Exhibit 10.16
EXECUTIONVERSION
AMENDMENTNO.1TOMASTERREPURCHASEANDSECURITIESCONTRACTAND CONSENT TO RESTRUCTURING
THIS AMENDMENT NO. 1 TO MASTER REPURCHASE AND SECURITIESCONTRACTANDCONSENTTORESTRUCTURING,datedasofJune24,
2026(this“Amendment”),isenteredintobyandamongWELLSFARGOBANK,NATIONAL ASSOCIATION, a national banking association (“Buyer”), CLR RE LENDING SUB WF, LLC, a Delaware limited liability company (“Seller”), and acknowledged by CIM REAL ESTATE FINANCE TRUST, INC., a Maryland corporation (“Initial Guarantor”), CIM COMMERCIAL LENDING REIT, a Maryland statutory trust (“Replacement Guarantor” and, togetherwithInitialGuarantor,each,a“Guarantor”and,collectively,the“Guarantors”),andCLR RE LENDING SUB WF HOLDCO, LLC, a Delaware limited liability company (“Pledgor”). 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, Buyer and Seller are parties to that certain Master Repurchase and Securities Contract, dated as of August15,2025 (as the same has been amended prior tothedate 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, Buyer 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 valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
SECTION1.Repurchase Agreement Amendments. 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 text from its current location to the location of the green underlined text (indicated textually in the same manner as the following example:strickentexttounderlinedtext)andtoaddtheblueunderlinedtext(indicatedtextually in the same manner as the following example: underlined text) as attached hereto on Exhibit A.
SECTION 2.Consent to Restructuring.
(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) On the date hereof, Initial Guarantor intends to consummate a series of restructuring and reorganization transactions (collectively, the “Restructuring”) pursuant
towhich,amongother things,theemployees,managementplatform,investmentportfolio and certain other assets and subsidiaries of CIM Group, will be contributed to a newly formedoperatingpartnershipthatwillbeadirectsubsidiaryofInitialGuarantor,andCIM Group and/or its affiliates will receive limited partnership interests in such operating partnershipandnon-economicvotingpreferredsharesofInitialGuarantorinexchangefor such contributions. Upon consummation of the Restructuring, among other things, (A) InitialGuarantorwillnolongerbeexternallymanaged,(B)CIMGroupand/oritsaffiliates will, through the voting rights of such non-economic voting preferred shares, control greaterthan fifty percent (50%)ofthe total voting powerofall classes ofEquity Interests of Initial Guarantor entitled to vote generally in the election of directors of Initial Guarantor, (C) CIM Group and/or its affiliates will be the indirect beneficial owner(s) of greaterthan fifty percent (50%)ofthe total voting powerofall classes ofEquity Interests of Replacement Guarantor entitled 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.ImmediatelyaftertheconsummationoftheRestructuring,InitialGuarantorwill change its name to CIM Group, Inc.
(c) Effective immediately prior to the consummation of the Restructuring, Buyer 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 Repurchase Document, and (iii) agrees that all requirements in the Repurchase Agreement or any other Repurchase Document with respect to “know your customer”, any Beneficial Ownership Certification and the Beneficial Ownership Regulation related to the Restructuring have been satisfied.
SECTION3. Conditions Precedent.This Amendment and its provisions shall becomeeffectiveonthefirstdateonwhich(i)thisAmendmentisdulyexecutedanddeliveredby eachpartyhereto,and(ii)BuyerreceivessuchotherdocumentsasBuyerorcounseltoBuyermay reasonably request in connection with this Amendment, in each case in form and substance acceptable to Buyer.
SECTION4.Representations and Warranties. On and as of the date first above written, Seller hereby represents and warrants to Buyer that (a) it is in compliance with all the terms and provisions set forth in the Repurchase Documents on its part to be observed or performed, (b) after giving effect to this Amendment, no Default or Event of Default under the Repurchase Documents has occurred and is continuing and (c) after giving effect to this Amendment, the representations and warranties contained in the Repurchase Documents are true and correct in all respects as though made on such date (except for any such representation or warrantythatbyitsterms referstoaspecificdate otherthanthedatefirstabovewritten,inwhich case it shall be true and correct in all respects as of such other date).
SECTION5.Acknowledgments.
(a) Each Guarantor hereby acknowledges the execution and delivery of this Amendment by Seller and Buyer and agrees that it continues to be bound by that certain GuarantyandSubordinationAgreement,datedasofAugust15,2025,madebyGuarantors
for the benefit of Buyer, notwithstanding the execution and delivery of this Amendment and the impact of the changes set forth herein.
(b) Pledgor hereby acknowledges the execution and delivery of this Amendment by Seller and Buyer and agrees that it continues to be bound by that certain Pledge Agreement, dated as of August 15, 2025, made by Pledgor in favor of Buyer, notwithstanding the execution and delivery of this Amendment and the impact of the changes set forth herein.
SECTION6.Limited Effect. Except as expressly amended and modified by this Amendment, the Repurchase Agreement and each of the other Repurchase Documents shall continuetobe,andshallremain,infullforceandeffectinaccordancewiththeirrespectiveterms; provided, however, that upon the date hereof (a) all references in the Repurchase Documents to the “Repurchase Documents” shall be deemed to include, in any event, this Amendment and (b) each reference to the “Repurchase Agreement” in any of the Repurchase Documents shall be deemed to be a reference to the Repurchase Agreement, as amended hereby.
SECTION7.NoNovation,EffectofAgreement.Thepartiesheretohaveentered into this Amendment solely to amend the terms of the Repurchase Agreement and do not intend this Amendment or the transactions contemplated hereby to be, and this Amendment and the transactionscontemplatedherebyshallnotbeconstruedtobe,anovationofanyoftheobligations owingbySeller,Guarantors,Pledgororanyoftheirrespectiveaffiliates (the “RepurchaseParties”) underorinconnectionwiththeRepurchaseAgreementoranyoftheotherRepurchaseDocuments. It is the intention of each of the parties hereto that (i) the perfection and priority of all security interests securing the payment of the obligations of the Repurchase Parties under the Repurchase Documents are preserved and (ii) the liens and security interests granted under the Repurchase Documents continue in full force and effect.
SECTION8.Counterparts.Bysigningorcountersigningbelow,BuyerandSeller each acknowledgeand agreetothetermsofthis Amendment.ThisAmendmentmaybeexecuted incounterparts(includingusinganyelectronicsignaturecoveredbytheUnitedStatesESIGNAct of2000,UniformElectronicTransactionsAct,theElectronicSignaturesandRecordsActorother applicable law, e.g., www.docusign.com), and such counterparts may be delivered in electronic format,includingbyfacsimile,emailorothertransmissionmethod.Suchdeliveryofcounterparts shallbeconclusiveevidenceoftheintenttobeboundherebyandeachsuchcounterpart,including those delivered in electronic format, and copies produced therefrom shall have the same effect as anoriginallysignedcounterpart.Totheextentapplicable,theforegoingconstitutestheelectionof thepartiestoinvokeanylawauthorizingelectronicsignatures.Minorvariationsintheformofthe signaturepage,includingfootersfromearlierversionsofthisAmendment,shallbedisregardedin determiningaparty’sintentortheeffectivenessofsuchsignature.Nopartyshallraisetheusethe delivery of signatures to this Amendment in electronic format as a defense to the formation of a contract and each such party forever waives any such defense.
SECTION9. Costs and Expenses. Seller shall pay Buyer’s third-party out-of-pocket costs and expenses actually incurred in connection with the preparation, negotiation, execution and consummation ofthis Amendment in accordancewith theRepurchase Agreement.
SECTION 10. GOVERNINGLAW;SUBMISSIONTOJURISDICTION. SECTIONS 18.01 AND 18.02 OF THE REPURCHASE AGREEMENT ARE HEREBY INCORPORATED HEREIN, MUTATIS MUTANDIS, AS IF A PART HEREOF.
SECTION 11. IMPORTANT WAIVERS. THE WAIVERS SET FORTH INSECTION18.03OFTHEREPURCHASEAGREEMENTAREHEREBYINCORPORATED HEREIN, MUTATIS MUTANDIS, AS IF A PART HEREOF.
SECTION 12. Post-ClosingObligation.Nolaterthanten(10)BusinessDaysafter thedatehereof(orsuchlatertimeasmaybegrantedbyBuyerinitsreasonablediscretion),Seller shalldelivertoBuyeropinionsofoutsidecounselinformandsubstancereasonablyacceptableto Buyer including, but not limited to, those relating to corporate and enforceability matters with respecttothisAmendmentandtheSecondAmendedandRestatedFeeLetter,datedasofthedate hereof.
[SIGNATURESFOLLOW]
INWITNESSWHEREOF,thepartieshavecausedthisAmendmenttobedulyexecuted, as of the date first above written.
BUYER:
WELLSFARGOBANK,NATIONAL ASSOCIATION
By: /s/ Tricia Baker
Name: Tricia Baker
Title: Executive Director
SELLER:
CLRRELENDINGSUBWF,LLC
By:/s/ Laura Eichelsderfer
Name: Laura Eichelsderfer
Title: Secretary
L
ACKNOWLEDGEDANDAGREED:
INITIALGUARANTOR:
CIMREALESTATEFINANCETRUST,INC.
By:/s/ Laura Eichelsderfer
Name: Laura Eichelsderfer
Title: Secretary
REPLACEMENTGUARANTOR:
CIMCOMMERCIALLENDINGREIT
By:/s/ Laura Eichelsderfer
Name: Laura Eichelsderfer
Title: Secretary
PLEDGOR:
CLRRELENDINGSUBWFHOLDCO,LLC
By:/s/ Laura Eichelsderfer
Name: Laura Eichelsderfer
Title: Secretary
EXHIBIT A
CONFORMEDREPURCHASEAGREEMENT
Attachedhereto.
EXECUTIONVERSIONCONFORMEDTHROUGHAMENDMENTNO.1
MASTERREPURCHASEANDSECURITIESCONTRACT
byandbetween
CLRRELENDINGSUBWF,LLC,
asSeller and
WELLSFARGOBANK,NATIONALASSOCIATION,
asBuyer
DatedasofAugust15,2025
TABLE OF CONTENTS
Page
Section1.01 Applicability 1
ARTICLE2.DEFINITIONSANDINTERPRETATION 1
Section2.02 RulesofInterpretation 40
Section 2.03 Rates4241
ARTICLE3.THETRANSACTIONS 42
Section3.02TransferofPurchasedAssets4544
Section3.03FutureAdvanceFundingPeriod 45
Section3.04MaximumAmount4645
Section3.05EarlyRepurchaseDate;MandatoryRepurchases.4645
Section3.06Repurchase 47
Section3.07ExtensionoftheFacilityTerminationDate;Extensionof
theFundingPeriodExpirationDate 48
Section3.08PaymentofPriceDifferentialandFees.5049
Section3.09Payment, TransferandCustody 50
Section 3.10Repurchase Obligations Absolute 5150ARTICLE4.MARGINMAINTENANCE 5251
Section4.01MarginDeficit.5251
Section4.02MarginCall Dispute 53
ARTICLE5.WATERFALLANDSERVICERACCOUNTS;APPLICATIONOF
INCOME 5453
Section5.01WaterfallAccountandServicerAccount.5453
Section5.02BeforeEventof Default 54
Section 5.03 After Event of Default 5655Section 5.04 Seller to Remain Liable 5756ARTICLE6.CONDITIONSPRECEDENT 5756
Section6.01ConditionsPrecedenttoInitialTransaction5756
Section6.02ConditionsPrecedenttoAllTransactions 58
ARTICLE7.REPRESENTATIONSANDWARRANTIESOFSELLER 6160
TABLE OF CONTENTS
(continued)
Page
Section7.01Seller 61
Section 7.02Repurchase Documents 6261Section7.03Solvency 6261
Section7.04Taxes 62
Section7.05TrueandCompleteDisclosure6362
Section7.06CompliancewithLaws6362
Section7.07CompliancewithERISA6463
Section7.08NoDefaultorInternalControlEvent6463
Section7.09PurchasedAssets 64
Section 7.10Purchased Assets Acquired from Transferors 6564Section 7.11 Transfer and Security Interest 6564Section 7.12No Broker 6665Section 7.13Interest Rate Protection Agreements 6665Section7.14Separateness 6665
Section7.15Appraisal6665
Section7.16Anti-MoneyLaunderingLawsandAnti-CorruptionLaws6665Section7.17Sanctions 66
Section7.18CoveredFund 66
Section7.19BeneficialOwnership Certification 66
ARTICLE8.COVENANTSOFSELLER 6766
Section8.01Existence;GoverningDocuments;ConductofBusiness6766Section 8.02Compliance with Laws, Contractual Obligations and
RepurchaseDocuments 67
Section8.03ProtectionofBuyer’sInterestinPurchasedAssets 67
Section 8.04Actions of Seller Relating to Distributions, Indebtedness, Guarantee Obligations, Contractual Obligations and Liens68
Section8.05FinancialCovenants.6968
Section8.06DeliveryofIncome6968
Section8.07DeliveryofFinancialStatementsandOtherInformation7069Section8.08DeliveryofNotices 71
Section8.09Hedging 7271
TABLE OF CONTENTS
(continued)
Page
Section8.10PledgeAgreement 72
Section8.11Anti-CorruptionLaws and Anti-MoneyLaundering Laws72
Section8.12CompliancewithSanctions7372
Section8.13CoveredFund7372
Section8.14BeneficialOwnership 73
ARTICLE9.SINGLE-PURPOSEENTITY 73
Section9.01Covenants ApplicabletoSeller 73
ARTICLE10.EVENTSOFDEFAULTANDREMEDIES 75
Section10.01Eventsof Default 75
Section10.02RemediesofBuyerasOwnerofthePurchasedAssets 78
ARTICLE11.SECURITYINTEREST 8180
Section 11.01Grant 8180Section 11.02Effect of Grant 8180Section 11.03Seller to Remain Liable 8281Section11.04WaiverofCertain Laws 8281
ARTICLE12.BENCHMARKREPLACEMENT;CONFORMINGCHANGES;
INCREASEDCOSTS;CAPITALADEQUACY 8281
Section12.01BenchmarkReplacement;MarketDisruption.8281
Section12.02InitialBenchmarkConformingChanges.8382
Section12.03Illegality 83
Section12.04Breakfunding 83
Section12.05IncreasedCosts8483
Section12.06CapitalAdequacy 84
Section 12.07 Withholding Taxes. 8584Section 12.08 Payment and Survival of Repurchase Obligations 8887ARTICLE13.INDEMNITYANDEXPENSES 8887
Section13.01Indemnity. 8887
Section13.02Expenses 90
ARTICLE14.INTENT 9190
Section 14.01Safe Harbor 9190Section14.02RighttoLiquidate,TerminateandAccelerate 9190
TABLE OF CONTENTS
(continued)
Page
Section14.03 FederalDepositInsuranceAct 91
Section14.04 FederalDepositInsuranceCorporationImprovementAct 91
Section 14.05 Master Netting Agreement 9291ARTICLE15.DISCLOSURERELATINGTOCERTAINFEDERALPROTECTIONS 9291
Section 15.01 Disclosure9291ARTICLE16.NORELIANCE 92
Section16.01 NoReliance 92
ARTICLE17.SERVICING 9392
Section17.01ServicingRights9392
Section17.02AccountsRelatedtoPurchasedAssets 96
Section 17.03 Modification of Servicing Agreements 9796ARTICLE18.MISCELLANEOUS 9796
Section18.01GoverningLaw9796
Section18.02SubmissiontoJurisdiction;ServiceofProcess9796
Section18.03IMPORTANTWAIVERS 97
Section18.04Integration9998
Section18.05SingleAgreement 99
Section18.06UseofEmployeePlanAssets 99
Section18.07SurvivalandBenefitofSeller’sAgreements10099
Section18.08AssignmentsandParticipations.10099
Section18.09Ownershipand Hypothecationof Purchased Assets 102
Section18.10Confidentiality103102
Section18.11NoImpliedWaivers;Amendments 103
Section18.12NoticesandOtherCommunications 103
Section 18.13Counterparts; Electronic Transmission 104103Section 18.14No Personal Liability 104103Section 18.15Protection of Buyer’s Interests in the Purchased Assets;
FurtherAssurances 104
Section 18.16Default Rate 106105Section 18.17Set-off. 106105Section18.18Seller’sWaiverofSetoff 107106
TABLE OF CONTENTS
(continued)
Page
Section18.19PeriodicDueDiligenceReview107106
Section18.20TimeoftheEssence108107
Section18.21JointandSeveralRepurchaseObligations.108107
Section18.22PatriotActNotice109108
Section18.23Successorsand Assigns 109
Section18.24 AcknowledgmentofAnti-PredatoryLendingPolicies 109
Section18.25 RecognitionoftheU.S.SpecialResolutionRegimes 109
Section18.26 AuthorizedRepresentativesofSellerandGuarantor 110109
EXHIBITS
Exhibit A FormofConfirmation
Exhibit B FormofIrrevocableRedirectionNotice
Exhibit C Form of Closing CertificateExhibit D-1 FormofPowerofAttorney(Seller)
Exhibit D-2 FormofPowerofAttorney(Pledgor) Exhibit E Form of Patriot Act Certificate
Exhibit F FormofComplianceCertificate
Exhibit G [Reserved]
Exhibit H FormofAssignmentandAcceptance
Exhibit I FormofAdditionalSellerJoinderAgreement
Exhibit J FormofCertification
Exhibit K FormofBaileeAgreement
Exhibit L FormofBaileeTrustReceipt
Exhibit M FormofNoticeofTransfer/Pledge
Exhibit N FormofMonthlyRemittanceReport
Exhibit O AuthorizedRepresentatives
SCHEDULES
Schedule 1(a) RepresentationsandWarrantiesRe:PurchasedAssetsConsistingOfWhole Loans
Schedule 1(b) RepresentationsandWarrantiesRe:PurchasedAssetsConsistingOfSenior Interests
ANNEXES
Annex 1 PartyAddresses
Annex 2 Seller’sAccount,WaterfallAccount,ServicerAccountandGeneralServicing Account
Annex 3 IndependentDirectors’ContactInformation
Annex 4 ListofProhibitedTransferees
THISMASTERREPURCHASEANDSECURITIESCONTRACT,datedasof
August15,2025(asamended,modified,restated,replaced,waived,substituted,supplementedor extended from time to time, this “Agreement”), is made by and between CLR RE LENDING SUB WF, LLC, a Delaware limited liability company, as seller (as more specifically defined below, “Seller”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as buyer (as more specifically defined below, “Buyer”). Seller and Buyer (each a “Party”) hereby agree as follows:
ARTICLE 1. APPLICABILITY
Section 1.01Applicability.SubjecttothetermsandconditionsoftheRepurchase
Documents, from time to timeduringtheFundingPeriod and at therequest ofSeller, theParties may enter into transactions in which Seller agrees to sell, transfer and assign to Buyer certain Assets and all related rights in and interests related to such Assets on a servicing released basis, against the transfer of funds by Buyer representing the Purchase Price for such Assets, with a simultaneous agreement byBuyer to transfersuch Assets toSeller forsubsequent repurchaseon the related Repurchase Date, which date shall not be later than the Facility Termination Date, against the transfer of funds bySeller representing the Repurchase Price for such Assets.
ARTICLE 2.
DEFINITIONSANDINTERPRETATION
Section2.01Definitions.
“ABS Issuer Exemption”: An exemption from the prohibition against “Sponsoring” (as such term is defined in the Volcker Rule), acquiring or retaining an Ownership Interest in a Covered Fund as more particularlyset forth under Section .11(b) of the Final Regulations to the Volcker Rule.
“AcceleratedRepurchaseDate”:DefinedinSection10.02.
“Accepted Servicing Practices”: With respect to any Purchased Asset, the meaning set forth in the Servicing Agreement or, if not defined therein, the commercial mortgage loan servicing practices of prudent financial or commercialmortgagelendinginstitutionsthatservice Assets of the same Type as such Purchased Asset in the jurisdiction where the related Underlying Mortgaged Property is located.
“Account Control Agreement”:With respecttotheServicer Account, an account control agreement in favor of Buyer, executed by the Seller, Servicer, Buyer and Bank, as amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time.
“Additional Seller Joinder Agreement”: An Additional Seller Joinder Agreement, substantiallyin the form of Exhibit I, dulyexecuted and delivered byeach partythereto.
7805958611760457978 Master Repurchase and Securities Contract
“Additional Sellers”: Any additional party or parties that has executed and delivered an Additional Seller Joinder Agreement and has become a “Seller” under the Repurchase Documents.
“Affiliate”:Whenusedwithrespectto,(a)anyofSeller,PledgororGuarantor,Guarantor and Guarantor’s Subsidiaries and (b) any other Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, such other Person.
“Agreement”:DefinedinthePreamblehereto.
“Anti-Corruption Law”: The U.S. Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act, the Canadian Corruption of Foreign Public Officials Act or any other law applicable to Seller or any of its Affiliates that prohibit the bribery of foreign officials to gain a business advantage.
“Anti–Money Laundering Laws”: The applicable laws or regulations in any jurisdiction in which Seller, Guarantor or any Affiliates of Seller or Guarantor is located or doing business thatrelatetomoneylaundering,anypredicatecrimetomoneylaunderingoranyfinancialrecord keeping and reporting requirements related thereto.
“ApplicablePercentage”:DefinedintheFeeLetter.
“Appraisal”: A FIRREA-compliant appraisal of the related Underlying Mortgaged Property from an Independent Appraiser, addressed to (either directly or pursuant to a reliance letterin favorof Buyeror reliancelanguageinsuchAppraisalrunningtothebenefitofBuyeras a successor or assign) and reasonably satisfactory to Buyer.
“Approved Representation Exception”: Any Representation Exception furnished by Seller to Buyer and approved by Buyer in its discretion prior to or after the related Purchase Date.
“Asset”: Any Whole Loan or Senior Interest, the Underlying Mortgaged Property for whichisincludedinthecategoriesforTypesofUnderlyingMortgagedProperty,or,onacaseby case exception basis, any other performing asset approved by Buyer in its sole and absolute discretion(andinallcasessubjecttoanymodificationstotheRepurchaseDocumentsthatBuyer mayrequire in its discretion as a condition to such purchase of such other asset), but in all cases Asset shall exclude any real property acquired by Seller through foreclosure or deed in lieu of foreclosure, distressed debt, any Equity Interest issued by a special purpose entity organized to issue collateralized debt or loan obligations, any unimproved land, for sale, construction, conversion or use, gut or heavy rehab properties or any subordinate debt assets (other than subordinate debt that is included with all related senior interest and approved by Buyer on a case-by-case basis).
“Asset Management Exemption”: An exemption from the prohibition against “Sponsoring”(assuchtermisdefinedintheVolckerRule),acquiringorretaininganOwnership
Interest in a Covered Fund as more particularly set forth under Section .11(a) of the Final Regulations to the Volcker Rule.
“AssetValue”:AsofanydateofdeterminationwithrespecttoanAsset,anamountequal totheproductof(x)theMarketValueforsuchAssettimes(y)theApplicablePercentage(orthe
Initial Approved Applicable Percentage, if applicable) for such Asset; provided, however, the Asset Value of any Purchased Asset may be reduced, by an amount determined by Buyer in its discretion, including, but not limited to, any one or more of the following:
(a) with respect to any Purchased Asset, reductions required to maintain a PPV of the Maximum PPV Percentage or less; and
(b) with respect to all Purchased Assets (on a combined basis), reductions required to maintain a Debt Yield of the Required Portfolio Debt Yield Percentage or greater.
“AssignmentandAcceptance”:DefinedinSection18.08(c). “Authorized Representative”:Defined in Section 18.26.
“Bailee”: With respect to anyTransactioninvolvingaTableFundedPurchasedAsset,(i) a national title insurance company or nationally recognized real estate counsel acceptable to Buyeror(ii)anyotherentityapprovedbyBuyerinitssole,butreasonablediscretion,whichmay be atitle company, escrow companyor attorneyin accordance withlocal law andpracticein the appropriate jurisdiction of the related Table Funded Purchased Asset.
“BaileeAgreement”:AnagreementsubstantiallyintheformattachedheretoasExhibit
K.
“Bailee TrustReceipt”:Aninitialtrustreceiptandcertificationsubstantiallyintheform
attachedheretoasExhibitL.
“Bank”:JPMorganChaseBank,N.A.
“Bankruptcy Code”: Title 11 of the United States Code (11 U.S.C. § 101, et seq.), as amended, modified or replaced from time to time.
“Benchmark”:With respect to anyTransaction,initially, TermSOFR; providedthat if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respecttothethen-currentBenchmarkinaccordancewithSection12.01(a),then,forpurposesof this definition, “Benchmark” shall mean the applicable Benchmark Replacement to the extent thatsuchBenchmarkReplacementhasreplacedsuchpriorbenchmarkratepursuanttoclause(a) of Section 12.01.
“Benchmark Replacement”:With respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by Buyer as the replacement for the then-current Benchmarkand(b)therelatedBenchmarkReplacementAdjustment;providedthat, if such Benchmark Replacement as so determined would be less than the Floor, the Benchmark
Replacement will be deemed to be the Floor for the purposes of this Agreement and the otherRepurchase Documents.
“BenchmarkReplacementAdjustment”:Withrespecttoanyreplacementofthe then-currentBenchmarkwithanUnadjustedBenchmarkReplacement,thespreadadjustment,or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Buyer.
“BenchmarkReplacementDate”:WithrespecttoanyBenchmark,theearliesttooccurof the following events with respect to such Benchmark:
(1) in the case of clause (1) or (2) of thedefinitionof “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
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark has been determined and announced by theregulatorysupervisorfortheadministratorofsuchBenchmarktobe non-representative; provided, that such non-representativeness will be determined by referencetothemostrecentstatementorpublicationreferencedinsuchclause(3)evenif such Benchmark continues to be provided on such date.
“BenchmarkTransitionEvent”:WithrespecttoanyBenchmark,theoccurrenceofoneor more of the following events with respect to such Benchmark:
(1) 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;
(2) 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; or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark announcing that such Benchmark is not, or as of a specified future date will not be, representative.
“Beneficial Ownership Certification”: A certification regarding beneficial ownership as required bythe Beneficial Ownership Regulation in a form as agreed to byBuyer.
“BeneficialOwnershipRegulation”:Means31C.F.R.§1010.230.
“BHC Act Affiliate”:The meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Book Value”: With respect to an Asset, as of anydate, an amount, as certified bySeller in the related Confirmation, equal to the lesser of (a) the outstanding principal amount or par valuethereof as of such date, and (b) (i) the price that Seller initiallypaid or advanced in respect thereof, plus(ii) any additional amounts advanced by Seller, minus(iii) (A) principal payments receivedbySellerand(B)reductionsmadebySellerinconnectionwithlossesrealizedandother writedowns.
“BusinessDay”:Anydayotherthan(a)aSaturdayoraSunday,(b)adayonwhichbanks in the States of New York, California or North Carolina are authorized or obligated by law or executive order to be closed or (c) anydayon which the New York Stock Exchange, theFederal
Reserve Bank of New York or Custodian is authorized or obligated bylaw or executive order to be closed.
“Buyer”: Wells, in its capacityas Buyer under this Agreement and the other Repurchase Documents, together with its successors and permitted assigns (in accordance with the terms hereof).
“CapitalLeaseObligations”:WithrespecttoanyPerson,theamountofallobligationsof such Person to pay rent or other amounts under a lease of property to the extent and in the amount that suchobligations are required to be classified and accounted foras acapitalleaseon a balance sheet of such Person.
“Change of Control”: The occurrence of any of the following events: (a) a merger or consolidation of Seller, orPledgoror Manager; (b) prior to the Guarantor Release Event, a merger or consolidation of CMFT Guarantor and the surviving entity is not Controlled orexternally managed by Manager; (cCMFT Guarantor; (c) a merger or consolidation of CLRGuarantor and the surviving entity is not CLR Guarantor; (d) any conveyance, transfer or disposal of all or substantially all of Seller, Pledgor, Guarantor or Manager’sor Guarantor’sassets to any Person or entity (other than, (i) in the case of Seller, sales of Purchased Assets in the ordinarycourse of business and (ii) in the case of CMFT Guarantor, the reduction of CMFT Guarantor’s direct or indirect interest in CLR Guarantor and the other Repurchase Parties); (d)priortotheGuarantorReleaseEvent,any“person”or“group”(withinthemeaningofSection13(d) or14(d) of the Exchange Act, as amended) (other than the Manager or an entitythatisControlledbytheManager)shallbecome,orobtainrights(whetherbymeansofwarrants, options or otherwise) to become, the beneficial owner, directlyor indirectly, of 50% or more of the total voting power of all classes of EquityInterests of CMFT Guarantor or Manager 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, as amended) (other than the Manager, an entitythat is Controlled bythe Manager or CMFT Guarantor) shall
become, or obtain rights (whether by means of warrants, options or otherwise) to become, thebeneficialowner,directlyorindirectly,of50%ormoreofthetotalvotingpowerofallclassesofEquity Interests of CLR Guarantor or Manager entitled to vote generally in the election of thedirectors (or the applicable equivalent)e) (i) CMFT Guarantor shall cease to be Controlled byCIM Groupand/orone ormore Affiliatesthereof(otherthanin connection with apublicmarketoffering or secondary market trading) and (ii) a Specified Change of Control Event; (f) CLR Guarantor shall cease to own and Control, of record and beneficially, 100% of the EquityInterests of Intermediate Entity; (g) Intermediate Entitybe Controlled by CMFT Guarantor; (g)CLR Guarantorshall cease to indirectlyown and Control, of record and beneficially, 100% of the Equity Interests of Pledgor; or (h) Pledgor shall cease to own and Control, of record and beneficially,100%oftheEquityInterests ofSeller;(i)Managershallceasetoact as theexternalmanager for Guarantor; or (j) Manager shall cease to be Controlled by CIM Group, LLC;provided that theinternalization ofmanagement byGuarantorshall not bedeemed a “ChangeofControl” pursuant to clauses (i) or (j)..
“CIM Group”: CIM Group Holdings, LLC, a Delaware limited liability company. “ClosingCertificate”:AtrueandcorrectcertificateintheformofExhibitC,executedby
aResponsibleOfficerofeachRepurchaseParty. “Closing Date”: August 15, 2025.
“CLR Guarantor”: CIM Commercial Lending REIT, a Maryland statutory trust. “CMFTGuarantor”:CIMRealEstateFinanceTrust,Inc.,aMarylandcorporation.
“Code”:TheInternalRevenueCodeof1986andtheregulationspromulgatedandrulings issued thereunder, in each case as amended, modified or replaced from time to time.
“Commonly Controlled Entity”: An entity, whether or not incorporated, which is under common control with Seller or any other Repurchase Party within the meaning of Section 4001(b)(1) of ERISA or is part of a group which includes Seller or any other Repurchase Party and which is treated as a single employer under Section 414(b) or 414(c) of the Code or, solely forpurposesofSection412oftheCodetotheextentrequiredbysuchsection,Section414(m)or 414(o) of the Code.
“Compliance Certificate”: A true and correct certificate in the form of Exhibit F, executed by a Responsible Officer of Seller and Guarantor.
“Concentration Limit”: Unless otherwise agreed to in writing byBuyer, a limit that shall bedeemedtobeviolatediftheaggregatePurchasePriceoutstandingforallHotelAssetsexceeds twenty five percent (25%) of the Maximum Amount.
“Confirmation”: A purchase confirmation in the form of Exhibit A, duly completed, executed and delivered by Seller and Buyer in accordance with Section 3.01.
“Conforming Changes”: With respect to either the use or administration of an initial Benchmark or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definitionof“BusinessDay”,thedefinitionof“PricingRate,”thedefinitionof“PricingPeriod,” the definition of “U.S. Government Securities Business Day,” timing and frequency of determining rates and making payments of Price Differential, prepayment provisions, early repurchases, the applicability and length of lookback periods, the applicability of Section 12.04andothertechnical,administrativeoroperationalmatters)thatBuyerdecidesmaybeappropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof byBuyer in a manner substantiallyconsistent with market practice (or, if Buyer decides that adoption of any portion of such market practice is not administratively feasible or if Buyer determines that no market practice for the administration of any such rate exists, in such other manner of administration as Buyer decides is reasonably necessary in connection with the administration of this Agreement and the other Repurchase Documents).
“Connection Income Taxes”: Other Connection Taxes that are imposed on or measured bynet income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Subsidiaries”: As of any date and any Person, any and all Subsidiaries or other entities that are consolidated with such Person in accordance with GAAP.
“ContingentLiabilities”:WithrespecttoanyPersonasofanydate,allofthefollowingas of such date: (a) liabilities and obligations (including anyGuarantee Obligations) of such Person in respect of “off–balance sheet arrangements” (as defined in the Off–Balance Sheet Rules
defined below in this definition), (b) obligations, including Guarantee Obligations, whether or not required to be disclosed in the footnotes to such Person’s financial statements, guaranteeing in whole or in part any Non-Recourse Indebtedness, lease, dividend or other obligation, excluding, however (i) contractual indemnities (including any indemnity or price–adjustment provisionrelating to the purchase or sale of securities or other assets) and (ii) guarantees ofnon–monetary obligations that have not yet been called on or quantified, of such Person or any other Person, and (c) forward commitments or obligations to fund or provide proceeds with respect to any loan or other financing that is obligatory and non–discretionary on the part of the lender. The amount of any Contingent Liabilities described in the preceding clause (b)shall be deemed to be, (i) with respect to a guarantee of interest or interest and principal, or operating incomeguarantee, thesum ofall payments required to bemadethereunder(which, in thecaseof an operating income guarantee, shall be deemed to be equal to the debt service for the note secured thereby), through (x) in the case of an interest or interest and principal guarantee, the stated date of maturity of the obligation (and commencing on the date interest could first be payablethereunder), or, (y) in thecaseofanoperatingincomeguarantee, thedatethroughwhich such guarantee will remain in effect, and, (ii) with respect to all guarantees not covered by the preceding clause (i), an amount equal to the stated or determinable amount of the primary obligation in respect of which such guarantee is made or, if not stated or determinable, the maximum reasonablyanticipated liabilityinrespectthereof(assumingsuchPersonisrequiredto perform thereunder) as recorded on the balance sheet and in the footnotes to the most recent financial statements of such Person. “Off–Balance Sheet Rules” means the Disclosure in Management’s Discussion and Analysis About Off–BalanceSheet Arrangements andAggregate
Contractual Obligations, Securities Act Release Nos. 33–8182; 34–47264; FR–67 International SeriesReleaseNo.1266FileNo.S7–42–02,68Fed.Reg.5982(Feb.5,2003)(codifiedat17
CFRParts228,229and249).
“Contractual Obligation”: With respect to any Person, any provision of any securities issued by such Person or any indenture, mortgage, deed of trust, deed to secure debt, contract, undertaking, agreement, instrument or other document to which such Person is a party or by which it or any of its property or assets are bound or are subject.
“Control”: With respect to any Person, the direct or indirect possession of the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling,” “Controlled” and “under common Control” have correlative meanings.
“Controlled Account Agreement”: That certain Controlled Account Agreement with respect to the Waterfall Account, dated as of the Closing Date, among Seller, Buyer and Waterfall Account Bank, as the same shall be amended, modified, waived, supplemented, extended, replaced or restated from time to time.
“CoveredFund”:AsdefinedintheVolckerRule.
“Covered Fund Relationship”: With respect to a Covered Fund, a relationship with such Covered Fund whereby Buyer (or any of its affiliates) (i) is acting as an investment adviser, investment manager, or commodity trading adviser to such Covered Fund, (ii) “Sponsors” (as such term is defined in the Volcker Rule) such Covered Fund, (iii) organizes and offers such Covered Fund pursuant to the Asset Management Exemption, or (iv) holds an Ownership Interest in such Covered Fund pursuant to the ABS Issuer Exemption.
“Credit Approval Memo”: With respect to an Asset, the internal memorandumproduced bySelleroranAffiliateofSellerinconnectionwithSeller’sorsuchAffiliate’sinternalapproval process for the origination or purchase of such Asset.
“Credit Event”: With respect to any Purchased Asset, the determination by Buyer in its discretion that anyof the followingevents, occurrences or conditions haveoccurred with respect to such Purchased Asset: (a) any Insolvency Event with respect to any Underlying Obligor with respect to such Purchased Asset and such Insolvency Event is determined by Buyer to have a Material Adverse Effect on the timing and/or amounts or receipts of Income, principal or other amounts with respect to such Purchased Asset or in connection with the exerciseofanyrights or remedies relating to such Purchased Asset, (b) the deterioration in value affecting the PPV of such Purchased Asset or any Underlying Mortgaged Property relating to such Purchased Asset (other than due to fluctuations in interest rates and credit spreads), (c)anydecline in thenet cash flow or net operatingincomeaffectingthe Debt Yield ofanyPurchased Asset (determined on an annualized basis) or any Underlying Mortgaged Property related thereto unless set forth in the related Confirmation, (d) any deterioration (other than any anticipated deterioration which is described and acknowledged by Buyer in the related Confirmation) in the operations, property, assets, business, financial condition, or payment ability of any Underlying Obligor under the relatedMortgageNote,(e)thelossofanysecurityinterest(ortheprioritythereof)withrespectto
(i) such Purchased Asset or under any of the Repurchase Documents with respect to such Purchased Asset or (ii) any related Underlying Mortgaged Property or other collateral for such Purchased Asset or under any of the Mortgage Loan Documents for such Purchased Asset (excluding releases permitted by the Mortgage Loan Documents for such Purchased Asset and accompanied by a payment to Buyer of the corresponding Repurchase Price for such Purchased Asset and satisfaction of clause (m)of the definition of Eligible Asset, as applicable), (f) the failure of such Purchased Asset to qualify for Bankruptcy Code safe harbor treatment (as more fully described in Article 14hereof), (g) Seller fails to deliver any reports required under the Repurchase Documents with respect to such Purchased Asset and Buyer determines that such failure adverselyaffects Buyer’s abilitytodeterminetheMarketValueofsuchPurchasedAsset,
(h) any Representation Breach of a representation made herein with respect to such Purchased Asset, or any representation made in any Mortgage Loan Document with respect to such Purchased Asset is not true and correct beyond anyapplicable notice and cure rights that exist in the applicable underlying Mortgage Loan Document, in each case, other than an Approved Representation Exception, (i) [reserved], (j) such Purchased Asset with respect to which Buyer determines that there is a material adverse effect on the timing or amounts of or receipts of Income or in connection with the exercise of rights and remedies relating to such Purchased Asset, including, but not limited to, by reason of Underlying Obligor default beyond any notice and/or cure periods under the applicable Mortgage Loan Documents, an Insolvency Event with respect to the Underlying Obligor or litigation involving such Purchased Asset or Underlying Obligor,(k)suchPurchasedAssetwithrespecttowhichSellerhasfailedtodelivertheMortgage Note, the other Mortgage Loan Documents and the other documents required by the Custodial Agreement to Custodian for the benefit of Buyer within the time periods required by the Custodial Agreement or the Mortgage Note or other Mortgage Loan Documents have been released to Seller or Servicer and the same are not returned within the time periods required by the Custodial Agreement, (l) any written information provided by Seller, Guarantor, Pledgor, Sub-Servicer or any Affiliate of any of the foregoing to Buyer with respect to such Purchased Asset is untrue in any material respect after the expiration of any applicable notice and cure periods, (m) any Retained Interest, funding obligation or any other obligation of any kind with respect to such Purchased Asset has been transferred to Buyer without Buyer’s prior written
consent, (n) such Purchased Asset is not repurchased on the related Repurchase Date, (o) failure ofSellertosatisfy(orobtainawaiver,inwriting,fromBuyerof)anyoftheconditionsprecedent in Section 6.02(other than those set forth in Sections 6.02(g) and (h)) with respect to such Purchased Asset or the related Transaction, unless such failure was set forth in an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, or (p) to the extent Buyer and Seller agree to anyperformancethresholds with respect to such Purchased Asset, as set forth in the related Confirmation, any breach or failure to satisfy such thresholds.
