CO-LENDER AGREEMENT for Between individually and as agent for one or more Co-Lenders, and Dated: As of, 20 [This document is intended to be used to originate a term loan on a co-lending basis. It is not configured for multiple loan advances for C&I lending or construction lending.]
TABLE OF CONTENTS PRELIMINARY STATEMENT............................................. 1 ARTICLE I DEFINITIONS................................................. 1 1.1 Definitions.................................................... 1 ARTICLE II EXAMINATION OF LOAN AND DECISION TO LEND.............. 5 2.1 Examination of Loan............................................ 5 ARTICLE III APPOINTMENT OF AGENT AND AGENT S FEES................. 6 3.1 Appointment................................................... 6 3.2 Ownership and Possession of Loan Documents....................... 6 3.3 Agent s Compensation........................................... 6 ARTICLE IV PAYMENTS TO CO-LENDERS................................. 6 4.1 Principal and Interest Payments.................................... 6 4.2 Commitment Fee............................................... 7 4.3 Late Charges.................................................. 7 4.4 Agent as the Co-Lender.......................................... 7 ARTICLE V ADMINISTRATION OF THE LOAN.............................. 7 5.1 Administration................................................. 7 5.2 Discretion and Reliance of Agent................................... 7 5.3 Powers of Agent................................................ 8 5.4 Limitations on Agent............................................. 9 5.5 Approvals by the Co-Lenders...................................... 11 5.6 Performing Co-Lenders Entitled to Consent........................... 12 5.7 Required Notices to the Co-Lenders and Transmittal of Financial Information. 12 5.8 Hazard Insurance and Condemnation Award........................... 12 5.9 Inspection...................................................... 13 5.10 Relationship with the Borrower..................................... 13 5.11 Other Transactions............................................... 13 5.12 Decisions Following Loan Default, Enforcement....................... 14 ARTICLE VI PAYMENTS; APPLICATION OF FUNDS AND PROTECTIVE ADVANCES 17 6.1 Method of Payment by Borrower.................................... 17 6.2 Taxes.......................................................... 17 6.3 Excess Payments................................................. 18 6.4 Return of Payments............................................... 18 6.5 Application of Moneys Collected.................................... 18 ARTICLE VII DEFAULT BY CO-LENDER..................................... 20 7.1 Defaults........................................................ 20 7.2 Purchase of Defaulting Co-Lender s Interest After Default................ 21 7.3 Purchase Price, Payment for Defaulting Co-Lender s Interest.............. 22 ARTICLE VII INDEMNIFICATION........................................... 23 8.1 Indemnification of Agent.......................................... 23 8.2 Indemnification on Default......................................... 25
ARTICLE IX REPRESENTATION, WARRANTIES AND ACKNOWLEDGEMENTS.. 25 9.1 The Co-Lenders Representations and Warranties....................... 25 9.2 Agent s Representations and Warranties.............................. 27 ARTICLE X PARTICIPATION AND ASSIGNMENTS........................... 28 10.1 Sales by the Co-Lenders.......................................... 28 ARTICLE XI MISCELLANEOUS............................................ 29 11.1 Further Assurances.............................................. 29 11.2 No Waiver, etc................................................. 29 11.3 Notice........................................................ 29 11.4 Successor Agent................................................ 30 11.5 Conflict with Other Agreements.................................... 31 11.6 No Third Party Beneficiaries...................................... 31 11.7 Counterparts................................................... 31 11.8 No Amendments................................................ 31 11.9 Severability.................................................... 31 11.10 Governing Law................................................. 31 11.11 Headings, etc................................................... 31 11.12 No Partnership, Joint Venture or Loan Treatment...................... 31 11.13 Submission to Jurisdiction........................................ 32 11.14 Service of Process............................................... 32 11.15 Limitation of Liability............................................ 32 11.16 Confidentiality, Use of Information................................. 32
CO-LENDER AGREEMENT This Co-Lender Agreement (this "Agreement") is made as of, 20 between, a having its principal office at, and its successors and assigns ("XXX"), individually, and as agent for one or more Co-Lenders, and,, (the "Co-Lenders" and each a "Co-Lender"). PRELIMINARY STATEMENT XXX and each Co-Lender have, as of the date hereof, executed and delivered the Assignment and Acceptance (as hereinafter defined) in connection with the assignment by XXX of a portion of the rights and obligations with respect to the Loan and the Loan Documents (as such terms are hereinafter defined). XXX and each Co-Lender have agreed that XXX shall act as Agent and shall administer the Loan and maintain records in connection with the Loan in accordance with this Agreement and that the relationship between XXX as Agent (as defined below) and the Co-Lenders with respect to the Loan shall be only as provided in this Agreement. NOW, THEREFORE, in consideration of the opportunity to make the Loan, the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Co-Lender and XXX, individually and as Agent, agree as follows: AGREEMENTS ARTICLE I - DEFINITIONS 1.1 Definitions. The following terms whenever used herein shall have the following meanings: (a) Agent means XXX or any successor or assignee who shall succeed to the rights and duties of XXX to act as agent on behalf of the Co-Lenders as contemplated by this Agreement. (b) Agent Parties shall have the meanings ascribed to it in Section 5.2 hereof. (c) Assignment and Acceptance means the agreements by which XXX assigns and each Co-Lender accepts its Pro Rata Interest in the Loan, which shall be in the form attached hereto as Exhibit A and made a part hereof. 1
(d) (e) (f) (g) (h) (i) (j) (k) (l) (m) Bankruptcy Code means the United States Bankruptcy Code, 11 U.S.C. 101 et seq., as amended from time to time, and all rules of practice and procedure applicable thereto. Borrower means, a. Borrower Related Parties shall have the meaning ascribed to such terms in Section 4.11 hereof. Business Day or business day means any day on which banks are not authorized or required to close under the laws of the United States or the [Jurisdiction]. Closing Date shall have the meaning ascribed to it in the Loan Documents. Co-Lenders means, collectively, XXX (in its capacity as a lender and not as Agent), and each and every other Person who acquires an interest in the Loan and Loan Documents by entering into an Assignment and Acceptance Agreement in substantially the form attached as Exhibit A hereto and thereby joins in the Commitment and the Loan. Co-Lender Default Rate shall have the meaning ascribed to it in Section 7.1 hereof. Collateral means collectively any and all of the property, whether real, personal, or mixed and whether tangible or intangible, which is encumbered or intended to be encumbered by the Mortgage or any supplemental or additional mortgage, security agreement, assignment, pledge, financing statement, or other documents together with any additional indemnities, guarantees, letters of credit, cash deposits, accounts, and instruments, (x) given to secure payment of the Loan or performance of the Borrower s or any Other Party s obligations in connection with the Loan and (y) executed and/or delivered to or for the benefit of the Co-Lenders from time to time during the Loan term. Commitment means all of the obligations of the Co-Lenders to disburse the Loan in accordance with the terms and conditions of the Loan Documents. Commitment Fees means, collectively, all loan fees payable by the Borrower at the time of, or prior to, the Closing Date excluding any attorneys fees and other out-of-pocket costs and expenses payable or reimbursable by the Borrower under the terms of the Loan Documents. 2