Exhibit 10.11
EXECUTIONVERSION
FIRSTAMENDMENTTOMASTERREPURCHASEAGREEMENTANDCONSENTTO RESTRUCTURING
THISFIRSTAMENDMENTTOMASTERREPURCHASEAGREEMENTAND
CONSENTTORESTRUCTURING,datedasofJune24,2026(this“Amendment”),isentered into by and among CITIBANK, N.A., a national banking association (“Buyer”), CLR RE LENDING RF SUB CB, LLC, a Delaware limited liability company (“Seller”), and acknowledged by CIM REAL ESTATE FINANCE TRUST, INC., a Maryland corporation (“Initial Guarantor”), and CIM COMMERCIAL LENDING REIT, a Maryland statutory trust (“Replacement Guarantor”). Capitalized terms used and not otherwise defined herein shall have themeaningsgiventosuchtermsintheRepurchaseAgreement(asdefinedbelowandasamended hereby).
RECITALS
WHEREAS, Buyer and Seller are parties to that certain Master Repurchase Agreement, dated as of December 19, 2023 (as the same has been amended prior to the date hereof, the “Existing Repurchase Agreement”, and as amended by this Amendment, and as hereafter further amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time, the “Repurchase Agreement”);
WHEREAS, the parties hereto desire to make certain amendments and modifications to the Existing Repurchase Agreement; and
WHEREAS, 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 valuableconsideration,thereceiptandsufficiencyofwhichareherebyacknowledged,theparties hereto, intending to be legally bound, agree as follows:
ARTICLE 1
AMENDMENTSTOREPURCHASEAGREEMENT
The Repurchase Agreement is hereby amended to delete the red, stricken text (indicated textually in the same manner as the following example: stricken text) and to add the blue, underlined text (indicated textually in the same manner as the following example: underlinedtext) as attached hereto on Exhibit A.
ARTICLE 2CONSENTTORESTRUCTURING
(a) Asofthedatehereof,CIMGroupHoldings,LLC,aDelawarelimitedliability
company(“CIMGroup”),controlstheentitythatservesastheexternalmanagerofInitial Guarantor.
(b) Onthedatehereof,InitialGuarantorintendstoconsummateaseriesofrestructuring andreorganizationtransactions(collectively,the“Restructuring”)pursuanttowhich,amongother things, the employees, management platform, investment portfolio and certain other assets and subsidiaries of CIM Group, will be contributed to a newly formed operating partnership that will beadirectsubsidiaryofInitialGuarantor,andCIMGroupand/oritsaffiliateswillreceivelimited partnership interests in such operating partnership and non-economic voting preferred shares of Initial Guarantor in exchange for such contributions. Upon consummation of the Restructuring, among other things, (A) Initial Guarantor will no longer be externally managed, (B) CIM Group and/or its affiliates will, through the voting rights of such non-economic voting preferred shares, controlgreaterthanfiftypercent(50%)ofthetotalvotingpowerofallclassesofCapitalStockof InitialGuarantorentitledtovotegenerallyintheelectionofdirectorsofInitialGuarantor,(C)CIM Group and/or its affiliates will be the indirect beneficial owner(s) of greater than fifty percent (50%)of thetotalvotingpowerofallclassesofCapitalStockofReplacementGuarantorentitled to vote generally in the election of directors of Replacement Guarantor, and (D) Replacement Guarantor will continue to be an indirect subsidiary of Initial Guarantor and will be managed by indirect subsidiaries of Initial Guarantor. Immediately after the consummation of the Restructuring, Initial Guarantor will change its name to CIM Group, Inc.
(c) Effective immediately prior to the consummation of the Restructuring, 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 Transaction Document, and (iii) confirms that the consummation of the Restructuring shallnotresultinabreachorviolationofanyrepresentation,warranty,covenantorotherprovision of the Repurchase Agreement or any other Transaction Document.
(d) ReplacementGuarantorreaffirmsitsobligationsundertheGuaranty.
ARTICLE 3 REPRESENTATIONS
Eachof Seller and Buyer represents and warrants (asto itself) to theother party hereto, as
ofthedateofthisAmendment,asfollows:
(a) all representations and warranties made by it in the Transaction Documents to which it is a party are true and correct in all material respects;
(b) it is duly authorized to execute and deliver this Amendment and has taken all necessary action to authorize such execution, delivery and performance;
(c) thepersonsigning thisAmendment onits behalfis dulyauthorized todo soonits
behalf;
(d) theexecution,deliveryandperformanceofthisAmendmentwillnotviolateany
RequirementofLawapplicabletoitoritsorganizationaldocumentsoranyagreementbywhichit is bound or by which any of its assets are affected; and
(e) thisAmendmenthasbeenduly executedand deliveredby it.
ARTICLE4 EXPENSES
Onorpriortothedatehereof,SellershallpayondemandallofBuyer’sout-of-pocketcosts
and expenses, including reasonable fees and expenses of outside counsel, incurred in connection with the preparation, negotiation, execution and consummation of this Amendment.
ARTICLE 5 GOVERNINGLAW
THISAMENDMENTSHALLBECONSTRUEDANDENFORCEDIN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS DOCTRINE APPLIED IN SUCH STATE (OTHER THAN SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
ARTICLE 6 MISCELLANEOUS
(a) Exceptasexpresslyamendedormodifiedhereby,theTransactionDocumentsshall
remaininfullforceandeffectinaccordancewiththeirtermsandareherebyratifiedandconfirmed. AllreferencestotheTransactionDocumentsshallbedeemedtomeantheTransactionDocuments as modified by this Amendment.
(b) ThisAmendmentmaybeexecutedincounterparts,eachofwhichsoexecutedshall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment in electronic format shall be as effective as delivery of a manually executed original counterpart of this Amendment.
(c) The headings in this Amendment are for convenience of reference only and shall not affect the interpretation or construction of this Amendment.
(d) This Amendment may not be amended or otherwise modified, waived or supplemented except as provided in the Repurchase Agreement.
(e) ThisAmendmentcontainsafinalandcompleteintegrationofallpriorexpressions by the parties with respect to the subject matter hereof and shall constitute the entire agreement among the parties with respect to such subject matter, superseding all prior oral or written understandings.
(f) ThisAmendmentandtheRepurchaseAgreement,asamendedhereby,areasingle Transaction Document.
[SIGNATURESFOLLOW]
INWITNESSWHEREOF,thepartieshavecausedthisAmendmenttobedulyexecuted, as of the date first above written.
BUYER:
CITIBANK,N.A.
By:/s/Linsday DeChiaro
Name:LindsayDeChiaro
Title:AuthorizedSignatory
[Citi/CLR – First Amendment to MRA and Consent to Restructuring]
SELLER:
CLRRE LENDINGRFSUBCB, LLC
By:/s/ Nathan D. DeBacker
Name:NathanD.DeBacker
Title:VicePresident,ChiefFinancial Officer and Treasurer
ACKNOWLEDGEDANDAGREED:
INITIAL GUARANTOR:
CIMREALESTATEFINANCETRUST,INC.
By:/s/ Nathan D. DeBacker
Name:NathanD.DeBacker
Title:Chief Financial Officer, Principal Accounting Officer and Treasurer
REPLACEMENT GUARANTOR:CIMCOMMERCIALLENDINGREIT
By:/s/ Nathan D. DeBacker
Name: Nathan D. DeBacker Title:ChiefFinancialOfficer
EXHIBIT A
CONFORMEDREPURCHASEAGREEMENT
Attachedhereto.
EXECUTIONVERSIONCONFORMEDTHROUGHFIRSTAMENDMENTTOMASTERREPURCHASEAGREEMENTANDCONSENTTORESTRUCTURING
MASTERREPURCHASEAGREEMENT
DatedasofDecember18,2023
byandbetween
CLRRELENDINGRFSUBCB,LLC,
asSeller,
and
CITIBANK,N.A.,
asBuyer
TABLE OF CONTENTS
Page
ARTICLE3INITIATION;CONFIRMATION;TERMINATION;FEES 30
ARTICLE5PAYMENTS;COLLECTIONACCOUNT 43
ARTICLE7TRANSFER AND CUSTODY50
ARTICLE 8 SALE, TRANSFER, HYPOTHECATION OR PLEDGE OF PURCHASED ASSETS 51
ARTICLE9 REPRESENTATIONS AND WARRANTIES52
ARTICLE10NEGATIVECOVENANTSOFSELLER 59
ARTICLE11AFFIRMATIVECOVENANTSOFSELLER61
ARTICLE12 SINGLEPURPOSEENTITY65
ARTICLE13EVENTSOFDEFAULT;REMEDIES;SET-OFF 67
ARTICLE15RECORDINGOFCOMMUNICATIONS74
ARTICLE16NOTICESANDOTHERCOMMUNICATIONS 74
ARTICLE17ENTIREAGREEMENT;SEVERABILITY 74
ARTICLE22DISCLOSURERELATINGTOCERTAINFEDERALPROTECTIONS 78
ARTICLE23CONSENTTOJURISDICTION;WAIVERS 79
ARTICLE25INDEMNITY AND EXPENSES80
EXHIBITS
Exhibit I NamesandAddressesforCommunications Exhibit II Form of Transaction Request
Exhibit III Form of Confirmation Statement Exhibit IV AuthorizedRepresentativesofSeller Exhibit V Form of Power of Attorney
Exhibit VI FormofCovenantComplianceCertificate Exhibit VII Due Diligence Checklist
Exhibit VIII FormofMarginCallNotice Exhibit IX List of Competitors
ExhibitX(A)RepresentationsandWarrantiesRegardingEachIndividualPurchasedAsset Consisting of a Whole Loan
ExhibitX(B)RepresentationsandWarrantiesRegardingEachIndividualPurchasedAsset Consisting of a Senior Interest
ExhibitX(C)RepresentationsandWarrantiesRegardingEachIndividualPurchasedAsset Consisting of a Mezzanine Loan
MASTERREPURCHASEAGREEMENT
MASTER REPURCHASE AGREEMENT, dated as of December 18, 2023 (as amended, restated, supplemented or otherwise modified and in effect from time to time, this “Agreement”), by and between CLR RE LENDING RF SUB CB, LLC, a Delaware limited liability company (“Seller”), and CITIBANK, N.A., a national banking association (including any successor thereto and any other Person that shall become a party hereto pursuant to Article 18(b) hereof, “Buyer”).
ARTICLE 1 APPLICABILITY
Subject to the terms of the Transaction Documents, from time to time the parties hereto may enter into transactions in which Seller will sell to Buyer, all of Seller’s right, title and interestinandtocertainEligibleAssets(asdefinedherein)andtheotherrelatedPurchasedItems (as defined herein) (collectively, the “Assets”) against the transfer of funds by Buyer to Seller, with a simultaneous agreement by Buyer to re-sell back to Seller, and by Seller to repurchase, suchAssetsatadatecertainorondemand,againstthetransferoffundsbySellertoBuyer.Each such transaction shall be referred to herein as a “Transaction” and, unless otherwise agreed in writing by Seller and Buyer, shall be governed by this Agreement, including any supplemental terms or conditions contained in any exhibits, schedules or annexes identified herein as applicable hereunder.Each individual transfer of an Eligible Asset shall constitute a distinct Transaction.Notwithstanding any provision or agreement herein, this Agreement is not a commitment by Buyer to engage in Transactions, but sets forth the requirements under which Buyer would consider entering into Transactions from time to time.At no time shall Buyer be obligated to purchase or effect the transfer of any Eligible Asset from Seller to Buyer.Any commitment to enter into a Transaction shall be subject to Buyer’s sole discretion, shall be evidenced byBuyer’s deliveryof a Confirmation pursuant to Article 3(c)(ii)and shall be subject to satisfaction of all terms and conditions of this Agreement.
ARTICLE 2 DEFINITIONS
The following capitalized terms shall have the respective meanings set forth below.“ACLaws”shallmean,collectively,(i)alllaws,rulesandregulationsconcerningor
relating to bribery or corruption, including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977 and all other applicable anti-bribery and corruption laws and (ii) any amendment, extension, replacement or other modification of any of the foregoing from time to time and any corresponding provisions of future laws.
“Accelerated Repurchase Date” shall have the meaning specified in Article 13(b)(i). “AcceptedServicingPractices”,withrespecttoanyPurchasedAsset,shallhavethe
meaning set forth in the Servicing Agreement or, if not defined therein, shall mean those commercial mortgage loan servicing practices ofprudent commercial mortgage lending institutions thatservice commercialmortgageloans of thesametypeassuchPurchasedAsset in
the state where the related underlying real estate directly or indirectly securing or supporting such Purchased Asset is located.
“Account Bank” shall mean JPMorgan Chase Bank, N.A. or any successor selected by Seller and approved by Buyer in its reasonable discretion.
“AccountControlAgreement”shallmeanthatcertainAccountControlAgreement,dated as of the Closing Date, among Buyer, Seller and Account Bank with respect to the Collection Account, as the same may be amended, modified, and/or restated from time to time, and/or any replacement agreement.
“Act of Insolvency” shall mean, with respect to any Person, (a) the filing of a petition, commencing, or authorizing the commencement of any case or proceeding, or the voluntary joining of any case or proceeding under any Insolvency Law, or suffering any such petition or proceedingtobecommencedbyanotherwhichisconsentedto,nottimelycontestedorresultsin entry of an order for relief, or, in the case of a petition not initiated by, on behalf of or with the consent of Seller, is not dismissed or stayed within ninety (90) days; (b) the seeking of or consentingto the appointment of areceiver,trustee,custodian orsimilarofficialforsuchPerson or all or substantially all of the property of such Person; (c) the appointment of a receiver, conservator, or manager for such Person by any governmental agency or authority having the jurisdiction to do so; (d) the making of a general assignment for the benefit of creditors; or (e) the admission in a legal proceeding or in writing bysuch Person of its inabilitygenerallyto pay itsdebts ordischargeitsobligations astheybecomedueormature(includingwithoutlimitation, its obligations under any Transaction Documents).
“Affiliate” shall mean, (i) when used with respect to Seller, only Guarantor and Guarantor’s Subsidiaries, (ii) when used with respect to Initial Guarantor, only Initial Guarantor’s Subsidiaries, (iii) when used with respect to Replacement Guarantor, only Replacement Guarantor’s Subsidiaries and (iv) when used with respect to any other specified Person, any other Person directly or indirectly Controlling, Controlled by or under common Control with, such Person.
“Agreement” shall have the meaning specified in the introductory paragraph hereof. “AlternateRate”shallmean,withrespecttoeachPricingRatePeriod,theperannumrate
ofinterestoftheapplicableBenchmarkReplacement,determinedbyBuyerforsuchPricingRate Period, plus the Applicable Spread.
“Alternate Rate Transaction” shall mean a Transaction at such time as the Pricing Rate therefor is equal to a per annum floating rate of interest equal to the Alternate Rate.
“AML Laws” shall mean, collectively, (i) all laws, rules, regulations and guidelines concerning or relating to money laundering issued, administered and/or enforced by any governmental and/or regulatoryagencyand (ii) anyamendment, extension, replacementorother
modification of any of the foregoing from time to time and any corresponding provisions of future laws.
“ApplicableSpread”shallhavethemeaningspecifiedintheFeeLetter.
“Appraisal”shallmeanaFIRREAcompliantappraisaloftherelatedMortgagedProperty from a third-party appraiser in form and substance satisfactory to Buyer.
“AssetScheduleandExceptionReport”shallhavethemeaningspecifiedintheCustodial Agreement.
“Assets”shallhavethemeaningspecifiedinArticle1.
“Assignment of Leases” shall mean, with respect to anyMortgaged Propertyrelated to a Purchased Asset, any assignment of leases, rents and profits derived from the ownership, operationorleasingofsuchMortgagedProperty,orsimilardocumentorinstrumentexecutedby a Mortgagor in connection with the origination of a Purchased Asset.
“Assignment of Mortgage” shall mean, with respect to any Mortgage, an assignment of themortgage,notice oftransferorequivalentinstrument inrecordableform,sufficientunderthe laws of the jurisdiction wherein the related Mortgaged Property is located to reflect the assignment and pledge of the Mortgage.
“BankruptcyCode”shallmeanTitle11oftheUnitedStatesCode,asamendedfromtime to time, or any successor statute.
“Benchmark” shall mean, (i) initially, the Term SOFR Reference Rate; and (ii) if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then the applicable Benchmark Replacement.
“Benchmark Replacement” ” shall mean, with respect to any Benchmark Transition Event, the sum of (a) the alternate benchmark rate that has been selected by Buyer giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate bytheRelevant Governmental Bodyor (ii) anyevolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for U.S. dollar-denominated commercial mortgage loan repurchase facilities or other similar agreements at such time and (b) the Benchmark Replacement Adjustment; providedthat, such Unadjusted Benchmark Replacement is consistent with the benchmark rate selected by Buyer in its other commercial mortgage loan repurchase facilities with similarly situated counterparties and wherein Buyer has a similar contractual right; provided, further,thatinnoeventshalltheBenchmarkReplacementforanyPricingRatePeriod be deemed to be less than zero percent (0.00%).
“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) thathasbeen selected by Buyer giving due consideration to
(a) any selection or recommendation of a spread adjustment, or method for calculating or determiningsuchspreadadjustment,forthereplacementofthethen-currentBenchmarkwiththe applicable Unadjusted Benchmark Replacement bythe Relevant Governmental Bodyor (b) any
evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current BenchmarkwiththeapplicableUnadjustedBenchmarkReplacementforU.S.dollar-denominated commercial mortgage loan repurchase facilities at such time; providedthat such Benchmark Replacement Adjustment is consistent with the spread adjustment or method forcalculatingordeterminingsuchspreadadjustmentselectedbyBuyerforreplacementofsuch Benchmark with the related Unadjusted Benchmark Replacement in its other commercial mortgageloan repurchase facilities withsimilarlysituated counterparties and whereinBuyerhas a similar contractual right.
“Benchmark Replacement Date” shall mean the earliest to occur of the following events with respect to the then-current Benchmark:
(1) inthecaseofclause(1)or(2)ofthedefinitionof“BenchmarkTransitionEvent,” 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 the Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide the Benchmark (or such component thereof); and
(2) in the case of clause (3)of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative or non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for FinancialBenchmarks;providedthatsuchnon-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (3)and even if any available tenor of such Benchmark (or such component thereof) continues to be provided on such date.
“BenchmarkTransitionEvent”shallmeantheoccurrenceofoneormoreofthefollowing events with respect to the then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of the Benchmark (or the published component used in the calculationthereof)announcingthatsuchadministratorhasceasedorwillceaseto provide the Benchmark (or such component thereof), permanentlyor indefinitely, providedthat, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark (or the published component used in the calculation thereof), the central bank for the currency of the Benchmark, an insolvencyofficial withjurisdictionoverthe administrator forthe Benchmark (or
such component), a resolution authority with jurisdiction over the administrator for the Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark (or such component), which states that the administrator of the Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such componentthereof)permanentlyorindefinitely,providedthat,atthetimeofsuch statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component thereof); or
(3) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark(orsuchcomponentthereof)announcingthattheBenchmark(orsuch component thereof) is not, or as of a specified future date will not be, representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.
“Benchmark Unavailability Period” shall mean, unless and until a Benchmark Replacement is implemented with respect to the then-current Benchmark pursuant to Article3(g)(i)(rather than pursuant to Article 3(g)(iii)), each (if any) Pricing Rate Period for which the Buyer determines that (a) adequate and reasonable means do not exist for ascertaining the component of the Pricing Rate based on Term SOFR (or the then-current Benchmark if a Transaction is then an Alternate Rate Transaction) (including, if the Benchmark is the Term SOFR Reference Rate, that Term SOFR cannot be determined in accordance with the definition thereof)or(b)thatitisunlawfultoaccruePurchasePriceDifferentialbasedonsuchBenchmark or to otherwise use the then-current Benchmark to determine the applicable Purchase Price Differential due for any Pricing Rate Period.
“Business Day” shall mean a day other than (i) a Saturday or Sunday, or (ii) a day in which the New York Stock Exchange or banks in the State of New York are authorized or obligated by law or executive order to be closed.
“Buyer”shallhavethemeaningspecifiedintheintroductoryparagraphhereof.
“Capital Stock” shall mean any and all shares, interests, participations or other equivalents (however designated) of capitalstockof a corporation, anyand all equivalent equity ownershipinterestsinaPersonwhichisnotacorporation,including,withoutlimitation,anyand all member or other equivalent interests in any limited liability company, and any and all warrants or options to purchase any of the foregoing.
“Capitalized Lease Obligations”shallmeanobligationsunder aleasethat are requiredto be capitalized for financial reporting purposes in accordance with GAAP.The amount of a Capitalized Lease Obligation is the capitalized amount of such obligation as would be required to be reflected on thebalancesheetprepared in accordance with GAAP oftheapplicablePerson as of the applicable date.
“ChangeinLaw”shallmeantheintroductionof,orachangein,anyRequirementofLaw or in the interpretation or application thereof, or compliance by Buyer with any request or
directive(whetherornothavingtheforceoflaw)hereafterissuedfromanycentralbankorother Governmental Authority.
“ChangeofControl”shallmeantheoccurrenceofanyofthefollowingevents:(a)a mergeror, consolidation or Division of Seller, (b) a merger or consolidation of any Guarantorandthesurvivingentityisnot(i)a“realestateinvestmenttrust”(asdefinedunderSection856oftheInternalRevenueCode)forU.S.federalincometaxpurposesand(ii)Controlledorexternallymanaged by Manager,such Guarantor or any Affiliate of such Guarantor immediately prior tosuch merger or consolidation,(c) any conveyance, transfer or disposal of all or substantially all ofSeller’sorany Guarantor’sassetstoany Personorentity (otherthan,inthecaseofSeller, salesofPurchasedAssetsintheordinarycourseofbusiness),(d)priortoaGuarantorReplacement Event, any “person” or “group” (within the meaning of Section 13(d) or 14(d) of theExchangeAct)(otherthanManageroranentitythatisControlledbyManager)shallbecome,or obtain rights (whether by means of warrants, options or otherwise) to become, the beneficial owner,directlyorindirectly,offiftypercent(50%)ormoreofthetotalvotingpowerofall classesofCapitalStockofInitialGuarantorentitledtovotegenerallyintheelectionofthe directorsortheapplicableequivalent,(e)any“person”or“group”(withinthemeaningof Section 13(d) or 14(d) of the Exchange Act) (other than Manager, an entitythat is Controlled by ManagerorInitialGuarantor)shallbecome,orobtainrights(whetherby meansofwarrants, options or otherwise) to become,Initial Guarantor, CIM Group or CIM Group and one or moreAffiliatesofCIMGroup,individuallyorcollectively)shallbecomethebeneficialowner,directly or indirectly, of fifty percent (50%) or more of the total voting power of all classes of CapitalStock of Replacement Guarantor entitled to vote generally in the election of the directors or the applicable equivalent, (fe) Replacement Guarantor shall cease to directly or indirectly own and Control,ofrecordandbeneficially,100%oftheCapitalStockofSeller,or(gf)ManagerReplacement Guarantorshall cease to act as the external manager of anybe managed byaSubsidiaryofInitialGuarantor;provided,thataninternalizationofmanagementbyanyGuarantor shall not be deemed a breach of this clause (g).
“CIMGroup”shallmeanCIMGroupHoldings,LLC,aDelawarelimitedliabilitycompany.
“ClosingDate”shallmeanDecember18,2023.
“CMFT Ownership Percentage” shall mean the indirect ownership percentage of Initial Guarantor in Replacement Guarantor from time to time.
“CMFT Repurchase Agreement” shall have the meaning specified in the Fee Letter. “CMFTRepurchaseAgreementRealizedLossAmount”shallmeananamountequalto
the portion, if any, of the Repurchase Price (as such term is defined in the CMFT Repurchase Agreement) which the Buyer (as such term is defined in the CMFT Repurchase Agreement) did not recoverin connection withits exerciseof remediesundertheCMFTRepurchaseAgreement
and final liquidation of the Purchased Assets (as such term is defined in the CMFT Repurchase Agreement).
“Collateral” shall have the meaning specified in Article 6(a). “CollectionAccount”shallhavethemeaningspecifiedinArticle5(c).
“Commercial Asset” shall mean, an Eligible Asset with respect to which the Mortgaged Property consists of office, retail and/or industrial uses (or another property type which Buyer approves on a case by case basis).
“Competitor” shall mean any Person listed on Exhibit IXhereto. “ConfidentialInformation”shallhavethemeaningspecifiedinArticle28(j).
“Confirmation” shall mean a confirmation statement substantiallyin the form of ExhibitIIIhereto, as the same maybe amended, modified and/or restated from time to time.
“Conforming Changes” shall mean, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Business Day,” “Pricing Rate Determination Date,” “Pricing Rate Period,” “Remittance Date,” and “U.S. Government Securities Business Day,” timing and frequency of determining rates and making payments of interest, preceding and succeeding business day conventions and other administrative or operational matters) that Buyer determines may be appropriateornecessarytoreflect theadoptionandimplementation ofanysuchrateortopermit the use and administration thereof by Buyer in a manner substantially consistent with market practice (or, if Buyer decides that adoption of any portion of such market practice is not administrativelyfeasibleorif Buyer determinesthat nomarketpracticefortheadministrationof 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 Transaction Documents).
“Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Contingent Liabilities” shall mean, with respect to any Person as of any date of determination, all of the following as of such date: (a)liabilities and obligations (including any Guarantees) of such Person in respect of “off-balance sheet arrangements” (as defined in the Off-Balance Sheet Rules defined below), (b)obligations, including Guarantees, whether or not required to be disclosed in the footnotes to such Person’s financial statements, guaranteeing in whole or in part anyNon-Recourse Indebtedness, lease, dividend orotherobligation, excluding, however, (i)contractual indemnities (including any indemnity or price-adjustment provision relating to the purchase or sale of securities or other assets), (ii)guarantees of non-monetary obligations which have not yet been called on or quantified, of such Person or anyother Person and (iii) reasonable and customary “bad boy” acts agreed to by such person (as guarantor thereunder) in connection with a mortgage loan or mezzanine loan transaction, and (c)forward
commitments or obligations to fund or provide proceeds with respect to any loan or other financingwhichisobligatoryandnon-discretionaryonthepartofthelender.Theamountofany ContingentLiabilitiesdescribedintheprecedingclause(b)shallbedeemedtobe(i)withrespect to a guarantee of interest or interest and principal, or operatingincome guarantee, the sum of all payments required to be made thereunder (which, in the case of an operating income guarantee, shall be deemed to be equal to the debt service for the note secured thereby), through (x) in the caseofaninterestorinterestandprincipalguarantee,thestateddateofmaturityoftheobligation (and commencing on the date interest could first be payable thereunder), or (y)in the case of an operatingincomeguarantee,thedatethroughwhichsuchguaranteewillremainineffect,and
(ii)with respect to all guarantees not covered bytheprecedingclause(i),anamountequal 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 reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as recorded on the balance sheet and in the footnotes to the most recent financial statements of such Person.“Off-BalanceSheetRules”shallmeantheDisclosureinManagement’sDiscussionandAnalysisAbout Off-BalanceSheetArrangementsandAggregateContractualObligations,SecuritiesActRelease Nos.33-8182;34-47264;FR-67InternationalSeriesReleaseNo.1266FileNo.S7-42-02,68
Fed.Reg.5982(Feb.5,2003)(codifiedof17CFRParts228,229and249).
“Control” shall mean, with respect to anyPerson, 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 ownership of voting securities, the ability to exercise voting power, by contract or otherwise.“Controlling,”“Controlled”and“undercommonControl”havecorrelativemeanings.
“Covenant Compliance Certificate” shall mean an officer’s certificate from Seller substantially in the form of Exhibit VI attached hereto.
“Covered Taxes” shall mean any Taxes imposed on or with respect to Buyer or required tobewithheldordeductedfromapaymenttoBuyerundertheTransactionDocumentsexcluding
(a) branch profits Taxes, franchise Taxes or any Taxes imposed on or measured by net income (howeverdenominated),ineachcase,(i)imposedas aresultofBuyerbeingorganizedunderthe laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposingsuch Tax(oranypolitical subdivision thereof) or(ii)that areOtherConnection Taxes,
(b)anyandallU.S.federalwithholdingTaxesimposedonamountspayabletoorfortheaccount of Buyer with respect to an applicableinterest in a Transactionpursuant to alawthat is ineffect
(i) as of the date of this Agreement, or (ii) if later, as of the date when Buyer becomes a buyer pursuantto Article18(b),exceptineachcasetotheextentthat,pursuanttoArticle5(j),amounts with respect to such Taxes were payable to such Buyer’s assignor immediately before such Buyer became a buyer pursuant to Article 18(b), (c) anyTaxes attributable to Buyer’s failure to comply with Article 5(j)(v)or Article 18(g), and (d) any withholding Taxes imposed under FATCA.
“Credit Event” shall mean, with respect to any Purchased Asset, a material adverse change in the credit characteristics of the related Mortgaged Property, any related Mortgagor or other obligor (including, without limitation, guarantor or sponsor) or the related commercial real estatemarketinwhichtheMortgagedPropertyislocated;provided,however,thataCreditEvent shall not be deemed to exist solelyas a result ofanyevent that results in theincreaseordecrease
of interest rate spreads or other similar benchmarks (including, without limitation, U.S. treasury rates, interest rate swaps, the Term SOFR Reference Rate, the Alternate Rate or the Prime Rate) or any disruption in the commercial mortgage backed securities markets, capital markets or creditmarkets.AnydeterminationthataCreditEventhasoccurredshallbemadebyBuyerinits sole discretion exercised in good faith.
