Exhibit 10.11
AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
Dated as of August 17, 2022 by and among
CMTG DB FINANCE LLC,
as Master Seller, and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Buyer
TABLE OF CONTENTS
Page
LOANS 61
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ANNEXES, EXHIBITS AND SCHEDULES
ANNEX I Names and Addresses for Communications between Parties
EXHIBIT I Form of Confirmation
EXHIBIT II Authorized Representatives of Seller
EXHIBIT III [Reserved]
EXHIBIT IV Form of Custodial Delivery
EXHIBIT V Form of Power of Attorney
EXHIBIT VI Representations and Warranties Regarding Individual Purchased Loans
EXHIBIT VII Organizational Chart
EXHIBIT VIII Transaction Procedures
EXHIBIT IX Form of Servicer Notice and Agreement
EXHIBIT X Form of Joinder Agreement
EXHIBIT XI U.S. Tax Compliance Certificates
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THIS AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT (this
“Agreement”) is dated as of August 17, 2022, by and between CMTG DB FINANCE LLC, a Delaware limited liability company organized in series (“Master Seller”) and DEUTSCHE BANK AG, NEW YORK BRANCH, a branch of a foreign banking institution (as more fully described in Section 2 below, “Buyer”).
WHEREAS, Deutsche Bank AG, Cayman Islands Branch (“DB Cayman”) and Master Seller previously entered into that certain Master Repurchase Agreement, dated as of June 26, 2019 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Existing Repurchase Agreement”);
WHEREAS, pursuant to that certain Omnibus Assignment, Assumption, and Recognition Agreement dated as of September 3, 2021 among DB Cayman, Buyer, and Master Seller, DB Cayman assigned all of its rights, obligations, titles, and interest as buyer under the Existing Repurchase Agreement to Buyer;
WHEREAS, the parties hereto have requested that the Existing Repurchase Agreement be amended and restated in its entirety on the terms and subject to the conditions set forth herein; and
WHEREAS, the limited liability company agreement of the Master Seller provides for the establishment of one or more designated series of limited liability company interests and assets of the Master Seller (each, a “Series”, each such series that executes and delivers a Joinder Agreement (as hereinafter defined) pursuant to Section 3(n) hereof, a “Series Seller”) which may have separate rights, powers or duties with respect to specified property, including rights to profits and losses associated with such specified property and obligations under this Agreement with respect to such specified property, with the assets and obligations of each such Series Seller accounted for separately in the records of Master Seller and such Series Seller from the other assets of the Master Seller and the assets of each other Series Seller; and the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to each Series Seller shall be enforceable solely against the assets of such Series Seller except to the extent expressly provided for hereunder. Upon its execution of a Joinder Agreement pursuant to Section 3(n) hereof, each such Series Seller shall be bound by all provisions herein with respect to the assets of such Series Seller and its related obligations in respect of any Transactions. As used herein, the term “Seller” shall mean the Master Seller and/or each Series Seller, individually or collectively, as the context may require.
Subject to the terms and conditions of this Agreement, from time to time the parties hereto may enter into transactions in which Seller agrees to transfer to Buyer certain Eligible Loans (as hereinafter defined), on a servicing-released basis, against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer to Seller such Eligible Loans at a date certain or on demand, against the transfer of funds by Seller. Master Seller shall designate a Series Seller for each such transaction in accordance with Section 3(n) hereof. Each such transaction shall be referred to herein as a “Transaction” and, unless otherwise agreed in writing, shall be governed by this Agreement, including any supplemental terms or conditions contained in any exhibits identified herein as applicable hereunder.
“A-Note” shall mean a Mortgage Note evidencing a senior position (i.e., in an A/B structure) or a pari passu senior position (i.e., in an A-1/A-2 structure) in a Mortgage Loan. Payments and control rights with respect to an A-Note shall not be junior to any other Mortgage Note.
hereof.
“Accelerated Repurchase Date” shall have the meaning specified in Section 13(b)(i)
“Accelerated Transaction Repurchase Date” shall have the meaning specified in Section
13(c)(i) hereof.
“Acceptable Attorney” shall mean a nationally recognized attorney reasonably acceptable to Buyer that has delivered at Seller’s request a Bailee Letter.
“Accepted Servicing Practices” shall mean with respect to any Purchased Loan, those customary and usual standards of mortgage servicing practices of prudent institutional mortgage loan servicers which service mortgage loans and/or participations in mortgage loans of the same type as such Purchased Loan and, to the extent consistent with the foregoing requirements, with the same skill, care and diligence and in the same manner that the related servicer services and administers mortgage loans and/or participations in interests in mortgage loans for its own account or for other third-party entities of mortgage loans and/or participations of the same type as the Purchased Loans or, if applicable, as otherwise defined in the applicable Servicing Agreement.
“Act of Insolvency” shall mean with respect to any Person, (i) the commencement by such Person as debtor of any case or proceeding under any Bankruptcy Law, or such Person seeking the appointment or election of a receiver, conservator, trustee, custodian or similar official for such Person or any substantial part of its property, or the convening of any meeting of creditors for purposes of commencing any such case or proceeding or seeking such an appointment or election,
(ii) the commencement of any such case or proceeding against such Person, seeking such an appointment or election, or the filing against such Person of an application for a protective decree under the provisions of SIPA, which (A) is consented to or not timely contested by such Person,
(B) results in the entry of an order for relief, such an appointment or election, the issuance of such a protective decree or the entry of an order having a similar effect against such Person, or (C) is not dismissed within 60 days, (iii) the making by such Person of a general assignment for the benefit of its creditors, (iv) the admission in writing by an authorized representative of such Person of such Person’s inability to pay such Person’s debts as they become due or (v) the taking of action by such Person in furtherance of any of the foregoing.
“Actual Original Purchase Percentage” shall mean, with respect to any Transaction, a percentage designated by Seller in its sole and absolute discretion, as set forth in the Confirmation
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for such Transaction, which shall not be greater than the Maximum Original Purchase Percentage for such Transaction.
“Additional Confirmation Conditions” shall mean, with respect to each Purchased Loan, the Additional Confirmation Conditions (if any) set forth in the Confirmation for the related Transaction, which Buyer may include, as determined in its sole and absolute discretion including, without limitation certain specified performance-based threshold tests with respect to any related Mortgaged Property, metric-based performance triggers related to any Purchased Loan, mandatory amortization requirements and/or additional applicable Mandatory Early Repurchase Events.
“Affiliate” shall mean, when used with respect to any specified Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, such Person.
“Agreement” shall mean this Amended and Restated Master Repurchase Agreement, dated as of August 17, 2022, by and between Seller and Buyer, as same may be amended, modified and/or restated from time to time.
“Allocable Percentage” shall mean, with respect to any Principal Payment on any Purchased Loan, a fraction (expressed as a percentage) the numerator of which is the Repurchase Price with respect to such Purchased Loan as in effect immediately prior to such Principal Payment (net of any accrued Price Differential and, unless a Facility Event of Default or a Transaction Event of Default related to such Purchased Loan has occurred and is continuing, excluding any other amounts then owing to Buyer), and the denominator of which is the outstanding principal balance of such Purchased Loan immediately prior to such Principal Payment.
“Alternate Index Rate” shall mean, with respect to each Pricing Rate Period, the per annum rate of interest of the Benchmark Replacement, determined as of the Pricing Rate Determination Date immediately preceding the commencement of such Pricing Rate Period; provided that in no event will the Alternate Index Rate be less than the Index Floor.
“Alternate Pricing Rate” shall mean, with respect to each Pricing Rate Period, the per annum rate of interest equal to the greater of (i) the sum of (A) the Alternate Index Rate plus (B) the Applicable Spread, and (ii) the sum of (A) the Index Floor plus (B) the Applicable Spread.
“Alternate Rate Transaction” shall mean any Transaction at such time as the Pricing Rate applicable thereto accrues at a per annum rate of interest based on the Benchmark Replacement.
“Amendment and Restatement Date” shall mean August 17, 2022.
“Anti-Corruption Laws” shall mean the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder, the UK Bribery Act of 2010, as amended, and any other applicable anti-corruption law.
“Applicable Servicer Account” shall mean a deposit account established with the applicable Servicer or with a bank for which the applicable Servicer is the bank’s customer and that is acceptable to Buyer in its sole discretion as of the date of Buyer’s approval of the related
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Servicer in accordance with this Agreement, established solely in connection with the Eligible Loans that are Purchased Loans subject to Transactions under this Agreement, which deposit account is in the name of the applicable Servicer, and which may be for the benefit of Seller, and which shall, in any case, indicate in the name of such deposit account the security interest of Buyer therein.
“Applicable Spread” shall mean, for any Transaction, as follows:
“Appraisal” shall mean an appraisal of the related underlying Mortgaged Property from an Independent Appraiser, complying with the requirements of Title XI of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended from time to time, and conducted in accordance with the standards of the American Appraisal Institute.
“Approved Future Funding Amounts” shall have the meaning specified in Section 3(p)
hereof.
“Assignment of Leases” shall mean, with respect to any Purchased Loan, an assignment of
leases thereunder, notice of transfer or equivalent instrument in recordable form, sufficient under the laws of the jurisdiction in which the Mortgaged Property is located to reflect the assignment of leases to Seller, and a subsequent assignment in blank.
“Assignment of Mortgage” shall mean, with respect to any Purchased Loan, an assignment or notice of transfer (or equivalent instrument) of the applicable Mortgage, in recordable form and otherwise sufficient under the laws of the jurisdiction in which the related Mortgaged Property is located to reflect the assignment and pledge of the Mortgage to Seller, and a subsequent assignment in blank, subject to the terms, covenants and provisions of this Agreement.
“Authorized Representative of Seller” shall mean the individuals listed on Exhibit II attached hereto, as the same may be revised by Master Seller by notice to Buyer from time to time.
“Available Income” shall mean, all Income other than (a) the Underlying Purchased Loan Reserves, unless and until such amounts are available, under the related Purchased Loan Documents to be released to Seller, and (b) Qualified Servicing Expenses.
“B-Note” shall mean a Mortgage Note evidencing a junior position (i.e., in an A/B structure) in a Mortgage Loan.
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“Bailee Letter” shall mean a letter substantially in the form of Annex 12 to the Custodial Agreement from an Acceptable Attorney or a title company or another Person acceptable to Buyer in its sole discretion, in form and substance acceptable to Buyer in its sole discretion, wherein such Acceptable Attorney, title company or other Person described above in possession of a Purchased Loan File (i) acknowledges receipt of such Purchased Loan File, (ii) confirms that such Acceptable Attorney, title company or other Person acceptable to Buyer is holding the same as bailee or agent on behalf of Buyer under such letter and (iii) agrees that such Acceptable Attorney, title company or other Person described above shall deliver such Purchased Loan File to Custodian, or as otherwise directed by Buyer, by not later than the third (3rd) Business Day following the Purchase Date for the related Purchased Loan.
“Bankruptcy Code” shall mean the United States Bankruptcy Code (11 U.S.C. § 101 et seq.), as amended from time to time or any successor statute or rule promulgated thereto.
“Bankruptcy Laws” shall mean the Bankruptcy Code or any other bankruptcy, insolvency, reorganization, liquidation, moratorium, dissolution, delinquency or any similar statute, law, rules, regulations or similar legal requirements of any other applicable jurisdiction from time to time in effect, and in each case, as amended from time to time.
“Benchmark” shall mean (a) with respect to any LIBOR Transaction, (i) initially, and continuing unless and until replaced by a Benchmark Replacement pursuant to Section 3(f) hereof, LIBOR, and (ii) if a LIBOR Transition Date has occurred, then the applicable Benchmark Replacement, and (b) for any Term SOFR Transaction (i) initially, and continuing unless and until replaced by a Benchmark Replacement pursuant to Section 3(f) hereof, 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, for any Pricing Rate Period, the first alternative set forth in the order below that can be determined by Buyer as of the date that the Pricing Rate for any Transaction is converted to an Alternate Rate Transaction pursuant to Section 3(f) below:
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provided that if the index rate set forth in clause (a) above is not then commonly used by Buyer in its commercial real estate repurchase facilities similar to this Agreement or in its floating rate commercial real estate loans as an alternative to then-current Benchmark, as determined by Buyer in its sole but good faith discretion, then the Benchmark Replacement shall be determined per clause (b) above.
Notwithstanding the foregoing or anything herein to the contrary, with respect to all Transactions, in no event shall the Benchmark Replacement be less than the Index Floor.
“Benchmark Replacement Adjustment” shall mean, for any Pricing Rate Period, the first alternative set forth in the order below that can be determined by Buyer as of the date that the Pricing Rate for any Transaction is converted to an Alternate Rate Transaction pursuant to Section 3(f) below:
“Benchmark Replacement Date” shall mean the earliest to occur of the following events with respect to the then-current Benchmark:
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“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the then-current Benchmark:
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“Benchmark Unavailability Period” shall mean each (if any) Pricing Rate Period for which Buyer determines in its sole good faith discretion (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Pricing Rate for the applicable Pricing Rate Period (including, if the Benchmark is Term SOFR or SOFR Average, that Term SOFR or SOFR Average, as applicable, cannot be determined in accordance with the definition thereof).
“Blocked by Operation of Law” shall mean, with respect to OFAC’s SDN List, any Person that is in the aggregate owned, directly or indirectly, 50 percent or greater by a Person or Persons that are either identified on the SDN List or themselves blocked Persons.
“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. When used with respect to a Pricing Rate Determination Date, “Business Day” shall mean any day other than a Saturday, a Sunday or in connection with the determination of LIBOR in a LIBOR Transaction, a day on which banks in London, England are closed for interbank or foreign exchange transactions.
“Business Plan” shall mean, with respect to any Construction Loan, the construction budget and/or business plan for construction, rehabilitation and/or renovation of the related Mortgaged Property (as the same may be amended, supplemented or otherwise modified from time to time in accordance with this Agreement) prepared by the related Mortgagor, submitted by Seller and approved in writing by Buyer in its sole discretion as evidenced by a Confirmation.
“Buyer” shall mean Deutsche Bank AG, New York Branch, or any successor or assignee thereof.
“Cash Flow Deficiency” shall mean, with respect to any Purchased Loan as of any Remittance Date, the amount (if any) by which (i) the total of all amounts due to Buyer, its Affiliates and Custodian under Sections 5(c)(i)-(iv), 5(d)(i)-(v) or 5(e) hereof, as applicable, in respect of such Purchased Loan as of such Remittance Date exceed (ii) the amount of Available Income (including Principal Payments) received by Buyer or Depository in respect of such Purchased Loan during such Collection Period.
“Cash Management Account” shall mean a demand deposit account, entitled “CMTG DB Finance LLC, as Master Seller, for the benefit of Deutsche Bank AG, New York Branch, as Buyer”, established at Depository, bearing the account number referenced in the Controlled Account Agreement.
“Cause” shall mean, with respect to an Independent Manager, (i) acts or omissions by such Independent Manager that constitute willful disregard of or bad faith or gross negligence with respect to, such Independent Manager’s duties, (ii) if such Independent Manager has been indicted or convicted for any crime or crimes of fraud or for any violation of any Requirement of Law, (iii) if such Independent Manager no longer satisfies the requirements set forth in the definition of “Independent Manager”, (iv) if the fees charged for the services of such Independent Manager are materially in excess of the fees charged by the other providers of Independent Managers listed in
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the definition of “Independent Manager”, (v) if such Independent Manager is unable to perform his or her duties due to death, disability or incapacity or (vi) any other reason for which the prior written consent of Buyer shall have been obtained.
“Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or any administrator of any Benchmark, (c) adjustments to the Regulation D reserve requirements (including, without limitation, all basic, marginal, emergency, supplemental, special or other reserves and taking into account any transitional adjustments or other scheduled changes in reserve requirements) announced by the Board of Governors of the Federal Reserve, or (d) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority or any administrator of any Benchmark; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to the Basel III international accord, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued (regardless of whether currently in force and effect).
“Change of Control” shall mean any of the following events shall have occurred without the prior written approval of Buyer: (i) any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the 1934 Act) shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the beneficial owner, directly or indirectly, of 50% or more of the total ownership interests of Guarantor, entitled to vote generally in the election of the directors (or the applicable equivalent of such Person); (ii) Guarantor shall cease, directly or indirectly, to own, of record and beneficially, 100% of the ownership interests in Member and Control Member;
“Closing Date” shall mean June 26, 2019.
“Code” shall mean the Internal Revenue Code of 1986, and the regulations promulgated and rulings issued thereunder, in each case as amended, modified or replaced from time to time.
“Collateral” shall have the meaning specified in Section 6 hereof.
“Collection Period” shall mean with respect to the Remittance Date in any month, the period beginning on but excluding the Cut-off Date in the month preceding the month in which such Remittance Date occurs and continuing to and including the Cut-off Date immediately preceding such Remittance Date.
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“Confirmation” shall have the meaning specified in Section 3(b) hereof.
“Conforming Changes” shall mean, with respect to either the use or administration of Term SOFR, or the use, administration, adoption or implementation of any Alternate Index Rate, any technical, administrative or operational changes (including, without limitation, changes to the definitions of “Business Day”, “Pricing Rate Determination Date”, “Pricing Rate Period”, “Remittance Date” and “U.S. Government Securities Business Day”, preceding and succeeding business day conventions, rounding of amounts, the timing of determining rates and making payments of interest and Price Differential, the applicability and length of lookback periods, and other technical, administrative or operational matters) that Buyer determines in its sole good faith discretion, from time to time, may be appropriate to reflect the adoption and implementation of any such rate in a manner substantially consistent with market practice for U.S. dollar-denominated commercial real estate repurchase facilities and/or floating rate commercial real estate loans (or, if Buyer determines in its sole good faith discretion that adoption of any portion of such market practice is not administratively feasible or if Buyer or its designee determines that no market practice for the use and administration of such rate exists, in such other manner as Buyer determines in its sole good faith discretion is reasonably necessary).
“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.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise and “Controlling,” “Controlled” and “under common Control” shall have meanings correlative thereto. For purposes of this definition, debt securities that are convertible into common stock will be treated as voting securities only when converted.
“Construction Loan” means a senior Mortgage Loan secured by land which is undeveloped, partially developed, or under significant rehabilitation, and part or all of the proceeds of such senior Mortgage Loan are required to be applied by Mortgagor towards the construction or rehabilitation of commercial real estate.
“Controlled Account Agreement” shall mean that certain Controlled Account Agreement, dated as of the Closing Date, among Buyer, Master Seller (on behalf of itself and each Series Seller) and Depository, relating to the Cash Management Account, as the same may be amended, modified and/or restated from time to time.
“Credit Event” shall have the meaning set forth in the Letter Agreement.
“Custodial Agreement” shall mean the Custodial Agreement, dated as of the Closing Date, between and among Custodian, Master Seller (on behalf of itself and each Series Seller) and Buyer, as the same may be amended, modified and/or restated from time to time.
“Custodial Delivery” shall mean the form to be executed by Seller in order to deliver the applicable Purchased Loan Schedule and the related Purchased Loan File with respect to any
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Purchased Loan to Buyer or its designee (including Custodian) pursuant to Section 7 hereof, a copy of which is attached hereto as Exhibit IV.
