Conditions Precedent to all Transactions. Buyer’s obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale: (1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c). (2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents; (3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount; (4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); (5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions; (6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion; (7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer; (8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder; (9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines; (10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement; (11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan; (12) none of the following shall have occurred and/or be continuing: (A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or (B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or (C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement; (13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day; (14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer; (15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification; (16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company; (17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions; (18) the Effective Date shall have occurred; and (19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 2 contracts
Sources: Master Repurchase Agreement (ECC Capital CORP), Master Repurchase Agreement (ECC Capital CORP)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of therefor:
(a) Buyer has received the following further conditions precedentdocuments for each Purchased Asset: (i) a Transaction Request, both (ii) an Underwriting Package, (iii) a Confirmation, (iv) Irrevocable Redirection Notices, (v) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement, (vii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, and (viii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations no Representation Breach (including with respect to any Purchased Asset, but excluding any Approved Representation Exception), Default, Event of Default, Margin Deficit, or Material Adverse Effect shall have occurred and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)continuing;
(5c) Buyer has completed its due diligence review of the Underwriting Package, Mortgage Loan Documents and such other documents, records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer;
(d) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, (iv) executed the Confirmation, (v) determined that such Asset is adequately structured and stabilized, (vi) received payment of the Annual Funding Fee with respect to such Asset (which Annual Funding Fee may be netted from the Purchase Price funded on the applicable Purchase Date or netted from the Future Funding Amount funded on the applicable Future Funding Date, as applicable), and (vii) determined that such Asset satisfies the PPV Test as of the Purchase Date;
(e) immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Amount;
(6f) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer Repurchase Date specified in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionthe Confirmation is not later than the Maturity Date;
(7g) with respect to any Eligible Asset Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed performed by Seller and Serviceron or before the Purchase Date;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent the related Mortgage Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse Buyer for the rights and benefits of a pledgee under such amountspledgee provisions;
(i) if requested by Buyer, all reasonable out-of-pocket costs to the extent not covered by opinions previously delivered under similar facts and expenses incurred by Buyer circumstances where there has been no change in Requirements of Law in connection with the entering into of any Transaction hereunderthis Agreement, such customary opinions from counsel to Seller, Pledgor and Guarantor as Buyer may require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions other collateral pledged pursuant to the Underwriting Guidelines;
(10) Repurchase Document, and true sale opinions for each Purchased Asset purchased or transferred to Seller from an Affiliate of Seller or from any third party in a transaction not on arm’s-length terms or for other than fair market value, to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received such transfer was in a manner or structure different from Seller the manner or structure of transfer and sale analyzed in a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, true sale opinion previously delivered in connection with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredAsset; and
(19j) Custodian shall have received executed blank assignments of all Mortgage Loan Documents each, if recordable, to be in appropriate form for recording in the jurisdiction in which the underlying Mortgaged Property is located (the “Blank Assignment Documents”).
(k) Buyer has received payment from Seller of all fees and expenses then due and payable under Section 3.07(b), the related provisions of the Fee Letter and all expenses then due and payable as contemplated by Section 13.02, together with any other fees and expenses otherwise then due and payable pursuant to any of the other Repurchase Date for such Transaction is not later than the Termination DateDocuments. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied other than those set forth in this Section 3(bSections 6.01(a)(vii), (d) have been satisfied and (both as of the date of such notice or request e) and as of the date of such purchaseSections 6.02(a)(viii), (c), (d) and (k).
Appears in 2 contracts
Sources: Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.), Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Conditions Precedent to all Transactions. The Agent’s and each Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) the Seller shall have delivered a Transaction Request Confirmation via Electronic Transmission in accordance with the procedures set forth in Section 3(c).3.03, and the Agent shall have determined that the Mortgage Asset described in such Confirmation is an Eligible Asset, shall have approved the purchase of the Mortgage Asset to be included in such Transaction in its sole and absolute discretion and shall have obtained all necessary internal credit approvals for such Transaction;
(2b) no Default or Event of Default shall have occurred and be continuing under this Agreement, the Guarantee Agreement or any other Repurchase DocumentsDocument and no event shall have occurred which has, or would reasonably be expected to have, a Material Adverse Effect;
(3c) the Agent shall have received a certificate of a Responsible Officer of the Seller, substantially in the form of Exhibit J hereto, (i) showing in detail the calculations demonstrating that, after giving effect to the requested Transaction, no Margin Deficit shall then exist, (ii) stating that, to the aggregate outstanding Purchase Price best of such Responsible Officer’s knowledge, since the date of the Transactions outstanding shall not exceed certificate most recently delivered pursuant to Section 9.01(b)(ii), the Maximum AmountSeller has observed or performed all of its covenants and other agreements in all material respects, and satisfied in all material respects, every condition, contained in this Agreement and the related documents to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, (iii) describing all interests of the Seller’s Affiliates in any Underlying Mortgaged Property related to any proposed Mortgage Asset (including without limitation, any lien, encumbrance or other debt or equity position or other interest in the Underlying Mortgaged Property that is senior or junior to, or pari passu with, the proposed Mortgage Asset in right of payment or priority), (iv) showing in detail the calculations supporting such Responsible Officer’s certification of the Seller’s compliance with the requirements of Section 9.01(f) and Sections 9.01(l)-(o) and (v) confirming that all equity of each of the Seller’s Subsidiaries has been pledged to the Agent for the benefit of the Buyers;
(4d) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller in Section 108.01 and in Schedules 1(a)-1(j), as applicable, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6e) subject to Buyerthe Agent’s right to perform one or more Due Diligence Reviews pursuant to Section 2613.11, Buyer (i) in the case of a Dry Mortgage Asset, Seller shall have completed its due delivered a Transaction Request, a Transaction Request Package and all Mortgage Asset Documents to the Custodian as required by this Agreement and the Custodial Agreement and Buyer has consented in writing to the related Mortgage Asset becoming a Purchased Asset, and (ii) in the case of a Wet Mortgage Asset, Seller has delivered a Transaction Request, Transaction Request Package and pledge to deliver a complete Mortgage Asset File with respect to any Wet Mortgage Assets identified on such Transaction Request within five (5) Business Days of the related Purchase Date; provided, that if the Agent’s diligence review of the Mortgage Asset File for each Purchased Assetrequires the delivery of a mortgage file or the equivalent, Seller shall have the benefit of delayed delivery under circumstances and such other documents, records, agreements, instruments, mortgaged properties or information relating pursuant to such Purchased Asset as Buyer the terms and conditions set forth in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionSection 2.01(g)(ii) of the Custodial Agreement;
(7f) with respect to any Eligible Dry Mortgage Asset to be purchased hereunder on the related Purchase Date which is not serviced by Sellerthe Seller or an Affiliate thereof, the Seller shall have provided to Buyer the Agent a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by the Seller and the Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 2 contracts
Sources: Master Repurchase Agreement (Gramercy Capital Corp), Master Repurchase Agreement (Gramercy Capital Corp)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into each Transaction (including the initial any Transaction) is subject , purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder relating to the satisfaction prospective purchase of any Asset or to fund any future fundings relating to any existing Purchased Asset, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Asset on and as of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the salePurchase Date therefor:
(1a) Seller shall have delivered Buyer has received the following documents: (i) a Transaction Request via Electronic Transmission Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) a trust receipt and other items required to be delivered under the Custodial Agreement, (v) with respect to any Wet Mortgage Asset, a Bailee Agreement, (vi) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require and (vii) evidence that each Seller is in good standing in the jurisdiction where the underlying Mortgaged Property is located, to the extent that such Seller is then-currently required to do so under an applicable Requirement of Law (provided, however, that with respect to any Wet Mortgage Asset, delivery of the foregoing items in accordance with the procedures set forth provisions of Section 3.01(g) and (h) shall be deemed to satisfy the conditions of Section 6.02(a) (unless otherwise determined in Section 3(cthe discretion of Buyer).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents);
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit, or Material Adverse Effect related to any Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Guarantor;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)appropriate, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence results of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold reviews are satisfactory to Buyer;
(15d) prior to Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of any Mortgage Loan acquired such Asset, (by purchase or otherwiseiii) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certificationobtained all necessary internal credit and other approvals for such Transaction and (iv) executed the Confirmation;
(16e) with respect immediately after giving effect to each Eligible Asset that is a Wet-Ink Mortgage Loansuch Transaction, Buyer shall have received an insured closing letter from each Settlement Agent that is the Aggregate Amount Outstanding does not a title insurance companyexceed the Maximum Amount;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19f) the Repurchase Date for such Transaction specified in the Confirmation is not later than the Facility Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).;
Appears in 2 contracts
Sources: Amendment No. 4 to Third Amended and Restated Master Repurchase and Securities Contract (Ares Commercial Real Estate Corp), Master Repurchase and Securities Contract (Ares Commercial Real Estate Corp)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of therefor:
(a) Buyer has received the following further conditions precedentdocuments for each Purchased Asset: (i) [reserved], both (ii) an Underwriting Package, (iii) a Confirmation, (iv) Irrevocable Redirection Notices, (v) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement, (vii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, and (viii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations no Representation Breach (including with respect to any Purchased Asset, but excluding any Approved Representation Exception), Default, Event of Default, Margin Deficit, or Material Adverse Effect shall have occurred and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)continuing;
(5c) Buyer has completed its due diligence review of the Underwriting Package, Mortgage Loan Documents and such other documents, records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer;
(d) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, (iv) executed the Confirmation, (v) determined that such Asset is adequately structured and stabilized, (vi) received payment of the Annual Funding Fee with respect to such Asset (which Annual Funding Fee may be netted from the Purchase Price funded on the applicable Purchase Date or netted from the Future Funding Amount funded on the applicable Future Funding Date, as applicable), and (vii) determined that such Asset satisfies the PPV Test as of the Purchase Date;
(e) immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Amount;
(6f) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer Repurchase Date specified in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionthe Confirmation is not later than the Maturity Date;
(7g) with respect to any Eligible Asset Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed performed by Seller and Serviceron or before the Purchase Date;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent the related Mortgage Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse Buyer for the rights and benefits of a pledgee under such amountspledgee provisions;
(i) if requested by Buyer, all reasonable out-of-pocket costs to the extent not covered by opinions previously delivered under similar facts and expenses incurred by Buyer circumstances where there has been no change in Requirements of Law in connection with the entering into of any Transaction hereunderthis Agreement, such customary opinions from counsel to Seller, Pledgor and Guarantor as Buyer may require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions other collateral pledged pursuant to the Underwriting Guidelines;
(10) Repurchase Document, and true sale opinions for each Purchased Asset purchased or transferred to Seller from an Affiliate of Seller or from any third party in a transaction not on arm’s-length terms or for other than fair market value, to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received such transfer was in a manner or structure different from Seller the manner or structure of transfer and sale analyzed in a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, true sale opinion previously delivered in connection with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredAsset; and
(19j) Custodian shall have received executed blank assignments of all Mortgage Loan Documents each, if recordable, to be in appropriate form for recording in the jurisdiction in which the underlying Mortgaged Property is located (the “Blank Assignment Documents”).
(k) Buyer has received payment from Seller of all fees and expenses then due and payable under Section 3.07(b), the related provisions of the Fee Letter and all expenses then due and payable as contemplated by Section 13.02, together with any other fees and expenses otherwise then due and payable pursuant to any of the other Repurchase Date for such Transaction is not later than the Termination DateDocuments. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied other than those set forth in this Section 3(bSections 6.01(a)(vii), (d) have been satisfied and (both as of the date of such notice or request e) and as of the date of such purchaseSections 6.02(a)(viii), (c), (d) and (k).
Appears in 2 contracts
Sources: Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.), Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied as determined by or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saletherefor:
(1a) Seller shall have delivered Buyer has received the following documents for each prospective Purchased Asset: (i) a Transaction Request via Electronic Transmission Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) the related Servicing Agreement(s), if a copy was not previously delivered to Buyer, (v) fully executed Irrevocable Redirection Notices, except to the extent set forth in Section 8.18, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, (vii) with respect to any Wet Mortgage Asset, a Bailee Agreement, and (viii) all other documents, certificates, information, financial statements, reports and approvals as Buyer may require (provided, however, that with respect to any Wet Mortgage Asset, delivery of the foregoing items in accordance with the procedures set forth provisions of Sections 3.01(g) and (h) shall be deemed to satisfy the conditions of this Section 6.01(a) (unless otherwise determined in Section 3(cthe discretion of Buyer).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents);
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit or warranty is expressly stated to have been made as of a specific date, as of such specific date)Material Adverse Effect exists;
(5c) Buyer has completed its due diligence review of the Underwriting Package, Purchased Asset Documents and such other documents, records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer;
(d) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(e) immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Amount;
(6f) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26the Repurchase Date specified in the Confirmation is not later than (i) for all Purchased Assets other than CMBS Purchased Assets, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased AssetMaturity Date, and such other documents(ii) for all CMBS Purchased Assets, records, agreements, instruments, mortgaged properties or information relating to such the CMBS Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionMaturity Date;
(7g) with respect to any Eligible Asset Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed performed by Seller and Serviceron or before the Purchase Date;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent Seller is required hereunder to reimburse Buyer for such amountsthe related Purchased Asset Documents contain notice, all reasonable out-of-pocket costs cure and expenses incurred by Buyer other provisions in connection with the entering into favor of any Transaction hereundera pledgee under a repurchase or warehouse facility, including, and without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental prejudice to the execution sale treatment of any Transaction hereundersuch Asset to Buyer, which amounts, at Buyer has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s option, may be withheld from interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the sale proceeds rights and benefits of any Transaction hereundera pledgee under such pledgee provisions;
(9i) Buyer shall have approvedhas received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to such Asset, in (ii) the related Seller Party has assigned or pledged to Buyer all of assignor’s rights (but none of its sole discretionobligations) under such Interest Rate Protection Agreement and related documents, all exceptions to the Underwriting Guidelinesand (iii) no termination event, default or event of default (however defined) exists thereunder;
(10j) to the extent there are any MERS Designated Mortgage Loans, Buyer Custodian shall have received from Seller a copy executed blank assignments of a fully executed Electronic Tracking Agreementall Purchased Asset Documents, if applicable, in appropriate form for recording in the jurisdiction in which the underlying real estate is located (the “Blank Assignment Documents”);
(11k) Buyer shall have received For all Assets acquired from Selleror originated by (whether directly or indirectly) an Affiliate of Seller (other than any Asset acquired directly or indirectly from and/or originated by Guarantor or any Intermediate Starwood Entity), with respect to MERS Designated Mortgage Loansif requested by Buyer, a MERS Report reflecting true sale opinion from counsel to Seller as Investor in form and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can substance reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable satisfactory to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19l) Buyer has received, within thirty (30) days of the Repurchase Date for such Transaction is not later than Closing Date, the Termination DateRevised Servicing Agreement, duly executed and delivered by the parties thereto. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied, unless any such condition precedent was expressly waived in the related Confirmation. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in this Section 3(b) have been satisfied (both as an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the date related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 2 contracts
Sources: Master Repurchase and Securities Contract (Starwood Property Trust, Inc.), Master Repurchase and Securities Contract (Starwood Property Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) shall be determined in Buyer’s sole discretion and is otherwise subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1i) Seller shall give Buyer no less than ten (10) Business Days’ prior written notice of each Transaction (including the initial Transaction), which notice shall describe the terms of the Transaction and the Purchased Assets;
(ii) The sum of (A) the unpaid Purchase Price for all prior outstanding Transactions and (B) the requested Purchase Price for the pending Transaction, in each case, shall not exceed the Maximum Facility Amount;
(iii) No Market Disruption Event has occurred and is continuing, no Margin Deficit shall exist, and no default or Event of Default has occurred and is continuing under this Agreement or any other Transaction Document;
(iv) No circumstance shall exist or event have occurred resulting in a Material Adverse Effect with respect to Seller, Pledgor, or Guarantor;
(v) Seller and Buyer shall have executed a Confirmation for such proposed Transaction;
(vi) Buyer shall have (i) determined, in its sole discretion, that the Asset proposed to be sold to Buyer by Seller in such Transaction is an Eligible Asset, (ii) satisfactorily completed its “Know Your Customer” and OFAC diligence (as to the related Mortgagor, guarantor and all other related parties, as determined by Buyer), (iii) determined conformity to the terms of the Transaction Documents and Buyer’s internal credit and underwriting criteria, and (iv) obtained internal credit approval, to be granted or denied in Buyer’s sole discretion, for the inclusion of such Eligible Asset as a Purchased Asset in a Transaction, without regard for any prior credit decisions by Buyer or any Affiliate of Buyer, and with the understanding that Buyer shall have the absolute right to change any or all of its internal underwriting criteria at any time, without notice of any kind to Seller;
(vii) Seller shall have delivered to Buyer a Transaction Request via Electronic Transmission in accordance with list of all exceptions to the procedures set forth in Section 3(crepresentations and warranties relating to the Eligible Asset and any other eligibility criteria for such Eligible Asset (the “Requested Exceptions Report”).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4viii) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, each of Exhibit V and Article 9 shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), subject to such exceptions specified in any Requested Exceptions Report that has been approved by Buyer;
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6ix) subject to Buyer’s right to perform one or more Due Diligence Reviews due diligence reviews pursuant to Section 26Article 28, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased AssetAsset File, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review review, including, without limitation, all external legal due diligence any due diligence relating to lending licensing requirements which may impact Buyer, and such review shall be satisfactory to Buyer in its sole discretion;
(7x) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which that is not primarily serviced by the Primary Servicer, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, fully executed by Seller and the servicer named in the related Servicing Agreement;
(xi) Seller shall have directed Servicer to remit all payments into the Depository Account and to service such payments in accordance with the provisions of this Agreement;
(xii) Seller shall have paid to Buyer all amounts that are due and payable under this Agreement at the time of such Transaction, including, without limitation, any increased costs that are imposed on Seller pursuant to Article 14, all reasonable legal fees and expenses of outside counsel and the reasonable out-of-pocket costs and expenses actually incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with due diligence, recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(xiii) Buyer shall have reasonably determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law including without limitation changes in any Reserve Requirements and any other increase in cost to Buyer applicable to Buyer has not made it unlawful or impracticable, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into the Transaction;
(xiv) Seller shall have taken such other action as Buyer shall have reasonably requested in order to transfer the Purchased Assets pursuant to this Agreement and to perfect all security interests granted under this Agreement or any other Transaction Document in favor of Buyer with respect to the Purchased Assets;
(xv) If such Eligible Asset was acquired by Seller from a Person that is not an Affiliate of Seller, Seller shall have disclosed to Buyer the acquisition cost of such Eligible Asset (including therein reasonable supporting documentation required by Buyer, if any);
(xvi) Buyer shall have received all such other and further documents, documentation and legal opinions as Buyer in its reasonable discretion shall reasonably require;
(xvii) Buyer shall have received (i) other than with respect to a Table Funded Purchased Asset, from Custodian on each Purchase Date an Asset Schedule and Exception Report (as defined in the Custodial Agreement) with respect to each Purchased Asset, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day; or (ii) a Bailee Letter from an Acceptable Attorney identifying the applicable Release Letter being held on behalf of Buyer;
(xviii) Unless waived by Buyer in its sole discretion, as of the applicable Purchase Date for such Eligible Asset, the Transaction would not cause the Purchase Price of the applicable Eligible Asset or the aggregate Purchase Price of all Purchased Assets after giving effect to the applicable Transaction, in either such case, to violate any Concentration Limit;
(xix) Unless waived by Buyer in its sole discretion, the Advance Rate relating to such Eligible Asset shall not exceed the Maximum Advance Rate and the Buyer’s LTV for such Eligible Asset shall be no greater than fifty-five (55%) as of the applicable Purchase Date;
(xx) Buyer shall have received from Seller the Draw Fee related to such Eligible Asset in accordance with the terms and provisions of the Fee Letter; and
(xxi) With respect to any Eligible Asset to be purchased hereunder on the related Purchase Date that is a Mezzanine Loan, where the servicer of the Senior Mortgage Loan is not the Primary Servicer, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)servicer.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Terra Property Trust, Inc.), Master Repurchase Agreement (Terra Secured Income Fund 5, LLC)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) therefor:
(a) Buyer has received the following documents for each prospective Purchased Asset: (i) a Transaction Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the prospective Purchased Asset is subject to the satisfaction not serviced by Buyer or an Affiliate of Buyer, copies of the following further conditions precedentrelated Servicing Agreements, both (v) Irrevocable Redirection Notices, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement, (vii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, (viii) a Servicer Notice, (ix) a duly completed Compliance Certificate and (x) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit, Market Disruption Event or Material Adverse Effect have occurred and be continuing, and the representations Minimum Facility Debt Yield Test, and warranties made by LTV/LTC Test are each in compliance, and no default or event of default exists under any other financing, hedging, security or other agreement (other than this Agreement) between Seller in Section 10and any of its Affiliates, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if Buyer or any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Affiliate thereof;
(5c) Buyer has completed its due diligence review of the Underwriting Package, Purchased Asset Documents and such other documents, records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer;
(d) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(e) immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Amount;
(6f) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer Repurchase Date specified in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionthe Confirmation is not later than the Maturity Date;
(7g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the Purchase Date; to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Seller has satisfied all applicable requirements under such pledgee provisions (including, if applicable, the giving of notice to the applicable Persons of Buyer’s interest in such Purchased Asset), so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(h) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(i) Buyer has received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Sellersuch Asset, (ii) Seller shall have provided has assigned or pledged to Buyer all of Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement and related documents, subject to, in the case of a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand thereforCleared Swap, (A) all reasonable out-of-pocket fees the rights, if any, of the related DCO and expenses of counsel to Buyer as contemplated by Section 14(b), FCM and (B) any limitation on assignment or pledge by Seller required by the DCO or FCM, and (iii) no termination event, default or event of default (however defined) exists thereunder;
(j) if requested by Buyer, such opinions from counsel to the extent Seller is required hereunder to reimburse Seller, Pledgor and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named the perfected security interest in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of Purchased Assets, the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior Pledged Collateral and any other collateral pledged pursuant to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawfulRepurchase Document, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredtrue sale issues; and
(19k) Custodian shall have received executed blank assignments of all Purchased Asset Documents in appropriate form for recording in the Repurchase Date for such Transaction jurisdiction in which the underlying real estate is not later than located, together with executed blank assignments of all Purchased Asset Documents (the Termination Date“Blank Assignment Documents”). Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in this Section 3(b) have been satisfied (both as an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the date related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 2 contracts
Sources: Master Repurchase and Securities Contract (KKR Real Estate Finance Trust Inc.), Master Repurchase and Securities Contract (KKR Real Estate Finance Trust Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) therefor:
(a) Buyer has received the following documents for each prospective Purchased Asset: (i) [reserved] (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the prospective Purchased Asset is subject to the satisfaction not serviced by Buyer or an Affiliate of Buyer, copies of the following further conditions precedentrelated Servicing Agreements, both (v) Irrevocable Redirection Notices, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement (as defined in the Custodial Agreement), (vii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, and (viii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit or Material Adverse Effect shall have occurred and is continuing, and the representations Debt Yield Test (with respect to all Legacy Purchased Assets) and warranties made by Seller PPV Test are all in Section 10, shall be true, correct compliance with respect to both the proposed Transaction and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)each other Purchased Asset;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) with respect to any Buyer has (i) determined that such Asset is an Eligible Asset to be purchased hereunder on Asset, (ii) approved the related Purchase Date which is not serviced by Sellerpurchase of such Asset, Seller shall have provided to Buyer a copy of (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerConfirmation;
(8) Buyer shall have receivede) immediately after giving effect to such Transaction, solely the Aggregate Amount Outstanding does not exceed the Maximum Amount;
(f) the Repurchase Date specified in the Confirmation is not later than the Maturity Date;
(g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the extent that Buyer previously shall have delivered to Seller a written demand therefor, Purchase Date;
(A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, ▇▇▇▇▇ has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(i) any license, registration or other similar certification or official document available to Seller from the jurisdiction where the related Underlying Mortgaged Property is located, to the extent necessary for Seller to enforce its rights and remedies under the related Purchased Asset Documents;
(j) if requested by ▇▇▇▇▇, such opinions from counsel to Seller, Pledgor and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution perfected security interest in the Purchased Assets, the Pledged Collateral and any other collateral pledged pursuant to the Repurchase Document, and true sale opinions for each Purchased Asset purchased by or transferred to Seller from an affiliated entity other than with respect to Purchased Assets transferred pursuant to a Master Bill of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunderSale;
(9k) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelinesno Change of Control has occurred unless such Change of Control has been approved by ▇▇▇▇▇;
(10l) Custodian (or a bailee) shall have received executed blank assignments of all Purchased Asset Documents in appropriate form for recording, to the extent there such documents are any MERS Designated Mortgage Loansrequired to be recorded, Buyer shall have received from Seller a copy in the jurisdiction in which the underlying real estate is located, together with executed blank assignments of a fully executed Electronic Tracking Agreementall Purchased Asset Documents (the “Blank Assignment Documents”);
(11m) Neither Advisor nor any of its Subsidiaries have defaulted beyond any applicable grace period in paying any amount or performing any obligation due to Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination any Affiliate of Buyer resulting in the effective absence of a “repo market” under any other financing, hedging, security or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
other agreement (B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations other than under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loanbetween Advisor or any of its Subsidiaries, and Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredBuyer; and
(19n) the Repurchase Date for such Transaction is not later than the Termination Date. no Insolvency Event has occurred with respect to either Advisor or Sub-Advisor; Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as or expressly waived by ▇▇▇▇▇ in writing) other than those set forth in Sections 6.01(a)(viii), (d) and (e) and Sections 6.02(c) and (d). The failure of Seller to satisfy (or obtain an express waiver in writing of) any of the date conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall, within two (2) Business Days, pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 2 contracts
Sources: Master Repurchase and Securities Contract (FS Credit Real Estate Income Trust, Inc.), Master Repurchase and Securities Contract (FS Credit Real Estate Income Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s 's obligation to enter into each Committed Transaction (including the initial Transaction) and, in the event Buyer chooses, in its sole discretion, to enter into an Uncommitted Transaction pursuant to Section 3(c) below, Buyer's obligation to enter into each Uncommitted Transaction, is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s 's right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by the Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and the Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)) and, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all Buyer shall have received the reasonable out-of-pocket costs and expenses incurred by Buyer it in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s 's option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “"securities market” " for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(1311) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(1412) Buyer shall have received from Seller a Warehouse Lender’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(1513) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any third party, including without limitation, any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(1714) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(1915) the Repurchase Date for such Transaction is not later than the Termination Date;
(16) after giving effect to the requested Committed Transaction, the aggregate amount of outstanding Committed Transactions shall not have Purchase Prices in excess of the Maximum Committed Amount;
(17) after giving effect to the requested Uncommitted Transaction, the aggregate amount of outstanding Uncommitted Transactions shall not have Purchase Prices in excess of the Maximum Uncommitted Amount;
(18) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(19) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(20) immediately prior to the requested Transaction and also after giving effect thereto and to the intended use of the proceeds thereof, the Tangible Net Worth of AHMIC and its consolidated Subsidiaries shall be at least $500,000,000; provided, however, that in no event shall the Seller's failure to meet such Tangible Net Worth test result in any Non-Use Fee or Termination Fee to the Seller hereunder; and
(21) immediately prior to the requested Transaction and also after giving effect thereto and to the intended use of the proceeds thereof, Seller shall not permit, for any period of three (3) consecutive calendar months, Net Income of AHMIC and its consolidated Subsidiaries for such period determined on a monthly basis, before income taxes for such period and distributions made during such period, to be less than $1.00. With respect to any failure of condition precedent to any Transaction resulting from the failure of Buyer to approve any replacement facility to the Existing Facilities, in no event shall such failure result in any Non-Use Fee or Termination Fee to the Seller hereunder. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)) and shall be deemed to be a request for a Committed Transaction; provided that after giving effect to the requested Committed Transaction, the aggregate amount of outstanding Committed Transactions shall not have Purchase Prices in excess of the Maximum Committed Amount, in which case such request shall be deemed a request for an Uncommitted Transaction.
Appears in 2 contracts
Sources: Master Repurchase Agreement (American Home Mortgage Investment Corp), Master Repurchase Agreement (American Home Mortgage Investment Corp)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the Purchase Date therefor:
(a) Buyer has received the following further conditions precedentdocuments: (i) a Transaction Request, both (ii) the related MBS Information, (iii) a Confirmation executed by Buyer and Seller, (iv) Irrevocable Redirection Notices, if any, (v) any Trade Tickets related to such Asset and (vi) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit, Material Adverse Effect or warranty is expressly stated to have been made as of a specific date, as of such specific date)Market Disruption Event exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Purchased AssetMBS Information, Records (if any) and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)appropriate, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence results of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold reviews are satisfactory to Buyer;
(15d) prior to Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of any Mortgage Loan acquired such Asset, (by purchase or otherwiseiii) by Seller from any Affiliate of Sellerobtained all necessary internal credit and other approvals for such Transaction, Buyer shall have received a True Sale Certificationand (iv) executed the Confirmation;
(16e) with respect the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance companysuch Transaction;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19f) the Repurchase Date for such Transaction as specified in the related Confirmation is not later than the Facility Termination Date;
(g) Seller and Custodian have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date; and
(h) The definitive certificate representing ownership of such Purchased Assets that are subject to such Transaction in the name of Buyer or, if such Purchased Assets that are subject to such Transaction are registered on DTC or similar depository, evidence satisfactory to Buyer that the records of DTC or such depository show Buyer as the beneficial owner of such Purchased Assets that are subject to such Transaction. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(bArticle 6 (excluding clauses (c), (d) and, insofar as it relates to Custodian, (g) above) have been satisfied (both as satisfied. The failure of Seller to satisfy any of the date conditions precedent in this Article 6 (excluding clauses (c), (d) and, insofar as it relates to Custodian, (g) above) with respect to any Transaction or Purchased Asset shall, unless such failure was waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 2 contracts
Sources: Master Repurchase and Securities Contract (AG Mortgage Investment Trust, Inc.), Master Repurchase Agreement (AG Mortgage Investment Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction for the purchase of any Eligible Asset or funding of any Purchase Price Increase, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Eligible Asset and Underlying Asset on and as of the Purchase Date therefor:
(a) Buyer has received the following documents: (i) a Transaction Request, (including ii) an Underwriting Package, (iii) a Confirmation, (iv) copies of the initial Transaction) is subject related Servicing Agreements, to the satisfaction extent not already provided, (v) all related Servicer Letter Agreements to the extent not already provided, and shall have received and consented to all amendments, supplements and modifications thereto, (vi) each trust receipt and any other items required to be delivered under the Custodial Agreement and any Custodial Supplement, (vii) the relevant Assignment and Contribution Agreement duly executed by all parties thereto, and (viii) all other documents, certificates, information, financial statements, reports, approvals and opinions of the following further conditions precedent, both counsel as Buyer may reasonably require all in form and substance reasonably satisfactory to Buyer;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach with respect to the representations and warranties made by Seller in Section 10Eligible Assets or related Underlying Assets proposed to be sold, shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit, Material Adverse Effect or warranty is expressly stated to have been made as of a specific date, as of such specific date)Market Disruption Event exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Purchased AssetUnderwriting Package, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset each Underlying Asset, and the results of such reviews are satisfactory to be purchased hereunder Buyer, which determination may include, without limitation, ordering BPOs on a representative sample of Underlying Assets as determined by Buyer and its credit review of the related Purchase Date which is not serviced by Seller, data. Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, pay all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 6.02(c); provided, that Sellers shall not be responsible for paying Buyer’s costs and expenses in excess of, in the entering into aggregate, $20.00 per Underlying Asset in such pool of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental Underlying Assets. Sellers shall deliver BPOs in addition to the execution representative sample upon the request of any Transaction hereunderBuyer, which amounts, provided that these additional BPOs shall be at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereundersole expense. Sellers shall provide Buyer with a BPO Schedule for all Underlying Assets;
(9d) Buyer shall have approvedhas (i) determined that such Trust Certificate is an Eligible Asset and each Underlying Asset is an Eligible Mortgage Loan or Eligible REO Property, in its sole discretion, all exceptions to and (ii) has executed the Underwriting GuidelinesConfirmation;
(10e) the Aggregate Purchase Price of all Transactions does not exceed the Maximum Aggregate Purchase Price after giving effect to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreementsuch Transaction;
(11f) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in such Purchase Date occurs on or after the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable Closing Date but prior to the occurrence expiration of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially Revolving Period and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction specified in the Confirmation is not later than the Facility Termination Date. Each Transaction Request delivered ;
(g) Sellers and Custodian have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before such Purchase Date;
(h) to the extent the related Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, Buyer has received evidence that the related Seller hereunder shall constitute has given notice to the applicable Persons of Buyer’s interest in such Underlying Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a certification by Seller that all pledgee under such pledgee provisions;
(i) [reserved]; and
(j) the conditions set forth Price Differential Maintenance Account contains funds in this Section 3(b) have been satisfied (both as of an amount equal to the date of such notice or request and as of the date of such purchase)Price Differential Required Amount.
Appears in 2 contracts
Sources: Master Repurchase Agreement and Securities Contract (Altisource Residential Corp), Master Repurchase Agreement (Altisource Residential Corp)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) therefor:
(a) Buyer has received the following documents for each prospective Purchased Asset: (i) [reserved], (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the prospective Purchased Asset is subject not serviced by Buyer or an Affiliate of Buyer, copies of the related Servicing Agreements, (v) an Irrevocable Redirection Notice that is (x) executed by Seller and delivered to Custodian on behalf of Buyer, and (y) to the satisfaction extent the related Underlying Obligor is not required by the related Purchased Asset Documents to remit Income to the Servicer, a fully executed Irrevocable Redirection Notice delivered to Custodian on behalf of Buyer, (vi) if the Underlying Obligor is required to remit Income to the Servicer, evidence satisfactory to Buyer that the Underlying Obligor has been so directed to remit Income to Servicer in accordance with the Purchased Asset Documents, (vii) a trust receipt from Custodian, together with all other items required to be delivered under the Custodial Agreement (for all Purchased Assets other than Wet Mortgage Assets), (viii) with respect to any Wet Mortgage Asset, a Bailee Agreement (as such term is defined in the Custodial Agreement) and the related trust receipt from such Bailee, together with electronic or physical copies of all items required to be delivered under the Custodial Agreement, (ix) the related Servicing Agreement, if a copy was
(d) Buyer has (i) determined that such Asset is an Eligible Asset and complies, on the related Purchase Date, with both the Minimum Purchased Asset Debt Yield Requirement and the Maximum Purchased Asset PPV Requirement, in each case, as evidenced by Buyer’s execution of the following further conditions precedentrelated Confirmation, both immediately prior to entering into (ii) approved the purchase of such Asset as evidenced by Buyer’s execution of the related Confirmation, (iii) obtained all necessary internal credit and other approvals for such Transaction as evidenced by Buyer’s execution of the related Confirmation, and also (iv) executed the Confirmation; (e) immediately after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested such Transaction, (I) the aggregate outstanding Purchase Price of the Transactions outstanding shall all Purchased Assets does not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (BII) to Guarantor will be in compliance with all of the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named financial covenants set forth in the Interim Funder field for each such MERS Designated Mortgage Loan;
Guarantee Agreement; (12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19f) the Repurchase Date for such Transaction specified in the Confirmation is not later than the Facility Termination Date. Each Transaction Request delivered ; (g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the Purchase Date; (h) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received satisfactory evidence that Seller hereunder shall constitute a certification by Seller that all has given notice (or will deliver such required notice contemporaneously with the conditions set forth in this Section 3(b) have been satisfied (both as consummation of the date Transaction) to the applicable Persons of Buyer’s interest in such notice or request Asset and as otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of the date of a pledgee under such purchase).pledgee provisions;
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (BrightSpire Capital, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation to enter into Each Advance under this Agreement, each Transaction Addition, each Substitution and each Discretionary Sale (including the initial each, a “Transaction”) is shall be subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saleprecedent that:
(1a) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request On and as of the date of such purchaseTransaction the following statements shall be true and correct, and the Borrower by entering into such Transaction shall be deemed to have certified that:
(i) with respect to any Advance, the Servicer (on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Agent) no later than (x) 2:00 p.m. on the date that is one (1) Business Day prior to the proposed Advance Date for any Dollar Advances, (y) 11:00 a.m. on the date that is two (2) Business Days prior to the proposed Advance Date for any Advance in an Eligible Currency other than Dollars or AUDs and (z) 2:00 p.m. on the date that is three (3) Business Days prior to the proposed Advance Date for any AUD Advances, a Servicer Advance Date Report;
(ii) with respect to any Transaction other than an Advance, the Servicer (on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Agent) no later than one Business Day prior to such Transaction, a Borrowing Base Certificate and Loan Tape updated to give pro forma effect to the relevant Addition, Substitution or Discretionary Sale; provided that if the Servicer delivers a Borrowing Base Certificate on the same Business Day as any Addition or Substitution, the Administrative Agent may in its sole discretion accept the Borrowing Base Certificate and approve such Addition or Substitution;
(iii) with respect to any Transaction that is an Addition, (A) the Borrower shall have delivered to the Collateral Custodian (with a copy to the Administrative Agent), on or prior to the date of such Addition, an Approval Notice and the Loan Checklist, (B) in the case of any Loan acquired by the Borrower through direct origination by the Borrower or an Affiliate thereof, the Borrower shall have delivered to the Collateral Custodian (with a copy to the Administrative Agent) (1) within two (2) Business Days (or within five (5) Business Days in the case of clause (c) of the definition of Required Loan Documents) of the date on which funds are released to the related Obligor for settlement of the Loan (as notified by the Collateral Agent to the Administrative Agent), the Required Loan Documents and (2) prior to the release of such funds to the related Obligor as set forth in clause (1), a confirmation from the Servicer that the Required Loan Documents have been finalized and agreed among the relevant parties (which, if the Loans to be Pledged are closed in escrow, may take the form of a certificate (in the form of Exhibit G) from the closing attorneys of such Loans certifying the possession of the Required Loan Documents) and that the Borrower will provide copies of the fully executed Required Loan Documents to the Collateral Custodian (with a copy to the Administrative Agent) as set forth in clause (1); and (C) in the case of a Loan acquired by the Borrower from a third party, the Borrower shall cause to be delivered to the Collateral Custodian (with a copy to the Administrative Agent), within two (2) Business Days after the date of such Addition, (1) the Required Loan Documents, (2) an executed copy of each assignment and assumption agreement, transfer document or instrument relating to each Loan so Pledged evidencing the assignment of such Loan from any prior third party owner thereof directly to the Borrower, and (3) other than in the case of a Noteless Loan, an e-mailed copy of the duly executed original promissory notes of the Loans so Pledged (and, in the case of any Noteless Loan, a fully executed assignment agreement);
(b) On and as of the date of such Transaction, after giving effect to such Transaction, the Borrower and the Servicer shall certify as follows:
(i) no Unmatured Event of Default (other than a Borrowing Base Deficiency) or Event of Default exists or would result from such Transaction;
(ii) (A) in the case of an Advance, no Borrowing Base Deficiency exists or would result from such Transaction and (B) in the case of a Transaction other than an Advance, either (I) no Borrowing Base Deficiency exists or would result from such Transaction or (II) if a Borrowing Base Deficiency exists the relevant Transaction will cure or reduce such Borrowing Base Deficiency;
(iii) other than Permitted Liens, no Liens exist in respect of Taxes which are prior to the lien of the Collateral Agent on the Eligible Loan Assets to be Pledged on the date of such Transaction;
(iv) the representations and warranties contained in Section 4.01, Section 4.02 and Section 4.03 and the representations and warranties of the Servicer contained in the Servicing Agreement are true and correct in all respects (other than any representation and warranty that is made as of a specific date), and no material breach of any covenant contained in Section 5.01, Section 5.02, Section 5.03 and Section 5.04 would result from the Transaction or the application of proceeds therefrom;
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Servicer Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Servicer Default;
(vi) since the later of the Closing Date or the date of the last financial statements (or the last day of the period covered by such financial statements) delivered pursuant to Section 6.08(g), there has been no material adverse change in the ability of the Transferor to perform its obligations under any Transaction Document;
(vii) in the case of an Advance, all terms and conditions of the Sale and Contribution Agreement and the Master Participation Agreement, as applicable, required to be satisfied in connection with the assignment of each Eligible Loan Asset being Granted hereunder as a result of such Transaction (and the Portfolio Asset related thereto), including, the perfection of the Borrower’s interests therein, shall have been satisfied in full, and all filings (including, UCC filings) required to be made by any Person and all actions required to be taken or performed by any Person in any jurisdiction to give the Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest (subject only to Permitted Liens) in the Collateral Portfolio, including such Eligible Loan Assets and the Portfolio Asset and the proceeds thereof shall have been made, taken or performed or will be so on the related Addition Date;
(viii) in the case of an Advance, the Loan to be acquired with the proceeds of any Advance is an Eligible Loan Asset as of the Addition Date; and
(A) with respect to Eligible Loan Assets purchased with Advances, such Advance shall be denominated in the same Eligible Currency as such Loan and (B) with respect to Eligible Loan Assets purchased with available Principal Collections, such Principal Collections shall be denominated in the same Eligible Currency (or converted to such Eligible Currency pursuant to Section 2.18(f)(iii)) as the Loan acquired in connection with such reinvestment.
(c) Each Eligible Loan Asset identified on the updated Loan Tape for inclusion in the Collateral Portfolio on the applicable Addition Date has been approved by the Administrative Agent in an Approval Notice.
(d) No Applicable Law shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of such Advances by any Lender or the proposed Pledge of Eligible Loan Assets in accordance with the provisions hereof.
(e) With respect to an Advance, the proposed Advance Date shall take place during the Revolving Period.
(f) All filings (including, without limitation, UCC filings) required to be made by any Person and all actions required to be taken or performed by any Person in any jurisdiction to give the Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest (subject only to Permitted Liens) in any Eligible Loan Assets to be Pledged in connection with such Transaction and the Portfolio Assets related thereto and the proceeds thereof shall have been made, taken or performed.
(g) The Borrower shall have paid in full all fees then required to be paid pursuant to the Transaction Documents, including all fees required hereunder and under the applicable Lender Fee Letters, the Administrative Agent Fee Letter and the W▇▇▇▇ Fargo Fee Letter.
Appears in 1 contract
Sources: Loan and Servicing Agreement (FS Investment Corp II)
Conditions Precedent to all Transactions. Upon satisfaction of the conditions set forth in this Section 3(b), the Buyer shall enter into a Transaction with a Seller. Buyer’s obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2ii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use of the proceeds thereof, the representations and warranties made by each Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iv) after After giving effect to the requested Transaction, (A) the aggregate outstanding Purchase Price for all Purchased Mortgage Loans subject to then outstanding Transactions under this Repurchase Agreement shall not exceed the Maximum Purchase Price and (B) the Purchase Price shall be no less than the Minimum Purchase Price;
(v) After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6vi) With respect to Transactions the subject of which are Mortgage Loans other than Wet-Ink Mortgage Loans, at or prior to Buyer’s right 10 a.m. (New York Time) one (1) day prior to perform one or more Due Diligence Reviews pursuant to Section 26the related Purchase Date, Buyer each applicable Seller shall have completed its due diligence review of delivered to the Mortgage File for each Purchased AssetBuyer (a) a Transaction Request, and such other documents(b) a Purchased Mortgage Loan Report, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset Transactions the subject of which are Wet-Ink Mortgage Loans, at or prior to 5 p.m. (New York Time) one (1) Business Day prior to the related Purchase Date, such Sellers shall have delivered to the Buyer (a) a Transaction Request, and (b) a report detailing the approximate outstanding principal balance of Wet-Ink Mortgage Loans to be purchased hereunder by the Buyer on such Purchase Date and the approximate amount of the related Purchase Price (the “Estimated Purchase Price”).
(vii) With respect to Transactions the subject of which are Wet-Ink Mortgage Loans:
(A) By 3:00 p.m. (New York City time) on the related Purchase Date which is not serviced by SellerDate, Seller the Buyer and the Disbursement Agent shall have provided received (a) the final Mortgage Loan Schedule, including, without limitation, a schedule setting forth the mortgage loan identification number, the Mortgagor name and the approximate outstanding principal balance of Wet-Ink Mortgage Loans to be purchased by Buyer a copy on such Purchase Date, (b) an updated report setting forth the approximate outstanding principal balance of Wet-Ink Mortgage Loans to be purchased by the Buyer on such Purchase Date and the amount of the related Servicing Agreement, certified as Purchase Price (the “Actual Purchase Price”) and (c) a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;Wiring Schedule; and
(8) B) By 3:00 p.m. (New York City time) on the related Purchase Date, the Buyer shall have received, solely to received a Wet-Ink Trust Receipt for each Wet-Ink Mortgage Loan with the extent that Buyer previously related Mortgage Loan Schedule attached thereto; and
(viii) The Sellers shall have delivered to Seller the Custodian the Mortgage File with respect to each Purchased Mortgage Loan which is not a written demand therefor, Wet-Ink Mortgage Loan and the Custodian shall have issued a Trust Receipt with respect to each such Purchased Mortgage Loan to the Buyer;
(Aix) The Buyer shall have received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 27 which amounts, at the Buyer’s option, may be withheld from the sale proceeds of remitted by Buyer to the Sellers pursuant to any Transaction hereunder;
(9x) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the The following shall not have occurred and/or be continuing:
(A) : an event or events shall have occurred that in the good faith determination of the Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13xi) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by a Seller hereunder shall constitute a certification by such Seller that all the conditions set forth in this Section 3(b) (other than clause (x) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s 's obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2i) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4ii) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller in Section 1010 hereof, shall be true, correct true and complete on and as of such Purchase Date in all material respects (in the case of the representations and warranties in Section 10(xv) and Exhibit 2, solely with respect to Purchased Mortgage Loans) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);. The Buyer shall have received an officer's certificate signed by a Responsible Officer of the Seller certifying as to the truth and accuracy of the above, which certificate shall specifically include a statement that such Seller is in compliance in all material respects with all governmental licenses and authorizations and is qualified to do business and in good standing in all required jurisdictions except where the failure to be in such compliance or so qualified would not have a Material Adverse Effect.