“Current Appraisal”: An Appraisal dated within twelve (12) months of the date of determination which such Appraisal shall be approved byBuyer in its discretion.
“Current Mark-to-Market Value”: For any Asset, as of any date, the market value for such Asset as of such date, as such market value is determined byBuyerinitsdiscretion, which issubjecttoreductioninBuyer’sdiscretionforanyreason(excludingforreasonsrelatingto
fluctuations in current interest rates, interest rate spreads or credit spreads), and which marketvalue may be zero (0).
“Custodial Agreement”: The Custodial Agreement, dated as of the Closing Date, among Buyer, Seller and Custodian, as the same shall be amended, modified, waived, supplemented, extended, replaced or restated from time to time.
“Custodian”: Computershare Trust Company, N.A., or any successor permitted by the Custodial Agreement.
“Debt Yield”: With respect to each Asset or Purchased Asset and for any relevant time period,thepercentageequivalentofthequotientobtainedbydividing(a)theunderwrittenannual net cash flow or underwritten net operating income from the related Underlying Mortgaged Properties as determined byBuyer in its discretion by(b) the outstandingPurchase Price of such AssetorPurchasedAsset.Fortheavoidanceofdoubt,indeterminingtheDebtYield,Buyershall use an annual number in the numerator of such calculation.
“Default”: Any event that, with the giving of notice or the lapse of time, or both, would become an Event of Default.
“Default Rate”: As of any date, the lesser of (a) the Pricing Rate in effect on such date plus 500 basis points (5.00%) and (b) the highest rate permitted byRequirements of Law.
“Default Right”: Has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulted Asset”: Any Asset (a) that is thirty (30) or more days (or, in the case of payments due at maturity, three (3) days) delinquent in the payment of principal, interest, fees, distributionsoranyotheramountspayableundertherelatedMortgageLoanDocuments,without regard to any waivers or modifications of, or amendments to, the related Mortgage Loan DocumentsotherthanthosethatweredisclosedinwritingtoBuyerpriortothePurchaseDateof the related Purchased Asset and those approved by Buyer after the related Purchase Date in accordancewiththetermsofthisAgreement,(b)forwhichthereisaRepresentationBreachofa material representation as determined by Buyer in its discretion with respect to such Asset, whichbreach is stilloutstandingandhas notbeencured,otherthananApprovedRepresentation
Exception, (c) for which there is a material non-monetary default under the related Mortgage Loan Documents beyond any applicable notice or cure period, without regard to anywaivers or modifications of, oramendments to, therelatedMortgage LoanDocuments otherthanthosethat weredisclosed in writing to Buyerprior to thePurchaseDate of therelatedPurchased Asset and those approved by Buyer after the related Purchase Date in accordance with the terms of this Agreement, (d) as to whose Underlying Obligor an Insolvency Event has occurred, (e) with respect to which there has been a Material Action (including, for the avoidance of doubt, a Material Action with respect to the Whole Loan related to any Senior Interest) other than those whichhavebeenapprovedbyBuyerafterthePurchaseDateinaccordancewiththetermsofthis Agreement,(f)withrespecttowhichSellerorServicerhasnotifiedBuyerofitsdeterminationto foreclose,or(g)thatisinforeclosureorinrespectofwhichSellerorServicerhasmadea
statutorily requiredfilingorservedotherwrittennoticeofthecommencementofforeclosure proceedings with respect to anyLien on the related Underlying Mortgaged Property.
“Deficit Amount”: (a) In the case of aMargin Deficit created because the Debt Yield for all Purchased Assets (on a combined basis) is less than the Required Portfolio Debt Yield Percentage, the amount by which the Purchase Price for such Purchased Assets is required to be reduced so that the Debt Yield for all such Purchased Assets (on a combined basis) is at greater thanorequaltotheRequiredPortfolioDebtYieldPercentage,(b)inthecaseofaMarginDeficit created because the PPV for a Purchased Asset does not satisfy the Maximum PPV Percentage, the amount by which the Purchase Price for such Purchased Asset is required to be reduced so that, after giving effect to such reduction, such Purchased Asset is in compliance with the Maximum PPV Percentage, and (c) in all other cases of Margin Deficits, the amount determined by Buyer in its discretion, which amount may be 100% of the outstanding Purchase Price for such Purchased Asset and shall be 100% of the outstanding Purchase Price if (i) Seller fails to repurchase a Purchased Asset on its related Repurchase Date or (ii) the Confirmation for the Purchased Asset so provides.
“DelawareLLCAct”:Chapter18oftheDelawareLimitedLiabilityCompanyAct,6Del.
C.§§18-101etseq.,asamended.
“Derivatives Contract”: Any rate swap transaction, basis swap, credit derivative transaction, forward rate transaction, commodity swap, commodity option, forward commodity contract,equityorequityindexswaporoption,bondorbondpriceorbondindexswaporoption or forward bond or forward bond price or forward bond index transaction, interest rate option, forward foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross–currencyrate swap transaction, currencyoption, spot contract, or any other similar transaction or any combination of any of the foregoing (including any options toenterintoanyoftheforegoing),whetherornotanysuchtransactionisgovernedbyor subject to any master agreement, including any obligations or liabilities thereunder.
“DerivativesTerminationValue”:WithrespecttoanyoneormoreDerivativesContracts, after taking into account the effect of any legally enforceable netting agreement relating to such Derivatives Contracts, (a) for anydate on or after the date such Derivatives Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in the preceding clause (a), the amount(s) determined as the mark–to–market value(s) for such Derivatives Contracts, as determined based on one or more mid–market or other readily available quotations provided by any recognized dealer in such Derivatives Contracts (which may include Buyer).
“Dividing LLC”:A Delaware limited liability company that is effecting a Division pursuant to and in accordance with Section 18-217 of the Delaware LLC Act.
“Division”:The division of a DividingLLC into two or more domestic limited liability companies pursuant to and in accordance with Section 18-217 of the Delaware LLC Act.
“DivisionLLC”:Asurvivingcompany,ifany,andeachresultingcompany,ineachcase that is the result of a Division.
“Dollars”and“$”:LawfulmoneyoftheUnitedStatesofAmerica.
“Early Repurchase Date”: The date on which a Purchased Asset is repurchased under Section 3.05, which date is prior to the scheduled Repurchase Date for such Purchased Asset under clauses (a) or (c), as applicable, of the definition of Repurchase Date.
“Eligible Asset”: An Asset, as of any date of determination, that meets each of the following criteria at all times:
(a) that has been approved as a Purchased Asset by Buyer as of the related Purchase Date;
(b) that wasoriginated bySelleror, to the extent requiredpursuant to Section7.10, as to which Seller has provided to Buyer a true sale opinion or a Residual Pledge Agreement and Residual Pledgor Financing Statement acceptable to Buyer with respect to the purchase by Seller from an Affiliate of Seller;
(c) with respect to which no Representation Breach exists, other than an Approved Representation Exception;
(d) thatisnotaDefaultedAsset;
(e) withrespecttowhichtherearenofuturefundingobligationsonthepartof SellerorBuyeroranyotherPersonexceptasmaybedisclosedbySellerinwritingtoand approved by Buyer in the Confirmation; provided, that, upon request from Seller, Buyer mayunderwrite afuturefundingrequest and will approveordisapproveanysuchrequest in Buyer’s sole and absolute discretion;
(f) with respect to any Hotel Asset, (i) Seller has provided Buyer a copy of the executed franchise agreement or management agreement and related documents for operation of the hotel under the national flag, any reports issued by the franchisor/brand with respect to the Underlying Obligor’s performance under the franchise agreement or managementagreement,asapplicable,andacomfortlettersignedbythefranchisor/brand (which comfort letter shall run to the benefit of successors and assigns of Seller or which shall name Buyer and its Affiliates as an approved assignee), each of which shall be acceptable to Buyer in its discretion, (ii) thehotel is managed byamanageracceptable to Buyer in its discretion, and (iii) with respect to the management of the hotel, Seller has provided to Buyer copies of the management agreement and subordination of management agreement, each of which shall be acceptable to Buyer in its discretion;
(g) whose Underlying Mortgaged Property is located in the United States (excludingPuertoRicoandanyotherUnitedStatesterritory),whoseUnderlyingObligors aredomiciledintheUnitedStates(excludingPuertoRicoandanyotherUnitedStates
territory,exceptasotherwiseagreedtobyBuyer),andallobligationsthereunderand under the Mortgage Loan Documents are denominated and payable in Dollars;
(h) whichdoesnotviolateanyConcentrationLimit;
(i) whoserelatedUnderlyingObligors (andanyoftheirrespectiveAffiliates) are not Sanctioned Targets;
(j) that does not involve an Equity Interest held or to be held by Seller, Guarantor or any Affiliate of Seller or Guarantor that would result in (i) an actual or potential conflict of interest, (ii) an affiliation with an Underlying Obligor which results or could reasonablybe expected to result in the loss orimpairment of anymaterial rights of the holder of the Asset; provided, Seller shall disclose to Buyer before the Purchase DateeachEquityInterestheldortobeheldbySeller,GuarantororanyAffiliateofSeller or Guarantor with respect to such Asset whether ornot itsatisfieseitherofthepreceding clauses (i)or (ii);
(k) thatisevidencedbyaMortgageNotewhichissecuredbyaperfected,first priority security interest on a commercial or multi-family property;
(l) that does not include any unimproved land, land for-sale, construction property, conversion of use, gut or heavy rehab property, or any subordinate debt assets (other than subordinate debt included with all related senior interests and approved by Buyer on a case-by-case basis);
(m) if any portion of the Mortgaged Property related to such Asset or Purchased Asset is subject to a partial release and Buyer has not received one or more AppraisalsspecifyingthevalueofboththeportionofsuchMortgagedPropertysubjectto such partial release and the portion of such Mortgaged Property which remains as security for the related Asset or Purchased Asset following such partial release, then, Buyer shall have received, on or before the effective date of such partial release, an Appraisal specifying the value of the Mortgaged Property which remains as security for therelated Asset orPurchased Asset followingthedateofconsummationforsuchpartial release; and
(n) ifsuchAssetissubjecttoaco-lenderagreement,ParticipationAgreement, intercreditor agreement or other similar agreement among creditors that requires anotice of transfer and/or a notice of pledge to be delivered in order to giveeffect to the rights of the transferee or pledgee, as applicable, thereunder, Seller has delivered a Notice of Transfer/Pledge with respect to such Asset;
provided, that notwithstanding the failure of an Asset to conform to the requirements of this definition, Buyer may, subject to such terms, conditions, requirements and Applicable Percentage adjustments as Buyer may require, as determinedinBuyer’sdiscretion,designateinwritinganysuchnon–conformingAssetas anEligibleAsset,whichdesignation(1)mayincludeatemporaryorpermanentwaiverof oneormoreEligibleAssetrequirements,and(2)shallnotbedeemedawaiverofthe
requirement that all other Assets and Purchased Assets must be Eligible Assets (includinganyAssetsthataresimilaroridenticaltotheAssetorPurchasedAssetsubject to the waiver).
“Environmental Laws”: Any federal, state, foreign or local statute, law, rule, regulation, ordinance,code,guideline,writtenpolicyandruleofcommonlawnoworhereafterineffect,and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to the environment, employee health and safety or hazardous materials, including CERCLA, RCRA, the Federal Water Pollution Control Act, the ToxicSubstancesControlAct,theCleanAirAct,theSafeDrinkingWaterAct,theOilPollution Act of 1990, the Emergency Planning and the Community Right-to-Know Act of 1986, the
Hazardous Material Transportation Act, the Occupational Safety and Health Act, and any state and local or foreign counterparts or equivalents.
“Equity Interests”: With respect to any Person, (a) any share, interest, participation and other equivalent (however denominated) of capital stock of (or other ownership, equityor profit interests in) such Person, (b) any warrant, option or other right for the purchase or other acquisition from such Person of any of the foregoing, (c) any security convertible into or exchangeable for any of the foregoing, and (d) any other ownership or profit interest in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date.
“ERISA”: The Employee Retirement Income Security Act of 1974 and the regulations promulgated and rulings issued thereunder, as each of the foregoing are amended, modified or replaced from time to time.
“ERISAEvent”:DefinedinSection7.07.
“Escrow Account”: The account under a Servicing Agreement in which escrow and reserve payments relating to Purchased Assets are held and, unless Wells or Trimont is the Servicer, such account shall be subject to an Account Control Agreement. This account is referred to as the “Escrow Account” under the Trimont Servicing Agreement and the Servicer Acknowledgment Agreement.
“EventofDefault”:DefinedinSection10.01.
“ExcessAmount”:DefinedinthedefinitionofReleaseAmount(asdefinedintheFee
Letter).
“ExcessFundingCapacity”:WithrespecttoaPurchasedAssetforwhichtheApplicable
Percentage may be less than the Initial Approved Applicable Percentage during the Funding Period,anamountdeterminedbyBuyer,whichshallbeequaltotheproductof(a)thedifference between (i) the lower of (A) the Initial Approved Applicable Percentage, (B) the Applicable Percentage that Buyer would approve if the Purchased Asset was submitted for initial purchase
onsuchdateand(ii)thecurrentApplicablePercentagewithrespecttosuchPurchasedAssetand
(b)theMarketValueofsuchPurchasedAssetasoftherelevantdateofdetermination.
“Exchange Act”: The Securities Exchange Act of 1934, as amended, modified or replaced from time to time.
“Excluded Taxes”: Any of the following Taxes imposed on or with respect to Buyer or requiredtobewithheldordeductedfromapaymenttoBuyer:(a)Taxesimposedonormeasured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case,
(i) imposed as a result of Buyer being organized under the lawsof, orhavingitsprincipaloffice or the office from which it books the Transactions located in, the jurisdiction imposing such Taxes (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 Buyer or any Person with respect to an interest in the Repurchase Obligations pursuant to a law in effect on the date on which such Party (i) acquires such interest in the Repurchase Obligations or (ii) changes the office from which it books the Transactions, except in each case to the extent that,
pursuant to Section 12.07, amounts with respect to such Taxes were payable either to such Party’s assignor immediately before such Party became a party hereto or to such Party immediately before it changed the office from which it books the Transactions, (c) Taxes attributable to Buyer’s failure to comply with Section 12.07(e)and (d) any U.S. federal withholding Taxes imposed under FATCA.
“ExitFee”:DefinedintheFeeLetter.
“ExtendedFacilityTerminationDate”:DefinedinSection3.07(a). “Extension Conditions”: Defined in Section 3.07(a).
“ExtensionFee”:DefinedintheFeeLetter.
“Facility”: The facility evidenced by and the Transactions contemplated under the Repurchase Documents.
“FacilityTerminationDate”:Theearliestof(a)theInitialFacilityTerminationDateor,in the case that the Facility Termination Date is extended in accordance with Section 3.07(a)hereof, the Extended Facility Termination Date, as applicable, (b) any Accelerated Repurchase Date, and (c) any date on which the Facility Termination Date shall otherwise occur in accordance with the Repurchase Documents or Requirements of Law.
“FATCA”: Sections 1471through 1474 oftheCode,as ofthedateofthisAgreement(or any amended or successor version that is substantively comparable and not materially more onerous to complywith), anycurrent or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“FDIA”:DefinedinSection14.03.
“FDICIA”:DefinedinSection14.04.
“FeeLetter”:ThefeeletterSecondAmendedandRestatedFeeLetter,datedasofthedatehereofJune 24, 2026, between Buyer and Seller, as amended, modified, waived, supplemented, extended, restated or replaced from time to time.
“Final Regulations”: Defined in the definitions of the “Volcker Rule” as set forth below. “FinancialCovenants”:ThefinancialcovenantssetforthinSection8.05ofthis
AgreementandSection4.11oftheGuaranty.
“FIRREA”:TitleXIoftheFinancialInstitutionsReform,RecoveryandEnforcementAct of 1989, and the regulations promulgated thereunder, in each case as amended, modified or replaced from time to time.
“FirstExtendedFacilityTerminationDate”:DefinedinSection3.07(a). “Fitch”: Fitch Ratings, Inc.
“Floor”: The greater of (a) zero (0) and (b) such higher amount as may be agreed to by the parties, with respect to any Transaction, and specified in the related Confirmation (or amended and restated Confirmation, as applicable).
“ForeignBuyer”:ABuyerthatisnotaU.S.Person.
“ForeignCorruptPracticesAct”:Title15oftheUnitedStatesCode(15U.S.C.§§78dd–1, et seq.), as amended, modified or replaced from time to time.
“FundingPeriod”:TheperiodfromtheClosingDatetoandincludingtheFundingPeriod Expiration Date.
“Funding Period Expiration Date”: The earliest of (a) the Initial Facility Termination Date or, in the case that the Funding Period Expiration Dateis extended from the Initial Facility Termination Date to the First Extended Facility Termination Date in accordance with Section3.07(b)hereof, the First Extended FacilityTermination Date, as applicable, (b) anyAccelerated Repurchase Date, and(c) anydate on which the FundingPeriod Expiration Dateshallotherwise occur in accordance with the provisions hereof or Requirements of Law.
“Future Advance Funding Period”: The period from but excluding the Funding Period Expiration Date to and including the Facility Termination Date.
“GAAP”: Generally accepted accounting principles as in effect from time to time in the United States, consistently applied.
“GeneralAssignment”:DefinedintheCustodialAgreement.
“General Servicing Account”:For so long as Trimont is the Servicer of the Purchased Assets,thecommingledgeneraldepositaccount(includinganysubaccountsthereof),established in the name of Servicer and described on Annex 2.
“Governing Documents”: With respect to any Person, its articles or certificate of incorporation or formation, by-laws, partnership, limited liability company, memorandum and articles of association, operating or trust agreement and/or other organizational, charter or governing documents.
“Governmental Authority”: Any (a) nation or government, (b) state or local or other political subdivision thereof, (c) central bank or similar monetary or regulatory authority, (d) Person, agency, authority, instrumentality, court, regulatorybody, central bank or other bodyor entity exercising executive, legislative, judicial, taxing, quasi–judicial, quasi–legislative, regulatory or administrative functions or powers of or pertaining to government, (e) court or arbitrator having jurisdiction over such Person, its Affiliates or its assets or properties, (f) stock exchange on which shares of stock of such Person are listed or admitted for trading, (g) accounting board or authority that is responsible for the establishment or interpretation of nationalorinternationalaccountingprinciples,and(h)supra-nationalbodysuchastheEuropean Union or the European Central Bank.
“Ground Lease”: A ground lease containing the following terms and conditions: (a) a remaining term (including all extension options available thereunder) that extends not less than twenty (20) years beyond the maturity date of the related Asset, (b) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor or with such consent given, (c) the obligation of the lessor to give the holder of anymortgage lien on such leased propertywritten notice of anydefaults onthepart ofthelessee and agreement of such lessor that such lease will not be terminated until such holder has had a reasonable opportunityto cure or complete foreclosures, and fails to do so, (d) reasonable transferabilityof
the lessee’s interest under such lease, including ability to sublease, and (e) such other rights customarily required by Mortgagees making a loan secured by the interest of the holder of the leasehold estate demised pursuant to a ground lease.
“Guarantee Obligation”: With respect to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of the obligations for which the guaranteeing person has issued a reimbursement, counterindemnityor similar obligation, in either case guaranteeingor in effect guaranteeing any Indebtedness, leases, dividends, Contractual Obligation, Derivatives Contract or other obligations or Indebtedness (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primaryobligation or anypropertyconstituting direct or indirect securitytherefor, (ii) to advance orsupplyfunds(1)forthepurchaseorpaymentofanysuchprimaryobligationor(2)tomaintain workingcapital or equitycapital of the primaryobligor or otherwise to maintain the net worth or solvencyof theprimaryobligor, (iii) to purchaseproperty, securities orservices primarilyfor the purposeofassuringtheownerofanysuchprimaryobligationoftheabilityoftheprimaryobligor tomakepaymentofsuchprimaryobligation,or(iv)otherwisetoassureorholdharmlessthe
owner of any such primary obligation against loss in respect thereof; provided, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the maximum stated amount of the primary obligation relating to such Guarantee Obligation (or, if less, the maximum stated liability set forth in the instrument embodying such Guarantee Obligation); provided, further, that inthe absenceof anysuchstated amount or stated liability, the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum anticipated liability in respect thereof as reasonably determined by such Person.
“Guarantor”:Individually or collectively as the context requires, the party or parties named as such in the Guaranty.
“GuarantorReleaseEvent”:DefinedintheGuaranty.
“Guaranty”: The Guaranty and Subordination Agreement, dated as of the Closing Date, executed by Guarantor in favor of Buyer, as such agreement is amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time.
“Hedge Counterparty”: Either (a) Wells (or any Affiliate thereof) in its capacity as counterparty to any Interest Rate Protection Agreement, or (b) any other counterparty (which maybeBuyeroritsAffiliate)approvedbyBuyertoanyInterestRateProtectionAgreementwith Seller, and, in each case, which Interest Rate Protection Agreement contains a consent to the collateral assignment satisfactory to Buyer of the rights (but none of the obligations) of Seller thereunder.
“Hotel Asset”: An Asset or Purchased Asset with respect to which the Underlying Mortgaged Property is primarily for hotel use.
“Income”: With respect to any Purchased Asset, all of the following (in each case with respect to the entire par amount of the Asset represented by such Purchased Asset and not just with respect to the portion of the par amount represented bythe Purchase Price advanced against
such Asset): (a) all Principal Payments, (b) all Interest Payments, (c) all other income, distributions, receipts, payments, collections, prepayments, recoveries, proceeds (including insurance and condemnation proceeds) and other payments or amounts of any kind paid, received, collected, recovered or distributed on, in connection with or in respect of such Purchased Asset, including principal payments, interest payments, principal and interest payments, prepayment fees, extension fees, exit fees, defeasance fees, transfer fees, make whole fees, late charges, late fees and all other fees or charges of any kind or nature, premiums, yield maintenance charges, penalties, default interest, dividends, gains, receipts, allocations, rents, interests, profits, payments in kind, returns or repayment of contributions, net sale, foreclosure, liquidation, securitization or other disposition proceeds, insurance payments, settlements and proceeds and (d) all payments received from Hedge Counterparties pursuant to Interest Rate Protection Agreements entered into byUnderlyingObligors for Purchased Assets; provided, that any amounts that under the applicable Mortgage Loan Documents are required to be deposited intoandheldinescroworreservetobeusedforaspecificpurpose,including,withoutlimitation,
taxes, insurance and tenant improvements, or are required pursuant to the express terms of the Mortgage Loan Documents to be remitted to the Underlying Obligor thereunder, shall not be included in the term “Income” unless and until (i) an event of default or other specified event exists under such Mortgage Loan Documents and the lender thereunder elects, as permitted inthe applicable Mortgage Loan Documents, to apply such amounts to the obligations under such Mortgage Loan Documents, (ii) the holder of the related Purchased Asset has exercised or is entitled to exercise rights and remedies with respect to such amounts under the respective MortgageLoanDocuments,(iii)suchamountsarenolongerrequiredtobeheldforsuchpurpose under such Mortgage Loan Documents and the lender thereunder elects or is entitled to elect, as permitted in the applicable Mortgage Loan Documents, to applysuch amounts to the obligations under such Mortgage Loan Documents, or (iv) such amounts are or are entitled to be applied to all or a portion of the outstanding Indebtedness under such Mortgage Loan Documents;provided,further,however,thatIncomeshallnotincludeanyServicingFeesthatarepermittedin accordance with the express terms of the related Servicing Agreement and are actually retained by the related Servicer as permitted pursuant to the terms of this Agreement. For the avoidance of doubt, “Income” shall not include (A) the Purchase Price paid to Seller pursuant to any Transaction or (B) with respect to any Purchased Asset that is subject to a cash management regime pursuant to its applicable Mortgage Loan Documents, amounts maintained in escrow or reserve accounts unless and until such amounts are permitted or required to be released to the lender thereunder for its own account pursuant to the applicable Mortgage Loan Documents.
“Indebtedness”:WithrespecttoanyPersonandanydate,allofthefollowingwithrespect tosuchPersonasofsuchdate:(a)obligationsinrespectofmoneyborrowed(includingprincipal, interest, assumption fees, prepayment fees, yield maintenance charges, penalties, exit fees, contingent interest and other monetary obligations whether choate or inchoate and whether by loan, the issuance and sale of debt securities or the sale of property or assets to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets, or otherwise), (b) obligations, whether or not for money borrowed (i) represented by notes payable, letters of credit or drafts accepted, in each case representing extensions of credit,
(ii) evidenced by bonds, debentures, notes or similar instruments, (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or services rendered, or (iv) in connection with the issuance ofPreferredEquityortrustpreferredsecurities,(c)CapitalLeaseObligations,(d)reimbursement obligations under any letters of credit or acceptances (whether or not the same have been
presented for payment), (e) Off–Balance Sheet Obligations, (f) obligations to purchase, redeem, retire, defease or otherwise make any payment in respect of any mandatory redeemable stock issued by such Person or any other Person (inclusive of forward equity contracts), valued at the greater of its voluntaryor involuntaryliquidation preference plus accrued andunpaiddividends,
(g) as applicable, all obligations of such Person (but not the obligations of others) in respect of anykeepwellarrangements,creditenhancements,contingentorfuturefundingobligationsunder any Purchased Asset or any obligation senior to any Purchased Asset, unfunded interest reserve amount under any Purchased Asset or any obligation that is senior to any Purchased Asset, purchase obligation, repurchase obligation, sale/buy–back agreement, takeout commitment or forwardequitycommitment,ineachcaseevidencedbyabindingagreement(excludinganysuch obligation to the extent the obligation can be satisfied by the issuance of Equity Interests (other
than mandatory redeemable stock)), (h) net obligations under any Derivatives Contract not entered into as a hedge against existing indebtedness, in an amount equal to the Derivatives Termination Value thereof, (i) all Non-Recourse Indebtedness, recourse indebtedness and all indebtednessofotherPersonswhichsuchPersonhasguaranteedorisotherwiserecoursetosuch Person, (j) all indebtedness of another Person secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien (other than certain Permitted Liens) on property or assets owned by such Person, even though such Personhasnotassumedorbecomeliableforthepaymentofsuchindebtednessorotherpayment obligation (provided, that if such Person has not assumed or become liable for the payment of such indebtedness, then for thepurposes of this definition theamount ofsuch indebtedness shall not exceed the market value of the propertysubject to such Lien), (k) all Contingent Liabilities,
(l) allobligations ofsuchPersonincurred in connection with the acquisition or carryingoffixed assets by such Person or obligations of such Person to pay the deferred purchase or acquisition price of property or assets, including contracts for the deferred purchase price of property or assets that include the procurement of services, (m) indebtedness of general partnerships of which such Person is liable as a general partner (whether secondarily or contingently liable or otherwise), and (n) obligations to fund capital commitments under any Governing Document, subscription agreement or otherwise.
“IndemnifiedAmounts”:DefinedinSection13.01. “Indemnified Person”: Defined in Section 13.01.
“Indemnified Taxes”: (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Repurchase Parties under any Repurchase Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Independent Appraiser”: An independent professional real estate appraiser who is a member in good standing of the American Appraisal Institute, and, if the state in which the subject Underlying Mortgaged Property is located certifies or licenses appraisers, is certified or licensedinsuchstate,andineachsuchcase,whohasaminimumoffive(5)years’experiencein the subject property Type.
“IndependentDirector”or“IndependentManager”:Anindividualwhohasatleastthree
(3) yearspriorexperienceasanindependentdirector,independentmanagerorindependent memberwhoisprovidedbyCTCorporation,CorporationServiceCompany,NationalRegistered Agents,Inc.,WilmingtonTrustCompany,StewartManagementCompany,Puglisi&Associates, CogencyGlobalInc.,LordSecuritiesCorporationor,ifnoneofthosecompaniesisthenprovidingprofessionalIndependentDirectorsorIndependentManagers,anothernationally
recognizedcompanyreasonablyapprovedbyBuyer,ineachcase,thatisnotanAffiliateof Seller,GuarantororPledgorandthatprovidesprofessionalIndependentDirectorsand Independent Managers and other corporate services in the ordinary course of its business, andwhichindividualisdulyappointedasamemberoftheboardofdirectorsorboardofmanagersof suchcorporationorlimitedliabilitycompanyandisnot,hasneverbeen,andwillnotwhile serving as Independent Director or Independent Manager be, anyof the following:
(a) a member, partner, equity holder, manager, director, officer or employee of Seller, Guarantor, Pledgor, any of their respective equity holders or Affiliates (other than (a) as an Independent Director or Independent Manager of Seller, Guarantor or Pledgor and (b) as an Independent Director or Independent Manager of an Affiliate of Seller, Guarantor or Pledgor or any of their respective single purpose entity equity holders that are not in the direct chain of ownership of Seller, Guarantor, Pledgor or any Affiliate thereof and that are required by a creditor to be a single purpose bankruptcy remote entities, providedthat such Independent Director or Independent Manager is employed by a company that routinely provides professional Independent Directors or Independent Managers);
(b) a creditor, supplier orserviceprovider (includingproviderofprofessional services) toSeller, Guarantor,Pledgor, anysingle-purpose entityequityholder, or anyof their respective equityholders or Affiliates (other than a nationally-recognized company that routinelyprovides professional Independent Directors or Independent Managers and other corporate services to Seller, Guarantor, Pledgor, any single-purpose entity equity holder, or any of their respective equity holders or Affiliates in the ordinary course of business);
(c) a family member of any such member, partner, equity holder, manager, director, officer, employee, creditor, supplier or service provider; or
(d) a Person that controls (whether directly, indirectly or otherwise) any Person described in any of the preceding clauses (a), (b)or (c).
An individual who otherwise satisfies the preceding definition other than clause (a) by reason of being the Independent Director or Independent Manager of a “special purpose entity” affiliated with Seller, Guarantor or Pledgor shall not be disqualified from serving as an Independent Director or Independent Manager of Seller, Guarantor or Pledgor if (x) such individual is provided byCT Corporation or (y) the fees that such individual earns fromserving as Independent Directors or Independent Managers of Affiliates of Seller, Guarantor or Pledgor in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year.
“InitialApprovedApplicablePercentage”:ThemaximumApplicablePercentageinitially approved by Buyer in its discretion with respect to a Purchased Asset on the Purchase Date therefore,assetforthintherelatedConfirmation,whichInitialApprovedApplicablePercentage shallinallcasesbelessthanorequaltothemaximumApplicablePercentagesetforthintheFee Letter.
“InitialFacilityTerminationDate”:August15,2027.
“InsolvencyAction”:WithrespecttoanyPerson,thetakingbysuchPersonofanyaction resulting in an InsolvencyEvent, other than solelyunder clause (g)of the definition thereof.
“Insolvency Event”:Withrespecttoany Person,(a)thefilingofadecreeororderfor reliefbyacourthavingjurisdictioninthepremiseswithrespecttosuchPersonoranysubstantial
part of its assets or property in an involuntarycase under anyapplicable InsolvencyLaw now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for anysubstantial part of its assets or property, or ordering the winding–up or liquidation of such Person’s affairs, and such decree or order shall remain unstayed and ineffect foraperiodof sixty(60)days,(b)thecommencementbysuchPersonofa voluntarycaseunderanyapplicableInsolvencyLawnoworhereafterineffect,(c)theconsentby such Person to the entry of an order for relief in an involuntary case under any Insolvency Law,
(d) the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantialpartofitsassetsorproperty,(e)themakingbysuchPersonofanygeneralassignment for the benefit of creditors, (f) the admission in alegal proceedingof the inabilityof such Person to pay its debts generally as they become due, (g) the failure by such Person generallyto pay its debts as theybecome due, or (h) the taking of action bysuch Person in furtherance of anyof the foregoing.
“Insolvency Laws”: The Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization,suspensionofpaymentsandsimilardebtorrelieflawsfromtimetotimeineffect affecting the rights of creditors generally.
“Insolvency Proceeding”: Any case, action or proceeding before any court or other Governmental Authority relating to any Insolvency Event.
“Interest Payments”: With respect to any Purchased Asset, all payments of interest, income, receipts, dividends and any other collections and distributions received from time to time in connection with any such Purchased Asset.
“Interest Rate Protection Agreement”: With respect to any or all Purchased Assets, any futures contract, options related contract, short sale of United States Treasury securities or any interest rate swap, cap, floor or collar agreement, total return swap or any other similar arrangement providing for protection against fluctuations in interest rates or the exchange of nominalinterestobligations,eithergenerallyorunderspecificcontingencies,ineachcasewitha Hedge Counterparty and that is acceptable to Buyer.
“Intermediate Entity”: CLR RE Lending Sub WF Holdco, LLC, a Delaware limitedliability company.
“Internal Control Event”: Fraud thatinvolvesmanagementorother employees whohave a significant role in the internal controls of Seller, any Repurchase Party or any Affiliate of the foregoing over financial reporting.
“Investment”: With respect to anyPerson, anyacquisition or investment (whether or not of a controlling interest) by such Person, whether by means of (a) the purchase or other acquisitionofanyEquityInterestinanotherPerson,(b)aloan,advanceorextensionofcreditto, capital contribution to, guaranty or credit enhancement of Indebtedness of, or purchase or other acquisition of any Indebtedness of, another Person, including any partnership or joint venture interestinsuchotherPerson,or(c)thepurchaseorotheracquisition(inonetransactionora
series of transactions) of assets of another Person that constitute the business or a division or operating unit of another Person. Any binding commitment or option (when exercised) to make an Investment in any other Person shall constitute an Investment. Except as expressly provided otherwise, for purposes of determining compliance with any covenant contained in the Repurchase Documents, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“InvestmentCompanyAct”:TheInvestmentCompanyActof1940,asamended,restated or modified from time to time, including all rules and regulations promulgated thereunder.
“Irrevocable Redirection Notice”: With respect to each Purchased Asset, a notice in the formattachedheretoasExhibitB,tobesignedbySellerorbyServiceronSeller’sbehalf,which noticemaybedeliveredtotheapplicableUnderlyingObligorduringthecontinuanceofanEvent of Default in accordance with this Agreement.
“IRS”:TheUnitedStatesInternalRevenueService.
“ISDA Definitions”: The 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“Knowledge”: Whenever in this Agreement or any of the Repurchase Documents, or in anydocument or certificate executed on behalf of Seller pursuant to the Repurchase Documents, reference is made to the Knowledge of Seller (whether by use of the words “Knowledge” or “Know”), unless otherwise expresslyspecified, same shall mean the actual knowledge of (a) the Chief Executive Officer, Chief Financial Officer or Head of Portfolio Oversight of Seller or Guarantor, (b) with respect to any representations, warranties, certifications or statements with respect to any Purchased Asset, those individual employees of Guarantor, Pledgor or Seller havingthe title of “Lead” (or its equivalent) or above who have responsibilityfor the origination oracquisition,asapplicable,underwriting,servicingorsaleofsuchPurchasedAsset,or(c)ifthe titles under clauses (a) and (b) no longer exist, then each officer or director of Seller, Pledgor and/or Guarantor who is tasked with the origination, acquisition and/or management of any of the Purchased Assets.
“Lien”:Anymortgage,statutoryorotherlien,pledge,charge,right,claim,adverseclaim, attachment, levy, hypothecation, assignment, deposit arrangement, security interest, UCC financing statement or encumbrance of any kind on or otherwise relating to anyPerson’s assets or properties in favor of anyother Person or anypreference,priorityorothersecurityagreement or preferential arrangement of any kind.
“Manager”:Individually and collectively, as the context may require, CIM Real EstateFinance Management, LLC, a Delaware limited liability company, CIM Commercial LendingREIT Management, LLC, a Delaware limited liability company, and/or any other externalmanagerdirectlyorindirectlyControlledbyorundercommonControlwithCIMGroup,LLC,
CIMRealEstateFinanceManagement,LLC,CIMCommercialLendingREITManagement,LLC, CMFT Guarantor or CLR Guarantor.
“Margin Call”: Defined in Section 4.01(b). “MarginCallNotice”:DefinedinSection4.01(b).
“MarginCorrectionDeadline”:Two(2)BusinessDaysfromthedateoftheMarginCall
Notice.
“Margin Deficit”: Defined in Section 4.01(a). “MarginDisputeNotice”:DefinedinSection4.02.
“MarginThreshold”:(a)WithrespecttoallPurchasedAssetsonacombinedbasis,
$1,000,000,and(b)withrespecttoanysinglePurchasedAsset,threepercent(3.0%)ofthe Purchase Price outstanding for such single Purchased Asset.
“Market Disruption Event”: Any event or events that, in the determination of Buyer, results in (a) theeffectiveabsence of a“repo market” orrelated “lendingmarket”forpurchasing (subject to repurchase) or financing debt obligations secured by commercial mortgage loans or securities, (b) Buyer not being able to finance Purchased Assets through the “repo market” or “lendingmarket”withtraditionalcounterpartiesatratesthatwouldhavebeenreasonablepriorto the occurrence of such event or events, (c) the effective absence of or material change since the Closing Date in the “securities market” for securities backed by Purchased Assets, or (d) Buyer not being able to sell securities backed by Purchased Assets at prices that would have been reasonable prior to the occurrence of such event or events.
“Market Value”: For anyAsset, as of anydate, the lower of the CurrentMark-to-Market Value and Book Value for such Asset, as of such date, as determined byBuyer.
“Material Action”: Anymaterial extension, amendment, waiver, termination, rescission, cancellation, release or other modification to the terms of, or any collateral, guaranty or indemnityfor, or the exercise of anymaterial right or remedyof a holder (including all lending, corporate and votingrights, remedies, consents, approvals and waivers)of, anyPurchased Asset or the related Mortgage Loan Document or any other action, direction or decision that could reasonably be expected to adversely affect the value or collectability of any amounts due with respecttothePurchasedAssets,asdeterminedbyBuyer.Notwithstandingtheforegoing,solong as no Default or Event of Default has occurred and is continuing, Seller shall have the right without the consent of Buyer to enter into Non-Material Action.
“Material Adverse Effect”: Any event, development or circumstance that has a material adverseeffectonormaterialadversechangeinorto(a)theproperty,assets,business,operations orfinancialconditionofSelleroranyotherRepurchaseParty,takenasawhole,(b)theabilityof Seller or any other Repurchase Party to pay and perform the Repurchase Obligations and other obligations under the Repurchase Documents, (c) the validity, legality, binding effect or enforceabilityofanyRepurchaseDocument,MortgageLoanDocument,PurchasedAssetor
security interest granted hereunder or thereunder, (d) the rights and remedies of Buyer or any Indemnified Person under any Repurchase Document, Mortgage Loan Document or Purchased Asset, (e) [reserved], or (f) the perfection or priority of any Lien granted under any Repurchase Document or Mortgage Loan Document, in each case, as determined byBuyer.
“Materials of Environmental Concern”: Any hazardous, toxic or harmful substances, materials, wastes,pollutants or contaminantsdefinedashazardousortoxicinorregulatedunder any Environmental Law.