“Custodian” shall mean Wells Fargo Bank, National Association, or any successor Custodian appointed by Buyer with the prior written consent of Master Seller (which consent shall not be unreasonably withheld or delayed).
“Cut-off Date” shall mean the second (2nd) Business Day preceding each Remittance Date. “Default” shall mean a Facility Default or a Transaction Default.
“Depository” shall mean Wells Fargo Bank, National Association, or any successor Depository appointed by Buyer with, so long as no Facility Default or Facility Event of Default has occurred and is continuing, the prior written consent of Master Seller (which consent shall not be unreasonably withheld or delayed).
“Diligence Materials” shall mean, collectively, (i) the Preliminary Due Diligence Package furnished by Seller to Buyer, and (ii) any other diligence materials delivered by Seller to Buyer in connection with Buyer’s review of any New Collateral, whether pursuant to a Supplemental Due Diligence List or otherwise.
“Division/Series Transaction” shall mean, with respect to any Person that is a limited liability company organized under the laws of the State of Delaware, any event or transaction where such Person (a) divides into two or more Persons (whether or not the original Person or Subsidiary thereof survives such division) or (b) creates, or reorganizes into, one or more series, in each case, as contemplated under the laws of the State of Delaware, including without limitation Section 18-217 of the Delaware LLC Act.
“Dollars” and “$” shall mean lawful money of the United States of America.
“Early Opt-in Effective Date” shall mean with respect to any Early Opt-in Election, the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to Seller.
“Early Opt-in Election” shall mean the election by Buyer (at any time after the date hereof, in its sole and absolute discretion) to trigger a fallback from the then-current Benchmark and the provision by Buyer of written notice of such election to Seller.
“Early Repurchase” shall have the meaning specified in Section 3(d) hereof. “Early Repurchase Date” shall have the meaning specified in Section 3(d) hereof.
“Eligible Loan” shall mean (a) a performing (as of the related Purchase Date) whole Mortgage Loan secured by a first mortgage lien or liens on one or more office, retail, industrial, hospitality and/or other commercial properties located in the United States (including, without limitation, a leasehold interest therein), (b) a performing (as of the related Purchase Date) Senior Interest or a performing Junior Interest where the related Senior Interest is also a Purchased Loan subject to a Transaction hereunder, and where, in each case, the related Mortgaged Loan is secured
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by a first mortgage lien or liens on one or more office, retail, industrial, hospitality and/or other commercial properties located in the United States (including, without limitation, a leasehold interest therein), (c) a Related Mezzanine Loan where the Mortgage Loan to which such Related Mezzanine Loan relates is also a Purchased Loan hereunder, or (d) any other asset approved by Buyer in its sole and absolute discretion as of the related Purchase Date therefor, in each case, as to which each of the Purchased Loan Representations are true and correct as of the date such Purchased Loan Representations are made or deemed made (except for any exceptions disclosed in writing by Seller and which are approved in writing by Buyer, in its sole and absolute discretion and are set forth in the related Confirmation), and which Mortgage Loan, Senior Interest, Junior Interest, Related Mezzanine Loan or other asset is approved by Buyer, in its sole and absolute discretion as of the Purchase Date therefor, based upon all facts and circumstances considered relevant by Buyer. For the avoidance of doubt, in no event shall a Junior Interest, or a Related Mezzanine Loan qualify as an Eligible Loan at any time when the related Senior Interest or Mortgage Loan, respectively, is not also a Purchased Loan subject to a Transaction under this Agreement.
“Environmental Law” shall mean any present or future federal, state or local law, statute, regulation or ordinance, any judicial or administrative order or judgment thereunder, pertaining to health, industrial hygiene, hazardous substances or the environment, including, but not limited to, each of the following, as enacted as of the Closing Date or as hereafter amended: the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901 et seq.; the Toxic Substance Control Act, 15 U.S.C. §§ 2601 et seq.; the Water Pollution Control Act (also known as the Clean Water Act, 22 U.S.C. §§ 1251 et seq.), the Clean Air Act, 42 U.S.C. §§ 7401 et seq. and the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801 et seq.
“Equity Interests” shall mean, with respect to any Person, (a) any share, interest, participation and other equivalent (however denominated) of capital stock of (or other ownership, equity or profit interests in) such Person, (b) any warrant, option or other right for the purchase or other acquisition from such Person of any of the foregoing, (c) any security convertible into or exchangeable for any of the foregoing, and (d) any other ownership or profit interest in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement and, as of the relevant date, any subsequent 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 any group of organizations (i) described in Section 414(b) or (c) of the Code of which Seller is a member and (ii) solely for purposes of potential liability under Section 302(b) of ERISA and Section 412(b) of the Code and the lien created under Section 303(k) of ERISA and Section 430(k)(4) of the Code, described in Section 414(m) or (o) of the Code of which Seller is a member.
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“Event of Default” shall mean a Facility Event of Default or a Transaction Event of Default.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to Buyer or required to be withheld or deducted from a payment to Buyer: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of Buyer being organized under the laws of, or having its principal office or the office from which it books the Transactions located in, the jurisdiction imposing such Taxes (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of Buyer with respect to an interest in the Repurchase Obligations pursuant to a law in effect on the date on which Buyer (i) acquires such interest in the Repurchase Obligations or (ii) changes the office from which it books the Transactions, except in each case to the extent that, pursuant to Section 29 hereof, amounts with respect to such Taxes were payable either to Buyer’s assignor immediately before Buyer became a party hereto or to Buyer immediately before it changed the office from which it books the Transactions, (c) Taxes attributable to Buyer’s failure to comply with Section 29(e) hereof, and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Exit Fee” shall have the meaning specified in the Letter Agreement. “Facility Amount” shall have the meaning specified in the Letter Agreement.
“Facility Default” shall mean any event which, with the giving of notice, the passage of time, or both, would constitute a Facility Event of Default.
“Facility Event of Default” shall have the meaning specified in Section 13(a)(I) hereof. “Facility Termination Date” shall have the meaning specified in the Letter Agreement. “FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code.
“FDIA” shall have the meaning specified in Section 22(c) hereof. “FDICIA” shall have the meaning specified in Section 22(d) hereof.
“Federal Reserve Bank of New York’s Website” shall mean the website of the Federal Reserve Bank of New York at https://www.newyorkfed.org, or any successor source.
“Filings” shall have the meaning specified in Section 6 hereof. “Fitch” shall mean Fitch Ratings.
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“Foreign Buyer” shall mean a Buyer that is not a U.S. Person.
“Funding Fee” shall have the meaning set forth in the Letter Agreement.
“Future Funding Amount” shall have the meaning specified in Section 3(p) hereof. “Future Funding Date” shall have the meaning specified in Section 3(p) hereof.
“Future Funding Purchased Loan” shall mean any Purchased Loan with respect to which there exists a continuing obligation on the part of the holder of the Purchased Loan after the related closing date of such Purchased Loan to provide additional funding to Mortgagor upon the terms and conditions in the applicable Purchased Loan Documents and which is approved by Buyer as a Future Funding Purchased Loan as of the Purchase Date for such Purchased Loan, as such approval is indicated in the Confirmation therefor, or as may be approved from time to time pursuant to a Future Funding Transaction Request made by Seller under Section 3(p) hereof.
“Future Funding Transaction” shall have the meaning specified in Section 3(p) hereof. “Future Funding Transaction Request” shall have the meaning specified in Section 3(p)
hereof.
“GAAP” shall mean United States generally accepted accounting principles consistently
applied as in effect from time to time.
“Governmental Authority” shall mean, as the context may require, either (i) the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York or any successor thereto, or (ii) any other national or federal government, any state, regional, local or other political subdivision thereof with jurisdiction and any Person with jurisdiction exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Guarantor” shall mean Claros Mortgage Trust, Inc., a Maryland corporation.
“Guaranty” shall mean that certain Guaranty, dated as of the Closing Date, from Guarantor to Buyer, as the same may be amended, modified and/or restated from time to time.
“Hazardous Materials” shall mean oil, flammable explosives, asbestos, urea formaldehyde insulation, radioactive materials, hazardous wastes, toxic or contaminated substances or similar materials or gases, including any substances which are “hazardous substances,” “hazardous wastes,” “hazardous materials,” “toxic substances,” “wastes,” “regulated substances,” “industrial solid wastes,” or “pollutants” under Environmental Laws and including arsenic, perchlorate, methane and carbon monoxide.
“Income” shall mean, with respect to any Purchased Loan at any time, the sum of (x) payments of principal, interest, dividends or other receipts, distributions, prepayments, recoveries, proceeds (including insurance and condemnation proceeds), prepayment fees, extension fees, exit
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fees, defeasance fees, transfer fees, make whole fees, late charges, late fees and all other fees or charges of any kind or nature, premiums, yield maintenance charges, penalties, default interest, dividends, gains, receipts, allocations, rents, interests, profits, payments in kind, returns or repayment of contributions, net sale, foreclosure, liquidation, securitization or other disposition proceeds, insurance payments, settlements and proceeds or collections (including, without limitation, make-whole prepayment penalties, defaulted interest and, when released to Seller in accordance with the terms of the related Purchased Loan Documents, all Underlying Purchased Loan Reserves) and (y) all net sale proceeds received by Seller or any Affiliate of Seller in connection with a sale of such Purchased Loan, other than any origination fees that were earned and paid on or prior to the related Purchase Date.
“Indemnified Amounts” shall have the meaning specified in Section 26 hereof. “Indemnified Parties” shall have the meaning specified in Section 26 hereof. “Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of Seller under any Transaction Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Independent Appraiser” shall mean an independent professional real estate appraiser who is a member in good standing of the American Appraisal Institute, and, if the state in which the subject Mortgaged Property is located certifies or licenses appraisers, is certified or licensed in such state, and in each such case, who has a minimum of five years’ experience in the subject property type and is acceptable to Buyer in its sole and absolute discretion.
“Independent Manager” shall mean an individual who has prior experience as an independent director, independent manager or independent member with at least three years of employment experience and who is provided by CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company, Lord Securities Corporation or, if none of those companies is then providing professional Independent Managers, another nationally-recognized company reasonably approved by Buyer, in each case that is not an Affiliate of Seller and that provides professional Independent Managers and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Manager and is not, and has never been, and will not while serving as Independent Manager be, any of the following:
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recognized company that routinely provides professional Independent Managers and other corporate services to Seller or any of its Affiliates in the ordinary course of its business);
A natural person who otherwise satisfies the foregoing definition and satisfies subparagraph (A) by reason of being the Independent Manager of a “single purpose entity” affiliated with Seller, that does not own a direct or indirect interest in Seller, shall be qualified to serve as an Independent Manager of Seller, provided that the fees that such individual earns from serving as an Independent Manager of affiliates of Seller in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year. For purposes of this paragraph, a “single purpose entity” 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 those contained in Section 12 hereof.
“Index Floor” shall mean the greater of (a) zero and (b) such higher percentage as may be specified with respect to any Transaction as set forth in the related Confirmation.
“Investment Company Act” shall mean the Investment Company Act of 1940, as amended. “Joinder Agreement” shall have the meaning specified in Section 3(n) hereof.
“Junior Interest” shall mean (a) a junior Participation Interest, or (b) a B-Note.
“Junior Interest Documents” shall mean, for any Junior Interest, the B-Note or participation certificate, as applicable, together with any co-lender agreements, participation agreements and/or other intercreditor agreements or other documents governing or otherwise relating to the priority, rights or obligations of such Junior Interest and the applicable Related Interest, and the Mortgage Loan Documents for the related underlying Mortgage Loan, and including, without limitation, those documents which are required to be delivered to Custodian under the Custodial Agreement.
“Last Endorsee” shall have the meaning specified in Section 7(b)(i) hereof.
“Letter Agreement” shall mean that certain letter agreement, dated as of the Closing Date, by and between Buyer and Master Seller, as the same may be amended, modified and/or restated from time to time.
“LIBOR” shall mean, with respect to each Pricing Rate Period and each Pricing Rate Determination Date, the rate per annum (rounded upwards, if necessary, to the nearest 1/1,000 of 1%) calculated by Buyer as set forth below:
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“LIBOR Pricing Rate” shall mean, with respect to each Pricing Rate Period, the per annum rate equal to (i) the greater of LIBOR and the applicable Index Floor plus (ii) the Applicable Spread.
“LIBOR Transaction” shall mean, with respect to any Pricing Rate Period, any Transaction with respect to which the Pricing Rate is determined for such Pricing Rate Period with reference to LIBOR.
“LIBOR Transition Date” shall mean the earliest of:
provided, however, (i) for any Purchased Loan with respect to which Seller funds a Future Funding Transaction, the “LIBOR Transition Date” for the Transaction related to such
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Purchased Loan shall be the related Future Funding Date, and (ii) with respect to any extension of the Facility Termination Date on or after January 1, 2022, the “LIBOR Transition Date” for all remaining LIBOR Transactions shall be the effective date of any such extension of the Facility Termination Date.
“Manager” shall mean shall mean Claros REIT Management LP, a Delaware limited partnership, together with its permitted successors and assigns.
“Mandatory Early Repurchase” shall have the meaning specified in Section 3(l) hereof. “Mandatory Early Repurchase Date” shall have the meaning specified in Section 3(l)
hereof.
“Mandatory Early Repurchase Event” shall mean, with respect to all Purchased Loans, the
occurrence and continuation of any Facility Event of Default or the occurrence of the Facility Termination Date and, with respect to any individual Purchased Loan, the occurrence of any of the following:
(i) of this definition with respect to such Purchased Loan);
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discretionary approval of such Purchased Loan in Buyer’s sole discretion, such Purchased Loan shall not cease to be an Eligible Loan for purposes of this clause (vi) unless there was a material misstatement or omission by Seller contained in information provided to Buyer on or prior to the related Purchase Date for such Purchased Loan;
“Margin Call Threshold” shall have the meaning specified in the Letter Agreement. “Margin Deficit” shall have the meaning specified in Section 4(a) hereof.
“Margin Deficit Deadline” shall have the meaning specified in Section 4(b) hereof. “Margin Excess” shall have the meaning specified in Section 4(a) hereof.
“Margin Notice” shall have the meaning specified in Section 4(b) hereof.
“Market Value” shall mean, with respect to any Eligible Loan or Purchased Loan, as of any relevant date, the lesser of (i) the price at which such Eligible Loan or Purchased Loan may be sold in an arms’ length transaction to a third party (without regard to any unpaid interest which has accrued but is not yet due and payable), determined by Buyer in its sole and absolute discretion exercised in good faith, and (ii) the Principal Balance thereof; provided, however, that Buyer shall not adjust the Market Value for any Purchased Loan for purposes of issuing a Margin Call pursuant to Section 4(a) hereof unless a Credit Event has occurred and is continuing with respect to such Purchased Loan.
“Market Value Percentage” shall mean, with respect to any Purchased Loan, as of any date, the fraction, expressed as a percentage and rounded to the next highest hundredth of a percent, the numerator of which is the then current Market Value of such Purchased Loan, and the denominator of which is the then current Principal Balance of such Purchased Loan.
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“Master Seller” shall mean CMTG DB Finance LLC, a Delaware limited liability company.
“Master Seller LLC Agreement” shall mean the limited liability company agreement of Master Seller, as same may be amended, modified and/or restated with Buyer’s prior written consent, together with each completed Schedule III thereto hereafter executed with respect to each Series Seller.
“Material Action” shall mean any material amendment, waiver, extension, termination, rescission, cancellation, release, forbearance or other modification to the terms of, or any collateral, guaranty or indemnity for, any Purchased Loan or the related Purchased Loan Documents (other than an extension of the maturity date for or release of collateral for a Purchased Loan for which the related Purchased Loan Documents do not provide for any material lender discretion or consent rights), or the exercise of any material right or remedy of a holder (including all material lending, corporate and voting rights, remedies, consents, approvals, forbearances and waivers, and including any such rights as holders of A-Notes or B-Notes, or as a participant pursuant to any related inter-creditor and/or co-lender agreements) of any Purchased Loan or the related Purchased Loan Documents.
“Material Adverse Effect” shall mean a material adverse effect on or material adverse change in or to (a) the property, assets, business, operations, financial condition, prospects or credit quality of Seller, Member or Guarantor (taken as a whole), (b) the ability of Seller, Member or Guarantor to pay or perform its obligations under any of the Transaction Documents to which it is a party, (c) the validity or enforceability of any of the Transaction Documents, (d) the rights and remedies of Buyer under any of the Transaction Documents, (e) the timely payment of any amounts payable under this Agreement or any other Transaction Document or (f) the value of one or more Purchased Loans.
“Maximum Original Purchase Percentage” shall have the meaning specified in the Letter Agreement.
“Member” shall mean CMTG DB Finance Holdco LLC, a Delaware limited liability company, which is the sole member of Master Seller.
“Member Guaranty” shall mean that certain Member Guaranty, dated as of the Closing Date, from Member to Buyer, as the same may be amended, modified and/or restated from time to time.
“Mezzanine Loan” shall mean a loan made by, or assigned to, Seller secured by the direct ownership interest in a Mortgagor (the “Mezzanine Loan Collateral”) in connection with a Purchased Loan.
“Mezzanine Loan Collateral” shall have the meaning specified in the definition of “Mezzanine Loan”.
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“Mezzanine Loan Documents” shall mean, with respect to a Mezzanine Loan, all documents, instruments and agreements evidencing and/or securing such Mezzanine Loan, and the Mortgage Loan Documents for the related underlying Mortgage Loan made to the borrower whose equity interests comprise the security for such Mezzanine Loan, as each of same may be amended, modified and/or restated in accordance with the terms of this Agreement and including, without limitation, those documents which are required to be delivered to Custodian under the Custodial Agreement.
“Mezzanine Note” shall mean the original promissory note that was executed and delivered in connection with a particular Mezzanine Loan.
“Moody’s” shall mean Moody’s Investor Services, Inc.
“Mortgage” shall mean a mortgage, deed of trust, deed to secure debt or other instrument, creating a valid and enforceable first lien on or a first priority ownership interest in an estate in fee simple or ground leasehold interest in real property and the improvements thereon, securing a mortgage note or similar evidence of indebtedness.
“Mortgage Loan” shall mean a loan made by, or assigned to, Seller to a Mortgagor and secured by a Mortgage.
“Mortgage Loan Documents” shall mean, with respect to a Purchased Loan that is a Mortgage Loan, all documents, instruments and agreements evidencing and/or securing such Mortgage Loan, as each of same may be amended, modified and/or restated in accordance with the terms of this Agreement.
“Mortgage Note” shall mean a note or other evidence of indebtedness of a Mortgagor secured by a Mortgage in connection with a Purchased Loan.