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6iii) subject to the Buyer’s 's right to perform one or more Due Diligence Reviews pursuant to Section 2627 hereof, the Buyer shall have completed its due diligence review of the Mortgage File Loan Documents for each Purchased Asset, Mortgage Loan and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset Mortgage Loans as the Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to the Buyer in its sole discretion;
(7iv) the Buyer shall have received from the Trustee a Mortgage Loan Schedule and Collateral Report with exceptions acceptable to the Buyer in its sole discretion in respect to any of Eligible Asset Mortgage Loans to be purchased hereunder on such Business Day;
(v) the related Purchase Date Trustee shall have received a Pledge Notice substantially in the form provided in the Pooling and Servicing Agreement (a copy of which is not serviced by Seller, shall be delivered to the Buyer);
(vi) the Seller shall have provided to Buyer a copy of received duly authenticated Pledged Certificates representing the related Servicing Agreement, certified as a true, correct and complete copy of Mortgage Loans purchased under the original, together with a Servicer Notice, fully executed by Seller and ServicerTransaction;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12vii) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities for a period of (or reasonably expected to be) at least 30 consecutive days or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events, provided that the Buyer shall notify the Seller promptly upon the occurrence of any such event, provided further that this Section 3(b)(vi)(A) shall not take effect until 5 Business Days after such notice; or
(B) an event or events shall have occurred resulting in the effective absence of a “"securities market” " for securities backed by mortgage loans for a period of (or reasonably expected to be) at least 30 consecutive days or an event or events shall have occurred resulting in the Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in , provided that the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated notify the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in promptly upon the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase occurrence of any Mortgage Loan acquired (by purchase or otherwisesuch event, provided further that this Section 3(b)(vi)(B) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for take effect until 5 Business Days after such Transaction is not later than the Termination Datenotice. Each Transaction Request delivered for Purchase by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice notice, request or request confirmation and as of the date of such purchaseborrowing).
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied in the discretion of Buyer, or waived by Buyer in its discretion, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the Purchase Date therefor:
(a) Buyer has received the following further conditions precedentdocuments, both executed, if necessary, by the appropriate party thereto: (i) a Transaction Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) Irrevocable Redirection Notices, (v) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) an Omnibus Assignment, and (vii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require in its discretion;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit, Material Adverse Effect or warranty is expressly stated to have been made as of a specific date, as of such specific date)Market Disruption Event exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Purchased AssetUnderwriting Package, Whole Loan Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretion;
(7d) with respect to any Buyer has in its discretion (i) determined that such Asset is an Eligible Asset to be purchased hereunder on Asset, (ii) approved the related Purchase Date which is not serviced by Sellerpurchase of such Asset, Seller shall have provided to Buyer a copy of (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerConfirmation;
(8) Buyer shall e) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;
(f) the Purchase Date is not later than the Funding Expiration Date and the Repurchase Date is not later than the then-current Maturity Date;
(g) Seller and Custodian have receivedsatisfied all requirements and conditions and have performed all covenants, solely duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the extent that Buyer previously shall have delivered to Seller a written demand therefor, Purchase Date;
(A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent Seller is required hereunder to reimburse Buyer for such amountsthe related Whole Loan Documents contain notice, all reasonable out-of-pocket costs cure and expenses incurred by Buyer other provisions in connection with the entering into favor of any Transaction hereundera pledgee under a repurchase or warehouse facility, including, and without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental prejudice to the execution sale treatment of any Transaction hereundersuch Asset to Buyer, which amounts, at Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s option, may be withheld from interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the sale proceeds rights and benefits of any Transaction hereundera pledgee under such pledgee provisions;
(9i) Buyer has received a copy of any Interest Rate Protection Agreement, if required, and related documents entered into with respect to such Asset; provided, however, that with respect to Assets purchased on the Closing Date, such Interest Rate Protection Agreement shall have approvedbe delivered within sixty (60) days thereafter and with respect to Assets purchased after the Closing Date, in such Interest Rate Protection Agreement shall be delivered within thirty (30) days of purchase, (ii) Seller has assigned to Buyer all of Seller’s rights (but none of its sole discretionobligations) under such Interest Rate Protection Agreement and related documents, all exceptions to the Underwriting Guidelinesand (iii) no termination event, default or event of default (however defined) exists thereunder;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11j) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named executed blank assignments of all Whole Loan Documents in appropriate form for recording in the Interim Funder field for each such MERS Designated Mortgage Loan;jurisdiction in which the underlying real estate is located, and executed blank assignments of all Senior Interest Documents (the “Blank Assignment Documents”); and
(12k) none of the following shall have occurred and/or be continuing:
(A) For all Assets acquired from or originated by an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, such Asset (other than the Original Purchased Assets) has not been and is not being transferred (directly or indirectly) by or through Guarantor or any Relevant Affiliate, and counsel to Seller has delivered to Buyer shall have received a True Sale Certification;
true sale opinion in form and substance acceptable to Buyer (16) in its sole discretion), which opinion makes no assumptions for, and takes no qualifications with respect to each Eligible (x) consolidation of Seller with any Affiliate thereof or (y) consolidation of the transferor of such Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
with any other Person (17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later other than the Termination Dateopinion delivered on the Closing Date with respect to the Original Purchased Assets). Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(bArticle 6 (other than those which must be satisfied solely by Buyer) have been satisfied (both as satisfied. The failure of Seller to satisfy any of the date conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was waived in writing by Buyer in its discretion on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall, within three (3) Business Days of notice of such notice or request and as of rescission, pay to Buyer the date Repurchase Price of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase Agreement (Dividend Capital Total Realty Trust Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the Purchase Date therefor:
(a) Buyer and/or Custodian has received the following further conditions precedentdocuments: (i) a Transaction Request, both (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the Asset is not serviced by ▇▇▇▇▇, originals of the related Servicing Agreements, (v) Irrevocable Redirection Notices duly executed by Seller and each other applicable Person, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, and (vii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) Servicer has received copies of all documents in the Mortgage Asset File and the Critical to Board Package (as defined in the Servicing Agreement);
(c) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (other than with respect to a Purchased Asset purchased prior to the representations and warranties made by Seller in Section 10related Purchase Date) other than Approved Representation Exceptions, shall be true, correct and complete on and as Default or Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Default exists;
(5d) immediately before such Transaction and after giving effect thereto and to the intended use thereof, no (i) Material Adverse Effect, (ii) Market Disruption Event or (iii) Margin Deficit exists;
(e) delivery by Guarantor to Buyer of a Compliance Certificate;
(f) no Requirements of Law shall prohibit or render it unlawful, and no order, judgment or decree of any Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into any Transaction, including after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactionsconsummation thereof;
(6g) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Underwriting Package, Mortgage File for each Purchased Asset, Loan Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7h) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(i) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;
(j) the Purchase Date specified in the Confirmation is not later than the Funding Expiration Date;
(k) the Repurchase Date is not later than the Facility Termination Date;
(l) Seller, Guarantor, Servicer (in the event ▇▇▇▇▇ is not the Servicer), Pledgor and Custodian (in the event ▇▇▇▇▇ is not the Custodian) have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date;
(m) to the extent any Purchased Asset was not originated by Seller, all requirements of Section 7.10 have been fulfilled with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicersuch Purchased Asset;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bn) to the extent the related Mortgage Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer's interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(o) if requested by Buyer, such opinions from counsel to Seller, Pledgor and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Documents;
(9i) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have has received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, any Interest Rate Protection Agreement and related documents entered into with respect to MERS Designated Mortgage Loanssuch Asset, a MERS Report reflecting (ii) Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
has collaterally assigned to Buyer all of Seller's rights (12) but none of the following shall have occurred and/or be continuing:
(Aits obligations) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of under such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially Interest Rate Protection Agreement and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawfulrelated documents, and (iii) no Governmental Authority shall have asserted that it is unlawfultermination event, for Buyer to enter into Transactions;
default or event of default (18however defined) the Effective Date shall have occurredexists thereunder; and
(19q) Seller has complied with all other requirements set forth in the Repurchase Date Documents for the purchase of such Transaction is not later than the Termination DateAsset. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as or waived by Buyer) other than those set forth in Section 6.01(h) and Sections 6.02(g) and (h). The failure of Seller to satisfy (or obtain a waiver, in writing, from Buyer of) any of the date conditions precedent in any material respect in Section 6.02 (other than those set forth in Sections 6.02(g) and (h)) with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Exantas Capital Corp.)
Conditions Precedent to all Transactions. Buyer’s 's obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).;
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s 's right to perform one or more Due Diligence Reviews pursuant to Section 2628, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller Buyer shall have provided received from Seller certified copies of any Servicing Agreement relating to the Eligible Assets and Buyer a copy of the related shall have reviewed and approved each such Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerAgreement in its sole discretion;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amountsamount, at Buyer’s 's option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “"securities market” " for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;; or
(1311) with respect to each Eligible Asset that is not a Wet-Ink Mortgage LoanAsset, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report or Trust Receipt and Basic Status Report, as applicable, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(1412) Buyer shall have received from Seller a Warehouse Lender’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit VII-B hereto (or such other form acceptable to Buyer) or a Seller’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit VII-A hereto (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(1513) prior to the purchase The aggregate requested Purchase Price of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset Assets that is a are not Wet-Ink Mortgage Loan, Loans that Seller has requested Buyer shall have received an insured closing letter from each Settlement Agent that purchase pursuant to the Transaction Request is not a title insurance companyequal to or in excess of $10,000,000;
(1714) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(1915) the The Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller each of NCCC and NCMC that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase). Each of NCCC and NCMC hereby request that Buyer, on each Business Day, convert each Eligible Asset which is a Wet-Ink Mortgage Loan for which the Mortgage File has been received by the Custodian in accordance with the Custodial Agreement to a dry Mortgage Loan and this request shall constitute a certification by each of NCCC and NCMC that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date hereof and as of the date of such conversion).
Appears in 1 contract
Sources: Master Repurchase Agreement (New Century Financial Corp)
Conditions Precedent to all Transactions. BuyerPurchaser’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also immediately after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1i) the sum of (A) the aggregate unpaid Repurchase Price for all prior outstanding Transactions (excluding accrued and unpaid Price Differential for the then current Pricing Rate Period) and (B) the requested Purchase Price for the pending Transaction shall not exceed an amount equal the Maximum Facility Purchase Price;
(ii) Seller shall have, no less than ten (10) Business Days prior to the requested Purchase Date:
(A) given notice to Purchaser of the proposed Transaction by delivering to Purchaser an executed and completed confirmation substantially in the form of Exhibit II hereto (a “Confirmation”). The Confirmation shall be signed by a Responsible Officer of Seller; provided, however, that Purchaser shall not be liable to Seller if it inadvertently acts on a Confirmation that has not been signed by a Responsible Officer of Seller; and
(B) concurrently with the delivery of the Confirmation, paid to Purchaser the Pre-Purchase Due Diligence/Legal Review Fee with respect to each Eligible Asset proposed to be subject to the Transaction;
(iii) Seller shall have delivered to Purchaser with respect to each Eligible Asset subject to the proposed Transaction, the documents required to be delivered prior to entering into a Transaction Request via Electronic Transmission pursuant to Exhibit VII hereto in accordance with the time frames set forth therein;
(iv) Seller shall have delivered to Custodian (A) the Custodial Delivery with respect to each Eligible Asset to be sold to Purchaser and (B) with respect to each Eligible Asset that is a Dry Purchased Asset, the Purchased Asset File, in each case, in accordance with the procedures and time frames set forth in Section 3(c).the Custodial Agreement;
(2v) Purchaser shall have completed its due diligence investigation of the Eligible Assets subject to the pending Transaction and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Eligible Assets, the Seller and the Guarantor as Purchaser in its sole discretion deems appropriate to review and such review shall be satisfactory to Purchaser in its sole discretion (the “Pre-Purchase Due Diligence”) and has determined, in its sole discretion, to purchase any or all of the Eligible Assets proposed to be sold to Purchaser by Seller, all of which Purchaser shall use commercially reasonable efforts to complete within the above-referenced ten (10) Business Day period. Purchaser shall inform Seller of its determination with respect to any such proposed Transaction solely in accordance with Exhibit VII hereto;
(vi) Purchaser shall have deliver to Seller a countersigned copy of the related Confirmation described in clause (ii)(A) above;
(vii) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documentsthis Agreement or any other Transaction Document;
(3viii) after giving effect to the requested Transactionno event shall have occurred which has, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amountor would have, a Material Adverse Effect;
(4ix) both immediately prior to Purchaser shall have waived all exceptions in the requested Transaction and also after giving effect thereto and to the intended use thereof, related Requested Exceptions Report;
(x) the representations and warranties made by Seller in Section 10, Article 9 (other than those contained in Article 9(b)(x)(D) relating to Purchased Assets subject to other Transactions) shall be true, correct and complete on and as of such the Purchase Date for the pending Transaction in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5xi) [reserved];
(xii) Purchaser shall have determined, in its sole and absolute discretion, that no Margin Deficit shall exist, either immediately prior to or after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6xiii) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer Purchaser shall have received from Custodian on each Purchase Date a Trust Receipt accompanied by an Asset Schedule and Exception ReportReport with respect to each Eligible Asset to be sold to Purchaser, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer Purchaser in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business DayPurchase Date;
(14xiv) Buyer Purchaser shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to BuyerPurchaser;
(15xv) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer Purchaser shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have reasonably determined that the introduction of, or a change in, in any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer Purchaser has not made it unlawful, and no Governmental Authority shall have asserted in writing that it is unlawful, for Buyer Purchaser to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19xvi) the Repurchase Date for such Transaction is not later than the earlier of (A) the Termination Date and (B) three hundred sixty-four (364) days following the related Purchase Date. Each ;
(xvii) Seller shall have taken such other action as Purchaser shall have reasonably requested in order to transfer the Eligible Assets being transferred to Purchaser pursuant to this Agreement and to perfect all security interests granted under this Agreement or any other Transaction Request delivered by Seller hereunder Document in favor of Purchaser as secured party under the UCC with respect to such Eligible Assets; and
(xviii) Purchaser shall constitute a certification by Seller that have received all such other and further documents, documentation and legal opinions (including, without limitation, opinions regarding the conditions set forth perfection of Purchaser’s security interests) as Purchaser in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)its reasonable discretion shall reasonably require.
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of therefor: • Buyer has received the following further conditions precedentdocuments for each Purchased Asset: (i) a Transaction Request[reserved], both (ii) an Underwriting Package, (iii) a Confirmation, (iv) Irrevocable Redirection Notices, (v) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement, (vii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, and (viii) all - 53 - other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require; • immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (including with respect to any Purchased Asset, but excluding any Approved Representation Exception), Default, Event of Default, Margin Deficit, or Material Adverse Effect shall have occurred and be continuing; • Buyer has completed its due diligence review of the representations Underwriting Package, Mortgage Loan Documents and warranties made by Seller in Section 10such other documents, shall records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer; • Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, (iv) executed the Confirmation, (v) determined that such Asset is adequately structured and stabilized, (vi) received payment of the Annual Funding Fee with respect to such Asset (which Annual Funding Fee may be truenetted from the Purchase Price funded on the applicable Purchase Date or netted from the Future Funding Amount funded on the applicable Future Funding Date, correct as applicable), and complete on and (vii) determined that such Asset satisfies the PPV Test as of such the Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) Date; • immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of Maximum Amount; • the Repurchase Date specified in the Confirmation is not later than the Maturity Date; • Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset Repurchase Documents to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed performed by Seller and Servicer;
(8) Buyer shall have received, solely on or before the Purchase Date; • to the extent the related Mortgage Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer previously shall have delivered is entitled to Seller the rights and benefits of a written demand thereforpledgee under such pledgee provisions; • if requested by Buyer, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs not covered by opinions previously delivered under similar facts and expenses incurred by Buyer circumstances where there has been no change in Requirements of Law in connection with the entering into of any Transaction hereunderthis Agreement, such customary opinions from counsel to Seller, Pledgor and Guarantor as Buyer may require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions other collateral pledged pursuant to the Underwriting Guidelines;
(10) Repurchase Document, and true sale opinions for each Purchased Asset purchased or transferred to Seller from an Affiliate of Seller or from any third party in a transaction not on arm’s-length terms or for other than fair market value, to the extent there are any MERS Designated Mortgage Loans, Buyer such transfer was in a manner or structure different from the manner or structure of transfer and sale analyzed in a true sale opinion previously delivered in connection with such Purchased Asset; and • Custodian shall have received executed blank assignments of all Mortgage Loan Documents each, if recordable, to be in appropriate form for recording in the jurisdiction in which the underlying Mortgaged Property is located (the “Blank Assignment Documents”). • Buyer has received payment from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Sellerall fees and expenses then due and payable under Section 3.07(b), with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none related provisions of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in Fee Letter and all expenses then due and payable as contemplated by Section 13.02, together with any other fees and expenses otherwise then due and payable pursuant to any of the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination DateDocuments. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied other than those set forth in this Section 3(bSections 6.01(a)(vii), (d) have been satisfied and (both as of the date of such notice or request e) and as of the date of such purchaseSections 6.02(a)(viii), (c), (d) and (k).
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.)
Conditions Precedent to all Transactions. The Buyer’s obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) Seller the Buyer shall have delivered received a Transaction Request Confirmation via Electronic Transmission Transmission, substantially in accordance the form of Exhibit ▇-▇ or Exhibit B-2 attached hereto, with respect to each Mortgage Asset to be purchased on the procedures set forth related Purchased Date, and the Buyer shall have approved the purchase of the Mortgage Asset to be included in Section 3(c).such Transaction in its sole and absolute discretion and shall have obtained all necessary internal credit approvals for such Transaction;
(2b) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4d) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5e) after giving effect the Buyer shall have received the complete Mortgage File with respect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the each Purchased Assets subject to outstanding TransactionsAsset;
(6f) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, the Buyer shall have completed its due diligence review of the Mortgage File and the Underwriting Package for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7g) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller Buyer shall have provided to Buyer a copy of received the related Special Servicing AgreementAgreement(s), each certified as a true, correct and complete copy of the original, original together with a Servicer Notice, fully executed by Seller Servicer Notice and ServicerAgreement consenting to termination of such Servicing Agreement upon the occurrence of an Event of Default;
(8) Buyer shall have received, solely to h) the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreementthe fees to be received on the Closing Date referred to in the Fee Letter;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12i) none of the following shall have occurred and/or be continuing:
(Ai) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable related “lending market” for financing debt obligations secured by mortgage a period of at least 2 consecutive Business Days respecting loans or mortgage-backed or asset-backed securities or an event or events shall have occurred resulting in such that the Buyer not being able is unable to finance Purchased Assets or fund purchases under this Agreement through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or eventsBuyer’s customers; or
(Bii) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans Mortgage Assets or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans Mortgage Assets at prices which would have been reasonable prior to such event or events; or
(Ciii) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13j) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit G-1 hereto (or such other form acceptable to Buyer) ), if applicable, or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit G-2 hereto (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15k) prior to the purchase of any Mortgage Loan Asset acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale CertificationOpinion;
(16l) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) the Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19m) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request ; and
(n) each Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) 11.2 have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) therefor:
(a) Buyer has received the following documents for each prospective Purchased Asset: (i) a Transaction Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the prospective Purchased Asset is subject to the satisfaction not serviced by Buyer or an Affiliate of Buyer, copies of the following further conditions precedentrelated Servicing Agreements, both (v) Irrevocable Redirection Notices, signed in blank, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement, (vii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, (viii) a Servicer Notice, (ix) a duly completed Compliance Certificate and (x) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit, Market Disruption Event or Material Adverse Effect shall have occurred and be continuing, and the representations Minimum Facility Debt Yield Test, and warranties made by LTV/LTC Test are each in compliance, and no default or event of default exists under any other financing, hedging, security or other agreement (other than this Agreement) between Seller in Section 10and any of its Affiliates, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if Buyer or any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Affiliate thereof;
(5c) Buyer has completed its due diligence review of the Underwriting Package, Purchased Asset Documents and such other documents, records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer;
(d) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(e) immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Amount;
(6f) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer Repurchase Date specified in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionthe Confirmation is not later than the Maturity Date;
(7g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the Purchase Date; to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Seller has satisfied all applicable requirements under such pledgee provisions (including, if applicable, the giving of notice to the applicable Persons of Buyer’s interest in such Purchased Asset), so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(h) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(i) Buyer has received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Sellersuch Asset, (ii) Seller shall have provided has assigned or pledged to Buyer all of Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement and related documents, subject to, in the case of a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand thereforCleared Swap, (A) all reasonable out-of-pocket fees the rights, if any, of the related DCO and expenses of counsel to Buyer as contemplated by Section 14(b), FCM and (B) any limitation on assignment or pledge by Seller required by the DCO or FCM, and (iii) no termination event, default or event of default (however defined) exists thereunder;
(j) if requested by Buyer, such opinions from counsel to the extent Seller is required hereunder to reimburse Seller, Pledgor and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named the perfected security interest in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of Purchased Assets, the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior Pledged Collateral and any other collateral pledged pursuant to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawfulRepurchase Document, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredtrue sale issues; and
(19k) Custodian shall have received executed blank assignments of all Purchased Asset Documents in appropriate form for recording in the Repurchase Date for such Transaction jurisdiction in which the underlying real estate is not later than located, together with executed blank assignments of all Purchased Asset Documents (the Termination Date“Blank Assignment Documents”). Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in this Section 3(b) have been satisfied (both as an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the date related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (KKR Real Estate Finance Trust Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) therefor:
(a) Buyer has received the following documents for each prospective Purchased Asset: (i) [reserved] (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the prospective Purchased Asset is subject to the satisfaction not serviced by Buyer or an Affiliate of Buyer, copies of the following further conditions precedentrelated Servicing Agreements, both (v) Irrevocable Redirection Notices, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement (as defined in the Custodial Agreement), (vii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, and (viii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit for which Buyer has made a Margin Call or Material Adverse Effect shall have occurred and is continuing, and the representations Debt Yield Test (with respect to all Legacy Purchased Assets) and warranties made by Seller PPV Test are allis in Section 10, shall be true, correct compliance with respect to both the proposed Transaction and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)each other Purchased Asset;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) with respect to any Buyer has (i) determined that such Asset is an Eligible Asset to be purchased hereunder on Asset, (ii) approved the related Purchase Date which is not serviced by Sellerpurchase of such Asset, Seller shall have provided to Buyer a copy of (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerConfirmation;
(8) Buyer shall have receivede) immediately after giving effect to such Transaction, solely the Aggregate Amount Outstanding does not exceed the Maximum Amount;
(f) the Repurchase Date specified in the Confirmation is not later than the Maturity Date;
(g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the extent that Buyer previously shall have delivered to Seller a written demand therefor, Purchase Date;
(A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, B▇▇▇▇ has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(i) any license, registration or other similar certification or official document available to Seller from the jurisdiction where the related Underlying Mortgaged Property is located, to the extent necessary for Seller to enforce its rights and remedies under the related Purchased Asset Documents;
(j) if requested by B▇▇▇▇, such opinions from counsel to Seller, Pledgor and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution perfected security interest in the Purchased Assets, the Pledged Collateral and any other collateral pledged pursuant to the Repurchase Document, and true sale opinions for each Purchased Asset purchased by or transferred to Seller from an affiliated entity other than with respect to Purchased Assets transferred pursuant to a Master Bill of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunderSale;
(9k) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelinesno Change of Control has occurred unless such Change of Control has been approved by B▇▇▇▇;
(10l) Custodian (or a bailee) shall have received executed blank assignments of all Purchased Asset Documents in appropriate form for recording, to the extent there such documents are any MERS Designated Mortgage Loansrequired to be recorded, Buyer shall have received from Seller a copy in the jurisdiction in which the underlying real estate is located, together with executed blank assignments of a fully executed Electronic Tracking Agreementall Purchased Asset Documents (the “Blank Assignment Documents”);
(11m) Neither Advisor nor any of its Subsidiaries have defaulted beyond any applicable grace period in paying any amount or performing any obligation due to Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination any Affiliate of Buyer resulting in the effective absence of a “repo market” under any other financing, hedging, security or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
other agreement (B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations other than under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loanbetween Advisor or any of its Subsidiaries, and Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredBuyer; and
(19n) the Repurchase Date for such Transaction is not later than the Termination Date. no Insolvency Event has occurred with respect to either Advisor or Sub-Advisor; Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as or expressly waived by B▇▇▇▇ in writing) other than those set forth in Sections 6.01(a)(viii), (d) and (e) and Sections 6.02(c) and (d). The failure of Seller to satisfy (or obtain an express waiver in writing of) any of the date conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall, within two (2) Business Days, pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (FS Credit Real Estate Income Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) shall be determined in B▇▇▇▇’s sole discretion and is otherwise subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1i) Seller shall give Buyer no less than two (2) Business Days’ prior written notice of each Transaction (including the initial Transaction), which notice shall describe the terms of the Transaction and the Purchased Assets;
(ii) The sum of (x) the unpaid Purchase Price for all prior outstanding Transactions and (y) the requested Purchase Price for the pending Transaction, in each case, shall not exceed the Maximum Facility Amount;
(iii) No Margin Deficit shall exist, and no Potential Event of Default or Event of Default has occurred and is continuing under this Agreement or any other Transaction Document (unless the Transaction would cure any of the foregoing);
(iv) No Material Adverse Effect shall exist;
(v) Seller shall have executed a Confirmation for such proposed Transaction;
(vi) Buyer shall have (i) determined, in its sole discretion, that the Asset proposed to be sold to Buyer by Seller in such Transaction is an Eligible Asset, (ii) satisfactorily completed its “Know Your Customer” and OFAC diligence (as to the related Mortgagor, guarantor and all other related parties, as determined by Buyer), (iii) determined conformity to the terms of the Transaction Documents and Buyer’s internal credit and underwriting criteria, and (iv) obtained internal credit approval, to be granted or denied in B▇▇▇▇’s sole discretion, for the inclusion of such Eligible Asset as a Purchased Asset in a Transaction, without regard for any prior credit decisions by Buyer or any Affiliate of Buyer, and with the understanding that Buyer shall have the absolute right to change any or all of its internal underwriting criteria at any time, without notice of any kind to Seller;
(vii) Seller shall have delivered to Buyer a Transaction Request via Electronic Transmission in accordance with list of all exceptions to the procedures set forth in Section 3(crepresentations and warranties relating to the Eligible Asset and any other eligibility criteria for such Eligible Asset (the “Requested Exceptions Report”).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3viii) after giving effect Guarantor shall have delivered to Buyer a Covenant Compliance Certificate with respect to Guarantor’s most recently ended fiscal quarter for which a Covenant Compliance Certificate is required to be delivered hereunder, provided that to the requested extent Guarantor has previously delivered to Buyer a Covenant Compliance Certificate for the most recently ended fiscal quarter, Seller or Guarantor need not provide an additional Covenant Compliance Certificate for such fiscal quarter in connection with the proposed Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4ix) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10each of Exhibit V and Article 9 (other than any MTM Representation and, with respect to Type B Purchased Assets only, those contained in Article 9(b)(ix)(D), in each case, relating to Purchased Assets subject to other Transactions, which shall be true, considered solely for the purpose of determining the Market Value and eligibility of the Purchased Assets subject to other Transactions unless (i) Seller shall have made any such representations and warranties with actual knowledge that they were materially false or misleading at the time made; or (ii) any such representations and warranties have been determined by Buyer in its sole and absolute discretion to be materially false or misleading on a regular basis) shall be true and correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), subject to such exceptions specified in any Requested Exceptions Report that has been approved by Buyer;
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6x) subject to Buyer’s right to perform one or more Due Diligence Reviews due diligence reviews pursuant to Section 26Article 28, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased AssetAsset File, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review review, including, without limitation, all external legal due diligence and any due diligence relating to lending licensing requirements which may impact Buyer, and such review shall be satisfactory to Buyer in its sole discretiondiscretion and B▇▇▇▇ has consented in writing to the Eligible Asset becoming a Purchased Asset;
(7xi) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which that is not primarily serviced by Sellerthe Primary Servicer, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicerthe servicer named in the related Servicing Agreement;
(8) Buyer shall have received, solely to the extent that Buyer previously xii) Seller shall have delivered to any related Mortgagor, obligor, related servicer or lead lender a direction letter with respect to the Depository Account unless such Mortgagor, obligor, related servicer or lead lender is already remitting payments to Servicer, in which case Seller a written demand thereforshall direct Servicer to remit all such amounts into the Depository Account and to service such payments in accordance with the provisions of this Agreement;
(xiii) Seller shall have paid to Buyer all amounts that are due and payable under this Agreement at the time of such Transaction, (A) including, without limitation, all reasonable out-of-pocket legal fees and expenses of outside counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable and invoiced out-of-pocket costs and expenses actually incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence diligence, recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at BuyerB▇▇▇▇’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9xiv) Buyer shall have approvedreasonably determined that the introduction of, or a change in, any Requirement of Law or in its sole discretionthe interpretation or administration of any Requirement of Law including without limitation changes in any Reserve Requirements and any other increase in cost to Buyer applicable to Buyer has not made it unlawful or impracticable, all exceptions and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into the Underwriting GuidelinesTransaction;
(10xv) to the extent there are any MERS Designated Mortgage Loans, Seller shall have taken such other action as Buyer shall have received from Seller a copy reasonably requested in order to transfer the Purchased Assets pursuant to this Agreement and to perfect all security interests granted under this Agreement or any other Transaction Document in favor of a fully executed Electronic Tracking AgreementBuyer with respect to the Purchased Assets;
(11xvi) Buyer shall have received from Sellerall such other and further documents, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller documentation and legal opinions as Investor and no Person named Buyer in the Interim Funder field for each such MERS Designated Mortgage Loanits reasonable discretion shall reasonably require;
(12xvii) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received (i) other than with respect to a Table Funded Purchased Asset, from Custodian on each Purchase Date an Asset Schedule and Exception ReportReport (as defined in the Custodial Agreement) with respect to each Purchased Asset, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day; or (ii) a Bailee Letter from an Acceptable Attorney identifying the applicable Release Letter being held on behalf of B▇▇▇▇;
(14xviii) as of the applicable Purchase Date for such Eligible Asset after giving effect to such Transaction, (i) each of the Concentration Limits is satisfied, and (ii) the aggregate outstanding Purchase Price with respect to all Purchased Assets which are the subject of a REO Conversion hereunder shall not exceed ten percent (10%) of the aggregate outstanding Purchase Price of all Purchased Assets;
(xix) Buyer shall have received from Seller a Warehouse Lender’s an original Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or covering such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15xx) prior The Advance Rate relating to such Eligible Asset shall not exceed the purchase Maximum Advance Rate and, as of any Mortgage Loan acquired the applicable Purchase Date, the Buyer’s LTV for such Eligible Asset shall be no greater than (by purchase or otherwiseA) by Seller from any Affiliate of Sellersixty percent (60%) with respect to a Type A Purchased Asset, and (B) fifty percent (50%) with respect to a Type B Purchased Asset;
(xxi) Buyer shall have received a True Sale Certification;
(16) with respect from Seller the Draw Fee related to each such Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that in accordance with the introduction of, or a change in, any Requirement terms and provisions of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredFee Letter; and
(19xxii) in the Repurchase Date for such case of a Transaction is not later than with respect to any Type B Purchased Asset, Seller shall have delivered to Buyer the Termination Date. Each Transaction Request delivered by Seller hereunder related Recovery Plan which shall constitute a certification by Seller that all be attached to the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)related Confirmation.
Appears in 1 contract
Sources: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied in the discretion of Buyer, or waived by Buyer, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the salePurchase Date therefor:
(1a) Seller shall have delivered Buyer has received the following documents: (i) a Transaction Request via Electronic Transmission in accordance with Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) fully-executed Irrevocable Redirection Notices, except to the procedures extent set forth in Section 3(c).
8.16, (2v) no Default or Event of Default shall have occurred a trust receipt and other items required to be continuing delivered under the Repurchase DocumentsCustodial Agreement, and (vi) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit or warranty is expressly stated to have been made as of a specific date, as of such specific date)Material Adverse Effect exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) with respect Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(e) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to any Eligible such Transaction;
(f) the Repurchase Date is not later than the Maturity Date;
(g) Seller has satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by Seller on or before the Purchase Date;
(h) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to be purchased hereunder on Buyer, Buyer has received evidence that Seller has given notice to the related Purchase Date which applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is not serviced by Seller, Seller shall have provided entitled to the rights and benefits of a pledgee under such pledgee provisions;
(i) Buyer has received a copy of the related Servicing AgreementInterest Rate Protection Agreement (if any) and all related documents, certified (ii) Seller or Guarantor, as a trueapplicable, correct has assigned to Buyer all of assignor’s rights (but none of its obligations) under such Interest Rate Protection Agreement and complete copy related documents, and (iii) no termination event, default or event of the original, together with a Servicer Notice, fully executed by Seller and Servicerdefault (however defined) exists thereunder;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11j) Buyer shall have received from Sellerblank assignments of all related Purchased Asset Documents, with respect each in appropriate form for recording (to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named the extent recordable) in the Interim Funder field for each such MERS Designated Mortgage Loan;
jurisdiction in which the underlying real estate is located (12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredBlank Assignment Documents”); and
(19k) the Repurchase Date for such Transaction is not later For all Assets acquired from or originated by (whether directly or indirectly) an Affiliate of Seller (other than the Termination Dateany Asset acquired directly or indirectly from and/or originated by Guarantor or any Intermediate Starwood Entity), if requested by Buyer, a true sale opinion from counsel to Seller in form and substance reasonably satisfactory to Buyer. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as satisfied, unless any such condition precedent was expressly waived in the related Confirmation. The failure of Seller to satisfy any of the date conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase Agreement (Starwood Property Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied as determined by or waived by ▇▇▇▇▇, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saletherefor:
(1a) Seller shall have Buyer has received the following documents for each prospective Purchased Asset: (i) [reserved], (ii) an Underwriting Package, (iii) a Confirmation, (iv) the related Servicing Agreement(s), if a copy was not previously delivered to Buyer, (v) a Transaction Request via Electronic Transmission Servicer Notice, if not previously delivered to Servicer, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, (vii) with respect to any Wet Mortgage Asset, a Bailee Agreement, and (viii) all other documents, certificates, information, financial statements, reports and approvals as Buyer may require (provided, however, that with respect to any Wet Mortgage Asset, delivery of the foregoing items in accordance with the procedures set forth provisions of Sections 3.01(g) and (h) shall be deemed to satisfy the conditions of this Section 6.01(a) (unless otherwise determined in Section 3(cthe discretion of Buyer).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents);
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit or warranty is expressly stated to have been made as of a specific date, as of such specific date)Material Adverse Effect exists;
(5c) Buyer has completed its due diligence review of the Underwriting Package, Purchased Asset Documents and such other documents, records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer;
(d) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) determined that each such Asset has adequate structure, stabilized Debt Yield and stabilized loan-to-value ratio (each as determined in Buyer’s sole and absolute discretion to Buyer’s last dollar), (iv) obtained all necessary internal credit and other approvals for such Transaction, and (v) executed the Confirmation;
(e) immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Amount and no Sub-Limit is exceeded;
(6f) subject the Repurchase Date specified in the Confirmation is not later than the Maturity Date;
(g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by Seller on or before the Purchase Date;
(h) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, ▇▇▇▇▇ has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s right interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to perform one or more Due Diligence Reviews pursuant the rights and benefits of a pledgee under such pledgee provisions;
(i) prior to Section 26entering into such Transaction, Buyer shall have completed its due diligence review of determined that Guarantor’s Fixed Charge Coverage Ratio (as defined in the Mortgage File Guarantee Agreement) for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating the most recent Test Period (as defined in the Guarantee Agreement) is not less than 1.4 to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion1.00;
(7j) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller Custodian shall have provided to Buyer a copy received executed blank assignments of all Purchased Asset Documents, if applicable, in appropriate form for recording in the related Servicing Agreement, certified as a true, correct and complete copy of jurisdiction in which the original, together with a Servicer Notice, fully executed by Seller and Servicerunderlying real estate is located (the “Blank Assignment Documents”);
(8) Buyer shall have receivedk) for all Assets acquired from or originated by (whether directly or indirectly) an Affiliate of Seller (other than any Asset acquired directly or indirectly from and/or originated by Guarantor or any Subsidiary of Guarantor), solely to the extent that Buyer previously shall have delivered if requested by Buyer, a true sale opinion from counsel to Seller a written demand therefor, (A) all reasonable out-of-pocket fees in form and expenses of counsel substance reasonably satisfactory to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;; and
(9l) Buyer shall have approved, in its sole discretion, all exceptions to if the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller Purchased Asset is a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of SellerSTWD/SCREDIT Pari Passu Interest, Buyer shall have received a True Sale Certification;
(16) STWD/SCREDIT Co-Lender Agreement with respect to each Eligible such Purchased Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration form of any Requirement of Law applicable Exhibit H and otherwise in form and substance acceptable to Buyer has made it unlawfulin its discretion, duly completed and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) executed by each of the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Dateparties thereto. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied, unless any such condition precedent was expressly waived in the related Confirmation. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in this Section 3(b) have been satisfied (both as an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the date related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Starwood Credit Real Estate Income Trust)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saletherefor:
(1a) Seller shall have delivered Buyer has received the following documents for each prospective Purchased Asset: (i) a Transaction Request via Electronic Transmission Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the prospective Purchased Asset is not serviced by Buyer or an Affiliate of Buyer, copies of the related Servicing Agreements, (v) an Irrevocable Redirection Notice that is (x) executed by Seller and delivered to Custodian on behalf of Buyer, and (y) to the extent the related Underlying Obligor is not required by the related Purchased Asset Documents to remit Income to the Servicer, a fully executed Irrevocable Redirection Notice delivered to Custodian on behalf of Buyer, (vi) if the Underlying Obligor is required to remit Income to the Servicer, evidence satisfactory to Buyer that the Underlying Obligor has been so directed to remit Income to Servicer in accordance with the procedures set forth in Section 3(c).
Purchased Asset Documents, (2vii) no Default or Event of Default shall have occurred and a trust receipt from Custodian, together with all other items required to be continuing delivered under the Repurchase DocumentsCustodial Agreement (for all Purchased Assets other than Wet Mortgage Assets), (viii) with respect to any Wet Mortgage Asset, a Bailee Agreement (as such term is defined in the Custodial Agreement) and the related trust receipt from such Bailee, together with electronic or physical copies of all items required to be delivered under the Custodial Agreement, (ix) the related Servicing Agreement, if a copy was not previously delivered to Buyer, (x) a Servicer Notice, if not previously delivered to Servicer, (xi) a duly completed Compliance Certificate, (xii) any material amendments, modifications, waivers, supplements, extensions, replacements or restatements to or of the Management Agreement, and (xiii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also immediately after giving effect thereto and to the intended use thereof, no change in any Requirements of Law or market conditions which make it unfavorable for Buyer to enter into the representations and warranties made proposed Transaction has occurred, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit which is subject to a Margin Call (except as would be cured in its entirety by Seller in Section 10, shall be true, correct and complete on and as consummation of such Purchase Date Transaction), Material Event, Market Disruption Event or Material Adverse Effect has occurred and is continuing, and each of the Minimum Purchased Asset Debt Yield Requirement with respect to the applicable Asset, the Maximum Purchased Asset PPV Requirement with respect to the applicable Asset, the Facility Debt Yield Test and each Sub-Limit are in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)compliance;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) Buyer has (i) determined that such Asset is an Eligible Asset and complies, on the related Purchase Date, with both the Minimum Purchased Asset Debt Yield Requirement and the Maximum Purchased Asset PPV Requirement, in each case, as evidenced by Buyer’s execution of the related Confirmation, (ii) approved the purchase of such Asset as evidenced by Buyer’s execution of the related Confirmation, (iii) obtained all necessary internal credit and other approvals for such Transaction as evidenced by Buyer’s execution of the related Confirmation, and (iv) executed the Confirmation;
(e) immediately after giving effect to such Transaction, (I) the aggregate Purchase Price of all Purchased Assets does not exceed the Maximum Amount, and (II) Guarantor will be in compliance with all of the financial covenants set forth in the Guarantee Agreement;
(f) the Repurchase Date specified in the Confirmation is not later than the Facility Termination Date;
(g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the Purchase Date;
(h) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received satisfactory evidence that Seller has given notice (or will deliver such required notice contemporaneously with the consummation of the Transaction) to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(i) solely with respect to any Eligible Hedge Required Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to (i) Buyer has received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to such Asset, (ii) Seller has assigned or pledged to Buyer all of Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement and related documents, subject to, in the related Servicing Agreement, certified as case of a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand thereforCleared Swap, (A) all reasonable out-of-pocket fees the rights, if any, of the related DCO and expenses of counsel to Buyer as contemplated by Section 14(b), FCM and (B) any limitation on assignment or pledge by Seller required by the DCO or FCM, and (iii) no termination event, default or event of default (however defined) exists thereunder;
(j) Seller has provided Buyer with copies of any license, registration or other similar certification or official document available to Seller from the jurisdiction where the related underlying Mortgaged Property is located, to the extent necessary for Seller is required hereunder to reimburse enforce its rights and remedies under the related Purchased Asset Documents;
(k) if requested by Buyer, such opinions from counsel to Seller, Pledgor, Sponsor, Manager and/or Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunderother collateral pledged pursuant to the Repurchase Document, which amounts, at Buyer’s option, may be withheld from the and true sale proceeds of any Transaction hereunderissues;
(9l) Buyer Custodian (or a bailee) shall have approvedreceived executed blank assignments of all Purchased Asset Documents in appropriate form for recording, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there such documents are any MERS Designated Mortgage Loansrequired to be recorded, Buyer in the jurisdiction in which the underlying real estate is located, together with executed blank assignments of all applicable Purchased Asset Documents (the “Blank Assignment Documents”); and
(m) Seller shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Sellerprovided evidence, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable satisfactory to Buyer in its sole discretion in respect reasonable discretion, that the applicable Interim Assignment Documents have been submitted, or are being submitted simultaneously with the consummation of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially the related Transaction, for recordation in the form attached to public recording office of the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Datejurisdiction. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied. The conditions precedent set forth in this Section 3(b) have been satisfied (both as 6.02 shall be deemed to be complied with or waived by Buyer on the related Purchase Date; provided that, notwithstanding any of the date foregoing, if it is subsequently determined by Buyer that: (i) any untrue or incorrect material information, certificate or similar item was provided to Buyer by or on behalf of Seller on or prior to the related Purchase Date, which information Buyer relied upon in whole or in part in making its decision to enter into the related Transaction, or (ii) Seller failed to provide material information to Buyer on or prior to the related Purchase Date (other than information specified in an Approved Representation Exception) that, if so provided on or prior to the related Purchase Date, may reasonably have resulted in Buyer determining that a condition precedent was not satisfied, in each case, such notice or request condition precedent shall be deemed not satisfied for such Purchased Asset, the related Purchase shall be rescinded and as of Seller shall repurchase the date of such purchase)related Purchased Asset pursuant to Section 3.04.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Colony Credit Real Estate, Inc.)
Conditions Precedent to all Transactions. BuyerThe Deal Agent’s obligation and the Purchaser’s agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) no Applicable Law shall prohibit or render it unlawful, and no order, judgment or decree of Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into such Transaction in accordance with the provisions hereof or any other transaction contemplated herein;
(b) the Seller, the Guarantor, the Pledgor and each Servicer and PSA Servicer shall have delivered to the Deal Agent all reports and other information required to be delivered as of the date of such Transaction;
(c) the Seller shall have delivered a Transaction Request Confirmation, via Electronic Transmission Transmission, in accordance with the procedures set forth in Section 3(c).2.2, and the Deal Agent shall have determined that the Mortgage Asset described in such Confirmation is an Eligible Asset, shall have approved in writing the purchase of the Mortgage Asset to be included in such Transaction in its discretion and shall have obtained all necessary internal credit and other approvals for such Transaction;
(2d) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documentsand no Margin Deficits are outstanding;
(3e) the Deal Agent shall have received a Compliance Certificate in the form of Exhibit X attached hereto (“Compliance Certificate”) from a Responsible Officer of the Seller and Guarantor that, among other things: (i) shows in detail the calculations demonstrating that, after giving effect to the requested Transaction, the aggregate Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount, (ii) the Seller and the Guarantor have observed or performed all of their covenants and other agreements, and satisfied every condition, contained in this Agreement, the Repurchase Documents and the related documents to be observed, performed or satisfied by them, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, (iii) states that all representations and warranties contained in this Agreement are true and correct on and as of such day as though made on and as of such day and shall be deemed to be made on such day, (iv) ART is in compliance with the Financial Covenants, and (v) discloses the status of each Interest Rate Protection Agreements described under clause (ii) of the definition thereof;
(f) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions or the Maximum Amount;
(4g) subject to the Deal Agent’s right to perform one or more Due Diligence Reviews pursuant to Section 13.21, the Deal Agent shall have completed in accordance with Section 2.2 its due diligence review of the Mortgage Asset File and the Underwriting Package for each Purchased Asset and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Mortgage Asset as the Deal Agent in its sole discretion deems appropriate to review and such review shall be satisfactory to the Deal Agent in its sole discretion;
(h) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date that is not serviced by the Seller, the Seller shall have provided to the Deal Agent copies of the related Servicing Agreements and the Pooling and Servicing Agreements, certified as true, correct and complete copies of the originals, together with Servicer Redirection Notices fully executed by the Seller and the Servicer;
(i) the Deal Agent as agent for the Secured Parties shall have received all fees and expenses of the Deal Agent, the Purchaser and counsel to the Deal Agent and the Purchaser as contemplated by Section 13.9 and the Fee Letter and, to the extent the Seller is required hereunder to reimburse the Deal Agent for such amounts, the Deal Agent shall have received the reasonable costs and expenses incurred by them in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at the Deal Agent’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(j) none of the following shall have occurred and/or be continuing:
(i) an event or events shall have occurred in the good faith determination of the Deal Agent resulting in the effective absence of a “repo market” or related “lending market” for purchasing (subject to repurchase) or financing debt obligations secured by commercial mortgage loans or securities, or an event or events shall have occurred resulting in the Purchaser or any Secured Party not being able to finance Mortgage Assets through the “repo market” or “lending market” with traditional counterparties at rates that would have been reasonable prior to the occurrence of such event or events;
(ii) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by Mortgage Assets, or an event or events shall have occurred resulting in the Deal Agent, the Purchaser or any Secured Party not being able to sell securities backed by Mortgage Assets at prices that would have been reasonable prior to such event or events; or
(iii) there shall have occurred a material adverse change in the financial condition of the Purchaser or any Secured Party that affects (or can reasonably be expected to affect) materially and adversely the ability of the Purchaser or any Secured Party to fund its obligations under this Agreement.