“Custodial Agreement” shall mean the Custodial Agreement, dated as of the Closing Date, byandamongCustodian,SellerandBuyer,asthesamemaybeamended,modifiedand/or restated from time to time, and/or any replacement agreement.
“Custodial Delivery” shall mean compliance by Seller with the delivery obligations set forth in the Custodial Agreement.
“Custodian”shallmeanComputershareTrustCompany,N.A.,oranysuccessorcustodian appointed by Buyer with, so long as no Default or Event of Default has occurred and is continuing, the prior written consent of Seller (which consent shall not be unreasonablywithheld or delayed).
“Default” shall mean any event which, with the giving of notice, the passage of time, or both, would constitute an Event of Default.
“DelawareLLC Act”shallmeanChapter18oftheDelawareLimitedLiabilityCompany Act, 6 Del. C. §§ 18-101 et seq., as amended.
“Dividing LLC” shall mean 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” shall mean the division of a Dividing LLC into two or more domestic limited liabilitycompaniespursuanttoandinaccordancewithSection18-217oftheDelawareLLCAct.
“Dollars” and “$” shall mean freely transferable lawful money of the United States of America.
“Due Diligence Checklist” shall mean, with respect to any Eligible Asset, the due diligence materials set forth on ExhibitVIIhereto, in the case of each item, to the extent applicable.
“Due DiligencePackage”shallmean, with respecttoanyEligibleAsset,(a)theitemson theDueDiligenceChecklist, in thecaseofeachitem, to theextentapplicable,(b)theRequested Exceptions Report and (c)such other documents or information as Buyer or its counsel shall reasonably deem necessary.
“Early Repurchase” shall mean the repurchase of a Purchased Asset as described in Article 3(d).
“EarlyRepurchaseDate”shallhavethemeaningspecifiedinArticle3(d).
“EffectivePurchasePricePercentage”shallhavethemeaningspecifiedintheFeeLetter.
“Eligibility Criteria” shall mean, with respect to any Eligible Asset, as of the PurchaseDate, therefor,
(i) the proposed Purchased Asset is a Whole Loan, Senior Interest or Mezzanine Loan accruing interest at a floating rate based on the Benchmark or any other benchmark rate approved by Buyer in its sole discretion,
(ii) after giving effect to the purchase of the proposed Purchased Asset, the Portfolio Purchase Price Debt Yield (including the proposed Purchased Asset), as determined by Buyer, will be greater than the Minimum Portfolio Purchase Price Debt Yield,
(iii) thereisnomonetaryormaterialnon-monetarydefaultoreventofdefault(beyond all applicable notice and grace periods) under the related Purchased Asset Documents,
(iv) the Mortgaged Property LTV of the proposed Purchased Asset will not exceed the Mortgaged Property LTV Threshold, and
(v) the maximum term of the proposed Purchased Asset, including all extension options, is not more than five (5) years.
“EligibleAsset”shallmeananyperforming(asoftherelatedPurchaseDate), floating-rate Whole Loan, Senior Interest or Mezzanine Loan:
(i) thatisapprovedbyBuyerinitssolediscretionasofthePurchaseDate,
(ii) with respect to which,uponsuch Eligible Assetbecoming aPurchasedAsset,the applicable representations and warranties set forth in Exhibit X to this Agreement are true and correct in all material respects except to the extent disclosed in a Requested Exceptions Report approved byBuyer, as evidenced byBuyer’s execution of a Confirmation with respect thereto,
(iii) which, in the case of a Whole Loan or Senior Interest, is secured bystabilized or transitional Commercial Assets, Multifamily Assets or Hotel Assets, or any combination of the foregoing,andisnotsecuredbyanylandloans,propertiesundergroundupconstruction,for-sale residentialproperties orhealthcareproperties (or, in thecaseofaMezzanineLoan, issecuredby first priority pledges of all of the Capital Stock of Persons that directly or indirectly own stabilized or transitional Commercial Assets, Multifamily Assets or Hotel Assets, or any combination of the foregoing, and not any land, ground up construction properties, for sale residential properties or healthcare properties),
(iv) that satisfies the Eligibility Criteria as of the relevant Purchase Date as determined by Buyer in its sole discretion,
(v) withrespecttowhichtheRelatedPurchasedAsset,ifany,isaPurchasedAsset
and
(vi) withrespecttowhichinthecaseofaWholeLoanand arelatedMezzanineLoan, taken together, the Purchase Price for the Whole Loan does not exceed the aggregate unpaid principal balance of the Whole Loan and the Mezzanine Loan.
Once an Eligible Asset is proposed by Seller and determined to be acceptable for a Transaction by Buyer and becomes a Purchased Asset on a Purchase Date, such Purchased Asset shall be treated as a Purchased Asset for all purposes of this Agreement and shall be subject to all provisions of this Agreement related to Purchased Assets in the same manner as all other Purchased Assets.
“Eligible Participation Interest” shall mean an interest in a performing Whole Loan as identified bySeller toBuyerfrom timeto time(a)which, ifthemajorityeconomicinterest in the Whole Loan is a Purchased Asset, represents a controlling position in such Purchased Asset as reasonably determined by Buyer (unless control is initially held by the companion participation interest in which event control shall move to the Eligible Participation Interest upon the occurrence of an Event of Default under this Agreement), (b)as to which the companion participationinterestwhichisnotaPurchasedAssetisownedbyanAffiliateofGuarantorandis serviced by the Servicer, (c) which is senior to or pari passu with all other interests in such PurchasedAsset,(d)whichisissuedpursuanttoaparticipationagreementacceptabletoBuyerin itssolediscretionexercisedingoodfaithandisrepresentedbyaphysicalparticipationcertificate whichisheldbyCustodianpursuanttotheCustodialAgreement,and(e)whichveststheholders thereof with approval or veto rights over customary major decisions concerning such Whole Loan acceptable to Buyer.Once an Eligible Participation Interest is proposed by Seller and determined to be acceptable for a Transaction byBuyer and becomes a Purchased Asset that is a Senior Interest on a Purchase Date, such Purchased Asset shall be treated as a Purchased Asset
forallpurposesofthisAgreementandshallbesubjecttoallprovisionsofthisAgreementrelated to Purchased Assets in the same manner as all other Purchased Assets
“Environmental Law” shall mean: (a) the Comprehensive Environmental Response, CompensationandLiabilityActof1980,asamendedbytheSuperfundAmendmentsand Re-authorization Act of 1986, 42 U.S.C. §9601 et seq.; (b) the Resource Conservation and RecoveryAct of1976, as amended bythe Hazardous andSolidWasteAmendments of1984, 42
U.S.C. §6901 et seq.; (c) the Clean Air Act, 42 U.S.C. §7401 et seq., as amended by the Clean Air Act Amendments of1990;(d)theCleanWaterAct of1977, 33U.S.C.§1251etseq.;(e)the Toxic Substances Control Act, 15 U.S.C.A. §2601 et seq.; (f) all other applicable federal, state and local laws, ordinances, regulations or policies relating to pollution or protection of human health or the environmentincluding without limitation, airpollution, waterpollution, or theuse, handling, discharge, disposal or release or recoveryof on-site or off-site hazardousmaterials, as each of the foregoing may be amended from time to time; and (g) any and all applicable regulations promulgated under or pursuant to any of the foregoing statutes.
“ERISA”shallmeantheEmployeeRetirementIncomeSecurityActof1974,asamended fromtimetotime,andtheregulationspromulgatedthereunder.SectionreferencestoERISAare to ERISA, as in effect at the date of this Agreement and, as of the relevant date, anysubsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
“ERISA Affiliate” shall mean any corporation or trade or business that is a member of anygroupoforganizations(i)describedinSection414(b)or(c)oftheInternalRevenueCodeof which Seller is a member and (ii) solely for purposes of potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Internal Revenue Code and the lien created under Section 302(f) of ERISA and Section 412(n) of the Internal Revenue Code, described in Section 414(m) or (o) of the Internal Revenue Code of which Seller is a member.
“EventofDefault”shallhavethemeaningspecifiedinArticle13(a).
“ExchangeAct”shallmeantheSecuritiesandExchangeActof1934,asamended. “Exit Fee” shall have the meaning specified in the Fee Letter.
“ExitFeeSideLetter”shallmeanthesideletteragreement,datedasoftheClosingDate, from Citigroup Global Markets, Inc. and accepted and agreed by Seller, as the same may be amended, modified and/or restated from time to time.
“Extension Fee” shall have the meaning specified in the Fee Letter. “Extension Term” shall have the meaning specified in Article 3(h). “FacilityAmount”shallhavethemeaningspecifiedintheFeeLetter.
“Facility Expiration Date” shall mean the day that is the earlier of (i) the Initial Facility Expiration Date (as such date may be extended pursuant to Article 3(h)to the First Extended Facility Expiration Date, the Second Extended Facility Expiration Date and the Third Extended Facility Expiration Date, as applicable) and (ii) any Accelerated Repurchase Date.
“FATCA” means Internal Revenue Code sections 1471 through 1474, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretationsthereof,anyagreementsenteredintopursuanttosection1471(b)(1)oftheInternal Revenue Code, any intergovernmental agreement entered into in connection with the implementation of such sections of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement.
“FDIA” shall have the meaning specified in Article 21(c). “FDICIA”shallhavethemeaningspecifiedinArticle21(d).
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States.
“Fee Letter”shallmeantheletter agreement,dated asofthedatehereof,fromBuyerand accepted and agreed bySeller, asthesamemaybeamended,modifiedand/orrestatedfromtime to time.
“Filings”shallhavethemeaningspecifiedinArticle6(c).
“FIRREA”shallmeantheFinancialInstitutions,Reform,RecoveryandEnforcementAct of 1989.
“FirstExtendedFacilityExpirationDate”shallhavethemeaningspecifiedinArticle
3(h).
“Fitch” shall mean Fitch, Inc. and any successor thereto. “FundingFee”shallhavethemeaningspecifiedintheFeeLetter.
“FutureFundingAdvanceDraw”shallhavethemeaningspecifiedinArticle3(e)(iii).
“FutureFundingAdvanceDrawRequest”shallhavethemeaningspecifiedin
Article3(e)(iii).
“GAAP” shall mean accounting principles generally accepted in the United States of America consistently applied as in effect from time to time.
“Governmental Authority” shall mean any national or federal government, any state, regional, local or other political subdivision thereof with jurisdiction and any Person with jurisdiction exercising executive, legislative, judicial, taxing, regulatory or administrative functions of orpertainingto government(includinganyapplicablesupranationalbodiessuchas the European Union or the European Central Bank).
“Ground Lease” shall mean a lease creating a leasehold estate in real propertywhere the fee owner as the ground lessor conveys for a term or terms of years its entireinterest in the land andbuildingsandotherimprovements,ifany,comprisingthepremisesdemisedundersuchlease to theground lessee (who may, in certain circumstances, own the buildingand improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not
include industrial development agency (IDA) or similar leases for purposes of conferring a tax abatement or other benefit.
“Guarantee” shall mean, with respect to any Person, any obligation of such Person directly or indirectly guaranteeing any Indebtedness of any other Person or in any manner providing for the payment of any Indebtedness of any other Person or otherwise protecting the holder of such Indebtedness against loss (whether by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, or to take-or-pay or otherwise); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.The amount of any Guarantee of a Person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which the Guarantee is made and (b) the maximum amount for which such Person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation or maximum amount for which such Person may be liable is not stated or determinable, in which case the amount of such Guarantee shall be such Person’smaximumreasonablyanticipatedliabilityinrespectthereofasdeterminedbysuch
PersoninaccordancewithGAAP.Theterms“Guarantee”and“Guaranteed”usedasverbsshall have correlative meanings.
“Guarantor” shall mean, (i) prior to a Guarantor Replacement Event, Initial Guarantor and Replacement Guarantor, individually or collectively, as the context may require, on a joint and several basis until the Guarantor Replacement Event, and, (ii) from and after a Guarantor Replacement Event, Replacement Guarantor.
“GuarantorReplacementEvent”shallhavethemeaningspecifiedintheGuaranty. “Guarantor Threshold” shall have the meaning specified in the Fee Letter.
“Guaranty” shall mean the Guaranty, dated as of the Closing Date, from Guarantor in favor of Buyer, as the same maybe amended, modified and/or restated from time to time.
“Hotel Asset” shall mean, an Eligible Asset with respect to which the Mortgaged Property consists of one or more hotel properties.
“Income” shall mean, with respect to any Purchased Asset at any time, all monies collected from or in respect of such Purchased Asset, including without limitation, payments of interest,principal,repayment,rentalorotherincome,insuranceandliquidationproceeds,plusall proceedsfromsaleorotherdispositionofsuchPurchasedAsset,butexcludingallrelatedescrow and reserve payments and all expensereimbursement payments, which shall beapplied pursuant totheServicingAgreement.Fortheavoidanceofdoubt,Incomeshallnotinclude(i)origination fees and expense deposits paid in connection with the origination and closing of the Purchased Asset or (ii) if Servicer has the right to deduct fees or other amounts from such amounts collected by Servicer in accordance with the Servicing Agreement, the amount of such fees and amounts.
“Indebtedness”shallmean,withrespecttoanyPersononanydate,allofthefollowingon such date, whether or not included as indebtedness or liabilities in accordance with GAAP determined without duplication:
(i) obligations in respect of money borrowed (including principal, 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 anunderstandingoragreement,contingentorotherwise,torepurchasesuchpropertyorassets,or otherwise);
(ii) obligations,whetherornotformoneyborrowed(A)representedbynotespayable, letters ofcredit (whether or not thesamehavebeenpresentedforpayment)ordraftsaccepted, in each caserepresentingextensions of credit,(B) evidenced bybonds, debentures, notes or similar instruments, (C) 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 propertyor services rendered, or (D) in connection with the issuance of preferred equityor trust preferred securities;
(iii) CapitalizedLeaseObligations;
(iv) Intentionallyomitted;
(v) Off-BalanceSheetObligations;
(vi) obligationstopurchase,redeem,retire,defeaseorotherwisemakeanypaymentin respect of anymandatoryredeemablestock issued bysuch Person oranyotherPerson (inclusive of forward equity contracts), valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends;
(vii) as applicable, all obligations of such Person (but not the obligation of others) in respect of any keep well arrangements, credit enhancements, contingent or future funding obligations, purchase obligations, repurchase obligations, sale/buy-back agreements, takeout commitments or forward equity commitments, in each case evidenced by a binding agreement (excluding any such obligation to the extent the obligation can be satisfied by the issuance of equity interests (other than mandatory redeemable stock));
(viii) allrecourseindebtednessandallindebtednessofotherPersonswhichsuchPerson has guaranteed or is otherwise recourse to such Person (other than pursuant to any guarantee of customary non-recourse exceptions, but only to the extent they are contingent);
(ix) 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 Liens permitted hereunder) on property or assets owned by such Person, even though such Personhasnotassumedorbecomeliableforthepaymentofsuchindebtednessorotherpayment obligation; providedthat, if such Person has not assumed or become liable for the payment of suchindebtedness, thenforthepurposes ofthisdefinition theamount ofsuchindebtedness shall not exceed the market value of the property subject to such Lien;
(x) allContingentLiabilities;
(xi) all obligations of such Person incurred in connection with the acquisition or carrying of fixed assets by such Person or obligations of such Person to pay the deferred purchase or acquisition price of propertyor assets, including contracts for the deferred purchase price of property or assets that include the procurement of services;
(xii) indebtedness of general partnerships for which such Person is liable as a general partner (whether secondarily or contingently liable or otherwise); and
(xiii) obligations to fund capital commitments under any articles or certificate of incorporation or formation, by-laws, partnership, limited liability company, operating or trust
agreement and/or other organizational, charter or governing documents, subscription agreement or otherwise.
For allpurposeshereof,the Indebtedness of anyPersonshallincludetheIndebtednessof anypartnershiporjointventure(otherthanajointventurethatisitselfacorporationorlimited
liabilitycompany)inwhichsuchPersonisageneralpartnerorajointventurer,unlesssuch Indebtedness is expressly made non-recourse to such Person.
“IndemnifiedAmounts”and“IndemnifiedParties”shalleachhavethemeaningspecified in Article 25(a).
“IndependentDirector”shallmeananaturalPersonwho:
(a) is not at the time of initial appointment and has never been, and will not while serving as Independent Director be: (i) a stockholder, director, officer, employee, partner, member(otherthana“specialmember”or“springingmember”),manager(withtheexceptionof servingas the Independent Director ofSeller oranyAffiliatethereof), attorneyorcounsel ofany SellerPartyoranyAffiliateorequityownerofanySellerParty;(ii)acustomer,supplierorother Person who derives any of its purchases or revenues (other than any revenue derived from servingastheIndependentDirectorofsuchparty)fromitsactivitieswithanySellerParty,orany Affiliate or equity owner of any Seller Party; (iii) a Person Controlled, Controlling or under common Control with any such stockholder, director, officer, employee, partner, member, manager, attorney, counsel, equityowner, customer, supplier or other Person of anySellerParty or anyAffiliate or equityowner of anySeller Party; or (iv) a member of the immediate familyof any such stockholder, director, officer, employee, partner, member, manager, attorney, counsel, equity owner, customer, supplier or other Person of any Seller Party or any Affiliate or equity owner of any Seller Party; and
(b) has (i) prior experience as an independent director or Independent Director for a corporation, a trust or limited liability company whose charter documents required the unanimous consent of all independent directors or Independent Directors thereof before such corporation, trust or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (ii) at least three (3) years of employment experience and who is provided by CT Corporation, Corporation Service Company, National CorporateResearch,Ltd.,NationalRegisteredAgents,Inc.,WilmingtonTrustCompany,Stewart Management Company, Lord Securities Company or Puglisi & Associates, or if none of these companies is then providing professional independent directors, another nationally recognized companyreasonablyacceptabletoBuyer,thatisnotanAffiliateofSellerandthatprovides,inter alia, professional independent directors or Independent Directors in the ordinary course of their respective business to issuers of securitization or structured finance instruments, agreements or securities or lenders or borrowers originating commercial real estate loans for inclusion in securitization or structured finance instruments, agreements or securities (a “ProfessionalIndependent Director”) and is an employee of such a company or companies at all times during his or her service as an Independent Director.
Anatural Person whosatisfies the foregoingdefinition except forbeing(orhavingbeen) theindependentdirectororIndependentDirectorofa“specialpurposeentity”thatisanAffiliate of any Seller Party (provided that such Affiliate does not or did not own a direct or indirect
equity interest in Seller) shall not be disqualified from serving as an Independent Director, providedthatsuchnaturalPersonsatisfies allothercriteriasetforthaboveandthat thefeessuch individualearnsfromservingasindependentdirectororIndependentDirectorofAffiliatesof
Seller or in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual incomeforthat year.Anatural person who satisfies theforegoingdefinition other than subparagraph(a)(ii)shall not bedisqualified from serving as an Independent Director if such individual is a Professional Independent Director and such individual complies with the requirementsoftheprevioussentence.Forpurposesofthisparagraph,a“specialpurposeentity” is an entity whose organizational documents contain restrictions on its activities and impose requirements intended to preserve such entity’s separateness that are substantially similar to the provisions of Article 12 hereof.
“Initial Facility Expiration Date” shall mean December 18, 2025 (or if such day is not a Business Day, the immediately succeeding Business Day).
“Initial Guarantor” shall mean CIM Real Estate Finance Trust, Inc., a Maryland corporation.
“InsolvencyLaws” shall mean the BankruptcyCode and all other applicable liquidation, conservatorship, bankruptcy, dissolution, moratorium, rearrangement, receivership, insolvency, reorganization,suspensionofpaymentsandsimilardebtorrelieflawsfromtimetotimeineffect affecting the rights of creditors generally.
“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, or any successor statute.
“Knowledge” shall mean, whenever in this Agreement or any of the Transaction Documents, or in any document or certificate executed on behalf of any Seller Partypursuant to the Transaction Documents, reference is made to the knowledge of any such Seller Party (whether by use of the words “Knowledge” or “Know”), unless otherwise expressly specified, sameshallmean(a)theactualknowledgeoftheChiefExecutiveOfficer,ChiefFinancialOfficer or Head of Portfolio Oversight of Seller or Guarantor or (b)with respect to any representations, warranties, certifications or statements with respect to any Purchased Asset, the actual knowledge of those individual employees of Guarantor, Seller or the manager of Guarantor having the title of Vice President or above who have responsibility for the origination or acquisition, as applicable, underwriting, servicing or sale of such Purchased Asset.
“Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference,priorityorothersecurityagreementorpreferentialarrangementofanykindornature whatsoever (including, without limitation, anyconditional sale orothertitle retentionagreement and any financing lease having substantially the same economic effect as any of the foregoing), andthefilingofanyfinancingstatementundertheUCCorcomparablelawofanyjurisdictionin respect of any of the foregoing.
“Manager” shall mean, individually and/or collectively, as the context mayrequire, CIMReal EstateFinanceManagement, LLC, aDelaware limited liabilitycompany, CIM Commercial
Lending REIT Management, LLC, a Delaware limited liability company, and/or any otherexternalmanagerdirectlyorindirectlyControlledbyorundercommonControlwithCIMGroup,
LLC,CIMRealEstateFinanceManagement,LLC,CIMCommercialLendingREITManagement, LLC, Initial Guarantor or Replacement Guarantor.
“Mandatory Early Repurchase Event” shall mean, with respect to any Purchased Asset, andinthecaseofanySeniorInterestorMezzanineLoan,anyrelatedWholeLoan,asapplicable,
(a) such Purchased Asset is subject to a breach of a representation and warranty set forth in Exhibit Xhereto in any material respect, as determined by Buyer, in its sole discretion exercised in good faith (except to the extent disclosed in a Requested Exceptions Report and approved by Buyer in writing),
(b) in respect of which the Purchased Asset File has not been delivered to the Custodian in accordance with the terms of the Custodial Agreement (except to the extent disclosed in a Trust Receipt issued bythe Custodian on or prior to the Purchase Date),
(c) such Purchased Asset has been released from the possession of the Custodian undertheCustodialAgreementtoSellerforaperiodinexcessofthetimeperiodpermittedunder the Custodial Agreement,
(d) aPurchasedAssetEventofDefaultexistswithrespecttosuchPurchasedAsset,
(e) such Purchased Asset has not been repurchased on the applicable Repurchase Date, or
(f) Seller fails to purchase any Related Purchased Asset simultaneously with the repurchase of such Purchased Asset.
“MarginAmount”shallhavethemeaningspecifiedintheFeeLetter.
“Margin Call Deadline” shall mean, the close of business on the second (2nd) Business Day following the Business Day on which a Margin Call Notice is delivered; provided, that if Seller notifies Buyer in writing that it does not have sufficient cash on hand to fully satisfy the Margin Deficit by the close of business on the second (2nd) Business Day following the Business Day on which such Margin Call Notice is delivered, then the Margin Call Deadline shall be extended to the close of business on the fifth (5th) Business Dayfollowing the Business Day on which a Margin Call Notice is delivered, so long as (x) by the close of business on the second (2nd) Business Day following the Business Day on which a Margin Call Notice is delivered, Seller certifies to Buyer that it has made a cash payment in reduction of the Purchase Price of the applicable Transaction in an amount equal to all cash on hand then available to Sellerand(y)bythefifth(5th)BusinessDayfollowingtheBusinessDayonwhichaMarginCall Noticeisdelivered,SellerreducesthePurchasePriceoftheapplicableTransactioninanamount sufficient to eliminate the Margin Deficit.
“MarginCallNotice”shallhavethemeaningspecifiedinArticle4(a).
“MarginDeficit”shallmeananamountdeterminedbyBuyer,asofanydate,asfollows:
(i) the positive difference (if any) between the aggregate Margin Amount for all Purchased Assets and the aggregate Market Value of all Purchased Assets; or
(ii) commencing at any time when the Portfolio Purchase Price Debt Yield is less than the Minimum Portfolio Purchase Price Debt Yield, an amount which, after application of such amount to the reduction of the aggregate outstanding Purchase Price, will cause the
Portfolio Purchase Price Debt Yield to be equal to the Minimum Portfolio Purchase Price Debt Yield.
“Margin Excess” shall mean, with respect to any Purchased Asset on any date, the product of (a)the amount by which the Market Value of such Purchased Asset exceeds the Margin Amount ofsuchPurchasedAsset onsuchdate, multiplied by(b)themaximumPurchase Price Percentage for such Purchased Asset.
“MarginExcessAdvance”shallhavethemeaningspecifiedinArticle3(e)(iv). “Margin Excess Request” shall have the meaning specified in Article 3(e)(iv).
“MarketValue”shallmean,withrespecttoanyPurchasedAsset,onanydate,themarket value for such Purchased Asset, as determined by Buyer in its sole discretion exercised in good faith; provided, that notwithstanding the foregoing, such Market Value will not be adjusted by Buyer for any Purchased Asset after the related Purchase Date for purposes of determining if a Margin Deficit exists except upon the determination by Buyer that a Credit Event has occurred and is continuing with respect to such Purchased Asset.Without limiting the foregoing, the Market Value may be reduced by Buyer, in Buyer’s sole discretion (including to zero) with respect to any Purchased Asset
(i) in respect of which there is a breach of any representation or warranty contained inthis Agreement in anymaterial respect (otherthan abreachdisclosedtoBuyerin aRequested Exceptions Report),
(ii) in respect of which a Purchased Asset Event of Default has occurred and is continuing under the related Purchased Asset Documents, or
(iii) ifsuchPurchasedAssetisnotrepurchasedonitsRepurchaseDate,fromandafter the Repurchase Date of such Purchased Asset.
TheMarketValueofaPurchasedAssetasofthePurchaseDatewillbesetforthintheConfirmation executed in connection with the Transaction for such Purchased Asset.
“Material Adverse Effect” shall mean a material adverse effect on (a)the financial condition orresultsofoperations(orprospects)ofSellerParties,takenasawhole,(b)theability ofanySellerPartytoperformitsobligationsunderanyoftheTransactionDocumentstowhichit is aparty, (c)thevalidityor enforceabilityof anyof the Transaction Documents or (d)the rights and remedies of Buyer under any of the Transaction Documents.
“MezzanineBorrower”shallmeantheobligoronanyapplicableMezzanineNote.
“Mezzanine Loan” shall mean a mezzanine loan secured by pledges of 100% of the Capital Stock of the Mortgagor under a related Whole Loan which is a Purchased Asset.
“Mezzanine Loan Documents” shall mean, respect to any Purchased Asset that is a MezzanineLoan,theMezzanineNote,thosedocumentsexecutedinconnectionwith,evidencing or governing such Mezzanine Loan, including, without limitation, those documents which are required to be delivered to Custodian under the Custodial Agreement.
“Mezzanine Note” shall mean the original executed promissory note or other tangible evidence of the Mezzanine Loan indebtedness.
“Minimum Portfolio Purchase Price Debt Yield” shall have the meaning specified in the Fee Letter.
“Moody’s” shall mean Moody’s Investors Service, Inc. and any successor thereto. “Mortgage”shallmeanamortgage,deedoftrust,deedtosecuredebtorotherinstrument,
creating a valid and enforceable first Lien on or a first priority ownership interest in (subject to Permitted Encumbrances) an estate in fee simple in real propertyand the improvements thereon or a ground lease, securing a Mortgage Note or similar evidence of indebtedness.
“MortgageLoan”shallmeanawholemortgageloanthatissecuredbyafirstLienonone or more Commercial Assets, Multifamily Assets or Hotel Assets.
“Mortgage Note” shall mean a note or other evidence of indebtedness of a Mortgagor secured by a Mortgage.
“Mortgaged Property” shall mean, with respect to any Mortgage Loan, the mortgaged property securing such Mortgage Loan.
“Mortgaged Property LTV” shall mean, with respect to any Purchased Asset, as of the related Purchase Date, a fraction (expressed as a percentage) (A)the numerator of which is the outstanding principal balance of such Purchased Asset and (B)the denominator of which is the “as-is” appraised value as identified on the most recent Appraisal(s) of the related Mortgaged Property or Mortgaged Properties.
“MortgagedPropertyLTVThreshold”shallhavethemeaningsetforthintheFeeLetter. “Mortgagor”shallmeantheobligoronaMortgageNoteandthegrantoroftherelated
Mortgage.
“Multiemployer Plan” shall mean a multiemployer plan defined as such in Section 3(37) of ERISA to which contributions have been, or were required to have been, made by Seller or any ERISA Affiliate and that is covered by Title IV of ERISA.
“Multifamily Asset” shall mean, an Eligible Asset with respect to which the Mortgaged Propertyconsistsofrealpropertywithfive(5)ormoreresidentialunits(includingmixeduse
multi-family/office and multi-family retail as to which the majority of the underwritten revenue is from residential rental units), and which mayinclude mobile housing and student housing.
“Non-Controlling Participation Interest” shall mean an interest in any Whole Loan as identifiedbySellertoBuyerfromtimetotimewhichdoesnotrepresentanEligibleParticipation Interest in such Whole Loan as reasonably determined by Buyer.