“Mortgaged Property” shall mean (a) with respect to any Eligible Loan or Purchased Loan that is a Mortgage Loan, the real property encumbered by the Mortgage(s) securing such Eligible Loan or Purchased Loan (including all improvements, buildings, fixtures, building equipment and personal property thereon and all additions, alterations and replacements made at any time with respect to the foregoing) and all other collateral directly or indirectly securing repayment of the debt evidenced by a Mortgage Note, (b) with respect to any Eligible Loan or Purchased Loan that is a Senior Interest or Junior Interest, the real property encumbered by the Mortgage(s) securing the Mortgage Loan (including all improvements, buildings, fixtures, building equipment and personal property thereon and all additions, alterations and replacements made at any time with respect to the foregoing) and all other collateral directly or indirectly securing repayment of the debt evidenced by the Mortgage Note for the Mortgage Loan to which such Senior Interest or Junior Interest relates, and (c) with respect to any Eligible Loan or Purchased Loan that is a Mezzanine Loan, the real property encumbered by the Mortgage(s) securing the Mortgage Loan (including all improvements, buildings, fixtures, building equipment and personal property thereon and all additions, alterations and replacements made at any time with respect to the foregoing) and all other collateral directly or indirectly securing repayment of the debt evidenced
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by a Mortgage Note for the Mortgage Loan with respect to which the Mortgagor’s parent is borrower under such Mezzanine Loan.
“Mortgaged Property Value” shall mean, with respect to any Mortgaged Property, the market value of such Mortgaged Property as determined by Buyer in its sole and absolute discretion.
“Mortgagee” shall mean the record holder of a Mortgage Note secured by a Mortgage. “Mortgagor” shall mean, with respect to any Purchased Loan, the obligor on a Mortgage
Note and the mortgagor/grantor under the related Mortgage.
“Multiemployer Plan” shall mean a multiemployer plan defined as such in Section 3(37) of ERISA and which is covered by Title IV of ERISA.
“Net Market Value Decrease” shall mean, with respect to any Purchased Loan, as of any date of determination, an amount equal to the greater of (i) zero and (ii) the product of (1) the then current Principal Balance of such Purchased Loan (or, in the case of either a Senior Interest or a Junior Interest, the applicable pro rata portion of the Principal Balance of the Mortgage Loan to which such Senior Interest or Junior Interest relates), (2) (x) the Purchase Date Market Value Percentage of such Purchased Loan, less (y) the current Market Value Percentage of such Purchased Loan, and (3) the Maximum Original Purchase Percentage of such Purchased Loan.
“New Collateral” shall mean an Eligible Loan that Seller proposes to be included as Collateral.
“OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Other Connection Taxes” means, with respect to Buyer, Taxes imposed as a result of a present or 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 mean any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under any Transaction Document or from the execution, delivery, performance, or enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Transaction Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Participant Register” shall have the meaning specified in Section 18(d) hereof. “Participation Interest” shall mean a participation interest in a Mortgage Loan.
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“Person” shall mean an individual, corporation, limited liability company, series limited liability company, statutory trust, partnership, joint tenant or tenant-in-common, grantor trust, unincorporated organization, or other entity, or a federal, state or local government or any agency or political subdivision thereof.
“Plan” shall mean an employee benefit or other plan that is covered by Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code, other than a Multiemployer Plan.
“Plan Assets” shall have the meaning specified in Section 21(a) hereof. “Plan Party” shall have the meaning specified in Section 21(a) hereof.
“Pledged Collateral” shall have the meaning specified in the Pledge Agreement.
“Pledge Agreement” shall mean that certain Pledge Agreement, dated as of the Closing Date, from Member, as pledgor, in favor of Buyer, as same may be amended, modified and/or restated from time to time.
“Preliminary Due Diligence Package” shall mean Seller’s summary memorandum outlining the proposed transaction, including, to the knowledge of Seller, potential transaction benefits and all material underwriting risks, all Underwriting Issues and all other characteristics of the proposed transaction that a reasonable buyer would consider material, together with the following due diligence information relating to a proposed Eligible Loan or New Collateral, to be provided by Seller to Buyer pursuant to this Agreement (in each case, to the extent applicable and in Seller’s possession or reasonably obtainable by Seller):
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“Price Differential” shall mean, with respect to any Transaction as of any date of determination, the aggregate amount obtained by daily application of the Pricing Rate for such Transaction to the Purchase Price for such Transaction on a 360-day-per-year basis for the actual number of days during each Pricing Rate Period, commencing on (and including) the Purchase Date for such Transaction and ending on (but excluding) such date of determination (reduced by any amount of such Price Differential previously paid by Seller to Buyer with respect to each such Transaction).
“Pricing Rate” shall mean, with respect to each Pricing Rate Period, an interest
rate per annum equal to (i) for a LIBOR Transaction, the LIBOR Pricing Rate, determined as of 24
the Pricing Rate Determination Date immediately preceding the commencement of such Pricing Rate Period, (ii) for a Term SOFR Transaction, the Term SOFR Pricing Rate, determined as of the Pricing Rate Determination Date immediately preceding the commencement of such Pricing Rate Period, (iii) for a Prime Rate Transaction, the Prime Pricing Rate, determined as of the Pricing Rate Determination Date immediately preceding the commencement of such Pricing Rate Period and (iv) for an Alternate Rate Transaction, the Alternate Pricing Rate, determined as of the Pricing Rate Determination Date immediately preceding the commencement of such Pricing Rate Period. The Pricing Rate shall be subject to adjustment and/or conversion as provided in the Transaction Documents or the related Confirmation.
“Pricing Rate Determination Date” shall mean (i) with respect to each Pricing Rate Period with respect to any Transaction that occurs while the Transaction is a LIBOR
Transaction, the date that is two (2) Business Days prior to the first day of such Pricing Rate Period, (ii) with respect to each Pricing Rate Period with respect to any Transaction that occurs while the Transaction is a Term SOFR Transaction, the date that is two (2) U.S. Government Securities Business Days prior to the first day of the applicable Pricing Rate Period, (iii) with respect to any Pricing Rate Period that occurs with respect to any Transaction that occurs while the Transaction is an Alternate Rate Transaction, the date that is two (2) U.S. Government Securities Business Days prior to the first day of the applicable Pricing Rate Period (or the time determined by Buyer in accordance with the Conforming Changes) and (iv) with respect to any Pricing Rate Period with respect to any Transaction that occurs while the Transaction is a Prime Rate Transaction, the date that is two (2) Business Days prior to the first day of the applicable Pricing Rate Period. So long as when any Transaction is a LIBOR Transaction, when used with respect to any Pricing Rate Determination Date, Business Day shall mean any day on which banks are open for dealing in foreign currency and exchange in London.
“Pricing Rate Period” shall mean, (a) in the case of the first Pricing Rate Period and first Remittance Date with respect to any Transaction, the period commencing on and
including the Purchase Date for such Transaction and ending on but excluding such Remittance Date, and (b) in the case of any subsequent Pricing Rate Period and Remittance Date, the period commencing on and including the prior Remittance Date and ending on but excluding such Remittance Date; provided, however, that in no event shall any Pricing Rate Period for any Transaction end subsequent to the Repurchase Date for such Transaction.
“Prime Index” shall mean the rate of interest published in The Wall Street Journal
from time to time as the “Prime Rate”. If more than one “Prime Rate” is published in The Wall Street Journal for a day, the average of such “Prime Rates” will be used, and such average will be rounded up to the nearest 1/1000th of one percent (0.001%). If The Wall Street Journal ceases to publish the “Prime Rate,” Buyer will 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 quasi-governmental body, then Buyer will select a comparable interest rate index.
“Prime Index Rate” shall mean, with respect to each Pricing Rate Period, the per
annum rate of interest of the Prime Index, determined as of the Pricing Rate Determination Date 25
immediately preceding the commencement of such Pricing Rate Period; provided that in no event will the Prime Index Rate be less than applicable Index Floor.
“Prime Pricing Rate” shall mean, with respect to each Pricing Rate Period, the per annum rate of interest equal to the greater of (i) the sum of (A) the Prime Index Rate plus (B) the Prime Rate Spread and (ii) the sum of (A) the applicable Index Floor plus (B) the Applicable Spread.
“Prime Rate Spread” shall mean, in connection with the conversion of any
Transaction in accordance with the terms hereof to a Prime Rate Transaction, the sum (expressed as the number of basis points and determined at the time of such conversion) of the Applicable Spread for such Transaction and the Prime Rate Spread Adjustment; provided that the Prime Rate Spread shall not be less than a spread resulting in the Pricing Rate immediately after giving effect to the conversion to a Prime Rate Transaction being at least equal to the Pricing Rate immediately prior to conversion to a Prime Rate Transaction, and in no event will the Prime Rate Spread be less than the applicable Index Floor.
“Prime Rate Spread Adjustment” shall mean, in connection with any conversion
of a Transaction in accordance with the terms hereof to a Prime Rate Transaction, a spread adjustment, expressed as the number of basis points and determined at the time of such conversion (which may be positive, negative or zero) equal to (1) (x) if the Transaction is being converted from a Term SOFR Transaction to a Prime Rate Transaction, the daily average of Term SOFR (with a floor of zero percent) or (y) if the Transaction is being converted from an Alternate Rate Transaction to a Prime Rate Transaction, the daily average of the Alternate Index Rate (with a floor of zero percent), in either case of (x) or (y), as applicable, over the one hundred eighty (180) day period (or such shorter period to the extent such historical rates are not available, and excluding days within such one hundred eighty (180) day or shorter period that are not U.S. Government Securities Business Days) ending two (2) U.S. Government Business Days prior to the date of conversion, and excluding from such average, if such period of averaging exceeds thirty (30) days, the five (5) highest days and the five (5) lowest days of such one hundred eighty (180) day period), minus (2) the daily average of the Prime Index Rate (with a floor of zero percent) over the one hundred eighty (180) day period (excluding days within such one hundred eighty (180) day period that are not U.S. Government Securities Business Days) ending two (2) U.S. Government Securities Business Days prior to the date of conversion (excluding from such average the five (5) highest days and the five (5) lowest days of such one hundred eighty (180) day period).
“Prime Rate Transaction” shall mean, with respect to any Pricing Rate Period, any Transaction with respect to which the Pricing Rate for such Pricing Rate Period is determined with reference to the Prime Index.
“Principal Balance” shall mean, as of any date of determination, the then current outstanding principal balance of a Purchased Loan less all Principal Payments received thereon.
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“Principal Payment” shall mean, with respect to any Purchased Loan, any payment or prepayment of principal received by Seller or Depository in respect thereof and the proceeds of any sale of such Purchased Loan or any interest therein received by Seller or Depository without limitation, (i) scheduled or unscheduled principal payments and prepayments from any source and of any nature whatsoever, (ii) net insurance or net condemnation proceeds, to the extent applied to reduce the principal amount of the related Purchased Loan, or (iii) any net proceeds from any sale, refinancing, liquidation or other disposition of the underlying real property or interest relating to such Purchased Loan, to the extent applied to reduce the principal amount of the related Purchased Loan.
“Prohibited Person” shall mean, at any time, any Person with whom dealings are restricted or prohibited under the Sanctions Laws, including but not limited to any Person: (1) identified on any Sanctions Laws-related list of restricted Persons maintained by the U.S. Government (including, but not limited to OFAC’s SDN List); (2) Blocked by Operation of Law, or controlled or acting on behalf of a Person that is either described in clause (1) or Blocked by Operation of Law; (3) otherwise subject to the Sanctions Laws administered by OFAC (“OFAC Sanctions”) such that the entry into this Agreement or the performance of the obligation contemplated hereby would be prohibited; or (4) subject to the Sanctions Laws administered by any other Governmental Authority.
“Prohibited Transferees” shall have the meaning set forth in the Letter Agreement. “Purchase Date” shall mean the date on which a Purchased Loan is to be transferred by
Seller to Buyer.
“Purchase Date Market Value” shall mean, with respect to any Purchased Loan, the Market Value of such Purchased Loan as of the related Purchase Date, as set forth in the Confirmation for the related Transaction.
“Purchase Date Market Value Percentage” shall mean, with respect to any Purchased Loan, the fraction, expressed as a percentage and rounded to the next highest hundredth of a percent, the numerator of which is the Purchase Date Market Value of such Purchased Loan, and the denominator of which is the Principal Balance as of the related Purchase Date, and which Purchase Date Market Value Percentage shall be set forth in the Confirmation for the related Transaction.
“Purchase Price” shall mean, with respect to any Purchased Loan, (a) as of the applicable Purchase Date, the price at which such Purchased Loan is transferred by Seller to Buyer on such Purchase Date as set forth in the Confirmation for such Purchased Loan, which initial Purchase Price shall not exceed the product of (i) the Purchase Date Market Value of such Purchased Loan and (ii) the Maximum Original Purchase Percentage, and (b) as of any other date of determination, an amount (expressed in dollars) equal to the Purchase Price set forth in the foregoing clause (a) increased by any funds remitted by Buyer to or on account of Seller with respect to such Purchased Loan including, without limitation, any Future Funding Amounts and advances of Margin Excess made by Buyer under Sections 3(p) and 4(b), respectively, and decreased by any payments made to Buyer to be applied (or allocated, as applicable) in reduction of the Repurchase Price (other than
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Price Differential, fees or penalties) of such Purchased Loan pursuant to the terms of this Agreement, including Sections 3(e), 3(k), 4(a), 5(c)(iii), 5(d)(iii), 5(d)(v) and 5(e)(iii) hereof.
“Purchased Loan” or “Purchased Loans” shall mean (a) with respect to any Transaction, the Eligible Loan or Eligible Loans sold by the applicable Series Seller to Buyer in such Transaction and (b) with respect to the Transactions in general, all Eligible Loans sold by Seller to Buyer, in each case, together with all related (i) Purchased Loan Documents, (ii) Servicing Agreements, (iii) Servicing Records, (iv) Servicing Rights, (v) Income, (vi) insurance policies and payments and proceeds thereunder, (vii) collection, escrow, reserve, collateral, lock-box or other demand or time deposit accounts and all amounts and property from time to time on deposit therein, (viii) supporting obligations of any kind, and (ix) proceeds relating to the sale, securitization or other disposition of such Eligible Loan(s).
“Purchased Loan Default” shall mean for any Purchased Loan, any event which, with (or without) the giving of notice, the passage of time, or both, could give rise to a Purchased Loan Event of Default.
“Purchased Loan Documents” shall mean the Mortgage Loan Documents, Senior Interest Documents, Junior Interest Documents or Mezzanine Loan Documents related thereto, as applicable.
“Purchased Loan Event of Default” shall mean for any Purchased Loan, an “Event of Default” as defined in the Purchased Loan Documents for such Purchased Loan (or any such other similar term as is used in such documents).
“Purchased Loan File” shall mean the documents specified as the Purchased Loan File in Section 7(b) hereof, together with any additional documents and information required to be delivered to Buyer or its designee (including Custodian) pursuant to this Agreement.
“Purchased Loan Representations” shall mean with respect to any Purchased Loan or prospective Purchased Loan, the representations and warranties set forth on Exhibit VI attached hereto, subject to such written exceptions, modifications, qualifications or additional representations and warranties as are set forth on Schedule 3 to the Confirmation for such Purchased Loan or as otherwise disclosed in writing by Seller and approved by Buyer in its sole and absolute discretion and set forth in the related Confirmation. It is acknowledged and agreed that Buyer, in its sole and absolute discretion, may from time to time, upon delivery of at least twenty (20) Business Days prior written notice to Seller, amend the representations and warranties set forth on Exhibit VI attached hereto applicable to any Purchased Loan prior to the related Purchase Date therefor. Any such amendment of the representations and warranties set forth on Exhibit VI shall not be effective with respect to any Purchased Loan for which the Purchase Date has occurred hereunder prior to the effective date of such amendment. Buyer may elect, in its sole and absolute discretion, to require any such amendment of the representations and warranties set forth on Exhibit VI to apply to all Purchased Loans with Purchase Dates occurring from and after the effective date of such amendment and, in such event, Seller and Buyer will each execute and deliver an amendment of this Agreement substituting the amended version of Exhibit VI for the version of Exhibit VI then in effect.
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“Purchased Loan Schedule” shall mean a schedule of Purchased Loans attached to each Trust Receipt and Custodial Delivery, which may but is not required to, contain information substantially similar to the Collateral Information.
“Qualified Servicing Expenses” shall mean any fees and expenses payable to any third- party Servicer that is not an Affiliate of Seller, which fees and expenses are netted by such Servicer out of collections pursuant to a Servicing Agreement that has been approved by Buyer in its reasonable discretion, and which Servicer shall have entered into a Servicer Notice and Agreement substantially in the form attached hereto as Exhibit IX attached hereto.
“Rate Conversion” shall mean the conversion of any Transaction (i) from a LIBOR Transaction to a Term SOFR Transaction, (ii) from a Term SOFR Transaction to either a Prime Rate Transaction or an Alternate Rate Transaction, or (iii) from a Prime Rate Transaction to a Term SOFR Transaction or Alternate Rate Transaction, in each case, in accordance with Section 3(f) hereof.
“Rate Conversion Effective Date” shall have the meaning specified in Section 3(f) hereof.
“Rating Agencies” shall mean Morningstar Credit Ratings, LLC, DBRS, Inc., S&P, Moody’s, Kroll Bond Ratings and Fitch, in each case, together with their respective successors- in-interest, or, if any of such entities shall for any reason no longer perform the function of a securities rating agency, any other nationally recognized statistical rating agency designated by Buyer.
“Register” shall have the meaning specified in Section 18(c) hereof. “Registrar” shall have the meaning specified in Section 18(c) hereof.
“REIT” shall mean a Person satisfying the conditions and limitations set forth in Sections 856(b) and 856(c) of the Code and qualifying as a “real estate investment trust,” as defined in Section 856(a) of the Code.
“Related Interest” shall mean (a) a pari passu or junior participation interest in a commercial mortgage loan, (b) a pari passu “A note” or a “B note” or other subordinate note in an “A/B” or similar structure in a commercial mortgage loan, (c) a Mezzanine Loan or (d) a preferred equity interest or any other subordinate debt or equity interest relating to a Mortgaged Property or Mortgagor for any Transaction, with respect to which, in each such case, the Senior Interest or related Mortgage Loan of which is a Purchased Loan hereunder.
“Related Mezzanine Loan” shall mean any Mezzanine Loan that is identified as such pursuant to the terms of the related Confirmation and that satisfies the definition of Eligible Loan.
“Remittance Date” shall mean the fifteenth (15th) calendar day of each month, or the next succeeding Business Day, if such calendar day shall not be a Business Day, or such other day as is mutually agreed to by Seller and Buyer.
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“Repurchase Date” shall mean, for any Purchased Loan, the earliest of (i) the Facility Termination Date as same may be extended pursuant to Section 3 of the Letter Agreement, (ii) the date specified in the Confirmation for such Purchased Loan as may be extended pursuant to Section 3 of the Letter Agreement, (iii) if applicable, the related Early Repurchase Date, Mandatory Early Repurchase Date, Accelerated Repurchase Date or Accelerated Transaction Repurchase Date and
(iv) the date that is two (2) Business Days prior to the maturity date of such Purchased Loan or, in the case of a Participation Interest, the maturity date of the underlying Mortgage Loan (subject to extension, if applicable, in accordance with the related Purchased Loan Documents); provided, that, solely with respect to this clause (iv), the settlement with respect to such Repurchase Date and Purchased Loan may occur two (2) Business Days later.