(k) for each Non–Table Funded Purchased Asset, the Deal Agent shall have received from the Custodian on each Purchase Date a Trust Receipt (along with a completed Mortgage Asset File Checklist attached thereto) and an Asset Schedule and Exception Report with respect to the Basic Mortgage Asset Documents for each Eligible Asset, each dated the Purchase Date, duly completed and, in the case of the Asset Schedule and Exception Report, with exceptions acceptable to the Deal Agent in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day. In the case of a Table Funded Purchased Asset or Swingline Purchase, the Deal Agent shall have received on the related Purchase Date the Table Funded Trust Receipt and all other items described in the second (2nd) sentence of Subsection 2.2(h), each in form and substance satisfactory to the Deal Agent in its sole discretion, provided that the Deal Agent subsequently receives the items described in Subsections 2.2(d) and (h) and the other delivery requirements under the Custodial Agreement on or before the date and time specified herein and therein, which items shall be in form and substance satisfactory to the Deal Agent in its sole discretion;
(l) the Deal Agent shall have received from the Seller a Warehouse Lender’s Release Letter substantially in the form of Exhibit VII–B hereto (or such other form acceptable to the Deal Agent) (“Warehouse Lender’s Release Letter”), if applicable, or a Seller’s Release Letter substantially in the form of Exhibit VII–A hereto (or such other form acceptable to the Deal Agent) (“Seller’s Release Letter”) covering each Eligible Asset to be sold to the Deal Agent;
(m) prior to the purchase of any Eligible Asset acquired (by purchase or otherwise) by the Seller from any Affiliate of the Seller, the Deal Agent shall have received certified copies of the applicable Purchase Agreements and a True Sale Opinion;
(n) The Deal Agent shall be in receipt of the Servicing Agreements (including a Servicing Agreement for the Preferred Equity Interest or an addendum to the existing Servicing Agreement providing for the servicing of the Preferred Equity Interests) and the Pooling and Servicing Agreements (if any), certified as true, correct and complete copies of the originals, together with the Servicer Redirection Notices, fully executed by the Seller and Servicer;
(o) on and as of such day, the Seller, the Guarantor and the Custodian shall have performed all of the covenants and agreements contained in the Repurchase Documents to be performed by such Person at or prior to such day;
(p) the Repurchase Date for such Transaction is not later than to the earlier of (i) the Facility Maturity Date and (ii) 364 calendar days from the Purchase Date.
(q) the Deal Agent shall have received evidence satisfactory to the Deal Agent that the Seller has delivered an irrevocable instruction to each Servicer or PSA Servicer under a Pooling and Servicing Agreement, as applicable, to pay Income with respect to the Purchased Items directly to the Collection Account as provided herein, which instructions may not be modified without the prior written consent of the Deal Agent;
(r) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller and the Guarantor in Section 10, 4.1 shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made only as of a specific date, as of such specific date);
(5s) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price Deal Agent shall be in receipt of the Transactions outstanding shall not exceed evidence of insurance required by Section 9.1 of the Asset Value of all the Purchased Assets subject to outstanding TransactionsCustodial Agreement;
(6t) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer the Seller shall have completed its due diligence review delivered any other opinion or closing item required by Section 3.1 that was, with the written consent of the Mortgage File for each Purchased AssetDeal Agent, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionnot delivered on the Closing Date;
(7u) if applicable and to the extent required for the Deal Agent, the Purchaser or any Secured Party to assert its rights with respect to any an Eligible Asset to be purchased hereunder on Asset, a certification of good standing for the related Purchase Date which Seller in each jurisdiction where the Mortgaged Property is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicerlocated;
(8) Buyer shall have received, solely v) other conditions to such Purchase set forth in this Agreement or the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunderCustodial Agreement are satisfied;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10w) to the extent there are any MERS Designated Mortgage Loansadditional Sellers other than the initial Seller, Buyer the additional Sellers shall have received from each deliver to the Deal Agent a duly executed Power of Attorney in the form attached as Exhibit III, a Joinder Agreement in form and substance satisfactory to the Deal Agent in its discretion and all other agreements, documents, certifications, UCC financing statements and Opinions of Counsel required of the Seller a copy of a fully executed Electronic Tracking hereunder at the Closing Date or under the Joinder Agreement;
(11x) Buyer to the extent applicable, the Seller shall have delivered the opinions required by Section 3.3;
(y) for each Preferred Equity Interest, the Seller has executed and delivered all instruments and documents and has taken all further action reasonably necessary and desirable or that the Deal Agent has reasonably requested in order to (i) perfect and protect the Deal Agent’s security interest in such Preferred Equity Interest (including, without limitation, execution and delivery of one or more control agreements reasonably acceptable to the Deal Agent, execution and filing of UCC financing statements and any and all other actions reasonably necessary to satisfy the Deal Agent that the Deal Agent has obtained a first priority perfected security interest in such Preferred Equity Interest); (ii) enable the Deal Agent to exercise and enforce its rights and remedies hereunder in respect of such Preferred Equity Interest; and (iii) otherwise effect the purposes of this Agreement, including, without limitation and if requested by the Deal Agent, having delivered to the Deal Agent irrevocable proxies in respect of such Preferred Equity Interest; and
(z) the Deal Agent shall have received from Sellerall such other and further documents, with respect to MERS Designated Mortgage Loansreports, a MERS Report reflecting Seller certifications, approvals and legal opinions as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer Deal Agent in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Datereasonably require. Each Transaction Request Confirmation delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in Section 3.1 and this Section 3(b) 3.2 have been satisfied (both as of the date of such notice or request and as of the date of such purchase). The failure of the Seller or the Guarantor, as applicable, to satisfy any of the foregoing conditions precedent in respect of any Transaction shall, unless such failure was expressly waived in writing by the Deal Agent on or prior to the related Purchase Date, give rise to a right of the Deal Agent, which right may be exercised at any time on the demand of the Deal Agent, to rescind the related Transaction and direct the Seller to pay to the Deal Agent as agent for the Secured Parties an amount equal to the Purchase Price, the Price Differential, Breakage Costs and other amounts due in connection therewith during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Sources: Master Repurchase Agreement (Arbor Realty Trust Inc)
Conditions Precedent to all Transactions. Buyer’s obligation 's agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2ii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(iv) After giving effect to the requested Transaction, (A) the aggregate outstanding Purchase Price for all Purchased Mortgage Loans subject to then outstanding Transactions under this Repurchase Agreement shall not exceed the Maximum Purchase Price and (B) the requested Purchase Price shall be no less than the Minimum Purchase Price;
(v) After giving effect to the requested Transaction, there shall have been no more than five (5) after Transactions per week;
(vi) After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6vii) subject Subject to the Buyer’s 's right to perform one or more Due Diligence Reviews pursuant to Section 2629 hereof, the Buyer shall have completed its due diligence review of the Mortgage File Loans for each Purchased AssetMortgage Loan, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset Mortgage Loan as the Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to the Buyer in its sole discretion;
(7viii) with respect On or prior to any Eligible Asset 4:00 p.m. (New York Time) one (1) day prior to be purchased hereunder on the related Purchase Date which is not serviced by SellerDate, each applicable Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller the Buyer (a) a written demand thereforTransaction Request, and (Ab) a Purchased Mortgage Loan Report.
(ix) The Sellers shall have delivered to the Custodian the Mortgage File with respect to each Purchased Mortgage Loan and the Custodian shall have issued a Trust Receipt with respect to each such Purchased Mortgage Loan to the Buyer;
(x) The Buyer shall have received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 29 which amountsamount, at the Buyer’s 's option, may be withheld from the sale proceeds of any Transaction hereunder;
(9xi) Buyer To the extent Sellers are selling Mortgage Loans which are registered on the MERS(R) System, the Sellers shall have approveddelivered an Electronic Tracking Agreement entered into, duly executed and delivered by the parties thereto and being in its sole discretionfull force and effect, all exceptions to the Underwriting Guidelinesfree of any modification, breach or waiver;
(10xii) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none None of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of the Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of the Buyer to fund its obligations under this Repurchase Agreement;
(13xiii) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by a Seller hereunder shall constitute a certification by such Seller that all the conditions set forth in this Section 3(b) (other than clause (xii) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase); and
(xiv) Upon request, the Buyer shall have received from outside counsel to the Sellers an updated favorable opinion or opinions, in form and substance satisfactory to the Buyer, covering and updating such matters that were originally addressed in the initial opinion issued.
Appears in 1 contract
Sources: Master Repurchase Agreement (MortgageIT Holdings, Inc.)
Conditions Precedent to all Transactions. Buyer’s 's obligation to enter into each Committed Transaction (including the initial Transaction) and, in the event Buyer chooses, in its sole discretion, to enter into an Uncommitted Transaction pursuant to Section 3(c) below, Buyer's obligation to enter into each Uncommitted Transaction, is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s 's right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by the Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and the Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)) and, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all Buyer shall have received the reasonable out-of-pocket costs and expenses incurred by Buyer it in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s 's option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “"securities market” " for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(1311) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(1412) Buyer shall have received from Seller a Warehouse Lender’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit VII-B hereto (or such other form acceptable to Buyer) or a Seller’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit VII-A hereto (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(1513) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any third party, including without limitation, any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(1614) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer the Effective Date shall have received an insured closing letter from each Settlement Agent that is not a title insurance companyoccurred;
(1715) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(1916) the Repurchase Date for such Transaction is not later than the Termination Date;
(17) after giving effect to the requested Committed Transaction, the aggregate amount of outstanding Committed Transactions shall not have Purchase Prices in excess of the Maximum Committed Amount; and
(18) after giving effect to the requested Uncommitted Transaction, the aggregate amount of outstanding Uncommitted Transactions shall not have Purchase Prices in excess of the Maximum Uncommitted Amount. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)) and shall be deemed to be a request for a Committed Transaction; provided that after giving effect to the requested Committed Transaction, the aggregate amount of outstanding Committed Transactions shall not have Purchase Prices in excess of the Maximum Committed Amount, in which case such request shall be deemed a request for an Uncommitted Transaction.
Appears in 1 contract
Sources: Master Repurchase Agreement (American Home Mortgage Holdings Inc)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saletherefor:
(1a) Buyer has received the following documents for each prospective Purchased Asset: (i) an Underwriting Package, (ii) a Confirmation, (iii) if the prospective Purchased Asset is not serviced by Buyer or an Affiliate of Buyer, copies of the related Servicing Agreements, (iv) an Irrevocable Redirection Notice that is (x) executed by Seller shall have and delivered to Custodian on behalf of Buyer, and (y) to the extent the related Underlying Obligor is not required by the related Purchased Asset Documents to remit Income to the Servicer, a Transaction Request via Electronic Transmission fully executed Irrevocable Redirection Notice delivered to Custodian on behalf of Buyer, (v) if the Underlying Obligor is required to remit Income to the Servicer, evidence satisfactory to Buyer that the Underlying Obligor has been so directed to remit Income to Servicer in accordance with the procedures set forth in Section 3(c).
Purchased Asset Documents, (2vi) no Default or Event of Default shall have occurred a trust receipt and other items required to be continuing delivered under the Repurchase DocumentsCustodial Agreement, (vii) with respect to any Wet Mortgage Asset, a Bailee Agreement (as such term is defined in the Custodial Agreement), (viii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, (ix) a Servicer Notice, if not previously delivered to Servicer, (x) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also immediately after giving effect thereto and to the intended use thereof, no change in any Requirements of Law or market conditions which make it unfavorable for Buyer to enter into the representations proposed Transaction has occurred, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit, Market Disruption Event or Material Adverse Effect has occurred, and warranties made by Seller in Section 10each of the Maximum Purchased Asset PPV Requirement, shall be true, correct and complete on and each Sub-Limit are satisfied as of such the applicable Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Date;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) with respect to any Buyer has (i) determined that such Asset is an Eligible Asset to be purchased hereunder and complies, on the related Purchase Date which is not serviced by SellerDate, Seller shall have provided to Buyer a copy with the Maximum Purchased Asset PPV Requirement, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerConfirmation;
(8) Buyer shall have received, solely e) immediately after giving effect to the extent that Buyer previously shall have delivered to Seller a written demand thereforsuch Transaction, (Ai) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)the Aggregate Amount Outstanding does not exceed the Maximum Amount, and (Bii) Guarantor will be in compliance with all of the financial covenants set forth in the Guarantee Agreement;
(f) the Repurchase Date specified in the Confirmation is not later than the Maturity Date;
(g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by Seller on or before the Purchase Date;
(h) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, ▇▇▇▇▇ has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(i) if requested by Buyer, Seller has provided Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into copies of any Transaction hereunderlicense, registration or other similar certification or official document available to Seller from the jurisdiction where the related underlying Mortgaged Property is located, to the extent necessary for Seller to enforce its rights and remedies under the related Purchased Asset Documents;
(j) if requested by ▇▇▇▇▇, such opinions from counsel to Seller, ▇▇▇▇▇▇▇ and Guarantor as Buyer may require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunderother collateral pledged pursuant to the Repurchase Document, which amountsand, at Buyer’s optionto the extent required by Section 7.11, may be withheld from the true sale proceeds of any Transaction hereunderissues;
(9k) Buyer Custodian (or a bailee) shall have approvedreceived executed blank assignments of all Purchased Asset Documents in appropriate form for recording, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there such documents are any MERS Designated Mortgage Loansrequired to be recorded, Buyer in the jurisdiction in which the underlying real estate is located, together with executed blank assignments of all applicable Purchased Asset Documents (the “Blank Assignment Documents”); and
(l) Seller shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Sellerprovided evidence, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable satisfactory to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall reasonable discretion, that the applicable Interim Assignment Documents have received from Seller a Warehouse Lender’s Release Letter substantially been submitted for recordation in the form attached to public recording office of the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Datejurisdiction. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in this Section 3(ban exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction on notice to Seller, whereupon Seller shall (x) have been satisfied immediately in the case of any such rescission made on the Purchase Date, and (both as of y) otherwise, within three (3) Business Days from the date of such notice or request and as of rescission, pay to Buyer the date Repurchase Price of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Franklin BSP Real Estate Debt BDC)
Conditions Precedent to all Transactions. Buyer’s obligation The Purchaser's agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) no Applicable Law shall prohibit or render it unlawful, and no order, judgment or decree of Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into such Transaction by the Purchaser in accordance with the provisions hereof or any other transaction contemplated herein;
(b) the Seller, the Guarantor, the Pledgor and each Servicer and PSA Servicer shall have delivered to the Purchaser all reports and other information required to be delivered as of the date of such Transaction;
(c) the Seller shall have delivered a Transaction Request Confirmation, via Electronic Transmission Transmission, in accordance with the procedures set forth in Section 3(c).2.2, and the Purchaser shall have determined that the Mortgage Asset described in such Confirmation is an Eligible Asset, shall have approved in writing the purchase of the Mortgage Asset to be included in such Transaction in its sole and absolute discretion and shall have obtained all necessary internal credit and other approvals for such Transaction;
(2d) no Default Unmatured Termination Event or Termination Event of Default shall have occurred and be continuing under the Repurchase Documentsand no Margin Deficits are outstanding;
(3e) the Purchaser shall have received a Compliance Certificate in the form of Exhibit X attached hereto ("Compliance Certificate") from a Responsible Officer of the Seller and Guarantor that, among other things: (i) shows in detail the calculations demonstrating that, after giving effect to the requested Transaction, the aggregate Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount, (ii) the Seller and the Guarantor have observed or performed all of their covenants and other agreements, and satisfied every condition, contained in this Agreement, the Repurchase Documents and the related documents to be observed, performed or satisfied by them, and that such Responsible Officer has obtained no knowledge of any Unmatured Termination Event or Termination Event except as specified in such certificate, (iii) states that all representations and warranties contained in this Agreement are true and correct on and as of such day as though made on and as of such day and shall be deemed to be made on such day, (iv) ART is in compliance with the Financial Covenants, and (v) discloses the status of each Interest Rate Protection Agreements described under clause (ii) of the definition thereof;
(f) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions or the Maximum Amount;
(4g) subject to the Purchaser's right to perform one or more Due Diligence Reviews pursuant to Section 13.21, the Purchaser shall have completed in accordance with Section 2.2 its due diligence review of the Mortgage Asset File and the Underwriting Package for each Purchased Asset and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Mortgage Asset as the Purchaser in its sole discretion deems appropriate to review and such review shall be satisfactory to the Purchaser in its sole discretion;
(h) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date that is not serviced by the Seller, the Seller shall have provided to the Purchaser copies of the related Servicing Agreements and the Pooling and Servicing Agreements, certified as true, correct and complete copies of the originals, together with Servicer Notices fully executed by the Seller and the Servicer;
(i) the Purchaser shall have received all fees and expenses of the Purchaser and counsel to the Purchaser as contemplated by Section 13.9 and the Fee Letter and, to the extent the Seller is required hereunder to reimburse the Purchaser for such amounts the Purchaser shall have received the reasonable costs and expenses incurred by them in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at the Purchaser's option, may be withheld from the sale proceeds of any Transaction hereunder;
(j) none of the following shall have occurred and/or be continuing:
(i) an event or events shall have occurred in the good faith determination of the Purchaser resulting in the effective absence of a "repo market" or related "lending market" for purchasing (subject to repurchase) or financing debt obligations secured by commercial mortgage loans or securities, or an event or events shall have occurred resulting in the Purchaser not being able to finance Mortgage Assets through the "repo market" or "lending market" with traditional counterparties at rates that would have been reasonable prior to the occurrence of such event or events;
(ii) an event or events shall have occurred resulting in the effective absence of a "securities market" for securities backed by Mortgage Assets, or an event or events shall have occurred resulting in the Purchaser not being able to sell securities backed by Mortgage Assets at prices that would have been reasonable prior to such event or events; or
(iii) there shall have occurred a material adverse change in the financial condition of the Purchaser that affects (or can reasonably be expected to affect) materially and adversely the ability of the Purchaser to fund its obligations under this Agreement.
(k) for each Non-Table Funded Purchased Asset, the Purchaser shall have received from the Custodian on each Purchase Date a Trust Receipt (along with a completed Mortgage Asset File Checklist attached thereto) and an Asset Schedule and Exception Report with respect to each Eligible Asset, each dated the Purchase Date, duly completed and, in the case of the Asset Schedule and Exception Report, with exceptions acceptable to the Purchaser in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day. In the case of a Table Funded Purchased Asset, the Purchaser shall have received on the related Purchase Date the Table Funded Trust Receipt and all other items described in the second (2nd) sentence of Subsection 2.2(h), each in form and substance satisfactory to the Purchaser in its sole discretion, provided that the Purchaser subsequently receives the items described in Subsections 2.2(d) and (h) and the other delivery requirements under the Custodial Agreement on or before the date and time specified herein and therein, which items shall be in form and substance satisfactory to the Purchaser in its sole discretion;
(l) the Purchaser shall have received from the Seller a Warehouse Lender's Release Letter substantially in the form of Exhibit VII-B hereto (or such other form acceptable to the Purchaser) ("Warehouse Lender's Release Letter"), if applicable, or a Seller's Release Letter substantially in the form of Exhibit VII-A hereto (or such other form acceptable to the Purchaser) ("Seller's Release Letter") covering each Eligible Asset to be sold to the Purchaser;
(m) prior to the purchase of any Eligible Asset acquired (by purchase or otherwise) by the Seller from any Affiliate of the Seller, the Purchaser shall have received certified copies of the applicable Purchase Agreements and a True Sale Opinion;
(n) the Purchase Price specified in a Confirmation for a Transaction shall not be less than $1,000,000;
(o) on and as of such day, the Seller, the Guarantor and the Custodian shall have performed all of the covenants and agreements contained in the Repurchase Documents to be performed by such Person at or prior to such day;
(p) the Repurchase Date for such Transaction is not later than (i) the Facility Maturity Date and (ii) with respect to the Bridge Loans and Preferred Equity Interests, the date such interests are required to be repurchased pursuant to Section 2.15;
(q) the Purchaser shall have received evidence satisfactory to the Purchaser that the Seller has delivered an irrevocable instruction to each Servicer or PSA Servicer under a Pooling and Servicing Agreement, as applicable, to pay Income with respect to the Purchased Items directly to the Collection Account as provided herein, which instructions may not be modified without the prior written consent of the Purchaser;
(r) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller and the Guarantor in Section 10, 4.1 shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made only as of a specific date, as of such specific date);
(5s) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price Purchaser shall be in receipt of the Transactions outstanding shall not exceed evidence of insurance required by Section 9.1 of the Asset Value of all the Purchased Assets subject to outstanding TransactionsCustodial Agreement;
(6t) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer the Seller shall have completed its due diligence review delivered any other opinion or closing item required by Section 3.1 that was, with the written consent of the Mortgage File for each Purchased AssetPurchaser, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionnot delivered on the Amendment Closing Date;
(7u) if applicable and to the extent required for the Purchaser to assert its rights with respect to any an Eligible Asset to be purchased hereunder on Asset, a certification of good standing for the related Purchase Date which Seller in each jurisdiction where the Mortgaged Property is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicerlocated;
(8) Buyer shall have received, solely v) other conditions to such Purchase set forth in this Agreement or the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunderCustodial Agreement are satisfied;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10w) to the extent there are any MERS Designated Mortgage Loansadditional Sellers other than the initial Seller, Buyer the additional Sellers shall have received from each deliver to the Purchaser a duly executed Power of Attorney in the form attached as Exhibit III, a Joinder Agreement in form and substance satisfactory to the Purchaser in its discretion and all other agreements, documents, certifications, UCC financing statements and Opinions of Counsel required of the Seller a copy of a fully executed Electronic Tracking hereunder at the Original Closing Date and/or Amendment Closing Date or under the Joinder Agreement;
(11x) Buyer to the extent applicable, the Seller shall have delivered the opinions required by Section 3.3;
(y) for each Preferred Equity Interest, the Seller has executed and delivered all instruments and documents and has taken all further action reasonably necessary and desirable or that the Purchaser has reasonably requested in order to (i) perfect and protect the Purchaser's security interest in such Preferred Equity Interest (including, without limitation, execution and delivery of one or more control agreements reasonably acceptable to the Purchaser, execution and filing of UCC financing statements and any and all other actions reasonably necessary to satisfy the Purchaser that the Purchaser has obtained a first priority perfected security interest in such Preferred Equity Interest); (ii) enable the Purchaser to exercise and enforce its rights and remedies hereunder in respect of such Preferred Equity Interest; and (iii) otherwise effect the purposes of this Agreement, including, without limitation and if requested by the Purchaser, having delivered to the Purchaser irrevocable proxies in respect of such Preferred Equity Interest; and
(z) the Purchaser shall have received from Sellerall such other and further documents, with respect to MERS Designated Mortgage Loansreports, a MERS Report reflecting Seller certifications, approvals and legal opinions as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer Purchaser in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Datereasonably require. Each Transaction Request Confirmation delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in Section 3.1 and this Section 3(b) 3.2 have been satisfied (both as of the date of such notice or request and as of the date of such purchase). The failure of the Seller or Guarantor, as applicable, to satisfy any of the foregoing conditions precedent in respect of any Transaction shall, unless such failure was expressly waived in writing by the Purchaser on or prior to the related Purchase Date, give rise to a right of the Purchaser, which right may be exercised at any time on the demand of the Purchaser, to rescind the related Transaction and direct the Seller to pay to the Purchaser for the benefit of the Purchaser an amount equal to the Purchase Price, the Price Differential, Breakage Costs and other amounts due in connection therewith during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Sources: Loan Purchase and Repurchase Agreement (Arbor Realty Trust Inc)
Conditions Precedent to all Transactions. Buyer’s obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).;
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased AssetAsset (other than a Wet-Ink Mortgage Loan), and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller Buyer shall have provided to Buyer a copy received from Seller copies of the related all Servicing AgreementAgreements, each certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed Notices attached thereto acknowledged by Seller and the applicable Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder[Reserved];
(9) Buyer shall have approved, in its sole discretion, all material exceptions to the Underwriting Guidelines;
(10) [Reserved]
(11) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(1112) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller Buyer as Investor and no Person named in the or Interim Funder field for each such MERS Designated Mortgage Loan;
(1213) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(1314) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(1415) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit VII-B hereto (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit VII-A hereto (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(1516) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) within 60 days of the Effective Date Date, an Account Agreement shall have occurredbeen entered into; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller Buyer shall have received an executed copy of a Term Sheet with respect to the Purchased Mortgage Loans in accordance with the procedures set forth in the Purchase Agreement;
(ii) Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2iii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iv) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5v) after After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the for all Purchased Mortgage Loans subject to then outstanding Transactions outstanding under this Repurchase Agreement shall not exceed the Maximum Purchase Price;
(vi) After giving effect to the requested Transaction, there shall have been no more than three (3) Transactions per week;
(vii) After giving effect to the requested Transaction, the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6viii) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review Such Transaction has a Purchase Price of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionat least $10,000,000;
(7ix) with respect on or prior to any Eligible Asset 10 a.m. (New York time) one (1) day prior to be purchased hereunder on the related Purchase Date which is not serviced by SellerDate, the Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to the Buyer (a) a Transaction Request, and (b) a Purchased Mortgage Loan Report;
(x) the Seller shall have delivered to the Custodian the Mortgage File with respect to each Purchased Mortgage Loan and the Custodian shall have issued a written demand therefor, Custodian’s Certification with respect to each such Purchased Mortgage Loan to the Buyer;
(Axi) the Buyer shall have received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 26 which amounts, at the Buyer’s option, may be withheld from the sale proceeds of remitted by Buyer to the Seller pursuant to any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12xii) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of the Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of the Buyer to fund its obligations under this Repurchase Agreement;; or
(13xiii) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in this Section 3(b) (other than clause (xii) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation Administrative Agent’s, on behalf of Buyers, agreement to enter into each Transaction (including the initial Transaction) shall be determined in Administrative Agent’s sole discretion and is otherwise subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1i) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
give Administrative Agent no less than two (2) Business Days’ prior written notice of each Transaction (including the initial Transaction), which notice shall describe the terms of the Transaction and the Purchased Assets; LEGAL_US_E # 160815361.8
(ii) The sum of (A) the unpaid Purchase Price for all prior outstanding Transactions and (B) the requested Purchase Price for the pending Transaction, in each case, shall not exceed the Maximum Facility Amount;
(iii) No Market Disruption Event or Force Majeure Event has occurred and is continuing, no Margin Deficit that has resulted in a Margin Deficit Notice, Potential Event of Default or Event of Default shall have occurred and be continuing exist under the Repurchase Documentsthis Agreement or any other Transaction Document;
(3iv) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding No Material Adverse Effect shall not exceed the Maximum Amountexist;
(4v) Seller shall have executed a Confirmation for such proposed Transaction;
(vi) Administrative Agent, on behalf of Buyers, shall have (i) determined, in its sole discretion, that the Asset proposed to be sold to Administrative Agent, on behalf of Buyers, by Seller in such Transaction is an Eligible Asset, (ii) satisfactorily completed its “Know Your Customer” and OFAC diligence (as to the related Mortgagor, guarantor and all other related parties, as determined by Administrative Agent), (iii) determined conformity to the terms of the Transaction Documents and Administrative Agent’s or any Buyers’ internal credit and underwriting criteria, and (iv) obtained internal credit approval, to be granted or denied in Administrative Agent’s sole discretion, for the inclusion of such Eligible Asset as a Purchased Asset in a Transaction, without regard for any prior credit decisions by Administrative Agent or any Buyer or any respective Affiliate of Administrative Agent or any Buyer, and with the understanding that Administrative Agent or any Buyer shall have the absolute right to change any or all of its internal underwriting criteria at any time, without notice of any kind to Seller;
(vii) Seller shall have delivered to Administrative Agent, on behalf of Buyers, a list of all exceptions to the representations and warranties relating to the Eligible Asset and any other eligibility criteria for such Eligible Asset (the “Requested Exceptions Report”);
(viii) Guarantor shall have delivered to Administrative Agent a true and accurate Covenant Compliance Certificate with respect to Guarantor’s most recently ended fiscal quarter for which a Covenant Compliance Certificate is required to be delivered hereunder, provided that to the extent Guarantor has previously delivered to Administrative Agent a Covenant Compliance Certificate for the most recently ended fiscal quarter, Seller or Guarantor need not provide an additional Covenant Compliance Certificate for such fiscal quarter in connection with the proposed Transaction;
(ix) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, each of Exhibit V and Article 9 shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), subject to such exceptions specified in any Requested Exceptions Report that has been approved by Administrative Agent, on behalf of Buyers;
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6x) subject to BuyerAdministrative Agent’s right and Buyers’ rights to perform one or more Due Diligence Reviews due diligence reviews pursuant to Section 26Article 28, Buyer Administrative Agent shall have completed its due diligence review of the Mortgage File for each Purchased AssetAsset File, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer Administrative Agent, on behalf of Buyers, in its sole discretion deems appropriate to review review, including, without limitation, all external legal due diligence any due diligence relating to lending LEGAL_US_E # 160815361.8 licensing requirements which may impact Buyers, and such review shall be satisfactory to Buyer Administrative Agent in its sole discretiondiscretion and Administrative Agent, on behalf of Buyers, has consented in writing to the Eligible Asset becoming a Purchased Asset;
(7xi) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which that is not primarily serviced by Sellerthe Primary Servicer, Seller shall have provided to Buyer Administrative Agent a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicerthe servicer named in the related Servicing Agreement;
(8) Buyer xii) Seller shall have received, solely directed Servicer to remit all such payments into the extent that Buyer previously Depository Account and to service such payments in accordance with the provisions of this Agreement;
(xiii) Seller shall have delivered paid to Seller a written demand thereforAdministrative Agent, (A) on behalf of Buyers, all reasonable out-of-pocket amounts that are due and payable under this Agreement at the time of such Transaction, including, without limitation, all legal fees and expenses of outside counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses actually incurred by Buyer Administrative Agent, on behalf of Buyers, in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence diligence, recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s Administrative Agent’s, on behalf of Buyers, option, may be withheld from the sale proceeds of any Transaction hereunder;
(9xiv) Buyer Administrative Agent, on behalf of Buyers, shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law including without limitation changes in any Reserve Requirements and any other increase in cost to Administrative Agent or any Buyer, applicable to Administrative Agent or any Buyer has not made it unlawfulunlawful or impracticable, and no Governmental Authority shall have asserted that it is unlawful, for Administrative Agent or any Buyer to enter into Transactionsthe Transaction;
(18xv) the Effective Date Seller shall have occurredtaken such other action as Administrative Agent, on behalf of Buyers, shall have reasonably requested in order to transfer the Purchased Assets pursuant to this Agreement and to perfect all security interests granted under this Agreement or any other Transaction Document in favor of Administrative Agent, on behalf of Buyers, with respect to the Purchased Assets;
(xvi) If such Eligible Asset was acquired by Seller from a Person that is not an Affiliate of Seller, Seller shall have disclosed to Administrative Agent, on behalf of Buyers, the acquisition cost of such Eligible Asset (including therein reasonable supporting documentation required by Administrative Agent and/or any Buyer, if any);
(xvii) Administrative Agent, on behalf of Buyers, shall have received all such other and further documents, documentation and legal opinions as Administrative Agent in its reasonable discretion shall reasonably require; provided, however, that in the case of the initial Transaction, such legal opinions shall be delivered no later than ten (10) Business Days after the Closing Date;
(xviii) Administrative Agent, on behalf of Buyers, shall have received (i) other than with respect to a Table Funded Purchased Asset, from Custodian on each Purchase Date an Asset Schedule and Exception Report (as defined in the Custodial Agreement) with respect to each Purchased Asset, dated the Purchase Date, duly completed and with exceptions acceptable to Administrative Agent in its sole discretion in respect of Eligible Assets to be purchased hereunder LEGAL_US_E # 160815361.8 on such Business Day; or (ii) a Bailee Letter from an Acceptable Attorney identifying the applicable Release Letter being held on behalf of Administrative Agent, on behalf of Buyers;
(xix) as of the applicable Purchase Date for such Eligible Asset, each of the Concentration Limits is satisfied;
(xx) Administrative Agent shall have received from Seller an original Release Letter covering such Eligible Asset to be sold to Administrative Agent, on behalf of Buyers;
(xxi) The Advance Rate relating to such Eligible Asset shall not exceed the Maximum Advance Rate;
(xxii) as of the Purchase Date, the related Eligible Asset shall have a Buyer’s LTV no greater than sixty percent (60%); and
(19xxiii) Administrative Agent, on behalf of Buyers, shall have received from Seller the Repurchase Date for Draw Fee related to such Transaction is not later than Eligible Asset in accordance with the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as terms and provisions of the date of such notice or request and as of the date of such purchase)Fee Letter.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation to enter into each Transaction (including the initial Transaction) is subject In addition to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).6.01, Buyer shall not be obligated to enter into any Transaction or -52- LEGAL02/38049601v7
(2a) no Default Buyer has received the following documents for each prospective Purchased Asset: (i) a Transaction Request, (ii) an Underwriting Package or Event of Default shall have occurred a Future Funding Underwriting Package, as applicable, (iii) a Confirmation, (iv) with respect to any Wet Mortgage Asset, a Bailee Agreement, (v) Irrevocable Redirection Notices, (vi) a trust receipt and other items required to be continuing delivered under the Repurchase Documents;
Custodial Agreement, (3vi) after giving effect the related Servicing Agreement, if a copy was not previously delivered to the requested Buyer, (vii) a Servicer Notice, (viii) a duly completed Compliance Certificate and (ix) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require; (b) immediately before such Transaction (including any Future Funding Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both and immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit, Market Disruption Event or Material Adverse Effect shall have occurred, no Sub- Limit shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transactionbreached, the aggregate outstanding Purchase Price Facility Debt Yield Test is in compliance, and no default or event of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
default exists under any other financing, hedging, security or other agreement (6other than this Agreement) subject to Buyer’s right to perform one between a Seller Party and/or any Affiliate thereof, and Buyer or more Due Diligence Reviews pursuant to Section 26, any Affiliate thereof; (c) Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)appropriate, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence results of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold reviews are satisfactory to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (Granite Point Mortgage Trust Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the Purchase Date therefor:
(a) Buyer has received the following further conditions precedentdocuments: (i) a Transaction Request, both (ii) the related MBS Information, (iii) a Confirmation executed by Buyer and Seller, (iv) Irrevocable Redirection Notices, if any, (v) any Trade Tickets related to such Asset and (vi) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit, Material Adverse Effect or warranty is expressly stated to have been made as of a specific date, as of such specific date)Market Disruption Event exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Purchased AssetMBS Information, Records (if any) and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)appropriate, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence results of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold reviews are satisfactory to Buyer;
(15d) prior to Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of any Mortgage Loan acquired such Asset, (by purchase or otherwiseiii) by Seller from any Affiliate of Sellerobtained all necessary internal credit and other approvals for such Transaction, Buyer shall have received a True Sale Certificationand (iv) executed the Confirmation;
(16e) with respect the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance companysuch Transaction;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18f) the Effective Purchase Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Funding Expiration Date and the Repurchase Date as specified in the related Confirmation is not later than the Facility Termination Date;
(g) Seller and Custodian have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date;
(h) The definitive certificate representing ownership of such Purchased Assets that are subject to such Transaction in the name of Buyer or, if such Purchased Assets that are subject to such Transaction are registered on DTC or similar depository, evidence satisfactory to Buyer that the records of DTC or such depository show Buyer as the beneficial owner of such Purchased Assets that are subject to such Transaction; and
(i) (x) With respect to any Hedge Required Asset, Buyer has received a copy of any Interest Rate Protection Agreement with an Affiliated Hedge Counterparty with respect to such Hedge Required Asset, (y) Seller has collaterally assigned to Buyer all of Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement (if any) and related documents (if any), if required under Section 8.12, and (z) no termination event, default or event of default (however defined) on the part of Seller exists under the related Interest Protection Agreement. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(bArticle 6 (excluding clauses (c), (d) and, insofar as it relates to Custodian, (g) above) have been satisfied (both as or waived by Buyer). The failure of Seller to satisfy any of the date conditions precedent in this Article 6 (excluding clauses (c), (d) and, insofar as it relates to Custodian, (g) above) with respect to any Transaction or Purchased Asset shall, unless such failure was waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall immediately pay to (i) Buyer the Repurchase Price of such notice or request Purchased Asset and as (ii) any Affiliated Hedge Counterparty any amounts owed with respect to the termination of the date of any Interest Rate Protection Agreement related to such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase Agreement (Northstar Realty Finance Corp.)
Conditions Precedent to all Transactions. BuyerThe Deal Agent’s obligation and the Purchaser’s agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) no Applicable Law shall prohibit or render it unlawful, and no order, judgment or decree of Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into such Transaction by the Deal Agent or the Purchaser in accordance with the provisions of this Agreement or any other transaction contemplated herein;
(b) the Seller, the Guarantor, each Servicer and each PSA Servicer shall have delivered to the Deal Agent all reports and other information required to be delivered as of the date of such Transaction;
(c) the Deal Agent shall have received a written Transaction Request, the related Underwriting Package and the related Seller Asset Schedule;
(d) the Seller shall have delivered a Transaction Request Confirmation, via Electronic Transmission Transmission, in accordance with the procedures set forth in Section 3(c).2.2 of this Agreement, the Mortgage Asset shall be an Eligible Asset (unless waived by the Deal Agent in its discretion) and the Deal Agent shall have approved in writing the purchase of the Eligible Asset to be included in such Transaction in its discretion and shall have obtained all necessary internal credit and other approvals for such Transaction;
(2e) no Default or Event of Default shall have occurred and be continuing under continuing, no Margin Deficits are outstanding (unless the Repurchase DocumentsTransaction shall eliminate the Margin Deficit), and no Material Adverse Effect has occurred;
(3f) the Deal Agent shall have received a Compliance Certificate in the form of Exhibit VIII attached hereto (“Compliance Certificate”) from a Responsible Officer of the Seller and the Guarantor that, among other things: (A) shows in detail the calculations demonstrating that, after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount, (B) the Seller, the Guarantor and the Pledgor have in all material respects observed or performed all of their covenants and other agreements, and satisfied in all material respects every condition, contained in this Agreement, the Repurchase Documents and the related documents to be observed, performed or satisfied by them, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, (C) states that all representations and warranties contained in the Repurchase Documents are true and correct in all material respects on and as of such day as though made on and as of such day and shall be deemed to be made on such day, (D) shows that the Seller and NorthStar are in compliance with the Financial Covenants and, on a quarterly basis as provided in Subsection 5.1(q)(i)(B) of this Agreement, showing in detail the calculations supporting the certification of the Seller’s and NorthStar’s compliance with the Financial Covenants, (E) and discloses the status of each Interest Rate Protection Agreement described under clause (ii) of the definition thereof;
(4g) subject to the Deal Agent’s right to perform one or more due diligence reviews pursuant to Section 13.20 of this Agreement, the Deal Agent shall have completed, in accordance with Section 2.2 of this Agreement, its due diligence review of the Mortgage Asset, the Mortgage Asset File and the Underwriting Package for each proposed Mortgage Asset and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Mortgage Asset as the Deal Agent in its discretion deems appropriate to review, and such reviews shall be satisfactory to the Deal Agent in its discretion;
(h) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date that is not serviced by the Seller, the Seller shall have provided to the Deal Agent copies of the related Servicing Agreements and the Pooling and Servicing Agreements, certified as true, correct and complete copies of the originals, together with Servicer Redirection Notices fully executed by the Seller and the Servicer;
(i) the Deal Agent as agent for the Secured Parties shall have received all reasonable fees and expenses of the Deal Agent and the Purchaser and counsel to the Deal Agent and the Purchaser as contemplated by Section 2.12 and Section 13.8 of this Agreement and the Fee Letter, and the Deal Agent as agent for the Secured Parties shall have received the reasonable costs and expenses incurred by them in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at the Deal Agent’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(j) for each Non-Table Funded Purchased Asset, the Deal Agent shall have received from the Custodian on each Purchase Date a Trust Receipt (along with a completed Mortgage Asset File Checklist attached thereto) and an Asset Schedule and Exception Report with respect to each Eligible Asset, each dated the Purchase Date, duly completed and, in the case of the Asset Schedule and Exception Report, with exceptions acceptable to the Deal Agent in its discretion in respect of Eligible Assets to be purchased hereunder on such Business Day. In the case of a Table Funded Purchased Asset or Swingline Purchase, the Deal Agent shall have received on the related Purchase Date the Table Funded Trust Receipt and all other items described in the second (2nd) sentence of Subsection 2.2(e), each in form and substance satisfactory to the Deal Agent in its discretion, provided that the Deal Agent subsequently receives the items described in Subsection 2.2(d) and (e) and the other delivery requirements under the Custodial Agreement on or before the date and time specified herein and therein, which items shall be in form and substance satisfactory to the Deal Agent in its discretion;
(k) the Deal Agent shall have received from the Seller a Warehouse Lender’s Release Letter, if applicable, or a Seller’s Release Letter covering each Eligible Asset to be sold to the Purchaser or its designee;
(l) prior to the purchase of any Eligible Asset acquired (by purchase or otherwise) by the Seller from any Affiliate of Seller, the Deal Agent shall have received certified copies of the applicable Purchase Agreements (if any) and, if requested by the Deal Agent in its reasonable discretion, a True Sale Opinion;
(m) on and as of such day, the Seller, the Guarantor, the Pledgor and the Custodian shall have performed all of the covenants and agreements contained in the Repurchase Documents to be performed by such Person at or prior to such day;
(n) the Repurchase Date for such Transaction is not later than the earlier of (i) Facility Maturity Date and (ii) 364 calendar days from the Purchase Date (subject to the Refinance Option);
(o) the Deal Agent shall have received evidence satisfactory to the Deal Agent that the Seller has delivered an irrevocable instruction to each Servicer, PSA Servicer or other applicable Person to pay Income with respect to the Purchased Items directly to the Collection Account, as provided herein, which instructions may not be modified without the prior written consent of the Deal Agent, and the Seller shall have delivered all notices and instructions and obtained all certifications, acknowledgments, agreements and registrations required to perfect any CMBS Security;
(p) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the all representations and warranties made by Seller in Section 10each of the Seller, the Guarantor and the Pledgor shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5q) the Deal Agent shall be in receipt of the evidence of insurance (if any) required by Section 9.1 of the Custodial Agreement;
(r) none of the following shall have occurred and/or be continuing:
(i) an event or events shall have occurred in the good faith determination of the Deal Agent resulting in the effective absence of a “repo market” or related “lending market” for purchasing (subject to repurchase) or financing debt obligations secured by commercial mortgage loans or securities, or an event or events shall have occurred resulting in the Purchaser not being able to finance Mortgage Assets through the “repo market” or “lending market” with traditional counterparties at rates that would have been reasonable prior to the occurrence of such event or events;
(ii) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by Mortgage Assets or commercial or multifamily real property, or an event or events shall have occurred resulting in the Purchaser not being able to sell securities backed by Mortgage Assets or commercial or multifamily real property at prices that would have been reasonable prior to such event or events; or
(iii) there shall have occurred a material adverse change in the financial condition of the Purchaser that affects (or can reasonably be expected to affect) materially and adversely the ability of the Purchaser to fund its obligations under this Agreement;
(s) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsTransactions or the Maximum Amount;
(6t) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion[Reserved];
(7u) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller Deal Agent shall have provided received all such other and further documents, reports, certifications, approvals and legal opinions as the Deal Agent in its discretion shall reasonably require; and
(v) for each Preferred Equity Interest, the applicable Seller has executed and delivered all instruments and documents and has taken all further action reasonably necessary and desirable or that the Deal Agent has reasonably requested in order to Buyer a copy (i) perfect and protect the security interest of the related Servicing Agreement, certified Deal Agent as a true, correct and complete copy of agent for the original, together with a Servicer Notice, fully executed by Seller and Servicer;
Secured Parties in such Preferred Equity Interest (8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review execution and due diligence recording delivery of one or other administrative expenses necessary or incidental more control agreements reasonably acceptable to the execution Deal Agent, and any and all other actions reasonably necessary to satisfy the Deal Agent that the Deal Agent as agent to the Secured Parties has obtained a first priority perfected security interest in such Preferred Equity Interest); (ii) enable the Deal Agent as agent to the Secured Parties to exercise and enforce its rights and remedies hereunder in respect of any Transaction hereundersuch Preferred Equity Interest; and (iii) otherwise effect the purposes of this Agreement, which amountsincluding, at Buyer’s optionwithout limitation and if requested by the Deal Agent, may be withheld from having delivered to the sale proceeds Deal Agent irrevocable proxies in respect of any Transaction hereunder;such Preferred Equity Interest.
