Exhibit 10.9
EXECUTIONVERSION
FIRSTAMENDMENTTOMASTERREPURCHASEAGREEMENTANDCONSENTTO RESTRUCTURING
THISFIRSTAMENDMENTTOMASTERREPURCHASEAGREEMENTAND
CONSENTTORESTRUCTURING,datedasofJune24,2026(this“Amendment”),isentered intobyandamongBARCLAYSBANKPLC,apubliclimitedcompanyorganizedunderthelaws ofEnglandandWales(“Purchaser”),CLRRELENDINGRFSUBBB,LLC,aDelawarelimited liability company (“Seller”), and acknowledged by CIM REAL ESTATE FINANCE TRUST, INC., a Maryland corporation (“Initial Guarantor”), and CIM COMMERCIAL LENDING REIT, a Maryland statutory trust (“Replacement Guarantor”). Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Repurchase Agreement (as defined below and as amended hereby).
RECITALS
WHEREAS, Purchaser, Guarantors and Seller are parties to that certain Master RepurchaseAgreement,datedasofDecember4,2023(asthesamehasbeenamendedpriortothe date hereof, the “Existing Repurchase Agreement”, and as amended by this Amendment, and as hereafter further amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time, the “Repurchase Agreement”);
WHEREAS, the parties hereto desire to make certain amendments and modifications to the Existing Repurchase Agreement; and
WHEREAS, Purchaser desires to provide its prior written consent to a Restructuring (as defined below and as further described herein);
NOW THEREFORE, in consideration of the foregoing recitals, and other good and valuableconsideration,thereceiptandsufficiencyofwhichareherebyacknowledged,theparties hereto, intending to be legally bound, agree as follows:
ARTICLE 1
AMENDMENTSTOREPURCHASEAGREEMENT
The Repurchase Agreement is hereby amended to delete the red stricken text (indicated textually in the same manner as the following example: stricken text), move the green stricken textfromitscurrentlocationtothelocationofthegreenunderlinedtext(indicatedtextuallyinthe same manner as the following example: stricken textto underlined text) and to add the blue underlined text (indicated textually in the same manner as the following example: underlinedtext) as attached hereto on Exhibit A.
ARTICLE 2CONSENTTORESTRUCTURING
(a) As of the date hereof, CIM Group Holdings, LLC, a Delaware limited liability company (“CIM Group”), controls the entity that serves as the external manager of Initial Guarantor.
(b) Onthedatehereof,InitialGuarantorintendstoconsummateaseriesofrestructuring andreorganizationtransactions(collectively,the“Restructuring”)pursuanttowhich,amongother things, the employees, management platform, investment portfolio and certain other assets and subsidiaries of CIM Group, will be contributed to a newly formed operating partnership that will beadirectsubsidiaryofInitialGuarantor,andCIMGroupand/oritsaffiliateswillreceivelimited partnership interests in such operating partnership and non-economic voting preferred shares of Initial Guarantor in exchange for such contributions. Upon consummation of the Restructuring, among other things, (A) Initial Guarantor will no longer be externally managed, (B) CIM Group and/or its affiliates will, through the voting rights of such non-economic voting preferred shares, controlgreaterthanfiftypercent(50%)ofthetotalvotingpowerofallclassesofCapitalStockof InitialGuarantorentitledtovotegenerallyintheelectionofdirectorsofInitialGuarantor,(C)CIM Group and/or its affiliates will be the indirect beneficial owner(s) of greater than fifty percent (50%)ofthetotal voting powerof all classes ofCapital Stock ofReplacement Guarantorentitled to vote generally in the election of directors of Replacement Guarantor, and (D) Replacement Guarantor will continue to be an indirect subsidiary of Initial Guarantor and will be managed by indirect subsidiaries of Initial Guarantor. Immediately after the consummation of the Restructuring, Initial Guarantor will change its name to CIM Group Inc.
(c) Effective immediately prior to the consummation of the Restructuring, Purchaser hereby (i) consents to the Restructuring, (ii) agrees that the Restructuring shall not constitute a Change of Control for which consent has not been obtained under the Repurchase Agreement or any other Transaction Document, and (iii) agrees that all requirements in the Repurchase Agreement or any other Transaction Document with respect to “know your customer” requirements related to the Restructuring have been satisfied.
ARTICLE 3 CONDITIONSPRECEDENT
ThisAmendmentanditsprovisionsshallbecomeeffectiveonthefirstdateonwhich(i)
this Amendment is duly executed and delivered by each party hereto, and (ii) Purchaser receives suchotherdocumentsas PurchaserorcounseltoPurchasermayreasonablyrequestinconnection with this Amendment, in each case in form and substance acceptable to Purchaser.
ARTICLE 4
REPRESENTATIONS
EachofSellerandPurchaserrepresentsandwarrants(astoitself)totheotherpartyhereto,
asofthedateofthisAmendment,as follows:
(a) all representations and warranties made by it in the Transaction Documents to which it is a party are true and correct in all material respects;
(b) itisdulyauthorizedtoexecuteanddeliverthisAmendmentandhastakenall necessary action to authorize such execution, delivery and performance;
(c) thepersonsigningthisAmendmentonitsbehalfisdulyauthorizedtodosoonits
behalf;
(d) theexecution,deliveryandperformanceofthisAmendmentwillnotviolateany
RequirementofLawapplicabletoitoritsorganizationaldocumentsoranyagreementbywhichit is bound or by which any of its assets are affected; and
(e) thisAmendmenthasbeendulyexecuted anddeliveredbyit.
ARTICLE5 EXPENSES
Onorpriortothedatehereof,SellershallpayondemandallofPurchaser’s out-of-pocket
costs and expenses, including reasonable fees and expenses of outside counsel, incurred in connection with the preparation, negotiation, execution and consummation of this Amendment.
ARTICLE 6 GOVERNINGLAW
THISAMENDMENTSHALLBECONSTRUEDANDENFORCEDIN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS DOCTRINE APPLIED IN SUCH STATE (OTHER THAN SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
ARTICLE 7 MISCELLANEOUS
(a) Exceptasexpresslyamendedormodifiedhereby,theTransactionDocumentsshall
remaininfullforceandeffectinaccordancewiththeirtermsandareherebyratifiedandconfirmed. AllreferencestotheTransactionDocumentsshallbedeemedtomeantheTransactionDocuments as modified by this Amendment.
(b) ThisAmendmentmaybeexecutedincounterparts,eachofwhichsoexecutedshall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment in electronic format shall be as effective as delivery of a manually executed original counterpart of this Amendment.
(c) The headings in this Amendment are for convenience of reference only and shall not affect the interpretation or construction of this Amendment.
(d) This Amendment may not be amended or otherwise modified, waived or supplemented except as provided in the Repurchase Agreement.
(e) ThisAmendmentcontainsafinalandcompleteintegrationofallpriorexpressions by the parties with respect to the subject matter hereof and shall constitute the entire agreement among the parties with respect to such subject matter, superseding all prior oral or written understandings.
(f) ThisAmendmentandtheRepurchaseAgreement,asamendedhereby,areasingle Transaction Document.
ARTICLE 8 REAFFIRMATION
EachGuarantorherebyacknowledgestheexecutionanddeliveryofthisAmendmentby
SellerandPurchaserandagreesthatitcontinuestobeboundbythatcertainGuaranty,datedasof December4,2023,madebyGuarantorsforthebenefitofPurchaser,notwithstandingtheexecution and delivery of this Amendment and the impact of the changes set forth herein.
ARTICLE9
POST-CLOSINGOBLIGATION
No later than ten (10) Business Days after the date hereof (or such later time as may be granted by Purchaser in its reasonable discretion), Seller shall deliver to Purchaser opinions of outside counsel in form and substance reasonably acceptable to Purchaser including, but not limitedto,thoserelatingtocorporatematters, enforceabilityandsecurityinterests withrespectto this Amendment and the Amended and Restated Fee Letter, dated as of the date hereof.
[SIGNATURESFOLLOW]
INWITNESS WHEREOF, the parties havecaused thisAmendment to bedulyexecuted, as of the date first above written.
PURCHASER:
BARCLAYSBANKPLC
By:/s/ Sabrina Khabie
Name: Sabrina Khabie
Title: Authorized Signatory
[SIGNATURECONTINUESONFOLLOWINGPAGES]
[Barclays/CLR - First Amendment to MRA and Consent to Restructuring]
SELLER:
CLRRELENDINGRFSUBBB,LLC
By: /s/ Laura Eichelsderfer
Name: Laura Eichelsderfer
Title: Secretary
ACKNOWLEDGEDAND AGREED: INITIAL GUARANTOR:
CIMREALESTATEFINANCETRUST,INC.
By: /s/ Laura Eichelsderfer
Name: Laura Eichelsderfer
Title: Secretary
REPLACEMENTGUARANTOR:
CIMCOMMERCIALLENDINGREIT
By: /s/ Laura Eichelsderfer
Name: Laura Eichelsderfer
Title: Secretary
[Barclays/CLR-FirstAmendmenttoMRAandConsenttoRestructuring]
t-
EXHIBIT A
CONFORMEDREPURCHASEAGREEMENT
Attachedhereto.
CONFORMEDTHROUGHFIRSTAMENDMENTTOMASTERREPURCHASE
AGREEMENTANDCONSENTTORESTRUCTURING
MASTERREPURCHASEAGREEMENT
DatedasofDecember4,2023
between
BARCLAYSBANKPLC,
asPurchaser,
and
CLRRELENDINGRFSUBBB,LLC,
asSeller
ARTICLE1APPLICABILITY 1
ARTICLE2DEFINITIONS 1
ARTICLE3INITIATION;CONFIRMATION;TERMINATION;EXTENSION 27
ARTICLE4MARGINMAINTENANCE 37
ARTICLE5PAYMENTS;COLLECTIONACCOUNT 38
ARTICLE6REQUIREMENTSOFLAW;BENCHMARKREPLACEMENT 40
ARTICLE7SECURITYINTEREST 43
ARTICLE8TRANSFERANDCUSTODY 45
ARTICLE 9 SALE, TRANSFER, HYPOTHECATION OR PLEDGE OF PURCHASED ASSETS 46
ARTICLE10REPRESENTATIONSANDWARRANTIES 46
ARTICLE11NEGATIVECOVENANTSOFSELLER 52
ARTICLE12AFFIRMATIVECOVENANTSOFSELLER 53
ARTICLE13SINGLEPURPOSEENTITYCOVENANTS 58
ARTICLE14EVENTSOFDEFAULT;REMEDIES 60
ARTICLE16SINGLEAGREEMENT 66
ARTICLE17INTENTIONALLYOMITTED 67
ARTICLE18NOTICESANDOTHERCOMMUNICATIONS 67
ARTICLE19ENTIREAGREEMENT;SEVERABILITY 68
ARTICLE20NON-ASSIGNABILITY 68
ARTICLE21GOVERNINGLAW 69
ARTICLE22WAIVERSANDAMENDMENTS 69
ARTICLE23INTENT 70
ARTICLE24DISCLOSURERELATINGTOCERTAINFEDERALPROTECTIONS 71
ARTICLE25CONSENTTOJURISDICTION;WAIVERS 72
ARTICLE26NORELIANCE 73
ARTICLE27INDEMNITYANDEXPENSES 73
ARTICLE28DUEDILIGENCE 75
ARTICLE30ACKNOWLEDGMENTANDCONSENTTOBAIL-IN 77
ARTICLE31MISCELLANEOUS 80
ARTICLE32TAXES 81
EXHIBITS
EXHIBIT I NamesandAddressesforCommunicationsbetweenParties EXHIBIT II Form of Confirmation Statement
EXHIBIT III AuthorizedRepresentativesofSeller EXHIBIT IV Form of Power of Attorney
EXHIBIT V RepresentationsandWarrantiesRegardingIndividualPurchasedAssets EXHIBIT VI Asset Information
EXHIBIT VII Advance Procedures EXHIBIT VIII FormofMarginCallNotice EXHIBIT IX Form of Release Letter
EXHIBIT X FormofCovenantComplianceCertificate EXHIBIT XI Prohibited Transferees
EXHIBITXII FormofJointMaximumFacilityPurchasePriceAgreement
MASTERREPURCHASEAGREEMENT
MASTER REPURCHASE AGREEMENT, dated as of December 4, 2023 (as amended, restated, supplemented or otherwise modified and in effect from time to time, this “Agreement”), byand between BARCLAYS BANK PLC, a public limited companyorganized under the laws of England and Wales (including any successor thereto, “Purchaser”) and CLR RE LENDING RF SUB BB, LLC, a Delaware limited liability company (“Seller”), and acknowledged by CIM REAL ESTATE FINANCE TRUST, INC., a Maryland corporation
(“Initial Guarantor”), and CIM COMMERCIAL LENDING REIT, aMarylandstatutorytrust (“Replacement Guarantor”).
ARTICLE 1
APPLICABILITY
Subject to the terms of the Transaction Documents, from time to time during the Availability Period (as defined herein) the parties hereto may enter into transactions in which Seller will sell to Purchaser, all of Seller’s right, title and interest in and to certain EligibleAssets(asdefinedherein)andtheotherrelatedPurchasedItems(asdefinedherein)(collectively, the “Assets”)against thetransferoffunds byPurchasertoSeller, with asimultaneous agreement byPurchasertore-sellbacktoSeller,andbySellertorepurchase,suchAssetsatadatecertainor on demand, against the transfer of funds by Seller to Purchaser.Each such transaction shall be referred to herein as a “Transaction” and, unless otherwise agreed in writing by Seller and Purchaser, shall begoverned bythis Agreement, includinganysupplemental terms or conditions contained in any exhibits identified herein as applicable hereunder.Each individual transfer of an Eligible Asset shall constitute a distinct Transaction.Notwithstanding any provision or agreement herein, this Agreement is not a commitment by Purchaser to engage in Transactions, but sets forth therequirements underwhichPurchaserwouldconsiderenteringintoTransactions from time to time.At no time shall Purchaser be obligated to purchase or effect the transfer of any Eligible Asset from Seller to Purchaser.
ARTICLE 2
DEFINITIONS
The following capitalized terms shall have the respective meanings set forth below. “Accelerated Repurchase Date” shall have the meaning specified in Article 14(b)(i). “AcceptedServicingPractices”withrespecttoanyPurchasedAsset,shallhavethe
meaning set forth in the relatedServicing Agreement or, ifnotdefinedtherein,shall mean those commercial mortgage loan, mezzanine loan or participation interest servicing practices of prudent commercial mortgage lending institutions that service mortgage loans, mezzanine loans and/or participation interests of the same type as such Purchased Asset in the jurisdiction where the related underlying real estate directly or indirectly securing or supporting such Purchased Asset is located.
“Account Bank” shall mean JPMorgan ChaseBank, N.A., oranysuccessoraccount bank appointed by Seller (so long as there is no Event of Default) and reasonably acceptable to Purchaser;provided,thatduringthecontinuanceofanEventofDefault,anysuccessorbankshall be appointed by Purchaser in its sole and absolute discretion.
“AccountControlAgreement”shallmeanthatcertainAccountControlAgreement,dated as of the Closing Date, among Purchaser, Seller and Account Bank, as the same may be amended, modified and/or restated from time to time, and/or anyreplacement agreement.
“Act of Insolvency” shall mean, with respect to any Person, (a) the filing of a petition, commencing, or authorizing the commencement of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, moratorium, dissolution or similar law relating to the protection of creditors, or (b) suffering any such petition or proceeding described inclause(a)tobecommencedbyanotherPersonwhich(i)isconsentedto,solicitedby,colluded withornottimelycontestedor(ii)resultsinentryofanorderordecreeforreliefthat,inthecase of an action not commenced by or on behalf of or with the consent of such Person, is not dismissed or stayed within sixty(60)days; (c) theseekingor consentingto the appointment of a receiver, trustee, custodian or similar official for such Person or all or substantially all of the property of such Person; (d) the appointment of a receiver, conservator, or manager for such Person byanygovernmental agencyor authorityhaving the jurisdiction to doso; (e)themaking by such Person of a general assignment for the benefit of creditors; (f) the admission in a legal proceeding or in writing by such Person of its inability to, or intention not to, pay its debts or discharge its obligations as theybecome due or mature; or (g) that anyGovernmental Authority or agency or any person, agency or entity acting or purporting to act under Governmental Authority shall have taken anyaction to condemn, seize or appropriate, or to assume custodyor controlof,allorsubstantiallyallofthepropertyofsuchPerson,orshallhavetakenanyactionto displace the management of such Person or to curtail its authorityin the conduct of thebusiness of such Person.
“Affiliate”shallmean(i)whenusedwithrespecttoSeller,onlyGuarantor,CIMManagerand the Subsidiaries of Guarantor, (ii) when used with respect to Initial Guarantor, only CIMManager andthe Subsidiaries of Initial Guarantor, (iii) when used with respect to Replacement Guarantor, only CIM Manager and the Subsidiaries of Replacement Guarantor and (iv) when used with respect to any other Person, (a)any other Person directly or indirectly controlling, controlled byor under common control with such Person or(b) any“affiliate”of such Person, as such term is defined in the Bankruptcy Code.
“Agreement” shall have the meaning specified in the introductory paragraph hereof. “AmortizationPeriod”shallmean,ifanextensionoftheTerminationDateiseffected
pursuant to Article3(g), the period (i)beginning immediately upon the expiration of the Availability Period and the beginning of such extension period and (ii) ending on the Termination Date, as the same may be extended pursuant to Article 3(g).
“AmortizationPeriodExtensionConditions”shallhavethemeaningspecifiedin Article 3(g)(i).
“Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to anySellerPartyandanyoftheirrespectiveAffiliatesfrom timeto timeconcerning or relating to bribery, corruption or money laundering including, without limitation, the United Kingdom Bribery Act of 2010 and the United States Foreign Corrupt Practices Act of 1977, as amended.
“Anti-Money Laundering Laws” shall mean all anti-money laundering laws and regulations of any jurisdiction applicable to any Seller Party and any of their respective Affiliates.
“Asset Information” shall mean, with respect to each Purchased Asset, the information set forth in Exhibit VIattached hereto.
“Assets”shallhavethemeaningspecifiedinArticle1.
“AvailabilityPeriod”shallmeantheperiod(i)beginningontheClosingDateand
(ii)ending on December 4, 2026 (which is three (3) years after the Closing Date), or such later date as may be in effect pursuant to Article 3(f).
“Availability Period Extension” shall have the meaning specified in Article 3(f)(i). “AvailabilityPeriodExtensionConditions”shallhavethemeaningspecifiedin
Article3(f)(i).
“Availability Period Extension Fee” shall have the meaning specified in the Fee Letter. “Bailee”shallmeanasettlementagent,escrowagentorbaileeappointedbySeller(so
long as there is no Event of Default) and reasonably acceptable to Purchaser and that has delivered a Bailee Agreement; provided,thatduringthe continuanceof anEventofDefault,any successor bailee shall be appointed byPurchaser in its sole and absolute discretion.
“Bailee Agreement” shall have the meaning specified in the Custodial Agreement. “Bailee Trust Receipt” shall have the meaning specified in the Custodial Agreement. “BankruptcyCode”shallmeanTheUnitedStatesBankruptcyCodeof1978,asamended
from time to time.
“Benchmark” shall mean, with respect to any Transaction (i)for which Term SOFR is designatedastheBenchmarkintherelatedConfirmation,initially,TermSOFRor(ii)suchother Benchmark as is mutually agreed to by Seller and Purchaser as set forth in the related Confirmation; providedthat, in each case, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to such Benchmark or any otherthen-current Benchmark, then “Benchmark” shall mean the applicable Benchmark Replacement to the extent that such Benchmark Replacement has become effective pursuant to Article 6(b).
“Benchmark Floor” shall mean, at any time, with respect to anyTransaction, the greater of (a) zero and (b) the Benchmark Floor set forth in the relatedConfirmation with respect tothe then-applicable Benchmark.
“BenchmarkReplacement”shallmean,withrespect toanyBenchmarkTransitionEvent, the sum of: (a)the alternate benchmark rate that has been selected by Purchaser as the replacement for the then-current Benchmark giving due consideration to (i) any selection or recommendation of a replacementbenchmark rate or themechanism fordeterminingsuch a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention fordeterminingabenchmarkrateasareplacementforsuchBenchmarkforU.S. dollar-denominated commercial mortgage loan repurchase facilities or other similar agreements
atsuchtimeand(b)theBenchmarkReplacementAdjustment.Notwithstandingtheforegoing,if any setting of the Benchmark Replacement as provided above would result in such Benchmark Replacement setting being less than the applicable Benchmark Floor, such setting of the Benchmark Replacement shall instead be deemed to be such Benchmark Floor.
“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of thethen-currentBenchmarkforanyTransaction,thespreadadjustmentormethodforcalculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by Purchaser giving due consideration to (i) anyselection or recommendation of a spread adjustment, or method for calculatingor determiningsuch spread adjustment, for the replacement of such Benchmark with the applicable Benchmark Replacement by the Relevant Governmental Bodyor (ii) anyevolving or then-prevailing market convention fordetermining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacementofsuchBenchmarkwiththeapplicableBenchmarkReplacementforU.S. dollar-denominated commercial mortgage loan repurchase facilities at such time.
“Benchmark Replacement Conforming Changes” shall mean with respect to any Benchmark or Benchmark Replacement, any technical, administrative or operational changes (including, without limitation, changes to the definitions of “Business Day,” “Pricing Rate,” “Pricing Rate Period,” “Reference Time”, “Term SOFR” and any similar defined term in this Agreement, provisions with respect to timing and frequency of determining rates and making payments of price differential, length of lookback periods, the formula for calculating such Benchmark Replacement, the formula, methodology or convention for applying the Benchmark FloortoanyBenchmarkReplacementandothertechnical,administrativeoroperationalmatters) that Purchaser decides may be appropriate to reflect the adoption and implementation, and to permit the administration, of such Benchmark or Benchmark Replacement by Purchaser in a mannersubstantiallyconsistentwithmarketpractice(or,ifPurchaserdecidesthatanyportionof such market practice is not administratively feasible or if Purchaser determines that no market practice for the administration thereof exists, in such other manner of administration as Purchaser decides is reasonably necessary in connection with the administration of this Agreement).
“Benchmark Replacement Date” shall mean the earliest to occur of the following events with respect to the then-current Benchmark for any Transaction:
(i) in the case of clause (i) or (ii) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark permanently or indefinitely ceases to provide such Benchmark; or
(ii) in the case of clause (iii) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark has been determined and announced by the regulatory supervisor for the administrator of such Benchmark to be no longer representative or to be non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, provided, that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (iii) even if such Benchmark continues to be provided on such date; or
(iii) in the case of anyother clauseofthedefinition of “Benchmark Transition Event,” the date set forth in a written notice from Purchaser to Seller.
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same dayas, but earlier than, the Reference Time in respect of anydetermination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“BenchmarkTransitionEvent”shallmeantheoccurrenceofoneormoreofthefollowing events with respect to the then-current Benchmark for any Transaction:
(i) a public statement or publication of information by or on behalf of the administrator of such Benchmark announcing that such administrator has ceased or will cease to provide such Benchmark, permanentlyor indefinitely, provided that, at the time of such statement orpublication, there is no successor administrator that will continue to provide such Benchmark;
(ii) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdictionovertheadministratorforsuchBenchmarkoracourtoranentitywithsimilar insolvency or resolution authority over the administrator for such Benchmark, which states that the administrator of such Benchmark has ceased or will cease to provide such Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark;
(iii) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark announcing that such Benchmark is not,orasofaspecifiedfuturedatewillnotbe,representativeorincompliancewithor
alignedwiththeInternationalOrganizationofSecuritiesCommissions(IOSCO) Principles for Financial Benchmarks;
(iv) Purchaserdeterminesinitssolediscretionthat,byreasonofcircumstances affecting the relevant market, adequate and reasonable means do not exist forascertaining such Benchmark; or
(v) Purchaser determines in its sole discretion that the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for Purchaser to accrue Purchase Price Differential based on such Benchmark.
“Borrower” shall mean the obligor on a Promissory Note and (i) in the case of a Mortgage Loan, the grantor of the relatedMortgageor, (ii) in the case of aMezzanine Loan, the pledgor of equity interests in entities that own, directly or indirectly, the collateral for a related Mortgage Loan.
“Breakage Costs” shall mean, with respect to any Purchased Asset, all accrued and unpaid cost, loss or expense of terminating or replacing any hedging or term financing transactions with respect to such Purchased Asset.
“Business Day” shall mean a day other than (a) a Saturday or Sunday, or (b) a day in which the New York Stock Exchange or banks in the State of New York (or any state in which anyof Purchaser, Seller orCustodian islocated) are authorized orobligated bylaw or executive order to be closed.
“Capital Stock” shall mean any and all shares, interests, participations or other equivalents (however designated) of capitalstockof a corporation, anyand all equivalent equity ownershipinterestsinaPersonwhichisnotacorporation,including,withoutlimitation,anyand all member or other equivalent interests in any limited liability company, and any and all warrants or options to purchase any of the foregoing.
“Capitalized Lease Obligations”shallmeanobligationsunder aleasethat are requiredto be capitalized for financial reporting purposes in accordance with GAAP.The amount of a Capitalized Lease Obligation is the capitalized amount of such obligation as would be required to be reflected on thebalancesheetprepared in accordance with GAAP oftheapplicablePerson as of the applicable date.
“Change of Control” shall mean the occurrence of any of the following events: (a) a merger or consolidation of Seller,; (b) prior to the Guarantor Replacement Event, a merger or consolidation of anyInitialGuarantor and the surviving entity is not Controlled or externallymanaged by CIM Manager, (cInitial Guarantor; (c) a merger or consolidation of ReplacementGuarantorandthesurvivingentityisnotReplacementGuarantor;(d)anyconveyance,transferor disposal of all or substantially all of Seller’s or any Guarantor’s assets to any Person or entity (other than, in the case of Seller, sales of Purchased Assets in the ordinary course of business),
(d) prior to a Guarantor Replacement Event, any “person” or “group” (within the meaning ofSection13(d)or14(d)oftheExchangeAct)(otherthanCIMManageroranentitywhichis
Controlled by CIM Manager) shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the beneficial owner, directly or indirectly, of fifty percent (50%) or more of the total voting power of all classes of Capital Stock of Initial Guarantor entitled to vote generally in the election of the directors or the applicable equivalent, (e) any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) (other than CIM Manager, an entity which is Controlled by CIM Manager or Initial Guarantor) shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the beneficial owner, directly or indirectly, of fifty percent (50%) or more of the total voting power ofallclassesofCapitalStockofReplacementGuarantorentitledtovotegenerallyintheelection ofthedirectorsortheapplicableequivalent,;(e)(i)InitialGuarantorshallceasetobeControlledby CIM Group and/or one or more Affiliates thereof (other than in connection with a publicmarket offering or secondary market trading) and (ii) a Specified Change of Control Event;(f) Replacement Guarantor shall cease to be Controlled by Initial Guarantor; or (g) ReplacementGuarantorshall cease todirectlyor indirectlyown and Control, ofrecord and beneficially, 100% of the Capital Stock of Selleror (g) CIM Group, LLC, CIM Manager or an Affiliate of CIMGroup, LLC or CIM Manager that is Controlled by CIM Group, LLC shall cease to act as theexternal manager for any Guarantor; provided, that an internalization of management by any Guarantor shall not be deemed a breach of this clause (g)..
“CIM ManagerGroup” shall mean, individually and/or collectively, as the context mayrequire, CIM Real Estate Finance ManagementCIM Group Holdings, LLC, a Delaware limited
liability company, and/or any other external manager directly or indirectly Controlling,Controlled by or under common Control with CIM Group, LLC, CIM Real Estate Finance Management, LLC, Initial Guarantor or Replacement Guarantor.
“ClientMoneyDistributionRules”shallhavethemeaningspecifiedinArticle30(c). “Client Money Rules” shall have the meaning specified in Article 30(c).
“ClosingDate”shallmeanDecember4,2023.
“CMFT Facility” shall mean the repurchase facility governed by the Amended and RestatedMasterRepurchaseAgreementdatedasofDecember4,2023(asthesamehasbeenand may be further amended, restated, supplemented or otherwise modified from time to time) between Purchaser and CMFT RE Lending RF Sub BB, LLC (the “CMFT RepurchaseAgreement”).
“Collateral” shall have the meaning specified in Article 7(a). “CollectionAccount”shallhavethemeaningspecifiedinArticle5(c).
“Combined Loan” shall mean any Mezzanine Loan that is subject to a Transaction, together with the related Mortgage Loan that is subject to the same Transaction.
“Confirmation”shallhavethemeaningspecifiedinArticle3(c)(vi).
“Control”shallmeanthepossession,directorindirect,ofthepowertodirectorcausethe direction of the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise and “Controlling” and “Controlled” shall have meanings correlative thereto.