“Repurchase Obligations” shall have the meaning specified in Section 6 hereof. “Repurchase Price” shall mean, with respect to any Purchased Loan as of any date, the
price at which such Purchased Loan is to be transferred from Buyer to Seller upon the termination of the related Transaction; such price will be determined in each case as the sum of (i) the then outstanding Purchase Price of such Purchased Loan, and (ii) the accrued but unpaid Price Differential with respect to such Purchased Loan as of the date of such determination.
“Repurchase Price Cap” shall mean, with respect to any Purchased Loan, as of any date of determination, an amount equal to (i) the product of (x) the then-current Principal Balance of such Purchased Loan, (y) the Purchase Date Market Value Percentage of such Purchased Loan, and (z) the Maximum Original Purchase Percentage of such Purchased Loan, less (ii) the Net Market Value Decrease of such Purchased Loan and less (iii) any mandatory reductions of the Repurchase Price for such Purchased Loan required under the Confirmation therefor.
“Requirement of Law” shall mean any law, treaty, rule, regulation, code, directive, policy, order or requirement or determination of an arbitrator or a court or other governmental authority whether now or hereafter enacted or in effect.
“S&P” shall mean Standard & Poor’s Ratings Services, a Division of The McGraw-Hill Companies.
“Sanctions Laws” shall mean economic or financial sanctions, trade embargoes, or other restrictive economic or financial measures enacted, imposed, administered or enforced from time to time pursuant to statute, executive order, or regulation by: (1) the U.S. Government, including those administered by OFAC, the U.S. Department of State, and the U.S. Department of Commerce; (2) the United Nations Security Council; (3) the European Union or any of its member states; (4) Her Majesty’s Treasury; (5) the Swiss Government; (6) the Canadian Government; or
(7) Governmental Authorities of any other country in which Buyer, Seller or Guarantor operates.
“SDN List” shall mean OFAC’s List of Specially Designated Nationals and Blocked Persons.
“SEC” shall have the meaning specified in Section 23(a) hereof.
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“Seller” shall have the meaning specified in the introductory paragraph of this Agreement.
“Senior Interest” shall mean (a) a senior (or pari passu senior) Participation Interest, or (b) an A-Note.
“Senior Interest Documents” shall mean, with respect to any Purchased Loan that is a Senior Interest, the A-Note or participation certificate, as applicable, together with any co-lender agreements, participation agreements and/or other intercreditor agreements or other documents governing or otherwise relating to the priority, rights or obligations of such Senior Interest and the applicable Related Interest, and the Mortgage Loan Documents for the related underlying Mortgage Loan, and including, without limitation, those documents which are required to be delivered to Custodian under the Custodial Agreement.
“Senior Interest Side Letter” shall mean, with respect to any Mortgage Loan or Senior Interest proposed to be included in a Transaction hereunder, if Seller, Guarantor or an Affiliate of Seller shall hold any other Related Interest related to such Mortgage Loan or Senior Interest, and such other Related Interest is not also a Purchased Loan, a letter agreement to be entered into on or before the Purchase Date of such Mortgage Loan or Senior Interest hereunder among Seller, Guarantor or any such Affiliate of Seller that holds the Related Interest (or any portion thereof) and Buyer, in form and substance reasonably acceptable to Buyer, pursuant to which the parties shall agree: (a) that any Transfer by such holder of the Related Interest (or such portion thereof) or any interest therein shall be subject to the provisions of Section 10(q) of this Agreement; (b) that for so long as the Related Interest (or such portion thereof) is held by Seller or an Affiliate of Seller, notwithstanding anything to the contrary contained in the Senior Interest Documents, upon Buyer’s exercise of any of its remedies with respect to the applicable Mortgage Loan or Senior Interest pursuant to Sections 13(b)(iii) or 13(c)(iii) hereunder, such holder of the Related Interest (or portion thereof) shall not be entitled to (i) appoint or replace, or consent to the appointment or replacement of, the servicer or special servicer for the related Mortgage Loan, (ii) consent or approve of any major decisions with respect to the related Mortgage Loan or exercise any other rights of a “controlling holder” or “operating advisor” under the Senior Interest Documents, (iii) exercise any additional cure rights with respect to any Purchased Loan Event of Default or default under any Purchased Loan Documents that are granted to the holder of the Related Interest pursuant to the applicable Senior Interest Documents; provided that the foregoing shall not restrict Seller from exercising any of Seller’s cure rights with respect thereto provided under this Agreement or the other Transaction Documents, subject to Buyer’s consent or (iv) exercise any right to purchase the related Senior Interest at a purchase price that is less than the sum of all amounts which would be payable by the Mortgagor to the holder of the Senior Interest pursuant to the Purchased Loan Documents during the continuance of a Purchased Loan Event of Default; and
(c) to such other matters with respect to such Mortgage Loan or Senior Interest as Buyer may require in its sole discretion.
“Series” shall have the meaning specified in the introductory paragraph of this Agreement. “Series Seller” shall have the meaning specified in the introductory paragraph of this
Agreement.
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“Servicer” shall have the meaning specified in Section 28(a) hereof.
“Servicer Notice and Agreement” shall have the meaning specified in Section 28(a) hereof. “Servicing Agreement” shall have the meaning specified in Section 28(a) hereof. “Servicing Records” shall have the meaning specified in Section 28(b) hereof.
“Servicing Rights” shall mean all right, title and interest in and to any and all of the following, in each case as the same may be subject to the terms of any applicable Servicing Agreements and the provisions of the documentation for the applicable Purchased Loans: (a) any and all rights of Seller to service the Purchased Loans or to appoint (or terminate the appointment of) any third party as servicer of the Purchased Loans; (b) any payments to or monies received by or payable to Seller (as opposed to any third-party servicer) as compensation for servicing the Purchased Loans (including, without limitation, workout fees, consent fees, liquidation fee, late fees, penalties or similar amounts payable to Seller); (c) all agreements or documents creating, defining or evidencing any such servicing rights to the extent they relate to such servicing rights and all rights of Seller (individually or as servicer) thereunder (including all rights to set the compensation of any third-party servicer); (d) the right, if any, to appoint a special servicer or liquidator of the Purchased Loans; and (e) all rights of Seller to give directions with respect to the management and distribution of any collections, escrow accounts, reserve accounts or other similar payments or accounts in connection with the Purchased Loans.
“Single-Purpose Entity” shall mean a corporation, limited partnership, limited liability company or trust that, since the date of its formation (unless otherwise indicated in this Agreement) and at all times on and after the Closing Date, has complied with and shall at all times comply with the provisions of Section 12 hereof.
“SIPA” shall have the meaning specified in Section 23(a) hereof.
“SOFR” shall mean a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” shall mean the Federal Reserve Bank of New York’s Website for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Average” shall mean, for any Pricing Rate Period and the Pricing Rate Determination Date for such Pricing Rate Period, the compounded average of SOFR over a rolling calendar period of thirty (30) days (“30-Day SOFR Average”) on such Pricing Rate Determination Date, with the rate, or methodology for this rate, and conventions for this rate being established by Buyer in accordance with:
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provided, further, that if Buyer determines in its sole good faith discretion that any such rate, methodology or convention determined in accordance with clause (1) or clause (2) is not administratively feasible for Buyer, then SOFR Average will be deemed unable to be determined for purposes of the definition of “Benchmark Replacement”.
Notwithstanding the foregoing or anything herein to the contrary, in no event shall SOFR Average be less than the Index Floor.
“Supplemental Due Diligence List” shall mean, with respect to any New Collateral, information or deliveries concerning the New Collateral that Buyer shall reasonably request in addition to the Preliminary Due Diligence Package.
“Survey” shall mean a certified ALTA/ACSM (or applicable state standards for the state in which the property is located) survey of a Mortgaged Property prepared by a registered independent surveyor or engineer and in form and content satisfactory to Buyer and the company issuing the title policy for such Mortgaged Property.
“Table Funded Purchased Loan” shall mean a Purchased Loan which Buyer agrees in its sole and absolute discretion to purchase hereunder simultaneously with the origination or acquisition thereof, which origination or acquisition is financed, in part, with the Purchase Price, pursuant to Seller’s request, paid directly to a title company or other settlement agent, in each case, approved by Buyer, for disbursement in connection with such origination or acquisition. A Purchased Loan shall cease to be a Table Funded Purchased Loan after Custodian has delivered a Trust Receipt to Buyer certifying its receipt of the Purchased Loan File therefor.
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“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, 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 as determined by Buyer on the Pricing Rate Determination Date for such Pricing Rate Period, as such rate is published by the Term SOFR Administrator (as calculated by Buyer and rounded upwards, if necessary, to the nearest 1/1,000 of 1%); provided, that if as of 5:00 p.m. (New York City time) on any Pricing Rate Determination Date the Term SOFR Reference Rate for a one-month period has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR for the related Pricing Rate Period will be the Term SOFR Reference Rate for a one-month period as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference 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 Pricing Rate Determination Date. Notwithstanding the foregoing or anything herein to the contrary, in no event shall Term SOFR be less than the Index Floor.
“Term SOFR Adjustment” shall mean 0.11448% per annum.
“Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Buyer in its sole but good faith discretion).
“Term SOFR Pricing Rate” shall mean, with respect to each Pricing Rate Period, the per annum rate of interest equal to the sum of (i) Term SOFR and (ii) the Applicable Spread.
“Term SOFR Reference Rate” shall mean the forward-looking term rate for a one-month period based on SOFR, currently identified on the Term SOFR Administrator’s website at https://www.cmegroup.com/market-data/cme-group-benchmark-administration/term-sofr.html.
“Term SOFR Transaction” shall mean any Transaction at such time as the Pricing Rate applicable thereto accrues at a rate of interest based upon Term SOFR.
“Transaction” shall have the meaning specified in Section 1 hereof.
“Transaction Conditions Precedent” shall mean, with respect to each proposed Transaction,
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to be sold in such Transaction (or, in the case of any Mortgage Loan, Senior Interest, Junior Interest or Related Mezzanine Loan purchased from an Affiliate, the original acquisition cost of such Mortgage Loan, Senior Interest, Junior Interest or Related Mezzanine Loan at the time it was acquired by an Affiliate of Seller from a non-Affiliate) (including therein reasonable supporting documentation required by Buyer, if any) or if the related Mortgage Loan was originated by Seller, the outstanding principal balance of such Mortgage Loan, Senior Interest, Junior Interest or Related Mezzanine Loan;
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“As a result of our review and analysis, and based on insurance certificates delivered by or on behalf of the Borrower, our analysis has determined that adequate coverages and associated limits, as evidenced by such certificates and summarized below are in place and meet the insurance levels required by the lenders, including any permitted exceptions to those requirements, where applicable. In addition, the insurance provisions required in the loan agreements (including any permitted exceptions) is generally in line with market standards for prudent lenders on comparable transactions.”
To the extent that the applicable Insurance Review Report does not include the language required in the foregoing clauses (ii) and (iii), with respect to such Eligible Loan, Buyer shall obtain (at
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Seller’s sole cost and expense) an Insurance Review Reliance Letter from Harbor Consulting Group; and
The Transaction Conditions Precedent shall be deemed to be complied with or waived by Buyer on the related Purchase Date; except to the extent that (x) Buyer subsequently determines that any untrue or incorrect material information, certificate or similar item was provided on or prior to the related Purchase Date to, and relied upon by, Buyer, and (y) if reasonably susceptible of being cured, Seller has failed to either cure the effect of such untrue or incorrect material information, certificate or similar item or terminate the related Transaction and repurchase the related Purchased Loan on an Early Repurchase Date, in either case, within five (5) Business Days of receipt of notice of, or Seller otherwise having knowledge that, such information was untrue or incorrect.
“Transaction Default” shall mean any event which, with the giving of notice, the passage of time, or both, would constitute a Transaction Event of Default.
“Transaction Documents” shall mean, collectively, this Agreement, the Letter Agreement, the Guaranty, Member Guaranty, the Custodial Agreement, the Controlled Account Agreement, the Pledge Agreement, all Confirmations and Joinder Agreements executed pursuant to this Agreement in connection with specific Purchased Loans, each Servicing Agreement, each Servicer Notice and Agreement, each Senior Interest Side Letter, and any and all other documents and agreements executed and delivered by Seller, Member and/or Guarantor in connection with this Agreement or any Transactions hereunder, as each may be amended, modified and/or restated from time to time.
“Transaction Event of Default” shall have the meaning set forth in Section 13(a)(II) hereof. “Transfer” shall have the meaning specified in Section 10(b) hereof.
“Treasury Regulations” shall mean the U.S. federal income tax regulations, including temporary regulations, promulgated under the Code, as such regulations are amended from time to time.
“Trust Receipt” shall mean a trust receipt issued by Custodian to Buyer confirming Custodian’s possession of certain Purchased Loan Files which are the property of and held by Custodian for the benefit of Buyer (or any other holder of such trust receipt) or a bailment arrangement with counsel or other third party reasonably acceptable to Buyer.
“UCC” shall have the meaning specified in Section 6 hereof.
“Unadjusted Benchmark Replacement” shall mean the applicable Benchmark Replacement, as determined under clause (1)(a)(i) or (1)(b)(i) of the definition thereof, excluding the related Benchmark Replacement Adjustment.
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“Underlying Purchased Loan Reserves” shall mean, with respect to any Purchased Loan, the escrows, reserve funds or other similar amounts properly retained in accounts maintained by Servicer (or a third-party control bank) of such Purchased Loan unless and until such funds are, pursuant to and in accordance with the terms of the related Purchased Loan Documents, either (i) released or otherwise available to Seller for its own account (but not if such funds are used for the purpose for which they were maintained), (ii) released to the related Mortgagor, or (iii) applied for the purposes required under the Purchased Loan Documents (which, for the avoidance of doubt, shall not require Buyer consent if the applicable provisions of the related Purchased Loan Documents relating to such application or release do not provide for lender discretion or consent over the terms or circumstances of such application or release).
“Underwriting Issues” shall mean, with respect to any Collateral as to which Seller intends to request a Transaction, all material information known by Seller that, based on the making of reasonable inquiries and the exercise of reasonable care and diligence under the circumstances, would be considered a “negative” factor (either separately or in the aggregate with other information), or a defect in loan documentation or closing deliveries (such as any absence of any material Purchased Loan Document(s)), to a reasonable institutional commercial mortgage buyer in determining whether to originate or acquire the Collateral in question.
“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 Code.
“U.S. Tax Compliance Certificate” shall have the meaning specified in Section 29(e)
hereof.
construed in accordance with GAAP and all accounting determinations made and all financial statements prepared hereunder shall be made and prepared in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9. The words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole, including the exhibits and schedules hereto, as the same may from time to time be amended or supplemented and not to any particular paragraph, section, subsection, or clause contained in this Agreement. Each of the definitions set forth in Section 2 hereof shall be equally applicable to both the singular and plural forms of the defined terms. Unless specifically stated otherwise, all references herein to any agreements, documents or instruments shall be references to the same as amended, restated, supplemented or otherwise modified from time to time.
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With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on each Pricing Rate Determination Date for the next succeeding Pricing Rate Periods for such Transaction. Buyer or its agent shall, in accordance with the terms of this Agreement, determine the Pricing Rate on each Pricing Rate Determination Date for the related Pricing Rate Period and notify Seller of such rate for such period on such Pricing Rate Determination Date.
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respect to such Transaction against transfer to the applicable Series Seller or its agent of such Purchased Loan(s); and
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then-current Benchmark, as determined by Buyer in its sole but good faith discretion, and (B) such applicable Benchmark Replacement is administratively and commercially reasonable for Buyer to implement, as determined by Buyer in its sole but good faith discretion. In the event the foregoing conditions shall be satisfied and the applicable Transaction is converted to an Alternate Rate Transaction as provided above, the Transaction shall bear interest at the applicable Alternate Pricing Rate effective as of the first day of the next succeeding Pricing Rate Period which is at least five (5) Business Days after notice has been provided to Seller hereunder. Buyer will promptly notify Seller of the conversion of any Transaction to an Alternate Rate Transaction. Notwithstanding any provision of this Agreement to the contrary, in no event shall Seller have the right to convert (x) a Term SOFR Transaction to an Alternate Rate Transaction or (y) an Alternate Rate Transaction accruing interest at a rate based upon the then-current Benchmark Replacement to an alternative Alternate Rate Transaction accruing interest at a rate based upon any alternative Benchmark Replacement.
to a Prime Rate Transaction and Buyer shall determine in its sole but good faith discretion (which determination shall be conclusive and binding upon Seller absent manifest error) that the event(s) or circumstance(s) which resulted in such conversion shall no longer be applicable and Term SOFR can be determined as provided in the definition of Term SOFR as set forth herein, Buyer shall give notice thereof to Seller (which may be by telephone or email, followed promptly by written notice) prior to the next succeeding Pricing Rate Determination Date, but in making such determination, Buyer shall not treat Seller differently than other similarly situated customers of Buyer under commercial real estate loan repurchase facilities of Buyer similar to this Agreement (provided that in no event shall Buyer be required to disclose confidential information concerning any other customer of Buyer). Upon the giving of such notice, the applicable Transaction shall be
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converted, as of the first day of the next succeeding Pricing Rate Period, to a Term SOFR Transaction. Notwithstanding any provision of this Agreement to the contrary, in no event shall Seller have the right to convert a Prime Rate Transaction to a Term SOFR Transaction or a Term SOFR Transaction to a Prime Rate Transaction.
to an Alternate Rate Transaction but thereafter Buyer shall determine in its sole but good faith discretion (which determination shall be conclusive and binding upon Seller absent manifest error) that the applicable Alternate Index cannot be ascertained, or that the adoption of any Requirement of Law or any change therein or in the interpretation or application thereof, shall make it unlawful for any Buyer to maintain an Alternate Rate Transaction as contemplated hereunder, or the applicable Alternate Index Rate would be in excess of the maximum interest rate that Seller may by law pay, Buyer shall give notice thereof to Seller (which may be by telephone or e-mail, followed promptly by written notice) prior to the next succeeding Pricing Rate Determination Date. If such notice is given, the Alternate Rate Transaction shall be converted, as of the first day of the next Pricing Rate Period, to a Prime Rate Transaction; provided, however, that notwithstanding the foregoing, Buyer shall not deliver such notice to Seller converting any Transaction to a Prime Rate Transaction unless Buyer is also converting the pricing rate (or interest rate, as applicable) under commercial real estate loan repurchase facilities of Buyer similar to this Agreement with other similarly situated customers of Buyer to a rate based on the Prime Index (provided that in no event shall Buyer be required to disclose confidential information concerning any other customer of Buyer).
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consent from Seller.
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Spread (as in effect immediately prior to the effectiveness of such Rate Conversion) for each such LIBOR Transaction converted to a Term SOFR Transaction shall be increased by an amount equal to the Term SOFR Adjustment without any amendment to, or further action or consent of any other party to, this Agreement or any other Repurchase Document.
