or assessment or remedial or response action
relating to any actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation, either voluntarily or
pursuant to the order of any Governmental Authority or the requirements of any
Environmental Law; and all Hazardous Materials generated, used, treated,
handled or stored at, or transported to or from, any property currently or
formerly owned or operated by any Loan Party or any Subsidiary thereof have
been disposed of in a manner not reasonably expected to result in material liability
to any Loan Party or any Subsidiary thereof.


 


5.10        Insurance. The
properties of the Loan Parties and their Subsidiaries are insured with
financially sound and reputable insurance companies which are not Affiliates of
the Loan Parties, in such amounts, with such deductibles and covering such
risks (including, without limitation, workmen’s compensation, public liability,
business interruption and property damage insurance) as are customarily carried
by companies engaged in similar businesses and owning similar properties in
localities where the Loan Parties or the applicable Subsidiary operates. Schedule
5.10 sets forth a description of all insurance maintained by or on behalf
of the Loan Parties as of the Closing Date. Each insurance policy listed on Schedule
5.10 is in full force and effect and all premiums in respect thereof that
are due and payable have been paid.


 


5.11        Taxes. The Loan
Parties and their Subsidiaries have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by
appropriate proceedings being diligently conducted, for which adequate reserves
have been provided in accordance with GAAP. To the knowledge of the Loan
Parties, there is no proposed tax assessment against any Loan Party or any
Subsidiary that would, if made, have a Material Adverse Effect. No Loan Party
or any Subsidiary thereof is a party to any tax sharing agreement.


 


5.12        ERISA Compliance.


 


(a)           Each Plan is
in compliance in all material respects with the applicable provisions of ERISA,
the Code and other Federal or state Laws. Each Plan that is intended to be
qualified under


 


40

















 


Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for
such a letter is currently pending before the IRS with respect thereto and, to
the best knowledge of the Loan Parties, no amendment or similar change to such
Plan has been made that would prevent, or cause the loss of, such
qualification. The Loan Parties and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
No Lien imposed under the Code or ERISA exists or is likely to arise on account
of any Plan.


 


(b)           There are no pending or, to the best
knowledge of the Loan Parties, threatened claims, actions or lawsuits, or
action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with
respect to any Plan that has resulted or could reasonably be expected to result
in a Material Adverse Effect.


 


(c)           (i)            No
ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension
Plan has any Unfunded Pension Liability; (iii) neither any Loan Party nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither any
Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither
any Loan Party nor any ERISA Affiliate has engaged in a transaction that could
be subject to Sections 4069 or 4212(c) of ERISA.


 


5.13        Subsidiaries; Equity Interests. The
Loan Parties and WDLLC have no Subsidiaries other than those specifically
disclosed in Part (a) of Schedule 5.13, which Schedule sets
forth the legal name, jurisdiction of incorporation or formation and authorized
Equity Interests of each such Subsidiary. All of the outstanding Equity
Interests in each Loan Party and WDLLC and such Subsidiaries have been validly
issued, are fully paid and non-assessable and, as to such Subsidiaries are
owned by a Loan Party (or a Subsidiary of a Loan Party) as specified on Part (a) of
Schedule 5.13 free and clear of all Liens except for those created under
the Security Documents. Except as set forth in Schedule 5.13, there are
no outstanding rights to purchase any Equity Interests in any Subsidiary or any
Loan Party. The Loan Parties have no equity investments in any other
corporation or entity other than those specifically disclosed in Part(b) of
Schedule 5.13. All of the outstanding Equity Interests in the Loan
Parties and WDLLC have been validly issued, and are fully paid and
non-assessable and are owned in the amounts specified on Part (c) of Schedule
5.13 (both before and after giving effect to the Transaction) free and
clear of all Liens except for those created under the Security Documents and
Related Party Permitted Encumbrances. The copies of the Organization Documents
of each Loan Party and WDLLC and each amendment thereto provided pursuant to Section 4.01
are true and correct copies of each such document, each of which is valid and
in full force and effect. Schedule 5.13 also sets forth in detail the
ownership of each Loan Party and of WDLLC (after giving effect to the
Transaction), each Lien on any ownership interests in any Loan Party (other
than those granted to the Collateral Agent pursuant to the Security Documents),
and any repurchase rights or obligations to repurchase any such ownership
interests.


 


5.14        Margin Regulations; Investment Company
Act.


 


(a)           No Loan
Party is engaged or will be engaged, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose
of purchasing or carrying margin


 


41

















 


stock. None of the proceeds of the Loans
shall be used directly or indirectly for the purpose of purchasing or carrying
any margin stock, for the purpose of reducing or retiring any Indebtedness that
was originally incurred to purchase or carry any margin stock or for any other
purpose that might cause any of the Loans to be considered a “purpose credit”
within the meaning of Regulations T, U, or X issued by the FRB.


 


(b)           None of the Loan Parties, any Person
Controlling any Loan Party, or any Subsidiary is or is required to be
registered as an “investment company” under the Investment Company Act of 1940.


 


5.15        Disclosure. Each
Loan Party and WDLLC has disclosed to the Administrative Agent and the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Each report, financial statement, certificate or other
information furnished by or on behalf of any Loan Party or WDLLC to the
Administrative Agent or any Lender in connection with the transactions contemplated
hereby and the negotiation of this Agreement, including, but not limited, to
the Base Line Projections, was prepared in good faith by such Loan Party. No
exhibit, schedule or financial statement furnished by or on behalf of any Loan
Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial information,
the Loan Parties represent only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time and no
assurance is given that these projections will be realized.


 


5.16        Compliance with Laws. Each
of the Loan Parties and each Subsidiary is in compliance in all material
respects with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its properties, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted
or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.


 


5.17        Intellectual Property; Licenses, Etc.
The Loan Parties and their Subsidiaries own, or
possess the right to use, all of the intellectual property, licenses, permits
and other authorizations that are reasonably necessary for the operation of
their respective businesses, without conflict with the rights of any other
Person. To the best knowledge of the Loan Parties, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed by any Loan Party or any Subsidiary infringes upon any rights held
by any other Person that could reasonably be expected to have a Material
Adverse Effect. No claim or litigation regarding any of the foregoing is
pending or, to the best knowledge of the Loan Parties, threatened, which,
either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.


 


5.18        Labor Matters. There
are no strikes, lockouts, slowdowns or other material labor disputes against
any Loan Party or any Subsidiary thereof pending or, to the knowledge of any
Loan Party, threatened. The hours worked by and payments made to employees of
the Loan Parties comply with the Fair Labor Standards Act and any other
applicable federal, state, local or foreign Law dealing with such matters. No
Loan Party or any of its Subsidiaries has incurred any liability or obligation
under the Worker Adjustment and Retraining Act or similar state Law. All
payments due from any Loan Party


 


42

















 


and its Subsidiaries, or for which any claim
may be made against any Loan Party, on account of wages and employee health and
welfare insurance and other benefits, have been paid or properly accrued in
accordance with GAAP as a liability on the books of such Loan Party. No Loan
Party or any Subsidiary is a party to or bound by any collective bargaining
agreement, management agreement, employment agreement, bonus, restricted stock,
stock option, or stock appreciation plan or agreement or any similar plan,
agreement or arrangement. There are no representation proceedings pending or,
to any Loan Party’s knowledge, threatened to be filed with the National Labor
Relations Board, and no labor organization or group of employees of any Loan
Party or any Subsidiary has made a pending demand for recognition. There are no
complaints, unfair labor practice charges, grievances, arbitrations, unfair
employment practices charges or any other claims or complaints against any Loan
Party or any Subsidiary pending or, to the knowledge of any Loan Party,
threatened to be filed with any Governmental Authority or arbitrator based on,
arising out of, in connection with, or otherwise relating to the employment or
termination of employment of any employee of any Loan Party or any of its
Subsidiaries. The consummation of the transactions contemplated by the Loan
Documents will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining
agreement to which any Loan Party or any of its Subsidiaries is bound.


 


5.19        Security Documents. The
Security Documents create in favor of the Collateral Agent for the benefit of
the Credit Parties a legal, valid and enforceable security interest in the
Collateral, and the Security Documents constitute, or will upon the filing of
financing statements and/or the obtaining of “control”, in each case with
respect to the relevant Collateral as required under the applicable UCC, the
creation of a fully perfected first priority Lien on, and security interest in,
all right, title and interest of the Loan Parties thereunder in such
Collateral, in each case prior and superior in right to any other Person,
except for Permitted Encumbrances having priority under applicable Law.


 


5.20        Solvency. After
giving effect to the transactions contemplated by this Agreement, and before
and after giving effect to each Loan, the Loan Parties, on a consolidated
basis, are Solvent. No transfer of property has been or will be made by any
Loan Party and no obligation has been or will be incurred by any Loan Party in
connection with the transactions contemplated by this Agreement or the other
Loan Documents with the intent to hinder, delay, or defraud either present or
future creditors of any Loan Party.


 


5.21        Deposit Accounts. Annexed
hereto as Schedule 5.21 is a list of all deposit accounts (other than
thirty-party escrow or custodial accounts) maintained by the Loan Parties as of
the Closing Date, which Schedule includes, with respect to each such account
(i) the name and address of the depository; (ii) the account
number(s) maintained with such depository; (iii) a contact person at
such depository, and (iv) the identification of each bank.


 


5.22        Brokers. No
broker or finder brought about the obtaining, making or closing of the Loans or
transactions contemplated by the Loan Documents, and no Loan Party or Affiliate
thereof has any obligation to any Person in respect of any finder’s or
brokerage fees in connection therewith.


 


5.23        Customer and Trade Relations. There
exists no actual or, to the knowledge of any Loan Party, threatened,
termination or cancellation of, or any material adverse modification or change
in the business relationship of any Loan Party with any supplier material to
its operations.


 


5.24        Material Contracts. Schedule
5.24 sets forth all Material Contracts to which any Loan Party is a party
or is bound as of the Closing Date. The Loan Parties have delivered true,
correct and


 


43

















 


complete copies of such Material Contracts to
the Administrative Agent on or before the date hereof. The Loan Parties are not
in breach or in default in any material respect of or under any Material
Contract and have not received any notice of the intention of any other party
thereto to terminate any Material Contract.


 


5.25        Casualty. Neither
the businesses nor the properties of any Loan Party or any of its Subsidiaries
are affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public
enemy or other casualty (whether or not covered by insurance) that, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.


 


5.26        Transaction.


 


(a)             None of the parties to any
Transaction Document is in default of any of its material obligations under
such Transaction Document, (ii) all written information with respect to
the Transaction and the business and assets to be acquired in connection with
the Transaction furnished to the Agents by WDLLC or on behalf of WDLLC, was, at
the time the same were so furnished, complete and correct in all material
respects, or has been subsequently supplemented by other written information,
to the extent necessary to give the Agents and Lenders a true and accurate
knowledge of the subject matter of each of them in relation to the Transaction
and the business and assets to be acquired in connection with the Transaction,
in all material respects, (iii) to the knowledge of Green Park, WD, and
WDLLC, no representation, warranty or statement made by any party to any
Transaction Document, at the time they were made in any Transaction Document,
or any agreement, certificate, statement or document required to be delivered
pursuant to any Transaction Document, contains any untrue statement of material
fact or omits to state a material fact necessary in order to make the
statements contained in such Transaction Documents not misleading in light of
the circumstances in which they were made, and (iv) after giving effect to
the transactions contemplated by this Agreement, the Transaction Agreement and
the other Transaction Documents and Loan Documents, WDLLC will have good title
to the assets to be transferred pursuant to the Transaction Documents, free and
clear of all Liens.


 


(b)             WDLLC did not and will not incur or
assume any liabilities or obligations pursuant to or in connection with the
Transaction, except as set forth in the Transaction Documents.


 


(c)             WDLLC has delivered to the Agent a
complete and correct copy of each Transaction Document, including all
disclosure letters, schedules and exhibits thereto. The Transaction Documents
set forth the entire agreement and understanding of the parties thereto
relating to the subject matter thereof, and there are no other agreements,
arrangements or understandings, written or oral, relating to the matters
covered thereby. The execution, delivery and performance of each such
Transaction Document has been duly authorized by all necessary action
(including, without limitation, the obtaining of any consent of holders of
Equity Interests or Indebtedness of each Person party thereto as required by
law or by any applicable corporate or other organizational documents) on the
part of each such Person. No authorization or approval or other action by, and
no notice to filing with or license from, any Governmental Authority is
required for the consummation of the transactions contemplated by the
Transaction Documents other than such as have been obtained on or prior to the
Closing Date, or copies of which have been furnished to the Administrative
Agent. Each Transaction Document is the legal, valid and binding obligation of
Green Park, WD, WDLLC and, to the knowledge of WDLLC, the other parties
thereto, enforceable against such parties in accordance with its terms.


 


(d)             The representations and warranties
of Green Park, WD and WDLLC contained in each Transaction Document are true and
correct in all material respects on the date hereof (except to the extent any
such representation or warranty specifically relate to an earlier date in which
case such


 


44






 










 


representation or warranty shall be true and
correct in all material respects on and as of such date), and the Agents shall
be entitled to rely upon such representations and warranties with the same
force and effect as if they were incorporated in this Agreement and made to the
Agents and Lenders directly.


 


(e)           All aspects of the transactions
contemplated by the Transaction Documents have been effected in all material
respects in accordance with terms of the Transaction Documents and applicable
law. At the time of consummation thereof, all consents and approvals of, and
filings and registrations with, and all other actions in respect of, all
Government Authorities required in order to consummate the transactions in
accordance with the terms of the Transaction Documents and all applicable Laws
shall have been obtained, given, filed or taken and are in full force and
effect (or effective judicial relief with respect thereto has been obtained).
Additionally, at the time of consummation thereof, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon the consummation of the transactions contemplated by the
Transaction Documents.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


So long any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied, the Loan Parties shall and shall cause each
Subsidiary to:


 


6.01        Financial Statements. Deliver
to the Administrative Agent, in form and detail reasonably satisfactory to the
Administrative Agent:


 


(a)             As soon as available and in any
event within one hundred twenty (120) days after the end of each fiscal year of
Borrower, audited fiscal year-end statements of income and cash flows of WDLLC
for that year, and the related audited balance sheet as of the end of that year
(setting forth in comparative form the corresponding figures for the preceding
Fiscal Year), all in reasonable detail and accompanied by (1) an opinion
as to those financial statements in form and substance reasonably satisfactory
to Administrative Agent and prepared by an independent certified public
accounting firm reasonably acceptable to Administrative Agent (it being
acknowledged by the Administrative Agent that KPMG currently is an acceptable
independent certified public accounting firm) and (2) if then available or
otherwise within fifteen (15) days of receipt by WDLLC, any management letters,
management reports or other supplementary comments or reports delivered by
those accountants to WDLLC or its governing board, body, manager, general
partner, or the like;


 


(b)             As soon as available and in any
event within sixty (60) days after the end of each Fiscal Quarter of WDLLC,
including its last fiscal quarter, interim statements of income of WDLLC,
separately, and on a combining basis with the Borrower, Green Park and
Multifamily Inc., for that fiscal quarter and the period from the beginning of
the Fiscal Year to end of that fiscal quarter, and the related balance sheet
(including contingent liabilities) as at the end of that fiscal quarter, all in
reasonable detail, subject, however, to year-end audit adjustments;


 


(c)             As soon as available and in any
event within sixty (60) days after the end of each Fiscal Quarter, a report (“Servicing Portfolio Report”) as of the end of the Fiscal Quarter,
as to all Mortgage Loans the servicing rights to which are owned by WDLLC
(specified by investor type, recourse and non-recourse). The Servicing
Portfolio Report must be in similar summary form as previously presented to
Administrative Agent (or as Administrative Agent otherwise may agree), and
must, at a minimum, indicate which Mortgage Loans (1) are current and in
good standing, (2) are more than 30, 60 or 90 days past due, (3) are
the subject of pending bankruptcy or foreclosure proceedings, or (4) have


 


45

















 


been converted (through foreclosure or other
proceedings in lieu of foreclosure) into real estate owned by a Loan Party, its
Subsidiaries, or WDLLC, and include, by Mortgage Loan type (x) weighted
average coupon, (y) weighted average maturity, and (z) weighted
average servicing fee;


 


(d)             As soon as available and in any
event within sixty (60) days after the end of each Fiscal Quarter, a loan
origination and production report (a “Production
Report”), for WDLLC,
providing summary information with respect to all mortgage loan and “CMBS”
originations, loan brokerage volume, real estate equity placement volume and
advisory services volume for such Fiscal Quarter; provided, that in no event
shall such Production Report include client names, property address or other
specific identifying information relating to any loans described therein; and


 


(e)             As soon as available, but in any
event at least 60 days before the end of each Fiscal Year, preliminary
forecasts prepared by management of WDLLC, in form satisfactory to the
Administrative Agent, of balance sheets and statements of income or operations
and cash flows of WDLLC on a monthly basis for the immediately following Fiscal
Year (including the fiscal year in which the Maturity Date occurs). WDLLC shall
furnish the final version of such forecasts to the Administrative Agent, as
soon as available, but in any event prior to the date that is 30 days after the
beginning of each Fiscal Year.


 


6.02        Certificates; Other Information. Deliver
to the Administrative Agent, in form and detail reasonably satisfactory to the
Administrative Agent:


 


(a)             concurrently with the delivery of
the financial statements referred to in Section 6.01(a), a
certificate of the independent certified public accounting firm (which must be
reasonably acceptable to the Administrative Agent) of WDLLC certifying such financial
statements and stating that in making the examination necessary for their
certification of such financial statements, such accounting firm has not
obtained any knowledge of the existence of any Default under the financial
covenants set forth herein or, if any such Default shall exist, stating the
nature and status of such event;


 


(b)             concurrently with the delivery of
the financial statements referred to in Sections 6.01(b), 6.01(c) and
6.01(d), a duly completed Compliance Certificate signed by a Responsible
Officer of WDLLC, and in the event of any change in GAAP used in the
preparation of such financial statements, WDLLC shall also provide a statement
of reconciliation conforming such financial statements to GAAP and (ii) a
copy of management’s discussion and analysis with respect to such financial
statements;


 


(c)             promptly upon receipt, copies of
any detailed audit reports, management letters or recommendations submitted to
the board of directors (or the audit committee of the board of directors) of
WDLLC by its accounting firm in connection with the accounts or books of the
Loan Parties or any Subsidiary, or any audit of any of them;


 


(d)             promptly after the same are
available, copies of each annual report, proxy or financial statement or other
report or communication sent to the equity holders generally of WDLLC;


 


(e)             promptly after the furnishing
thereof, copies of any statement or report furnished to any holder of debt
securities of any Loan Party or any Subsidiary thereof or of WDLLC pursuant to
the terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Lenders pursuant to Section 6.01
or any other clause of this Section 6.02(e);


 


(f)              promptly, and in any event within
five (5) Business Days after receipt thereof by any Loan Party or any
Subsidiary thereof or WDLLC, copies of each notice or other correspondence
received from any Governmental Authority concerning any proceeding with, or
investigation or possible


 


46

















 


investigation or other inquiry by such
Governmental Authority regarding financial or other operational results of any
Loan Party or any Subsidiary thereof or WDLLC or any other matter which, if
adversely determined, could reasonably expected to have a Material Adverse
Effect; and


 


(g)           promptly, such additional information
regarding the business affairs, financial condition or operations of any Loan
Party, any Subsidiary, or WDLLC, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.


 


6.03        Notices.
Promptly notify the Administrative Agent:


 


(a)             of the occurrence of any Default;


 


(b)             of any matter that has resulted or
could reasonably be expected to result in a Material Adverse Effect, including
(i) breach or non-performance of, or any default under, any agreement or
with respect to Indebtedness of any Loan Party, any Subsidiary thereof or
WDLLC; (ii) any dispute, litigation, investigation, proceeding or
suspension between any Loan Party, any Subsidiary thereof or WDLLC and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting any Loan Party, any
Subsidiary thereof or WDLLC, including pursuant to any applicable Environmental
Laws;


 


(c)             of the occurrence of any ERISA
Event;


 


(d)             of any material change in
accounting policies or financial reporting practices by any Loan Party or any
Subsidiary thereof or of WDLLC;


 


(e)             of any change in any Loan Party’s
or WDLLC’s senior executive officers;


 


(f)              of the discharge by any Loan Party
or WDLLC of its present accounting firm or any withdrawal or resignation by
such accounting firm;


 


(g)             of any collective bargaining
agreement or other labor contract to which a Loan Party or WDLLC becomes a
party, or the application for the certification of a collective bargaining
agent; and


 


(h)             of the filing of any Lien for
unpaid Taxes in an amount (individually or in the aggregate) greater than
$100,000.00 against any Loan Party or WDLLC, or that reasonably could be
expected to have a Material Adverse Effect.