“MaximumAdditionalPurchaseAmount”:TheamountrequestedbySellerandapproved by Buyer in its reasonable discretion on or before the Funding Period Expiration Date, which amount(a)shallnotexceedtheMaximumAmountlesstheaggregatePurchasePriceoutstanding for all Transactions existing under the Facility on the Funding Period Expiration Date, (b) shall be evidenced by and documented in a letter agreement executed by the Repurchase Parties and Buyer, (c) shall be available for additional advances of Purchase Price to fund such future funding obligations with respect to Purchased Assets existing on the Funding Period Expiration Date pursuant to Section 3.03and (d) shall be reduced permanently by (i) amounts advanced in accordancewithSection3.03and(ii)theunfundedportionoftheMaximumAdditionalPurchase Amount allocated to a Purchased Asset after that Purchased Asset has been repurchased.
“Maximum Amount”: Defined in the Fee Letter. “MaximumPPVPercentage”:DefinedintheFeeLetter.
“Moody’s”: Moody’s Investors Service, Inc. or, if Moody’s Investors Service, Inc. is no longer issuing ratings, another nationally recognized rating agency reasonably acceptable to Buyer.
“Mortgage”: Each mortgage, deed of trust, assignment of rents, security agreement and fixture filing, or other instruments creating and evidencing a Lien on real property and other property and rights incidental thereto.
“Mortgage Asset File”: Defined in the Custodial Agreement. “MortgageAssetFileChecklist”:DefinedintheCustodialAgreement.
“Mortgage Loan Documents”: With respect to any Purchased Asset, those documents executed in connection with, evidencing or governing such Purchased Asset and the related UnderlyingMortgagedPropertyandwhichareorarerequiredtobedeliveredtoCustodianunder the Custodial Agreement (including, without limitation, the related Mortgage Note or Participation Certificate and any co-lender agreements, Participation Agreements and/or intercreditor agreements).For the avoidance of doubt, only an Interest Rate Protection Agreement or other Derivatives Contract entered into by an Underlying Obligor shall be considered a Mortgage Loan Document.
“Mortgage Note”: The original executed promissory note or other evidence of the indebtedness of a Mortgagor with respect to a commercial mortgage loan.
“Mortgaged Property”: The real property (including all improvements, buildings, fixtures, building equipment and personal property thereon and all additions, alterations and replacements made at any time with respect to the foregoing) and all other collateral securing repayment of the debt evidenced by a Mortgage Note.
“Mortgagee”:Thelender(s)underaMortgageNote.
“Mortgagor”:TheobligoronaMortgageNote,includinganyPersonwhohasassumedor guaranteed the obligations of the obligor thereunder or under the Mortgage Loan Documents.
“Multiemployer Plan”: A Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Non-Material Action”: Any one of the following with regard to the Mortgage Loan Documents:(a)modificationsininterestratewhichoccurinaccordancewiththeMortgageLoan Documents, including, without limitation, changes in SOFR and accrual of interest at a default rate of interest; (b) automatic extensions of a loan maturitydate in accordance with the terms of the related Mortgage Loan Documents; (c) releases of collateral to an Underlying Obligor required to be given in accordance with the terms of the Mortgage Loan Documents; (d) future advances of undisbursed loan proceeds contemplated by the Mortgage Loan Documents or protective advances to paytaxes, insurancepremiums, and removeliens; (e) enteringinto leases ormodificationsthereof;(f)actionsSellerisobligated(withoutanyrightofconsentorapproval) to take or permit to occur under the terms of the Mortgage Loan Documents; (g) waiver of late fees and late charges; and (h) the following modifications, waivers, consents, approvals and other actions with respect to the Purchased Assets:
(i) givingnoticesofdefaulttoanUnderlyingObligor;
(ii) executing customary subordination, non-disturbance and attornment agreements;
(iii) exercising lender discretion in determining whether conditions precedent aresatisfied(otherthanaconditionthat,byitself,requireslender’sconsentbutexcluding determinations by lender of other conditions where the lender has some inherent discretion in determining whether the condition is satisfied), in connection with the exercise of extension options or otherwise;
(iv) makingdecisionswithrespecttothedisbursementsofimpounds,reserves and other escrows held in accordance with the terms of the related Mortgage Loan Documents;
(v) approving the selection of property managers or the terms of property management agreements;
(vi) calculatingandmakingdecisionswithrespecttodebtservicecoverage ratios, debt yield tests and similar financial or operational benchmarks; and
(vii) approvingoperatingorcapitalbudgets.
“Non-Recourse Indebtedness”: With respect to anyPerson and anydate, Indebtednessof such Person as of such date for borrowed money in respect of which recourse for payment (except for customaryexceptions for fraud, misapplicationof funds, environmentalindemnities, Insolvency Events, non-approved transfers or other events) is contractually limited to specific assets of such Person encumbered by a Lien securing such Indebtedness.
“Non–U.S. Person”: Any Person that is not a “United States person” as defined in Section 7701(a)(30) of the Code.
“Notice of Transfer/Pledge”:With respect to each Asset or Purchased Asset that is subject to a co-lender agreement, participation agreement, intercreditor agreement or other similar agreement among creditors, a notice in the form attached hereto as Exhibit M(which shallberevisedasrequestedbyBuyerinordertosatisfythenoticerequirementsandgrantBuyer therights of a“pledgee”(orsimilardefinedterm)undersuchagreement),ineachcasesignedby Seller and the applicable transferors of such Purchased Asset and acknowledged by all required notice parties thereto.
“Off-Balance Sheet Obligations”: With respect to anyPerson and anydate, to the extent notincludedasaliabilityonthebalancesheetofsuchPerson,andtotheextentnotincludedasa liability on the consolidated balance sheet of such Person with respect to its Consolidated Subsidiaries in accordance with GAAP, all of the following with respect to such Person as of such date: (a) monetary obligations under any financing lease or so-called “synthetic,” tax retention or off-balance sheet lease transaction that, upon the application of any Insolvency Laws, would be characterized as Indebtedness; (b) monetary obligations under any sale and leaseback transaction that does not create a liability on the balance sheet of such Person; or (c) any other monetary obligation arising with respect to any other transaction that (i) is characterized as Indebtedness for tax purposes but not in accordance with GAAP or (ii) is the functionalequivalent ofortakes theplaceofborrowingbutthatdoes notconstitutealiabilityon the balance sheet of such Person (for purposes of this clause (c), any transaction structured to provide tax deductibility as interest expense of any dividend, coupon or other periodic payment will be deemed to be the functional equivalent of a borrowing).
“Office of Foreign Assets Control”: The U.S. Department of the Treasury’s Office of Foreign Assets Control.
“OtherConnectionTaxes”:WithrespecttoBuyer,Taxesimposedasaresultofapresent or former connection between Buyer and the jurisdiction imposing such Taxes (other than a connection arising from Buyer 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 Repurchase Document, or sold or assigned an interest in any Transaction or Repurchase Document).
“Other Taxes”: Any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under any Repurchase Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Repurchase Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment or grant of participation.
“OwnershipInterest”:AsdefinedintheVolckerRule. “Participant”: Defined in Section 18.08(b). “Participant Register”: Defined in Section 18.08(g).
“Participation Agreement”: With respect to any Participation Interest, any executed participation agreement, intercreditor agreement, co-lender agreement, note splitter agreement, note holder agreement, servicing agreement, administrative agreement or any other agreement that is similar to any of the foregoing agreements under which the Participation Interest is created, evidenced, issued, serviced, administered and/or guaranteed.
“Participation Certificate”: With respect to any Participation Interest, an executed certificate, note, instrument or other document representing the interest, participation interest or sub-participation interest granted under a Participation Agreement.
“Participation Interest”:A participation interest in a performing Whole Loan that meets each of the following criteria at all times: (i) such participation interest is evidenced by a Participation Certificate, (ii) such participation interest represents a participation interest in part of the underlying Whole Loan and its proceeds, (iii) such participation interest represents a
pass-through of a portion of the payments made on the underlying Whole Loan which lasts for the same length of time as such Whole Loan, (iv) [reserved] and (v) the related Participation Agreement permits the holder of such participation Interest to pledge and/or sell such participation interest to a qualified institutional lender (or similar term as defined in such Participation Agreement).
“Party”:DefinedinthePreamble.
“Patriot Act”: The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, modified or replaced from time to time.
“PatriotActCertificate”:AcertificateintheformofExhibitEattachedhereto.
“PBGC”: The Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA or any successor thereto.
“Permitted Liens”: Any of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding has been commenced: (a) Liens for state, municipal, local or other local taxesnot yet due andpayableor which arebeing contested in good faith and byappropriateproceedingsdiligentlyconducted,ifadequatereserveswithrespecttheretoare
maintained on the books of the applicable Person in accordance with GAAP, (b) Liens imposed byRequirements of Law, such as materialmen’s, mechanics’, carriers’, workmen’s, repairmen’s and similar Liens, arising in the ordinary course of business securing obligations that are not overdue for more than thirty (30) days, (c) Liens on cash collateral which are required to be granted by Seller in connection with any Interest Rate Protection Agreement which Seller is required to enter into in accordance with Section 8.09, and (d) Liens granted pursuant to or by the Repurchase Documents.
“Person”: An individual, corporation, limited liability company, business trust, partnership, trust, unincorporated organization, joint stock company, sole proprietorship, joint venture, Governmental Authority or any other form of entity.
“Plan”: An employee pension benefit plan as defined in Section 3(2) of ERISA that is subject to Section 412 of the Code or Section 303 of ERISA in respect of which anySeller, any other Repurchase Party or any Commonly Controlled Entity sponsors, contributes to or is obligated to contribute to, or if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be, an “employer” as defined in Section 3(5) of ERISA.
“Pledge Agreement”: Individually and collectively, as the context may require: (a) the Pledge Agreement, dated as of the Closing Date, executed byPledgor in favor of Buyer and (b) any other pledge agreement entered into by a pledgor with respect to any Additional Sellers, as each such agreement is amended, modified, restated, replaced, waived, substituted, supplemented, joined or extended from time to time.
“PledgedCollateral”:DefinedinthePledgeAgreement.
“Pledgor”: Intermediate EntityCLR RE Lending Sub WF Holdco, LLC, a Delawarelimited liability company, and any other entity entering into a Pledge Agreement to pledge the
Equity Interests of any Additional Seller to Buyer, each together with its successors and permitted assigns.
“Power of Attorney”: A power of attorney in the form of Exhibit D-1attached hereto with respect to Seller or in the form of Exhibit D-2attached hereto with respect to Pledgor.
“PPV”:WithrespecttoanyAssetorPurchasedAsset,theratioexpressedasapercentage of (a) theoutstandingPurchasePrice for such Asset orPurchased Asset, and (b) thevalue of the related Underlying Mortgaged Property, as such value is determined by Buyer in its discretion and as such value maybe reduced at anytime byBuyer in its discretion.
“Preferred Equity”: A performing current pay preferred equity position (with a put or synthetic maturity date structure replicating a debt instrument) evidenced by a stock share certificate orothersimilarownershipcertificaterepresentingtheentireequityownershipinterest in entities that own income producing commercial real estate.
“PriceDifferential”:ForanyPricingPeriodorportionthereofand(a)foranyTransaction outstanding, the sum of the products, for each dayduringsuch PricingPeriod or portion thereof, of (i) 1/360th of the Pricing Rate in effect for each Purchased Asset subject to such Transaction
during such Pricing Period, times (ii) the Purchase Price for such Purchased Asset as of such day, and (b) for eachPricingPeriod orportionthereof and all Transactionsoutstanding,thesum of the amounts calculated in accordance with the preceding clause (a)for all Transactions.
“PricingMargin”:DefinedintheFeeLetter.
“Pricing Period”:For any Purchased Asset, (a)in the case of the first Remittance Date for such Purchased Asset, the period from the Purchase Date for such Purchased Asset to but excluding such Remittance Date, and (b)in the case of any subsequent Remittance Date, the one-month period commencing on and including the prior Remittance Date and ending on but excluding such Remittance Date; provided, that no Pricing Period for a Purchased Asset shall end after the Repurchase Date for such Purchased Asset to the extent such Purchased Asset is actually repurchased on such Repurchase Date.
“Pricing Rate”:For any Pricing Period and any Transaction, Term SOFR for such PricingPeriodplustheapplicablePricingMarginforsuchdate;provided,thatwhileanEventof Default is continuing, the Pricing Rate shall be the Default Rate.
“Pricing Rate Determination Date”:(a)In the case of the first Pricing Period for any PurchasedAsset, therelatedPurchaseDateforsuchPurchasedAsset,and(b)inthecaseofeach subsequent Pricing Period, the date that is two (2) U.S. Government Securities Business Days prior to the Remittance Date on which such Pricing Period begins or on any other date as determined byBuyer and communicated to Seller.The failure to communicate shall not impair Buyer’s decision to reset the Pricing Rate on any date.
“PrincipalPayments”:ForanyAsset,allpaymentsandprepaymentsofprincipalreceived and applied to the outstanding principal balance of such Asset, including insurance and condemnation proceeds and recoveries from liquidation or foreclosure.
“ProhibitedTransferee”:AnyPersonssetforthonAnnex4attachedhereto.
“Purchase Agreement”: Any purchase agreement or sale and contribution agreement between Seller and any Transferor pursuant to which Seller purchased or acquired an Asset which is subsequently sold to Buyer hereunder.
“Purchase Date”: For each Purchased Asset, the date on which such Purchased Asset is transferred by Seller to Buyer, the date on which Buyer advances additional Purchase Price to Seller in accordance with this Agreement and the date on which the Purchase Price for a Purchased Asset is increased as a result of a Reallocation.
“Purchase Price”: For each Purchased Asset, (a) as of the Purchase Date for such Purchased Asset, as specified in the related Confirmation (which shall not, for the avoidance of doubt, exceed the Asset Value of such Purchased Asset on such Purchase Date), and, (b) as of any other date, the amount described in the preceding clause (a), (i) reduced by any amount of Margin Deficit transferred by Seller to Buyer pursuant to Section 4.01and applied to the Purchase Price of such Purchased Asset, (ii) reduced by any Principal Payments remitted to the WaterfallAccountandappliedtothePurchasePriceofsuchPurchasedAssetbyBuyer,(iii)
without duplication of clause (ii), reduced by(x) anypaymentsmadebySeller, (y) as a result of a Reallocation pursuant to Section 4.01(a) under this Agreement and (z) by any payments otherwise applied by Buyer in reduction of the outstanding Purchase Price for such Purchased Asset, and (iv) increased by any additional amounts (if any) advanced or deemed advanced to Seller by Buyer under this Agreement or applied to increase the Purchase Price of such Purchased Asset as a result of aReallocationpursuant to Section4.01(a), ineachcase,beforeor as of such determination date with respect to such Purchased Asset.
“Purchased Assets”: (a) For each Transaction, each Asset sold bySeller to Buyer in such Transaction, and (b) for the Transactions in general, all Assets sold by Seller to Buyer, in each case including, to the extent relating to such Asset or Assets, all of Seller’s right, title andinterest in and to (i) Mortgage Loan Documents, (ii) Servicing Rights, (iii) Servicing Files, (iv) mortgage guaranties and insurance (issued by Governmental Authorities or otherwise) and claims, payments and proceeds thereunder, (v) insurance policies, certificates of insurance and claims, payments and proceeds thereunder, (vi) the principal balance of such Assets, not just the Purchase Price, (vii) amounts, property and instruments from time to time on deposit in the Waterfall Account (including, but not limited to all Income, payments and other amounts on deposit therein) and the Waterfall Account itself, (viii) collection, escrow, reserve, collateral or lock–box accounts and all amounts, property and instruments from time to time on deposit therein,totheextentofSeller’sortheholder’sinteresttherein,(ix)Income,(x)securityinterests of Seller in Interest Rate Protection Agreements entered into byUnderlying Obligors, (xi) rights of Seller under any letter of credit, guarantee, warranty, indemnity or other credit support or enhancement, (xii) Seller’s rights and any security interest granted under any Purchase Agreement, (xiii) supporting obligations of any kind, (xiv) all of the rights (but none of the obligations) of Seller under any Interest Rate Protection Agreement entered into in accordance with Section 8.09,and (xv) all amounts,propertyandall writings thatareinstruments ondeposit the General Servicing Account, the Servicer Account and Escrow Account related to the Purchased Assets and such accounts themselves/itself to the extent related to the Purchased Assets; provided, that (A) Purchased Assets shall not include any obligations of Seller or any Retained Interests, and (B) for purposes of the grant of security interest by Seller to Buyer and the other provisions of Article 11, Purchased Assets shall include all of the following: general intangibles,accounts,chattelpaper,depositaccounts,securitiesaccounts,instruments,securities, financial assets, uncertificated securities, securities entitlements and investment property (as
suchtermsaredefinedintheUCC)andreplacements,substitutions,conversions,distributionsor proceeds relating to or constituting any of the items described in the preceding clauses (i)through (xv).
“Qualified Servicer”: A Servicer which (a) is Wells or Trimont or (b)(i) is a third-party national banking association unaffiliated with anyRepurchase Party, (ii) is regularlyengaged in the business of making or owning commercial real estate loans (or interests therein) similar to the Assets or owning or operating commercial real estateproperties, (iii)is regularlyengaged in the business of servicing commercial real estate loans and (iv) is approved by Buyer in its discretion.
“RatingAgency”:EachofFitch,Inc.,Moody’s,S&Pandanyothernationallyrecognized statistical rating agency.
“Reallocation”:DefinedinSection4.01(a). “Register”: Defined in Section 18.08(f).
“RegulatoryChange”: With respect to anyIndemnified Person, (a) the introduction ofor any change (including any change by way of imposition or increase of reserve requirements) in orintheinterpretationbyanyGovernmentalAuthorityofanylaworregulationaftertheClosing Date or (b) the compliance by such Indemnified Person with any directive or request from any central bank or other Governmental Authority(whether or not having the force of law) imposed after the Closing Date. For the avoidance of doubt, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, guidelines and directives promulgated thereunder, (ii) Articles 404 to 410 of theCapitalRequirements Regulation, assupplemented by Commission DelegatedRegulation (EU) No625/2014,including anyfurthertechnicalstandards and guidance published in relation thereto as may be effective from time to time, and (iii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, Basel Committee on Banking Supervision (or any successor or similar authority) or United States or foreign Official Bodies, in each case pursuant to Basel IIor Basel III, each aredeemed to have been introduced or imposed after the Closing Date, regardless of the date enacted, adopted, issued, promulgated or implemented.
“Release”: Any generation, treatment, use, storage, transportation, manufacture, refinement, handling, production, removal, remediation, disposal, presence or migration of MaterialsofEnvironmentalConcernon,about,underorwithinalloranyportionofanyproperty or Underlying Mortgaged Property.
“ReleaseAmount”:DefinedintheFeeLetter.
“RelevantGovernmentalBody”:TheBoardofGovernorsoftheFederalReserveSystem 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.
“RemedialWork”:Anyinvestigation,inspection,sitemonitoring,containment,clean–up, removal, response, corrective action, mitigation, restoration or other remedial work of any kind or nature because of, or in connection with, the current or future presence, suspected presence, Release or threatened Release in or about the air, soil, ground water, surface water or soil vapor at, on, about, under or within all or any portion of any property or Underlying Mortgaged
Property of any Materials of Environmental Concern, including any action required in order to comply with any applicable Environmental Laws or directives of any Governmental Authority with regard to any Environmental Laws.
“REMIC”:Arealestatemortgageinvestmentconduit.
“RemittanceDate”:The15thdayofeachmonth(orifsuchdayisnotaBusinessDay,the next following Business Day), or such other dayas is mutuallyagreed to bySeller and Buyer.
“Reportable Event”: Any event set forth in Section 4043(c) of ERISA, other than an event as to which the notice period is waived under PBGC Reg. §4043.
“Representation Breach”: Any representation, warranty, certification, statement or affirmationmadeordeemedmadebySeller,PledgororGuarantorinanyRepurchaseDocument (including in Schedule 1) or in any certificate, notice, report or other document delivered pursuanttoanyRepurchaseDocumentprovestobeincorrect,falseormisleadinginanymaterial respect when made or deemed made, without regard to any knowledge or lack of knowledge thereofbysuchPersonoranyknowledgeorKnowledgequalificationinorwithrespecttoanyof the foregoing, other than an Approved Representation Exception.
“Representation Exceptions”: With respect to each Purchased Asset, a written list prepared by Seller specifying, in reasonable detail, the representations and warranties (or portions thereof) set forth in this Agreement (including in Schedule 1) which are not satisfied with respect to an Asset.
“RepurchaseDate”:ForeachPurchasedAsset,theearliestof(a)theFacilityTermination Date, (b) any Early Repurchase Date therefor, and (c) the Business Day on which Seller is to repurchase such Purchased Asset as specified by Seller and agreed to by Buyer in the related Confirmation.
“Repurchase Documents”: Collectively, this Agreement, the Custodial Agreement, the Guaranty, the Fee Letter, the Controlled Account Agreements, the Pledge Agreement, each Residual Pledge Agreement, the Purchase Agreement, the Servicer Acknowledgment Agreement, each General Assignment, the Powers of Attorney, all Irrevocable Redirection Notices, all Account Control Agreements, all Additional Seller Joinder Agreements, all Confirmations, all exhibits, annexes and schedules to the Repurchase Documents, all UCC financing statements, amendments and continuation statements filed pursuant to any other Repurchase Document, and all additional documents, certificates, letter agreements, agreements or instruments, the execution of which is required, necessary or incidental to or desirable for performingorcarryingoutanyotherRepurchaseDocument.Fortheavoidanceofdoubt,Interest RateProtection Agreements enteredinto in connection with Section8.09shallnotbedeemedto be “Repurchase Documents” for any purpose hereunder.
“Repurchase Obligations”: All obligations of Seller to pay the Repurchase Price on the Repurchase Date and all other obligations and liabilities of Seller, Guarantor and Pledgor to Buyer arising under or in connection with the Repurchase Documents, whether now existing or hereafter arising, and all interest, Price Differential and fees that accrue in connection with the Repurchase Documents after the commencement byor against Seller, Guarantor, Pledgor or any AffiliateoftheforegoingofanyInsolvencyProceedingnamingsuchPersonasthedebtorinsuch proceeding, regardless of whether such interest, PriceDifferential and fees areallowed claims in suchproceeding(ineachcase,whetherdueoraccrued,butinanyeventexcludingany
unmatured,contingentandunaccruedobligationsor liabilitiesthatsurvive terminationof the Repurchase Agreement).
“RepurchaseParty”:EachofSeller,GuarantorandPledgor.
“RepurchasePrice”:ForeachPurchasedAssetasofanydate,anamountequaltothesum of (a) the outstanding Purchase Price as of such date, (b) the accrued and unpaid Price DifferentialforsuchPurchasedAssetasofsuchdate,(c)allotheramountsdueandpayableasof such date by Seller, Guarantor or Pledgor to Buyer under this Agreement or any Repurchase Document, in each case, for or allocable to such Purchased Asset, (d) all amounts payable by Seller, Guarantor or Pledgor in connection with the termination of any Interest Rate Protection Agreement with Wells (or any Affiliate of Wells) as Hedge Counterparty relating to such Purchased Asset, (e) any applicable Exit Fee for such Purchased Asset and (f) any applicable Release Amount owed for such Purchased Asset (without duplication of amounts already addressed).
“RequiredPortfolioDebtYieldPercentage”:DefinedintheFeeLetter.
“Requirements of Law”: With respect to anyPerson or propertyor assets ofsuchPerson and as of any date, all of the following applicable thereto as of such date: all Governing Documents and all laws as in effect on such date (whether or not in effect on theClosing Date), statutes, rules, regulations, treaties, codes, ordinances, permits, certificates, orders and licenses of and interpretations by any Governmental Authority (including Environmental Laws, ERISA, Anti-Corruption Laws, Anti-Money Laundering Laws, Sanctions, regulations of the Board of Governors of the Federal Reserve System, and laws, rules and regulations relating to usury, licensing, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debtcollectionpracticesandprivacy),judgments,decrees,injunctions,writs,awardsorordersof any court, arbitrator or other Governmental Authority.
“Residual Pledge Agreement”: Each Affiliated Transferor Pledge and Security Agreement from the applicable Residual Pledgor in favor of Buyer, in form and substance acceptable to Buyer, as the same may be amended, modified and/or restated from time to time, and/or any replacement agreement.
“ResidualPledgor”:Eachof(a)CLRRELendingSub,LLC,aDelawarelimitedliability company, and (b) anyadditional residual pledgor enteringinto aResidualPledge Agreement,or a joinder to an existing Residual Pledge Agreement, to pledge the related “Pledged Collateral” (as defined in the applicable Residual Pledge Agreement) of such additional residual pledgor, each of the above with their successors and permitted assigns.
“Residual Pledgor Financing Statement”: With respect to any Residual Pledgor, a UCC financing statement in appropriate form for filing in the jurisdiction of formation of such Residual Pledgor and naming such Residual Pledgor as “Debtor” and Buyer as “Secured Party” and describing as “Collateral” all of the items set forth in the definition of “Pledged Collateral” in the applicable Residual Pledge Agreement.
“Responsible Officer”: With respect to any Person, the chief executive officer, the chief financial officer, the chief accounting officer, the presidents/co-presidents, the general counsel, the treasurer or the chief operating officer of such Person or such other officer designated as an authorized signatory in such Person’s Governing Documents.
“Retained Interest”: (a) With respect to any Purchased Asset, (i) all duties, obligations and liabilities of Seller thereunder, including payment and indemnity obligations, (ii) all obligations of agents, trustees, servicers, administrators or other Persons under the documentation evidencing such Purchased Asset, and (iii) if any portion of the Indebtedness related to such Purchased Asset is owned by another lender or is being retained by Seller, the interests, rights and obligations under such documentation to the extent they relate to such portion, and (b) with respect to any Purchased Asset with an unfunded commitment on the part of Seller, all obligations to provide additional funding, contributions, payments or credits.
“S&P”:Standard&Poor’sFinancialServicesLLC,asubsidiaryofS&PGlobalInc.or,if Standard & Poor’s Financial Services LLC is no longer issuing ratings, another nationally recognized rating agency reasonably acceptable to Buyer.
“Sanction” or “Sanctions”: Individually and collectively, any and all economic or financial sanctions, trade embargoes and anti-terrorism laws imposed, administered or enforced from time to time by: (a) the United States of America, includingthose administered bythe U.S. TreasuryDepartment’sOfficeofForeignAssetsControl(OFAC),theU.S.StateDepartment,the
U.S.DepartmentofCommerce,orthroughanyexistingorfutureExecutiveOrder;(b)theUnited Nations Security Council; (c) the European Union; (d) the United Kingdom; or (e) any other governmental authorities with jurisdiction over Seller or Guarantor or anyof their Affiliates.
“Sanctioned Target”: AnyPerson, group, sector, territory, or countrythat is the target of any Sanctions, including without limitation, any legal entity that is deemed to be a target of Sanctions based on the direct or indirect ownership or control of such entity by any other Sanctioned Target(s).
“SecondExtendedFacilityTerminationDate”:DefinedinSection3.07(a).
“Securities Act”: The Securities Act of 1933, as the same maybe amended, modified or replaced from time to time.
“Seller”: Individuallyor collectively, as the context requires, CLR RE LendingSub WF, LLC, a Delaware limited liability company, and each Additional Seller that becomes a “Seller” hereunderbyexecutionofanAdditionalSellerJoinderAgreement.EachSellershallbeaSpecial Purpose Entity and shall be jointly and severally liable with each other Seller under this Agreement and the other Repurchase Documents.
“SeniorInterest”:Either(a)aParticipationInterestinaWholeLoanor(b)an“A”notein an “A/B”, “A-1/A-2” or similar structure in a Whole Loan, in each case that is senior or pari passu in rights to all other participation interests or note interests in such Whole Loan.
“Servicer”:Trimont,asinitialservicerofthePurchasedAssets,oranysuccessorservicer approved by Buyer.
“Servicer Account”: The deposit account (including any subaccounts thereof) as described on Annex 2.Unless Wells is Servicer, such account shall be subject to an Account Control Agreement.This account is referred to as the “Collection Account” in the Trimont Servicing Agreement and the Servicer Acknowledgment Agreement.
“Servicer Acknowledgment Agreement”: The Servicer Acknowledgment Agreement, dated as of the Closing Date, among Buyer, Seller and Servicer, as the same shall be amended, modified, waived, supplemented, extended, replaced or restated from time to time.
“ServicerEventofDefault”:WithrespecttoServicer,any“EventofDefault”(asdefined in the Servicing Agreement) applicable to Servicer.
“Servicing Agreement”: The Trimont Servicing Agreement, or such other replacement servicingagreemententeredintobyBuyer,SellerandanysuccessorServicerapprovedbyBuyer and, so long as no Default or Event of Default has occurred and is continuing, Seller (such consent not to be unreasonablywithheld, conditioned or delayed) for the servicing of Purchased Assets, together with anyServicer Acknowledgment Agreement entered into in connectionwith such Servicing Agreement, as the same shall be amended, modified, waived, supplemented, extended, replaced or restated from time to time. Each Servicing Agreement shall be subject to Buyer’s approval in its discretion.
“Servicing Fees”: So long as Trimont is the Servicer, the fees and expenses payable by Seller to Servicer under the Trimont Servicing Agreement, or the fees and expenses payable by Seller to any other Servicer under a Servicing Agreement, which fees shall be subject to the approval of Buyer in its discretion.
“Servicing File”: With respect to any Purchased Asset, the file retained and maintained bySeller and/or Servicer including the originals or copies of all Mortgage Loan Documents and other documents and agreements relating to such Purchased Asset which are not required to be delivered byoronbehalfofSellertoCustodianundertheCustodialAgreement,includingto the extentapplicableallservicingagreements,files,documents,records,databases,computertapes, insurancepolicies and certificates, appraisals,other closingdocumentation,paymenthistoryand other records relatingto orevidencingtheservicingofsuchPurchasedAsset,whichfileshall be held by Seller and/or Servicer for and on behalf of Buyer.
“Servicing Rights”: All right, title and interest of Seller or anyother Repurchase Partyin and to any and all of the following: (a) rights to service, collect and make all decisions with respect to the Purchased Assets, (b) amounts received bySeller oranyother Person for servicing the Purchased Assets, (c) late fees, penalties or similar payments with respect to the Purchased Assets, (d) agreements and documents creating or evidencing any such rights to service, documents, files and records relating to the servicing of the Purchased Assets, and rights of SelleroranyotherPersonthereunder,(e)escrow,reserveandsimilaramountswithrespecttothe PurchasedAssets,(f)rightstoappoint,designate and retain any other servicers, sub-servicers,
specialservicers,agents,custodians,trusteesandliquidatorswithrespecttothePurchased Assets, and (g) accounts and other rights to payment related to the Purchased Assets.
“SingleEmployerPlan”:AnyPlanthatisnotaMultiemployerPlan.
“SOFR”:A rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator”: The Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“Solvent”:WithrespecttoanyPersonatanytime,havingastateofaffairssuchthatallof thefollowingconditionsaremetatsuchtime:(a)thefairvalueoftheassetsandpropertyofsuch Person is greater than the amount of such Person’s liabilities (including contingent liabilities) of such Person, as such value is established and liabilities evaluated for purposes of Section101(32) of the Bankruptcy Code, (b) the present fair salable value of the assets and property of such Person in an orderly liquidation of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (d) such Person is not engaged in a business or atransaction, and is not about toengage in a business or a transaction, for which such Person’s assets and property would constitute unreasonably small capital. The amount of any contingent liability at any time shall be computed as the amount that in light of all of thefacts and circumstances existingat such time, represents theamount that can reasonably be expected to become an actual or matured liability.
“SpecialPurpose Entity”: A corporation,limitedpartnershiporlimitedliabilitycompany that, since the date of its formation (unless otherwise indicated in this Agreement) and at all times on and after the date hereof, has complied with and shall at all times comply with the provisions of Article 9.
“SpecifiedChangeofControlEvent”:DefinedintheFeeLetter.“Structuring Fee”: Defined in the Fee Letter.
“Sub-Servicer”: Anysub-servicer appointed byServicer in accordance with the terms of theServicingAgreement,approvedbyBuyerandperformingsub-servicingdutiesundera Sub-ServicingAgreement,together with anyor additionalor replacementsub-servicer approved by Buyer.
“Sub-Servicing Agreement”: Anysub-servicing agreement or replacement sub-servicing agreement entered into by Servicer and a Sub-Servicer for the performance of sub-servicing duties in accordance with and subject to the terms of the Servicing Agreement, in each case approved by Buyer, as each of the foregoing is amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time.
“Sub-ServicingFees”:ThefeesandexpensespayablebySellerorServicerto Sub-Servicer under a Sub-Servicing Agreement.
“Subsidiary”: With respect to any Person, any corporation, partnership, limited liability companyorotherentity(heretofore,noworhereafterestablished)ofwhichatleast amajorityof the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions of such corporation, partnership, limited liability company or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more SubsidiariesofsuchPerson,andshallincludeallPersonstheaccountsofwhichareconsolidated with those of such Person pursuant to GAAP.
“Supplemental Conveyance”: A supplemental conveyance executed by Seller and the Transferor evidencing Seller’s purchase of an Asset from Transferor under and pursuant to the terms of a Purchase Agreement.
“Supplemental Escrow Letter”: With respect to a Table Funded Purchased Asset, an instructionletterdeliveredtotheapplicabletitleinsurancecompanyorotherapprovedsettlement agent which is in form and substance acceptable to Buyer in its reasonable discretion.
“Table Funded Purchased Asset”:An Eligible Asset which is sold to Buyer simultaneously with the origination or acquisition thereof, which origination or acquisition, pursuant to Seller’s request and subject to Buyer’s approval in its sole discretion, is financed with the Purchase Price and paid directlyto a title company, settlement agent or other Person in trust for the current holder of the Asset for disbursement to the parties entitled thereto in connection with such origination or acquisition.A Purchased Asset shall cease to be a Table Funded Purchased Asset after Custodian has delivered a Trust Receipt (along with a completed Mortgage Asset File Checklist attached thereto) to Buyer certifying its receipt of the Mortgage Asset File therefor.
“Tangible Net Worth”: With respect to any Person and any date, the tangible net worth of such Person and its Consolidated Subsidiaries determined on a consolidated basis for such period as determined in accordance with GAAP.
“Taxes”: All present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including anyinterest, additions to tax or penalties applicable thereto.
“Term SOFR”:For any calculation with respect to a Transaction, the Term SOFR Reference Rate for a tenor of one month on the applicable Pricing Rate Determination Date, as suchrateispublished bytheTermSOFRAdministrator;provided,however,that(i)ifasof5:00
p.m. (New York City time) on anyPricing Rate Determination Date the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a BenchmarkReplacement Date with respect tothe TermSOFRReferenceRatehasnotoccurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the TermSOFRAdministratoronthefirstprecedingU.S.GovernmentSecuritiesBusinessDayfor
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 Determination Date and (ii) if the calculation of Term SOFR as determined as provided above (including pursuant to clause (i) of this proviso) results in a Term SOFR rate of less than the Floor, Term SOFR shall be deemed to be the Floor for all purposes of this Agreement and the other Repurchase Documents.
“Term SOFR Administrator”:CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Buyer in its reasonable discretion).
“TermSOFRReferenceRate”:Theforward-lookingtermratebasedonSOFR.
“Test Period”: The time period from the first day of each calendar quarter, through and including the last day of such calendar quarter.
“ThirdExtendedFacilityTerminationDate”:DefinedinSection3.07(a). “Threshold Amount”: Defined in the Fee Letter.
“Trading with the EnemyAct”: The Trading with the EnemyAct of the United States of America (50 U.S.C. App. §§ 1 et seq.), as amended, modified or replaced from time to time.
“Transaction”: With respect to any Asset, the sale and transfer of such Asset from Seller to Buyer pursuant to the Repurchase Documents against the transfer of funds from Buyer to Seller representing the Purchase Price or any additional advance of or increase in the Purchase PriceforsuchAsset(includingthefundingofadvancesandincreasesinthePurchasePricemade pursuant to Article 3and Reallocations under Section 4.01).
“Transferor”:ThesellerofanAssetunderaPurchaseAgreement.
“Trimont”:TrimontLLC,anditspermittedsuccessorsandassignsunderthetermsofthe Repurchase Documents.
“Trimont Servicing Agreement”:The Servicing Agreement, dated as of April 13, 2020, by and among CIM Lending Services, LLC and Trimont, as joined by Seller pursuant to that certain Joinder Agreement #13, dated of the Closing Date (as amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time).
“TrustReceipt”:DefinedintheCustodialAgreement.
“Type”:WithrespecttoaMortgagedProperty,suchMortgagedProperty’sclassification as one of the following stabilized or light to moderately transitional: multifamily, retail, office, industrial, hospitality, self-storage, data center, parking garage and/or such other classifications as Buyer may approve in its discretion.
“UCC”: The UniformCommercialCode as ineffectintheStateofNewYork; provided, that, if, by reason of Requirements of Law, the perfection or priority of the security interest in anyPurchased Asset is governed bythe Uniform Commercial Code as in effect in a jurisdiction other than New York, “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority.
“Unadjusted Benchmark Replacement”: The applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Underlying Mortgaged Property”: With respect to a Whole Loan, the Mortgaged Property securing such Whole Loan.
“Underlying Obligor”: Individually and collectively, as the context may require, the Mortgagor and other obligor or obligors under an Asset, including (a) any Person that has not signed the related Mortgage Note but owns an interest in the related Underlying Mortgaged Property, which interest has been encumbered to secure such Asset, and (b) any other Person who has assumed or guaranteed the obligations of such Mortgagor under the Mortgage Loan Documents relating to an Asset.
“Underwriting Package”: With respect to one or more Assets, the Underwriting Package shall include all of the following, in each case (other than clauses (a), (b)and (c)), to the extent applicable and available: (a) the Credit Approval Memo for such Purchased Asset approved (or tobeapproved)bySeller’sinvestmentcommittee;(b)allMortgageLoanDocumentsrequiredto be delivered to Custodian under Section 3.01of the Custodial Agreement, (c) a Current
Appraisal, (d) the current occupancyreport, tenant stack and rent roll or, with respect to a Hotel Asset, the STR report, (e) at least two (2) years of property-level financial statements, (f) the current financial statement of the Underlying Obligor, (g) any and all agreements, documents, reports, or other information concerning the Purchased Assets (including, without limitation, all of the related Mortgage Loan Documents) received or obtained in connection with the origination of the Purchased Assets, (h) third-party reports and agreed-upon procedures, letters and reports (whether drafts or final forms), site inspection reports, market studies and other due diligence materials prepared by or on behalf of or delivered to Seller, (i) aging of accounts receivable and accounts payable, (j) any other material documents or reports concerning the Purchased Assets prepared or executed by Seller or Guarantor, (k) all documents, instruments and agreements received in respect of the closing of the acquisition transaction under the PurchaseAgreement,and(l)suchfurtherdocumentsorinformationasBuyermayrequestandas may be customary in connection with similar transactions.
“Unrestricted Cash”: As of any date of determination, all cash held by Seller and/or Guarantor at such time in excess of all amounts (a) required to be held by Seller and/or Guarantor pursuant to this Agreement or the Guaranty, (b) necessaryto be held bySeller and/or Guarantor in order to satisfythe financial covenants set forth in the Repurchase Documents and
(c) encumberedor allowedtothepaymentofotherobligations,includingfundingsforMortgage Notes, Senior Interests and other related assets.
“U.S. Government Securities Business Day”: Any day except for (i) a Saturday, (ii) a Sundayor (iii) adayon whichtheSecurities IndustryandFinancialMarketsAssociation,orany 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”: Any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S.SpecialResolutionRegime”:Eachof(i)theFederalDepositInsuranceActandthe regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
“U.S.TaxComplianceCertificate”:DefinedinSection12.07(e).