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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:
and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems, in its sole and absolute discretion, exercised in good faith, to be material, of entering into, continuing or maintaining Transactions or to reduce any amount receivable under the Transaction Documents in respect thereof; then, in any such case, Seller shall promptly pay Buyer, upon its demand, any additional amounts necessary to compensate Buyer for such increased cost or reduced amount receivable (in the case of Taxes, in an amount such that, after deduction of the applicable Tax, Buyer receives the amount to which it would have been entitled if no Tax were deductible); provided, however, in making any determination pursuant to this Section 3(i), Buyer shall treat Seller in the same manner as Buyer treats its other similarly situated customers in similar lending or repurchase facilities; provided further that, without limiting Buyer’s aforementioned covenant in the first proviso to this paragraph with respect to treatment of Seller, in no event shall Buyer be required to disclose information concerning any of Buyer’s other customers, including but not limited to disclosing the terms of any transaction documentation with such customers. If Buyer becomes entitled to claim any additional amounts pursuant to this Section 3(i), it shall use reasonable efforts to promptly notify Seller in writing of the event by reason of which it has become so entitled; provided further that failure to give any such notification should in no way diminish any of Buyer’s rights under this Section 3(i). Such notification as to the calculation of any additional amounts payable pursuant to this subsection shall be submitted by Buyer to Seller and shall be conclusive evidence of such additional amounts. This covenant shall survive the termination of this Agreement and the repurchase by Seller of any or all of the Purchased Loans.
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or such controlling Person’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such controlling Person could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such controlling Person’s policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then from time to time, after submission by Buyer to Seller of a written request therefor, Seller shall pay to Buyer such additional amount or amounts as will compensate Buyer for such reduction; provided, however, in making any determination pursuant to this Section 3(j), Buyer shall treat Seller in the same manner as Buyer treats its other similarly situated customers in similar lending or repurchase facilities; provided further that, without limiting Buyer’s aforementioned covenant in the first proviso to this clause (j) with respect to treatment of Seller, in no event shall Buyer be required to disclose information concerning any of Buyer’s other customers, including but not limited to disclosing the terms of any transaction documentation with such customers. Such notification as to the calculation of any additional amounts payable pursuant to this subsection shall be submitted by Buyer to Seller and shall be conclusive evidence of such additional amounts. This covenant shall survive the termination of this Agreement and the repurchase by Seller of any or all of the Purchased Loans.
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or hereafter acquired or arising and wheresoever located, and all proceeds and products thereof” or words to that effect.
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(any such excess, “Margin Excess”), Buyer shall transfer to Master Seller on behalf of the applicable Series Seller cash in an amount up to the Margin Excess by no later than the date that is three (3) Business Days following Buyer’s receipt of such notice from Master Seller; provided, however, that (1) any such transfer of cash shall not cause the Repurchase Price for the applicable Purchased Loan to exceed the Repurchase Price Cap for such Transaction, and (2) no Default or Event of Default under this Agreement shall have occurred and be continuing.
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Servicer (i) directly into the Cash Management Account without any further action of Buyer or (ii) directly into the Applicable Servicer Account for further remittance by the applicable Servicer to the Cash Management Account, subject in all cases to the terms and conditions of the related Servicer Notice and Agreement. All such amounts transferred into the Cash Management Account shall be remitted by Depository in accordance with the applicable provisions of Sections 5(b), 5(c), 5(d), 5(e), 13(b)(iii) and 13(c)(iii) hereof.
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(y) the day that the related Default becomes an Event of Default, at which time the Depository shall apply all such amounts pursuant to Section 5(e).
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discretion), or (b) the Repurchase Price of each of the Purchased Loans with respect to which a Transaction Event of Default has occurred and is continuing (but no Facility Event of Default then exists), in each case until the Repurchase Price for each of such Purchased Loans has been reduced to zero; provided, however, that any amounts under this Section 5(e)(iii) representing Principal Payments received by Buyer or Depository shall be allocated (x) first, to the Repurchase Price of the applicable Purchased Loan in respect of which such Principal Payment has been received, until the Repurchase Price for such Purchased Loan has been reduced to zero, and
(y) second, any remaining portion of such Principal Payment shall be allocated to the other Purchased Loans as determined by Buyer in its sole discretion;
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holds any such Underlying Purchased Loan Reserves for a Purchased Loan and Seller would otherwise hold the Underlying Purchased Loan Reserves directly, it shall forward such Underlying Purchased Loan Reserves to the Cash Management Account to be held and applied by Depository in accordance with the Purchased Loan Documents.
Buyer and Seller intend, for all purposes other than those described in Section 22(e) hereof, that all Transactions hereunder be sales to Buyer of the Purchased Loans and not loans from Buyer to Seller secured by the Purchased Loans. However, in the event any such Transaction is deemed to be a loan, 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, or in the event that a transfer of a Purchased Loan is otherwise ineffective to effect an outright transfer of such Purchased Loan to Buyer, each Seller hereby pledges all of its right, title, and interest in, to and under and grants a lien on, and security interest in (which lien and security interest shall be of first priority), all of its right, title, and interest in the following property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located (collectively, the “Collateral”) to Buyer to secure the payment and performance of all other amounts or obligations owing to Buyer pursuant to this Agreement and the other Transaction Documents (the “Repurchase Obligations”) (it being understood that the grant of security interest in any items described below which are otherwise sold to Buyer pursuant to any Transaction hereunder is made to secure Buyer’s interest therein in the event any such Transaction is deemed to be a loan):
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Without limiting the generality of the foregoing, Seller hereby pledges, assigns and grants to Buyer as further security for Seller’s obligations to Buyer hereunder, a continuing first priority security interest in and Lien upon all of its right, title and interest in, to and under each Related Mezzanine Loan, if any, as additional security and as a credit enhancement for payment and performance of the Repurchase Obligations with respect to the related Purchased Loan hereunder, and Buyer shall have all the rights and remedies of a “secured party” under the Uniform Commercial Code with respect thereto. For purposes of the grant of the security interest pursuant to Section 6 hereof, this Agreement shall be deemed to constitute a security agreement under the UCC. Buyer shall have all of the rights and may exercise all of the remedies of a secured creditor under the UCC and the other laws of the State of New York. In furtherance of the foregoing, (a) Buyer, at Seller’s sole cost and expense, shall cause to be filed in such locations as may be necessary to perfect and maintain perfection and priority of the security interest granted hereby, UCC financing statements and continuation statements (collectively, the “Filings”), and shall forward copies of such Filings to Seller upon the filing thereof, and (b) Seller shall from time to time take such further actions as may be reasonably requested by Buyer to maintain and continue the perfection and priority of the security interest granted hereby.
Seller hereby irrevocably authorizes Buyer at any time and from time to time to file in any filing office in any appropriate jurisdiction any initial financing statements and amendments thereto that (1) indicate the Collateral (i) as all Purchased Loans or words of similar effect, regardless of whether the description of the Purchased Loans in such financing statements includes every component set forth in the definition, or (ii) as being of an equal or lesser scope or with greater detail, and (2) contain any other information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including whether Seller is an organization, the type of organization and any organization identification number issued to Seller. Seller also ratifies its authorization for Buyer to have filed in any jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. Without limiting the foregoing, Seller also hereby irrevocably authorizes Buyer and its counsel to file UCC financing statements in form and substance satisfactory to Buyer, describing the collateral as “All assets of Seller and all assets of each series of interests now or hereafter established by Seller or its member, in each case, whether now owned or existing or hereafter acquired or arising and wheresoever located, and all proceeds and products thereof” or words to that effect, and any limitations on such collateral description.
Buyer’s security interest in a Purchased Loan, or the Collateral as a whole, shall terminate only upon (i) in the case of an individual Purchased Loan, the repurchase and release thereof in accordance with this Agreement, and (ii) in the case of the Collateral as a whole, the termination of Seller’s obligations under this Agreement and the documents delivered in connection herewith and therewith. Upon any such termination, Buyer shall deliver to Seller such UCC termination statements and other release documents as may be commercially reasonable to evidence the release of Buyer’s lien on and security interest in the applicable Purchased Loan, or the Collateral, as applicable and to return the Purchased Loan Documents for such Purchased Loan to Seller.
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(ii) any and all fees, costs and expenses including, without limitation, reasonable attorneys’ fees and disbursements payable to Buyer pursuant to Sections 27 or 30(d) hereof in connection with such Transaction. The Servicing Rights and other servicing provisions under this Agreement are not severable from or to be separated from the Purchased Loans under this Agreement. Such Servicing Rights and other servicing provisions of this Agreement constitute (a) ”related terms” under this Agreement within the meaning of Section 101(47)(A)(i) of the Bankruptcy Code and/or
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another name, the signature must be in the following form: “[Last Endorsee], formerly known as [previous name]”).
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filing thereon or copies thereof, and UCC assignments, which UCC assignments shall be in form and substance acceptable for filing.
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originating Person to Seller, in each case with evidence of recording or copies thereof certified by Seller that such financing statements have been sent for filing, and UCC assignments.
(ii) deliver (or cause Servicer to deliver), as applicable, either (x) an additional Re-direction Letter directing such borrower, issuer of a Participation Interest, servicer or paying agent with respect to the Purchased Loan to pay all amounts payable under the related Purchased Loan into the Cash Management Account or (y) if Seller is not required to deliver a Re-direction Letter to such
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borrower, issuer of a Participation Interest, servicer or paying agent with respect to the Purchased Loan under the terms of this paragraph, an additional instruction letter from Seller or Servicer, as applicable, to the borrower, issuer of a Participation Interest, servicer or paying agent with respect to the Purchased Loan under the applicable Purchased Loan, instructing such Person to remit all sums required to be remitted to the holder of the Purchased Loan under the related Purchased Loan Documents to the Servicer for deposit in the Applicable Servicer Account or as otherwise directed in a written notice signed by Seller and Buyer.
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Seller represents and warrants to Buyer that as of the Closing Date and the Amendment and Restatement Date, as of each Purchase Date and as of each date that any funds are remitted by Buyer to Seller hereunder (including any funds remitted by Buyer with respect to Margin Excess) and at all times that this Agreement and any Transaction is in effect; provided that, for purposes hereof, all references to the term “Seller” in this Section 9 hereof shall be deemed to mean and refer to Master Seller together with each Series Seller which is a party to this Agreement as of the date the applicable representation and warranty is made or deemed made:
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expected to result in a Material Adverse Effect. Seller has the power to own and hold the assets it purports to own and hold, to carry on its business as now being conducted and proposed to be conducted, and to execute, deliver, and perform its obligations under this Agreement and the other Transaction Documents.
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entitled to any commission or compensation in connection with the sale of Purchased Loans pursuant to any of the Transaction Documents.
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contemplated business operations. Seller is generally able to pay, and as of the date hereof is paying, its debts as they come due. Seller is not insolvent nor will Seller be made insolvent by virtue of Seller’s execution of or performance under any of the Transaction Documents within the meaning of the bankruptcy laws or the insolvency laws of the United States, the State of New York or any other jurisdiction under which Seller is organized or qualified to do business.
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in accordance with GAAP; no Tax liens have been filed against any Seller’s or Member’s assets and, to the knowledge of Seller, no claims are being asserted with respect to any such Taxes, fees or other charges.
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result that the investment in Seller or Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the entering into this Agreement by Buyer is in violation of law; (b) to the knowledge of Seller, no Prohibited Person has any interest of any nature whatsoever in Seller or Guarantor, as applicable, with the result that the investment in Seller or Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the entering into this Agreement is in violation of law; (c) to the knowledge of Seller, none of the funds of Seller or Guarantor, as applicable, have been derived from any unlawful activity with the result that the investment in Seller or Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the entering into this Agreement is in violation of law; (d) to the knowledge of Seller, neither Seller nor Guarantor has conducted or will conduct any business or has engaged or will engage in any transaction dealing with any Prohibited Person; and (e) neither Seller nor Guarantor is a Prohibited Person or has been convicted of a felony or a crime which if prosecuted under the laws of the United States of America would be a felony.
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each such Servicing Agreement is in full force and effect in accordance with its terms and no default or event of default exists thereunder. Each Servicing Agreement related to any Purchased Loan, may be terminated at will by Seller without payment of any penalty or fee.
During the term of this Agreement and so long as any Transaction is in effect hereunder, Seller shall not without the prior written consent of Buyer (for purposes hereof, all references to the term “Seller” in this Section 10 shall be deemed to mean and refer to Master Seller together with each Series Seller which is a party to this Agreement as of the applicable date):
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a result of a Division of Seller, or pledge, encumber or hypothecate, directly or indirectly (any of the foregoing, a “Transfer”), any interest in the Purchased Loans (or any of them) to any Person other than Buyer, or engage in repurchase transactions or similar transactions with respect to the Purchased Loans (or any of them) with any Person other than Buyer;
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knowledge of Seller, engaged in any business, transaction or dealings with a Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person;
(aa) permit either (i) any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the 1934 Act) to become, or obtain rights (whether by means of warrants, options or otherwise) to become, the beneficial owner, directly or indirectly, of 10% or more of the total ownership interests of Guarantor, entitled to vote generally in the election of the directors (or the applicable equivalent of such Person) or (ii) an Affiliate of the Manager to act as the external manager of Guarantor, unless, in each case, (x) Buyer has completed all “Know Your Customer” and OFAC diligence as to such “person” or “group” or such Affiliate of Manager, as applicable, and (y) the results of such diligence are acceptable to Buyer in its sole discretion; provided that, notwithstanding the foregoing, compliance with this clause (aa) shall not be required in connection with a sale, issurance or transfer of publicly traded shares in Guarantor.
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During the term of this Agreement and so long as any Transaction is in effect hereunder (for purposes hereof, all references to the term “Seller” in this Section 11 shall be deemed to mean and refer to Master Seller together with each Series Seller which is a party to this Agreement as of the applicable date):
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damaged so as, in each case, to materially adversely affect the value of such Mortgaged Property;
$10,000,000 against Guarantor, or (iii) which, individually or in the aggregate, if adversely determined could reasonably be likely to have a Material Adverse Effect; and
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interests granted hereunder and of the rights and powers herein granted (including, among other things, filing such UCC financing statements as Buyer may reasonably request). 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 chattel paper, such note, instrument or chattel paper shall be immediately delivered to Buyer, duly endorsed in a manner reasonably satisfactory to Buyer, to be held as Collateral pursuant to this Agreement, and the documents delivered in connection herewith.
(y) Guarantor is in compliance with the financial covenants set forth in Section 5 of the Guaranty (including a calculation of each such financial covenant).
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(5) Business Days prior to taking any such action.
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Seller hereby represents and warrants to Buyer, and covenants with Buyer, with respect to each of Seller and Member, that as of the Closing Date, the Amendment and Restatement Date and so long as this Agreement or any of the Transaction Documents shall remain in effect (for purposes hereof, all references to the term “Seller” in this Section 12 shall be deemed to mean and refer to Master Seller and each Series Seller which is a party to this Agreement as of the applicable date):
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(ii) in the case of Member, its limited liability company interest in Seller.
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connection with the acquisition, financing or refinancing of the Eligible Loans) or any other Person.
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Manager consents to and serves as an “Independent Manager” for Master Seller and each Series Seller.
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officer of Seller or any other Person; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing.
(aa) It will not have its obligations guaranteed other than as contemplated in the Transaction Documents.
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(45) days, during which period execution of such judgment is not effectively stayed by bonding over or other means acceptable to Buyer;
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(B) permits the acceleration of the maturity of obligations, or the declaration of a mandatory early repurchase date or termination date with respect to indebtedness or obligations of $250,000 or more, by any other party to or beneficiary of such note, indenture, loan agreement, guaranty, repurchase agreement, swap agreement or other contract agreement or transaction; provided, however, that any such default, failure to perform or breach shall not constitute a Facility Event of Default if Seller or Member, as applicable, cures such default, failure to perform or breach, as the case may be, within the grace period, if any, expressly provided under the applicable agreement;
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of (1) delivery of notice of such breach to Seller by Buyer and (2) Seller otherwise having actual knowledge of such breach, Seller either (x) cures such breach if such breach is reasonably susceptible to cure, or (y) terminates the affected Transaction and repurchases the related Purchased Loan in full for the related Repurchase Price therefor;
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Purchased Loan, (ii) any release of material collateral for a Purchased Loan or any guarantor in respect of a Purchased Loan (other than in accordance with the Purchased Loan Documents), or (iii) with respect to a waiver of any material event of default under and as defined in the related Purchased Loan Documents, such breach shall not be considered to be an Event of Default if, within five (5) Business Days following the earlier of (1) delivery of notice of such breach to Seller by Buyer and (2) Seller otherwise having actual knowledge of such breach, Seller either (x) cures such breach if such breach is reasonably susceptible to cure, or (y) terminates the affected Transaction and repurchases the related Purchased Loan in full for the related Repurchase Price therefor;
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out-of-pocket loss, damage, cost or expense directly arising or resulting from the occurrence of an Event of Default.
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payable on and as of the Accelerated Transaction Repurchase Date; and
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Buyer acknowledges that Master Seller is organized as a series limited liability company under Section 18-215 of the Delaware Limited Liability Company Act. Notwithstanding that this Agreement and the other Transaction Documents have been executed on behalf of Seller without reference to any particular Series Seller, Buyer agrees to treat each Transaction under this Agreement as the obligation of the particular Series Seller of Master Seller that enters into the Transaction for the related Purchased Loan(s). Provided that no Facility Event of Default shall have occurred and be continuing hereunder, the Repurchase Obligations of any Series Seller relating to or arising from the Transaction(s) to which such Series Seller is a party shall be enforceable only against such Series Seller and with respect to the Purchased Loan(s) relating to such Transaction(s) and not against any other Series Seller or any other Purchased Loan. Notwithstanding the foregoing or anything to the contrary contained in this Agreement or any other Transaction Document, Buyer shall be entitled to exercise any and all remedies available to Buyer under Section 13(b) hereof against Seller and any and all Purchased Loans subject to Transactions hereunder upon the occurrence and continuance of a Facility Event of Default.
EACH OF BUYER AND SELLER SHALL HAVE THE RIGHT (BUT NOT THE OBLIGATION) 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 THE APPLICABLE PARTY. EACH OF BUYER AND SELLER HEREBY CONSENTS TO THE ADMISSIBILITY OF SUCH TAPE RECORDINGS IN ANY COURT, ARBITRATION, OR OTHER PROCEEDINGS, IF AND TO THE EXTENT CONSISTENT WITH APPLICABLE LAW AND THE RULES OF COURT AND EVIDENCE.
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 hand delivered or sent by (a) hand delivery, with proof of attempted delivery, (b) certified or registered United States mail, postage prepaid, (c) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or (d) by telecopy (with answerback acknowledged) or email provided that such telecopy or email notice must also be delivered by one of the means set forth in (a), (b) or (c) above, to the address specified in Annex I hereto or at such other address and person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section 16. A notice shall be deemed to have been given: (a) in the case of hand delivery, at the time of delivery, (b) in the case of registered or certified mail, when delivered on a Business Day, (c) in the case of expedited prepaid delivery upon delivery on a Business Day, or (d) in the case of telecopy or email, upon receipt of answerback confirmation or upon transmission,
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respectively; provided that (i) such telecopy or email notice was also delivered by one of the means set forth in (a), (b) or (c) above (which may arrive after such telecopy or email), and (ii) the transmitting party did not receive an electronic notice of a transmission failure. A party receiving a notice which does not comply with the technical requirements for notice under this Section 16 may elect to waive any deficiencies and treat the notice as having been properly given.