“Non-Recourse Indebtedness” shall mean Indebtedness of a Person for borrowed money in respect of which recourse for payment (except for customary exceptions for fraud, misapplication of funds, environmental indemnities, Act of Insolvency, non-approved transfers or other events) is contractually limited to specific assets of such Person encumbered by a Lien securingsuch Indebtednessorto aspecialpurposevehiclesubsidiaryofsuchPersonwhoseonly
assets are such specific assets (solely to the extent that such special purpose vehicle is not subject to a substantive consolidation with such Person).
“Non-U.S.Person”shallhavethemeaningspecifiedinArticle5(j)(v)(b)(II).
“OFAC” shall mean the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of State.
“Off-Balance Sheet Obligations” shall mean, with respect to any Person on any date, to theextentnotincludedasaliabilityonthebalancesheetofsuchPerson,allofthefollowingwith respecttosuchPersonasofsuchdate:(a)monetary obligationsunderany financingleaseor so-called “synthetic,” tax retention or off-balance sheet lease transaction which, upon the application of any Insolvency Laws, would be characterized as Indebtedness, (b)monetary obligations under any sale and leaseback transaction which 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 which (i) is characterized as Indebtedness for tax purposes but not for accounting purposes, or (ii) is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person (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).
“OtherConnectionTaxes”shallmeanTaxesimposedonBuyerasaresultofapresentor former connection between Buyer and the jurisdiction imposing such Tax (other than connections 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 Transaction Document or sold or assigned an interest in any Transaction or Transaction Document).
“Other Taxes” shall have the meaning specified in Article 5(j)(ii). “ParticipantRegister”shallhavethemeaningspecifiedinArticle18(e).
“Patriot Act” shall mean, collectively, (i) the Uniting and Strengthening America by ProvidingAppropriateToolsRequiredto InterceptandObstructTerrorismAct(USAPATRIOT ACT)of2001,asthesamewasrestoredandamendedbytheUnitingandStrengtheningAmerica
by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act (USA FREEDOM Act) of 2015, (ii) all statutes, orders, rules and regulations of the United States government and its various executive departments, agencies and offices related to applicable anti-money laundering laws, rules and regulations and (iii) anyamendment, extension, replacement or other modification of any of the foregoing from time to time and any corresponding provisions of future laws.
“Periodic Term SOFR Determination Day” shall have the meaning set forth in the definition of “Term SOFR.”
“Permitted Encumbrances” shall mean, with respect to any Purchased Asset (a) such liens, easements, rights and encumbrances as are permitted by the related Purchased Asset Documents and (b) Liens granted pursuant to the Transaction Documents.
“Person”shallmean anindividual, corporation,limitedliabilitycompany,businesstrust, partnership, joint tenant or tenant-in-common, trust, joint stock company, joint venture, unincorporated organization, or any other entity of whatever nature, or a Governmental Authority.
“Plan” shall mean an employee benefit or other plan established or maintained by Seller oranyERISAAffiliateduringthefiveyearperiodendedpriortothedateofthisAgreementorto which Seller or any ERISA Affiliate makes, is obligated to make or has, within the five year period ended prior to the date of this Agreement, been required to make contributions and that is covered by Title IV of ERISA or Section 302 of ERISA or Section 412 of the Internal Revenue Code, other than a Multiemployer Plan.
“POATrigger”shallhavethemeaningspecifiedinArticle13(b).
“PortfolioPurchasePriceDebtYield”shallhavethemeaningspecifiedintheFeeLetter.
“Pre-Purchase Legal/Due Diligence Review Fee” shall mean, in connection with each Purchased Asset proposed to be subject to a Transaction, a non-refundable reimbursement payable by Seller to Buyer, in the amount of Buyer’s reasonable out-of-pocket attorneys’ fees and disbursements of outside counsel; provided that, with respect to any Purchased Asset for which the related Mortgaged Propertyconsists of a single property, the Pre-Purchase Legal/Due Diligence Review Fee shall be no greater than $7,500 per proposed Purchased Asset (unless Buyer and Seller consent to a greater amount in advance).
“PricingRate”shallhavethemeaningspecifiedintheFeeLetter.
“Pricing Rate Determination Date” shall mean, (a) with respect to any SOFR Based Transaction, the Periodic Term SOFR Determination Day with respect to such Pricing Rate Period and (b) with respect to any Transaction that is not a SOFR Based Transaction, (i) if the component of the Pricing Rate based on Term SOFR (or the then-current Benchmark if the Transaction is then an Alternate Rate Transaction) is replaced with the Prime Index Rate pursuant to Article 3(g)(iii)hereof, the date that is two (2) Business Days prior to the commencement date of such Pricing Rate Period, or (ii) if the Transaction is an Alternate Rate
Transaction,thedateandtimedeterminedbyBuyerinaccordancewiththeConforming Changes.
“Pricing Rate Period” shall mean, with respect to any Transaction and any Remittance Date,(a)inthecaseofthefirstPricingRatePeriod,theperiodcommencingonandincludingthe PurchaseDateforsuchTransactionandendingonandexcludingthefollowingRemittanceDate, and (b) in the case of any subsequent Pricing Rate Period, the period commencing on and including the immediately preceding Remittance Date and ending on and excluding the followingRemittanceDate;provided,however,thatinnoeventshallanyPricingRatePeriodfor a Purchased Asset end subsequent to the scheduled Repurchase Date for such Purchased Asset.
“Prime Index Rate” shall mean the rate of interest published in The Wall Street Journal from time to time as the “Prime rate” for the U.S. If more than one such “Prime rate” is published in The Wall Street Journal for a day, the average of such “Prime rates” shall be used, and such averageshall be rounded up to thenearest1/100th ofonepercent(0.01%). IfTheWall Street Journal ceases to publish the “Prime rate” for the U.S., Buyer shall select an equivalent
publication that publishes such “Prime rate,” and if such “Prime rates” are no longer generally published or are limited, regulated or administered by a governmental or quasigovernmental body,thenBuyershallselectacomparableinterestrateindex.Notwithstandingtheforegoing,in no event will the Prime Index Rate be deemed to be less than zero.
“Prime Rate” shall mean, with respect to each Pricing Rate Period, an amount equal to the per annum rate of interest equal to the Prime Index Rate plus the Prime Rate Spread; provided, however, that such rate shall not be less than the Applicable Spread for each Transaction.
“Prime Rate Transaction” shall mean a Transaction at such time as the Pricing Rate therefor is equal to the Prime Rate.
“Prime Rate Spread” shall mean the difference (expressed asthenumberofbasispoints, and which maybe apositiveornegativevalueorzero)between(a)thearithmeticmean ofTerm SOFR (or the applicable Benchmark Replacement) plus the Applicable Spread calculated over the ninety (90) day period prior to the date Term SOFR (or such Benchmark Replacement) was last applicable to a Transaction and (b) the arithmetic mean of the Prime Index Rate calculated over the ninety(90) dayperiod prior to the date Term SOFR (or such Benchmark Replacement) was last applicable to a Transaction.
“Principal Payment” shall mean, with respect to any Purchased Asset, any payment or prepayment of principal received or applied by Seller or its designated agent or Servicer as a payment or prepayment of principal in respect thereof.
“Purchase Date” shall mean, with respect to any Purchased Asset, the date on which Buyer purchases such Purchased Asset from Seller hereunder.
“PurchasePrice”shallhavethemeaningspecifiedintheFeeLetter.
“PurchasePriceDebtYield”shallhavethemeaningspecifiedintheFeeLetter.
“PurchasePriceDifferential”shallhavethemeaningspecifiedintheFeeLetter. “Purchase Price LTV” shall have the meaning specified in the Fee Letter. “Purchase Price Percentage” shall have the meaning specified in the Fee Letter.
“PurchasedAsset”shallmean(a)withrespecttoanyTransaction,theEligibleAsset,and any related rights, interests or claims of any kind with respect to such Eligible Asset sold by Seller to Buyer in such Transaction and (b) with respect to the Transactions in general, all Eligible Assets sold bySellerto Buyer (otherthanPurchased Assetsthathavebeen repurchased bySeller), in the case of each of sub-clauses (a)and (b)above,includingtothe extent related to the Purchased Assets, all of Seller’s right, title and interest in and to, (i) the Purchased Asset Documents, (ii) the Servicing Rights, (iii) the Servicing Agreement, (iv) the Servicing Records,
(v)mortgageguaranties,mortgageinsurance,insurancepolicies,insurancecertificates,insurance claims, insurance proceeds, collection and escrow accounts, letters of credit, forward trades and take out commitments, (vi) the outstanding principal balances of the Purchased Assets, not just the amount advanced by Buyer to Seller in respect of the Purchase Price of such Purchased Asset, (vii) Income paid or payable in connection with such Purchased Asset during the time
such Purchased Asset is subject to a Transaction, until such Purchased Asset is repurchased by Seller hereunder, (viii) indemnities, warranties or other credit support or enhancement, (ix) all related pledged collateral and (x) all supporting obligations of any kind.Any Purchased Asset that is repurchased by Seller in accordance with this Agreement shall cease to be a Purchased Asset.
“Purchased Asset Documents” shall mean, with respect to a Purchased Asset, the documents comprising the Purchased Asset File for such Purchased Asset.
“Purchased Asset Event of Default” shall mean for any Purchased Asset, an “Event of Default” as defined in the Purchased Asset Documents for such Purchased Asset;providedthat, notwithstanding anything herein or in the Purchased Asset Documents to the contrary, if a Purchased Asset Event of Default occurs with respect to a Purchased Asset (subject to the expiration of any applicable notice, cure or grace periods) which is a Mezzanine Loan, then a Purchased Asset Event of Default shall be deemed tooccur with respect to anyPurchased Asset in the form of a Whole Loan or Senior Interest secured by the same Mortgaged Property that indirectly secures such Mezzanine Loan.
“PurchasedAssetFile”shallmeanthedocumentsspecifiedasthe“PurchasedAssetFile” with respect to each Purchased Asset in the Custodial Agreement, together with any additional documents and information required to be delivered to Buyer or its designee (including the Custodian) for inclusion in the Purchased Asset File for such Purchased Asset pursuant to this Agreement and/or the Custodial Agreement.
“Purchased Items” shall mean all of Seller’s right, title andinterest in, to andunder each of the following items of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located:
(a) thePurchasedAssets;
(b) all proceeds relating to the sale, securitization, liquidation, or other disposition of the Purchased Assets;
(c) all “general intangibles”, “accounts”, “chattel paper”, “investment property”,“instruments”,“securitiesaccounts”and“depositaccounts”,eachasdefinedin the UCC, relating to or constituting anyand all of the foregoing; and
(d) all replacements, substitutions or distributions on or proceeds, payments, Income and profits of, and records (but excluding any financial models or other proprietaryinformation) and files relating to anyand all of anyof the foregoing.
“Qualified Transferee”shallmean (a)anAffiliateofBuyeror(b)aninsurancecompany, bank, savings and loan association, investment bank, trust company, commercial credit corporation,pensionplan,pension fund,pensionfundadvisoryfirm,mutualfund,governmental entity or plan, finance company, fund or other financial institution that is not a Competitor, in each case having total assets in excess of $500,000,000.
“Qualified Transferee Requirements” shall mean any requirement under any Purchased Asset Document that theholder or thetransfereeof therelatedPurchased Asset be aqualified or eligibletransferee,qualifiedinstitutionallenderorqualifiedoreligiblelender(howeverdefined).
“Register”shallhavethemeaningspecifiedinArticle18(d).
“Related Credit Enhancement” shall have the meaning specified in Article 6(a).“RelatedPurchasedAsset”shallmean(i)withrespecttoanyWholeLoanorSenior
Interest which is a Purchased Asset, anyMezzanine Loan related to such Whole Loan or Senior Interest and (ii) with respect to any Mezzanine Loan which is a Purchased Asset, the related Whole Loan or Senior Interest.
“RelevantGovernmentalBody”shallmeantheFederalReserveBoardand/ortheFederal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or anysuccessor thereto.
“Remittance Date” shall mean the fifteenth (15th) calendar day of each month, or the immediatelysucceeding Business Day,ifsuchcalendardayshallnotbeaBusinessDay,orsuch other day as is mutually agreed to in writing by Seller and Buyer.
“Replacement Guarantor” shall mean CIM Commercial Lending REIT, a Maryland statutory trust.
“Representatives”shallhavethemeaningspecifiedinArticle28(j).
“Repurchase Date”shallmean, with respect to anyPurchasedAsset,theearliesttooccur of (a)the date set forth in the applicable Confirmation, or if such dayis not a Business Day, the immediately following Business Day; (b) the maturity date of such Purchased Asset (as same maybeextendedpursuanttothePurchasedAssetDocuments);(c)theFacilityExpirationDate;
(d)theEarlyRepurchaseDatewithrespecttosuchPurchasedAsset;(e)thedatesetforthin
Article3(i)(1)(B);or(f)thesecond(2nd)BusinessDayfollowingaPrincipalPaymentinfullwith respect to such Purchased Asset prior to the related maturity date.
“RepurchaseObligations”shallhavethemeaningspecifiedinArticle6(a).
“Repurchase Price” shall mean, with respect to any Purchased Asset as of any Repurchase Date or any date on which the Repurchase Price is required to be determined hereunder, the price at which such Purchased Asset is to be transferred from Buyer to Seller; such price will be determined in each case as the sum of (i) the outstanding Purchase Price of such Purchased Asset as of such date; (ii) the accrued and unpaid Purchase Price Differential with respect to such Purchased Asset as of such date; (iii) all accrued and unpaid actual and documentedout-of-pocket costs and expenses(including,withoutlimitation,thereasonablefees and expenses of outside counsel) of Buyer relating to such Purchased Asset; and (iv) any other amounts due and owing by Seller to Buyer pursuant to the terms of the Transaction Documents as of such date (including, without limitation, anyamount payable pursuant to Article3(f)(ii)or any Exit Fee payable pursuant to the Fee Letter).
“Requested Exceptions Report” shall mean, with respect to any proposed Purchased Asset, a list delivered to Buyer as part of the Due Diligence Package containing any and all exceptions to the representations and warranties and any other Eligibility Criteria contained in this Agreement applicable to such proposed Purchased Asset (or that will be applicable to such proposed Purchased Asset if it becomes a Purchased Asset).
“Requirement of Law” shall mean, as of any date, any applicable law, treaty, rule, regulation, code, directive, policy, order or requirement or determination of an arbitrator or a court or other Governmental Authoritywhether now or hereafter enacted or in effect.
“S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.
“Sanctioned Jurisdiction” shall mean, at anytime, a countryorterritorythat is, or whose government is, the subject of comprehensive, territorial-based Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People’s Republic, or Luhansk People’s Republic regions of Ukraine).
“Sanctioned Person” shall mean, at any time, (i) any Person listed in any Sanctions related listmaintained byanySanctions Authority, (ii) anyPersonlocated,organized orresident in a Sanctioned Jurisdiction and/or (iii) any other subject of Sanctions (including, without limitation,anyPersonControlled or50%ormoreowned(ineachcase,directlyand/orindirectly and in the aggregate) by(or acting for, onbehalf of or at thedirection of) anyPerson orPersons described in subsections (i) and/or (ii) of this definition).
“Sanctions” shall mean economic, trade and/or financial sanction, requirements and/or embargoes, in each case, imposed, administered and/or enforced from time to time by any Sanctions Authority.
“SanctionsAuthority”shallmeantheUnitedStates(including,withoutlimitation,OFAC) and any other relevant sanctions authority.
“SEC”shallhavethemeaningspecifiedinArticle22(a).
“SecondExtendedFacilityExpirationDate”shallhavethemeaningspecifiedinArticle
3(h).
“SecuritiesAct”shallmeantheSecuritiesActof1933,asamended.
“Seller”shallhavethemeaningspecifiedintheintroductoryparagraphhereof.
“SellerParty”shallmean,collectivelyorindividually,asthecontextmayrequire,Seller
andGuarantor.
“SellerThreshold”shallhavethemeaningspecifiedintheFeeLetter.
“Senior Interest” shall mean (a)a senior or pari passu participation interest in a Whole Loan (including Eligible Participation Interests but not including Non-Controlling Participation Interests) (i)that is evidenced byaSenior InterestNote,(ii)thatrepresentsanundividedinterest in part of the underlying Whole Loan and its proceeds, (iii) that 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, and (iv) as to whichthere is no guarantyofpayments to theholder of the Senior Interest Note or other form of credit support forsuchpayments, or (b)an “Anote”in an “A/B structure” in a Whole Loan.
“SeniorInterestNote”shallmean(a)theoriginalexecutedpromissorynote,participation or other certificate or other tangible evidence of a Senior Interest, (b)the related original Mortgage Note (or, if Seller cannot obtain the original, then a certified copy thereof with a lost note affidavit signed by a senior officer of Seller in such form as is acceptable to Buyer in its discretion),and(c)therelatedoriginalparticipationand/orintercreditoragreement,asapplicable (or, if Seller cannot obtain the original, then a certified copy thereof).
“Servicer” shall mean (a) Trimont LLC or (b) any other third-party servicer (i) having a primary and special servicer rating of “above average” or better from S&P or (ii) approved by Buyer in its reasonable discretion.
“Servicer Account” shall mean the account maintained by the Servicer pursuant the Servicing Agreement into which Income with respect to the Purchased Assets is deposited in accordance with the Servicing Agreement.
“ServicerLetter”shallhavethemeaningspecifiedinArticle27(e).
“Servicing Agreement” shall mean (i)that certain Servicing and Asset Management Agreement,dated as of April13,2020, byandbetweenTrimont LLC(f/k/aTrimontRealEstate Advisors, LLC), CIM Lending Services, LLC and such other parties that are joined thereto as clients from time to time, as amended by that certain First Amendment to Servicing and Asset Management Agreement, dated as of May 8, 2023, as the same is supplemented by that certain
JoinderAgreement#12,datedasoftheClosingDate,byandamongSellerandTrimontLLCand
(ii)anyotherservicingagreement,informandsubstancereasonablyacceptabletoBuyer,entered into bySeller (and mayinclude one or more Affiliates of Seller), anyServicer and, if applicable, Buyer, in each case, as same may be amended, modified and/or restated, or any replacement thereof with asuccessorServicer,whichreplacementservicingagreement isacceptabletoBuyer in its reasonable discretion.
“ServicingRecords”shallhavethemeaningspecifiedinArticle27(f).
“Servicing Rights” shall mean rights of any Person, to administer, service or subservice the Purchased Assets or to possess related Servicing Records.
“SignificantModification”shallmean:
(i) any modification, consent to a modification or waiver of any monetary term or material non-monetary term (including, without limitation, prepayment terms, timing of payments and acceptance of discounted payoffs, but excluding waivers of late fees and default interest (provided, however, that any such waiver in excess of two (2) instances with respect to any individual Purchased Asset during the term of such Purchased Asset shall be considered a Significant Modification hereunder)) of a Purchased Asset (or related Mortgage Loan, as applicable) or any extension of the maturity date of such Purchased Asset (or related Mortgage Loan, as applicable), except any such modification, consent or waiver or the exercise of any extension term expressly provided in the related Purchased Asset Documents, in each case, for which there is no material lender discretion to grant or deny;
(ii) anyreleaseofcollateraloranyacceptanceofsubstituteoradditionalcollateralfor a Purchased Asset (or related Mortgage Loan, as applicable) or any consent to either of the foregoing, in each case, other than if required pursuant to the specific terms of the related
Purchased Asset Documents (or relatedMortgage Loan, as applicable) and for whichthereis no material lender discretion (it being acknowledged thatSeller’s right to calculatethedebtservice coverage ratio, debt yield, loan to value ratio or other similar financial tests (but not the waiver ormodification of anysuch tests)shall not beconsideredmaterial lenderdiscretion forpurposes of this clause (ii));
(iii) any waiver of a “due-on-sale” or “due-on-encumbrance” clause with respect to a Purchased Asset (or related Mortgage Loan, as applicable) or, if lender consent is required, any consent to such a waiver or consent to a transfer of a Mortgaged Property or interests in the Mortgagor or consent to the incurrence of additional debt, other than any such transfer or incurrence of debt for which there is no material lender discretion under the related Purchased Asset Documents; and
(iv) any acceptance of an assumption agreement releasing a Mortgagor from liability under a Purchased Asset (or related Mortgage Loan, as applicable) other than pursuant to the specific terms of such Purchased Asset (or related Mortgage Loan, as applicable) and for which there is no material lender discretion;
provided that, notwithstanding the foregoing, releases of escrows and reserves in accordance with the applicable Purchased Asset Documents, and consents with respect to leases, easements and/or REAs shall not constitute Significant Modifications.
“SIPA”shallhavethemeaningspecifiedinArticle22(a).
“SOFR” shall mean the secured overnight financing rate as administered by the SOFRAdministrator.
“SOFRAdministrator”shallmeantheFederalReserveBankofNewYork(ora successor administrator of the secured overnight financing rate).
“SOFR Based Transaction” shall mean a Transaction for whichthePricingRateis equal to the SOFR Rate.
“SOFR Rate” shall mean the sum of (i) Term SOFR applicable to such Pricing Rate Period and (ii) the Applicable Spread.
“Subsidiary” shall mean, as to any Person, a corporation, partnership or other entity of which at least a majority of the shares of stock or other ownership interests having by the terms thereof ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directorsorothermanagersofsuchcorporation,partnershiporotherentityareatthetimeowned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiaryor Subsidiaries of Seller.
“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings(includingbackupwithholding),assessments,feesorotherchargesimposedbyany Governmental Authority, including anyinterest, additions to tax or penalties applicable thereto.
“Term SOFR” shall mean, with respect to each Pricing Rate Period, the Term SOFR Reference Rate for a one-month period on the day (such day, the “Periodic Term SOFR
Determination Day”) that is two (2) U.S. GovernmentSecurities Business Dayspriortothe first day of such Pricing Rate Period, as such rate is published by the Term SOFR Administrator; provided, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for a one-month period has not been publishedbytheTermSOFRAdministratorand aBenchmarkReplacementDatewithrespectto the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for a one-month period as published by the Term SOFR Administrator on the firstprecedingU.S.GovernmentSecuritiesBusinessDayforwhichsuchTermSOFRReference Rate for a one-month period 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 Periodic Term SOFR Determination Day. Notwithstanding the foregoing, in no event will Term SOFR be deemed to be less than zero percent (0.00%).
“Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited (CBA), or a successor administrator of the Term SOFR Reference Rate selected by Buyer in its reasonable discretion.
“TermSOFRReferenceRate”shallmeantheone-monthforward-lookingtermratebased on SOFR, currently identified on the CME Group’s website at https://www.cmegroup.com/market-data/cme-group-benchmark-administration/term-sofr.htmlor any successor source.
“ThirdExtendedFacilityExpirationDate”shallhavethemeaningspecifiedinArticle
3(h).
“Transaction”shallhavethemeaningspecifiedinArticle1.
“TransactionDocuments”shallmean,collectively,thisAgreement,theFeeLetter,the
Exit Fee Side Letter, the Guaranty, the Custodial Agreement, the Servicing Agreement, the Servicer Letter (if any), the Account Control Agreement, all Confirmations and assignment documentationexecutedpursuanttothisAgreementinconnectionwithspecificTransactions,all otherdocumentsexecutedinconnectionwiththisAgreementoranyTransactionandallexhibits, annexes, schedules and other attachments to any of the foregoing, in each case, as suchdocument may be amended, modified and/or restated from time to time; provided that, TransactionDocumentsshallnotincludeanydocumentdefinedasaPurchasedAssetDocument.
“Transaction Request” shall mean a transaction request substantially in the form of Exhibit IIhereto.
“Transfer” shall mean, with respect to any Person, any sale or other whole or partial conveyance of all or anyportion ofsuchPerson’sassets, oranydirect orindirectinteresttherein to a third party (other than in connection with the transfer of a Purchased Asset to Buyer in accordance herewith), including the granting of any purchase options, rights of first refusal, rights of first offer or similar rights in respect of any portion of such assets or the subjecting of any portion of such assets to restrictions on transfer.
“Treasury Regulations” shall mean applicable final or temporary regulations of the U.S. Department of the Treasury.
“TrustReceipt”shallhavethemeaningspecifiedintheCustodialAgreement. “UCC” shall have the meaning specified in Article 6(c).
“UCCFilingJurisdiction”shallmean,withrespecttoSeller,theStateofDelaware.
“UCC Financing Statement” shall have the meaning specified in Article 3(b)(i)(K). “UnadjustedBenchmarkReplacement”shallmeantheBenchmarkReplacement
excludingtheBenchmarkReplacementAdjustment.
“U.S. Government Securities Business Day” shall mean any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association, or any successor thereto, recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” shall mean any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
“U.S. Tax Compliance Certificate” shall have the meaning specified in Article 5(j)(v).
“WholeLoan”shallmeanacommercialrealestatewholeloanmadetotherelated
underlying obligor and secured primarily by a perfected, first priority Lien in the related underlying Mortgaged Property, including, without limitation (A) with respect to any Senior Interest, the Whole Loan in which Seller owns a Senior Interest, and (B) with respect to any Mezzanine Loan, the Whole Loan made to the Mortgagor or Affiliate of such Mortgagor whose equity interests, directly or indirectly, secure such Mezzanine Loan.
ThetermsdefinedinthisAgreementhavethemeaningsassignedtotheminthisAgreement and include the plural as well as the singular, and the use of anygender herein shall be deemed to include the other gender.All references to articles, schedules and exhibits are to articles, schedules and exhibits in or to this Agreement unless otherwise specified.The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreementshall refer to this Agreement as a whole and not to any particular provision of this Agreement. The term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.”The term “include” or “including” shall mean without limitation by reason of enumeration. Allaccountingtermsnotspecificallydefinedhereinshallbeconstruedinaccordance with generally accepted accounting principles.References to “good faith” in thisAgreement shall mean “honesty in fact in the conduct or transaction concerned”.In addition,withrespecttoanyTransactionDocument,wheneverBuyerhasadecisionorrightof determination,opinionorrequest,exercisesanyrightgiventoittoagree,disagree,accept, consent,grantwaivers,takeactionornoactionortoapproveordisapprove(oranysimilar language orterms), or anyarrangement orterm is to besatisfactoryoracceptableto orapproved by Buyer (or any similar language or terms), the decision of Buyer with respect thereto shall be subject in all cases to the implied covenant of good faith and fair dealing.
ARTICLE 3
INITIATION;CONFIRMATION;TERMINATION;FEES
(a) Initiation and Confirmation.(i) On or after the Closing Date but prior to the Initial Facility Expiration Date, Seller may, from time to time request that Buyer enter into a Transaction with respect to a proposed Purchased Asset by delivering to Buyer a Transaction Request and Due Diligence Package.Buyer shall have the right to request such additional diligence materials with respect to a proposed Purchased Asset (and/or with respect to a Senior Interest or Mezzanine Loan, the related Whole Loan) as Buyer deems necessary in its sole discretion.Buyer shall use commercially reasonable efforts to, within five (5) Business Days afterreceiptofaTransactionRequest,DueDiligencePackageandadditionallyrequested
diligence materials, (i)(A)complete its due diligence review of the proposed Purchased Asset and (B) receive an internal credit decision with respect to theproposed Transaction and (ii) upon completion of the conditions in the preceding clause, (A)notify Seller that the proposed Transaction is approved by delivering to Seller a duly completed Confirmation executed by Buyer or (B)notify Seller that the proposed Transaction is disapproved; provided that Buyer’s decisiontoapproveanyTransactionshallbemadeinBuyer’ssoleandabsolutediscretion.Upon receipt of a completed Confirmation executed by Buyer, Seller may evidence its agreement to proceed with the proposed Transaction by promptly returning to Buyer a counter-executed Confirmation.Unless Buyer and Seller agreeotherwise in writing, Buyer’s failure to respond to Seller within the time period set forth in the second preceding sentence shall be deemed disapproval of Seller’s request to enter into a proposed Transaction.For theavoidanceof doubt, Seller acknowledges that at no time shall Buyer be obligated to agree to purchase or effect the transfer of any asset proposed by Seller.
(ii) Upon the satisfaction or waiver of all conditions set forth in Article3(b)for the initial Transaction and Article3(c)for each Transaction (including the initial Transaction),theproposedPurchasedAssetshallbetransferredtoBuyerasspecifiedin Article 7(a).
(iii) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction covered thereby.In the event of any conflict between the terms of such Confirmation and the terms of this Agreement, the Confirmation shall prevail.