“Volcker Rule”: Section 619 of the Dodd-Frank Wall Street Reform and Consumer ProtectionAct,Pub. LawNo.111-203(2010),whichadded anewSection13(12U.S.C.§1851) to the Bank Holding Company Act of 1956 (12 U.S.C. §1841 et seq.), and the rules and regulations implementing the foregoing, as jointly adopted in final form by the Office of the Comptroller of the Currency: “Proprietary Trading and Certain Interests In and Relationships withCoveredFunds”,12C.F.R.Part44;theBoardofGovernorsoftheFederalReserveSystem: “ProprietaryTrading andCertain Interests In andRelationships withCovered Funds”, 12C.F.R. Part 248 (2014); the Federal Deposit Insurance Corporation: “Proprietary Trading and Certain Interests In and Relationships with Covered Funds”, 12 C.F.R. Part 351 (2014); the Securities andExchangeCommission:“ProprietaryTradingandCertainInterestsInandRelationshipswith Covered Funds’”, 17 C.F.R. Part 255; and the Commodity Futures Trading Commission: “ProprietaryTrading andCertain Interests In andRelationships withCovered Funds”, 17C.F.R. Part 75 (2014), (the foregoing regulations being referred toherein as the“FinalRegulations”)as each of the foregoing may be amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time.
“Waterfall Account”: Thedepositaccount,establishedatWaterfallAccountBank,inthe name of Seller, pledged to Buyer, as described on Annex 2and subject to a Controlled Account Agreement.
“WaterfallAccountBank”:Wells,oranyotherbankapprovedbyBuyer.
“Wells”: Wells Fargo Bank, National Association, together with its successors and permitted assigns.
“WholeLoan”:Aperformingfirstprioritycommercialrealestatefloatingratewholeloan for which the Underlying Mortgaged Property is performing, as determined by Buyer in its discretion.
Section2.02Rules of Interpretation. Headings are for convenience only and do not affect interpretation. The following rules of this Section 2.02apply unless the context requires otherwise.Thesingularincludesthepluralandconversely.Agenderincludesallgenders.Where awordorphraseisdefined,itsothergrammaticalformshaveacorrespondingmeaning.A
reference to an Article, Section, Subsection, Paragraph, Subparagraph, Clause, Annex, Schedule, Appendix, Attachment, Rider or Exhibit is, unless otherwise specified, a reference to an Article, Section,Subsection,Paragraph,SubparagraphorClauseof,orAnnex,Schedule,Appendix, Attachment, Rider or Exhibit to, this Agreement, all of which are hereby incorporated herein by thisreferenceandmadeaparthereof.AreferencetoapartytothisAgreementoranother agreement or document includes the party’s permitted successors, substitutes or assigns. In the eventthereismorethanoneSellerorGuarantor,theactoromissionby,oroccurrencewith respectto,any oneSellerorGuarantor,asthecasemay be,shallbesufficienttoresultinthe triggeringoftheapplicableprovisionoftheRepurchaseDocuments.Areferencetoanagreement or document is to the agreement or document as amended, modified, novated, supplemented or replaced in accordance with the terms thereof, except to the extent prohibited byanyRepurchase Document.Areferencetolegislationortoaprovisionoflegislationincludesamodification, codification, replacement, amendment or re-enactment of it, a legislative provision substitutedforitandarule,regulationorstatutoryinstrumentissuedunderit.Areferencetowriting includes a facsimile or electronic transmission and anymeans of reproducing words in a tangible andpermanentlyvisibleform.Areferencetoconductincludesanomission,statementorundertaking,whetherornotinwriting.ADefaultorEventofDefaultexistsuntilithasbeen curedorwaivedinwritingby Buyer.Thewords“hereof,”“herein,”“hereunder”andsimilar words refer to this Agreement as a whole and not to any particular provision of this Agreement, unless the context clearly requires or the language provides otherwise. The word “including” is notlimitingandmeans“includingwithoutlimitation.”Theword“any”isnotlimitingandmeans “anyandall”unlessthecontextclearlyrequiresorthelanguageprovidesotherwise.Inthe computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding,” and the word “through” means “to and including.” The words “will” and “shall” have the same meaning andeffect.Areferencetodayordayswithoutfurtherqualificationmeanscalendardays.A referencetoanytimemeansNewYorktime.ThisAgreementmayuseseveraldifferent limitations, tests or measurements to regulate the same or similar matters. All such limitations, testsandmeasurementsarecumulativeandshalleachbeperformedinaccordancewiththeir respectiveterms.Unlessthecontextotherwiseclearlyrequires,allaccountingtermsnot expresslydefinedhereinshallbeconstruedinaccordancewithGAAP,andallaccounting determinations,financialcomputationsandfinancialstatementsrequiredhereundershallbe
made, in accordance with GAAP, without duplication of amounts, and on a consolidated basis withallSubsidiaries.AlltermsusedinArticles8and9oftheUCC,andusedbutnotspecifically defined herein, are used herein as defined in such Articles 8 and 9. A reference to “fiscal year” and“fiscalquarter”meansthefiscalperiodsoftheapplicablePersonreferencedtherein.A reference to a document includes an agreement (as so defined) in writing or a certificate, notice, instrument or document, oranyinformation recorded in computer disk form. Whenever a Person isrequiredtoprovideany documenttoBuyerundertheRepurchaseDocuments,therelevant document shall be provided in writing including in the form of a PDF attachment to electronic mailorprintedformunlessBuyerrequestsotherwise.AttherequestofBuyer,thedocument shallbeprovidedinelectronicformatorbothprintedandelectronicformat.TheRepurchase Documents are the result of negotiations between the Parties, have been reviewed by counsel to Buyer andcounseltoSeller, and are the product of both Parties. No rule of construction shallapply to disadvantage one Party on the ground that such Party proposed or was involved in the preparationofanyparticularprovisionoftheRepurchaseDocumentsortheRepurchase
Documents themselves. Except where otherwise expressly stated, Buyer may give or withhold, or give conditionally, approvals and consents, andmayformopinions andmakedeterminations, in its sole and absolute discretion, subject in all cases to the implied covenant of good faith and fair dealing. Reference in any Repurchase Document to Buyer’s discretion shall mean, unless otherwise expressly stated herein or therein, Buyer’s sole and absolute discretion, and the exercise of such discretion shall be final and conclusive, subject in all cases to the implied covenant of good faith and fair dealing. In addition, whenever Buyer has a decision or right of determination, opinion or request, exercises any right given to it to agree, disagree, accept, consent, grant waivers, take action or no action or to approve or disapprove (or any similar language orterms), or anyarrangement orterm is to besatisfactoryoracceptableto orapproved by Buyer (or any similar language or terms), the decision of Buyer with respect thereto unless otherwise expresslystatedherein orthereinshall bein thesoleandabsolutediscretion ofBuyer, and such decision shall be final and conclusive, subject in all cases to the implied covenant of good faith and fair dealing.
Section2.03Rates. Buyer does not warrant or accept any responsibility for, and shall not have any liability with respect to, (i) the continuation of, administration of, submission of, calculation of or any other matter related to any offered rate, the rates in any Benchmark, any component definition thereof or rates referred to in the definition thereof or with respect to any alternative, successor or replacement rate thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including anyBenchmark Replacement), as it mayor may not be adjusted pursuant to Section 12.01, will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidityas, such Benchmark or anyother Benchmark prior to its discontinuance or unavailability, or (ii) the effect, implementation or compositionofanyConformingChangesimplementedinaccordancewithSection12.01.Buyer and its affiliates or other related entities mayengage in transactions that affect the calculation of a Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) or anyrelevant adjustments thereto, in each case, in a manner that maybeadverse to Seller. Buyer may select information sources or services in its reasonable discretion to ascertain any Benchmark, any component definition thereof or rates referred to in the definition thereof,ineachcasepursuanttothetermsofthisAgreement,andshallhavenoliabilitytoSeller or any other person or entity for damages of any kind, including direct or indirect, special, punitive,incidentalorconsequentialdamages,costs,lossesorexpenses(whetherintort,contract
or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
ARTICLE 3.
THE TRANSACTIONS
Section3.01 Procedures.
(a) FromtimetotimeduringtheFundingPeriodonly,butnomorefrequently than three (3) times per calendar week, Seller may request that Buyer enter into a proposed Transaction by sending Buyer a notice (i) describing the Transaction and each
proposed Asset and any related Underlying Mortgaged Property and other security therefor in reasonable detail, (ii) transmitting a complete Underwriting Package for each proposed Asset, and (iii) specifying which (if any) of the representations and warranties of Seller set forth in this Agreement (including in Schedule 1) Seller will be unable to makewithrespecttosuchAsset.SellershallpromptlydelivertoBuyeranysupplemental materials requested at any time by Buyer. Buyer shall conduct such review of the UnderwritingPackage and each such Asset as Buyerdeterminesappropriate.Buyershall determinewhetherornotitiswillingtopurchaseanyoralloftheproposedAssets,andif so, on what terms and conditions. It is expressly agreed and acknowledged that Buyer is entering into the Transactions on thebasis of all such representations and warranties and on the completeness and accuracy of the information contained in the applicable Underwriting Package, and any incompleteness or inaccuracies in the related Underwriting Package will only be acceptable to Buyer if disclosed in writing to Buyer bySellerinadvanceoftherelatedPurchaseDate,andthenonlyifBuyeroptstopurchase the related Asset from Seller notwithstanding such incompleteness and inaccuracies.
(b) Buyer shall give Seller notice of the date when Buyer has received a completeUnderwritingPackageandsupplementalmaterialsasBuyermayrequest.Buyer shall endeavor to communicate to Seller a preliminary non-binding determination of whetherornot it iswillingtopurchaseanyorallofsuchAssets,andifso,onwhatterms and conditions, within five (5) Business Days (or, if more than one Asset is proposed, and not yet approved, within ten (10) Business Days) of such date. Buyer shall endeavor tocommunicatetoSellerafinalnon-bindingdeterminationofwhetherornotitiswilling topurchaseanyorallof suchAssetsandif so,on what terms and conditions, withinfive
(5) Business Days (or, if more than one Asset is proposed, and not yet approved, within ten (10) Business Days) of Buyer’s receipt of all supplemental due diligence documents andinformationasBuyermayrequest.IfBuyerhasnotcommunicateditsfinalnon-binding indication to Seller by such date, Buyer shall automatically and without further action be deemed to have determined not to purchase anysuch Asset.
(c) If Buyer, in its discretion, communicates to Seller a final non-binding determination that it is willing to purchase any or all of such Assets, Seller shall deliver to Buyer a preliminary Confirmation for such Transaction, describing each such Asset and its proposed Purchase Date, Market Value, Applicable Percentage, Purchase Price and such other terms and conditions as Buyer may require. If Buyer requires changes to the preliminary Confirmation, Seller shall make such changes as are reasonably acceptable to Seller, and if acceptable to Seller, execute thepreliminaryConfirmation. If Buyer,initsdiscretion,determinestoenterintotheTransactiononthetermsdescribedin the preliminary Confirmation, Buyer shall notify Seller that it intends to purchase such
Asset onthePurchaseDate.Buyershallexecuteandreturn theConfirmationtoSelleron the Purchase Date, which shall thereupon become effective as the Confirmation of the Transaction. Buyer’s approval of the purchase of an Asset on such terms and conditions as Buyer mayrequireshall be evidenced onlybyits execution and deliveryof therelated Confirmation. For the avoidance of doubt, Buyer shall not (i) be bound by any preliminary or final non-binding determination referred to above, or (ii) be obligated to purchaseanAssetnotwithstandingaConfirmationexecutedbythePartiesunlessand
untilallapplicableconditionsprecedentinArticle6havebeensatisfiedorwaivedby Buyer.
(d) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction covered thereby, and shall be construed to be cumulative to the extent possible. If terms in a Confirmation are inconsistent with terms inthisAgreementwithrespecttoaparticularTransaction,theConfirmationshallprevail. Whenever the Applicable Percentage, Excess Funding Capacity, Reallocation or any other term of a Transaction (other than the Pricing Rate and Market Value) with respect to an Asset is revised or adjusted in accordance with this Agreement, an amended and restated Confirmation reflecting such revision or adjustment and that is otherwise acceptable to the Parties shall be prepared bySeller and executed bythe Parties.
(e) The fact that Buyer has conducted or has failed to conduct any partial or completeexaminationoranyotherduediligencereviewofanyAssetorPurchasedAsset shall in no way affect any rights Buyer may have under the Repurchase Documents or otherwise with respect to any representations or warranties or other rights or remedies thereunder or otherwise, including the right to determine at any time that such Asset or Purchased Asset is not an Eligible Asset.
(f) No Transaction shall be entered into if (i) any unsatisfied Margin Call, Default or Event of Default exists or would exist as a result of such Transaction, (ii) the Repurchase Date for the Purchased Assets subject to such Transaction would be later than the Facility Termination Date, or (iii) after giving effect to such Transaction, the aggregate Purchase Price of all Purchased Assets subject to Transactions then outstanding would exceed the Maximum Amount.
(g) Notwithstanding any of the foregoing provisions of this Section 3.01or any contrary provisions set forth in the Custodial Agreement, solely with respect to any Table Funded Purchased Asset:
(i) Not later than 10:00 a.m. (New York City time) on the related Purchase Date, (A) Seller or Bailee shall deliver to Buyer byemail executed .pdf copiesoftheMortgageLoanDocuments,BaileeAgreement,BaileeTrustReceipt and Supplemental Escrow Letter (if applicable) and (B) Seller shall deliver the appropriate written third party wire transfer instructions to Buyer. If Buyer has determined that all other applicable conditions in this Agreement, including without limitation those set forth in Section 6.02hereof, have been satisfied, and otherwise has agreed to purchase the related Table Funded Purchased Asset, Buyer shall (I) execute and deliver a .pdf copy of the related Confirmation to Seller and Bailee via email and (II) wire funds in the amount of the related Purchase Price for the related Table Funded Purchased Asset in accordance with the wire transfer instructions that were previouslydelivered to BuyerbySelleror are in the Supplemental Escrow Letter, as applicable.
(ii) Within five (5) Business Days after the applicable Purchase Date with respect to any Table Funded Purchased Asset, Seller or Bailee shall deliver
(A) to Custodian, the complete Mortgage Asset File with respect to such Table Funded Purchased Asset, pursuant to and in accordance with the terms of the Custodial Agreement,and(B)toBuyer,thecompleteUnderwritingPackagewith respect to the related Table Funded Purchased Assets purchased byBuyer.
Section 3.02Transfer of Purchased Assets. On the Purchase Date for each Purchased Asset, and subject to the satisfaction of all applicable conditions precedent in Article 6, (a) ownership of and title to such Purchased Asset shall be transferred to and vest in Buyer or its designee against the simultaneous transfer of the Purchase Price to the account of Seller specified in Annex 2(or, if not specified therein, in the related Confirmation or as directed by Seller), and (b) Seller hereby sells, transfers, conveys and assigns to Buyer on a servicing released basis all of Seller’s right, title and interest (but no Retained Interests) in and to such PurchasedAsset.SubjecttothisAgreement,duringtheFundingPeriod,SellermayselltoBuyer, repurchase from Buyer and re-sell Eligible Assets to Buyer, but Seller may not substitute other EligibleAssetsforPurchasedAssets.Buyerhastherighttodesignatetheservicerand sub-servicer (if any) of the Purchased Assets and, as of the Closing Date, Buyer will appoint Trimont to act as Servicer in accordance with the terms of the Servicing Agreement and Article
17. The Servicing Rights and other servicing provisions under this Agreement are not severable from or to be separated from the Purchased Assets under this Agreement, and such Servicing Rights and other servicingprovisions of this Agreement constitute (x) “related terms” under this Agreement within the meaning of Section 101(47)(A)(i) of the Bankruptcy Code and/or (y) a security agreement or other arrangement or other credit enhancement related to the Repurchase Documents. To the extent any additional limited liability company is formed by a Division of Seller (and without prejudice to Sections 8.01and9.01hereof), Seller shall cause each such Division LLC to sell, transfer, convey and assign to Buyer on a servicing released basis and for noadditionalconsiderationallofeachsuchDivisionLLC’sright,titleandinterestinandtoeach Purchased Asset, together with all related Servicing Rights in the same manner and to the same extent as the sale, transfer, conveyance and assignment by Seller on each related Purchase Date of all of Seller’s right, title and interest in and to each Purchased Asset,together with all related Servicing Rights.
Section3.03Future Advance Funding Period. Notwithstanding any termination ofthe Funding Period and provided that Seller has extended the Facility Termination Date in accordance with Section 3.07(a), during the Future Advance Funding Period, and provided no unsatisfied Margin Call, Default or Event of Default has occurred and is continuing on or after giving effect to the requested advance, upon Seller’s request Buyer may, in its discretion, advance additional PurchasePricewithrespect to anyPurchased Asset that is aPurchased Asset on or before the Funding Period Expiration Date, with the aggregate amount of such additional advances of Purchase Price not to exceed the Maximum Additional Purchase Amount. With respecttothePurchasedAssetforwhichanadditionaladvanceofPurchasePriceisrequestedby Seller, Seller shall deliver to Buyer such information relating to such Purchased Asset or the related Underlying Mortgaged Property as Buyer requests. Buyer shall communicate to Seller a final non-binding determination of whether or not it is willing to increase the Purchase Price of anysuchPurchasedAssetsand,ifso,onwhattermsandconditions,withinten(10)Business
Days of Buyer’s receipt of all supplemental due diligence documents and information as Buyer may reasonably request that are in the possession of Seller or obtainable by Seller with commercially reasonable efforts without material cost. If Buyer has not communicated its final non-binding indication to Seller by such date, Buyer shall automatically and without further action be deemed to have determined not to increase the Purchase Price of any such Purchased
Asset. In connection with any such increase of Purchase Price, Seller shall execute an amended and restated Confirmation on or prior to the Purchase Date for such Transaction. Following Seller’s execution of the amended and restated Confirmation, and provided that the conditions precedent to Transactions contained in the Repurchase Documents are satisfied, Buyer shall advancetheadditionalPurchasePrice,ifany,approvedbyBuyerwithrespecttosuchPurchased Asset and remit such amount in accordance with Section 3.01hereof. Any amounts that are advanced under this Section 3.03and subsequentlyrepaid maynot be re-advanced to Seller.
Section3.04Maximum Amount. The aggregate outstanding Purchase Price for all Purchased Assets as of any date shall not exceed the Maximum Amount. If such aggregate outstanding Purchase Price exceeds the Maximum Amount, Seller shall, within three (3) Business Days of receipt of written notice, from Buyer, pay to Buyer an amount necessary to reduce such aggregate outstanding Purchase Price to an amount equal to or less than the Maximum Amount.
Section3.05 EarlyRepurchaseDate;MandatoryRepurchases.
(a) Seller mayterminate anyTransaction with respectto anyor allPurchased AssetsandrepurchasesuchPurchasedAssetsonanydatepriortotherelatedRepurchase Date; provided,that (i) except withrespecttofullprepaymentbyanUnderlyingObligor, Seller notifies Buyer in writing (the “Early Repurchase Notice”) at least three (3) Business Days (or such shorter period as Buyer may agree) before the proposed Early Repurchase Date identifying the Purchased Asset(s) to be repurchased and the Repurchase Price thereof, which Early Repurchase Notice may be revoked by Seller by delivering written notice to Buyer prior to the consummation of the repurchase of the applicable Purchased Asset(s), (ii) Seller delivers an officer’s certificate from a Responsible Officer of Seller in form and substance satisfactoryto Buyer certifying, and Buyershallfurtherdetermine,thatnoDefaultorEventofDefaultexistsorwillexistasa result ofsuch repurchase and noMargin Call isunsatisfiedthat will not besatisfiedafter giving effect to any such early repurchase, (iii) if the Early Repurchase Date is not a Remittance Date, Seller pays to Buyer any amount due under Section 12.04, (iv) Seller pays to Buyer any Exit Fee and/or Release Amount due in accordance with the terms of the Repurchase Documents; and (v) Seller thereafter complies with Section 3.06. Notwithstanding, the foregoing, Seller shall be permitted to repurchase a Purchased Asset(s) during the continuance of a Default, Event of Default or while anyMargin Call isunsatisfied, as a result ofarepaymentofthePurchasedAssetinfullbytheUnderlying Obligor; provided, that, Seller remitsintotheWaterfall Account an amount notlessthan the greater of (x) 100% of the proceeds of such repayment and (y) the Repurchase Price for such Purchased Asset to be applied to the outstanding Repurchase Price for such Purchased Asset withthe remainder, if any, to beappliedinaccordancewith Article5of thisAgreement.Suchearlyterminationsandrepurchasesshallbelimitedtothree(3)
occurrencesinanycalendarweek(otherthanasaresultofanymandatoryrepurchaseora repayment of anyrelated Purchased Asset in full bythe Underlying Obligor).
(b) Seller may make a partial reduction of outstanding Purchase Price with respect to a Purchased Asset on any date prior to the related Repurchase Date; provided,that(i) except with respect to partial prepayments by an Underlying Obligor, Seller notifies Buyer in writing (the “Reduction Notice”) at least three (3) Business Days (or such shorter period as Buyer may agree, provided that no such notice shall be required if BuyerhasmadeaMarginCallwithrespecttosuchPurchasedAsset)beforetheproposed reduction date identifying the Purchased Asset(s) to be partially repaid and the updated Repurchase Price thereof, (ii) Seller delivers an officer’s certificate from a Responsible Officer of Seller in form and substance satisfactory to Buyer certifying, and Buyer shall
further determine, that no Default or Event of Default exists or will exist as a result of such reduction and no Margin Call will remain unsatisfied after givingeffect to anysuch reduction, and (iii) so long as such partial reduction is not being made bySeller to cure a Default or an Event of Default or to satisfy any Margin Call, such partial reduction shall not reduce the Applicable Percentage of the related Purchased Asset by more than twenty-five (25) percentage points (e.g., a reduction in the Applicable Percentage from 75%to50%).ProvidednoDefaultorEventofDefaultorunsatisfiedMarginCallexistor will exist as a result, within ninety (90) days following the reduction of such Purchased Asset,SellermaydelivertoBuyerwrittennoticerequestingthatBuyerre-advanceallora portion of the reduced Purchase Price against such Purchased Asset, provided, that, such re-advance of the portion of the Purchase Price shall be in Buyer’s discretion and shall not cause the then Applicable Percentage of the Purchased Asset to exceed theApplicable Percentage, as approved by Buyer in its discretion and set forth in the related Confirmation. Such reductions shall be limited to four (4) occurrences in any month unless such reductions are as a result of a repayment bythe Underlying Obligor.
(c) In addition to other rights and remedies of Buyer under any Repurchase Document, Seller shall within two (2) Business Days afternotice from Buyer repurchase anyPurchasedAssetthatnolongerqualifiesasanEligibleAsset,asdeterminedbyBuyer initsdiscretion;provided,that,solongasnootherDefaultorEventofDefaultexistsand SellerhasremittedallUnrestrictedCashtoBuyer,thensuchperiodshallbeextendedand Sellershallhave atotaloffive(5)BusinessDaysfromBuyer’snoticetorepurchasesuch Purchased Asset.
Section3.06 Repurchase.
(a) On the Repurchase Date for each Purchased Asset (or in connection with repayment in full of a Mortgage Note by the related Underlying Obligor), Seller shall transfer to Buyer (or, in connection with repayment in full of a Mortgage Note by the relatedUnderlyingObligor,toServicer,onBuyer’sbehalf)theRepurchasePriceforsuch Purchased Asset as of the Repurchase Date, and, so long as no monetary or materialnon-monetaryDefaultoranyEventofDefaulthasoccurredandiscontinuing,(unlessthe repurchase of such Purchased Asset cures such monetary or material non-monetary Default or such Event of Default or unless such repurchase is as a result of a repayment
of the Purchased Asset in full by the Underlying Obligor) Buyer shall transfer to Seller such Purchased Asset whereupon the Transaction with respect to such Purchased Asset shallterminate.Solongasnomonetaryormaterialnon-monetaryDefaultoranyEventof Default has occurred and is continuing, Buyer shall be deemed to have simultaneouslyreleaseditssecurityinterestinsuchPurchasedAsset,shallauthorizeCustodian,in accordance with the terms of the Custodial Agreement, to release to Seller the Mortgage LoanDocumentsforsuchPurchasedAssetand,totheextentanyUCCfinancingstatementfiledagainstSeller specifically identifies such Purchased Asset, Buyer shall deliveranamendmenttheretoorterminationthereofevidencingthereleaseofsuch Purchased Asset from Buyer’s securityinterest therein. Anysuch transfer or release shall be without recourse to Buyer and without representation or warranty by Buyer, exceptthatBuyershallrepresenttoSeller,totheextentthatgoodtitlewastransferredand assignedbySellertoBuyerhereunderontherelatedPurchaseDate,thatBuyeristhesole owner of such Purchased Asset, free and clear of any other interests or Liens caused by Buyer’s actions or inactions. The portion of anyRelease Amount paid in connection with the repurchase of a Purchased Asset that is in excess of the then current Repurchase Price
oftherelatedPurchasedAssetshallbeappliedtotheoutstandingRepurchaseObligations inthemannerandorderspecifiedintheprovisotothedefinitionofReleaseAmount.Any Income with respect to such Purchased Asset received by Buyer or Waterfall AccountBankafterpaymentoftheRepurchasePricethereforshallberemittedtoSeller. Notwithstanding the foregoing, on or before the Facility Termination Date, Seller shall repurchaseallPurchasedAssetsbypayingtoBuyerordepositingintotheWaterfall Account,asapplicable,theoutstandingRepurchasePricethereforandallother outstanding Repurchase Obligations.
(b) IntheeventtherepurchaseofaPurchasedAssetoccursinconnectionwith the full payoff of a Mortgage Note by the Underlying Obligor, notwithstanding anything setforthinSection5.02tothecontrary,solongasnomonetaryormaterialnon-monetary Default or any Event of Default has occurred and is continuing and Buyer has received the full Repurchase Price owed in connection with such Purchased Asset (including any Exit Fee and Release Amount), Buyer shall remit to Seller promptly (and, in any event, withinfive(5)BusinessDaysofBuyer’sreceiptoftherelatedIncomefromServicer)any Income remaining from such Purchased Asset after the payment in full of the related Repurchase Price for the Purchased Asset being repaid.
(c) At any time during the existence of a monetaryor material non-monetary Default or anyEvent of Default or anyunsatisfiedMargin Call,Sellershall bepermitted to repurchase a Purchased Asset and obtain the release thereof onlyif Seller satisfies the conditions of the Repurchase Documents in connection therewith and the Repurchase Price(includinganyReleaseAmount)forsuchPurchasedAssetispaiddirectlytoBuyer, and the Excess Amount paid bySeller in connectiontherewithshall be applied byBuyer totheoutstandingRepurchaseObligationsinaccordancewithandsubjecttotheprovisos to the definition of Release Amount.
(d) For the avoidance of doubt, nothing herein shall prohibit Seller from sellinganAsset toBuyerontheRepurchaseDatefor aPurchasedAsset solongasSeller
complies with the provisions of Section 3.01and Buyer consents to the purchase of any such Asset.
Section 3.07 Extension of theFacilityTerminationDate;ExtensionoftheFundingPeriod Expiration Date.
(a) Subject to Seller’s compliance with the applicable conditions precedent theretosetforthbelow(the“ExtensionConditions”),Sellershallhavethree(3)optionsto extend the Facility Termination Date that occurs under clause (a)of the definitionthereof, the first for an additional one year term ending on the one-year anniversarydate of the Initial FacilityTermination Date (the “First Extended FacilityTermination Date”), the second for an additional one year term ending on the one-year anniversarydate of the First Extended Facility Termination Date (the “Second Extended Facility TerminationDate”), and the third for an additional one year term ending on the one-year anniversary date of the Second Extended Facility Termination Date (the “Third Extended FacilityTermination Date” and, together with the First Extended Facility Termination Date and the Second Extended Facility Termination Date, each an “Extended FacilityTerminationDate”). The Seller’s extension of each of the Initial Facility Termination Date, the First Extended Facility Termination Date and the Second Extended Facility Termination Date shall be subject to Seller’s satisfaction of the following, each as determined by Buyer in its discretion: (i) no monetary or material non-monetary Default or any Event of Default exists on the date of the request to extend or on the then applicable Facility Termination
Date or Extended Facility Termination Date, (ii) no Margin Call has been made that has not been satisfied on the current Facility Termination Date or Extended Facility Termination Date, (iii) Buyer shall havereceived a written request of Seller to extend the thenapplicableFacilityTerminationDate(the“ExtensionNotice”)deliveredtoBuyerno earlier than ninety (90) days and no later than thirty (30) days before the then applicable Facility Termination Date or the Extended Facility Termination Date, as applicable, and such written request shall not have been revoked, (iv) the Debt Yield for all Purchased Assets (on a combined basis) is at least equal to the Required Portfolio Debt Yield Percentage; provided, however, that Seller shall be permitted to reduce the aggregate PurchasePriceoutstandingonorpriortothethen-applicableFacilityTerminationDateor Extended Facility Termination Date, without any premium, fee or penalty, in an amount necessary to cause the Debt Yield to be at least equal to the Required Portfolio Debt Yield Percentage, (v) Seller shall have paid to Buyer the applicable Extension Fee on or before the then current Facility Termination Date or the Extended Facility Termination Date, as applicable, and (vi) if requested byBuyer, Seller shall have delivered to Buyer a new or updated Beneficial Ownership Certification, as applicable, in relation to Seller to the extent that Seller qualifies as a “legal entity customer” under the Beneficial Ownership Regulation. Notwithstanding the foregoing, Seller may, at any time prior to the then applicable Facility Termination Date, by written notice to Buyer, revoke its Extension Notice and, upon receipt of such written notice, the then applicable Extended Facility Termination Date shall not go into effect and the Facility shall terminate on the then applicable Facility Termination Date.
(b) Subject to Seller’s compliance with the Extension Conditions and provided that Seller concurrently exercises its option to extend the Facility Termination DatefromtheInitialFacilityTerminationDatetotheFirstExtendedFacilityTermination Date in accordance with Section 3.07(a), Seller shall have one (1) option to extend the Funding Period Expiration Date that occurs under clause (a)of the definition thereof from the Initial Facility Termination Date to the First Extended Facility Termination Date. Notwithstanding the foregoing, Seller may, at anytime prior to the FundingPeriod Expiration Date, by written notice to Buyer, revoke its exercise of such option by providing written notice to Buyer of such revocation and, upon receipt of such written notice, the related extension of the Funding Period Expiration Date shall not go into effect and the Funding Period shall terminate on the Initial FacilityTermination Date.
Section3.08 PaymentofPriceDifferentialandFees.
(a) Notwithstanding that Buyer and Seller intend that the Transactions hereunder be sales to Buyer of the Purchased Assets, Seller shall pay to Buyer the accrued value of the Price Differential for each Purchased Asset on each Remittance Date. Buyer shall give Seller notice of the Price Differential and any fees and other amounts due under the Repurchase Documents on or prior to the Pricing Rate Determination Date preceding each Remittance Date; provided, that Buyer’s failure to deliver such notice shall not affect Seller’s obligation to pay such amounts. If the Price Differential includes any estimated Price Differential, Buyer shall recalculate such Price Differential after the Remittance Date and, if necessary, make adjustments to the Price DifferentialamountdueonthefollowingRemittanceDate.Fortheavoidanceofdoubt,if theamountofPriceDifferentialthatSellerpaysonanygivenRemittanceDateisequalto the Price Differential of which Buyer gave notice, no Default or Event of Default shall resultintheeventtheamountwhichBuyerrequestedSellertopayislessthantheamount
due on such Remittance Date so long a Seller pays the difference within three (3) Business Days of such notice.
(b) Seller shall pay to Buyer all fees (including, without limitation, the StructuringFee,theExitFeesandtheExtensionFee)andotheramountsasandwhendue as set forth in the Fee Letter.
Section3.09 Payment,TransferandCustody.
(a) Unless otherwise expressly provided herein, all amounts required to be paid or deposited by Seller, Pledgor, Guarantor, Servicer or any other Person under the Repurchase Documents shall be paid or deposited in accordance with the terms thereof no later than 3:00 p.m. on the day when due, in immediately available Dollars and without deduction, setoff or counterclaim, and if not received before such time, shall be deemed to be received on the next Business Day. Whenever any payment under the Repurchase Documents (including anyRepurchase Obligations)shall bestated to bedue on a day other than a Business Day, such payment shall be made on the preceding Business Day. Seller, Guarantor and Pledgor shall, to the extent permitted by RequirementsofLaw,paytoBuyerinterestinconnectionwithanyamountsnotpaid
when due under the Repurchase Documents, which interest shall be calculated at a rate equal to the Default Rate, until all such amounts are received in full byBuyer. Amounts payable to Buyer and not otherwise required to be deposited into the Waterfall Account or Servicer Account, as applicable, shall be deposited into an account of Buyer. Seller shallhavenorights in,rights ofwithdrawalfrom, orrights togivenotices orinstructions regarding Buyer’s account or the Waterfall Account other than, in the case of the WaterfallAccountonly,therightifanytoreceiveresidualamountsfromsuchaccountas and to the extent expressly provided in Section 5.02of this Agreement.
(b) Any Mortgage Loan Documents not delivered to Buyer or Custodian under the Custodial Agreement are and shall be held in trust bySeller or its agent for the benefit of Buyer as the owner thereof and, to the extent suchMortgage Loan Documents are required to be delivered to Custodian under the Custodial Agreement, such Mortgage Loan Documents shall be promptly delivered to Custodian in accordance with the terms and conditions of the Custodial Agreement. Seller or its agent shall maintain a copy of the Mortgage Loan Documents and the originals of the Mortgage Loan Documents not required to be delivered to Buyer or Custodian under the terms of the Custodial Agreement. The possession of Mortgage Loan Documents by Seller or its agent is in a custodialcapacityonlyatthewillofBuyerforthesolepurposeofassistingServicerwith the performance of its duties under the Servicing Agreement. Each Mortgage Loan DocumentretainedorheldbySelleroritsagentshallbesegregatedonSeller’sbooksand records from the other assets of Seller or its agent, and the books and records of Seller or its agent shall be marked to reflect clearly the sale of the related Purchased Asset to Buyer on a servicing-released basis. Seller or its agent shall release its custody of such Mortgage Loan Document only in accordance with written instructions from Buyer, unless such release is required as incidental to the servicing of the Purchased Assets or is in connection with a repurchase of any Purchased Asset by Seller, in each case in accordance with the Custodial Agreement. Whenever any expiration or termination date shall occur on a day other than a Business Day, such expiration or termination day shall occur on the immediately preceding Business Day.
Section3.10Repurchase Obligations Absolute. All amounts payable by Seller, Guarantor or Pledgor under the Repurchase Documents shall be paid without notice, demand,
counterclaim, setoff, deduction or defense (as to anyPerson and for anyreason whatsoever) and withoutabatement,suspension,deferment,diminutionorreduction(astoanyPersonandforany reason whatsoever), and the Repurchase Obligations shall not be released, discharged or otherwise affected, except as expressly provided herein, by reason of: (a) any damage to, destruction of, takingof, restriction orprevention of theuseof,interferencewith theuseof, title defect in, encumbrance on or eviction from, anyPurchased Asset, the Pledged Collateral or any related Underlying Mortgaged Property, (b) any Insolvency Proceeding relating to Seller, Guarantor, Pledgor or any Underlying Obligor, or any action taken with respect to any Repurchase Document or Mortgage Loan Document by any trustee or receiver of Seller, Guarantor, Pledgor or any Underlying Obligor or by any court in any such proceeding, (c) any claim that Seller, Guarantor or Pledgor has or might have against Buyer under any Repurchase Documentorotherwise,(d)anydefaultorfailureonthepartofBuyertoperformorcomplywith anyRepurchaseDocumentorotheragreementwithSeller,GuarantororPledgor,(e)the
invalidity or unenforceability of any Purchased Asset, Repurchase Document or Mortgage Loan Document, or (f) any other occurrence whatsoever, whether or not similar to any of the foregoing,andwhetherornotSeller,GuarantororPledgorhasnoticeorKnowledgeofanyofthe foregoing. The Repurchase Obligations shall be full recourse to Seller. This Section 3.10shall survive the termination of theRepurchaseDocuments and theindefeasiblepayment in full of the Repurchase Obligations.
ARTICLE 4.
MARGINMAINTENANCE
Section4.01 MarginDeficit.
(a) If, as determined by Buyer in its discretion, (i) a Credit Event has occurred, (ii) the Asset Value for one or more Purchased Assets is less than the outstanding Purchase Price for such Purchased Asset (excluding changes in the Asset Value of Purchased Assets that are due solely to interest rate spreads or credit spreads),
(iii) the Debt Yield for all Purchased Assets (on a combined basis) is less than the Required Portfolio Debt Yield Percentage or (iv) a Confirmation for a Purchased Asset permitstheBuyertoreducetheAssetValueofaPurchasedAssetupontheoccurrenceor non-occurrence of a specified event or events for a specified amount or an amount to be determined by Buyer and such event has occurred or failed to occur, as determined by Buyer (the occurrence of any such event under clauses (i), (ii), (iii) and/or (iv) and the related Deficit Amount, a “MarginDeficit”), Buyer may give Seller notice of any such Margin Deficit. So longas noDefault orEvent ofDefault has occurred and is continuing and to the extent that any Excess Funding Capacity exists, Buyer shall, to the extent of anyExcessFundingCapacity,reallocatesuchMarginDeficit(a“Reallocation”)tooneor more Purchased Assets with Excess Funding Capacity by increasing the Purchase Price for one or more such other Purchased Assets (such Purchased Assets with Excess Funding Capacity and the amounts of such increases to be determined by Buyer in its discretion) so long as, and in each case, subject to satisfaction of the following: (A) such Reallocations do not result in a Default, an Event of Default or a Margin Deficit with respect to any other Purchased Asset as determined by Buyer and (B) as a result of such Reallocations, (I) no Purchased Asset shall have a PPV in excess of the Maximum PPV Percentage, as determined by Buyer, (II) [reserved], (III) each Purchased Asset shall continuetobeanEligibleAssetaftersuchReallocations,(IV)thePurchasedAssets(ona combined basis) satisfythe Required Portfolio Debt Yield Percentage, (V) the applicable
requirements and conditions set forth in Section 3.01, to the extent not specified in this Section4.01aresatisfiedorwillbesatisfiedaftergivingeffecttosuchReallocations,
(VI)noPurchasedAssetshallhaveanApplicablePercentagethatexceedstheApplicable Percentage set forth in the related Confirmation, (VII) the Concentration Limit shall not beviolated, and (VIII) BuyerhasreceivedevidencesatisfactorytoBuyerinitsdiscretion of the continuing enforceability of the Guaranty and the current compliance by the Guarantor with all Financial Covenants andotherobligations set forth in theRepurchase Documents; provided, however, in noeventshallBuyerincreasethePurchasePricefora PurchasedAssetwithanunsatisfiedMarginCall.Inconnectionwithanysuch
Reallocation, Seller shall execute replacement Confirmations acceptable to Buyer in its discretion promptly (but, in any event, within one (1) Business Day) following the request of Buyer. Seller understands and acknowledges that Reallocations may not be possible or, if possible, may not fully eliminate the Margin Deficit and that, subject to Seller’s rights set forth herein, the manner, method and all other factors relating to such Reallocation are in Buyer’s discretion.