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. Each party agrees that (a) each Transaction is in consideration of and in reliance on the fact that all Transactions constitute a single business and contractual relationship, and that each Transaction has been entered into in consideration of the other Transactions, (b) a default by it in the payment or performance of any its obligations under a Transaction shall constitute a default by it with respect to all Transactions, (c) Buyer may set off claims and apply properties and assets held by or on behalf of Buyer with respect to any Transaction against the Repurchase Obligations owing to Buyer with respect to other Transactions, and (d) payments, deliveries and other transfers made by or on behalf of any party with respect to any Transaction shall be deemed to have been made in consideration of payments, deliveries and other transfers with respect to all Transactions, and the obligations of each party to make any such payments, deliveries and other transfers may be applied against each other and netted.
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of its rights and obligations to any Prohibited Transferee without notice to or consent of Seller, and otherwise may assign or grant participations without limitations, restrictions or conditions of any kind. Seller shall reasonably cooperate at Buyer’s sole cost and expense with Buyer in connection with any assignment or participation, provided Seller’s obligations under such Transaction are not increased and its rights under such Transaction are not impaired. Seller agrees that any assignee or participant shall be entitled to the benefits of Sections 3(i) and 29 hereof (subject to the limitations and requirements under Section 29 hereof (it being understood that the applicable documentation required under Section 29(e) hereof shall be delivered to the participating Buyer)); provided that, no assignee or participant will be entitled to any greater payment under Sections 3(i) or 29 hereof, than its assignor or participating Buyer would have been entitled to receive with respect to the applicable assigned or participated rights and obligations, except to the extent such entitlement to receive a greater payment results from the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by a Governmental Authority or compliance by Buyer, assignee or such participant with a request or directive (whether or not having the force of law) from a central bank or other Governmental Authority having jurisdiction over Buyer, such assignee or such participant, in each case made or issued after the participant or assignee acquired the applicable interest.
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This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflict of law principles thereof (except for Section 5-1401 of the New York General Obligations Law).
No express or implied waiver of any Default or Event of Default by Buyer shall constitute a waiver of any other Default or Event of Default and no exercise of any right or remedy hereunder by Buyer shall constitute a waiver of its right to exercise any other right or remedy hereunder. No modification or waiver of any provision of this Agreement and no consent by any party to a departure herefrom shall be effective unless and until such shall be in writing and duly executed by both of the parties hereto. Without limitation of the foregoing, the failure to give a notice pursuant to Section 4(b) or 4(c) hereof will not constitute a waiver of any right to do so at a later date.
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Bankruptcy Code. It is further understood and agreed that either party’s right to cause the termination, liquidation, or acceleration of, or to offset net termination values, payment amounts or other transfer obligations arising under or in connection with, this Agreement or any Transaction hereunder is a contractual right to cause the termination, liquidation, or acceleration of, or to offset net termination values, payment amounts or other transfer obligations arising under or in connection with, this Agreement as described in Section 561 of the Bankruptcy Code.
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defined in FDIA and any rules, orders or policy statements thereunder (except insofar as the type of assets subject to such Transaction would render such definition inapplicable).
The parties acknowledge that they have been advised that:
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or the underlying collateral. Buyer’s view is based on economic, market and other conditions as in effect on, and the information made available to Buyer as of, the date of any such determination or communication of information, and such view may change at any time without prior notice to Seller.
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Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to the Purchased Loans, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable prior written notice to Seller, Buyer or its authorized representatives will be permitted during normal business hours to examine, inspect, and make copies and extracts of, the Purchased Loan Files, Servicing Records and any and all documents, records, agreements, instruments or information relating to such Purchased Loans in the possession or under the control of Seller, any other servicer or subservicer and/or Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering financial or accounting questions respecting the Purchased Loan Files and the Purchased Loans. Seller acknowledges and agrees that Buyer has the right to request, at Seller’s expense, a new Appraisal for any Mortgaged Property securing a Purchased Loan upon the occurrence of a Credit Event relating to such Purchased Loan or upon an Event of Default, but not more than once in any six (6) month period.
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Prior to the occurrence of either a Credit Event or a Facility Event of Default, Buyer may also request one (1) Appraisal during any consecutive twenty-four month period for the related Mortgaged Property at Seller’s expense. 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, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Loans. Buyer may underwrite such Purchased Loans itself or engage a third party underwriter to perform such underwriting. Seller agrees to reasonably cooperate with Buyer and any third party underwriter reasonably acceptable to Seller 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, financial models, agreements, instruments or information relating to such Purchased Loans in the possession, or under the control, of Seller (excluding internal rate of return or other internal metrics relating to the profitability of Guarantor or Seller).
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Notice and Agreement substantially in the form of Exhibit IX attached hereto (a “Servicer Notice and Agreement”) acknowledging Buyer’s interests in the related Purchased Loans and its rights to sell such Purchased Loans on a servicing-released basis and to terminate the term of such Servicing Rights with respect to any Purchased Loans sold by Buyer from and after an Event of Default. Master Seller shall cause the Purchased Loans to be serviced in accordance with Accepted Servicing Practices approved by Buyer in its reasonable discretion and practiced by other prudent mortgage lenders with respect to mortgage loans similar to the Purchased Loans. Master Seller shall not, and shall not direct or permit any Servicer to, enter into, consent to or approve any amendment, modification or termination, or waiver of any term or provision, of any Purchased Loan or Purchased Loan Documents which constitutes a Material Action or take any other Material Action without Buyer’s prior written consent.
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files, records, correspondence and documents in its possession relating to the applicable Purchased Loans and (iii) use commercially reasonable efforts to cooperate and coordinate with the successor servicer and/or Buyer to comply with any applicable legal or regulatory requirement associated with the transfer of the servicing of the applicable Purchased Loans. Seller agrees that if either Seller or any such Servicer fails to cooperate with Buyer or any successor servicer in effecting the termination of such Servicer as servicer of any Purchased Loan or the transfer of all authority to service such Purchased Loan to such successor servicer in accordance with the terms hereof and the applicable Servicing Agreement, Buyer shall be entitled to injunctive relief.
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(ii) Without limiting the generality of the foregoing,
U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
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a U.S. Tax Compliance Certificate substantially in the form of Exhibit XI-2 or Exhibit XI-3 or IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Buyer is a partnership and one or more direct or indirect partners of such Foreign Buyer are claiming the portfolio interest exemption, such Foreign Buyer may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit XI-4 on behalf of each such direct and indirect partner;
U.S. federal withholding Tax imposed by FATCA if Buyer were to fail to comply with the applicable reporting requirements of FATCA (including those contained in section 1471(b) or 1472(b) of the Code, as applicable), Buyer shall deliver to Seller at the time or times prescribed by law and at such time or times reasonably requested by Seller such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Seller as may be necessary for Seller to comply with its obligations under FATCA and to determine that Buyer has complied with Buyer’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D),
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“FATCA” shall include all amendments made to FATCA after the date of this Agreement.
Buyer agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Seller in writing of its legal inability to do so.
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(x) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority; (y) any entity established in an EEA Member Country which is a parent of an institution described in clause (x) of this definition, or (x) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (x) or (y) of this definition and is subject to consolidated supervision with its parent; (iv) “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway or any other member state of the European Economic Area; (v) “EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution; (vi) “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time; and (vii) “Write- Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write- down and conversion powers of such EEA Resolution Authority from time to time under the Bail- In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
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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.
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[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first written above.
MASTER SELLER:
CMTG DB FINANCE LLC, a Delaware limited liability company, organized in a series
By:
Name: J. Michael McGillis
Title: Authorized Signatory
[Signatures Continue on Following Page]
Master Repurchase Agreement [Mack Real Estate Group]
BUYER:
DEUTSCHE BANK AG, NEW YORK BRANCH
By:
Name: Tom Rugg
Title: Managing Directo
By:
Name: Chris Jones
Title: Director
[Signature Page to Amended and Restated Master Repurchase Agreement (DB - Mack)]
ANNEXES, EXHIBITS AND SCHEDULES
ANNEX I Names and Addresses for Communications between Parties
EXHIBIT I Form of Confirmation
EXHIBIT II Authorized Representatives of Seller
EXHIBIT III [reserved]
EXHIBIT IV Form of Custodial Delivery
EXHIBIT V Form of Power of Attorney
EXHIBIT VI Representations and Warranties Regarding Individual Purchased Loans
EXHIBIT VII Organizational Chart
EXHIBIT VIII Transaction Procedures
EXHIBIT IX Form of Servicer Notice and Agreement
EXHIBIT X Form of Joinder Agreement
EXHIBIT XI U.S. Tax Compliance Certificates
Master Repurchase Agreement [Mack Real Estate Group]
ANNEX I
Names and Addresses for Communications Between Parties
Buyer:
Deutsche Bank AG, New York Branch US Commercial Real Estate
1 Columbus Circle, 15th Floor Mail Stop: NYC01-1530
New York, New York 10019 Attention: Tom Rugg Telephone: (212) 250-3541
Telecopy: (212) 797-5630 Email: tom.rugg@db.com With copies to:
Deutsche Bank AG, New York Branch US Commercial Real Estate
1 Columbus Circle, 15th Floor Mail Stop: NYC01-1530
New York, New York 10019 Attention: General Counsel
and
Deutsche Bank AG, New York Branch US Commercial Real Estate
1 Columbus Circle, 15th Floor Mail Stop: NYC01-1530
New York, New York 10019 Attention: Robert W. Pettinato Jr. Telephone: (212) 797-0286
Telecopy: (212) 797-5630
Email: robert.pettinato@db.com
and
Cadwalader, Wickersham & Taft LLP 650 South Tryon Street
Master Repurchase Agreement [Mack Real Estate Group]
Annex I-1
Charlotte, NC 28202 Attention: Aaron Benjamin
Telephone: (704) 348-5384
Email: aaron.benjamin@cwt.com
Seller:
CMTG DB FINANCE LLC
c/o Mack Real Estate Credit Strategies
60 Columbus Circle, 20th Floor
New York, New York 10023 Attention: Michael McGillis
Telephone: (212) 484-0033
Email: Mmcgillis@mackregroup.com
With copies to:
Ropes & Gray LLP
1211 Avenue of the Americas New York, New York 10036 Attention: Daniel L. Stanco
Email: Daniel.Stanco@ropesgray.com Telephone: (212) 841-5758
Master Repurchase Agreement [Mack Real Estate Group]
Annex I-2
EXHIBIT I
CONFIRMATION STATEMENT DEUTSCHE BANK AG,
New York Branch
Ladies and Gentlemen:
Deutsche Bank AG, New York Branch, is pleased to deliver our written CONFIRMATION of our agreement to enter into the Transaction pursuant to which Deutsche Bank AG, New York Branch shall purchase from you the Purchased Loans identified on Schedule 1 attached hereto, pursuant to the terms of that certain Amended and Restated Master Repurchase Agreement, dated as of August 17, 2022 (as amended, modified and/or restated, the “Agreement”), between Deutsche Bank AG, New York Branch (“Buyer”) and CMTG DB Finance LLC (“Master Seller”; together with the Series Seller (as defined in the Agreement) identified below, collectively, “Seller”). Capitalized terms used herein without definition have the meanings given in the Agreement.
Series Seller: [ ]
Purchase Date: [ ]
Purchased Loan: [ ]
Principal Balance of Purchased Loan: [ ]
Repurchase Date: [ ] (provided, if the Facility Termination Date is extended pursuant to Section 3 of the Letter Agreement, the Repurchase Date shall automatically be extended to such date)
Purchase Date Market Value: [ ]
Purchase Date Market Value Percentage: [ ]
Actual Original Purchase Percentage: [ ]
Maximum Original Purchase Percentage: [ ]
Purchase Price: [ ]
Initial Pricing Rate: [ ]
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit I-1
Applicable Spread: [ ]
Servicer [ ]
Additional Confirmation
Conditions: [ ]
Representations and Warranties: See Schedule 2 attached hereto
Exceptions to Representations and See Schedule 3 attached hereto
Warranties:
Name and address for Buyer:
communications: Deutsche Bank AG, New York Branch
US Commercial Real Estate
1 Columbus Circle, 15th Floor
Mail Stop: NYC01-1530
New York, New York 10019
Attention: Tom Rugg
Telephone: (212) 250-3541
Telecopy: (212) 797-5630
Email: tom.rugg@db.com
With copies to:
Deutsche Bank AG, New York Branch
US Commercial Real Estate
1 Columbus Circle, 15th Floor
Mail Stop: NYC01-1530
New York, New York 10019
Attention: General Counsel
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit I-2
and
Deutsche Bank AG, New York Branch US Commercial Real Estate
1 Columbus Circle, 15th Floor Mail Stop: NYC01-1530
New York, New York 10019 Attention: Robert W. Pettinato Jr. Telephone: (212) 250-5579
Telecopy: (212) 797-0286
Email: robert.pettinato@db.com and
Deutsche Bank AG, New York Branch US Commercial Real Estate
1 Columbus Circle, 15th Floor Mail Stop: NYC01-1530
New York, New York 10019 Attention:
Telephone: (212) 250-
Telecopy: (212) 797-5630 Email:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit I-3
Seller:
CMTG DB FINANCE LLC
c/o Mack Real Estate Credit Strategies 60 Columbus Circle, 20th Floor
New York, New York 10023 Attention: [ ] Telephone:
Email:
With copies to:
Ropes & Gray LLP
1211 Avenue of the Americas New York, New York 10036 Attention: Daniel L. Stanco
Email: Daniel.Stanco@ropesgray.com Telephone: (212) 841-5758
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit I-4
Additional Terms and Conditions:
[TO BE PROVIDED BY DB IF APPLICABLE]
[SIGNATURE PAGES FOLLOW]
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit I-5
BUYER:
DEUTSCHE BANK AG, NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit I-6
AGREED AND ACKNOWLEDGED:
MASTER SELLER:
CMTG DB FINANCE LLC, a Delaware limited liability company, organized in a series
By:
Name:
Title:
SERIES SELLER:
[ ] – SERIES [ ],
a series of CMTG DB FINANCE LLC, a Delaware limited liability company
By:
Name: Title:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit I-7
SCHEDULE 1 TO CONFIRMATION (PURCHASED LOAN)
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit I-8
SCHEDULE 2 TO CONFIRMATION (REPRESENTATIONS AND WARRANTIES)
[** Exhibit VI to Master Repurchase Agreement then in effect to be attached.**]
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit I-9
SCHEDULE 3 TO CONFIRMATION (EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES)
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit I-10
EXHIBIT II
AUTHORIZED REPRESENTATIVES OF SELLER
Name Specimen Signature
Richard J. Mack, Authorized Signatory
J. Michael McGillis, Authorized Signatory Priyanka Garg, Authorized Signatory Kevin Cullinan, Authorized Signatory
J.D. Siegel, Authorized Signatory Jai Agarwal, Authorized Signatory
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit II-1
EXHIBIT III
[reserved]
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit III-1
EXHIBIT IV
FORM OF CUSTODIAL DELIVERY
On this day of , 20 , CMTG DB Finance LLC (“Master Seller”), as Master Seller under that certain Amended and Restated Master Repurchase Agreement (as amended, modified and/or restated, the “Repurchase Agreement”), dated as of August 17, 2022, between and among Deutsche Bank AG, New York Branch (as successor to Deutsche Bank AG, Cayman Islands Branch, “Buyer”), Master Seller and [ ] (“Series Seller”), does hereby deliver to Wells Fargo Bank, National Association (“Custodian”), as custodian under that certain Custodial Agreement, dated as of June 26, 2019 (as amended, modified and/or restated, the “Custodial Agreement”), between and among Buyer, Custodian and Master Seller, the Purchased Loan Files with respect to the Purchased Loans to be purchased by Buyer pursuant to the Repurchase Agreement, which Purchased Loans are listed on the Purchased Loan Schedule attached hereto and which Purchased Loans shall be subject to the terms of the Custodial Agreement on the date hereof.
With respect to the Purchased Loan Files delivered hereby, for the purposes of issuing the Trust Receipt, Custodian shall review the Purchased Loan Files to ascertain delivery of the documents listed in 2.01(a) to the Custodial Agreement.
Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Custodial Agreement.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit IV-1
IN WITNESS WHEREOF, each of Master Seller and Series Seller have caused its name to be signed hereto by its officer thereunto duly authorized as of the day and year first above written.
MASTER SELLER:
CMTG DB FINANCE LLC, a Delaware
limited liability company, organized in a series
By:
Name:
Title:
SERIES SELLER:
[ ] – SERIES [ ], a
series of CMTG DB FINANCE LLC, a
Delaware limited liability company
By:
Name:
Title:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit IV-2
EXHIBIT V
FORM OF POWER OF ATTORNEY
Know All Men by These Presents, that CMTG DB FINANCE LLC, a Delaware limited liability company (“Master Seller”), on behalf of itself and each Series Seller (as defined in the Repurchase Agreement (hereinafter defined)) (Master Seller together with each Series Seller which may hereafter be a party to the Repurchase Agreement, collectively, “Seller”) does hereby appoint Deutsche Bank AG, New York Branch (“Buyer”) its attorney-in-fact during the continuance of an Event of Default to act in Seller’s name, place and stead in any way that Seller could do with respect to (i) the completion of the endorsements of the Purchased Loans, including without limitation the Mortgage Notes, Assignments of Mortgages, Mezzanine Notes and any transfer documents related thereto, (ii) the recordation of the Assignments of Mortgages, (iii) the preparation and filing, in form and substance satisfactory to Buyer, of such financing statements, continuation statements, and other uniform commercial code forms, as Buyer may from time to time, reasonably consider necessary to create, perfect, and preserve Buyer’s security interest in the Purchased Loans and (iv) the enforcement of Seller’s rights under the Purchased Loans purchased by Buyer pursuant to the Amended and Restated Master Repurchase Agreement, dated as of August 17, 2022, by and between Seller and Buyer (as amended, restated, supplemented or otherwise modified and in effect from time to time, the “Repurchase Agreement”), between Buyer and Seller, and to take such other steps as may be necessary or desirable to enforce Buyer’s rights against such Purchased Loans, the related Purchased Loan Files and the Servicing Records to the extent that Seller is permitted by law to act through an agent. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed thereto in the Repurchase Agreement.
TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, SELLER HEREBY AGREES THAT ANY THIRD PARTY RECEIVING A DULY EXECUTED COPY OR FACSIMILE OF THIS INSTRUMENT MAY ACT HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE INEFFECTIVE AS TO SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE OR SUCH REVOCATION OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY, AND SELLER ON ITS OWN BEHALF AND ON BEHALF OF SELLER’S ASSIGNS, HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND AGAINST ANY AND ALL CLAIMS THAT MAY ARISE AGAINST SUCH THIRD PARTY BY REASON OF SUCH THIRD PARTY HAVING RELIED ON THE PROVISIONS OF THIS INSTRUMENT.
THIS POWER OF ATTORNEY IS COUPLED WITH AN INTEREST AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit V-1
CMTG DB FINANCE LLC, a Delaware limited liability company, organized in a series
By:
Name:
Title:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit V-2
EXHIBIT VI
PART I: REPRESENTATIONS AND WARRANTIES REGARDING INDIVIDUAL PURCHASED LOANS
With respect to each Purchased Loan, Seller hereby represents and warrants, as of the date herein specified or, if no such date is specified, as of the Purchase Date, \that:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-1
Except as set forth in the immediately preceding sentence, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Purchased Loan Documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Seller in connection with the origination of the Purchased Loan, that would deny the mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Purchased Loan Documents.
(c) neither the related Mortgagor nor the related guarantor has been released from its material obligations under the Purchased Loan. With respect to each Purchased Loan File, except as contained in a written document included in the Purchased Loan File, there have been no modifications, amendments or waivers, that could be reasonably expected to have a material adverse effect on such Purchased Loan consented to by Seller on or after the related Purchase Date.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-2
legal, valid and binding assignment from Seller. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee or leasehold interest in the Mortgaged Property in the principal amount of such Purchased Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph (7) (each such exception, a “Title Exception”)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to and excepting Permitted Encumbrances and the Title Exceptions) as of origination was, and as of the Purchase Date, to Seller’s knowledge, is free and clear of any recorded mechanics’ liens, recorded materialmen’s liens and other recorded encumbrances which are prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below), and, to Seller’s knowledge and subject to the rights of tenants (as tenants only) (subject to and excepting Permitted Encumbrances and the Title Exceptions), no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below). Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of UCC financing statements is required in order to effect such perfection.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-3
due (collectively, the “Permitted Encumbrances”). Except as contemplated by clause (f) of the preceding sentence, none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by Seller thereunder and no claims have been paid thereunder. Neither Seller, nor to Seller’s knowledge, any other holder of the Purchased Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-4
enforceable lien and security interest on the items of personalty described above. No representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of UCC financing statements are required in order to effect such perfection.
An engineering report or property condition assessment was prepared in connection with the origination of each Purchased Loan no more than twelve (12) months prior to the Purchase Date. To Seller’s knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Purchase Date, each related Mortgaged Property was free and clear of any material damage (other than (i) any damage or deficiency that is estimated to cost less than $50,000 to repair, (ii) any deferred maintenance for which escrows were established at origination and (iii) any damage fully covered by insurance) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Purchased Loan.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-5
guaranty, (e) the principal benefit of the security intended to be provided by the Purchased Loan Documents or (f) the current principal use of the Mortgaged Property.
Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Purchased Loan Documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to each Purchased Loan on a single asset with a principal balance of $50 million or more, 18 months).
If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in the maximum amount available under the National Flood Insurance Program, plus such additional excess flood coverage in an amount as is generally required by Seller for comparable mortgage loans intended for securitization.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-6
If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils and/or “named storms” issued by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms, in an amount not less than the lesser of (1) the original principal balance of the Purchased Loan and (2) the full insurable value on a replacement cost basis of the improvements and personalty and fixtures owned by the Mortgagor and included in the related Mortgaged Property by an insurer meeting the Insurance Rating Requirements.
The Mortgaged Property is covered, and required to be covered pursuant to the related Purchased Loan Documents, by a commercial general liability insurance policy issued by an insurer meeting the Insurance Rating Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by Seller for loans originated for securitization, and in any event not less than
$1 million per occurrence and $2 million in the aggregate.
An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the structural and seismic condition of such property, for the sole purpose of assessing either the scenario expected limit (“SEL”) or the probable maximum loss (“PML”) for the Mortgaged Property in the event of an earthquake. In such instance, the SEL or PML, as applicable, was based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If the resulting report concluded that the SEL or PML, as applicable, would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained by an insurer rated at least “A:VIII” by A.M. Best Company or “A3” (or the equivalent) from Moody’s or “A-” by S&P in an amount not less than 100% of the SEL or PML, as applicable.
The Purchased Loan Documents require insurance proceeds in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then outstanding principal amount of the related Purchased Loan (or whole loan, if applicable) the lender (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Purchased Loan (or whole loan, if applicable) together with any accrued interest thereon.
All premiums on all insurance policies referred to in this section required to be paid as of the Purchase Date have been paid, and such insurance policies name the lender under the Purchased Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of Buyer. Each related Purchased Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the lender to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the lender of termination or cancellation arising
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-7
because of nonpayment of a premium and at least 30 days prior notice to the lender of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by Seller.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-8
amount of the Purchased Loan and (B) either: (a) such Purchased Loan is secured by an interest in real property (including permanently affixed buildings and structural components, such as wiring, plumbing systems and central heating and air conditioning systems, that are integrated into such buildings, serve such buildings in their passive functions and do not produce or contribute to the production of income other than consideration for the use or occupancy of space, but excluding personal property) having a fair market value (i) at the date the Purchased Loan (or related whole loan, if applicable) was originated at least equal to 80% of the adjusted issue price of the Purchased Loan (or related whole loan, as applicable) on such date or (ii) at the Purchase Date at least equal to 80% of the adjusted issue price of the Purchased Loan (or whole loan, if applicable) on such date, provided that for purposes hereof, the fair market value of the real property interest must first be reduced by (A) the amount of any lien on the real property interest that is senior to the Purchased Loan and (B) a proportionate amount of any lien on the real property interest that is in parity with the Purchased Loan (or whole loan, if applicable); or (b) substantially all of the proceeds of such Purchased Loan were used to acquire, improve or protect the real property which served as the only security for such Purchased Loan (other than a recourse feature or other third-party credit enhancement within the meaning of Section 1.860G-2(a)(1)(ii)) of the Treasury Regulations. If the Purchased Loan was “significantly modified” prior to the Purchase Date so as to result in a taxable exchange under Section 1001 of the Code, it either (x) was modified as a result of the default or reasonably foreseeable default of such Purchased Loan or (y) satisfies the provisions of either sub-clause (B)(a)(i) above (substituting the date of the last such modification for the date the Purchased Loan was originated) or sub-clause (B)(a)(ii), including the proviso thereto. Any prepayment premium and yield maintenance charges applicable to the Purchased Loan constitute “customary prepayment penalties” within the meaning of Section 1.860G-1(b)(2) of the Treasury Regulations. All terms used in this paragraph shall have the same meanings as set forth in the related Treasury Regulations.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-9
report, an endorsement to the related Title Policy, or other affirmative investigation of local law compliance consistent with the investigation conducted by Seller for similar commercial, multifamily or, if applicable, manufactured housing community mortgage loans intended for securitization, with respect to the improvements located on or forming part of each Mortgaged Property securing a Purchased Loan as of the date of origination of such Purchased Loan and as of the Purchase Date, there are no material violations of applicable zoning ordinances, building codes and land laws (collectively “Zoning Regulations”) other than those which (i) constitute a legal non-conforming use or structure, as to which the Mortgaged Property may be restored or repaired to the full extent necessary to maintain the use of the structure immediately prior to a casualty or the inability to restore or repair to the full extent necessary to maintain the use or structure immediately prior to the casualty would not materially and adversely affect the use or operation of the Mortgaged Property, (ii) are insured by the Title Policy or other insurance policy,
(iii) are insured by law and ordinance insurance coverage in amounts customarily required by Seller for loans originated for securitization that provides coverage for additional costs to rebuild and/or repair the property to current Zoning Regulations or (iv) would not have a material adverse effect on the Purchased Loan. The terms of the Purchased Loan Documents require the Mortgagor to comply in all material respects with all applicable governmental regulations, zoning and building laws.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-10
partial Defeasance (as defined in paragraph (33)), in each case, of not less than a specified percentage at least equal to the lesser of (i) 110% of the related allocated loan amount of such portion of the Mortgaged Property and (ii) the outstanding principal balance of the Purchased Loan, (b) upon payment in full of such Purchased Loan, (c) upon a Defeasance (as defined in paragraph (33)), (d) releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the Appraisal obtained at the origination of the Purchased Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation or taking by a state or any political subdivision or authority thereof. With respect to any partial release (including in connection with any partial Defeasance) under the preceding clauses (a) or (d), either: (x) such release of collateral (i) would not constitute a “significant modification” of the subject Purchased Loan within the meaning of Section 1.860G-2(b)(2) of the Treasury Regulations and (ii) would not cause the subject Purchased Loan to fail to be a “qualified mortgage” within the meaning of Code Section 860G(a)(3)(A); or (y) the mortgagee or servicer can, in accordance with the related Purchased Loan Documents, condition such release of collateral on the related Mortgagor’s delivery of an opinion of tax counsel to the effect specified in the immediately preceding clause (x). For purposes of the preceding clause (x), if the fair market value of the real property constituting such Mortgaged Property after the release (reduced by (A) the amount of any lien on the real property interest that is senior to the Purchased Loan and (B) a proportionate amount of any lien on the real property interest that is in parity with the Purchased Loan or whole loan, if applicable) after the release is not equal to at least 80% of the principal balance of the Purchased Loan (or Senior Interest or Junior Interest, as applicable) outstanding after the release, the Mortgagor is required to make a payment of principal in an amount not less than the amount required by the REMIC Provisions (as defined below).
In the case of any Purchased Loan, in the event of a condemnation or taking of any portion of a Mortgaged Property by a state or any political subdivision or authority thereof, whether by legal proceeding or by agreement, the Mortgagor can be required to pay down the principal balance of the Purchased Loan in an amount not less than the amount required by the REMIC Provisions and, to such extent, condemnation proceeds may not be required to be applied to the restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property (reduced by (A) the amount of any lien on the real property that is senior to the Purchased Loan and (B) a proportionate amount of any lien on the real property interest that is in parity with the Purchased Loan or whole loan, if applicable) not equal to at least 80% of the remaining principal balance of the Purchased Loan (or Senior Interest or Junior Interest, as applicable).
No Purchased Loan that is secured by more than one Mortgaged Property or that is a Crossed Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof including due to a partial condemnation, other than in compliance with the loan-to-value ratio and other requirements of the REMIC Provisions.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-11
$20 million, the related special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended by the Terrorism Risk Insurance Program Reauthorization Act of 2007, as amended by the Terrorism Risk Insurance Program Reauthorization Act of 2015 (collectively referred to as “TRIA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each other Purchased Loan, the related special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) did not, as of the date of origination of the Purchased Loan, and, to Seller’s knowledge, do not, as of the Purchase Date, specifically exclude Acts of Terrorism, as defined in TRIA, from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy. With respect to each Purchased Loan, the related Purchased Loan Documents do not expressly waive or prohibit the mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIA, or damages related thereto except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms; provided, however, that if TRIA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the Mortgagor under each Purchased Loan is required to carry terrorism insurance, but in such event the Mortgagor shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Purchased Loan Documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at such time, and if the cost of terrorism insurance exceeds such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-12
with property of equivalent value and functionality and transfers by leases entered into in accordance with the Purchased Loan Documents), (a) the related Mortgaged Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or indirectly pledged, transferred or sold, other than as related to (i) family and estate planning transfers or transfers upon death or legal incapacity, (ii) transfers to certain affiliates as defined in the related Purchased Loan Documents, (iii) transfers of less than, or other than, a controlling interest in the related Mortgagor,
(iv) transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Purchased Loan Documents or a Person satisfying specific criteria identified in the related Purchased Loan Documents, such as a qualified equityholder, (v) transfers of stock or similar equity units in publicly traded companies, (vi) a substitution or release of collateral within the parameters of paragraphs (28) and (33) herein or (vii) by reason of any mezzanine debt that existed at the origination of the related Purchased Loan or future permitted mezzanine debt (and which is disclosed in writing to Buyer and approved by Buyer in its sole discretion prior to the Purchase Date of such Purchased Loan), or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any subordinate debt that existed at origination and is permitted under the related Purchased Loan Documents, (ii) purchase money security interests, (iii) any Crossed Mortgage Loan, or (iv) Permitted Encumbrances. The Mortgage or other Purchased Loan Documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-13
With respect to any Purchased Loan where the Purchased Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-14
Lease and any estoppel or other agreement received from the ground lessor in favor of Seller, its successors and assigns, Seller represents and warrants that:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-15
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-16
(a) or clause (b), materially and adversely affects the value of the Purchased Loan or the value, use or operation of the related Mortgaged Property, provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by Seller in this Exhibit VI (including, but not limited to, the prior sentence). No person other than the holder of such Purchased Loan may declare any event of default under the Purchased Loan or accelerate any indebtedness under the Purchased Loan Documents.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-17
conditions (as such term is defined in ASTM E1527-05 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation with respect to any Environmental Condition that was identified, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true: (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related lender; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, and the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated or abated in all material respects prior to the date hereof, and, if and as appropriate, a no further action or closure letter was obtained from the applicable governmental regulatory authority (or the Environmental Condition affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action is required); (D) a secured creditor environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the Environmental Condition was obtained from an insurer rated no less than A- (or the equivalent) by Moody’s, S&P and/or Fitch; (E) a party not related to the Mortgagor was identified as the responsible party for such Environmental Condition and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having financial resources reasonably estimated to be adequate to address the situation is required to take action. To Seller’s knowledge, except as set forth in the ESA, there is no Environmental Condition (as such term is defined in ASTM E1527-05 or its successor) at the related Mortgaged Property.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-18
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-19
force and effect, and there is a collateral assignment of the licenses, permits and approvals to Seller as additional collateral for the Construction Loan.
(i) no existing defaults, (ii) Mortgagor’s submission of a draw request, (iii) minimum disbursements of $25,000, (iv) maximum disbursement requests of once per month, (v) at Buyer’s option, an inspection and approval of the improvements by Buyer’s independent consultant, (vi) Mortgagor’s certification that there are no existing defaults, that all work covered by the draw request has been completed in a good and workmanlike manner in accordance with the Plans and Specifications, and that all such work has been in compliance with all applicable local, state and federal laws, and regulations, including, without limitation, all applicable zoning laws, (vii) receipt of lien waivers, sworn statements and other documentation as Buyer shall reasonably request, (viii) Mortgagor causing to be delivered, at Mortgagor’s sole cost and expense, a “Date-Down Endorsement” to the Title Policy showing no new title exceptions other than the Permitted Encumbrances, (ix) evidence that the project is proceeding on schedule in accordance with the construction timeline, Mortgagor’s and Guarantor’s representations being true and correct on the date of the advance, the loan being “in balance” and (x) all such documents shall be reasonably satisfactory to Buyer.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-20
engineer and, at Buyer’s option, a report from Buyer’s architect or engineer that all work (including, without limitation, all punchlist items) has been completed in a good and workmanlike manner and has been in compliance with all applicable local, state and federal laws, and regulations; (iv) Buyer’s receipt of evidence reasonably satisfactory to Buyer that all construction costs associated with the project shall, upon making the final funding, have been paid in full, (v) final, unconditional lien waivers from the general contractor and/or construction manager and all trade contractors; (vi) receipt of “as built” survey; (vii) receipt of “as built” Plans and Specifications; and (viii) the filing by Mortgagor of a notice of completion, as applicable.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-21
or not Buyer’s approval of such Project Change is required or has been obtained) the Loan will no longer be in balance, then Mortgagor must also comply with paragraph 56 above.
$1,000,000.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-22
For purposes of this Exhibit VI, the following terms shall have the following meanings: “Anticipated Repayment Date”: With respect to any Purchased Loan that is indicated on
the Purchased Loan Schedule as having a Revised Rate, the date upon which such Purchased Loan commences accruing interest at such Revised Rate.
“ARD Loan”: Any Purchased Loan the terms of which provide that if, after an Anticipated Repayment Date, Mortgagor has not prepaid such Purchased Loan in full, any principal outstanding on that date will accrue interest at the Revised Rate rather than the Initial Rate.
“REMIC Provisions”: Provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Section 860A through 860G of Subchapter M of Chapter 1 of the Code, and related provisions, and regulations (including any applicable proposed regulations) and rulings promulgated thereunder, as the foregoing may be in effect from time to time.
“Revised Rate”: With respect to those Purchased Loans on the Purchased Loan File indicated as having a revised rate, the increased interest rate after the Anticipated Repayment Date
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-23
(in the absence of a default) for each applicable Purchased Loan, as calculated and as set forth in the related Purchased Loan Documents.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-24
EXHIBIT VI
PART II: REPRESENTATIONS AND WARRANTIES REGARDING MEZZANINE LOANS
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-1
(ii) any direct or indirect interest in the related borrower is voluntarily transferred or
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-2
assigned, other than, in each case, as permitted under the terms and conditions of the related loan documents.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-3
The related Mortgaged Property is not encumbered, and none of the Mezzanine Loan Documents or any Mortgage Loan documents permits the related Mortgaged Property to be encumbered subsequent to the Purchase Date of the related Purchased Loan without the prior written consent of the holder thereof, by any lien securing the payment of money junior to or of equal priority with, or superior to, the lien of the related Mortgage (other than Title Exceptions, taxes, assessments and contested mechanics and materialmens liens that become payable after such Purchase Date).
For purposes of these representations and warranties, the phrases “Seller’s knowledge” or “Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Purchased Loans regarding the matters expressly set forth herein.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VI-4
EXHIBIT VII
ORGANIZATIONAL CHART
CMTG DB Finance LLC – Ownership Structure
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VII-1
EXHIBIT VIII
TRANSACTION PROCEDURES
(6) months of the proposed Purchase Date.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VIII-1
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VIII-2
Property, (iv) a copy of the title policy (or, if the final printed version of the title policy has not been issued, the irrevocable marked commitment to issue the same) together with copies of all reciprocal easement agreements and operating agreements, if applicable, and all other recorded documents and agreements affecting title to the Mortgaged Property, (v) a copy of the purchase and sale agreement for the Mortgaged Property in connection with a Purchased Loan used to acquire a Mortgaged Property, if applicable, (vi) a copy of the marketing and leasing plan for the Mortgaged Property, if applicable, (vii) copies of tenant sales reports, if applicable, (viii) a copy of any franchise agreement relating to the Mortgaged Property, if applicable; and (ix) STR/PACE reports, if applicable; (x) Lowe Income Housing Tax Credit information, if applicable, and all of the foregoing documents and information shall be in form and substance satisfactory to Buyer.
Within five (5) Business Days of Seller’s satisfaction of all of the conditions enumerated in clauses
(a) through (j) above, Buyer shall either (i) if the Purchased Loan Documents with respect to the New Collateral are not reasonably satisfactory in form and substance to Buyer, notify Seller that Buyer has not approved the New Collateral as Collateral or (ii) notify Seller that Buyer has approved the New Collateral as Collateral (which notice shall specify any changes in the Purchase Price resulting from such further review). Buyer’s failure to respond to Seller within five (5) Business Days shall be deemed to be a denial of Seller’s request that Buyer approve the New Collateral, unless Buyer and Seller have agreed otherwise in writing.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit VIII-3
EXHIBIT IX
FORM OF SERVICER NOTICE AND AGREEMENT
[ ], 20
[Servicer]
RE: Amended and Restated Master Repurchase Agreement, dated as of August 17, 2022 (as amended, modified and/or restated, the “Repurchase Agreement”) between CMTG DB Finance LLC, as Master Seller (“Master Seller”), and Deutsche Bank AG, New York Branch, as Buyer (“Buyer”)
Ladies and Gentlemen:
[SERVICER] (the “Servicer”) is servicing certain [mortgage loans, participation interests and/or mezzanine loans] for Seller pursuant to that certain [Servicing Agreement], dated as of [ ], by and between Servicer and [CMTG DB Finance LLC] [ ] (the “Original Owner”)] (as amended, restated, supplemented or otherwise modified from time to time, the “Servicing Agreement”). A copy of the Servicing Agreement is attached hereto as Exhibit A. Pursuant to the Repurchase Agreement, Servicer is hereby notified that Seller has sold to Buyer and may in the future continue to sell to Buyer certain [mortgage loans and/or participation interests] (as more fully defined in the Repurchase Agreement, the “Purchased Loans”), and such Purchased Loans are subject to a security interest in favor of Buyer. Capitalized terms used but not otherwise defined herein shall have the meanings assigned thereto in the Repurchase Agreement.