(b) Conditions Precedent to Initial Transaction.Buyer’s agreement to enter into the initial Transaction is subject to the satisfaction, immediately prior to or concurrently with the making of such Transaction, of the following conditions precedent:
(i) DeliveryofDocuments. Thefollowingdocuments,shallhavebeen delivered to Buyer:
(A) thisAgreement,dulycompletedandexecutedbyeachofthe parties hereto;
(B) the Fee Letter, dulycompleted and executedbyeachoftheparties thereto;
(C) the Exit Fee Side Letter, duly completed and executed by each of the parties thereto;
(D) theCustodial Agreement,dulycompleted and executedbyeachof the parties thereto;
(E) the Account Control Agreement, duly completed and executed by each of the parties thereto;
(F) the Guaranty, duly completed and executed by each of the parties thereto;
(G) the ServicingAgreement,dulycompleted and executedbyeachof the parties thereto;
(H) the Servicer Letter, duly completed and executed by each of the parties thereto;
(I) anyandallconsentsandwaiversapplicabletoSeller;
(J) a power of attorney from Seller substantially in the form ofExhibit Vhereto, duly completed and executed;
(K) a UCC financing statement for filing in the UCC FilingJurisdiction of Seller, naming Seller as “Debtor” and Buyer as “Secured Party” and describing as “Collateral” “all assets of the debtor whether now owned or existing or hereafter acquired or arising and wheresoever located, including all accessions thereto and products and proceeds thereof” (the “UCC FinancingStatement”),togetherwithanyotherdocumentsnecessaryorreasonablyrequested byBuyertoperfectthesecurityinterestsgrantedbySellerinfavorofBuyerunder this Agreement or any other Transaction Document;
(L) opinions ofoutside counsel toSellerPartiesreasonablyacceptable to Buyer (including, but not limited to, those relating to enforceability, corporate matters, applicability of the Investment Company Act of 1940, security interests and a Bankruptcy Code safe harbor opinion);
(M) for each of Seller Parties, good standing certificates, certified copies of organizational documents and certified copies of resolutions (orsimilar authority documents) with respect to the execution, delivery and performance of the Transaction Documents and each other document to be delivered by Seller Parties from time to time in connection herewith; and
(N) all such other and further documents and documentation as Buyer in its discretion shall reasonably require.
(ii) Payment of Expenses.Buyer shall have received payment from Seller in the amount of all reasonable and documented out-of-pocket expenses, including but not limited to reasonable and documented legal fees of outside counsel and reasonable and documented due diligence fees, actually incurred by Buyer in connection with the preparation and execution of this Agreement, the other Transaction Documents and any otherdocumentspreparedinconnectionherewithortherewithandrequiredtobepaidby Seller pursuant to Article 25(b).
(c) Conditions Precedent to All Transactions.Buyer’s agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(i) Transaction Approval.Buyer shall have (A)determined on the related Purchase Date, in its sole discretion, that the related proposed Purchased Asset is an Eligible Asset and (B)received internal credit approval with respect to the proposed Transaction, eachofthe foregoing, as evidencedbyBuyer’s execution anddeliveryof a Confirmation with respect thereto.
(ii) Confirmation.Seller shall have received from Buyer a duly completed and executed Confirmation, and Seller shall have dulyexecuted the same and delivered such Confirmation to Buyer.
(iii) WaiverofExceptions.Buyershallhavewaivedallexceptionscontained in the related Requested Exceptions Report (as evidenced byits execution and delivery of a Confirmation with respect thereto).
(iv) CustodialDelivery;TrustReceipt;AssetScheduleandExceptionReport. Seller shall have delivered to Custodian (or a bailee pursuant to a bailee agreement), in accordance with the Custodial Agreement, the Custodial Delivery and the Purchased Asset File with respect to each Eligible Asset and, if the Custodial Delivery and PurchasedAssetFilewithrespecttosuchEligibleAssetwasdeliveredtoCustodianasa Non-Table Funded Asset (as defined in the Custodial Agreement), (A) Custodian shall have issued to Buyer a Trust Receipt and a final Asset Schedule and Exception Report and (B) Buyer shall have, in its sole and absolute discretion, approved any and all exceptions listed on such Asset Schedule and Exception Report.
(v) Due Diligence.Any due diligence review performed by Buyer with respecttothe Eligible Asset (includingwithoutlimitation, confirmationbyBuyerthatit meets any applicable Qualified Transferee Requirements) or otherwise in accordance with Article 26is satisfactory to Buyer in its sole discretion.
(vi) Facility Amount.The sum of (A) the aggregate Repurchase Price for all Purchased Assets, plus (B) the requested Purchase Price for the pending Transaction, plus (C) the aggregate amount of any potential Future Funding Advance Draws with respect to all Purchased Assets (if any), plus (D) the amount of any Margin Excess, in the aggregate, shall not exceed Facility Amount; provided, however, that notwithstanding the foregoing, to the extent that Seller delivers to Buyer a written waiver indicating that it will not seek to make one or more Future Funding Advance DrawsorMarginExcessdrawshereunderwithrespecttoanyPurchasedAssets,thenthe Future Funding Advance Draws and Margin Excess identified in any such waiver or waivers shall not be included for purposes of clauses (C)and (D)of this paragraph.
(vii) No Margin Deficit.No Margin Deficit for which a Margin Call Notice has been delivered shall exist after giving effect to the requested Transaction.
(viii) No Default or Event of Default.No Default or Event of Default shall have occurred and be continuing under any Transaction Document.
(ix) No Material Adverse Effect.No event shall have occurred which is reasonably expected to have a Material Adverse Effect.
(x) Representations and Warranties.The representations and warranties made by Seller in Article9(other than those contained in Article 9(s) relating to Purchased Assets subject to other Transactions) shall be true and correct in all material respects onandas ofthePurchaseDateforthependingTransactionwiththesameforce andeffectasifmadeonandasofsuchdate(or,ifanysuchrepresentationorwarrantyis expresslystated to have been made as of a specific date, as of such specific date).
(xi) Acknowledgement of Servicer.Buyershall havereceived from Servicer a writtenacknowledgementthateachEligibleAssettobesoldtoBuyerwillbeserviced in accordance with the Servicing Agreement as of the related Purchase Date, which acknowledgement maybe deemed to be satisfied bythe deliveryof a Servicer Letter in accordance with Article 27(e)hereof.
(xii) No Change in Law.Buyer shall not have determined that the introduction of or a change in any Requirement of Law or in the interpretation or
administration of any Requirement of Law has made it unlawful, and no Governmental Authorityshall have asserted that it is unlawful, for Buyer to enter into Transactions.
(xiii) Repurchase Date.TheRepurchase Date forsuch Transaction isnotlater than the Facility Expiration Date.
(xiv) SecurityInterest.Sellershallhavetakensuchotheractionasisnecessary in the reasonable opinion of Buyer, in order to transfer the related Eligible Asset to Buyer pursuant to this Agreement and to perfect all securityinterests granted under this Agreement or anyother Transaction Document in favor ofBuyer as secured partyunder the UCC with respect to such Eligible Asset.
(xv) Other Documents.Buyer, Custodian or a bailee pursuant to a Bailee Agreementshallhavereceivedallsuchotherandfurtherdocuments,documentationand legal opinions (including, without limitation, opinions regarding the perfection of Buyer’s security interests, but only to the extent that such legal opinions refer to items not coveredundertheopinionsdelivered bySellerpursuanttoArticle3(b)(L))asBuyer in its reasonable discretion shall require including, but not limited to, endorsements in blank of the original Mortgage Note, Senior Interest Note or Mezzanine Note and assignments in blank of the underlying Mortgage and related Mortgage documents.
(xvi) Payment of Fees.Buyer shall have received payment from Seller of all fees then due and payable hereunder or under the Fee Letter and the Pre-Purchase Legal/Due Diligence Review Fee on the Purchase Date; provided, that Seller agrees to pay the Pre-Purchase Legal/Due Diligence Review Fee due in accordance with the definitionthereofwithrespecttoanyproposedAssetthatBuyerdetermineswillnotbea Purchased Asset within fifteen (15) Business Days of Seller’s receipt of a written invoice detailing the amount of such Pre-Purchase Legal/Due Diligence Review Fee.
(d) Early Repurchase of Purchased Assets.Seller shall be entitled to terminate a TransactionondemandandrepurchasethePurchasedAssetsubjecttosuchTransactioninwhole or in part on any Business Day prior to the Repurchase Date (as determined in accordance with subclauses (a), (b), (c)and (e)of the definition of Repurchase Date) (an “Early RepurchaseDate”):
(i) nolaterthanfive(5)BusinessDayspriortosuchEarlyRepurchaseDate, Seller notifies Buyer in writing of its intent to terminate such Transaction and repurchase such Purchased Asset, setting forth the Early Repurchase Date and identifying with particularity the Purchased Asset to be repurchased on such Early Repurchase Date; provided that, (x) Seller shall have the right to revoke such notice at anytimepriortosuchEarlyRepurchaseDateand(y)theEarlyRepurchaseDatemaybe the same Business Day written notice is delivered in the event such repurchase shall cure a monetary or material non-monetary Default, an Event of Default or a Margin Deficit;
(ii) no monetary or material non-monetary Default and no Event of Default shall haveoccurred and be continuingboth as of the datenotice is delivered pursuant to Article 3(d)(i)above and as of the applicable Early Repurchase Date, unless such monetary or material non-monetary Default or such Event of Default is cured by such repurchase;
(iii) on such EarlyRepurchase Date, Seller pays to Buyer an amount equal to theRepurchasePricefortheapplicablePurchasedAssetandanyotheramountsthendue
and payable under this Agreement, including, without limitation, any amount payable pursuant to Article 3(f)(ii)or anyExit Fee payable pursuant to the Fee Letter; and
(iv) no Margin Deficit for which a Margin Call Notice has been delivered shall exist as of the applicable Early Repurchase Date unless such Margin Deficit is cured contemporaneously with such repurchase.
With respect to any Purchased Asset as to which a Mandatory Early Repurchase Event hasoccurredandiscontinuing,withinfive(5)BusinessDaysafterreceiptofwrittennoticefrom Buyer instructing a mandatory early repurchase with respect to such Purchased Asset, Seller shall be required toterminatethe relevantTransactionandrepurchasesuchPurchasedAssetand payto Buyer cash in an amount equal to the Repurchase Price for such Purchased Asset.In the event a Mandatory Early Repurchase Event or Early Repurchase Date occurs with respect to a Purchased Asset which is a Whole Loan, Senior Interest or Mezzanine Loan and the Related Purchased Asset secured directly or indirectly by the same Mortgaged Property is also a Purchased Asset, then such Mandatory Early Repurchase Event shall be deemed to occur (or Early Repurchase Date shall be required to occur) with respect to all Purchased Assets that are secured directly or indirectly by the same Mortgaged Property.
(e) RepurchaseofPurchasedAssets;Prepayment;FutureFundingAdvances;MarginExcess.
(i) Repurchase.OntheRepurchaseDateforanyTransaction,terminationof the Transaction will be effected by transfer to Seller or its designee of the Purchased Assets being repurchased and anyIncome in respect thereof receivedbyBuyer (andnot previously credited or transferred to, or applied to the obligations of, Seller pursuant to Article5) against the simultaneous transfer of the Repurchase Price to an account of Buyer; provided, however, that Buyer shall have no obligation to permit Seller to repurchase any Purchased Asset if a Default or an Event of Default shall have occurred and be continuing or anyunsatisfied Margin Deficit forwhich aMargin Call Noticehas been delivered unless such Margin Deficit, Default or Event of Default would be cured bythe repurchase ofsuchPurchased Asset orsuchMargin Deficit is concurrentlycured by Seller in accordance with Article4of this Agreement or such Default or Event of Default is concurrently cured in accordance with this Agreement.Concurrently with payment of the Repurchase Price to Buyer in accordance with the foregoing on such Repurchase Date, Buyer’s security interest in the related Collateral shall terminate in accordance withArticle 6(c).
(ii) Prepayment.On any Business Day before the Repurchase Date for a PurchasedAsset,upontwo(2)BusinessDays’priorwrittennoticetoBuyer,Sellershall have the right, from time to time, to transfer cash to Buyer for the purpose of reducing the Purchase Price of, but not terminating, a Transaction and without the release of any Collateral and without any prepayment fee or penalty; provided, that (x) no such advance notice shall be required with respect to any payment made by Seller to cure a Margin Deficit, Default or Event of Default, (y) each such transfer of cash shall be in a minimum amount equal to $250,000 and (z) Seller shall not be permitted to elect to transfer cash and to receive Margin Excess Advances more often than two times in any calendar month.
(iii) Future Funding Advance Draws.In the event that (i) Seller agrees to make a future funding advance of loan proceeds to the borrower under a Purchased
AssetpursuanttotherelatedPurchasedAssetDocumentsand(ii)Buyerhasagreedinits sole discretion to make an additional advance with respect to the Purchase Price of such Purchased Asset as reflected in the Confirmation, then in connection with making such future fundingadvance to such Mortgagor, Seller maysubmit to Buyer a written request (a “Future Funding Advance Draw Request”) requesting that Buyer transfer to Seller cash in an amount that is not less than $250,000 (with respect to one or more future fundingadvances to the applicableMortgagor, in theaggregate) but does not exceed the Margin Excess for such Purchased Asset (calculated on a pro forma basis taking into account the then effective Market Value), and Buyer shall (x)transfer to Seller the amount of cash so requested (such transfer, a “Future Funding Advance Draw”) (which shall increase the Purchase Price for such Purchased Asset) and (y)deliver to Seller a revisedConfirmationreflectingthecorrespondingincreaseinthePurchasePriceofsuch Purchased Asset and the increased principal amount outstanding under the Purchased Asset and accordingly, the increase in Market Value and such other consequential revisionsasmaybeappropriate,ineachcase,bynolaterthan5:00p.m.(NewYorkCity time) on the second(2nd) Business Day following the Business Day on which Buyer determinesinits sole discretion, exercised in good faith, that the conditions precedent
setforthbeloware satisfiedor willbe satisfiedcontemporaneously withsuchFuture Funding Advance Draw (or, in Buyer’s sole discretion, waived):
(A) no monetary or material non-monetary Default and no Event of Default shall have occurred and be continuing both as of the date ofsuch request and as of the date of the Future Funding Advance Draw;
(B) the Future Funding Advance Draw shall not cause the sum of (1) the aggregate Purchase Price for all Purchased Assets, plus (2) the requested Purchase Price for anypendingTransaction, plus (3) the aggregate amount of any potential Future Funding Advance Draws with respect to all Purchased Assets (includingthethenrequestedFutureFundingAdvanceDraw),plus(4)theamount ofanyMarginExcess(aftergivingeffecttosuchFutureFundingAdvanceDraw), in the aggregate, to exceed the Facility Amount; provided, however, that notwithstandingtheforegoing, to theextent that Sellerdelivers toBuyerawritten waiver indicating that it will not seek to make one or more Future Funding AdvanceDrawsorMarginExcessdrawshereunderwithrespecttoanyPurchased Assets, then the Future Funding Advance Draws and Margin Excess identified in any such waiver or waivers shall not be included for purposes of clauses (3)and
(4)ofthisparagraph;
(C) the Effective Purchase Price Percentage after givingeffect to such Future FundingAdvance Draw andthe correspondingincreaseintheoutstanding principal balance of the Purchased Asset shall not exceed the Purchase Price Percentage set forth in the related Confirmation for such Purchased Asset;
(D) there is no unsatisfied Margin Deficit for which a Margin Call Notice has been delivered, immediatelyafter the Future Funding Advance Draw;
(E) if the Confirmation of the Transaction relating to the applicable Purchased Asset specifies additional future advance conditions precedent
(including,withoutlimitation,debtyield,debtservicecoverageratioand loan-to-value ratio tests as determined by Buyer and Seller), such additional conditions precedent shall be satisfied immediately upon the Future Funding Advance Draw;
(F) Seller shall have delivered evidence reasonably satisfactory to Buyerthatallconditionsprecedenttothefuturefundingadvanceundertherelated Purchased Asset Documents shall have been satisfied in all material respects (unless such conditions precedent shall have been waived bySeller which waiver has been consented to by Buyer);
(G) No event shall have occurred which has, or could reasonably be expected to have, a Material Adverse Effect.
(H) The representations and warranties made by Seller in Article9(other than those contained in Article 9(s) relating toPurchased Assetssubject to other Transactions) shall be true and correct in all material respects on and as of
the date of such Future FundingAdvance Draw withthesame force and effect as if made on and as of such date (or, if any such representation or warranty is expresslystated tohavebeenmadeas of aspecificdate,as ofsuchspecificdate); and
(I) Buyershallhavereceivedallsuchotherandfurtherdocumentsand documentation as Buyer in its reasonable discretion shall require in connection with such Future Funding Advance Draw, provided that such documents or documentation are in Seller’s possession or reasonably obtainable to Seller.
The failure or delay of Seller, on any one or more occasions, to exercise its rights under this Article 3(e)(iii)shall not change or alter the terms and conditions of this Agreement orlimitorwaivetherightofSellertorequestaFutureFundingAdvanceDrawRequestat a later date.
(iv) Margin Excess.With respect to anyPurchased Asset,Sellermaysubmit to Buyer a written request, to be delivered no more frequentlythan twice each calendar month (in total together with any prepayments pursuant to Article 3(e)(ii)) (a “MarginExcessRequest”), requestingthatBuyermakeanadditionaladvance(a“MarginExcessAdvance”) with respect to the applicable Purchased Asset in the amount requested by Seller in such Margin Excess Request that is not less than $250,000 (but not to exceed the Margin Excess for such Purchased Asset). Buyer shall by no later than 5:00 p.m. (New York Citytime) on thesecond(2nd) Business Dayfollowingthe Business Dayof Buyer’sreceiptofsuchMarginExcessRequest,(x)transfertoSellertheamountofcash requested by Seller, and (y)deliver to Seller a revised Confirmation reflecting the corresponding increase in the Purchase Price of such Purchased Asset.Buyer’s disbursement of any Margin Excess Advance (if any) shall be subject to satisfaction of the following conditions precedent, as determined by Buyer in its sole discretion exercised in good faith (or, in Buyer’s sole discretion, waived):
(A) no monetary or material non-monetary Default and no Event of Default shall have occurred and be continuing both as of the date ofsuch request and as of the date of the Margin Excess Advance;
(B) the Margin Excess Advance shall not cause (1) the aggregate Purchase Price for all Purchased Assets, plus (2) the requested Purchase Price for any pending Transaction, plus (3) the aggregate amount of any potential Future FundingAdvanceDrawswithrespecttoallPurchasedAssets,plus(4)theamount ofanyMargin Excess (aftergivingeffect tosuchMargin Excess Advance), in the aggregate, to exceed the Facility Amount; provided, however, that notwithstandingtheforegoing,totheextentthatSellerdeliverstoBuyerawritten waiver indicating that it will not seek to make one or more Future Funding AdvanceDrawsorMarginExcessdrawshereunderwithrespecttoanyPurchased Assets, then the Future Funding Advance Draws and Margin Excess identified in any such waiver or waivers shall not be included for purposes of clauses (3)and
(4)ofthisparagraph;
(C) the Effective PurchasePrice Percentageafter givingeffect to such Margin Excess Advance shall not exceed the Purchase Price Percentage set forth in the related Confirmation for such Purchased Asset;
(D) thereisnoMarginDeficitforwhichaMarginCallNoticehasbeen delivered immediately after the Margin Excess Advance;
(E) no event shall have occurred which has, or could reasonably be expected to have, a Material Adverse Effect; and
(F) the representations and warranties made by Seller in Article9(other than those contained in Article 9(s) relating toPurchased Assetssubject to other Transactions) shall be true and correct in all material respects on and as of the date of such Margin Excess Advance with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expresslystatedtohavebeenmadeasofaspecificdate,asofsuchspecificdate).
(f) Costs and Expenses.Upon written demand by Buyer, Seller shall indemnify Buyer and hold Buyer harmless from any actual and documented out-of-pocket cost or expense (including, without limitation, reasonable and documented attorneys’ fees and disbursements of outside counsel) that Buyer may sustain or incur as a consequence of (i)a failure by Seller in repurchasinganyPurchasedAssetontheEarlyRepurchaseDateafterSellerhasgivenanoticein accordance with Article3(d)of an Early Repurchase Date, (ii)any payment of the outstanding Purchase Price on any day other than a Remittance Date (other than on account of a repayment byor on behalf of the related Mortgagor or Mezzanine Borrower) (including, without limitation, such cost or expense arising from interest or fees payable byBuyer to lenders of funds obtained byitinordertoeffectormaintainaTransactionhereunder(iii)anyconversionoftheBenchmark (or the Benchmark portion of the PricingRate) in accordance with Article 3(g)on anydayother than a Pricing Rate Determination Date, and/or (iv)any determination by Seller to not sell an Eligible Asset to Buyer after Seller has notified Buyer of a proposed Transaction and Buyer has agreed to purchase such Eligible Assets in accordance with the provisions of this Agreement.A statement as to such costs and expenses, setting forth the calculations thereof, shall be submitted promptly by Buyer to Seller and shall be conclusive and binding upon Seller absent manifest error.
(g) EffectofBenchmarkTransitionEvent.
(i) Notwithstanding anything to the contrary herein or in any other Transaction Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Periodic Term SOFR Determination Day (or if the Benchmark is not the Term SOFR Reference Rate, the Pricing Rate Determination Date for such other Benchmark) for any Pricing Rate Period, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunderorunderanyotherTransactionDocumentinrespectofsuchdeterminationand all determinations on all subsequent dates (without any amendment to, or further action or consent of any other party to, this Agreement).In connection with the use, administration,adoption,orimplementationofaBenchmarkReplacement,Buyerwill
have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction 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 Transaction Document.Notwithstanding the foregoing, Buyer and Seller may at any time agree to amendandrestateanyConfirmationwithrespecttoanyTransactiontoreplacetherelated Benchmark with respect to such Transaction with the applicable Benchmark Replacement.In exercising its rights and remedies under this Article 3(g), Buyer shall actinamannersimilartowhichBuyeriscontemporaneouslyexercisingsimilarremedies in agreements with similarly situated counterparties.
(ii) Buyer will promptly notify Seller of (1) the Benchmark Replacement Date, (2) the implementation of any Benchmark Replacement, (3) the effectiveness of any Conforming Changes, and/or (4) any Benchmark Unavailability Period, including whetherthePricingRatewillbereplacedwithanAlternateRateor,duringaBenchmark Unavailability Period, the Prime Index Rate or whether Transactions will be converted to Alternate Rate Transactions or Prime Rate Transactions. Anydetermination, decision or election that may be made by Buyer pursuant to this Article 3(g), including any determinationwithrespecttoarateoradjustmentoroftheoccurrenceornon-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 without consent from Seller or anyother partyto this Agreement or anyother Transaction Document.For the avoidance of doubt, any notice required to be delivered by Buyer as set forth in this Article 3(g)may be provided, at the option of Buyer (in its sole discretion), in one or more notices and may be delivered together with, or as part of any amendment which implements, any Benchmark Replacement or Conforming Changes.
(iii) DuringaBenchmarkUnavailabilityPeriod,thecomponentofthePricing RateforTransactionsbased onTermSOFRshallbereplacedwiththePrimeIndex Rate andTransactionsshallbeconvertedtoPrimeRateTransactionsbasedonthePrimeRate in effect on each applicable Pricing Rate Determination Date.
(iv) Notwithstanding any provision of this Agreement to the contrary, in no eventshallSellerhavetherighttoconvertaTransactiontoanAlternateRateTransaction or a Prime Rate Transaction.
(v) Disclaimer.Buyer does not warrant or accept anyresponsibilityfor,and shall nothaveanyliabilitywithrespect to(a)theadministration,submissionoranyother matter related to Term SOFR or with respect to anyalternative or successor rate thereto, or replacement rate thereof (including, without limitation any Benchmark Replacement implemented hereunder), (b) the composition or characteristics of any such Benchmark Replacement, including whether it is similar to, or produces thesamevalueor economic equivalence to Term SOFR (or any other Benchmark) or have the same volume or liquidityasTermSOFR(oranyotherBenchmark),(c)anyactionsoruseofitsdiscretion orotherdecisions ordeterminations made with respect to anymatters covered byArticle3(g)or Article 3(i)including, without limitation, whetherornot a Benchmark Transition
Event has occurred, whether to declare a Benchmark Transition Event, the removal or lack thereof of unavailable or non-representative tenors of Term SOFR (or any other Benchmark), the implementation or lack thereof of any Conforming Changes, the delivery or non-delivery of any notices required by Article 3(g)(ii)or otherwise in accordance herewith, and (d)the effect of anyofthe foregoingprovisions of Article3(g)or Article 3(i).
(h) Extension Options.Seller shall have three (3) options to extend the Facility Expiration Date from the Initial Facility Expiration Date to the anniversary of such date in the succeedingyear(orifsuchdayisnotaBusinessDay,theimmediatelysucceedingBusinessDay) (such date, the “First Extended Facility Expiration Date”), from the First Extended Facility Expiration Date to the anniversary of such date in the succeeding year (or if such day is not a Business Day, the immediately succeeding Business Day) (such date, the “Second ExtendedFacility Expiration Date”) and from the Second Extended Facility Expiration Date to the anniversary of such date in the succeeding year (or if such day is not a Business Day, the immediately succeeding Business Day) (such date, the “Third Extended Facility ExpirationDate”) (each such extension period, an “Extension Term”); provided, that the exercise of each such extension option bySeller shall be subject to the following conditions precedent:(i) Seller shall have delivered to Buyer a written notice to extend the then effective Facility Expiration Date not less than thirty (30) and not more than ninety (90) calendar days prior to the then effectiveFacilityExpirationDate(whichnoticemayberevokedbySelleratanytimepriortothe then effective Facility Expiration Date), (ii) on the first day of each Extension Term, (x) no monetary or non-monetary Defaulthas occurred and is continuing; provided, that notwithstanding the foregoing, if such non-monetary Default is susceptible of cure and Seller is working diligently to cure such non-monetary Default, then Seller shall be permitted to extend the Facility Expiration Date so long as such non-monetary Default is cured by the end of any cure period granted under Article 13(a) of this Agreement, (y) no Event of Default has occurred and is continuing and (z) no unsatisfied Margin Deficit then exists for which a Margin Call Noticehasbeendelivered,(iii)bynotlaterthanthefirstdayofeachExtensionTerm,Sellershall have paid to Buyer the Extension Fee then due and payable, (iv) the then applicable Minimum Portfolio Purchase Price Debt Yield is satisfied and (v) the representations and warranties made by Seller in Article9(other than those contained in Article 9(s) relating to Purchased Assets subject to other Transactions) shall be true and correct in all material respects on the first dayof each Extension Term with the same force and effect as if made on and as of such date (or, if any such representation or warrantyis expresslystated to have been made as of a specific date, as of such specific date); provided, that, notwithstanding the foregoing, with respect to this Article
3(h)(v) only, the representation and warranty made pursuant to Article 9(o) shall be made excluding any reference to “(or prospects)”.
(i) Requirements of Law.(1)Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof after the date of this Agreement shall make it unlawful for Buyer (A)to enter into Transactions, then the commitment of Buyer hereunder to enter into new Transactions shall forthwith be canceled or (B)to maintain or continue Transactions, then a Repurchase Dateshall occur for all Transactions on the next Remittance Date occurring at least fifteen (15) days after Buyer shall have provided Seller with written notice after any such determination under this Article3(a)(i)ismadeoronsuchearlierdateasmay berequiredby law.Buyershallprovide
Seller with written notice promptly after any such determination under this Article3(i)(l) is made.In exercising its rights under this Article 3(i)(1), Buyer shall exercise such rights in a manner which is consistent with other similar agreements with other similarly situated counterparties.If anytermination of a Transactionshalloccurin accordance withsubclause(B) of the preceding sentence, Seller shall payto Buyer, as applicable, such amounts, if any, asmay be required pursuant to Article 3(f).
(2) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by any Governmental Authority or compliance by 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 subsequent to the date hereof:
(A) shallsubjectBuyertoanyTaxes(otherthan(i)CoveredTaxes,(ii) Taxesdescribedinclauses(b)through(d)ofthedefinitionofCoveredTaxes,(iii) Other Taxes, or (iv) Connection Income Taxes) with respect to the Transaction Documents, any Purchased Asset, any Transaction or on its loans, loan principal, commitments or other obligations or its deposits, reserves, other liabilities or capitalattributabletheretoorchangethebasisoftaxationofpaymentstoBuyerin respect thereof;
(B) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of Buyer that is not otherwise included in the determination of the Benchmark hereunder; or
(C) shall impose on Buyer any other condition (excluding, in the case of this clause (C) only, any Taxes);
and the result of any of the foregoing is to increase the cost to Buyer of entering into, converting to, continuing or maintaining the Transactions, or to reduce any amount receivableundertheTransactionDocumentsinrespectthereof,thenSellershallpromptly pay Buyer, upon receipt of the certificate described in clause (4) of this section, any additional amounts necessary to compensate Buyer for such additional costs incurred or reduction suffered, as long as such additional cost is also assessed against sellers under similarrepurchasefacilitiesforsimilarassetswithBuyer.Thiscovenantshallsurvivefor
onehundredeighty(180)daysaftertheterminationofthisAgreementandtherepurchase by Seller of any or all of the Purchased Assets.
(3) If Buyer shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliancebyBuyeror anycorporation controllingBuyer with anyrequestor directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof has the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have
achievedbut forsuch adoption, changeor compliance(takinginto consideration Buyer’s or such corporation’s policies with respect to capital adequacy), then Seller shall promptlypayto Buyer such additional amount or amounts as will compensate Buyer for such reduction, as long as such additional amount is also assessed against sellers under similar repurchase facilities for similar assets with Buyer.