 


Each notice pursuant to this Section shall
be accompanied by a statement of a Responsible Officer of the affected Loan
Party or WDLLC, as applicable, setting forth details of the occurrence referred
to therein and stating what action such affected Person has taken and proposes
to take with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.


 


6.04        Payment of Obligations. Pay
and discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, (b) all
lawful claims (including, without limitation, claims of landlords,
warehousemen, customs brokers, and carriers) which, if unpaid, would by law
become a Lien upon its property; and (c) all Indebtedness, as and when due
and payable, but subject to any subordination


 


47

















 


provisions contained in any instrument or
agreement evidencing such Indebtedness, except, in each case, where (i) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (ii) such Loan Party has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (iii) the
failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Effect.


 


6.05        Preservation of Existence, Etc. (a) Preserve,
renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization or formation;
(b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of
its business, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect; and (c) preserve or renew
all of its material intellectual property, except to the extent such
intellectual property is no longer used or useful in the conduct of the
business of the Loan Parties, Green Park or WDLLC, as the case may be.


 


6.06        Maintenance of Properties. (a) Maintain,
preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary
wear and tear excepted; and (b) make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


6.07        Maintenance of Insurance. Maintain
with (a) an insurance company rated “A” or better by A.M. Best
Company, Inc., (b) Lloyd’s of London, or (c) other insurance
companies reasonably acceptable to the Administrative Agent, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business
and operating in the same or similar locations or as is required by applicable
Law, of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons and as are reasonably acceptable to the
Administrative Agent.


 


6.08        Compliance with Laws. Comply
in all material respects with the requirements of all Laws and all orders,
writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) (i) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted and with respect to which adequate
reserves have been set aside and maintained by the Loan Parties in accordance
with GAAP; and (ii) such contest effectively suspends enforcement of the
contested Laws, or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.


 


6.09        Books and Records; Accountants


 


(a)             Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Loan Parties, such Subsidiary, Green
Park and WDLLC, as the case may be; and (ii) maintain such books of record
and account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over the Loan Parties or
such Subsidiary, as the case may be.


 


(b)             At all times retain an independent
certified public accounting firm which is reasonably satisfactory to the
Administrative Agent and instruct such accounting firm to cooperate with, and
be available to, the Administrative Agent or its representatives to discuss the
Loan Parties’, Green Park’s and WDLLC’s financial performance, financial
condition, operating results, controls, and such


 


48

















 


other matters, within the scope of the
retention of such accounting firm, as may be raised by the Administrative
Agent.


 


6.10        Inspection Rights; Appraisals.


 


(a)             Permit representatives of the
Administrative Agent to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and to take notes with respect
thereto or make abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and accounting firm, all at the expense
of the Loan Parties and at such reasonable times during normal business hours
not more than two times per Fiscal Year, upon reasonable advance notice to the
Borrower; provided, however, that when an Event of Default exists
the Administrative Agent (or any of its representatives or independent
contractors) may do any of the foregoing, and make copies of the Loan Parties’,
Green Park’s and WDLLC’s corporate, financial and operating records. as often
as may be desired at the expense of the Loan Parties at any time during normal
business hours and without advance notice.


 


(b)             Within 30 days of the Closing Date,
the Borrower shall cause an appraiser retained by the Borrower and reasonably
acceptable to the Administrative Agent to provide an appraisal, as of a date
between December 31, 2008 and the date that is 30 days after the Closing
Date, of the Servicing Contracts of WDLLC, the results of which are reasonably
satisfactory to the Collateral Agent.


 


(c)             The Borrower shall cause an
appraiser retained by the Borrower and reasonably acceptable to the
Administrative Agent to conduct one appraisal of the Servicing Contracts of
WDLLC each Fiscal Year, which shall have an “as of date of December 31 of
such year and shall be delivered to the Administrative Agent as soon as
available, provided, however, that in the 2009 Fiscal Year and in the 2011
Fiscal year, such annual appraisal shall have an “as of date of August 31
of such year and the results of such appraisal shall be delivered to the
Administrative Agent as soon as available and in any event not later than
October 31 of such year. To the extent such appraised value is reasonably
acceptable to the Administrative Agent, it shall be deemed the “Appraised Value” thereof, it being
understood that if such appraisal shall indicate a range of value, the
Administrative Agent shall use the mid-point of such range as the “Appraised
Value.” The Borrower shall pay the fees and expenses of the Administrative
Agent or such professionals with respect to such appraisal. Without limiting
the foregoing, the Loan Parties, Green Park and WDLLC acknowledge that the
Administrative Agent may, in its discretion, undertake additional appraisals at
the Loan Parties’ expense during the continuance of an Event of Default.


 


6.11        Information Regarding the Collateral.


 


Furnish to the Administrative Agent at least
thirty (30) days prior written notice of any change in: (i) any Loan
Party’s, Green Park’s or WDLLC’s name or in any trade name used to identify it
in the conduct of its business or in the ownership of its properties; (ii) the
location of any Loan Party’s, Green Park’s or WDLLC’s chief executive office,
its principal place of business, any office in which it maintains books or
records relating to Collateral owned by it or any office or facility at which
Collateral owned by it is located (including the establishment of any such new
office or facility); (iii) any Loan Party’s, Green Park’s or WDLLC’s
organizational structure or jurisdiction of incorporation or formation; or (iv) any
Loan Party’s, Green Park’s or WDLLC’s Federal Taxpayer Identification Number or
organizational identification number assigned to it by its state of
organization. The Loan Parties, Green Park and WDLLC agree not to effect or
permit any change referred to in the preceding sentence unless all filings have
been made under the UCC or otherwise that are required in order for the
Collateral Agent to


 


49

















 


continue at all times following such change
to have a valid, legal and perfected first priority security interest in all
the Collateral for its own benefit and the benefit of the other Credit Parties.


 


6.12        Environmental Laws. (a) Conduct
its operations and keep and maintain its leased real property, and any Real
Estate acquired at any time in the future, in material compliance with all
Environmental Laws; (b) obtain and renew all environmental permits
necessary for its operations and properties; and (c) implement any and all
investigation, remediation, removal and response actions that are reasonably
appropriate or necessary to maintain the value and marketability of its leased
real property, and any Real Estate acquired at any time in the future, or to
otherwise comply with Environmental Laws pertaining to the presence,
generation, treatment, storage, use, disposal, transportation or release of any
Hazardous Materials on, at, in, under, above, to, from or about any of its
leased real property, or any Real Estate acquired at any time in the future; provided,
however, that neither a Loan Party nor any of its Subsidiaries shall be
required to undertake any such cleanup, removal, remedial or other action to
the extent that its obligation to do so is being contested in good faith and by
proper proceedings and adequate reserves have been set aside and are being
maintained with respect to such circumstances in accordance with GAAP.


 


6.13        Further Assurances. Execute
any and all further documents, financing statements, agreements and instruments,
and take all such further actions (including the filing and recording of
financing statements and other documents), that may be required under any
applicable Law, or which any Agent may reasonably request, to effectuate the
transactions contemplated by the Loan Documents or to grant, preserve, protect
or perfect the Liens created or intended to be created by the Security
Documents or the validity or priority of any such Lien, all at the expense of
the Loan Parties. The Loan Parties also agree to provide to the Agents, from
time to time upon request, evidence satisfactory to the Agents as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.


 


6.14        Material Contracts. Perform
and observe all the terms and provisions of each Material Contract to be
performed or observed by it in all material respects, maintain each such
Material Contract which is material to its business in full force and effect,
enforce each such Material Contract in accordance with its terms in all
material respects, take all such action to such end as may be from time to time
reasonably requested by the Administrative Agent and, upon reasonable request
of the Administrative Agent, make to each other party to each such Material
Contract such demands and requests for information and reports or for action as
any Loan Party or any of its Subsidiaries is entitled to make under such
Material Contract, and cause each of its Subsidiaries to do so, except, in any
case, where the failure to do so, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.


 


6.15        Operating Accounts. The
Loan Parties, Green Park and WDLLC shall at all times, cause their principal
operating accounts to be located at Bank of America. The pricing of depository
services shall not materially differ from those presented by Bank of America to
the Loan Parties and Green Park as of June 1, 2006. LIBOR based pricing
shall not be available on deposits in such accounts, but Bank of America will
offer its best sweep or money market rates on similar account.


 


6.16        Subsequent Transaction Documents.


 


Promptly upon receipt or entering into,
copies of all documents, agreements, approvals and other relevant materials
pertaining to (a) the transfer to WDLLC of the HUD Business (as defined in
the Transaction Documents) of CGL, (b) the granting of any licenses or
approvals from Freddie Mac, HUD, or any other applicable licensing or
authorizing authority, or (c) the satisfaction of any other post-closing


 


50

















 


matters under the Transaction Documents
(including any post-closing financial statements of any party thereto).


 


ARTICLE VII.

NEGATIVE COVENANTS


 


So long as any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, no Loan Party shall, and shall
not permit any Subsidiary (including WDLLC) to, directly or indirectly:


 


7.01        Liens; Negative Pledges. Create,
incur, assume or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired or sign or file or suffer to exist
under the UCC or any similar Law or statute of any jurisdiction a financing
statement that names any Loan Party, Green Park or WDLLC as debtor; sign or
suffer to exist any security agreement authorizing any Person thereunder to
file such financing statement; sell any of its property or assets subject to an
understanding or agreement (contingent or otherwise) to repurchase such
property or assets with recourse to it or any of its Subsidiaries; or assign or
otherwise transfer any accounts or other rights to receive income, other than,
as to all of the above, Permitted Encumbrances. No Loan Party, Subsidiary or
Green Park or WDLLC shall agree with any other Person not to create, incur,
assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired (i.e., no Loan Party,
Subsidiary or Green Park or WDLLC shall grant a so-called “negative pledge” on
any of its now owned or hereafter acquired property, assets or revenues,
however characterized for UCC or other purposes, in favor of any Person other
than the Lenders, other than, as to all of the above, Permitted Encumbrances.


 


7.02        Investments. Make
any Investments, except (i) Investments in Liquid Assets, (ii) Investments
by the Loan Parties or Green Park in their Subsidiaries, other Loan Parties or
Green Park, or WDLLC, in each case as of the Closing Date, (iii) Investments
permitted under Sections 7.08 and 7.09 and (iv) Green Park’s
Investment in QFC/Green Park Financial LLC as of the Original Closing Date, but
not any increase in the amount thereof.


 


7.03        Indebtedness.


 


(a)             Create, incur, assume, guarantee,
suffer to exist or otherwise become or remain liable with respect to, any
Indebtedness, except Permitted Indebtedness; or


 


(b)             Make or agree to pay or make,
directly or indirectly, any payment or other distribution (whether in cash
securities or other property) of or in respect of principal of or interest on
any Indebtedness, or any payment or other distribution (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, prepayment, redemption, retirement, defeasance,
acquisition, cancellation or termination of any Indebtedness, except (i) mandatory
payments as and when due in respect of any Permitted Indebtedness (subject to
the terms and conditions of any subordination agreements in favor of the Agents
and the Lenders), and (ii) payments on account of the Obligations.


 


7.04        Fundamental Changes. Merge,
dissolve, liquidate, consolidate with or into another Person (or agree to do
any of the foregoing), without the prior written consent of the Administrative
Agent, which consent shall not be unreasonably withheld or delayed.


 


51

















 


7.05        Dispositions.
Make any Disposition (including, without limitation, of any Servicing
Contracts) or enter into any agreement to make any Disposition, except (i) Dispositions
of sub-servicing from one Loan Party to another Loan Party or a Subsidiary
thereof, or from one Subsidiary to another Subsidiary or from a Subsidiary to a
Loan Party (provided the Administrative Agent has been given prior written
notice thereof and copies of all such sub-servicing agreements), (ii) a
Disposition by WD of Equity Interests representing not more than an aggregate
of 4% of the Equity Interests of WD on a fully diluted basis (the “WD Disposition”) commencing as of the Original Closing
Date, (iii) any other Dispositions of minority Equity Interests by a Loan
Party, or WDLLC in connection with the hiring of new employees by such Loan
Party or WDLLC, which Disposition is approved by the Administrative Agent,
which approval shall not be unreasonably withheld or delayed (subject to the
Administrative Agent’s being satisfied with the results of regulatory and
Administrative Agent’s policies and procedures relating to due diligence with
respect to its customers and their owners), and (iv) any other
Dispositions of minority Equity Interests in a Loan Party or WDLLC which do not
result in a Change of Control provided that the requirements of subsections
(a)(i)-(iv) of the definition of “Permitted Transfers” are complied with
in connection therewith.


 


7.06        Restricted Payments; Restricted
Distributions; Affiliate Tax Loans. Declare or make,
directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, or issue or sell any Equity Interests or
accept any capital contribution, or make any Restricted Distribution except
that, so long as no Default or Event of Default shall have occurred and be
continuing prior to or immediately after giving effect to any action described
below or would result therefrom:


 


(a)             Each Loan Party, Green Park and
each of their respective Subsidiaries, and WDLLC may make Restricted Payments
to any other Loan Party, Green Park and each of their respective Subsidiaries,
and WDLLC with respect to Indebtedness incurred in accordance with Section 7.09(a),
and Green Park and WDLLC may make Restricted Distributions to the holders of
their respective Equity Interests in accordance with the Transaction Documents,
as in effect on the Closing Date;


 


(b)             Multifamily Inc. and WD shall each
be permitted to make Restricted Distributions to its stockholders in respect of
any taxable year or portion thereof during which Multifamily Inc. or WD, as the
case may be, shall be a Subchapter S corporation for federal tax purposes, and GP and Borrower
shall each be permitted to make Restricted Distributions to its members, in
each case in an aggregate amount (such Restricted Distributions referred to
herein as “Tax Distributions”) equal to the product of (x) such
Loan Party’s aggregate taxable income for such year (determined as if such Loan
Party were an individual whose only source of income, gain, loss, deduction and
credit for income tax purposes (“tax items”) for such year consisted solely of
the tax items recognized by such Loan Party for such year or properly carried
over to such year from any prior year); and (y) the highest aggregate
marginal federal, state and local income tax rate (determined by taking into
account the deductibility of state and local income taxes for federal income
tax purposes) to which any stockholder or member of such Loan Party who is an
individual is subject for such year; such Tax Distributions may be made on a
taxable quarterly basis based on a reasonable estimate (“Estimated Taxes”) for such year of the
amounts specified in clauses (x) and (y) above (with the actual
result of such amounts being referred to herein as, the “Actual Attributable Taxes”); provided however,
that


 


(i)            Each such Loan Party shall be
permitted, in lieu of making any such Tax Distribution, to make a loan (each,
an “Affiliate Tax Loan”) to any of its stockholders or
members, as the case may be, in the amount of such Estimated Taxes, so long as
any Tax Distribution made by such Loan Party to such members or stockholders is
made within 60 days after the making of such Affiliate Tax Loan and is used to
repay such Affiliate


 


52

















 


Tax Loan in full, and all such Affiliate Tax
Loans shall not in any event exceed $3,000,000 in the aggregate outstanding at
any one time; and


 


(ii)           If any of Mallory Walker, Howard W.
Smith, III, Taylor S. Walker or William M. Walker, receives distributions of
Estimated Taxes in respect of any Fiscal Year which, as to such Person, exceed
the Actual Attributable Taxes allocable to such Person for the subject Fiscal
Year by greater than $100,000.00, Borrower shall cause such Person to return
the amount of such excess to Borrower, WD, Multifamily, Inc. or GP, as the
case may be, and Borrower, WD), Multifamily, Inc. and GP, as applicable,
shall enter into an agreement (each, a “Tax
Distribution Refund Agreement”), reasonably satisfactory to
Administrative Agent, with such Person evidencing this obligation to repay.


 


(c)             WD shall be permitted to make
Restricted Distributions (referred to herein as “Additional Distributions”) (x) to each Minority Holder and any other non-voting
shareholders of WD who do not also hold any Equity Interests in any of
Multifamily Inc., Borrower or GP (provided, that Taylor S. Walker shall be
eligible to receive Additional Dividends notwithstanding his ownership of
Equity Interests in WD and Multifamily, Inc.), for any Fiscal Quarter in
an aggregate amount equal to such Person’s pro rata share of consolidated Net
Income attributable to WD for such Fiscal Quarter, less any Tax
Distributions made by WD for such Fiscal Quarter, and (y) to each of
Mallory Walker, William M. Walker and Howard W. Smith, III, for any Fiscal
Quarter in an aggregate amount equal to such Person’s pro rata share of
consolidated Net Income attributable to WD for such Fiscal Quarter, less
any Tax Distributions made by WD for such Fiscal Quarter. Notwithstanding the
foregoing:


 


(i)            if at any time Additional
Distributions for the immediately previous Fiscal Quarter were less than
consolidated Net Income attributable to WD for such immediately previous Fiscal
Quarter, then Additional Distributions for the current Fiscal Quarter may not
exceed (i) the sum of (x) consolidated Net Income attributable to WD
for the current Fiscal Quarter, and (y) consolidated Net Income
attributable to WD for the immediately previous Fiscal Quarter, less
(ii) Additional Distributions for the immediately previous Fiscal Quarter;
and


 


(ii)           with respect solely to Mallory
Walker, William M. Walker and Howard W. Smith, III, if any such Person shall
receive Additional Distributions, then the applicable Person shall on the same
day remit 100% of such Additional Distribution to WD in exchange for, in WD’s
sole discretion, either (x) receipt of a subordinated note (each, an “Additional Distribution Subordinated Note”) in form and substance satisfactory
to the Administrative Agent in the amount of such Additional Distribution (a
copy of each such Additional Distribution Subordinated Note to be delivered to
the Agent within five (5) days of issuance thereof), or (y) with
respect solely to Howard W. Smith, III, a reduction in the amounts owed by
Howard W. Smith, III to WD or Multifamily Inc.;


 


(d)           Borrower,
Multifamily, Inc., GP and WD shall each be permitted to make Restricted
Distributions (referred to herein as “Supplemental
Distributions”) to
each of Mallory Walker, Howard W. Smith, III, Taylor S. Walker and William
M. Walker and, while they respectively hold Equity Interests in the Borrower
that they have received pursuant to a Permitted Transfer, to each of the Minority
Holders, for any Fiscal Quarter in an aggregate amount equal to 50% of the
excess, if any, of (i) the consolidated EBITDA based on the consolidated financial
statements of the Loan Parties and Green Park for such Fiscal Quarter, less
(ii) the sum for such Fiscal Quarter of (x) all principal and
interest actually paid under this Agreement, and (y) all principal and
interest actually paid on the United Bank Loan, and


 


53

















 


(z) Tax Distributions and Additional Distributions
(not repaid in full to WD in accordance with Section 7.06(c)(ii))
made for such Fiscal Quarter.


 


The calculation of Supplemental
Distributions, and the determination of whether they may be made, shall be made
by the Borrower (although the Administrative Agent shall be entitled to
determine whether a Default or Event of Default shall have occurred and be
continuing prior to or immediately after giving effect to any action described
above or would result therefrom) based on quarterly financial statements of
WDLLC delivered to the Administrative Agent in accordance with Section 6.01(a) subject
to the approval by the Administrative Agent, which approval shall not be
unreasonably withheld or delayed, and shall be confirmed annually by the
Administrative Agent using audited financial statements delivered to the
Administrative Agent in accordance with Section 6.01(a). If, and to
the extent that, Administrative Agent determines that there has in fact been an
over-payment under this Section 7.06(d)by any of Borrower,
Multifamily, Inc., GP or WD, the applicable Loan Party shall withhold
future quarterly distributions of any type (i.e., all Tax Distributions,
Supplemental Distributions and Additional Distributions) to the Person to whom
such over-payment was made until such time as such future quarterly
distributions equal to the amount of such over-payment have been withheld from
such Person. Commencing with the first full Fiscal Quarter ending after the
LTSV Ratio is less than or equal to 75% (and thereafter does not exceed 75% or
such lower LTSV as is then required pursuant to Section 7.14(f)), the
percentage in the fourth (4th) line of this Section 7.06(d) shall
be increased from 50% to 75%; provided, however, amounts that
the Borrower would have been entitled to distribute pursuant to this Section 7.06(d) with
respect to a particular Fiscal Quarter and which are not so distributed within
60 days after the last day of that Fiscal Quarter may not be distributed
thereafter.