(b) IfaReallocationdoesnotoccuror,ifaReallocationoccurredbutthesame did not fully eliminate the Margin Deficit, then Buyer may in its discretion give Seller written notice of such Margin Deficit and the related Deficit Amount in connection with such Margin Deficit and make a margin call (a “Margin Call”) on Seller for the Margin Deficit (such notice the “Margin Call Notice”); provided, however, unless a Default or Event of Default exists, Buyer shall not make a Margin Call until the Margin Deficit equals or exceeds the Margin Threshold. On or before the Margin Correction Deadline (time being of the essence), Seller shall pay to Buyer in immediately available funds the full amount of Margin Deficit set forth in such Margin Call Notice. Seller shall, prior to the Margin Correction Deadline, remit to Buyer all Unrestricted Cash in satisfaction of such Margin Deficit, provided, that, to the extent Unrestricted Cash is insufficient to satisfy the applicable Margin Deficit in full, and, by the Margin Correction Deadline, Seller remits any Unrestricted Cash and no Default or Event of Default exists (other than a Default related to such unpaid Margin Deficit which is the subject of the Margin Call Notice), then such period shall be extended and Seller shall have a total of five (5) Business Days from the date of the Margin Call Notice to satisfy the remaining Margin Deficit.
(c) Failure to satisfy any Margin Deficit by the Margin Correction Deadline shall result in an Event of Default under this Agreement.
(d) Fortheavoidanceofdoubt,BuyermayrequiretheeliminationofaMargin Deficit with respect to a single Purchased Asset or multiple Purchased Assets.
(e) Buyer’s election in its discretion not to give notice of a Margin Deficit or otherwise make a Margin Call at any time there is a Margin Deficit shall not waive the Margin Deficit or in any way limit or impair Buyer’s right to deliver a Margin Call Notice at any time when the same or any other Margin Deficit exists. Buyer’s rights under this Section 4.01are in addition to and not in lieu of any other rights of Buyer under the Repurchase Documents or Requirements of Law.
(f) Except as otherwise required by Buyer, all cash transferred to Buyer pursuanttothisSection4.01withrespecttoaPurchasedAssetshallbedepositedintothe Waterfall Account and, notwithstanding any provision in Section 5.02to the contrary, shallbeappliedbyBuyertoreducethePurchasePriceofthePurchasedAsset(s)towhich the Margin Deficit relates. With respect to the Purchased Assets for which the Margin Deficitwasapplied,SellershallexecutereplacementConfirmationsreflectingthe
applicablechangetothePurchasePriceoftherelatedPurchasedAssetspromptlyfollowing the payment of such Margin Deficit.
Section 4.02Margin Call Dispute. If Buyer makes a Margin Call that is solely the result of a decline in the value of the Underlying Mortgaged Property of a Purchased Asset (including, for the avoidance of doubt, a Margin Call as a result of a Purchased Asset having a PPVinexcessoftheapplicableMaximumPPVPercentage),then,providedthat(i)noDefaultor Event of Default has occurred and is continuing and no other Margin Call is unsatisfied, and (ii) Seller has paid to Buyer in a timely manner the full amount of the Margin Call determined by Buyer pursuant to and in accordance with the terms of the Margin Call Notice, Seller may, no later than three (3) Business Days after the date of the Margin Call Notice, dispute such determination of the value of the Underlying Mortgaged Property by notifying Buyer in writing of such dispute and the basis for such dispute (such notice letter, the “Margin Dispute Notice”); provided, however, in the event that Seller fails to timely deliver to the Buyer any Margin DisputeNoticewithinsuchthree(3)BusinessDayperiod,theBuyer’sdeterminationofthevalue of the Underlying Mortgaged Property shall be final and conclusive. Upon receipt by Buyer of such Margin Dispute Notice, and provided clauses (i) and (ii) above are satisfied, Buyer shall, at Seller’s sole cost and expense, order a new Appraisal of such Underlying Mortgaged Property, which Appraisal shall be subject to Buyer’s internal compliance/approval processes. If the new Appraisal shows a value of the UnderlyingMortgaged Propertyto be greater than the value used to determine the Margin Call, the Margin Call shall be recalculated using the new value. If the amountofthenewMarginCallislessthantheamountreceivedbyBuyerpursuanttotheMargin CallNotice,then,providednoDefaultorEventofDefaulthasoccurredandiscontinuingandno other Margin Call is unsatisfied, Buyer shall re-advance to Seller the difference against the related Purchased Asset; provided, however, in no event shall the amount of any re-advance exceed the original amount of the Margin Call set forth in the Margin Call Notice. If the new Appraisal shows the value of the Underlying Mortgaged Property to be less than the value used to determine the Margin Call, then Buyer may choose to recalculate the Margin Call using the new value set forth in the new Appraisal and deliver an additional Margin Call Notice to Seller with the additional Margin Call amount. Seller shall have no rights to dispute such additional Margin Call Notice.
ARTICLE 5.
WATERFALLANDSERVICERACCOUNTS;APPLICATIONOFINCOME
Section5.01 WaterfallAccountandServicerAccount.
(a) OnorbeforetheClosingDate,SellershallestablishtheWaterfallAccount at the Waterfall Account Bank. Buyer shall have sole dominion and control (including, without limitation, “control” within the meaning of Section 9-104(a) of the UCC) over the Waterfall Account. None of Seller, any other Repurchase Party or any Person claimingthroughorunderSelleroranyotherRepurchasePartyshallhaveanyclaimtoor interest in the Waterfall Account.
(b) On or before the Closing Date, Seller and/or Servicer shall establish the ServicerAccountandtheGeneralServicingAccountattheBank.AllIncomereceivedby Seller, Servicer or any Affiliate of Seller or Servicer in respect of the Purchased Assets shall be deposited directly into the General Servicing Account or the Servicer Account upon receipt thereof in accordance with Section 8.06and shall be remitted to the Waterfall Account within two (2) Business Days of receipt in the Servicer Account
(provided that, if Wells is the Servicer, then the Servicer shall be required to remit to the Waterfall Account only once each month on the date set forth in the Servicing Agreement).
Section5.02Before Event of Default. If no Event of Default exists, all amounts described in Section 5.01and deposited into the Waterfall Account during each Pricing Period shall be applied by Buyer by no later than the next following Remittance Date (except as set forth below) in the following order of priority:
first, to the extent Servicer is a Qualified Servicer, and such Qualified Servicer has not deducted its Servicing Fees before depositing Income into the Waterfall Account, and to the extent not previously paid by Seller, to pay any Servicing Fees (other than costs and expenses of Servicer) then due and payable to Wells as Servicer under the Servicing Agreement, pro rata;
second, topayto Buyer an amount equal tothePriceDifferentialaccruedwithrespectto all Purchased Assets as of such Remittance Date;
third,topaytoBuyeranamountequaltoalldefaultinterest,latefees,fees,expensesand Indemnified Amounts then due and payable from Seller to Buyer and other applicable Persons under the Repurchase Documents (other than any amounts owed to the Custodian under the Custodial Agreement);
fourth, to pay to Buyer an amount sufficient to eliminate any unsatisfied Margin Call (without limiting Seller’s obligation to satisfy a Margin Deficit in a timely manner as required by Section 4.01);
fifth, to pay any custodial fees and expenses due and payable to Custodian under the Custodial Agreement;
sixth, with respect to each Purchased Asset, to pay to Buyer an amount equal to the sum of (a) the product of (i) any Principal Payments collected in respect of such Purchased Asset and (ii) the Applicable Percentage for such Purchased Asset to be applied in reduction of the outstanding Purchase Price of such Purchased Asset, and (b) without duplicationofamountssetforthinclause(a),anyReleaseAmount,ExitFeeorportionof the foregoing due in connection with any such payment;
seventh, to pay to Buyer any other amounts due and payable to Buyer under the Repurchase Documents;
eighth, to payto anyother Person anyother amounts due and payable from Selleror any other Repurchase Party to such other Person under the Repurchase Documents;
ninth, to the extent such Servicer is (a) not a Qualified Servicer and to the extent not previously paid by Seller, to pay any Servicing Fees then due and payable to such ServicerundertheServicingAgreementand(b)aQualifiedServicerandtotheextentnot previously paid by Seller to pay any costs and expenses of such Qualified Servicer, then due and payable to such Qualified Servicer under the Servicing Agreement, pro rata; and
tenth, if a Default has occurred and is continuing, any remainder to be held in the Waterfall Account until such Default has been cured and such curehas beenaccepted by
Buyer or, application under Section 5.03, if applicable, or, if no Default or Event of Default has occurred and is continuing, to pay to Seller any remainder for its own account.
Section 5.03After Event of Default. If an Event of Default exists, all amounts depositedintotheWaterfallAccountinrespectofthePurchasedAssetsorthePledgedCollateral shall be applied by Buyer, on the Business Day next following the Business Dayon which such amount is so deposited, in the following order of priority:
first, to the extent Trimont or Wells is acting as the Servicer and has not deducted its ServicingFeesbeforedepositingIncomeintotheWaterfallAccount,andtotheextentnot previouslypaid byor on behalf of Seller, to payanyServicingFees then due and payable to such Servicer under the Servicing Agreement;
second, topayto Buyer an amount equal tothePriceDifferentialaccruedwithrespectto all Purchased Assets as of such Remittance Date;
third,topaytoBuyeranamountequaltoalldefaultinterest,latefees,fees,expensesand Indemnified Amounts then due and payable from Seller and other applicable Persons to Buyer under the Repurchase Documents (other than anyamounts owed to the Custodian under the Custodial Agreement);
fourth,totheextentServicerisaQualifiedServicer(otherthanTrimontorWells),andto the extent not previouslypaid byor on behalf of Seller, to payanyServicing Fees (other than anycosts and expenses ofServicer)then dueand payable tosuchQualifiedServicer (other than Trimont or Wells) under the Servicing Agreement, pro rata;
fifth, to pay any custodial fees and expenses due and payable to Custodian under the Custodial Agreement;
sixth, topayto Buyer an amount equal totheaggregateRepurchasePrice(otherthanany amounts payable to Wells with respect to any Interest Rate Protection Agreement with Wells) of all Purchased Assets (to be applied in reduction of the aggregate Repurchase Price in such amounts, order andmanner asdetermined byBuyer,untilsuchRepurchase Price has been reduced to zero (0));
seventh, to pay to Buyer and any other applicable Person all other Repurchase Obligations due to Buyer and such other applicable Person;
eighth, to pay to Buyer, on behalf of Wells or an Affiliate of Wells as Hedge Counterparty, anyamounts payable to Wells or an Affiliate of Wells with respect to any Interest Rate Protection Agreement entered into by Seller with Wells or an Affiliate of Wells;
ninth,totheextentServiceris(i)notaQualifiedServicerandtotheextentnotpreviously paid bySeller, to payanyServicingFees then dueand payable to such Servicerunder the ServicingAgreementand(ii)aQualifiedServicer(otherthanWells)andtotheextentnot previouslypaidbySeller,topayanycostsandexpensesofServicerthendueandpayable to such Qualified Servicer under the Servicing Agreement, pro rata; and
tenth, to Seller any remainder for its own account; provided, that if Buyer has exercised the remedies described in Section 10.02(d)with respect to any or all Purchased Assets, Seller shall not be entitled to anyproceeds from anysale of such Purchased Assets.
Section5.04Seller to RemainLiable. Ifthe amounts remittedtoBuyerasprovidedin Sections 5.02and 5.03are insufficient to payall amounts due and payable from Seller to Buyer under this Agreement or any Repurchase Document on a Remittance Date, a Repurchase Date, upon the occurrence of an Event of Default or otherwise, Seller shall nevertheless remain liable for and shall pay to Buyer when due all such amounts.
ARTICLE 6.
CONDITIONSPRECEDENT
Section6.01Conditions Precedent to Initial Transaction. Buyer shall not beobligated to enterinto anyRepurchase Document or Transaction orpurchase anyAsset until the following conditionshavebeensatisfied, orwaived byBuyer, onandas oftheClosingDateand the initial Purchase Date:
(a) Buyer has received the followingdocuments, each dated theClosingDate or as of theClosingDateunless otherwisespecified: (i)eachRepurchaseDocument duly executed and delivered by all of the parties thereto, (ii) an official good standing certificate dated a recent date with respect to each Repurchase Party (including in each jurisdiction where any Underlying Mortgaged Propertyis located to the extent necessary for Buyer to enforce its rights and remedies thereunder), (iii) a Closing Certificate executed by each Repurchase Party, (iv) an executed Power of Attorney of Seller and Pledgor, (v) such opinions from counsel to the Repurchase Parties regarding the Repurchase Documents and all collateral thereunder as Buyer may require, including, without limitation, with respect to corporate matters, enforceability, no consents or approvals required other than those that have been obtained, absence of conflicts with RequirementsofLaw,GoverningDocumentsandmaterialagreements,perfectedsecurity interest in the Purchased Assets and Pledged Collateral by filing, perfection by possessionintheMortgageNotesandPledgedCollateral,perfectionbycontrolofthe
Waterfall Account and any other collateral pledged pursuant to the Repurchase Documents, Investment Company Act matters, the enforceability of Seller’s limited liabilitycompanyagreement,theapplicabilityofBankruptcyCodesafeharborsandatrue sale opinion (if applicable under Section 7.10) and (vi) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) no Default, Event of Default, unsatisfied Margin Call, Material Adverse Effect or Market Disruption Event exists;
(c) deliverybySellerandGuarantorofaComplianceCertificatetoBuyer;
(d) (i)UCCfinancingstatementshavebeenfiledagainstSellerandPledgorin all filing offices reasonably required by Buyer, (ii) Buyer has received such searches of UCCfilings,tax Liens,judgments,pendinglitigationandothermattersrelatingtoSeller, Guarantor and Pledgor, as Buyer may require, and (iii) the results of such searches are satisfactory to Buyer;
(e) noRequirementsofLawshallprohibitorrenderitunlawful,andnoorder, judgment or decree of any Governmental Authority shall prohibit, enjoin or render it
unlawful, to enter into any Repurchase Document, including after giving effect to the consummation thereof;
(f) all information, reports, certificates, documents, financial statements, operatingstatements,forecasts,books,records,files,exhibitsandschedulesfurnishedby or on behalf of Seller or any other Repurchase Party to Buyer in connection with the Repurchase Documents, when taken as a whole, do not contain any untrue statement of materialfact oromit tostateanymaterialfactnecessarytomakethestatementshereinor therein, in light of the circumstances under which they were made, not materially misleading;
(g) Buyer has received payment from Seller of all fees and expenses then payable under the Fee Letter and the other Repurchase Documents, including as contemplated by Section 13.02;
(h) Buyer shall have received a Patriot Act Certificate with respect to each Repurchase Party;
(i) Buyer has received approval from its internal credit committee and all other necessary approvals required for Buyer to enter into this Agreement and consummate Transactions hereunder;
(j) Buyer has completed to its satisfaction such due diligence (including, Buyer’s “Know Your Customer”, Anti-Corruption Laws, Sanctions and Anti-Money Laundering Laws diligence, and any information required to be obtained by Buyer pursuant to the Beneficial Ownership Regulation) and modeling as Buyer mayrequire;
(k) Buyer shallhave received,sufficientlyin advanceof (but in anyeventnot less than three (3) Business Days prior to) the Closing Date a Beneficial Ownership Certification in relation to Seller to the extent that Seller qualifies as a “legal entity customer” under the Beneficial Ownership Regulation;
(l) [reserved];and
(m) Buyer has received documentation in form and substance satisfactory to Buyer evidencing that Seller and Guarantors comply with applicable Anti-Corruption Laws and Anti-Money Laundering Laws.
Section 6.02Conditions Precedent to All Transactions. Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any otheractionhereunder,untilthefollowingadditionalconditionshavebeensatisfiedorwaivedby Buyer, with respect to each Asset on and as of the Purchase Date, or such other date as indicated below, therefor:
(a) Buyer and/or Custodian has received the following documents: (i) an UnderwritingPackage,(ii)aConfirmation,(iii)(x)totheextentnotpreviouslydelivered, the related Servicing Agreement, and (y) evidence satisfactory to Buyer that the Underlying Obligor has been directed to remit Income to Servicer inaccordancewith the Mortgage Loan Documents (which maybe in theform ofaNoticeofServicedAssets(as defined in the Servicer Acknowledgment Agreement)), (iv) Irrevocable Redirection Notices duly executed in blank by Seller, (v) (x) with respect to any Asset that is not a Table Funded Purchased Asset, a Trust Receipt and other items required to be delivered undertheCustodialAgreement,or(y)withrespecttoanyTableFundedPurchasedAsset, a Bailee Agreement and Bailee Trust Receipt, and (vi) all other documents, certificates, information, financial statements, reports, approvals, KYC compliance and opinions of counsel as Buyer may require;
(b) evidence satisfactory to Buyer that (i) the Purchased Assets are being or will be serviced by the Servicer under the Servicing Agreement and, if applicable, aSub-Servicer under a Sub-Servicing Agreement, including any notices or deliveries required thereunder to evidence or acknowledge that such Purchased Asset shall be serviced thereunder and Seller shall provide Buyer a copyof anysuch notice or delivery required thereunder, together with a written acknowledgment of the applicable Servicer and (ii) the Servicer has received copies of all documents in the Mortgage Asset File;
(c) immediatelybeforesuchTransactionandaftergivingeffecttheretoandto the intended use thereof, no Representation Breach (other than with respect to a Purchased Asset purchased prior to the related Purchase Date) other than Approved Representation Exceptions, Default or Event of Default exists;
(d) immediatelybeforesuchTransactionandaftergivingeffecttheretoandto theintendedusethereof,no(i)conditionorcircumstanceexistswhichcauses,constitutes
orcouldreasonablybeexpectedtocauseorconstituteaMaterialAdverseEffect,as determined byBuyer, (ii) Market Disruption Event or (iii) Margin Deficit exists;
(e) [Reserved];
(f) noRequirementsofLawshallprohibitorrenderitunlawful,andnoorder, judgment or decree of any Governmental Authority shall prohibit, enjoin or render it unlawful,toenterintoanyTransaction,includingaftergivingeffecttotheconsummation thereof;
(g) Buyer has completed its due diligence review of the Underwriting Package,Mortgage Loan Documents andsuchotherdocuments,recordsandinformation as Buyer deems appropriate, and the results of such reviews are satisfactoryto Buyer;
(h) Buyerhas(i)determinedthatsuchAssetisanEligibleAsset,(ii)approved the purchase of such Asset, (iii) obtained all necessaryinternal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(i) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;
(j) other than in connection with a Reallocation, the Purchase Date specified in the Confirmation is not later than the Funding Period Expiration Date;
(k) theRepurchaseDateisnotlaterthantheFacilityTerminationDate;
(l) Seller, Guarantor, Servicer, Pledgor and Custodian have satisfied in all material respects all requirements, conditions and covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date;
(m) If Seller acquired the Asset from an Affiliate, Seller shall have delivered to Buyer on or before the related Purchase Date (i) an opinion of counsel regarding the true sale of the purchase of such Asset by Seller and, if such Asset was acquired by Seller’s Affiliate from another Affiliate, the true sale of the purchase of the Asset bythe Affiliate of Seller from the Transferor Affiliate, which opinions shall be in form and substancesatisfactorytoBuyeror(ii)aResidualPledgeAgreementandResidualPledgor Financing Statement with respect to any residual interest such Transferor may have in such Asset, if any; provided, however, if aproposed Asset was acquired bySellerfrom a Transferor under a Purchase Agreement that was the subject of a true sale opinion or ResidualPledgeAgreementpreviouslydeliveredandacceptedbyBuyer,thenSellershall deliver to Buyer an executed Supplemental Conveyance evidencing the transfer of the Asset from such Transferor to Sellerpursuant to such Purchase Agreement and a written certification in the form of Exhibit Jattached hereto.
(n) to the extent the related Mortgage Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and
without prejudice to the sale treatment of such Asset to Buyer, Buyer has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(o) if requested by Buyer, such opinions from counsel to Seller, Pledgor and Guarantor as Buyer may require, including, without limitation, with respect to the perfected security interest in the Purchased Assets, the Pledged Collateral and any other collateral pledged pursuant to the Repurchase Documents;
(p) [Reserved];
(q) Buyer has received a copyof anyInterest Rate Protection Agreement and related documents entered into with respect to such Asset, (i) Seller has collaterally assigned to Buyer all of Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement and related documents, and (ii) no termination event, default or event of default (however defined) exists thereunder;
(r) evidence satisfactory to Buyer regarding any Interest Rate Protection Agreement entered into by Seller in accordance with Section 8.09;
(s) SellerhascompliedwithallotherrequirementssetforthintheRepurchase Documents for the purchase of such Asset;
(t) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;
(u) To the extent Wells is not the Servicer and to the extent not previously delivered, on or prior to the Closing Date, Seller has provided to Buyer (i) a fully executed andcompletedAccountControlAgreementacceptabletoBuyerwithrespectto such Servicer Account, and (ii) a legal opinion acceptable to Buyer regarding the AccountControlAgreementfortheServicerAccount(including,butnotlimitedto,
Buyer’sperfectedsecurityinterestintheServicerAccount);and
(v) Within three (3) months from the Closing Date, Buyer has received and approvedtheformofMortgageLoanDocumentsthatSellerand/oritsAffiliatesintendto utilizefor theorigination ofAssets. Sellerhas not amended, altered,revisedorotherwise change in any material respects the form of Mortgage Loan Documents approved by Buyer under this Section 6.02(v)without first have given prior notice to Buyer of any such amendments, modifications and/or changes to its form Mortgage Loan Documents.
Each Confirmation delivered bySeller shall constitute a certification bySellerthat all of the conditions precedent in this Article 6have been satisfied (or waived by Buyer) other than those set forth in Sections 6.01(i)and (j) and Sections 6.02(g)and (h).
ARTICLE 7.
REPRESENTATIONSANDWARRANTIESOFSELLER
Seller represents, warrants and, as applicable, covenants, on and as of the date of this Agreement, eachPurchaseDateandatalltimeswhenanyRepurchaseDocumentorTransaction is in full force and effect, as follows:
Section7.01Seller. Seller has been dulyorganized and validlyexists in good standing asalimitedliabilitycompanyunderthelawsofthejurisdictionofitsformation.Seller(a)hasall requisitepower,authority,legalright,licensesandfranchises,(b)isdulyqualifiedtodobusiness in all jurisdictions necessaryand (c) has been dulyauthorized byall necessaryaction to (i) own, lease and operate its properties and assets, (ii) conduct its business as presently conducted, (iii) execute, deliver and perform its obligations under the Repurchase Documents to which it is a party,and(iv)originate,service,acquire,own,sell,assign,pledgeandrepurchasethePurchased Assets. Seller’s exact legal name is set forth in the preamble and signature pages of this Agreement. Seller’s location (within themeaning of Article 9 of theUCC), and theofficewhere Seller keeps all records (within the meaning of Article 9 of the UCC) relating to the Purchased Assets, is at the address of Seller referred to in Annex 1. Seller has not changed its name or location within the past twelve (12) months. Seller’s organizational identification number is 10157700 and its tax identification number is 93-2927264. Seller is a wholly owned Subsidiary ofPledgor. The fiscal year ofSelleris thecalendar year.Sellerhas no Indebtedness,Contractual Obligations or Investments other than (a) ordinary trade payables, (b) in connection with Assets acquired or originated for the Transactions, (c) the Repurchase Documents and (d) Interest Rate Protection Agreements entered into in connection with Section 8.09of this Agreement. Seller has no Guarantee Obligations.
Section7.02RepurchaseDocuments.EachRepurchaseDocumenttowhichSellerisa partyhas been dulyexecuted and delivered bySeller and constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms, except as such enforceability may be limited by Insolvency Laws and general principles of equity. The execution, delivery and performance by Seller of each Repurchase Document to which it is a party do not and will not (a) conflict with, result in a breach of, or constitute (with or without notice or lapse of time or both) a default under, any (i) Governing Document, Indebtedness, Guarantee Obligation or Contractual Obligation applicable to Seller or any of its properties or assets,(ii)RequirementsofLaw,or(iii)approval,consent,judgment,decree,orderordemandof any Governmental Authority, or (b) result in the creation of any Lien (other than Permitted Liens)onanyofthepropertiesorassetsofSeller.Allapprovals,authorizations,consents,orders, filings, notices or other actions of any Person or Governmental Authority required for the execution, delivery and performance by Seller of the Repurchase Documents to which it is a partyand the sale of and grant of a securityinterest in each Purchased Asset to Buyer, havebeen obtained, effected, waived or given and are in full force and effect. Unless notice is given to Buyer from time to time, there is no material litigation, proceeding or investigation pending or, to the Knowledge of Seller threatened, against Seller or any other Repurchase Party before any Governmental Authority(a) asserting the invalidityof anyRepurchase Document, (b) seeking to
prevent the consummation of any Transaction, or (c) seeking any determination or ruling thatcould reasonably be expected to have a Material Adverse Effect.
Section7.03Solvency. Neither Seller nor any other Repurchase Party is or has ever been thesubject of an InsolvencyProceeding. Seller and each otherRepurchasePartyis Solvent andthetransactionscontemplatedundertheterms oftheRepurchaseDocumentsdonotandwill not render Seller or any other Repurchase Party not Solvent. Seller is not entering into the Repurchase Documents or any Transaction with the intent to hinder, delay or defraud any creditor of Seller or any other Repurchase Party. Seller has received or will receive reasonably equivalent value for thePurchased Assets. Seller has adequatecapital for thenormal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated
business operations. Seller is generallyable to pay, and as of the date hereof is paying, its debts as they come due.
Section 7.04Taxes. Seller and each other Repurchase Party have filed all required federalincometaxreturnsandallothermaterialtaxreturns,domesticandforeign,requiredtobe filedbythemandhavepaidallmaterialtaxes(includingmortgagerecordingtaxes),assessments, fees, and other governmental charges payable bythem, or with respect to anyof their properties or assets, which have become due and payable, except taxes that are being contested in good faith by appropriate proceedings diligently conducted and for which appropriate reserves have beenestablishedinaccordancewithGAAP.SellerandeachotherRepurchasePartyhavepaid,or have provided adequate reserves for the payment of, all such taxes for all prior fiscal years and for the current fiscal year to date. There is no material action, suit, proceeding, investigation, auditorclaimrelatingtoanysuchtaxesnowpending,or,totheKnowledgeofSeller,threatened, by any Governmental Authority which is not being contested in good faith as provided above. Neither Seller nor any other Repurchase Partyhas entered into any agreement or waiver or been requested to enter into any agreement or waiver extending any statute of limitations relating to the payment or collection of taxes, or is aware of anycircumstances that would cause the taxable years or other taxable periods of Seller or any other Repurchase Party not to be subject to the normally applicable statute of limitations. No tax Liens (other than Permitted Liens) have been filed against any property or assets of Seller or any other Repurchase Party. Seller does not intend to treat any Transaction as being a “reportable transaction” as defined in Treasury Regulation Section 1.6011– 4. If Seller determines to take any action inconsistent with such intention, it will promptly notify Buyer, in which case Buyer may treat each Transaction as subject to TreasuryRegulation Section 301.6112–1 and will maintain the lists and other records required thereunder.
Section7.05True and Complete Disclosure. The information, reports, certificates, documents, financial statements, operating statements, forecasts, books, records, files, exhibits and schedules furnished by or on behalf of Seller, Guarantor and/or Pledgor to Buyer in connectionwiththeRepurchaseDocumentsandtheTransactions,whentakenasawhole,donot containanyuntruestatementofmaterialfactoromittostateanymaterialfactnecessarytomake the statements herein or therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of Seller, Guarantor and/or Pledgor to Buyer in connection with the Repurchase Documents and the Transactionswillbetrue,correctandcompleteinallmaterialrespects,orinthecaseof
projections, will be based on reasonable estimates prepared and presented in good faith, on the date as of which such information is stated or certified.
Section7.06CompliancewithLaws.Seller,Pledgor,Guarantorand,totheknowledge of each such party after due inquiry, each of their respective Affiliates have complied in all respects with all Requirements of Law, and no Purchased Asset contravenes any Requirementsof Law. None of Seller or Guarantor, nor any Subsidiaries of Seller or Guarantor, nor to the knowledge of Seller or Guarantor, no Affiliate of Seller or Guarantor (i) is in violation of any Sanctions or (ii) is a Sanctioned Target. The proceeds of anyTransaction have not been and will notbeused,directlyorindirectly,tofundanyoperationsin,financeanyinvestmentsoractivities inormakeanypaymentstoaSanctionedTargetorotherwiseinviolationofSanctions, Anti-Corruption Laws or Anti-MoneyLaundering Laws. Neither Seller nor, to theknowledge of Sellerafterdueinquiry,anyAffiliateofSeller(a)isa“broker”or“dealer”asdefinedin,orcould besubjecttoaliquidation proceeding under, the Securities Investor Protection Act of 1970, or
(b) is subject to regulation by any Governmental Authority limiting its ability to incur the RepurchaseObligations.SellerandallAffiliatesofSellerareincompliancewithall Anti-Corruption Laws. Neither Seller nor, to the knowledge of Seller after due inquiry, any Affiliate of Seller has made, offered, promised or authorized a payment of money or anything else of value (a) in order to assist in obtaining or retaining business for or with, or directing business to, any foreign official, foreign political party, party official or candidate for foreign political office, (b) to any foreign official, foreign political party, party official or candidate for foreign political office, or (c) with the intent to induce the recipient to misuse his or her official position to direct business wrongfully to Seller, any Affiliate of Seller or any other Person, in violation of any Anti-Corruption Law.
Section7.07CompliancewithERISA.Duringtheimmediatelyprecedingfive(5)year period, and in each case, except as would not reasonablybeexpected to haveaMaterial Adverse Effect, (a) neither a Reportable Event nor a failure to satisfy the “minimum funding standard” nor “an unpaid minimum required contribution” as defined in the Code or ERISA has occurred,
(b) no Plan has failed to comply with the applicable provisions of the Code and ERISA, (c) no termination of a Single Employer Plan has occurred resulting in any liability that has remained unfunded, and (d) no Lien in favor of the PBGC or a Plan has arisen, with respect to Seller, PledgororGuarantor.ThepresentvalueofallaccumulatedbenefitobligationsundereachSingle Employer Plan (based on the assumptions used for thepurposes of FASB AccountingStandards Codification Topic 715, Compensation — Retirement Benefits) relating to Seller, Guarantor, Pledgor or anyCommonlyControlled Entitydid not, as of the last annual valuation date prior to thedatehereof,exceedthevalueoftheassetsofsuchPlanallocabletosuchaccumulatedbenefit obligations, except as would not reasonably be expected to have a Material Adverse Effect. Neither Seller nor any Affiliate of Seller is currently subject to any liability for a complete or partial withdrawal from a Multiemployer Plan, except as would not reasonably be expected to have a Material Adverse Effect. Neither Seller, Pledgor, nor Guarantor provide any medical or health benefits to formeremployees otherthan as required bytheConsolidated Omnibus Budget Reconciliation Act, as amended, or similar state or local law. None of the assets of Seller, PledgororanyGuarantoraredeemedtobeplanassetswithinthemeaningof29C.F.R.
2510.3-101asmodifiedbySection3(42)ofERISA.Anybreachorfailuretosatisfyany provision of this Section 7.07shall be an “ERISA Event”.
Section7.08No Default or Internal Control Event. No Default or Event of Default exists. No Internal Control Event has occurred. Seller has delivered to Buyer all underlying servicing and subservicing agreements (or provided Buyer with access to a service, internet website or other system where Buyer can successfully access such agreements) with respect to the Purchased Assets, and, to Seller’s Knowledge, no default or event of default (however defined) exists thereunder.
Section 7.09Purchased Assets. Each Purchased Asset is an Eligible Asset. Each representation and warranty of Seller set forth in the Repurchase Documents (including in Schedule1applicabletosuchPurchasedAsset)andeachrepresentationandwarrantysetforthin theMortgageLoanDocumentswithrespecttoeachPurchasedAssetistrueandcorrectexceptas set forth on the related executed Confirmation. The review and inquiries made on behalf of Seller in connection with this Section 7.09have been made by Persons having the requisite expertise, Knowledge and background to verify such representations and warranties. Seller has complied with all requirements of the Custodial Agreement with respect to each Purchased Asset, including delivery to Custodian of all required Mortgage Loan Documents. Seller has no
Knowledge of any fact that could reasonably lead it to expect that any Purchased Asset will not be paid in full which has not been disclosed in writing to, and approved by, Buyer.
Section7.10Purchased Assets Acquired from Transferors. With respect to each Purchased AssetpurchasedbyortransferredtoSelleroranAffiliateofSellerfrom aTransferor,
(a) such Purchased Asset was acquired and transferred pursuant to a Purchase Agreement to Seller and to an Affiliate of Seller, if applicable, (b) such Transferor received reasonably equivalent value in consideration for the transfer of such Purchased Asset, (c) no such transfer was made for or on account of an antecedent debt owed by such Transferor to Seller or an Affiliate of Seller, (d) no such transfer is or may be voidable or subject to avoidance under the Bankruptcy Code, (e) if Seller acquired the Purchased Asset from an Affiliate, Seller shall have delivered to Buyer on or before the related Purchase Date either (i) an opinion of counsel regardingthetruesaleofthepurchaseofsuchAssetbySellerand,ifsuchAssetwasacquiredby Seller’sAffiliatefromanotherAffiliate,thetruesaleofthepurchaseoftheAssetbytheAffiliate of Seller from the Transferor Affiliate, which opinions shall be in form and substance satisfactory to Buyer or (ii) a Residual Pledge Agreement and Residual Pledgor Financing Statement with respect to any residual interest such Transferor may have in such Purchased Asset, provided, however, if a proposed Asset was acquired bySeller from a Transferor under a Purchase Agreement that was the subject of a true sale opinion or Residual Pledge Agreement previously delivered to and accepted by Buyer, then Seller shall deliver to Buyer an executed Supplemental Conveyance evidencing the transfer of the Asset from such Transferor to Seller pursuanttosuchPurchaseAgreementandawrittencertificationintheformofExhibitJattached hereto, (f) the representations and warranties made by such Transferor to Seller and/or such Affiliate in such Purchase Agreements are hereby incorporated herein mutatis mutandis and are hereby remade by Seller to Buyer on each date as of which they speak in such Purchase Agreement and (g) in the case of transfers including an Affiliate, the Purchase Agreement shall include the grant of a security interest to the assignee and permit the filing of a UCC financing
statement in favor of the assignee as secured party. To the extent Seller acquired the Purchased Asset from an Affiliate and if such Asset was acquired by Seller’s Affiliate from another Affiliate, Seller shall comply with the requirements of Section 6.02(m)and, to the extent Seller and/or an Affiliate of Seller has been granted a security interest in each such Purchased Asset, Seller shall have filed one or more UCC financing statements against the Transferor to perfect such security interest, assigned such financing statements to Buyer, filed such financing statement assignments and delivered copies of all such financing statements and such assignments to Buyer or Custodian.
Section 7.11Transfer and Security Interest. The Repurchase Documents constitute a valid and effective transfer to Buyer of all right, title and interest of Seller in, to and under all Purchased Assets, free and clear of any Liens (other than Permitted Liens), subject to the terms of this Agreement. With respect to the protective security interest granted by Seller in Section11.01,upon the delivery of the Confirmations and the Mortgage Loan Documents to Custodian, the execution and deliveryof the Controlled Account Agreement and, if applicable, the Account Control Agreement, and the filing of the UCC financing statements as provided herein, such securityinterestshallbeavalidfirstpriorityperfectedsecurityinteresttotheextentsuchsecurity interest can be perfected by possession, filing or control under the UCC, subject only to Permitted Liens. Upon receipt by Custodian of each Mortgage Loan Document required to be endorsed in blank by Seller and payment by Buyer of the Purchase Price for the related Purchased Asset, Buyer shall either own such Purchased Asset and the related Mortgage Loan Documents or have a valid first priority perfected security interest in such Mortgage Loan
Documents. The Purchased Assets constitute one or more of the following, as defined in the UCC: a general intangible, instrument, account, investment property, security, deposit account, financial asset, uncertificated security, securities account, securities entitlement and/or chattel paper. Seller has not sold, assigned, pledged, granted a security interest in, encumbered or otherwiseconveyed, and is not a partyto anyagreement to do so, anyof the Purchased Assets to anyPersonotherthanpursuanttotheRepurchaseDocuments.Sellerhasnotauthorizedthefiling of and is not aware of any UCC financing statements filed against Seller as debtor that include the Purchased Assets, other than any financing statement that has been terminated or filed pursuant to this Agreement.
Section7.12No Broker. Neither Seller nor any other Repurchase Partyhas dealt with anybroker, investment banker, agent or other Person, except for Buyer or an Affiliate of Buyer, who maybe entitled to anycommission or compensation in connection with anyTransaction.
Section7.13Interest Rate Protection Agreements. (a) Seller has entered into all Interest Rate Protection Agreements required under Section 8.09, (b) each such Interest Rate Protection Agreement is in full force and effect, (c) no termination event, default or event of default (however defined) exists thereunder, and (d) Seller has effectively assigned to Buyer all of Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement.
Section7.14 Separateness.SellerisincompliancewiththerequirementsofArticle9.
Section7.15Appraisal. An Appraisal of the related Underlying Mortgaged Property was conducted in connection with the origination of each Asset andsuch Appraisalsatisfiedthe
requirementsofFIRREAandwasundertakenconsistentwiththerequirementsoftheInteragency Appraisal and Evaluation Guidelines (2010-12) issued December 2010, as appropriate.
Section7.16 Anti-Money Laundering Laws and Anti-Corruption Laws. The operations of each of Seller and Guarantor are, and have been, conducted at all times in compliance with all applicable Anti-Money Laundering Laws and Anti-Corruption Laws. No litigation, regulatory or administrative proceedings of or before any court, tribunal or agency with respect to anyAnti-MoneyLaundering Laws or Anti-Corruption Lawshavebeenstarted or (tothebestofitsknowledgeandbelief)threatenedagainsteachofSellerandGuarantorortothe knowledge of Seller or Guarantor, any Affiliates of Seller or Guarantor.
Section7.17Sanctions. None of Seller, Guarantor, any Subsidiaries of Seller or Guarantorand,totheknowledgeofSellerorGuarantor,noAffiliateofSellerorGuarantor(a)is a Sanctioned Target, (b) is controlled by or is acting on behalf of a Sanctioned Target, or (c) to thebestknowledge ofSeller or Guarantor afterdueinquiry, isunderinvestigationforanalleged breach of Sanctions by a Governmental Authority that enforces Sanctions.
Section7.18Covered Fund. Seller is not, and is not directlycontrolled by, a Covered Fund that is in a Covered Fund Relationship.
Section7.19Beneficial Ownership Certification. The information included in each Beneficial Ownership Certification is true and correct in all respects.
ARTICLE 8.
COVENANTS OF SELLER
From the date hereof until the Repurchase Obligations are indefeasibly paid in full and the Repurchase Documents are terminated, Seller shall perform and observe the following covenants, whichshall (a) be givenindependent effect (so that if aparticular action orcondition is prohibited by any covenant, the fact that it would be permitted by an exception to or be otherwise within the limitations of another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists), and (b) apply to all Subsidiaries of Seller:
Section8.01Existence;GoverningDocuments;ConductofBusiness.Sellershall(a) preserve and maintain its legal existence, (b) qualify and remain qualified in good standing in each jurisdiction where the failure to be so qualified would have a Material Adverse Effect, (c) comply with its Governing Documents, including all special purpose entity provisions, and (d) not modify, amend or terminate its Governing Documents in any material respect without Buyer’s prior written consent. Seller shall (a) continue to engage in the same (and no other) general lines of business as presently conducted by it, (b) maintain and preserve all of its materialrights,privileges,licensesandfranchisesnecessaryfortheoperationofitsbusiness,and
(c) maintain Seller’s status as a qualified transferee, qualified institutional lender or qualified lender(howeverdefined)undertheMortgageLoanDocuments,ifapplicable.Sellershallnot(a) change its name, organizational number, tax identification number, fiscal year, method of accounting,identity,structureorjurisdictionoforganization(orhavemorethanonesuch
jurisdiction), move the location of its principal place of business and chief executive office (as defined in the UCC) from the location referred to in Section 7.01, without delivery of notice to Buyer, or (b) except as permitted by the terms of the Custodial Agreement, move, or affirmatively consent to Custodian moving, the Mortgage Loan Documents from the location thereof on the Closing Date, unless in each case Seller has given at least thirty (30) days prior notice to Buyer and has taken all actions required under the UCC to continue the first priority perfected security interest of Buyer in the Purchased Assets. Seller shall enter into each Transactionasprincipal,unlessBuyeragreesbeforeaTransactionthatSellermayenterintosuch Transaction as agent for a principal and under terms and conditions disclosed to Buyer.