(4) A certificate of Buyer setting forth the amount or amounts necessary to compensate Buyer, as specified in clause(2) or(3) of this Article 3(i)and delivered to Seller, shall be conclusive absent manifest error.Seller shall payBuyer, as the casemay be, the amount shown as due on any such certificate withinten (10)Business Days after receiptthereof.FailureordelayonthepartofBuyertodemandcompensationpursuantto this Article 3(i)shall not constitute a waiver of Buyer’s right to demand such compensation.Notwithstanding anything herein to the contrary, Buyer shall not be entitled to payment or reimbursement of any amounts under Article 3(i)(2)or (3)(i)(3)that accrued more than one hundred eighty (180) days prior to Buyer’s delivery of the certificate described in this clause (4).
(5) If Buyer requests compensation under this Article 3(i), Seller may, at its option, within sixty (60) days after delivery of such request, terminate this facility by payment in full to Buyer of the then outstanding Repurchase Price of all Purchased Assets and any other amounts then otherwise due and payable under the facility or any Transaction Document (excluding any compensation which is not already due and payable pursuant to this Agreement), and, in connection with any such termination, notwithstanding anything to the contrary contained herein or in any other Transaction Document, there shall be no Exit Fee or prepayment fee or premium due.
ARTICLE 4 MARGINMAINTENANCE
(a) Buyer, initssolediscretionexercisedingood-faith,mayre-determinetheMarket ValueofanyPurchasedAssetatanytime.Upontheoccurrenceandduringthecontinuationofa CreditEventwithrespecttoanyPurchasedAsset,atanytimethataMarginDeficitexists,Buyer may deliver written notice to Seller substantially in the form of ExhibitVIII(a “Margin CallNotice”).
(b) No later than the Margin Call Deadline, Seller shall (at Seller’s election) utilize any combination of the following, so that after giving effect to such transfer or repurchase, no MarginDeficitshallbeoutstanding:(A)transfertoBuyercashinreductionofthePurchasePrice
of Transactions determined by Seller, (B)repurchase one or more Purchased Assets pursuant to Article 3(d), (C) pledge additional collateral acceptable to Buyer in its sole discretion or (D) any combination of the foregoing clauses (A) through (C).
(c) ThefailureordelaybyBuyerorSeller,onanyoneormoreoccasions,toexercise its rights under this Article4shall not (i) change or alter the terms and conditions of this Agreement, (ii) limit or waive the right of Buyer or Seller to exercise its rights under this Agreement at a later date or (iii) in anywaycreate additional rights for anypartyhereto.
ARTICLE 5
PAYMENTS;COLLECTIONACCOUNT
(a) All transfers of funds to be made bySellerhereunder shall bemade in Dollars, in immediately available funds, without deduction, set-off or counterclaim.
(b) All payments required to be made directly to Buyer shall be made in accordance withthewiringinstructionssetforthbelow(orsuchotherwireinstructionsprovidedbyBuyerto Seller in writing), not later than 4:00 p.m. (New York City time), on the date on which such paymentshallbecomedue(andeachsuchpaymentmadeaftersuchtimeshallbedeemedtohave been made on the next succeeding Business Day).
BankName: CITIBANK,NEWYORK
ABANumber: 0210000089
Account Number: 4078-4524 Account Name: SSB
Attention: MortgageOps
Reference: CLRRELendingRFSub CB, LLC
(c) Concurrently with the execution and delivery of this Agreement, Seller shall establish a segregated deposit account (the “Collection Account”) in the name of Seller for the benefit of Buyer at Account Bank.The Collection Account shall be subject to the Account Control Agreement in favor of Buyer.
(d) On each Remittance Date, Seller shall pay to Buyer all accrued and unpaid PurchasePriceDifferentialwithrespecttosuchRemittanceDate,totheextentnotpaidtoBuyer in accordance with Article 5(f).
(e) Seller shall cause (1) all Income it or Servicer receives with respect to the Purchased Assets to bedepositeddirectlyinto theServicer Account and (2)Servicer to remit all fundsondepositintheServicerAccount(netofpermittedwithdrawalspursuanttotheServicing Agreement) to the Collection Account in accordance with the Servicing Agreement and/or any Servicer Letter.In furtherance of the foregoing, if Buyer is at any time not a party to the Servicing Agreement, Seller shall cause the related Servicer to execute and deliver a Servicer Letter in accordance with Article27(e).If a Servicer, Mortgagor or any other Person, as applicable, forwards anyIncome with respect to a Purchased Asset to Seller rather than directly to the Servicer Account or the Servicer, Seller shall (i)take commercially reasonable efforts to cause such Servicer, Mortgagor or Person, as applicable, to forward any such future amounts
directly to the Servicer Account or the Servicer, as applicable, and (ii)deposit in the Servicer Account any such amounts within two(2) Business Days of Seller’s receipt and identification thereof.Amounts in the Collection Account shall be remitted by Account Bank in accordance with the applicable provisions of Articles 5(f)and (g).
(f) So long as no Event of Default shall have occurred and be continuing, Account Bank (1) with respect to Principal Payments on any Purchased Asset which are either prepaymentsinpartorpayoffsinfull(scheduledorunscheduled),shallremitonthesecond
(2nd) Business Day after deposit from the Servicer Account into the Collection Account to Buyeranamountequal to theproduct of(x)theamount ofsuchPrincipal Paymentmultiplied by
(y) the related Effective Purchase Price Percentage for such Purchased Asset (or inthe caseof a Principal Payment in full, the amount necessaryto reduce the outstanding Purchase Price of the related Purchased Asset to zero) together with accrued and unpaid Purchase Price Differential thereon, and (2) shall remit on the Remittance Date the balance of all amounts on deposit in the Collection Account in the following amounts and order of priority:
(i) first, to payall fees and other amounts then due and payabletoCustodian pursuant to the Custodial Agreement and Servicer pursuant to the Servicing Agreement (to the extent not previously paid);
(ii) second, to Buyer, an amount equal to all accrued and unpaid Purchase Price Differential then due and payable;
(iii) third, to Buyer, an amount equal to all accrued and unpaid amounts (if any) then due and payable pursuant to the Fee Letter, including the Funding Fee;
(iv) fourth, to Buyer, an amount necessary to cure any unsatisfied Margin Deficit for which a Margin Call Notice has been delivered;
(v) fifth,toBuyer,withrespecttoPrincipalPaymentsonanyPurchasedAsset in the form of scheduled amortization payments, an amount equal to the product of (x) the amount of such Principal Payment multiplied by (y) the related Effective Purchase Price Percentage for such Purchased Asset, in reduction of the Purchase Price of such Purchased Asset;
(vi) sixth, to Buyer, an amount equal to any other amounts then due and payable to Buyer under any Transaction Document; and
(vii) seventh,thesurplus,ifany,toSeller.
Notwithstanding the foregoing or anything inthis Agreementtothecontrary(including, without limitation, above in this Article 5(f) or in Article 5(g)), in the event the Buyer (as such term is defined in the CMFT Repurchase Agreement) incurs a CMFT Repurchase Agreement Realized Loss Amount, then Buyer shall distribute amounts which would otherwise be distributable to Sellerpursuant to clauseseventh of Article5(f) or Article5(g) to Buyer (as suchterm isdefined intheCMFTRepurchaseAgreement)inanamountequaltotheproductof(x)suchdistributable amounts multiplied by (y) the CMFT Ownership Percentage; provided, that any such amounts distributed shall not exceed the CMFT Repurchase Agreement Realized Loss Amount.
(g) Upon receipt of notice from Buyer that an Event of Default shall have occurred andiscontinuing,andsolongasBuyerhasnotwithdrawnsuchnotice,AccountBankshallcease remitting funds to, or at the direction of, Seller pursuant to Article5(h)and shall instead remit, on each Business Day beginning on the second Business Day after receipt of such notice from Buyer, all amounts on deposit in the Collection Account as of the prior Business Day to Buyer for application to the Repurchase Obligations in such order of priority as Buyer shall determine
initssoleandabsolutediscretion,and,aftertheRepurchaseObligationsarepaidinfull,any remainingamountsshallberemittedpromptlytowhomeverislawfullyentitledtosuchamounts.
(h) AllremittancesbyAccountBankshallbemade(i)solongasnoEventofDefault shall have occurred and be continuing, in accordance with instructions received from Seller or anyServiceronitsbehalf and approved byBuyer,and(ii)duringthecontinuanceofanEventof Default, in accordance with instructions received from Buyer.
(i) If the amounts applied by Buyer as provided in Articles 5(f)or (g)above are insufficient to pay all amounts due and payable from Seller to Buyer under this Agreement or any Transaction Document on a Remittance Date, the 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.
(j) Withholding Taxes.
(i) All payments made by Seller under the Transaction Documents shall be made free and clear of and without deduction or withholding for or on account of any Taxes unless the withholding or deduction is required by applicable law. If Seller is required by applicable law to deduct or withhold any Taxes from any such payment, Seller shall: (i) make such deduction or withholding; (ii) paythe amount so deducted or withheldtotheappropriateGovernmentalAuthoritynotlaterthanthedatewhendue;
(iii) deliver to Buyer, as soon as practicable after any payment of Taxes, original tax receipts or a certified copy of a receipt issued by such Governmental Authority evidencingsuchpayment,acopyofthereturnreportingsuchpaymentorotherevidence reasonably satisfactory to Buyer of the payment of the full amount of such Taxes when otherwise due and payable; and (iv) if such deduction or withholding is attributable to Taxes which are Covered Taxes, then the sum payable by Seller shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicableto additionalsumspayableunderthis Article5) Buyer receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(ii) In addition, without duplication, Seller agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future recordation, stamp, court or documentary, intangible, filing or similar Taxes that arise from anypayment made under, from the execution, delivery, performance,enforcement orregistrationof,fromthereceiptorperfectionofasecurityinterestunder,orotherwise with respect to, any Transaction Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment of Buyer’s rights and obligationsunderthisAgreement(suchTaxesotherthansuchOtherConnectionTaxes, “Other Taxes”).
(iii) Withoutduplication of theobligation ofSeller to payadditionalamounts onaccountofCoveredTaxespursuanttoArticle5(j)(i)andtopayOtherTaxespursuant to Article 5(j)(ii), Seller agrees to indemnifyBuyer, within ten (10) Business Days after demandtherefor,forthefullamountofanyandallCoveredTaxesandOtherTaxes
(including the full amount of any Covered Taxes and Other Taxes imposed or asserted on or attributable to amounts payable, or required to be withheld or deducted from a payment to Buyer, under this Article 5), and anyreasonable expenses arising therefrom or with respect thereto, whether or not such Covered Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.A certificate as to the amount of such payment or liability delivered to Seller by Buyer shall be conclusive absent manifest error.
(iv) Without prejudice to the survival of any other agreement hereunder, the agreements and obligations of each partycontained in this Article 5(j)shall survive the termination of this Agreement, any assignment of rights by, or the replacement of, a Buyer, andtherepayment,satisfactionoftheRepurchaseObligationsordischargeofall obligations under the Transaction Documents. Nothing contained in this Article 5(j)shall require Buyer to make available any of its tax returns or other information that it deems to be confidential or proprietary.
(v) (a) If Buyer is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Transaction 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 applicable law or reasonably requested by Seller as will enable Seller to determine 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 Article 5(j)(v)(b) below) shall not be required if in Buyer’s reasonable judgment such completion, execution or submissionwouldsubjectBuyertoanymaterialunreimbursedcost orexpenseorwould materially prejudice the legal or commercial position of Buyer.
(b) Without limiting the generality of the foregoing, in the event that Seller is a U.S. Person,
(I) anyBuyerthatisaU.S.PersonshalldelivertoSelleronoraboutthedate onwhichBuyerbecomesaBuyerunderthisAgreement(andfromtimetotimethereafter upon the reasonable request of Seller), executed copies of IRS Form W-9 certifying that such Buyer is exempt from U.S. federal backup withholding tax;
(II) any Buyer that is not a U.S. Person (a “Non-U.S. Person”) shall, to the extentitislegallyentitledtodoso,delivertoSeller(insuchnumberofcopiesasshallbe requestedbytherecipient)onoraboutthedateonwhichsuchNon-U.S.Personbecomes a Buyer under this Agreement (and from time to time thereafter upon the reasonable request of Seller), whichever of the following is applicable:
(A) in the case of a Buyer that is a Non-U.S. Person claiming the benefitsof an income taxtreaty to which the United States is a party
(x) with respect to payments ofinterest under anyTransaction Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Taxpursuanttothe“interest”articleofsuchtaxtreatyand(y)withrespect to any other applicable payments under any Transaction Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(B) executedcopiesofIRSFormW-8ECI;
(C) in the case of a Buyer that is a Non-U.S. Person claiming thebenefitsoftheexemptionforportfoliointerestunderSection881(c)of theInternalRevenueCode,(x)acertificatetotheeffectthatsuchBuyeris not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal RevenueCode,a“10percentshareholder”ofSellerwithinthemeaningof Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(D) to the extent a Buyer that is a Non-U.S. Person is not the beneficialowner,executedcopiesofIRSFormW-8IMY,accompaniedby IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S.
Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Buyer is a partnership and one or more direct or indirect partners of such Buyer areclaimingtheportfoliointerest exemption,suchBuyermay provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner; and
(III) If a payment made to a Non-U.S. Person under any Transaction Document would be subject to U.S. federal withholding Tax imposed byFATCA if such Non-U.S. Person were to fail to comply with the applicable reporting requirements of FATCA(includingthosecontainedinSection1471(b)or1472(b)oftheInternalRevenue Code, as applicable), such Non-U.S. Person 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 (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by Seller as may be necessary for Seller to comply with its obligationsunderFATCAandtodeterminethatsuchNon-U.S.Personhascompliedwith such Non-U.S. Person’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Article 5(j)(v), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
If any form or certification Buyer previously delivered expires or becomes obsolete or inaccurateinanyrespect,Buyershallupdatesuchformorcertificationorpromptlynotify Seller in writing of its legal inability to do so.
(vi) If anypartydetermines, in its sole discretion exercised in good faith, that ithasreceivedarefundofanyTaxesastowhichithasbeenindemnifiedpursuanttothis Article5(j)(includingby thepaymentofadditionalamountspursuanttothisArticle5(j)), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of the indemnity payments made under this Article 5(j)with respect to Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnifiedpartyandwithoutinterest(otherthaninterestpaidbytherelevant GovernmentalAuthoritywithrespecttosuchrefund).Suchindemnifyingparty,uponthe requestofsuchindemnifiedparty,shallrepaytosuchindemnifiedpartytheamountpaid overpursuanttothisArticle5(j)(vi)(plusanypenalties,interestorothercharges imposedby the relevantGovernmentalAuthority) inthe eventthatsuch indemnified partyisrequiredtorepaysuchrefundtosuchGovernmentalAuthority.Notwithstanding anything to the contraryin this Article 5(j)(vi), in no event will the indemnified partybe requiredtopayanyamountstoanindemnifyingpartypursuanttothisArticle5(j)(vi)the payment of which would place the indemnified party in a less favorable net after-TaxpositionthantheindemnifiedpartywouldhavebeeniniftheTaxsubjecttotheindemnificationandgivingrisetosuchrefundhadnotbeendeducted,withheldor otherwiseimposedandtheindemnificationpaymentsoradditionalamountswithrespect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified partyto make available its Tax returns (or anyother information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(vii) If Buyer requests compensation under this Article 5(j), Seller may, at its option, within sixty (60) days after delivery of such request, terminate this facility by payment in full to Buyer of the then outstanding Repurchase Price of all Purchased Assets and any other amounts then otherwise due and payable under the facility or any Transaction Document (excluding any compensation which is not already due and payable pursuant to this Agreement), and, in connection with any such termination, notwithstanding anything to the contrary contained herein or in any other Transaction Document, there shall be no Exit Fee or prepayment fee or premium due.
ARTICLE 6 SECURITYINTEREST
(a) Buyer and Seller intend that the Transactions hereunder be sales to Buyer of the PurchasedAssetsandnotloansfromBuyertoSellersecuredbythePurchasedAssets(otherthan as described in Article21(g)).However, in order to preserve Buyer’s rights under the TransactionDocuments,intheeventthatacourtorotherforumre-characterizestheTransactions hereunder as other than sales, and as security for the performance by Seller of all of Seller’s obligations to Buyer under the Transaction Documents and the Transactions entered into hereunder,orintheeventthatatransferofaPurchasedAssetisotherwiseineffectivetoeffectan outright transfer of such Purchased Asset to Buyer, Seller hereby assigns, pledges and grants a security interest in all of its right, title and interest in, to and under the Collateral, whether now
owned or hereafter acquired, now existing or hereafter created and wherever located, subject to the terms and conditions of this Agreement, to Buyer to secure the payment of the Repurchase Price on all Transactions to which Seller is a party and all other amounts owing by Seller to Buyerhereunder,including,withoutlimitation,amountsowingpursuanttoArticle25,andunder theotherTransactionDocuments(collectively,the“RepurchaseObligations”).Withoutlimiting the generalityof the foregoing and for the avoidance of doubt, if any determination is made that anyMezzanine Loan which is aPurchasedAssetwas not sold bySellertoBuyerpursuant to this Agreement,orthatsuchMezzanineLoandoesnotqualifyforthesafeharbortreatmentprovided by the Bankruptcy Code, then Seller hereby pledges, assigns and grants to Buyer as further securityforSeller’sobligations toBuyerhereunder, acontinuingfirstprioritysecurityinterestin and Lien upon each such Mezzanine Loan which constitutes a Purchased Asset hereunder, and Buyershall haveall therights and remedies of a“securedparty”undertheUniform Commercial Code with respect thereto (such pledge, the “Related Credit Enhancement”).For purposes of this Agreement, “Collateral” shall mean:
(i) the Collection Account and the Servicer Account and all monies from timeto timeondeposit in theCollectionAccountand theServicerAccountandanyand all replacements, substitutions, distributions on, income relating to or proceeds of any and all of the foregoing; and
(ii) thePurchasedItems.
(b) IntentionallyOmitted.
(c) Buyer’ssecurityinterestintheCollateralandtheCollectionAccountshallterminateonlyuponsatisfactionoftheRepurchaseObligations.Uponsuchsatisfactionand uponrequestofSeller,Buyershall,atSeller’ssoleexpense,delivertoSellersuchUCCterminationstatementsandotherreleasedocumentsasmaybecommercially reasonableand return(orapprovethereturnbyCustodianinaccordancewiththeCustodialAgreement,as applicable) the Purchased Assets, Purchased Items, Purchased Asset Documents and Purchased AssetFilestoSellerandreconveythePurchasedAssetsandPurchasedItemstoSellerand release its security interest in the Collateral, the Collection Account and the Servicer Account, such release to be effective automatically without further action by any party.For purposes of the grantof the security interestpursuanttothisArticle6,thisAgreementshallbe deemed to constitute a security agreement under the New York Uniform Commercial Code (the “UCC”). Buyershallhavealloftherightsandmayexercisealloftheremediesofasecuredcreditorunder theUCCandtheotherlawsoftheStateofNewYork.Infurtheranceoftheforegoing,(i)Buyer, at Seller’s sole cost and expense, shall cause to be filed in such locations as maybenecessaryto perfectandmaintainperfectionandpriorityofthesecurityinterestgrantedhereby,UCCfinancing statements and continuation statements (collectively, the “Filings”), and shall forward copies of such Filings to Seller upon completion thereof, and (ii)Seller shall from time to time takesuchfurtheractionsasmay berequestedby Buyerinitssolediscretiontomaintainand continue theperfection and priorityof thesecurityinterest grantedhereby(includingmarkingits recordsandfilestoevidencetheinterestsgrantedtoBuyerhereunder).Notwithstandingthe foregoing, the Repurchase Obligations shall be full recourse to Seller.
(d) Seller acknowledges that it has no rights to service the Purchased Assets but only has rights granted to it pursuant to Article27.Without limiting the generality of the foregoing and thegrant of a securityinterest pursuant to Article 6(a), and in theevent that Seller is deemed
byacourt,otherforumorotherwisetoretainanyresidualServicingRights(notwithstandingthat such Servicing Rights are Purchased Items hereunder), and for the avoidance of doubt, Seller herebyacknowledges and agrees that the Servicing Rights constitute Collateral hereunder for all purposes.The foregoing provision is intended to constitute a security agreement or other arrangementorothercreditenhancementrelatedtotheAgreementandTransactionshereunderas defined under Section 741(7)(xi) of the Bankruptcy Code.
(e) Seller agrees, to the extent permitted byapplicable law, that neither it nor anyone claiming through or under it will set up, claim or seek to take advantage of any appraisement, valuation, stay or extension law now or hereafter in force in any locality where any Purchased Asset maybe situated in order to prevent, hinder or delaythe enforcement or foreclosure of this Agreement, or the absolute sale of any of the Purchased Assets, in each case in accordance with the terms of this Agreement, or the final and absolute putting into possession thereof, immediatelyafter such sale, of Buyers thereof, and Seller, for itself and all who mayat anytime claim through or under it, herebywaives until the Repurchase Obligations are paid in full, to the fullextentthatitmaybelawfulsotodo,thebenefitofallsuchlawsandanyandallrighttohave any of the properties or assets constituting the Purchased Assets marshaled upon any such sale, andagreesthat,upontheoccurrenceandduringthecontinuanceofanEventofDefault,Buyeror any court having jurisdiction to foreclose the security interests granted in this Agreement may, upon the occurrence and during the continuance of an Event of Default, sell the PurchasedAssets as an entiretyor in such parcels as Buyer or such court maydetermine.
ARTICLE 7 TRANSFERANDCUSTODY
(a) On the Purchase Date for each Transaction, ownership of the related proposed Purchased Assets and other Purchased Items shall be transferred to Buyer or its designee (including the Custodian) against the simultaneous transfer of the Purchase Price for such proposedPurchased Asset to an account ofSellerspecified in therelatedConfirmationandsuch proposed Purchased Asset shall become a Purchased Asset hereunder, with a simultaneous agreementbyBuyertotransfertoSellerthesamePurchasedAssetontheapplicableRepurchase Date, against the transfer of funds bySeller, in an amount equal to the Repurchase Price.
(b) Seller shall deposit the Purchased Asset Files representing the Purchased Assets, or direct (including through a bailee) that such Purchased Asset Files be deposited directlywith the Custodian in accordance with the Custodial Agreement.The Purchased Asset Files shall be maintained in accordance with the Custodial Agreement.If a Purchased Asset File is not delivered to Buyer or its designee (including the Custodian), such Purchased Asset File shall be held in trust by Seller or its designee for the benefit of Buyer as the owner thereof.Seller or its designee shall maintain a copy of the Purchased Asset File and the originals of the Purchased Asset File not delivered to Buyer or its designee (including the Custodian).The possession of the Purchased Asset File by Seller or its designee is at the will of Buyer for the sole purpose of servicingtherelatedPurchasedAsset,andsuchretentionandpossessionbySelleroritsdesignee isinacustodialcapacityonly.Thebooksandrecords(including,withoutlimitation,any
computer records or tapes) of Seller or its designee shall be marked appropriately to reflect clearly the sale of the related Purchased Asset to Buyer.Seller or its designee (including the Custodian)shallreleaseitscustodyofthePurchasedAssetFileonlyinaccordancewithawritten
request acknowledged in writing by Buyer and otherwise in accordance with the Custodial Agreement.
(c) From time to time, Seller shall forward to the Custodian, with copy to Buyer, additional original documents or additional electronic copies of documents, as applicable in accordance with the Custodial Agreement, evidencing any assumption, modification, consolidation or extension of a Purchased Asset approved (if and to the extent required) in accordance with the terms of this Agreement, and upon receipt of any such other documents (which shall be clearly marked as to which Purchased Asset File such documents relate) Custodian will be required to hold such other documents in the related Purchased Asset File in accordance with the Custodial Agreement.
ARTICLE 8
SALE,TRANSFER,HYPOTHECATIONORPLEDGEOFPURCHASEDASSETS
(a) Title to each Purchased Asset shall pass to Buyer on the related Purchase Date, and Buyer shall have free and unrestricted use of all Purchased Assets, subject, however, to the terms of this Agreement.Nothing in this Agreement or any other Transaction Document shall precludeBuyerfromengaginginrepurchasetransactionswiththePurchasedAssetsorotherwise selling, transferring, pledging, repledging, hypothecating or rehypothecating the Purchased Assets, but no such transaction shall relieve Buyer of its obligations to transfer the same Purchased Assets to Seller pursuant to Article3or of its obligation to apply all amounts as requiredunderArticle5(f)orotherwiseaffecttherights,obligationsandremediesofanypartyto this Agreement.
(b) Nothing contained in this Agreement or any other Transaction Document shall obligate Buyer to segregate any Purchased Assets delivered to Buyer by Seller.Except to the extent expressly set forth in this Agreement or any other Transaction Document, no Purchased Asset shall remain in the custody of Seller or any Affiliate of Seller.
ARTICLE 9 REPRESENTATIONSANDWARRANTIES
Seller represents and warrants to Buyer as of the Closing Date, each Purchase Date, the date of anyFutureFundingAdvanceDraw,thedateofanyMarginExcessAdvanceand thefirst day of each Extension Term, as follows:
(a) Organization, Etc.Seller (i)is duly organized, validly existing and in good standing under the laws and regulations of the State of Delaware, (ii)is dulylicensed,qualified, and in good standing in every state where such licensing or qualification is necessary for the transaction of its business except where failure to do so is not reasonably likely to result in a MaterialAdverseEffect,(iii)has thelimitedliabilitycompanypowertoownandhold theassets itpurportstoownandhold,andtocarryonitsbusinessasnowbeingconductedandproposedto
be conducted and (iv)has the limited liability company power to execute, deliver, and perform its obligations under the Transaction Documents.
(b) Authorization,ActingasPrincipal,Approvals,Compliance.Sellerrepresentsthat
(i)it is duly authorized to execute and deliver the Transaction Documents to which it is a party, to enter into Transactions as contemplated hereunder and to perform its obligations under the Transaction Documents, andhastaken allnecessaryactiontoauthorizesuchexecution,delivery and performance, (ii)it will engage in such Transactions as principal, (iii)each person signing any Transaction Document on its behalf is duly authorized to do so on its behalf and (iv)it has obtained all authorizations of any Governmental Authority required in connection with the Transaction Documents and the Transactionshereunder andsuch authorizations arein full force and effect.
(c) Consents.No consent, approval or other action of, or filing by Seller with, any Governmental Authorityor anyother Person is required to authorize, orisotherwise required in connection with, the execution, delivery and performance of any of the Transaction Documents (other than consents, approvals and filings that have been obtained or made, as applicable).
(d) Licenses and Permits.Seller is duly licensed, qualified and in good standing in every jurisdiction where such licensing, qualification or standing is necessary, and has all licenses, permits and other consents that are necessary, for the transaction of Seller’s business, includingtheacquisition,origination(ifapplicable),ownershiporsaleofanyPurchasedAssetor otherPurchased Item, except, in each case, where failure to do so could not be reasonablylikely to result in a Material Adverse Effect.
(e) DueExecution;Enforceability.TheTransactionDocumentstowhichitisaparty have been or will be dulyexecuted and delivered bySeller, for good and valuable consideration. Once executed byeach applicable counterparty, the Transaction Documents constitutethelegal, valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms subject to bankruptcy, insolvency, and other limitations on creditors’ rights generally and to general principles of equity.
(f) Abilityto Perform.Seller does not believe, nor does it have anyreason or cause to believe, that it cannot perform each and every covenant applicable to it and contained in the Transaction Documents to which it is a party.
(g) Non-Contravention.Neither the execution and delivery of the Transaction Documents, nor consummation by Seller of the transactions contemplated by the Transaction Documents (or anyofthem), norcompliance bySeller with theterms, conditions and provisions of the Transaction Documents (or any of them) will conflict with or result in a breach of any of the terms, conditions or provisions of (i)the organizational documents of Seller, (ii)any contractual obligation to which Seller is now a party or the rights under which have been assigned to Seller or the obligations under which have been assumed by Seller or to which the assetsofSellerissubjectorconstituteadefaultthereunder,orresultthereunderinthecreationor imposition of any lien upon any of the assets of Seller, other than pursuant to the Transaction Documents,(iii)anyjudgmentororder,writ,injunction,decreeordemandofanycourt
applicable to Seller, or (iv)any applicable Requirement of Law, in each case of clauses (ii)-(iv) above, to the extent that such conflict or breach would have a Material Adverse Effect.
(h) Litigation;RequirementsofLaw.ExceptasdisclosedinwritingtoBuyer,thereis no action, suit, proceeding, investigation or arbitration pending or, to Seller’s Knowledge, threatened in writing against Seller or Guarantor or any of its respective assets that (i) is in an amount greater than Seller Threshold with respect to Seller or Guarantor Threshold with respect to Guarantor or (ii) if adverselydetermined is reasonablylikelyto result in anyMaterial Adverse
Effect.Seller is in compliance with all Requirements of Law, except where failure to comply could not be reasonably likely to result in a Material Adverse Effect.Seller is not in default in any material respect with respect to any judgment, order, writ, injunction, or decree of any arbitrator or Governmental Authority that is reasonably likely to result in a Material Adverse Effect or could reasonablybe expected to constitute a Default or an Event of Default.
(i) Judgments.Except as disclosed in writing to Buyer, there are no judgments against Seller in an amount greater than Seller Threshold, or against Guarantor in the aggregate in an amount greater than Guarantor Threshold that, in each case, are unsatisfied of record or docketed in any court located in the United States of America.