 


(e)             WD shall be permitted to make the
WD Disposition;


 


(f)              Any Loan Party shall be permitted
to make any payment related to the repurchase of any Equity Interest in such
Loan Party owned by a Minority Holder pursuant to any agreement between such
Loan Party and such Minority Holder;


 


(g)             Green Park shall be permitted to
make a bonus payment to William M. Walker for each Fiscal Year; provided, that
in no event shall the amount of such bonus payment in any Fiscal Year exceed an
amount equal to the base salary of William M. Walker in the applicable Fiscal
Year, multiplied by 1.50;


 


(h)             Any Loan Party or Green Park shall
be permitted to make salary and bonus payments to any employee, including
without limitation, Principals and other holders of Equity Interests in any
Loan Parties, subject to Sections 7.06(h)and 7.09(b);


 


(i)              WD shall be permitted to make
certain interest payments in respect of each outstanding Additional
Distribution Subordinated Note, pursuant to the terms and subject to the
conditions set forth in any such Additional Distribution Subordinated Note; and


 


(j)              Multifamily, WD and GP shall be
permitted to make certain interest payments in respect of each outstanding
subordinated promissory note issued to a Principal in connection with a
repurchase of any Equity Interests held by such Principal that is permitted
under a Loan Document.


 


7.07        Prepayments of Indebtedness. Prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner any Indebtedness, or make any payment in violation of any
subordination terms of any Subordinated Indebtedness.


 


54






 










 


7.08        Change in Nature of
Business.


 


(a)           In the case of
Multifamily Inc., engage in any business or activity other than owning an
Equity Interest in Green Park.


 


(b)           In the case of the
Borrower, engage in any business or activity other than owning Equity Interests
in Green Park.


 


(c)           In the case of GP,
engage in any business or activity other than (i) owning Equity Interests
in and serving as the managing general partner of Green Park and performing all
related functions, and (ii) owning Equity Interests in and serving as the
manager of the Borrower and performing all related functions.


 


(d)           In the case of WD,
engage in any business or activity other than (i) acting as a broker of
Mortgage Loans and real estate equity, (ii) providing real estate advisory
services, (iii) servicing Mortgage Loans under Servicing Contracts, but
only for the applicable period under the Transition Services Agreement, and
(iv) owning Equity Interests in WDLLC.


 


(e)           In the case of Green
Park, engage in any line of business substantially different from the business
of originating and servicing multifamily Mortgage Loans on a transitional basis
in accordance with the terms of the Transition Services Agreement, and
otherwise engaging in any business or activity other than owing Equity Interests
in WDLLC.


 


(f)            In the case of WDLLC,
engage in any line of business substantially different from the business of
originating and servicing multifamily Mortgage Loans.


 


7.09        Transactions with
Affiliates


 


(a)           Enter into, renew,
extend or be a party to any transaction of any kind with any Affiliate of any
Loan Party, any Subsidiary thereof, Green Park or WDLLC, whether or not in the
ordinary course of business, other than on fair and reasonable terms
substantially as favorable to such Loan Party, such Subsidiary thereof or Green
Park or WDLLC as would be obtainable by such Loan Party, such Subsidiary
thereof or Green Park or WDLLC at the time in a comparable arm’s length
transaction with a Person other than an Affiliate, except (i) loans
between and among Loan Parties and Green Park and WDLLC, (ii) loans on the
Original Closing Date from the Loan Parties to Principals and Minority Holders
not in excess of an aggregate of $250,000, and to be subordinated to the
Obligations on terms and conditions reasonably satisfactory to the
Administrative Agent, but not any renewal, increase or other modification
thereof (a “Related Party Loan”), (iii) loans
(which constitute Permitted Indebtedness) to or from, and/or Investments in,
Walker & Dunlop Service Corp. and/or W&D Holding, Inc., not
in excess of an aggregate of $650,000 and (iv) transactions relating to the
repurchase of any Equity Interests by a Loan Party permitted under any Loan
Document and any loan from a Loan Party to a Principal in connection therewith.


 


(b)           Increase the base
salary of any Principal who is also an executive officer by more than three
(3%) percent each Fiscal Year, or amend or modify in any material respect any
bonus programs for such Persons as in effect on the Original Closing Date; provided,
however, that Green Park shall be entitled to make the bonus payments to
William M. Walker contemplated by Section 7.06(g).


 


55

















 


7.10        Burdensome Agreements. Enter
into or permit to exist any Contractual Obligation (other than this Agreement,
any other Loan Document, the Warehousing Agreement, the National City Agreement
or any other warehousing agreement entered into by a Loan Party to the extent
permitted under this Agreement) that limits the ability (i) of any
Subsidiary to make Restricted Payments or other distributions to any Loan Party
or to otherwise transfer property to or invest in a Loan Party, (ii) of
any Subsidiary to Guarantee the Obligations, (iii) of any Subsidiary to make or
repay loans to a Loan Party, or (iv) of the Loan Parties or any Subsidiary
to create, incur, assume or suffer to exist Liens on property of such Person in
favor of the Collateral Agent.


 


7.11        Use of Proceeds. Use
the proceeds of any Loan, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing
or carrying margin stock or to refund Indebtedness originally incurred for such
purpose.


 


7.12        Amendment of Material
Documents. Amend, modify or waive any of a Loan Party’s rights under
(a) its Organization Documents or (b) any Material Contract (other than on
account of any refinancing thereof otherwise permitted hereunder), in each case
to the extent that such amendment, modification or waiver would be reasonably
likely to have a Material Adverse Effect (or is otherwise limited by an
applicable provision of this Agreement). Neither the Operating Agreement, nor
any Transaction Document shall be amended or modified in any material respect,
nor any material provisions thereof waived, without the consent of the
Administrative Agent, in its sole discretion.


 


7.13        Corporate Name; Fiscal
Year.


 


(a)           Change the Fiscal Year
of any Loan Party or of Green Park or WDLLC, or the accounting policies or
reporting practices of the Loan Parties, Green Park or WDLLC, except as
required by GAAP (which changes shall be subject to applicable provisions of
this Agreement addressing the impact on any changes in GAAP).


 


(b)           Change its name as it
appears in official filings in the state of its incorporation or other
organization (b) change its chief executive office, principal place of
business, corporate offices or warehouses or locations at which Collateral is
held or stored, or the location of its records concerning the Collateral,
(c) change the type of entity that it is, (d) change its organization
identification number, if any, issued by its state of incorporation or other
organization, or (e) change its state of incorporation or organization, in
each case without at least thirty (30) days prior written notice to the
Collateral Agent and after the Collateral Agent’s written acknowledgment, which
acknowledgment shall not be unreasonably withheld or delayed, that any
reasonable action requested by the Collateral Agent in connection therewith,
including to continue the perfection of any Liens in favor of the Collateral
Agent, in any Collateral, has been completed or taken, and provided that
any such new location shall be in the continental United States.


 


7.14        Financial Covenants


 


(a)           Permit Adjusted
Tangible Net Worth at any time to be less than the applicable amount set forth
below as of the dates, and during the applicable periods, set forth below, to
be tested as of such dates and on the last day of each Fiscal Quarter occurring
during each applicable period (assuming for the purposes hereof that both
Extension Options are duly exercised), or otherwise not to be in compliance
with applicable requirements of HUD, WDLLC Investors (including Freddie Mac) or
Fannie Mae.


 


56

















 


	
  Specified Date and Period

  	
   

  	
  Applicable 

  Minimum Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Closing Date to October 30, 2009

  	
   

  	
  $

  	
  60,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 31, 2009 to October 30, 2010

  	
   

  	
  $

  	
  65,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 31, 2010 and thereafter

  	
   

  	
  $

  	
  70,000,000

  	
   

  



 


(b)          Permit
Liquid Assets at any time to be less than the applicable amount set forth below
as of the dates, and during the applicable periods, set forth below, to be
tested as of the such dates and on the last day of each Fiscal Quarter
occurring during each applicable period (assuming for the purposes hereof that
both Extension Options are duly exercised), or otherwise not to be in
compliance with applicable requirements of HUD, WDLLC Investors (including
Freddie Mac) or Fannie Mae.


 


	
  Specified Date and Period

  	
   

  	
  Applicable 

  Minimum Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Closing Date to October 30, 2009

  	
   

  	
  $

  	
  6,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 31, 2009 and thereafter

  	
   

  	
  $

  	
  7,000,000

  	
   

  



 


(c)          Permit
EBITDA at any time to be less than the applicable amount set forth below as of
the dates, and during the applicable periods, set forth below, to be tested as
of the such dates and on the last day of each Fiscal Quarter occurring during
each applicable period (assuming for the purposes hereof that both Extension
Options are duly exercised).


 


	
  Specified Date and Period

  	
   

  	
  Applicable 

  Minimum Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Closing Date to October 30, 2009(1)

  	
   

  	
  $

  	
  10,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 31, 2009 to October 30, 2010

  	
   

  	
  $

  	
  11,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 31, 2010 and thereafter

  	
   

  	
  $

  	
  12,000,000

  	
   

  



 


(d)           Permit the ratio of
(i) EBITDA to (ii) the sum of (a) interest payments made or
required to be made by the Borrower on account of the Obligations (less
cash received by the Borrower under the Rate Cap Agreement), plus
(b) an amount equal to the aggregate principal amount of the Term Loan
required to be paid by the Borrower hereunder (whether or not so paid) during
the applicable year in accordance with Section 2.03(b), to be less
than the ratio set forth below, determined for the applicable Measurement
Period.


 






(1) EBITDA
calculations for such Specified Period shall be annualized.


 


57

















 


	
  Specified Date and Period

  	
   

  	
  Applicable 

  Minimum Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Closing Date to October 30, 2009(2)

  	
   

  	
  2.00:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 31, 2009 to October 30, 2010

  	
   

  	
  2.00:1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 31, 2011 and thereafter

  	
   

  	
  2.25:1.00

  	
   

  



 


(e)           Permit the aggregate
unpaid principal amount of (i) all Mortgage Loans comprising the Servicing
Portfolio of WDLLC to be less than $8.0 billion at any time or (ii) all
Fannie Mae DUS Mortgage Loans comprising the Servicing Portfolio of WDLLC to be
less than $5.0 billion at any time, calculated as of the last day of each
Fiscal Quarter, calculated as of the last day of each Fiscal Quarter.


 


(f)            Permit the LTSV Ratio
at any time to be greater than the applicable percentage set forth below as of
the dates, and during the applicable periods, set forth below, to be tested as
of the such dates and on the last day of each Fiscal Quarter occurring during
each applicable period (assuming for the purposes hereof that both Extension
Options are duly exercised).


 


	
  Specified Date and Period

  	
   

  	
  Maximum LTSV

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Closing Date to October 30, 2009

  	
   

  	
  60

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  October 31, 2009 to October 30, 2010

  	
   

  	
  55

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  October 31, 2010 and thereafter

  	
   

  	
  50

  	
  %

  



 


(g)           Permit (i) the
aggregate unpaid principal amount of Fannie Mae DUS Mortgage Loans comprising
WDLLC’s Servicing Portfolio which are sixty (60) or more days past due or
otherwise in default at any time to exceed two percent (2%) of the aggregate
unpaid principal balance of all Fannie Mae DUS Mortgage Loans comprising
WDLLC’s Servicing Portfolios at such time, or (ii) the aggregate unpaid
principal amount of At Risk Mortgage Loans comprising WDLLC’s Servicing
Portfolio which are sixty (60) or more days past due or otherwise in default to
increase by more than one-half percent (.5%) from the last day of a Fiscal
Quarter to the last day of the following Fiscal Quarter.


 


For the
purposes of any testing of the foregoing financial covenants which is made as
of the end of a Fiscal Quarter, such testing shall be based on (i) for any
of the first three Fiscal Quarters of any Fiscal Year, the financial statements
required to be delivered to the Administrative Agent pursuant to
Section 6.01(b) with respect to the subject Fiscal Quarter, and
(ii) for the fourth Fiscal Quarter of any Fiscal Year, the audited
financial statements required to be delivered pursuant to Section 6.01(a) with
respect to the Fiscal Year then ended.


 


7.15        Warehousing Agreement. WDLLC
shall at all times maintain the maximum committed loan amount under the
Warehousing Agreement at no less than the maximum committed loan amount in


 






(2) EBITDA
calculations for such Specified Period shall be annualized.


 


58

















 


effect at such time under the National City
Agreement or any replacement thereof (without regard to any Supplemental
Warehousing Lines), unless the Warehousing Agreement is not renewed by Bank of
America upon maturity; provided, however, that if Bank of America
offers to renew the Warehousing Agreement, the offered terms and conditions
thereof shall not be materially different than those presented in a certain
term sheet dated June 1, 2006. This provision shall in no way be construed
as a commitment to enter into such a facility, expressed or implied.


 


ARTICLE VIII.

SPECIAL PROVISIONS REGARDING GREEN PARK AND WDLLC


 


8.01        Special Representations,
Warranties and Covenants Concerning Green Park Eligibility as Seller/Servicer
of Mortgage Loans. To induce the Credit Parties to enter into this
Agreement and to make Loans hereunder, Borrower represents and warrants to the
Administrative Agent and the other Credit Parties that as of the date of this
Agreement, Green Park is and during the period covered by the Transition
Services Agreement, shall be, approved, qualified and in good standing as a
lender, seller/servicer or issuer, as set forth below, and meets and shall meet
all requirements applicable to its status as a Fannie Mae-approved
seller/servicer of Mortgage Loans, eligible to originate, purchase, hold, sell
and service Mortgage Loans to be sold to Fannie Mae under any Fannie Mae
Program


 


8.02        Special Representation,
Warranty and Covenant with respect to Green Park Concerning Fannie Mae Program
Reserve Requirements.


 


(a)           Borrower represents and
warrants to the Credit Parties that Green Park will have met the Fannie Mae DUS
Program requirements for lender reserves for each Fannie Mae DUS Mortgage Loan
originated by it, at such time as required by Fannie Mae under the Fannie Mae
DUS Program.


 


(b)           Upon the occurrence and
during the continuance of any Default or Event of Default, any and all reserves
relating to Fannie Mae Program requirements for lender reserves returned or to
be returned to Green Park shall be applied to repayment of the Obligations in
such order as Administrative Agent shall determine.


 


(c)           Nothing in this
Agreement will limit (i) Fannie Mae’s rights to set reserve and capital
requirements under Fannie Mae’s agreements with Green Park and applicable
Fannie Mae guides or (ii) Green Park’s obligation to comply with such
reserve and capital requirements.


 


8.03        Green Park Pledge of
Fannie Mae Servicing Contract Rights


 


(a)           Green Park hereby
grants the Collateral Agent for the benefit of the Credit Parties, a security
interest (the “Green Park FM Security
Interest”) in the following (the “Green
Park FM Collateral”) to secure payment and performance of the
Obligations: all servicing income actually received by Green Park with respect
to the Mortgage Loans (“FM Designated Loans”)
serviced at any time and from time to time under any Servicing
Contracts between Green Park and Fannie Mae (“Fannie
Mae Servicing Contracts”), but not in
the Fannie Mae Servicing Contracts or any other income related to the FM
Designated Loans. Collateral Agent’s security interest is subject and
subordinate to all rights, remedies, powers and prerogatives of Fannie Mae
under all applicable selling and servicing agreements between Fannie Mae and
Green Park, including the guides, however titled, referred to in those selling
and servicing agreements (collectively, the “Fannie
Mae Agreements”), including Fannie Mae’s right to terminate Green
Park’s servicing rights with respect to the FM Designated Loans as provided in
the Fannie Mae Agreements. Without limiting the generality of the foregoing
provisions, Collateral Agent


 


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acknowledges that its security interest is
subject to the rights of Fannie Mae which must approve Collateral Agent’s
security interest.


 


(b)           Green Park authorizes
the Collateral Agent to file such financing statements as the Collateral Agent
deems reasonably necessary to perfect the Security Interest in the Green Park
FM Collateral.


 


(c)           Subject to Section 8.03(a),
Green Park hereby irrevocably appoints (which appointment is coupled with an
interest) the Collateral Agent, or its delegate, as the attorney in fact of
Green Park with the right (but not the duty) from time to time, following the
occurrence and during the continuance of an Event of Default, to
(i) create, prepare, complete, execute, deliver, endorse or file, in the
name and on behalf of Green Park, any and all instruments, documents, financing
statements, applications for insurance and other agreements and writings
required to be obtained, executed, delivered or endorsed by Green Park under
this Section 8.03(c); (ii) convert the Green Park FM Collateral
into cash, including, without limitation, the sale (either public or private)
of all or any portion or portions of the Green Park FM Collateral;
(iii) enforce collection of the Green Park FM Collateral, either in its
own name or in the name of Green Park, including, without limitation, executing
releases and prosecuting, defending, compromising or releasing any action
relating to the Green Park FM Collateral; and (iv) take such other actions
as Collateral Agent deems necessary or desirable in order to continue the
perfection and priority of its Security Interest or realize upon the Green Park
FM Collateral. The Collateral Agent shall not be obliged to do any of the acts
or exercise any of the powers hereinabove authorized, but if the Collateral
Agent elects to do any such act or exercise any such power, it shall not be
accountable for more than it actually receives as a result of such exercise of
power, and it shall not be responsible to Green Park or any other Person except
for gross negligence, willful misconduct or bad faith.


 


(d)           To the extent that FM
Designated Loans remain subject to the Fannie Mae Agreements, Green Park will
remain the servicer of the FM Designated Loans and will continue to service the
FM Designated Loans in accordance with Fannie Mae requirements. Green Park
shall not, and no Loan Party shall permit Green Park to, pledge any of its
servicing rights with respect to the FM Designated Loans to any other Person.


 


(e)           Collateral Agent has no
right to service the FM Designated Loans or affect the manner in which Green
Park services the FM Designated Loans. If Fannie Mae terminates Green Park’s
servicing rights with respect to the FM Designated Loans, this pledge will
automatically terminate, and the Collateral Agent will release its Lien created
by such pledge and execute and file all necessary documents to reflect such
release.


 


(f)            Upon the occurrence
and during the continuance of an Event of Default for 30 days or more, and the
exercise by the Collateral Agent of its rights under Section 9.02,
Collateral Agent may: (i) direct that all servicing fees payable to Green
Park with respect to the FM Designated Loans be deposited into lockbox accounts
held by Collateral Agent; (ii) in its own name, in the name of Green Park or
otherwise, demand, sue for, collect or receive any money or property at any
time payable or receivable on account of or in exchange for any of the Green
Park FM Collateral, but Collateral Agent has no obligation to do so; (iii) by
written notice to Green Park , direct Green Park to sell the servicing rights to
the FM Designated Loans (in which event Green Park shall (x) retain a
nationally recognized firm that specializes in the sale of Fannie Mae servicing
rights (which firm must be reasonably acceptable to Collateral Agent) and
(y) sell the servicing rights to the FM Designated Loans to another Fannie
Mae lender/servicer within 60 days of such notice from Collateral Agent); and
(iv) exercise and enforce any or all rights and remedies available upon
default to Collateral Agent under the UCC, at law or in equity. Any sale of the
Green Park FM Collateral would be subject to Fannie Mae approval. All proceeds
of such sale will be applied first to the expenses of the sale, then to any
amounts due to Fannie Mae for Green


 


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Park under the Servicing Contracts sold, and
then to the outstanding balance of the Obligations (as provided in Section 9.03),
with any remaining balance remitted to Borrower. Fannie Mae shall have no
obligation to comply with any directions of the Collateral Agent or to alter in
any way servicing requirements, flows of funds, or accounting of servicing.


 


(g)           Upon the occurrence and
during the continuance of an Event of Default for 30 days or more, Collateral
Agent or its designee is entitled to receive and collect all sums payable to
Green Park in respect of the Green Park FM Collateral, and, in such case
(1) Collateral Agent or its designee in its discretion may, in its own
name, in the name of Green Park or otherwise, demand, sue for, collect or receive
any money or property at any time payable or receivable on account of or in
exchange for any of the Green Park FM Collateral, but Collateral Agent has no
obligation to do so, (2) Green Park must, if Collateral Agent requests it
to do so, hold in trust for the benefit of the Lenders and immediately pay to
Collateral Agent at its office designated by Notice, all amounts received by
Green Park upon or in respect of any of the Green Park FM Collateral, advising
Collateral Agent as to the source of those funds and (3) all amounts so
received and collected by Collateral Agent will be held by it as part of the
Green Park FM Collateral.


 


(h)           To the extent any
amounts are received by the Collateral Agent pursuant to this Section, all
rights of Green Park against any Loan Party arising as a result thereof by way
of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinate and junior in right of payment to the
prior indefeasible payment in full in cash of all the Obligations.


 


8.04        Special Representations,
Warranties and Covenants Concerning WDLLC Eligibility as Seller/Servicer of
Mortgage Loans. To induce the Credit Parties to enter into this Agreement
and to make Loans hereunder, Borrower represents and warrants to the
Administrative Agent and the other Credit Parties that as of the date of this
Agreement, WDLLC is, and so long as any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied, WDLLC shall be, approved, qualified and in
good standing as a lender, seller/servicer or issuer, as set forth below, and
meets and shall meet all requirements applicable to its status as a Fannie
Mae-approved seller/servicer of Mortgage Loans, eligible to originate,
purchase, hold, sell and service Mortgage Loans to be sold to Fannie Mae under
any Fannie Mae Program, and as a Freddie Mac Program Plus seller.