“Controlling Holder” shall mean, the holder of any Promissory Note or Participation Interest, to the extent that such holder has the full power, authority and discretion to service (or cause to be serviced) the related Mortgage Loan and/or Mezzanine Loan and to direct servicing actions with respect thereto (including, without limitation, to modify and amend the terms thereofandtopursueremediesandenforcementactions)withouttheconsentofanyotherPerson (including, without limitation, any holder of a companion Promissory Note or companion Participation Interest).
“Covenant Compliance Certificate” shall mean a properly completed and executed Covenant Compliance Certificate substantially in the form of Exhibit Xhereto.
“Credit Event” shall mean, with respect to any Purchased Asset, a change which results in a Material Adverse Effect in the credit characteristics of the related Mortgaged Property, any related Borrower, guarantor, holder of a companion participation (only to the extent that the holder is the Record Holder or has any future funding obligations or control) or other obligor (otherthanaSellerPartyandonlytotheextentthattheholderhasanyfuturefundingobligations or control), or the related real estate market in which the Mortgaged Property is located.Any determination that a Credit Event has occurred shall be made by Purchaser in its sole and absolute discretion.
“Current Termination Date” shall have the meaning specified in Article 3(g)(i). “CustodialAgreement”shallmeantheCustodialAgreement,datedasoftheClosing
Date, by and among Custodian, Seller and Purchaser, as the same may be amended, modified and/or restated from time to time, and/or any replacement agreement.
“Custodial Delivery” shall have the meaning specified in the Custodial Agreement. “Custodian”shallmeanComputershareTrustCompany,N.A.,oranysuccessorcustodian
appointed by Seller (so long as there is no Event of Default) and reasonably acceptable to Purchaser; provided, that during the occurrence and continuance of an Event of Default, any successor custodian shall be appointed byPurchaser in its sole and absolute discretion.
“Default” shall mean any event which, with the giving of notice, the passage of time, or both, would constitute an Event of Default.
“DefaultThreshold”shallhavethemeaningspecifiedintheFeeLetter.
“Defaulted Asset”shallmean anyasset(a)thatisdelinquentinthepaymentofprincipal, interest, fees or other amounts payable under the terms of the related Purchased Asset Documents for thirty (30) days, (b) for which there is a breach of the applicable representations and warranties made by Seller herein (other than any breach of a representation or warranty arising as a result of any MTM Representation or to the extent disclosed in a Requested Exceptions Report specifically approved by Purchaser in writing), (c)as to which an Act of InsolvencyshallhaveoccurredwithrespecttotherelatedBorrower,guarantor,holderofa
companion Participation Interest or other obligor, (d)as to which a material non-monetary defaultshallhaveoccurredandiscontinuingbeyondanyapplicablenotice,graceorcureperiods set forth therein under any related Purchased Asset Document or (e)with respect to which a Future Advance Failure has occurred.
“Dollars” and “$” shall mean freely transferable lawful money of the United States of America.
“Due Diligence Package” shall have the meaning specified in ExhibitVIIto this Agreement.
“EarlyRepurchaseDate”shallhavethemeaningspecifiedinArticle3(d).
“Eligibility Criteria” shall mean: (a)with respect to any Mortgage Loan or Mezzanine Loan (each, a “Loan”), that such Loan (i) is performing, (ii) is fully disbursed, except for customary holdbacks, reserves, escrows and future advances for interest, repairs, tenant improvements, leasingcommissions and capital improvements, (iii)accrues interest at afloating rate based on Term SOFR or a replacement floating interest rate, (iv)with respect to any Mortgage Loan that accrues interest at a floating rate, has an interest rate cap in place that is acceptable to Purchaser in its sole and absolute discretion, (v)has a term to maturity of no greater than five (5) years, inclusive of extension options; (vi)is not, and has not previously been, subject to anyother warehouse or repurchase facility, (vii) is a Mezzanine Loan, provided
such loan is sold together in a Transaction to Purchaser along with the related first Mortgage Loan, (viii)has an underlying borrower/obligor that is a bankruptcy remote special purpose entity(to the extent required pursuant to applicable rating agencycriteria) and (ix) issecured by a first lien mortgage or deed of trust on one or more properties that are of an Eligible Property TypeandotherwisesatisfiesthecriteriasetforthinthedefinitionofEligiblePropertyType,with respect to a Mortgage Loan, secured by a first lien mortgage or deed of trust on one or more propertiesthatareofanEligiblePropertyTypeandotherwisesatisfiesthecriteriasetforthinthe definitionofEligiblePropertyTypeor,withrespecttoaMezzanineLoan,issecuredbyfirstlien pledge of all the equity interests in entities that own, directlyor indirectly, the real propertythat serves as collateral fortherelatedMortgage Loan, (x)has aSeniorFinancingas-isloan-to-value ratio (takinginto account theMortgage Loan and anyrelatedMezzanine Loanthat is, orwillbe, included as a Purchased Asset, together with any other related pari passu loans but excluding any subordinate loans (other than any Mezzanine Loan that is, or will be, included as a Purchased Asset) secured directly or indirectly by the same collateral (the “Senior Financing”)) of up to 80.0% as determined by Purchaser in its sole and absolute discretion on a case-by-case basis,(xi)hasaTotalFinancingas-isloan-to-valueratio(takingintoaccounttheMortgageLoan together with any Mezzanine Loan that is, or will be, included as a Purchased Asset and any otherrelatedparipassuorsubordinate(includingmezzanine)loanssecureddirectlyorindirectly by the same collateral (the “Total Financing”)) of up to 85.0% as determined byPurchaser in its sole and absolute discretion on a case-by-case basis, (xii) reserved, (xiii) satisfies the requirements set forth on Exhibit I of the Fee Letter (the “Eligibility Criteria Exhibit”), (xiv) in the case of a Mezzanine Loan, (A) the related Mortgage Loan contains a requirement that any non-mandatory principal repayment of the Mortgage Loan must be accompanied by a pro-rata principalrepayment(basedonoutstandingprincipalbalance)oftherelatedMezzanineLoan,(B) a default under the related Mortgage Loan constitutes a default undersuchMezzanine Loan and
(C) the related Mortgage Loan and the related Mezzanine Loan are coterminous, and (xv) after giving pro forma effect to the purchase of such Asset on the Purchase Date, such Asset would not cause Seller to violate the Sub-Limit; or (b)with respect to any Senior Note or Senior ParticipationInterest,therelatedMortgageLoanand/orMezzanineLoansatisfiesthecriteriaset forth in clause (a)above.
“Eligible Asset” shall mean any Mortgage Loan, Mezzanine Loan (provided such MezzanineLoanissoldandrepurchasedtogetherwiththerelatedMortgageLoanpursuanttothe same Transaction), Senior Note or Senior Participation Interest, as of the related Purchase Date,
(a) that is approved by Purchaser in its sole and absolute discretion, (b) that satisfies the Eligibility Criteria, and (c)with respect to which the applicable representations and warranties set forth in this Agreement (including the Exhibits hereto) are true and correct in all respects, except to the extentdisclosed in aRequested ExceptionsReportapproved byPurchaser.Unless otherwise specified, anyreference to an Eligible Asset shall include the MortgageLoan and any related Mezzanine Loan that is, or is proposed to be, subject to the same Transaction.
Notwithstanding anything to the contrary contained in this Agreement, the followingshallnotbeEligibleAssetsforpurposesofthisAgreement(unlessotherwiseapprovedinwriting byPurchaser):(i)re-performingloansasoftherelatedPurchaseDate;(ii)DefaultedAssetsasof the related Purchase Date; (iii) loans for which the applicable appraisal is (A) not dated within three hundred sixty-four (364) days of the related Purchase Date or (B) not acceptable to Purchaser in its sole and absolute discretion as of the related Purchase Date, (iv) construction loans,(v)mortgage-backedsecurities,(vi)loanssecuredbyraw,vacantorunimprovedland,and
(vii) participation interests in anyassets described in the preceding clauses (i)through (vi)as of the related Purchase Date. A Mezzanine Loan may be an Eligible Asset provided the related Mortgage Loan is also purchased by Purchaser.
“Eligible Assignee” shall mean any of the following: (a) a bank, financial institution, pension fund, insurance company or similar entity that (i) has total assets (in name or under management) in excess of Five Hundred Million Dollars ($500,000,000) and capital/statutory surplus or shareholder’s equityof Two Hundred FiftyMillion Dollars ($250,000,000) and (ii)is regularly engaged in the business of making or owning commercial real estate loans or interests therein (including, without limitation, “B” notes, participation interests and mezzanine loans withrespecttocommercialrealestate)oranAffiliateofanyoftheforegoing,(b)anyAffiliateof Purchaser, and (c) anyother Person to which Seller has consented in its reasonable discretion.
“Eligible Property Types” shall mean a multi-family, office (subject to the Sub-Limit), retail, hospitality, industrial, self-storage and manufactured housing property, or property made upofanycombinationoftheforegoing,ineachcasethat(i)hasaminimumvalueof$10million as determined on the basis of (x) the applicable appraisal delivered by Seller and (y) any escrows,reserves orholdbacksrelated tosuchproperty, ineachcasebyPurchaserinitssoleand absolute discretion on a case by case basis and (ii)is not undergoing, and is not scheduled to undergo, any ground-up construction or major renovation or major expansion and is free of material structural and/or environmental defects.
The Eligible Property Type criteria set forth herein may be revised by Purchaser in its soleandabsolutediscretionwithrespecttoanynewEligibleAssetsproposedtobepurchasedby Purchaser under this Agreement.
“ERISA”shallmeantheEmployeeRetirementIncomeSecurityActof1974,asamended fromtimetotime,andtheregulationspromulgatedthereunder.SectionreferencestoERISAare to ERISA, as in effect at the date of this Agreement and, as of the relevant date, anysubsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
“ERISA Affiliate” shall mean any corporation or trade or business that is a member of anygroupoforganizations(a)describedinSection414(b)or(c)oftheInternalRevenueCodeof which Seller is a member and (b) solely for purposes of potential liability under Section 302 of ERISA and Section 412 of the Internal Revenue Code, described in Section 414(m) or (o) of the Internal Revenue Code of which Seller is a member.
“EU Securitisation Regulation” shall mean Regulation (EU) 2017/2402 (and as further amended, varied or substituted from time to time as amatter of EUlaw,includingtogether with any delegated regulations, applicable guidance, regulatorytechnical standards, or implementing technical standards made thereunder).
“EventofDefault”shallhavethemeaningspecifiedinArticle14(a).
“Exchange Act” shall mean the Securities and Exchange Act of 1934, as amended. “ExcludedTaxes”shallmeananyofthefollowingTaxesimposedonorwithrespectto
Purchaser or required to be withheld or deducted from a payment to Purchaser: (a) Taxes imposedonormeasuredbynetincomeorsimilarTaxesimposedinlieuofnetincome(however
denominated), franchise Taxes, andbranchprofits Taxes, in each case,(i)imposedas aresult of Purchaser being organized under the laws of, or having its principal office or the office from which it books a Transaction located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of Purchaser pursuant to a law in effect as of the date on which such Person (i) acquires such interest in a Transaction or (ii) changes its principal office or the office from which it books a Transaction, except to the extent that, pursuant to Article 32, such Taxes were payable to such party’s assignor immediately before such Person became a party hereto or to such Person immediately before it changed its lending office, (c) Taxes attributable to Purchaser’s failure to complywith Article23(g)orArticle32of this Agreement and (d) any U.S. federal withholding Taxes imposed under FATCA.
“ExitFee”shallhavethemeaningspecifiedintheFeeLetter.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), together in each case with any current or future regulations, guidance or official interpretations thereof, any agreements entered into pursuant thereto, including any intergovernmental agreements and any rules or guidance implementing such intergovernmental agreements.
“Fee Credit Side Letter Agreement” shall mean that certain Fee Credit Side Letter Agreement, dated as of the Closing Date, by and among Purchaser, Seller and CMFT RE Lending RF Sub BB, LLC.
“Fee Letter” shall mean the amended and restated letter agreement, dated as of theClosing DateJune 24, 2026, from Purchaser and accepted and agreed by Sellerand Guarantors, as the same may be amended, modified and/or restated from time to time, and/or any replacement agreement.
“Filings” shall have the meaning specified in Article 7(b). “FundingFee”shallhavethemeaningspecifiedintheFeeLetter.
“FundingFeeTrueUpAmount”shallhavethemeaningspecifiedintheFeeLetter.
“Future Advance Failure” shall mean, with respect to any Purchased Asset, the occurrence of any litigation or other proceeding alleging a failure to fund anyfuture advance as and when required thereunder.
“Future Advance Purchased Asset” shall mean any Purchased Asset approved by Purchaser, in its sole and absolute discretion, with respect to which less than the full principal amount is funded at origination and Seller is obligated, subject to the satisfaction of certain conditionsprecedentundertherelatedPurchasedAssetDocuments,tomakeadditionaladvances in the future to the related Borrower.For the avoidance of doubt, Purchaser shall have no obligation to make any additional advance with respect to anyFuture Advance Purchased Asset unless Purchaser agrees, in its sole absolute discretion, to make such additional advance in accordance with, and subject to, Article 3(h).
“GAAP” shall mean United States generallyaccepted accounting principles consistently applied as in effect from time to time.
“Governmental Authority” shall mean any national or federal government, any state, regional, local or other political subdivision thereof with jurisdiction and any Person with jurisdictionexercisingexecutive,legislative,judicial,regulatoryoradministrativefunctionsofor pertainingtogovernment(includinganysupra-nationalbodiessuchastheEuropeanUnionorthe European Central Bank).
“Guarantor” shall mean, prior to a Guarantor Replacement Event, Initial Guarantor and Replacement Guarantor, individually or collectively, as the context may require, on a joint and several basis until the Guarantor Replacement Event, and, from and after a Guarantor Replacement Event, Replacement Guarantor.
“Guarantor Replacement Event” shall have the meaning specified in the Guaranty. “Guaranty”shallmeantheGuaranty,datedasoftheClosingDate,fromGuarantorin
favorofPurchaser,informandsubstanceacceptabletoPurchaser,asthesamemaybeamended, modified and/or restated from time to time, and/or any replacement agreement.
“Income” shall mean, with respect to any Purchased Asset at any time, all monies collected from or in respect of such Purchased Asset, including without limitation, payments of interest, principal, repayment, rental or other income, insurance and liquidation proceeds, payments in respect of any associated hedging transaction, and all net proceeds from sale or otherdispositionofsuchPurchasedAssettoaPersonotherthanPurchaser.Fortheavoidanceof doubt, Income shall not include origination fees and expense deposits paid by Borrowers in connectionwiththeoriginationandclosingofthePurchasedAsset,anyreimbursementfor out-of-pocket costs and expenses, anyamounts deposited into an escrow reservepursuant to and inaccordancewiththerelatedPurchasedAssetDocumentsoranyamountswhichtheServiceror Account Bank areentitled to withhold inaccordancewith theServicingAgreementandAccount Control Agreement, as applicable.
“Indebtedness” shall mean, for any Person, without duplication (a)obligations created, issuedorincurredbysuchPersonforborrowedmoney(whetherbyloan,theissuanceandsaleof debt securities or the sale of property to another Person subject to an understanding or agreement,contingentorotherwise,torepurchasesuchpropertyfromsuchPerson);
(b)obligations of such Person to pay the deferred purchase or acquisition price of property or services,otherthantradeaccountspayable(otherthanforborrowedmoney)arising,andaccrued expenses incurred, in the ordinarycourse of business so long as such trade accountspayable are payable within ninety (90) days of the date the respective goods are delivered or the respective services are rendered; (c)Indebtedness of others secured by a lien on the property of such Person,whetherornottherespectiveIndebtednesssosecuredhasbeenassumedbysuchPerson;
(d)obligations (contingent or otherwise) of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for account of such Person; (e)obligations of such Person under repurchase agreements, sale/buy-back agreements orlikearrangements;(f)IndebtednessofothersguaranteedbysuchPerson;(g)allobligationsof such Person incurred in connection with the acquisition or carrying of fixed assets by such Person; (h) Recourse Indebtedness of such Person; (i) Indebtedness of general partnerships of
which such Person is secondarily or contingently liable (other than by endorsement of instruments in the course of collection), whether by reason of any agreement to acquire such indebtedness to supplyor advance sums or otherwise; (j) Capitalized Lease Obligations of such Person;and(k)allnetliabilitiesorobligationsunderanyinterestrate,interestrateswap,interest rate cap, interest rate floor, interest rate collar, or other hedging instrument or agreement; provided, however, that in no event shall Indebtedness include the Subordinate Loan or any of the Subordinated Facility Documents.
“Indemnified Amounts” and “Indemnified Parties” shall each have the respective meanings specified in Article 27(a).
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to anypaymentmadebyoron account of anyobligation ofSellerunder anyTransaction Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Independent Manager” shall mean a natural Person who (a) is not at the time of initial appointment and has never been, and will not while serving as Independent Manager be: (i) a stockholder, director, officer, employee, partner, member (other than a “special member” or “springingmember”),manager(withtheexceptionofservingastheIndependentManagerof
Seller), attorney or counsel of any Seller Party or any Affiliate or equity owner of any Seller Party; (ii) a customer, supplier or other Person who derives any of its purchases or revenues (otherthananyrevenuederivedfromservingastheIndependentManagerofsuchparty)fromits activitieswithanySellerParty,oranyAffiliateorequityownerofanySellerParty;(iii)aPerson controlling or under common control with any such stockholder, director, officer, employee, partner,member,manager,attorney,counsel,equityowner,customer,supplierorotherPersonof any Seller Party or any Affiliate or equity owner of any Seller Party; or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, member, manager, attorney, counsel, equityowner, customer, supplier or other Person of anySellerParty or any Affiliate or equity owner of any Seller Party and (b) has (i) prior experience as an independent director or independent manager for a corporation, a trust or limited liability company whose charter documents required the unanimous consent of all independent directors or independent managers thereof before such corporation, trust or limited liability company could consent to the institution of bankruptcyor insolvencyproceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcyand (ii) at least three (3) years of employment experience and who is provided by CT Corporation, Corporation Service Company, National Corporate Research, Ltd., National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company, Lord Securities Companyor Puglisi & Associates, or if none of these companies is then providing professional independent directors, another nationally recognized company reasonablyacceptable to Purchaser, that is not an Affiliate of Seller and that provides, inter alia, professional independent directors or independent managers in the ordinary course of their respective business to issuers of securitization or structured finance instruments, agreements or securities or lenders or borrowers originating commercial real estate loans for inclusion in securitization or structured finance instruments, agreements or securities (a “Professional Independent Manager”) and is an employee of such a company or companies at all times during his or her service as an Independent Manager.A natural Person who satisfies the foregoing definition except for being (or having been) the independent director or independent manager of a “special purpose entity” thatisanAffiliateofanySellerParty(providedsuchAffiliatedoesnotordidnotownadirector
indirect equity interest in Seller) shall not be disqualified from serving as an Independent Manager, providedthat such natural Person satisfies all othercriteriaset forthaboveandthat the fees such individual earns from serving as independent director or independent manager of Affiliates of Seller or in anygiven year constitute in the aggregate less than fivepercent (5%) of such individual’s annual income for that year.A natural Person who satisfies the foregoing definition other than clause(a)(ii)shall not be disqualified from serving as an Independent Manager if such individual is a Professional Independent Manager and such individual complies with the requirements of the previous sentence.
“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“Joint Maximum Facility Purchase Price Agreement” shall mean an agreement substantially in the form of Exhibit XIIhereto.
“Knowledge” shall mean, whenever in this Agreement or any of the Transaction Documents, or in anydocument or certificate executed on behalf of anySellerPartypursuant to theTransactionDocuments,referenceismadetotheknowledgeofanysuchSellerParty
(whether by use of the words “Knowledge”, “Know” or “Known”), unless otherwise expressly specified, same shall mean (a) the actual knowledge of the Chief Executive Officer, Chief FinancialOfficerorHeadofPortfolioOversightofSellerorGuarantoror(b)withrespecttoany representations, warranties, certifications or statements with respect to anyPurchased Asset, the actualknowledgeofthoseindividualemployeesofSellerorGuarantorhavingthetitleof“Lead” (or its equivalent) or above who have responsibility for the origination or acquisition, as applicable, underwriting, servicing or sale of such Purchased Asset.
“Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference,priorityorothersecurityagreementorpreferentialarrangementofanykindornature whatsoever (including, without limitation, anyconditional sale orothertitle retentionagreement and any financing lease having substantially the same economic effect as any of the foregoing), andthefilingofanyfinancingstatementundertheUCCorcomparablelawofanyjurisdictionin respect of any of the foregoing.
“Litigation Threshold” shall have the meaning specified in the Fee Letter. “MandatoryEarlyRepurchaseDate”shallhavethemeaningspecifiedinArticle3(i).
“Margin Amount” means, with respect to each Purchased Asset, the amount equal tothe product of the lesser of (x)the unpaid principal balance of such Purchased Asset and (y) the Market Value of such Purchased Asset, multiplied by the Purchase Price Percentage for such Purchased Asset specified in the related Confirmation.
“MarginCall”shallhavethemeaningspecifiedinArticle4(a).
“Margin Deficit” shall exist, with respect to any Purchased Asset, if (a) the Margin Amount for such Purchased Asset is less than (b) the outstanding Purchase Price for such Purchased Asset.
“Market Value” shall mean, with respect to any Purchased Asset, the market value for such Purchased Asset as determined by Purchaser in its sole and absolute discretion (x) in connection with the purchase of such Purchased Asset and (y)upon the occurrence and during thecontinuanceof aCreditEvent;provided,however,thatPurchasershallnotdetermineMarket Value based on fluctuations in credit spreads or the capital markets; provided, further, that if a third-partyappraisal or valuation of the related Mortgaged Propertyshall havebeen delivered to Purchaser pursuant to Article 4(a), such Market Value will be determined in accordance with such appraisal or valuation, as applicable, provided that such appraisal or valuation is satisfactory to Purchaser in its sole and absolute discretion.Without limiting the foregoing, the MarketValueshallbedeemedtobezerowithrespecttoanyPurchasedAsset(i)thatisnot,asof its Purchase Date, an Eligible Asset, (ii) that is, or becomes, a Defaulted Asset, (iii) in respect of which there is a breach of any representation and warrantymade byanySeller Party(other than anybreach of a representation or warrantyarisingas a result of anyPurchased Asset becoming a Defaulted Asset, any MTM Representation or to the extent disclosed in aRequested Exceptions Report specifically approved by Purchaser in writing), (iv)in respect of which the complete PurchasedAssetFilehasnotbeendeliveredtoCustodianoranyportionthereofremains
outstanding in violation of the Custodial Agreement, or (v)thathasnotbeen repurchased onthe applicable Repurchase Date, in each case, as determined by Purchaser in its sole and absolute discretion.
“MaterialAdverseEffect”shallmeanamaterialadverseeffecton(a)theproperty, business,financialcondition,assets,resultsofoperationsofanySellerParty,takenasawhole,
(b)theabilityofanySellerPartyorGuarantortoperformitsobligationsunderanyofthe TransactionDocuments,(c)thevalidityorenforceabilityofanyoftheTransactionDocumentsor
(d) the rights and remedies of Purchaser under anyof the Transaction Documents, in each case, as determined by Purchaser in its sole and absolute discretion.
“Maximum Facility Purchase Price” shall have the meaning specified in the Fee Letter. “MaximumPurchasePrice”shallmean,withrespecttoanyPurchasedAssetonanydate,
an amount (expressed in Dollars) equal to the product obtained by multiplying the applicable Purchase Price Percentage set forth in the related Confirmation, by the lesser of (x)the unpaid principal balance of such Purchased Asset and (y)the Market Value of such Purchased Asset, providedthat, for any Purchased Asset that is comprised of a Mortgage Loan and a related Mezzanine Loan, the Maximum Purchase Price shall not exceed the unpaid principalbalanceof the Mortgage Loan.
“Mezzanine Loan” shall mean a whole mezzanine loan that is primarily secured by a pledge of all of the equity interests in the entity or entities that own, directly or indirectly, the MortgagedPropertysecuringtherelatedMortgageLoan.WithrespecttoeachMezzanineLoan,
(y)adefaultundertherelatedMortgageLoanshallberequiredtoconstituteadefaultundersuch Mezzanine Loan and (z) the related Mortgage Loan and such Mezzanine Loan must be coterminous.
“Mortgage”shallmeanamortgage,deedoftrust,deedtosecuredebtorotherinstrument, creatingavalidandenforceablefirstLienonorafirstpriorityownershipinterestinanestatein
(i)fee simple in real property and the improvements thereon or (ii)a ground lease, securing a Promissory Note or similar evidence of indebtedness.
“MortgageLoan”shallmeanawholemortgageloanthatissecuredbyafirstLienonone or more commercial or multi-family properties.
“Mortgaged Property” shall mean, in the case of (a)a Mortgage Loan, the mortgaged propertysecuringsuchMortgageLoan;(b)aMezzanineLoan,themortgagedpropertyindirectly securingsuchMezzanineLoanand(c)aParticipationInterest,themortgagedpropertydirectlyor indirectly securing the Mortgage Loan and/or Mezzanine Loan in which such Participation Interest represents a participation, as applicable.
“MTMRepresentation”shallmean:
(i) withrespecttoeachMortgageLoanthat(x)constitutes aPurchasedAsset or (y) is related to a Purchased Asset that is a Senior Participation Interest or a Senior Note, (A) the representations set forth in the following paragraphs of Exhibit V.B.: the representationssetforthinthefollowingparagraphsofExhibitV.B.:Paragraph11
(Condition of Property), Paragraph 12 (Taxes and Assessments), Paragraph 14 (Actions Concerning Mortgage Loan), Paragraph 15 (Escrow Deposits), Paragraph 18 (Access; Utilities; Separate Tax Lots), Paragraph 19 (No Encroachments), Paragraph 25 (Local Law Compliance), Paragraph 26 (Licenses and Permits), Paragraph 35(f) (Ground Leases, provided that no such breach results in a termination of any applicable ground lease), Paragraph 36 (Servicing), Paragraph 37 (Origination and Underwriting), Paragraph 39 (No Material Default; Payment Record) and Paragraph 42 (Environmental Conditions);
(ii) with respect to each Mezzanine Loan that (x) constitutes a Purchased Asset or (y) is related to a Purchased Asset that is a Senior Participation Interest or a Senior Note, the representations and warranties set forth in the following paragraphs of ExhibitV.C.:Paragraph 1(WholeLoans)(solelywithrespecttothelastsentencethereof as it relates to the representations and warranties set forth in clause(i)above),Paragraph 7 (Actions Concerning Mezzanine Loan), Paragraph 8 (Escrow Deposits), Paragraph 16 (Servicing),Paragraph17(OriginationandUnderwriting)andParagraph18(NoMaterial Default; Payment Record);
(iii) with respect to each Purchased Asset that is a Senior Note, the first sentenceoftherepresentationandwarrantysetforthinExhibitV.D.solelyasitrelatesto therepresentationsandwarrantiessetforthinclause(i)and(ii)above,asapplicable;and
(iv) withrespecttoeachPurchasedAssetthatisaSeniorParticipationInterest, the representations and warranties set forth in the following paragraphs of Exhibit V.E.: Paragraph 1 (Mortgage Loan/Mezzanine Loan) (solelyas it relates to the representations and warranties set forth in clause (i) and (ii) above, as applicable), Paragraph 7 (No Defaults or Waivers under Participation Documents), and Paragraph 9 (No Known Liabilities).
“Multiemployer Plan” shall mean a multiemployer plan defined as such in Section3(37) of ERISA to which contributions have been, or were required to have been, made by Seller or any ERISA Affiliate and that is covered by Title IV of ERISA.
“Netting Agreement” shall mean the Global Netting Agreement, which may be entered into after the date of this Agreement, by and between Purchaser and Seller, and which shall be mutually and reasonably acceptable to Seller and Purchaser, as the same may be amended, modified and/or restated from time to time, and/or any replacement agreement and which shall be mutually and reasonably acceptable to Seller and Purchaser.
“Office Asset” shall mean an Asset that is secured by a Mortgaged Property consisting primarily of an office property.
“Originator” shall mean CLR RE Lending Sub, LLC, a Delaware limited liability company, and its successors-in-interest.
“OriginatorFinancingStatement”shallhavethemeaningspecifiedinArticle3(b).
“OtherConnectionTaxes”means,withrespecttoPurchaser,Taxesimposedasaresultof a present or former connection between Purchaser and the jurisdiction imposing such Tax (other than connections arising from such Purchaser having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Transaction Document, or sold or assigned an interest in any Transaction Document).
“Other Taxes” shall mean any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that may arise from any payment made under any Transaction Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Transaction Document, except (i) any such Taxes that are Other Connection Taxesimposedwithrespect toanassignment,transferorsaleofparticipation orotherinterest in or with respect to the Transaction Document and (ii) for the avoidance of doubt, any Excluded Taxes.
“ParticipantRegister”shallhavethemeaningspecifiedinArticle20(d).
“Participation Certificate” shall mean the original participation certificate, if any, that was executed and delivered in connection with a Participation Interest.