(j) No Bankruptcies.No Act of Insolvency has ever occurred with respect to any Seller Party.
(k) IntentionallyOmitted.
(l) No Broker.Seller has not dealt with any broker, investment banker, agent, or otherPerson (otherthan Buyeror an Affiliateof Buyer) whomaybe entitled toanycommission or compensation in connection with the sale of Purchased Assets pursuant to any of the Transaction Documents.
(m) NoDefault.NoEventofDefaultorDefaulthasoccurredandiscontinuingunder or with respect to the Transaction Documents of which Seller has not given notice if and when required in accordance with Article 11(a).
(n) NoCreditEvent.ToSeller’sKnowledge,therearenofactsorcircumstancesthat are reasonably likely to cause or have caused a Credit Event to occur with respect to any Purchased Asset, except as disclosed in writing by Seller.
(o) No Material Adverse Effect.Except as disclosed in writing to Buyer, Seller has no Knowledge of any actual development, event or other fact that has not been disclosed in writing bySeller and would reasonablybe expected to result in a Material Adverse Effect.
(p) IntentionallyOmitted.
(q) Authorized Representatives.The duly authorized representatives of Seller are listedonandtruesignaturesofsuchauthorizedrepresentativesaresetforthonExhibitIVhereto, orsuchothermostrecentlistofauthorizedrepresentativessubstantiallyintheformofExhibitIVhereto as Seller may from time to time deliver to Buyer.
(r) Chief Executive Office; Jurisdiction of Organization; Location of Books andRecords.Each Seller Party’s chief executive office is located at 2398 E. Camelback Road, 4th Floor, Phoenix, Arizona 85016, unless such Seller Party has provided a new chief executive officeaddress to Buyer in writing.Seller’s jurisdiction of organization is the StateofDelaware. The location where Seller keeps its books and records, including all computer tapes and records relating to the Collateral, is its chief executive office.
(s) Representations and Warranties Regarding the Purchased Assets.Each of the representationsandwarrantiesmadeinrespectofthePurchasedAssetspursuanttoExhibitXare true, complete and correct in all material respects, except as disclosed in writing by Seller prior to a Purchase Date for anyPurchased Asset and reflected in the related Confirmation.
(t) Good Title to Purchased Assets.Immediately prior to the purchase of any PurchasedAssetsandotherPurchasedItemsbyBuyerfromSeller,(i)suchPurchasedAssetsand other Purchased Items are free and clear of any lien, encumbrance or impediment to transfer (including any “adverse claim” as defined in Article 8-102(a)(1) of the UCC), (ii) such PurchasedAssetsandotherPurchasedItemsarenotsubjecttoanyrightofset-off,anypriorsale, transfer,assignment orparticipation (otherthan atransfer orchain oftransfers from Affiliates of Seller to Seller on or prior to the Purchase Date), or any agreement by Seller to assign, convey, transfer or participate such Purchased Assets and other Purchased Items, in each case, in whole orinpart,(iii)Selleristhesolerecordandbeneficialownerofandhasgoodandmarketabletitle to such Purchased Assets and other Purchased Items and (iv)Seller has the right to sell and transfer such Purchased Assets and other Purchased Items to Buyer.Upon the purchase of any PurchasedAssetsandotherPurchasedItemsbyBuyerfromSeller,Buyershallbethesoleowner of such Purchased Assets and otherPurchased Items free of anyadverse claim existing as of the Purchase Date, subject to the terms and conditions of the Purchased Asset Documents and Seller’s rights under this Agreement; provided, however, that to the extent that any Transaction is recharacterized as a secured financing of the Purchased Assets, Buyer will have a valid and perfected security interest in and to the Purchased Assets and Purchased Items as and to the extent described in Article 9(v).
(u) No Encumbrances.There are (i) no outstanding rights, options, warrants or agreements on the part of Seller for a purchase, sale or issuance, in connection with any PurchasedAssetorotherPurchased Item,(ii)noagreementsonthepartofSellertoissue,sellor distribute any Purchased Asset or other Purchased Item and (iii) no obligations on the part of Seller (contingent or otherwise) to purchase, redeem or otherwise acquire any securities or interest therein, in each case, except, in each of the foregoing instances, as contemplated bythe Transaction Documents.
(v) Security Interest in Collateral.Upon execution and delivery of the Account Control Agreement, Buyer shall have a legal, valid, enforceable and fullyperfected first priority security interest in all right, title and interest of Seller in the Collection Account and all funds credited thereto, subject to bankruptcy, insolvency, and other limitations on creditors’ rights generally and to general principles of equity.In the event any related Transaction is recharacterizedas asecuredfinancingofthePurchasedAssets,theprovisionsofthisAgreement areeffectivetocreateinfavorofBuyeravalid“securityinterest”(asdefinedin
Section1-201(b)(35)oftheUCC)inallrights,titleandinterestofSellerin,toandunderthe Collateral, and:
(i) with respect to the portion of the Collateral constituting an “instrument” (as defined in Section 9-102(a)(47) of the UCC), upon possession of such Collateral constituting an “instrument” bythe Custodian endorsed in blank in accordance with the Custodial Agreement or by a bailee pursuant to a bailee agreement, Buyer shall have a valid, perfected first priority security interest in such Collateral constituting an “instrument”subject tobankruptcy,insolvencyandotherlimitationsoncreditors’rights generally and to equitable principles; and
(ii) upon filing the UCC Financing Statements in the applicable UCC Filing Jurisdiction, Buyer shall have a valid, perfected first priority security interest in the Collateral to the extent that a security interest in the Collateral can be perfected under
the UCC by the filing of financing statements subject to bankruptcy, insolvency and other limitations on creditors’ rights generally and to equitable principles.
(w) Delivery of Purchased Asset File.With respect to each Purchased Asset, the Mortgage Note, the Mortgage, the Assignment of Mortgage and anyother document requiredto be delivered under this Agreement and the Custodial Agreement for such Purchased Asset has been delivered to Buyer or the Custodian on its behalf (or shall be delivered in accordance with the time periods set forth herein).
(x) IntentionallyOmitted.
(y) Federal Regulations.Seller is not required to register as an “investment company,” or a company “controlled by an investment company,” within the meaning of the Investment Company Act of 1940, as amended.
(z) Taxes.Seller has filed or caused to be filed all federal and other material tax returns or extensions thereto that would be delinquent if theyhad not been filed on or before the date hereof (taking into account any extensions) and has paid all Taxes shown to be due and payableonorbeforethedatehereofonsuchreturnsoronanyassessmentsmadeagainstitorany of its property(in each casetakinginto account anyextensions) except foranysuch Taxes as are beingappropriatelycontestedingoodfaithbyappropriateproceedingsandwithrespecttowhich adequate reserves have been provided in accordance with GAAP; no Tax liens have been filed against any of Seller’s assets, except for such Tax liens as are being appropriately contested in good faith by appropriate proceedings and with respect to which adequate reserves have been provided in accordance with GAAP, and no material claims are being asserted with respect to any such Taxes.
(aa)ERISA.Seller does not have any Plans or any ERISA Affiliates and makes no contributions to any Plans or any Multiemployer Plans.
(bb)Solvency; No Fraudulent Transfer.Seller has adequate capital for the normal obligations foreseeable in a business of its size and character and in light of its contemplated business operations.Seller is generally able to pay, and is paying, its debts as they come due. NeithertheTransactionDocumentsnoranyTransactionthereunderareenteredintoin
contemplationofinsolvencyorwithintenttohinder,delayordefraudanycreditorsofSeller.As of each Purchase Date, Seller is not insolvent within the meaning of 11 U.S.C. Section 101(32) or any successor provision thereof and the transfer and sale of the related Purchased Assets on suchPurchaseDatepursuantheretoandtheobligationtorepurchasesuchPurchasedAssets
(i)willnotcausetheliabilitiesofSellertoexceedtheassetsofSeller,(ii)willnotresultinSeller havingunreasonablysmallcapital,and(iii)willnotresultindebtsthatwouldbebeyondSeller’s ability to pay as the same mature.Seller received reasonably equivalent value in exchange for eachtransferandsaleofthePurchasedAssetssubjectheretotoBuyer.NoActofInsolvencyhas occurred with respect to Seller.Seller has onlyentered intoagreements with Affiliates on terms that would be considered arm’s length and otherwise on terms consistent with other similar agreements with other similarly situated entities.
(cc)Use of Proceeds; Margin Regulations.All proceeds of each Transaction shall be used bySeller forpurposes permittedunderSeller’s governingdocuments, providedthat nopart of the proceeds of anyTransaction shall be used bySeller to purchase or carryanymargin stock
or to extend credit toothers forthepurposeofpurchasingorcarryinganymarginstock.Neither the entering into of any Transaction nor the use of any proceeds thereof shall violate, or be inconsistent with, any provision of Regulation T, U or X of the Board of Governors of the Federal Reserve System.
(dd)Full and Accurate Disclosure.All information, reports, statements, exhibits, schedules and certificates, (i)furnished in writing by or on behalf of any Seller Party in connection with the negotiation, preparation or delivery of the Transaction Documents, or after the date hereof pursuant to the terms of any Transaction Document or (ii)included in any TransactionDocument,whentakenasawhole,donotandwillnot,containanyuntruestatement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading in light of the circumstances under which theyweremade, or (in thecase of projections) is or will be based on reasonable estimates, on the date as of which such information is stated or certified; provided, that the representation inthis Article10(dd) ismade to Seller’s Knowledge with respect to information provided by third parties.
(ee) Financial Information; Business Condition.All financial data concerning Seller Parties and, toSeller’sKnowledge,thePurchasedAssetsthathasbeendelivered byoronbehalf ofSellertoBuyeristrue,completeandcorrectinallmaterialrespectsonthedateofthedelivery thereoftoBuyer.AllfinancialdataconcerningeachSellerParty hasbeenpreparedfairly in accordancewithGAAPconsistentlyapplied.AllfinancialdataconcerningthePurchasedAssets and the other Purchased Items has been prepared in accordance with standard industrypractices. Sincethedeliveryofsuchdata,exceptasotherwisedisclosedinwritingtoBuyer,therehasbeen nochangeinthefinancialconditionortheresultsofoperations(orprospects)ofanySellerParty or,toSeller’sKnowledge,intheresultsofoperationsofanySellerPartyorthePurchased Assets, which change could result in a Material Adverse Effect.
(ff) IntentionallyOmitted.
(gg)No Reliance.Seller has made its own independent decisions to enter into the Transaction Documents and each Transaction and as to whether such Transaction is appropriate andproperforitbaseduponitsownjudgmentanduponadvicefromsuchadvisors(including
without limitation, legal counsel and accountants) as it has deemed necessary.Seller is not relying upon any advice from Buyer as to any aspect of the Transactions, including without limitation, the legal, accounting or tax treatment of the Transactions.
(hh)Anti-MoneyLaunderingandEconomicSanctions. Sellerrepresents,warrantsand covenants that it has complied, and will comply, in all material respects, and to the extent applicable,withthePatriotAct,ACLaws,andAMLLawsby (1)establishinganadequate anti-money-laundering compliance program as required by the AML Laws, (2) conducting the requisite due diligence in connection with the origination of each Purchased Asset for purposes of the AML Laws, including with respect to the legitimacy of the related obligor (if applicable) andtheoriginoftheassetsusedbysuchobligortoacquirethemortgageloansinquestion,and
(3) maintaining sufficient information to identifythe related obligor (if applicable) for purposes of the AML Laws.Seller further represents, warrants and covenants that each Seller Party and any Person that has a direct or indirect economic interest in Seller of greater than ten (10%) percent, and their directors, officers, or employees, in each case, has not, and at all times
throughout the term of this Agreement, including after giving effect to anytransfers of interests permitted pursuant to the Transaction Documents, shall not:
(i) be (orhavebeen) aSanctionedPerson ororganized,located orresident in a Sanctioned Jurisdiction;
(ii) fail to operate (or have operated) under policies, procedures and practices (including, without limitation, recordkeeping and reporting), if any, that are in compliancewith(andensurecompliancewith)thePatriotAct,ACLaws,AMLLawsand Sanctions;
(iii) directlyorindirectlyuse (orhaveused) anypart oftheproceedsrelated to any Transaction (including, without limitation, any sums disbursed from time to time hereunder) or otherwise lend, contribute or make the same available (or have lent, contributed or made the same available), in each case, (A) to fund or facilitate any activities or business (I) of or with anySanctioned Person or (II) of or in anySanctioned Jurisdiction, (B) in any manner that would result in a violation of any Sanctions by any Person or (C) in violation of any applicable laws (including, without limitation, the Patriot Act, AC Laws, AML Laws and/or Sanctions);
(iv) be (or have been) a Person who has been determined by competent authority to be subject to any of the prohibitions contained in the Patriot Act; or
(v) be(orhavebeen)ownedorcontrolledbyorbe(orhavebeen)actingforor on behalf of, in each case, any Person who has been determined to be subject to the prohibitions contained in the Patriot Act.
Without limitation of any other term or provision contained herein, it shall be an Event of DefaulthereunderifanySellerPartyoranyPersonthathasadirectorindirecteconomicinterest in Seller of greater than ten (10%) percent, and their directors, officers, or employees, in each case, or any other party to any Transaction Document, becomes the subject of Sanctions or is indicted, arraigned or custodially detained on charges involving Sanctions, the Patriot Act, AC
Laws and/or AML Laws and/or predicate crimes to AC Laws, the Patriot Act, AML Laws and Sanctions. Seller hereby represents and covenants that none of the execution, delivery or performance of the Transaction Documents or any activities, transactions, services, collateral and/or security contemplated thereunder has or shall result in a breach of the Patriot Act, AC Laws, AML Laws and/or Sanctions by any party to the Transaction Documents or their respective Affiliates. All capitalized words and phrases and all defined terms used in the Patriot Act are incorporated into this Section.
(ii) IntentionallyOmitted.
(jj)Insider. Sellerisnotan“executiveofficer,”“director,”or“personwhodirectlyor indirectly or acting through or in concert with one or more persons owns, controls, or has the power to vote more than 10% of anyclass of votingsecurities” (as those terms are defined in 12
U.S.C. § 375(b) or in regulations promulgated pursuant thereto) of Buyer, of a bank holding company of which Buyer is a Subsidiary, or of any Subsidiary of a bank holding company of which Buyer is a Subsidiary, of any bank at which Buyer maintains a correspondent account or of any lender which maintains a correspondent account with Buyer.
(kk)Anti-Money Laundering Laws.Seller has complied in all material respects with all applicable anti-money laundering laws and regulations (collectively, the “Anti-MoneyLaundering Laws”), by (i)establishing an adequate anti-moneylaundering compliance program as required by the Anti-Money Laundering Laws, (ii)conducting the requisite due diligence in connection with the origination of each Purchased Asset for purposes of the Anti-Money Laundering Laws, including with respect to the legitimacy of the related obligor (if applicable) andtheoriginoftheassetsusedbysuchobligortopurchasethepropertyinquestion,and
(iii) maintainingsufficientinformation toidentifytherelatedobligor(ifapplicable)forpurposes of the Anti-Money Laundering Laws.
(ll) IntentionallyOmitted.
(mm)Ownership. Sellerisawholly-owneddirectorindirectSubsidiaryofReplacement Guarantor.
(nn) Tax Status.For U.S. federal income tax purposes, Seller is a disregarded entity. (oo) No Real Property.Seller has not at anytime since its formation held title to any
realproperty.
ARTICLE 10
NEGATIVECOVENANTSOFSELLER
Onandasofthedatehereofandatalltimes while this Agreement or any Transaction hereunder is in effect, Seller shall not, without the prior written consent of Buyer:
(a) knowingly take any action that would directly or indirectly impair or adverselyaffect Buyer’s title to the Purchased Assets;
(b) transfer,assign,convey,grant,bargain,sell,setover,deliverorotherwisedispose of, or pledge or hypothecate, directly or indirectly, any interest in any Purchased Assets to any PersonotherthanBuyer,orengageinrepurchasetransactionsorsimilartransactionswithrespect to any Purchased Assets with any Person other than Buyer;
(c) create, incur, assume orsufferto exist anyLien, encumbranceorsecurityinterest in or on any of the Purchased Assets or the other Collateral, whether now owned or hereafter acquired, other than the Liens andsecurityinterest granted bySellerpursuant tothe Transaction Documents;
(d) create, incur, assume or suffer to exist any Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) if the same would cause Seller to violate the covenants contained in Article 12;
(e) subject to Article27,permit (throughthe givingof consent or a waiver,failureto object or otherwise) any Mortgaged Property or Mortgagor, in each case, relating to any Purchased Asset, to create, incur, assume or suffer to exist anyLiens or Indebtedness, including without limitation, junior mortgage debt or mezzanine debt (in each case, excluding Permitted Encumbrances against the related Mortgaged Property and except to the extent that any such Liens or Indebtedness are otherwise created, incurred, assumed or permitted in accordance with the Purchased Asset Documents);
(f) consent or assentto anySignificantModification relatingto anyPurchased Asset or other agreement or instrument relating to any Purchased Asset other than in accordance with Article 27and the Servicing Agreement and/or Servicer Letter (as applicable);
(g) permit the organizational documents or organizational structure of Seller to be amended in any material respect; provided, howeverthat the foregoing shall not prohibit any modificationstoSeller’sorganizationaldocumentswhichareadministrativeinnature(otherthan with respect to the special purpose entity provisions) or solely reflect new direct or indirect ownership so long as no Change of Control has occurred;
(h) engage in, seek or consent to any dissolution, winding up, Division, liquidation, consolidation,mergerorsaleofall orsubstantiallyall ofitsassets(exceptintheordinarycourse of business from time to time and upon the repurchase of all applicable Purchased Assets of Seller then subject to Transactions under this Agreement), transfer of membership interests or the like;
(i) sufferaChangeofControlthatBuyerhasnotconsentedto;
(j) aftertheoccurrence andduringthe continuanceofanEventofDefault,makeany distribution, payment on account of, orset apart assetsfor, asinkingorotheranalogousfundfor the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directlyor indirectly, whether in cash or propertyor in obligations of Seller;
(k) acquire or maintain any right or interest in any Purchased Asset or Mortgaged PropertyrelatingtoanyPurchasedAssetthatisseniortoorparipassuwiththerightsand
interestsofBuyerthereinundertheTransactionDocumentsotherthan(x)inconnectionwiththe addition of such other rights or interests as Collateral hereunder, or (y) a pari passu companion note or a pari passu participation interest related to a Senior Interest that is a Purchased Asset which note or interest Seller holds and promptly transfers to an Affiliate or to a securitization transaction;
(l) use anypart of the proceeds of anyTransaction hereunder for anypurpose which violates, or would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System;
(m) directly,orthroughaSubsidiary,acquireorholdtitletoanyrealproperty;
(n) make any election or otherwise take any action that would cause Seller to be treated as an association taxable as a corporation for U.S. federal income tax purposes; or
(o) permit any“person” or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) (other than Initial Guarantor) to become, or obtain rights (whether bymeans ofwarrants,optionsorotherwise)tobecome,thebeneficialowner,directlyorindirectly,of10% or more of the total voting power of all classes of Capital Stock of Guarantor entitled to vote generally in the election of the directors or the applicable equivalent unless, in each case, (x) Buyer has completed all “Know Your Customer” and Sanctions and Patriot Act diligence as to such “person” or “group”, as applicable, and (y) Seller certifies to Buyer that (i) Seller Parties have completedtheirown“KnowYourCustomer”andSanctions andPatriotActdiligenceas to such “person” or “group”, as applicable and its or their beneficial owners (attaching thereto the results of such diligence) and (ii) Seller has no Knowledge nor any reason to believe that such “person” or “group” or its or their beneficial owners have violated the representations and warranties contained in Article 9(hh)(Anti-Money Laundering and Economic Sanctions).
ARTICLE 11 AFFIRMATIVECOVENANTSOFSELLER
Onandasofthedatehereofandatalltimes while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(a) SellerNotices.
(i) Material Adverse Effect.Seller shall promptly notify Buyer of any Material Adverse Effect of which Seller has Knowledge; provided, however, that nothing in this Article 11shall relieve Seller of its obligations under this Agreement.
(ii) Default or Event of Default.Seller shall notify Buyer of the occurrence of any Default or Event of Default with respect to Seller as soon as possible but in no event later than two (2) Business Days after obtaining Knowledge of such event.
(iii) Purchased Asset Defaults.Seller shall promptly, and in any event not laterthantwo(2)BusinessDaysfollowingreceiptofnoticethereof,delivertoBuyerany notice of the occurrence of any Purchased Asset Event of Default.
(iv) OtherDefaults,LitigationandJudgments.
(A) Seller shall promptly, and in any event not later than two(2) Business Days, after obtaining Knowledge thereof, notifyBuyer of (x)anyevent of default (beyond applicable notice and grace periods) on the part ofSeller underanyIndebtednessorothermaterialcontractualobligationsofSeller;and(y) the commencement or written threat of, or judgment in, any action, suit, proceeding, investigation or arbitration before any Governmental Authority involving Seller or any of its respective assets.
(B) Seller shall promptly, and in any event not later than two (2) Business Days after obtaining Knowledge thereof, notify Buyer of (1) to the extent such default or event of default could reasonablybe expected to constitute an Event of Default hereunder, any default or event of default (or similar event) on the part of Guarantor under any Indebtedness or other contractual obligations ofGuarantor;and(2)thecommencementorwrittenthreatof,orjudgmentin,any action, suit, proceeding, investigation or arbitration before any Governmental Authority involving Guarantor or any of its assets, which, in each case, is likely (in Seller’s reasonable judgment) to be adversely determined and, if so, could reasonably be expected to have a Material Adverse Effect as reasonably determined by Seller.
(v) Mandatory Early Repurchase Event. Seller shall promptly, and in any event not later than two (2) Business Days after obtaining Knowledge thereof, notify Buyer of any Mandatory Early Repurchase Event that has occurred, which notice to Buyer shall state the details of such Mandatory Early Repurchase Event including the related Purchased Assets for which such Mandatory Early Repurchase Event has occurred and whether such Mandatory Early Repurchase Event is continuing.
(vi) Credit Event.Promptly, and in anyeventnotlaterthantwo(2) Business Days, after obtaining Knowledge or following receipt of notice thereof, Seller shall notify Buyer of any events, facts or circumstances that have caused or are reasonably likelyto cause a Credit Event to occur with respect to anyPurchased Asset.
(vii) CorporateChange.SellershalladviseBuyerinwritingoftheopeningof anynewchiefexecutiveoffice, ortheclosingofanysuchoffice, ofanySellerPartyand of any change in any Seller Party’s name or the places where the books and records pertaining to the Purchased Asset are held not less than ten (10) Business Days prior to taking any such action.Seller shall provide Buyer at least two (2) Business Days prior
noticeoftheremovaland/orreplacementofanyIndependentDirector,togetherwiththe name and contact information of the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director.
(viii) Transfers of Indirect Equity in Seller.Seller shall advise Buyer in writing, promptly after Knowledge thereof, of any transfer to a Person of ten percent (10%) or more of the indirect equity ownership of Seller, individually or in the aggregate, and the identity of such Person, together with a post-transfer organizational
chart and all “know your customer” information concerning such Person reasonably requested by Buyer, provided that such information is in Seller’s possession or reasonably obtainable by Seller.
(b) Reporting.
(i) Purchased Asset Information.Seller shall provide, or shall cause to be provided, to Buyer (A)nolaterthanthe fifteenth (15th)dayof eachmonth, anyproperty level financial information (including, without limitation, operating and financial statements) with respect to the Purchased Assets that was received from the related Mortgagor in accordance with the related Purchased Asset Documents during the preceding calendar month and is in the possession of Seller or an Affiliate, including, without limitation, rent rolls, income statements and STR reports, in each case, if applicable; and (B)promptly upon request, such other information with respect to the Purchased Assets that may be reasonably requested by Buyer from time to time and to the extent available to Seller.
(ii) Monthly Servicing Report.With respect to the Purchased Assets and related Mortgaged Properties, on or prior to the Remittance Date each calendar month, Seller shall, or shall cause Servicer to, provide to Buyer a monthlyoperations/servicing report covering collections, delinquencies, losses, recoveries, and cash flows, in form reasonably acceptable to Buyer.
(iii) QuarterlyPurchasedAssetReports.WithrespecttothePurchasedAssets and related Mortgaged Properties, at quarterly intervals with respect to each such Purchased Asset and related Mortgaged Property, Seller shall provide, or shall cause to be provided, to Buyer an asset management report prepared by Seller or Guarantor (to the extent of information in the possession of Seller or an Affiliate), in form reasonably acceptable to Buyer.
(iv) Quarterly Financial Reports.Seller shall provide, or shall cause to be provided, to Buyer within sixty (60) days after the end of the first three quarterly fiscal periods of each fiscal year of Guarantor, the unaudited consolidated balance sheets of Guarantor, as at the end of such period and the related unaudited, consolidated statements of income and member equity of Guarantor for such period (with or without footnotes)andtheportionofthefiscalyearthroughtheendofsuchperiod,accompanied by an officer’s certificate of Guarantor, which certificate shall state that said consolidated financial statements fairly present the financial condition of Guarantor, as applicable, in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments); provided, however, to the extent that Guarantor’s quarterly financial statements for such period are posted to the website for the Securities and Exchange Commission (http://www.sec.gov) within such sixty(60)dayperiod,Sellershallbedeemedtohavesatisfiedthereportingrequirements of this Article 11(b)(iv)upon delivery of such posting.
(v) Annual Financial Reports.Seller shall provide, or shall cause to be provided, toBuyerwithin onehundredtwenty(120)daysafter theendofthefiscalyear
ofGuarantor,theauditedconsolidatedbalancesheetsofGuarantor,asattheendofsuch fiscal year and the related audited, consolidated statements of income, member equity and cash flows of Guarantor, accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall not be qualified as to scope of audit or going concern and shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operationsofGuarantorinaccordancewithGAAP,asattheendof,andfor,suchperiod (subject to normal year-end audit adjustments); provided, however, to the extent that Guarantor’sannualfinancialstatementsforsuchperiodarepostedtothewebsiteforthe Securities and Exchange Commission (http://www.sec.gov) within such one hundred twenty (120) day period, Seller shall be deemed to have satisfied the reporting requirements of this Article 11(b)(v).
(vi) Covenant Compliance Certificate.Within the timing for or simultaneously with the delivery of financial statements pursuant to Articles 11(b)(iv)and (v)above for each fiscal quarter in any fiscal year and for fiscal year end, Seller shall deliver to Buyer a Covenant Compliance Certificate from Seller addressed to Buyer.
(vii) Other Information.Seller shall provide, or shall cause to be provided, to Buyersuchotherinformationregardingthefinancialcondition,operationsorbusinessof Seller or any Mortgagor or underlying guarantor with respect to a Purchased Asset as Buyer mayreasonablyrequest and to the extent reasonablyavailable to Seller, including without limitation, such documents as Buyer mayrequest evidencing the truthfulness of the representations set forth in Article 9.
(c) Additional Rights.If Seller shall at any time become entitled to receive or shall receive any rights, whether in addition to, in substitution of, as a conversion of, or in exchange for a Purchased Asset, or otherwise in respect thereof, Seller shall accept the same as Buyer’s agent,holdthesameintrustforBuyeranddeliverthesameforthwithtoBuyer(ortheCustodian, as appropriate)in theexactformreceived, dulyendorsedbySellertoBuyer, ifrequired,together with an undated power covering such rights duly executed in blank to be held by Buyer hereunder as additional collateral security for the Transactions.If any sums of money or property so paid or distributed in respect of the Purchased Assets shall be received by Seller, Seller shall, until such money or property is paid or delivered to Buyer, hold such money or propertyintrustforBuyer,segregatedfromotherfundsofSeller,asadditionalcollateralsecurity for the Transactions.If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any promissory note, other instrument or certificated security, suchnote,instrumentorcertificatedsecurityshallbepromptlydeliveredtoBuyer,dulyendorsed in a manner satisfactory to Buyer, to be itself held as Collateral pursuant to the Transaction Documents.
(d) Defense of Buyer’s SecurityInterest;FurtherAssurances.At anytimefromtime to time, at the sole expense of Seller, Seller shall (i)defend the right, title and interest of Buyer in and to the Purchased Assets and other Collateral against, and take such other action as is necessary to remove, the Liens, security interests, claims and demands of all Persons, (ii)at Buyer’sreasonablerequest,takeallactionBuyerreasonablydeemsnecessaryordesirableto
ensure that Buyer will have a first priority security interest in the Purchased Assets and other CollateralsubjecttoanyoftheTransactionsintheeventsuchTransactionsarerecharacterizedas securedfinancingsand(iii)atBuyer’sreasonablerequest,promptlyanddulyexecuteanddeliver suchfurtherinstruments,documents andinformationandtakesuchfurtheractionsasBuyermay deem reasonably necessary or desirable to (1)obtain or preserve the security interest granted hereunder, (2)ensure that such security interest remains fully perfected at all times and remains at all times first in priority as against all other creditors of Seller (whether or not existing as of the date hereof or in the future), (3)obtain or preserve the rights and powers herein granted (including, among other things, filing such UCC financing statements as Buyer may request) or
(4) ensure compliance with the Patriot Act or any other Requirements of Law in all material respects.