 


8.05        Special Representation,
Warranty and Covenant with respect to WDLLC Concerning Fannie Mae Program
Reserve Requirements.


 


(a)           Borrower represents and
warrants to the Credit Parties that WDLLC will have met the Fannie Mae DUS
Program requirements for lender reserves for each Fannie Mae DUS Mortgage Loan
originated by it, at such time as required by Fannie Mae under the Fannie Mae
DUS Program.


 


(b)           Upon the occurrence and
during the continuance of any Default or Event of Default, any and all reserves
relating to Fannie Mae Program requirements for lender reserves returned or to
be returned to Green Park shall be applied to repayment of the Obligations in
such order as Administrative Agent shall determine


 


Nothing in
this Agreement will limit (i) Fannie Mae’s rights to set reserve and
capital requirements under Fannie Mae’s agreements with WDLLC and applicable
Fannie Mae guides or (ii) WDLLC’s obligation to comply with such reserve
and capital requirements.


 


8.06        WDLLC Pledge of Fannie Mae
Servicing Contract Rights


 


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(a)           WDLLC hereby grants the
Collateral Agent for the benefit of the Credit Parties, a security interest
(the “WDLLC FM Security Interest”)  in
the following (the “WDLLC FM Collateral”)  to
secure payment and performance of the Obligations: all servicing income
actually received by WDLLC with respect to the Mortgage Loans (“WDLLC FM
Designated Loans”)  serviced
at any time and from time to time under any Servicing Contracts between WDLLC
and Fannie Mae (“WDLLC Fannie Mae Servicing Contracts”), but not in
the WDLLC Fannie Mae Servicing Contracts or any other income related to the
WDLLC FM Designated Loans. Collateral Agent’s security interest is subject and
subordinate to all rights, remedies, powers and prerogatives of Fannie Mae
under all applicable Fannie Mae Agreements, including Fannie Mae’s right to
terminate WDLLC’s servicing rights with respect to the WDLLC FM Designated
Loans as provided in the Fannie Mae Agreements. Without limiting the generality
of the foregoing provisions, Collateral Agent acknowledges that its security
interest is subject to the rights of Fannie Mae which must approve Collateral
Agent’s security interest.


 


(b)           WDLLC authorizes the
Collateral Agent to file such financing statements as the Collateral Agent
deems reasonably necessary to perfect the Security Interest in the WDLLC FM
Collateral.


 


(c)           Subject to Section 8.03(a),
WDLLC hereby irrevocably appoints (which appointment is coupled with an
interest) the Collateral Agent, or its delegate, as the attorney in fact of
WDLLC with the right (but not the duty) from time to time, following the
occurrence and during the continuance of an Event of Default, to
(i) create, prepare, complete, execute, deliver, endorse or file, in the
name and on behalf of WDLLC, any and all instruments, documents, financing
statements, applications for insurance and other agreements and writings required
to be obtained, executed, delivered or endorsed by WDLLC under this Section 8.03(c);
(ii) convert the WDLLC FM Collateral into cash, including, without limitation,
the sale (either public or private) of all or any portion or portions of the
WDLLC FM Collateral; (iii) enforce collection of the WDLLC FM Collateral,
either in its own name or in the name of WDLLC, including, without limitation,
executing releases and prosecuting, defending, compromising or releasing any
action relating to the WDLLC FM Collateral; and (iv) take such other
actions as Collateral Agent deems necessary or desirable in order to continue
the perfection and priority of its Security Interest or realize upon the WDLLC
FM Collateral. The Collateral Agent shall not be obliged to do any of the acts
or exercise any of the powers hereinabove authorized, but if the Collateral
Agent elects to do any such act or exercise any such power, it shall not be
accountable for more than it actually receives as a result of such exercise of
power, and it shall not be responsible to WDLLC or any other Person except for
gross negligence, willful misconduct or bad faith.


 


(d)           To the extent that
WDLLC FM Designated Loans remain subject to the Fannie Mae Agreements, WDLLC
will remain the servicer of the WDLLC FM Designated Loans and will continue to
service the WDLLC FM Designated Loans in accordance with Fannie Mae
requirements. WDLLC shall not, and no Loan Party shall permit WDLLC to, pledge
any of its servicing rights with respect to the WDLLC FM Designated Loans to
any other Person.


 


(e)           Collateral Agent has no
right to service the Designated Loans or affect the manner in which WDLLC
services the Designated Loans. If Fannie Mae terminates WDLLC’s servicing
rights with respect to the WDLLC FM Designated Loans, this pledge will
automatically terminate, and the Collateral Agent will release its Lien created
by such pledge and execute and file all necessary documents to reflect such
release.


 


(f)            Upon the occurrence
and during the continuance of an Event of Default for 30 days or more, and the
exercise by the Collateral Agent of its rights under Section 9.02,
Collateral Agent may: (i) direct that all servicing fees payable to WDLLC
with respect to the WDLLC FM Designated Loans be deposited into lockbox
accounts held by Collateral Agent; (ii) in its own name, in the name of


 


62

















 


WDLLC or otherwise, demand, sue for, collect
or receive any money or property at any time payable or receivable on account
of or in exchange for any of the WDLLC FM Collateral, but Collateral Agent has
no obligation to do so; (iii) by written notice to WDLLC , direct WDLLC to
sell the servicing rights to the WDLLC FM Designated Loans (in which event
WDLLC shall (x) retain a nationally recognized firm that specializes in
the sale of Fannie Mae servicing rights (which firm must be reasonably acceptable
to Collateral Agent) and (y) sell the servicing rights to the WDLLC FM
Designated Loans to another Fannie Mae lender/servicer within 60 days of such
notice from Collateral Agent); and (iv) exercise and enforce any or all
rights and remedies available upon default to Collateral Agent under the UCC,
at law or in equity. Any sale of the WDLLC FM Collateral would be subject to
Fannie Mae approval. All proceeds of such sale will be applied first to the
expenses of the sale, then to any amounts due to Fannie Mae for WDLLC under the
Servicing Contracts sold, and then to the outstanding balance of the
Obligations (as provided in Section 9.03), with any remaining balance
remitted to Borrower. Fannie Mae shall have no obligation to comply with any
directions of the Collateral Agent or to alter in any way servicing
requirements, flows of funds, or accounting of servicing.


 


(g)           Upon the occurrence and
during the continuance of an Event of Default for 30 days or more, Collateral
Agent or its designee is entitled to receive and collect all sums payable to
WDLLC in respect of the WDLLC FM Collateral, and, in such case (1) Collateral
Agent or its designee in its discretion may, in its own name, in the name of
WDLLC or otherwise, demand, sue for, collect or receive any money or property
at any time payable or receivable on account of or in exchange for any of the
WDLLC FM Collateral, but Collateral Agent has no obligation to do so,
(2) WDLLC must, if Collateral Agent requests it to do so, hold in trust
for the benefit of the Lenders and immediately pay to Collateral Agent at its
office designated by Notice, all amounts received by WDLLC upon or in respect
of any of the WDLLC FM Collateral, advising Collateral Agent as to the source
of those funds and (3) all amounts so received and collected by Collateral
Agent will be held by it as part of the WDLLC FM Collateral.


 


(h)           To the extent any
amounts are received by the Collateral Agent pursuant to this Section, all
rights of WDLLC against any Loan Party arising as a result thereof by way of
right of subrogation, contribution, reimbursement, indemnity or otherwise shall
in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations.


 


(i)            Promptly upon becoming
an eligible Freddie Mac Program Plus Servicer, WDLLC shall grant to the
Administrative Agent, for itself and for the benefit of the Lenders, a security
interest in all related rights, to the maximum extent then permitted by Freddie
Mac.


 


ARTICLE IX.

EVENTS OF DEFAULT AND REMEDIES


 


9.01        Events of Default. Any
of the following shall constitute an Event of Default:


 


(a)           Non-Payment. The
Borrower or any other Loan Party fails to pay when and as required to be paid
herein, (i) any amount of principal of any Loan, or (ii) any interest on
any Loan or any fee due hereunder, or (iii) any other amount payable hereunder
(including without limitation, with respect to Cash Management Services) or
under any other Loan Document, and in the case of clauses (ii) and (iii), such
failure continues for a period of five days; provided, that any failure
to pay any amounts in respect of Cash Management Services shall be for an
aggregate amount greater than $50,000; or


 


(b)           Specific Covenants.
(i) Any Loan Party or Subsidiary (including Green Park, and WDLLC, as
applicable) fails to perform or observe any term, covenant or agreement
contained in any


 


63

















 


of Section 6.01, 6.03, 6.05,
6.07, 6.10, 6.11, or 6.12 or Article VII;
or (ii) any Guarantor fails to perform or observe any term, covenant or
agreement contained in Article X or elsewhere in this Agreement; or


 


(c)           Other Defaults.
Any Loan Party or any Subsidiary fails to perform or observe any other covenant
or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days; or


 


(d)           Representations and
Warranties. Any representation, warranty, certification or statement of
fact made or deemed made by or on behalf of any Loan Party or any Subsidiary
herein, in any other Loan Document, or in any document delivered in connection
herewith or therewith shall be incorrect or misleading in any material respect
when made or deemed made; or


 


(e)           Cross-Default.
(i) There shall occur any default or event of default under the
Warehousing Agreement or the United Bank Credit Facility, or (ii) any Loan
Party or any Subsidiary thereof (x) fails to make any payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee having an aggregate
principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $1,500,000, or (y) fails to observe or
perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or


 


(f)            Insolvency
Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes
or consents to the institution of any proceeding under any Debtor Relief Law,
or makes an assignment for the benefit of creditors; or applies for or consents
to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or a proceeding shall be commenced or a petition filed,
without the application or consent of such Person, seeking or requesting the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed and the appointment continues
undischarged, undismissed or unstayed for 60 calendar days or an order or
decree approving or ordering any of the foregoing shall be entered; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or
any material part of its property is instituted without the consent of such
Person and continues undismissed or unstayed for 60 calendar days, or an order
for relief is entered in any such proceeding; or


 


(g)           Inability to Pay
Debts; Attachment. (i) Any Loan Party or any Subsidiary thereof
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due in the ordinary course of business, or (ii) any
writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and is
not released, vacated or fully bonded within 45 days after its issue or levy;
or


 


(h)           Judgments. There
is entered against any Loan Party or any Subsidiary thereof (i) one or
more judgments or orders for the payment of money in an aggregate amount (as to
all such judgments and orders) exceeding $750,000 (to the extent not covered by
independent third-party insurance as to which the insurer is rated at least “A”
by A.M. Best Company, has been notified of the potential claim and does
not dispute coverage), or (ii) any one or more non-monetary judgments that


 


64














 


have, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, is not in effect; or


 


(i)            ERISA.
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability
of any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer
Plan or the PBGC in an aggregate amount in excess of $150,000, or (ii) a
Loan Party or any ERISA Affiliate fails to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of $150,000; or


 


(j)            Invalidity of Loan
Documents. (i) Any provision of any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect; or any Loan Party or any other Person contests
in any manner the validity or enforceability of any provision of any Loan
Document; or any Loan Party or any Subsidiary thereof denies that it has any or
further liability or obligation under any provision of any Loan Document, or
purports to revoke, terminate or rescind any provision of any Loan Document or
seeks to avoid, limit or otherwise adversely affect any Lien purported to be
created under any Security Document; or (ii) any Lien purported to be
created hereunder or under any Security Document shall cease to be, or shall be
asserted by any Loan Party or any Subsidiary thereof or any other Person not to
be, a valid and perfected Lien on any Collateral, with the priority required by
the applicable Security Document; or


 


(k)           Change of Control.
There occurs any Change of Control without the prior approval of the
Administrative Agent and the Required Lenders, not to be unreasonably withheld
or delayed; or


 


(1)           Cessation of
Business. Except as otherwise expressly permitted hereunder, any Loan Party
or any Subsidiary thereof shall take any action to suspend the operation of its
business in the ordinary course, liquidate all or a material portion of its
assets, or employ an agent or other third party to conduct a program of closings
or liquidations of any material portion of its business; or


 


(m)          Loss of Collateral.
There occurs any uninsured loss to any material portion of any Collateral; or


 


(n)           Breach of
Contractual Obligation. Any Loan Party or any Subsidiary thereof fails to
(i) make any payment, individually or in the aggregate in excess of
$750,000, when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Contractual Obligation,
or (ii) observe or perform any other agreement or condition relating to
any Material Contract or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the counterparty to such
Material Contract to terminate such Material Contract; or


 


(o)           Indictment. The
indictment or institution of any legal process or proceeding against, any Loan
Party or any Subsidiary thereof, under any federal, state, municipal, and other
criminal statute, rule, regulation, order, or other requirement having the
force of law for a felony (it being understood and agreed that an indictment or
institution of any legal process or proceeding against any Principal or
employee or agent of a Loan Party or Subsidiary shall not constitute an Event
of Default under this Section 9.01(o)); or


 


65

















 


(p)           Guaranty. The
termination or attempted termination of any Guaranty including, without
limitation, the Guaranty in Article XI of this Agreement; or


 


(q)           Subordination.
(i) The subordination provisions of the documents evidencing or governing
any Subordinated Indebtedness (the “Subordinated
Provisions”) shall, in whole or in part, terminate, cease to be
effective or cease to be legally valid, binding and enforceable against any
holder of the applicable Subordinated Indebtedness; or (ii) any Loan Party
shall, directly or indirectly, disavow or contest in any manner (A) the
effectiveness, validity or enforceability of any of the Subordination
Provisions, (B) that the
Subordination Provisions exist for the benefit of the Credit Parties, or
(C) that all payments of principal of or premium and interest on the
applicable Subordinated Indebtedness, or realized from the liquidation of any
property of any Loan Party, shall be subject to any of the Subordination
Provisions; provided that the relevant Subordinated Provisions relate to or
affect Subordinated Indebtedness (1) of the Loan Parties, Green Park or
WDLLC with respect to the Principals or any employees of the Loan Parties,
Green Park or WDLLC in an aggregate amount in excess of $250,000 or
(2) any other Person.


 


9.02        Remedies Upon Event of
Default. If any Event of Default occurs and is continuing, the
Administrative Agent may, or, at the request of the Required Lenders shall,
take any or all of the following actions:


 


(a)           declare the unpaid
principal amount of all outstanding Loans, all interest accrued and unpaid
thereon, and all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by the Loan Parties; and


 


(b)           whether or not the
maturity of the Obligations shall have been accelerated pursuant hereto, may
(and at the direction of the Required Lenders, shall) proceed to protect,
enforce and exercise all rights and remedies of the Credit Parties under this
Agreement, any of the other Loan Documents or applicable Law, including, but
not limited to, by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Agreement and the other Loan Documents or any instrument
pursuant to which the Obligations are evidenced, and, if such amount shall have
become due, by declaration or otherwise, proceed to enforce the payment thereof
or any other legal or equitable right of the Credit Parties;


 


provided, however,
that upon the entry of an order for relief with respect to any Loan Party or
any Subsidiary thereof under any Debtor Relief Law, the unpaid principal amount
of all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, in each case without further act of the
Administrative Agent or any Lender.


 


No remedy
herein is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or any
other provision of Law.


 


9.03        Application of Funds. After
the exercise of remedies provided for in Section 9.02 (or after the
Loans have automatically become immediately due and payable), any amounts received
on account of the Obligations shall be applied by the Administrative Agent in
the following order:


 


(i)            to
payment of that portion of the Obligations (excluding the Other Liabilities)
constituting fees, indemnities, Credit Party Expenses and other amounts
(including fees, charges and disbursements of counsel to the Administrative
Agent and the Collateral


 


66

















 


Agent and
amounts payable under Article III) payable to the Administrative Agent
and the Collateral Agent, each in its capacity as such, and then


 


(ii)           to
payment of that portion of the Obligations (excluding the Other Liabilities)
constituting indemnities, Credit Party Expenses, and other amounts (other than
principal, interest and fees) payable to the Lenders (including fees, charges
and disbursements of counsel to the respective Lenders and amounts payable
under Article III), ratably among them in proportion to the amounts
described in this clause payable to them, and then


 


(iii)         to
payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and other Obligations, ratably among the Lenders in
proportion to the respective amounts described in this clause payable to them,
and then


 


(iv)          to
payment of that portion of the Obligations constituting unpaid principal of the
Loans, ratably among the Lenders in proportion to the respective amounts
described in this clause held by them, and then


 


(v)            to
payment of all other Obligations (including without limitation the cash collateralization
of unliquidated indemnification obligations as provided in Section 12.04(b),
but excluding any Other Liabilities), ratably among the Credit Parties in
proportion to the respective amounts described in this clause held by them, and
then


 


(vi)          to
payment of that portion of the Obligations arising from Cash Management
Services to the extent secured under the Security Documents, ratably among the
Credit Parties in proportion to the respective amounts described in this clause
held by them, and then


 


(vii)         the
balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Loan Parties or as otherwise required by Law.


 


9.04        Fannie Mae Limitations. Notwithstanding
any provision of this Agreement or any Security Document, the Collateral Agent
may not cause the transfer of any indirect ownership interest in Green Park or
WDLLC to a third-party which is not an Affiliate of the Collateral Agent
without the approval of Fannie Mae, provided that Fannie Mae utilizes its
customary review and approval process applicable to such circumstances.


 


9.05        Freddie Mac Limitations. Notwithstanding
any provision of this Agreement or any Security Document, the Collateral Agent
may not cause the transfer of any indirect ownership interest in Green Park or
WDLLC to a third-party which is not an Affiliate of the Collateral Agent
without the approval of Freddie Mac, provided that Freddie Mac utilizes its
customary review and approval process applicable to such circumstances.


 


ARTICLE X.

ADMINISTRATIVE AGENT


 


10.01      Appointment and Authority.


 


(a)           Each of the Lenders
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent hereunder and under the other Loan Documents and
authorizes the


 


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Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto. The provisions of this Article are
solely for the benefit of the Administrative Agent and the Lenders, and no Loan
Party or any Subsidiary thereof shall have rights as a third party beneficiary
of any of such provisions.


 


(b)           Each of the
Lenders, in its capacities as a Lender, hereby irrevocably appoints Bank of
America as Collateral Agent and authorizes the Collateral Agent to act as the
agent of such Lender for purposes of acquiring, holding and enforcing any and
all Liens on Collateral granted by any of the Loan Parties to secure any of the
Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Collateral Agent, as “collateral
agent” and any co- agents, sub-agents and attorneys-in-fact appointed by the
Collateral Agent pursuant to Section 10.05 for purposes of holding
or enforcing any Lien on the Collateral (or any portion thereof) granted under
the Security Documents, or for exercising any rights and remedies thereunder at
the direction of the Collateral Agent), shall be entitled to the benefits of
all provisions of this Article IX and Article XI
(including Section 12.04(c)), as though such co-agents, sub-agents
and attorneys-in-fact were the “collateral agent” under the Loan Documents, as
if set forth in full herein with respect thereto.


 


10.02      Rights as a Lender. The
Persons serving as the Agents hereunder shall have the same rights and powers
in their capacity as a Lender as any other Lender and may exercise the same as
though they were not the Administrative Agent or the Collateral Agent and the
term “Lender” or “Lenders” shall, unless otherwise expressly indicated or
unless the context otherwise requires, include the Person serving as the
Administrative Agent or the Collateral Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from, lend money
to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Loan Parties or any
Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent or the Collateral Agent hereunder and without any duty to
account therefor to the Lenders.


 


10.03      Exculpatory Provisions. The
Agents shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality
of the foregoing, the Agents:


 


(a)           shall not be subject to
any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing;


 


(b)           shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other
Loan Documents that the Administrative Agent or the Collateral Agent, as
applicable, is required to exercise as directed in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents), provided
that no Agent shall be required to take any action that, in its respective
opinion or the opinion of its counsel, may expose such Agent to liability or
that is contrary to any Loan Document or applicable law; and


 


(c)           shall not, except as
expressly set forth herein and in the other Loan Documents, have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Loan Parties or any of its Affiliates that is communicated to
or obtained by the Person serving as the Administrative Agent, the Collateral
Agent or any of its Affiliates in any capacity.


 


No Agent shall be liable for any action taken
or not taken by it (i) with the Consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary,
or as such Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections


 


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12.01
and 9.02) or (ii) in the absence of its own gross negligence,
willful misconduct or bad faith as determined by a final and non-appealable
judgment of a court of competent jurisdiction. The Agents shall not be deemed
to have knowledge of any Default unless and until written notice describing
such Default is given to such Agent by the Loan Parties or a Lender.


 


The Agents
shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection
with this Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or the creation,
perfection or priority of any Lien purported to be created by the Security
Documents, (v) the value or the sufficiency of any Collateral, or
(vi) the satisfaction of any condition set forth in Article IV
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Agents.