Section 1. Acts as Servicer.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit IX-1
Notwithstanding the foregoing, Buyer has agreed to retain Servicer, for a term of 30-days, as may be extended in writing by Buyer for one or more additional 30-day periods, which extension notice may be included by Buyer in the monthly remittance instructions delivered by Buyer to Servicer under the Repurchase Agreement, to service the Purchased Loans at Seller’s sole cost and expense for the benefit of Buyer pursuant to the Servicing Agreement, and subject to the terms of this instruction letter. Where there is a conflict between the Servicing Agreement and this instruction letter, as with respect to the servicing of, and Servicing Rights in connection with, the Purchased Loans, this instruction letter shall govern. Each party to the Servicing Agreement agrees that Buyer is and shall be a direct express third-party beneficiary of the Servicing Agreement with all of the rights of Seller with respect to the Purchased Loans, but none of the obligations of Seller. Servicer acknowledges and agrees that Buyer shall have direct recourse against Servicer (i) with respect to the rights of Buyer as specified in this instruction letter in connection with (A) Servicer’s willful misfeasance, bad faith or gross negligence in the performance of its duties under the Servicing Agreement or this instruction letter, (b) a breach of Servicer’s representations and warranties as set forth in the Servicing Agreement, or (c) by reason of reckless disregard of Servicer’s obligations or duties under the Servicing Agreement or this instruction letter, and (ii) the right, subject to all terms and conditions of the Repurchase Agreement, to exercise all rights of Seller as an “Owner” under the Servicing Agreement with respect to the Purchased Loans. Each party to the Servicing Agreement acknowledges and agrees that (I) it retains no economic rights to the servicing of the Purchased Loans, (II) Buyer has granted to Seller a revocable license to cause Servicer to service the Purchased Loans pursuant to the Servicing Agreement, as supplemented and modified by this instruction letter, for the benefit of Buyer only, (III) neither Servicer nor any other Person other than Buyer owns or has any rights with respect to the Servicing Rights of the Purchased Loans, and (IV) in no event shall Servicer or any other Person have any rights to any Income generated by or otherwise received in connection with any of the Purchased Loans to compensate Servicer for any fees, costs or expenses (however defined), including but not limited to reimbursement of any servicing advances in connection with any of the Purchased Loans or transactions contemplated by or services otherwise rendered pursuant to the Servicing Agreement with respect to the Purchased Loans.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit IX-2
Repurchase Agreement. Servicer shall not make any servicing advances with respect to any of the Purchased Loans without Buyer’s prior written consent.
Section 2. Assignment. Servicer may, only, to the extent provided in the Servicing Agreement, and with Buyer’s prior written consent, assign any or all of its rights, duties and/or obligations under the Servicing Agreement, or enter into any subservicing agreements with subservicers for the servicing and administration of all or part of the Purchased Loans; provided, that, Servicer will remain primarily obligated and liable to Buyer for the servicing, subservicing and administering of the Purchased Loans in accordance with the provisions of the Servicing Agreement and this instruction letter without diminution of any such duties and obligation or liability by virtue of any other servicing or subservicing agreement.
Section 3. Material Actions. Servicer agrees to notify Buyer in writing whenever a borrower under a Purchased Loan requests any review, approval or action described in Sections 7(e) and 10(f) of the Repurchase Agreement (any such review, approval or action, a “Material Action”), and Servicer further agrees that Servicer will not take any Material Action or take any action requiring Servicer to take a Material Action, without Buyer’s prior written consent.
Section 4. Collections. Notwithstanding anything to the contrary in the Servicing Agreement, Servicer hereby agrees that it shall (i) maintain, for the duration of the Repurchase Agreement, a schedule identifying the loan and participation interests that are subject to this notice, maintain a segregated account (the “Collection Account”), which shall not be commingled with any other moneys other than Income relating to the Purchased Loans, (ii) give Buyer written notice of any change of the location or account number of the Collection Account promptly after the date of such change, (iii) deposit any and all Income received by Servicer relating to the Purchased Loans[, other than payments received with respect to a Purchased Loan that are designated for payment of escrows pursuant to the express terms of the Purchased Loan Documents into the Collection Account and (iv) within one (1) Business Day of receipt thereof by Servicer, remit all
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit IX-3
Income (other than payments received with respect to a Purchased Loan that are designated for payment of escrows pursuant to the express terms of the Purchased Loan Documents related in any way to any of the Purchased Loans, including all amounts in the Collection Account, and all such other amounts related to the Purchased Loans that are otherwise required to be remitted to Seller or any other Person pursuant to the Servicing Agreement, in accordance with the wiring instructions provided below (such account information, the “Depository Account”), or in accordance with any other instructions that may be delivered to Servicer by Buyer or its designee:
Bank: [ ]
ABA #: [ ]
Acct #: [ ] Acct Name: [ ]
Under no circumstances shall Servicer remit any such amounts in accordance with any instructions delivered to Servicer by Seller, or any other Person (other than Buyer or Buyer’s designee), without Buyer’s prior written consent.
Section 5. Event of Default. Servicer further agrees, upon its receipt of written notification (a “Default Notice”), from Buyer that an Event of Default has occurred and is continuing under the Repurchase Agreement (a “Seller Event of Default”), that, solely with respect to the Purchased Loans (i) Buyer or its designee shall assume all of the rights (but none of the duties and obligations) of Seller [or any Original Owner] under the Servicing Agreement, except as otherwise provided herein, (ii) Servicer shall follow the instructions of Buyer or its designee with respect to the Purchased Loans and deliver to Buyer or its designee any information with respect to the Purchased Loans reasonably requested by Buyer or its designee and in accordance with the obligations under the Servicing Agreement, (iii) Servicer shall not follow any instructions received from Seller or any other Person (other than Buyer or Buyer’s designee) with respect to the Purchased Loans, (iv) Buyer may, in its sole discretion, sell its right to the Purchased Loans on a servicing released basis, and (v) Servicer shall treat this instruction letter as a separate and distinct servicing agreement between Servicer and Buyer (incorporating the terms of the Servicing Agreement by reference), subject to no setoff or counterclaims arising in Servicer’s favor (or in the favor of any third party claiming through Servicer) under any other agreement or arrangement between Servicer, Seller or otherwise. Notwithstanding anything to the contrary herein or in the Servicing Agreement, in no event shall Buyer be liable for any fees, indemnities, costs, reimbursements or expenses incurred by Servicer or Seller, or any of their respective Affiliates, or otherwise owed to Servicer or Seller, or any of Servicer’s or Seller’s respective Affiliates, at any time.
Section 6. Reliance by Servicer. Servicer may rely and shall be protected in acting or refraining from acting upon any notice, request, each consent, order, certificate, report, opinion or document (including, but not limited to, electronically confirmed facsimiles thereof) believed by it to be genuine and to have been signed or presented by the proper party or parties. Servicer shall have no obligation to review or confirm that actions taken pursuant to the foregoing in accordance with this instruction letter comply with any other agreement or document to which it
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit IX-4
is not a party. In particular, Servicer need not investigate whether Buyer is entitled under the Repurchase Agreement to give a Default Notice.
Section 7. Servicing Fees and Expenses. Notwithstanding anything to the contrary herein or in the Servicing Agreement, all [Servicing Fees and Servicing Expenses]3 (each as defined in the Servicing Agreement), together with any other unreimbursed fees (including, without limitation, termination fees), costs, advances and expenses otherwise due and payable thereunder to Servicer (to the extent related to the Purchased Loans), shall not be withheld from Income prior to the remittance thereof to the Depository Account. Instead, all such amounts shall be deposited by Servicer as Income directly into the Depository Account. All such amounts which are otherwise due and owing to Servicer under the Servicing Agreement shall be separately and independently paid to Servicer directly by Seller. For the avoidance of doubt, all Servicing Rights belong to Buyer, and no such Servicing Rights are owned by Servicer or Seller in any respect.
Buyer, its affiliates, and any director, officer, employee or agent of any of them, together with their successors and assigns, shall be indemnified and held harmless by Servicer against any loss, liability or expense (including reasonable attorneys’ fees of outside counsel) incurred by reason of (i) Servicer’s willful misfeasance, bad faith or gross negligence in the performance of its duties under the Servicing Agreement or this instruction letter, (ii) a breach of Servicer’s representations and warranties as set forth in the Servicing Agreement or (iii) by reason of reckless disregard of Servicer’s obligations or duties under the Servicing Agreement or this instruction letter.
Section 8. Servicing Termination.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit IX-5
for any payment under any such Purchased Loans to make payment of any and all moneys due or to become due thereunder directly to Buyer or as Buyer shall direct including, without limitation, sending “goodbye” letters in form and substance acceptable to Buyer. The out-of-pocket costs and expenses of such transfer shall be paid by Seller. The transfer of servicing and such records by Servicer shall be in accordance with Accepted Servicing Practices (as defined in the Servicing Agreement) and the other terms of the Servicing Agreement, and such transfer shall include the transfer of the net amount of all escrows held for the related mortgagors.
Section 9. Due Diligence. Servicer acknowledges that Buyer or its designee has the right to perform continuing due diligence reviews with respect to the Purchased Loans and with respect to Servicer for purposes of verifying compliance with the representations, warranties and specifications made under the Repurchase Agreement or otherwise. Servicer agrees that, upon reasonable prior notice, Servicer shall provide reasonable access to Buyer or its designee and any of its agents, representatives or permitted assigns to the offices of Servicer during normal business hours, and permit them to examine, inspect, and, at the expense of Seller, make copies and extracts of the Servicing Files in the possession or under the control of Servicer.
Section 10. No Modification of the Servicing Agreement. Without the prior written consent of Buyer, neither Servicer, Seller nor any other party to the Servicing Agreement shall agree to (a) any material modification, amendment or waiver of the Servicing Agreement; or (b) the assignment, transfer, or material delegation of any of their respective rights or obligations under the Servicing Agreement. Neither Seller, Servicer nor any other party to the Servicing Agreement shall, without the prior written consent of Buyer, agree with respect to any of the Purchased Loans, to either the addition of any new servicers or subservicers under, or any termination of, the Servicing Agreement (except in connection with a simultaneous termination of the Repurchase Agreement).
Section 11. No Modification of Servicer Notice. No provision of this letter may be amended, countermanded or otherwise modified without the prior written consent of Buyer. This instruction letter may not be revoked and/or rescinded and no provision of this instruction letter may be amended, countermanded or otherwise modified without the prior written consent of Buyer.
Section 12. Liability of Seller. Notwithstanding anything to the contrary herein or in the Servicing Agreement, Seller’s liability to Servicer under the Servicing Agreement with respect to any fees, indemnities, costs, reimbursements and expenses in respect of which it may be liable as “Client” thereunder shall be limited to the fees, indemnities, costs, reimbursements and expenses incurred by Seller with respect to the Purchased Loans (as though Seller and Servicer were the only parties to the Servicing Agreement and the Servicing Agreement related solely to the Purchased Loans), and in no event shall Seller be liable to Servicer or any of Seller’s Affiliates for any fees, indemnities, costs, reimbursements or expenses incurred by Seller’s Affiliates under the Servicing Agreement or in respect of any fees, indemnities, costs, reimbursements or expenses related to any assets other than Purchased Loans, and Seller shall not be subject to any setoff right in favor of Servicer or Seller’s Affiliates in respect thereof.
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit IX-6
Section 13. Notice. Any notices to Servicer hereunder shall be delivered in accordance with the provisions of the Servicing Agreement and this instruction letter. Notices hereunder to Buyer shall be delivered to the following address:
Deutsche Bank AG, New York Branch US Commercial Real Estate
1 Columbus Circle, 15th Floor Mail Stop: NYC01-1530
New York, New York 10019 Attention: Tom Rugg Telephone: (212) 250-3541
Telecopy: (212) 797-5630 Email: tom.rugg@db.com
with a copy to:
Deutsche Bank AG, New York Branch US Commercial Real Estate
1 Columbus Circle, 15th Floor Mail Stop: NYC01-1530
Attention: Robert W. Pettinato Jr. Telephone: (212) 250-5579
Telecopy: (212) 797-0286
Email: robert.pettinato@db.com and
Cadwalader, Wickersham & Taft LLP 227 West Trade Street
Charlotte, NC 28202 Attention: Aaron Benjamin Telephone: (704) 348-5384
Email: aaron.benjamin@cwt.com
[ ]
[ ]
[ ]
[ ]
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit IX-7
with a copy to:
[ ]
[ ]
[ ]
[ ]
Section 14. Governing Law. This instruction letter shall be governed by and construed in accordance with internal laws of the State of New York, without regard for principles of conflicts of laws.
Section 15. Acknowledgement; Counterparts. By countersigning below, each of the parties to the Servicing Agreement acknowledges and agrees to the terms of this instruction letter. This instruction letter may be executed and delivered in two or more counterparts, each of which when so executed and delivered shall be an original, but all of which together shall constitute one and the same instrument.
Very truly yours,
[ ]
By:
Name:
Title:
ACKNOWLEDGED AND AGREED TO:
[Servicer]
By:
Name:
Title:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit IX-8
| EXHIBIT A | |
Description of Accounts | ||
Servicer Account Bank: |
[ |
] |
City/State: | [ | ] |
ABA: | [ |
] |
Account Name: | [ |
] |
Account #: | [ |
] |
Attention: | [ |
] |
Cash Management Account
Bank: Wells Fargo Bank, National Association
City/State: San Francisco, California
ABA: 121 000 248
Account Name: CMTG DB Finance LLC, as Master Seller, for the benefit of Deutsche Bank AG, New York Branch, as Buyer
Account #:
Attention: Ingrid Schor
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit A to IX
EXHIBIT X
FORM OF JOINDER AGREEMENT
JOINDER AND MODIFICATION AGREEMENT
This JOINDER AND MODIFICATION AGREEMENT (this “Agreement”), dated as of , 20 by [ ] (“New Series Seller”) and CMTG DB Finance LLC, a Delaware limited liability company (“Master Seller”).
BACKGROUND
AGREEMENT
NOW, THEREFORE, in order to induce Buyer to enter into a Transaction with New Series Seller, and in consideration of the substantial benefit New Series Seller will derive from Buyer
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit X-1
entering into such Transaction, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, New Series Seller hereby agrees as follows:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit X-2
[SIGNATURES ON FOLLOWING PAGES]
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit X-3
IN WITNESS WHEREOF, each of New Seller and Master Seller, on behalf of itself and each Series Seller that has heretofore become a party to the Repurchase Agreement, has duly executed this Agreement and delivered the same to Buyer, as of the date and year first above written.
NEW SERIES SELLER:
[ ] – SERIES [ ], a series of CMTG DB FINANCE LLC, a Delaware limited liability company
By:
Name:
Title:
MASTER SELLER:
CMTG DB FINANCE LLC, a Delaware limited liability company, on behalf of itself and each Series Seller that has become a party to the Repurchase Agreement prior to the date hereof
By:
Name:
Title:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit X-4
EXHIBIT A
NEW SERIES SELLER/PURCHASED LOAN
New Series Seller:
Purchased Loan:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit A to X
EXHIBIT XI-1
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Buyers That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Master Repurchase Agreement dated as of [ ] (as amended, supplemented or otherwise modified from time to time, the “Agreement”), by and between CMTG DB FINANCE LLC, a Delaware limited liability company organized in series (“Master Seller”, and together with each designated series of limited liability company interests and assets of the Master Seller, “Seller”) and DEUTSCHE BANK AG, NEW YORK BRANCH, a branch of a foreign banking institution (“Buyer”).
Pursuant to the provisions of Section 29 of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the payment(s) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,
(iii) it is not a ten percent shareholder of Seller within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to Seller as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished Seller with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform Seller, and (2) the undersigned shall have at all times furnished Seller with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF BUYER]
By:
Name:
Title:
Date: , 20[ ]
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit XI-1-1
EXHIBIT XI-2
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Master Repurchase Agreement dated as of [ ] (as amended, supplemented or otherwise modified from time to time, the “Agreement”), by and between CMTG DB FINANCE LLC, a Delaware limited liability company organized in series (“Master Seller”, and together with each designated series of limited liability company interests and assets of the Master Seller, “Seller”) and DEUTSCHE BANK AG, NEW YORK BRANCH, a branch of a foreign banking institution (“Buyer”).
Pursuant to the provisions of Section 29 of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,
(iii) it is not a ten percent shareholder of Seller within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to Seller as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Seller with a certificate of its non-
U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Seller in writing, and (2) the undersigned shall have at all times furnished such Seller with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF PARTICIPANT]
By:
Name:
Title:
Date: , 20[ ]
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit XI-2-1
EXHIBIT XI-3
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Master Repurchase Agreement dated as of [ ] (as amended, supplemented or otherwise modified from time to time, the “Agreement”), by and between CMTG DB FINANCE LLC, a Delaware limited liability company organized in series (“Master Seller”, and together with each designated series of limited liability company interests and assets of the Master Seller, “Seller”) and DEUTSCHE BANK AG, NEW YORK BRANCH, a branch of a foreign banking institution (“Buyer”).
Pursuant to the provisions of Section 29 of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of Seller within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to Seller as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Seller with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Seller and (2) the undersigned shall have at all times furnished such Seller with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF PARTICIPANT]
By:
Name:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit XI-3-1
Title:
Date: , 20[ ]
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit XI-3-2
EXHIBIT XI-4
[FORM OF]
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Buyers That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Master Repurchase Agreement dated as of [ ] (as amended, supplemented or otherwise modified from time to time, the “Agreement”), by and between CMTG DB FINANCE LLC, a Delaware limited liability company organized in series (“Master Seller”, and together with each designated series of limited liability company interests and assets of the Master Seller, “Seller”) and DEUTSCHE BANK AG, NEW YORK BRANCH, a branch of a foreign banking institution (“Buyer”).
Pursuant to the provisions of Section 29 of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the payment(s) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such payment(s),
(iii) with respect to the extension of credit pursuant to this Agreement, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of Seller within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to Seller as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished Seller with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform Seller, and (2) the undersigned shall have at all times furnished Seller with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF BUYER]
By: Name:
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit XI-4-1
Title:
Date: , 20[ ]
Master Repurchase Agreement [Mack Real Estate Group]
Exhibit XI-4-2