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10w) to the extent there are any MERS Designated the Mortgage LoansLoan Documents for the related Eligible Asset contain notice, Buyer shall have received from Seller a copy cure and other provisions in favor of a fully executed Electronic Tracking Agreement;
(11) Buyer pledgee of the Eligible Asset under a repurchase or warehouse facility, and without prejudice to the sale treatment of the Eligible Asset to the Purchaser or its designee, the Seller shall have received from Seller, with respect provide evidence to MERS Designated Mortgage Loans, the Deal Agent that the Seller has given notice to the applicable Persons of the Deal Agent’s and the Purchaser’s or its designee’s interest in such Eligible Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that the Deal Agent and the Purchaser or its designee are entitled to receive the benefits and exercise the rights of a MERS Report reflecting Seller as Investor and no Person named pledgee under the terms of such pledgee provisions contained in the Interim Funder field for each such MERS Designated related Mortgage Loan;
(12) none Loan Documents; The failure of the following shall have occurred and/or be continuing:
(A) an event Seller or events shall have occurred the Guarantor, as applicable, to satisfy any of the foregoing conditions precedent in respect of any Transaction shall, unless such failure was expressly waived in writing by the good faith determination of Buyer resulting in the effective absence of a “repo market” Deal Agent on or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the related Purchase Date, duly completed give rise to a right of the Deal Agent, which right may be exercised at any time on the demand of the Deal Agent, to rescind the related Transaction and with exceptions acceptable direct the Seller to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached pay to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in Deal Agent as agent for the form attached Secured Parties an amount equal to the Custodial Purchase Price, the Price Differential, Breakage Costs and Disbursement Agreement (or other amounts due in connection therewith during any such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of time that any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)foregoing conditions precedent were not satisfied.
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder with respect to an Asset, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction such Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saletherefor:
(1a) Buyer has received the following documents for each prospective Purchased Asset: (i) timely notice of the proposed Transaction delivered in accordance with Section 3.01(a), (ii) an Underwriting Package, (iii) a Confirmation, (iv) [reserved], (v) an Irrevocable Redirection Notice that is executed by Seller shall have and delivered a Transaction Request via Electronic Transmission to Custodian on behalf of Buyer, (vi) if the Underlying Obligor is required to remit Income to the Servicer, evidence satisfactory to Buyer that the Underlying Obligor has been so directed to remit Income to Servicer in accordance with the procedures set forth in Section 3(c).
Purchased Asset Documents, (2vii) no Default or Event of Default shall have occurred with respect to any Asset that is not a Wet Mortgage Asset, a trust receipt and other items required to be continuing delivered under the Repurchase DocumentsCustodial Agreement, (viii) with respect to any Wet Mortgage Asset, a Bailee Agreement and Bailee Trust Receipt, (ix) the related Servicing Agreement, if a copy was not previously delivered to Buyer, (x) a Servicer Notice, if applicable and not previously delivered to Servicer, (xi) a duly completed Compliance Certificate (or an email stating that information contained in the most recent Compliance Certificate delivered pursuant to Section 8.08 remains true and correct in all respects) and (xii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also immediately after giving effect thereto and to the intended use thereof, no change in any Requirements of Law or market conditions which make it unfavorable for Buyer to enter into the representations proposed Transaction has occurred, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit resulting in a Margin Call, Market Disruption Event or Material Adverse Effect shall have occurred, and warranties made by Seller the Facility Debt Yield Test, each Sub-Limit and the Maximum Purchased Asset PPV Requirement with respect to the prospective Purchased Asset are all in Section 10, shall compliance or will be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) compliance after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price and no default or event of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactionsdefault exists under any other financing, hedging, security or other agreement (other than this Agreement) between any Seller Party and/or any other Seven Hills Party, and Buyer or any Affiliate thereof;
(6c) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) with respect to any Buyer has (i) determined that such Asset is an Eligible Asset to be purchased hereunder and complies, on the related Purchase Date which is not serviced by SellerDate, Seller shall have provided to Buyer a copy with the Maximum Purchased Asset PPV Requirement, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerConfirmation;
(8) Buyer shall have receivede) immediately after giving effect to such Transaction, solely the Aggregate Amount Outstanding does not exceed the Maximum Amount;
(f) the Repurchase Date specified in the Confirmation is not later than the Maturity Date;
(g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the extent that Buyer previously shall have delivered to Seller a written demand therefor, Purchase Date;
(A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(i) Buyer for such amountsand/or Seller shall have entered into a Servicing Agreement (and the related Servicer Notice, all reasonable out-of-pocket costs and expenses incurred if applicable) with a Servicer approved by Buyer in connection with the entering into respect to such Asset;
(j) Seller has provided Buyer with copies of any Transaction hereunderlicense, registration or other similar certification or official document available to Seller from the jurisdiction where the related underlying Mortgaged Property is located, to the extent necessary for Seller to enforce its rights and remedies under the related Purchased Asset Documents;
(k) if requested by Buyer, such opinions from counsel to each Seller Party as Buyer may require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Document;
(9l) Buyer Custodian (or a Bailee) shall have approved, in its sole discretion, all exceptions to received the Underwriting GuidelinesBlank Assignment Documents;
(10m) to the extent there are any MERS Designated Mortgage Loans, Buyer Seller shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Sellerprovided evidence, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable satisfactory to Buyer in its sole discretion in respect reasonable discretion, that the applicable Interim Assignment Documents, if any, have been submitted (or are the subject of Eligible Assets an escrow agreement pursuant to be purchased hereunder which the related settlement agent will become irrevocably bound on such Business Day;
(14the Purchase Date to submit the applicable Interim Assignment Documents) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially for recordation in the form attached to public recording office of the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredjurisdiction; and
(19n) if such Asset is subject to a co-lender agreement, participation agreement, intercreditor agreement or other similar agreement among creditors that requires a notice of transfer and/or a notice of pledge to be delivered in order to give effect to the Repurchase Date for rights of the transferee or pledgee, as applicable, thereunder, Seller has delivered a Notice of Transfer/Pledge with respect to such Transaction is not later than the Termination DateAsset. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in this Section 3(b) have been satisfied (both as an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the date related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Seven Hills Realty Trust)
Conditions Precedent to all Transactions. Buyer’s obligation to enter into each Committed Transaction (including the initial Transaction) and, in the event Buyer chooses, in its sole discretion, to enter into an Uncommitted Transaction pursuant to Section 3(c) below, Buyer’s obligation to enter into each Uncommitted Transaction, is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and;
(19) the Repurchase Date for such Transaction is not later than the Termination Date;
(20) after giving effect to the requested Committed Transaction, the aggregate amount of outstanding Committed Transactions shall not have Purchase Prices in excess of the Maximum Committed Amount; and
(21) after giving effect to the requested Uncommitted Transaction, the aggregate amount of outstanding Uncommitted Transactions shall not have Purchase Prices in excess of the Maximum Uncommitted Amount. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)) and shall be deemed to be a request for a Committed Transaction; provided that if after giving effect to the requested Committed Transaction, the aggregate amount of outstanding Committed Transactions shall have Purchase Prices in excess of the Maximum Committed Amount, such latest request shall be deemed a request for an Uncommitted Transaction.
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s 's obligation to enter into each Committed Transaction (including the initial Transaction) and, in the event Buyer chooses, in its sole discretion, to enter into an Uncommitted Transaction pursuant to Section 3(c) below, Buyer's obligation to enter into each Uncommitted Transaction, is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, 10 shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s 's right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by the Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and the Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)) and, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all Buyer shall have received the reasonable out-of-pocket costs and expenses incurred by Buyer it in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s 's option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “"securities market” " for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(1311) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(1412) Buyer shall have received from Seller a Warehouse Lender’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(1513) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any third party, including without limitation, any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(1714) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(1915) the Repurchase Date for such Transaction is not later than the Termination Date;
(16) after giving effect to the requested Committed Transaction, the aggregate amount of outstanding Committed Transactions shall not have Purchase Prices in excess of the Maximum Committed Amount;
(17) after giving effect to the requested Uncommitted Transaction, the aggregate amount of outstanding Uncommitted Transactions shall not have Purchase Prices in excess of the Maximum Uncommitted Amount;
(18) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(19) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(20) immediately prior to the requested Transaction and also after giving effect thereto and to the intended use of the proceeds thereof, the Tangible Net Worth of AHMIC and its consolidated Subsidiaries shall be at least $500,000,000; provided, however, that in no event shall the Seller's failure to meet such Tangible Net Worth test result in any Non-Use Fee or Termination Fee to the Seller hereunder;
(21) immediately prior to the requested Transaction and also after giving effect thereto and to the intended use of the proceeds thereof, Seller shall not permit, for any period of three (3) consecutive calendar months, Net Income of AHMIC and its consolidated Subsidiaries for such period determined on a monthly basis, before income taxes for such period and distributions made during such period, to be less than $1.00; and
(22) immediately prior to the requested Transaction and also after giving effect thereto and to the intended use of the proceeds thereof, Seller shall not permit the ratio of Total Indebtedness to Tangible Net Worth of AHMIC and its consolidated Subsidiaries at any time to be greater than 18:1. With respect to any failure of condition precedent to any Transaction resulting from the failure of Buyer to approve any replacement facility to the Existing Facilities, in no event shall such failure result in any Non-Use Fee or Termination Fee to the Seller hereunder. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)) and shall be deemed to be a request for a Committed Transaction; provided that after giving effect to the requested Committed Transaction, the aggregate amount of outstanding Committed Transactions shall not have Purchase Prices in excess of the Maximum Committed Amount, in which case such request shall be deemed a request for an Uncommitted Transaction.
Appears in 1 contract
Sources: Master Repurchase Agreement (American Home Mortgage Investment Corp)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied as determined by or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saletherefor:
(1a) Seller shall have delivered Buyer has received the following documents for each prospective Purchased Asset: (i) a Transaction Request via Electronic Transmission Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) the related Servicing Agreement(s), if a copy was not previously delivered to Buyer, (v) fully executed Irrevocable Redirection Notices, except to the extent set forth in Section 8.18, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, (vii) with respect to any Wet Mortgage Asset, a Bailee Agreement, and (viii) all other documents, certificates, information, financial statements, reports and approvals as Buyer may require (provided, however, that with respect to any Wet Mortgage Asset, delivery of the foregoing items in accordance with the procedures set forth provisions of Sections 3.01(g) and (h) shall be deemed to satisfy the conditions of this Section 6.01(a) (unless otherwise determined in Section 3(cthe discretion of Buyer).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents);
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit or warranty is expressly stated to have been made as of a specific date, as of such specific date)Material Adverse Effect exists;
(5c) Buyer has completed its due diligence review of the Underwriting Package, Purchased Asset Documents and such other documents, records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer;
(d) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) determined that each such Asset has adequate structure, stabilized Debt Yield and stabilized loan‑to‑value ratio (each as determined in Buyer’s sole and absolute discretion to Buyer’s last dollar), (iv) determined that such Asset is either a Bridge Purchased Asset or a CMBS Purchased Asset, (v) obtained all necessary internal credit and other approvals for such Transaction, and (vi) executed the Confirmation;
(e) immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Amount;
(6f) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26the Repurchase Date specified in the Confirmation is not later than (i) for all Purchased Assets other than CMBS Purchased Assets, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased AssetMaturity Date, and such other documents(ii) for all CMBS Purchased Assets, records, agreements, instruments, mortgaged properties or information relating to such the CMBS Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionMaturity Date;
(7g) with respect to any Eligible Asset Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed performed by Seller and Serviceron or before the Purchase Date;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent Seller is required hereunder to reimburse Buyer for such amountsthe related Purchased Asset Documents contain notice, all reasonable out-of-pocket costs cure and expenses incurred by Buyer other provisions in connection with the entering into favor of any Transaction hereundera pledgee under a repurchase or warehouse facility, including, and without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental prejudice to the execution sale treatment of any Transaction hereundersuch Asset to Buyer, which amounts, at Buyer has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s option, may be withheld from interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the sale proceeds rights and benefits of any Transaction hereundera pledgee under such pledgee provisions;
(9i) Buyer shall have approvedhas received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to such Asset, in (ii) the related Seller Party has assigned or pledged to Buyer all of assignor’s rights (but none of its sole discretionobligations) under such Interest Rate Protection Agreement and related documents, all exceptions to the Underwriting Guidelinesand (iii) no termination event, default or event of default (however defined) exists thereunder;
(10j) to the extent there are any MERS Designated Mortgage Loans, Buyer Custodian shall have received from Seller a copy executed blank assignments of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Sellerall Purchased Asset Documents, with respect to MERS Designated Mortgage Loansif applicable, a MERS Report reflecting Seller as Investor and no Person named in appropriate form for recording in the Interim Funder field for each such MERS Designated Mortgage Loan;
jurisdiction in which the underlying real estate is located (12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredBlank Assignment Documents”); and
(19k) the Repurchase Date for such Transaction is not later For all Assets acquired from or originated by (whether directly or indirectly) an Affiliate of Seller (other than the Termination Dateany Asset acquired directly or indirectly from and/or originated by Guarantor or any Intermediate Starwood Entity), if requested by Buyer, a true sale opinion from counsel to Seller in form and substance reasonably satisfactory to Buyer. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied, unless any such condition precedent was expressly waived in the related Confirmation. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in this Section 3(b) have been satisfied (both as an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the date related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Starwood Property Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied as determined by or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saletherefor:
(1a) Seller shall have delivered Buyer has received the following documents for each Purchased Asset: (i) a Transaction Request via Electronic Transmission Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) fully executed Irrevocable Redirection Notices, except to the extent set forth in Section 8.17 , (v) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement, and (vii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require (provided, however, that with respect to any Wet Mortgage Asset, delivery of the foregoing items in accordance with the procedures set forth provisions of Sections 3.01(g) and (h) shall be deemed to satisfy the conditions of this Section 6.01(a) (unless otherwise determined in Section 3(cthe discretion of Buyer).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents);
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit or warranty is expressly stated to have been made as of a specific date, as of such specific date)Material Adverse Effect exists;
(5c) Buyer has completed its due diligence review of the Underwriting Package, Purchased Asset Documents and such other documents, records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer;
(d) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(e) immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Amount;
(6f) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26the Repurchase Date specified in the Confirmation is not later than (i) for all Purchased Assets other than CMBS Purchased Assets, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased AssetMaturity Date, and such other documents(ii) for all CMBS Purchased Assets, records, agreements, instruments, mortgaged properties or information relating to such the CMBS Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionMaturity Date;
(7g) with respect to any Eligible Asset Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed performed by Seller and Serviceron or before the Purchase Date;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent Seller is required hereunder to reimburse Buyer for such amountsthe related Purchased Asset Documents contain notice, all reasonable out-of-pocket costs cure and expenses incurred by Buyer other provisions in connection with the entering into favor of any Transaction hereundera pledgee under a repurchase or warehouse facility, including, and without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental prejudice to the execution sale treatment of any Transaction hereundersuch Asset to Buyer, which amounts, at Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s option, may be withheld from interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the sale proceeds rights and benefits of any Transaction hereundera pledgee under such pledgee provisions;
(9i) Buyer shall have approvedhas received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to such Asset, in (ii) the Related Seller Party has assigned to Buyer all of assignor’s rights (but none of its sole discretionobligations) under such Interest Rate Protection Agreement and related documents, all exceptions to the Underwriting Guidelinesand (iii) no termination event, default or event of default (however defined) exists thereunder;
(10j) to the extent there are any MERS Designated Mortgage Loans, Buyer Custodian shall have received from Seller a copy executed blank assignments of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Sellerall Purchased Asset Documents, with respect to MERS Designated Mortgage Loansif applicable, a MERS Report reflecting Seller as Investor and no Person named in appropriate form for recording in the Interim Funder field for each such MERS Designated Mortgage Loan;
jurisdiction in which the underlying real estate is located (12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredBlank Assignment Documents”); and
(19k) the Repurchase Date for such Transaction is not later For all Assets acquired from or originated by (whether directly or indirectly) an Affiliate of Seller (other than the Termination Dateany Asset acquired directly or indirectly from and/or originated by Guarantor or any Intermediate Starwood Entity), if requested by Buyer, a true sale opinion from counsel to Seller in form and substance reasonably satisfactory to Buyer. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied, unless any such condition precedent was expressly waived in the related Confirmation. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in this Section 3(b) have been satisfied (both as an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the date related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Starwood Property Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller Buyer shall have received an executed copy of a Term Sheet with respect to the Purchased Mortgage Loans in accordance with the procedures set forth in the Purchase Agreement;
(ii) Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2iii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iv) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5v) after After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the for all Purchased Mortgage Loans subject to then outstanding Transactions outstanding under this Repurchase Agreement shall not exceed the Maximum Purchase Price.
(vi) After giving effect to the requested Transaction, there shall have been no more than three (3) Transactions per week;
(vii) After giving effect to the requested Transaction, the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6viii) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review Such Transaction has a Purchase Price of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionat least $10,000,000;
(7ix) with respect on or prior to any Eligible Asset 10:00 a.m. (New York time) one (1) day prior to be purchased hereunder on the related Purchase Date which is not serviced by SellerDate, the Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to the Buyer (a) a Transaction Request, and (b) a Purchased Mortgage Loan Report;
(x) the Seller shall have delivered to the Custodian the Mortgage File with respect to each Purchased Mortgage Loan and the Custodian shall have issued a written demand therefor, Trust Receipt with respect to each such Purchased Mortgage Loan to the Buyer;
(Axi) the Buyer shall have received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 26 which amounts, at the Buyer’s option, may be withheld from the sale proceeds of remitted by Buyer to the Seller pursuant to any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12xii) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of the Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of the Buyer to fund its obligations under this Repurchase Agreement;; or
(13xiii) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in this Section 3(b) (other than clause (xii) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) shall be determined in Buyer’s sole discretion and is otherwise subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1i) Seller shall give Buyer no less than two (2) Business Days’ prior written notice of each Transaction (including the initial Transaction), which notice shall describe the terms of the Transaction and the Purchased Assets;
(ii) The sum of (A) the unpaid Purchase Price for all prior outstanding Transactions and (B) the requested Purchase Price for the pending Transaction, in each case, shall not exceed the Maximum Facility Amount;
(iii) No Market Disruption Event has occurred and is continuing, no Margin Deficit shall exist, and no Potential Event of Default or Event of Default has occurred and is continuing under this Agreement or any other Transaction Document (unless the Transaction would cure any of the foregoing);
(iv) No Material Adverse Effect shall exist;
(v) Seller shall have executed a Confirmation for such proposed Transaction;
(vi) Buyer shall have (i) determined, in its sole discretion, that the Asset proposed to be sold to Buyer by Seller in such Transaction is an Eligible Asset, (ii) satisfactorily completed its “Know Your Customer” and OFAC diligence (as to the related Mortgagor, guarantor and all other related parties, as determined by Buyer), (iii) determined conformity to the terms of the Transaction Documents and Buyer’s internal credit and underwriting criteria, and (iv) obtained internal credit approval, to be granted or denied in Buyer’s sole discretion, for the inclusion of such Eligible Asset as a Purchased Asset in a Transaction, without regard for any prior credit decisions by Buyer or any Affiliate of Buyer, and with the understanding that Buyer shall have the absolute right to change any or all of its internal underwriting criteria at any time, without notice of any kind to Seller;
(vii) Seller shall have delivered to Buyer a Transaction Request via Electronic Transmission in accordance with list of all exceptions to the procedures set forth in Section 3(crepresentations and warranties relating to the Eligible Asset and any other eligibility criteria for such Eligible Asset (the “Requested Exceptions Report”).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3viii) after giving effect Guarantor shall have delivered to Buyer a Covenant Compliance Certificate with respect to Guarantor’s most recently ended fiscal quarter for which a Covenant Compliance Certificate is required to be delivered hereunder, provided that to the requested extent Guarantor has previously delivered to Buyer a Covenant Compliance Certificate for the most recently ended fiscal quarter, Seller or Guarantor need not provide an additional Covenant Compliance Certificate for such fiscal quarter in connection with the proposed Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4ix) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, each of Exhibit V and Article 9 shall be true, true and correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), subject to such exceptions specified in any Requested Exceptions Report that has been approved by Buyer;
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6x) subject to Buyer’s right to perform one or more Due Diligence Reviews due diligence reviews pursuant to Section 26Article 28, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased AssetAsset File, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review review, including, without limitation, all external legal due diligence and any due diligence relating to lending licensing requirements which may impact Buyer, and such review shall be satisfactory to Buyer in its sole discretiondiscretion and Buyer has consented in writing to the Eligible Asset becoming a Purchased Asset;
(7xi) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which that is not primarily serviced by Sellerthe Primary Servicer, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicerthe servicer named in the related Servicing Agreement;
(8) Buyer shall have received, solely to the extent that Buyer previously xii) Seller shall have delivered to any related Mortgagor, obligor, related servicer or lead lender a direction letter with respect to the Depository Account unless such Mortgagor, obligor, related servicer or lead lender is already remitting payments to Servicer, in which case Seller a written demand thereforshall direct Servicer to remit all such amounts into the Depository Account and to service such payments in accordance with the provisions of this Agreement;
(xiii) Seller shall have paid to Buyer all amounts that are due and payable under this Agreement at the time of such Transaction, (A) including, without limitation, all reasonable out-of-pocket legal fees and expenses of outside counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable and invoiced out-of-pocket costs and expenses actually incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence diligence, recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9xiv) Buyer shall have approvedreasonably determined that the introduction of, or a change in, any Requirement of Law or in its sole discretionthe interpretation or administration of any Requirement of Law including without limitation changes in any Reserve Requirements and any other increase in cost to Buyer applicable to Buyer has not made it unlawful or impracticable, all exceptions and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into the Underwriting GuidelinesTransaction;
(10xv) to the extent there are any MERS Designated Mortgage Loans, Seller shall have taken such other action as Buyer shall have received from Seller a copy reasonably requested in order to transfer the Purchased Assets pursuant to this Agreement and to perfect all security interests granted under this Agreement or any other Transaction Document in favor of a fully executed Electronic Tracking AgreementBuyer with respect to the Purchased Assets;
(11xvi) Buyer shall have received from Sellerall such other and further documents, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller documentation and legal opinions as Investor and no Person named Buyer in the Interim Funder field for each such MERS Designated Mortgage Loanits reasonable discretion shall reasonably require;
(12xvii) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received (i) other than with respect to a Table Funded Purchased Asset, from Custodian on each Purchase Date an Asset Schedule and Exception ReportReport (as defined in the Custodial Agreement) with respect to each Purchased Asset, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day; or (ii) a Bailee Letter from an Acceptable Attorney identifying the applicable Release Letter being held on behalf of Buyer;
(14xviii) as of the applicable Purchase Date for such Eligible Asset, each of the Concentration Limits is satisfied;
(xix) Buyer shall have received from Seller a Warehouse Lender’s an original Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or covering such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15xx) prior The Advance Rate relating to such Eligible Asset shall not exceed the purchase Maximum Advance Rate and the Buyer’s LTV for such Eligible Asset shall be no greater than sixty percent (60%) as of any Mortgage Loan acquired the applicable Purchase Date;
(by purchase or otherwisexxi) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect from Seller the Draw Fee related to each such Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that in accordance with the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, terms and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as provisions of the date of such notice or request and as of the date of such purchase)Fee Letter.
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction or purchase any Asset (as determined or waived by Buyer) until the following additional conditions have been satisfied in the discretion of Buyer, or waived by Buyer, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the Purchase Date therefor:
(a) Buyer has received the following further conditions precedentdocuments: (i) an Underwriting Package, both (ii) a Confirmation, (iii) a trust receipt and other items required to be delivered under the Custodial Agreement, and (iv) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit, Material Adverse Effect or warranty is expressly stated to have been made as of a specific date, as of such specific date)Market Disruption Event exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Purchased AssetUnderwriting Package, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) with respect to any Buyer has (i) determined that such Asset is an Eligible Asset to be purchased hereunder on Asset, (ii) approved the related Purchase Date which is not serviced by Sellerpurchase of such Asset, Seller shall have provided to Buyer a copy of (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerConfirmation;
(8) Buyer shall e) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;
(f) the Purchase Date is not later than the Funding Expiration Date and the Repurchase Date is not later than the Facility Termination Date;
(g) Seller and Custodian have receivedsatisfied all requirements and conditions and have performed all covenants, solely duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the extent that Buyer previously shall have delivered Purchase Date;
(h) if requested by Buyer, such opinions from counsel to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Guarantor as Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named the perfected security interest in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior and any other collateral pledged pursuant to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredRepurchase Document; and
(19i) Buyer has received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to such Asset, Seller has assigned to Buyer all of Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement and related documents, and no termination event (other than any Mandatory Reduction Event, as defined in the Repurchase Date for such Transaction is not later than the Termination Daterelated Interest Rate Protection Agreement), default or event of default (however defined) exists thereunder. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 (other than those conditions which are expressly satisfied based upon Buyer’s determination, satisfaction or approval) have been satisfied, unless such failure was set forth in this Section 3(b) have been satisfied (both as an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date. The failure of Seller to satisfy any of the date conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall, within three (3) Business Days of written notice of such notice or request rescission, pay to Buyer and as of any Affiliated Hedge Counterparty the date Repurchase Price of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Resource Capital Corp.)
Conditions Precedent to all Transactions. Buyer’s obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3ii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iii) after After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the for all Purchased Mortgage Loans subject to then outstanding Transactions outstanding under this Repurchase Agreement shall not exceed the Maximum Committed Purchase Price;
(iv) After giving effect to the requested Transaction, the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6v) subject Subject to the Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 2629 hereof, the Buyer shall have completed its due diligence review of the Mortgage File Loans for each Purchased AssetMortgage Loan, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset Mortgage Loan as the Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to the Buyer in its sole discretion;
(7vi) with respect On or prior to any Eligible Asset to be purchased hereunder 4:00 p.m. (Central Time) on the related Purchase Date which is not serviced by SellerDate, Seller shall have provided delivered to the Buyer (a) a copy of Transaction Request, (c) Mortgage Loan Schedule and (b) a Purchased Mortgage Loan Report. With respect to Wet-Ink Mortgage Loans delivered electronically, the related Servicing Agreement, certified as Seller shall deliver a true, correct and complete copy of the original, together with a Servicer Notice, fully executed Mortgage Loan Schedule by Seller and Servicer4:00 p.m. (Central time) or by 3:00 p.m.(Central time) if delivered manually;
(8) Buyer shall have received, solely to the extent that Buyer previously vii) The Sellers shall have delivered to Seller the Custodian the Mortgage File with respect to each Purchased Mortgage Loan (other than a written demand thereforWet-Ink Mortgage Loan) and the Custodian shall have issued a Trust Receipt with respect to each such Purchased Mortgage Loan to the Buyer;
(viii) With respect to each Wet-Ink Mortgage Loan, on the seventh (A7th) Business Day following the applicable Purchase Date and in accordance with the terms of the Custodial Agreement, Sellers shall deliver to the Custodian the Mortgage File.
(ix) The Buyer shall have received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 29 which amountsamount, at the Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9x) Buyer To the extent Sellers are selling Mortgage Loans which are registered on the MERS® System, the Sellers shall have approveddelivered an Electronic Tracking Agreement entered into, duly executed and delivered by the parties thereto and being in its sole discretionfull force and effect, all exceptions to the Underwriting Guidelinesfree of any modification, breach or waiver;
(10xi) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none None of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of the Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of the Buyer to fund its obligations under this Repurchase Agreement;
(13xii) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by a Seller hereunder shall constitute a certification by such Seller that all the conditions set forth in this Section 3(b) (other than clause (xi) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase); and
(xiii) Upon request, the Buyer shall have received from outside counsel to the Sellers an updated favorable opinion or opinions, in form and substance satisfactory to the Buyer, covering and updating such matters that were originally addressed in the initial opinion issued.
Appears in 1 contract
Sources: Master Repurchase Agreement (Fieldstone Investment Corp)
Conditions Precedent to all Transactions. Upon satisfaction of the conditions set forth in this Section 3(b), the Buyer shall enter into a Transaction with a Seller. This Repurchase Agreement is a commitment by Buyer to engage in the Transactions as set forth herein up to the Maximum Committed Purchase Price; provided, that the Buyer shall have no commitment to enter into any Transaction requested which would result in the aggregate Purchase Price of then outstanding Transactions to exceed the Maximum Committed Purchase Price. Buyer’s obligation to enter into each Transaction, provided that the Purchase Price of the requested Transaction combined with the aggregate amount of the respective Purchase Prices for all then outstanding Transactions does not exceed the Maximum Committed Purchase Price (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2ii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the each Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iv) after After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the for all Purchased Mortgage Loans subject to then outstanding Transactions outstanding under this Repurchase Agreement shall not exceed the Maximum Purchase Price. Notwithstanding the preceding sentence, Buyer shall have no obligation to enter into any Transaction, if, as a result of such Transaction the aggregate Purchase Price for all Purchased Mortgage Loans subject to then outstanding Transactions under this Agreement exceed the Maximum Committed Purchase Price;
(v) After giving effect to the requested Transaction, the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6vi) On or prior to 5:30 p.m. (New York Time) one (1) day prior to the related Purchase Date, each applicable Seller shall have delivered to the Buyer (a) a Transaction Request, and (b) a Purchased Mortgage Loan Report;
(vii) With respect to Transactions the subject of which are Wet-Ink Mortgage Loans:
(A) At least one Business Day prior to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26the related Purchase Date, the Buyer shall have completed its due diligence review received a Transaction Request;
(B) By 12:00 noon (New York time) on the related Purchase Date, the Custodian shall have received from the Buyer a schedule setting forth the mortgage loan identification number, the Mortgagor name and the outstanding principal balance of Wet-Ink Mortgage Loans to be purchased by Buyer on such Purchase Date; and
(C) The Custodian and the Buyer shall have received a Wiring Schedule setting forth the disbursement amount and wiring instructions for each Wet-Ink Mortgage Loan.
(viii) The Sellers shall have delivered to the Custodian the Mortgage File for with respect to each Purchased Asset, Mortgage Loan which is not a Wet-Ink Mortgage Loan and such other documents, records, agreements, instruments, mortgaged properties or information relating the Custodian shall have issued a Trust Receipt with respect to each such Purchased Asset as Mortgage Loan to the Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7B) with respect to any Eligible Asset to be purchased hereunder each Wet-Ink Mortgage Loan, by no later than 5:00 p.m. (New York Time) on the related seventh Business Day following the applicable Purchase Date which is not serviced by SellerDate, Seller the Sellers shall have provided deliver the Mortgage File to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerCustodian;
(8) ix) The Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 27 which amounts, at the Buyer’s option, may be withheld from the sale proceeds of remitted by Buyer to the Sellers pursuant to any Transaction hereunder;
(9x) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none None of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of the Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of the Buyer to fund its obligations under this Repurchase Agreement;; or
(13xi) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by a Seller hereunder shall constitute a certification by such Seller that all the conditions set forth in this Section 3(b) (other than clause (x) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (MortgageIT Holdings, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation The Purchaser's agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:: Loan Purchase and Repurchase Agreement (Wachovia and Arbor)
(1a) no Applicable Law shall prohibit or render it unlawful, and no order, judgment or decree of Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into such Transaction by the Purchaser in accordance with the provisions hereof or any other transaction contemplated herein;
(b) the Seller, the Guarantor, the Pledgor and each Servicer and PSA Servicer shall have delivered to the Purchaser all reports and other information required to be delivered as of the date of such Transaction;
(c) the Seller shall have delivered a Transaction Request Confirmation, via Electronic Transmission Transmission, in accordance with the procedures set forth in Section 3(c).2.2, and the Purchaser shall have determined that the Mortgage Asset described in such Confirmation is an Eligible Asset, shall have approved the purchase of the Mortgage Asset to be included in such Transaction in its sole and absolute discretion and shall have obtained all necessary internal credit and other approvals for such Transaction;
(2d) no Default Unmatured Termination Event or Termination Event of Default shall have occurred and be continuing under the Repurchase Documentscontinuing;
(3e) the Purchaser shall have received a Compliance Certificate in the form of Exhibit X attached hereto ("Compliance Certificate") from a Responsible Officer of the Seller and Guarantor that, among other things: (i) shows in detail the calculations demonstrating that, after giving effect to the requested Transaction, the aggregate Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount, (ii) the Seller and the Guarantor have observed or performed all of their covenants and other agreements, and satisfied every condition, contained in this Agreement, the Repurchase Documents and the related documents to be observed, performed or satisfied by them, and that such Responsible Officer has obtained no knowledge of any Unmatured Termination Event or Termination Event except as specified in such certificate, (iii) states that all representations and warranties contained in this Agreement are true and correct on and as of such day as though made on and as of such day and shall be deemed to be made on such day, and (iv) the Guarantor is in compliance with the Financial Covenants;
(f) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions or the Maximum Amount;
(4g) subject to the Purchaser's right to perform one or more Due Diligence Reviews pursuant to Section 13.21, the Purchaser shall have completed in accordance with Section 2.2 its due diligence review of the Mortgage Asset File and the Underwriting Package for each Purchased Asset and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Mortgage Asset as the Purchaser in its sole discretion deems appropriate to review and such review shall be satisfactory to the Purchaser in its sole discretion;
(h) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date that is not serviced by the Seller, the Seller shall have provided to the Purchaser Loan Purchase and Repurchase Agreement (Wachovia and Arbor) 42 copies of the related Servicing Agreements and the Pooling and Servicing Agreements, certified as true, correct and complete copies of the originals, together with Servicer Notices fully executed by the Seller and the Servicer;
(i) the Purchaser shall have received all fees and expenses of the Purchaser and counsel to the Purchaser as contemplated by Section 13.9 and the Fee Letter and, to the extent the Seller is required hereunder to reimburse the Purchaser for such amounts the Purchaser shall have received the reasonable costs and expenses incurred by them in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at the Purchaser's option, may be withheld from the sale proceeds of any Transaction hereunder;
(j) none of the following shall have occurred and/or be continuing:
(i) an event or events shall have occurred in the good faith determination of the Purchaser resulting in the effective absence of a "repo market" or related "lending market" for purchasing (subject to repurchase) or financing debt obligations secured by commercial mortgage loans or securities, or an event or events shall have occurred resulting in the Purchaser not being able to finance Mortgage Assets through the "repo market" or "lending market" with traditional counterparties at rates that would have been reasonable prior to the occurrence of such event or events;
(ii) an event or events shall have occurred resulting in the effective absence of a "securities market" for securities backed by Mortgage Assets, or an event or events shall have occurred resulting in the Purchaser not being able to sell securities backed by Mortgage Assets at prices that would have been reasonable prior to such event or events; or
(iii) there shall have occurred a material adverse change in the financial condition of the Purchaser that affects (or can reasonably be expected to affect) materially and adversely the ability of the Purchaser to fund its obligations under this Agreement.
(k) for each Non-Table Funded Purchased Asset, the Purchaser shall have received from the Custodian on each Purchase Date a Trust Receipt and an Asset Schedule and Exception Report with respect to each Eligible Asset, each dated the Purchase Date, duly completed and, in the case of the Asset Schedule and Exception Report, with exceptions acceptable to the Purchaser in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day. In the case of a Table Funded Purchased Asset, the Purchaser shall have received on the related Purchase Date the Table Funded Trust Receipt and all other items described in the second (2nd) sentence of Subsection 2.2(h), each in form and substance satisfactory to the Purchaser in its sole discretion, provided that the Purchaser subsequently receives the items described in Subsections 2.2(d) and (h) and the other delivery requirements under the Custodial Agreement on or before the date and time specified herein and therein, which items shall be in form and substance satisfactory to the Purchaser in its sole discretion; Loan Purchase and Repurchase Agreement (Wachovia and Arbor)
(l) the Purchaser shall have received from the Seller a Warehouse Lender's Release Letter substantially in the form of Exhibit VII-B hereto (or such other form acceptable to the Purchaser) ("Warehouse Lender's Release Letter"), if applicable, or a Seller's Release Letter substantially in the form of Exhibit VII-A hereto (or such other form acceptable to the Purchaser) ("Seller's Release Letter") covering each Eligible Asset to be sold to the Purchaser;
(m) prior to the purchase of any Eligible Asset acquired (by purchase or otherwise) by the Seller from any Affiliate of the Seller, the Purchaser shall have received certified copies of the applicable Purchase Agreements and a True Sale Opinion;
(n) the Purchase Price specified in a Confirmation for a Transaction shall not be less than $1,000,000;
(o) on and as of such day, the Seller, the Guarantor and the Custodian shall have performed all of the covenants and agreements contained in the Repurchase Documents to be performed by such Person at or prior to such day;
(p) the Repurchase Date for such Transaction is not later than the Facility Maturity Date;
(q) the Purchaser shall have received evidence satisfactory to the Purchaser that the Seller has delivered an irrevocable instruction to each Servicer or PSA Servicer under a Pooling and Servicing Agreement, as applicable, to pay Income with respect to the Purchased Items directly to the Collection Account as provided herein, which instructions may not be modified without the prior written consent of the Purchaser;
(r) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller and the Guarantor in Section 10, 4.1 shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made only as of a specific date, as of such specific date);
(5s) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price Purchaser shall be in receipt of the Transactions outstanding shall not exceed evidence of insurance required by Section 9.1 of the Asset Value of all the Purchased Assets subject to outstanding TransactionsCustodial Agreement;
(6t) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated any other opinion or closing item required by Section 14(b), and 3.1 that was not delivered on the Closing Date (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review the filing of UCC financing statements against the Seller and due diligence recording or the Pledgor, an opinion regarding perfection by possession, perfection by filing and other administrative expenses necessary or incidental matters delivered on behalf of the Seller and acceptable to the execution Purchaser in its discretion, the Guarantor's resolution duly executed, an opinion on behalf of any Transaction hereunderthe Guarantor acceptable to the Purchaser in its discretion, which amounts, at Buyer’s option, may be withheld from a fully executed Servicing Agreement and the sale proceeds establishment of any Transaction hereunderthe Collection Account); Loan Purchase and Repurchase Agreement (Wachovia and Arbor)
(u) a certification of good standing for the Seller for the Seller in each jurisdiction where the Mortgaged Property is located;
(9v) Buyer shall have approved, other conditions to such Purchase set forth in its sole discretion, all exceptions to this Agreement or the Underwriting Guidelines;Custodial Agreement are satisfied; and
(10w) to the extent there are any MERS Designated Mortgage Loansapplicable, Buyer the Seller shall have delivered the opinions required by Section 3.3; and
(x) the Purchaser shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Sellerall such other and further documents, with respect to MERS Designated Mortgage Loansreports, a MERS Report reflecting Seller certifications, approvals and legal opinions as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer Purchaser in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Datereasonably require. Each Transaction Request Confirmation delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in Section 3.1 and this Section 3(b) 3.2 have been satisfied (both as of the date of such notice or request and as of the date of such purchase). The failure of the Seller or Guarantor, as applicable, to satisfy any of the foregoing conditions precedent in respect of any Transaction shall, unless such failure was expressly waived in writing by the Purchaser on or prior to the related Purchase Date, give rise to a right of the Purchaser, which right may be exercised at any time on the demand of the Purchaser, to rescind the related Transaction and direct the Seller to pay to the Purchaser for the benefit of the Purchaser an amount equal to the Purchase Price, the Price Differential, Breakage Costs and other amounts due in connection therewith during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Sources: Loan Purchase and Repurchase Agreement (Arbor Realty Trust Inc)
Conditions Precedent to all Transactions. The Buyer’s obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) Seller the Sellers shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c2.03(b).;
(2b) the Sellers shall have delivered a Mortgage Loan Schedule;
(c) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4d) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Seller and the Guarantor in Section 10Article VIII, in Schedule 1 of this Agreement and elsewhere in each Repurchase Document, shall be true, correct and complete on and as of such Purchase Date in all material respects (in the case of the representations and warranties set forth in Section 8.14 and on Schedule 1, solely with respect to Mortgage Loans included in the Margin Base) with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date). The Buyer shall have received a certificate signed by the Sellers certifying as to the truth, accuracy and completeness of the above, which certificate shall specifically include a statement that each Seller is in compliance with all governmental licenses and authorizations and, if relevant under applicable law, is qualified to do business and is in good standing in all required jurisdictions;
(5e) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6f) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, the Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), 11.01(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all shall have received the reasonable out-of-pocket costs and expenses incurred by Buyer it in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence diligence, recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at the Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9g) the Buyer shall have approved, in its sole discretiondiscretion exercised in good faith, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12h) none of the following shall have occurred and/or be continuing:
(Ai) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(Bi) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in the Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(Cii) there shall have occurred a material adverse change in the financial condition of the Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of the Buyer to fund its obligations under this Agreement;
(13iii) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, the Buyer shall have received from the Custodian on each Purchase Date an Asset a Mortgage Loan Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to the Buyer in its sole discretion discretion, but in no event, with any Fatal Exceptions, in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14j) the Buyer shall have received from Seller the Sellers a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit VI-B hereto (or such other form acceptable to the Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit VI-A hereto (or such other form acceptable to the Buyer) covering each Eligible Asset to be sold to the Buyer, as applicable;
(15k) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to the Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for the Buyer to enter into Transactions;
(18l) the Effective Date shall have occurred; and
(19) the Final Repurchase Date for such Transaction is not later than 364 days from the Termination initial Purchase Date;
(m) the Buyer shall have completed its due diligence review of the Mortgage Files for each Mortgage Loan and such other documents, records, agreements, instruments, Mortgaged Properties or information relating to such Mortgage Loans as the Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to the Buyer in its sole discretion, it being understood and agreed by the Sellers that any such review which precedes the related Purchase Date shall not in any way limit the Buyer’s continuing right to perform one or more due diligence reviews pursuant to Section 11.12 hereof following the related Purchase Date;
(n) With respect to any Mortgage Loan which has been registered under the MERS® System, the Buyer shall have received (i) a MERS Report reflecting that the Buyer has been identified as the “Investor” and “Warehouse Gestation Lender” on the MERS® System and (ii) an Electronic Tracking Agreement in form and substance satisfactory to the Buyer; and
(o) the Sellers and the Guarantor shall provide such other documents as the Buyer may reasonably request, in form and substance reasonably acceptable to the Buyer. Each Transaction Request delivered by Seller the Sellers hereunder shall constitute a certification by Seller the Sellers that all the conditions set forth in this Section 3(b) 2.02 have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (New Century Financial Corp)
Conditions Precedent to all Transactions. Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2ii) no Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4iii) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iv) after After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the for all Purchased Mortgage Loans subject to then outstanding Transactions outstanding under this Repurchase Agreement shall not exceed the Maximum Purchase Price;
(v) after giving effect to the requested Transaction, the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6vi) subject On or prior to Buyer’s right 10 a.m. (New York Time) one (1) day prior to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by SellerDate, the Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to the Buyer (a) a Transaction Request, and (b) a Purchased Mortgage Loan Report;
(vii) The Seller shall have delivered to the Custodian the Mortgage File with respect to each Purchased Mortgage Loan and the Custodian shall have issued a written demand therefor, Trust Receipt with respect to each such Purchased Mortgage Loan to the Buyer;
(Aviii) the Buyer shall have received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 26 which amounts, at the Buyer’s option, may be withheld from the sale proceeds of remitted by Buyer to the Seller pursuant to any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12ix) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of the Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of the Buyer to fund its obligations under this Repurchase Agreement;; or
(13x) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in this Section 3(b) (other than clause (ix) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Conditions Precedent to all Transactions. Upon satisfaction of the conditions set forth in Section 3(a), the Buyer shall enter into a Transaction with the related Seller; provided, however, that the Buyer’s 's obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller The Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2ii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the related Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iv) after After giving effect to the requested Transaction, (A) the aggregate outstanding Purchase Price for all Purchased Mortgage Loans subject to then outstanding Transactions under this Repurchase Agreement shall not exceed the Maximum Purchase Price or the Available Amount and (B) the requested Purchase Price shall be no less than the Minimum Purchase Price;
(v) After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6vi) On or prior to 2 p.m. (New York Time) one (1) Business Day prior to the related Purchase Date, the Seller shall have delivered to the Buyer (a) a Transaction Request, and (b) a Purchased Mortgage Loan Report;
(vii) With respect to Transactions the subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26of which are Wet-Ink Mortgage Loans, by 3:00 p.m. (New York City time) on the related Purchase Date, the Buyer shall have completed its due diligence review of received a Wet-Ink Trust Receipt for each Wet-Ink Mortgage Loan with the related Mortgage Loan Schedule attached thereto;
(viii) The related Seller shall have delivered to the Custodian the Mortgage File for with respect to each Purchased Asset, Mortgage Loan which is not a Wet-Ink Mortgage Loan and such other documents, records, agreements, instruments, mortgaged properties or information relating the Custodian shall have issued a Trust Receipt with respect to each such Purchased Asset as Mortgage Loan to the Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7B) with respect to any Eligible Asset to be purchased hereunder each Wet-Ink Mortgage Loan, by no later than 1:00 p.m. (New York City time) on the eighth Business Day following the applicable Purchase Date, the related Purchase Date which is not serviced by Seller, Seller shall have provided deliver the Mortgage File to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerCustodian;
(8) ix) The Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 27 which amounts, at the Buyer’s 's option, may be withheld from the sale proceeds of remitted by the Buyer to the Sellers pursuant to any Transaction hereunder;
(9x) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an No event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets the Eligible Mortgage Loans through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
provided, that the Buyer shall be obligated to enter into Transactions at such time as the "repo market" or "lending market" resumes and provided, further, that if the Buyer shall invoke the foregoing provision, the Buyer shall use reasonable efforts to ascertain a Pricing Rate (Bwhich may be higher) an event or events shall have occurred resulting in at which the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able would be willing to sell securities backed by mortgage loans at prices enter into Transactions notwithstanding the circumstances which would have been reasonable prior gave rise to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely invoking the ability of Buyer to fund its obligations under this Agreementforegoing provision;
(13xi) with respect In the event that either Seller makes any material amendment or modification to each Eligible Asset that is not a Wet-Ink Mortgage Loanthe Underwriting Guidelines, Buyer such Seller shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated promptly delivered a complete copy of the Purchase Date, duly completed and with exceptions acceptable amended or modified Underwriting Guidelines to Buyer. If the Buyer does not notify the Sellers of the Buyer's disapproval within ten (10) Business Days of the Buyer's receipt of the amended or modified Underwriting Guidelines (any such disapproval as determined by Buyer in its sole discretion in respect of Eligible Assets to good faith discretion), the proposed amendments or modifications shall be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurreddeemed approved; and
(19xii) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by the related Seller hereunder shall constitute a certification by such Seller that all the conditions set forth in this Section 3(b) (other than clause (x) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (Fieldstone Investment Corp)
Conditions Precedent to all Transactions. Upon satisfaction of the conditions set forth in this Section 3(b), upon receipt of a Transaction Request and, if applicable, upon receipt and review of the Mortgage File in accordance with Section 3(c), Buyer may enter into a Transaction with a Seller. This Repurchase Agreement is not a commitment by Buyer to enter into Transactions with a Seller but rather sets forth the procedures to be used in connection with periodic requests for Buyer to enter into Transactions with a Seller. Each Seller hereby acknowledges that Buyer is under no obligation to agree to enter into, or to enter into, any Transaction pursuant to this Repurchase Agreement. Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3ii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller Sellers in Section 1012 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iii) after After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the for all Purchased Mortgage Loans subject to then outstanding Transactions outstanding under this Repurchase Agreement shall not (i) exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Purchase Price or (ii) exceed any applicable Sublimits;
(6iv) subject The results of any diligence, including but not limited to Buyera determination of Market Value and the Custodian’s right to perform one or more Due Diligence Reviews review pursuant to Section 26the Custodial Agreement, which is performed by or on behalf of Buyer shall have completed its due diligence review with respect to a Mortgage Loan which is the subject of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory a Transaction Request is acceptable to Buyer in its sole good faith discretion;
(7v) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none None of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Repurchase Agreement;; or
(13vi) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by a Seller hereunder shall constitute a certification by such Seller that all the conditions set forth in this Section 3(b) (other than clause (v) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of therefor:
(a) Buyer has received the following further conditions precedentdocuments for each Purchased Asset: (i) [reserved], both (ii) an Underwriting Package, (iii) a Confirmation, (iv) Irrevocable Redirection Notices, (v) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement, (vii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, and (viii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(a) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations no Representation Breach (including with respect to any Purchased Asset, but excluding any Approved Representation Exception), Default, Event of Default, Margin Deficit, or Material Adverse Effect shall have occurred and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)continuing;
(5b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Underwriting Package, Mortgage File for each Purchased Asset, Loan Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)appropriate, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence results of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold reviews are satisfactory to Buyer;
(15c) prior to Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of any Mortgage Loan acquired such Asset, (by purchase or otherwiseiii) by Seller from any Affiliate obtained all necessary internal credit and other approvals for such Transaction, (iv) executed the Confirmation, (v) determined that such Asset is adequately structured and stabilized, (vi) received payment of Seller, Buyer shall have received a True Sale Certification;
(16) the Annual Funding Fee with respect to each Eligible such Asset that is a Wet-Ink Mortgage Loan(which Annual Funding Fee may be netted from the Purchase Price funded on the applicable Purchase Date or netted from the Future Funding Amount funded on the applicable Future Funding Date, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
as applicable), and (17vii) Buyer shall not have determined that such Asset satisfies the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both PPV Test as of the date of such notice or request and as of the date of such purchase).Purchase Date;
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the salePurchase Date therefor:
(1a) Seller shall have delivered With respect to any Asset proposed to be sold, Buyer has received the following documents: (i) a Transaction Request via Electronic Transmission Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) a fully executed Servicer Instruction Notice together with the Servicing Agreement (to the extent not already received pursuant to Section 6.01(a)), (v) a fully executed Investment Advisor Side Letter (to the extent not already received pursuant to Section 6.01(a)) and (vi) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel (including, without limitation, (x) a true sale opinion to the extent any Eligible Asset was transferred to Sellers from another Affiliate and was not transferred pursuant to the Contribution Agreement or any Underlying Mortgage Loans transferred pursuant to a participation interest by PMC to the Class A Participant pursuant to any REMIC Declaration Agreement, and (y) if such Asset being sold is a REMIC Certificate, an Investment Company Act opinion that covers such Asset and the related REMIC Declaration Agreement) as Buyer may require;
(b) With respect to any Mortgage Loan (including, without limitation any Removed Mortgage Loans) proposed to be sold and any Underlying Mortgage Loan proposed to support REMIC Certificates, Custodian has received all related Mortgage Loan Documents in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event provisions of Default shall have occurred the Custodial Agreement, and Buyer has received a trust receipt with respect to such Mortgage Loan Documents and any other item required to be continuing delivered to Buyer under the Repurchase DocumentsCustodial Agreement;
(3c) after giving effect With respect to any REO Property (including, without limitation any Foreclosed Mortgage Loans) proposed to support REO Entity Interests, (i) Custodian has received all related REO Property Documents in accordance with the requested Transaction, the aggregate outstanding Purchase Price provisions of the Transactions outstanding shall not exceed Custodial Agreement, (ii) Buyer has received a trust receipt with respect to such REO Property Documents and any other item required to be delivered to Buyer under the Maximum AmountCustodial Agreement and (iii) Buyer has been provided “view access” to Sellers’ REO Property management systems;
(4d) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with With respect to any Eligible Asset REMIC Certificate proposed to be purchased hereunder on sold, in addition to the related Purchase Date which is not serviced requirements of Section 6.02(b): (i) the original, definitive REMIC Certificate in form suitable for transfer, with appropriate Transfer Documents in blank duly executed or endorsed by SellerPMIT, Seller shall have provided (ii) any other documents or instruments necessary in the reasonable opinion of Buyer to Buyer effect and perfect a legally valid delivery of such security to Buyer, and (iii) a copy of the fully executed, related Servicing REMIC Declaration Agreement, certified by Sellers as a true, correct and complete copy of the original, together which REMIC Declaration Agreement shall be subject to Buyer’s approval, which may be given or withheld in its discretion.