(e) Preservation of Existence; Compliance with Law.Seller shall, and shall cause Guarantor to, at all times (i)comply with all contractual obligations, (ii)comply with all Requirements of Law, (iii)maintain and preserve its legal existence and (iv) maintain and preserve all of its rights, privileges, licenses and franchises necessary for the operation of its business (including, without limitation, with respect to Seller, all lending licenses held byit and its status as a “qualified transferee” (however denominated) under all documents which govern the Purchased Assets), except, in each case other than clause (iii) above, to the extent that any noncompliance or failure would not be reasonablylikelyto result in a Material Adverse Effect.
(f) Operations.Seller shall continue to engage in business of the same general type as now conducted by it or otherwise as approved by Buyer prior to the date hereof.Seller shall maintainrecordswithrespecttotheCollateralandtheconductandoperationofitsbusinesswith no less a degree of prudence than if the Collateral were held by Seller for its own account and shall furnish Buyer, upon reasonable request by Buyer or its designated representative, with reasonable information obtainable by Seller with respect to the Collateral and the conduct and operation of its business.
(g) Books and Records.Seller shall at all times keep proper books and records in which full, true and correct entries shall be made of its transactions fairly in accordance with GAAP, and set aside on its books from its earnings for each fiscal year all such proper reserves in accordance with GAAP.
(h) Compliance with Transaction Documents.Seller shall observe, perform and satisfyalltheterms,provisionsandcovenantsrequiredtobeobserved,performedorsatisfiedby it, and shall pay when due all costs, fees and expenses required to be paid by it, under and in accordancewiththeTransactionDocuments.SellershallcauseGuarantortoatalltimescomply with the terms and conditions of the Guaranty, including without limitation, any financial covenants contained therein.Seller shall be solely responsible for the fees and expenses of Custodian, Account Bank, and Servicer.
(i) Taxes and Other Charges.Seller shall timely file all federal and other material income, franchise and other tax returns required to be filed by it and shall timely pay and discharge all Taxes, levies, assessments, liens and other charges imposed on it, on itsincomeor profits, on any of its property or on the Collateral prior to the date on which penalties attach thereto, except for anysuch Tax, levy, assessment, lien orother charge which is beingcontested
ingoodfaithandbyproperproceedingsandagainstwhichadequatereservesarebeing maintained in accordance with GAAP.
(j) ERISA.Seller shall not violate the representations and warranties contained in Article 9(aa).
(k) Ownership.Seller is and shall remain at all times a wholly-owned direct or indirect Subsidiary of Replacement Guarantor.
(l) Anti-Money Laundering and Economic Sanctions.Seller shall not violate the representations and warranties contained in Article 9(hh)(Anti-Money Laundering and Economic Sanctions).Seller shall comply with so-called “know your customer” information requests from Buyer from time to time during the term of this facility, within ten (10) Business Days of the date of Buyer’s request.
ARTICLE 12 SINGLEPURPOSEENTITY
Onandasofthedatehereofandatalltimes while this Agreement or any Transaction hereunder is in effect and Seller covenants that:
(a) Seller shall own no assets, and shall not engage in any business, other than the Purchased Assets, proposed Purchased Assets and Purchased Assets reacquired by Seller from Buyer, and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets;
(b) Seller shall not make any loans or advances to any Affiliate or third party and shall not acquire obligations or securities of its Affiliates other than those obligations related to Purchased Assets or securities consisting of Purchased Assets;
(c) Sellershallpayitsdebtsandliabilities(including,asapplicable,sharedpersonnel and overhead expenses) only from its own assets;
(d) Sellershallcomplywiththeprovisionsofitsorganizationaldocuments;
(e) Sellershalldoallthingsnecessarytoobserveitsorganizationalformalitiesandto preserve its existence;
(f) Seller shall 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 or required under GAAP or as a matter of Requirements of Law; providedthat appropriate notation shall be made on such financial statements to indicate that Seller’s assets are pledged as collateral for a securityagreement) and file its own tax returns (except to the extent consolidation is required or permitted under Requirements of Law);
(g) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for U.S. federal
andstateincometax purposes),shallcorrectanyknownmisunderstandingregardingitsstatusas aseparateentity,shallconductbusinessinitsownname,andshallnotidentifyitselforanyofits Affiliates as a division of the other;
(h) Seller shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operationsandshallremainsolvent;provided,that theforegoingshall in nowaybeconstruedas requiring the contribution of capital to Seller by any direct or indirect holders of interests in Seller;
(i) Seller shall not commingle its funds or other assets with those of anyAffiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(j) Sellershallmaintainitsproperties,assetsandaccountsseparatefromthoseofany Affiliate or any other Person;
(k) Sellershall not holditselfout to beresponsibleforthedebtsorobligationsofany other Person;
(l) Sellershallnot,withoutthepriorwrittenconsentofitsIndependentDirector,take any action that will result in an Act of Insolvency;
(m) Sellershall,atalltimes,haveatleastone(1)IndependentDirector;
(n) Seller’s organizational documents shall provide (i) that Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the name and contact information of the replacement Independent Director and evidenceofthereplacement’ssatisfactionofthedefinitionofIndependentDirector and (ii) that any Independent Director of Seller shall not have any fiduciary duty to anyone includingtheholdersoftheequityinterestinSellerandanyAffiliatesofSellerexceptSellerand the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; providedthat the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) Seller shall maintain a sufficient number of employees in light of contemplated business operations; provided, however, that Seller shall not be required to maintain any employees;
(q) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(r) Seller shall not pledge its assets to secure the obligations of any other Person (other than under the Transaction Documents);
(s) Sellershall notform,acquireorholdanySubsidiaryorownanyequityinterest in any other entity; and
(t) Seller shall not create, incur, assume or suffer to exist any Indebtedness, Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned orhereafter acquired,otherthan (i)obligations under the Transaction Documents, (ii)obligations under the documents evidencing the Purchased Assets, and (iii)unsecured trade payables, in an aggregate amount not to exceed the Seller Threshold at any one time outstanding, incurred in the ordinary course of acquiring, owning,financinganddisposingofthePurchasedAssets;provided,however,thatanysuchtrade payables incurred bySeller shall be paid within ninety(90) days of the date incurred.
ARTICLE 13
EVENTSOFDEFAULT;REMEDIES;SET-OFF
(a) Events of Default.Each of the following events shall constitute an “Event ofDefault” under this Agreement:
(i) FailuretoRepurchaseorRepay.SellershallfailtorepurchasePurchased Assets upon the applicable Repurchase Date or shall fail to repay the Purchase Price with respect to any Purchased Asset when and as required pursuant to the Transaction Documents.
(ii) Failure to Pay Purchase Price Differential.Seller shall fail to pay any accruedandunpaidPurchasePriceDifferentialwhendue;provided,however,thatSeller shall have one (1) Business Day to cure any failure to pay Purchase Price Differential resulting from an error or omission of an administrative or operational nature.
(iii) Failure to Cure Margin Deficit.Seller shall fail to cure any Margin Deficit for which a Margin Call Notice has been delivered in accordance with Article4when due.
(iv) Failure to Remit Principal Payment.Seller fails to remit (or cause to be remitted)toBuyeranyPrincipalPaymentreceivedwithrespecttoaPurchasedAssetfor application to the payment of the Repurchase Price for such Purchased Asset in accordance with Article5(e), that Seller shall have one (1) Business Day to cure any failure to remit Principal Payment resulting from an error or omission of an administrative or operational nature.
(v) Failure to Pay Fees. Seller shall fail to pay any fee payable to Buyer hereunder or pursuant to the Fee Letter as and when due and the same is not cured within three (3) Business Days after receipt of written demand therefor from Buyer.
(vi) OtherFailuretoPay.Sellershallfailtomakeanypaymentnototherwise enumeratedthatisowing toBuyer under the TransactionDocumentsthathasbecome
due, whether by acceleration or otherwise, and, if no notice and/or grace period is expressly provided for such payment in this Agreement, the same is not cured within five (5) Business Days after receipt of written demand thereto from Buyer.
(vii) ActofInsolvency.AnActofInsolvencyoccurswithrespecttoSelleror Guarantor.
(viii) Admission of Inabilityto Pay.Selleror Guarantorshall admit in writing to any Person its inability to, or its intention not to, perform any of its respective obligations under any Transaction Document.
(ix) Transaction Documents.Any Transaction Document or a replacement therefor acceptable to Buyer shall for whatever reason be terminated (other than by Buyerwithoutcause)orceasetobeinfullforceandeffect,orshallnotbeenforceablein accordance with its terms, or any Seller Party or Affiliate of any Seller Party shall contest the validity or enforceability of any Transaction Document or the validity, perfection or priority of any Lien granted thereunder, or any Seller Party or Affiliate of any Seller Party shall seek to disaffirm, terminate or reduce its obligations under any Transaction Document.
(x) Cross-Default.
(A) Seller shall be in default (beyond any applicable notice and cure periods) under any of its Indebtedness with an outstanding principal amount or other material contractual obligations with an outstanding obligation, in each case, of at least Seller Threshold, which default (A) is a monetary default or (B) permits the acceleration of the maturity of such Indebtedness or obligations by anyotherpartyto orbeneficiarywith respecttosuch Indebtednessorobligations,
and Seller fails to repurchase all Purchased Assets within one (1) Business Day thereafter.
(B) Replacement Guarantor or, prior to a Guarantor Replacement Event, Initial Guarantor, shall be in default (beyond any applicable notice and cure periods) under anyof its Indebtedness with an outstanding principal amount or other material contractual obligations with an outstanding obligation, in each case, of at least Guarantor Threshold, which default (A) is a monetary default or
(B)permitstheaccelerationofthematurityofsuchIndebtednessorobligationsby anyother partyto or beneficiarywith respect to such Indebtedness or obligations, and Seller fails to repurchase all Purchased Assets within one (1) Business Day thereafter.
(xi) Judgment.Afinalnonappealablejudgmentbyanycompetentcourtwith jurisdictionintheUnitedStatesofAmericaforthepaymentofmoneyshallhavebeen
(A) rendered against Seller in an amount greater than Seller Threshold or (B) rendered against Replacement Guarantor, or, prior to a Guarantor Replacement Event, Initial Guarantor, in an amount greater than Guarantor Threshold, and in each case, such judgmentremainsundischargedorunpaid,unlesstheexecutionofsuchjudgmentis
stayed byposting of cash, bond or other collateral acceptable to Buyer in the amount of such judgment within thirty (30) days after the entry thereof.
(xii) ERISA.Seller shall violate the representations andwarranties contained in Article 9(aa) (ERISA).
(xiii) Ownership; Security Interest.The Transaction Documents shall for any reason not cause, or shall cease to cause, Buyer to be the owner free of any adverse claim of any of the Purchased Assets or if a Transaction is recharacterized as a secured financing, a secured party with respect to the related Purchased Assets free of any adverse claim, liens and rights of others (other than as granted herein), and, in either case, such condition is not cured by Seller within three (3) Business Days after the earlier of receipt of notice thereof from Buyer or Seller obtaining Knowledge thereof.
(xiv) Government or Regulatory Action.Any Governmental Authority or agency, any person, agency or entity acting or purporting to act under Governmental Authorityoranyregulatoryorself-regulatoryauthorityshallhavetakenanyactionto(1) condemn, seize or appropriate, or assume custody or control of, all or any substantial part of the property of any Seller Party, (2) displace the management of Seller or Guarantor or curtail its authority in the conduct of its business and such action has not beendismissedorstayedwithinthirty(30)daysor(3)remove,limit,restrict,suspendor terminate the rights, privileges, or operations ofSeller or Guarantor which, in each case of clauses (1), (2) or (3) above, results in a Material Adverse Effect.
(xv) Conveyance of Assets.Any conveyance, transfer or disposal of all or substantially all assets of Guarantor to any Person.
(xvi) Change of Control.A Change of Control shall occur without the prior written consent of Buyer.
(xvii) Representations.Any representation, warranty or certification made by any Seller Party or any Servicer that is an Affiliate of any Seller Party to Buyer under this Agreement or any Transaction Document (other than any representation contained in Article9(s)) shall havebeen incorrect or untrue when made or repeated ordeemed to havebeenmadeorrepeatedinanymaterialrespectand,totheextentthatsuchincorrect or untrue representation is capable of being cured bySeller,suchbreach isnot cured by Seller within ten (10) Business Days after the earlier of receipt of writtennoticethereof from Buyer or Seller’s Knowledge of such incorrect or untrue representation.
(xviii) Guarantor Breach.The breach by Guarantor of the financial covenants made by it in the Guaranty.
(xix) IntentionallyOmitted.
(xx) Other Covenant Default.If any Seller Party shall breach or fail to perform in any material respect any of the terms, covenants or obligations under this Agreement or any other Transaction Document, other than as specifically otherwise referredtointhisdefinitionof“EventofDefault”,andsuchbreachorfailuretoperform
is not remedied within ten (10) Business Days after the earlier of (a)delivery of notice thereof to Seller by Buyer, or (b)Knowledge by Seller of such breach or failure to perform; provided, that, if such default is susceptible to cure but cannot reasonably be cured within such initial cure period and Seller shall have commenced to cure such default within such initial cure period and thereafter diligently and expeditiously proceeds to cure the same, the initial cure period shall be extended by such amount of time as is reasonablynecessaryfor Seller to cure such default, but in no event to exceed thirty (30) days total (inclusive of the initial cure period).
(b) Remedies.SellershallappointBuyerasattorney-in-factofSellerwithfullpower during the occurrence and continuance of an Event of Default and, subject to the following sentence, upon theoccurrence and duringthe continuance of a POA Trigger, in accordance with ExhibitVheretoforthepurposeoftakinganyactionandexecutingorendorsinganyinstruments that Buyer may deem necessary or advisable to accomplish the purposes of this Agreement, which appointment as attorney-in-fact is irrevocableand coupled with an interest.So longas no Event of Default has occurred and is continuing, if Buyer reasonably determines that any RequirementofLaw(includingajudicialdetermination)orothercircumstancesrequireBuyerto take any action under the power of attorney to preserve Buyer’s ability to exercise any of its rights or remedies hereunder (a “POA Trigger”) and Buyer has requested in writing that Seller takeorcausetobetakenanysuchaction(whichwritingshallincludeastatementthatBuyerwill exercise its power of attorneyif Seller fails to take or cause to be taken such action requested by Buyer), and Seller has not complied with any such request promptly following receipt thereof, then Buyer may exercise its power of attorneyas Buyer deems reasonablynecessaryto preserve Buyer’s ability to exercise any of its rights or remedies hereunder.If an Event of Default shall occur and be continuing with respect to Seller, the following rights and remedies shall be available to Buyer:
(i) At the option of Buyer, the Repurchase Date for each Transaction hereunder shall, if it has not already occurred, immediately occur (such date, the “Accelerated Repurchase Date”).
(ii) IfBuyerexercisesorisdeemedtohaveexercisedtheoptionreferredtoin Article 13(b)(i):
(A) Seller’s obligations hereunder to repurchase all Purchased Assets shall become immediately due and payable on and as of the Accelerated RepurchaseDateandBuyermayimmediatelyterminateallTransactionspursuant to the Transaction Documents, in each case, with notice to Seller (except such termination shall be deemed to have occurred, even if notice is not given, upon the occurrence of an Act of Insolvency);
(B) to the extent permitted by applicable law, the Repurchase Price with respect to each Transaction (determined as of the Accelerated Repurchase Date)shallbeincreasedbytheaggregateamountobtainedbydailyapplicationof, on a 360 dayper year basis for the actual number of days during the period from and including the Accelerated Repurchase Date to, but excluding, the date of payment of the Repurchase Price (as so increased), (x) the Pricing Rate for such
Transaction multiplied by (y) the Repurchase Price for such Transaction (decreased by(I) anyamounts actuallyremittedto BuyerbytheAccount Bankor Seller pursuant to this Agreement and applied to such Repurchase Price, and (II) any amounts applied to the Repurchase Price pursuant to Article 13(b)(ii)(D));
(C) theCustodianshall,upontherequestofBuyer,delivertoBuyerall instruments, certificates and other documents then held bythe Custodian relating to the Purchased Assets; and
(D) Buyermay,uponatleastten(10)dayspriorwrittennoticetoSeller (provided,however,thatsuchnoticeshallbedeemedtohavebeengivenuponthe occurrence of an Event of Default due to an Act of Insolvency with respect to SellerorGuarantor),inaccordancewithRequirementsofLaw,
(1)immediatelyafter the Accelerated Repurchase Date, sell any and all of the Purchased Assets in its sole discretion, and/or (2)in its sole and absolute discretionelect,inlieuofsellingalloraportionofsuchPurchasedAssets,togive Seller credit for such Purchased Assets in an amount equal to the fair marketvalue of such Purchased Assets, as determined by Buyer in its sole discretion, against theaggregateunpaidRepurchasePriceforsuchPurchasedAssets andany other amounts owing by Seller under the Transaction Documents.The proceeds of any disposition of Purchased Assets effected pursuant to sub-clause (1)above shall be applied byBuyer in the order and manner set forth in Article 5(g).
(iii) Thepartiesacknowledgeandagreethat(A)thePurchasedAssetssubject to any Transaction hereunder are not instruments traded in a recognized market, (B) in theabsenceofagenerallyrecognizedsourceforpricesorbidorofferquotationsforany Purchased Asset, Buyer may establish the source therefor in its sole and absolute discretion and (C) all prices, bids and offers shall be determined together with accrued Income (except to the extent contrary to market practice with respect to the relevant Purchased Assets).The parties recognizethat it maynot bepossible to purchase or sell all of the Purchased Assets on a particular Business Day, or in a transaction with the same purchaser, or in the same manner because the market for such Purchased Assets
may not be liquid.In view of the nature of the Purchased Assets, the parties agree that liquidation of a Transaction or the Purchased Assets does not require a public purchase orsaleandthat agoodfaithprivatepurchaseorsaleshallbedeemedtohavebeenmade in a commercially reasonable manner.Accordingly, Buyer may elect, in its sole and absolute discretion, the time and manner of liquidating any Purchased Assets, and nothing contained herein shall (A) obligate Buyer to liquidate anyPurchased Assets on the occurrence and during the continuance of an Event of Default or to liquidate all of thePurchased Assets in the samemanner or on thesameBusiness Dayor(B)constitute a waiver of any right or remedy of Buyer.
(iv) SellershallbeliabletoBuyeranditsAffiliatesandshallindemnifyBuyer and its Affiliates for the amount (including in connection with the enforcement of this Agreement)ofallactualdocumentedout-of-pocketlosses,costsandexpenses,including
reasonableanddocumentedlegalfeesandexpensesofoutsidecounsel,actuallyincurred byBuyer in connection with or as a consequence of an Event of Default.
(v) Buyer shall have, in addition to its rights and remedies under the Transaction Documents, all of the rights and remedies provided by applicable federal, state, foreign (where relevant), and local laws (including, without limitation, if the Transactions are recharacterized as secured financings, the rights and remedies of a secured party under the UCC, to the extent that the UCC is applicable, and the right to offset any mutual debt and claim), in equity, and under any other agreement between Buyer and Seller.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 Seller’sobligationstoBuyerunderthisAgreement,withoutprejudicetoBuyer’srightto recover any deficiency.
(vi) Buyer may exercise any or all of the remedies available to Buyer immediately upon the occurrence of an Event of Default and at any time during the continuance thereof.All rights and remedies arising under the Transaction Documents, as amended from time to time, are cumulative and not exclusive of any other rights or remedies that Buyer may have.
(vii) Buyer may enforce its rights and remedies hereunder without prior judicial process or hearing, and Seller hereby expressly waives any defenses Seller might otherwise have to require Buyer to enforce its rights by judicial process.Seller also waives, to the extent permitted by law, any defense Seller might otherwise have arising from the use of nonjudicial process, disposition of any or all of the Purchased Assets, or from any other election of remedies.Seller recognizes that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm’s length.
(c) Set-off.Inadditiontoanyrightsnoworhereaftergrantedunderapplicablelawor otherwise, and not by way of limitation of any such rights, Seller herebygrants to Buyer and its Affiliates a right of set-off, without notice to Seller, any sum or obligation (whether or not arising under this Agreement, whether matured or unmatured, whether or not contingent and irrespective of the currency, place of payment or booking office of the sum or obligation) owed by Seller to Buyer or any Affiliate of Buyer against (i) any sum or obligation (whether or not arising under this Agreement, whether matured or unmatured, whether or not contingent and
irrespective of the currency, place of payment or booking office of the sum or obligation) owed by Buyer or its Affiliates to Seller and (ii) any and all deposits (general or specified), monies, credits, securities, collateral or other property of Seller and the proceeds therefrom, now or hereafter held or received for the account of Seller (whether for safekeeping, custody, pledge, transmission,collection,orotherwise)byBuyeroritsAffiliatesoranyentityunderthecontrolof Buyer or its Affiliates and its respective successors and assigns (including, without limitation, branches and agencies of Buyer, wherever located).
Buyer and its Affiliates are herebyauthorized at anytime and from time to time upon the occurrenceandduringthecontinuanceofanEventofDefault,withoutnoticetoSeller,toset-off, appropriate,applyandenforcesuchrightofset-offagainstanyandallitemshereinabove
referred to against any amounts owing to Buyer or its Affiliates by Seller under the Transaction Documents, irrespective of whether Buyer or its Affiliates shall have made any demand hereunder and although such amounts, or any of them, shall be contingent or unmatured and regardlessofanyothercollateralsecuringsuchamounts.Ifasumorobligationisunascertained, Buyer mayin good faith estimatethat obligation and set-off inrespect of theestimate, subject to the relevant party accounting to the other when the obligation is ascertained.Nothing in this Article13(c)shall be effective to create a charge or other security interest. This Article13(c)shallbewithoutprejudiceandinadditiontoanyrightofset-off,combinationofaccounts,lienor other rights to which any party is at any time otherwise entitled (whether by operation of law, contract or otherwise).
ANY AND ALL RIGHTS TO REQUIRE BUYER OR ITS AFFILIATES TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL OR PURCHASED ITEMS THAT SECURE THE AMOUNTS OWING TO BUYER OR ITS AFFILIATES BY SELLER UNDER THE TRANSACTION DOCUMENTS, PRIOR TO EXERCISING THEIR RIGHT OF SET-OFF WITH RESPECT TO SUCH MONIES,SECURITIES,COLLATERAL,DEPOSITS,CREDITSOROTHERPROPERTYOF SELLER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY SELLER.
ARTICLE 14 SINGLEAGREEMENT
Buyer and Seller acknowledge that, and have entered hereinto and will enter into eachTransactionhereunderinconsiderationofandinrelianceuponthefactthat,allTransactions hereunder(aswellasthegrantofthesecurityinterestinArticle6hereof)constituteasingle businessandcontractualrelationshipandhavebeenmadeinconsiderationofeachother. Accordingly,eachof Buyer and Seller agrees (i)to perform all of its obligations in respect ofeach Transaction hereunder, and that a default in the performance of any such obligations shall constitute a default by it in respect of all Transactions hereunder, (ii)that each of them shall be entitled to set-off claims and apply property held by them in respect of any Transaction against obligationsowingtotheminrespectofanyotherTransactionshereunderand(iii)thatpayments, deliveriesandothertransfersmadebyeitheroftheminrespectofanyTransactionshallbe deemedtohavebeenmadeinconsiderationofpayments,deliveriesandothertransfersinrespect of any other Transactions hereunder, and the obligations to make any such payments, deliveries and other transfers may be applied against each other and netted.
ARTICLE 15 RECORDINGOFCOMMUNICATIONS
BUYER AND SELLER SHALLHAVE THE RIGHT (BUT NOTTHEOBLIGATION) FROM TIME TO TIME TO MAKE OR CAUSE TO BE MADE TAPE RECORDINGS OF COMMUNICATIONS BETWEEN ITS EMPLOYEES, IF ANY, AND THOSE OF THE OTHER PARTY WITH RESPECT TO TRANSACTIONS; PROVIDED, HOWEVER, THAT SUCH RIGHT TO RECORD COMMUNICATIONS SHALL BE LIMITED TO COMMUNICATIONS OF EMPLOYEES TAKING PLACE ON THE TRADING FLOOR OF THEAPPLICABLEPARTY.BUYERANDSELLERHEREBYCONSENTTOTHE
ADMISSIBILITY OF SUCH TAPE RECORDINGS IN ANY COURT, ARBITRATION, OR OTHER PROCEEDINGS, AND AGREES THAT A DULY AUTHENTICATED TRANSCRIPT OF SUCH A TAPE RECORDING SHALLBE DEEMED TO BE A WRITING CONCLUSIVELY EVIDENCING THE PARTIES’ AGREEMENT.
ARTICLE 16
NOTICESANDOTHERCOMMUNICATIONS
Unless otherwise provided in this Agreement, all notices, consents, approvals and requests required or permitted hereunder shall be given in writing and shall be effective for all purposes if sent by (a) hand delivery, with proof of delivery, (b) certified or registered United States mail, postageprepaid, (c) expedited prepaid deliveryservice, either commercial or United States Postal Service, with proof of delivery or (d) by electronic mail provided that such electronic mail notice must also be either (i) acknowledged as received via an electronic mail responseor(ii)delivered byone of themeans set forth in(a),(b)or(c)above, to theaddress and person specified in Exhibit Ihereto or to such other address and person as shall be designated from time to time byanypartyhereto in awrittennoticeto theotherparties hereto in themanner provided for in this Article16.A notice shall be deemed to have been given: (w) in the case of hand delivery, at the time of delivery, (x) in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day, (y) in the case of expedited prepaid delivery,uponthefirstattempteddeliveryonaBusinessDayor(z)inthecaseofelectronicmail, upon receipt of an acknowledgement of receipt via electronic mail, provided that such electronic mailnoticewasalsodeliveredasrequiredinthisArticle16.Apartyreceivinganoticethatdoes not comply with the technical requirements for notice under this Article16may elect to waive any deficiencies and treat the notice as having been properly given.
ARTICLE 17
ENTIRE AGREEMENT; SEVERABILITY
This Agreement shall supersede any existing agreements between the parties containing general terms and conditions for repurchase transactions.Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement.
ARTICLE 18 NON-ASSIGNABILITY
(a) No Seller Party may assign any of its rights or obligations under this Agreement or the other Transaction Documents without the prior written consent of Buyer (which may be granted or withheld in Buyer’s sole and absolute discretion) and anyattemptbyanySellerParty to assign any of its rights or obligations under this Agreement or any other Transaction Document without the prior written consent of Buyer shall be null and void.
(b) Buyermay,withoutconsentofSeller,atanytimeandfromtimetotime,assignor participate all or any portion of its rights and obligations under the Transaction Documents and/orunderanyTransaction(subjecttoArticle8(a))toanyPersonand,inconnectiontherewith,
may allocate amounts due to Buyer; provided, that, so long as no Event of Default has occurred andiscontinuing,(i)solongastheinitialBuyerownsanyeconomicinterestintheTransactions, Citibank,N.A. oranAffiliatethereofshallactasexclusiveagentforallassigneesorparticipants with respect to anysuch assignment,participation,bifurcation or allocation in anydealings with Seller with regard to this Agreement and the Transactions and Seller shall not be obligated or required to deal directlywith anyPersonotherthanCitibank N.A. or an Affiliatethereof, (ii) no such assignment, participation, bifurcation or allocation shall be to any Person that is not a Qualified Transferee, (iii) Seller shall not be charged for or be required to reimburse or indemnify Buyer or any other Person for any costs or expenses related to any such assignment, participation, bifurcation or allocation and (iv) Seller’s obligations hereunder are not increased and its rights hereunder are not impaired without Seller’s written consent.In connection with any sale, assignment or transfer by Buyer hereunder, other than a sale, assignment, transfer or participation of one hundred percent (100%) of its rights and obligations under the Transaction Documents,provided that no Event of Default hasoccurred and is continuing,Citibank,N.A. or an Affiliate thereof shall continue to control decision-making with respect to the Purchased Assets, including determining whether to purchase any Eligible Asset in a Transaction and the Market Value of the Purchased Assets.Seller agrees to cooperate, at no cost or expense to Seller, with Buyer in connection with any such assignment, transfer or sale of participating interest and to enter into such restatements of, and amendments, supplements and other modifications to, the Transaction Documents to which it is apartyin order to giveeffect to such assignment, transfer or sale of participating interest.
(c) From and after the effective date specified in each assignment and assumption pursuant to this Article18,theassigneethereundershall be apartytothisAgreementand, to the extent of the interest assigned by such assignment and assumption, have the rights and obligations of a Buyer under this Agreement, and the assigning Buyer thereunder shall, to the extent of the interest assigned by such assignment and assumption, be released from its obligations under this Agreement but shall continue to be entitled to the benefits of Article 25with respect to facts and circumstances occurring prior to the effective date of such assignment so long as such benefits have not been assigned.
(d) Subject to the foregoing, the Transaction Documents and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing in the Transaction Documents, express or implied, shall give to any Person, other than the parties to the Transaction Documents and their respective successors, anybenefit or anylegal or equitable right, power, remedyor claim under the Transaction Documents.