“ParticipationInterest”shallmeanaparticipationinterestinaMortgageLoan.
“Person”shallmean anindividual, corporation,limitedliabilitycompany,businesstrust, partnership, joint tenant or tenant-in-common, trust, joint stock company, joint venture, unincorporated organization, or any other entity of whatever nature, or a Governmental Authority.
“Plan” shall mean an employee benefit plan established or maintained by Seller or any ERISAAffiliateduringthefiveyearperiodendedpriortothedateofthisAgreementortowhich Seller or any ERISA Affiliate makes, is obligated to make or has, within the five year period ended prior to the date of this Agreement, been required to make contributions, in anycase, that
iscoveredbyTitleIVofERISAorSection302ofERISAorSection412oftheInternalRevenue Code, other than a Multiemployer Plan.
“Pledge Agreement” shall mean that certain Originator Pledge and SecurityAgreement, dated as of the Closing Date, from Originator in favor of Purchaser, in form and substance acceptable to Purchaser, as the same may be amended, modified and/or restated from time to time, and/or any replacement agreement.
“Pledged Collateral” shall have the meaning specified in the Pledge Agreement. “PRA Contractual Stay Rules” shall have the meaning specified in Article 30(b). “Pre-PurchaseDueDiligence”shallhavethemeaningspecifiedinArticle3(c)(iv).
“Pre-PurchaseDueDiligenceReviewFee”shallhavethemeaningspecifiedintheFee
Letter.
“Pricing Rate” shall mean, for any Transaction and Pricing Rate Period, an annual rate equal to the sum of (a) the greater of (x) the applicable Benchmark Floor for such Transaction and (y) the applicable Benchmark for such Transaction and Pricing Rate Period plus (b) the applicable Spread for such Transaction, which shall be subject to adjustment and/or conversion as provided in Articles 6(a)(i)and 6(b).
“Pricing Rate Determination Date” shall mean, with respect to any Pricing Rate Period and(i)anyTransactionforwhichTermSOFRisthethen-currentBenchmark,thesecond(2nd)
U.S.GovernmentSecuritiesBusinessDayprecedingthefirstdayof suchPricingRatePeriodor
(ii)any Transaction for which Term SOFR is not the then-current Benchmark, the second (2nd) Business Day preceding the first day of such Pricing Rate Period or such other day as may be determinedbyPurchaserinaccordancewiththeBenchmarkReplacementConformingChanges.
“Pricing Rate Period” shall mean, with respect to any Transaction and any Remittance Date (a) in the case of the first PricingRate Period, the period commencingon and includingthe PurchaseDateforsuchTransactionandendingonandexcludingthefollowingRemittanceDate, and (b) in the case of any subsequent Pricing Rate Period, the period commencing on and including the immediately preceding Remittance Date and ending on and excluding the followingRemittanceDate;provided,however,thatinnoeventshallanyPricingRatePeriodfor a Purchased Asset end subsequent to the Repurchase Date for such Purchased Asset (or such later date on which the Purchased Asset is actually repurchased).
“Principal Payment” shall mean, with respect to any Purchased Asset, any payment or prepayment of principal received or allocated as principal in respect thereof.
“Prohibited Person” shall mean (i)a person or entitywhose name appears on, is directly or indirectly owned or controlled by anyone appearing on the list of Specially Designated Nationals and Blocked Persons by the Office of Foreign Asset Control (“OFAC”) or other applicable Sanctions list, (ii)any foreign shell bank, (iii)any person or entity resident in or whose subscription funds are transferred from or through an account in a jurisdiction that has been designated as a non-cooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering (“FATF”), of which the U.S. is a member and with which
designation the U.S. representative to the group or organization continues to concur, and (iv) a person or entitythat is located, organized or resident in a country or territory that is, or whose government is, the target of Sanctions.
“Prohibited Transferee” shall mean any of the parties (or any of their respective Affiliates) listed on Exhibit XIhereto.
“Promissory Note” shall mean a note or other evidence of indebtedness of a Borrower under a Mortgage Loan or Mezzanine Loan.
“Purchase Date” shall mean, with respect to any Purchased Asset, the date on which Purchaser purchases such Purchased Asset from Seller hereunder.
“Purchase Price” shall mean, with respect to any Purchased Asset, the price at which such Purchased Asset is transferred by Seller to Purchaser on the applicable Purchase Date, increased by any Purchase Price increase paid by Purchaser to Seller pursuant to Article3(h)or otherwise, decreased by (a)the portion of anyPrincipal Payments on such Purchased Asset that is applied pursuant to Article5to reduce the Purchase Price for such Purchased Asset, (b)any amounts applied to reduce thePurchasePrice of thePurchased Asset pursuant to Article4(a)on account of a Margin Call and (c)any other amounts paid applied by Purchaser to reduce the Purchase Price for the Purchased Asset.The Purchase Price as of the Purchase Date for any Purchased Asset shall be set forth in the Confirmation for the related Transaction and shall be equal to the Maximum Purchase Price with respect to such Purchased Asset as of its Purchase Date, provided that for any Purchased Asset that is a Combined Loan, the Purchase Price as of its purchase date shall not exceed the lesser of (x) the unpaid principal balance of the related Mortgage Loan and (y)theMarket ValueofsuchMortgage Loan,provided,however,Purchaser may approve any request by Seller to increase the Purchase Price of any Purchased Asset in connection with a future advance made bySeller with respect to such Purchased Asset.
“Purchase Price Differential” shall mean, with respect to any Purchased Asset as of any dateofdetermination,theamountequaltotheproductof(a)theapplicablePricingRateforsuch Purchased Asset and (b) the daily outstanding Purchase Price of such Purchased Asset, calculated on the basis of a 360-day year and the actual number of days during the period commencing on (and including) the Purchase Date forsuchPurchased Asset and endingon (but excluding) the related Repurchase Date (or such later date on which the Purchased Asset is actually repurchased) for such Purchased Asset (reduced by any amount of such Purchase Price Differential previously paid by Seller to Purchaser with respect to such Purchased Asset) and shall bepayable in arrears monthlyon eachRemittance Date or theapplicableRepurchaseDate, whichever is earlier.
“Purchase Price Percentage” shall have the meaning specified in the Fee Letter. “PurchasedAsset”shallmean(a)withrespecttoanyTransaction,theEligibleAssetsold
bySellertoPurchaserinsuchTransactionand(b)withrespecttotheTransactionsingeneral,all Eligible Assets sold by Seller to Purchaser (other than Purchased Assets that have been repurchased by Seller).Any Purchased Asset that is repurchased by Seller in accordance with thisAgreementshallceasetobeaPurchasedAsset.Unlessotherwisespecified,anyreferenceto
a Purchased Asset which is a Mortgage Loan shall include the Mortgage Loan and any related Mezzanine Loan, if any, that is subject to the same Transaction.
“Purchased Asset Documents” shall mean, with respect to a Purchased Asset, the documents comprising the Purchased Asset File for such Purchased Asset until its release pursuant to Article 7(b).
“PurchasedAssetFile”shallmeanthedocumentsspecifiedasthe“PurchasedAssetFile” in theCustodialAgreement,together with anyadditional documents and information required to be delivered to Purchaser or its designee (including the Custodian) pursuant to this Agreement and/or the Custodial Agreement; providedthat to the extent that Purchaser waives in writing receipt of any document in connection with the purchase of an Eligible Asset (but not if Purchasermerely agreestoacceptdelivery of suchdocumentafter the relatedPurchase Date),
such document shall not be a required component ofthePurchased Asset Fileuntilsuchtime as Purchaser determines in good faith that such document is necessary or appropriate for the servicing of the applicable Purchased Asset.
“Purchased Asset File Checklist”: shall have the meaning specified in the Custodial Agreement.
“Purchased AssetSchedule”shall mean,withrespect toanyPurchasedAsset, aschedule attached to the related Confirmation containing information substantially similar to the Asset Information.
“Purchased Items” shall mean all of Seller’s right, title andinterest in, to andunder each of the following items of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located:
(i) thePurchasedAssets;
(ii) the Purchased Asset Documents, the Servicing Rights, the Servicing Agreement, the Servicing Records, mortgage guaranties, mortgage insurance, insurance policies, insurance claims, collection and escrow accounts, and letters of credit, in each case, relating to the Purchased Assets;
(iii) intentionallyomitted;
(iv) all related forward trades and takeout commitments placed on the Purchased Assets to the extent such forward trades and takeout commitments are permitted to be transferred without consent of the applicable counterparty;
(v) all Income relating to the sale, securitization, liquidation or other disposition of the Purchased Assets;
(vi) all “general intangibles”, “accounts”, “chattel paper”, “investment property”,“instruments”,“securitiesaccounts”and“depositaccounts”,eachasdefinedin the UCC, relating to or constituting anyand all of the foregoing; and
(vii) all replacements, substitutions or distributions on or proceeds, payments, Income and profits of, and records (but excluding any financial models or other proprietaryinformation) and files relating to anyand all of anyof the foregoing.
“Purchaser” shall have the meaning specified in the introductory paragraph hereof. “QualifiedTransferee”shallmeananycommercialbank,savingsbank,savingsandloan
association,trustcompany,commercialcreditcorporation,pensionplan,pensionfundorpension advisory firm, mutual fund, governmental entity or plan; provided, that, any entity described above has total combined assets of at least $500,000,000.
“Record Holder” shall mean, the holder of anyPromissoryNote or Participation Interest, totheextentthatsuchholderisthelenderofrecord(including,withoutlimitation,themortgagee
orpledgee,asapplicable,ofrecord)withrespecttotherelatedMortgageLoanand/orMezzanine Loan pursuant to the related co-lender agreement, participation agreement or intercreditor agreement.
“RecourseIndebtedness”shallmean,foranyPersononanydate,withoutduplication,the indebtednessofsuchPerson(anditsSubsidiaries)forwhichsuchPerson(anditsSubsidiaries)is directly responsible or liable as obligor or guarantor (excluding obligations arising by reason of customary recourse carve-outs under a non-recourse instrument, including, but not limited to, fraud, misappropriation and misapplication, and environmental indemnities).
“Reference Time” shall mean, with respect to anysetting of the then-current Benchmark for each Pricing Rate Period, (a) if such Benchmark is Term SOFR, 3:00 p.m. (New York City time) on the applicable Pricing Rate Determination Date and (b) ifsuch Benchmark is not Term SOFR, then the time determined by Purchaser in accordance with the Benchmark Replacement Conforming Changes.
“Register”shallhavethemeaningspecifiedinArticle20(c).
“Release Letter” shall mean a letter substantially in the form of Exhibit IXhereto (or such other form as may be acceptable to Purchaser).
“Relevant Governmental Body” shall mean the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York or any successor thereto.
“Remittance Date” shall mean the fifteenth (15th) calendar day of each month, or the immediatelysucceeding Business Day,ifsuchcalendardayshallnotbeaBusinessDay,orsuch other day as is mutually agreed to by Seller and Purchaser.
“Repurchase Date”shall mean, with respect to anyPurchasedAsset, theearliest tooccur of (a) the maturity date of such Purchased Asset; (b)the Early Repurchase Date with respect to such Purchased Asset; (c)the MandatoryEarlyRepurchase Date with respect tosuchPurchased Asset; (d)the Accelerated Repurchase Date; (e)the repurchase date set forth in the related Confirmation (solelyto the extent suchConfirmation sets forth arepurchasedateotherthan“As defined in the Agreement” or other words of substantially similar meaning); or (f)the Termination Date.
“RepurchaseObligations”shallhavethemeaningspecifiedinArticle7(a).
“Repurchase Price” shall mean, with respect to any Purchased Asset as of any Repurchase Date or any date on which the Repurchase Price is required to be determined hereunder, thepriceatwhichsuchPurchasedAsset is to betransferredfromPurchasertoSeller; such price will be determined in each case as the sum of (i) the outstanding Purchase Price of such Purchased Asset as of such date; (ii) the accrued and unpaid Purchase Price Differential with respect to such Purchased Asset as of such date (other than, with respect to calculations in connection with the determination of a Margin Deficit, accrued and unpaid Purchase Price Differential for the current Pricing Rate Period); (iii) all accrued andunpaid actual,documented
and reasonable out-of-pocket costs and expenses (including, without limitation, any applicable BreakageCosts)ofPurchaserrelatingtosuchPurchasedAssets;and(iv)anyotheramountsthen dueandpayablebySellertoPurchaseranditsAffiliatespursuanttothetermsoftheTransaction Documents as of such date.
“Requested Exceptions Report” shall have the meaning specified in Exhibit VIIhereto. “RequirementofLaw”shallmeananyapplicablelaw,treaty,rule,regulation,code,
directive, policy, order or requirement or determination of an arbitrator or a court or other Governmental Authority whether now or hereafter enacted or in effect.
“ResponsibleOfficer”shallmeananyexecutiveofficerofSeller.
“Retention Holder” shall have the meaning ascribed to it in the Risk Retention Letter. “RiskRetentionEvent”shallmeanabreachbyRetentionHolderorSellerofany
covenant,representation,undertakingorobligationcontainedintheRiskRetentionLetter.
“RiskRetentionLetter”shallmeanthatcertainEU/UKRiskRetentionLetter,datedasof the Closing Date, from Retention Holder and Seller to Purchaser.
“Sanctions” shall mean, collectively, anysanctions administered or enforced bythe U.S. TreasuryDepartmentOfficeofForeignAssetControl(OFAC),theU.S.DepartmentofState,the
U.S. Department of Commerce, the United Nations Security Council, the European Union, the United Kingdom or any other relevant sanctions authority.
“SEC”shallhavethemeaningspecifiedinArticle24(a).
“Securitisation Regulations” shall mean the EU Securitisation Regulation and the UK Securitisation Regulation, and references to “each Securitisation Regulation” or “either Securitisation Regulation” shall be construed accordingly.
“Security Agent and Subordination Agreement” shall mean that certain Security Agent and Subordination Agreement, dated as of the Closing Date, by and among Purchaser, as purchaser and securityagent, Subordinate Lender, as subordinate lender, and Seller, as common obligor, pursuant to which, among other things, the rights of Subordinate Lender are subordinated to the rights of Purchaser.
“Seller”shallhavethemeaningassignedtheretointheintroductoryparagraphhereof. “Seller Financing Statement” shall have the meaning specified in Article 3(b).
“Seller Party”shall mean, collectively or individually, as the context mayrequire, Seller and Guarantor.
“Senior Note” shall mean a Promissory Note evidencing a senior or pari passu senior positioninaMortgageLoan;providedthattheholderofanyparipassuSeniorNoteisthe
RecordHolderandtheControllingHolder. ASeniorNoteshallnotbejuniortoanyother Promissory Note secured by the same Mortgaged Property.
“Senior Participation Interest” shall mean a senior or pari passu senior Participation Interest in aMortgage Loan or acombination of aMortgageLoanandarelated MezzanineLoan evidenced by a Participation Certificate; providedthat the holder of any pari passu Senior Participation Interest is the Record Holder and the Controlling Holder.A Senior Participation Interest shall not be junior to anyother participation interest or PromissoryNotesecured directly orindirectlybythesameMortgagedProperty(provided,fortheavoidanceofdoubt,thataSenior Note in a Mezzanine Loan shall not be deemed junior to a Senior Note in the related Mortgage Loan as a result of the subordination of the Mezzanine Loan to the Mortgage Loan).
“Servicer” shall mean Trimont LLC, or anysuccessor servicer approved byPurchaser in its sole and absolute discretion, provided that Midland Loan Services shall be an approved successor servicer herein.
“ServicerLetter”shallhavethemeaningspecifiedinArticle29(e).
“Servicing Agreement” shall mean (i)that certain Servicing and Asset Management Agreement,dated as of April13,2020, byandbetweenTrimont LLC(f/k/aTrimontRealEstate Advisors, LLC), CIM Lending Services, LLC, Seller and such other parties that are joined thereto as clients from time to time, as amended by that certain First Amendment to Servicing and Asset Management Agreement, dated as of May 8, 2023, and (ii) any other servicing agreement, in form and substance acceptable to Purchaser in its sole and absolute discretion, entered into by Seller and any Servicer, in each case, as the same may be amended, modified and/or restated from time to time, and/or any replacement servicing agreement acceptable to Purchaser in its sole and absolute discretion.
“ServicingRecords”shallhavethemeaningspecifiedinArticle29(f).
“Servicing Rights” shall mean rights of anyPerson, to administer, service or subservice, the Purchased Assets or to possess related Servicing Records.
“SignificantModification”shallmean:
(i) any modification, consent to a modification or waiver of any monetary term or material non-monetary term (including, without limitation, prepayment terms, timing of payments and acceptance of discounted payoffs, but excluding waivers of late fees and default interest (provided, however, that any such waiver in excess of two (2) instances with respect to any individual Purchased Asset during the term of such
Purchased Asset shall be considered a Significant Modification hereunder)) of a Purchased Asset (or related Mortgage Loan or Mezzanine Loan, as applicable) or any extension of the maturity date of such Purchased Asset (or related Mortgage Loan or Mezzanine Loan, as applicable), other than (A) if required pursuant to thespecificterms of the related Purchased Asset (or related Mortgage Loan or Mezzanine Loan, as applicable) and (B) for which there is no material lender discretion;
(ii) any release of collateral or any acceptance of substitute or additional collateral for a Purchased Asset (or related Mortgage Loan or Mezzanine Loan, as applicable) or any consent to either of the foregoing, other than (A) if required pursuant to the specific terms of the related Purchased Asset Documents (or related Mortgage Loan or Mezzanine Loan, as applicable) and (B) for which there is no material lender discretion(itbeingacknowledgedthatSeller’srighttocalculatethedebtservicecoverage ratio, debt yield, loan to value ratio or other similar financial tests (but not the waiver or modification of any such tests) shall not be considered material lender discretion for purposes of this clause (ii));
(iii) any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to a Purchased Asset (or related Mortgage Loan or Mezzanine Loan, as applicable) or, if lender consent is required, anyconsent to such a waiveror consent to a transfer of a Mortgaged Property or interests in the related Borrower or consent to the incurrence of debt, other than anysuch transfer or incurrence of debt as maybe effected without the consent of the lender under the related Purchased Asset Documents;
(iv) any acceptance of an assumption agreement releasing a Borrower from liability under a Purchased Asset (or related Mortgage Loan or Mezzanine Loan, as applicable) other than (A)pursuant to the specific terms of such Purchased Asset (or related Mortgage Loan, as applicable) and (B)for which there is no material lender discretion;
(v) any foreclosure or exercise of any material remedies under a Purchased Asset (or related Mortgage Loan or Mezzanine Loan, as applicable); and
(vi) any approval of a major lease for which lender consent is required pursuant to the related Purchased Asset Documents.
Provided that, notwithstanding the foregoing, releases of escrows and reserves in accordancewiththeapplicablePurchasedAssetDocuments,andconsentswithrespecttoleases, easements and/or REAs shall not constitute Significant Modifications.
“SIPA”shallhavethemeaningspecifiedinArticle24(a).
“SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’sWebsite”shallmeanthewebsiteoftheFederalReserveBankof New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SpecifiedChangeofControlEvent”shallhavethemeaningspecifiedintheFeeLetter.“Spread” shall have the meaning specified in the Fee Letter.
“Sub-Limit”shallhavethemeaningspecifiedintheFeeLetter.
“Subordinate Lender” shall mean Originator, in its capacity as lender under the Subordinated Facility Agreement.
“Subordinate Loan” shall mean an advance to Seller from Subordinate Lender under the Subordinated Facility Agreement (and such advances collectively being the “SubordinateLoans”).
“Subordinated Facility Agreement” shall mean that certain Subordinated Facility Agreement, dated as of the Closing Date, among Seller as borrower and Subordinate Lender as lender whereby Subordinate Lender has made provision for the Subordinate Loans to be advanced to Seller under the terms thereof.
“Subordinated Facility Documents” shall mean, collectively, the Subordinated Facility Agreement, any related promissory notes evidencing the Subordinate Loan and all other documents executed in connection with the Subordinated Facility Agreement.
“Subsidiary” shall mean, as to any Person, a corporation, partnership or other entity of which at least a majority of the shares of stock or other ownership interests having by the terms thereof ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directorsorothermanagersofsuchcorporation,partnershiporotherentityareatthetimeowned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiaryor Subsidiaries of Seller.
“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings(includingbackupwithholding),assessments,feesorotherchargesimposedbyany Governmental Authority, including anyinterest, additions to tax or penalties applicable thereto.
“Term SOFR” shall mean, with respect to each PricingRate Period, the forward-looking term rate based on the secured overnight financing rate (“Term SOFR Reference Rate”) for a tenor comparable to such Pricing Rate Period on the related Pricing Rate Determination Date (expressed as a percentage per annum and rounded upward, if necessary, to the next nearest 1/1000 of 1%), as such rate is published by CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected byPurchaser in its sole discretion) (the “Term SOFR Administrator”) as of the related Reference Time;provided, however, that if as of the related Reference Time, the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator, then the Term SOFRReferenceRateshallbetheTermSOFRReferenceRateforsuchtenoraspublishedbythe Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not
more than three(3) U.S. Government Securities Business Days prior to such Pricing Rate DeterminationDate.Notwithstandingtheforegoing,ifany settingofTermSOFRasprovided
above would result in such setting being less than the applicable Benchmark Floor, such setting of Term SOFR shall instead be deemed to be such Benchmark Floor.
“TerminationDate”shallmeanthelaterof(i)thedateoftheexpirationofthe AvailabilityPeriod or (ii) or such later date as maybe in effect pursuant to Article 3(g).
“Termination Date Extension Fee” shall have the meaning specified in the Fee Letter. “TitleInsurer”shallmeananationallyrecognizedtitleinsurancecompanyqualifiedtodo
businessinthejurisdictionwheretheapplicableMortgagedPropertyislocated.
“Title Policy” shall mean an American Land Title Association (ALTA) lender’s title insurance policy or a comparable form of lender’s title insurance policy (or escrow instructions binding on the Title Insurer and irrevocably obligating the Title Insurer to issue such title insurance policy, a title policy commitment or pro-forma “marked up” at the closing of the related Purchased Asset and countersigned by the Title Insurer or its authorized agent) as adopted in the applicable jurisdiction and, if applicable, a mezzanine endorsement thereto.
“Transaction”shallmeanaTransaction,asspecifiedinArticle1.
“Transaction Documents” shall mean, collectively, this Agreement, any applicable Exhibits to this Agreement, the Fee Letter, the Guaranty, the Custodial Agreement, the Servicer Letter, the Account Control Agreement, the Pledge Agreement, the Netting Agreement, if any, the SecurityAgent andSubordination Agreement, theRiskRetention Letter, thethen-applicable Joint Maximum Facility Purchase Price Agreement (if any), the Fee Credit Side Letter Agreement, all Confirmations and assignment documentation executed pursuant to this Agreement in connection with specific Transactions, and all other documents executed in connection with this Agreement or any Transaction, each of the foregoing as they may be amended, restated, supplemented or modified from time to time; provided, however, that TransactionDocumentsshallnotincludeanydocumentdefinedasaPurchasedAssetDocument.
“TrustReceipt”shallhavethemeaningspecifiedintheCustodialAgreement. “UCC” shall have the meaning specified in Article 7(b).
“UCC Filing Jurisdiction” shall mean, (a)with respect to Seller, the State of Delaware, and (b) with respect to Originator, the State of Delaware.
“UCC Financing Statement” shall mean, individually or collectively as the context may require, the Seller Financing Statement and the Originator Financing Statement.
“UK Securitisation Regulation” shall mean Regulation (EU) 2017/2402 in the form in effect on 31 December2020 which forms part of United Kingdomdomesticlawbyvirtueofthe European Union (Withdrawal) Act 2018, as amended by the Securitisation (Amendment) (EU Exit) Regulations 2019 of the United Kingdom and as further amended, varied or substituted
from time to time as a matter of United Kingdom law, including (i) any technical standards thereunderasmay beeffectivefromtime totime and(ii)any guidance relating theretoasmay
fromtimetotimebepublishedbytheUKFinancialConductAuthorityand/ortheUKPrudential Regulation Authority (or, in each case, any successor).
“UnderwritingIssues”shallmean,withrespecttoanyPurchasedAssetastowhichSeller intends to request a Transaction, all material information that is Known to Seller after making reasonable inquiries and exercising reasonable care and diligence that (i)would be considered a materially“negative”factor(eitherseparatelyorintheaggregatewithotherinformation)or(ii)a defect in loan documentation or closing deliveries (such as any absence of anyPurchased Asset Document(s)).
“Unrestricted Cash”:As of any date of determination, all cash held by Seller and/or Guarantor, as applicable, at such time in excess of all amounts (i) required to be held by Seller and/or Guarantor pursuant to this Agreement or the Guaranty, (ii) necessaryto be held bySeller and/or Guarantor in order to satisfy the financial covenants set forth in the Transaction Documents and (iii) encumbered or allocated to the payment of other obligations, including fundings for Promissory Notes, Participation Interests and other related assets.
“U.S. Government Securities Business Day” shall mean, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association, or any successor thereto, recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” shall mean any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“Wet Purchased Asset” shall mean an Eligible Asset whichSeller issellingtoPurchaser simultaneously with the origination thereof and for which the related Purchased Asset File has not been delivered to Custodian.
ThetermsdefinedinthisAgreementhavethemeaningsassignedtotheminthisAgreement and include the plural as well as the singular, and the use of anygender herein shall be deemed to include the other gender.All references to articles, schedules and exhibits are to articles, schedules and exhibits in or to this Agreement unless otherwise specified.The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreementshall refer to this Agreement as a whole and not to any particular provision of this Agreement. The term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.”The term “include” or “including” shall mean without limitation by reason of enumeration. Allaccountingtermsnotspecificallydefinedhereinshallbeconstruedinaccordance with generally accepted accounting principles.References to “good faith” in thisAgreement shall mean “honestyin fact in the conduct or transaction concerned”.
ARTICLE 3
INITIATION;CONFIRMATION;TERMINATION;EXTENSION
(a) Entry into Transactions.During the Availability Period, upon the satisfaction of all conditions set forth in Article3(b)for the initial Transaction and Article 3(c)for each
Transaction (including the initial Transaction), the related Eligible Asset shall be transferred to Purchaser against the transfer of the Purchase Price therefor to an account of Seller.Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction covered thereby.In the event of any conflict between the terms of such Confirmation and the terms of this Agreement, the Confirmation shall prevail.
(b) Conditions Precedent to Initial Transaction.Purchaser’s agreement to enter into theinitialTransactionissubjecttothesatisfaction,immediatelypriortoorconcurrentlywiththe making of such Transaction, of the following conditions precedent to the satisfaction of Purchaser and its counsel in their sole and absolute discretion:
(i) DeliveryofDocuments. Thefollowingdocuments,shallhavebeen delivered to Purchaser:
(A) thisAgreement,dulycompletedandexecutedbyeachofthe parties hereto;
(B) the Fee Letter, dulycompleted and executedbyeachoftheparties thereto;
(C) theCustodial Agreement,dulycompleted and executedbyeachof the parties thereto;
(D) the Account Control Agreement, duly completed and executed by each of the parties thereto;
(E) the Guaranty, duly completed and executed by each of the parties thereto;
(F) the ServicingAgreement,dulycompleted and executedbyeachof the parties thereto;
(G) the Servicer Letter, duly completed and executed by each of theparties thereto;
(H) thePledgeAgreement,dulycompletedandexecutedbyeachofthe parties thereto;
(I) reserved;
(J) anyandallconsentsandwaiversapplicabletoSellerortothe Purchased Assets;
(K) apowerofattorneyfromSellersubstantiallyintheformof Exhibit IVhereto, duly completed and executed;
(L) a UCC financing statement for filing in the UCC Filing Jurisdiction of Seller, naming Seller as “Debtor” and Purchaser as “Secured Party” anddescribing as “Collateral” “All assets ofSeller whethernowowned or hereafter acquired, now existing or hereafter created or arising and wherever located, including all accessions thereto and products and proceeds thereof” (the “Seller Financing Statement”);
(M) a UCC financing statement for filing in the UCC Filing Jurisdiction of Originator, naming Originator as “Debtor” and Purchaser as
“Secured Party” and describing as “Collateral” all of the items set forth in the definition of Pledged Collateral (the “Originator Financing Statement”);
(N) opinions of outside counsel to the Seller Parties in form and substance acceptable to Purchaser (including, but not limited to, those relating to corporatematters, enforceability, applicabilityoftheInvestmentCompanyActof 1940, security interests and Bankruptcy Code safe harbors);
(O) for each Seller Party, a good standing certificate dated within twenty (20) calendar days prior to the Closing Date, certified true, correct and complete copies of organizational documents and certified true, correct and complete copies of resolutions (or similar authority documents) with respect to the execution, delivery and performance of the Transaction Documents and each other document to be delivered by such party from time to time in connection herewith;
(P) theSubordinatedFacilityAgreement,dulycompletedandexecuted by each of the parties thereto;
(Q) the SecurityAgent and Subordination Agreement, dulycompleted and executed by each of the parties thereto;
(R) theRiskRetentionLetter,dulycompletedandexecutedbyeachof the parties thereto;
(S) amemorandumbyMayerBrownLLPinrespectoftheapplication of certain requirements set out in the Securitisation Regulations, duly completed and executed by each of the parties thereto; and
(T) all such other and further documents and documentation as Purchaser shall require.
(ii) Reimbursement of Costs and Expenses.Seller shall have paid, or reimbursed Purchaser for, all reasonable and documented out-of-pocket expenses, including but not limited to reasonable legal fees of outside counsel and reasonable and due diligence fees, actually incurred by Purchaser in connection with the development, preparation and execution of this Agreement, the other Transaction Documents and any other documents prepared in connection herewith or therewith.
(iii) Securitisation Regulations.Purchaser and Subordinate Lender shall have receivedconfirmationandevidencesatisfactorytoPurchaserandSubordinateLender
(i)that the requirements of Article 7(1)(b) of the Securitisation Regulation have been fulfilled and the pre-pricing drafts of this Agreement (together with any applicable AnnexesandExhibits),theGuaranty,theFeeLetter,theDepositAccountAgreement,the Custodial Agreement, the Servicing Agreement, the Account Control Agreement, the Subordinated Facility Agreement and the Security Agent and Subordination Agreement have been made available to Purchaser and Subordinate Lender and (ii) that the requirements of Article 7(1)(c) of the Securitisation Regulation have been fulfilled by, prior to the pricing date, the transaction summary specified in that Article having been prepared by Purchaser or their counsel and made available to Purchaser and Subordinate Lender.
(c) Conditions Precedent to All Transactions.Purchaser’s agreement to enter into each Transaction (includingtheinitial Transaction)issubjecttothesatisfactionofthefollowing further conditions precedent to the satisfaction of Purchaser, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(i) Maximum Facility Purchase Price.The sum of (A) the aggregate unpaid Purchase Price for all prior outstanding Transactions (excluding accrued and unpaid Purchase Price Differential for the then current Pricing Rate Period) and (B) therequestedPurchasePriceforthependingTransactionshallnotexceedanamountequalto the Maximum Facility Purchase Price.
(ii) Confirmation.Sellershallhave:
(A) nolessthanten(10)BusinessDayspriortotherequestedPurchase Date, given notice to Purchaser of the proposed Transaction;
(B) with respect to each Eligible Asset subject to the pending Transaction,deliveredtoPurchaserthedocumentsrequiredpursuantto Exhibit VIIhereto in accordance with the time frames set forth therein; and
(C) concurrentlywiththegivingofnoticeoftheproposedTransaction, paid to Purchaser the Pre-Purchase Due Diligence Review Fee with respect to each Eligible Asset proposed to be subject to the Transaction.
(iii) Deliveryto Custodian.Seller shall have delivered to Custodian, (A) with respecttoeachEligibleAssettobesoldtoPurchaser,theapplicablePurchasedAssetFile Checklist and Purchased Asset Schedule (as such term is defined in the Custodial Agreement) and (B) with respect to each Eligible Asset other than a Wet Purchased Asset, the related Purchased Asset File, in each case, in accordance with the procedures and time frames set forth in the Custodial Agreement.
(iv) Bailee Trust Receipt.With respect to any Wet Purchased Asset, the related Bailee shall have issued to Purchaser a Bailee Trust Receipt.
(v) Due Diligence Review.Purchaser shall have completed its due diligence investigation of the Eligible Assets subject to the pending Transaction and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Eligible Assets and, in accordance with Article28, each Seller Party, as Purchaserinitssoleandabsolutediscretiondeemsappropriatetoreviewandsuchreview shall be satisfactory to Purchaser in its sole and absolute discretion (the “Pre-PurchaseDue Diligence”) and has determined, in its sole and absolute discretion, to purchase any or all of the Eligible Assets proposed to be sold to Purchaser by Seller.Purchaser shall informSellerofitsdeterminationwithrespecttoanysuchproposedTransactionsolelyin accordance with Exhibit VIIhereto.
(vi) CountersignedConfirmation.SellershalldelivertoPurchaseranexecuted and completed confirmation substantially in the form of Exhibit IIhereto (a “Confirmation”),andPurchasershallhavedeliveredtoSelleracountersignedcopyofthe such Confirmation.The Confirmation shall be signed bya Responsible Officer of Seller;
provided, however, that Purchaser shall not be liable to Seller if Purchaser inadvertently acts on a Confirmation that has not been signed bya Responsible Officer of Seller.
(vii) No Default.No Default or Event of Default shall have occurred and be continuing or will occur as a result of the pending Transaction;
(viii) No Material Adverse Effect.No event shall have occurred and be continuing which has had a Material Adverse Effect.
(ix) Waiver of Exceptions.Purchaser shall have waived in writing all exceptions in the related Requested Exceptions Report, as evidenced by Purchaser’s execution of the Confirmation to which such Requested Exception Report is attached.
(x) Representations andWarranties.All representationsandwarrantiesmade byanySellerPartyintheTransactionDocuments(otherthanthosecontainedin Article10(w)relating to Purchased Assets subject to other Transactions, which shall be considered solely for the purpose of determining the Market Value and eligibility of the PurchasedAssetssubjecttootherTransactions,unlessSellershallhavemadeorrepeated anysuch representations and warranties with actual knowledge that theywere materially false at the time made or repeated) shall be true, correct and complete on and as of the Purchase Date for the pending Transaction with the same force and effect as if made on and as of such date (or, if anysuch representation or warrantyis expresslystated to have been made as of a specific date, as of such specific date).
(xi) Acknowledgement of Servicer.Purchaser shall have received from Servicer a written acknowledgement (which may be in the form of an email) that each Eligible Asset to be sold to Purchaser on such Purchase Date will be serviced in accordance with the Servicing Agreement as of such date, which acknowledgement may bedeemedtobesatisfiedbythedeliveryofaServicerLetterinaccordancewith Article 29(e)hereof.
(xii) No Unsatisfied Margin Call.No unsatisfiedMarginCallshall exist, after giving effect to the requested Transaction.
(xiii) Receipt of Trust Receipt.Other than with respect to any Wet Purchased Asset, Purchaser shall have received from Custodian on each Purchase Date a Trust Receipt accompanied by an Asset Schedule and Exception Report (as defined in the Custodial Agreement) with respect to each Eligible Asset to be sold to Purchaser, dated as of or prior to the Purchase Date, duly completed and with exceptions acceptable to PurchaserinitssolediscretioninrespectofEligibleAssetstobepurchasedhereunderon such Purchase Date.
(xiv) SellerReleaseLetter.PurchasershallhavereceivedfromSelleraRelease Letter covering each Eligible Asset to be sold to Purchaser.
(xv) No Change in Law.Purchaser shall not have determined that the introduction of or a change in any Requirement of Law or in the interpretation or administration of any Requirement of Law has made it unlawful, and no Governmental Authorityshall have asserted that it is unlawful, for Purchaser to enter into Transactions.
(xvi) IntentionallyOmitted.
(xvii) Security Interest.Seller shall have taken such other action as Purchaser shallhaverequestedinordertotransfertheEligibleAssetsbeingtransferredtoPurchaser pursuant to this Agreement and to perfect all security interests granted under this Agreement or any other Transaction Document in favor of Purchaser as secured party under the UCC with respect to such Eligible Assets.
(xviii) Availability Period.The related Purchase Date occurs during the Availability Period.
(xix) Know Your Customer and Sanctions Diligence.Seller shall have completedits“KnowYourCustomer”andSanctionsdiligencewithrespecttotherelated Borrower,guarantorandrelatedpartiesandtheresultsofsuchdiligenceareacceptableto Purchaser in its sole and absolute discretion.Purchaser shall have completed its “Know Your Customer” and Sanctions diligence with respect to Seller, Guarantor and related parties and the results of such diligence are acceptable to Purchaser in its sole and absolute discretion.
(xx) True Sale or Contribution.If such Purchased Asset is acquired by Seller from any Affiliate of Seller or prior to being acquired by Seller such Purchased Asset is transferred between any Affiliates of Seller, then Seller shall either (A) deliver to Purchaser a true sale opinion or true contribution opinion from outside counsel in form and substance reasonably acceptable to Purchaser with respect to the transfer of such Purchased Asset to Seller from such Affiliate and any other interim transfers of such Purchased Asset between Affiliates of Seller or (B) deliver a pledge agreement in form andsubstanceacceptabletoPurchaser,andfortheavoidanceofdoubt,withrespectto
PurchasedAssetsoriginatedbytheOriginator,thedeliveryofthePledgeAgreement satisfies the requirements herein.
(xxi) Further Assurances.Purchaser shall have received all such other and further documents, documentation and legal opinions (including, without limitation, opinions regarding the perfection of Purchaser’s security interests and true sale matters, as applicable) as Purchaser shall have reasonably required.
(xxii) Payment of Fees.Purchaser shall have received payment from Seller of the Funding Fee (directly or pursuant to the terms of the Fee Credit Side Letter Agreement) or the Funding Fee has been netted against the Purchase Price being funded.
(d) Early Repurchase.Seller shall be entitled to terminate a Transaction on demand andrepurchasethePurchasedAssetsubjecttosuchTransactiononanyBusinessDaypriortothe Repurchase Date (an “Early Repurchase Date”); provided, however, that:
(i) no later than five (5) Business Days prior to such Early Repurchase Date (except if such Early Repurchase Date is in connection with curing a Margin Deficit, EventofDefault,representationbreach,orinconnectionwithanyoftheeventsinArticle3(j)or Article 6havingoccurred, in which case onlyone (1) Business Daywritten notice shall be required), Seller notifies Purchaser in writing of its intent to terminate such Transaction and repurchase such Purchased Asset, setting forth the Early Repurchase Date and identifying with particularity the Purchased Asset to be repurchased on such Early Repurchase Date;
(ii) No Default (other than any Default of an administrative or immaterial nature that is susceptible to cure, as reasonably determined by Purchaser, provided that SellershallhavecommencedtocuresuchDefaultandisdiligentlyproceedingtocurethe same prior to such Default becoming an Event of Default) or Event of Default shall have occurred and be continuing both as of the date notice is delivered pursuant to Article3(d)(i)aboveandasoftheapplicableEarlyRepurchaseDate,unlesstherepurchaseofthe Purchased Asset cures any such Default or Event of Default;
(iii) on such EarlyRepurchase Date,SellerpaystoPurchaser an amount equal to the Repurchase Price for the applicable Purchased Asset and any other amounts payable under this Agreement against transfer to Seller or its designated agent of such Purchased Asset;
(iv) any unsatisfied Margin Call is cured in connection with such early repurchase; and
(v) onsuchEarlyRepurchaseDate,SellerpaystoPurchasertheExitFeesand Breakage Costs, if any, for such Purchased Asset, and to the extent the Borrower under the Mortgage Loan makes a repayment, the Purchased Asset relating to such Mortgage Loan shall be permitted to be repurchased so long as the Breakage Costs are paid.
(e) Repurchase on the Repurchase Date.On the Repurchase Date (including any Early RepurchaseDate,solong asthe conditionssetforthinArticle 3(d)are satisfied)forany
Transaction,terminationoftheTransactionwillbeeffectedbytransfertoSellerofthePurchased Assets being repurchased along with any Income in respect thereof received by Purchaser (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Article 5) against the simultaneous transfer of the Repurchase Price for such Purchased Asset to an account of Purchaser; providedthat, Purchaser shall have no obligation to permit Seller to repurchase individual Purchased Assets if an Event of Default shall have occurred and be continuing.Promptlyfollowingsuch Repurchase Date for a Purchased Asset and satisfaction of the conditions in the precedingsentence, and so long as no Event of Default shall have occurred and be continuing, Purchaser’s security interest in the related Collateral shall terminate in accordance with Article 7(b).
(f) Availability Period Extensions.(a)Upon the written request of Seller to extend the Availability Period and provided that all of the extension conditions listed in clause (ii)below (collectively, the “Availability Period Extension Conditions”) shall have been satisfied, Purchasermayagreetoextendthethen-currentAvailabilityPeriod(each,a“CurrentAvailabilityPeriod”) for a period not to exceed twelve(12) months from the expiration date of the Current AvailabilityPeriod (each, an “AvailabilityPeriod Extension”).Notwithstanding anythingto the contrary herein, in no event shall the Availability Period be extended more than two (2) times pursuant to this Article 3(f).Purchaser may approve or disapprove any request for an Availability Period Extension in its sole and absolute discretion.
(ii) ForpurposesofthisArticle3(f),theAvailabilityPeriodExtension Conditions shall be satisfied with respect to the related AvailabilityPeriod Extension if:
(A) Seller shall have delivered to Purchaser written notice of its request to extend the Current AvailabilityPeriod at least thirty(30) days, but not more than sixty (60) days, prior to the expiration of the Current Availability Period (which notice may be revoked by Seller);
(B) Purchaser shall have received, on or before the expiration of the CurrentAvailabilityPeriod,paymentfromSeller,asconsiderationforPurchaser’s agreement to extend the then Current AvailabilityPeriod, of a AvailabilityPeriod Extension Fee (Seller shall provide notice to Purchaser at least two (2) Business Days prior to the date on which Seller pays the Availability Period Extension Fee);
(C) no Material Adverse Effect, uncured Margin Deficit, monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing as of the expiration of the Current Availability Period;
(D) all representations and warranties made by any Seller Party in the Transaction Documents (other than those contained in Article 10(w), which shall be considered solely for the purpose of determining the Market Value and eligibility of the Purchased Assets, unless (i)Seller shall have made any such representations and warranties with actual knowledge that they were materially false or materially misleading at the time made; or (ii) any such representations andwarrantieshavebeendeterminedbyPurchaserinitssoleandabsolute
discretion to bemateriallyfalseormateriallymisleadingon aregularbasis),shall be true, correct, complete and accurate as of the expiration of the Current Availability Period; and
(E) Purchaser shall have received a written certification by Seller stating that the foregoing conditions have been or will be satisfied as of the time required above.
(g) Amortization Period Extensions.(b)In the event that Purchaser does not extend theCurrentAvailabilityPeriodinaccordancewithArticle3(f),uponthewrittenrequestofSeller toextendtheTerminationDateandprovidedthatalloftheextensionconditionslistedin clause(ii)below(collectively, the “Amortization Period Extension Conditions”)shall havebeen satisfied, Purchaser shall extend the then-current Termination Date (each, a “CurrentTerminationDate”)bytwelve(12)monthsfromtheCurrentTerminationDate.Notwithstanding anything to the contrary herein, in no event shall the Termination Date be extended more than two (2) times pursuant to this Article3(g).Each extension of the Termination Date pursuant to this Article 3(g)shall be subject to the payment of the Termination Date Extension Fee and the satisfaction of conditions described below.On the first day of the initial Amortization Period and every six (6) months thereafter, the aggregate outstanding Purchase Price for all Purchased Assets shall be reduced byfive percent (5.0%) of such aggregate outstanding Purchase Price.
(ii) ForpurposesofthisArticle3(g),theAmortizationPeriodExtension Conditions shall be satisfied if:
(A) Seller shall have delivered to Purchaser a written request to extend theCurrentTerminationDateatleastthirty(30)days,butnotmorethansixty(60) days, prior to the Current Termination Date and certifying that Seller has determined in good faith that market conditions are not economically favorable for the securitization of the Purchased Assets on or prior to the Current Termination Date;
(B) Purchaser shall have received, on or before the Current Termination Date, payment from Seller of a Termination Date Extension Fee
(Seller shall provide notice to Purchaser at least two (2) Business Days prior to the date on which Seller pays the Termination Date Extension Fee);
(C) no Material Adverse Effect, unsatisfied Margin Call, monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing as of the Current Termination Date;
(D) all representations and warranties made by any Seller Party in the Transaction Documents (other than those contained in Article 10(w), which shall be considered solely for the purpose of determining the Market Value and eligibility of the Purchased Assets, unless (i) Seller shall have made any such representations and warranties with actual knowledge that they were materially false or materially misleading at the time made; or (ii) any such representations andwarrantieshavebeendeterminedbyPurchaserinitssoleandabsolute
discretion tobemateriallyfalseormateriallymisleadingon aregularbasis),shall be true and correct, complete and accurate as of the applicable Current Termination Date; and
(E) Purchaser shall have received a written certification by Seller stating that the foregoing conditions have been or will be satisfied as of the time required above.
(h) Future Advances.(c)From time to time during the Availability Period, in connection with the making of a future advance to the Borrower under a Future Advance Purchased Asset, Seller may request an increase of the Purchase Price of such Future Advance PurchasedAsset;providedthatSellershallnotrequestmorethanone(1)increasewithrespectto the same Purchased Asset during any calendar month.Any approval by Purchaser of such increase of the Purchase Price shall be in writing and given or denied at Purchaser’s sole and absolute discretion.
(ii) IfsuchapprovalforaPurchasePriceincreaseisgranted,Purchaser’s funding of such increase shall be subject to the satisfaction of the following conditions:
(A) at least ten (10) Business Days prior to the requested Purchase Price increase date, Seller shall have requested such increase in writing and delivered to Purchaser (1)copies of all documentation submitted by Borrower in connectionwiththeapplicablefutureadvanceand(2)evidencethatallconditions precedent to such future advance under the related Purchased Asset Documents have been satisfied or will be satisfied as of the date of the related funding (or, if anyconditionswillnotbesatisfied,writtenrequestforPurchaser’swaiverofsuch conditions to the extent such waiver would be a Significant Modification hereunder);
(B) theamountoftherequestedPurchasePriceincreaseisatleast
$250,000;
(C) Purchaser shall have determined to its satisfaction that (1)there is no monetary Default or material non-monetary Default then existing or likely to occur under such Purchased Asset, (2)all conditions precedent to such future advanceundertherelatedPurchasedAssetDocumentshavebeendulysatisfiedor
waived to Purchaser’s reasonable satisfaction and (3)any additional conditions imposed by Purchaser with respect to such future advance, as specified in the related Confirmation, have been dulysatisfied or waived byPurchaser in writing;
(D) delivery by Seller to Purchaser of an amended and restated Confirmation for the applicable Transaction which reflects the increase in the PurchasePricesignedbyaResponsibleOfficerofSeller(provided,however,that Purchaser shall not be liable to Seller if Purchaser inadvertently acts on a ConfirmationthathasnotbeensignedbyaResponsibleOfficerofSeller),and
deliverybyPurchasertoSellerofacountersignedcopyofsuchamendedand restated Confirmation;
(E) immediately after giving effect to the requested Purchase Price increase,theoutstandingPurchasePriceofsuchPurchasedAssetshallnotexceed the updated Maximum Purchase Price of such Purchased Asset set forth on the related amended and restated Confirmation;
(F) immediately after giving effect to the requested Purchase Price increase, the sum, without duplication, of (x)the aggregate Purchase Price for all outstanding Transactions and (y) the requested Purchase Price increase shall not exceed an amount equal the Maximum Facility Purchase Price;
(G) no event shall have occurred which has, or would reasonably be expected to have, a Material Adverse Effect;
(H) nomonetaryDefaultormaterialnon-monetaryDefaultorEventof Default shall have occurred and be continuing as of the related Purchase Price increase date or will occur as a result of such Purchase Price increase;
(I) no unsatisfied Margin Call shall exist, after giving effect to the requested Purchase Price increase; and
(J) all representations and warranties made by any Seller Party in the Transaction Documents (other than those contained in Article 10(w)with respect to Purchased Assets other than the applicable Future Advance Purchased Asset for which a Purchase Price increase is being funded, which shall be considered solely for the purpose of determining the Market Value and eligibility of the Purchased Assets, unless (i)Seller shall have made any such representations and warranties with actual knowledge that they were materially false or materially misleading at the time made or (ii)any such representations and warranties have been determined by Purchaser in its sole and absolute discretion to be materially false or materially misleading on a regular basis) shall be true, correct, complete and accurate on and as of the related Purchase Price increase date with the same force and effect as if made on and as of such date;
(K) Purchaser shall have received a written certification by Seller stating that foregoing conditions have been or will be satisfied as of the time requiredaboveandallconditionsprecedenttothefundingofsuchfutureadvance under the related Purchased Asset Documents have been satisfied;
(L) SellershallhavedeliveredtoPurchasersuchotherinformationand documentation (including, without limitation, either an updated title policy or an appropriate date-down endorsement) as Purchaser requests, in its sole and absolute discretion; and
(M) Purchaser shall have received payment from Seller of the Funding FeethendueinrespectofsuchPurchasePriceincrease(directlyorpursuanttothe
termsoftheFeeCreditSideLetterAgreement)orsuchFundingFeehasbeen netted against the Purchase Price being funded.
(iii) Upon the satisfaction of all conditions set forth in Article3(h)(ii)as determined by Purchaser, in its sole and absolute discretion, exercised in good faith, Purchasershalltransfertheamount ofthePurchasePriceincreasetoanaccountofSeller or, if such increase is being funded on the same dayas the future advance is being made to the related Borrower, directly to the Borrower, the Servicer or any title company, settlement agent or other Person, as agreed to byPurchaser and Seller.
(i) Mandatory Early Repurchase.Purchaser may, in its sole and absolute discretion, deliver written notice to Seller requiringtherepurchase of such Purchased Asset byno later than five (5) Business Days after such written notice (such date, a “Mandatory Early RepurchaseDate”) in the event that (i) the Market Value of any Purchased Asset is reduced, or is deemed reduced,tozeroor(ii)thepartialorcompleterepurchaseofsuchPurchasedAssetisnecessaryto cure a breach of the Sub-Limit.
(j) EarlyTermination.UponpaymentoftheaggregateoutstandingRepurchasePrice for Transactions, Seller may elect to terminate all of the Transactions and repurchase all of the Purchased Assets.
(k) Reallocation of the Maximum Facility Purchase Price.Seller may from time to time, but not more frequentlythan one (1) timeduring anycalendarmonth, request to reallocate all or a portion of the maximum facility purchase price with respect to the CMFT Facility (the “CMFT Facility Maximum Purchase Price”) to the Maximum Facility Purchase Price by delivering a written request to Purchaser (which written request may be combined with the written request required by Article 3(l) of the CMFT Repurchase Agreement) not later than ten
(10) Business Days prior to the proposed effective date of such reallocation; provided that the effectiveness of such reallocation shall be conditioned upon satisfaction of the following conditions:
(i) no Material Adverse Effect, uncured Margin Deficit, monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing as of the date of such reallocation;
(ii) all representations and warranties made by any Seller Party in the Transaction Documents (other than those contained in Article 10(w), which shall be considered solely for the purpose of determining the Market Value and eligibility of the Purchased Assets, unless (i)Seller shall have made any such representations and warranties with actual knowledge that they were materially false or materially misleading at the time made; or (ii) any such representations and warranties have been determined by Purchaser in its sole and absolute discretion to be
materiallyfalse or materiallymisleading on a regular basis), shallbetrue, correct, complete and accurate as of the date of such reallocation;
(iii) any such reallocation shall be in the minimum amount of $50,000,000.00 or such lower amount as may be approved by Purchaser in its sole and absolute discretion;
(iv) theCMFTFacilityMaximumPurchasePriceshallhavebeenpermanently reduced such that the sum of the Maximum Facility Purchase Price and theCMFTMaximumFacilityPurchasePricedoesnotexceed
$1,250,000,000.00 after giving effect to such increase of the Maximum Facility Purchase Price and reduction of the CMFT Maximum Facility Purchase Price; and
(v) Purchaser, Seller, Guarantor and each seller and each guarantor under the CMFTFacilityshallhaveenteredintoaJointMaximumFacilityPurchase Price Agreement dated as of the date of such reallocation.
Fortheavoidanceofdoubt,nostructuringorupsizefeeshallbepayableonany such reallocation of the Maximum Facility Purchase Price.
(l) Office Assets Sub-Limit.If, as of any date of determination, the aggregate outstanding Purchase Price of all Purchased Assets that are Office Assets causes abreach ofthe Sub-Limit, then Seller shall within five (5) Business Days after notice from the Purchaser remit funds to Purchaser to be applied in reduction of the Purchase Price of each such Office Asset in an amount sufficient to cause the Sub-Limit to no longer be breached.
ARTICLE 4
MARGINMAINTENANCE
(a) Purchaser may, at its option in its sole and absolute discretion, re-determine the MarketValueforany PurchasedAssetinaccordancewiththedefinitionofMarket Value.If there exists a Margin Deficit with respect to any Purchased Asset, Purchaser may, by notice to SellersubstantiallyintheformofExhibitVIIIhereto(a“MarginCall”),requireSellertomakea cash payment in reduction of the Repurchase Price of such Purchased Asset, sothat after giving effecttosuchpayment,noMarginDeficitshallexistwithrespecttosuchPurchasedAsset. SellershallhavetheopportunitytochallengethereductionoftheMarketValueofany Purchased Asset byrequesting that Purchaser, at Seller’s sole cost and expense,order (i) ifsuch reductioninMarketValueisrelatedtoareductioninthevalueoftherelatedMortgaged Property,athird-party appraisal of the related Mortgaged Property or Mortgaged Properties or
(ii) if such reduction is otherwise related to a reduction in the value of the Purchased Asset, a third-partyvaluationofthefairmarketvalueofthePurchasedAsset.Intheinterimperiodwhile Purchaser is awaiting receipt of and considering such appraisal or valuation, Seller shall post with Purchaser the Margin Amount.In the event that Purchaser subsequentlydetermines that a Credit Event has not occurred or that a Margin Deficit does not exist, the Margin Amount shall
be returned to Seller (or such portion thereof as reflects the decrease in the applicable Margin Deficit).
(b) If a Margin Call is given byPurchaser on anyBusiness Dayat orprior to 10 a.m. (New York City time), Seller shall cure the related Margin Deficit (which may be by repurchasing the related Purchased Asset in accordance with Article 3(d)) by no later than 5:00
p.m. (New York City time) on the same Business Day. For the avoidance of doubt, if a Margin Call is given byPurchaser on anyBusiness Dayafter thetimeset forth above,suchMargin Call shall be considered given prior to such time on the immediatelyfollowing Business Day.
(c) The failure or delay by Purchaser, on any one or more occasions, to exercise its rightsunderthis Article4shallnotchangeoralterthetermsandconditionsorlimitorwaivethe right of Purchaser to do so at a later date or in anywaycreate additional rights for Seller.
ARTICLE 5
PAYMENTS;COLLECTIONACCOUNT
(a) Unless otherwise mutuallyagreed in writing, all transfers of funds to be made by Seller hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim.
(b) All payments required to be made directly to Purchaser shall be made in accordance with the wiringinstructions set forth below (or such other wire instructions provided by Purchaser to Seller in writing), not later than 2:00 p.m. (New York City time)(or such other time set forth herein with respect to such payment), on the date on which such payment shall becomedue(andeachsuchpaymentmadeaftersuchtimeshallbedeemedtohavebeenmadeon the next succeeding Business Day).
BankName: BankofNewYorkMellon
ABANumber: 021-000-018
AccountNumber: GLA111569BHQ
Account Name: BBPLCLNBRFirmCashW/HGestUSD Reference: Revolving Master Repurchase Facility Attention: CRE Operations
(c) Concurrently with the execution and delivery of this Agreement, Seller shall establish a segregated non-interest bearing deposit account (the “Collection Account”) in the name of Seller for the benefit of Purchaser at Account Bank.The Collection Account shall be subject to the Account Control Agreement in favor of Purchaser.
(d) SellershallcauseServicertopromptlyremit,andinanyeventnolaterthantwo
(2) Business Days after receipt of properly identified and available funds thereof, all Income in respect of the Purchased Assets directly into the Collection Account.In furtherance of the foregoing,SellershallcauseeachServicertoexecuteanddeliveraServicerLetterinaccordance with Article 29(e).If any Seller Party or any Affiliate of thereof shall receive any Income with respecttoaPurchasedAssetotherthanbyremittancefromtheCollectionAccountinaccordance with thefollowingsentence,suchpartyshall(andSellershall causesuchpartyto)promptly(and inany casewithinone(1)BusinessDay afterreceiptthereof) remitsuch amountsdirectly into
the Collection Account.Amounts intheCollection Accountshall be remitted byAccount Bank in accordance with the provisions of Articles 5(e).
(e) Amounts in the Collection Account shall be remitted by Account Bank in accordance with the provisions of Section 3.1of the Security Agent and Subordination Agreement.
(f) IntentionallyOmitted.
(g) On each Remittance Date, Seller shall pay to Purchaser all accrued and unpaid Purchase Price Differential as of such Remittance Date.
(h) Anyamounts paid toward the Repurchase Price for anyPurchased Asset shall be applied by Purchaser to any items constituting the Repurchase Price thereof in such order of priority as Purchaser shall determine in its reasonable discretion.