 


10.04      Reliance by Agents. Each
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including, but not limited to, any electronic message, Internet
or intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by the proper Person.
Each Agent also may rely upon any statement made to it orally or by telephone
and believed by it to have been made by the proper Person, and shall not incur
any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, that by its terms must be fulfilled to the
satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless the Administrative Agent shall
have received written notice to the contrary from such Lender prior to the
making of such Loan. Each Agent may consult with legal counsel (who may be
counsel for any Loan Party), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.


 


10.05      Delegation of Duties. Each
Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through
their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of
the Agents and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as such Agent.


 


10.06      Resignation of Agents. Either
Agent may at any time give written notice of its resignation to the Lenders and
the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a
successor, which shall be a bank with an office in the United States, or an Affiliate
of any such bank with an office in the United States. If no such successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may on behalf of the Lenders, appoint a
successor Administrative Agent or Collateral Agent, as applicable, meeting the
qualifications set forth above; provided that if the Administrative
Agent or the Collateral Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the
retiring Agent shall be discharged from its duties and obligations hereunder and
under


 


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the other Loan Documents (except that in the
case of any Collateral held by the Collateral Agent on behalf of the Lenders
under any of the Loan Documents, the retiring Collateral Agent shall continue
to hold such collateral security until such time as a successor Collateral
Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above
in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent or Collateral Agent, as applicable, hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Agent, and the retiring
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section). The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
retiring Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 12.04 shall continue in
effect for the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Agent was acting as Administrative
Agent or Collateral Agent hereunder.


 


10.07      Non-Reliance on
Administrative Agent and Other Lenders. Each Lender acknowledges that it
has, independently and without reliance upon the Agents or any other Lender or
any of their Related Parties and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agents or any other Lender or any of their Related
Parties and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder. Except
as provided in Section 10.11, the Agents shall not have any duty or
responsibility to provide any Credit Party with any other credit or other
information concerning the affairs, financial condition or business of any Loan
Party that may come into the possession of the Agents.


 


10.08      Administrative Agent
May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of
any Loan shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Loan Parties) shall be entitled and empowered, by
intervention in such proceeding or otherwise


 


(a)           to file and prove a
claim for the whole amount of the principal and interest owing and unpaid in
respect of the Loans and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to have the
claims of the Lenders and the other Credit Parties (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders,
the Administrative Agent, such Credit Parties and their respective agents and
counsel and all other amounts due the Lenders, the Administrative Agent and
such Credit Parties under Section 12.04) allowed in such judicial
proceeding; and


 


(b)           to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same;


 


and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Lender to make such payments
to the Administrative Agent and, if the Administrative Agent shall consent to
the making of such payments directly to the Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,


 


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disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.05 and 12.04.


 


Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding.


 


10.09      Collateral and Guaranty
Matters.


 


(a)           The Credit Parties
irrevocably authorize the Agents, at their option and in their discretion, to
release any Lien on any property granted to or held by the Collateral Agent
under any Loan Document (i) upon the payment in full of all Obligations
(other than contingent indemnification obligations for which no claim has been
asserted), (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Loan Document, or (iii) if
approved, authorized or ratified in writing by the Required Lenders in
accordance with Section 12.01.


 


(b)           Upon request by any
Agent at any time, the Required Lenders will confirm in writing such Agent’s
authority to release or subordinate its interest in particular types or items
of property. In each case as specified in this Section 10.09, the
Agents will, at the Loan Parties’ expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request
to evidence the release of such item of Collateral from the assignment and
security interest granted under the Security Documents or to subordinate its
interest in such item, in each case in accordance with the terms of the Loan
Documents and this Section 10.09.


 


10.10      Notice of Transfer. The
Agents may deem and treat a Lender party to this Agreement as the owner of such
Lender’s portion of the Obligations for all purposes, unless and until, and
except to the extent, an Assignment and Acceptance shall have become effective
as set forth in Section 12.06.


 


10.11      Reports and Financial
Statements. By signing this Agreement, each Lender:


 


(a)           is deemed to have
requested that the Administrative Agent furnish such Lender, promptly after
they become available, copies of all financial statements required to be
delivered by the Borrower hereunder and all commercial finance examinations and
appraisals of the Collateral received by the Agents (collectively, the “Reports”);


 


(b)           expressly agrees and
acknowledges that the Administrative Agent makes no representation or warranty
as to the accuracy of the Reports, and shall not be liable for any information
contained in any Report;


 


(c)           expressly agrees and
acknowledges that the Reports are not comprehensive audits or examinations,
that the Agents or any other party performing any audit or examination will
inspect only specific information regarding the Loan Parties and will rely
significantly upon the Loan Parties’ books and records, as well as on
representations of the Loan Parties’ personnel;


 


(d)           agrees to keep all
Reports confidential in accordance with the provisions of Section 12.07;
and


 


71

















 


(e)           without limiting
the generality of any other indemnification provision contained in this
Agreement, agrees: (i) to hold the Agents and any such other Lender
preparing a Report harmless from any action the indemnifying Lender may take or
conclusion the indemnifying Lender may reach or draw from any Report in
connection with any Loans that the indemnifying Lender has made or may make to
the Borrower, or the indemnifying Lender’s participation in, or the
indemnifying Lender’s purchase of, a Loan or Loans; and (ii) to pay and
protect, and indemnify, defend, and hold the Agents and any such other Lender
preparing a Report harmless from and against, the claims, actions, proceedings,
damages, costs, expenses, and other amounts (including attorney costs) incurred
by the Agents and any such other Lender preparing a Report as the direct or
indirect result of any third parties who might obtain all or part of any Report
through the indemnifying Lender.


 


10.12      Agency for Perfection. Each
Lender hereby appoints each other Lender as agent for the purpose of perfecting
Liens for the benefit of the Agents and the Lenders, in assets which, in
accordance with Article 9 of the UCC or any other applicable Law of the
United States can be perfected only by possession. Should any Lender (other
than the Agents) obtain possession of any such Collateral, such Lender shall
notify the Agents thereof, and, promptly upon the Collateral Agent’s request
therefor shall deliver such Collateral to the Collateral Agent or otherwise
deal with such Collateral in accordance with the Collateral Agent’s
instructions.


 


10.13      Indemnification of Agents. The
Lenders agree to indemnify the Agents (to the extent not reimbursed by the Loan
Parties and without limiting the obligations of Loan Parties hereunder),
ratably according to their respective pro rata shares, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against any Agent in any way
relating to or arising out of this Agreement or any other Loan Document or any
action taken or omitted to be taken by any Agent in connection therewith; provided,
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent’s gross negligence, willful
misconduct or bad faith as determined by a final and nonappealable judgment of
a court of competent jurisdiction.


 


10.14      Relation among Credit
Parties. The Credit Parties are not partners or co-venturers, and no Credit
Party shall be liable for the acts or omissions of, or (except as otherwise set
forth herein in case of the Agents) authorized to act for, any other Credit
Party.


 


ARTICLE XI.

GUARANTEE; PLEDGES OF NON-FANNIE MAE SERVICING CONTRACTS


 


11.01      The Guarantee. The
Guarantors, jointly and severally, hereby fully and unconditionally guarantee,
each as a primary obligor and not as a surety, to each Credit Party the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest (including any interest, fees,
costs or charges that would accrue but for the provisions of the Bankruptcy
Code after any bankruptcy or insolvency petition under the Bankruptcy Code) on all
Obligations from time to time owing to any Credit Party under this Agreement
and under any Notes and by any Loan Party under any of the other Loan
Documents, in each case strictly in accordance with the terms thereof. The
Guarantors hereby agree that if Borrower shall fail to pay in full when due
(whether at stated maturity, by acceleration or otherwise) any of the
Obligations, the Guarantors will promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Obligations, the same will be promptly paid in full when
due (whether at extended maturity, by


 


72

















 


acceleration or otherwise) in accordance with
the terms of such extension or renewal. The Guarantors also agree to cause
Borrower to perform all of Borrower’s obligations under the Loan Documents.


 


11.02      Obligations Unconditional. The
obligations of the Guarantors under Section 11.01 are absolute,
irrevocable and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of any
Loan Party under this Agreement or any Loan Documents, or any substitution,
release or exchange of any other guarantee of or security for any of the
Obligations, and, to the fullest extent permitted by applicable Law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor
(except for payment in full). Without limiting the generality of the foregoing,
it is agreed that the occurrence of any one or more of the following shall not
alter or impair the liability of any Guarantor hereunder which shall remain
absolute, irrevocable and unconditional under any and all circumstances as
described above:


 


(a)           at any time or from
time to time, without notice to the Guarantors, the time for any performance of
or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived;


 


(b)           any of the acts
mentioned in any of the provisions of this Agreement or any other Loan Document
shall be performed or omitted;


 


(c)           the maturity of any of
the Obligations shall be accelerated, or any of the Obligations shall be
amended in any respect, or any right under this Agreement or any other Loan
Document or any other agreement or instrument referred to herein or therein
shall be amended or waived in any respect or any other guarantee of any of the
Obligations or any security therefor shall be released or exchanged in whole or
in part or otherwise dealt with; or


 


(d)           any lien or security
interest granted to, or in favor of, any Credit Party as security for any of
the Obligations shall fail to be perfected.


 


Each Guarantor
hereby expressly waives diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that any Credit Party exhaust any
right, power or remedy or proceed against Borrower under this Agreement or any
other Loan Document, or against any other Person under any other guarantee of,
or security for, any of the Obligations. Each Guarantor waives any and all
notice of the creation, renewal, extension, waiver, termination or accrual of
any of the Obligations and notice of or proof of reliance by any Credit Party
upon this guarantee or acceptance of this guarantee, and the Obligations, and
any of them, shall conclusively be deemed to have been created, contracted or
incurred in reliance upon this guarantee, and all dealings between Borrower and
the Credit Parties shall likewise be conclusively presumed to have been had or
consummated in reliance upon this guarantee. This guarantee shall be construed
as a continuing, absolute, irrevocable and unconditional guarantee of payment
without regard to any right of offset with respect to the Obligations at any
time or from time to time held by the Credit Parties, and the obligations and
liabilities of the Guarantors hereunder shall not be conditioned or contingent
upon the pursuit by any Credit Party or any other Person at any time of any
right or remedy against Borrower or against any other Person which may be or
become liable in respect of all or any part of the Obligations or against any
collateral security or guarantee therefor or right of offset with respect
thereto. This guarantee shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon the Guarantors and the
successors and assigns thereof, and shall inure to the benefit of the Credit
Parties, until there are no Obligations outstanding.


 


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11.03      Reinstatement. The
obligations of the Guarantors under this Article XI shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of Borrower in respect of the Obligations is rescinded or must be otherwise
restored by any holder of any of the Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise. Each Guarantor agrees
that it will indemnify each of the Credit Parties on demand for all reasonable
costs and expenses (including reasonable fees of counsel) incurred by it in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law, other than any costs or expenses
resulting from the gross negligence, willful misconduct, or bad faith of such
Credit Party.


 


11.04      Subrogation; Subordination. Each
Guarantor agrees that until the indefeasible payment and satisfaction in full
in cash of all Obligations it shall not exercise any right or remedy arising by
reason of any performance by it of its guarantee in Section 11.01,
whether by subrogation or otherwise, against Borrower of any of the Obligations
or any security for any of the Obligations. The payment of any amounts due with
respect to any indebtedness of Borrower now or hereafter owing to any Guarantor
by reason of any payment by such Guarantor under the guarantee in this
Article XI is hereby subordinated to the prior indefeasible payment in
full in cash of the Obligations. Each Guarantor agrees that it will not demand,
sue for or otherwise attempt to collect any such indebtedness of Borrower to
such Guarantor until the Obligations shall have been indefeasibly paid in full
in cash. If, notwithstanding the foregoing sentence, any Guarantor shall prior
to the indefeasible payment in full in cash of the Obligations collect, enforce
or receive any amounts in respect of such indebtedness, such amounts shall be
collected, enforced and received by such Guarantor as trustee for the Credit
Parties and be paid over to Administrative Agent on account of the Obligations
without affecting in any manner the liability of such Guarantor under the other
provisions of the guarantee contained herein.


 


11.05      Remedies. Each Guarantor
agrees that, as between such Guarantor and the Credit Parties, the obligations
of Borrower under this Agreement and the other Loan Documents may be declared
to be forthwith due and payable as provided herein, or shall be deemed to have
become automatically due and payable in the circumstances provided herein, for
purposes of Section 11.01 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from
becoming automatically due and payable) as against Borrower and that, in the
event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and
payable by Borrower) shall forthwith become due and payable by the Guarantors
for purposes of Section 11.01.


 


11.06      Continuing Guarantee. The
guarantee in this Article XI is a continuing guarantee, and shall apply to
all Obligations whenever arising.


 


11.07      Pledge of Investor Servicing
Rights by Green Park.


 


(a)           Green Park hereby
grants the Collateral Agent for the benefit of the Credit Parties, a security
interest (the “Green Park Investor Security
Interest”) in the
following (the “Green Park Investor
Collateral”) to
secure payment and performance of the Obligations: all servicing income
actually received by Green Park with respect to the Mortgage Loans (“Green Park
Investor Designated Loans”) serviced at any time and from
time to time under any Servicing Contracts between Green Park and an Investor
(collectively, “Investor Servicing Contracts”), but not in the Investor Servicing
Contracts or any other income related to the Green Park Investor Designated
Loans. Collateral Agent’s security interest is subject and subordinate to all
rights, remedies, powers and prerogatives of the


 


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Investors under all applicable selling and
servicing agreements between such Investors and Green Park (collectively, the “Investor Agreements”),  including
an Investor’s right (if set forth in the applicable Investor Agreement) to
terminate Green Park’s servicing rights with respect to the Green Park Investor
Designated Loans as provided in the applicable Investor Agreement. Without
limiting the generality of the foregoing provisions, Collateral Agent
acknowledges that its security interest is subject to the rights of any
Investor which must approve Collateral Agent’s security interest pursuant to
the terms of the applicable Investor Agreement.


 


(b)           Green Park each
authorizes the Collateral Agent to file such financing statements as the
Collateral Agent deems reasonably necessary to perfect the Security Interest in
the Green Park Investor Collateral.


 


(c)           Subject to Section 11.07(a),
Green Park hereby irrevocably appoints (which appointment is coupled with an
interest) the Collateral Agent, or its delegate, as the attorney in fact of
Green Park with the right (but not the duty) from time to time, following the
occurrence and during the continuance of an Event of Default, to
(i) create, prepare, complete, execute, deliver, endorse or file, in the
name and on behalf of Green Park any and all instruments, documents, financing
statements, applications for insurance and other agreements and writings
required to be obtained, executed, delivered or endorsed by Green Park under
this Section 11.07; (ii) convert all or any portion of the
Green Park Investor Collateral into cash, including, without limitation, the
sale (either public or private) of all or any portion or portions of the Green
Park Investor Collateral; (iii) enforce collection of the Green Park
Investor Collateral, either in its own name or in the name of Green Park, as
the case may be, including, without limitation, executing releases and
prosecuting, defending, compromising or releasing any action relating to the
Green Park Investor Collateral; and (iv) take such other actions as
Collateral Agent deems necessary or desirable in order to continue the
perfection and priority of the Green Park Investor Security Interest or realize
upon the Green Park Investor Collateral. The Collateral Agent shall not be obliged
to do any of the acts or exercise any of the powers hereinabove authorized, but
if the Collateral Agent elects to do any such act or exercise any such power,
it shall not be accountable for more than it actually receives as a result of
such exercise of power, and it shall not be responsible to Green Park or any
other Person except for gross negligence, willful misconduct or in bad faith.


 


(d)           To the extent that
Green Park Investor Designated Loans remain subject to the Investor Agreements,
Green Park will remain the servicer of the Green Park Investor Designated Loans
and will continue to service the Green Park Investor Designated Loans in
accordance with applicable Investor requirements. Green Park shall not pledge
any of its servicing rights with respect to the Green Park Investor Designated
Loans to any other Person, nor agree to give a negative pledge thereof to any
other Person.


 


(e)           Collateral Agent has no
right to service the Green Park Investor Designated Loans or affect the manner
in which Green Park services the Green Park Investor Designated Loans. If an
Investor terminates Green Park’s servicing rights with respect such Investor’s
Green Park Investor Designated Loans, this pledge will automatically terminate.


 


(f)            Upon the occurrence
and during the continuance of an Event of Default for 30 days or more and the
exercise by the Collateral Agent of its rights under Section 9.02,
Collateral Agent may: (i) direct that all servicing fees payable to Green
Park with respect to the Green Park Investor Designated Loans be deposited into
lockbox accounts held by Collateral Agent; (ii) in its own name, in the
name of Green Park, or otherwise, demand, sue for, collect or receive any money
or property at any time payable or receivable on account of or in exchange for
any of the Green Park Investor Collateral, but Collateral Agent has no
obligation to do so; (iii) by written notice to Green Park, direct Green
Park to sell the servicing rights to the Green Park Investor Designated Loans
of such Person (in which event, Green


 


75

















 


Park shall (x) retain a nationally
recognized firm that specializes in the sale of similar servicing rights (which
firm must be reasonably acceptable to Collateral Agent) and (y) sell the servicing
rights to the subject Green Park Investor Designated Loans to another servicer
within 60 days of such notice from Collateral Agent); and (iv) exercise
and enforce any or all rights and remedies available upon default to Collateral
Agent under the UCC, at law or in equity. Any sale of the Green Park Investor
Collateral might be subject to the approval of the subject Investor. All
proceeds of such sale will be applied first to the expenses of the sale, then
to any amounts due to the subject Investor for Green Park under the Servicing
Contracts sold, and then to the outstanding balance of the Obligations (as
provided in Section 9.03), with any remaining balance remitted to
Green Park.


 


(g)           After the occurrence
and during the continuance of an Event of Default for 30 days or more,
Collateral Agent or its designee is entitled to service and receive and collect
all sums payable to Green Park in respect of the Green Park Collateral, and, in
such case (1) Collateral Agent or its designee in its discretion may, in
its own name, in the name of Green Park, or otherwise, demand, sue for, collect
or receive any money or property at any time payable or receivable on account
of or in exchange for any of the Green Park Collateral, but Collateral Agent
has no obligation to do so, (2) Green Park must, if Collateral Agent
requests it to do so, hold in trust for the benefit of the Lenders and
immediately pay to Collateral Agent at its office designated by Notice, all
amounts received by Green Park upon or in respect of any of the Green Park
Collateral, advising Collateral Agent as to the source of those funds and
(3) all amounts so received and collected by Collateral Agent will be held
by it as part of the Green Park Collateral.


 


(h)           To the extent any
amounts are received by the Collateral Agent pursuant to this Section, all
rights Green Park against any Loan Party arising as a result thereof by way of
right of subrogation, contribution, reimbursement, indemnity or otherwise shall
in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations.


 


11.08      Pledge of Investor Servicing
Rights by WDLLC.


 


(a)           WDLLC hereby grants the
Collateral Agent for the benefit of the Credit Parties, a security interest
(the “WDLLC Investor Security Interest”)  in
the following (the “WDLLC Investor
Collateral”) to
secure payment and performance of the Obligations: all servicing income
actually received by WDLLC with respect to the Mortgage Loans (“WDLLC
Investor Designated Loans”)  serviced
at any time and from time to time under any Servicing Contracts between WDLLC
and a WDLLC Investor (collectively, “WDLLC
Investor Servicing Contracts”),  but not in
the WDLLC Investor Servicing Contracts or any other income related to the WDLLC
Investor Designated Loans. Collateral Agent’s security interest is subject and
subordinate to all rights, remedies, powers and prerogatives of the WDLLC
Investors under all applicable selling and servicing agreements between such
WDLLC Investors and WDLLC (collectively, the “WDLLC
Investor Agreements”), including
a WDLLC Investor’s right (if set forth in the applicable WDLLC Investor
Agreement) to terminate WDLLC’s servicing rights with respect to the WDLLC
Investor Designated Loans as provided in the applicable WDLLC Investor
Agreement. Without limiting the generality of the foregoing provisions,
Collateral Agent acknowledges that its security interest is subject to the
rights of any WDLLC Investor which must approve Collateral Agent’s security
interest pursuant to the terms of the applicable WDLLC Investor Agreement.


 


(b)           WDLLC each authorizes
the Collateral Agent to file such financing statements as the Collateral Agent
deems reasonably necessary to perfect the Security Interest in the WDLLC
Investor Collateral.