(e) Seller shall maintain a record of ownership (the “Register”) identifying the name and address of each assignee hereunder and the amount of each such assignee’s interest in the PurchasedAssets,whichRegisterisintendedtobemaintainedinaccordancewith
Section5f.103-1(c) of the TreasuryRegulations.Transfers made pursuant to Article 18(b)shall be recordeduponsuchRegister.SuchRegistershall be available forinspection byBuyeratany reasonable time and from time to time upon reasonable prior notice.The entries in theRegister shall be conclusive absent manifest error, and Seller and Buyer shall treat each person whose name is recorded in the Register pursuant to the terms hereof as a Buyer hereunder for all purposes of this Agreement.
(f) If Buyer sells a participation with respect to its rights under this Agreement orunder anyother Transaction Document with respect tothePurchased Assets, Buyershall,acting forthispurposesasanon-fiduciaryagentofSeller,maintainarecordofownership(the“Participant Register”) identifying the name and address of each participant and the amount of each such participant’s interest in the Purchased Assets, providedthat Buyer and anysuchother participant shall not have anyobligation to disclose all or anyportion of theParticipant Register (including the identity of any participant or any information related to a participant’s interest in any Transaction Document) to any Person except to the extent necessary to establish that such interestsareinregisteredformunderSection5f.103-1(c)oftheTreasuryRegulations. The entries in theParticipantRegistershall be conclusive absentmanifest error and Buyershall treat eachPersonwhosenameisrecordedintheParticipantRegisterastheownerofsuch participationforallpurposesofthisAgreementnotwithstandinganynoticetothecontrary. SelleragreesthateachparticipantshallbeentitledtothebenefitsofArticles3(i)and5(j)(subjecttothe requirementsandlimitationstherein,including the requirementsunder Article5(j)(v)(itbeingunderstoodthatthedocumentationrequiredunderArticle5(j)(v)shallbe delivered to Buyer selling such participation)) to the same extent as if it were a Buyer and had acquired its interest by assignment pursuant to this Article 18above.
(g) Buyer shall cause each assignee, participant or other transferee of Buyer to providetoSelleraproperlycompletedanddulyexecutedUnitedStatesInternalRevenueService form W-9, W-8BEN, W-8BEN-E, W-8ECI, or W-8IMY and/or, as appropriate,other applicable forms as described by the United States Internal Revenue Service or other certifications reasonably requested by Seller for purposes of compliance with applicable withholding provisions pursuant to the Internal Revenue Code and underlying Treasury Regulations, includingtheTaxformsandcertificationsrequiredunderArticle5(j)(v)(itbeingunderstoodthat the documentation required under Article 5(j)(v)shall be delivered to Buyer in connection with any assignment to such assignee or other transfer to such transferee).Buyer and each assignee, participant or transferee herebyagrees to notifySeller of anychange in circumstance that causes a certificate or document provided by it to Seller to no longer be true and to provide updated forms upon the obsolescence of any previously delivered form or promptly notify Seller in writing of its legal inability to do so. Seller shall have no obligation to pay any additional amounts hereunder that may result from the tax status of any assignee, participant or transferee differing from the tax status of Buyer except to the extent that such entitlement to receive additional amounts results from any Change in Law that occurs after such assignee, participant or transferee acquires such interest.
ARTICLE 19 GOVERNINGLAW
THIS AGREEMENT (AND ANY CLAIM OR CONTROVERSY HEREUNDER) SHALLBECONSTRUEDINACCORDANCEWITHTHELAWSOFTHESTATEOFNEW
YORK, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS DOCTRINE APPLIED IN SUCH STATE (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
ARTICLE 20NOWAIVERS,ETC.
No express or implied waiver of any Event of Default by either party shall constitute a waiverofanyotherEventofDefaultandnoexerciseofanyremedyhereunderbyanypartyshall constitute a waiver of its right to exercise any other remedy hereunder.No modification or waiver of any provision of this Agreement and no consent byanypartyto a departure herefrom shall be effective unless and until such shall be in writing and duly executed by both of the parties hereto.
ARTICLE21 INTENT
(a) The parties intend and acknowledge that (i)each Transaction is a “repurchase agreement” as that term is defined in Section 101(47) of Title 11 of the United States Code, as amended (except insofar as the type of Assets subject to such Transaction or the term of such Transactionwouldrendersuchdefinitioninapplicable),(ii) a“securitiescontract”asthattermis defined in Section 741(7) of the BankruptcyCode(except insofar as the type ofassets subject to such Transaction would render such definition inapplicable), (iii)each Purchased Asset constitutes either a “mortgage loan” or “an interest in a mortgage” as such terms are used in the Bankruptcy Code, (iv) each party shall be entitled to the “safe harbor” benefits and protections afforded under the Bankruptcy Code with respect to a “repurchase agreement” and a “securities contract” and a “master netting agreement” and (v) all payments hereunder are deemed “margin payments”,“settlementpayments”ortransfersinconnectionwithasecuritiescontractasdefined in the Bankruptcy Code.
(b) The parties intend and acknowledge that either party’s right to cause the termination, liquidation or acceleration of, or to set-off or net termination values, payment amountsorothertransferobligationsarisingunder,orinconnectionwith,thisAgreementorany Transaction hereunder or to exercise any other remedies pursuant to Article13is in each case a contractual right to cause orexercisesuchright asdescribed inSections362(b)(6),555and561 of the Bankruptcy Code.
(c) Thepartiesintendandacknowledgethatifapartyheretoisan“insureddepository institution,” as such term is defined in theFederal Deposit InsuranceAct, as amended (“FDIA”), then this Agreement and each Transaction hereunder is a “qualified financial contract,” as that term is defined in the FDIA and anyrules, orders or policystatements thereunder (except insofar as the type of assets subject to such Transaction would render such definition inapplicable).
(d) The parties intend and acknowledge that this Agreement constitutes a “netting contract” as defined in and subject to Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”) and each payment entitlement and payment obligation underanyTransactionhereundershallconstitutea“coveredcontractualpaymententitlement”or
“covered contractual payment obligation”, respectively, as defined in and subject to FDICIA (except insofar as one or both of theparties is not a“financial institution”as that term is defined in FDICIA).
(e) The parties intend and acknowledge that this Agreement constitutes a “master netting agreement” as defined in Section 101(38A) of the Bankruptcy Code, and as used in Section561oftheBankruptcyCodeand a“securitiescontract”withthemeaningofSection555 and Section 559 of the Bankruptcy Code.
(f) The parties intend and acknowledge that any provisions hereof or in any other document, agreement orinstrumentthat isrelated inanywaytothisAgreementshall bedeemed “related to” this Agreement within the meaning of Section 741 of the BankruptcyCode.
(g) NotwithstandinganythingtothecontraryinthisAgreementoranyother TransactionDocument,itistheintentionofthepartiesthat,forU.S.federal,stateandlocal income and franchise tax purposes and for accounting purposes, each Transaction constitute afinancing from Buyer to Seller (or any person from whom Seller is disregarded for U.S. federal income tax purposes), and that Seller (or any person from whom Seller is disregarded for U.S. federalincometaxpurposes)isandwillcontinuetobe(excepttotheextentthatBuyershall have exercised its foreclosure remedies following a continuing Event of Default) the owner of thePurchasedAssetsforsuchpurposes. Unlesspursuanttoa“determination”withinthe meaningof Section 1313(a) of the Internal Revenue Codeor prohibited byapplicablelaw, Seller (oranypersonfromwhomSellerisdisregardedforU.S.federalincometaxpurposes)andBuyer agree to treat the Transactions as described in the preceding sentence for all U.S. federal, state, and local income and franchise taxpurposes and for accounting purposes (including, withoutlimitation, on anyand all filings with anyU.S. federal, state, or local taxingauthority), and agree to take no action inconsistent with this treatment.
ARTICLE 22
DISCLOSURERELATINGTOCERTAINFEDERALPROTECTIONS
Thepartiesacknowledgethattheyhavebeenadvisedthat:
(a) in the case of Transactions in which one of the parties is a broker or dealer registered with the Securities and Exchange Commission (“SEC”) under Section15 of the Exchange Act, the Securities Investor Protection Corporation has taken the position that the provisions of the Securities Investor Protection Act of 1970 (“SIPA”) do not protect the other party with respect to any Transaction hereunder;
(b) in the case of Transactions in which one of the parties is a government securities broker or a governmentsecurities dealer registered with theSEC underSection 15C of the1934 Act, SIPA will not provide protection to the other party with respect to any Transaction hereunder; and
(c) in the case of Transactions in which one of the parties is a financial institution, funds held bythe financial institution pursuant to a Transaction hereunder are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund, as applicable.
ARTICLE 23
CONSENT TO JURISDICTION; WAIVERS
(a) Each party irrevocably and unconditionally (i)submits to the exclusive jurisdiction of anyUnited States Federal or New York State court sitting in Manhattan, and any appellate court from any such court, solely for the purpose of any suit, action or proceeding brought to enforceitsobligationsunderthisAgreementorrelatinginanywaytothisAgreement or any Transaction under this Agreement and (ii)waives, to the fullest extent it mayeffectively do so, any defense of an inconvenient forum to the maintenance of such action or proceeding in anysuch court and anyright of jurisdiction on account of its place of residence or domicile.
(b) To the extent that either party has or hereafter may acquire any immunity (sovereign orotherwise) from anylegal action,suit orproceeding,fromjurisdiction ofanycourt or from set off or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of execution ofjudgment, execution ofjudgment orotherwise) with respect to itself or any of its property, such party hereby irrevocably waives and agrees not to plead or claim such immunity in respect of any action brought to enforce its obligations under this Agreement or relating in anywayto this Agreement or anyTransaction under this Agreement.
(c) Thepartiesherebyirrevocablywaive,tothefullestextenteachmayeffectivelydo so, the defense of an inconvenient forum to the maintenance of such action or proceeding and irrevocably consent to the service of any summons and complaint and any other process by the mailing of copies of such process to them at their respective address specified herein.The parties herebyagree that a final non-appealable judgment in anysuch action or proceedingshall be conclusive and may be enforced in otherjurisdictions bysuit on thejudgment or in anyother manner provided bylaw.Nothing in this Article 23shall affect the right of eitherpartytoserve legalprocess inanyothermannerpermitted bylaworaffect theright ofeitherpartytobringany action or proceeding against the other partyor its propertyin the courts of other jurisdictions.
(d) EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR THEREUNDER.
(e) EACH PARTY HEREBY WAIVES ANY RIGHT TO CLAIM OR RECOVER FROM THE OTHER PARTY OR ANY INDEMNIFIED PARTY ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OFANY KIND OR NATUREWHATSOEVER OR ANYDAMAGESOTHERTHAN,ORIN ADDITION TO, ACTUAL DAMAGES, WHETHER THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN AND REGARDLESS OF THE FORM OF THE CLAIM OF ACTION.
ARTICLE 24 NORELIANCE
Seller hereby acknowledges, represents and warrants to Buyer that, in connection with thenegotiationof,the enteringinto, andtheperformanceunder,theTransactionDocumentsand each Transaction thereunder:
(a) it is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of Buyer, other than the representations expressly set forth in the Transaction Documents;
(b) ithasconsultedwithitsownlegal,regulatory,tax,business,investment,financial and accounting advisors to the extent that it has deemed necessary, and it has made its own investment, hedging and trading decisions (including decisions regarding the suitability of any Transaction) based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any view expressed by Buyer;
(c) it is a sophisticated and informed Person that has a full understanding of all the terms, conditions and risks (economic and otherwise) of the Transaction Documents and each Transaction thereunder and is capable of assuming and willing to assume (financially and otherwise) those risks;
(d) itisenteringintotheTransactionDocumentsandeachTransactionthereunderfor the purposes of managing its borrowings or investments or hedging its assets or liabilities and not for purposes of speculation;
(e) nojointventureexistsbetweenBuyerandanySellerParty;and
(f) Buyer is not acting as a fiduciary or financial, investment or commodity trading advisor for any Seller Party and Buyer has not given to any Seller Party (directly or indirectly throughanyotherPerson)anyassurance,guaranteeorrepresentationwhatsoeverastothemerits (either legal, regulatory, tax, business, investment, financial accounting or otherwise) of the Transaction Documents or any Transaction thereunder.
ARTICLE 25 INDEMNITYANDEXPENSES
(a) SellerherebyagreestoindemnifyBuyeranditsofficers,directors,employeesand agents (“Indemnified Parties”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, fees, actual and documented out-of-pocket costs and actual and documented out-of-pocket expenses or disbursements (including reasonable and documented attorneys’ fees anddisbursements ofoutside counsel) (allofthe foregoingincluded amounts, collectively “Indemnified Amounts”)that may at any time (including, without limitation, such time as this Agreement shall no longer be in effect and the Transactions shall have been repaid in full) be imposed on or asserted against any Indemnified Party in any way arising out of or in connection with, or relating to, or as a result of, this Agreement, the other Transaction Documents, anyEvent of Default or anyTransaction or anyaction taken oromitted to betaken byanyIndemnifiedPartyunderorin connection with anyoftheforegoing; provided
that Seller shall not be liable for Indemnified Amounts resulting from the gross negligence or willful misconduct of any Indemnified Party.Without limiting the generality of the foregoing, SelleragreestoholdBuyerharmlessfromandindemnifyBuyeragainstallIndemnifiedAmounts withrespecttoallPurchasedAssetsrelatingtoorarisingoutofanyviolationorallegedviolation ofanyEnvironmentalLaworanyconsumercreditlaws,includingwithoutlimitationERISA,the TruthinLendingActand/ortheRealEstateSettlementProceduresAct,that,ineachcase,results from anythingotherthan thebad faith, grossnegligenceorwillful misconduct ofan Indemnified Party.In any suit, proceeding or action brought by Buyer in connection with any Purchased Asset for anysum owingthereunder, or to enforce anyprovisions of anyPurchased Asset, Seller
shall save, indemnify and hold Buyer harmless from and against all Indemnified Amounts suffered by reason of any defense, set-off, counterclaim, recoupment or reduction or liability whatsoever of the account debtor or obligor thereunder, arising out of a breach by any Seller Party or any Affiliate thereof of anyobligation thereunder or arising out of anyother agreement, indebtedness or liability at anytime owing to or in favor of such account debtor or obligor or its successors from Seller or such Affiliate.Seller also agrees to reimburse Buyer as and when billedbyBuyerforallBuyer’sactualanddocumentedout-of-pocketcostsandexpensesincurred in connection with the enforcement or the preservation of Buyer’s rights under any Transaction Document or Transaction, including without limitation the reasonable and documented fees and disbursements of its outside counsel.Seller hereby acknowledges that the obligations of Seller hereunder are recourse obligations of Seller.This Article 25(a)shall have no application with respect to Taxes other than any Taxes that represent, losses, claims, damages, etc. arising from any non-Tax claim.
(b) Seller agrees to pay or reimburse on demand all of Buyer’s reasonable and documented out-of-pocket costs and expenses, including, without limitation, the fees and expenses of accountants, attorneys and advisors, incurred in connection with (i)the preparation, negotiation, execution and consummation of, and any amendment, supplement or modification to, any Transaction Document or any Transaction thereunder, whether or not such Transaction Document (or amendment thereto) or such Transaction is ultimately consummated, (ii) the consummation and administration of any Transaction, (iii) any enforcement of any of the provisions of the Transaction Documents, any preservation of Buyer’s rights under the Transaction Documents or any performance by Buyer of any obligations of Seller in respect of any Purchased Asset, or any actual or attempted sale, or any exchange, enforcement, collection, compromise or settlement in respect of any of the Collateral and for the custody, care or preservation of the Collateral (including insurance, filing and recording costs) and defending or asserting rights and claims of Buyer in respect thereof, by litigation or otherwise, (iv) the maintenanceoftheCollectionAccountandtheServicerAccountandregisteringtheCollateralin the name of Buyer or its nominee, (v)anydefault by Seller in repurchasing the Purchased Asset afterSellerhasgivenanoticeinaccordancewithArticle3(e)ofanEarlyRepurchaseDate,
(vi) anyfailurebySellertosellanyEligibleAssettoBuyeronthePurchaseDatethereof,
(vii) anyactionstakentoperfectorcontinueanyliencreatedunderany TransactionDocument,
(viii) Buyer owning any Purchased Asset or other Purchased Item and/or (ix)any due diligence performed by Buyer in accordance with Article26.All such expenses shall be recourse obligationsofSellertoBuyerunderthisAgreement.Acertificateastosuchcostsandexpenses, settingforththecalculationsthereofshallbeconclusiveandbindinguponSellerabsentmanifest error.
(c) This Article25shallsurvivetermination ofthis Agreementandtherepurchaseof all Purchased Assets.
ARTICLE 26DUEDILIGENCE
(a) Seller acknowledges that, at reasonable times and upon reasonable notice to Seller, Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Assets, the Seller Parties and Servicer for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise.Seller agrees that upon reasonableprior writtennotice from Buyer (unless an EventofDefaulthasoccurredandis
continuing, in which case no prior notice shall be required), Seller shall provide (or shall cause anyother Seller Partyor Servicer, as applicable, to provide) reasonable access to Buyer and any of its agents, representatives or permitted assigns to theoffices ofSeller, suchotherSellerParty or Servicer, as the case may be, during normal business hours and permit them to examine, inspect, and make copies and extracts of the Purchased Asset Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of such party.
(b) Seller agrees that it shall, promptlyupon reasonable request of Buyer, deliver (or shall cause to be delivered) to Buyer and any of its agents, representatives or permitted assigns copies of anydocuments permitted to be reviewed byBuyer in accordance with Article 26(a).
(c) Seller agrees to make available (or to cause any other Seller Partyor Servicer, as applicable,tomakeavailable)toBuyerandanyofitsagents,representativesorpermittedassigns
(i)in person at the time of any inspection pursuant to Article26(a)or (ii)upon prior written notice (unless an Event of Default has occurred and is continuing, in which case no prior notice shall be required and there shall be no limitation on frequency), by phone, as applicable, a knowledgeable financial or accounting officer or asset manager, as applicable, of Seller, such other Seller Party or Servicer, as the case may be, for the purpose of answering questions about anyof the foregoing Persons, or anyother matters relating to the Transaction Documents or any Transaction that Buyer reasonably needs to discuss with such Person.
(d) Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into Transactions with Seller based solely upon the information provided by Seller to Buyer and the representations, warranties and covenants contained herein, and that Buyer, at its option,hastherightatanytimetoconductapartialorcompleteduediligencereviewonsomeor all of the Purchased Assets.Buyer may underwrite such Purchased Assets itself or engage a third-partyunderwriter to perform suchunderwriting.Selleragrees tocooperatewith Buyerand any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of any Seller Party or any Affiliate thereof.
(e) Seller hereby acknowledges and agrees that Buyer shall have the right to commission and order an Appraisal of any Mortgaged Property at any time and from time to time,andSellershallberesponsibleforthereasonableanddocumentedcostsandexpenses
incurred by Buyer in obtaining one such Appraisal for the Mortgaged Property or Mortgaged Properties securing a Purchased Asset during any twelve (12) consecutive month period.Seller shall cooperate with Buyer in connection with the commission or order of any Appraisal by Buyer,andSellershallusecommerciallyreasonableeffortstocausetheapplicableMortgagorto cooperate with Buyer in obtaining any such Appraisal, including, without limitation, by providing Buyer with access to the Mortgaged Property.
(f) Selleragreestoreimburse Buyerondemandforreasonable anddocumented out-of-pocket costs and expenses (including, without limitation, the reasonable fees and expenses of outside counsel) incurred by Buyer in connection with its due diligence activities pursuant to this Article 26, subject to, so long as no Event of Default has occurred and is continuing, a calendar year cap of $50,000.
ARTICLE27 SERVICING
(a) The parties hereto agree and acknowledge that the Purchased Assets are sold to Buyerona“servicingreleased”basisandBuyeristhesoleownerofallServicingRightssolong as the Purchased Assets are subject to this Agreement.Notwithstanding the foregoing, Sellershallbegrantedarevocablelicense(whichlicenseshallautomaticallyberevokeduponthe occurrence of an Event of Default) to cause Servicer to servicethePurchased Assets, andSeller shall,atSeller’ssolecostandexpense,causetheServicertoservicethePurchasedAssetsin accordancewiththeServicingAgreementandthisArticle27andforthebenefitofBuyer. Notwithstandingtheforegoing,SellershallnottakeanySignificantModificationofany Purchased Asset without first having given prior notice thereof to Buyer in each such instance and receiving the prior written consent of Buyer in its sole discretion.
(b) The obligation of Servicer (or Seller to cause Servicer) to service any of the Purchased Assets shall cease, at Buyer’s option, upon the earlier of (i) Buyer’s termination of Servicer in accordance with Article 27(c)or (ii) the transfer of servicing to any other Servicer and the assumption of such servicing by such other Servicer.Seller agrees to cooperate with Buyer in connection with any termination of Servicer.Upon any termination of Servicer, if no Event of Default shall have occurred and be continuing, Seller shall at its sole cost and expense transfer the servicing of the affected Purchased Assets to another Servicer approved by Buyer, such approval not to be unreasonably withheld, conditioned or delayed, as expeditiously as possible.
(c) Buyermay,initssoleandabsolutediscretion,terminateServiceroranysub-servicer with respect to any Purchased Asset (i) at any time that a default by the Servicer undertheServicingAgreementortheServicerLetterexistsaftertheexpirationofanyapplicable grace, notice and/or cure period set forth therein or (ii) during the continuance of an Event of Default,eitherforcauseorwithoutcause,ineachcaseofclauses(i)and(ii),withoutpaymentof any penalty or termination fee by Buyer.
(d) Seller shall not, and shall not permit Servicer to, employ any sub-servicers (including, without limitation, for cashiering services) to service the Purchased Assets without the prior written approval of Buyer, such approval not to be unreasonablywithheld, conditioned
ordelayed.IfthePurchasedAssetsareservicedbyasub-servicer,Sellershallirrevocablyassign allofitsright,titleandinterestinanysub-servicingagreementSellermaybeapartytowithsuch sub-servicer to Buyer.
(e) SellershallcauseServicerandanysub-servicertoservicethePurchasedAssetsin accordance with Accepted Servicing Practices.With respect to any Servicing Agreement as to whichBuyerisnotaparty,SellershallcauseServicer(attherequestofBuyer)andany sub-servicers engaged bySeller to execute aletteragreement with Buyer in aform acceptable to Buyer (a“ServicerLetter”)acknowledgingBuyer’ssecurityinterestinthePurchasedAssetsand agreeing to remit all Income received with respect to the Purchased Assets to the Collection Account in accordance with Article 5(e)or as otherwise directed by Buyer in accordance with the Servicer Letter.
(f) Seller agrees that Buyer is the owner of all servicing records relating to the Purchased Assets, including but not limited to the Servicing Agreement, files, documents,
records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records relating to or evidencing the servicing of Purchased Assets (the “ServicingRecords”)solongasthePurchasedAssetsaresubjecttothisAgreement.Sellercovenantsto(or tocauseServicerto)safeguardsuchServicingRecordsandtodeliverthempromptlytoBuyeror its designee (including the Custodian) at Buyer’s request.
(g) The payment of servicing fees under the Servicing Agreement shall be solelythe responsibility of Seller and shall be subordinate to payment of amounts outstanding and due to Buyer under the Transaction Documents.
ARTICLE 28 MISCELLANEOUS
(a) All rights, remedies and powers of Buyer hereunder and in connection herewith are irrevocable and cumulative, and not alternative or exclusive, and shall be in addition to all other rights, remedies andpowersof Buyer whetherunderlaw,equityoragreement.Inaddition to the rights and remedies granted to it in this Agreement, to the extent this Agreement is determined to create a security interest, Buyer shall have all rights and remedies of a secured party under the UCC.
(b) The Transaction Documents may be executed in counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument.Signatures delivered by email (in PDF format) shall be considered binding with the same force and effect as original signatures.
(c) TheheadingsintheTransactionDocumentsareforconvenienceofreferenceonly and shall not affect the interpretation or construction of the Transaction Documents.
(d) Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibitedby orbeinvalidundersuchlaw,suchprovisionshallbeineffectivetotheextentof
suchprohibitionorinvalidity,withoutinvalidatingtheremainderofsuchprovisionorthe remaining provisions of this Agreement.
(e) This Agreement together with the other Transaction Documents contains a final and completeintegration of allpriorexpressions bytheparties withrespect to thesubjectmatter hereof and thereof and shall constitute the entire agreement among the parties with respect to such subject matter, superseding all prior oral or written understandings.
(f) The parties understand that this Agreement is a legally binding agreement that mayaffectsuchparty’srights.Eachpartyrepresentstotheotherthatithasreceivedlegaladvice from counsel of its choice regarding the meaning and legal significance of this Agreement and that it is satisfied with its legal counsel and the advice received from it.
(g) ShouldanyprovisionofthisAgreementrequirejudicialinterpretation,itisagreed that a court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against any Person by reason of the rule of construction thatadocumentistobeconstruedmorestrictlyagainstthePersonwhoitselforthroughitsagent
prepared the same, it being agreed that all parties have participated in the preparation of this Agreement.
(h) Unless otherwise specifically enumerated, wherever pursuant to this Agreement Buyer exercises any right given to it to consent or not consent, or to approve or disapprove, or any arrangement or term is to be satisfactoryto, Buyer in its sole and absolute discretion, Buyer shalldecidetoconsentornotconsent,ortoapproveordisapproveortodecidethatarrangements or terms are satisfactoryor not satisfactory, in its sole and absolute discretion and such decision by Buyer shall be final and conclusive absent manifest error.
(i) BuyerherebyacknowledgesandagreesthatexcepttotheextentoftheGuaranteed Obligations (as defined in the Guaranty) of Guarantor pursuant to the Guaranty, and subject to the terms, conditions and limitations set forth therein, (a) all obligations of Seller under the Agreement and the other Transaction Documents are recourse obligations solely of Seller, and
(b) none of theobligations ofSellerunderthis Agreement and theother Transaction Documents are recourse to Guarantor or any of its Affiliates, subsidiaries, members, partners, officers, directors or personnel.
(j) AllinformationregardingthetermssetforthinanyoftheTransactionDocuments or the Transactions (the “Confidential Information”) shall be kept confidential and shall not be disclosed by either Seller or Buyer to any Person except
(a) to the Affiliates of such party or its or their respective directors, officers, employees, agents, accountants, attorneys, advisors and other representatives (collectively, “Representatives”) who are informed of the confidential nature of such information and instructed to keep it confidential,
(b) to the extent requested by any regulatory authority or Governmental Authority or required by Requirements of Law (including any disclosures required pursuant to any subpoena, legal process or other court or regulatoryauthority order),
(c) to the extent required to be included in the financial statements of either Seller or Buyer or their respective Affiliates,
(d) totheextentrequiredtoexerciseanyrightsorremediesunderthe Transaction Documents or Purchased Asset Documents,
(e) totheextentrequiredtoconsummateandadministeraTransaction,and
(f) toanyactualorprospectiveassigneeorholderofaparticipationinterestor other Person which agrees to comply with this Article 28(j);
provided, however, that, except for disclosures made pursuant to clause(f)of this sentence, no such disclosure made with respect to any Transaction Document shall include a copy of such Transaction Document to the extent that a summary would suffice, but if it is necessary for a copy of any Transaction Document to be disclosed, all pricing and other economic terms set forththereinshallberedactedbeforedisclosure.Infurtheranceoftheforegoing,Buyeragreesto keepconfidentialallnon-publicinformationdeliveredbyoronbehalfofSeller,InitialGuarantor orReplacementGuarantororanyoftheirAffiliatesandshallnotdisclosesuchinformationother than as permitted or required pursuant to the foregoing clauses (a)through (f), inclusive, except that, after the occurrence of an Event of Default, all such information relating solely to any
Purchased Asset and the Collateral, but not, for the avoidance of doubt, any such information relating to Initial Guarantor, Replacement Guarantor or any of their Affiliates, shall be automatically excluded from the provisions of this Article 28(j).Notwithstanding anything in this Article28(j)to the contrary, Confidential Information shall not include anyinformation that
(i) is or becomes generally available to the public through no fault of Buyer or Seller or any of their respective Representatives in violation of this Article 28(j); (ii) is or becomes available to Buyer or Seller or any of their respective Representatives on a non-confidential basis from a source other than Buyer or Seller, as applicable, not known to Buyer or Seller or any of their respective Representatives, as applicable, to be prohibited from disclosing such information bya contractual,legalorfiduciaryobligationofconfidentialityafterdueinquiry;(iii)isindependently developedbyBuyerorSelleroranyoftheirrespectiveRepresentativeswithoutuseoforreliance on, either directly or indirectly, any Confidential Information; (iv) was known to or in the possession of Buyer or Seller or any of their respective Representatives on a non-confidential basis, without appropriate documentary evidence thereof, prior to disclosure by Buyer or Seller, as applicable.
[SIGNATURESFOLLOW]
INWITNESSWHEREOF,thepartieshaveexecutedthisAgreementasadeedasofthe day first written above.
SELLER:
CLRRELENDINGRFSUBCB,LLC
By:
Name:NathanD.DeBacker
Title:VicePresident,ChiefFinancial Officer and Treasurer
[SignaturePagetoA&RMasterRepurchaseAgreement]
BUYER:
CITIBANK,N.A.
By:
Name: Lindsay DeChiaro Title:AuthorizedSignatory
[SignaturePagetoA&RMasterRepurchaseAgreement]