Section8.02Compliance with Laws, Contractual Obligations and RepurchaseDocuments.SellershallcomplyinallmaterialrespectswithallRequirementsofLaw,including those relating to any Purchased Asset, and to the reporting and payment of taxes. No part of the proceeds of any Transaction shall be used for anypurpose that violates Regulation T, U or X of the Board of Governors of the Federal Reserve System. Seller shall maintain the Custodial Agreement and Controlled Account Agreement in full force and effect.
Section 8.03Protection of Buyer’s Interest in Purchased Assets. With respect toeach Purchased Asset, Seller shall take all action necessary or required by the Repurchase Documents, Mortgage Loan Documents or Requirements of Law, or requested by Buyer, to perfect,protectandmorefullyevidencethesecurityinterestgrantedinthePurchaseAgreements and Buyer’s ownership of and first priority perfected security interest in the Purchased Assets and related Mortgage Loan Documents, including executing or causing to be executed (a) such other instruments or notices as may be necessary or appropriate and filing and maintaining effective UCC financing statements, continuation statements and assignments and amendments thereto, and (b) all documents necessary to both collaterally and absolutely and unconditionally assign all rights (but none of the obligations) of Seller under each Purchase Agreement, in each case,asadditionalcollateralsecurityforthepaymentandperformanceofeachoftheRepurchase Obligations. Seller (or Servicer, on Seller’s behalf) shall use commercially reasonable efforts to
enforceitsrightspursuant to theMortgageLoanDocumentstocausetheUnderlyingObligorsto perform their obligations under the Mortgage Loan Documents. Seller shall (a) not assign, sell, transfer,pledge,hypothecate,grant,create,incur,assumeorsufferorpermittoexistanysecurity interest in or Lien (other than Permitted Liens) on any Purchased Asset to or in favor of any Person other than Buyer, (b) defend such Purchased Asset against, and take such action as is necessary to remove, any such Lien (other than a Permitted Lien), and (c) defend the right, title and interest of Buyer in and to all Purchased Assets against the claims and demands of all Personswhomsoever.Notwithstandingtheforegoing,(i)ifSellergrantsaLienonanyPurchased Asset in violation of this Section 8.03 or any other Repurchase Document, Seller shall be deemed to have simultaneously granted an equal and ratable Lien on such Purchased Asset in favorofBuyertotheextentsuchLienhasnotalreadybeengrantedtoBuyer;provided,thatsuch equal and ratable Lien shall not cure any resulting Event of Default, and (ii) to the extent any additional limited liability company is formed by a Division of Seller (and without prejudice to Sections 8.01and 9.01hereof), Seller shall cause any such Division LLC to assign, pledge and grant to Buyer, for no additional consideration, all of its assets, and shall cause any owner of each such Division LLC to pledge all of the Equity Interests and any rights in connection therewith of each such Division LLC to Buyer, for no additional consideration, in support of all
Repurchase Obligations in the same manner and to the same extent as the assignment, pledge and grant by Seller of all of Seller’s Assets hereunder, and in the same manner and to the same extent as the pledge by Pledgor of all of Pledgor’s right, title and interest in all of the Equity Interests of Seller and any rights in connection therewith, in each case pursuant to the Pledge Agreement. Seller shall not materially amend, modify, waive or terminate any provision of any Purchase Agreement relating to any Purchased Asset without the consent of Buyer. Seller shall not, or permit Servicer to, (i) extend, amend, waive, terminate, rescind, cancel, release or otherwisemodify(x)thematerialtermsofor(y)anycollateral,guarantyorindemnityfor,or(ii) exercise any material right or remedy of a holder (including all lending, corporate and voting rights, remedies, consents, approvals and waivers) of, any Purchased Asset or Mortgage Loan Document except as otherwise provided in Article 17.Seller shall not take any action to cause any Purchased Asset that is not evidenced by an instrument or chattel paper (as defined in the UCC) to be so evidenced. If a Purchased Asset becomes evidenced by an instrument or chattel paper, the same shall be immediately delivered to Custodian on behalf of Buyer, together with endorsements required by Buyer.
Section 8.04Actions of Seller Relating to Distributions, Indebtedness, GuaranteeObligations,ContractualObligationsandLiens.Sellershallnotdeclareormakeanypayment on account of, or set apart assets for, a sinking or similar fund for the purchase, redemption, defeasance, retirement or other acquisition of any Equity Interest of Seller, Guarantor or any Affiliate of Seller or Guarantor, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations ofSeller,GuarantororanyAffiliateofSellerorGuarantor;provided,that Sellermay declareandpaydividendsinaccordancewithitsGoverningDocumentsifnoDefaultorEventof Defaultexistsorwouldexistasaresultthereof.Sellershallnotcontract,create,incur,assumeor permittoexistanyIndebtedness,GuaranteeObligations,ContractualObligationsorInvestments, except,inthecaseofIndebtedness,ContractualObligationsorInvestmentsonly,totheextent(a) arising or existing under the Repurchase Documents, (b) incurred after the Closing Date to originate or acquire Assets or to provide funding with respect to Assets, (c) trade payables incurred the ordinary course of its business of originating, acquiring, owning, financing and disposing of Assets which are either (x) no more than ninety (90) days past due or, (y) to the extent anytrade payables are more than ninety(90) days past due, such trade payables (I) do not
exceed $300,000 in the aggregate, (II) are being contested in good faith and (III) for which adequate reserves are maintained, and (d) related to Interest Rate Protection Agreements to the extent required by Section 8.09or entered into in order to manage risks related to Assets. Seller shall not (A) contract, create, incur, assume, grant or permit to exist anyLien on or with respect to any of its property or assets (including the Purchased Assets and any other collateral pledged under the Repurchase Documents) of anykind (whether real or personal, tangible or intangible), whether now owned or hereafter acquired, except for Permitted Liens, or (B) except as provided in the preceding clause (a), grant, allow or enter into any agreement or arrangement with any Person (otherthan Buyer)that prohibits orrestricts orpurports to prohibit orrestrict thegranting of any Lien on any of the foregoing. Seller shall provide Buyer with written notice of any material amendments or modifications to Seller’s forms ofMortgage Loan Documents that were previously approved by Buyer under Section 6.02.
Section8.05 Financial Covenants.
(a) Seller shall cause Guarantor to comply with the Financial Covenants for each Test Period.
(b) Atalltimes,SellershallhavenoIndebtedness,GuaranteeObligations, Contractual Obligations or Contingent Liabilities except as permitted by Section 8.04.
Section 8.06Delivery of Income. Seller shall, pursuant to the terms of applicable Servicing Agreements and/or the related Servicer Acknowledgment Agreements, direct the UnderlyingObligors and all other applicable Persons (including anybank or financial institution holding any Income under the terms of the Mortgage Loan Documents) to deposit all Income payable to Seller as lender or holder under the terms of the Mortgage Loan Documents for the Purchased Assets to the General Servicing Account or the Servicer Account (or, to the extent specified in Section 8.09or as otherwise expressly provided in the Repurchase Documents, the Waterfall Account) on the daythe related payments are due, payable or required or permitted to be disbursed under the terms of the related Mortgage Loan Documents. To the extent Seller or anyAffiliate of Seller (other than Servicer) receives anyIncome directly, Seller or such Affiliate shallholdsuchIncomeintrustforBuyer,segregatedfromotherfundsofSelleranditsAffiliates, until delivered to the Servicer Account (or, in the case of Interest Rate Protection Agreements entered into by Seller, the Waterfall Account) in accordance with the terms hereof. Seller shall deposit, or cause to be deposited, such amounts into the Servicer Account (or, in the case of InterestRateProtectionAgreementsentered into by Seller, the Waterfall Account) within two
(2)BusinessDaysofreceiptthereof.SellershallcauseServicertodepositallIncomereceivedby Servicer (other than any amounts permitted to be retained by Servicer under the terms of the Repurchase Documents) in respect of the Purchased Assets directly into the General Servicing Account within two (2) Business Days of the receipt and identification thereof.Seller shall also cause Servicer to remit all Income (other than, if Trimont or Wells is acting as Servicer, the amounts permitted to be retained by Trimont or Wells, as applicable, under the terms of the Servicing Agreement) in the General Servicing Account to the Servicer Account within two (2) Business Days of the deposit or required deposit of funds into the General Servicing Accountand then to remit from the Servicer Account to the Waterfall Account within two (2) Business Days of thedeposit orrequired deposit ofsuchfunds into theServicerAccount (providedthat, if Trimont or Wells is acting as Servicer, then Trimont or Wells shall be permitted to remit such amounts to the Waterfall Account on a monthly basis on the date set forth in the Servicing Agreement for remittance of funds). In connection with each Principal Payment or prepayment underaPurchasedAsset,SellershallprovideorcausetobeprovidedtoBuyersufficientdetailto enable Buyer to identify the Purchased Asset to which such payment applies. If Seller receives any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for any
Purchased Assets, or otherwise in respect thereof, Seller shall accept the same as Buyer’s agent, hold thesame in trust forBuyerand immediatelydeliverthesametoBuyeroritsdesigneein the exact form received, together with duly executed instruments of transfer, stock powers or assignment in blank and such other documentation as Buyer shall reasonably request. Neither Seller nor any Servicer shall deposit or cause to be deposited to Waterfall Account cash or cash
proceedsotherthanIncomeorotherpaymentsrequiredtobedepositedthereinunderthe Repurchase Documents.
Section8.07Delivery of Financial Statements and Other Information. Seller shall deliver or cause to be delivered the following to Buyer, as soon as available and in any event within the time periods specified, each in a form acceptable to Buyer in its discretion:
(a) within sixty (60) days after the end of each of the first three (3) fiscal quarters of each fiscal year of Guarantor, (i) the unaudited balance sheets of Guarantor and its Consolidated Subsidiaries as at the end of such period, (ii) the related unaudited statements of operations, stockholder’s equity, income, retained earnings and cash flows for such period and the portion of the fiscal year through the end of such period, setting forth in each case in comparative form the figures from the previous year, and (iii) a Compliance Certificate;
(b) withinone-hundredandtwenty(120)daysaftertheendofeachfiscalyear of Guarantor, (A) the audited balance sheets of Guarantor and its Consolidated Subsidiaries as at the end of such fiscal year, (B) a Compliance Certificate, (C) the relatedstatementsofoperations,stockholder’sequity,income,retainedearningsandcash flows for such year, setting forth in each case in comparative form the figures for the previous year, (D) an opinion thereon of an independent certified public accountant of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said financial statements fairly present the financial condition and results of operations of Guarantor as at the end of and for such fiscal year in accordance with GAAP, (E) while Guarantor is a public company, any certification from such accountants required to bepubliclyfiled or, from and afterthetimeGuarantor is no longer a public company, (F) a certification from such accountants that, in making the examination necessarytherefor, no information was obtained ofanyDefault orEvent of Default except as specified therein, and (G) projections of Guarantor of the operating budget and cash flow budget of Guarantor for the following fiscal year;
(c) any management letter submitted to Seller or Guarantor by independent certified public accountants in connection with each annual orinterim audit ofthebooks andrecordsofSellerorGuarantormadebysuchaccountantsrelatingtointernalcontrols;
(d) with respect to each Purchased Asset and related Underlying Mortgaged Property serviced or sub-serviced by Seller or an Affiliate of Seller: (i) promptly after receipt by Seller, but no less frequently than once per calendar month, a report of the following: delinquency, loss experience, internal risk rating, surveillance, rent roll, occupancyandotherproperty-levelinformation,and(ii)withinten(10)daysafterreceipt or preparation thereof by Seller or any Servicer, remittance, servicing, securitization, exception and other reports, operating and financial statements of Underlying Obligors, and modifications or updates to the items contained in the Underwriting Package;
(e) within five (5)BusinessDaysafterthesameissentbySeller,allfinancial statements,reports,noticesandotherdocumentsthatSellersendstoholdersofitsEquity
Interests; provided, that, if such information is subject to a confidentiality agreement, then Buyer shall agree to keep such information confidential, or makes to or files with
any Governmental Authority, promptly after the delivery or filing thereof, and, with respect to Guarantor, all material reports, notices and other documents that Guarantor makes to or files with any Governmental Authority, promptly after the deliveryor filing thereof;
(f) subject to the Requirements of Law, any other material agreements, correspondence, documents or other information not included in the Underwriting Package which is related to Seller or the Purchased Assets, as soon as possible after the discovery thereof by Seller or any other Repurchase Party; and
(g) such other information regarding the financial condition, operations or business of Seller, Guarantor, any Consolidated Subsidiaries of Guarantor or any Underlying Obligor as Buyer may reasonably request.
Notwithstanding the foregoing, the requirement to deliver financial statements will be satisfiedatanysuchtimeassuchfinancialstatementsarepubliclypostedontheofficialwebsite of the Guarantor or appropriately filed with the United States Securities and Exchange Commission, so long as such financial statements are accessible byBuyer.
Section8.08Delivery of Notices. Seller shall promptlynotifyBuyer of the occurrence of any of the following of which Seller or anyother Repurchase Partyhas Knowledge, together with a certificate of a Responsible Officer of Seller setting forth details of such occurrence and anyaction Seller, Guarantor or Pledgor has taken or proposes to take with respect thereto:
(a) a Representation Breach other than an Approved Representation Exception;
(b) any of the following: (i) with respect to any Purchased Asset or related Underlying Mortgaged Property: material loss or damage, material licensing or permit issues, violation of Requirements of Law, discharge of or damage from Materials of Environmental Concern in violation of Environmental Laws or any other actual or expected event or change in circumstances that could reasonablybe expected to result in a default or material decline in value or cash flow, and (ii) with respect to Seller: violation of Requirements of Law (including but not limited to licensing laws), material decline in the value of Seller’s assets or properties, an Internal Control Event or other event or circumstance that could reasonably be expected to have a Material Adverse Effect;
(c) theexistenceofanyServicerEventofDefault,DefaultorEventofDefault or of any default under or related to a Purchased Asset, Mortgage Loan Document, Purchase Agreement or any Indebtedness, Guarantee Obligation or Contractual Obligation of Seller;
(d) theresignationorterminationofServicer(otherthanBuyeroranAffiliate of Buyer);
(e) the establishment of a rating by any Rating Agency applicable to Seller, Guarantoror anyAffiliateofSelleror Guarantor and anydowngradein or withdrawal of such rating once established; and
(f) the commencement of, settlement of or material judgment in any litigation, action, suit, arbitration, investigation or other legal or arbitrable proceedings before anyGovernmental Authoritythat (i) affects Seller or anyother Repurchase Party, any Purchased Asset, Underlying Mortgaged Property or the Pledged Collateral, (ii) questions or challenges the validity or enforceability of any Repurchase Document, Transaction, Pledged Collateral, Purchased Asset or Mortgage Loan Document, or (iii)
individually or in the aggregate, if adversely determined, could reasonably be likely to have a Material Adverse Effect.
Section8.09Hedging. Seller shall employat its expense ahedgingstrategyacceptable to Buyer in its discretion; provided, however, the hedging strategy may consist of a rate cap agreement put in place by Seller or the Underlying Obligor which is acceptable to Buyer in its discretion. In the event that an Underlying Obligor enters into any Interest Rate Protection Agreement(s) in connection with any Purchased Asset, Seller shall take such actions as Buyer deems reasonably necessary to perfect the security interest granted in each Interest Rate Protection Agreement pursuant to Section 11.01.
Section8.10Pledge Agreement. Seller shall not take any direct or indirect action inconsistent with the Pledge Agreement or the security interest granted thereunder to Buyer in the Pledged Collateral. Seller shall not permit anyadditional Persons to acquire EquityInterests in Seller other than the Equity Interests owned by Pledgor and pledged to Buyer on the Closing Date, and Seller shall not permit any sales, assignments, pledges or transfers of the Equity Interests in Seller other than to Buyer.
Section8.11 Anti-CorruptionLaws and Anti-Money Laundering Laws.
(a) The proceeds of any Transaction shall not be used, directly or indirectly, for any purpose which would breach anyapplicable Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions.
(b) Seller and Guarantor shall (i) conduct its business in compliance with applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions; and (ii) maintain policies and procedures designed to promote and achieve compliance with applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions.
(c) TherepurchaseofanyPurchasedAssetoranyotherpaymentduetoBuyer underthis Agreement or anyotherRepurchaseDocumentshall not befunded,directlyor indirectly,withproceedsderivedfromatransactionthatwouldbeprohibitedby Anti-CorruptionLaws,Anti-MoneyLaunderingLawsorSanctions,orinanymannerthat wouldcauseSellerorGuarantorortotheknowledgeofSellerorGuarantor,any
AffiliatesofSellerorGuarantortobeinbreachofanyAnti-CorruptionLaws, Anti-Money Laundering Laws or Sanctions.
(d) WithrespecttothePurchasedAssetsthatwereoriginatedbySellerorany Affiliate of Seller, Seller has conducted the customer identification and customer due diligence required in connection with the origination of each Purchased Asset for purposes of complying with all Anti-Money Laundering Laws, and will maintain sufficient information to identify each such customer for purposes of such Anti-Money Laundering Laws.
Section8.12Compliance with Sanctions. The proceeds of anyTransaction hereunder will not, directlyor indirectly, be used to lend, contribute, or otherwise bemade available: (i)to fund any activities or business of or with a Sanctioned Target or (ii) be used in anymanner that would be prohibited by Sanctions or would otherwise cause Buyer to be in breach of any Sanctions. Seller or Guarantor shall notifythe Buyer in writingnot more than three (3)Business Days after becoming aware of any breach of Section 7.17or this Section 8.12.
Section8.13CoveredFund.NeitherSellernoranyCoveredFundthatdirectlycontrols Seller shall enter into a Covered Fund Relationship during the term of the Facility.
Section 8.14Beneficial Ownership. If requested by Buyer, Seller shall provide a Beneficial Ownership Certification to theextent that Selleris a“legal entitycustomer”underthe BeneficialOwnershipRegulation,SellershallpromptlygivenoticetoBuyerofanychangeinthe information provided in anyBeneficial Ownership Certification that would result in a change to the list of beneficial owners identified therein and shall promptly deliver an updated Beneficial Ownership Certification to Buyer.
ARTICLE 9.
SINGLE-PURPOSEENTITY
Section9.01Covenants Applicable toSeller.Sellershall(a)ownnoassetsotherthan the assets specifically contemplated by this Agreement and any other Repurchase Document or as necessary or incidental to Seller’s performance under this Agreement and any other Repurchase Document and cash and any applicable hedging transactions, (b) not engage in any business unrelated to the origination, acquisition, ownership and sale of Assets, (c) except as permitted by Section 8.04, not incur any Indebtedness, Contractual Obligation, Guarantee Obligation or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (i) arising or existing under the Repurchase Documents, (ii) with respect to the Mortgage Loan Documents and the Retained Interests, (iii) commitments to make loans which may become Purchased Assets, (iv) trade payables incurred in the ordinary course of its business of acquiring, owning, financing and disposing of Assets which are either (x) no more than ninety (90) days past due or, (y) to the extent any trade payablesaremorethanninety(90)dayspastdue,suchtradepayables(A)donotexceed
$300,000 in the aggregate, (B) are being contested in good faith and (C) for which adequate reserves are maintained, and (v) as otherwise permitted under this Agreement, (d) not make any
loans or advances to anyAffiliate orthird-partyandshall not acquireobligations orsecurities of its Affiliates, in each case other than in connection with the origination or acquisition of Assets for purchase under the Repurchase Documents, (e) pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) onlyfrom its own assets, (f) complyin all material respects with the provisions of its Governing Documents, (g) do all things reasonably necessary to observe organizational formalities and to preserve its existence, (h) not amend, modify, waive provisions of or otherwise change its Governing Documents in any material respect without Buyer’s prior written consent, (i) maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted under GAAP or sound accounting principles, consistently applied, 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) and file its own tax returns(excepttotheextentconsolidationisrequiredorpermittedunderRequirementsofLaw)),
(j) hold itself at all times out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), correct any known misunderstanding regarding its status as a separateentity,conductbusinessinitsownname,andnotidentifyitselforanyofitsAffiliatesas a division of the other, (k) 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, (l) not engage in or suffer any Change of Control (without the prior written consent of Buyer), dissolution, winding up, liquidation, consolidation or merger in whole or in part, or
convey or transfer all or substantially all of its properties and assets to any Person (except as contemplated herein), (m) not commingle its funds or other assets with those of any Affiliate or any other Person, (n) maintain its properties and assets in such a manner that it would not be costlyordifficulttoidentify,segregateorascertainitspropertiesandassetsfromthoseofothers,
(o) maintain its properties, assets and accounts separate from those of anyAffiliate or anyother Person, (p) not adopt, file, or effect a Division, (q) not hold itself out to be responsible for the debts or obligations of any other Person, (r) be a single-member Delaware limited liability companyand wholly-owned byPledgor, (s) not, without the prior unanimous written consent of all of its Independent Directors or Independent Managers, take any Insolvency Action, (t) (i) have at all times at least one (1) Independent Director or Independent Manager and (ii) provide Buyer with up to date contact information for each such Independent Director or Independent Manager (as set forth on Annex 3as of the Closing Date) and a copyof the agreement pursuant to which such Independent Director or Independent Manager consents to and serves as an “Independent Director” or “Independent Manager” for Seller, (u) have Governing Documents thatprovide (i) Buyerbe given atleast five (5) Business Dayspriornoticeoftheremovaland/or replacement of any Independent Director or Independent Manager, together with the name and contact information of the replacement Independent Director or Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Director or Independent Manager, (ii) that, to the fullest extent permitted by Requirements of Law, and notwithstanding any duty otherwise existing at law or in equity, any Independent Director or Independent Manager shall consider only the interests of Seller, including its respective creditors, in acting or otherwise voting on the Insolvency Action and (iii) that, except for duties to Seller as set forth in the immediately preceding clause (u)(ii)(including duties to the holders
of the Equity Interests in Seller or Seller’s respective creditors solely to the extent of their respective economic interests in Seller, but excluding (x) all other interests of the holders of the EquityInterestsinSeller,(y)theinterestsofotherAffiliatesofSeller,and(z)theinterestsofany groupofAffiliatesofwhichSellerisapart),theIndependentDirectorsorIndependentManagers shall not have any fiduciary duties to the holders of the Equity Interests in Seller, any officer or any other Person bound by the Governing Documents (provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing), (v) have either (A) a member which owns no economic interest in the company, has signed the company’s limited liabilitycompanyagreementandhasnoobligationtomakecapitalcontributionstothecompany, or (B) one Person that is not a member of the company, that has signed its limited liability company agreement and that, under the terms of such limited liability company agreement becomes amemberofthecompanyimmediatelypriortotheresignationordissolutionofthelast remaining member of the company, (w) not enter into anytransaction with an AffiliateofSeller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction, (x) to the extent Seller uses any stationary, invoices or checks, use separate letterhead, invoices and checksbearingits ownname, (y) allocate fairlyand reasonably anyoverheadforsharedofficespaceandforservicesperformedbyanemployeeofanAffiliate,
(z) not pledge its assets to secure the obligations of anyotherPerson, and (aa)not form, acquire or hold any Subsidiary or own any Equity Interest in any other entity.
ARTICLE 10.
EVENTSOFDEFAULTANDREMEDIES
Section10.01EventsofDefault.Eachofthefollowingeventsshallbean“EventofDefault”:
(a) (i)Sellerfailstomakeapaymentof(y)RepurchasePrice(otherthanPrice Differential) or satisfyanyMargin Call, when due, whether byacceleration or otherwise,
(z) Price Differential within one (1) Business Dayof when dueor (ii)Selleror anyother Repurchase Party fails to make a payment of any other amount within two (2) Business Days of when due, in each case, under the Repurchase Documents;
(b) Seller or any other Repurchase Party fails to observe or perform in any material respect any covenant, duty, obligation or agreement of or term or condition applicable to such Person under the Repurchase Documents or the Mortgage Loan DocumentstowhichsuchPersonisaparty,and(exceptinthecaseofafailuretoperform or observe the Repurchase Obligations of Seller under Section 8.03and 18.08(a)) such failure continues unremedied for five (5) Business Days after the earlier of delivery of notice thereof from Buyer or the discovery of such failure by the applicable Person; provided, that, if such failure is susceptible to curebut cannot reasonablybecured within such initial cure period and Seller shall have commenced to cure such failure within such initial cure period and thereafter diligently and expeditiously proceeds to cure the same, theinitialcureperiodshallbeextendedbysuchamountoftimeasisreasonably
necessary for Seller to cure such failure, but in no event to exceed thirty (30) calendar days total (inclusive of the initial cure period);
(c) anyRepresentation Breach bySeller or anyotherRepurchaseParty(other thananApprovedRepresentationExceptionoraRepresentationBreachwithrespecttoa PurchasedAsset(including,withoutlimitation,assetforthinSection7.10(f)))existsand continues unremedied for ten (10) Business Days after the earlier of receipt of notice thereof from Buyer or the discoveryof such failure bythe applicable Person;
(d) SelleroranyotherRepurchasePartydefaultsbeyondanyapplicablegrace period in paying any amount or performing any obligation under any Indebtedness, Guarantee ObligationorContractualObligation with an outstanding amount of at least
$100,000, with respecttoSeller,andtheThresholdAmountwithrespecttoIndebtedness of any Repurchase Party other than Seller, and the effect of such default is to permit the acceleration thereof (regardless of whether such default is waived or such acceleration occurs);
(e) SelleroranyotherRepurchasePartydefaultsbeyondanyapplicablegrace period in paying any amount or performing any obligation due to Buyer or any Affiliate of Buyer under any other financing, Derivatives Contract, security or other agreement (other than under this Agreement) between Seller or any other Repurchase Party, on the one hand, and Buyer or any Affiliate of Buyer, on the other;
(f) anInsolvencyEventoccurswithrespecttoSelleroranyotherRepurchase
Party;
(g) aChangeofControloccurswithrespecttoSelleroranyotherRepurchase
PartywhichhasnotbeenconsentedtobyBuyer;
(h) a final, non-appealable judgment or judgments for the payment of money in excess of $100,000, with respect to Seller, and, in all other cases, the Threshold Amount, in the aggregate is entered against Seller or any other Repurchase Party by one ormoreGovernmentalAuthorities and thesameisnotsatisfied,discharged(orprovision has not been made for such discharge) or bonded, or a stay of execution thereof has not been procured, within thirty (30) days from the date of entrythereof;
(i) a Governmental Authority takes any action to (i) condemn, seize or appropriate, or assume custodyor control of, all or anysubstantialpart ofthepropertyof Seller or anyotherRepurchaseParty, (ii)displace themanagement of Seller or anyother
Repurchase Party or curtail its authority in the conduct of the business of Seller or any other Repurchase Party, (iii) terminate the activities of Seller or any other Repurchase Partyas contemplated bytheRepurchase Documents, or (iv) remove, limit or restrict the approval of Seller or any other Repurchase Party as an issuer, buyer or a seller of securities, and, in each case, such action is not discontinued or stayed within thirty (30) days;
(j) Seller or any other Repurchase Party makes a public disclosure or otherwise admits in writing that it is not Solvent or is not able or not willing to perform any of its obligations under the Repurchase Documents, Contractual Obligations, Guarantee Obligations, Capital Lease Obligations or Off-Balance Sheet Obligations;
(k) anyprovisionoftheRepurchaseDocuments,anyrightorremedyofBuyer or obligation, covenant, agreement or duty of Seller or any other Repurchase Party thereunder, or any Lien, security interest or control granted under or in connection with the Repurchase Documents, the Purchased Assets or the Pledged Collateral terminates, is declared null and void, ceases to be valid and effective, ceases to be the legal, valid, binding and enforceable obligation of Seller, any other Repurchase Party or any other Person,orthevalidity,effectiveness,bindingnatureorenforceabilitythereofiscontested, challenged, denied or repudiated by Seller, any other Repurchase Party or any other Person, in each case directly, indirectly, in whole or in part;
(l) Buyer ceases for any reason (other than the failure of Custodian to hold theMortgage Loan Documents in accordance withthetermsoftheCustodialAgreement and Requirements of Law) to have a valid and perfected first prioritysecurityinterest in any Purchased Asset or any Pledged Collateral;
(m) Seller or any other Repurchase Party is required to register as an “investment company” (as defined in the Investment CompanyAct) or the arrangements contemplated by the Repurchase Documents shall require registration of Seller or Guarantor as an “investment company”;
(n) Seller or any other Repurchase Party engages in any conduct or action where Buyer’s prior consent is required by any Repurchase Document and Seller or any applicable Repurchase Party fails to obtain such consent;
(o) Seller, any Servicer that is an Affiliate of Seller, or any other Affiliate of Seller fails to deposit all Income and other amounts actually received into the General Servicing Account, Servicer Account or Waterfall Account, as applicable, as required by Sections 8.06and 8.09and other provisions of this Agreement within the time period suchfundsarerequiredtobedepositedunderSections8.06and8.09andotherprovisions of this Agreement;
(p) Guarantor’s audited annual financial statements or the notes thereto or other opinions or conclusions stated therein are qualified or limited by reference to the status of Guarantor, Seller or Pledgor as a “going concern” or a reference of similar import, other than a qualification or limitation expressly related to Buyer’s rights in the Purchased Assets;
(q) [reserved];
(r) (i) any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan unless a prohibitedtransactionexemptionisavailablethereforortheliabilitythereforisnot
material to the Plan, (ii) a failure to satisfy the “minimum funding standard” or “an unpaidminimumrequiredcontribution”asdefinedintheCodeorERISA,whetherornot waived,hasoccurredwithrespecttoanyPlanoranyLieninfavorofthePBGCoraPlan (other than a Permitted Lien) shall arise on the assets of Seller, any other Repurchase
Party or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or toterminate, anySingleEmployerPlan,whichReportable Event or commencement of proceedings or appointment of atrusteeis, in the reasonable opinion of Buyer, likelyto result in thetermination ofsuchPlan forpurposes of Title IV of ERISA, unless no material liability to Seller, any other Repurchase Party or any Commonly Controlled Entity results, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA unless a prohibited transaction exemption is available therefor or the liability therefor is not material to the Plan, (v) Seller, any other Repurchase Party, anyof their Subsidiaries or anyCommonlyControlled Entityshall, or in the reasonable opinion of Buyer is likely to, incur any material liability in connection with a withdrawal from, or the insolvencyor reorganization of, anyMultiemployerPlan,
(vi) anyother similar event or conditionshall occur or exist with respect to aPlan which resultsintheincurrenceofmaterialliabilitybySeller,anyotherRepurchaseParty,anyof their Subsidiaries or any Commonly Controlled Entity or (vii) any ERISA Event occurs whichresultsintheincurrenceofmaterialliabilitybySeller,anyotherRepurchaseParty, any of their Subsidiaries or any Commonly Controlled Entity;
(s) [Reserved];
(t) anyFinancialCovenantisnotsatisfied;
(u) iftheServicerisSelleroranAffiliateofSeller,theoccurrenceofany Servicer Event of Default;
(v) theoccurrenceofanyotherEventofDefaultassetforthinthisAgreement or any other Repurchase Document; or
(w) Selleradopts,files,oreffectsaDivision.
Section 10.02 Remedies of Buyer as Owner of the Purchased Assets. If an Event of Default (other than an Event of Default under Section 10.01(f)) exists, Buyer shall give Seller notice of such Event of Default. At the option of Buyer, exercised by notice to Seller (which notice, for the avoidance of doubt, is not required with respect to an Event of Default under Section 10.01(f)and which option shall be deemed to be exercised, even if no notice is given, automatically and immediately upon the occurrence of an Event of Default under Section10.01(f)), the Repurchase Date for all Purchased Assets shall be deemed automatically and immediatelyto occur (the date on which such option is exercised or deemed to be exercised, the “AcceleratedRepurchaseDate”).IfBuyerexercisesorisdeemedtohaveexercisedtheforegoing option:
(a) AllRepurchaseObligationsshallbecomeimmediatelydueandpayableon and as of the Accelerated Repurchase Date.
(b) All amounts in the Waterfall Account, Servicer Account and Escrow Account, including any subaccounts of any of the foregoing, all Income paid after the Accelerated Repurchase Date and all escrows, reserves and similar accounts related to Purchased Assets (which escrows, reserves and other accounts, to the extent not already held by or within the control of Buyer, shall be turned over to Buyer within one (1) Business Dayofnoticeofsuch AcceleratedRepurchase Date)shall be retainedbyBuyer and applied in accordance with Article 5(subject, in the case of escrows, reserves and similar accounts, to the applicable terms of the related Mortgage Loan Documents).
(c) To the extent not already completed and recorded, Buyer may complete any assignments, allonges, endorsements, powers or other documents or instruments executed in blank and otherwise obtain physical possession of all Mortgage Loan Documents and other instruments, certificates and documents then held by Custodian
under the Custodial Agreement. Buyer may obtain physical possession of all Servicing Files,Servicing Agreements andother files and records ofSellerorServicer.Sellershall deliver to Buyer such assignments and other documents with respect thereto as Buyer shall request.
(d) Buyer may immediately, at any time, and from time to time, exercise eitherofthefollowingremedieswithrespecttoanyorallofthePurchasedAssets:(i)sell such Purchased Assets on a servicing-released basis and/or without providing any representationsandwarrantiesonan“as-iswhereis”basisinarecognizedmarketandby means of a public or private sale at such price or prices as Buyer accepts, and apply the net proceeds thereof in accordance with Article 5, or (ii) retain such Purchased Assets and give Seller credit against the Repurchase Price for such Purchased Assets (or if the amount of such credit exceeds the Repurchase Price for such Purchased Assets, to credit against Repurchase Obligations due and any other amounts then owing to Buyer by any other Person pursuant to any Repurchase Document, in such order and in such amounts as determined by Buyer), in an amount equal to the Market Value of such Purchased Assets. Until such time as Buyer exercises either such remedy with respect to a PurchasedAsset,BuyermayholdsuchPurchasedAssetforitsownaccountandretainall Income with respect thereto and applysuch Income in accordance with Article 5.
(e) The Parties agree that the Purchased Assets are of such a nature that they may decline rapidly in value, and may not have a ready or liquid market. Accordingly, Buyer shall not be required to sell more than one Purchased Asset on a particular Business Day, to the same purchaser or in the same manner. Buyer may determine whether, when and in what manner a Purchased Asset shall be sold, it being agreed that bothagoodfaithpublicandagoodfaithprivatesaleshallbedeemedtobecommercially reasonable. Buyer shall not be required to give notice to Seller or anyother Person prior to exercising any remedy in respect of an Event of Default. If no prior notice is given, Buyer shall give notice to Seller of the remedies exercised byBuyer promptlythereafter.
(f) Sellershall beliabletoBuyerfor(i)anyamountbywhichtheRepurchase Obligations due to Buyer exceed theaggregateof thenet proceeds and credits referred to intheprecedingclause(d),(ii)theamountofallactualout-of-pocketexpenses,including reasonablelegal fees and expenses, actuallyincurred byBuyer in connection with or as a consequence of an Event of Default, (iii) any costs and losses payable under Section12.04, and (iv) any other actual loss, damage, cost or expense resulting from the occurrence of an Event of Default.
(g) Buyer shall be entitled to an injunction, an order of specific performance orotherequitablerelieftocompelSellertofulfillanyofitsobligations assetforthinthe Repurchase Documents, including this Article 10, if Seller fails or refuses to perform its obligations as set forth herein or therein.
(h) Seller hereby appoints Buyer as attorney-in-fact of Seller for purposes of carrying out the Buyer’s rights and remedies under the Repurchase Documents after the occurrence and during the continuance of an Event of Default, including executing, endorsing and recording any instruments or documents and taking anyother actions that Buyer deems necessaryor advisable to accomplish such purposes, which appointment is coupled with an interest and is irrevocable.
(i) Buyer may, without prior notice to Seller, exercise anyor all of its set-off rights including those set forth in Section 18.17and in anyother Repurchase Document. This Section 10.02(i)shall be without prejudice and in addition to any right of set-off,
combination of accounts, Lien or other rights to which Buyer is at any time otherwise entitled.
(j) In addition to all other rights and remedies available to Buyer under the RepurchaseDocumentsandRequirementsofLaw,Buyershallhavetherighttoterminate all Transactions and this Agreement after the occurrence and during the continuance ofan Event of Default.
(k) All rights and remedies of Buyer under the Repurchase Documents, including those set forth in Section 18.17, are cumulative and not exclusive of anyother rights or remedies that Buyermayhave and maybe exercised at anytimewhenanEvent of Default exists. Such rights and remedies may be enforced without prior judicial process orhearing.Seller agrees thatnonjudicial remedies are consistent with theusages of the trade, are responsive to commercial necessity and are the result of a bargain at arm’s-length. Seller hereby expressly waives any defenses Seller might have to require Buyer to enforce its rights by judicial process or otherwise arising from the use of nonjudicial process, disposition of any or all of the Purchased Assets, or any other election of remedies.
ARTICLE 11.
SECURITY INTEREST
Section 11.01 Grant. Buyer and Seller intend that all Transactions shall be sales to Buyer of the Purchased Assets and not loans from Buyer to Seller secured by the Purchased Assets.However,topreserveandprotectBuyer’srightswithrespecttothePurchasedAssetsand undertheRepurchaseDocumentsifanyGovernmentalAuthorityrecharacterizesanyTransaction withrespecttoaPurchasedAssetasotherthanasale,andassecurityforSeller’sperformanceof the RepurchaseObligations, Seller herebygrants to Buyer apresent Lien on and securityinterest in all of the right, title and interest of Seller in, to and under (i) the Purchased Assets (which for this purpose shall be deemed to include the items described in the provisoin the definition thereof), and (ii) the transfer of the Purchased Assets to Buyer shall be deemed to constitute and confirm such grant, to secure the payment and performance of the Repurchase Obligations (including the obligation of Seller to pay the Repurchase Price, or if the related Transaction is recharacterized as a loan, to repay such loan for the Repurchase Price). Seller hereby grants to Buyer a present Lien on and security interest in all right, title and interest of Seller in, to and under the Waterfall Account and all amounts on deposit in the foregoing account to secure the payment and performance of the Repurchase Obligations.