ARTICLE 6
REQUIREMENTSOFLAW;BENCHMARKREPLACEMENT
(a) Requirements of Law. (d) Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereofshallmakeitunlawfulforPurchaser(A)toenterintoTransactions,thenanycommitment of Purchaser hereunder to enter into anyTransaction shall forthwith becanceled, (B) to maintain orcontinueanyTransaction,thenaRepurchaseDateforsuchTransactionshalloccuronthelater of (x) five (5) Business Days after deliveryof written notice from Purchaser to Seller and (y) the nextRemittanceDateoronsuchearlierdateasmayberequiredbylawor(C)toaccruePurchase Price Differential based on the then-applicable Benchmark for any Transaction, then each such Transaction then outstanding shall be converted automatically to a new Benchmark pursuant to the definition of “Benchmark Replacement” and Article 6(b)on the next Pricing Rate Determination Date or within such earlier period as may be required by law.If any such conversion of a Transaction occurs on a day that is not the last day of the then current Pricing Rate Period with respect to such Transaction, Seller shall pay to Purchaser any applicable BreakageCostsinconnectionwithanysuchconversionofaTransaction.Inexercisingitsrights under this Article 6(a)(i), Purchaser shall exercise its rights and remedies in a manner which is similar to the manner in which Purchaser is contemporaneously exercising similar remedies in repurchaseagreements,warehousefacilities,creditfacilitiesorothersimilararrangementswhich finance commercial real estate mortgage loans with similarly situated counterparties.In addition, Purchaser will provide Seller with notice promptly after any such determination under this Article 6·(i)is made.
(ii) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by any Governmental Authority or compliance by Purchaserwithanyrequestordirective(whetherornothavingtheforceoflaw)fromany central bank or other Governmental Authority having jurisdiction over Purchaser made subsequent to the date hereof:
(A) shall subject Purchaser to any tax of any kind whatsoever with respecttotheTransactionDocuments,anyPurchasedAssetoranyTransaction,or change the basis of taxation of payments to Purchaser in respect thereof (except for any changes in the rate of tax on Purchaser’s overall net income);
(B) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or anyother acquisition of funds by, anyoffice of Purchaser that is not otherwise included in the determination of the Benchmark hereunder; or
(C) shallimposeonPurchaseranyothercondition;
and the result of any of the foregoing is to increase the cost to Purchaser, by an amount that Purchaser deems to be material, of entering into, continuing or maintaining Transactions or to reduce in any material respect any amount receivable under the Transaction Documents in respect thereof; then, in any such case, Seller shall promptly pay Purchaser, upon its demand, any additional amounts necessary to compensate Purchaserforsuchincreasedcostorreducedamountreceivable.Purchasershallexercise itsrightsorremediespursuanttothisArticle6(a)(ii)inamannerwhichisconsistentwith the manner in which Purchaser is contemporaneously exercising similar rights or remedies under commercial real estate mortgageloan repurchase facilities with similarly situated counterparties.In addition, Purchaser will provide Seller with notice as soon as practicalofanydemandforanyadditionalamountspayablebySellerunderthis Article6(a)(ii).Such notification as to thecalculationofanyadditional amounts payable pursuant to this subsection shall be submitted by Purchaser to Seller and shall be conclusive evidence of such additional amounts absent manifest error.With respect to any amount payable to Purchaser under this Article 6(a)(ii), this covenant shall survive for a period of twelve (12) months from the date of the incurrence of such increased cost or reduced amount receivable and Seller shall have no further obligation hereunder with respect to such increased costs or reduced amount receivable.Purchaser and Seller hereby acknowledge and agree that in the event that Seller shall be liable to pay to Purchaser compensation for increased costs or reduced amounts receivable by Purchaser related to any change in a Requirement of Law after the date hereof with respect to the Securitisation Regulations and that in connection therewith, Seller shall have the right to repurchase the Purchased Asset(s) and terminate the related Transaction(s) without the paymentofanExitFee.Notwithstandingtheforegoing,oranythinginthisAgreementor in anyof the other Transaction Documents to the contrary, Seller shall not be liableor be required to pay to Purchaser any compensation for any increased costs or reduced amounts receivable by Purchaser in connection with any failure by Purchaser to receive desirable securitization capital treatment in connection with this Agreement, any of the Transactions hereunder or any of the Transaction Documents or Subordinated Facility Documents,unlesssuchincreasedcostsorreducedamountsreceivableareasaresultofa change in any Requirement of Law (or adoption of any new Requirement of Law) after the date hereof or the occurrence and continuance of a Risk Retention Event.
(iii) If Purchaser shall have determined that the adoption of or any change in anyRequirementofLawregardingcapitaladequacyorintheinterpretationorapplication
thereof or compliance by Purchaser or any corporation controlling Purchaser with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof has, or will have, the effect of reducing the rate of return on Purchaser’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Purchaser or such corporationcouldhaveachievedbutforsuchadoption,changeorcompliance(takinginto considerationPurchaser’sorsuchcorporation’spolicieswithrespecttocapitaladequacy) by an amount deemed by Purchaser, to be material, then from time to time, after submission by Purchaser to Seller of a written request therefor, Seller shall pay to Purchaser such additional amount or amounts as will compensate Purchaser for such reduction.Purchaser shall exercise its rights and remedies pursuant to this Article6(a)(iii)in a manner consistent with the manner in which Purchaser iscontemporaneously exercising similar remedies under commercial real estate mortgage loan repurchase facilities with similarly situated counterparties.In addition, Purchaser will provide Seller with notice as soon as practical of any demand for any additional amounts payable by Seller under this Article 6(a)(iii).Such notification as to the calculation of any additional amounts payable pursuant to this subsection shall be submitted by Purchaser to Seller and shall be conclusive evidence of such additional amounts absent manifest error.With respect to any amount payable to Purchaser under this Article 6(a)(iii), this covenant shall survive for a period of twelve (12) months from the date of the incurrence of such increased cost or reduced amount receivable and Seller shallhavenofurtherobligationhereunderwithrespecttosuchincreasedcostsorreduced amount receivable.Purchaser and Seller herebyacknowledge and agree that in the event that Seller shall be liable to pay to Purchaser any amounts described in this Article6(a)(iii)related to anychange in a Requirement of Law after the date hereof with respect to the Securitisation Regulations and that in connection therewith, Seller shall have the right to repurchase the Purchased Asset(s) and terminate the related Transaction(s) without the payment of an Exit Fee.Notwithstanding the foregoing, or anything in this Agreement or in any of the other Transaction Documents to the contrary, Seller shall not be liable or berequired to payto Purchaseranyamounts described in this Article6(a)(iii)in connection with any failure by Purchaser to receive desirable securitization capital treatmentinconnectionwiththisAgreement,anyoftheTransactionshereunderoranyof the Transaction Documents or Subordinated Facility Documents, unless such increased costs or reduced amounts receivable are as a result of a change in any Requirement of Law(oradoptionofanynewRequirementofLaw)afterthedatehereofortheoccurrence and continuance of a Risk Retention Event.
(b) BenchmarkTransition.
(i) Notwithstanding anything to the contrary herein or in any other Transaction Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time for any Pricing Rate Determination Date in respect of any determination of the then-current Benchmark for any Transaction, the Benchmark Replacement will replace the then-current Benchmark withrespecttoeachsuchTransactionforallpurposeshereunderorunderany
Transaction Document in respect of such determination on such Pricing Rate Determination Date and all determinations on all subsequent dates, without any amendment to, or further action or consent of any other party to, this Agreement.The
Benchmark Replacement shall become effective with respect to each applicable Transaction on the applicable Benchmark Replacement Date.
(ii) In connection with the administration of any Benchmark or the implementation of any Benchmark Replacement, Purchaser shall have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes shall become effective without anyfurther action or consent of anyother partyto this Agreement.
(iii) Purchaser shall promptly notify Seller of (A) the implementation of any Benchmark Replacement and (B)the effectiveness of any Benchmark Replacement ConformingChanges.Fortheavoidanceofdoubt,anynoticerequiredtobedeliveredby Purchaserassetforthinthisparagraphmaybeprovided,attheoptionofPurchaser(inits sole and absolute discretion), in one or more notices and maybe delivered together with, or as part of any amendment which implements any Benchmark Replacement or Benchmark Replacement Conforming Changes.Anydetermination,decision or election that maybemade byPurchaserpursuant to this Article6(b), includinganydetermination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, shall be conclusive and binding absent manifest error and may be made in its sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Article 6(b).
(iv) Purchaser does not warrant or accept any responsibility for, and shall not have any liability with respect to (i) the administration, submission or any other matter related to the Benchmark or anyBenchmark Replacement implemented hereunder or (ii) the composition or characteristics of any such Benchmark or Benchmark Replacement, includingwhether anyBenchmark Replacement is similar to, or produces the same value or economic equivalence to any Benchmark which it replaces or has the same volume or liquidity as any Benchmark which it replaces or any other Benchmark, and (iii)any actions or use of its discretion or other decisions or determinations made in accordance with this Article6including, without limitation, whether or not a Benchmark Transition Event has occurred, the removal or lack thereof of unavailable or non-representative tenors of any Benchmark, the implementation or lack thereof of any Benchmark ReplacementConformingChangesorthedeliveryornon-deliveryofanynoticesrequired by this Article 6or otherwise in accordance herewith.
(v) Purchasershallexerciseitsrightsandremediespursuanttothedefinitions of “Benchmark Replacement”, “Benchmark Replacement Adjustment” and “Benchmark ReplacementConformingChanges” in amanner which isconsistent withhowPurchaser is contemporaneouslyexercising similar rights or remedies under commercial real estate
mortgage loan repurchase facilities with similarlysituated counterparties covered bythe same group within Purchaser.
ARTICLE 7
SECURITY INTEREST
(a) Purchaser and Seller intend that the Transactions hereunder besales toPurchaser of the Purchased Assets and not loans fromPurchaser toSellersecured bythePurchased Assets (other than for U.S. federal, state and local income and franchise Tax purposes more fully described in Article 23(g)).However, in order to preserve Purchaser’s rights under the Transaction Documents, in the event that, other than for such Tax purposes, a court or other forum re-characterizes the Transactions hereunder as other than sales, and as security for the performance by Seller of all of Seller’s obligations to Purchaser under the Transaction Documents and the Transactions entered into hereunder, or in the event that a transfer of a PurchasedAssetisotherwiseineffectivetoeffectanoutrighttransferofsuchPurchasedAssetto Purchaser, Sellerherebyassigns,pledges andgrants asecurityinterest in all of its right, titleand interest in, to and under the Collateral, whether now owned or hereafter acquired, now existing orhereafter created and whereverlocated, toPurchaser tosecurethepayment oftheRepurchase Price on all Transactions to which it is a party and all other amounts owing by it to Purchaser hereunder, including, without limitation, amounts owing pursuant to Article 27, and under the other Transaction Documents (collectively, the “Repurchase Obligations”).Seller agrees to mark its books and records to evidence the interests granted to Purchaser hereunder.Without limiting the generality of the foregoing and for the avoidance of doubt, if any determination is made that any Mezzanine Loan which is a Purchased Asset was not sold by Seller to Purchaser pursuant to this Agreement, or that such Mezzanine Loan does not qualify for the safe harbor treatment provided by the Bankruptcy Code, then Seller hereby pledges, assigns and grants to Purchaser as further security for Seller’s obligations to Purchaser hereunder, a continuing first priority security interest in and Lien upon each such Mezzanine Loan which constitutes a Purchased Asset hereunder, and Purchaser shall have all the rights and remedies of a “secured party” under the Uniform Commercial Code with respect thereto (such pledge, the “RelatedCredit Enhancement”).For purposes of this Agreement, “Collateral” shall mean:
(i) theCollection Account and allmoniesfrom timeto timeondeposit in the Collection Account and anyand all replacements, substitutions, distributions on,income relating to or proceeds of any and all of the foregoing; and
(ii) thePurchasedItems.
(b) Purchaser’s security interest in the Collateral shall terminate only upon satisfaction of the Repurchase Obligations (other than obligations under the Transaction Documents (including contingent reimbursement obligations and indemnity obligations) which, by their express terms, survive termination of this Agreement or such other Transaction Document,asthecasemaybe),providedthat,solongasnoEventofDefaultshallhaveoccurred and be continuing (other than in connection with a repayment of a Purchased Asset by the Borrower thereunder and subject to the conditions set forth in Article3(e)),Purchaser’s security interestwithrespecttoanyPurchasedAssetshallterminateautomaticallyeffectiveuponthe
repurchase thereof in accordance with the terms of this Agreement and receipt by Purchaser of the Repurchase Price therefor.Upon such satisfaction and, in the case of the clause(i) below, upon request by Seller, Purchaser shall, at Seller’s sole expense, (i) deliver to Seller such UCC terminationstatementsandotherreleasedocumentsasmaybecommerciallyreasonableand
(ii)return (or authorize the return by Custodian in accordance with the Custodial Agreement, as applicable)thePurchasedAssetstoSellerandreconveythePurchasedItemstoSellerandrelease its security interest in the Collateral, such release to be effective automatically without further
action by any party.For purposes of the grant of the security interest pursuant to this Article 7, this Agreement shall be deemed to constitute a securityagreement under theNew York Uniform CommercialCode(the“UCC”).Purchasershallhavealloftherightsandmayexerciseallofthe remedies of a secured creditor under the UCC and the other laws of the State of New York.In furtherance of the foregoing, (i) Purchaser, at Seller’s sole cost and expense, as applicable, shall cause to be filed in such locations as may be necessary to perfect and maintain perfection and priority of the security interest granted hereby, UCC financing statements and continuation statements (collectively, the “Filings”), and shall forward copies of such Filings to Seller upon completion thereof, and (ii) Seller shall from time to time take such further actions as may be requestedbyPurchaserinitssoleandabsolutediscretiontomaintainandcontinuetheperfection and priority of the security interest granted hereby (including marking its records and files to evidence the interests granted to Purchaser hereunder).Notwithstanding the foregoing, the Repurchase Obligations shall be full recourse to Seller.
(c) Seller acknowledges that it has no rights to service the Purchased Assets but only has rights granted to it pursuant to Article 29.Without limiting the generality of the foregoing and the grant of a security interest in Article 7(a), and in the event that Seller is deemed by a court,otherforumorotherwisetoretainanyresidualServicingRights(notwithstandingthatsuch Servicing Rights are Purchased Items hereunder), and for the avoidance of doubt, Seller hereby acknowledges and agrees that the Servicing Rights constitute Collateral hereunder for all purposes.The foregoing provision is intended to constitute a security agreement or other arrangementorothercreditenhancementrelatedtotheAgreementandTransactionshereunderas defined under Sections 101(47)(v) and 741(7)(x) of the Bankruptcy Code.
(d) Seller agrees, to the extent permitted by any Requirement of Law, that neither it nor anyone claiming through or under it will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption law now or hereafter in force in any locality where any Purchased Asset or Mortgaged Property may be situated in order to prevent, hinder or delay the enforcement or foreclosure of this Agreement, or the absolute sale of any of the Purchased Assets, or thefinal and absolute puttinginto possession thereof, immediatelyafter such sale, of the purchasers thereof, and Seller, for itself and all who may at any time claim through or under it, hereby waives until the Repurchase Obligations are paid in full, to the full extentthatitmaybelawfulsotodo,thebenefitofallsuchlawsandanyandallrighttohaveany of the properties or assets constituting the Purchased Assets marshaled upon any such sale, and agrees that, upon theoccurrenceandduringthecontinuanceofanEvent ofDefault,Purchaseror any court having jurisdiction to foreclose the security interests granted in this Agreement may, upon the occurrence and during the continuance of an Event of Default, sell the PurchasedAssets as an entiretyor in such parcels as Purchaser or such court maydetermine.
ARTICLE 8
TRANSFERANDCUSTODY
(a) On the Purchase Date for each Transaction, ownership of the related Purchased Assets andotherPurchased Items shall betransferred toPurchaser or itsdesignee (includingthe Custodian and/or the Bailee) against the simultaneous transfer of the Purchase Price for such Purchased Asset in immediately available funds to an account of Seller specified in the Confirmation and such Eligible Asset shall become a Purchased Asset hereunder, with a
simultaneous agreement by Purchaser to transfer to Seller the same Purchased Asset on the applicable Repurchase Date, against the transfer of funds by Seller, in an amount equal to the Repurchase Price.
(b) Seller shall deposit the Purchased Asset Files representing the Purchased Assets, or direct that the Purchased Asset Files be deposited directly, with the Custodian in accordance with the Custodial Agreement.The Purchased Asset Files shall be maintained in accordance with the Custodial Agreement.If a Purchased Asset File is not delivered to Purchaser or its designee (including the Custodian), such Purchased Asset File shall be held in trust bySeller or its designee for the benefit of Purchaser as the owner thereof.Seller or its designee shall maintain a copy of the Purchased Asset File and the originals of the Purchased Asset File not delivered to Purchaser or its designee (including the Custodian).The possession of the Purchased Asset File by Seller or its designee is at the will of Purchaser for the sole purpose of servicingtherelatedPurchasedAsset,andsuchretentionandpossessionbySelleroritsdesignee is in a custodial capacity only.The books and records (including, without limitation, any computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearlythe sale of the related Purchased Asset to Purchaser.Seller or its designee (includingthe Custodian)shallreleaseitscustodyofthePurchasedAssetFileonlyinaccordancewithawritten request acknowledged in writing by Purchaser and otherwise in accordance with the Custodial Agreement.
(c) From time to time, Seller shall forward to the Custodian, with copytoPurchaser, additional original documents or additional electronic copies of documents evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any such other documents (which shall be clearly marked as to which Purchased Asset File such documents relate), Custodian will be required to hold such other documents in the related Purchased Asset File in accordance with the Custodial Agreement.
ARTICLE 9
SALE,TRANSFER,HYPOTHECATIONORPLEDGEOFPURCHASEDASSETS
(a) Title to each Purchased Asset shall pass to Purchaser on the related Purchase Date, and Purchaser shall have free and unrestricted use of each Purchased Asset, subject, however, to the terms of this Agreement.Nothing in this Agreement or any other Transaction Document shall preclude Purchaser from engaging, at Purchaser’s sole cost and expense, in repurchase transactions with the Purchased Assets or otherwise selling, transferring, pledging,
repledging, hypothecating or rehypothecating the Purchased Assets, all on terms that Purchaser maydeterminein its soleandabsolutediscretion, inconformitywiththetermsandconditionsof the Purchased Asset Documents; provided that if no Event of Default has occurred and is continuing (i)Purchaser may only engage in repurchase transactions or sell, transfer, pledge, repledge,hypothecateorrehypothecatethePurchasedAssetstoanEligibleAssigneethatisnota Prohibited Transferee, and (ii)no such transaction shall relieve Purchaser of its obligations to transferthesamePurchasedAssets toSellerpursuant to Article 3orofPurchaser’sobligationto creditorpayIncometo,orapplyIncometotheobligationsof,SellerpursuanttoArticle5ofthis Agreement or otherwise affect the rights, obligations and remedies of any party to this Agreement.
(b) Nothing contained in this Agreement or any other Transaction Document shall obligatePurchaser tosegregate anyPurchasedAssetdelivered toPurchaserbySeller.Except to the extent expressly set forth in this Agreement or any other Transaction Document, no Purchased Asset shall remain in the custodyof Seller or anyAffiliate of Seller.
ARTICLE 10
REPRESENTATIONSANDWARRANTIES
Seller represents and warrants toPurchaser as ofthedatehereof and as of eachPurchase Date and covenants that at all times while this Agreement or any Transaction is in effect as follows:
(a) Organization.Seller (i)is duly organized, validly existing and in good standing under the laws and regulations of the jurisdiction of its formation, (ii)has the powertoown and hold the assets it purports to own and hold, and to carryon its business as now being conducted and proposed to be conducted and (iii)has the power to execute, deliver, and perform its obligations under this Agreement and the other Transaction Documents.
(b) Authority.Sellerrepresentsthat(i)itisdulyauthorizedtoexecuteanddeliverthe Transaction Documents to which it is a party, to enter into the Transactions contemplated hereunder and to perform its obligations under the Transaction Documents, and has taken all necessary action to authorize such execution, delivery and performance, and (ii)each person signing anyTransaction Document on its behalf is dulyauthorized to do so on its behalf.
(c) Due Execution and Delivery; Consideration.The Transaction Documents to which it is a party have been or will be duly executed and delivered by Seller, for good and valuable consideration.
(d) Enforceability.The Transaction Documents constitute the legal, valid and bindingobligationsofSeller,enforceableagainstSellerinaccordancewiththeirrespectiveterms subject to bankruptcy, insolvency, and other limitations on creditors’ rights generally and to equitable principles.
(e) Approvals and Consents.No consent, approval or other action of, or filing by, SellerwithanyGovernmentalAuthorityoranyotherPersonisrequiredtoauthorize,oris
otherwise required in connection with, the execution, delivery and performance of any of the Transaction Documents (other than consents, approvals and filings that have been obtained or made, as applicable, and anysuch consents, approvals and filingsthathavebeenobtained arein full force and effect).
(f) Licenses and Permits.Seller is duly licensed, qualified and in good standing in every jurisdiction where such licensing, qualification or standing is necessary, and has all licenses,permitsandotherconsentsthatarenecessary,forthetransactionofSeller’sbusinessor the acquisition, origination (if applicable), ownership or sale of any Purchased Asset or other Purchased Item, except where the failure to do so is not reasonably likely to have a Material Adverse Effect.
(g) IntentionallyOmitted.
(h) Non-Contravention.Neither the execution and delivery of the Transaction Documents, nor consummation by Seller of the transactions contemplated by the Transaction Documents (or anyofthem),norcompliancebySellerwith theterms,conditions andprovisions of the Transaction Documents (or any of them) will conflict with or result in a breach of any of the terms, conditions or provisions of (i)the organizational documents of Seller, (ii)any agreement by which Seller is bound or to which any assets of Seller are subject or constitute a defaultthereunder, or resultthereunder in the creation orimposition ofanyLienuponanyofthe assets of Seller, other than pursuant to the Transaction Documents or the Subordinated Facility Documents, (iii)any judgment or order, writ, injunction, decree or demand of any court applicable to Seller, or (iv)any Requirement of Law, in the case of clause (iv) above, to the extent such conflict or breach would have a Material Adverse Effect.
(i) Litigation/Proceedings.Except asotherwisedisclosedin writingtoPurchaser,as of the date hereof and as of the Purchase Date for any Transaction, there is no action, suit, proceeding, investigation, or arbitration pending or, to the best Knowledge of Seller, threatened inwritingagainstanySellerParty,oranyoftheirrespectiveAffiliatesorassetsthat(i)questions or challenges thevalidityor enforceabilityof anyofthe Transaction Documents oranyactionto be taken in connection with the transactions contemplated thereby, (ii)makes a claim in an aggregate amount greater than the Litigation Threshold or (iii)which, individually or in the aggregate, could be reasonably likely to have a Material Adverse Effect.
(j) NoOutstandingJudgments.ExceptasdisclosedinwritingtoPurchaser,thereare no judgments against any Seller Party unsatisfied of record or docketed in any court located in theUnitedStates ofAmericawhich in theaggregaterequirethepaymentofmoneyinanamount at least equal to the applicable Litigation Threshold.
(k) No Bankruptcies.No Act of Insolvency has ever occurred with respect to any Seller Party.
(l) Compliance with Law. Seller is in compliance in all material respects with all RequirementsofLaw.NoSellerPartyoranyrespectiveAffiliatethereofisindefaultinany
material respect with respect to any judgment, order, writ, injunction, decree, rule or regulation of anyarbitrator or Governmental Authorityapplicable to and imposed upon such Seller Party.
(m) ActingasPrincipal.SellerisengagingintheTransactionsasprincipal.
(n) No Broker.Seller has not dealt with any broker, investment banker, agent, or other Person (other than Purchaser or an Affiliate of Purchaser) who may be entitled to any commissionorcompensationinconnectionwiththesaleofanyPurchasedAssetpursuanttoany of the Transaction Documents.
(o) No Default.As of the date of this Agreement and as of each Purchase Date, no Default or Event of Default has occurred and is continuing under or with respect to the Transaction Documents which has not been disclosed to Purchaser in writing.
(p) IntentionallyOmitted.
(q) IntentionallyOmitted.
(r) No Adverse Selection.No Purchased Asset under this Agreement has been selected by Seller in a manner different from the manner in which Seller selects assets with regard to any other facilities to which it is a party or, in any event, so as to affect adversely the interests of Purchaser.
(s) Full and Accurate Disclosure.All information, reports, statements, exhibits, schedules and certificates (i)furnished in writing by or on behalf of any Seller Party in connection with the negotiation, preparation or delivery of the Transaction Documents, or after the date hereof pursuant to the terms of any Transaction Document or (ii)included in any TransactionDocument,whentakenasawhole,donotandwillnot,containanyuntruestatement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading in light of the circumstances under which theyweremade, or (in thecase of projections) is or will be based on reasonable estimates, on the date as of which such information is stated or certified.
(t) Financial Information.All financial data concerning the Seller Parties, (to Seller’s Knowledge) the Purchased Asset and the other Purchased Items that has been delivered by or on behalf of any Seller Party to Purchaser is true, correct and complete in all material respects as of the date of such data.To Seller’s Knowledge, all financial data concerning the Seller Parties has been prepared fairly in accordance with GAAP consistently applied.To Seller’s Knowledge, all financial data concerning the Purchased Asset and the other Purchased Items has been prepared in accordance with standard industry practices.
(u) Authorized Representatives.As of the date hereof, the duly authorized representatives of Seller are listed on, and true signatures of such authorized representatives are set forth on, ExhibitIIIhereto, or, afterthedatehereof,suchothermost recentlist of authorized representatives substantially in the form of ExhibitIIIhereto as Seller may from time to time deliver to Purchaser.
(v) Chief Executive Office; Jurisdiction of Organization; Location of Books andRecords.Each Seller Party’s chief executive office is located at 2398 E. Camelback Road, 4thFloor, Phoenix, Arizona 85016, unless such Seller Party has provided a new chief executive office address to Purchaser in writing.Seller’s jurisdiction of organization is the State of Delaware.The location where Seller keeps its books and records, including all computer tapes and records relating to the Collateral, is its chief executive office.
(w) Representations and Warranties Regarding the Purchased Assets.Each of the representationsandwarrantiesmadeinrespectofthePurchasedAssetspursuanttoExhibitVare true, correct and complete in all material respects (other than to the extent disclosed in a Requested Exceptions Report approved by Purchaser and other than MTM Representations unless Seller shall have made anysuch representation or warrantywith actual Knowledgethat it was materially false or misleading at the time made).
(x) Good Title to Purchased Asset.Immediately prior to the purchase of any Purchased Asset and other Purchased Items by Purchaser from Seller, (i) such Purchased Asset and other Purchased Items are free and clear of any Lien or impediment to transfer (including any “adverse claim” as defined in Article 8-102(a)(1) of the UCC) (other than any such Lien or impediment to transfer that is released simultaneously with such purchase), (ii) such Purchased Asset and otherPurchased Items are not subject to anyright ofset-off, anypriorsale, transfer or assignment, or any agreement by Seller to assign, convey or transfer such Purchased Asset and
other Purchased Items, in each case, in whole or in part, (iii) Seller is the record and beneficial ownerof,andhadgoodandmarketabletitleto,and theright tosellandtransfer,suchPurchased Asset and other Purchased Items to Purchaser, and (iv)Seller has the right to sell and transfer such Purchased Asset and other Purchased Items to Purchaser.Upon the purchase of any PurchasedAssetandotherPurchasedItemsbyPurchaserfromSeller,Purchasershallbethesole owner of such Purchased Asset and other Purchased Items free from any adverse claim, subject to the rights of Seller pursuant to the terms of this Agreement.
(y) No Encumbrances.There are (i) no outstanding rights, options, warrants or agreements on the part of Seller for a purchase, sale or issuance, in connection with any PurchasedAssetorotherPurchased Item,(ii)noagreementsonthepartofSellertoissue,sellor distribute any Purchased Asset or other Purchased Item and (iii) no obligations on the part of Seller (contingent or otherwise) to purchase, redeem or otherwise acquire any securities or interest therein, in each case, except as contemplated bythe Transaction Documents.
(z) SecurityInterestMatters.
(i) TheprovisionsoftheTransactionDocumentsareeffectivetoeither
(x)constituteasaleofPurchasedItemstoPurchaser(otherthanforUnitedStatesfederal, state and local income or franchise tax purposes) or (y) create in favor of Purchaser a legal,validandenforceablefirstpriority“securityinterest”(asdefinedinSection 1-201(b)(35) of the UCC) in all rights, title and interest of Seller in, to and under the Collateral.
(ii) UponpossessionbytheCustodianorBaileepursuanttoaBailee Agreement of each Promissory Note or Participation Certificate, endorsed in blank by a
dulyauthorizedofficerofSeller,Purchasershallhavealegal,valid,enforceableandfully perfected first priority security interest in all right, title and interest of Seller in such Promissory Note or Participation Certificate, as applicable.
(iii) Upon the filing of the UCC Financing Statements in the applicable UCC Filing Jurisdiction, Purchaser shall have a legal, valid, enforceable and fully perfected firstprioritysecurityinterestinthatportionoftheCollateralorthePledgedCollateral,as applicable, in which a security interest can be perfected under the UCC by the filing of financing statements.
(iv) Upon execution and delivery of the Account Control Agreement, Purchaser shall either be the owner of, or have a legal, valid, enforceable and fully perfected first priority security interest in, the Collection Account and all funds at any time credited thereto.
(aa)Solvency; No Fraudulent Transfer.Seller has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplatedbusinessoperations.Sellerisgenerallyabletopay,andispaying,itsdebtsasthey come due.Neither the Transaction Documents nor any Transaction are entered into in contemplation of insolvency or with intent to hinder, delay or defraud any of Seller’s creditors. As of each Purchase Date, Seller is not insolvent within the meaning of 11 U.S.C. Section 101(32) or anysuccessor provision thereto and the transfer and sale of related Purchased Assets on such Purchase Date pursuant hereto and the obligation to repurchase such Purchased Assets
(i)willnotcausetheliabilitiesofSellertoexceedtheassetsofSeller,(ii)willnotresultinSeller havingunreasonablysmall capital, and (iii) will not result indebts that would bebeyondSeller’s ability to pay as the same mature.Seller received reasonably equivalent value in exchange for thetransferandsaleofeachPurchasedAssetandotherPurchasedItemsubjecthereto.Sellerhas only entered into agreements on terms that would be considered arm’s length and otherwise on terms consistent with other similar agreements with other similarly situated entities.
(bb)No Reliance.Seller has made its own independent decisions to enter into the Transaction Documents and each Transaction and as to whether such Transaction is appropriate and proper for it based upon its own judgment and upon advice from such advisors (including without limitation, legal counsel and accountants) as it has deemed necessary.Seller is not relying upon any advice from Purchaser as to any aspect of the Transactions, including without limitation, the legal, accounting or tax treatment of the Transactions.
(cc)Investment Company Act.Seller is not required to register as an “investment company,” andisnot a company“controlledbyaninvestmentcompany,”withinthemeaningof the Investment Company Act of 1940, as amended.
(dd)Taxes.Seller has filed or caused to be filed all required U.S. federal and other material tax returns that to the Knowledge of Seller would be delinquent if they had not been filedonorbeforethedatehereofandhaspaidalltaxesshowntobedueandpayableonorbefore the date hereof on such returns or on any assessments made against it or any of its propertyand all other taxes, fees or other charges imposed on it and any of its assets by any Governmental Authorityexceptforanysuchtaxesas(i)arebeingappropriatelycontestedingoodfaithby
appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided in accordance with GAAP or (ii)are de minimis in amount.No tax liens have beenfiledagainstanyofSeller’sassets,toSeller’sKnowledge,andnoclaimshavebeenasserted in writing with respect to any such taxes, fees or other charges.
(ee)ERISA.Neither Seller nor any ERISA Affiliate of Seller sponsors, maintains or contributestoanyPlanoranyMultiemployerPlan.Sellerisnot,andisnotusinganyassetsof,a “benefitplaninvestor”asdefinedinDepartmentofLaborregulation29C.F.RSection 2510.3-101, as modified bySection 3(42) of ERISA, in connection with anyTransaction.
(ff)Use of Proceeds; Margin Regulations.All proceeds of each Transaction shall be used bySeller forpurposes permittedunderSeller’s governingdocuments, providedthat nopart of the proceeds of any Transaction will be used by Seller to purchase or carry any margin stock or to extend credit toothers forthepurposeofpurchasingorcarryinganymarginstock.Neither the entering into of any Transaction nor the use of any proceeds thereof will violate, or be inconsistent with, any provision of Regulation T, U or X of the Board of Governors of the Federal Reserve System.
(gg)No Real Property.Neither Seller nor any Subsidiary of Seller has at any time since its formation held title to any real property.
(hh)Ownership.Seller is and shall remain at all times a wholly-owned direct or indirect subsidiary of Replacement Guarantor.
(ii) IntentionallyOmitted.
(jj)Sanctions; No Prohibited Persons. Each Seller Partyand each of their respective Affiliates is in compliance with Sanctions.No Seller Party or any Affiliate, officer, director, partner, member or employee, of anySeller Partyor of such Affiliate, is an entityor person that is directly, or to theKnowledge ofanySeller Party, indirectly, owned, controlled byor actingon behalf of any Person that is, a Prohibited Person.Seller agrees that, from time to time upon the prior written request of Purchaser, it shall execute and deliver such further documents, provide suchadditionalinformationandreportsandperformsuchotheractsasPurchasermayreasonably request in order to ensure compliance with the provisions hereof (including, without limitation, compliance with Sanctions); provided, however, that nothing in this Article10(jj)shall be construed as requiring Purchaser to conduct any inquiry or decreasing Seller’s responsibility for its statements, representations, warranties or covenants hereunder.
(kk)Anti-Corruption and Anti-Money Laundering Laws.Each Seller Party and each oftheirrespectiveAffiliateshascompliedwith,andisincompliancewith,allapplicable Anti-Corruption Laws and Anti-Money Laundering Laws.No part of the proceeds of any Transaction will be used, directly or, to the Knowledge of any Seller Party, 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 any Anti-Corruption Laws.No litigation, regulatoryor administrative proceedings of or before anycourt, tribunalor
agencywith respect to anyAnti-Corruption Laws and Anti-MoneyLaundering Laws have been started or threatened against any Seller Party or any Affiliate thereof.
ARTICLE 11
NEGATIVECOVENANTSOFSELLER
On and as of the date hereof and at all times while this Agreement or the Transaction hereunder is in effect,Sellershall not without thepriorwrittenconsent ofPurchaser,whichmay be granted or denied at Purchaser’s sole and absolute discretion:
(i) subjecttoSeller’srighttorepurchaseanyPurchasedAssetpursuanttothe terms of this Agreement, take any action that would directly or indirectly impair or adversely affect Purchaser’s title to any Purchased Asset or other Purchased Item;
(ii) at any time a Transaction is outstanding with respect to any Purchased Asset, transfer, assign, convey, grant,bargain,sell,setover,deliverorotherwisedispose of,orpledgeorhypothecate,directlyorindirectly,anyinterestinanyPurchasedAssetor other Purchased Item to any Person other than Purchaser, or engage in repurchase transactions or similar transactions with respect to any Purchased Asset or other Purchased Item with any Person other than Purchaser;
(iii) create, incur, assume or suffer to exist any Lien in or on any of its property,assets,revenue,thePurchasedAssets,theotherCollateral,whethernowowned orhereafteracquired,otherthantheLiensandsecurityinterestgrantedbySellerpursuant to the Transaction Documents;
(iv) intentionallyomitted;
(v) enter into anytransaction of merger or consolidation or amalgamation, or liquidate,windupordissolveitself(orsufferanyliquidation,windingupordissolution), or sell all or substantially all of its assets (except in connection with the sale or securitizationofthePurchasedAssetsintheordinarycourseofSeller’sbusinessafterthe repurchase thereof in accordance with this Agreement);
(vi) permitaChangeofControl;
(vii) intentionallyomitted;
(viii) consentorassenttoanySignificantModificationotherthaninaccordance with Article 29;
(ix) permit the organizational documents or jurisdiction of organization of Seller to be amended in any material respect;
(x) after the occurrence and during the continuance of an Event of Default, make any distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition
of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respectthereof, eitherdirectlyorindirectly,whetherincashorpropertyor in obligations of Seller;
(xi) acquire or maintain any right or interest in any Purchased Asset or any Mortgaged Property that is senior to, or pari passu with, the rights and interests of Purchaser therein under this Agreement and the other Transaction Documents unless such right or interest in a Purchased Asset hereunder;
(xii) use anypartoftheproceedsofanyTransactionhereunderforanypurpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System; and
(xiii) directly,orthroughaSubsidiary,acquireorholdtitletoanyrealproperty.
ARTICLE 12
AFFIRMATIVECOVENANTSOFSELLER
OnandasofthedatehereofandeachPurchaseDateanduntilthisAgreementisno longer in force with respect to any Transaction, Seller covenants that:
(a) SellerNotices.
(i) Material Adverse Effect.Seller shall promptly notify Purchaser of any material adverse change in its business operations and/or financial condition of which Seller has Knowledge that is reasonably likely, in the reasonable judgment of Seller, to have a Material Adverse Effect; provided, however, that nothing in this Article12shall relieve Seller of its obligations under this Agreement.
(ii) Default or Event of Default.Seller shall, as soon as possible but in no event later than two (2) Business Days after obtaining actual knowledge of such event, notify Purchaser of the occurrence of any Default or Event of Default.
(iii) PurchasedAssetMatters.Sellershallpromptly(andinanyeventnotlater thantwo (2) Business Days after Knowledgethereof)notifyPurchaserof(A)anydefault or event of default under anyPurchased Asset; (B)anyfacts or circumstances that in the commercially reasonable judgment of Seller are reasonably likely to cause, or have caused, a Credit Event with respect to any Purchased Asset or the Market Value of any Purchased Asset todecline; (C)anyPurchased Asset that hasbecome a Defaulted Asset; or (D) any Future Advance Failure.
(iv) Other Defaults, Litigation and Judgments.Seller shall promptly (and in anyeventnotlaterthantwo(2)BusinessDaysafterobtainingKnowledgethereof)notify Purchaser of (A)any default or event of default (or similar event) on the part of any Seller Party under any Indebtedness or other material contractual obligation (other than, in each case, in connection with the Subordinate Loan or the Subordinated Facility Documents)totheextenttheobligationsinconnectionwithsuchdefaultunderthe
applicable agreement (1) are at least equal to the applicable Default Threshold, or (2) which, individually or in the aggregate, if adversely determined, would reasonably be likely to have a Material Adverse Effect and (B)the commencement or threat in writing of, settlement of, or judgment in, any litigation, action, suit, arbitration, investigation or other legal or arbitrable proceeding involving any Seller Party that (1) makes a claim or claims in the aggregate amount greater than the applicable Litigation Threshold, or (2) which, individually or in the aggregate, if adversely determined, would reasonably be likely to have a Material Adverse Effect.
(v) CorporateChange.SellershalladvisePurchaserinwritingoftheopening of any new chief executive office, or the closing of any such office, of any Seller Party and of any change in any Seller Party’s name or the places where the books and records pertaining to the Purchased Asset are held not less than fifteen (15) Business Days prior to taking any such action.
(vi) Sanctions; Anti-Corruption and Anti-Money Laundering Laws.Seller shall promptly(and in anyevent within five (5) Business Days after Knowledgethereof) notifyPurchaserofanyviolationoftherepresentationandwarrantycontainedin Article10(jj)(Sanctions; No Prohibited Persons) and Article10(kk)(Anti-Corruptionand Anti-Money Laundering Laws).
(b) ReportingandOtherInformation.Sellershallprovide,ortocausetobeprovided, to Purchaser the following financial and reporting information:
(i) Purchased Asset Information.(A)Promptlyafter receiptbySeller,butno less frequentlythan once per calendar month, copies of propertylevel information made available to Seller and all other required reports, rent rolls, financial statements, certificates and notices (including, without limitation, any notice of the occurrence of a default oranevent ofdefaultunderthePurchasedAssetDocuments)itreceivespursuant to the Purchased Asset Documents relating to any Purchased Asset and (B)any other
information with respect to the Purchased Assets that may be requested by Purchaser from time to time.
(ii) Monthly Purchased Asset Reports.Seller shall provide, or shall cause to be provided, to Purchaser (A)no later than the fifteenth (15th) day of each month, any property level financial information (including, without limitation, operating and financial statements) with respect to the Purchased Assets that was received from the related Borrower in accordance with the related Purchased Asset Documents during the preceding calendar month and is in the possession of Seller or an Affiliate, including, without limitation, rent rolls, income statements and STR reports, in each case, if applicable; and (B)promptly upon request, such other information with respect to the PurchasedAssetsthatmaybereasonablyrequestedbyPurchaserfromtimetotimeandto the extent available to Seller.
(iii) Quarterly Reports.Seller shall provide, or shall cause to be provided, to Purchaserwithinsixty(60)daysaftertheendofeachofthefirstthree(3)quarterlyfiscal periodsofeachfiscalyearofGuarantor,theunauditedconsolidatedbalancesheetsof
Guarantor,asattheendofsuchperiodandtherelatedunaudited,consolidatedstatements of income and member equity of Guarantor for such period (with or without footnotes) and the portion of the fiscal year through the end of such period, accompanied by an officer’s certificate of Guarantor, which certificate shall state that said consolidated financial statements fairly present the financial condition of Guarantor, as applicable, in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments); provided, however, to the extent that Guarantor’s quarterly financial statements for such period are posted to the website for the Securities and Exchange Commission (http://www.sec.gov) within such sixty (60) day period, Seller shall be deemed to have satisfied the reporting requirements of this Article 12(b)(iii)upon delivery of such posting.
(iv) Annual Reports.Seller shall provide, or shall cause to be provided, to Purchaser within one hundred twenty (120) days after the end of the fiscal year of Guarantor, the audited consolidated balance sheets of Guarantor, as at the end of such fiscalyearandtherelatedaudited,consolidatedstatementsofincome,memberequityand cash flows of Guarantor, accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of Guarantor in accordance with GAAP, as at the end of, and for, such period (subject to normal year-end audit adjustments); provided, however, to the extent that Guarantor’s annual financial statements for such period are posted to the website for the Securities and Exchange Commission (http://www.sec.gov) within such one hundred twenty (120) day period, Seller shall be deemed to have satisfied the reporting requirements of this Article 12(b)(iv).
(v) Covenant Compliance Certificate.Along with each delivery pursuant to clauses (ii), (iii)and (iv)above, a completed and executed Covenant Compliance Certificate.
(vi) Other Documentation.Seller shall provide, or shall cause to be provided, to Purchaser within five (5) Business Days after Purchaser’s request therefor, such other documents,reportsandinformationasPurchasermayreasonablyrequest(A)withrespect to the financial affairs of the Seller Parties and (B) to the extent available to Seller pursuanttothePurchasedAssetDocumentsrelatedtosuchPurchasedAsset,withrespect to any Purchased Asset or operation of any Mortgaged Property.
(c) DefenseofPurchaser’sSecurityInterest.Sellershall(i)defendtheright,titleand interest of Purchaser in and to the Purchased Assets and other Collateral against, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons (other than securityinterests byorthrough Purchaser) and (ii) at Purchaser’s reasonable request,takeallactionPurchaserdeemsnecessaryordesirabletoensurethatPurchaserwillhave a first prioritysecurityinterest in the Purchased Assets and other Collateral subject to anyof the Transactions in the event such Transactions are recharacterized as secured financings.
(d) Additional Rights.If Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange foraPurchasedAsset,orotherwiseinrespectthereof,SellershallacceptthesameasPurchaser’s agent, hold the same in trust for Purchaser and deliver the same forthwith to Purchaser (or the Custodian, as appropriate) in the exact form received, duly endorsed by Seller to Purchaser, if required, together with an undated bond power covering such certificate duly executed in blank to be held by Purchaser hereunder as additional collateral security for the Transactions.If any sums of money or property so paid or distributed in respect of the Purchased Assets other than any Income which Seller is entitled to direct parties other than Purchaser pursuant to Article 5shall be received by Seller, Seller shall, until such money or property is paid or delivered to Purchaser, hold such money or property in trust for Purchaser, segregated from other funds of Seller, as additional collateral security for the Transactions.
(e) FurtherAssurances.Atanytimefromtimetotimeuponthereasonablerequestof Purchaser, at the sole expense of Seller, Seller shall promptlyand dulyexecute and deliver such further instruments and documents and take such further actions as Purchaser may deem necessaryor desirable to (i) obtain or preserve the securityinterest granted hereunder, (ii) ensure that such security interest remains fully perfected at all times and remains at all times first in priority as against all other creditors of Seller (whether or not existing as of the Closing Date or inthefuture),and(iii)obtainorpreservetherightsandpowershereingranted(including,among other things, filing such UCC financing statements as Purchaser may request); provided, however, that nothing in this Article 12(e)shall be construed as requiring Purchaser to conduct anyinquiryor decreasing Seller’s responsibility for its statements, representations, warranties or covenants hereunder.If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any promissory note, other instrument or certificated security, such note, instrument or certificated security shall be promptly delivered to Purchaser, duly endorsed in a manner satisfactory to Purchaser, to be itself held as Collateral pursuant to the Transaction Documents.
(f) Preservation of Existence; Licenses.Seller shall at all times maintain and preserve its legal existence and all of the rights, privileges, licenses, permits and franchises necessary for the operation of its business (including, without limitation, preservation of all lending licenses held by Seller and of Seller’s status as a “qualified transferee” (however denominated) under all documents which govern the Purchased Assets), to protect the validity
and enforceability of the Transaction Documents and each Purchased Asset and for its performance under the Transaction Documents, except to the extent such failure to maintain would not be reasonably likely to result in a Material Adverse Effect.
(g) Compliance with Transaction Documents.Seller shall observe, perform and satisfyall theterms,provisions, covenants and conditions required to beobserved,performedor satisfied by it, and shall pay when due all costs, fees and expenses required to be paid by it, under the Transaction Documents.
(h) Compliance with Other Obligations.Seller shall at all times comply(i)with its organizational documents in all material respects, (ii)in all respects with any agreements by which it is bound or to which its assets are subject, except where failure to complycouldnot be
reasonably likely to have a Material Adverse Effect, and (iii) in all material respects, with anyapplicable Requirement of Law.
(i) Books and Records.Seller shall, andshall cause eachotherSellerPartyto, at all times keep proper books of records and accounts in which full, true and correct entries shall be made of its transactions fairly in accordance with GAAP, and set aside on its books from its earnings for each fiscal year all such proper reserves in accordance with GAAP.
(j) Taxes and Other Charges.Seller shall pay and discharge all taxes, assessments, levies, liens and other charges imposed on it, on its income or profits or on any of its property priortothedateonwhichpenaltiesattachthereto,exceptforanysuchtaxes,assessments,levies, liensandotherchargeswhich(i)arebeingcontestedingoodfaithandbyproperproceedingsand against which adequate reserves have been provided in accordance with GAAP or (ii) are de minimis in amount.
(k) Operations.Seller shall continue to engage in business of the same general type as now conducted by it or otherwise as approved by Purchaser prior to the date hereof.Seller shall maintain records with respect to the Collateral and Purchased Items and the conduct and operation of its business with no less a degree of prudence than if the Collateral and Purchased Items were held by Seller for its own account and shall furnish Purchaser, upon reasonable request byPurchaser or its designated representative, with reasonable information obtainable by Seller with respect to the Collateral and Purchased Items and the conduct and operation of its business.
(l) Responsibility for Fees and Expenses of Third-Parties.Seller shall be solely responsible for the fees and expenses of Custodian, Account Bank and Servicer except to the extent expresslyset forth in the Custodial Agreement, Account Control Agreement or Servicing Agreement.
(m) IntentionallyOmitted.
(n) Future Advances.To the extent any future advance is required to be made pursuant to the Purchased Asset Documents with respect to any Purchased Asset, Seller shall fund such future advance in accordance with such Purchased Asset Documents, regardless of whether Purchaser agrees to fund an increase in the Purchase Price or the conditions for increasing the Purchase Price under this Agreement have been satisfied with regard to such future advance.
ARTICLE 13
SINGLEPURPOSEENTITYCOVENANTS
Onandasofthedatehereofandatalltimes while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(i) Seller shall own no assets other than (i) Purchased Assets, (ii) its interest undertheTransactionDocuments,(iii)cashandcashequivalents,(iv)EligibleAssetsfor whichSellerhasdeliveredtoPurchaserwrittennoticeofitsintenttosellsuchEligible
Asset as a Purchased Asset pursuant to this Agreement, (v) its interests under the Subordinate Loan, and (vi) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assets, and shall not engage in any business, other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement and disposition of Purchased Assets in accordance with the applicable provisions of the Transaction Documents;
(ii) Seller shall not make anyloans or advances to anyAffiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted or contemplated by the Transaction Documents;
(iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due;
(iv) Seller shall complywith theprovisions of itsorganizationaldocuments in all material respects;
(v) Sellershalldoallthingsnecessarytoobserveitslimitedliabilitycompany formalities and to preserve its existence;
(vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collectionaccountmaintainedbyServiceronbehalfofSellerforthecollectionofIncome with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any
other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet)andfileitsowntaxreturns,ifany(excepttotheextentconsolidationisrequiredor permitted under Requirements of Law);
(vii) Sellershallbe,andatalltimesshallholditselfouttothepublicas,alegal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known misunderstanding regarding its status as a separate entity, shall conduct business in itsownname,andshall notidentifyitselforanyofitsAffiliates as adivision of the other;
(viii) Seller shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations and shall remain solvent; provided, that the foregoing
shallnotrequireany member,partnerorshareholderofSellertomakeany additional capital contributions to Seller;
(ix) Seller shall not commingle its funds or other assets with those of any AffiliateoranyotherPersonandshallmaintainitspropertiesandassetsinsuchamanner that itwouldnot becostlyordifficult toidentify,segregateorascertainitspropertiesand assets from those of others;
(x) intentionallyomitted;
(xi) Sellershallnotholditselfouttoberesponsibleforthedebtsorobligations of any other Person;
(xii) Seller shall not, without the prior unanimous written consent of its Independent Manager, perform any Act of Insolvency;
(xiii) Sellershall,atalltimes,haveatleastone(1)IndependentManager;
(xiv) Seller’sorganizationaldocumentsshallprovide(i)thatPurchaserbegiven at least two (2) Business Days prior notice of the removal and/or replacement of any IndependentManager,togetherwiththenameandcontactinformationofthereplacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that anyIndependentManager ofSellershall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xv) Sellershall not enterinto anytransaction with anAffiliateofSeller(other than the Subordinate Loan) except on terms substantially similar to those that would be available with unaffiliated parties in an arm’s length transaction;
(xvi) Seller shall maintain a sufficient numberof employees (orobtainservices to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations provided that Seller shall not be required to maintain any employees;
(xvii) [reserved];
(xviii) Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction Documents or under the Subordinate Loan;
(xix) Sellershallnotform,acquireorholdanySubsidiary;and
(xx) Seller shall not incur or assume any Indebtedness (other than in connection with the Subordinate Loan or the Subordinated Facility Documents), other than(A)obligationsundertheTransactionDocuments,(B)obligationsunderthe
documents evidencing the Purchased Assets, and (C)liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course; provided that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entryinto the Transaction Documents,nosuchvaluelimitshallapply,and(B)anyandallunsecuredtradepayables incurred by Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
ARTICLE 14
EVENTSOFDEFAULT;REMEDIES
(a) EventsofDefault.Eachofthefollowingeventsshallconstitutean“EventofDefault” under this Agreement:
(i) Failure to Repurchase or Repay.Seller shall fail to repurchase any Purchased Asset upon the applicable Repurchase Date or shall fail to pay the applicable Repurchase Price when and as required pursuant to the Transaction Documents.
(ii) Failure to Pay Purchase Price Differential.Purchaser shall fail to receive on any Remittance Date the accrued and unpaid Purchase Price Differential; provided, however, no more than two (2) times during any twelve (12) month period Seller may curesuchfailurewithintwo(2)BusinessDaysifsuchfailurearosesolelybyreasonofan error or omission of an administrative or operational nature and funds were available to Seller to make such payment when due.
(iii) FailuretoCureMarginDeficit.SellershallfailtocureanyMarginDeficit within the period specified in Article 4.
(iv) Failure to Remit Principal Payment.Seller fails to remit (or cause to be remitted) to Purchaser anyPrincipalPayment received with respect to aPurchased Asset for application to the payment of the Repurchase Price for such Purchased Asset in accordance with Article 5(d).
(v) OtherPaymentDefault.SellershallfailtomakeanyFutureFundingTrue Up Amount payment or any payment not otherwise enumerated that is owing to Purchaser that has become due, whether by acceleration or otherwise under the Transaction Documents, within five (5) Business DaysafternoticethereoftoSellerfrom Purchaser or Seller’s knowledge thereof.
(vi) Negative Acts. Seller shall fail to perform, comply with or observe any term, covenant or agreement applicable to Seller contained in Article11(Negative CovenantsofSeller)orArticle13(SinglePurposeEntityCovenants);provided,however,
that if such failure is susceptible to cure, Seller fails to cure the same within five (5) BusinessDaysafternoticeofsuchbreachfromPurchasertoSellerorSeller’sKnowledge thereof(providedthat,anysuchbreachresultingfromthewillfulmisconductorbadfaith of Seller Party or any Affiliate thereof shall not be susceptible to cure).
(vii) ActofInsolvency.AnActofInsolvencyoccurswithrespecttoanySeller
Party.
(viii) AdmissionofInabilitytoPerform.AnySellerPartyshalladmitinwriting
toanyPersonitsinabilityto,oritsintentionnotto,performanyofitsrespectiveobligations under any Transaction Document.
(ix) Transaction Documents.Any Transaction Document or a replacement therefor acceptable to Purchaser shall for whatever reason be terminated (other than by Purchaser without cause or by anySeller Partypursuant to the terms thereof) or cease to be in full force and effect prior to termination, or shall not be enforceable in accordance with its terms, or any Person (other than Purchaser) shall contest the validity or enforceability of any Transaction Document or the validity, perfection or priority of any Lien granted thereunder, or any Person (other than Purchaser) shall seek to disaffirm, terminate or reduce its obligations under any Transaction Document.
(x) Cross-Default.Any Seller Party shall be in default under (x) any Indebtedness of such Seller Partywhich default (A)involves thefailure to payamatured obligation or (B) permits the acceleration of, or has resulted in the acceleration of, the maturity of obligations by any other party to or beneficiary with respect to such Indebtedness; or (y) any other contract to which such Seller Party is a party which default(A)involvesthefailuretopayamaturedobligationor(B)permitstheacceleration of, or has resulted in the acceleration of, the maturityof obligations byanyother partyto or beneficiary of such contract, in each case of clauses (x) and (y), to the extent (i) the obligations in connection with such default or failure individually or in the aggregate with other defaults or failure are at least equal to the applicable Default Threshold, (ii) the defaults or failures are not in connection with the Subordinate Loan or the Subordinated Facility Documents and (iii) solely with respect to Initial Guarantor, such default or failure is with respect to an obligation between Initial Guarantor and Barclays Bank PLC or its Affiliates (it being understood that from and after the Guarantor Replacement Event, Initial Guarantor shall no longer be a Seller Party and that, accordingly, from and after such Guarantor Replacement Event, this clause (ii) shall no longer be relevant or apply); provided, however, that any such default or failure to
performshallnotconstituteaDefaultoranEventofDefaultiftheapplicableSellerParty cures such default or failure to perform, as the case may be, within the grace period, if any, provided under the applicable agreement.
(xi) ERISA. (A) Seller or an ERISA Affiliate shall engage in any “prohibited transaction”(asdefined inSection406 ofERISAorSection4975oftheCode)involving anyPlanthatisnotexemptfromsuchSectionsofERISAandtheInternalRevenueCode,
(B)anymaterial“accumulatedfundingdeficiency”(asdefinedinSection302ofERISA), whetherornotwaived,shallexistwithrespecttoanyPlanoranyLieninfavorofthe
PBGC or a Plan shall arise on the assets of Seller or any ERISA Affiliate, (C) a ReportableEvent(asreferencedinSection4043(b)(3)ofERISA)shalloccurwithrespect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of Purchaser, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (D) any Plan shall terminate for purposes of Title IV of ERISA, or (E) Seller or anyERISAAffiliateshall,orinthereasonableopinionofPurchaserislikelyto,incurany liability in connection with a withdrawal from, or the insolvency or reorganization of, a Multiemployer Plan; and in each case in clauses (A)through (E)above, such event or condition, together with all other such events or conditions, if any, would reasonably be likelyto have a Material Adverse Effect, as determined byPurchaser in its commercially reasonable discretion.
(xii) Recharacterization.If either (A) any Transaction is recharacterized as a secured financing, rather than a “securities contract”, as that term is defined in Section 741ofTitle11oftheUnitedStatesCodeor(B)ifanyTransactionisrecharacterizedasa secured financing, and in either case, the Transaction Documents with respect to such Transactionshallforanyreasonceasetocreateandmaintainavalidfirstprioritysecurity interest in favor of Purchaser in any of the related Purchased Assets and Seller fails to cure or repurchase the applicable Purchased Assets within five (5) Business Days following receipt by Seller of written notice thereof from Purchaser;
(xiii) Governmental or Regulatory Action.Any governmental, regulatory, or self-regulatoryauthorityshall havetaken anyaction to remove, limit, restrict,suspend or terminatethe rights,privileges, oroperations of anySellerParty,whichsuspensionhas a Material Adverse Effect as determined byPurchaser in its sole and absolute discretion.
(xiv) IntentionallyOmitted.
(xv) Change of Control.A Change of Control shall haveoccurred withoutthe prior written consent of Purchaser.
(xvi) Representation or Warranty Breach.If any representation, warranty or certification (other than those contained in Article 10(w)relating to Purchased Assets subject to other Transactions, which shall be considered solely for the purpose of determining the Market Value of the Purchased Assets, unless (i)Seller shall have made anysuchrepresentationsandwarrantieswithactualKnowledgethattheywerematerially false or materially misleading at the time made; or (ii)any such representations and warranties have been determined by Purchaser in its sole and absolute discretion to be materiallyfalse or materiallymisleading on a regular basis) made to Purchaser by, or on
behalf of, any Seller Party or any Servicer that is an Affiliate of any Seller Party shall have been incorrect or untrue in any respect when made or repeated or deemed to have been made or repeated, and such representation, warranty or certification breach is not curedwithinten(10)daysthereafter(totheextentsuchrepresentation,warrantyor
certificationiscurableandwasnotmadewithKnowledgethatsuchrepresentation, warranty or certification was incorrect at the time made).
(xvii) Judgment.Anyfinal non-appealable judgment byanycompetent court in the United States of America for the payment of money is rendered against any Seller Party in an amount at least equal to the applicable Litigation Threshold, and such judgment remains undischarged or unpaid for a period of thirty (30) days, during which period execution of such judgment is not effectively stayed by bonding over or other means acceptable to Purchaser in its sole and absolute discretion.
(xviii) Guarantor Breach.The breach by Guarantor of the covenants made by it in ArticleV(i)(Limitation on Distributions) or ArticleV(k)(Financial Covenants) of the Guaranty.
(xix) AffiliatedServicerBreach.ThebreachbyanyServicerthatisanAffiliate of any Seller Party of its obligation to deposit or remit any Income received by such Servicer in accordance with Article 5(d).
(xx) RiskRetentionEvent.ARiskRetentionEventoccursandisnotremedied within three (3) Business Days following the earlier of (x) the Retention Holder becomingawareoftheoccurrenceofsuchRiskRetentionEventand(y)receiptofwritten notice bythe Retention Holder from Purchaser that a Risk Retention Event has occurred.
(xxi) Other Covenant Default.If any Seller Party or any Servicer that is an Affiliate of any Seller Party shall breach or fail to perform any of the terms, covenants, obligations or conditions under any Transaction Document, other than as specifically otherwise referred to in this definition of “Event of Default”, provided, that, if such breach or failure to perform is susceptible to cure as determined by Purchaser in its sole and absolute discretion, then such Person shall have five (5) Business Days after the earlier of notice to such Person, or such Person’s actual knowledge, of such breach or failuretoperform,toremedysuchbreachorfailuretoperform(providedthat,anybreach or failure to perform resulting from the grossnegligence, willfulmisconduct orbad faith of any applicable Person or any Affiliate thereof shall not be susceptible to cure), provided, however, that if such breach or failure to perform is susceptible to cure but cannot reasonably be cured within such period and such Person shall have commenced curewithinsuchperiodandisthereafterdiligentlyandexpeditiouslyproceedstocurethe same, such period shall be extended for such time as is reasonably necessary for such Person, in the exercise of due diligence, to cure such breach or failure to perform, but in no event shall such cure period exceed thirty(30) days after the earlier of notice to such Person from Purchaser, or such Person’s Knowledge, of such breach or failure to perform.
(b) Remedies.If an Event of Default shall occur and be continuing with respect to Seller, the following rights and remedies shall be available to Purchaser:
(i) At the option of Purchaser, exercised by written notice to Seller (which optionshallbedeemedtohavebeenexercised,evenif no notice isgiven, immediately
upon the occurrence of an Act of Insolvency with respect to any Seller Party), the Repurchase Date for each Transaction hereunder shall, if it has not already occurred, immediately occur (such date, the “Accelerated Repurchase Date”).
(ii) If Purchaser exercises or is deemed to have exercised the option referred to in Article 14(b)(i):
(A) Seller’s obligations hereunder to repurchase all Purchased Assets shall become immediately due and payable on and as of the Accelerated Repurchase Date;
(B) to the extent permitted by applicable law, the Repurchase Price with respect to each Transaction (determined as of the Accelerated Repurchase Date)shallbeincreasedbytheaggregateamountobtainedbydailyapplicationof, on a 360 dayper year basis for the actual number of days during the period from and including the Accelerated Repurchase Date to but excluding the date of payment of the Repurchase Price (as so increased), (x) the Pricing Rate for such Transaction multiplied by (y) the Purchase Price for such Transaction (decreased by (I) any amounts actually remitted to Purchaser by the Account Bank or Seller fromtimetotimepursuanttoArticle5andappliedtosuchRepurchasePrice,and
(II) any amounts applied to the Repurchase Price pursuant to this Article14(b)(ii));
(C) the Custodian shall, upon the request of Purchaser, deliver to Purchaser all instruments, certificates and other documents then held by the Custodian relating to the Purchased Assets; and
(D) Purchaser may (1) immediatelysell, at a public or private sale in a commercially reasonable manner and at such price or prices as Purchaser may deem satisfactory any or all of the Purchased Assets, and/or (2) in its sole and absolute discretion elect, in lieu of selling all or a portion of such Purchased Assets, to give Seller credit for such Purchased Assets in an amount equal to the marketvalueofsuchPurchasedAssets(asdeterminedbyPurchaserinitssoleand absolute discretion) against the aggregate unpaid Repurchase Price for such Purchased Assets and any other amounts owing by Seller under the Transaction Documents, and in the case of (1), return anyexcess after application of amounts due to Seller.The proceeds of any disposition of Purchased Assets effected pursuant to this Article 14(b)(ii)(D)shall be applied to the Repurchase Obligations in such order of priority as Purchaser shall determine in its sole and absolute discretion.
(iii) The parties acknowledge and agree that (A) the Purchased Assets subject to any Transaction hereunder are not instruments traded in a recognized market, (B) in the absence of a generallyrecognized source for prices or bid or offer quotations for any Purchased Asset, Purchaser may establish the source therefor in its sole and absolute discretion and (C) all prices, bids and offers shall be determined together with accrued Income(excepttotheextentcontrarytomarketpracticewithrespecttotherelevant
Purchased Assets).The parties recognize that it may not be possible to purchase or sell all of the Purchased Assets on a particular Business Day, or in a transaction with the same purchaser, or in the same manner because the market for such Purchased Assets may not be liquid.In view of the nature of the Purchased Assets, the parties agree that liquidationofaTransactionorthePurchasedAssetsdoesnotrequireapublicpurchaseor saleandthatagoodfaithprivatepurchaseorsaleshallbedeemedtohavebeenmadeina commercially reasonable manner.Accordingly, Purchaser may elect, in its sole and absolute discretion, the time and manner of liquidating any Purchased Assets, and nothing contained herein shall (A) obligate Purchaser to liquidate any Purchased Assets on theoccurrence and duringthe continuance of an Event of Default or to liquidate all of thePurchasedAssetsinthesamemanneroronthesameBusinessDayor(B)constitutea waiver of any right or remedy of Purchaser.
(iv) Seller shall be liable to Purchaser and its Affiliates and shall indemnify Purchaser and its Affiliates for the amount (including, without limitation, in connection with the enforcement ofthis Agreement) of allactualanddocumentedlosses,reasonable out-of-pocket costs and expenses (including, without limitation, the reasonable fees and expenses of outside counsel) incurred by Purchaser in connection with or as a consequence of an Event of Default.
(v) Purchaser shall have, in addition to its rights and remedies under the Transaction Documents, all of the rights and remedies provided by applicable federal, state, foreign (where relevant), and local laws (including, without limitation, if the Transactions are recharacterized as secured financings, the rights and remedies of a secured party under the UCC, to the extent that the UCC is applicable, and the right to offset any mutual debt and claim), in equity, and under any other agreement between PurchaserandSeller.Withoutlimitingthegeneralityoftheforegoing,Purchasershallbe entitled to set off the proceeds of the liquidation of the Purchased Assets against all of Seller’s obligations to Purchaser under this Agreement, without prejudice to Purchaser’s right to recover any deficiency.
(vi) Subject to the applicable notice, grace or cure periods set forth herein, Purchaser may exercise any or all of the remedies available to Purchaser immediately upon the occurrence of an Event of Default and at any time during the continuance thereof.All rights and remedies arising under the Transaction Documents, as amended from time to time, are cumulative and not exclusive of any other rights or remedies that Purchaser may have.
(vii) Purchaser may enforce its rights and remedies hereunder without prior judicialprocessorhearing,andSellerherebyexpresslywaivesanydefensesSellermight otherwise have to require Purchaser to enforce its rights by judicial process.Seller also waives, to the extent permitted by law, any defense Seller might otherwise have arising from the use of nonjudicial process, disposition of any or all of the Purchased Assets, or from any other election of remedies.Seller recognizes that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm’s length.
(c) Power of Attorney.Seller herebyappointsPurchaseras attorney-in-factofSeller duringthecontinuanceofanEventofDefaultforthepurposeoftakinganyactionandexecuting or endorsing anyinstruments thatPurchasermaydeemnecessaryor advisable to accomplish the
purposes of this Agreement, including the exercise of any remedies hereunder, which appointment as attorney-in-fact is irrevocable and coupled with an interest.
ARTICLE15
SET-OFF
(a) AftertheoccurrenceandduringthecontinuanceofanEventofDefault,in additiontoanyrightsnoworhereaftergrantedunderapplicablelaworotherwise,andnotbyway oflimitationofany suchrights,Sellerhereby grantstoPurchaseranditsAffiliatesarightof set-off, without prior notice to Seller, any sum or obligation (whether or not arising under thisAgreement, whether matured or unmatured, whether or not contingent and irrespective of thecurrency,placeofpaymentorbookingofficeofthesumorobligation)owedbySellerto Purchaser or any Affiliate of Purchaser against (i) any sum or obligation (whether or not arising underthisAgreement,whethermaturedorunmatured,whetherornotcontingentandirrespective of the currency, place of payment or bookingoffice of the sum or obligation) owed byPurchaser oritsAffiliatestoSellerand(ii)anyandalldeposits(generalorspecified),monies,credits, securities,collateralorotherpropertyofSellerandtheproceedstherefrom,noworhereafterheld or received for the account of Seller (whether for safekeeping, custody, pledge, transmission,collection,orotherwise)byPurchaseroritsAffiliatesoranyentityunderthecontrolofPurchaseroritsAffiliatesanditsrespectivesuccessorsandassigns(including,without limitation, branches and agencies of Purchaser, wherever located).Purchaser shall give written notice to Seller of any set-off elected under this Article 15.
(b) Purchaser and its Affiliates are hereby authorized at any time and from time totime upon the occurrence and during the continuance of an Event of Default, without notice to Seller, to set-off, appropriate, apply and enforce such right of set-off against any and all itemshereinabove referred to against any amounts owing to Purchaser or its Affiliates by Seller under the Transaction Documents, irrespective of whether Purchaser or its Affiliates shall have made anydemandhereunderandalthoughsuchamounts,oranyofthem,shallbecontingentor unmaturedandregardlessofanyothercollateralsecuringsuchamounts.Ifasumorobligationis unascertained, Purchaser may in good faith estimate that obligation and set-off in respect of the estimate, subject to the relevant partyaccounting to the other when the obligation is ascertained. Nothing inthisArticle15shallbe effective to create a charge or other security interest.This Article15shallbewithoutprejudiceandinadditiontoanyrightofset-off,combinationof accounts,lienorotherrightstowhichany party isatany timeotherwise entitled(whetherby operation of law, contract or otherwise).
(c) ANY AND ALL RIGHTS TO REQUIRE PURCHASER OR ITS AFFILIATES TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL OR PURCHASED ITEMS THAT SECURE THE AMOUNTS OWING TO PURCHASER OR ITS AFFILIATES BY SELLER UNDER THE TRANSACTION DOCUMENTS, PRIORTOEXERCISINGTHEIRRIGHTOFSET-OFFWITHRESPECTTO SUCHMONIES,SECURITIES,COLLATERAL,DEPOSITS,CREDITSOROTHER
PROPERTY OF SELLER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY SELLER.
ARTICLE 16
SINGLEAGREEMENT
PurchaserandSelleracknowledgethat,andhaveenteredhereintoandwillenterintoeach Transaction hereunder in consideration of and in reliance upon the fact that, all Transactions hereunder constitute a single business and contractual relationship and have been made in consideration of each other.Accordingly, each of Purchaser and Seller agrees (i) to perform all of its obligations in respect of each Transaction hereunder, and that a default in the performance ofany suchobligationsshallconstitute a defaultby itin respectof allTransactionshereunder,
(ii)thateachofthemshallbeentitledtosetoffclaimsandapplypropertyheldbytheminrespect of any Transaction against obligations owing to them in respect of any other Transactions hereunderand(iii)thatpayments,deliveriesandothertransfersmadebyeitheroftheminrespect of any Transaction shall be deemed to have been made in consideration of payments, deliveries and other transfers in respect of any other Transactions hereunder, and the obligations to make anysuch payments, deliveries and other transfers maybe applied against each other and netted.
ARTICLE 17
INTENTIONALLYOMITTED
ARTICLE 18
NOTICESANDOTHERCOMMUNICATIONS
Unless otherwise provided in this Agreement, all notices, consents, approvals and requests required or permitted hereunder shall be given in writing and shall be effective for all purposes if sent by (a) hand delivery, with proof of delivery, (b) certified or registered United States mail, postageprepaid, (c)expedited prepaid deliveryservice, eithercommercial orUnited States Postal Service, with proof of delivery, or (d) by electronic mail, providedthat, such electronicmailnoticemustalsobedeliveredbyoneofthemeanssetforthin(a),(b)or(c)above unless the sender of such communication receives a verbal or electronic confirmation acknowledging receipt thereof (for the avoidance ofdoubt, anyautomaticallygenerated email or any similar automatic response shall not constitute confirmation), to the address specified in ExhibitIhereto or at such other address and person as shall be designated from time to time by any partyhereto, as the case maybe, in a written notice to the other parties hereto in the manner provided for in this Article 18.A notice shall be deemed to have been given: (x) in the case of hand delivery, at the time ofdelivery, if on a Business Day, and otherwise on the next occurring Business Day, (y)in the case of registered or certified mail or expedited prepaid delivery, when delivered, if on a Business Day, and otherwise on the next occurring Business Day, or upon the first attempted deliveryon a Business Dayor (z) in the case of electronic mail, upon receipt of a verbal orelectronicconfirmationacknowledgingreceiptthereof(fortheavoidanceofdoubt,any automatically generated email or any similar automatic response shall not constitute confirmation).A party receiving a notice that does not comply with the technical requirements
fornoticeunderthisArticle18mayelecttowaiveanydeficienciesandtreatthenoticeashaving been properly given.
ARTICLE 19
ENTIRE AGREEMENT; SEVERABILITY
This Agreement shall supersede any existing agreements between the parties containing general terms and conditions for repurchase transactions.Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement.
ARTICLE 20
NON-ASSIGNABILITY
(a) No Seller Party may assign any of its rights or obligations under this Agreement or the other Transaction Documents without the prior written consent of Purchaser (which may begrantedorwithheldinPurchaser’ssoleandabsolutediscretion)andanyattemptbyanySeller Party to assign any of its rights or obligations under this Agreement or any other Transaction Document without the prior written consent of Purchaser shall be null and void.
(b) Purchaser may, without consent of Seller, at any time and from time to time, assign or participate some or all of its rights and obligations under the Transaction Documents and/or under any Transaction (subject to Article 9(a)) to an Affiliate of Purchaser or to any Person while an Event of Defaulthasoccurred and is continuing, provided,that, while an Event ofDefault is notcontinuing(i)Purchasershall onlybepermittedtoassignorparticipatesomeor all of its rights and obligations under the Transaction Documents, the Subordinated Facility Documents and/or under anyTransaction (subject to Article 9(a)) to a Qualified Transferee that is not a Prohibited Transferee, (ii) Barclays Bank PLC shall remain sole agent under the TransactionDocumentsandtheSubordinatedFacilityDocumentsandshallretainadministrative responsibility and continue to control all decisions under the Transaction Documents and the Subordinated FacilityDocuments, as applicable, and (iii)Sellershall continue todealsolelyand directly with Barclays Bank PLC in connection with the Transaction Documents and the Subordinated Facility Documents.While no Event of Default has occurred and is continuing, anysuchassignmentorparticipationbyPurchasershallbeatnocostwhatsoevertoSellerorany of the other Seller Parties. In connection therewith, Purchaser may bifurcate or allocate (i.e. senior/subordinate) amounts due to Purchaser, provided that Seller incurs no cost whatsoever with respect to such bifurcation or allocation while no Event of Default has occurred and is continuing.Seller agrees to cooperate with Purchaser in connection with any such assignment, transfer or sale of participating interest done in accordance with the terms of this Article20(b)andtoenterintosuchrestatementsof,andamendments,supplementsandothermodificationsto, the Transaction Documents to which it is a party in order to give effect to such assignment, transfer or sale of participating interest.
(c) Purchaser, acting solely for this purpose as an agent of Seller, shall maintain at one of its offices in the United States, a copy of each such sale, transfer and assignment and assumption delivered to it and a register for the recordation of the names and addresses of each purchaser,transfereeandassignee,asapplicable,and theamounts(andstatedinterest)owingto, eachpermittedpurchaser,transfereeandassigneepursuant to thetermshereoffrom timeto time
(the“Register”).TheentriesintheRegistershallbeconclusiveabsentmanifesterror,andSeller and Purchaser shall treat each Person whose name is recorded in the Register pursuant to the termshereof as aPurchaserhereunder for allpurposes ofthis Agreement.TheRegistershall be available for inspection by Seller at any reasonable time and from time to time upon reasonable prior notice.No sale, transfer or assignment pursuant to this Article 20shall be effective until reflected in the Register.
(d) IfPurchasersellsaparticipationwithrespecttoitsrightsunderthisAgreementor under any other Transaction Document with respect to the Purchased Assets, it shall, acting solely for this purpose as an agent of Seller, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Purchased Assets (the “Participant Register”); providedthat Purchaser shall have no obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Transaction Document) to any Person except to Seller or to the extent that such disclosure is necessary to establish that such interest is in registered form under Section 5f.103-1(c) of the United States Treasuryregulations.The entries in theParticipantRegistershall beconclusiveabsentmanifest error, and Purchaser and Seller shall treat each Person whose name is recorded inthe register as the owner of such participation interest for all purposes of this Agreement notwithstanding any notice to the contrary.No participation pursuant to this Article 20shall be effective until reflected in the foregoing register.
(e) Subject to the foregoing, the Transaction Documents and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective permitted successorsandassigns.NothingintheTransactionDocuments,expressorimplied,shallgiveto any Person, other than the parties to the Transaction Documents and their respective permitted successors, any benefit or any legal or equitable right, power, remedy or claim under the Transaction Documents.
ARTICLE 21
GOVERNINGLAW
THIS AGREEMENT (AND ANY CLAIM OR CONTROVERSY HEREUNDER) SHALLBECONSTRUEDINACCORDANCEWITHTHELAWSOFTHESTATEOFNEW YORK, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS DOCTRINE APPLIED IN SUCH STATE (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
ARTICLE 22
WAIVERSANDAMENDMENTS
No express or implied waiver of any Event of Default by either party shall constitute a waiverofanyotherEventofDefaultandnoexerciseofanyremedyhereunderbyanypartyshall constitute a waiver of its right to exercise any other remedy hereunder.No modification or waiver of any provision of this Agreement and no consent byanypartyto a departure herefrom
shall be effective unless and until such shall be in writing and duly executed by both of the parties hereto.
ARTICLE 23
INTENT
(a) The parties intend and acknowledge that (i)each Transaction is a “repurchase agreement” as that term is defined in Section 101(47) of Title 11 of the United States Code, as amended (except insofar as the type of Assets subject to such Transaction or the term of such Transactionwouldrendersuchdefinitioninapplicable),anda“securitiescontract”asthattermis defined in Section741 of Title 11 of the United States Code, as amended (except insofar as the type of assets subject to such Transaction would render such definition inapplicable), (ii)each PurchasedAssetconstituteseithera“mortgageloan”or“aninterestinamortgage”assuchterms are used in Title 11 of the United States Code, (iii) all payments hereunder are deemed “margin payments” or “settlement payments” as defined in Title II of the BankruptcyCode and(iv)the grant of the security interest/pledge of the Collateral in Article 7 constitutes“a security agreement or other arrangement or other credit enhancement” that is “related to” the Agreement and Transactions hereunder within the meaning of Sections 101(38A)(A), 101(47)(A)(v) and 741(7)(A)(xi) of the Bankruptcy Code.
(b) The parties intend and acknowledge that either party’s right to cause the termination, liquidation or acceleration of, or to set-off or net termination values, payment amountsorothertransferobligationsarisingunder,orinconnectionwith,thisAgreementorany Transaction hereunder or to exercise any other remedies pursuant to Article 14is in each case a contractual right to cause or exercise such right as described in Sections 555, 559 and 561 of Title 11 of the United States Code, as amended.
(c) Thepartiesintendandacknowledgethatifapartyheretoisan“insureddepository institution,” as such term is defined in theFederal Deposit InsuranceAct, as amended (“FDIA”), then each Transaction hereunder is a “qualified financial contract,” as that term is defined in the FDIA and any rules, orders or policy statements thereunder (except insofar as the type of assets subject to such Transaction would render such definition inapplicable).
(d) The parties intend and acknowledge that this Agreement constitutes a “netting contract” as defined in and subject to Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”) and each payment entitlement and payment obligation underanyTransactionhereundershallconstitutea“coveredcontractualpaymententitlement”or “coveredcontractualpaymentobligation”,respectively,asdefinedinandsubjecttoFDICIA
(exceptinsofaras oneorboth oftheparties is not a“financialinstitution”asthatterm isdefined in FDICIA).
(e) The parties intend and acknowledge that this Agreement constitutes a “master netting agreement” as defined in Section 101(38A) of Title 11 of the United States Code, as amended, and as used in Section 561 of Title 11 of the United States Code, as amended, and a “securities contract” with the meaning of Section 555 and Section 559 under the Bankruptcy Code.
(f) The parties intend and acknowledge that any provisions hereof or in any other document, agreement orinstrumentthat isrelated inanywaytothisAgreementshall bedeemed “related to” this Agreement within the meaning of Section 741 of the BankruptcyCode.
(g) Notwithstanding anything to the contrary in this Agreement, it is the intention of the parties that, for U.S. federal, and relevant state and local income and franchise tax purposes and for accountingpurposes, eachTransactionconstitute afinancingtoSeller,andthatSellerbe (except to the extent that Purchaser shall have exercised its remedies following an Event of Default) the owner of the Purchased Assets for such purposes.Unless prohibited byapplicable law, Seller and Purchaser agree to treat the Transactions as described in the preceding sentence for all U.S. federal, and relevant state, and local income and franchise tax purposes (including, without limitation, on any and all filings with any U.S. federal, state, or local taxing authority) and agree not to take any action inconsistent with such treatment.
(h) Each party hereto hereby further agrees that it shall not challenge the characterization of (i)this Agreement as a “repurchase agreement” (except to the extent the related Transaction has a duration that renders such term inapplicable), “securities contract” and/or “master netting agreement”, (ii)each party as a “repo participant” within the meaning of the Bankruptcy Code except insofar as, in the case of a “repurchase agreement”, the term of the Transactions, would render such definition inapplicable, or (iii)Purchaser as a “financial institution” or “financial participant” within the meaning of the BankruptcyCode.
ARTICLE 24
DISCLOSURERELATINGTOCERTAINFEDERALPROTECTIONS
Thepartiesacknowledgethattheyhavebeenadvisedthat:
(a) in the case of any Transaction in which one of the parties is a broker or dealer registered with the Securities and Exchange Commission (“SEC”) under Section 15 of the Exchange Act, the Securities Investor Protection Corporation has taken the position that the provisions of the Securities Investor Protection Act of 1970 (“SIPA”) do not protect the other party with respect to such Transaction;
(b) in the case of any Transaction in which one of the parties is a government securitiesbrokeroragovernmentsecuritiesdealerregisteredwiththeSECunderSection15Cof the 1934 Act, SIPA will not provide protection to the other party with respect to such Transaction; and
(c) in the case of any Transactions in which one of the parties is a financial institution, funds held by the financial institution in connection with such Transaction are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund, as applicable.
ARTICLE 25
CONSENT TO JURISDICTION; WAIVERS
(a) Each party irrevocably and unconditionally (i) submits to the exclusive jurisdiction of anyUnited States Federal or New York State court sitting in Manhattan, and any
appellate court from any such court, solely for the purpose of any suit, action or proceeding brought toenforceitsobligationsunderthisAgreement orrelatinginanywaytothisAgreement or any Transaction under this Agreement and (ii) waives, to the fullest extent it mayeffectively do so, any defense of an inconvenient forum to the maintenance of such action or proceeding in anysuchcourtandanyrightofjurisdictiononaccountofitsplaceofresidenceordomicile.The parties hereby agree 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.
(b) To the extent that either party has or hereafter may acquire any immunity (sovereign orotherwise) from anylegal action,suit orproceeding,fromjurisdiction ofanycourt or from set off or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of execution ofjudgment, execution ofjudgment orotherwise) with respect to itself or any of its property, such party hereby irrevocably waives and agrees not to plead or claim such immunity in respect of any action brought to enforce its obligations under this Agreement or relating in anywayto this Agreement or anyTransaction under this Agreement.
(c) The parties consent to the service of any summons and complaint and any other process by the mailing of copies of such process to them at their respective address specified herein.Nothing in this Article 25shall affect the right of anypartyhereto to serve legal process in any other manner permitted by law and nothing in this Article25shall affect the right of PurchasertobringanyenforcementactionorproceedingagainstanypropertyofSellerlocatedin other jurisdictions in the courts of such other jurisdictions to the extent required by the laws of such other jurisdictions.
(d) EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR THEREUNDER.
(e) EACH PARTY HEREBY WAIVES ANY RIGHT TO CLAIM OR RECOVER FROM THE OTHER PARTY OR ANY INDEMNIFIED PARTY ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OFANY KIND OR NATUREWHATSOEVER ORANYDAMAGESOTHERTHAN,ORIN ADDITIONTO,ACTUALDAMAGES,WHETHERTHELIKELIHOODOFSUCH
DAMAGESWASKNOWNANDREGARDLESSOFTHEFORMOFTHECLAIMOF ACTION.
ARTICLE 26
NORELIANCE
Seller hereby acknowledges, represents and warrants to Purchaser that, in connection withthenegotiationof,theenteringinto,andtheperformanceunder,theTransactionDocuments and each Transaction thereunder:
(a) it is not relying (for purposes of making any investment decision or otherwise) uponanyadvice,counselorrepresentations(whetherwrittenororal)ofPurchaser,otherthanthe representations expressly set forth in the Transaction Documents;
(b) ithasconsultedwithitsownlegal,regulatory,tax,business,investment,financial and accounting advisors to the extent that it has deemed necessary, and it has made its own investment, hedging and trading decisions (including decisions regarding the suitability of any Transaction) based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any view expressed by Purchaser;
(c) it is a sophisticated and informed Person that has a full understanding of all the terms, conditions and risks (economic and otherwise) of the Transaction Documents and each Transaction thereunder and is capable of assuming and willing to assume (financially and otherwise) those risks;
(d) itisenteringintotheTransactionDocumentsandeachTransactionthereunderfor the purposes of managing its borrowings or investments or hedging its assets or liabilities and not for purposes of speculation;
(e) nojointventureexistsbetweenPurchaserandanySellerParty;and
(f) Purchaser is not acting as a fiduciary or financial, investment or commodity trading advisor for the other party and Purchaser has not given the other party (directly or indirectlythrough anyotherPerson) anyassurance, guarantee orrepresentationwhatsoeveras to the merits (either legal, regulatory, tax, business, investment, financial accounting or otherwise) of the Transaction Documents or any Transaction thereunder.