 


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(c)           Subject to Section 11.08(a),
WDLLC hereby irrevocably appoints (which appointment is coupled with an
interest) the Collateral Agent, or its delegate, as the attorney in fact of
WDLLC with the right (but not the duty) from time to time, following the
occurrence and during the continuance of an Event of Default, to
(i) create, prepare, complete, execute, deliver, endorse or file, in the
name and on behalf of WDLLC any and all instruments, documents, financing
statements, applications for insurance and other agreements and writings
required to be obtained, executed, delivered or endorsed by WDLLC under this Section 11.08;
(ii) convert all or any portion of the WDLLC Investor Collateral into
cash, including, without limitation, the sale (either public or private) of all
or any portion or portions of the WDLLC Investor Collateral; (iii) enforce
collection of the WDLLC Investor Collateral, either in its own name or in the
name of WDLLC, as the case may be, including, without limitation, executing
releases and prosecuting, defending, compromising or releasing any action
relating to the WDLLC Investor Collateral; and (iv) take such other
actions as Collateral Agent deems necessary or desirable in order to continue
the perfection and priority of the WDLLC Investor Security Interest or realize
upon the WDLLC Investor Collateral. The Collateral Agent shall not be obliged
to do any of the acts or exercise any of the powers hereinabove authorized, but
if the Collateral Agent elects to do any such act or exercise any such power,
it shall not be accountable for more than it actually receives as a result of
such exercise of power, and it shall not be responsible to WDLLC or any other
Person except for gross negligence, willful misconduct or in bad faith.


 


(d)           To the extent that
WDLLC Investor Designated Loans remain subject to the Investor Agreements,
WDLLC will remain the servicer of the WDLLC Investor Designated Loans and will
continue to service the WDLLC Investor Designated Loans in accordance with
applicable Investor requirements. WDLLC shall not pledge any of its servicing
rights with respect to the WDLLC Investor Designated Loans to any other Person,
nor agree to give a negative pledge thereof to any other Person.


 


(e)           Collateral Agent has no
right to service the WDLLC Investor Designated Loans or affect the manner in
which WDLLC services the WDLLC Investor Designated Loans. If a WDLLC Investor
terminates WDLLC’s servicing rights with respect such WDLLC Investor’s WDLLC
Investor Designated Loans, this pledge will automatically terminate.


 


(f)            Upon the occurrence
and during the continuance of an Event of Default for 30 days or more and the
exercise by the Collateral Agent of its rights under Section 9.02,
Collateral Agent may: (i) direct that all servicing fees payable to WDLLC
with respect to the WDLLC Investor Designated Loans be deposited into lockbox
accounts held by Collateral Agent; (ii) in its own name, in the name of
WDLLC, or otherwise, demand, sue for, collect or receive any money or property
at any time payable or receivable on account of or in exchange for any of the
WDLLC Investor Collateral, but Collateral Agent has no obligation to do so;
(iii) by written notice to WDLLC, direct WDLLC to sell the servicing
rights to the WDLLC Investor Designated Loans of such Person (in which event,
WDLLC shall (x) retain a nationally recognized firm that specializes in
the sale of similar servicing rights (which firm must be reasonably acceptable
to Collateral Agent) and (y) sell the servicing rights to the subject
WDLLC Investor Designated Loans to another servicer within 60 days of such
notice from Collateral Agent); and (iv) exercise and enforce any or all
rights and remedies available upon default to Collateral Agent under the UCC,
at law or in equity. Any sale of the WDLLC Investor Collateral might be subject
to the approval of the subject WDLLC Investor. All proceeds of such sale will
be applied first to the expenses of the sale, then to any amounts due to the subject
WDLLC Investor for WDLLC under the Servicing Contracts sold, and then to the
outstanding balance of the Obligations (as provided in Section 9.03),
with any remaining balance remitted to WDLLC.


 


(g)           After the occurrence
and during the continuance of an Event of Default for 30 days or more,
Collateral Agent or its designee is entitled to service and receive and collect
all sums payable to WDLLC in respect of the WDLLC Collateral, and, in such case
(1) Collateral Agent or its


 


77

















 


designee in its discretion may, in its own
name, in the name of WDLLC, or otherwise, demand, sue for, collect or receive
any money or property at any time payable or receivable on account of or in
exchange for any of the WDLLC Collateral, but Collateral Agent has no
obligation to do so, (2) WDLLC must, if Collateral Agent requests it to do
so, hold in trust for the benefit of the Lenders and immediately pay to
Collateral Agent at its office designated by Notice, all amounts received by
WDLLC upon or in respect of any of the WDLLC Collateral, advising Collateral
Agent as to the source of those funds and (3) all amounts so received and
collected by Collateral Agent will be held by it as part of the WDLLC
Collateral.


 


(h)           To the extent any
amounts are received by the Collateral Agent pursuant to this Section, all
rights of WDLLC against any Loan Party arising as a result thereof by way of
right of subrogation, contribution, reimbursement, indemnity or otherwise shall
in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations.


 


11.09      Grant of Security Interest
in Transaction Documents.


 


(a)           WDLLC hereby grants
the Collateral Agent for the benefit of the Credit Parties, a security interest
(the “Transaction Documents Security
Interest”) in the following (the “Transaction
Documents Collateral”) to secure payment and performance of the
Obligations: all rights of WDLLC arising under any of the Transaction
Documents, including all payments and proceeds arising therefrom.


 


(b)           WDLLC each
authorizes the Collateral Agent to file such financing statements as the
Collateral Agent deems reasonably necessary to perfect the Security Interest in
the Transaction Documents Collateral.


 


(c)           WDLLC hereby
irrevocably appoints (which appointment is coupled with an interest) the
Collateral Agent, or its delegate, as the attorney in fact of WDLLC with the
right (but not the duty) from time to time, following the occurrence and during
the continuance of an Event of Default, to (i) create, prepare, complete,
execute, deliver, endorse or file, in the name and on behalf of WDLLC any and
all instruments, documents, financing statements, applications for insurance
and other agreements and writings required to be obtained, executed, delivered
or endorsed by WDLLC under this Section 11.07; (ii) convert
all or any portion of the Transaction Documents Collateral into cash,
including, without limitation, the sale (either public or private) of all or any
portion or portions of the Transaction Documents Collateral; (iii) enforce
collection of the Transaction Documents Collateral, either in its own name or
in the name of WDLLC, as the case may be, including, without limitation,
executing releases and prosecuting, defending, compromising or releasing any
action relating to the Transaction Documents Collateral; and (iv) take
such other actions as Collateral Agent deems necessary or desirable in order to
continue the perfection and priority of the Transaction Documents Security
Interest or realize upon the Transaction Documents Collateral. The Collateral
Agent shall not be obliged to do any of the acts or exercise any of the powers
hereinabove authorized, but if the Collateral Agent elects to do any such act or
exercise any such power, it shall not be accountable for more than it actually
receives as a result of such exercise of power, and it shall not be responsible
to WDLLC or any other Person except for gross negligence, willful misconduct or
in bad faith.


 


(d)           Each of the Loan
Parties acknowledges and agrees, and shall cause CGL to acknowledge and agree,
that the Collateral Agent may enforce any and all of WDLLC’s rights under the
provisions of the Transaction Documents notwithstanding any term or provision
contained in the Transaction Documents to the contrary.


 


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ARTICLE XII.

MISCELLANEOUS


 


12.01      Amendments, Etc. No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no Consent to any departure by any Loan Party therefrom, shall be
effective unless in writing signed by the Administrative Agent, with the
Consent of the Required Lenders, and the Borrower or the applicable Loan Party,
as the case may be, and acknowledged by the Administrative Agent, and each such
waiver or Consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no
such amendment, waiver or consent shall:


 


(a)           extend or, increase the
Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 9.02)
without the written Consent of such Lender;


 


(b)           postpone any date fixed
by this Agreement or any other Loan Document for (i) any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the
Lenders (or any of them) hereunder or under any of the other Loan Documents
without the written Consent of each Lender entitled to such payment, or
(ii) any scheduled or mandatory reduction of the Commitments hereunder or
under any other Loan Document without the written Consent of each Lender;


 


(c)           reduce the principal
of, or the rate of interest specified herein on, any Loan, or any fees or other
amounts payable hereunder or under any other Loan Document, without the written
Consent of each Lender entitled to such amount; provided, however,
that only the Consent of the Required Lenders shall be necessary (i) to
amend the definition of “Default Rate” or to waive any obligation of the
Borrower to pay interest at the Default Rate or (ii) to amend any
financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
to reduce any fee payable hereunder;


 


(d)           change Section 2.09
or Section 9.03 in a manner that would alter the pro rata sharing
of payments required thereby without the written Consent of each Lender;


 


(e)           change any provision of
this Section or the definition of “Required Lenders”, or any other
provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the written Consent of each Lender;


 


(f)            except as expressly
permitted hereunder or under any other Loan Document, release, or limit the
liability of, any Loan Party without the written Consent of each Lender;


 


(g)           release all or
substantially all of the Collateral from the Liens of the Security Documents
without the written Consent of each Lender; or


 


(h)           except as expressly
permitted herein or in any other Loan Document, subordinate the Obligations
hereunder or the Liens granted hereunder or under the other Loan Documents, to
any other Indebtedness or Lien, as the case may be without the written Consent
of each Lender;


 


and, provided further,
that (i) no amendment, waiver or Consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; and (ii) no amendment, waiver or Consent shall,
unless in writing and signed by the Collateral Agent in addition to the Lenders
required above, affect the rights or duties of the Collateral Agent under this
Agreement or any other Loan


 


79

















 


Document. Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or Consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.


 


(i)            If any Lender does not
Consent (a “Non-Consenting Lender”) to
a proposed amendment, waiver, consent or release with respect to any Loan Document
that requires the Consent of each Lender and that has been approved by the
Required Lenders, the Borrower may replace such Non-Consenting Lender in
accordance with Section 12.13 if the replacement of such
Non-Consenting Lender, together with all other such assignments required by the
Borrower to be made pursuant to this paragraph, would be sufficient to cause
there to be enough affirmative votes by Lenders for the proposed amendment,
waiver, consent or release to be effective.


 


12.02      Notices; Effectiveness;
Electronic Communications. 


 


(a)           Notices
Generally.


 


Except in the
case of notices and other communications expressly permitted to be given by
telephone (and except as provided in subsection (b) below), all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, if to the Loan Parties, or any Credit
Party, to the address, telecopier number, electronic mail address or telephone
number specified for such Person below:


 




	
  If to a Loan Party:

  	
  Walker &
  Dunlop

  
	
   

  	
  7501
  Wisconsin Avenue — Suite 1200

  
	
   

  	
  Bethesda,
  Maryland 20814 

  
	
   

  	
  Attention:
  Donna Mighty 

  
	
   

  	
  Facsimile:
  (202) 737-1847

  
	
   

  	
   

  
	
  With a copy to:

  	
  Morgan,
  Lewis & Bockius LLP

  
	
   

  	
  1701 Market
  Street

  
	
   

  	
  Philadelphia,
  PA 19103-2921

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
  Facsimile:

  	
   

  	
   

  
	
   

  	
   

  
	
  If to an Agent:

  	
  Bank of
  America, N.A.

  
	
   

  	
  Mail Stop:
  MA DE 10304X

  
	
   

  	
  One Federal
  Street

  
	
   

  	
  Boston, MA
  02110

  
	
   

  	
  Attention:
  Jane Huntington 

  
	
   

  	
  Facsimile:
  (617) 346-5025

  
	
   

  	
   

  
	
  with a copy to:

  	
  Riemer &
  Braunstein LLP

  
	
   

  	
  Three Center
  Plaza

  
	
   

  	
  Boston, MA
  02108

  
	
   

  	
  Attention:
  Ronald N. Braunstein, Esquire

  
	
   

  	
  Facsimile:
  (617) 880-3456

  






 


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Notices sent
by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next Business Day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).


 


(b)           Electronic
Communications. Notices and other communications to the Lenders hereunder
may be delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to
notices to any Lender pursuant to Article II if such Lender has
notified the Administrative Agent that it is incapable of receiving notices
under such Article by electronic communication. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may
be limited to particular notices or communications.


 


Unless the
Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of
an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next Business Day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.


 


(c)           Change of
Address, Etc. Each of the Loan Parties and the Agents may change its
address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other
communications hereunder by notice to the Borrower and the Agents. In addition,
each Lender agrees to notify the Administrative Agent from time to time to
ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail
address to which notices and other communications may be sent and
(ii) accurate wire instructions for such Lender.


 


(d)           Reliance by Agents
and Lenders. The Agents and the Lenders shall be entitled to rely and act
upon any notices purportedly given by or on behalf of the Loan Parties even if
(i) such notices were not made in a manner specified herein, were incomplete
or were not preceded or followed by any other form of notice specified herein,
or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Loan Parties shall indemnify the Agents, each Lender
and the Related Parties of each of them from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Loan Parties. All telephonic notices
to and other telephonic communications with the Agents may be recorded by the
Agents, and each of the parties hereto hereby consents to such recording.


 


12.03      No Waiver; Cumulative
Remedies. No failure by any Credit Party to exercise, and no delay by any
such Person in exercising, any right, remedy, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder or under any other Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided herein and in the other Loan Documents are cumulative and
not exclusive of any rights, remedies, powers and


 


81

















 


privileges provided by law. Without limiting
the generality of the foregoing, the making of a Loan shall not be construed as
a waiver of any Default, regardless of whether any Credit Party may have had
notice or knowledge of such Default at the time.


 


12.04      Expenses; Indemnity; Damage
Waiver.


 


(a)           The Borrower shall pay
all Credit Party Expenses.


 


(b)           The Loan Parties shall
indemnify the Agents (and any sub-agent thereof), each other Credit Party, and
each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Agents (and any sub-agents
thereof) and their Related Parties only, the administration of this Agreement
and the other Loan Documents, (ii) any Loan or the use or proposed use of
the proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by any Loan Party
or any of its Subsidiaries, or any Environmental Liability related in any way
to any Loan Party or any of its Subsidiaries, (iv) any claims of, or
amounts paid by any Credit Party to, any Person which has entered into a
control agreement with any Credit Party hereunder, or (v) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by any Borrower or any other Loan Party or any of
the Loan Parties’ directors, shareholders or creditors, and regardless of
whether any Indemnitee is a party thereto, in all cases, whether or not caused
by or arising, in whole or in part, out of the comparative, contributory or
sole negligence of the Indemnitee; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence, willful misconduct or bad faith of such Indemnitee
or (y) result from a claim brought by a Borrower or any other Loan Party
against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Borrower or such other Loan
Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.


 


(c)           To the extent that the
Loan Parties for any reason fail to indefeasibly pay any amount required under
subsection (a) or (b) of this Section to be paid by it, each
Lender severally agrees to pay to the Agents (or any such sub-agent), or such
Related Party, as the case may be, such Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Agents (or
any such sub-agent) or against any Related Party of any of the foregoing acting
for the Agents (or any such sub-agent) in connection with such capacity.


 


(d)           To the fullest extent
permitted by applicable Law, the Loan Parties shall not assert, and hereby
waive, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or the use of
the proceeds thereof. No Indemnitee shall be liable for any damages arising
from the use by unintended


 


82

















 


recipients of any information or other
materials distributed to such unintended recipients by such Indemnitee through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby other than for direct or actual damages
resulting from the gross negligence or willful misconduct of such Indemnitee as
determined by a final and nonappealable judgment of a court of competent
jurisdiction.


 


(e)           All amounts due
under this Section shall be payable not later than ten Business Days after
demand therefor.


 


(f)            The agreements in
this Section shall survive the resignation of any Agent, the assignment of
any Commitment or Loan by any Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge
of all the other Obligations.


 


12.05      Payments Set Aside. To
the extent that any payment by or on behalf of the Loan Parties is made to any
Credit Party, or any Credit Party exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by such Credit Party in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such setoff had not
occurred, and (b) each Lender severally agrees to pay to the Agents upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Agents, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and under clause (b) of the preceding sentence shall survive the payment
in full of the Obligations and the termination of this Agreement.


 


12.06      Successors and Assigns.


 


(a)           Successors and
Assigns Generally. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that no Loan Party may assign or otherwise
transfer any of its rights or obligations hereunder or under any other Loan
Document without the prior written Consent of the Administrative Agent and each
Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of Section 12.06(b), (ii) by way of participation
in accordance with the provisions of subsection Section 12.06(d), or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of Section 12.06(f) (and any other attempted assignment
or transfer by any party hereto shall be null and void), and in any event, Bank
of America shall at all times hold not less than 75% of the Outstanding Amount
of all Loans. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Credit
Parties) any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


(b)           Assignments by
Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment(s) and the Loans at the time
owing to it); provided that any such assignment shall be subject to the
following conditions:


 


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(i)    Minimum Amounts


 


(A)  in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, no minimum amount need be assigned; and


 


(B)  in
any case not described in subsection (b)(i)(A) of this Section, the portion of
the principal outstanding balance of the Loan of the assigning Lender subject
to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of
the Trade Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed); provided, however, that concurrent
assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met;


 


(C)  Proportionate
Amounts. Each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement with respect to the Loan;


 


(D)  Required
Consents. No consent shall be required for any assignment except to the
extent required by subsection (b)(i)(B) of this Section and, in addition
(i) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) a Default has occurred
and is continuing at the time of such assignment or (2) such assignment is
to a Lender, an Affiliate of a Lender or an Approved Fund; and (ii) the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of any
Commitment if such assignment is to a Person that is not a Lender, an Affiliate
of such Lender or an Approved Fund with respect to such Lender.


 


(E)   Assignment
and Assumption. The parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500, provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment.


 


Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 3.01, 3.04,
3.05, and 12.04 with respect to facts and circumstances occurring
prior to the effective date of such assignment. Upon request, the Borrower (at
its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with Section 12.06(d).


 


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(c)           Register. The Administrative
Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, absent
manifest error, and the Loan Parties, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender at any reasonable time and from time
to time upon reasonable prior notice.


 


(d)           Participations. Any Lender may
at any time, without the consent of, or notice to, the Loan Parties or the Administrative
Agent, sell participations to any Person (other than a natural person or the
Loan Parties or any of the Loan Parties’ Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans; provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Loan Parties,
the Agents and the Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement. Any Participant shall agree in writing to comply with all
confidentiality obligations set forth in Section 12.07 as if such
Participant was a Lender hereunder.


 


Any agreement
or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in the first proviso to Section 12.01
that affects such Participant. Subject to subsection (e) of this Section,
the Loan Parties agree that each Participant shall be entitled to the benefits
of Sections 3.01, 3.04 and 3.05 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to Section 12.06(b).
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 12.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.09 as though it
were a Lender.


 


(e)           Limitations upon Participant
Rights. A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Loan Parties, to comply
with Section 3.01(e) as though it were a Lender.


 


(f)            Certain Pledges. Any Lender
may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement (including under its Note, if any) to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.


 


(g)           Electronic Execution of
Assignments. The words “execution,” “signed,” “signature,” and words of
like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based


 


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recordkeeping system, as the case may be, to
the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.


 


12.07      Treatment of Certain Information;
Confidentiality. Each of the Credit Parties agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent
required by applicable Laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to any Loan Party and its
obligations, (g) with the consent of the Borrower or (h) to the extent
such Information (x) becomes publicly available other than as a result of
a breach of this Section or (y) becomes available to any Credit Party
or any of their respective Affiliates on a non- confidential basis from a
source other than the Loan Parties and (1) which source, if prohibited
from making such disclosure, is not actually known by such Credit Party, acting
reasonably, to be so prohibited and (2) it would not be apparent to a
reasonable person familiar with the Loan Party or Subsidiary as a Lender that
such Information is confidential.


 


For purposes
of this Section, “Information” means
all information received from the Loan Parties or any Subsidiary thereof
relating to the Loan Parties or any Subsidiary thereof or their respective
businesses, other than any such information that is available to any Credit
Party on a nonconfidential basis prior to disclosure by the Loan Parties or any
Subsidiary thereof, provided that, in the case of information received
from any Loan Party or any Subsidiary after the date hereof, such information
is clearly identified at the time of delivery as confidential or it would be
apparent to a reasonable person familiar with the Loan Party or Subsidiary as a
Lender that such information is confidential. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


12.08      Right of Setoff. If
an Event of Default shall have occurred and be continuing or if any Lender
shall have been served with a trustee process or similar attachment relating to
property of a Loan Party, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, after obtaining the prior written
consent of the Administrative Agent or the Required Lenders, to the fullest
extent permitted by applicable law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, or any such Affiliate to or for the credit or the
account of the Borrower or any other Loan Party against any and all of the
Obligations now or hereafter existing under this Agreement or any other Loan
Document to such Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement or any other Loan Document and although
such obligations of the Borrower or such Loan Party may be contingent or
unmatured or are owed to a branch


 


86

















 


or office of such Lender different from the
branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender and its Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that
such Lender or its Affiliates may have. Each Lender agrees to notify the
Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


12.09      Interest Rate Limitation. Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate,
and spread in equal or unequal parts the total amount of interest throughout
the contemplated term of the Obligations hereunder.


 


12.10      Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof that,
when taken together, bear the signatures of each of the other parties hereto.
Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be as effective as delivery of a manually executed
counterpart of this Agreement.


 


12.11      Survival. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the Credit
Parties, regardless of any investigation made by any Credit Party or on their
behalf and notwithstanding that any Credit Party may have had notice or
knowledge of any Default at the time of any Loan, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied. Further, the provisions of Sections 3.01, 3.04,
3.05, 12.04 and Article XI shall survive and remain in full force and
effect regardless of the repayment of the Obligations, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof. In connection with the termination of this Agreement and the
release and termination of the security interests in the Collateral, the Agents
may require such indemnities and collateral security as they shall reasonably
deem necessary or appropriate to protect the Credit Parties against
(x) loss on account of credits previously applied to the Obligations that
may subsequently be reversed or revoked, and (y) any obligations that may
thereafter arise with respect to the Other Liabilities.


 


12.12      Severability. If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties
shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable


 


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provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


12.13      Replacement of Lenders. If
any Lender requests compensation under Section 3.04, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 12.06), all of its interests, rights
and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:


 


(a)           the Borrower shall have paid to the
Administrative Agent the assignment fee specified in Section 12.06(b);


 


(b)           such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder
and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);


 


(c)           in the case of any such assignment
resulting from a claim for compensation under Section 3.04 or
payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments
thereafter; and


 


(d)           such assignment does not conflict
with applicable Laws.


 


A Lender shall not be required to make any
such assignment or delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.


 


12.14      Governing Law; Jurisdiction; Etc.


 


(a)           GOVERNING LAW. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.


 


(b)           SUBMISSION TO JURISDICTION.
EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS SITTING IN SUFFOLK COUNTY AND OF THE UNITED STATES DISTRICT COURT
OF THE COMMONWEALTH OF MASSACHUSETTS , AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE LOAN PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH COMMONWEALTH OF MASSACHUSETTS (SUFFOLK COUNTY)
COURT OR, TO THE


 


88

















 


FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, IN SUCH FEDERAL COURT. EACH OF THE LOAN PARTIES HERETO AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN
DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY CREDIT PARTY MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


(c)           WAIVER OF VENUE. EACH LOAN
PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH
(B) OF THIS SECTION. EACH OF THE LOAN PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.


 


(d)           SERVICE OF PROCESS. EACH PARTY
HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 12.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.


 


(e)           ACTIONS COMMENCED BY LOAN PARTIES.
EACH LOAN PARTY AGREES THAT ANY ACTION COMMENCED BY ANY LOAN PARTY ASSERTING
ANY CLAIM OR COUNTERCLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT SOLELY IN A COURT OF THE COMMONWEALTH
OF MASSACHUSETTS SITTING IN SUFFOLK COUNTY OR ANY FEDERAL COURT SITTING THEREIN
AS THE ADMINISTRATIVE AGENT MAY ELECT IN ITS SOLE DISCRETION AND CONSENTS
TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WITH RESPECT TO ANY SUCH ACTION.


 


12.15      Waiver of Jury Trial. EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


12.16      No Advisory or Fiduciary Responsibility. In
connection with all aspects of each transaction contemplated hereby, the Loan
Parties each acknowledge and agree that: (i) the credit facility provided
for hereunder and any related arranging or other services in connection
therewith (including in


 


89

















 


connection with any amendment, waiver or
other modification hereof or of any other Loan Document) are an arm’s-length
commercial transaction between the Loan Parties, on the one hand, and the
Credit Parties, on the other hand, and each of the Loan Parties is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan
Documents (including any amendment, waiver or other modification hereof or
thereof); (ii) in connection with the process leading to such transaction,
the each Credit Party is and has been acting solely as a principal and is not
the financial advisor, agent or fiduciary, for the Loan Parties or any of their
respective Affiliates, stockholders, creditors or employees or any other
Person; (iii) none of the Credit Parties has assumed or will assume an
advisory, agency or fiduciary responsibility in favor of the Loan Parties with
respect to any of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof or
of any other Loan Document (irrespective of whether any of the Credit Parties
has advised or is currently advising any Loan Party or any of its Affiliates on
other matters) and none of the Credit Parties has any obligation to any Loan
Party or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other
Loan Documents; (iv) the Credit Parties and their respective Affiliates
may be engaged in a broad range of transactions that involve interests that
differ from those of the Loan Parties and their respective Affiliates, and none
of the Credit Parties has any obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (v) the
Credit Parties have not provided and will not provide any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification hereof or of any
other Loan Document) and each of the Loan Parties has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed
appropriate. Each of the Loan Parties hereby waives and releases, to the
fullest extent permitted by law, any claims that it may have against each of
the Credit Parties with respect to any breach or alleged breach of agency or
fiduciary duty.


 


12.17      USA PATRIOT Act Notice. Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Loan Parties that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies each
Loan Party, which information includes the name and address of each Loan Party
and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Loan Party in accordance with the Act. Each Loan
Party is in compliance, in all material respects, with the Patriot Act. No part
of the proceeds of the Loans will be used by the Loan Parties, directly or
indirectly, for any payments to any governmental official or employee,
political party, official of a political party, candidate for political office,
or anyone else acting in an official capacity, in order to obtain, retain or
direct business or obtain any improper advantage, in violation of the United
States Foreign Corrupt Practices Act of 1977, as amended.


 


12.18      Time of the Essence. Time
is of the essence of the Loan Documents.


 


12.19      Press Releases. Each
Credit Party executing this Agreement agrees that neither it nor its Affiliates
will in the future issue any press releases or other public disclosure using
the name of Administrative Agent or its Affiliates or referring to this
Agreement or the other Loan Documents without at least two (2) Business
Days’ prior notice to Administrative Agent and without the prior written
consent of Administrative Agent unless (and only to the extent that) such
Credit Party or Affiliate is required to do so under applicable Law and then,
in any event, such Credit Party or Affiliate will consult with Administrative
Agent before issuing such press release or other public disclosure. Each Loan
Party consents to the publication by Administrative Agent or any Lender of
advertising material relating to the


 


90

















 


financing transactions contemplated by this
Agreement using any Loan Party’s name, product photographs, logo or trademark.
Administrative Agent or such Lender shall provide a draft reasonably in advance
of any advertising material to the Borrower for review and comment prior to the
publication thereof. Administrative Agent reserves the right to provide to
industry trade organizations information necessary and customary for inclusion
in league table measurements.


 


12.20      Additional Waivers.


 


(a)           The Obligations are the joint and
several obligation of each Loan Party. To the fullest extent permitted by
applicable Law, the obligations of each Loan Party shall not be affected by
(i) the failure of any Credit Party to assert any claim or demand or to enforce
or exercise any right or remedy against any other Loan Party under the
provisions of this Agreement, any other Loan Document or otherwise,
(ii) any rescission, waiver, amendment or modification of, or any release
from any of the terms or provisions of, this Agreement or any other Loan
Document, or (iii) the failure to perfect any security interest in, or the
release of, any of the Collateral or other security held by or on behalf of the
Collateral Agent or any other Credit Party.


 


(b)           The obligations of each Loan Party
shall not be subject to any reduction, limitation, impairment or termination
for any reason (other than the indefeasible payment in full in cash of the
Obligations after the termination of the Commitments), including any claim of
waiver, release, surrender, alteration or compromise of any of the Obligations,
and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Loan Party hereunder shall
not be discharged or impaired or otherwise affected by the failure of any Agent
or any other Credit Party to assert any claim or demand or to enforce any
remedy under this Agreement, any other Loan Document or any other agreement, by
any waiver or modification of any provision of any thereof, any default,
failure or delay, willful or otherwise, in the performance of any of the
Obligations, or by any other act or omission that may or might in any manner or
to any extent vary the risk of any Loan Party or that would otherwise operate
as a discharge of any Loan Party as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Obligations after the
termination of the Commitments).


 


(c)           To the fullest extent permitted by
applicable Law, each Loan Party waives any defense based on or arising out of
any defense of any other Loan Party or the unenforceability of the Obligations
or any part thereof from any cause, or the cessation from any cause of the
liability of any other Loan Party, other than the indefeasible payment in full
in cash of all the Obligations and the termination of the Commitments. The
Collateral Agent and the other Credit Parties may, at their election, foreclose
on any security held by one or more of them by one or more judicial or
nonjudicial sales, accept an assignment of any such security in lieu of
foreclosure, compromise or adjust any part of the Obligations, make any other
accommodation with any other Loan Party, or exercise any other right or remedy
available to them against any other Loan Party, without affecting or impairing
in any way the liability of any Loan Party hereunder except to the extent that
all the Obligations have been indefeasibly paid in full in cash and the
Commitments have been terminated. Each Loan Party waives any defense arising
out of any such election even though such election operates, pursuant to
applicable Law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of such Loan Party against any other Loan
Party, as the case may be, or any security.


 


(d)           Upon payment by any Loan Party of any
Obligations, all rights of such Loan Party against any other Loan Party arising
as a result thereof by way of right of subrogation, contribution,
reimbursement, indemnity or otherwise shall in all respects be subordinate and
junior in right of payment to the prior indefeasible payment in full in cash of
all the Obligations. In addition, any indebtedness of


 


91

















 


any Loan Party now or hereafter held by any
other Loan Party is hereby subordinated in right of payment to the prior
indefeasible payment in full of the Obligations and no Loan Party will demand,
sue for or otherwise attempt to collect any such indebtedness. If any amount
shall erroneously be paid to any Loan Party on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or
(ii) any such indebtedness of any Loan Party, such amount shall be held in
trust for the benefit of the Credit Parties and shall forthwith be paid to the
Administrative Agent to be credited against the payment of the Obligations, whether
matured or unmatured, in accordance with the terms of this Agreement and the
other Loan Documents. Subject to the foregoing, to the extent that any Loan
Party shall, under this Agreement as a joint and several obligor, repay any of
the Obligations incurred directly and primarily by any other Loan Party (an “Accommodation Payment”), then the Loan
Party making such Accommodation Payment shall be entitled to contribution and
indemnification from, and be reimbursed by, each of the other Loan Parties in
an amount, for each of such other Loan Parties, equal to a fraction of such
Accommodation Payment, the numerator of which fraction is such other Loan
Party’s Allocable Amount and the denominator of which is the sum of the
Allocable Amounts of all of the Loan Parties. As of any date of determination,
the “Allocable Amount” of each
Loan Party shall be equal to the maximum amount of liability for Accommodation
Payments which could be asserted against such Loan Party hereunder without
(a) rendering such Loan Party “insolvent” within the meaning of
Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform
Fraudulent Transfer Act (“UFTA”) or
Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Loan Party
with unreasonably small capital or assets, within the meaning of
Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or
Section 5 of the UFCA, or (c) leaving such Loan Party unable to pay
its debts as they become due within the meaning of Section 548 of the Bankruptcy
Code or Section 4 of the UFTA, or Section 5 of the UFCA.


 


12.21      No Strict Construction. The
parties hereto have participated jointly in the negotiation and drafting of
this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Agreement.


 


12.22      Attachments. The
exhibits, schedules and annexes attached to this Agreement are incorporated
herein and shall be considered a part of this Agreement for the purposes stated
herein, except that in the event of any conflict between any of the provisions
of such exhibits and the provisions of this Agreement, the provisions of this
Agreement shall prevail.


 


92

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first above written.


 


 


	
   

  	
  GPF ACQUISITION, LLC

  
	
   

  	
   

  
	
   

  	
  By: Walker & Dunlop GP, LLC, its
  Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WALKER & DUNLOP
  MULTIFAMILY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William
  M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  WALKER & DUNLOP GP, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William
  M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
  GREEN PARK FINANCIAL LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By: Walker & Dunlop GP, LLC, its
  Managing General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
  WALKER & DUNLOP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William
  M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  



 

















 


	
   

  	
  WALKER & DUNLOP, LLC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William
  M. Walker

  
	
   

  	
  Name:

  	
  William M. Walker

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  



 






 










 


	
   

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

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jane E. Huntington

  
	
   

  	
  Name:

  	
  Jane E. Huntington

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jane E. Huntington

  
	
   

  	
  Name: 

  	
  Jane E. Huntington

  
	
   

  	
  Title: 

  	
  Senior Vice President

  



 

















 


	
   

  	
  NATIONAL CITY BANK, as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael A. Johnson

  
	
   

  	
  Name:

  	
  Michael A. Johnson

  
	
   

  	
  Title:

  	
  Vice President

  



 


4

















 


EXHIBIT A


 


NOTE


 


	
  $               

  	
                  ,
  2006

  



 


FOR VALUE RECEIVED, the
undersigned (the, “Borrower”), promises
to pay                                              
(hereinafter, together with its successors in title and registered assigns or
its registered agents, the “Lender”), c/o
Bank of America, N.A., One Federal Street, Boston, Massachusetts 02110, the
principal sum of                          
AND NO/100 ($                     )
DOLLARS, or such greater or lesser amounts as may be due and payable as
provided in the Credit Agreement dated of even date (as such may be amended,
modified, supplemented or restated hereafter, the “Credit Agreement”) by, among others, (i) the Borrower,
(ii) the Guarantors, (iii) Green Park, (iv) Bank of America,
N.A., a national banking association, as Administrative Agent and Collateral
Agent (in such capacities, the “Agent”) for
its own benefit and the benefit of the other Credit Parties, and (v) the
Lenders party thereto, with interest, fees, expenses, and costs at the rate and
payable in the manner stated therein.


 


This is a “Note” to which reference is made in the
Credit Agreement and is subject to all terms and provisions thereof. The
principal of, and interest on, this Note shall be payable at the times, in the
manner, and in the amounts as provided in the Credit Agreement and shall be
subject to prepayment and acceleration as provided therein. Borrower shall have
the right to repay amounts hereunder pursuant to the terms and subject to the
conditions of the Credit Agreement, it being understood by Borrower, as
provided in the Credit Agreement, that amounts repaid hereunder may not be
reborrowed. Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Credit Agreement.


 


The Agent’s books and
records concerning the Lender’s Loan, the accrual of interest thereon, and the
repayment of the Lender’s Loan, shall be prima facie evidence of the
indebtedness hereunder, absent manifest error.


 


No delay or omission by the
Agent or the Lender in exercising or enforcing any of Agent’s or such Lender’s
powers, rights, privileges, remedies, or discretions hereunder shall operate as
a waiver thereof on that occasion nor on any other occasion. No waiver of any
Event of Default shall operate as a waiver of any other Event of Default, nor
as a continuing waiver.


 


Borrower, and each endorser
and guarantor of this Note, each waives presentment, demand, notice, and
protest, and also waives any delay on the part of the holder hereof. Borrower
assents to any extension or other indulgence (including, without limitation,
the release or substitution of Collateral) permitted by Agent and/or the Lender
with respect to this Note and/or any Collateral or any extension or other
indulgence with respect to any other liability or any collateral given to
secure any other liability of Borrower or any other Person obligated on account
of this Note.


 


This Note shall be binding
upon Borrower, each endorser and guarantor hereof, and upon their respective
successors, assigns, and representatives, and shall inure to the benefit of the
Lender and its successors and registered assigns.


 


B-1

















 


The liabilities of Borrower,
and of any endorser or guarantor of this Note, are joint and several, provided,
however, the release by Agent or the Lender of any one or more such
Persons shall not release any other Person obligated on account of this Note.
Each reference in this Note to Borrower, any endorser, and any guarantor, is to
such Person individually and also to all such Persons jointly. No Person
obligated on account of this Note may seek contribution from any other Person
also obligated unless and until all liabilities, obligations and indebtedness
to the Lender of the Person from whom contribution is sought have been
satisfied in full.


 


Borrower agrees that any
suit for the enforcement of this Note or any other Loan Document may be brought
in any Commonwealth of Massachusetts or federal court, in either case sitting
in Suffolk County, Massachusetts as the Agent may elect in its sole discretion,
and consents to the non-exclusive jurisdiction of such courts. Borrower hereby
waives any objection which it may now or hereafter have to the venue of any
such suit or any such court or that such suit is brought in an inconvenient
forum. Borrower agrees that any action commenced by Borrower asserting any
claim or counterclaim arising under or in connection with this Note or any
other Loan Document shall be brought solely in any Commonwealth of
Massachusetts or federal court, in either case sitting in Suffolk County,
Massachusetts as the Agent may elect in its sole discretion, and consents to
the exclusive jurisdiction of such courts with respect to any such action.


 


THIS NOTE IS DELIVERED TO
THE LENDER AT THE OFFICES OF THE AGENT IN BOSTON, MASSACHUSETTS, AND SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF
MASSACHUSETTS.


 


Borrower makes the following
waiver knowingly, voluntarily, and intentionally, and understands that the
Agent and the Lender, in the establishment and maintenance of their respective
relationship with the Borrower contemplated by this Note, is relying thereon.
BORROWER, EACH GUARANTOR, ENDORSER AND SURETY, AND THE LENDER BY ITS ACCEPTANCE
HEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS NOTE, ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THE CREDIT AGREEMENT AND THIS NOTE BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN.


 


[Signature
Page Follows]


 


B-2

















 


IN WITNESS WHEREOF, the
Borrower has caused this Note to be duly executed as of the date set forth
above.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  GPF ACQUISITION, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


SP-1 [Term Note]

















 


EXHIBIT B


 


FORM OF COMPLIANCE CERTIFICATE


 


Reference is made to that
certain Amended and Restated Credit Agreement, dated as of January         ,
2009 (as modified, amended, supplemented or restated and in effect from time to
time, the “Credit Agreement”), between
and among GPF ACQUISITION, LLC (the
“Borrower”), WALKER & DUNLOP
MULTIFAMILY, INC., WALKER & DUNLOP GP, LLC, GREEN PARK FINANCIAL
LIMITED PARTNERSHIP, WALKER & DUNLOP, INC., and WALKER & DUNLOP LLC (“WDLLC”), each
lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., a national banking association, as
Administrative Agent and Collateral Agent and collectively, the “Agents”). Capitalized terms used herein
and not defined herein shall have the meanings assigned to such terms in the
Credit Agreement.


 


The undersigned each hereby certifies to the Agents
and Lenders that, as of the close of business on                     (“Statement Date”):


 


1.                                      I am the Responsible
Officer, having the title below, of the entity for which I have signed this
Certificate.


 


2.                                      As demonstrated
by the attached calculations supporting this Compliance Certificate, no Event
of Default exists under Section 7.14
of the Credit Agreement, or, if any such Event of Default exists, a detailed
explanation is attached setting forth the nature and the period of existence of
any such Default or Event of Default.


 


3.                                      I have reviewed
the terms of the Credit Agreement, and have made, or caused to be made under my
supervision, a review in reasonable detail of the transactions and conditions
of the Loan Parties and their Subsidiaries and WDLLC. That review has not
disclosed, and I have no other knowledge of the existence of, any Default or
Event of Default, or if any such Default or Event of Default existed or exists,
a detailed explanation is attached setting forth the nature and the period of
existence of such Default or Event of Default and the action the applicable
Loan Party, Subsidiary thereof and/or WDLLC has taken, is taking or proposes to
take with respect that Default or Event of Default.


 


4.                                      In accordance
with Section 6.01 of
the Credit Agreement, attached are the financial statements and related
materials of the Loan Parties (other than the Borrower, but only with respect
to the Compliance Certificate delivered as of the Closing Date) and their
Subsidiaries and of WDLLC as of the Statement Date. The financial statements
for the period ending on the Statement Date fairly present in all material
respects the financial condition and results of operations of the Loan Parties
(other than the Borrower, but only with respect to the Compliance Certificate
delivered as of the Closing Date) and their Subsidiaries and of WDLLC, as of
the Statement Date.


 


[Remainder
of page intentionally left blank]


 

















 


Submitted under the pains
and penalties of perjury this         day
of         , 2   .


 


	
   

  	
  GPF ACQUISITION, LLC

  
	
   

  	
   

  
	
   

  	
  By: Walker &
  Dunlop GP, LLC, its Managing Member

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  WALKER & DUNLOP MULTIFAMILY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  WALKER & DUNLOP GP, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  GREEN PARK FINANCIAL LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: Walker & Dunlop GP, LLC, its Managing
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  WALKER & DUNLOP, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  WALKER & DUNLOP LLC

  
	
   

  	
   

  
	
   

  	
  By:                                ,
  its Managing          Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


S/1














 


EXHIBIT C


 


FORM OF ASSIGNMENT AND ACCEPTANCE


 


Dated: as of             ,
200 


 


Reference is
made to that certain Credit Agreement dated as of
October     , 2006, by and among GPF ACQUISITION, LLC (the “Borrower”), WALKER & DUNLOP
MULTIFAMILY, INC. and WALKER &
DUNLOP GP LLC, as Guarantors, GREEN
PARK FINANCIAL LIMITED PARTNERSHIP (“Green Park”), and WALKER & DUNLOP, INC., as
pledgors (each, a “Pledgor”), BANK OF
AMERICA, N.A., a national banking association, as Administrative
Agent and Collateral Agent and the Lenders party thereto (as amended, modified,
restated and/or supplemented and in effect, the “Credit Agreement”). Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
such terms in the Credit Agreement.


 


                                    (the
“Assignor”)
and                                    (the
“Assignee”) agree as follows:


 


1.            The Assignor hereby sells and
assigns to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, $                           of
the unpaid principal balance outstanding under the Assignor’s Note,
representing an Applicable Percentage of (    %) as of the
Effective Date (as hereinafter defined).


 


2.             The Assignor:


 


(a)                                  represents
that as of the date hereof, its Applicable Percentage of the outstanding
principal amount of the Term Loan (without giving effect to assignments thereof
which have not yet become effective) is     %, and the
unpaid principal balance of the Term Loan outstanding under the Note held by
the Assignor (unreduced by any assignments thereof which have not yet become
effective) is $                                 ;


 


(b)                                  makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Term Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any other instrument
or document furnished pursuant thereto, other than that the Assignor is the
legal and beneficial owner of the interest being assigned by it hereunder, that
such interest is free and clear of any adverse claim, and that it is legally
authorized to enter into this Assignment and Acceptance;


 


(c)                                  makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any other Loan Party, Green Park or any
other Person which may be primarily or secondarily liable in respect of any of
the Obligations or any of their obligations, or the performance or observance
by the Borrower, any other Loan Party, Green Park, or any other Person
primarily or secondarily liable in respect of any of the Obligations under any
of the Loan Documents or obligations under any other instrument or document
delivered or executed pursuant thereto; and


 


C-1

















 


(d)                                  attaches
the Note delivered to it under the Credit Agreement and requests that the
Borrower exchange such Note for a new Note payable to each of the Assignor and
the Assignee as follows:


 


	
   

  	
   

  	
  Note Payable to the Order of:

  	
   

  	
  Amount of Note

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Assignor

  	
   

  	
                          

  	
   

  	
  $

  	
             

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Assignee

  	
   

  	
                          

  	
   

  	
  $

  	
             

  	
   

  



 


3.             The
Assignee


 


(a)                                  represents
and warrants that it is legally authorized to enter into this Assignment and
Acceptance;


 


(b)                                  confirms
that it has received a copy of the Loan Documents, together with copies of the
most recent financial statements of the Loan Parties and Green Park delivered
pursuant to the Credit Agreement and such other documents and information as
the Assignee has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance;


 


(c)                                  confirms
and represents that, independently and without reliance upon the Assignor, the
Administrative Agent, or any other Lender and based on such documents and
information as the Assignee deems appropriate, made such Person’s own credit
decision to join in the credit facility contemplated by the Loan Documents and
to become a “Lender”;


 


(d)                                  agrees
that it will, independently and without reliance upon the Assignor, any other
Lender or the Administrative Agent and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents;


 


(e)                                  confirms
that it is an Eligible Assignee;


 


(f)                                    appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers as are expressly delegated to or conferred
upon the Administrative Agent by the terms of the Loan Documents together with
such other powers as are reasonably incidental thereto


 


(g)                                 agrees
that it will perform all the obligations which by the terms of the Loan Documents
are required to be performed by the Assignee as a Lender in accordance with the
terms of the Loan Documents; and


 


(h)                                 specifies
as its address for notices the office set forth beneath its name on the
signature page hereof.


 


C-2

















 


4.                                      The
effective date for this Assignment and Acceptance shall be          
    ,               (the
“Effective
Date”).  Following
the execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance and recording in the Register by the
Administrative Agent. Upon such acceptance and recording, from and after the
Effective Date:


 


(a)                                       the
Assignee shall be a party to the Credit Agreement and, to the extent provided
in this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder; and


 


(b)                                       the
Assignor shall, with respect to that portion of its interest under the Loan
Documents assigned hereunder relinquish its future rights and be released from
its future obligations under the Loan Documents but shall remain liable for all
obligations which arose prior to such assignment.


 


5.                                      Upon
acceptance and recording hereof, from and after the Effective Date, the
Administrative Agent shall make all payments in respect of the rights and
obligations assigned hereby (including payments of principal, interest, fees
and other amounts) to the Assignee. The Assignor and the Assignee shall make
all appropriate adjustments in payments for periods prior to the Effective Date
by the Administrative Agent or with respect to the making of this assignment
directly between themselves.


 


THIS
ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND
SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.


 


[Remainder of page intentionally left blank]


 


C-3

















 


IN WITNESS
WHEREOF, intending to be legally bound, each of the undersigned has caused this
Assignment and Acceptance to be executed on its behalf by its officer thereunto
duly authorized, as of the date first above written.


 


	
   

  	
   

  	
   

  	
  “ASSIGNOR”

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  “ASSIGNEE”

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Notice Address of Assignee:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Attn:

  	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
   

  
	
   

  	
  Telecopier No.:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Wiring Instructions of Assignee:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The
  Administrative Agent hereby approves the foregoing assignment.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  If required
  under the Credit Agreement, the Borrower hereby approves the foregoing
  assignment.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GPF ACQUISITION, LLC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


C-4

















 


Schedule
2.01


 


Commitments and Applicable Percentages


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Applicable Percentage

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  31,875,000.00

  	
   

  	
  75.00000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  National City Bank

  	
   

  	
  $

  	
  10,625,000.00

  	
   

  	
  25.00000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
  42,500,000.00

  	
   

  	
  100.00000

  	
  %

  



 

















 


Schedule 5.01


 


Loan Parties Organizational Information


 


	
  Name in Official Filings

  	
   

  	
  State of

  Incorporation or

  Organization

  	
   

  	
  Organization

  Type

  	
   

  	
  Organization

  Number

  	
   

  	
  Federal Employer ID

  Number

  
	
  Green Park
  Financial Limited Partnership

  	
   

  	
  District of Columbia

  	
   

  	
  Partnership

  	
   

  	
  N/A

  	
   

  	
  52-2024351

  
	
  GPF
  Acquisition, LLC

  	
   

  	
  Delaware

  	
   

  	
  Limited
  Liability Company

  	
   

  	
  N/A

  	
   

  	
  06-1797612

  
	
  Walker &
  Dunlop Multifamily, Inc.

  	
   

  	
  Delaware

  	
   

  	
  S-corporation

  	
   

  	
  N/A

  	
   

  	
  52-1572893

  
	
  Walker &
  Dunlop GP, LLC

  	
   

  	
  Delaware

  	
   

  	
  Limited
  Liability Company

  	
   

  	
  N/A

  	
   

  	
  52-2002612

  
	
  Walker &
  Dunlop, LLC

  	
   

  	
  Delaware

  	
   

  	
  Limited
  Liability Company

  	
   

  	
  N/A

  	
   

  	
  80-0312140

  
	
  Walker &
  Dunlop, Inc.

  	
   

  	
  Delaware

  	
   

  	
  S-corporation

  	
   

  	
  N/A

  	
   

  	
  52-1521634

  



 














 


Section 5.10


 


Insurance


 


	
  Insurer

  	
   

  	
  Type of Insurance

  	
   

  	
  Policy Number

  	
   

  
	
  1. Great
  Northern Insurance Company

  	
   

  	
  Commercial Package Policy

  	
   

  	
  3567-12-21

  	
   

  
	
  2. Federal
  Insurance Company

  	
   

  	
  Business Automobile Policy

  	
   

  	
  7354-73-86

  	
   

  
	
  3. Chubb
  Indemnity Insurance Company

  	
   

  	
  Workers Compensation Policy

  	
   

  	
  7170-24-36

  	
   

  
	
  4. Federal
  Insurance Company

  	
   

  	
  Umbrella Policy

  	
   

  	
  7986-04-05

  	
   

  
	
  5. Travelers
  Casualty and Surety Company of America

  	
   

  	
  Fiduciary Liability Policy

  	
   

  	
  105129603

  	
   

  
	
  6. Travelers
  Casualty and Surety Company of America

  	
   

  	
  ERISA Bond

  	
   

  	
  104543075

  	
   

  
	
  7. Lloyd’s
  of London

  	
   

  	
  Special Mortgage Bankers Bond

  	
   

  	
  SUA 3274

  	
   

  
	
  8. Lloyd’s
  of London

  	
   

  	
  Excess Special Mortgage Bankers Bond

  	
   

  	
  P014010800

  	
   

  
	
  9. Great
  American Insurance Company

  	
   

  	
  D&O Profit – Private Companies

  	
   

  	
  DOL5592781

  	
   

  
	
  10. Lloyd’s
  of London

  	
   

  	
  Mortgage Protection Insurance for Financial
  Institutions

  	
   

  	
  B066435562A08

  	
   

  
	
  11. Lloyd’s
  of London

  	
   

  	
  Mortgage Company Professional Liability

  	
   

  	
  SUA 11654

  	
   

  
	
  12. Ohio
  National Life

  	
   

  	
  Keyman Life

  	
   

  	
  6860021

  	
   

  



 

















 


Section 5.13


 


Subsidiaries; Other Equity Investments 


 


Part (a) –
List of Subsidiaries


 


	
  Loan Party

  	
   

  	
  Subsidiary Name

  	
   

  	
  Jurisdiction

  	
   

  	
  Equity Interest

  	
   

  
	
  Green Park
  Financial LP

  	
   

  	
  Green Park Express LLC

  	
   

  	
  Delaware

  	
   

  	
  $

  	
  10,000
  (approximate)

  	
   

  
									



 


Part (b) –
Equity Investments


 


	
  Loan Party

  	
   

  	
  Entity Name

  	
   

  	
  Jurisdiction

  	
   

  	
  Equity Interest

  	
   

  
	
  Green Park Financial Limited Partnership

  	
   

  	
  Green Park Express LLC

  	
   

  	
  Delaware

  	
   

  	
  $

  	
  36,929
  (book)

  	
   

  
	
  Walker & Dunlop GP, LLC

  	
   

  	
  Green Park Financial Limited Partnership

  	
   

  	
  District of Columbia

  	
   

  	
  $

  	
  273,600
  (book)

  	
   

  
	
  Walker & Dunlop GP, LLC

  	
   

  	
  GPF Acquisition LLC

  	
   

  	
  Delaware

  	
   

  	
  $

  	
  92,446
  (book)

  	
   

  
	
  Walker & Dunlop
  Multifamily, Inc.

  	
   

  	
  Green Park Financial Limited Partnership

  	
   

  	
  District of Columbia

  	
   

  	
  $

  	
  21,663,849
  (book)

  	
   

  
	
  GPF Acquisition, LLC

  	
   

  	
  Green Park Financial Limited Partnership

  	
   

  	
  District of Columbia

  	
   

  	
  $

  	
  49,171,483
  (book)

  	
   

  
	
  Green Park Financial Limited Partnership

  	
   

  	
  Walker & Dunlop, LLC

  	
   

  	
  Delaware

  	
   

  	
  $

  	
  55,438,137
  (book)

  	
   

  
	
  Walker & Dunlop, Inc.

  	
   

  	
  Walker & Dunlop, LLC

  	
   

  	
  Delaware

  	
   

  	
  $

  	
  130,404
  (book)

  	
   

  
	
  Green Park Financial Limited Partnership

  	
   

  	
  Walker & Dunlop II, LLC

  	
   

  	
  Delaware

  	
   

  	
  $

  	
  0

  	
   

  



 


Except as set forth on Part (d) of this Schedule 5.13 or
otherwise set forth in the Loan Documents, there are no outstanding rights to
purchase any Equity Interests in any Loan Party or the Subsidiary listed in
Part (a) above.


 


Part (c) –
List of Owners


 


Green Park
Financial Limited Partnership


General Partners of GPF:


Walker & Dunlop GP, LLC – Managing
General Partner (0.5% partnership interest) 


GPF Acquisition, LLC – Associate General
Partner (0.5% partnership interest)


 


Class A Limited Partners of GPF:


Walker & Dunlop
Multifamily, Inc. (50.5% partnership interest) 


GPF Acquisition, LLC (48.5% partnership
interest)


 


Class B Limited Partners of GPF: 


GPF Acquisition, LLC

















 


Walker
& Dunlop Multifamily, Inc.


Mallory Walker – 758 shares (74.0957%) 


William M. Walker – 65 shares (6.3539%) 


Taylor S. Walker – 65 shares (6.3539%) 


Howard W. Smith(1) – 135 shares
(13.1965%)


 


Walker &
Dunlop GP, LLC


Mallory Walker – 75% of equity interests 


William M. Walker – 25% of equity interests


 


GPF
Acquisition, LLC


Walker & Dunlop GP, LLC – 1.1299% of
equity interests 


Mallory Walker – 14.1243% of equity interests


Howard W. Smith – 21.5424% of equity
interests 


William M. Walker – 49.3164% of equity
interests 


Taylor S. Walker – 7.1073% of equity
interests 


Richard C. Warner – 3.9548% of equity
interests 


Donna Mighty – 2.8249% of equity interests


 


Walker &
Dunlop, LLC


Green Park Financial Limited Partnership –
59.8% of equity interests 


Walker & Dunlop, Inc. – 5.0%


Column Guaranteed LLC – 35%


Walker & Dunlop II, LLC – 0.2%


 


Walker &
Dunlop, Inc.


 


	
  Individual

  	
   

  	
  Ownership Percentage

  	
   

  
	
  Mallory
  Walker

  	
   

  	
  0.7992

  	
  %

  
	
  Howard Smith

  	
   

  	
  5.5934

  	
  %

  
	
  Taylor
  Walker

  	
   

  	
  39.5595

  	
  %

  
	
  Willy Walker

  	
   

  	
  45.1528

  	
  %

  
	
  J. B. Gurley

  	
   

  	
  3.3562

  	
  %

  
	
  Ted Hermes

  	
   

  	
  2.2100

  	
  %

  
	
  Michael
  Yavinsky

  	
   

  	
  2.2100

  	
  %

  
	
  Donna Mighty

  	
   

  	
  1.1190

  	
  %

  
	
  Total

  	
   

  	
  100

  	
  %

  



 


Part (d) –
Liens and Repurchase Rights


 


Walker &
Dunlop, LLC


 


·                  Amended and Restated Operating
Agreement of Walker & Dunlop, LLC dated as of January    ,2009.


 






(1) Fifty three shares are pledged to Walker & Dunlop
Multifamily, Inc. as collateral for a note receivable from 

Howard W. Smith.


 

















 


Walker & Dunlop Multifamily, Inc.


·                       Stock Purchase and Stockholder’s
Agreement by and among Walker & Dunlop Multifamily, Inc. and
Howard W. Smith, dated May 1, 1997.


·                       Stock Purchase and Stockholder’s
Agreement by and among Walker & Dunlop Multifamily, Inc. and
Howard W. Smith, dated January 1, 2003, as amended pursuant to an
amendment dated as of October 31, 2006.


·                       Pledge Agreement by and among
Walker & Dunlop Multifamily, Inc. and Howard W. Smith dated
January 1, 2003.


·                       Note payable to
Walker & Dunlop Multifamily, Inc. by Howard W. Smith dated
January 1, 2003.


 


Walker &
Dunlop GP, LLC


·                      Membership Interest Purchase and
Member’s Agreement by and among Walker & Dunlop GP, LLC and William M.
Walker, dated January 1, 2006, as amended pursuant to an amendment dated
as of October 31, 2006.


 


Walker &
Dunlop, Inc.


·                       Stock Purchase and Stockholder’s
Agreement by and between Walker & Dunlop, Inc. and William M.
Walker, dated January 1, 2004, as amended on October 31, 2006.


·                       Pledge Agreement by and between
Walker & Dunlop, Inc. and William M. Walker, dated
January 1, 2004.


·                       Stock Purchase and Stockholder’s
Agreement by and between Walker & Dunlop, Inc. and Howard W.
Smith, dated January 1, 2004, as amended on October 31, 2006.


·                       Pledge Agreement by and between
Walker & Dunlop, Inc. and Howard W. Smith, dated January 1,
2004.


·                       Note payable to
Walker & Dunlop, Inc. by Howard W. Smith, dated January 1,
2004.


·                       Stock Purchase and Stockholder’s
Agreement by and between Walker & Dunlop, Inc. and Michael P.
Yavinksy, dated January 1, 2004.


·                       Stock Purchase and Stockholder’s
Agreement by and between Walker & Dunlop, Inc. and Donna M.
Mighty, dated January 1, 2004.


·                       Stock Purchase and Stockholder’s
Agreement by and between Walker & Dunlop, Inc. and James B. Gurley, dated January 1, 2004.


·                       Stock Purchase and Stockholder’s
Agreement by and between Walker & Dunlop, Inc. and Edward B. Hermes, dated November 1,
2005.


 

















 


Section 5.21


 


Deposit Accounts


 

















 


Section 5.24


 


Material Contracts


 


Loan Agreement, dated January 19, 2006,
by and between Walker & Dunlop Multifamily, Inc. and United Bank.


 


Fannie Mae Mortgage Selling and Servicing
Contract by and between Federal National Mortgage Association and Green Park
Financial Limited Partnership dated July 24, 1990.


 


Delegated Underwriting and Servicing Addendum
to Mortgage Selling and Servicing Contract by and between Federal National
Mortgage Association and Green Park Financial Limited Partnership dated
March 4, 1994.


 


Second DUS Addendum to Mortgage Selling and
Servicing Contract by and between Federal National Mortgage Association and
Green Park Financial Limited Partnership dated May 15, 1998.


 


Master Loss Sharing Agreement by and between
Federal National Mortgage Association and Green Park Financial Limited
Partnership dated March 15, 1994.


 


Second Amended and Restated Delegated
Underwriting and Servicing Reserve Agreement by and between Federal National
Mortgage Association, U.S. Bank National Association and Green Park Financial
Limited Partnership dated as of August 1, 2008.


 


Amended and Restated Warehousing Credit and
Security Agreement, dated January     , 2009, by and
between Green Park Financial Limited Partnership, Walker & Dunlop, LLC
and Bank of America, N.A.


 


Third Amended and Restated Loan Agreement,
dated January     , 2009, by and among Green Park
Financial Limited Partnership, Walker & Dunlop, LLC and National City Bank.


 


Amended and Restated Operating Agreement of
Walker & Dunlop, LLC dated as of January       ,
2009.


 


DUS Plus Mezzanine Loan Addendum to Mortgage
Selling and Servicing Contract by and between Fannie Mae and GPF dated
July 6, 2005.


 


3MaxExpress Streamlined Mortgage Loan
Addendum to Mortgage Selling and Servicing Contract by and between Fannie Mae
and GPF dated May 1, 2000.


 


Multifamily As Soon As Pooled Plus Agreement
by and between Fannie Mae and GPF dated May 20, 2008.


 


Multifamily As Soon As Pooled Sale Agreement
by and between Fannie Mae and GPF dated November 21, 2008.


 

















 


Mezzanine Loan Servicing Agreement by and
between RCG Longview Mezz Plus, L.P. and GPF dated July 1, 2005.


 

















 


Section 7.01
 Existing Liens


 


	
  SECURED PARTY

  	
   

  	
  FILE DATE

  	
   

  	
  FILE #

  	
   

  	
  COLLATERAL DESCRIPTION

  	
   

  
	
  Debtor: Green Park Financial Limited
  Partnership

  Jurisdiction: District of Columbia

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1. National City Bank of Kentucky; Amended
  to National City Bank as of 08/01/06.

  	
   

  	
  09/20/00

  	
   

  	
  2000084812

  	
   

  	
  Underlying
  loans, notes and related mortgages described more fully on the financing
  statement. Amendments filed 11/22/02, 04/28/03, 01/14/05 and 09/09/05.
  Continuations filed 09/09/05 and 09/13/05

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2. National City Bank of Kentucky

  	
   

  	
  05/12/05

  	
   

  	
  2005064911

  	
   

  	
  UCC-1 in
  lieu of continuation filed originally in state of Maryland on 08/07/00.
  Collateral is underlying loans, notes and related mortgages described more
  fully on the financing statement.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3. Bank of America, NA

  	
   

  	
  12/02/05

  	
   

  	
  2005173531

  	
   

  	
  Certain
  mortgage loans, mortgage notes, mortgages, and related property.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4. Bank of America, NA

  	
   

  	
  11/01/06

  	
   

  	
  2006148680

  	
   

  	
  All right,
  title and interest to all servicing income with respect to mortgage loans
  described more fully on the financing statement.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5. Bank of America, NA

  	
   

  	
  11/01/06

  	
   

  	
  2006148682

  	
   

  	
  All right,
  title and interest to all servicing income with respect to mortgage loans
  described more fully on the financing statement.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6. U.S. Bank National Association

  	
   

  	
  10/03/07

  	
   

  	
  2007127860

  	
   

  	
  All right,
  title and interest in collateral held by Fannie Mae or U.S. Bank National
  Association described more fully on the financing statement.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Debtor: Walker & Dunlop GP, LLC

  Jurisdiction: Delaware

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7. Bank of America, N.A., as Collateral
  Agent

  	
   

  	
  11/01/06

  	
   

  	
  63827771

  	
   

  	
  100% of the
  membership interests in GPF Acquisition, LLC