Section11.02EffectofGrant.IfanycircumstancedescribedinSection11.01occurs,
(a) this Agreement shall also be deemed to be a security agreement as defined in the UCC, (b) Buyer shall have all of the rights and remedies provided to a secured party by Requirements of Law (including the rights and remedies of a secured partyunder the UCC and the right to set off anymutualdebtandclaim)andunderanyotheragreementbetweenBuyerandSeller,(c)without limiting the generality of the foregoing, Buyer shall be entitled to set off the proceeds of the liquidation of the Purchased Assets against all of the Repurchase Obligations, without prejudice to Buyer’s right to recover any deficiency, (d) the possession by Buyer or any of its agents, including Custodian, of the Mortgage Loan Documents, the Purchased Assets and such other items of property as constitute instruments, money, negotiable documents, securities or chattel paper shall be deemed to be possession by the secured party for purposes of perfecting such securityinterestundertheUCCandRequirementsofLaw,and(e)notificationstoPersons(other than Buyer) holding such property, and acknowledgments, receipts or confirmations from Persons (other than Buyer) holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents of the secured party for the purpose of perfecting such security interest under the UCC and Requirements of Law. The assignment, pledge and grant of thesecurityinterest contained herein shall be, and Seller hereby represents and warrants to Buyer that it is, a first priority perfected securityinterest. Seller herebyauthorizes Buyer to file a UCC financingstatement against Seller thatdescribesthecollateralas“allassetsofdebtor,whethernowownedorhereafteracquired”or other words of similar import. For the avoidance of doubt, (x) each Purchased Asset secures the Repurchase Obligations of Seller with respect to all other Transactions and all other Purchased Assets, including any Purchased Assets that are junior in priority to the Purchased Asset in question, and (y) if an Event ofDefault exists, noPurchasedAsset will bereleasedfromBuyer’s Lien or transferred to Seller until the Repurchase Obligations are indefeasibly paid in full. Notwithstanding the foregoing, the Repurchase Obligations shall be full recourse to Seller.
Section11.03 Seller to Remain Liable. The grant of a security interest under this Article 11shall not constitute or result in the creation or assumption by Buyer of any Retained InterestorotherobligationofSelleroranyotherPersoninconnectionwithanyPurchasedAsset,
whetherornotBuyerexercisesanyrightwithrespectthereto.Sellershallremainliableunderthe Purchased Assets and Mortgage Loan Documents to perform all of Seller’s duties and obligations thereunder to the same extent as if the Repurchase Documents had not been executed.
Section 11.04 Waiver of Certain Laws. Seller agrees, to the extent permitted by RequirementsofLaw,thatneitheritnoranyoneclaimingthroughorunderitwillsetup,claimor seek to takeadvantage of anyappraisement, valuation, stay, extension or redemption law now or hereafterinforceinanylocalitywhereanyPurchasedAssetsmaybesituatedinordertoprevent, 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, herebywaives, to the full extent that it maybe lawful so to do, thebenefit of all such laws and any and all right to have any of the properties or assets constituting the Purchased Assets marshaled upon any such sale, and agrees that Buyer or any court having jurisdiction to foreclose the security interests granted in this Agreement may sell the Purchased Assets as an entiretyor in such parcels as Buyer or such court maydetermine.
ARTICLE 12.
BENCHMARKREPLACEMENT;CONFORMINGCHANGES;INCREASEDCOSTS; CAPITAL ADEQUACY
Section12.01BenchmarkReplacement;MarketDisruption.
(a) BenchmarkReplacement.Notwithstandinganythingtothecontraryherein or in any other Repurchase Document, with respect to any Transaction, if a Benchmark TransitionEventanditsrelatedBenchmarkReplacementDatehaveoccurredpriortoany setting of the applicable then-current Benchmark, then the Benchmark Replacement will replace such Benchmark with respect to each affected Transaction for all purposes hereunder or under anyRepurchase Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Repurchase Document.
(b) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, Buyer will havethe right to makeConformingChanges from timeto timeand,notwithstanding anything to the contrary herein or in any other Repurchase Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of Seller or anyother partyto this Agreement or anyother Repurchase Document.
(c) Notices; Standards for Decisions and Determinations. Buyer will notify Seller of (i) the implementation of any Benchmark Replacement, and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoptionorimplementationofaBenchmarkReplacement.Inexercisingitsrightsand
remedies under this Section 12.01, Buyer shall treat Seller in a manner that is substantially similar to the manner it treats other similar situated sellers in facilities with substantiallysimilar assets. Anydetermination, decision or election that maybe made by BuyerpursuanttothisSection12.01,includinganydeterminationwithrespecttoatenor, 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 or any selection, will be conclusive and binding absent manifest error and may be made in its sole discretion and withoutconsentfromSelleroranyotherpartytothisAgreementoranyotherRepurchase Document.
(d) Market Disruption. Notwithstanding the foregoing, if prior to anyPricing Period, Buyer determines that, by reason of circumstances affecting the relevant market (other than a Benchmark Transition Event), adequate and reasonable means do not exist for ascertaining Term SOFR for such Pricing Period, Buyer shall give prompt notice thereoftoSeller,whereuponthePricingRateforsuchPricingPeriodwithrespecttoeach Transaction based on Term SOFR, and for all subsequent Pricing Periods for Transactions based on Term SOFR until suchnoticehas been withdrawn byBuyer,shall be the sum of (i) an alternate benchmark rate that has been selected by Buyer, (ii) the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by Buyer and
(iii)theapplicablePricingMargin.
Section12.02 Initial Benchmark Conforming Changes. In connection with the use or administration of anyBenchmark, Buyer will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Repurchase Document, any amendments implementing such Conforming Changes will become effective without anyfurther action or consent of Seller or anyother partyto this Agreement or anyother Repurchase Document.BuyerwillnotifySelleroftheeffectivenessofanyConformingChanges in connection with the use or administration of any Benchmark. In exercising its rights and remedies under this Section 12.02, Buyer shall treat Seller in a manner that is substantially similar to the manner it treats other similarsituatedsellers in facilities withsubstantiallysimilar assets.
Section12.03Illegality.IftheadoptionoforanychangeinanyRequirementsofLawor in the interpretation or application thereof after the date hereof shall make it unlawful for Buyer to effect or continue Transactions as contemplated by the Repurchase Documents, (a)any commitment of Buyer hereunder to enter into new Transactions shall be terminated and the FacilityTermination Date shall be deemed to have occurred, (b) if required bysuch adoption or change,the Pricing Rate shall be the sum of (i) an alternate benchmark rate that has been
selected by Buyer, (ii) the spread adjustment, or method for calculating or determining such spread adjustment (which maybe a positive or negative value or zero) that has been selected by Buyerand(iii)theapplicablePricingMargin,and(c)ifrequiredbysuchadoptionorchange,the Facility Termination Date shall be deemed to have occurred.
Section12.04 Breakfunding.In the event of (a)the failure by Seller to terminate any TransactionafterSellerhasgivenanoticeofterminationpursuanttoSection3.05,(b)any
payment to Buyer on account of the outstanding Repurchase Price, including a payment made pursuant to Section3.05but excluding a payment made pursuant to Section5.02, on any day otherthanaRemittanceDate,(c)anyfailurebySellertosellEligibleAssetstoBuyerafterSeller has notified Buyer of a proposed Transaction and Buyer has agreed to purchase such Eligible Assets in accordance with this Agreement, or (d)any redetermination of the Pricing Rate based on a Benchmark Replacement for any reason on a day that is not the last dayof the then-current PricingPeriod,SellershallcompensateBuyerforthecostandexpenseattributabletosuchevent; provided, that Buyer treats Seller in a manner that is substantially similar to the manner it treats othersimilarlysituatedsellersinfacilitieswithsubstantiallysimilarassets.AcertificateofBuyer settingforthanyamountoramountsthatBuyerisentitledtoreceivepursuanttothis Section12.04shallbedeliveredtoSellerandshallbeconclusivetotheextentcalculatedingood faith and absent manifest error. Seller shall pay Buyer the amount shown as due on any such certificate within ten (10) days after receipt thereof.
Section 12.05 Increased Costs. If the adoption of any Regulatory Change or in the interpretation or application thereof by any Governmental Authority or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority having jurisdiction over Buyer made after the date of this Agreement (a) shall subject Buyer to any Taxes (other than (i) Indemnified Taxes, (ii) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (iii) Connection IncomeTaxes)withrespecttotheRepurchaseDocuments,anyPurchasedAsset,anyTransaction or the Pledged Collateral, (b) shall impose, modify or hold applicable any reserve (including pursuant to regulations issued from time to time by the Board of Governors of the Federal Reserve System of the United States for determining the maximum reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement) with respect to eurocurrencyfunding (currentlyreferred to as “Eurocurrencyliabilities” in Regulation D of the Board of Governors of the Federal Reserve System of the United States, as amended andineffectfromtimetotime)),specialdeposit,compulsoryloanorsimilarrequirementagainst assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of Buyer, or (c) shall impose on Buyer any other condition (other than Taxes); and the result of any of the preceding clauses (a), (b)and (c)is to increase the cost to Buyer, by an amount that Buyer deems to be material, of entering into, continuing or maintaining Transactions, or to reduce any amount receivable under the Repurchase Documents in respect thereof, then, in any such case, Seller shall pay to Buyer within ten (10) Business Days after demand such additional amount or amounts as reasonably necessary to fully compensate Buyer for such increased cost or reduced amount receivable.
Section12.06 Capital Adequacy. If Buyer determines that the adoption of any Regulatory Change regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer 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
hasorwouldhavetheeffectofreducingtherateofreturnonBuyer’scapitalasaconsequenceof this Agreement or its obligations under the Transactions hereunder to a level below that which Buyer could have achieved but for such Regulatory Change (taking into consideration Buyer’s policieswithrespecttocapitaladequacy),thenfromtimetotimeSellershallpromptlyupon
demandpayto Buyersuch additionalamountoramountsaswillcompensateBuyerforanysuch reduction suffered; provided, however, Buyer shall treat Seller in a manner that is substantially similar to the manner it treats other similarly situated sellers in facilities with substantially similar assets.
Section12.07WithholdingTaxes.
(a) Any and all payments by or on account of any obligation of Seller under anyRepurchaseDocumentshallbemadewithoutdeductionorwithholdingforany Taxes, except as required by Requirements of Law. If any Requirements of Law require the deduction or withholding of any Tax from any such payment, then Seller shall make (or cause to be made) such deduction or withholding and shall timelypay(or cause to be timelypaid)thefullamountdeductedorwithheldtotherelevantGovernmentalAuthority inaccordancewithRequirementsofLawand,ifsuchTaxisanIndemnifiedTax,thenthe sumpayableshallbeincreasedbySellerasnecessarysothataftersuchdeductionor withholding has been made (including such deductions and withholdings applicable toadditional sums payable under this Section 12.07) Buyer receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) SellershalltimelypayanyOtherTaxestotherelevantGovernmental Authority in accordance with Requirements of Law.
(c) Seller shall indemnify Buyer, within ten (10) Business Days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section12.07)paid by Buyer or required to be withheld or deducted from a payment to Buyer, 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. A certificate as to the amount of such payment or liability delivered to Seller by Buyer shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Taxes by Seller to a Governmental Authority pursuant to this Section 12.07, Seller shall deliver to Buyer the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copyof the return reporting such payment or other evidence of such payment reasonably satisfactory to Buyer.
(e) If Buyer is entitled to an exemption fromor reductionof withholdingTax with respect to payments made under any Repurchase Document, Buyer shall deliver to Seller, at the time or times reasonably requested by Seller, such properly completed and executed documentation reasonably requested by Seller as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, Buyer, if reasonably requested by Seller, shall deliver such other documentation prescribed by RequirementsofLaworreasonablyrequestedbySelleraswillenableSellertodetermine whether or not Buyer is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences,
the completion, execution and submission of such documentation (other than such documentation set forth in Section 12.07(e)(i)(A), Section 12.07(e)(i)(B), Section12.07(e)(i)(C)and Section 12.07(e)(i)(D)below) shall not be required if in Buyer’s
reasonable judgment such completion, execution or submission would subject Buyer to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of Buyer.
(i) Without limiting the generality of the foregoing, in the event that Seller is a U.S. Person,
(A) if Buyer is a U.S. Person, it shall deliver to Seller on or prior to the date on which Buyer becomes a Party under this Agreement (and from time to time thereafter upon the reasonable request of Seller), executedoriginalsofIRSFormW-9certifyingthatBuyeris exemptfrom
U.S.federalbackupwithholdingtax;
(B) if Buyer is a Foreign Buyer, it shall, to the extent it is legally entitled to do so, deliver to Seller (in such number of copies as shall be requested by Seller) on or prior to the date on which Buyer becomes a Party under this Agreement (and from time to time thereafter upon the reasonable request of Seller), whichever of the following is applicable:
(I) in the case of aForeign Buyer claimingthe benefits of an income tax treaty to which the United States is a party, (x) with respect to payments of interest under any Repurchase Document, executedoriginals of IRS Form W-8BEN or IRS Form W-8BEN-E (as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest”articleofsuchtaxtreatyand(y)withrespecttoanyother applicable payments under any Repurchase Document, IRS Form W-8BEN or IRS Form W-8BEN-E (as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuanttothe“businessprofits”or“otherincome”articleofsuch tax treaty;
(II) executedoriginalsofIRSFormW-8ECI;
(III) inthecaseofaForeignBuyerclaimingthebenefits of the exemption for portfolio interest under Section 881(c) of the Code,(x)acertificatetotheeffectthatsuchForeignBuyerisnota “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” describedinSection881(c)(3)(C)oftheCode(a“U.S.Tax
Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E (as applicable); or
(IV) to the extent a Foreign Buyer is not the beneficial owner, executed originals ofIRSFormW-8IMY,accompaniedby IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a
U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certificationdocuments from eachbeneficialowner,asapplicable; providedthatiftheForeignBuyerisapartnershipandoneormore direct or indirect partners of such Foreign Buyer are claiming the portfoliointerestexemption,suchForeignBuyermayprovidea
U.S. TaxComplianceCertificateonbehalfofeachsuchdirectand indirect partner;
(C) if Buyer is a Foreign Buyer, it shall, to the extent it is legally entitled to do so, deliver to Seller (in such number of copies as shall be requested by Seller) on or prior to the date on which Buyer becomes a Party under this Agreement (and from time to time thereafter upon the reasonable request of Seller), executed originals of any other formprescribed byapplicablelaw as abasis 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 Buyer under any Repurchase Document would be subject to U.S. federal withholding Tax imposed by FATCA if Buyer were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), Buyer shall deliver to Seller at the time or times prescribed by law and at such time or times reasonably requested by Seller such documentation prescribed by applicable law (includingasprescribedbySection1471(b)(3)(C)(i)oftheCode)andsuch additional documentation reasonably requested by Seller as may be necessary for Seller to comply with its obligations under FATCA and to determine that Buyer has complied with Buyer’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.
(f) Buyer agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptlynotifySeller in writing of its legal inabilityto do so.
(g) If any Party determines, in its sole discretion exercised in good faith, that ithasreceived arefund ofanyTaxes as towhich it hasbeenindemnifiedpursuanttothis
Section 12.07(including by the payment of additional amounts pursuant to this Section12.07), it shall payto the indemnifyingpartyan amount equal to such refund (but onlyto the extent of indemnity payments made under this Section 12.07with respect to theTaxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authoritywith respect to such refund). Such indemnifyingparty, upon the request of such indemnified party, shall repayto such indemnified partythe amount paid over pursuant to this Section 12.07(g)(plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anythingtothecontraryinthisSection12.07(g),innoeventwilltheindemnifiedpartybe requiredtopayanyamounttoanindemnifyingpartypursuanttothisSection12.07(g)the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwiseimposedandtheindemnificationpaymentsoradditionalamountsgivingriseto such refund had never been paid. This Section 12.07(g)shall not be construed to require anyindemnifiedpartytomakeavailableitsTaxreturns(oranyotherinformationrelating to its Taxes that it deems confidential) to the indemnifying partyor anyother Person.
Section 12.08 Payment and Survival of Repurchase Obligations. Buyer may within twelve (12) months of the events under Sections 12.05, 12.06and 12.07or at any time with respect to the other events under this Article 12, send Seller a notice showing the calculation of any amounts payable pursuant to this Article 12, and Seller shall pay such amounts to Buyer within ten (10) Business Days after Seller receives such notice. The obligations of Seller under this Article 12shall apply to Buyer, its successors and assigns and Participants and survive the terminationoftheRepurchaseDocumentsandtheindefeasiblepaymentinfulloftheRepurchase Obligations.
ARTICLE 13.
INDEMNITYANDEXPENSES
Section13.01Indemnity.
(a) Sellershallrelease,defend,indemnifyandholdharmlessBuyer,Affiliates of Buyer and its and their respectiveofficers,directors,shareholders,partners,members, owners, employees, agents, attorneys, Affiliates and advisors (each an “IndemnifiedPerson” and collectively the “Indemnified Persons”), against, and shall hold each Indemnified Person harmless, on an after-Tax basis, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, fees, costs, expenses (including reasonablelegal fees, charges, anddisbursements of anycounsel for any such Indemnified Person and expenses), penalties or fines of any kind that may be imposed on, incurred by or asserted against any such Indemnified Person (collectively, the “IndemnifiedAmounts”) in anywayrelating to, arisingout ofor resulting from orin connectionwith(i)theRepurchaseDocuments,theMortgageLoanDocuments,the
Purchased Assets, the Pledged Collateral, the Transactions, any Underlying Mortgaged Property or related property, or any action taken or omitted to be taken by any Indemnified Person in connection with or under any of the foregoing, or any transaction contemplated hereby or thereby, or any amendment, supplement or modification of, or anywaiver or consent under or in respect ofanyRepurchaseDocument, anyTransaction, any Purchased Asset, any Mortgage Loan Document or any Pledged Collateral, (ii) any claims, actions or damages by an Underlying Obligor or lessee with respect to a Purchased Asset, (iii) any violations or alleged violation of, non–compliance with or liability under Requirements of Law, (iv) ownership of, Liens on, securityinterests in or the exercise of rights or remedies under any of the items referred to in the preceding clause (i), (v) any accident, injury to or death of any Person or loss of or damage to property occurring in, on or about any Underlying Mortgaged Property or on the adjoining sidewalks, curbs, parking areas, streets or ways, (vi) any use, nonuse or condition in, on or about, or possession, alteration, repair, operation, maintenance or management of, any Underlying Mortgaged Property or on the adjoining sidewalks, curbs, parking areas, streets or ways, (vii) any failure by Seller or any other Repurchase Party to perform or comply with any Repurchase Document, Mortgage Loan Document or Purchased Asset, (viii) performance of any labor or services or the furnishing of any materials or other property in respect of any Underlying Mortgaged Property or Purchased Asset, (ix) any claim by brokers, finders or similar Persons claiming to be entitled to a commission in connection with any lease or other transaction involving any RepurchaseDocument,PurchasedAssetorUnderlyingMortgagedProperty,(x)anytaxes attributable to the execution, delivery, filing or recording of any Repurchase Document, Mortgage Loan Document or anymemorandum of anyof the foregoing, (xi) anyLien or
claim arising on or against any Purchased Asset or related Underlying Mortgaged Property under any Requirements of Law or any liability asserted against Buyer or any Indemnified Person with respect thereto, (xii) (1) a past, present or future violation or alleged violation of any Environmental Laws in connection with any property owned or leased by Seller or any Underlying Mortgaged Property by any Person or other source, whether related or unrelated to Seller or anyUnderlyingObligor, (2) anypresence of any Materials of Environmental Concern in, on, within, above, under, near, affecting or emanating from any Underlying Mortgaged Property, (3) the failure to timely perform anyRemedialWork,(4)anypast,presentorfutureactivitybyanyPersonorothersource, whether such Person or source is related or unrelated to Seller oranyUnderlyingObligor in connection with any actual, proposed or threatened use, treatment, storage, holding, existence,dispositionorotherrelease,generation,production,manufacturing,processing, refining,control,management,abatement,removal,handling,transferortransportationto or from any Underlying Mortgaged Propertyof anyMaterials of Environmental Concern atanytimelocated in,under,on,aboveoraffectinganyUnderlyingMortgagedProperty,
(5) anypast,present or future actualRelease (whetherintentionalorunintentional,direct orindirect, foreseeableorunforeseeable)to,from,on,within,in,under,nearoraffecting any Underlying Mortgaged Property by any Person or other source, whether related or unrelated to Seller or any Underlying Obligor, (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Lien on any Underlying Mortgaged Property with regard to, or as a result of, any Materials of Environmental Concern or pursuanttoany EnvironmentalLaw,or(7)any misrepresentationorfailureto perform
any obligations pursuant to any Repurchase Document or Mortgage Loan Document relating to environmental matters in any way, (xiii) [reserved], (xiv) any Servicing Fee, Sub-Servicing Fee or any other fee, indemnity, cost, advance, expense, amount or liability under any Servicing Agreement or Sub-Servicing Agreement, or (xv) Seller’s conduct, activities, actions and/or inactions in connection with, relating to or arising out of any of the foregoing clauses of this Section 13.01, that, in each case, results from anything whatsoeverotherthan anyIndemnifiedPerson’sgrossnegligenceorintentional misconduct,asdeterminedbyacourtofcompetentjurisdictionpursuanttoafinal, non–appealable judgment. In any suit, proceeding or action brought by an Indemnified Person in connection with any Purchased Asset for any sum owing thereunder, or to enforce any provisions of any Purchased Asset, Seller shall defend, indemnify and hold such Indemnified Personharmless from and against all expense, loss ordamagesuffered by reason of any defense, setoff, counterclaim, recoupment or reduction of liability whatsoever of the account debtor or Underlying Obligor arisingout of abreach bySeller of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to or in favor of such account debtor or Underlying Obligor from Seller. In the case of an investigation, litigation or other proceeding to which the indemnityin this Section 13.01applies, such indemnityshall be effective whether ornot suchinvestigation,litigationorproceedingisbroughtbySeller,anIndemnifiedPersonor any other Person or any Indemnified Person is otherwise a party thereto and whether or not any Transaction is entered into. This Section 13.01(a) shall not applywith respect to Taxes other than any Taxes that represent liability, obligations, losses, damages etc. arising from any non-Tax claim.
(b) If for any reason the indemnification provided in this Section 13.01is unavailable to the Indemnified Person or is insufficient to hold an Indemnified Person harmless, even though such Indemnified Person is entitled to indemnification under the
express terms hereof, then Seller shall contribute to the amount paid or payable by such Indemnified Person as a result ofsuch loss, claim,damage orliabilityin suchproportion as is appropriate to reflect the relative benefits received by such Indemnified Person on the one hand and Seller on the other hand, the relative fault of such Indemnified Person, and any other relevant equitable considerations.
(c) An Indemnified Person mayat anytime send Seller anoticespecifyingin reasonable detail the event by reason of which such Indemnified Person has become entitled to claim Indemnified Amounts and showing in reasonable detail the calculation of Indemnified Amounts, and Seller shall pay such Indemnified Amounts to such Indemnified Person within ten (10) Business Days after Seller receives such notice. The obligations of Seller under this Section 13.01shall apply to all Persons to which this Agreement is assigned and Participants and survive the termination of the Repurchase Documents and the indefeasible payment in full of the Repurchase Obligations.
Section13.02Expenses.SellershallpromptlyondemandpaytoorasdirectedbyBuyer all reasonable third-party out-of-pocket costs and expenses (including legal, accounting and advisory fees and expenses) incurred by Buyer in connection with (a) the development, evaluation, preparation, negotiation, execution, consummation, delivery and administration of,
and any amendment, supplement or modification to, or extension, renewal or waiver of, the Repurchase Documents and the Transactions, (b) any Asset, Purchased Asset, Mortgage Loan Document or Pledged Collateral, including due diligence, inspection, testing, review, recording, registration, travel, custody, care, insurance or preservation, and anyamendments, supplements, modifications to, or extension, renewal or waiver of, the Mortgage Loan Documents for Purchased Assets (subject to the caps set forth in the Fee Letter), (c) the enforcement of the Repurchase Documents or the payment or performance by Seller, Pledgor or Guarantor of any RepurchaseObligations,and(d)anyactualorattemptedsale,exchange,enforcement,collection, compromise or settlement relating to the Purchased Assets or Pledged Collateral.
ARTICLE 14.
INTENT
Section14.01SafeHarbor.ThePartiesintendandherebyagree(a)foreachTransaction to qualify for the safe harbor treatment provided by the Bankruptcy Code and for Buyer to be entitled to all of the rights, benefits and protections afforded to Persons under the Bankruptcy Code with respect to a “securities contract”as defined in Section 741(7) of theBankruptcyCode and that payments under this Agreement are deemed “margin payments” or “settlement payments,” as defined in Section 101 of the Bankruptcy Code, (b) for the grant of a security interest set forth in Article 11to also be a “securities contract” as defined in Section 741(7)(A)(xi) of the Bankruptcy Code, and (c) that Buyer (for so long as Buyer is a “financial institution,” “financial participant” or other entity listed in Section 555, 559 or 362(b)(6) of the Bankruptcy Code) shall be entitled to the “safe harbor” benefits and protections afforded under the Bankruptcy Code with respect to a “securities contract,” and a “master netting agreement,” including (x) the rights, set forth in Articles 10and 14and in Sections 555, 559 and 561 of the Bankruptcy Code, to accelerate the Repurchase Obligations, to liquidate the Purchased Assets and terminate this Agreement and other RepurchaseDocuments, and (y) theright to offset ornet out as set forth in Articles 10and 14and Section 18.17and in Sections 362(b)(6), 362(b)(7), 362(b)(27), 362(o) and 546 of the Bankruptcy Code.
Section14.02 Right to Liquidate, Terminate and Accelerate. The Parties acknowledge and agree that Buyer’s right to liquidate Purchased Assets delivered to it in connectionwithTransactionshereunder,toacceleratetheRepurchaseObligations inaccordance with Article 10, to terminate the Transactions and this Agreement in accordance with Article10ortoexerciseanyotherremediespursuanttoArticles10and11andasotherwiseprovidedinthe Repurchase Documents are contractual rights to liquidate, terminate and accelerate, as applicable, the Purchased Assets, the Repurchase Obligations, the Transactions and this Agreement as described in Sections 555 and 561 of the Bankruptcy Code.
Section14.03Federal Deposit Insurance Act. The Parties acknowledge and agree that if a Party is an “insured depository institution,” as such term is defined in the Federal Deposit Insurance Act, as amended (“FDIA”), then each Transaction hereunder is a “qualified financial contract,” as that term is defined in FDIA and any rules, orders or policy statements thereunder
(exceptinsofarasthetypeofassetssubject to such Transaction would render such definition inapplicable).
Section14.04FederalDepositInsuranceCorporationImprovementAct.TheParties acknowledge and agree 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, as amended (“FDICIA”), and each payment entitlement and payment obligation under any Transactionshallconstitutea“coveredcontractualpaymententitlement”or“coveredcontractual paymentobligation,” respectively, asdefinedin andsubjecttoFDICIA(exceptinsofarasoneor both of the parties is not a “financial institution,” as that term is defined in FDICIA).
Section14.05 Master Netting Agreement. The Parties intend that each of this Agreement, the Guaranty, the Pledge Agreement and the Controlled Account Agreement constitutes a “master netting agreement,” as defined in Section 101(38A) of the Bankruptcy Code.
ARTICLE 15.
DISCLOSURERELATINGTOCERTAINFEDERALPROTECTIONS
Section15.01Disclosure.ThePartiesacknowledgethattheyhavebeenadvisedand understand that:
(a) inthecaseofTransactionsinwhichoneofthePartiesisabrokerordealer registered with the Securities and Exchange Commission under Section 14 of the Exchange Act, the Securities Investor Protection Corporation has taken the position that the provisions of the Securities Investor Protection Act of 1970 do not protect the other Party with respect to any Transaction;
(b) in the case of Transactions in which one of the Parties is a government securities broker or a government securities dealer registered with the Securities and Exchange Commission under Section 14C of the Exchange Act, the Securities Investor Protection Act of 1970 will not provide protection to the other Party with respect to any Transaction;
(c) in the case of Transactions in which one of the Parties is a financial institution, funds held by the financial institution pursuant to a Transaction are not a deposit and therefor are not insured bythe Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund; and
(d) in the case of Transactions in which one of the Parties is an “insured depository institution” as that term is defined in Section 1813(c)(2) of Title 12 of the United States Code, funds held by the financial institution pursuant to a Transaction are not a deposit and therefor are not insured by the Federal Deposit Insurance Corporation or the Deposit Insurance Fund.
ARTICLE 16.
NORELIANCE
Section16.01 No Reliance. Each Party acknowledges, represents and warrants to the otherPartythat, in connection with thenegotiation of, enteringinto, andperformanceunder, the Repurchase Documents and each Transaction:
(a) It is not relying (for purposes of making any investment decision or otherwise)onanyadvice,counselorrepresentations(whetherwrittenororal)oftheother Party, other than the representations expresslyset forth in the Repurchase Documents;
(b) It has consulted with its own legal, 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 on its own judgment and on any advice from such advisors as it has deemed necessary and not on any view expressed by the other Party;
(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 Repurchase Documents and each Transaction and is capable of assuming and willing to assume (financially and otherwise) those risks;
(d) ItisenteringintotheRepurchaseDocumentsandeachTransactionforthe purposes of managing its borrowings or investments or hedging its underlying assets or liabilities and not for purposes of speculation;
(e) It is not acting as a fiduciary or financial, investment or commodity tradingadvisorfortheotherPartyandhasnotgiventheotherParty(directlyorindirectly through anyotherPerson) anyassurance, guarantyorrepresentationwhatsoeveras to the merits (either legal, regulatory, tax, business, investment, financial accounting or otherwise) of the Repurchase Documents or any Transaction; and
(f) No partnership or joint venture exists or will exist as a result of the Transactions or entering into and performing the Repurchase Documents.
ARTICLE 17.
SERVICING
ThisArticle17shallapplytoallPurchasedAssets.
Section17.01 Servicing Rights. Buyer is the owner of all Servicing Rights. Without limiting the generality of the foregoing, Buyer, subject to the terms and conditions hereof, shall at all times have the right to hire or otherwise engage any Person (including Buyer) at Seller’s expense to service or sub-service all or part of the Purchased Assets; provided, however, that if
BuyerdecidesthataPersonotherthanBuyeristoactasServicer,solongasnoDefaultorEvent of Default has occurred and is continuing, any successor Servicer selected by Buyer, and the replacement Servicing Agreement with respect thereto, shall be subject to the consent of Seller (such consent to not be unreasonably withheld, conditioned or delayed) pursuant to a Servicing AgreementapprovedbyBuyerinitsdiscretion,andsuchPersonshallhaveonlysuchobligations with respect to such Purchased Assets as are expressly designated by Buyer in the Servicing Agreement. Notwithstanding the preceding sentence, Buyer agrees with Seller as follows with respect to the servicing of the Purchased Assets:
(a) Servicer shall service the Purchased Assets on behalf of Buyer in accordance with Accepted Servicing Practices, this Agreement and the Servicing Agreement;provided,however,intheeventofaconflictbetweenthisAgreementandthe ServicingAgreement,thisAgreementshallcontrol.EachServicing Agreementand Sub-Servicing Agreement (including after giving effect to any applicable Servicer AcknowledgmentAgreementwithrespecttosuchServicingAgreementorSub-Servicing Agreement, as applicable) shall contain provisions which are consistent with this Article17and must otherwise be in form and substance reasonablysatisfactoryto Buyer.
(b) NoPersonotherthanaServicerandSub-ServicerapprovedbyBuyershall assume the obligation to service a Purchased Asset as Servicer or successor to any Servicer or Sub-Servicer. As of the Closing Date, Buyer will appoint Trimont to act as Servicer in accordance with the terms of the Servicing Agreement and this Article 17. The appointment of a Servicer shall automatically terminate on the Remittance Date following the execution of such Servicing Agreement and on each Remittance Date occurring thereafter unless, in each case, Buyer shall agree, by prior written notice to Seller and Servicer to be delivered on or before the Remittance Date on which the Servicing Agreement is scheduled to terminate, to extend Servicer’s appointment to the immediately following Remittance Date, which extension notice may be delivered by Buyer via email; provided, however, that if Buyer fails to deliver any such prior written notice of extension, then upon notice from Seller of such failure, Buyer shall provide notice to Seller and Servicer of Buyer’s election to extend to the immediately following Remittance Date or not extend to such immediately following Remittance Date and, if such notice of election to extend is provided by Buyer after the expiration of the immediately preceding Remittance Date, such extension shall apply retroactively for the period beginning on the last day of such preceding Remittance Date through and including the date such notice of election to extend is provided by Buyer. Such prior written notice of Buyer’s agreement to extend Servicer’s appointment shall be provided electronically by Buyer to Servicer at the address provided to Buyer by Servicer in writing. In the event Buyer does not extend the successor Servicer’s appointment as Servicer or any Servicer is otherwise terminated in accordance with this Agreement orthe applicable Servicing Agreement, all rights of the Servicer to service the Purchased Assets shall cease. If Buyer selects any Person other than Buyer or an Affiliate of Buyer as Servicer, the Servicing Agreement must be approved by Buyer in its discretion and SellershalldelivertoBuyeranexecutedcopyofsuchServicingAgreement.Seller
herebyirrevocablyassigns toBuyerallofSeller’sright,titleandinterestin,toandunder each Servicing Agreement and Sub-Servicing Agreement.
(c) Seller, at all times that Wells is not the Servicer, shall direct Servicer and Sub-Servicer to service the Purchased Assets in accordance with Accepted Servicing Practices and comply with all of Servicer’s and Sub-Servicer’s obligations under the Servicing Agreement, the Sub-Servicing Agreement and this Agreement, including,
without limitation, (i) the obligations to provide such reports and information withrespect to the Purchased Assets as required bytheterms of theServicingAgreement, this Agreement or as otherwise requested by Buyer (including, but not limited to, delivery at leasttwo(2)BusinessDayspriortoeachRemittanceDateofamonthlyremittancereport containing servicing information, including those fields reasonably requested by Buyer from time to time, (which, if the Servicer is Trimont, shall be in the format attached hereto as Exhibit N) on an asset by asset basis and in the aggregate, with respect to the Purchased Assets serviced by Servicer for the month (or portion thereof) before the date of such report), (ii) the obligation to deposit and direct the deposit of all Income with respect to the Purchased Assets initiallyto theGeneral ServicingAccount or theServicer Account (or, to the extent specified in Section 8.09or as otherwise expresslyprovided in the Repurchase Documents, the Waterfall Account), and (iii) the obligation to remit Income collected with respect to the Purchased Assets to the Waterfall Account within thetimeperiodrequiredbythisAgreement.NoneofSeller,ServicerorSub-Servicermay assign its rights or delegate its duties and obligations under the Servicing Agreement or Sub-ServicingAgreement, as applicable, without thepriorwrittenconsent ofBuyerin its discretion.
(d) Sellershallnot,and shallnotdirector permitServiceror Sub-Servicerto,
(i) take any Material Action without the prior written consent of Buyer; provided that Buyershallactreasonablyinconsideringsuchconsent,andprovidedfurtherthatBuyer’s consent shall not be required for Material Actions that are expressly required under the terms of the Mortgage Loan Documents without any right of consent or approval by the holder of aPurchased Asset or are required byRequirements of Law, (ii) take anyaction which would result in a violation of the obligations of any Person under the Servicing Agreement, the Sub-Servicing Agreement, this Agreement or any other Repurchase Document, or which would otherwise be inconsistent with the rights of Buyer under the RepurchaseDocumentsor(iii)takeanyactionswithrespecttothePurchasedAssetsafter the occurrence of a Servicer Event of Default, Default or Event of Default without the prior written consent of Buyer. Seller shall be permitted to make decisions and direct Servicer with respect to any action with respect to the Purchased Assets other than any Material Action without Buyer’s consent provided that, at the time of such decisions, there is no existing Servicer Event of Default, Default or Event of Default and Seller provides Buyer with documentation thereof in connection with any such decisions.
(e) The Servicing Fees payable to Servicer and the Sub-Servicing Fees payable to Sub-Servicer under the Servicing Agreement and Sub-Servicing Agreement, respectively,shallbepayablebySellerand/orServicer,asapplicable,inaccordancewith thetermsoftheServicingAgreementandSub-ServicingAgreement.Sellershallbe
solely responsible for the payment of all Servicing Fees of Servicer and Seller and/or Servicer shall be solely responsible for payment all Sub-Servicing Fees of Sub-Servicer and shall indemnifyand hold Buyer harmless for the amount of such Servicing Fees and Sub-ServicingFees.UnlesstheServicerisWells,atnotimemayServiceror Sub-Servicer receive or otherwise retain any Income (or withhold or net out amounts from funds related to the Purchased Assets on deposit in the General Servicing Account or the Servicer Account) in payment of such Servicing Fees or Sub-Servicing Fees or make a claim against Buyer for the payment of such Servicing Fees or Sub-Servicing Fees; provided, however, that Trimont may net out its “Servicing Fees” (as such term is defined in the Trimont Servicing Agreement) onlywith respect to the Purchased Assets,
but in no event shall Trimont be permitted to net out any other servicing or special servicing fees or expenses, which shall be paid in accordance with Article 5hereof.
(f) Upon the occurrence and during the continuance of a Servicer Event of Default, Default or Event of Default, in addition to all of the other rights and remedies of Buyer under the Servicing Agreement, this Agreement and the other Repurchase Documents (and in addition to the provisions of the Servicing Agreement providing for termination of Servicer thereunder pursuant to its terms), (i) the right, if any, of Seller, Servicer and/or Sub-Servicer to direct the servicing of and make any decisions with respect to the Purchased Assets shall immediately and automatically cease to exist, (ii) BuyerorSeller(atBuyer’srequest)mayatanytimeterminateServicerimmediatelyupon the delivery of a written termination notice from either Buyer or Seller to Servicer, and
(iii) Buyer shall have the right to transfer servicing of the Purchased Assets to Buyer or its designee. Seller shall pay all actual expenses associated with any such termination, including, without limitation, any accrued fees and expenses and any early termination fees and expenses required in connection with the termination of the Servicing Agreement and Sub-Servicing Agreement and the transfer of servicing to a successor Servicer. The rights of any Sub-Servicer to service the Purchased Assets in accordance with the Sub-Servicing Agreement shall cease automatically when the Servicer is terminated or, as applicable, its appointment is not extended byBuyer. Buyer shall have no liability to any Servicer or Sub-Servicer and Seller shall indemnify and hold Buyer harmless from any claims of or liability to any Servicer or Sub-Servicer.
(g) Unless Servicer is Wells or Trimont, except as expresslypermitted in this Agreement with respect to the Servicer Account and Servicer’s possession and disbursementofescrowandreservefundsrelatedtoPurchasedAssetsinaccordancewith thisAgreement,therelatedMortgageLoanDocumentsandRequirementsofLaw,neither Servicer nor Sub-Servicer shall be permitted to hold, receive or disburse any reserves, accounts, escrows and the like for any Purchased Asset or hold, receive or disburse any Income from any Purchased Asset. To the extent Servicer is permitted (but in no event shall a Sub-Servicer be permitted) to receive, hold or disburse any Income, escrows or reserves, Servicer shall hold all such funds related to the Purchased Assets in deposit accounts for the benefit of Buyer at institutions acceptable to Buyer. Servicer shall hold and disburse all escrow and reserve funds in accordance with the terms of this Agreement, the Servicing Agreement, the related Mortgage Loan Documents and Requirements of Law. All escrow and reserve payments related to the Purchased Assets
shall be held in the Escrow Account. Within two (2) Business Days of the date funds in the Escrow Account or any escrow or reserve funds related to the Purchased Assets become Income, Seller and/or Servicer shall cause such Income to be deposited into the ServicerAccount.Withintwo(2)BusinessDaysoftheServicer’sterminationor non-renewal as Servicer under the Servicing Agreement or upon the occurrence of a ServicerEventofDefaultorimmediatelyupontheoccurrenceofaDefaultoranEventof Default,Servicerand/orSellershallturnovertoBuyeroritsdesigneeallIncome,escrow and reserve funds held by Seller or Servicer related to the Purchased Assets in the Servicer Account, the Escrow Account or otherwise.
(h) Except as set forth in the Repurchase 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 Buyer under the Repurchase Documents.