ARTICLE 27
INDEMNITYANDEXPENSES
(a) SellerherebyagreestoindemnifyPurchaser,Purchaser’sAffiliatesandeachofits andtheirofficers,directors,employeesandagents(“IndemnifiedParties”)for,andholdharmless from, any and all actual documented out-of-pocket liabilities, obligations, losses, damages, penalties, actions, judgments, suits, fees, costs, expenses (including, without limitation, the reasonable out-of-pocket fees and expenses of outside counsel) or disbursements (all of the foregoing,collectively“IndemnifiedAmounts”)thatmayatanytime(including,without
limitation, such time as this Agreement shall no longer be in effect and the Transactions shall have been repaid in full) be imposed on or asserted against any Indemnified Party in any way whatsoever arising out of or in connection with, or relating to, or as a result of, this Agreement, the other Transaction Documents, any Transactions, any Event of Default or anyaction taken or omitted to be taken by any Indemnified Party under or in connection with any of the foregoing;
providedthat Seller shall not be liable for Indemnified Amounts resulting from the gross negligence or willful misconduct of any Indemnified Party.Without limiting the generality of theforegoing,SelleragreestoholdPurchaserharmlessfromandindemnifyPurchaseragainstall Indemnified Amounts with respect to all Purchased Assets relating to or arising out of any violationorallegedviolationofanyenvironmentallaw,ruleorregulationoranyconsumercredit laws, including without limitation ERISA, the Truth in Lending Act and/or the Real Estate Settlement Procedures Act in each case, which does not result from the gross negligence or willful misconduct of any Indemnified Party.In any suit, proceeding or action brought by Purchaser in connection with any Purchased Asset for any sum owing thereunder, or to enforce any provisions of any Purchased Asset, Seller agrees to hold Purchaser harmless from and indemnify Purchaser from and against all Indemnified Amounts suffered by reason of any defense, set-off, counterclaim, recoupment or reduction or liability whatsoever of the account debtor or obligor thereunder, arising out of a breach by any Seller Party or any Affiliate thereof of any obligation thereunder or arising out of any other agreement, indebtedness or liability at anytime owing to or in favor of such account debtor or obligor or its successors from anySeller Party or any Affiliate thereof.The obligation of Seller hereunder is a recourse obligation of Seller.This Article 27(a) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc.arising from any non-Tax claim.
(b) Seller agrees to pay or reimburse upon written demand all of Purchaser’s actual, documented and reasonable out-of-pocket costs and expenses (including, without limitation, the reasonable fees and expenses ofoutsidecounsel)incurred inconnectionwith(i)thepreparation, negotiation, execution and consummation of, and any amendment, supplement or modification to, any Transaction Document or any Transaction thereunder, whether or not such Transaction Document (or amendment thereto) or such Transaction is ultimately consummated, (ii)the consummation and administration of any Transaction, (iii)any enforcement of any of the provisions of the Transaction Documents, any preservation of Purchaser’s rights under the Transaction Documents or any performance by Purchaser of any obligations of Seller in respect of any Purchased Asset, or if an Event of Default has occurred and is continuing any actual or attemptedsale,oranyexchange,enforcement,collection,compromiseorsettlementinrespectof any of the Collateral and the Pledged Collateral and for the custody, care or preservation of the Collateral and the Pledged Collateral (including insurance, filing and recording costs) and defending or asserting rights and claims of Purchaser in respect thereof, by litigation or otherwise, (iv)the maintenance of the Collection Account and registering the Collateral and the Pledged Collateral in the name of Purchaser or its nominee, (v)any default by Seller in repurchasing the Purchased Asset after Seller has given a notice in accordance with Article3(e)of an Early Repurchase Date, (vi)any Breakage Costs incurred byPurchaser in connection with the Purchased Assets, (vii) any failure by Seller to sell any Eligible Asset to Purchaser on the Purchase Date thereof, (viii)any actions taken to perfect or continue any lien created under any Transaction Document, (ix)Purchaser owning any Purchased Asset or other Purchased Item and/or (x)any due diligence performed by Purchaser in accordance with Article28.All such expensesshallberecourseobligationsofSellertoPurchaserunderthisAgreement.Acertificate
astosuchcostsandexpenses,settingforththecalculationsthereofshallbeconclusiveand binding upon Seller absent manifest error.
(c) This Article27shall survivetermination ofthisAgreementand therepurchaseof all Purchased Assets.
ARTICLE 28
DUEDILIGENCE
(a) Seller acknowledges that Purchaser, at reasonable times and upon reasonable noticetoSeller,Purchaserhastherighttoperformcontinuingduediligencereviewswithrespect to the Purchased Assets (including obtaining updated or new appraisals not to exceed one appraisal per twelve (12) consecutive month period for any Mortgaged Property so long as no Event of Default has occurred and is continuing); providedthat,unless an appraisal is requested bySeller, anysuch appraisal ordered byPurchaser whileno Event of Default is continuingshall be at Purchaser’s expense, the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise.Seller agrees that upon reasonable prior notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause any other Seller Party or Servicer, as applicable, to provide) reasonable access to Purchaser and any of its agents, representatives or permitted assigns to the offices of Seller, such other Seller PartyorServicer,asthecasemaybe,duringnormalbusinesshoursandpermitthemtoexamine, inspect, and make copies and extracts of the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of such party.
(b) Seller agrees that it shall, promptlyupon reasonable requestofPurchaser,deliver (or shall cause to be delivered) to Purchaser and any of its agents, representatives or permitted assigns copies of any documents permitted to be reviewed by Purchaser in accordance with Article 28(a).
(c) Selleragrees tomakeavailable(ortocauseanyotherSellerPartyorServicer,as applicable, to make available) to Purchaser and any of its agents, representatives or permitted assigns (i)in person at the time of any inspection pursuant to Article28(a)or (ii)upon prior writtennotice(unless anEvent ofDefaulthasoccurredand iscontinuing, inwhichcasenoprior noticeshallberequiredandthereshallbenolimitationonfrequency),byphone,asapplicable,a knowledgeable financial or accounting officer or asset manager, as applicable, of Seller, such other Seller Party or Servicer, as the case may be, for the purpose of answering questions about anyof the foregoing Persons, or anyother matters relating to the Transaction Documents or any Transaction that Purchaser wishes to discuss with such Person.
(d) Without limiting the generality of the foregoing, Seller acknowledges that PurchasermayenterintoTransactionswithSellerbasedsolelyupontheinformationprovidedby Seller to Purchaser and the representations, warranties and covenants contained herein, and that Purchaser, at its option, has the right at any time to conduct a partial or complete due diligence reviewonsomeorallofthePurchasedAssets.PurchasermayunderwritesuchPurchased
Assets itself or engage a third-party underwriter to perform such underwriting.Seller agrees to cooperate with Purchaser and anythird partyunderwriter in connection with such underwriting, including, but not limited to, providing Purchaser and anythird partyunderwriter with accessto any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of any Seller Party or any Affiliate thereof.
(e) Seller agrees to reimburse Purchaser on demand for any and all reasonable and documentedout-of-pocket costs and expenses (including,withoutlimitation,thereasonablefees
and expenses of outside counsel) incurred by Purchaser in connection with its due diligence activities pursuant to this Article 28.
ARTICLE 29SERVICING
(a) The parties hereto agree and acknowledge that the Purchased Assets are sold to Purchaser on a “servicing released”basis and Purchaser is owner ofall ServicingRights so long as thePurchased Assets aresubject to this Agreement.Notwithstandingtheforegoing, while no Event of Default exists, Seller shall be granted a revocable license (which license shall automatically be revoked (i) every thirty (30) days unless Purchaser provides written notice to Seller that such license is extended for another thirty(30) days or (ii) upon the occurrence of an Event of Default; provided, however, that if Purchaser fails to deliver any such notice of extension, then upon notice from Seller of such failure, Purchaser shall provide notice to Seller and Servicer of Purchaser’s election to extend such thirty (30) day period or not extend such thirty(30) dayperiod and, if such notice of election to extend is provided byPurchaser afterthe expiration of the immediately preceding thirty (30) day period, such extension shall apply retroactively for the period beginning on the last day of such preceding thirty (30) day period through and including the date such notice of election to extend is provided by Purchaser) to cause Servicer to service the Purchased Assets, and Seller shall, at Seller’s sole cost and expense, cause the Servicer to service the Purchased Assets in accordance with the Servicing Agreement and this Article 29and for the benefit of Purchaser.Notwithstanding the foregoing, Seller shall not take anyaction or effect anySignificant Modification without first having given prior noticethereof to Purchaser in each such instance and receivingthepriorwritten consent of Purchaser.If Seller effects any Significant Modification with respect to any Purchased Asset without prior written consent of Purchaser then Seller shall repurchase such Purchased Asset withinfive(5)BusinessDaysafterwrittendemandfromPurchaser(unlessPurchaserlaterelects toapprovesuchSignificantModificationorwaivesuchrighttodemandrepurchase,ineachcase in Purchaser’s sole and absolute discretion).
(b) The obligation of Servicer (or Seller to cause Servicer) to service any of the Purchased Assets shall cease, at Purchaser’s option, upon the earliest of (i) Purchaser’s termination of Servicer in accordance with Article 29(c), (ii) Purchaser not extending Seller’s revocable license in accordance with Article 29(a)or (iii) the transfer of servicing to any other Servicer and the assumption of such servicingbysuch other Servicer.Selleragrees to cooperate with Purchaser in connection with any termination of Servicer.Upon any termination of Servicer,ifnoEventofDefaultshallhaveoccurredandbecontinuing,Sellershallatitssolecost
andexpensetransfertheservicingoftheeffectedPurchasedAssetstoanotherServicer designated by Purchaser as expeditiously as possible.
(c) Purchaser may, in its sole and absolute discretion, terminate Servicer or anysub-servicer with respect to any Purchased Asset (i) upon the occurrence of a default by the Servicer under the Servicing Agreement, (ii) upon the occurrence of a default by the Servicer under the Servicer Letter or (iii) during the continuance of an Event of Default, either for cause or without cause, in each case of clauses (i)through (iii), without payment of any penalty or termination fee.
(d) Seller shall not, and shall not permit Servicer to, employ any other sub-servicers toservicethePurchasedAssetswithoutthepriorwrittenapprovalofPurchaser.IfthePurchased
Assets are serviced by a sub-servicer, Seller shall irrevocably assign all rights, title and interest in the servicing agreements with such sub-servicer to Purchaser, provided that Servicer may delegate certain administrative functions to third parties without Purchaser’s consent providedthat Servicer at all times remains liable for such functions.
(e) SellershallcauseServicerandanysub-servicertoservicethePurchasedAssetsin accordancewithAccepted ServicingPractices.Sellershall causeServicerandanysub-servicers engaged bySeller to execute aletter agreement with Purchaser (a “Servicer Letter”) in form and substance acceptable to Purchaser in its sole and absolutediscretion acknowledgingPurchaser’s security interest in the Purchased Assets and agreeing to remit all Income received with respect to thePurchased Asset to theCollection Account inaccordancewith Article5(e)oras otherwise directed by Purchaser in accordance with the Servicer Letter.
(f) Seller agrees that Purchaser is the owner of all servicing records related to the Purchased Assets, including but not limited to the Servicing Agreement, files, documents, records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records relating to or evidencing the servicing of Purchased Assets (the “ServicingRecords”)solongasthePurchasedAssetsaresubjecttothisAgreement.Sellercovenantsto(or to use commerciallyreasonable efforts cause Servicer to) safeguardsuchServicingRecords and to deliver them promptly to Purchaser or its designee (including the Custodian) at Purchaser’s request.
(g) Except as set forth in the Transaction Documents, the payment of servicing fees shall be solely the responsibility of Seller and shall be subordinate to payment of amounts outstanding and due to Purchaser under the Transaction Documents.
ARTICLE 30
ACKNOWLEDGMENTANDCONSENTTOBAIL-IN
(a) ContractualRecognitionofBail-in.
(i) Eachpartyacknowledgesandacceptsthatliabilitiesarisingunderthis Agreement(otherthanExcludedLiabilities)maybesubjecttotheexerciseoftheUK
Bail-in Power by the relevant resolution authority and acknowledges and accepts to be boundbyanyBail-inActionandtheeffectsthereof(includinganyvariation,modification and/or amendment to the terms of this Agreement as may be necessary to give effect to any such Bail-in Action), which if the Bail-in Termination Amount is payable by Purchaser to Seller may include, without limitation:
(A) areduction,infullorinpart,oftheBail-inTerminationAmount;
and/or
(B) aconversionofall,oraportionof,theBail-inTermination
Amount into shares or other instruments of ownership, in which case Seller acknowledgesandacceptsthatanysuchsharesorotherinstrumentsofownership maybe issued to or conferred upon it as a result of the Bail-in Action.
(ii) Each party acknowledges and accepts that this provision is exhaustive on the matters described herein to the exclusion of any other agreements, arrangements or understanding between the parties relating to the subject matter of this Agreement and that no further notice shall be required between the parties pursuant to the Agreement in order to give effect to the matters described herein.
(iii) The acknowledgements and acceptances contained in clauses(i)and (ii)above will not apply if:
(A) the relevant resolution authority determines that the liabilities arising under this Agreement may be subject to the exercise of the UK Bail-in Power pursuant to the law of the third country governing such liabilities or a binding agreement concluded with such third country and in either case the UK Regulations have been amended to reflect such determination; and/or
(B) the UK Regulationshavebeen repealedor amendedinsuch a way as to remove the requirement for the acknowledgements and acceptances contained in clauses (i)and (ii).
(iv) ForpurposesofthisArticle30:
“Bail-in Action” means the exercise of the UK Bail-in Power by the relevant resolution authorityin respect of all transactions (or all transactions relating to one ormorenettingsets, as applicable) under this Agreement.
“Bail-in Termination Amount” means the early termination amount or early termination amounts(howsoeverdescribed),togetherwithanyaccruedbutunpaidinterestthereon,inrespect of all transactions (or all transactions relating to one or more netting sets, as applicable) under this Agreement (before, for the avoidance of doubt, any such amount is written down or converted by the relevant resolution authority).
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
“Excluded Liabilities” means liabilities excluded from the scope of the contractual recognition of bail-in requirement pursuant to the UK Regulations.
“UK Bail-in Power” means any write-down or conversion power existing from time to time(including,withoutlimitation,anypowertoamendoralterthematurityofeligibleliabilities of an institution under resolution or amend the amount of interest payable under such eligible liabilities or the date on which interest becomes payable, including bysuspending payment for a temporary period) under, and exercised in compliance with, any laws, regulations, rules or requirements (together, the “UK Regulations”) in effect in the United Kingdom relating to the transposition of the BRRD as amended from time to time, including but not limited to, the Banking Act 2009 as amended from time to time, and the instruments, rules and standards created thereunder, pursuant to which the obligations of a regulated entity(or other affiliate of a regulated entity) can be reduced (including to zero), cancelled or converted into shares, other securities, or other obligations of such regulated entity or any other person.
A reference to a “regulated entity” is to any BRRD undertaking as such term is defined under the PRA Rulebook promulgated by the United Kingdom Prudential Regulation Authority or to any person falling within IFPRU 11.6, of the FCA Handbook promulgated by the United
Kingdom Financial Conduct Authority (“FCA”), both as amended from time to time, which includes, certain credit institutions, investment firms, and certain of their parent or holding companies.
(b) Contractual Recognition of UK Stay in Resolution.Where a resolution measure is taken in relation to any BRRD undertaking or any member of the same group as that BRRD undertakingand that BRRD undertaking or any member of the same group as that BRRD undertakingis a party to this Agreement (any such party to this Agreement being an “AffectedParty”), each other partyto this Agreement agrees that it shall only be entitled to exercise any terminationrightsunderorrightstoenforceasecurityinterestinconnectionwiththisAgreement against the Affected Party to the extent that it would be entitled to do so under the Special Resolution Regime if this Agreement were governed by the laws of any part of the United Kingdom.
For the purpose of this clause, “resolution measure”means a‘crisis prevention measure’, ‘crisis management measure’ or ‘recognised third-country resolution action’, each with the meaning given in the “PRA Rulebook: CRR Firms and Non-Authorised Persons: Stay in Resolution Instrument 2015”, as maybe amended from time to time (the “PRA Contractual StayRules”), provided, however, that ‘crisis prevention measure’ shall be interpreted in the manner outlinedinRule2.3ofthePRAContractualStayRules;“BRRDundertaking”,“group”,“SpecialResolution Regime” and “termination right” have the respective meanings given in the PRA Contractual Stay Rules.
(c) NoticeRegardingClientMoneyRules.Purchaser,asaCRDcreditinstitution(as such term is defined in the rules of the FCA), holds all moneyreceived and held byithereunder as banker and not as trustee.Accordingly, money that is received and held by Purchaser from Seller will not be held in accordance with the provisions of the FCA’s Client Asset Sourcebook relating to client money(the “Client MoneyRules”) and will not besubject to thestatutorytrust provided for under the Client Money Rules.In particular, Purchaser shall not segregate money
received byit from Seller from Purchaser moneyand Purchaser shall not be liable to account to Seller for any profits made by Purchaser use as banker of such cash and upon failure of Purchaser, the client money distribution rules within the Client Asset Sourcebook (the “ClientMoney Distribution Rules”) will not apply to these sums and so Seller will not be entitled to share in any distribution under the Client Money Distribution Rules.
ARTICLE 31
MISCELLANEOUS
(a) All rights, remedies and powers of Purchaser hereunder and in connection herewith are irrevocable and cumulative, and not alternative or exclusive, and shall be in addition to all other rights, remedies and powers of Purchaser whether under law, equity or agreement.In addition to the rights and remedies granted to it in this Agreement, to the extent this Agreement is determined to create a security interest, Purchaser shall have all rights and remedies of a secured party under the UCC.
(b) The Transaction Documents may be executed in counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument.Signature pages to any Transaction Document or certification
deliveredpursuanttheretodeliveredinelectronicform(suchasPDF)shallbeconsideredbinding with the same force and effect as original signatures.
(c) TheheadingsintheTransactionDocumentsareforconvenienceofreferenceonly and shall not affect the interpretation or construction of the Transaction Documents.
(d) Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or be invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
(e) This Agreement contains a final and completeintegrationof allprior expressions bytheparties with respect to thesubject matterhereof and thereof and shall constitutetheentire agreement among the parties with respect to such subject matter, superseding all prior oral or written understandings.
(f) The parties understand that this Agreement is a legally binding agreement that mayaffectsuchparty’srights.Eachpartyrepresentstotheotherthatithasreceivedlegaladvice from counsel of its choice regarding the meaning and legal significance of this Agreement and that it is satisfied with its legal counsel and the advice received from it.
(g) ShouldanyprovisionofthisAgreementrequirejudicialinterpretation,itisagreed that a court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against any Person by reason of the rule of construction thatadocumentistobeconstruedmorestrictlyagainstthePersonwhoitselforthroughitsagent
preparedthesame,itbeingagreedthatallpartieshaveparticipatedinthepreparationofthis Agreement.
(h) Unless otherwise specifically enumerated, wherever pursuant to this Agreement Purchaser exercises any right given to it to consent or not consent, or to approve or disapprove, or anyarrangement or term is to be satisfactoryto, Purchaser in its sole and absolute discretion, Purchaser shall decide to consent or not consent, or to approve or disapprove or to decide that arrangements or terms are satisfactoryor not satisfactory, in its sole and absolute discretion and such decision by Purchaser shall be final and conclusive.
(i) AllinformationregardingthetermssetforthinanyoftheTransactionDocuments or the Transactions (the “Confidential Information”) shall be kept confidential and shall not be disclosed by either Seller or Purchaser to any Person except (a)to the Affiliates of such partyor its or their respective directors, officers, employees, agents, consultants, accountants, attorneys, advisors and other representatives (collectively, “Representatives”) who are informed of the confidential nature of such information and instructed to keep it confidential, (b)to the extent requested by any regulatory authority or Governmental Authority or required by any Requirement of Law(includinganydisclosuresrequiredpursuanttoanysubpoena,legalprocess or other court or regulatory authority order), (c)to the extent required to be included in the financial statements of either Seller or Purchaser or their respective Affiliates, (d)to the extent requiredtoexerciseanyrightsorremediesundertheTransactionDocumentsorPurchasedAsset Documents, (e)to the extent required to consummate and administer a Transaction, and (f)to any actual or prospective assignee or holder of a participation interest or other Person which agrees to comply with this Article 31(i).In furtherance of the foregoing, Purchaser agrees to keepconfidentialallnon-publicinformationdeliveredbyoronbehalfofSeller,InitialGuarantor
orReplacementGuarantororanyoftheirAffiliatesandshallnotdisclosesuchinformationother than as permitted or required pursuant to the foregoing clauses (a)through (f), inclusive, except that, after the occurrence of an Event of Default, all such information relating solely to any Purchased Asset and the Collateral, but not, for the avoidance of doubt, any such information relating to Initial Guarantor, Replacement Guarantor or any of their Affiliates, shall be automatically excluded from the provisions of this Article 31(i).Notwithstanding anything in this Article31(i)to the contrary, Confidential Information shall not include anyinformation that
(i) is or becomes generally available to the public through no fault of the receiving party or any of its Representatives in violation of this Article 31(i); (ii) is or becomes available to the receivingpartyoranyofitsRepresentativesonanon-confidentialbasisfromasourceotherthan the disclosing party not known to the receiving party or any of its Representatives to be prohibitedfromdisclosingsuchinformation byacontractualobligationofconfidentiality;(iii)is independently developed or conceived by or on behalf of the receiving party or any of its RepresentativeswithoutuseoforrelianceonanyConfidentialInformation;(iv)wasknowntoor in the possession of the receiving partyor anyof its Representatives on a non-confidential basis prior to disclosure by the disclosing party.
ARTICLE 32
TAXES
(a) Any and all payments by or on account of any obligation of Seller under this Agreementshall bemadewithoutdeduction orwithholdingforanyTaxes,except asrequiredby applicablelaw.IfanyapplicablelawrequiresthedeductionorwithholdingofanyTax fromany such payment, then Seller shall make (or cause to be made) such deduction or withholding and shall timelypay(orcause to betimelypaid) thefull amount deducted orwithheld to therelevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by Seller shall be increased as necessaryso that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payableunderthis Article32),Purchaserreceives anamountequal to thesum it would have received had no such deduction or withholding been made.
(b) Seller shall timely pay, without duplication, to the relevant Governmental AuthorityanyOtherTaxesimposedonSellerinaccordancewithRequirementsofLawor,atthe option of Purchaser, reimburse Purchaser, as the case may be, upon written notice from Purchaser setting forth in reasonable detail the calculation of such Other Taxes paid by Purchaser.
(c) Seller shall indemnify Purchaser, within ten (10) Business Days after demand therefor, forthe full amount of anyIndemnifiedTaxes(includingIndemnifiedTaxesimposedor assertedonorattributabletoamountspayableunderthisArticle)payableorpaidbyPurchaseror required to be withheld or deducted from a payment to Purchaser, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority (provided that if Seller reasonably believes that such Taxes were not correctly or legally asserted, Purchaser will use reasonable efforts to cooperate with Seller to obtain a refund of such Taxes (which shall be
repaid to Seller in accordance with Article 32(e)) so long as such efforts would not, in the sole determination of Purchaser, result in any additional out-of-pocket costs or expenses not reimbursed by Seller or be otherwise materially disadvantageous to Purchaser).A certificate as to the amount of such payment or liability delivered to Seller by Purchaser shall be conclusive absent manifest error.
(d) StatusofPurchaser.
(i) If Purchaser is entitled to an exemption from or reduction of withholding Tax with respect to payments made under the Transaction Documents, Purchaser shall deliver to Seller, prior to becoming a party to this Agreement, and at the time or timesreasonablyrequestedbySeller,suchproperly completedandexecuteddocumentation reasonablyrequestedbySelleraswillpermitsuchpaymentstobemadewithout withholdingoratareducedrateofwithholding.Inaddition,Purchaser,ifreasonably requested bySeller, shall deliver such other documentation prescribed byapplicable law orreasonablyrequestedbySelleraswillenableSellertodeterminewhetherornot Purchaserissubjecttobackupwithholdingorinformationreportingrequirements. Notwithstandinganythingtothecontraryintheprecedingtwosentences,thecompletion,
execution and submission of such documentation (other than such documentation set forth in Article 32(d)(ii)(A), (ii)(B)and (ii)(D)below) shall not be required if in Purchaser’s reasonable judgment such completion, execution or submission would subjectsuchPurchasertoanymaterialunreimbursedcostorexpenseorwouldmaterially prejudice the legal or commercial position of such Purchaser.
(ii) Withoutlimitingthegeneralityoftheforegoing,
(A) ifPurchaserisaU.S.Person,itshalldelivertoSelleronorpriorto thedate on which Purchaserbecomes apartyto thisAgreement(andfrom timeto timethereafteruponthereasonablerequestofSeller),executedcopiesororiginals of IRS Form W-9 (or any successor form) certifying that Purchaser is exempt from U.S. federal backup withholding tax;
(B) if Purchaser is not a U.S. Person, it shall, to the extent it is legally entitled to do so, deliver to Seller (in such number of copies as shall berequested by Seller) on or prior to the date on which Purchaser becomes a party under this Agreement, whichever of the following is applicable:
(1) inthecaseofaPurchaserthatisclaimingthebenefitsofan incometax treatyto which the UnitedStates is aparty, (x) with respect to payments characterized as interest for U.S. tax purposes under any TransactionDocument,executedcopiesororiginalsofIRSForm W-8BENorW-8BEN-Eestablishinganexemptionfrom,orreductionof,
U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any TransactionDocument,IRSFormW-8BENorW-8BEN-Eestablishingan exemptionfrom,orreductionof,U.S.federalwithholdingTaxpursuantto the “business profits” or “other income” article of such tax treaty;
(2) executedcopiesororiginalsofIRSFormW-8ECI;
(3) in the case of a Purchaser claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Purchaser is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Seller within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies or originals of IRS Form W-8BEN or W-8BEN-E; or
(4) to the extent a Purchaser is not the beneficial owner, executed copies or originals of IRS Form W-8IMY, accompanied by IRS FormW-8ECI,IRSFormW-8BENorW-8BEN-E,aU.S.Tax
Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if Purchaserisapartnershipandoneormoredirectorindirectpartnersof
such Purchaser are claiming the portfolio interest exemption, such Purchaser may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;
(C) if Purchaser is not a U.S. Person, it shall, to the extent it is legally entitled to do so, deliver to Seller (in such number of copies as shall berequested by Seller) on or prior to the date on which Purchaser becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of Seller), executed copies or originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Seller to determine the withholding or deduction required to be made; and
(D) if a payment made to Purchaser under any Transaction Document would be subject to U.S. federal withholding Tax imposed by FATCA if Purchaser were to fail to comply with the applicable reporting requirements of FATCA (includingthose contained inSection1471(b)or1472(b)oftheCode,as applicable), Purchaser shall deliver to Seller at the time or times prescribed by law and at such time ortimes reasonablyrequested bySellersuchdocumentation prescribedbyapplicablelaw(includingasprescribedbySection1471(b)(3)(C)(i) oftheCode)andsuchadditionaldocumentationreasonablyrequestedbySelleras may be necessary for Seller to comply with its obligations under FATCA and to determine that Purchaser has complied with Purchaser’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Purchaser agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in anyrespect, it shall update such form or certification and provide such successor form to Seller, or promptlynotifySeller in writing of its legal inabilityto do so.
(e) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Article 32(including by the payment of additional amounts pursuant to this Article 32), it shall pay to the indemnifyingpartyanamountequaltosuchrefund(butonlytotheextentofindemnitypayments made under this Article 32with respect to the Taxes giving rise to such refund), net of all out of pocketcostsandexpenses(includingTaxes)ofsuchindemnifiedpartyandwithoutinterest (otherthananyinterestpaidbytherelevantGovernmentalAuthoritywithrespecttosuch refund).Such indemnifying party, upon the requestof such indemnified party, shall repay tosuch indemnified party the amount paid over pursuant to this Article 32(e)(plus any penalties, interest or other charges imposed bythe relevant Governmental Authority) in the event that such indemnifiedpartyisrequiredtorepaysuchrefundtosuchGovernmentalAuthority. Notwithstanding anything to the contrary in this Article 32(e), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Article 32(e)the payment of which would place the indemnified party in a less favorable net after Tax positionthan the indemnified party would have been in if the Tax subject to indemnification and giving
risetosuchrefundhadnotbeendeducted,withheldorotherwiseimposedandthe indemnification payments or additional amounts with respect to such Tax had never been paid. Thisparagraphshall not be construed to require anyindemnifiedpartytomakeavailableitsTax returns(oranyotherinformationrelatingtoitsTaxesthatitdeemsconfidential)tothe indemnifying party or any other Person.
(f) Survival.Each party’s obligations under this Article 32shall survive any assignment of rights by Purchaser, the termination of the Transactions and the repayment, satisfaction or discharge of all obligations under any Transaction Document.
[REMAINDEROFPAGELEFTBLANK]
INWITNESSWHEREOF,thepartieshaveexecutedthisAgreementasadeedasofthe day first written above.
BARCLAYSBANKPLC,asPurchaser
By:
Name:
Title:
[SIGNATURESCONTINUEONFOLLOWINGPAGE]
Barclays/CLR–MasterRepurchaseAgreement
7562462081760742511
NA_DECHERT.95954251.2
CLRRELENDINGRFSUBBB,LLC,as
Seller
By:
Name:NathanD.DeBacker
Title:VicePresident,ChiefFinancialOfficer and Treasurer
ACKNOWLEDGEDANDAGREED:
CIMREALESTATEFINANCETRUST,INC.,asInitialGuarantor
By:
Name:NathanD.DeBacker
Title:ChiefFinancialOfficer,PrincipalAccounting Officer and Treasurer
CIMCOMMERCIALLENDINGREIT,asReplacementGuarantor
By:
Name: Nathan D. DeBacker Title:ChiefFinancialOfficer