(e) With respect to any REO Entity Interests proposed to be sold, in addition to the requirements of Section 6.02(c): (i) the original, definitive trust certificate evidencing 100% of the Capital Stock of PC REO in form suitable for transfer, with appropriate Transfer Documents in blank duly executed or endorsed by PMC, (ii) any other documents or instruments necessary in the reasonable opinion of Buyer to effect and perfect a Servicer Noticelegally valid delivery of such security to Buyer, and (iii) a copy of the fully executed executed, related Trust Agreement, certified by Seller Sellers as a true, correct and Servicercomplete copy of the original, which Trust Agreement shall be subject to Buyer’s approval, which may be given or withheld in its discretion.
(f) immediately before such Transaction and after giving effect thereto and to the intended use thereof, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit, Material Adverse Effect or Market Disruption Event exists;
(8) g) Buyer shall have receivedhas completed its due diligence review of the Underwriting Package, solely to the extent that Asset Documents and such other documents, records and information as Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)deems appropriate, and (B) the results of such reviews are satisfactory to Buyer, which shall include without limitation, ordering BPOs on a representative sample of Assets as determined by Buyer and its credit review of the extent Seller is required hereunder data and documentation related to reimburse Buyer any Assets proposed for sale under such amounts, Transaction. The Sellers shall pay all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 6.02(c). Sellers shall deliver BPOs in addition to the entering into representative sample upon the request of Buyer or Buyer may order additional BPOs at anytime, provided that these additional BPOs shall be at the Buyer’s sole expense. Sellers shall provide Buyer with a BPO Schedule for all Purchased Mortgage Loans and Underlying Assets;
(h) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset or the addition of such Asset (if an Underlying Asset), and (iii) executed the Confirmation;
(i) the Aggregate Purchase Price of all Transactions does not exceed the Maximum Aggregate Purchase Price after giving effect to such Transaction;
(j) such Purchase Date occurs on or after the Closing Date and the Repurchase Date is not later than the Maturity Date;
(k) Sellers and Custodian have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before such Purchase Date;
(l) to the extent the related Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Sellers have given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any Transaction hereunderother applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(m) if requested by Buyer, such opinions from counsel to Sellers and Guarantor as Buyer may require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution first priority perfected security interest in the Purchased Assets and Underlying Mortgage Loans (except to the extent any of PMC’s rights, title and interest in such Underlying Mortgage Loans have been legally and validly sold, transferred and assigned by PMC to the Class A Participant in accordance with the related REMIC Declaration Agreement). and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Documents;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11n) Buyer shall have received from Seller, with respect to MERS Designated executed blank assignments of all Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named Loan Documents in appropriate form for recording in the Interim Funder field for each such MERS Designated Mortgage Loanjurisdiction in which the Underlying Mortgaged Property is located (the “Blank Assignment Documents”);
(12o) none If there shall occur any Servicer Change of the following shall have occurred and/or Control or if Servicer is otherwise deemed to be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence Affiliate of a “repo market” Seller or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage LoanGuarantor, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and provided Sellers with exceptions acceptable its written consent with respect to Buyer in its sole discretion in respect such Servicer Change of Eligible Assets to be purchased hereunder on such Business DayControl or affiliation;
(14p) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially and consented to all amendments, supplements and modifications to the Servicing Agreement; and
(q) (x) each Interest Reserve Account contains funds in an amount equal to the applicable Required Amount (after giving effect to such purchase), or (y) the Sellers have irrevocably directed the Buyer to deduct any deficiency in the form attached to amount described in clause (x) from the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset Purchase Price to be sold to Buyer;
(15) prior to paid the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16applicable Seller(s) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredsuch Transaction; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request Confirmation delivered by Seller hereunder Sellers shall constitute a certification by Seller Sellers that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as satisfied. The failure of a Seller to satisfy any of the date conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Sellers shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase Agreement (PennyMac Mortgage Investment Trust)
Conditions Precedent to all Transactions. Buyer’s obligation to enter into Each Advance under this Agreement, each Transaction Addition, each Substitution and each Discretionary Sale (including the initial each, a “Transaction”) is shall be subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
precedent that: (1a) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request On and as of the date of such purchaseTransaction the following statements shall be true and correct, and the Borrower by entering into such Transaction shall be deemed to have certified that: (i) with respect to any Advance, the Servicer (on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Agent) no later than 2:00 p.m. on the date that is one (1) Business Day prior to the proposed Advance Date, a Servicer Advance DateReport; (ii) with respect to any Transaction other than an Advance or a Discretionary Sale, the Servicer (on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Agent) no later than one Business Day prior to such Transaction, a Borrowing Base Certificate and Loan Tape updated to give pro forma effect to the relevant Addition, or Substitution or Discretionary Sale; provided that if the Servicer delivers a Borrowing Base Certificate on the same Business Day as any Addition or Substitution, the Administrative Agent may in its sole discretion accept the Borrowing Base Certificate and approve such Addition or Substitution; (iii) with respect to any Transaction that is an Addition, (A) the Borrower shall have delivered to the Collateral Custodian (with a copy to the Administrative Agent)., on or prior to the date of such Addition, an Approval Notice and the Loan Checklist, (B) in the case of any Loan acquired by the Borrower through direct origination by the Borrower or an Affiliate thereof, the Borrower shall have delivered to the Collateral Custodian (with a copy to the Administrative Agent) (1) within two (2) Business Days (or within five (5) Business Days in the case of clause (c) of the definition of Required Loan Documents) of the date on which funds are released to the related Obligor for settlement of the Loan (as notified by the Collateral Agent to the Administrative Agent), the Required Loan Documents and (2) prior to the release of such funds to the related Obligor as set forth in clause (1), a confirmation from the Servicer that the Required Loan Documents have been finalized and agreed among the relevant parties (which, if the -108- USActive 58972051.458972051.5 Loans to be Pledged are closed in escrow, may take the form of a certificate (in the form of Exhibit G) from the closing attorneys of such Loans certifying the possession of the Required Loan Documents) and that the Borrower will provide copies of the fully executed Required Loan Documents to the Collateral Custodian (with a copy to the Administrative Agent) as set forth in clause (1); and (C) in the case of a Loan acquired by the Borrower from a third party, the Borrower shall cause to be delivered to the Collateral Custodian (with a copy to the Administrative Agent), within two (2) Business Days after the date of such Addition, (1) the Required Loan Documents, (2) an executed copy of each assignment and assumption agreement, transfer document or instrument relating to each Loan so Pledged evidencing the assignment of such Loan from any prior third party owner thereof directly to the Borrower, and (3) other than in the case of a Noteless Loan, an e-mailed copy of the duly executed original promissory notes of the Loans so Pledged (and, in the case of any Noteless Loan, a fully executed assignment agreement); (b) On and as of the date of such Transaction, after giving effect to such Transaction, the Borrower and the Servicer shall certify asfollows: (i) no Unmatured Event of Default (other than a Borrowing BaseDeficiency) or Event of Default exists or would result from such Transaction; (ii) (A) in the case of an Advance, no Borrowing Base Deficiency exists or would result from such Transaction and (B) in the case of a Transaction other than an Advance, either (I) no Borrowing Base Deficiency exists or would result from such Transaction or (II) if a Borrowing Base Deficiency exists the relevant Transaction will cure or reduce such Borrowing Base Deficiency; (iii) other than Permitted Liens, no Liens exist in respect of Taxes which are prior to the lien of the Collateral Agent on the Eligible Loan Assets to be Pledged on the date of such Transaction; (iv) the representations and warranties contained in Section 4.01, Section 4.02 and Section 4.03 and the representations and warranties of the Servicer contained in the Servicing Agreement are true and correct in all respects (other than any representation and warranty that is made as of a specific date), and no material breach of any covenant contained in Section 5.01, Section 5.02, Section 5.03 and Section 5.04 would result from the Transaction or the application of proceeds therefrom; (v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Servicer Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Servicer Default; (vi) since the later of the Closing Date or the date of the last financial statements (or the last day of the period covered by such financial statements) delivered pursuant to Section 6.08(g), there has been no material adverse change in the ability of the Transferor to perform its obligations under any Transaction DocumentMaterial Adverse Effect;
Appears in 1 contract
Conditions Precedent to all Transactions. Upon satisfaction of the conditions set forth in the Section 3(b), the Buyer may enter into a Transaction with Seller. This Agreement is not a commitment by Buyer to enter into Transactions with Seller or Seller to enter into Transactions with Buyer but rather sets forth the procedures to be used in connection with periodic requests for Buyer to enter into Transactions with Seller. The parties hereby acknowledges that Buyer and Seller are under no obligation to agree to enter into, or to enter into, any Transaction pursuant to this Agreement. Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2ii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereofthereto, the representations and warranties made by the Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iv) after After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the for all Purchased Mortgage Loans subject to then outstanding Transactions outstanding under this Repurchase Agreement shall not exceed the Maximum Purchase Price;
(v) After giving effect to the requested Transaction, the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6vi) With respect to Transactions the subject of which are Mortgage Loans other than Wet-Ink Mortgage Loans on or prior to Buyer’s right 10 a.m. (New York Time) one (1) day prior to perform the related Purchase Date, the Seller shall have delivered to the Buyer (a) a Transaction Request, and (b) a Purchased Mortgage Loan Report;
(vii) With respect to Transactions the subject of which are Wet-Ink Mortgage Loans:
(A) By 4:00 p.m. (New York City time) one or more Due Diligence Reviews pursuant (1) Business Day prior to Section 26the related Purchase Date, the Buyer shall have completed its due diligence review received the approximate amount of the related Purchase Price (the “Estimated Purchase Price”);
(B) By 3:45 p.m. (New York City time) on the related Purchase Date, the Buyer and the Disbursement Agent shall have received (a) the final Mortgage Loan Schedule, including, without limitation, a schedule setting forth the mortgage loan identification number, the Mortgagor name and the approximate outstanding principal balance of Wet-Ink Mortgage Loans to be purchased by Buyer on such Purchase Date, (b) an updated report setting forth the approximate outstanding principal balance of Wet-Ink Mortgage Loans to be purchased by the Buyer on such Purchase Date and the amount of the related Purchase Price (the “Actual Purchase Price”) and (c) a Wiring Schedule; and
(C) By 4:00 p.m. (New York City time) on the related Purchase Date, the Buyer shall have received a Wet-Ink Trust Receipt for each Wet-Ink Mortgage Loan with the related Mortgage Loan Schedule attached thereto.
(viii) The Seller shall have delivered to the Custodian the Mortgage File for with respect to each Purchased Asset, Mortgage Loan which is not a Wet-Ink Mortgage Loan and such other documents, records, agreements, instruments, mortgaged properties or information relating the Custodian shall have issued a Trust Receipt with respect to each such Purchased Asset as Mortgage Loan to the Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7B) with respect to any Eligible Asset to be purchased hereunder each Wet-Ink Mortgage Loan, by no later than 1:00 p.m. (New York Time) on the related seventh Business Day following the applicable Purchase Date which is not serviced by SellerDate, Seller shall have provided deliver the Mortgage File to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerCustodian;
(8) ix) The Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 27 which amounts, at the Buyer’s option, may be withheld from the sale proceeds of remitted by Buyer to the Seller pursuant to any Transaction hereunder;
(9x) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none None of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of the Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of the Buyer to fund its obligations under this Repurchase Agreement;; or
(13xi) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in this Section 3(b) (other than clause (x) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the Purchase Date therefor:
(a) Buyer has received the following further conditions precedentdocuments: (i) a Transaction Request, both (ii) the related MBS Information, (iii) a Confirmation executed by Buyer and Seller, (iv) Irrevocable Redirection Notices, if any, (v) any Trade Tickets related to such Asset and (vi) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit, Material Adverse Effect or warranty is expressly stated to have been made as of a specific date, as of such specific date)Market Disruption Event exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Purchased AssetMBS Information, Records (if any) and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)appropriate, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence results of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold reviews are satisfactory to Buyer;
(15d) prior to Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of any Mortgage Loan acquired such Asset, (by purchase or otherwiseiii) by Seller from any Affiliate of Sellerobtained all necessary internal credit and other approvals for such Transaction, Buyer shall have received a True Sale Certificationand (iv) executed the Confirmation;
(16e) with respect the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance companysuch Transaction;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19f) the Repurchase Date for such Transaction as specified in the related Confirmation is not later than the Facility Termination Date;
(g) Seller and Custodian have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date; and
(h) The definitive certificate representing ownership of such Purchased Assets that are subject to such Transaction in the name of Buyer or, if such Purchased Assets that are subject to such Transaction are registered on DTC or similar depository, evidence satisfactory to Buyer that the records of DTC or such depository show Buyer as the beneficial owner of such Purchased Assets that are subject to such Transaction. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(bArticle 6 (excluding clauses (c), (d) and, insofar as it relates to Custodian, (g) above) have been satisfied (both as of the date applicable date. The failure of such notice or request and Seller to satisfy any of the conditions precedent in this Article 6 as of the applicable date (excluding clauses (c), (d) and, insofar as it relates to Custodian, (g) above) with respect to any Transaction or Purchased Asset shall, unless such failure was waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Dynex Capital Inc)
Conditions Precedent to all Transactions. Buyer’s 's obligation to enter ---------------------------------------- into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).;
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s 's right to perform one or more Due Diligence Reviews pursuant to Section 2628, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller Buyer shall have provided received from Seller certified copies of any Servicing Agreement relating to the Eligible Assets and Buyer a copy of the related shall have reviewed and approved each such Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerAgreement in its sole discretion;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amountsamount, at Buyer’s 's option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “"securities market” " for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;; or
(1311) with respect to each Eligible Asset that is not a Wet-Ink Mortgage LoanAsset, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report or Trust Receipt and Basic Status Report, as applicable, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(1412) Buyer shall have received from Seller a Warehouse Lender’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit VII-B hereto ------------- (or such other form acceptable to Buyer) or a Seller’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of Exhibit VII-A hereto (or such ------------- other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(1513) prior to the purchase The aggregate requested Purchase Price of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset Assets that is a are not Wet-Ink Mortgage Loan, Loans that Seller has requested Buyer shall have received an insured closing letter from each Settlement Agent that purchase pursuant to the Transaction Request is not a title insurance companyequal to or in excess of $10,000,000;
(1714) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(1815) the Effective Date With respect to Mortgage Loans for which U.S. Bank National Association is or is to be Custodian, after August 15, 2002, Buyer shall have occurredapproved such Transaction in its sole discretion; and
(1916) the The Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller each of NCCC and NCMC that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase). Each of NCCC and NCMC hereby request that Buyer, on each Business Day, convert each Eligible Asset which is a Wet-Ink Mortgage Loan for which the Mortgage File has been received by the Custodian in accordance with the Custodial Agreement to a dry Mortgage Loan and this request shall constitute a certification by each of NCCC and NCMC that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date hereof and as of the date of such conversion).
(1) With respect to all Mortgage Loans for which Deutsche Bank National Trust Company is or is to be the Custodian, Seller shall request a Transaction by delivering to Custodian, Disbursement Agent and Buyer via Electronic Transmission a request in the form of Exhibit I attached hereto (a "Transaction Request") in --------- ------------------- accordance with the timeframe set forth in Section 3(a) of the Custodial and Disbursement Agreement. Such Transaction Request shall describe the Purchased Assets in a Seller Asset Schedule and set forth (i) the Purchase Date, (ii) the Purchase Price, (iii) the Repurchase Date, (iv) the Pricing Rate applicable to the Transaction, (v) the applicable Purchase Percentages and (vi) additional terms or conditions not inconsistent with this Agreement. Each such Transaction Request in respect of Eligible Assets that are not Wet-Ink Mortgage Loans shall be for an aggregate Purchase Price equal to or in excess of $10,000,000.
(2) With respect to all Mortgage Loans for which U.S. Bank National Association is or is to be the Custodian, Seller shall request a Transaction by delivering to Custodian and Buyer via Electronic Transmission a request in the form of Exhibit I attached hereto --------- (a "Transaction Request") no later than (i) 9:00 a.m. New York ------------------- time on the requested Purchase Date with respect to the initial purchase of each Eligible Asset that is not a Wet-Ink Mortgage Loan and with respect to each Wet-Ink Mortgage Loan anticipated to be purchased on such Purchase Date (with a final Seller Asset Schedule to be delivered no later than 11:30 a.m. New York time on the related Purchase Date) and (ii) 4:00 p.m. New York time on the Business Day prior to the date a Wet-Ink Mortgage Loan converts with respect to each Wet-Ink Mortgage Loan for which Custodian has received the related Mortgage File and there are no Fatal Exceptions with respect thereto and such Wet-Ink Mortgage Loan is converting to a dry Mortgage Loan on the Purchase Date. Such Transaction Request shall describe the Purchased Assets in a Seller Asset Schedule and set forth (i) the Purchase Date, (ii) the Purchase Price, (iii) the Repurchase Date, (iv) the Pricing Rate applicable to the Transaction, (v) the applicable Purchase Percentages and (vi) additional terms or conditions not inconsistent with this Agreement. Each such Transaction Request in respect of Eligible Assets that are not Wet-Ink Mortgage Loans shall be for an aggregate Purchase Price equal to or in excess of $10,000,000. On each Purchase Date, Buyer shall forward to Seller a confirmation (a "Confirmation") by Electronic Transmission setting forth with respect to ------------ each Transaction funded on such date, (1) the mortgage loan number, (2) the Purchase Price for such Purchased Assets, (3) the Market Value of the related Mortgage Loans as of the date of such Confirmation, (4) the outstanding principal amount of the related Mortgage Loans, (5) the Repurchase Date, (6) the Pricing Rate and (7) the Class designations of such Purchased Assets. Buyer shall forward to Seller a revised Confirmation by Electronic Transmission notifying Seller as to any changes made by Buyer in the Pricing Spread, Purchase Percentage or Reduction Amount pursuant to the terms hereof. On each date that all the documents set forth in Section 2(a)(i) of the Custodial and Disbursement Agreement are received by the Custodian with respect to any Wet-Ink Mortgage Loan, and Custodian delivers to Buyer a Trust Receipt attaching an Asset Schedule and Exception Report or Basic Status Report and Exception Report, as applicable, with respect to such Eligible Assets, Buyer shall forward to Seller a new Confirmation by Electronic Transmission setting forth the following information, updated to reflect the revised Pricing Rate, and, if applicable, Market Value as a result of the conversion of such Mortgage Loan, (1) the mortgage loan number, (2) the Purchase Price for such Purchased Assets, (3) the Market Value of the related Mortgage Loans, (4) the outstanding principal amount of the related Mortgage Loans, (5) the Repurchase Date, (6) the Pricing Rate and (7) the Class designations of such Purchased Assets. In the event Seller disagrees with any terms of the Confirmation, Seller shall notify Buyer in writing of such disagreement within one (1) Business Day after receipt of such Confirmation unless a corrected Confirmation is sent by Buyer. An objection sent by Seller must state specifically that it is an objection, must specify the provision(s) being objected to by Seller, must set forth such provision(s) in the manner that Seller believes they should be stated, and must be received by Buyer no more than one (1) Business Day after the Confirmation was received by Seller.
Appears in 1 contract
Sources: Master Repurchase Agreement (New Century Financial Corp)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) therefor:
(a) Buyer has received the following documents for each prospective Purchased Asset: (i) a Transaction Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the prospective Purchased Asset is subject to the satisfaction not serviced by Buyer or an Affiliate of Buyer, copies of the following further conditions precedentrelated Servicing Agreements, both (v) an Irrevocable Redirection Notice, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement, (vii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, (viii) a duly completed Compliance Certificate and (ix) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit, Market Disruption Event or Material Adverse Effect exists, the representations Facility Debt Yield Test is in compliance, and warranties made by Seller in Section 10no default or event of default exists under any other financing, shall be truehedging, correct security or other agreement (other than this Agreement) between Manager, Seller, Pledgor or Guarantor, and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if Buyer or any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Affiliate thereof;
(5c) Buyer has completed its due diligence review of the Underwriting Package, Purchased Asset Documents and such other documents, records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer;
(d) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(e) immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Amount;
(6f) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer Repurchase Date specified in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionthe Confirmation is not later than the Maturity Date;
(7g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the Purchase Date;
(h) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(i) Buyer has received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Sellersuch Asset, (ii) Seller shall have provided has assigned or pledged to Buyer all of Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement and related documents, subject to, in the case of a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand thereforCleared Swap, (A) all reasonable out-of-pocket fees the rights, if any, of the related DCO and expenses of counsel to Buyer as contemplated by Section 14(b), FCM and (B) any limitation on assignment or pledge by Seller required by the DCO or FCM, and (iii) no termination event, default or event of default (however defined) exists thereunder;
(j) if requested by Buyer, such opinions from counsel to the extent Seller is required hereunder to reimburse Seller, Pledgor and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution perfected security interest in the Purchased Assets, the Pledged Collateral and any other collateral pledged pursuant to the Repurchase Document, and, if Seller acquires a Purchased Asset from an Affiliate (other than Guarantor or any other Affiliate providing credit support to Seller in an amount in excess of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from 10% of the aggregate Repurchase Obligations) true sale proceeds of any Transaction hereunderissues;
(9k) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer Custodian shall have received from Seller a copy executed blank assignments of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named all Purchased Asset Documents in appropriate form for recording in the Interim Funder field for each such MERS Designated Mortgage Loan;
jurisdiction in which the underlying real estate is located, together with executed blank assignments of all Purchased Asset Documents (12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredBlank Assignment Documents”); and
(19l) the Repurchase Date for such Transaction is not later than the Termination Dateno Key Person Event has occurred. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in this Section 3(ban exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall within two (2) have been satisfied (both as of Business Days from the date of notice thereof from Buyer to Seller, repurchase the related Purchased Asset from Buyer; provided, that should Seller not have sufficient cash to repurchase the related Purchased Asset on a timely basis, Seller shall make a payment to Buyer in an amount equal to all cash held by Seller and Pledgor within two (2) Business Days of the related notice, and remit the balance due to Buyer in connection therewith within five (5) Business Days of such notice or request by causing Seller to immediately make a capital call to Pledgor who, in turn, shall immediately make a capital call to Guarantor in an amount necessary to repurchase the related Purchased Asset, and as of Guarantor shall cause such capital calls to be satisfied no later than five (5) Business Days from the date of the related notice and cause the related amounts to be deposited directly into the Waterfall Account and paid to Buyer. In addition, Seller agrees to and shall provide Buyer with copies of all related capital call notices within one (1) Business Day after the related Margin Call. The failure of Guarantor to honor any capital call made by Pledgor, or the failure of Pledgor to honor any capital call made by Seller, in each case, pursuant to the second preceding sentence within the time provided in such purchase)sentence shall constitute an immediate Event of Default hereunder and shall not excuse Seller from its repurchase obligations hereunder or relieve Guarantor from any of its obligations under the Guarantee Agreement, as applicable, which obligations shall be absolute notwithstanding any such failure.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (AG Mortgage Investment Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation 's agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) the applicable Seller shall have delivered a Transaction Request Confirmation via Electronic Transmission in accordance with the procedures set forth in Section 3(c).3.03, and Buyer shall have determined that the Mortgage Asset described in such Confirmation is an Eligible Asset, shall have approved the purchase of the Mortgage Asset to be included in such Transaction in its sole and absolute discretion and shall have obtained all necessary internal credit approvals for such Transaction;
(2b) no Default or Event of Default shall have occurred and be continuing under this Agreement, the Guarantee Agreement or any other Repurchase DocumentsDocument and no event shall have occurred which has, or would reasonably be expected to have, a Material Adverse Effect;
(3c) Buyer shall have received a certificate of a Responsible Officer of the applicable Seller, substantially in the form of Exhibit K hereto, (i) showing in detail the calculations demonstrating that, after giving effect to the requested Transaction, no Margin Deficit shall then exist, (ii) stating that, to the aggregate outstanding Purchase Price best of such Responsible Officer's knowledge, since the date of the Transactions outstanding shall not exceed certificate most recently delivered pursuant to Section 9.01(b)(ii), the Maximum Amountapplicable Seller has observed or performed all of its covenants and other agreements in all material respects, and satisfied in all material respects, every condition, contained in this Agreement and the related documents to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, (iii) describing all interests of such Seller's Affiliates in any Underlying Mortgaged Property related to any proposed Mortgage Asset (including without limitation, any lien, encumbrance or other debt or equity position or other interest in the Underlying Mortgaged Property that is senior or junior to, or pari passu with, the proposed Mortgage Asset in right of payment or priority) and (iv) showing in detail the calculations supporting such Responsible Officer's certification of the applicable Seller's compliance with the requirements of Sections 9.01(f) and 9.01(l)-(n);
(4d) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the applicable Seller in Section 108.01 and in Schedules 1(a)-1(h), as applicable, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6e) subject to Buyer’s 's right to perform one or more Due Diligence Reviews pursuant to Section 2612.11, Buyer shall have completed its due diligence review of the Mortgage Asset File and the Underwriting Package for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretiondiscretion and Buyer has consented in writing to the related Mortgage Asset becoming a Purchased Asset; provided, that if Buyer's diligence review of the Mortgage Asset File requires the delivery of a mortgage file or the equivalent, Seller shall have the benefit of such delayed delivery provisions as are customary in pooling and servicing agreements (e.g., while a promissory note (or analogous document directly evidencing the obligation) must be delivered as a condition of closing, an ancillary document or estoppel may be delivered within a reasonable timeframe thereafter);
(7f) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Sellerthe applicable Seller or an Affiliate thereof, the applicable Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by such Seller and the Servicer;
(8) g) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated required hereunder and/or by the Fee Letter and Section 14(b)12.01 and, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket Buyer shall have received the costs and expenses incurred by Buyer it in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence diligence, recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s 's option, may be withheld from the sale proceeds of any Transaction hereunder;
(9h) Buyer no Margin Deficit shall have approvedexist, in its sole discretion, all exceptions either immediately prior to or after giving effect to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loansrequested Transaction, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(Ai) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “"repo market” " or comparable “related "lending market” " for purchasing (subject to repurchase) or financing debt obligations secured by commercial mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Mortgage Assets through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(Bii) an event or events shall have occurred resulting in the effective absence of a “"securities market” " for securities backed by mortgage loans Mortgage Assets or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans Mortgage Assets at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13i) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from the Custodian on each Purchase Date an Asset Schedule and Exception ReportReport with respect to each Purchased Asset, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14j) Buyer shall have received from the applicable Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15k) prior to the purchase of any Mortgage Loan Asset acquired (by purchase or otherwise) by the applicable Seller from any Affiliate of such Seller, Buyer shall have received a Non-Consolidation Opinion and a True Sale CertificationOpinion;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17l) Buyer shall not have reasonably determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18m) the Effective Date initial Purchase Price specified in a Confirmation for a Mortgage Asset shall have occurrednot be less than $3,000,000 and increments of $100,000 thereafter; andprovided, that two (2) Confirmations per calendar month may specify an initial Purchase Price in an amount greater than $1,000,000 and less than $3,000,000.
(19n) the Repurchase Date for such Transaction is not later than the Facility Termination Date;
(o) the applicable Seller shall have taken such other action as Buyer shall have reasonably requested in order to transfer the Purchased Assets pursuant to this Agreement and to perfect all security interests granted under this Agreement or any other Repurchase Document in favor of Buyer with respect to the Purchased Assets;
(p) the weighted average Purchase Rate of all Mortgage Assets shall not exceed 85.0%;
(q) the weighted average LTV of all Mortgage Assets multiplied by the weighted average Purchase Rate of all Mortgage Assets shall not exceed 80.0%; and
(r) Buyer shall have received all such other and further documents, documentation and legal opinions (including, without limitation, opinions regarding the perfection of Buyer's security interests) as Buyer in its reasonable discretion shall reasonably require. Each Transaction Request Confirmation delivered by any Seller hereunder shall constitute a certification by such Seller that all the conditions set forth in this Section 3(b) 3.02 with respect to such Seller have been satisfied satisfied, waived or is not applicable (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (Gramercy Capital Corp)
Conditions Precedent to all Transactions. Upon satisfaction of the conditions set forth in this Section 3(b), the Buyer may enter into a Transaction with Seller. This Agreement is not a commitment by Buyer to enter into Transactions with Seller but rather sets forth the procedures to be used in connection with periodic requests for Buyer to enter into Transactions with Seller. Seller hereby acknowledges that Buyer is under no obligation to agree to enter into, or to enter into, any Transaction pursuant to this Agreement. Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2ii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iv) after After giving effect to the requested Transaction, (A) the aggregate outstanding Purchase Price for all Purchased Mortgage Loans subject to then outstanding Transactions under this Repurchase Agreement shall not exceed the Maximum Purchase Price and (B) the Purchase Price shall be no less than the Minimum Purchase Price;
(v) After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6vi) subject At least five (5) Business Days prior to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by SellerDate, the Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to the Buyer the related Purchase Agreement and/or Servicing Agreement containing the individual Mortgage Loan representations and warranties and servicing requirements with respect to the Mortgage Loans being sold to the Buyer;
(vii) On or prior to 10 a.m. (New York Time) one (1) day prior to the related Purchase Date, the Seller shall have delivered to the Buyer (a) a written demand thereforTransaction Request, and (Ab) a Mortgage Loan Schedule; and
(viii) The Seller shall have delivered to the Custodian the Mortgage File with respect to each Purchased Mortgage Loan and the Custodian shall have issued a Trust Receipt with respect to each such Purchased Mortgage Loan to the Buyer;
(ix) The Buyer shall have received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated reimbursable pursuant to by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 27 which amounts, at the Buyer’s option, may be withheld from the sale proceeds of remitted by Buyer to the Seller pursuant to any Transaction hereunder;
(9x) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none None of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of the Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of the Buyer to fund its obligations under this Repurchase Agreement;; or
(13xi) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in this Section 3(b) (other than clause (x) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (Taberna Realty Finance Trust)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied as determined by or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saletherefor:
(1a) Seller shall have delivered Buyer has received the following documents for each Purchased Asset: (i) a Transaction Request via Electronic Transmission Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) fully executed Irrevocable Redirection Notices, except to the extent set forth in Section 8.17, (v) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement, and (vii) all other documents, certificates, information, financial statements, reports and approvals as Buyer may require (provided, however, that with respect to any Wet Mortgage Asset, delivery of the foregoing items in accordance with the procedures set forth provisions of Sections 3.01(g) and (h) shall be deemed to satisfy the conditions of this Section 6.01(a) (unless otherwise determined in Section 3(cthe discretion of Buyer).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents);
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit or warranty is expressly stated to have been made as of a specific date, as of such specific date)Material Adverse Effect exists;
(5c) Buyer has completed its due diligence review of the Underwriting Package, Purchased Asset Documents and such other documents, records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer;
(d) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(e) immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Amount;
(6f) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26the Repurchase Date specified in the Confirmation is not later than (i) for all Purchased Assets other than CMBS Purchased Assets, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased AssetMaturity Date, and such other documents(ii) for all CMBS Purchased Assets, records, agreements, instruments, mortgaged properties or information relating to such the CMBS Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionMaturity Date;
(7g) with respect to any Eligible Asset Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed performed by Seller and Serviceron or before the Purchase Date;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent Seller is required hereunder to reimburse Buyer for such amountsthe related Purchased Asset Documents contain notice, all reasonable out-of-pocket costs cure and expenses incurred by Buyer other provisions in connection with the entering into favor of any Transaction hereundera pledgee under a repurchase or warehouse facility, including, and without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental prejudice to the execution sale treatment of any Transaction hereundersuch Asset to Buyer, which amounts, at Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s option, may be withheld from interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the sale proceeds rights and benefits of any Transaction hereundera pledgee under such pledgee provisions;
(9i) Buyer shall have approvedhas received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to such Asset, in (ii) the related Seller Party has assigned or pledged to Buyer all of assignor’s rights (but none of its sole discretionobligations) under such Interest Rate Protection Agreement and related documents, all exceptions to the Underwriting Guidelinesand (iii) no termination event, default or event of default (however defined) exists thereunder;
(10j) to the extent there are any MERS Designated Mortgage Loans, Buyer Custodian shall have received from Seller a copy executed blank assignments of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Sellerall Purchased Asset Documents, with respect to MERS Designated Mortgage Loansif applicable, a MERS Report reflecting Seller as Investor and no Person named in appropriate form for recording in the Interim Funder field for each such MERS Designated Mortgage Loan;
jurisdiction in which the underlying real estate is located (12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredBlank Assignment Documents”); and
(19k) the Repurchase Date for such Transaction is not later For all Assets acquired from or originated by (whether directly or indirectly) an Affiliate of Seller (other than the Termination Dateany Asset acquired directly or indirectly from and/or originated by Guarantor or any Intermediate Starwood Entity), if requested by Buyer, a true sale opinion from counsel to Seller in form and substance reasonably satisfactory to Buyer. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied, unless any such condition precedent was expressly waived in the related Confirmation. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in this Section 3(b) have been satisfied (both as an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the date related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Starwood Property Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into each any Transaction hereunder (including the initial Initial Transaction), or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Underlying Asset on and as of the Purchase Date therefor:
(a) is subject Buyer has received the following documents: (i) a Transaction Request, (ii) an Underwriting Package and all other information and documents constituting Preliminary Information, (iii) a Confirmation, (iv) copies of the applicable Servicing Agreement, to the satisfaction extent not already provided, (v) all related Servicer Letter Agreements (including with respect to any Interim Servicer), to the extent not already provided, and shall have received and consented to all amendments, supplements and modifications thereto, (vi) all related Custodial Agreement Side Letters, to the extent not already provided, and shall have received and consented to all amendments, supplements and modifications thereto, (vii) a trust receipt and other items required to be delivered under the Custodial Agreement, and (viii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require all in form and substance satisfactory to Buyer (including without limitation to the following further conditions precedentextent any proposed Underlying Asset was acquired from an Affiliate or transferred through a chain of Affiliates, both an opinion of counsel confirming that such transfer or series of transfers were legal true sales);
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach with respect to the representations and warranties made by Seller in Section 10Underlying Assets proposed to be sold, shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit, Material Adverse Effect or warranty is expressly stated to have been made as of a specific date, as of such specific date)Market Disruption Event exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Purchased AssetUnderwriting Package, Preliminary Information, Underlying Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder Buyer, which determination may include, without limitation, ordering BPOs on the related Purchase Date which is not serviced a representative sample of Underlying Assets as determined by Seller, Buyer. Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, pay all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from activities pursuant to this Section 6.03(c). Seller shall provide Buyer with a schedule listing all of the sale proceeds of any Transaction BPOs delivered to Buyer for all Purchased Assets hereunder;
(9d) Buyer shall have approvedhas (i) determined that such Underlying Asset is an Eligible Asset, in its sole discretion(ii) approved the purchase of such Underlying Asset, (iii) obtained all exceptions to necessary internal credit and other approvals for such Transaction, and (iv) executed the Underwriting GuidelinesConfirmation;
(10e) the Aggregate Purchase Price of all Transactions does not exceed the Maximum Aggregate Purchase Price after giving effect to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreementsuch Transaction;
(11f) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in such Purchase Date occurs on or after the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable Closing Date but prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially Facility Termination Date and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction specified in the Confirmation is not later than the Facility Termination Date;
(g) Buyer has received payment from Seller of all fees and expenses then payable by Seller under the Fee Letter and the other Repurchase Documents, as contemplated by Section 13.02, including without limitation the Facility Fee and the related Funding Fee;
(h) Seller and Custodian have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before such Purchase Date; and
(i) The Interest Reserve Account contains funds in an amount equal to the Required Amount. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(bArticle 6 (excluding, insofar as they relate to Buyer, clauses (c), (d) and, insofar as it relates to Custodian, (g) above) to be performed by Seller (other than those conditions precedent that have been waived by Buyer) to be performed by Seller (other than those conditions precedent that have been waived by Buyer) have been satisfied (both as satisfied. The failure of Seller to satisfy any of the date conditions precedent in this Article 6 (excluding, insofar as they relate to Buyer, clauses (c), (d) and, insofar as it relates to Custodian, (g) above) with respect to any Transaction or Purchased Asset shall, unless such failure was waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase Agreement (AG Mortgage Investment Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the following further conditions precedentPurchase Date, both immediately prior to entering into or such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saleother date as indicated below, therefor:
(1a) Seller shall have delivered Buyer and/or Custodian has received the following documents: (i) an Underwriting Package, (ii) a Transaction Request via Electronic Transmission Confirmation, (iii) (x) to the extent not previously delivered, the related Servicing Agreement, and (y) evidence satisfactory to Buyer that the Underlying Obligor has been directed to remit Income to Servicer in accordance with the procedures set forth Mortgage Loan Documents (which may be in Section 3(cthe form of a Notice of Serviced Assets (as defined in the Servicer Acknowledgment Agreement).
), (2iv) no Default or Event of Default shall have occurred Irrevocable Redirection Notices duly executed in blank by Seller, (v) (x) with respect to any Asset that is not a Table Funded Purchased Asset, a Trust Receipt and other items required to be continuing delivered under the Repurchase DocumentsCustodial Agreement, or (y) with respect to any Table Funded Purchased Asset, a Bailee Agreement and Bailee Trust Receipt, and (vi) all other documents, certificates, information, financial statements, reports, approvals, KYC compliance and opinions of counsel as Buyer may require;
(3b) after giving effect evidence satisfactory to Buyer that (i) the requested TransactionPurchased Assets are being or will be serviced by the Servicer under the Servicing Agreement and, the aggregate outstanding Purchase Price if applicable, a Sub-Servicer under a Sub-Servicing Agreement, including any notices or deliveries required thereunder to evidence or acknowledge that such Purchased Asset shall be serviced thereunder and Seller shall provide Buyer a copy of any such notice or delivery required thereunder, together with a written acknowledgment of the Transactions outstanding shall not exceed applicable Servicer and (ii) the Maximum AmountServicer has received copies of all documents in the Mortgage Asset File;
(4c) both immediately prior to the requested before such Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (other than with respect to a Purchased Asset purchased prior to the representations and warranties made by Seller in Section 10related Purchase Date) other than Approved Representation Exceptions, shall be true, correct and complete on and as Default or Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Default exists;
(5d) immediately before such Transaction and after giving effect thereto and to the intended use thereof, no (i) condition or circumstance exists which causes, constitutes or could reasonably be expected to cause or constitute a Material Adverse Effect, as determined by Buyer, (ii) Market Disruption Event or (iii) Margin Deficit exists;
(e) [Reserved];
(f) no Requirements of Law shall prohibit or render it unlawful, and no order, judgment or decree of any Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into any Transaction, including after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactionsconsummation thereof;
(6g) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Underwriting Package, Mortgage File for each Purchased Asset, Loan Documents and such other documents, recordsrecords and information as Buyer deems appropriate, agreementsand the results of such reviews are satisfactory to Buyer;
(h) Buyer has (i) determined that such Asset is an Eligible Asset, instruments(ii) approved the purchase of such Asset, mortgaged properties or information relating (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(i) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Purchased Transaction;
(j) other than in connection with a Reallocation, the Purchase Date specified in the Confirmation is not later than the Funding Period Expiration Date;
(k) the Repurchase Date is not later than the Facility Termination Date;
(l) Seller, Guarantor, Servicer, Pledgor and Custodian have satisfied in all material respects all requirements, conditions and covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date;
(m) If Seller acquired the Asset as from an Affiliate, Seller shall have delivered to Buyer in its sole discretion deems appropriate to review and on or before the related Purchase Date (i) an opinion of counsel regarding the true sale of the purchase of such review Asset by Seller and, if such Asset was acquired by Seller’s Affiliate from another Affiliate, the true sale of the purchase of the Asset by the Affiliate of Seller from the Transferor Affiliate, which opinions shall be in form and substance satisfactory to Buyer in its sole discretion;
or (7ii) a Residual Pledge Agreement and Residual Pledgor Financing Statement with respect to any Eligible residual interest such Transferor may have in such Asset, if any; provided, however, if a proposed Asset to be purchased hereunder on was acquired by Seller from a Transferor under a Purchase Agreement that was the related Purchase Date which is not serviced subject of a true sale opinion or Residual Pledge Agreement previously delivered and accepted by SellerBuyer, then Seller shall have provided deliver to Buyer a copy an executed Supplemental Conveyance evidencing the transfer of the related Servicing Agreement, certified as Asset from such Transferor to Seller pursuant to such Purchase Agreement and a true, correct and complete copy written certification in the form of the original, together with a Servicer Notice, fully executed by Seller and Servicer;Exhibit J attached hereto.
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bn) to the extent the related Mortgage Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(o) if requested by ▇▇▇▇▇, such opinions from counsel to Seller, ▇▇▇▇▇▇▇ and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Documents;
(9p) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines[Reserved];
(10q) Buyer has received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to such Asset, (i) Seller has collaterally assigned to Buyer all of Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement and related documents, and (ii) no termination event, default or event of default (however defined) exists thereunder;
(r) evidence satisfactory to Buyer regarding any Interest Rate Protection Agreement entered into by Seller in accordance with Section 8.09;
(s) Seller has complied with all other requirements set forth in the Repurchase Documents for the purchase of such Asset;
(t) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;
(u) To the extent ▇▇▇▇▇ is not the Servicer and to the extent there are any MERS Designated Mortgage Loansnot previously delivered, on or prior to the Closing Date, Seller has provided to Buyer shall have received from Seller a copy of (i) a fully executed Electronic Tracking Agreement;
(11) and completed Account Control Agreement acceptable to Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loanssuch Servicer Account, and (ii) a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions legal opinion acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
regarding the Account Control Agreement for the Servicer Account (14) Buyer shall have received from Seller a Warehouse Lenderincluding, but not limited to, ▇▇▇▇▇’s Release Letter substantially perfected security interest in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredServicer Account); and
(19v) Within three (3) months from the Repurchase Date Closing Date, ▇▇▇▇▇ has received and approved the form of Mortgage Loan Documents that Seller and/or its Affiliates intend to utilize for the origination of Assets. Seller has not amended, altered, revised or otherwise change in any material respects the form of Mortgage Loan Documents approved by Buyer under this Section 6.02(v) without first have given prior notice to Buyer of any such Transaction is not later than the Termination Dateamendments, modifications and/or changes to its form Mortgage Loan Documents. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as of the date of such notice or request waived by Buyer) other than those set forth in Sections 6.01(i) and as of the date of such purchase(j) and Sections 6.02(g) and (h).
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Cim Real Estate Finance Trust, Inc.)
Conditions Precedent to all Transactions. Upon satisfaction of the conditions set forth in Section 3(a), the Buyer shall enter into a Transaction with the related Seller; provided, however, that the Buyer’s obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller The Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2ii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the related Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iv) after After giving effect to the requested Transaction, (A) the aggregate outstanding Purchase Price for all Purchased Assets subject to then outstanding Transactions under this Repurchase Agreement shall not exceed the Maximum Purchase Price and (B) the requested Purchase Price shall be no less than the Minimum Purchase Price;
(v) After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding exceeds the aggregate Purchase Price for such Transactions;
(6vi) On or prior to 2 p.m. (New York Time) one (1) Business Day prior to the related Purchase Date, the Seller shall have delivered to the Buyer (a) a Transaction Request, and (b) a Purchased Asset Report;
(vii) With respect to Transactions the subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26of which are Wet-Ink Mortgage Loans, by 3:00 p.m. (New York City time) on the related Purchase Date, the Buyer shall have completed its due diligence review of the Mortgage File received a Wet-Ink Trust Receipt for each Wet-Ink Mortgage Loan with the related Asset Schedule attached thereto;
(viii) The related Seller shall have delivered to the Custodian the Asset File with respect to each Purchased Asset, Asset which is not a Wet-Ink Mortgage Loan and such other documents, records, agreements, instruments, mortgaged properties or information relating the Custodian shall have issued a Trust Receipt with respect to each such Purchased Asset as to the Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7B) with respect to any Eligible Asset to be purchased hereunder each Wet-Ink Mortgage Loan, by no later than 1:00 p.m. (New York City time) on the eighth Business Day following the applicable Purchase Date, the related Purchase Date which is not serviced by Seller, Seller shall have provided deliver the Asset File to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerCustodian;
(8) ix) The Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 27 which amounts, at the Buyer’s option, may be withheld from the sale proceeds of remitted by the Buyer to the Sellers pursuant to any Transaction hereunder;
(9x) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an No event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance the Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events provided, that the Buyer shall have occurred resulting in be obligated to enter into Transactions at such time as the effective absence of a “securities repo market” for securities backed by mortgage loans or an event or events “lending market” resumes and provided, further, that if the Buyer shall have occurred resulting in invoke the foregoing provision, the Buyer not being able shall use reasonable efforts to sell securities backed by mortgage loans ascertain a Pricing Rate (which may be higher) at prices which the Buyer would have been reasonable prior be willing to such event or events; or
(C) there shall have occurred a material adverse change in enter into Transactions notwithstanding the financial condition of circumstances which gave rise to the Buyer which affects (or can reasonably be expected to affect) materially and adversely invoking the ability of Buyer to fund its obligations under this Agreementforegoing provision;
(13xi) with respect In the event that either Seller makes any material amendment or modification to each Eligible Asset that is not a Wet-Ink Mortgage Loanthe Underwriting Guidelines, Buyer such Seller shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated promptly delivered notice of the Purchase Date, duly completed and amended or modified Underwriting Guidelines to Buyer with exceptions acceptable appropriate access to such Underwriting Guidelines. If the Buyer does not notify the Sellers of the Buyer’s disapproval within ten (10) Business Days of the Buyer’s receipt of such notice (any such disapproval as determined by Buyer in its sole discretion in respect of Eligible Assets to good faith discretion), the proposed amendments or modifications shall be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurreddeemed approved; and
(19xii) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by the related Seller hereunder shall constitute a certification by such Seller that all the conditions set forth in this Section 3(b) (other than clause (x) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
(xiii) FIC has satisfied all of the following asset or income tests:
(A) At the close of each taxable year, at least 75 percent of FIC’s gross income consists of (i) “rents from real property” within the meaning of Section 856(c)(3)(A) of the Code, (ii) interest on obligations secured by mortgages on real property or on interests in real property, within the meaning of Section 856(c)(3)(B) of the Code, (iii) gain from the sale or other disposition of real property (including interests in real property and interests in mortgages on real property) which is not property described in Section 1221(a)(1) of the Code, within the meaning of Section 856(c)(3)(C) of the Code, (iv) dividends or other distributions on, and gain (other than gain from “prohibited transactions” within the meaning of Section 857(b)(6)(B)(iii) of the Code) from the sale or other disposition of, transferable shares (or transferable certificates of beneficial interest) in other qualifying REITs within the meaning of Section 856(d)(3)(D) of the Code, and (v) amounts described in Sections 856(c)(3)(E) through 856(c)(3)(I) of the Code.
(B) At the close of each taxable year, at least 95 percent of FIC’s gross income consists of (i) the items of income described in paragraph (i) hereof (other than those described in Section 856(c)(3)(I) of the Code), (ii) gain realized from the sale or other disposition of stock or securities which are not property described in Section 1221(a)(1) of the Code, (iii) interest, (iv) dividends, and (v) income derived from payments to FIC on interest rate swap or cap agreements, options, futures contracts, forward rate agreements and other similar financial instruments entered into to reduce the interest rate risks with respect to any indebtedness incurred or to be incurred to acquire or carry real estate assets, or gain from the sale or other disposition of such an investment as described in section 856(c)(5)(G), in each case within the meaning of Section 856(c)(2) of the Code.
(C) At the close of each quarter of FIC’s taxable years, at least 75 percent of the value of FIC’s total assets (as determined in accordance with Treasury Regulations Section 1.856-2(d)) has consisted of and will consist of real estate assets within the meaning of Sections 856(c)(4) and 856(c)(5)(B) of the Code, cash and cash items (including receivables which arise in the ordinary course of FIC’s operations, but not including receivables purchased from another person), and Government securities.
(D) At the close of each quarter of each of FIC’s taxable years, (a) not more than 25 percent of FIC’s total asset value will be represented by securities (other than those described in paragraph (iii), (b) not more than 20 percent of FIC’s total asset value will be represented by securities of one or more taxable REIT subsidiaries, and (c) (i) not more than 5 percent of the value of FIC’s total assets will be represented by securities of any one issuer (other than those described in paragraph (iii) and securities of taxable REIT subsidiaries), and (ii) FIC will not hold securities possessing more than 10 percent of the total voting power or value of the outstanding securities of any one issuer (other than those described in paragraph (iii), securities of taxable REIT subsidiaries, and securities of a qualified REIT subsidiary within the meaning of Section 856(i) of the Code).
Appears in 1 contract
Sources: Master Repurchase Agreement (Fieldstone Investment Corp)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the Purchase Date therefor:
(a) Buyer has received the following further conditions precedentdocuments: (i) a Transaction Request, both (ii) the related MBS Information and (iii) a Confirmation executed by Buyer and Seller;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit, Material Adverse Effect or warranty is expressly stated to have been made as of a specific date, as of such specific date)Market Disruption Event exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject Maximum Amount after giving effect to outstanding Transactionssuch Transaction;
(6d) the Sellers and Custodian have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date; and
(e) The definitive certificate representing ownership of such Purchased Assets that are subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26such Transaction in the name of Buyer or, Buyer shall have completed its due diligence review of the Mortgage File for each if such Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating Assets that are subject to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be Transaction are registered on DTC or similar depository, evidence satisfactory to Buyer that the records of DTC or such depository show Buyer as the beneficial owner of such Purchased Assets that are subject to such Transaction. Each Confirmation delivered by a Seller shall constitute a certification by such Seller that all of the conditions precedent in its sole discretion;
this Article 6 (7excluding, insofar as it relates to Custodian, (d) above) have been satisfied. The failure of any Seller to satisfy any of the conditions precedent in this Article 6 (excluding, insofar as it relates to Custodian, (d) above) with respect to any Eligible Transaction or Purchased Asset to be purchased hereunder shall, unless such failure was waived in writing by Buyer on or before the related Purchase Date which is not serviced by SellerDate, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon such Seller shall have provided immediately pay to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence Repurchase Price of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Resource Capital Corp.)
Conditions Precedent to all Transactions. Buyer’s 's obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s 's right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems exercised in good ▇▇▇▇▇ ▇▇▇▇▇ appropriate to review and such review shall be satisfactory to Buyer in its sole discretiondiscretion exercised in good faith, provided the Buyer hereby acknowledges that Seller is under no obligation to deliver the Mortgage Loan Documents to Buyer or its Custodian with respect to a Wet-Ink Loan until the eighth (8th) Business Day after the related Purchase Date;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by the Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and the Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, received (Ai) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bii) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, and (iii) any Non-Use Fee contemplated by Section 3(n), which amounts, at Buyer’s 's option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “"securities market” " for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely affects the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any third party, including without limitation, any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall each Transaction Request will have occurredan aggregate Purchase Price at least equal to $500,000; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (Oak Street Financial Services Inc)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the Purchase Date therefor:
(a) Buyer and/or Custodian has received the following further conditions precedentdocuments: (i) a Transaction Request, both (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the Asset is not serviced by ▇▇▇▇▇, originals of the related Servicing Agreements, (v) Irrevocable Redirection Notices with respect to Purchased Assets (other than Permitted Assets) duly executed by Seller, (vi) Irrevocable Redirection Notices with respect to Permitted Assets duly executed by Seller and the third-party servicer (or other applicable Person) of such Permitted Asset, (vii) a trust receipt and other items required to be delivered under the Custodial Agreement and (viii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) Servicer has received copies of all documents in the Mortgage Asset File and the Critical to Board Package (as defined in the Servicing Agreement);
(c) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (other than with respect to a Purchased Asset purchased prior to the representations and warranties made by Seller in Section 10related Purchase Date) other than Approved Representation Exceptions, shall be true, correct and complete on and as Default or Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Default exists;
(5d) immediately before such Transaction and after giving effect thereto and to the intended use thereof, no (i) Material Adverse Effect, (ii) Market Disruption Event or (iii) Margin Deficit exists;
(e) delivery by Seller and Guarantor to Buyer of a Compliance Certificate;
(f) no Requirements of Law shall prohibit or render it unlawful, and no order, judgment or decree of any Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into any Transaction, including after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactionsconsummation thereof;
(6g) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Underwriting Package, Mortgage File for each Purchased Asset, Loan Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7h) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(i) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;
(j) the Purchase Date specified in the Confirmation is not later than the Funding Expiration Date;
(k) the Repurchase Date is not later than the Facility Termination Date;
(l) Seller, Guarantor, Servicer (in the event ▇▇▇▇▇ is not the Servicer), Pledgor and Custodian (in the event ▇▇▇▇▇ is not the Custodian) have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date;
(m) to the extent any Purchased Asset was not originated by Seller, all requirements of Section 7.10 have been fulfilled with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicersuch Purchased Asset;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bn) to the extent the related Mortgage Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(o) if requested by Buyer, such opinions from counsel to Seller, Pledgor and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Documents;
(9i) Buyer shall have approvedhas received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to such Asset, in (ii) Seller has collaterally assigned to Buyer all of Seller’s rights (but none of its sole discretionobligations) under such Interest Rate Protection Agreement and related documents, all exceptions to the Underwriting Guidelinesand (iii) no termination event, default or event of default (however defined) exists thereunder;
(10q) before and after giving effect to any proposed Transaction, the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreementis in compliance with the Liquidity Covenant;
(11r) Buyer shall have received from neither Seller, with respect Guarantor nor any Affiliate of Seller or Guarantor has defaulted beyond any applicable grace period in paying any amount or performing any material obligation due to MERS Designated Mortgage LoansBuyer or any Affiliate of Buyer under any repurchase facility (including the facilities evidenced by the NRFC WF CMBS Repurchase Agreement and the NRFC WF Loan Repurchase Agreement) between Seller, a MERS Report reflecting Guarantor or any Affiliate of Seller as Investor or Guarantor, on the one hand, and no Person named in Buyer or any Affiliate of Buyer, on the Interim Funder field for each such MERS Designated Mortgage Loanother;
(12s) none two or more of the following shall have occurred and/or be continuing:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇ ▇▇▇▇▇ (A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” together with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions other successor personnel acceptable to Buyer in its sole discretion and absolute discretion) are serving in respect their respective capacities as an officer or director of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (NRFC or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredManager; and
(19t) Seller has complied with all other requirements set forth in the Repurchase Date Documents for the purchase of such Transaction is not later than the Termination DateAsset. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as or waived by Buyer) other than those set forth in Section 6.01(h) and Sections 6.02(g) and (h). The failure of Seller to satisfy (or obtain a waiver, in writing, from Buyer of) any of the date conditions precedent in any material respect in Section 6.02 (other than those set forth in Sections 6.02(g) and (h)) with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (NorthStar Real Estate Income Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saletherefor:
(1a) Buyer has received the following documents for each prospective Purchased Asset: (i) timely notice of the proposed Transaction delivered in accordance with Section 3.01(a), (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the prospective Purchased Asset is not serviced by Buyer or an Affiliate of Buyer, copies of the related Servicing Agreement, (v) an Irrevocable Redirection Notice that is executed by Seller shall have and delivered a Transaction Request via Electronic Transmission to Custodian on behalf of Buyer, (vi) if the Underlying Obligor is required to remit Income to the Servicer, evidence satisfactory to Buyer that the Underlying Obligor has been so directed to remit Income to Servicer in accordance with the procedures set forth in Section 3(c).
Purchased Asset Documents, (2vii) no Default or Event of Default shall have occurred a trust receipt and other items required to be continuing delivered under the Repurchase DocumentsCustodial Agreement, (viii) with respect to any Wet Mortgage Asset, a Bailee Agreement (as such term is defined in the Custodial Agreement), (ix) the related Servicing Agreement, if a copy was not previously delivered to Buyer, (x) a Servicer Notice, if applicable and not previously delivered to Servicer, (xi) a duly completed Compliance Certificate (or an email stating that information contained in the most recent Compliance Certificate delivered pursuant to Section 8.08 remains true and correct in all respects) and (xii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also immediately after giving effect thereto and to the intended use thereof, no change in any Requirements of Law or market conditions which make it unfavorable for Buyer to enter into the representations proposed Transaction has occurred, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit resulting in a Margin Call, Market Disruption Event or Material Adverse Effect shall have occurred, and warranties made by Seller the Facility Debt Yield Test, each Sub-Limit and the Maximum Purchased Asset PPV Requirement with respect to the prospective Purchased Asset are all in Section 10, shall compliance or will be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) compliance after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price and no default or event of the Transactions outstanding shall not exceed the Asset Value default exists under any other financing, hedging, security or other agreement (other than this Agreement) between any Seller Party and/or any Subsidiary of all the Purchased Assets subject to outstanding TransactionsGuarantor, and Buyer or any Affiliate thereof;
(6c) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) Buyer has (i) determined that such Asset is an Eligible Asset and complies, on the related Purchase Date, with both the Minimum Purchased Asset Debt Yield Requirement and the Maximum Purchased Asset PPV Requirement, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(e) immediately after giving effect to such Transaction, the Aggregate Amount Outstanding does not exceed the Maximum Amount;
(f) the Repurchase Date specified in the Confirmation is not later than the Maturity Date;
(g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the Purchase Date;
(h) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(i) solely with respect to any Eligible Hedge Required Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to (i) Buyer has received a copy of the any Interest Rate Protection Agreement and related Servicing Agreementdocuments entered into with respect to such Asset, certified as a true, correct and complete copy (ii) Seller has pledged to Buyer all of the original, together Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement in accordance with a Servicer Notice, fully executed by Seller and ServicerSection 8.10;
(8) j) Seller has provided Buyer shall have receivedwith copies of any license, solely registration or other similar certification or official document available to Seller from the jurisdiction where the related underlying Mortgaged Property is located, to the extent that Buyer previously shall have delivered necessary for Seller to Seller a written demand thereforenforce its rights and remedies under the related Purchased Asset Documents;
(k) if requested by Buyer, (A) all reasonable out-of-pocket fees and expenses of such opinions from counsel to each Seller Party as Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Document;
(9l) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
Custodian (10or a Bailee) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;the Blank Assignment Documents; and
(11m) Buyer Seller shall have received from Sellerprovided evidence, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable satisfactory to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall reasonable discretion, that the applicable Interim Assignment Documents have received from Seller a Warehouse Lender’s Release Letter substantially been submitted for recordation in the form attached to public recording office of the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Datejurisdiction. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as of the date of such notice or request and as of the date of such purchase)satisfied.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Claros Mortgage Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation 's agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) the applicable Seller shall have delivered a Transaction Request Confirmation via Electronic Transmission and a Transaction Request Package acceptable to Buyer in accordance with the procedures set forth in Section 3(c).3.03, and Buyer shall have determined that the Mortgage Asset described in such Confirmation is an Eligible Asset, shall have approved the purchase of the Mortgage Asset to be included in such Transaction in its sole and absolute discretion and shall have obtained all necessary internal credit approvals for such Transaction;
(2b) no Default or Event of Default shall have occurred and be continuing under this Agreement, the Guarantee Agreement or any other Repurchase DocumentsDocument and no event shall have occurred which has, or would reasonably be expected to have, a Material Adverse Effect;
(3c) Buyer shall have received a certificate of a Responsible Officer of the applicable Seller, substantially in the form of Exhibit K hereto, (i) showing in detail the calculations demonstrating that, after giving effect to the requested Transaction, no Margin Deficit shall then exist, (ii) stating that, to the aggregate outstanding Purchase Price best of such Responsible Officer's knowledge, since the date of the Transactions outstanding shall not exceed certificate most recently delivered pursuant to Section 9.01(b)(ii), the Maximum Amountapplicable Seller has observed or performed all of its covenants and other agreements in all material respects, and satisfied in all material respects, every condition, contained in this Agreement and the related documents to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, (iii) describing all interests of Seller's Affiliates in any Underlying Mortgaged Property related to any proposed Mortgage Asset (including without limitation, any lien, encumbrance or other debt or equity position or other interest in the Underlying Mortgaged Property that is senior or junior to the proposed Mortgage Asset in right of payment or priority) and (iv) showing in detail the calculations supporting such Responsible Officer's certification of the applicable Seller's compliance with the requirements of Sections 9.01(f) and 9.01(l)-(n);
(4d) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the applicable Seller in Section 108.01 and in Schedules 1(a)-1(h), as applicable, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6e) subject to Buyer’s 's right to perform one or more Due Diligence Reviews pursuant to Section 2612.11, (i) in the case of a Dry Mortgage Asset, Buyer shall have completed its due diligence review of the Mortgage Asset File and the Mortgage Asset File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretiondiscretion and Buyer has consented in writing to the related Mortgage Asset becoming a Purchased Asset, and (ii) in the case of a Wet Mortgage Asset, Seller has delivered a Wet Transaction Request and pledge to deliver a complete Mortgage Asset File with respect to any Wet Mortgage Assets identified on such Wet Transaction Request within five (5) Business Days of the related Purchase Date; provided, that, with respect to any Dry Mortgage Assets, if Buyer's diligence review of the Mortgage Asset File requires the delivery of a mortgage file or the equivalent, Seller shall have the benefit of such delayed delivery provisions as are customary in pooling and servicing agreements (e.g., while a promissory note (or analogous document directly evidencing the obligation) must be delivered as a condition of closing, an ancillary document or estoppel may be delivered within a reasonable timeframe thereafter);
(7f) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Sellerthe applicable Seller or an Affiliate thereof, the applicable Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and the Servicer;
(8) g) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated required hereunder and/or by the Fee Letter and Section 14(b)12.01 and, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket Buyer shall have received the costs and expenses incurred by Buyer it in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence diligence, recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s 's option, may be withheld from the sale proceeds of any Transaction hereunder;
(9h) Buyer no Margin Deficit shall have approvedexist, in its sole discretion, all exceptions either immediately prior to or after giving effect to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loansrequested Transaction, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(Ai) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “"repo market” " or comparable “related "lending market” " for purchasing (subject to repurchase) or financing debt obligations secured by commercial mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Mortgage Assets through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(Bii) an event or events shall have occurred resulting in the effective absence of a “"securities market” " for securities backed by mortgage loans Mortgage Assets or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans Mortgage Assets at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13i) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from the Custodian on each Purchase Date an Asset Schedule and Exception ReportReport with respect to each Purchased Asset, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14j) Buyer shall have received from the applicable Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15k) prior to the purchase of any Mortgage Loan Asset acquired (by purchase or otherwise) by the applicable Seller from any Affiliate of Seller, Buyer shall have received a Non-Consolidation Opinion and a True Sale CertificationOpinion;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17l) Buyer shall not have reasonably determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18m) the Effective Date initial Purchase Price specified in a Confirmation for a Mortgage Asset shall have occurrednot be less than $3,000,000 and increments of $100,000 thereafter; andprovided, that two (2) Confirmations per calendar month may specify an initial Purchase Price in an amount greater than $1,000,000 and less than $3,000,000.
(19n) the Repurchase Date for such Transaction is not later than the Facility Termination Date;
(o) the applicable Seller shall have taken such other action as Buyer shall have reasonably requested in order to transfer the Purchased Assets pursuant to this Agreement and to perfect all security interests granted under this Agreement or any other Repurchase Document in favor of Buyer with respect to the Purchased Assets;
(p) the weighted average Purchase Rate of all Mortgage Assets shall not exceed 85.0%;
(q) the weighted average LTV of all Mortgage Assets multiplied by the weighted average Purchase Rate of all Mortgage Assets shall not exceed 80.0%;
(r) with respect to any Wet Mortgage Assets, Buyer shall have received a Wet Transaction Request Package, an Escrow Agreement in the form attached hereto as Exhibit M and a Closing Letter in the form attached hereto as Exhibit N;
(s) Seller shall have delivered to Buyer a Compliance Certificate in the form attached hereto as Exhibit J; and
(t) Buyer shall have received all such other and further documents, documentation and legal opinions (including, without limitation, opinions regarding the perfection of Buyer's security interests) as Buyer in its reasonable discretion shall reasonably require. Each Transaction Request Confirmation delivered by any Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) 3.02 with respect to Seller have been satisfied satisfied, waived or is not applicable (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Acquisition Repurchase Agreement (Gramercy Capital Corp)
Conditions Precedent to all Transactions. BuyerThe Purchaser’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) no Applicable Law shall prohibit or render it unlawful, and no order, judgment or decree of Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into such Transaction by the Purchaser in accordance with the provisions of this Agreement or any other transaction contemplated herein;
(b) the Seller, the Guarantor, each Servicer and each PSA Servicer shall have delivered to the Purchaser all reports and other information required to be delivered as of the date of such Transaction;
(c) the Purchaser shall have received a written Transaction Request, the related Underwriting Package and the related Seller Asset Schedule;
(d) the Seller shall have delivered a Transaction Request Confirmation, via Electronic Transmission Transmission, in accordance with the procedures set forth in Section 3(c).2.2 of this Agreement, the Mortgage Asset shall be an Eligible Asset (unless waived by the Purchaser in its discretion) and the Purchaser shall have approved in writing the purchase of the Eligible Asset to be included in such Transaction in its discretion and shall have obtained all necessary internal credit and other approvals for such Transaction;
(2e) no Default or Event of Default shall have occurred and be continuing under continuing, no Margin Deficits are outstanding (unless the Repurchase DocumentsTransaction shall eliminate the Margin Deficit), and no Material Adverse Effect has occurred;
(3f) the Purchaser shall have received a Compliance Certificate in the form of Exhibit VIII attached hereto (“Compliance Certificate”) from a Responsible Officer of the Seller and the Guarantor that, among other things: (A) shows in detail the calculations demonstrating that, after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount, (B) the Seller, the Guarantor and the Pledgor have in all material respects observed or performed all of their covenants and other agreements, and satisfied in all material respects every condition, contained in this Agreement, the Repurchase Documents and the related documents to be observed, performed or satisfied by them, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, (C) states that all representations and warranties contained in the Repurchase Documents are true and correct in all material respects on and as of such day as though made on and as of such day and shall be deemed to be made on such day, (D) shows that the Seller and NorthStar are in compliance with the Financial Covenants and, on a quarterly basis as provided in Subsection 5.1(q)(i)(B) of this Agreement, showing in detail the calculations supporting the certification of the Seller’s and NorthStar’s compliance with the Financial Covenants, (E) and discloses the status of each Interest Rate Protection Agreement described under clause (ii) of the definition thereof;
(4g) subject to the Purchaser’s right to perform one or more due diligence reviews pursuant to Section 13.20 of this Agreement, the Purchaser shall have completed, in accordance with Section 2.2 of this Agreement, its due diligence review of the Mortgage Asset, the Mortgage Asset File and the Underwriting Package for each proposed Mortgage Asset and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Mortgage Asset as the Purchaser in its discretion deems appropriate to review, and such reviews shall be satisfactory to the Purchaser in its discretion;
(h) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date that is not serviced by the Seller, the Seller shall have provided to the Purchaser copies of the related Servicing Agreements and the Pooling and Servicing Agreements, certified as true, correct and complete copies of the originals, together with Servicer Redirection Notices fully executed by the Seller and the Servicer;
(i) the Purchaser shall have received all reasonable fees and expenses of the Purchaser and counsel to the Purchaser as contemplated by Section 2.12 and Section 13.8 of this Agreement and the Fee Letter and the Purchaser shall have received the reasonable costs and expenses incurred by them in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at the Purchaser’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(j) for each Non-Table Funded Purchased Asset, the Purchaser shall have received from the Custodian on each Purchase Date a Trust Receipt (along with a completed Mortgage Asset File Checklist attached thereto) and an Asset Schedule and Exception Report with respect to each Eligible Asset, each dated the Purchase Date, duly completed and, in the case of the Asset Schedule and Exception Report, with exceptions acceptable to the Purchaser in its discretion in respect of Eligible Assets to be purchased hereunder on such Business Day. In the case of a Table Funded Purchased Asset, the Purchaser shall have received on the related Purchase Date the Table Funded Trust Receipt and all other items described in the second (2nd) sentence of Subsection 2.2(e), each in form and substance satisfactory to the Purchaser in its discretion, provided that the Purchaser subsequently receives the items described in Subsection 2.2(d) and (e) and the other delivery requirements under the Custodial Agreement on or before the date and time specified herein and therein, which items shall be in form and substance satisfactory to the Purchaser in its discretion;
(k) the Purchaser shall have received from the Seller a Warehouse Lender’s Release Letter, if applicable, or a Seller’s Release Letter covering each Eligible Asset to be sold to the Purchaser;
(l) prior to the purchase of any Eligible Asset acquired (by purchase or otherwise) by the Seller from any Affiliate of Seller, the Purchaser shall have received certified copies of the applicable Purchase Agreements (if any) and, if requested by the Purchaser in its reasonable discretion, a True Sale Opinion;
(m) on and as of such day, the Seller, the Guarantor, the Pledgor and the Custodian shall have performed all of the covenants and agreements contained in the Repurchase Documents to be performed by such Person at or prior to such day;
(n) the Repurchase Date for such Transaction is not later than the earlier of (i) Facility Maturity Date and (ii) 364 calendar days from the Purchase Date (subject to the Refinance Option);
(o) the Purchaser shall have received evidence satisfactory to the Purchaser that the Seller has delivered an irrevocable instruction to each Servicer, PSA Servicer or other applicable Person to pay Income with respect to the Purchased Items directly to the Collection Account, as provided herein, which instructions may not be modified without the prior written consent of the Purchaser, and the Seller shall have delivered all notices and instructions and obtained all certifications, acknowledgments, agreements and registrations required to perfect any CMBS Security;
(p) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the all representations and warranties made by Seller in Section 10each of the Seller, the Guarantor and the Pledgor shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5q) the Purchaser shall be in receipt of the evidence of insurance (if any) required by Section 9.1 of the Custodial Agreement;
(r) none of the following shall have occurred and/or be continuing:
(i) an event or events shall have occurred in the good faith determination of the Purchaser resulting in the effective absence of a “repo market” or related “lending market” for purchasing (subject to repurchase) or financing debt obligations secured by commercial mortgage loans or securities, or an event or events shall have occurred resulting in the Purchaser not being able to finance Mortgage Assets through the “repo market” or “lending market” with traditional counterparties at rates that would have been reasonable prior to the occurrence of such event or events;
(ii) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by Mortgage Assets or commercial or multifamily real property, or an event or events shall have occurred resulting in the Purchaser not being able to sell securities backed by Mortgage Assets or commercial or multifamily real property at prices that would have been reasonable prior to such event or events; or
(iii) there shall have occurred a material adverse change in the financial condition of the Purchaser that affects (or can reasonably be expected to affect) materially and adversely the ability of the Purchaser to fund its obligations under this Agreement;
(s) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsTransactions or the Maximum Amount;
(6t) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer the Purchaser shall have completed received all such other and further documents, reports, certifications, approvals and legal opinions as the Purchaser in its due diligence review of the Mortgage File discretion shall reasonably require; and
(u) for each Purchased AssetPreferred Equity Interest, the applicable Seller has executed and delivered all instruments and documents and has taken all further action reasonably necessary and desirable or that the Purchaser has reasonably requested in order to (i) perfect and protect the Purchaser’s security interest in such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
Preferred Equity Interest (7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review execution and due diligence recording delivery of one or other administrative expenses necessary or incidental more control agreements reasonably acceptable to the execution Purchaser, and any and all other actions reasonably necessary to satisfy the Purchaser that the Purchaser has obtained a first priority perfected security interest in such Preferred Equity Interest); (ii) enable the Purchaser to exercise and enforce its rights and remedies hereunder in respect of any Transaction hereundersuch Preferred Equity Interest; and (iii) otherwise effect the purposes of this Agreement, which amountsincluding, at Buyer’s optionwithout limitation and if requested by the Purchaser, may be withheld from having delivered to the sale proceeds Purchaser irrevocable proxies in respect of any Transaction hereunder;such Preferred Equity Interest.
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10v) to the extent there are any MERS Designated the Mortgage LoansLoan Documents for the related Eligible Asset contain notice, Buyer shall have received from Seller a copy cure and other provisions in favor of a fully executed Electronic Tracking Agreement;
(11) Buyer pledgee of the Eligible Asset under a repurchase or warehouse facility, and without prejudice to the sale treatment of the Eligible Asset to the Purchaser, the Seller shall have received from Seller, with respect provide evidence to MERS Designated Mortgage Loans, the Purchaser that the Seller has given notice to the applicable Persons of the Purchaser’s interest in such Eligible Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that the Purchaser is entitled to receive the benefits and exercise the rights of a MERS Report reflecting Seller as Investor and no Person named pledgee under the terms of such pledgee provisions contained in the Interim Funder field for each such MERS Designated related Mortgage Loan;
(12) none Loan Documents; The failure of the following shall have occurred and/or be continuing:
(A) an event Seller or events shall have occurred the Guarantor, as applicable, to satisfy any of the foregoing conditions precedent in respect of any Transaction shall, unless such failure was expressly waived in writing by the good faith determination of Buyer resulting in the effective absence of a “repo market” Purchaser on or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the related Purchase Date, duly completed give rise to a right of the Purchaser, which right may be exercised at any time on the demand of the Purchaser, to rescind the related Transaction and with exceptions acceptable direct the Seller to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached pay to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in Purchaser for the form attached benefit of the Purchaser an amount equal to the Custodial Purchase Price, the Price Differential, Breakage Costs and Disbursement Agreement (or other amounts due in connection therewith during any such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of time that any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)foregoing conditions precedent were not satisfied.
Appears in 1 contract
Conditions Precedent to all Transactions. BuyerThe Purchaser’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) no Applicable Law shall prohibit or render it unlawful, and no order, judgment or decree of any Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into such Transaction by the Purchaser in accordance with the provisions hereof or any other transaction contemplated herein;
(b) the Seller shall have delivered a Transaction Request via Electronic Transmission in accordance an executed Confirmation and other documents with the procedures set forth in Section 3(c).2.2, the Mortgage Asset described in such Confirmation must be an Eligible Asset, the requirements of Section 2.2 are satisfied and the Purchaser shall have approved in purchase of the Eligible Asset to be included in such Transaction in its discretion, shall have obtained all necessary internal credit and other approvals for such Transaction and shall have executed the Confirmation;
(2c) no Default or Event of Default shall have occurred and be continuing under continuing;
(d) no Margin Deficits are outstanding;
(e) the Purchaser shall have received a duly executed Compliance Certificate from a Responsible Officer of the Seller and the Guarantors;
(f) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date that is not serviced by the Seller, the Seller shall have provided to the Purchaser copies of the related Servicing Agreements and the Pooling and Servicing Agreements, certified as true, correct and complete copies of the originals;
(g) the Purchaser shall be in receipt of an executed Servicer Redirection Notice for each Purchased Asset instructing each Servicer, PSA Servicer or other applicable Person to pay Income with respect to the Purchased Items directly to the Collection Account as provided herein, which instructions may not be modified or revoked without the prior written consent of the Purchaser;
(h) the Purchaser shall have received payment from the Seller of all fees and expenses of the Purchaser as contemplated by the Repurchase Documents, including, with limitation, the fees and expenses of counsel to the Purchaser and the reasonable costs and expenses incurred by the Purchaser in connection with the entering into any Transaction hereunder;
(3i) after giving effect none of the following shall have occurred and/or be continuing: (i) an event or events shall have occurred in the good faith determination of the Purchaser resulting in the effective absence of a “repo market” or related “lending market” for purchasing (subject to repurchase) or financing debt obligations secured directly or indirectly by commercial mortgage loans or securities, or an event or events shall have occurred resulting in the Purchaser not being able to finance Mortgage Assets through the “repo market” or “lending market” with traditional counterparties at rates that would have been reasonable prior to the requested Transactionoccurrence of such event or events; (ii) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by Mortgage Assets, or an event or events shall have occurred resulting in the Purchaser not being able to sell securities backed by Mortgage Assets at prices that would have been reasonable prior to such event or events; or (iii) there shall have occurred a Material Adverse Effect or a material adverse change in the financial condition of the Purchaser that affects (or can reasonably be expected to affect) materially and adversely the ability of the Purchaser to fund its obligations under this Agreement.
(j) for each Non–Table Funded Purchased Asset, the aggregate outstanding Purchaser shall have received from the Custodian on each Purchase Price Date a Trust Receipt (along with a completed Mortgage Asset File Checklist attached thereto) and an Asset Schedule and Exception Report with respect to each Eligible Asset, each dated the Purchase Date, duly completed and, in the case of the Transactions outstanding Asset Schedule and Exception Report, with exceptions acceptable to the Purchaser in its discretion in respect of Eligible Assets to be purchased hereunder on such Business Day; in the case of a Table Funded Purchased Asset, the Purchaser shall not exceed have received on the Maximum Amountrelated Purchase Date the Table Funded Trust Receipt and all other items described in the second (2nd) sentence of Subsection 2.2(g), each in form and substance satisfactory to the Purchaser in its discretion, provided that the Purchaser subsequently receives the items described in Subsection 2.2(d) and (g) and the other delivery requirements under the Custodial Agreement on or before the date and time specified herein and therein, which items shall be in form and substance satisfactory to the Purchaser in its discretion;
(4k) the Purchaser shall have received from the Seller a Warehouse Lender’s Release Letter or a Seller’s Release Letter covering each Eligible Asset to be sold to the Purchaser;
(l) on and as of such day, the Seller, the Guarantors, the Pledgor and the Custodian shall have performed all of the covenants, duties and agreements contained in the Repurchase Documents to be performed by such Person and satisfied all other conditions to be satisfied by such Person at or prior to such day;
(m) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties and certifications made by Seller the Seller, the Guarantors and the Pledgor under the Repurchase Documents, including, without limitation, in Section 104.1 and Schedule 1, and the representations and warranties in the Mortgage Loan Documents and in any statement or information delivered to the Purchaser, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5n) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price Purchaser shall be in receipt of the Transactions outstanding shall not exceed evidence of insurance (if any) required by Section 9.1 of the Asset Value of all the Purchased Assets subject to outstanding TransactionsCustodial Agreement;
(6o) subject any and all consents, approvals and waivers applicable to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer the Purchased Items shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionbeen obtained;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bp) to the extent a Mortgage Asset is acquired by the Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with from the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording Guarantor or other administrative expenses necessary or incidental to Repurchase Party, the execution Seller shall inform the Purchaser of any Transaction hereunderthat transfer and, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loansrequested by the Purchaser in its discretion, Buyer the Seller shall have received from Seller deliver to the Purchaser a copy true sale Opinion of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, Counsel acceptable to the Purchaser with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredtransfer; and
(19q) the Repurchase Date for Purchaser shall have received all such Transaction is not later than other and further documents, reports, certifications, notices, information, consents, approvals and legal opinions as the Termination DatePurchaser in its discretion shall reasonably require. Each Transaction Request Confirmation delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in Section 3.1 and this Section 3(b) 3.2 have been satisfied (both as of the date of such notice or request and as of the date of such purchase). The failure of the Seller, the Guarantors or the Pledgor, as applicable, to satisfy any of the foregoing conditions precedent (or those set forth in Section 3.1) in respect of, affecting or relating to any Transaction shall, unless such failure was expressly waived in writing by the Purchaser on or prior to the related Purchase Date, give rise to a right of the Purchaser, which right may be exercised at any time on the demand of the Purchaser, to rescind the related Transaction and direct the Seller to pay to the Purchaser for the benefit of the Purchaser an amount equal to the Purchase Price, the Price Differential, the related Breakage Costs, the related Aggregate Unpaids and other amounts due in connection therewith during any such time that any of the foregoing conditions precedent were not satisfied.
Appears in 1 contract
Sources: Mortgage Asset Purchase Agreement (Municipal Mortgage & Equity LLC)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied in the discretion of Buyer, or waived by Buyer in its discretion, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the Purchase Date therefor:
(a) Buyer has received the following further conditions precedentdocuments: (i) a Transaction Request, both (ii) an MBS File, (iii) a Confirmation executed by Buyer and Seller, (iv) Irrevocable Redirection Notices, if any, (v) any Trade Tickets related to such Asset and (vi) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require in its discretion;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit, Material Adverse Effect or warranty is expressly stated to have been made as of a specific date, as of such specific date)Market Disruption Event exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Purchased AssetMBS File, Records (if any) and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretion;
(7d) with respect to any Buyer has in its discretion (i) determined that such Asset is an Eligible Asset to be purchased hereunder on Asset, (ii) approved the related Purchase Date which is not serviced by Sellerpurchase of such Asset, Seller shall have provided to Buyer a copy of (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerConfirmation;
(8) Buyer shall have received, solely e) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunderTransaction;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19f) the Repurchase Date for such Transaction is not later than the Termination Maturity Date;
(g) Seller and Custodian have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date;
(h) The definitive certificate representing ownership of such Purchased Assets that are subject to such Transaction in the name of Buyer or, if such Purchased Assets that are subject to such Transaction are registered on DTC or similar depository, evidence satisfactory to Buyer that the records of DTC or such depository show Buyer as the beneficial owner of such Purchased Assets that are subject to such Transaction; and
(i) Satisfaction of any conditions precedent to the initial Transaction as set forth in Section 6.01 (other than Section 6.01(d)) that were not satisfied prior to the initial Purchase Date. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(bArticle 6 (excluding clauses (c), (d) and, insofar as it relates to Custodian, (g) above) have been satisfied (both as satisfied. The failure of Seller to satisfy any of the date conditions precedent in this Article 6 (excluding clauses (c), (d) and, insofar as it relates to Custodian, (g) above) with respect to any Transaction or Purchased Asset shall, unless such failure was waived in writing by Buyer in its discretion on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall immediately repay to Buyer the Repurchase Price of such notice or request and as of Purchased Asset to the date of extent Buyer has advanced funds for such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase Agreement (Two Harbors Investment Corp.)
Conditions Precedent to all Transactions. Except as provided below, Buyer’s obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller shall have delivered to Buyer and Custodian a Transaction Request for Purchase at least one Business Day prior to the proposed Purchase Date specified in such Request for Purchase, except in the case of Wet Ink Mortgage Loans in which case notice may be given the same day (including in the Mortgage Loan Schedule attached thereto the Collateral Information, which may be transmitted by direct electronic transmission or via Electronic Transmission a computer diskette, in accordance with the procedures set forth either case in Section 3(cExcel format).;
(2ii) other than with respect to Wet Ink Mortgage Loans, Buyer shall have received from Custodian a Trust Receipt with exceptions as are acceptable to Buyer in its discretion in respect of Mortgage Loans to be sold hereunder on the applicable Purchase Date and a Mortgage Loan Schedule, in each case dated such Purchase Date and duly completed;
(iii) with respect to each Purchased Mortgage Loan included in such Transaction pursuant to which any Person has a security interest, pledge, hypothecation or Lien for the benefit of such Person prior to such loan being subject to such Transaction, Seller shall have delivered to Buyer either (x) a security release certification executed by an authorized officer of the Person that had a security interest, pledge, hypothecation or Lien for the benefit of such person in a form approved by Buyer or (y) a bailee letter in a form reasonably acceptable to Buyer and executed by an authorized officer of the Person that had a security interest, pledge, hypothecation or Lien for the benefit of such Person, which letter states the payoff amount for such Purchased Mortgage Loan;
(iv) Buyer shall have completed its due diligence to its reasonable satisfaction with respect to each Mortgage Loan to be purchased on such Purchase Date;
(v) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documentscontinuing;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9vi) Buyer shall have approved, in its sole discretion, all exceptions to the approved Seller’s Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior Guidelines applicable to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredTransaction; and
(19vii) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)no Collateral Deficit exists.
Appears in 1 contract
Sources: Master Repurchase Agreement (Aames Investment Corp)
Conditions Precedent to all Transactions. BuyerAdministrative Agent’s obligation to enter into each Transaction Transaction, for the benefit of Buyers, (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3ii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by each Seller in Section 1011 hereof, shall be true, correct and complete in all material respects on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iii) after The amount requested in the Transaction Request does not exceed the Available Purchase Price;
(iv) After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all Purchased Mortgage Loans that have not been repurchased is not less than the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6v) subject Subject to the Administrative Agent’s and each Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 2629 hereof, the Administrative Agent and each Buyer shall have completed its due diligence review of the Mortgage File Loans for each Purchased AssetMortgage Loan, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset Mortgage Loan as the Administrative Agent and each Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to the Administrative Agent and each Buyer in its sole discretion;
(7vi) with respect On or prior to any Eligible Asset to be purchased hereunder 10:00 a.m. (Central Time) on the related Purchase Date which is not serviced by SellerDate, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously Sellers shall have delivered to Seller the Administrative Agent (a) a written demand thereforTransaction Request, (b) Mortgage Loan Schedule and (c) a Purchased Mortgage Loan Report. With respect to Wet-Ink Mortgage Loans delivered electronically, the Sellers shall deliver a Mortgage Loan Schedule by 11:00 a.m. (Central time);
(vii) The Sellers shall have delivered to the Custodian (A) the Mortgage File with respect to each Purchased Mortgage Loan (other than a Wet-Ink Mortgage Loan) and (B) the Confirmation Agreement;
(viii) With respect to each Wet-Ink Mortgage Loan, on the seventh (7th) Business Day following the applicable Purchase Date and in accordance with the terms of the Custodial Agreement, the Sellers shall deliver to the Custodian the Mortgage File;
(ix) The Administrative Agent shall have received all reasonable out-of-pocket fees and expenses of counsel to Buyer the Administrative Agent as contemplated by Section 14(bSections 15(b), 29 and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 40 which amountsamount, at Buyerthe Administrative Agent’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9x) Buyer To the extent Sellers are selling Mortgage Loans which are registered on the MERS® System, the Sellers shall have approveddelivered an Electronic Tracking Agreement entered into, duly executed and delivered by the parties thereto (including, the Administrative Agent) and being in its sole discretionfull force and effect, all exceptions to the Underwriting Guidelinesfree of any modification, breach or waiver;
(10xi) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller Sellers hereunder shall constitute a certification by Seller Sellers that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase);
(xii) Upon request, the Administrative Agent shall have received from outside counsel to the Sellers an updated favorable opinion or opinions, in form and substance satisfactory to the Administrative Agent, covering and updating such matters that were originally addressed in the initial opinion issued and which the Administrative Agent in good ▇▇▇▇▇ ▇▇▇▇▇ appropriate to update;
(xiii) the Administrative Agent shall have accepted any material changes to the Underwriting Guidelines which affect the eligibility of a Mortgage Loan or a Purchased Mortgage Loan hereunder; and
(xiv) The Sellers shall have selected the LIBOR Period for any portion of the Transactions that, in the absence of such a selection or in the case of Swing Line Transactions (as defined in the Administration Agreement) would bear interest at the Daily Reset LIBOR Rate, as follows; provided that the Sellers may not have more than eight (8) LIBOR Periods with respect to outstanding Transactions at any given time:
(A) In order to select the LIBOR Period, the Sellers shall give Administrative Agent telephonic notice not later than 10:00 AM on the effective date for which such LIBOR Period is being selected, specifying:
(1) the Business Day when the selection is to become effective; and
(2) the Purchase Price of the Transactions for which the selection is being made;
(B) Sellers shall confirm the telephonic notice in writing by not later than the close of business on the same day, by forwarding to Administrative Agent a completed and signed LIBOR Period Selection Confirmation in the form of Exhibit P. Confirmation shall be made by telecopy and an original signed by an Authorized Representative shall be mailed the same day.
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation 's agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) the applicable Seller shall have delivered a Transaction Request Confirmation via Electronic Transmission in accordance with the procedures set forth in Section 3(c).3.03, and Buyer shall have determined that the Mortgage Asset described in such Confirmation is an Eligible Asset, shall have approved the purchase of the Mortgage Asset to be included in such Transaction in its sole and absolute discretion and shall have obtained all necessary internal credit approvals for such Transaction;
(2b) no Default or Event of Default shall have occurred and be continuing under the Repurchase DocumentsDocuments and no Material Adverse Effect then exists;
(3c) Buyer shall have received a certificate of a Responsible Officer of the applicable Seller, substantially in the form of Exhibit J hereto, (i) showing in detail the calculations demonstrating that, after giving effect to the requested Transaction, no Margin Deficit shall then exist and the aggregate outstanding Purchase Repurchase Price of the Transactions outstanding shall not exceed the Maximum AmountAmount and that the Sub-Limits will not be breached, (ii) stating that, to the best of such Responsible Officer's knowledge, since the date of the certificate most recently delivered pursuant to Section 9.01(b)(ii), the applicable Seller has observed or performed all of its covenants and other agreements in all material respects, and satisfied in all material respects, every condition, contained in this Agreement and the related documents to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, and (iii) describing all interests of such Seller's Affiliates in any Underlying Mortgaged Property related to any proposed Mortgage Asset (including without limitation, any lien, encumbrance or other debt or equity position or other interest in the Underlying Mortgaged Property that is senior or junior to, or pari passu with, the proposed Mortgage Asset in right of payment or priority);
(4d) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the applicable Seller in Section 108.01 and in Schedules 1(a)-1(d), as applicable, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (Capital Lease Funding Inc)
Conditions Precedent to all Transactions. Upon satisfaction of the conditions set forth in this Section 3(b), the Buyer shall enter into a Transaction with the applicable Seller. This Repurchase Agreement is a commitment by Buyer to engage in the Transactions as set forth herein up to the Maximum Committed Purchase Price; provided, that the Buyer shall have no commitment to enter into any Transaction requested which would result in the aggregate Purchase Price of then outstanding Transactions to exceed the Maximum Committed Purchase Price. Buyer’s 's obligation to enter into each Transaction, provided that the Purchase Price of the requested Transaction combined with the aggregate amount of the respective Purchase Prices for all then outstanding Transactions does not exceed the Maximum Committed Purchase Price (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2ii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the each Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iv) after After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the for all Purchased Mortgage Loans subject to then outstanding Transactions outstanding under this Repurchase Agreement shall not exceed the Maximum Purchase Price or the Available Amount. Notwithstanding the preceding sentence, Buyer shall have no obligation to enter into any Transaction, if, as a result of such Transaction the aggregate Purchase Price for all Purchased Mortgage Loans subject to then outstanding Transactions under this Agreement exceed the Maximum Committed Purchase Price;
(v) After giving effect to the requested Transaction, the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6vi) On or prior to 5:30 p.m. (New York Time) one (1) day prior to the related Purchase Date, each applicable Seller shall have delivered to the Buyer (a) a Transaction Request, and (b) a Purchased Mortgage Loan Report;
(vii) With respect to Transactions the subject of which are Wet-Ink Mortgage Loans:
(A) At least one Business Day prior to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26the related Purchase Date, the Buyer shall have completed its due diligence review received a Transaction Request;
(B) By 12:00 noon (New York time) on the related Purchase Date, the Custodian shall have received from the Buyer a schedule setting forth the mortgage loan identification number, the Mortgagor name and the outstanding principal balance of Wet-Ink Mortgage Loans to be purchased by Buyer on such Purchase Date; and
(C) The Custodian and the Buyer shall have received a Wiring Schedule setting forth the disbursement amount and wiring instructions for each Wet-Ink Mortgage Loan.
(viii) The Sellers shall have delivered to the Custodian the Mortgage File for with respect to each Purchased Asset, Mortgage Loan which is not a Wet-Ink Mortgage Loan and such other documents, records, agreements, instruments, mortgaged properties or information relating the Custodian shall have issued a Trust Receipt with respect to each such Purchased Asset as Mortgage Loan to the Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7B) with respect to any Eligible Asset to be purchased hereunder each Wet-Ink Mortgage Loan, by no later than 5:00 p.m. (New York Time) on the related seventh Business Day following the applicable Purchase Date which is not serviced by SellerDate, Seller the Sellers shall have provided deliver the Mortgage File to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerCustodian;
(8) ix) The Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 27 which amounts, at the Buyer’s 's option, may be withheld from the sale proceeds of remitted by Buyer to the Sellers pursuant to any Transaction hereunder;
(9x) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none None of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of the Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of the Buyer to fund its obligations under this Repurchase Agreement;; or
(13xi) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by a Seller hereunder shall constitute a certification by such Seller that all the conditions set forth in this Section 3(b) (other than clause (x) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (MortgageIT Holdings, Inc.)
Conditions Precedent to all Transactions. In the event Buyer chooses, in its sole discretion, to enter into a transaction pursuant to Section 3(c) below, Buyer’s obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission Transmission, a Seller Asset Schedule and an Underwriting Package in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 2627, Buyer shall have completed its due diligence review of the Mortgage File Underwriting Package for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, received (Ai) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), 15(b) and (Bii) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence diligence, recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelinessuch Eligible Asset;
(10) With respect to the extent there are any MERS Designated Table-Funded Mortgage LoansAsset, Buyer shall have received from Seller a copy of a fully duly executed Electronic Tracking Escrow Agreement;
(11) Buyer With respect to each Eligible Asset which is a Table-Funded Mortgage Asset, the related Mortgage Asset File has been delivered to the Bailee in accordance with the terms of the related Bailee Agreement, and on or prior to the Purchase Date the Bailee shall have received from Sellerdelivered to the Custodian (with a copy to the Buyer) the Purchase Date File and Bailee Trust Receipt and Certification in accordance with the terms of the related Bailee Agreement, with respect to MERS Designated Mortgage Loansthe insured closing letter (if any), the escrow instructions (if any), a MERS Report reflecting Seller as Investor fully executed Bailee Agreement and no Person named such other evidence satisfactory to the Buyer in its discretion that all documents necessary to effect a transfer of the Interim Funder field for each such MERS Designated Mortgage LoanPurchased Assets to the Buyer have been delivered to Bailee;
(12) none of the following shall have occurred and/or be continuing:
(A) in the good faith determination of Buyer an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans substantially similar to the Mortgage Loans, mezzanine loans substantially similar to the Mezzanine Loans or securities or an event or events shall have occurred in the good faith determination of Buyer resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) in the good faith determination of Buyer, an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans substantially similar to the Mortgage Loans or mezzanine loans substantially similar to the Mezzanine Loans or an event or events shall have occurred occurred, in the good faith determination of Buyer, resulting in Buyer not being able to sell securities backed by mortgage loans or mezzanine loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with With respect to each Eligible Asset that is not a WetTable-Ink Funded Mortgage LoanAsset, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day. With respect to each Table-Funded Mortgage Asset, the Buyer shall have received from the Custodian a Table-Funded Trust Receipt no later than 1:00 p.m. on the Purchase Date, which documents shall be acceptable to the Buyer in its sole discretion;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan Eligible Asset acquired (by purchase or otherwise) by Seller from any third party other than RAIT Partnership, L.P. (“RAIT LP”), including without limitation, any Affiliate of Seller, Buyer shall have received a True Sale CertificationOpinion;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer the Seller shall have received an insured closing letter from assigned to the Buyer, all of the Seller’s rights under each Settlement Agent that is not Interest Rate Protection Agreement in respect of a title insurance companyPurchased Asset and no “termination event”, “event of default” or “potential event of default” (however denominated) shall have occurred and be continuing under any such Interest Rate Protection Agreement;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredEach Eligible Asset that is a Mortgage Loan has a Purchase Price in excess of $1,000,000; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (Rait Investment Trust)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Asset on and as of the Purchase Date therefor:
(a) Buyer and/or Custodian has received the following documents: (i) a Transaction Request, (including ii) an Underwriting Package, (iii) a Confirmation, (iv) if the initial TransactionAsset is not serviced by ▇▇▇▇▇, originals of the related Servicing Agreements, (v) is subject Irrevocable Redirection Notices duly executed by Seller, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, (vii) the Controlled Account Agreement with respect to the satisfaction Liquidity Reserve Account, duly executed and delivered by all parties thereto, and (viii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) Servicer has received copies of all documents in the following further conditions precedent, both Mortgage Asset File and the Critical to Board Package (as defined in the Servicing Agreement);
(c) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (other than with respect to a Purchased Asset purchased prior to the representations and warranties made by Seller in Section 10related Purchase Date) other than Approved Representation Exceptions, shall be true, correct and complete on and as Default or Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Default exists;
(5d) immediately before such Transaction and after giving effect thereto and to the intended use thereof, no (i) Material Adverse Effect, (ii) Market Disruption Event or (iii) Margin Deficit exists;
(e) delivery by Guarantor to Buyer of a Compliance Certificate;
(f) no Requirements of Law shall prohibit or render it unlawful, and no order, judgment or decree of any Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into any Transaction, including after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactionsconsummation thereof;
(6g) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Underwriting Package, Mortgage File for each Purchased Asset, Loan Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7h) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(i) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;
(j) the Purchase Date specified in the Confirmation is not later than the Funding Expiration Date;
(k) the Repurchase Date is not later than the Facility Termination Date;
(l) Seller, Guarantor, Servicer (in the event ▇▇▇▇▇ is not the Servicer), Pledgor and Custodian (in the event ▇▇▇▇▇ is not the Custodian) have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date;
(m) to the extent any Purchased Asset was not originated by Seller, all requirements of Section 7.10 have been fulfilled with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicersuch Purchased Asset;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bn) to the extent the related Mortgage Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(o) if requested by Buyer, such opinions from counsel to Seller, Pledgor and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Documents;
(9i) Buyer shall have approvedhas received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to such Asset, in (ii) Seller has collaterally assigned to Buyer all of Seller’s rights (but none of its sole discretionobligations) under such Interest Rate Protection Agreement and related documents, all exceptions to the Underwriting Guidelinesand (iii) no termination event, default or event of default (however defined) exists thereunder;
(10q) after giving effect to any proposed Transaction, the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named amount on deposit in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that Liquidity Reserve Account is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated less than the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredRequired Liquidity Amount; and
(19r) Seller has complied with all other requirements set forth in the Repurchase Date Documents for the purchase of such Transaction is not later than the Termination DateAsset. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as or waived by Buyer) other than those set forth in Section 6.01(h) and Sections 6.02(g) and (h). The failure of Seller to satisfy (or obtain a waiver, in writing, from Buyer of) any of the date conditions precedent in any material respect in Section 6.02 (other than those set forth in Sections 6.02(g) and (h)) with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Northstar Realty Finance Corp.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction for the purchase of any Mortgage Loan, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Mortgage Loan on and as of the Purchase Date therefor:
(a) Buyer has received the following documents: (i) a Transaction Request, (including ii) an Underwriting Package, (iii) a Confirmation, (iv) copies of the initial Transaction) is subject Servicing Agreement, to the satisfaction of extent not already provided, (v) all related Servicer Letter Agreement to the following further conditions precedentextent not already provided, both and shall have received and consented to all amendments, supplements and modifications thereto, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, and (vii) all other documents, certificates, information, financial statements, reports and approvals as Buyer may reasonably require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach with respect to the representations and warranties made by Seller in Section 10Mortgage Loans proposed to be sold, shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit, Material Adverse Effect or warranty is expressly stated to have been made as of a specific date, as of such specific date)Market Disruption Event exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Underwriting Package, Mortgage File for Loan Documents and such other documents, records and information as Buyer deems appropriate with respect to each Purchased Asset, and the results of such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be reviews are satisfactory to Buyer, which determination may include, without limitation, ordering BPOs on a representative sample of Mortgage Loans as determined by Buyer in and its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on credit review of the related Purchase Date which is not serviced by Seller, data. Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, pay all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 6.02(c); provided, that Seller shall not be responsible for paying Buyer’s costs and expenses in excess of, in the entering into aggregate, $20.00 per Mortgage Loan in such pool of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental Mortgage Loans. Seller shall deliver BPOs in addition to the execution representative sample upon the request of any Transaction hereunderBuyer, which amounts, provided that these additional BPOs shall be at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereundersole expense. Seller shall provide Buyer with a BPO Schedule for all Purchased Assets;
(9d) Buyer shall have approvedhas (i) determined that such Mortgage Loan is an Eligible Mortgage Loan, in its sole discretion, all exceptions to and (ii) has executed the Underwriting GuidelinesConfirmation;
(10e) the Aggregate Purchase Price of all Transactions does not exceed the Maximum Aggregate Purchase Price after giving effect to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreementsuch Transaction;
(11f) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in such Purchase Date occurs on or after the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable Closing Date but prior to the occurrence expiration of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially Funding Period and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction specified in the Confirmation is not later than the Facility Termination Date;
(g) Seller and Custodian have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before such Purchase Date;
(h) to the extent the related Mortgage Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Mortgage Loan to Buyer, Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Mortgage Loan and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(i) [reserved]; and
(j) the Price Differential Maintenance Account contains funds in an amount equal to the Price Differential Required Amount. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 (other than the conditions set forth in this Section 3(bSections 6.02(e) or 6.01(d), 6.01(e) or 6.02(g) (solely with respect to Custodian) have been satisfied (both as of the date of such notice or request and as of the date of such purchase)satisfied.
Appears in 1 contract
Sources: Master Repurchase Agreement (Altisource Residential Corp)
Conditions Precedent to all Transactions. Buyer’s obligation to enter into Each Advance under this Agreement, each Transaction Addition, each Substitution and each Discretionary Sale (including the initial each, a “Transaction”) is shall be subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saleprecedent that:
(1a) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request On and as of the date of such purchaseTransaction the following statements shall be true and correct, and the Borrower by entering into such Transaction shall be deemed to have certified that:
(i) with respect to any Advance, the Servicer (on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Agent) no later than (x) 2:00 p.m. on the date that is one (1) Business Day prior to the proposed Advance Date for any Dollar Advances, (y) 11:00 a.m. on the date that is two (2) Business Days prior to the proposed Advance Date for any Advance in an Eligible Currency other than Dollars or AUDs and (z) 2:00 p.m. on the date that is three (3) Business Days prior to the proposed Advance Date for any AUD Advances, a Servicer Advance Date Report;
(ii) with respect to any Transaction other than an Advance, the Servicer (on behalf of the Borrower) shall have delivered to the Administrative Agent (with a copy to the Collateral Custodian and the Collateral Agent) no later than one Business Day prior to such Transaction, a Borrowing Base Certificate and Loan Tape updated to give pro forma effect to the relevant Addition, Substitution or Discretionary Sale; provided that if the Servicer delivers a Borrowing Base Certificate on the same Business Day as any Addition or Substitution, the Administrative Agent may in its sole discretion accept the Borrowing Base Certificate and approve such Addition or Substitution;
(iii) with respect to any Transaction that is an Addition, (A) the Borrower shall have delivered to the Collateral Custodian (with a copy to the Administrative Agent), on or prior to the date of such Addition, an Approval Notice and the Loan Checklist, (B) in the case of any Loan acquired by the Borrower through direct origination by the Borrower or an Affiliate thereof, the Borrower shall have delivered to the Collateral Custodian (with a copy to the Administrative Agent) (1) within two (2) Business Days (or within five (5) Business Days in the case of clause (c) of the definition of Required Loan Documents) of the date on which funds are released to the related Obligor for settlement of the Loan (as notified by the Collateral Agent to the Administrative Agent), the Required Loan Documents and (2) prior to the release of such funds to the related Obligor as set forth in clause (1), a confirmation from the Servicer that the Required Loan Documents have been finalized and agreed among the relevant parties (which, if the Loans to be Pledged are closed in escrow, may take the form of a certificate (in the form of Exhibit G) from the closing attorneys of such Loans certifying the possession of the Required Loan Documents) and that the Borrower will provide copies of the fully executed Required Loan Documents to the Collateral Custodian (with a copy to the Administrative Agent) as set forth in clause (1); and (C) in the case of a Loan acquired by the Borrower from a third party, the Borrower shall cause to be delivered to the Collateral Custodian (with a copy to the Administrative Agent), within two (2) Business Days after the date of such Addition, (1) the Required Loan Documents, (2) an executed copy of each assignment and assumption agreement, transfer document or instrument relating to each Loan so Pledged evidencing the assignment of such Loan from any prior third party owner thereof directly to the Borrower, and (3) other than in the case of a Noteless Loan, an e-mailed copy of the duly executed original promissory notes of the Loans so Pledged (and, in the case of any Noteless Loan, a fully executed assignment agreement);
(b) On and as of the date of such Transaction, after giving effect to such Transaction, the Borrower and the Servicer shall certify as follows:
(i) no Unmatured Event of Default (other than a Borrowing Base Deficiency) or Event of Default exists or would result from such Transaction;
(ii) (A) in the case of an Advance, no Borrowing Base Deficiency exists or would result from such Transaction and (B) in the case of a Transaction other than an Advance, either (I) no Borrowing Base Deficiency exists or would result from such Transaction or (II) if a Borrowing Base Deficiency exists the relevant Transaction will cure or reduce such Borrowing Base Deficiency;
(iii) other than Permitted Liens, no Liens exist in respect of Taxes which are prior to the lien of the Collateral Agent on the Eligible Loan Assets to be Pledged on the date of such Transaction;
(iv) the representations and warranties contained in Section 4.01, Section 4.02 and Section 4.03 and the representations and warranties of the Servicer contained in the Servicing Agreement are true and correct in all respects (other than any representation and warranty that is made as of a specific date), and no material breach of any covenant contained in Section 5.01, Section 5.02, Section 5.03 and Section 5.04 would result from the Transaction or the application of proceeds therefrom;
(v) no event has occurred and is continuing, or would result from such Advance, which constitutes a Servicer Default or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Servicer Default;
(vi) since the later of the Closing Date or the date of the last financial statements (or the last day of the period covered by such financial statements) delivered pursuant to Section 6.08(g), there has been no material adverse change in the ability of the Transferor to perform its obligations under any Transaction Document;
(vii) in the case of an Advance, all terms and conditions of the Sale and Contribution Agreement and the Master Participation Agreement, as applicable, required to be satisfied in connection with the assignment of each Eligible Loan Asset being Granted hereunder as a result of such Transaction (and the Portfolio Asset related thereto), including, the perfection of the Borrower’s interests therein, shall have been satisfied in full, and all filings (including, UCC filings) required to be made by any Person and all actions required to be taken or performed by any Person in any jurisdiction to give the Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest (subject only to Permitted Liens) in the Collateral Portfolio, including such Eligible Loan Assets and the Portfolio Asset and the proceeds thereof shall have been made, taken or performed or will be so on the related Addition Date; and
(viii) in the case of an Advance, the Loan to be acquired with the proceeds of any Advance is an Eligible Loan Asset as of the Addition Date; and.
(ix) (A) with respect to Eligible Loan Assets purchased with Advances, such Advance shall be denominated in the same Eligible Currency as such Loan and (B) with respect to Eligible Loan Assets purchased with available Principal Collections, such Principal Collections shall be denominated in the same Eligible Currency (or converted to such Eligible Currency pursuant to Section 2.18(f)(iii)) as the Loan acquired in connection with such reinvestment.
(c) Each Eligible Loan Asset identified on the updated Loan Tape for inclusion in the Collateral Portfolio on the applicable Addition Date has been approved by the Administrative Agent in an Approval Notice.
(d) No Applicable Law shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of such Advances by any Lender or the proposed Pledge of Eligible Loan Assets in accordance with the provisions hereof.
(e) With respect to an Advance, the proposed Advance Date shall take place during the Revolving Period.
(f) All filings (including, without limitation, UCC filings) required to be made by any Person and all actions required to be taken or performed by any Person in any jurisdiction to give the Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest (subject only to Permitted Liens) in any Eligible Loan Assets to be Pledged in connection with such Transaction and the Portfolio Assets related thereto and the proceeds thereof shall have been made, taken or performed.
(g) The Borrower shall have paid in full all fees then required to be paid pursuant to the Transaction Documents, including all fees required hereunder and under the applicable Lender Fee Letters, the Administrative Agent Fee Letter and the W▇▇▇▇ Fargo Fee Letter.
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saletherefor:
(1a) ▇▇▇▇▇ has received the following documents for each prospective Purchased Asset: (i) timely notice of the proposed Transaction delivered in accordance with Section 3.01(a), (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the prospective Purchased Asset is not serviced by Buyer or an Affiliate of Buyer, copies of the related Servicing Agreement, (v) an Irrevocable Redirection Notice that is executed by Seller shall have and delivered a Transaction Request via Electronic Transmission to Custodian on behalf of Buyer, (vi) if the Underlying Obligor is required to remit Income to the Servicer, evidence satisfactory to Buyer that the Underlying Obligor has been so directed to remit Income to Servicer in accordance with the procedures set forth in Section 3(c).
Purchased Asset Documents, (2vii) no Default or Event of Default shall have occurred a trust receipt and other items required to be continuing delivered under the Repurchase DocumentsCustodial Agreement, (viii) with respect to any Wet Mortgage Asset, a Bailee Agreement (as such term is defined in the Custodial Agreement), (ix) the related Servicing Agreement, if a copy was not previously delivered to Buyer, (x) a Servicer Notice, if applicable and not previously delivered to Servicer, (xi) a duly completed Compliance Certificate (or an email stating that information contained in the most recent Compliance Certificate delivered pursuant to Section 8.08 remains true and correct in all respects) and (xii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also immediately after giving effect thereto and to the intended use thereof, no change in any Requirements of Law or market conditions which make it unfavorable for Buyer to enter into the representations proposed Transaction has occurred, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit resulting in a Margin Call, Market Disruption Event or Material Adverse Effect shall have occurred, and warranties made by Seller the Facility Debt Yield Test, each Sub-Limit and the Maximum Purchased Asset PPV Requirement with respect to the prospective Purchased Asset are all in Section 10, shall compliance or will be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) compliance after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price and no default or event of the Transactions outstanding shall not exceed the Asset Value default exists under any other financing, hedging, security or other agreement (other than this Agreement) between any Seller Party and/or any Subsidiary of all the Purchased Assets subject to outstanding TransactionsGuarantor, and Buyer or any Affiliate thereof;
(6c) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) Buyer has (i) determined that such Asset is an Eligible Asset and complies, on the related Purchase Date, with both the Minimum Purchased Asset Debt Yield Requirement and the Maximum Purchased Asset PPV Requirement, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(e) immediately after giving effect to such Transaction, the Aggregate Amount Outstanding does not exceed the Maximum Amount;
(f) the Repurchase Date specified in the Confirmation is not later than the Maturity Date;
(g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the Purchase Date;
(h) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, ▇▇▇▇▇ has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(i) solely with respect to any Eligible Hedge Required Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to (i) Buyer has received a copy of the any Interest Rate Protection Agreement and related Servicing Agreementdocuments entered into with respect to such Asset, certified as a true, correct and complete copy (ii) Seller has pledged to Buyer all of the original, together Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement in accordance with a Servicer Notice, fully executed by Seller and ServicerSection 8.10;
(8) j) Seller has provided Buyer shall have receivedwith copies of any license, solely registration or other similar certification or official document available to Seller from the jurisdiction where the related underlying Mortgaged Property is located, to the extent that Buyer previously shall have delivered necessary for Seller to Seller a written demand thereforenforce its rights and remedies under the related Purchased Asset Documents;
(k) if requested by ▇▇▇▇▇, (A) all reasonable out-of-pocket fees and expenses of such opinions from counsel to each Seller Party as Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Document;
(9l) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
Custodian (10or a Bailee) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;the Blank Assignment Documents; and
(11m) Buyer Seller shall have received from Sellerprovided evidence, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable satisfactory to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall reasonable discretion, that the applicable Interim Assignment Documents have received from Seller a Warehouse Lender’s Release Letter substantially been submitted for recordation in the form attached to public recording office of the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Datejurisdiction. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as of the date of such notice or request and as of the date of such purchase)satisfied.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Claros Mortgage Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder with respect to an Asset, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction such Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the saletherefor:
(1a) Buyer has received the following documents for each prospective Purchased Asset: (i) timely notice of the proposed Transaction delivered in accordance with Section 3.01(a), (ii) an Underwriting Package, (iii) a Confirmation, (iv) [reserved], (v) an Irrevocable Redirection Notice that is executed by Seller shall have and delivered a Transaction Request via Electronic Transmission to Custodian on behalf of Buyer, (vi) if the Underlying Obligor is required to remit Income to the Servicer, evidence satisfactory to Buyer that the Underlying Obligor has been so directed to remit Income to Servicer in accordance with the procedures set forth in Section 3(c).
Purchased Asset Documents, (2vii) no Default or Event of Default shall have occurred with respect to any Asset that is not a Wet Mortgage Asset, a trust receipt and other items required to be continuing delivered under the Repurchase DocumentsCustodial Agreement, (viii) with respect to any Wet Mortgage Asset, a Bailee Agreement and Bailee Trust Receipt, (ix) the related Servicing Agreement, if a copy was not previously delivered to Buyer, (x) a Servicer Notice, if applicable and not previously delivered to Servicer, (xi) a duly completed Compliance Certificate (or an email stating that information contained in the most recent Compliance Certificate delivered pursuant to Section 8.08 remains true and correct in all respects) and (xii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also immediately after giving effect thereto and to the intended use thereof, no change in any Requirements of Law or market conditions which make it unfavorable for Buyer to enter into the representations proposed Transaction has occurred, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit resulting in a Margin Call, Market Disruption Event or Material Adverse Effect shall have occurred, and warranties made by Seller the Facility Debt Yield Test, each Sub-Limit and the Maximum Purchased Asset PPV Requirement with respect to the prospective Purchased Asset are all in Section 10, shall compliance or will be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) compliance after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price and no default or event of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactionsdefault exists under any other financing, hedging, security or other agreement (other than this Agreement) between any Seller Party and/or any other Seven Hills Party, and Buyer or any Affiliate thereof;
(6c) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) with respect to any Buyer has (i) determined that such Asset is an Eligible Asset to be purchased hereunder and complies, on the related Purchase Date which is not serviced by SellerDate, Seller shall have provided to Buyer a copy with the Maximum Purchased Asset PPV Requirement, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerConfirmation;
(8) Buyer shall have receivede) immediately after giving effect to such Transaction, solely the Aggregate Amount Outstanding does not exceed the Maximum Amount;
(f) the Repurchase Date specified in the Confirmation is not later than the Maturity Date;
(g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the extent that Buyer previously shall have delivered to Seller a written demand therefor, Purchase Date;
(A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, ▇▇▇▇▇ has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(i) Buyer for such amountsand/or Seller shall have entered into a Servicing Agreement (and the related Servicer Notice, all reasonable out-of-pocket costs and expenses incurred if applicable) with a Servicer approved by Buyer in connection with the entering into respect to such Asset;
(j) Seller has provided Buyer with copies of any Transaction hereunderlicense, registration or other similar certification or official document available to Seller from the jurisdiction where the related underlying Mortgaged Property is located, to the extent necessary for Seller to enforce its rights and remedies under the related Purchased Asset Documents;
(k) if requested by ▇▇▇▇▇, such opinions from counsel to each Seller Party as Buyer may require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Document;
(9l) Buyer Custodian (or a Bailee) shall have approved, in its sole discretion, all exceptions to received the Underwriting GuidelinesBlank Assignment Documents;
(10m) to the extent there are any MERS Designated Mortgage Loans, Buyer Seller shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Sellerprovided evidence, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable satisfactory to Buyer in its sole discretion in respect reasonable discretion, that the applicable Interim Assignment Documents, if any, have been submitted (or are the subject of Eligible Assets an escrow agreement pursuant to be purchased hereunder which the related settlement agent will become irrevocably bound on such Business Day;
(14the Purchase Date to submit the applicable Interim Assignment Documents) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially for recordation in the form attached to public recording office of the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredjurisdiction; and
(19n) if such Asset is subject to a co-lender agreement, participation agreement, intercreditor agreement or other similar agreement among creditors that requires a notice of transfer and/or a notice of pledge to be delivered in order to give effect to the Repurchase Date for rights of the transferee or pledgee, as applicable, thereunder, Seller has delivered a Notice of Transfer/Pledge with respect to such Transaction is not later than the Termination DateAsset. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in this Section 3(b) have been satisfied (both as an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the date related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Seven Hills Realty Trust)
Conditions Precedent to all Transactions. Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) Seller shall have delivered a Transaction Request Confirmation via Electronic Transmission in accordance with the procedures set forth in Section 3(c).3.03, and Buyer shall have determined that the Mortgage Asset described in such Confirmation is an Eligible Asset, shall have approved the purchase of the Mortgage Asset to be included in such Transaction in its sole and absolute discretion and shall have obtained all necessary internal credit approvals for such Transaction;
(2b) no Default or Event of Default shall have occurred and be continuing under this Agreement, the Guarantee Agreement or any other Repurchase DocumentsDocument and no event shall have occurred which has, or would reasonably be expected to have, a Material Adverse Effect or result in a Market Disruption Event;
(3c) Buyer shall have received a certificate of a Responsible Officer of Seller and Guarantor, substantially in the form of Exhibit J hereto, (i) showing in detail the calculations demonstrating that, after giving effect to the requested Transaction, no Margin Deficit shall then exist, (ii) stating that, to the aggregate outstanding Purchase Price best of such Responsible Officer’s knowledge, since the date of the Transactions outstanding shall not exceed certificate most recently delivered pursuant to Section 9.01(b)(ii), Seller and Guarantor have observed or performed all of its covenants and other agreements in all material respects, and satisfied in all material respects, every condition, contained in this Agreement and the Maximum Amountrelated documents to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, (iii) describing all interests of Seller’s Affiliates in any Underlying Mortgaged Property related to any proposed Mortgage Asset (including without limitation, any lien, encumbrance or other debt or equity position or other interest in the Underlying Mortgaged Property that is senior or junior to, or pari passu with, the proposed Mortgage Asset in right of payment or priority) and (iv) showing in detail the calculations supporting such Responsible Officer’s certification of Seller’s compliance with the requirements of Sections 9.01(l) and (m), and Guarantor’s compliance with Sections 9(c)-(g) of the Guarantee;
(4d) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 108.01 and in Schedules 1(a)-1(h), as applicable, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6e) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 2612.11, Buyer (i) in the case of a Dry Mortgage Asset, Seller shall have completed its due delivered a Transaction Request, a Transaction Request Package and all Mortgage Asset Documents to the Custodian as required by this Agreement and the Custodial Agreement and Buyer has consented in writing to the related Mortgage Asset becoming a Purchased Asset, and (ii) in the case of a Wet Mortgage Asset, Seller has delivered a Transaction Request, Transaction Request Package and pledge to deliver a complete Mortgage Asset File with respect to any Wet Mortgage Assets identified on such Transaction Request within five (5) Business Days of the related Purchase Date; provided, that if Buyer’s diligence review of the Mortgage Asset File for each Purchased Assetrequires the delivery of a mortgage file or the equivalent, Seller shall have the benefit of delayed delivery under circumstances and such other documents, records, agreements, instruments, mortgaged properties or information relating pursuant to such Purchased Asset as Buyer the terms and conditions set forth in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretionSection 2.01(j)(ii) of the Custodial Agreement;
(7f) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by SellerSeller or an Affiliate thereof, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (CBRE Realty Finance Inc)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date, or such other date as indicated below, therefor:
(including a) Buyer and/or Custodian has received the initial Transactionfollowing documents: (i) is subject an Underwriting Package, (ii) a Confirmation, (iii) to the satisfaction extent not previously delivered, the related Servicing Agreement, (iv) Irrevocable Redirection Notices duly executed by Seller and each other applicable Person, (v) a trust receipt and other items required to be delivered under the Custodial Agreement, and (vi) all other documents, certificates, information, financial statements, reports, approvals, KYC compliance and opinions of counsel as Buyer may require;
(b) evidence satisfactory to Buyer that (i) the Purchased Assets are being or will be serviced by the Servicer under the Servicing Agreement and, if applicable, a Sub-Servicer under a Sub-Servicing Agreement, including any notices or deliveries required thereunder to evidence or acknowledge that such Purchased Asset shall be serviced thereunder and Seller shall provide Buyer a copy of any such notice or delivery required thereunder, together with a written acknowledgment of the following further conditions precedent, both applicable Servicer and (ii) the Servicer has received copies of all documents in the Mortgage Asset File;
(c) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (other than with respect to a Purchased Asset purchased prior to the representations and warranties made by Seller in Section 10related Purchase Date) other than Approved Representation Exceptions, shall be true, correct and complete on and as Default or Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Default exists;
(5d) immediately before such Transaction and after giving effect thereto and to the intended use thereof, no (i) condition or circumstance exists which causes, constitutes or could reasonably be expected to cause or constitute a Material Adverse Effect, as determined by Buyer, (ii) Market Disruption Event or (iii) Margin Deficit exists;
(e) delivery by Seller and Guarantor of a Compliance Certificate to Buyer;
(f) no Requirements of Law shall prohibit or render it unlawful, and no order, judgment or decree of any Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into any Transaction, including after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactionsconsummation thereof;
(6g) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Underwriting Package, Mortgage File for each Purchased Asset, Loan Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer; CHAR1\1716309v16
(h) Buyer in its sole discretionhas (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(7i) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;
(j) other than in connection with respect to any Eligible Asset a Reallocation, the Purchase Date specified in the Confirmation is not later than the Funding Expiration Date;
(k) the Repurchase Date is not later than the Facility Termination Date;
(l) Seller, Guarantor, Servicer, Pledgor and Custodian (in the event ▇▇▇▇▇ is not the Custodian) have satisfied in all material respects all requirements, conditions and covenants, duties, obligations and agreements contained in the Repurchase Documents to be purchased hereunder performed by such Person on or before the Purchase Date;
(m) If Seller acquired the Purchased Asset from an Affiliate, Seller shall have delivered to Buyer on or before the related Purchase Date which is not serviced (i) an opinion of counsel regarding the true sale of the purchase of such Asset by Seller and, if such Asset was acquired by Seller’s Affiliate from another Affiliate, the true sale of the purchase of the Asset by the Affiliate of Seller from the Transferor Affiliate, which opinions shall be in form and substance satisfactory to Buyer or (ii) a residual pledge agreement covering any residual interest the Transferor may have in any such Asset, if any; provided, however, if a proposed Asset was acquired by Seller from a Transferor under a Purchase Agreement that was the subject of a true sale opinion previously delivered and accepted by Buyer, then Seller shall have provided deliver to Buyer a copy an executed Supplemental Conveyance evidencing the transfer of the related Servicing Agreement, certified as Asset from such Transferor to Seller pursuant to such Purchase Agreement and a true, correct and complete copy written certification in the form of the original, together with a Servicer Notice, fully executed by Seller and Servicer;Exhibit J attached hereto.
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bn) to the extent the related Mortgage Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(o) if requested by Buyer, such opinions from counsel to Seller, Pledgor and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Documents;
(9p) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines[Reserved];
(10q) Buyer has received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to such Asset, (i) Seller has collaterally CHAR1\1716309v16 assigned to Buyer all of Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement and related documents, and (ii) no termination event, default or event of default (however defined) exists thereunder;
(r) evidence satisfactory to Buyer regarding any Interest Rate Protection Agreement entered into by Seller in accordance with Section 8.09;
(s) Seller has complied with all other requirements set forth in the Repurchase Documents for the purchase of such Asset;
(t) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;
(u) To the extent ▇▇▇▇▇ is not the Servicer and to the extent there are any MERS Designated Mortgage Loansnot previously delivered, within twenty (20) days from the Closing Date, Seller has provided to Buyer shall have received from Seller a copy of (i) a fully executed Electronic Tracking Agreement;
(11) and completed Account Control Agreement acceptable to Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loanssuch Servicer Account, and (ii) a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions legal opinion acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
regarding the Account Control Agreement for the Servicer Account (14) Buyer shall have received from Seller a Warehouse Lenderincluding, but not limited to, Buyer’s Release Letter substantially perfected security interest in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredServicer Account); and
(19v) Within three (3) months from the Repurchase Date Closing Date, Buyer has received and approved the form of Mortgage Loan Documents that Seller and/or its Affiliates intend to utilize for the origination of Assets. Seller has not amended, altered, revised or otherwise change in any material respects the form of Mortgage Loan Documents approved by Buyer under this Section 6.02(v) without first have given prior notice to Buyer of any such Transaction is not later than the Termination Dateamendments, modifications and/or changes to its form Mortgage Loan Documents. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as of the date of such notice or request waived by Buyer) other than those set forth in Sections 6.01(i) and as of the date of such purchase(j) and Sections 6.02(g) and (h).
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Cim Real Estate Finance Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the Purchase Date therefor:
(a) Buyer and/or Custodian has received the following further conditions precedentdocuments: (i) a Transaction Request, both (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the Asset is not serviced by W▇▇▇▇, originals of the related Servicing Agreements, (v) Irrevocable Redirection Notices duly executed by Seller and each other applicable Person, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, and (vii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) Servicer has received copies of all documents in the Mortgage Asset File and the Critical to Board Package (as defined in the Servicing Agreement);
(c) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (other than with respect to a Purchased Asset purchased prior to the representations and warranties made by Seller in Section 10related Purchase Date) other than Approved Representation Exceptions, shall be true, correct and complete on and as Default or Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Default exists;
(5d) immediately before such Transaction and after giving effect thereto and to the intended use thereof, no (i) Material Adverse Effect, (ii) Market Disruption Event or (iii) Margin Deficit exists;
(e) delivery by Guarantor to Buyer of a Compliance Certificate;
(f) no Requirements of Law shall prohibit or render it unlawful, and no order, judgment or decree of any Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into any Transaction, including after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactionsconsummation thereof;
(6g) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Underwriting Package, Mortgage File for each Purchased Asset, Loan Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7h) Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(i) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to such Transaction;
(j) the Purchase Date specified in the Confirmation is not later than the Funding Expiration Date;
(k) the Repurchase Date is not later than the Facility Termination Date;
(l) Seller, Guarantor, Servicer (in the event W▇▇▇▇ is not the Servicer), Pledgor and Custodian (in the event W▇▇▇▇ is not the Custodian) have satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the Purchase Date;
(m) to the extent any Purchased Asset was not originated by Seller, all requirements of Section 7.10 have been fulfilled with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicersuch Purchased Asset;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bn) to the extent the related Mortgage Loan Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(o) if requested by Buyer, such opinions from counsel to Seller, Pledgor and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Documents;
(9i) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have has received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, any Interest Rate Protection Agreement and related documents entered into with respect to MERS Designated Mortgage Loanssuch Asset, a MERS Report reflecting (ii) Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
has collaterally assigned to Buyer all of Seller’s rights (12) but none of the following shall have occurred and/or be continuing:
(Aits obligations) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of under such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially Interest Rate Protection Agreement and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawfulrelated documents, and (iii) no Governmental Authority shall have asserted that it is unlawfultermination event, for Buyer to enter into Transactions;
default or event of default (18however defined) the Effective Date shall have occurredexists thereunder; and
(19q) Seller has complied with all other requirements set forth in the Repurchase Date Documents for the purchase of such Transaction is not later than the Termination DateAsset. Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as or waived by Buyer) other than those set forth in Section 6.01(h) and Sections 6.02(g) and (h). The failure of Seller to satisfy (or obtain a waiver, in writing, from Buyer of) any of the date conditions precedent in any material respect in Section 6.02 (other than those set forth in Sections 6.02(g) and (h)) with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Resource Capital Corp.)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied in the discretion of Buyer, or waived by Buyer in its discretion, with respect to each Transaction (including the initial Transaction) is subject to the satisfaction Asset on and as of the Purchase Date therefor:
(a) Buyer has received the following further conditions precedentdocuments: (i) a Transaction Request, both (ii) an Underwriting Package, (iii) a Confirmation, (iv) Irrevocable Redirection Notices, (v) a trust receipt and other items required to be delivered under the Custodial Agreement, and (vi) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require in its discretion;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10no Representation Breach (including with respect to any Purchased Asset), shall be trueDefault, correct and complete on and as Event of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (orDefault, if any such representation Margin Deficit or warranty is expressly stated to have been made as of a specific date, as of such specific date)Material Adverse Effect exists;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Underwriting Package, Mortgage File for each Purchased Asset, Loan Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretion;
(7d) with respect Buyer has in its discretion (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the Confirmation;
(e) the aggregate outstanding Purchase Price of all Transactions does not exceed the Maximum Amount after giving effect to any Eligible such Transaction;
(f) the Purchase Date is not later than the Closing Date and the Repurchase Date is not later than the Maturity Date;
(g) Seller has satisfied all requirements and conditions and have performed all covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by Seller on or before the Purchase Date;
(h) to the extent the related Mortgage Loan Documents or Junior Interest Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to be purchased hereunder on Buyer, Buyer has received evidence that Seller has given notice to the related Purchase Date which applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is not serviced by Seller, Seller shall have provided entitled to the rights and benefits of a pledgee under such pledgee provisions;
(i) Buyer has received a copy of the Initial Interest Rate Protection Agreement and related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)documents, and (Bii) to the extent Seller is required hereunder to reimburse Buyer for such amountsno termination event, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into default or event of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;default (however defined) exists thereunder; and
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11j) Buyer shall have received from Seller, with respect to MERS Designated blank assignments of all Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named Loan Documents in appropriate form for recording in the Interim Funder field for each such MERS Designated Mortgage Loan;
jurisdiction in which the underlying real estate is located (12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination DateBlank Assignment Documents”). Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as satisfied, unless any such condition precedent was expressly waived in the related Confirmation. The failure of Seller to satisfy any of the date conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was waived in writing by Buyer in its discretion on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase Agreement (Starwood Property Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s obligation to enter into each Transaction (including the initial Transaction) is subject In addition to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).6.01, Buyer shall not be obligated to enter into any Transaction or any Future Funding Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Asset on and as of the related Purchase Date and each Future Funding Date therefor:
(2a) no Default Buyer has received the following documents for each prospective Purchased Asset: (i) [reserved], (ii) an Underwriting Package or Event of Default shall have occurred a Future Funding Underwriting Package, as applicable, (iii) a Confirmation, (iv) [reserved], (v) Irrevocable Redirection Notices, (vi) a trust receipt and other items required to be continuing delivered under the Repurchase DocumentsCustodial Agreement, (vi) the related Servicing Agreement, if a copy was not previously delivered to Buyer, (vii) a Servicer Notice, (viii) a duly completed Compliance Certificate and (ix) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(3b) after giving effect to the requested immediately before such Transaction (including any Future Funding Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both and immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit, Market Disruption Event or Material Adverse Effect shall have occurred, and the representations Facility Debt Yield Test is in compliance, and warranties made by no default or event of default exists under any other financing, hedging, security or other agreement (other than this Agreement) between a Seller in Section 10Party and/or any Affiliate thereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if Buyer or any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Affiliate thereof;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b)appropriate, and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence results of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold reviews are satisfactory to Buyer;
(15d) prior to Buyer has received payment from Seller of the Upsize Fee, if applicable;
(e) Buyer has (i) determined that such Asset is an Eligible Asset and complies, on the related Purchase Date, with both the Minimum Purchased Asset Debt Yield Requirement and the Maximum Purchased Asset PPV Requirement, (ii) approved the purchase of any Mortgage Loan acquired such Asset, (by purchase iii) obtained all necessary internal credit and other approvals for such Transaction or otherwiseFuture Funding Transaction, as applicable, and (iv) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certificationexecuted the Confirmation;
(16f) Guarantor is in compliance with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance companythe applicable Financial Covenants;
(17g) Buyer shall immediately after giving effect to such Transaction or Future Funding Transaction, as applicable, the Aggregate Amount Outstanding does not have determined that exceed the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into TransactionsMaximum Facility Amount;
(18) the Effective Date shall have occurred; and
(19h) the Repurchase Date for such Transaction specified in the Confirmation is not later than the Termination Date;
(i) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the related Purchase Date;
(j) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is entitled to the rights and benefits of a pledgee under such pledgee provisions;
(k) Seller has provided Buyer with copies of any license, registration or other similar certification or official document available to Seller from the jurisdiction where the related underlying Mortgaged Property is located, to the extent necessary for Seller to enforce its rights and remedies under the related Purchased Asset Documents;
(l) if requested by Buyer, to the extent not covered by opinions previously delivered under similar facts and circumstances where there has been no change in Requirements of Law in connection with this Agreement, such customary opinions from counsel to Seller, Pledgor and Guarantor as Buyer may require, including, without limitation, with respect to the perfected security interest in the Purchased Assets, the Pledged Collateral and any other collateral pledged pursuant to the Repurchase Document, and true sale opinions for each Purchased Asset purchased or transferred to Seller from an Affiliate of Seller or from any third party in a transaction not on arm’s-length terms or for other than fair market value, to the extent such transfer was in a manner or structure different from the manner or structure of transfer and sale analyzed in a true sale opinion previously delivered in connection with such Purchased Asset; and
(m) Custodian shall have received executed blank assignments of all Purchased Asset Documents in appropriate form for recording in the jurisdiction in which the underlying real estate is located, together with executed blank assignments of all Purchased Asset Documents (the “Blank Assignment Documents”). Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions precedent in this Article 6 have been satisfied. The failure of Seller to satisfy any of the conditions precedent in this Article 6 with respect to any Transaction or any Future Funding Transaction, as applicable, or Purchased Asset shall, unless such failure was set forth in this Section 3(b) have been satisfied (both as an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date or Future Funding Date, give rise to the right of Buyer at any time to rescind the date related Transaction, whereupon Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase Agreement (Granite Point Mortgage Trust Inc.)
Conditions Precedent to all Transactions. Buyer’s 's obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).;
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s 's right to perform one or more Due Diligence Reviews pursuant to Section 2627, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller Buyer shall have provided received from Seller certified copies of any Servicing Agreement relating to the Eligible Assets and Buyer a copy of the related shall have reviewed and approved each such Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerAgreement in its sole discretion;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amountsamount, at Buyer’s 's option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “"repo market” " or “"lending market” " with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “"securities market” " for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;; or
(1311) with respect to each Eligible Asset that is not a Wet-Ink Mortgage LoanAsset, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule a Trust Receipt and a Basic Status Report and Exception Report, dated the Purchase Date, duly completed and Report with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(1412) Buyer shall have received from Seller a Warehouse Lender’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of EXHIBIT VII-B hereto (or such other form acceptable to Buyer) or a Seller’s 's Release Letter substantially in the form attached to the Custodial and Disbursement Agreement of EXHIBIT VII-A hereto (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(1513) prior to the purchase The aggregate requested Purchase Price of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset Assets that is a are not Wet-Ink Mortgage Loan, Loans that Seller has requested Buyer shall have received an insured closing letter from each Settlement Agent that purchase pursuant to the Transaction Request is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law equal to or in the interpretation or administration excess of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred$10,000,000; and
(1914) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller each of NCCC and NCMC that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase). Each of NCCC and NCMC hereby request that Buyer, on each Business Day, convert each Eligible Asset which is a Wet-Ink Mortgage Loan for which the Mortgage File has been received by the Custodian in accordance with the Custodial Agreement to a dry Mortgage Loan and this request shall constitute a certification by each of NCCC and NCMC that all the conditions set forth in this Section 3(b) have been satisfied (both as of the date hereof and as of the date of such conversion).
Appears in 1 contract
Sources: Master Repurchase Agreement (New Century Financial Corp)
Conditions Precedent to all Transactions. Upon satisfaction of the conditions set forth in the Section 3(b), the Buyer shall enter into a Transaction with Seller. Buyer’s 's obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2ii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date for such Transaction in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iv) after After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the for all Purchased MH Loans subject to then outstanding Transactions outstanding under this Repurchase Agreement shall not exceed the Maximum Purchase Price;
(v) After giving effect to the requested Transaction, the Asset Value of all Purchased MH Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6vi) subject On or prior to Buyer’s right 12:00 Noon (New York Time) one (1) day prior to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by SellerDate, the Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to the Buyer (a) a Transaction Request, and (b) a Purchased MH Loan Report, which report shall be posted on Intralinks or a substantially similar electronic transmission system protected by a password;
(vii) The Seller shall have delivered to the Custodian the Loan File with respect to each Purchased MH Loan and the Custodian shall have issued a written demand therefor, Trust Receipt with respect to each such Purchased MH Loan to the Buyer;
(Aviii) The Buyer shall have received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 27 which amounts, at the Buyer’s 's option, may be withheld from the sale proceeds of remitted by Buyer to the Seller pursuant to any Transaction hereunder;
(9ix) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none None of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “"repo market” " or comparable “"lending market” " for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or eventsmortgage loans; or
(B) an event the senior debt obligations or events short-term debt obligations of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc. shall have occurred resulting be rated below the four highest generic grades (without regard to any pluses and minuses reflecting gradations within such generic grades) by any Rating Agency;
(x) Either the Underwriting Guidelines delivered pursuant to this Repurchase Agreement remain in the effective absence effect unmodified, or any amendment or modification of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have such Underwriting Guidelines has been reasonable prior to such event or eventsprovided to, and approved by, Buyer; or
(Cxi) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in this Section 3(b) (other than clause (ix) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (Affordable Residential Communities Inc)
Conditions Precedent to all Transactions. BuyerThe Deal Agent’s obligation and the Purchaser’s agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) no Applicable Law shall prohibit or render it unlawful, and no order, judgment or decree of any Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into such Transaction in accordance with the provisions hereof or any other transaction contemplated herein;
(b) any and all consents, approvals and waivers applicable to the Purchased Items shall have been obtained;
(c) the Deal Agent shall have received a written Transaction Request, the related Underwriting Package, the related Seller Asset Schedule and such other information as it may request related to its review and approval of a Mortgage Asset
(d) subject to the Deal Agent’s right to perform one or more Due Diligence Reviews pursuant to Section 13.21, the Deal Agent shall have completed in accordance with Section 2.2 its due diligence review of the Mortgage Asset, the Mortgage Loan Documents and the Underwriting Package for each Mortgage Asset and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Mortgage Asset as the Deal Agent in its discretion deems appropriate to review, and such reviews shall be satisfactory to the Deal Agent in its discretion;
(e) the Seller shall have delivered a Transaction Request via Electronic Transmission to the Deal Agent an executed Confirmation in accordance with the procedures set forth in Section 3(c).2.2, the Mortgage Asset described in such Confirmation must be an Eligible Asset, and the Deal Agent shall have approved the purchase of the Eligible Asset to be included in such Transaction in its discretion, shall have obtained all necessary internal credit and other approvals for such Transaction and shall have executed the Confirmation;
(2f) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documentscontinuing;
(3g) no Margin Deficits are outstanding and no Margin Deficits will occur after giving effect to the requested Transaction;
(h) the Deal Agent shall have received an executed Compliance Certificate from a Responsible Officer of the Seller and Parent;
(i) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Availability or the Maximum Amount;
(4j) subject to Section 6.3, with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date that is not serviced by the Seller, the Seller shall have provided to the Deal Agent copies of the related Servicing Agreements and, as applicable, the Pooling and Servicing Agreements, certified as true, correct and complete copies of the originals;
(k) the Deal Agent shall be in receipt of an executed Servicer Redirection Notice for each Purchased Asset instructing each Servicer, PSA Servicer or other applicable Person to pay Income with respect to the Purchased Items directly to the Collection Account as provided herein, which instructions may not be modified or revoked without the prior written consent of the Deal Agent;
(l) the Deal Agent as agent for the Secured Parties shall have received payment from the Seller of all fees and expenses of the Deal Agent and the Purchaser as contemplated by the Repurchase Documents, including, with limitation, the fees and expenses of counsel to the Deal Agent and the Purchaser and the reasonable costs and expenses incurred by the Deal Agent and the Purchaser in connection with the entering into of any Transaction hereunder (including, without limitation, costs associated with due diligence, recording, travel, lodging or other administrative expenses necessary or incidental to the execution of any Transaction hereunder), which amounts, at the Deal Agent’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(m) none of the following shall have occurred and/or be continuing:
(i) an event or events shall have occurred in the good faith determination of the Deal Agent resulting in the effective absence of a “repo market” or related “lending market” for purchasing (subject to repurchase) or financing debt obligations secured directly or indirectly by commercial mortgage loans or securities, or an event or events shall have occurred resulting in the Purchaser or any Secured Party not being able to finance Mortgage Assets through the “repo market” or “lending market” with traditional counterparties at rates that would have been reasonable prior to the occurrence of such event or events;
(ii) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by Mortgage Assets, or an event or events shall have occurred resulting in the Deal Agent, the Purchaser or any Secured Party not being able to sell securities backed by Mortgage Assets at prices that would have been reasonable prior to such event or events; or
(iii) there shall have occurred a Material Adverse Effect or a material adverse change in the financial condition of the Purchaser or any Secured Party that affects (or can reasonably be expected to affect) materially and adversely the ability of the Purchaser or any Secured Party to fund its obligations under this Agreement.
(n) for each Non–Table Funded Purchased Asset, the Deal Agent shall have received from the Custodian on each Purchase Date a Trust Receipt (along with a completed Mortgage Asset File Checklist attached thereto) and an Asset Schedule and Exception Report with respect to each Eligible Asset, each dated the Purchase Date, duly completed and, in the case of the Asset Schedule and Exception Report, with exceptions acceptable to the Deal Agent in its discretion in respect of Eligible Assets to be purchased hereunder on such Business Day; in the case of a Table Funded Purchased Asset, the Deal Agent shall have received on the related Purchase Date the Table Funded Trust Receipt and all other items described in the second (2nd) sentence of Subsection 2.2(g), each in form and substance satisfactory to the Deal Agent in its discretion, provided that the Deal Agent subsequently receives the items described in Subsection 2.2(d) and (g) and the other delivery requirements under the Custodial Agreement on or before the date and time specified herein and therein, which items shall be in form and substance satisfactory to the Deal Agent in its discretion;
(o) the Deal Agent shall have received from the Seller a Warehouse Lender’s Release Letter or a Seller’s Release Letter, as applicable, covering each Eligible Asset to be sold to the Purchaser or its designee;
(p) prior to the purchase of any Eligible Asset acquired (by purchase or otherwise) by the Seller from any Affiliate of the Seller, the Deal Agent shall have received certified copies of the applicable Purchase Agreements (if any) and, if requested by the Deal Agent in its discretion, a True Sale Opinion;
(q) on and as of such day, the Seller, the Limited Guarantor, the Pledgor, the Parent and the Custodian shall have performed all of the covenants, duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person at or prior to such day;
(r) the Purchase Date for such Transaction is not later than the Funding Expiration Date and the Repurchase Date for such Transaction is not later than the Facility Maturity Date and 365 calendar days from the Purchase Date;
(s) the Deal Agent shall have recalculated the LC Permitted Draw Amount and the Deal Agent and the Seller shall have executed a new Credit Support Annex with the new calculation included therein;
(t) each Letter of Credit shall be in full force and effect, the originals which shall be in the possession of the Deal Agent as agent for the Secured Parties, and the Letters of Credit shall aggregate to the required Letter of Credit Amount;
(u) the Limited Guarantor shall have deposited any Required Cash Collateral into the Collection Account to the extent required before or after giving effect to such Transaction;
(v) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties and certifications made by Seller the Seller, the Limited Guarantor, the Parent and the Pledgor under the Repurchase Documents, including, without limitation, in Section 104.1 and Schedule 1 of this Agreement, in the Mortgage Loan Documents and in all other statements, affirmations or certifications made and information, documents, agreements, reports or notices provided by the Seller, the Limited Guarantor, the Pledgor, the Parent and/or the other Repurchase Parties to the Deal Agent shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5w) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price Deal Agent shall be in receipt of the Transactions outstanding shall not exceed the Asset Value evidence of all the Purchased Assets subject to outstanding Transactions;
insurance (6if any) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to required by Section 26, Buyer shall have completed its due diligence review 9.1 of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Custodial Agreement;
(11x) Buyer the Seller shall have received from Sellerdelivered any other opinion or closing item required by Section 3.1 that was, with the written consent of the Deal Agent, not delivered on the Closing Date;
(y) if applicable and to the extent required for the Deal Agent, the Purchaser or any Secured Party to assert its rights with respect to MERS Designated Mortgage Loansan Eligible Asset, a MERS Report reflecting certification of good standing for the Seller as Investor and no Person named in each jurisdiction where the Interim Funder field for each such MERS Designated Mortgage LoanUnderlying Mortgaged Property is located;
(12z) none satisfaction of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior all other conditions to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(bAgreement, the Custodial Agreement and/or the other Repurchase Documents; (aa) as applicable, the Seller shall have been satisfied (both as complied with Subsection 2.2(l) of the date of such notice or request and as of the date of such purchase).this Agreement;
Appears in 1 contract
Sources: Master Repurchase Agreement (Municipal Mortgage & Equity LLC)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into each Transaction (including the initial any Transaction) is subject , purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder relating to the satisfaction prospective purchase of any Asset or to fund any future fundings relating to any existing Purchased Asset, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Asset on and as of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the salePurchase Date therefor:
(1a) Seller shall have delivered Buyer has received the following documents: (i) a Transaction Request via Electronic Transmission Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) a trust receipt and other items required to be delivered under the Custodial Agreement, (v) with respect to any Wet Mortgage Asset, a Bailee Agreement, (vi) all other documents, certificates, information, financial statements, - 62- reports, approvals and opinions of counsel as Buyer may require and (vii) evidence that each Seller is in good standing in the jurisdiction where the underlying Mortgaged Property is located, to the extent that such Seller is then-currently required to do so under an applicable Requirement of Law (provided, however, that with respect to any Wet Mortgage Asset, delivery of the foregoing items in accordance with the procedures set forth provisions of Section 3.01(g) and (h) shall be deemed to satisfy the conditions of Section 6.02(a) (unless otherwise determined in Section 3(cthe discretion of Buyer).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents);
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested before such Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit, or Material Adverse Effect related to any Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Guarantor;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) with respect to any Buyer has (i) determined that such Asset is an Eligible Asset to be purchased hereunder on Asset, (ii) approved the related Purchase Date which is not serviced by Sellerpurchase of such Asset, Seller shall have provided to Buyer a copy of (iii) obtained all necessary internal credit and other approvals for such Transaction and (iv) executed the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerConfirmation;
(8) Buyer shall e) immediately after giving effect to such Transaction, the Aggregate Amount Outstanding does not exceed the Maximum Amount;
(f) the Repurchase Date specified in the Confirmation is not later than the Facility Termination Date;
(g) Each Seller, Pledgor and Custodian have receivedsatisfied all requirements and conditions and have performed all covenants, solely duties, obligations and agreements contained in the Repurchase Documents to be performed by such Person on or before the extent that Buyer previously shall have delivered to Seller a written demand therefor, Purchase Date;
(A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received evidence that each Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(i) if requested by ▇▇▇▇▇, such opinions from counsel to Sellers, ▇▇▇▇▇▇▇ and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution of perfected security interest in the Purchased Assets, the Pledged Collateral and any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from other collateral pledged pursuant to the sale proceeds of any Transaction hereunderRepurchase Document;
(9j) Buyer Custodian (or a bailee) shall have approvedreceived executed blank assignments of all Purchased Asset Documents in appropriate form for recording, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there such documents are any MERS Designated Mortgage Loansrequired to be recorded, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
jurisdiction in which the underlying real estate is located, - 63- together with executed blank assignments of all other Purchased Asset Documents (12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredBlank Assignment Documents”); and
(19i) the Repurchase Date for Buyer has received a copy of any Interest Rate Protection Agreement and related documents entered into with respect to such Transaction is not later than the Termination DateAsset, (ii) each Seller has assigned to Buyer all of such Seller’s rights (but none of its obligations) under such Interest Rate Protection Agreement and related documents, and (iii) no termination event, default or event of default (however defined) exists thereunder. Each Transaction Request Confirmation delivered by a Seller hereunder shall constitute a certification by such Seller that all of the conditions precedent in this Article 6 have been satisfied other than those set forth in this Sections 6.01(a)(vi), (d) and (e) and Section 3(b6.02(a)(vii), (c) have been satisfied and (both as d). The failure of a Seller to satisfy any of the date conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon the related Seller shall immediately pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Omnibus Amendment to Repurchase Documents (Ares Commercial Real Estate Corp)
Conditions Precedent to all Transactions. BuyerAdministrative Agent’s obligation to enter into each Transaction Transaction, for the benefit of Buyers, (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the salethereto:
(1a) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no No Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3b) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific earlier date, as of such specific earlier date);
(5c) after The amount requested in the Transaction Request does not exceed the then Available Purchase Price;
(d) After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all Purchased Mortgage Loans in the Purchased Assets subject to outstanding Transactions;Asset Base that have not been repurchased is not less than the aggregate Purchase Price; and
(6e) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer The Custodian shall have completed its due diligence review examination of the Mortgage File for Files as set forth in Section 3.1 (except with respect to each Purchased AssetEligible Mortgage Loan which is a Wet Loan subject to Section 3.2) of the Custodial Agreement, and the Administrative Agent shall have reviewed such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset Mortgage Loans as Buyer the Administrative Agent in its sole discretion deems appropriate to review review, and such examination and review shall be satisfactory to Buyer the Custodian and the Administrative Agent in its their sole discretion;
(7f) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller The Administrative Agent shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to Buyer the Administrative Agent as contemplated by Section 14(b)Sections 15.2, 29 and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts39, all reasonable out-of-pocket costs then due and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunderpayable, which amountsamount, at Buyerthe Administrative Agent’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9g) Buyer To the extent Seller is selling Mortgage Loans which are registered on the MERS® System, the Seller shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed delivered an Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase DateAgreement entered into, duly completed executed and with exceptions acceptable to Buyer delivered by the parties thereto (including, the Administrative Agent) and being in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial full force and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase effect, free of any Mortgage Loan acquired (by purchase modification, breach or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredwaiver; and
(19h) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) 3.2 and Section 3.3 have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by Buyer, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) therefor:
(a) Buyer has received the following documents for each prospective Purchased Asset: (i) a Transaction Request, (ii) an Underwriting Package, (iii) a Confirmation, (iv) if the prospective Purchased Asset is subject to the satisfaction not serviced by Buyer or an Affiliate of Buyer, copies of the following further conditions precedentrelated Servicing Agreements, both (v) Irrevocable Redirection Notices, (vi) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement (as defined in the Custodial Agreement), (vii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, (viii) a duly completed Purchase Date Compliance Certificate and (ix) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
(b) immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (including with respect to any Purchased Asset), Default, Event of Default, Margin Deficit or Material Adverse Effect shall have occurred and is continuing, and the representations Facility Debt Yield Test, the Debt Yield Test and warranties made by Seller PPV Test are all in Section 10, shall be true, correct compliance with respect to both the proposed Transaction and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)each other Purchased Asset;
(5c) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have has completed its due diligence review of the Mortgage File for each Underwriting Package, Purchased Asset, Asset Documents and such other documents, records, agreements, instruments, mortgaged properties or records and information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review appropriate, and the results of such review shall be reviews are satisfactory to Buyer in its sole discretionBuyer;
(7d) with respect to any Buyer has (i) determined that such Asset is an Eligible Asset to be purchased hereunder on Asset, (ii) approved the related Purchase Date which is not serviced by Sellerpurchase of such Asset, Seller shall have provided to Buyer a copy of (iii) obtained all necessary internal credit and other approvals for such Transaction, and (iv) executed the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerConfirmation;
(8) Buyer shall have receivede) immediately after giving effect to such Transaction, solely the Aggregate Amount Outstanding does not exceed the Maximum Amount;
(f) the Repurchase Date specified in the Confirmation is not later than the Maturity Date;
(g) Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by such Person on or before the extent that Buyer previously shall have delivered to Seller a written demand therefor, Purchase Date;
(A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (Bh) to the extent the related Purchased Asset Documents contain notice, cure and other provisions in favor of a pledgee under a repurchase or warehouse facility, and without prejudice to the sale treatment of such Asset to Buyer, Buyer has received satisfactory evidence that Seller has given notice to the applicable Persons of Buyer’s interest in such Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that Buyer is required hereunder entitled to reimburse the rights and benefits of a pledgee under such pledgee provisions;
(i) any license, registration or other similar certification or official document available to Seller from the jurisdiction where the related Underlying Mortgaged Property is located, to the extent necessary for Seller to enforce its rights and remedies under the related Purchased Asset Documents;
(j) if requested by Buyer, such opinions from counsel to Seller, Pledgor and Guarantor as Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereundermay require, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental respect to the execution perfected security interest in the Purchased Assets, the Pledged Collateral and any other collateral pledged pursuant to the Repurchase Document, and true sale opinions for each Purchased Asset purchased by or transferred to Seller from an affiliated entity other than with respect to Purchased Assets transferred pursuant to a Master ▇▇▇▇ of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunderSale;
(9k) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy no Change of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each Control has occurred unless such MERS Designated Mortgage Loan;
(12) none Change of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured Control has been approved by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15l) prior Custodian (or a bailee) shall have received executed blank assignments of all Purchased Asset Documents in appropriate form for recording, to the purchase extent such documents are required to be recorded, in the jurisdiction in which the underlying real estate is located, together with executed blank assignments of all Purchased Asset Documents (the “Blank Assignment Documents”);
(m) Neither Advisor nor any Mortgage Loan acquired (by purchase of its Subsidiaries have defaulted beyond any applicable grace period in paying any amount or otherwise) by Seller from performing any obligation due to Buyer or any Affiliate of SellerBuyer under any other financing, Buyer shall have received a True Sale Certification;
hedging, security or other agreement (16other than under this Agreement) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, between Advisor or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawfulits Subsidiaries, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurredor any Affiliate of Buyer; and
(19n) the Repurchase Date for such Transaction is not later than the Termination Date. no Insolvency Event has occurred with respect to either Advisor or Sub-Advisor; Each Transaction Request Confirmation delivered by Seller hereunder shall constitute a certification by Seller that all of the conditions set forth precedent in this Section 3(b) Article 6 have been satisfied (both as or expressly waived by Buyer in writing) other than those set forth in Sections 6.01(a)(viii), (d) and (e) and Sections 6.02(c) and (d). The failure of Seller to satisfy (or obtain an express waiver in writing of) any of the date conditions precedent in this Article 6 with respect to any Transaction or Purchased Asset shall, unless such failure was set forth in an exceptions schedule to the relevant Confirmation or otherwise waived in writing by Buyer on or before the related Purchase Date, give rise to the right of Buyer at any time to rescind the related Transaction, whereupon Seller shall, within two (2) Business Days, pay to Buyer the Repurchase Price of such notice or request and as of the date of such purchase)Purchased Asset.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (FS Credit Real Estate Income Trust, Inc.)
Conditions Precedent to all Transactions. Buyer’s 's obligation to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller shall have delivered to Buyer or its designee, documents evidencing the transfer of the ownership of the related Assets from Seller to Buyer, including delivery to Custodian of the Assets File(s) and deliver of a Transaction Request via Electronic Transmission in accordance with duly executed bond power or transfer instrument for the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documentsrelated Asset;
(3ii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding Transactions;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy instructed the applicable Custodian, debtor, trustee, paying agent, authenticating agent, transfer agent, registrar, predecessor in interest, owner, and Servicer, if any, in respect of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, Assets to: (A) all reasonable out-of-pocket fees reflect on their books and expenses records the transfer of counsel such Assets to Buyer Buyer, as contemplated by Section 14(bowner or secured party (if the Assets are in the form of a security agreement), and (B) re-register in the name of Buyer all Trust Receipts, collateral receipts or other applicable instruments relating to each Purchased Asset on or prior to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunderrelated Purchase Date;
(9iii) Buyer Custodian shall have approved, in its sole discretion, delivered to Buyer all exceptions Trust Receipt(s) relating to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage LoansPurchased Assets, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions noting such Exceptions as are acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased sold hereunder on such Business Day, in each case dated such Business Day and duly completed;
(14iv) Seller shall have delivered a Purchase Request to Buyer, at least two (2) Business Days prior to the proposed Purchase Date specified in such Purchase Request;
(v) Seller shall have delivered to Buyer, no later than 2:00 p.m. New York time at least one (1) Business Day prior to the Purchase Date, the Asset Schedule, and an Asset Tape with respect to each Asset to be purchased on such Purchase Date and the Custodian shall have received the Asset Schedule no later than 12:00 noon New York time one (1) Business Day prior to such Purchase Date;
(vi) In the event Buyer has provided Seller with written notice at least two (2) Business Days prior to its receipt of any Purchase Request of its intent to conduct pre-funding due diligence prior to any Purchase Date, Buyer shall have completed its due diligence to its satisfaction with respect to each Asset to be purchased on the relevant Purchase Date, and the results of such investigation (and all other legal and documentary matters with respect to such Asset) supports the Mortgage Loan Representations and shall be satisfactory to Buyer in its sole discretion in accordance with Section 15 hereof.
(vii) No Event of Default or Default shall have occurred and be continuing, and there shall not have occurred one or more events that, in the reasonable judgment of the Buyer, constitutes or could reasonably be expected to constitute a Material Adverse Effect;
(viii) Seller shall have provided Buyer with a copy of any changes to Seller's Underwriting Guidelines prior to Buyer's purchase of any Asset affected by such change and Buyer shall have approved such changes;
(ix) Buyer shall have received from the most recent available servicing or like reports, if any, with respect to the Assets; and
(x) If requested by Buyer due to a question arising as to validity, enforceability or compliance with law, an opinion or opinions of counsel to the Seller a Warehouse Lender’s Release Letter and the Interim Servicer, addressing the matters set forth in the form attached hereto as Exhibit VIII, then Seller shall, upon the request of Buyer, deliver an opinion of counsel in such state acceptable to the Buyer, substantially in the form attached to the Custodial of items number 11, 13 and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;14 of Exhibit VIII.
(15xi) prior With respect to any Collateralized Note, the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(161) the original Collateralized Note endorsed to the Buyer, (2) the original certification and trust receipt issued by the applicable Custodian with respect to the Mortgage Loans securing such Collateralized Note, (3) a "notice of pledge" executed by the Seller and the applicable Custodian, and (4) a "notice and consent" executed by the maker and each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;endorsee of the Collateralized Note.
(17xii) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, All terms and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) have been the Master Facilities Agreement shall be satisfied (both as to the reasonable satisfaction of the date of such notice or request and as of the date of such purchase)Buyer.
Appears in 1 contract
Conditions Precedent to all Transactions. Upon satisfaction of the conditions set forth in the Section 3(b), the Buyer may enter into a Transaction with Seller. This Agreement is not a commitment by Buyer to enter into Transactions with Seller but rather sets forth the procedures to be used in connection with periodic requests for Buyer to enter into Transactions with Seller. Seller hereby acknowledges that Buyer is under no obligation to agree to enter into, or to enter into, any Transaction pursuant to this Agreement. Buyer’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect thereto to the consummation thereof and the intended use of the proceeds of the salethereof:
(1i) Seller Buyer shall have executed and delivered a Transaction Request via Electronic Transmission Confirmation in accordance with the procedures set forth in Section 3(c).;
(2ii) no No Termination Event, Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3iii) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both Both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by the Seller in Section 1011 hereof, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5iv) after After giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the for all Purchased Mortgage Loans subject to then outstanding Transactions outstanding under this Repurchase Agreement shall not exceed the Maximum Purchase Price;
(v) After giving effect to the requested Transaction, the Asset Value of all Purchased Mortgage Loans exceeds the Purchased Assets subject to outstanding aggregate Repurchase Price for such Transactions;
(6vi) On or prior to 5:30 p.m. (New York Time) one (1) day prior to the related Purchase Date, the Seller shall have delivered to the Buyer (a) a Transaction Request, and (b) a Purchased Mortgage Loan Report;
(vii) With respect to Transactions the subject of which are Wet-Ink Mortgage Loans:
(A) At least one Business Day prior to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26the related Purchase Date, the Buyer shall have completed its due diligence review received a Transaction Request;
(B) By 12:00 noon (New York time) on the related Purchase Date, the Custodian shall have received from the Buyer a schedule setting forth the mortgage loan identification number, the Mortgagor name and the outstanding principal balance of Wet-Ink Mortgage Loans to be purchased by Buyer on such Purchase Date; and
(C) The Custodian and the Buyer shall have received a Wiring Schedule setting forth the disbursement amount and wiring instructions for each Wet-Ink Mortgage Loan.
(viii) The Seller shall have delivered to the Custodian the Mortgage File for with respect to each Purchased Asset, Mortgage Loan which is not a Wet-Ink Mortgage Loan and such other documents, records, agreements, instruments, mortgaged properties or information relating the Custodian shall have issued a Trust Receipt with respect to each such Purchased Asset as Mortgage Loan to the Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7B) with respect to any Eligible Asset to be purchased hereunder each Wet-Ink Mortgage Loan, by no later than 5:00 p.m. (New York Time) on the related seventh Business Day following the applicable Purchase Date which is not serviced by SellerDate, Seller shall have provided deliver the Mortgage File to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and ServicerCustodian;
(8) ix) The Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) received all reasonable out-of-pocket fees and expenses of counsel to the Buyer as contemplated by Section 14(b), Sections 15(b) and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, 27 which amounts, at the Buyer’s option, may be withheld from the sale proceeds of remitted by Buyer to the Seller pursuant to any Transaction hereunder;
(9x) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none None of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of the Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in the Buyer not being able to finance Purchased Assets Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of the Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of the Buyer to fund its obligations under this Repurchase Agreement;; or
(13xi) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Date. Each Transaction Request delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in this Section 3(b) (other than clause (x) hereof) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).
Appears in 1 contract
Sources: Master Repurchase Agreement (Mortgageit Holdings Inc)
Conditions Precedent to all Transactions. Buyer’s obligation Buyer shall not be obligated to enter into any Transaction, purchase any Asset, or be obligated to take, fulfill or perform any other action hereunder, until the following additional conditions have been satisfied or waived by ▇▇▇▇▇, with respect to each Transaction Asset on and as of the Purchase Date (including the initial Transactionfirst Purchase Date) is subject to the satisfaction of therefor:
a. Buyer has received the following further conditions precedentdocuments for each Purchased Asset: (i) [reserved], both (ii) an Underwriting Package, (iii) a Confirmation, (iv) Irrevocable Redirection Notices, (v) a trust receipt and other items required to be delivered under the Custodial Agreement, (vi) with respect to any Wet Mortgage Asset, a Bailee Agreement, (vii) the related Servicing Agreement, if a copy was not previously delivered to Buyer, and (viii) all other documents, certificates, information, financial statements, reports, approvals and opinions of counsel as Buyer may require;
a. immediately prior to entering into before such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1) Seller shall have delivered a Transaction Request via Electronic Transmission in accordance with the procedures set forth in Section 3(c).
(2) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documents;
(3) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Maximum Amount;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, no Representation Breach (including with respect to any Purchased Asset, but excluding any Approved Representation Exception), Default, Event of Default, Margin Deficit, or Material Adverse Effect shall have occurred and be continuing;
a. Buyer has completed its due diligence review of the representations Underwriting Package, Mortgage Loan Documents and warranties made by Seller in Section 10such other documents, shall records and information as Buyer deems appropriate, and the results of such reviews are satisfactory to Buyer;
a. Buyer has (i) determined that such Asset is an Eligible Asset, (ii) approved the purchase of such Asset, (iii) obtained all necessary internal credit and other approvals for such Transaction, (iv) executed the Confirmation, (v) determined that such Asset is adequately structured and stabilized, (vi) received payment of the Annual Funding Fee with respect to such Asset (which Annual Funding Fee may be truenetted from the Purchase Price funded on the applicable Purchase Date or netted from the Future Funding Amount funded on the applicable Future Funding Date, correct as applicable), and complete on and (vii) determined that such Asset satisfies the PPV Test as of such the Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date)Date;
(5) a. immediately after giving effect to the requested such Transaction, the aggregate outstanding Purchase Price of the all Transactions outstanding shall does not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsMaximum Amount;
(6) subject to Buyer’s right to perform one or more Due Diligence Reviews pursuant to Section 26, Buyer shall have completed its due diligence review of the Mortgage File for each Purchased Asset, and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer in its sole discretion deems appropriate to review and such review shall be satisfactory to Buyer in its sole discretion;
(7) with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which is not serviced by Seller, Seller shall have provided to Buyer a copy of the related Servicing Agreement, certified as a true, correct and complete copy of the original, together with a Servicer Notice, fully executed by Seller and Servicer;
(8) Buyer shall have received, solely to the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with the entering into of any Transaction hereunder, including, without limitation, costs associated with appraisal review and due diligence recording or other administrative expenses necessary or incidental to the execution of any Transaction hereunder, which amounts, at Buyer’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9) Buyer shall have approved, in its sole discretion, all exceptions to the Underwriting Guidelines;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12) none of the following shall have occurred and/or be continuing:
(A) an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(C) there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(13) with respect to each Eligible Asset that is not a Wet-Ink Mortgage Loan, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and with exceptions acceptable to Buyer in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day;
(14) Buyer shall have received from Seller a Warehouse Lender’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to Buyer;
(15) prior to the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale Certification;
(16) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that is not a title insurance company;
(17) Buyer shall not have determined that the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) a. the Repurchase Date for such Transaction specified in the Confirmation is not later than the Termination Maturity Date. Each Transaction Request delivered ;
a. Seller has satisfied all requirements and conditions and has performed all covenants, duties, obligations and agreements contained in the other Repurchase Documents to be performed by Seller hereunder shall constitute a certification by Seller that all on or before the conditions set forth in this Section 3(b) have been satisfied (both as of the date of such notice or request and as of the date of such purchase).Purchase Date;
Appears in 1 contract
Sources: Master Repurchase and Securities Contract (Blackstone Mortgage Trust, Inc.)
Conditions Precedent to all Transactions. BuyerThe Purchaser’s obligation agreement to enter into each Transaction (including the initial Transaction) is subject to the satisfaction of the following further conditions precedent, both immediately prior to entering into such Transaction and also after giving effect to the consummation thereof and the intended use of the proceeds of the sale:
(1a) no Applicable Law shall prohibit, and no order, judgment or decree of any Governmental Authority shall prohibit or enjoin, the entering into such Transaction by the Purchaser in accordance with the provisions hereof or any other transaction contemplated herein;
(b) the Seller, the Guarantor and the Pledgor shall have delivered to the Purchaser all reports, certifications and other information required to be delivered under the terms of this Agreement and the other Repurchase Documents as of the date of such Transaction;
(c) the Seller shall have delivered a Transaction Request via Electronic Transmission to the Purchaser an executed Confirmation in accordance with the procedures set forth in Section 3(c).2.2, the Purchaser shall have determined that the Asset described in such Confirmation is an Eligible Asset, and the Purchaser shall have approved the purchase of the Eligible Asset to be included in such Transaction in its discretion, shall have obtained all necessary internal credit and other approvals for such Transaction and shall have executed the Confirmation;
(2d) the Purchaser shall have received a written Transaction Request, the related Underwriting Package, the related Seller Asset Schedule and such other information as it may reasonably request related to its review and approval of an Asset;
(e) no Default or Event of Default shall have occurred and be continuing under the Repurchase Documentscontinuing;
(3f) after giving effect to the requested Transaction, Purchaser shall have received a Compliance Certificate in the aggregate outstanding Purchase Price form of Exhibit VIII attached hereto from a Responsible Officer of the Transactions outstanding shall not exceed the Maximum AmountSeller;
(4) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 10, shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(5g) after giving effect to the requested Transaction, the aggregate outstanding Purchase Price of the Transactions outstanding shall not exceed the Asset Value of all the Purchased Assets subject to outstanding TransactionsTransactions or the Maximum Amount;
(6h) subject to Buyerthe Purchaser’s right to perform one or more Due Diligence Reviews pursuant to Section 2613.21, Buyer the Purchaser shall have completed in accordance with Section 2.2 its due diligence review of the Mortgage Asset File and the Underwriting Package for each Purchased Asset, Asset and such other documents, records, agreements, instruments, mortgaged properties or information relating to such Purchased Asset as Buyer the Purchaser in its sole reasonable discretion deems appropriate to review review, and such review reviews shall be satisfactory to Buyer the Purchaser in its sole reasonable discretion;
(7i) no Margin Deficits are outstanding and no Margin Deficits will occur after giving effect to the requested Transaction;
(j) subject to Section 6.3, with respect to any Eligible Asset to be purchased hereunder on the related Purchase Date which that is not serviced by Sellerpursuant to a Servicing Agreement or a Pooling and Servicing Agreement, the Seller shall have provided to Buyer a copy the Purchaser copies of the related Servicing AgreementAgreements and, as applicable, the Pooling and Servicing Agreements, certified as a true, correct and complete copy copies of the original, together with a Servicer Notice, fully executed by Seller and Serviceroriginals;
(8) Buyer k) the Purchaser shall be in receipt of an executed Servicer Redirection Notice for each Eligible Asset serviced by any Person other than the Seller instructing each Servicer, PSA Servicer or other applicable Person to pay Income with respect to the Purchased Items directly to the Collection Account as provided herein, which instructions may not be modified or revoked without the prior written consent of the Purchaser;
(l) the Purchaser shall have receivedreceived payment from the Seller of all fees and expenses of the Purchaser as contemplated by the Repurchase Documents, solely to including, with limitation, the extent that Buyer previously shall have delivered to Seller a written demand therefor, (A) all reasonable out-of-pocket fees and expenses of counsel to Buyer as contemplated by Section 14(b), the Purchaser and (B) to the extent Seller is required hereunder to reimburse Buyer for such amounts, all reasonable out-of-pocket costs and expenses incurred by Buyer the Purchaser in connection with the entering into of any Transaction hereunder, hereunder (including, without limitation, reasonable out–of–pocket costs associated with appraisal review and due diligence recording diligence, recording, travel, lodging or other administrative expenses necessary or incidental to the execution of any Transaction hereunder), which amounts, at Buyerthe Purchaser’s option, may be withheld from the sale proceeds of any Transaction hereunder;
(9m) Buyer the Purchaser shall have approved, received an original Assignment for each Eligible Asset executed by the Seller in its sole discretion, all exceptions to the Underwriting Guidelinesblank;
(10) to the extent there are any MERS Designated Mortgage Loans, Buyer shall have received from Seller a copy of a fully executed Electronic Tracking Agreement;
(11) Buyer shall have received from Seller, with respect to MERS Designated Mortgage Loans, a MERS Report reflecting Seller as Investor and no Person named in the Interim Funder field for each such MERS Designated Mortgage Loan;
(12n) none of the following shall have occurred and/or be continuing:
(Ai) an event or events shall have occurred in the good faith determination of Buyer the Purchaser resulting in the effective absence of a “repo market” or comparable related “lending market” for purchasing (subject to repurchase) or financing debt obligations secured directly or indirectly by commercial mortgage loans or securities securities, or an event or events shall have occurred resulting in Buyer the Purchaser not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which that would have been reasonable prior to the occurrence of such event or events; or;
(Bii) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans Assets, or an event or events shall have occurred resulting in Buyer the Purchaser not being able to sell securities backed by mortgage loans Assets at prices which that would have been reasonable prior to such event or events; or
(Ciii) there shall have occurred a Material Adverse Effect or a material adverse change in the financial condition of Buyer which the Purchaser that affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer the Purchaser to fund its obligations under this Agreement;
(13o) for each Non–Table Funded Purchased Asset, the Purchaser shall have received from the Custodian on each Purchase Date a Trust Receipt (along with a completed Asset File Checklist attached thereto) and an Asset Schedule and Exception Report with respect to each Eligible Asset that is not a Wet-Ink Mortgage LoanAsset, Buyer shall have received from Custodian on each Purchase Date an Asset Schedule and Exception Report, dated the Purchase Date, duly completed and, in the case of the Asset Schedule and Exception Report, with exceptions acceptable to Buyer the Purchaser in its sole discretion in respect of Eligible Assets to be purchased hereunder on such Business Day; and for each Table Funded Purchased Asset, the Purchaser shall have received on the related Purchase Date the Table Funded Trust Receipt and all other items described in the second (2nd) sentence of Subsection 2.2(g), each in form and substance required by this Agreement and the Custodial Agreement or otherwise satisfactory to the Purchaser in its discretion, provided that the Purchaser subsequently receives the items described in Subsection 2.2(d) and (g) and the other delivery requirements under the Custodial Agreement on or before the date and time specified herein and therein, which items shall be in form and substance satisfactory to the Purchaser in its discretion;
(14p) Buyer the Purchaser shall have received from Seller a Warehouse Lender’s Release Letter substantially be in receipt of the form attached to evidence of insurance required by Section 9.1 of the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) or a Seller’s Release Letter substantially in the form attached to the Custodial and Disbursement Agreement (or such other form acceptable to Buyer) covering each Eligible Asset to be sold to BuyerAgreement;
(15q) prior each Purchased Asset is the subject of an Assignment permitted under the Asset Documents, and each Purchased Asset is further assignable by the Purchaser in accordance with Section 13.16, unless the ability to assign in accordance with Section 13.16 is waived in writing by the purchase of any Mortgage Loan acquired (by purchase or otherwise) by Seller from any Affiliate of Seller, Buyer shall have received a True Sale CertificationPurchaser in its discretion;
(16r) with respect to each Eligible Asset that is a Wet-Ink Mortgage Loan, Buyer shall have received an insured closing letter from each Settlement Agent that the Purchase Date for such Transaction is not a title insurance company;
(17) Buyer shall not have determined that later than the introduction of, or a change in, any Requirement of Law or in the interpretation or administration of any Requirement of Law applicable to Buyer has made it unlawful, Funding Expiration Date and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions;
(18) the Effective Date shall have occurred; and
(19) the Repurchase Date for such Transaction is not later than the Termination Facility Maturity Date and 364 calendar days from the Purchase Date;
(s) the Purchaser shall have received from the Seller a Warehouse Lender’s Release Letter or a Seller’s Release Letter, as applicable, covering each Eligible Asset to be sold to the Purchaser;
(t) prior to the purchase of any Eligible Asset acquired (by purchase or otherwise) by the Seller from any Affiliate of the Seller (that is not a Seller under this Agreement), the Purchaser shall have received certified copies of the applicable Purchase Agreements (if any) and, if requested by the Purchaser in its discretion, a True Sale Opinion;
(u) any and all consents, approvals and waivers applicable to the Purchased Items shall have been obtained;
(v) both immediately prior to the requested Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties and certifications made by the Seller, the Guarantor and the Pledgor under the Repurchase Documents shall be true, correct and complete on and as of such Purchase Date in all material respects, and the applicable eligibility criteria in Schedule 1 to this Agreement shall be satisfied (except as disclosed in the related Confirmation) on and as of such Purchase Date, in each case with the same force and effect as if made on and as of such date;
(w) for each Preferred Equity Interest and Equity Asset, (1) the Seller has executed and delivered all instruments and documents and has taken all further action reasonably necessary and desirable or that the Purchaser has reasonably requested in order to (i) perfect and protect the Purchaser’s security interest in such Preferred Equity Interest or Equity Asset, as applicable (including, without limitation, execution and delivery of one or more control agreements reasonably acceptable to the Purchaser, execution and filing of UCC financing statements and any and all other actions reasonably necessary to satisfy the Purchaser that the Purchaser has obtained a first priority perfected security interest in such Preferred Equity Interest or Equity Asset, as applicable); (ii) enable the Purchaser to exercise and enforce its rights and remedies hereunder in respect of such Preferred Equity Interest or Equity Asset, as applicable; and (iii) otherwise effect the purposes of this Agreement, including, without limitation and if reasonably requested by the Purchaser, having delivered to the Purchaser irrevocable proxies in respect of such Preferred Equity Interest or Equity Asset, as applicable, and (2) if required by the Purchaser in its discretion, the requirements of the definition of Preferred Equity Interest or Equity Asset, as applicable, are satisfied to the satisfaction of the Purchaser in its discretion;
(x) as applicable, the Seller shall have complied with Subsection 2.2(l) of this Agreement;
(y) to the extent the Asset Documents for the related Eligible Asset contain notice, cure and other provisions in favor of a pledgee of the Eligible Asset under a repurchase or warehouse facility, and without prejudice to the sale treatment of the Eligible Asset to the Purchaser, the Seller shall provide evidence to the Purchaser that the Seller has given notice to the applicable Persons of the Purchaser’s interest in such Eligible Asset and otherwise satisfied any other applicable requirements under such pledgee provisions so that the Purchaser is entitled to receive the benefits and exercise the rights of a pledgee under the terms of such pledgee provisions contained in the related Asset Documents;
(z) the Purchaser shall have received all such other and further documents, reports, certifications, approvals and legal opinions as the Purchaser in its sole discretion shall reasonably require; and
(aa) on or before the initial funding of any Purchase Price under this Agreement, the Purchaser shall have received (i) an Opinion of Counsel addressing perfection by possession of Asset Documents that are comprised of notes, certificates and physical securities and (ii) an in–house Opinion of Counsel under New York law (to the extent New York law is applicable) covering due execution and delivery of the Repurchase Documents. Each Transaction Request Confirmation delivered by the Seller hereunder shall constitute a certification by the Seller that all the conditions set forth in Section 3.1 and this Section 3(b) 3.2 have been satisfied (both as of the date of such notice or request and as of the date of such purchase)) (i) other than conditions (if any) to be satisfied by the Custodian and (ii) except as may be waived in writing by the Purchaser in its discretion.
Appears in 1 contract
Sources: Master Repurchase Agreement (Quadra Realty Trust, Inc.)