Section 17.02 Accounts Related to Purchased Assets. All accounts directly related to the Purchased Assets shall be maintained at institutions in accordance with and pursuant to the terms and conditions of the existing Mortgage Loan Documents and this Agreement; provided,however, that if any institution in which such accounts are currently held is not reasonably acceptable to Buyer, then, at Buyer’s request, Seller shall cause the Underlying Obligor to enter into the contractual arrangements with Buyer and Seller that are necessary in order to create a perfectedsecurityinterestinfavorofBuyerinallsuchaccounts,including,withoutlimitation,an account control agreement in form and substance satisfactory to Buyer in its reasonable discretion.
Section17.03 Modification of Servicing Agreements. Seller shall not and shall not permit the Servicer to amend, modify, waive or terminate any provision of the Servicing Agreement or any Sub-Servicing Agreement which affects or is related to the Purchased Assets in any respect without the prior written consent of Buyer (which may be granted or withheld in its discretion), except to the extent that the effect of such amendments, waivers, modifications, or supplements is limited solely to Assets that are not Purchased Assets or have ceased to be Purchased Assets.
ARTICLE 18.
MISCELLANEOUS
Section18.01 Governing Law. This Agreement and any claim, controversy or dispute arising under or related to or in connection with this Agreement, the relationship of the Parties, and/or theinterpretation and enforcement of the rights andduties of theparties will begoverned bythelaws oftheStateofNewYorkwithoutregard toanyconflictsoflawprinciplesotherthan Section 5-1401 and Section 5-1402 of the New York General Obligations Law.
Section18.02 Submission to Jurisdiction; Service of Process. Each of the Parties hereto irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the courts of the State of New York sitting in the Borough of Manhattan and of theUnitedStatesDistrictCourtoftheSouthernDistrictofNewYork,andanyappellatecourt
from any thereof, in any action or proceeding arising out of or relating to the Repurchase Documents, or for recognition or enforcement of any judgment, and each Party irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such state court or, to thefullest extent permitted byRequirements of Law, in suchfederalcourt.EachPartyagreesthatafinaljudgmentinanysuchactionorproceedingshall be conclusive and may be enforced in otherjurisdictions bysuit on thejudgment or in anyother manner provided by Requirements of Law. Nothing in this Agreement or the other Repurchase DocumentsshallaffectanyrightthateitherpartyoranyIndemnifiedPersonmayotherwisehave to bring any action or proceeding arising out of or relating to the Repurchase Documents in the courts of any jurisdiction. Each of the parties irrevocably and unconditionally waives, to the fullestextentpermittedbyRequirementsofLaw,anyobjectionthatitmaynoworhereafterhave to the laying of venue of any action or proceeding arising out of or relating to the Repurchase Documents in any court referred to above, and the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each Party irrevocably consents to service of process in the manner provided for notices in Section 18.12. Nothing in this Agreement will affect the right of either Party hereto to serve process in any other manner permitted by Requirements of Law.
Section18.03IMPORTANTWAIVERS.
(a) SELLER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO ASSERT A COUNTERCLAIM, OTHER THAN A COMPULSORY COUNTERCLAIM, IN ANY ACTION OR PROCEEDING BROUGHT AGAINST IT BY BUYER OR ANY INDEMNIFIED PERSON.FORTHEAVOIDANCEOFDOUBT,THEFOREGOINGSHALLNOTBE DEEMED A WAIVER OF ANY DIRECT CLAIM THAT IS NOT A COMPULSORY COUNTERCLAIM THAT SELLER MAY HAVE AGAINST BUYER.
(b) TO THE EXTENT PERMITTED BY REQUIREMENTS OF LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE BETWEEN IT AND ANY INDEMNIFIED PERSON, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH OR RELATED TO THE REPURCHASE DOCUMENTS, THE PURCHASED ASSETS, THE TRANSACTIONS, ANY DEALINGS OR COURSE OF CONDUCT BETWEEN IT AND ANY INDEMNIFIED PERSON, OR ANY STATEMENTS (WRITTEN OR ORAL) OR OTHER ACTIONS OF EITHER PARTY OR ANY INDEMNIFIED PERSON. NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIALCANNOT BE OR HAS NOT BEEN WAIVED. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
(c) TO THE EXTENT PERMITTED BY REQUIREMENTS OF LAW, EACHPARTYHEREBYWAIVESANYRIGHTTOCLAIMORRECOVERINANY LITIGATIONWHATSOEVERINVOLVINGANYINDEMNIFIEDPERSON,ANY
SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES, WHETHERSUCHWAIVED DAMAGES AREBASEDONSTATUTE,CONTRACT, TORT, COMMON LAW OR ANY OTHER LEGAL THEORY, WHETHER THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN AND REGARDLESS OF THE FORM OF THE CLAIM OF ACTION. NO PARTY OR INDEMNIFIED PERSON SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH ANY REPURCHASE DOCUMENT OR THE TRANSACTIONS.
(d) EACH PARTY CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY OR AN INDEMNIFIED PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BUYER OR AN INDEMNIFIED PERSON WOULD NOT SEEK TO ENFORCE ANY OF THE WAIVERS IN THIS SECTION 18.03IN THE EVENT OF LITIGATION OR OTHER CIRCUMSTANCES. THE SCOPE OF SUCH WAIVERS IS INTENDED TO BEALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THE REPURCHASE DOCUMENTS, REGARDLESS OF THEIR LEGAL THEORY.
(e) EACH PARTY ACKNOWLEDGES THAT THE WAIVERS IN THIS SECTION18.03AREAMATERIALINDUCEMENTTOENTERINTOABUSINESS
RELATIONSHIP, THAT SUCH PARTY HAS ALREADY RELIED ON SUCH WAIVERS IN ENTERING INTO THE REPURCHASE DOCUMENTS, AND THAT SUCH PARTY WILL CONTINUE TO RELY ON SUCH WAIVERS IN THEIR RELATED FUTURE DEALINGS UNDER THE REPURCHASE DOCUMENTS. EACH PARTY FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED SUCH WAIVERS WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLYANDVOLUNTARILYWAIVESITSRIGHTTOAJURYTRIALAND OTHER RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
(f) THE WAIVERS IN THIS SECTION 18.03ARE IRREVOCABLE, MEANING THAT THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND SHALL APPLY TO ANY AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO ANY OF THE REPURCHASE DOCUMENTS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(g) THE PROVISIONS OF THIS SECTION 18.03SHALL SURVIVE TERMINATIONOFTHEREPURCHASEDOCUMENTSANDTHEINDEFEASIBLE PAYMENT IN FULL OF THE REPURCHASE OBLIGATIONS.
Section18.04 Integration. The Repurchase Documents supersede and integrate all previous negotiations, contracts, agreements and understandings (whether written or oral) between the Parties relating to a sale and repurchase of Purchased Assets and the other matters addressed by the Repurchase Documents, and contain the entire final agreement of the Parties relating to the subject matter thereof.
Section18.05 Single Agreement. Seller agrees that (a) each Transaction is in consideration of and in reliance on the fact that all Transactions constitute a single business and contractual relationship, and that each Transaction has been entered into in consideration of the other Transactions, (b)adefaultbyitinthepaymentorperformanceofanyitsobligationsunder a Transaction shall constitute a default by it with respect to all Transactions, (c) Buyer may set off claims and apply properties and assets held by or on behalf of Buyer with respect to any Transaction against the Repurchase Obligations owing to Buyer with respect to other Transactions, and (d) payments, deliveries and other transfers made by or on behalf of Seller with respect to any Transaction shall be deemed to have been made in consideration of payments, deliveries and other transfers with respect to all Transactions, and the obligations of Seller to make any such payments, deliveries and other transfers may be applied against each other and netted.
Section18.06 Use of Employee Plan Assets. No assets of an employee benefit plan subject to anyprovision of ERISA shall be used byeither Partyin a Transaction.
Section 18.07 Survival and Benefit of Seller’s Agreements. The Repurchase Documents and all Transactions shall be binding on and shall inure to the benefit of the Parties and their successors and permitted assigns. All of Seller’s indemnities in the Repurchase Documents and all other provisions of the Repurchase Documents that, bytheir terms, expressly survive termination of the Repurchase Documents shall survive the termination of the Repurchase Documents and the indefeasible payment in full of the Repurchase Obligations, and shall apply to and benefit all Indemnified Persons, Buyer and its successors and assigns and Participants.NootherPersonshallbeentitledtoanybenefit,right,power,remedyorclaimunder the Repurchase Documents.
Section18.08AssignmentsandParticipations.
(a) Seller shall not sell, assign, delegate or transfer any of its rights, the Repurchase Obligations or any other duties, obligations and/or liabilities under this Agreement or the other Repurchase Documents without the prior written consent of Buyer, and anyattempt bySeller to do so without such consent shall be null and void.
(b) Buyer may at any time, without the consent of Seller or any other Repurchase Party (provided, however, that Buyer shall endeavor to give notice of the same to Seller), sell participations to any Person (other than to (so long as no Default or Event of Default has occurred and is continuing) a Prohibited Transferee, Seller, any Affiliate of Seller, anyUnderlying Obligor or anyAffiliate of an Underlying Obligor) (a “Participant”) in all or any portion of Buyer’s rights and/or obligations under the RepurchaseDocuments;provided,that(x)ifamonetaryormaterialnon-monetary
Default or any Event of Default has occurred and is continuing, Buyer may sell participationstoanyPersonatanytimewithoutconsent,noticeorrestrictionofanykind, and (y) so longas no monetaryormaterial non-monetaryDefault oranyEvent ofDefault has occurred and is continuing (i) Buyer’s obligations under the Repurchase Documents shall remain unchanged, (ii) Buyer shall remain solely responsible to Seller for the performanceofsuchobligations,(iii)Sellershallcontinuetodealsolelyanddirectlywith Buyer in connection with Buyer’s rights and obligations under the Repurchase Documents and (iv) Seller shall not pay any of Buyer’s cost incurred in connection with the sale of such participations. So long as no monetaryor material non-monetaryDefault or any Event of Default has occurred and is continuing, no Participant shall have any right to approve any amendment, waiver or consent with respect to any Repurchase Document, except to the extent that the Repurchase Price or Price Differential of any PurchasedAssetwouldbereducedortheRepurchaseDateofanyPurchasedAssetwould be postponed. Each Participant shall be entitled to the benefits of Article 12(subject to the requirements and limitations therein, including the requirements under Section12.07(e)) to the same extent as if it had acquired its interest by assignment pursuant to Section 18.08(c), but shall not be entitled to receive anygreater payment thereunder than Buyer would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with Seller’s prior written consent. To the extent permitted by Requirements of Law, each Participant shall be entitled to the benefits of Sections 10.02(j)and 18.17to the same extent as if it hadacquireditsinterestbyassignmentpursuanttoSection18.08(c)andinthecaseofthe benefits of Section 12.07(a), such Participant shall be subject to the requirements and limitations under Section 12.07(e).
(c) Buyer may at any time, without the consent of Seller or any other RepurchaseParty(provided,however,thatBuyershallendeavortogivenoticeofsameto Seller), sell or assign to any Person (other than to (so long as no monetary or material non-monetary Default or any Event of Default has occurred and is continuing) a Prohibited Transferee, Seller, any Affiliate of Seller, any Underlying Obligor or any Affiliate of an Underlying Obligor) all or any portion of the rights and obligations of Buyer under the Repurchase Documents; provided, however, that if a monetary or material non-monetary Default or any Event of Default has occurred and is continuing, Buyer mayenter into anysuch sale and assignments with anyPerson at anytime without consent, notice or restriction of any kind, provided, further, that Wells shall (x) act as agentforallBuyersandthepointofcontactforSellerpursuanttoagencyprovisionstobe agreed upon by Wells and such assignees, which provisions, subject to the preceding
clause, shall be for the sole benefit of Buyers and shall not be subject to any consent or approvalofSeller(includinganyamendments,modificationsorsupplementsthereto)and
(y) shall retain all rights to approve any Transaction entered into after the date of assignment, declare an Event of Default under this Agreement or any other Repurchase Document and make (and determine the amount of) Margin Calls and Sellershall not be required to deal with any assignee with respect to Seller’s performance under this Agreement. Each such assignment shall be made pursuant to an Assignment and AcceptancesubstantiallyintheformofExhibit H(an “AssignmentandAcceptance”). In addition,provided,thatnomonetary or materialnon-monetary Defaultor any Event of
Default has occurred and is continuing, Seller shall not pay any of Buyer’s cost incurred inconnectionwithanysaleunderthisclause(c).Fromandaftertheeffectivedateofsuch Assignment and Acceptance, (i) such Person shall be a Party and, to the extent provided therein, have the rights and obligations of Buyer under the Repurchase Documents with respect to the percentage and amount of the Repurchase Price allocated to it, (ii) Buyer shall,totheextentprovidedtherein,bereleasedfromsuchobligations(and,inthecaseof an Assignment and Acceptance covering all or the remaining portion of Buyer’s rights and obligations under the Repurchase Documents, Buyer shall cease to be a Party), (iii) the obligations of Buyer shall be deemed to be so reduced, and (iv) Buyer will give prompt written notice thereof (including identification of the assignee and the amount of Repurchase Price allocated to it) to each Party (but Buyer shall not have any liability for any failure to timely provide such notice). Any sale or assignment by Buyer of rights or obligations under the Repurchase Documents that does not comply with this Section18.08(c)shall be treated for purposes of the Repurchase Documents as a sale by such Buyer of a participation in such rights and obligations in accordance with Section18.08(b).
(d) Seller shall cooperate with Buyer in connection with any such sale and assignmentofparticipationsorassignmentsandshallenterintosuchrestatementsof,and amendments,supplementsandothermodificationsto,theRepurchaseDocumentstogive effect to any such sale or assignment at Buyer’s sole cost and expense; provided, that none of the foregoing shall change any economic or other material term of the Repurchase Documents in amanner adverse to Seller without the consent ofSeller, such consent not to be unreasonablywithheld, conditioned or delayed. Prior totheoccurrence andduringthecontinuanceof amonetaryormaterialnon-monetaryDefaultoranyEvent of Default, Buyer agrees not to assign or participate its rights and obligations under the Repurchase Documents to any Non-U.S. Person unless such participant or assignee is able to deliver to Seller the documentation necessary to protect Seller from withholding obligations or increased Taxes as a result thereof and from any violation of a Requirement of Law.
(e) Subject to Section 18.08(c), Buyer shall have the right to partially or completely syndicate any or all of its rights under this Agreement and the other Repurchase Documents to any Person.
(f) Buyer, acting solely for this purpose as a non-fiduciary agent of Seller, shall maintain a copy of each Assignment and Acceptance and a register for the recordation of the names and addresses of the Persons that become Parties hereto and, with respect to each such Person, the aggregate assigned Purchase Price and applicable Price Differential (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Parties shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Buyer for all purposes of this Agreement. The
Register shall be available for inspection by the Parties at anyreasonable time and from time to time upon reasonable prior notice.
(g) Each Party that sells a participation shall, acting solely for this purpose as anon-fiduciaryagentofSeller,maintainaregisteronwhichitentersthenameand addressofeachParticipantand,withrespecttoeachsuchParticipant,theaggregate participatedPurchasePriceandapplicablePriceDifferential,andanyotherinterestinany obligations under the Repurchase Documents (the “Participant Register”); providedthat noPartyshallhaveanyobligationtodisclosealloranyportionoftheParticipantRegister (including the identity of any Participant or any information relating to a Participant’sinterest in any obligations under any Repurchase Document) to any Person except to the extent that such disclosure is necessary to establish that such obligation is in registered form under Section 5f.103-1(c) of the United States TreasuryRegulations. The entries in the Participant Register shall be conclusive absent manifest error, and the participating Party shall treat each Person whose name is recorded in the Participant Register as theowner of the applicable participation for all purposes of this Agreement notwithstanding any notice to the contrary.
Section 18.09 Ownership and Hypothecation of Purchased Assets. Title to all PurchasedAssetsshallpasstoandvestinBuyerontheapplicablePurchaseDatesand,subjectto the terms of the Repurchase Documents, Buyer or its designee shall have free and unrestricted use of all Purchased Assets and be entitled to exercise all rights, privileges and options relating to the Purchased Assets as the owner thereof, including rights of subscription, conversion, exchange, substitution, voting, consent and approval, and to direct anyservicer or trustee. Buyer oritsdesigneemay,providedthatnoDefaultorEventofDefaulthasoccurredandiscontinuing, at any time, without the consent of or notice to Seller or any other Repurchase Party, engage in repurchase transactions with the Purchased Assets or otherwise sell, pledge, repledge, transfer, hypothecate,orrehypothecatethePurchasedAssetstooneormorePersonsotherthan,solongas no Default or Event of Default has occurred and is continuing, a Prohibited Transferee, all on terms that Buyer may determine, provided, that during the continuance of any monetary or material non-monetary Default or any Event of Default, Buyer may enter into any such Transactions with any Person at any time without consent, notice of restriction of any kind; provided, further, that no such transaction shall affect the obligations of Buyer to transfer the Purchased Assets to Seller on the applicable Repurchase Dates free and clear of any pledge, Lien, security interest, encumbrance, charge or other adverse claim and, provided, further, that, Seller shall not pay any of Buyer’s cost incurred in connection with any such sale, pledge, repledge, transfer, hypothecate, or rehypothecate under this Section 18.19. In the event Buyer engages in a repurchase transaction with any of the Purchased Assets or otherwise pledges or hypothecates any of the Purchased Assets, Buyer shall have the right to assign to Buyer’s counterparty any of the applicable representations or warranties herein and the remedies for breach thereof, as they relate to the Purchased Assets that are subject to such repurchase transaction, pledge or hypothecation.
Section18.10 Confidentiality. All information regarding the terms set forth in any of the Repurchase Documents or the Transactions shall be kept confidential and shall not be disclosed by either Party to any Person except (a) to the Affiliates of such Party or its or their respective directors, officers, employees, agents, advisors, attorneys and other representatives who are informed of the confidential nature of such information and instructed to keep it confidential, (b)tothe extent requested byanyregulatoryauthorityor required byRequirements
of Law, (c) to the extent required to be included in the financial statements of either Partyor an Affiliate thereof, (d) to the extent required to exercise any rights or remedies under the RepurchaseDocuments,PurchasedAssets,PledgedCollateral,theMortgageLoanDocumentsor Underlying Mortgaged Properties, (e) to the extent required to consummate and administer a Transaction, (f) to the extent required in connection with any litigation between the Parties in connection with any Repurchase Document, and (g) to any actual or prospective Participant, assignee, pledge transferee or Hedge Counterparty which agrees to comply with this Section18.10; provided, that no such disclosure made with respect to any Repurchase Document shall include a copy of such Repurchase Document to the extent a summary would suffice, and any such disclosure shall redact all pricing and other economic terms set forth therein to the extent such disclosure can be satisfied bya redacted copyof such Repurchase Documents.
Section18.11 No Implied Waivers; Amendments. No failure on the part of Buyer to exercise, or delay in exercising, any right or remedy under the Repurchase Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy thereunderprecludeanyfurtherexercisethereofortheexerciseofanyotherright.Therightsand remedies in the Repurchase Documents are cumulative and not exclusive of any rights and remedies provided by Requirements of Law. Application of the Default Rate after an Event of Default shall not bedeemed to constitute a waiver of anyEvent of Default or Buyer’s rights and remedies with respect thereto, or a consent to any extension of time for the payment or performance of any obligation with respect to which the Default Rate is applied. Except as otherwise expressly provided in the Repurchase Documents, no amendment, waiver or other modificationofanyprovisionoftheRepurchaseDocumentsshallbeeffectivewithoutthesigned agreementofSellerandBuyer.AnywaiverorconsentundertheRepurchaseDocumentsshallbe effective only if it is in writing and only in the specific instance and for the specific purpose for which given.
Section 18.12 Notices and Other Communications. Unless otherwise provided in this Agreement, all notices, consents, approvals, requests and other communications required or permitted to be given to a Partyhereunder shall be in writing and sent prepaid byhand delivery, by certified or registered mail, by expedited commercial or postal delivery service, or by facsimile or email if also sent byone of the foregoing, to the address for such Partyspecified in Annex 1or such other address as such Party shall specify from time to time in a notice to the other Party. Any of the foregoing communications shall be effective when delivered on a BusinessDay(orifnotaBusinessDay,onthenextBusinessDaythereafter).APartyreceivinga notice that does not comply with the technical requirements of this Section 18.12may elect to waive any deficiencies and treat the notice as having been properlygiven.
Section18.13 Counterparts; Electronic Transmission. Any Repurchase Document may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall together constitute but one and the same instrument. The Parties agree that this Agreement, any documents to be delivered pursuant to this Agreement, any other Repurchase Document and any notices hereunder may be transmitted between them by email and/or facsimile. The Parties intend that deliveryof signatures via fax or electronicallyimaged such as pdf files shall constitute original signatures and are binding on all Parties.
Section 18.14 No Personal Liability. Notwithstanding anything contained in the Repurchase Documents, no administrator, incorporator, Affiliate, owner, member, partner, stockholder, officer, director, employee, agent or attorney of Seller, Guarantor (excluding Guarantor in its capacity as guarantor under the Guaranty), Pledgor, Buyer or any Indemnified
Person, as such, shall be subject to anyrecourse or personal liabilityunder or with respect to any obligation of Buyer, Seller, Pledgor or Guarantor under the Repurchase Documents, whether by the enforcement of anyassessment, byanylegal or equitable proceeding, byvirtue of anystatute or otherwise; it being expressly agreed that the obligations of Buyer, Seller, Pledgor and GuarantorundertheRepurchaseDocumentsaresolelytheirrespectivecorporate,limitedliability company or partnership obligations, as applicable, and that any such recourse or personal liability is hereby expressly waived. This Section 18.14shall survive the termination of the Repurchase Documents and the indefeasible payment in full of the Repurchase Obligations.
Section18.15 Protection of Buyer’s Interests in the Purchased Assets; FurtherAssurances.
(a) Seller shall cause the Repurchase Documents and/or all financing statements and continuation statements and any other necessary documents covering the right, title and interest of Buyer to the Purchased Assets to be promptly recorded, registered and filed, and at all times to be kept recorded, registered and filed, all in such manner and in such places as maybe required byRequirements of Law fullyto preserve andprotectsuch right,titleandinterest.SellershalldelivertoBuyerfile–stampedcopies of,orfilingreceiptsfor,anydocumentrecorded,registeredorfiledasprovidedabove,as soonasavailablefollowingsuchrecording,registrationorfiling.Sellershallexecuteany and all documents reasonably required to fulfill the intent of this Section 18.15.
(b) Seller will promptly at its expense execute and deliver such instruments and documents and take such other actions as Buyer mayreasonablyrequest from time to time in order to perfect, protect, evidence, exercise and enforce Buyer’s rights and remedies under and with respect to the Repurchase Documents, the Transactions and the Purchased Assets. Seller and Guarantor shall, promptly upon Buyer’s request, deliver documentationinformandsubstancesatisfactorytoBuyerwhichBuyerdeemsnecessary or desirable to evidence compliance with all applicable “know your customer” due diligencechecks,including,butnotlimitedto,anyinformationrequiredtobeobtainedby Buyer pursuant to the Beneficial Ownership Regulation.
(c) If Seller fails to perform any of its Repurchase Obligations, Buyer may (but shall not be required to) perform or cause to be performed such Repurchase Obligation, and the costs and expenses incurred by Buyer in connection therewith shall be payable by Seller. Without limiting the generality of the foregoing, if Seller fails to perform any of its Repurchase Obligations, Seller authorizes Buyer, at the option of BuyerandtheexpenseofSeller,atanytimeandfromtimetotime,totakeallactionsand pay all amounts that Buyer deems necessary or appropriate to protect, enforce, preserve, insure, service, administer, manage, perform, maintain, safeguard, collect or realize on thePurchasedAssetsandBuyer’sLiensandintereststhereinorthereonandtogiveeffect totheintentoftheRepurchaseDocuments.NoDefaultorEventofDefaultshallbecured
by the payment or performance of any Repurchase Obligation by Buyer on behalf of Seller. Buyer may make any such payment in accordance with any bill, statement or estimate procured from the appropriate public office or holder of the claim to be dischargedwithoutinquiryintotheaccuracyofsuchbill,statementorestimateorintothe validityofanytaxassessment,sale,forfeiture,taxLien, title or claim except to the extent such payment is being contested in good faith by Seller in appropriate proceedings and against which adequate reserves are being maintained in accordance with GAAP.
(d) Without limitingthe generalityoftheforegoing,Sellerwillnoearlierthan six(6)orlaterthanthree(3)monthsbeforethefifth(5th)anniversaryofthedateoffiling of each UCC financing statement filed in connection with any Repurchase Document or
any Transaction, (i) deliver and file or cause to be filed an appropriate continuation statement with respect to such financingstatement (providedthat Buyer mayelect to file suchcontinuationstatement),and(ii)deliverorcausetobedeliveredtoBuyeranopinion of counsel, in form and substance reasonably satisfactory to Buyer, confirming and updating the opinion delivered pursuant to Section 6.01(a)(v)with respect to perfection andotherwisetotheeffectthatthesecurityinterestshereundercontinuetobeenforceable and perfected security interests, subject to no other Liens of record except as provided hereinorotherwisepermittedhereunder,whichopinionmaycontainusualandcustomary assumptions, limitations and exceptions.
(e) Except as provided in theRepurchase Documents, the sole dutyof Buyer, Custodian or any other designee or agent of Buyer with respect to the Purchased Assets shall be to use reasonable care in the custody, use, operation and preservation of the Purchased Assets in its possession or control. Buyer shall incur no liability to Seller or anyotherPersonforanyactofaGovernmentalAuthority,actofGodorotherdestruction in whole or in part or negligence or wrongful act of custodians or agents selected by Buyer with reasonable care, or Buyer’s failure to provide adequate protection or insurance for the Purchased Assets. Buyer shall have no obligation to take any action to preserve any rights of Seller in any Purchased Asset against prior parties, and Seller hereby agrees to take such action. Buyer shall have no obligation to realize upon any Purchased Asset except through proper application of any distributions with respect to the Purchased Assets made directly to Buyer or its agent(s). So long as Buyer and Custodian shall act in good faith and in accordance with the standard set forth in this Section 18.15(e) in their handling of the Purchased Assets, Seller waives or is deemed to havewaivedthedefenseofimpairmentofthePurchasedAssetsbyBuyerandCustodian.
(f) At Buyer’s election (at Buyer’ssolecost and expensepriorto an Eventof Default) and at any time during the term of this Agreement, Buyer may complete and record any or all of the blank assignment documents as further evidence of Buyer’s ownership interest in the related Purchased Assets.
Section18.16DefaultRate.Totheextentpermittedby RequirementsofLaw,Seller shallpayinterest attheDefault Rateon theamount ofallRepurchaseObligationsnot paidwhen
due under the Repurchase Documents until such Repurchase Obligations are paid or satisfied in full.
Section18.17Set-off.
(a) In addition to any rights now or hereafter granted under the Repurchase Documents, Requirements of Law or otherwise, Seller, on behalf of itself, hereby grants to Buyer and each Indemnified Person, to secure repayment of the Repurchase Obligations, a right of set-off upon any and all of the following: monies, securities, collateral or other property of Seller and any proceeds from the foregoing, now or hereafterheldorreceivedbyBuyer,anyAffiliateofBuyeroranyIndemnifiedPerson,for the account of Seller, whether for safekeeping, custody, pledge, transmission, collection or otherwise, and also upon any and all deposits (general, specified, special, time, demand, provisional or final) and credits, claims or Indebtedness of Seller at any time existing, and any obligation owed by Buyer, any Affiliate of Buyer or any other Indemnified Person to Seller and to set–off against any Repurchase Obligations or Indebtedness owed by Seller any Indebtedness owed by Buyer, any Affiliate of Buyer or any other Indemnified Person to Seller, in each case whether direct or indirect, absolute
or contingent, matured or unmatured, whether or not arising under the Repurchase Documents and irrespective of the currency, place of payment or booking office of the amount or obligation and in each case at any time held or owing by Buyer, any Affiliate ofBuyeroranyIndemnifiedPersontoorforthecreditofanySeller,withoutprejudiceto Buyer’s right to recover anydeficiency. Each of Buyer, each Affiliate of Buyer and each Indemnified Person is herebyauthorized upon anyamount becoming due and payable by Seller to Buyer or any Indemnified Person under the Repurchase Documents, the Repurchase Obligations or otherwise or upon the occurrence of an Event of Default, without notice to Seller, any such notice being expressly waived by Seller to the extent permitted by any Requirements of Law, to set–off, appropriate, apply and enforce such right of set–off against any and all items hereinabove referred to against any amounts owing to Buyer or any Indemnified Person by Seller under the Repurchase Documents and theRepurchase Obligations, irrespective of whether Buyer, anyAffiliate of Buyer or any Indemnified Person shall have made any demand under the Repurchase Documents and regardless of any other collateral securing such amounts, and in all cases without waiver or prejudice of Buyer’s rights to recover a deficiency. ANY AND ALL RIGHTS TOREQUIREBUYEROROTHERINDEMNIFIEDPERSONSTOEXERCISETHEIR RIGHTS OR REMEDIES WITH RESPECT TO THE PURCHASED ASSETS, THE PLEDGEDCOLLATERALOROTHERCOLLATERALUNDERTHEREPURCHASE DOCUMENTS, PRIOR TO EXERCISING THE FOREGOING RIGHT OF SET–OFF, AREHEREBYKNOWINGLY,VOLUNTARILYANDIRREVOCABLYWAIVEDBY SELLER.
(b) Buyer or any Indemnified Person shall promptly notify Seller after any such set–off and application made by Buyer or such Indemnified Person, providedthat thefailuretogivesuchnoticeshall notaffectthevalidityofsuchset–offandapplication. If an amount or obligation is unascertained, Buyer may in good faith estimate that obligation and set-off in respect of the estimate, subject to the relevant Party accounting
totheotherPartywhentheamountorobligationisascertained.NothinginthisSection
18.17shall be effective to create a charge or other security interest. This Section 18.17shallbewithoutprejudiceandinadditiontoanyrightofset-off,combinationofaccounts, Lien or other rights to which any Party is at any time otherwise entitled.
Section18.18Seller’s Waiver of Setoff. Seller herebywaives anyright ofsetoffitmay have or to which it may be or become entitled under the Repurchase Documents, Requirements of Law or otherwise against Buyer, any Affiliate of Buyer, any Indemnified Person or their respective assets or properties.
Section18.19 Periodic Due Diligence Review. Buyer may perform continuing due diligence reviews with respect to the Purchased Assets, Seller and Affiliates ofSeller,including orderingnewthird-partyreports,forpurposesof,amongotherthings,verifyingcompliancewith the representations, warranties, covenants, agreements, duties, obligations and specifications made under the Repurchase Documents or otherwise. Upon reasonable prior notice to Seller, unless a Default or Event of Default exists, in which case no notice is required, Buyer or its representatives may during normal business hours inspect any properties and examine, inspect and make copies of the books and records of Seller and Affiliates of Seller, the Mortgage Loan Documents and the Servicing Files. Seller shall make available to Buyer one or more knowledgeable financial or accounting officers and representatives of the independent certified public accountants of Seller and its Affiliates for the purpose of answering questions of Buyer
concerning any of the foregoing. Seller shall cause Servicer to cooperate with Buyer by permitting Buyer to conduct due diligence reviews of the Servicing Files. Seller shall pay all costs and expenses (includinglegal fees and expenses)incurredbyBuyerinconnectionwiththe Buyer’s activities pursuant to this Section 18.19. Buyer may purchase Purchased Assets from Seller based solelyon the information provided bySeller to Buyer in the Underwriting Package and the representations, warranties, duties, obligations and covenants contained herein, and Buyer may at any time conduct a partial or complete due diligence review on some or all of the Purchased Assets, including ordering new credit reports and new Appraisals on the Underlying Mortgaged Properties and otherwise re-generating the information used to originate and underwritesuchPurchasedAssets.BuyermayunderwritesuchPurchasedAssetsitselforengage a mutually acceptable third-party underwriter to do so.
Section 18.20 Time of the Essence. Time is of the essence with respect to all obligations,duties,covenants,agreements,noticesoractionsorinactionsofthePartiesunderthe Repurchase Documents.
Section18.21JointandSeveralRepurchase Obligations.
(a) At all times when there is more than one Seller under this Agreement, each Seller hereby acknowledges and agrees that (i) each Seller shall be jointly and severally liable to Buyer to the maximum extent permitted byRequirements of Law and in accordance with this Agreement for all Repurchase Obligations, (ii) the liability of each Seller (A) shall be absolute and unconditional and shall remain in full force and effect (or be reinstated) until all Repurchase Obligations shall have been indefeasibly paidinfull,theRepurchaseDocumentshavebeenterminatedandtheexpirationofany
applicable preference or similar period pursuant to any Insolvency Law, or at law or in equity, without any claim having been made before the expiration of such period asserting an interest in all or anypart of anypayment(s) received byBuyer, and (B)until such payment has been made, shall not be discharged, affected, modified or impaired on theoccurrencefromtimetotimeofanyevent,includinganyofthefollowing,whetheror not with notice to or the consent of each Seller, (1) the waiver, compromise, settlement, release,termination or amendment (including anyextension orpostponement ofthetime for payment or performance or renewal or refinancing) of any of the Repurchase Obligations, (2) the failure to give notice to each Seller of the occurrence of an Event of Default, (3) the release, substitution or exchange by Buyer of any Purchased Asset (whether with or without consideration) or the acceptance by Buyer of any additional collateral or the availability or claimed availability of any other collateral or source of repayment or any nonperfection or other impairment of collateral, (4) the release of any Person primarily or secondarily liable for all or any part of the Repurchase Obligations, whether by Buyer or in connection with any Insolvency Proceeding affecting any Seller or any other Person who, or any of whose property, shall at the time in question be obligatedinrespectoftheRepurchaseObligationsoranypartthereof,or(5)totheextent permitted by Requirements of Law, any other event, occurrence, action or circumstance that would, in the absence of this Section 18.21, result in the release or discharge of any or all of Sellers from the performance or observance of anyRepurchase Obligation, (iii) Buyer shall not be required first toinitiate anysuit or to exhaust its remedies against any Seller or any other Person to become liable, or against any of the Purchased Assets, in order to enforce the Repurchase Documents and each Seller expressly agrees that, notwithstanding the occurrence of any of the foregoing, each Seller shall be and remain directly andprimarily liableforallsumsdueunderany oftheRepurchaseDocuments,
(iv) when making any demand hereunder against any Seller, Buyer may, but shall be under no obligation to, make a similar demand on any other Seller, and any failure by Buyertomake anysuchdemand ortocollectanypaymentsfromanyotherSeller,orany release of any such other Seller shall not relieve any Seller in a respect of which a demand or collection is not made or Sellers not so released of their obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of Buyer against Sellers, and (v) on disposition by Buyer of any property encumbered by any Purchased Assets, each Seller shall be and shall remain jointly and severally liable for any deficiency.
(b) To the extent that any Seller (the “paying Seller”) pays more than its proportionateshare ofanypayment madehereunder, thepayingSellershall beentitled to seek and receive contribution from and against any other Seller that has not paid its proportionate share; provided, that the provisions of this Section 18.21shall not limit the duties, covenants, agreements, obligations and liabilities of any Seller to Buyer, and, notwithstanding any payment or payments made by the paying Seller hereunder or any setoff orapplication offunds ofthepayingSellerbyBuyer, thepayingSellershall not be entitled to be subrogated to any of the rights of Buyer against any other Seller or any collateralsecurityorguaranteeorrightofsetoffheldbyBuyer,norshallthepayingSeller seek or be entitled to seek any contribution or reimbursement from any other Seller in respectofpaymentsmadebythepayingSellerhereunder,untilallRepurchase
Obligations are indefeasibly paid in full and the Repurchase Documents have been terminated. If any amount shall be paid to the paying Seller on account of such subrogation rights at any time when all such amounts shall not have been paid in full, such amount shall be held by the paying Seller in trust for Buyer, segregated from other funds of the paying Seller, and shall, forthwith upon receipt by the paying Seller, be turnedovertoBuyerintheexactformreceivedbythepayingSeller(dulyindorsedbythe paying Seller to Buyer, if required), to be applied against the Repurchase Obligations, whether matured or unmatured, in such order as Buyer may determine.
(c) The Repurchase Obligations are full recourse obligations to each Seller, and each Seller hereby forever waives, demises, acquits and discharges any and all defenses, and shall at no time assert or allege anydefense, to the contrary.
Section18.22Patriot Act Notice. BuyerherebynotifiesSellerthat Buyeris requiredby the Patriot Act to obtain, verifyand record information that identifies Seller.
Section18.23 Successors and Assigns. Subject to the foregoing, the Repurchase Documents and any Transactions shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns.
Section18.24AcknowledgmentofAnti-PredatoryLendingPolicies.SellerandBuyer each have in place internal policies and procedures that expressly prohibit their purchase of any high cost mortgage loan.
Section18.25RecognitionoftheU.S.SpecialResolutionRegimes.
(a) In the event that Buyer becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from Buyer of this Agreement and/or the Repurchase Documents, and any interest and obligation in or under this Agreement and/or the Repurchase Documents will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement and/or the Repurchase
Documents, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that Buyer or a BHC Act Affiliate of Buyer becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement and/or the Repurchase Documents that may be exercised against Buyer are permittedtobeexercisedtonogreaterextentthansuchDefaultRightscouldbeexercised under the U.S. Special Resolution Regime if this Agreement and/or the Repurchase DocumentsweregovernedbythelawsoftheUnitedStatesorastateoftheUnitedStates.
Section 18.26 Authorized Representatives of Seller and Guarantor. (a) Each individual set forth on Exhibit O (as updated from time to time in accordance with this paragraph) is a representative of each ofSellerandGuarantor(an “AuthorizedRepresentative”), and subject to anyexpress limitations set forthon Exhibit Owithrespect toanysuch Authorized Representative’sauthority,eachAuthorizedRepresentativeisdulyauthorizedonbehalfofSeller andGuarantortodeliverandreceiveallnotices,requests,instructions(including,without
limitation, wiring instructions), Transaction Requests and other information, deliver certificates and documents, and execute and deliver Repurchase Documents (including, without limitation, amendments or supplements thereto), in each case, in connection with this Agreement and the other Repurchase Documents, and (b) a specimen signature for each such Authorized Representative, together with such individual’s title, email address and telephone number, is set forth on Exhibit O hereto. From time to time Seller and Guarantor may update the information set forth on Exhibit O hereto bydelivering to Buyer (including via email) an updated Exhibit O (or a supplement thereto), certified to be true and correct by an existing Authorized Representative of Seller and Guarantor; provided, that at all times Seller and Guarantor shall have not less than four (4) Authorized Representatives.
[SIGNATUREPAGESFOLLOW]
INWITNESSWHEREOF,thePartieshavecausedthisAgreementtobedulyexecuted as of the date first above written.
SELLER:
CLRRELENDINGSUBWF,LLC,a
Delawarelimitedliabilitycompany
By:
Name:
Title:
ACKNOWLEDGEDANDAGREED:
CLRGuarantor:
CIMCOMMERCIALLENDINGREIT,
aMarylandstatutorytrust
By:
Name: Nathan D. DeBacker Title:ChiefFinancialOfficer
CMFTGuarantor:
CIMREALESTATEFINANCETRUST,INC.,
aMarylandcorporation
By:
Name:NathanD.DeBacker
Title: ChiefFinancialOfficer,PrincipalAccounting Officer and Treasurer
BUYER:
WELLSFARGOBANK,NATIONALASSOCIATION
By:
Name:
Title: