EXECUTION VERSION
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MASTER REPURCHASE AGREEMENT
COLUMN FINANCIAL INC., as buyer (the "Buyer") and
111 DEBT ACQUISITION LLC, as seller ("Seller"), and
111 DEBT ACQUISITION MEZZ LLC, as Mezzanine Loan Subsidiary
("Mezzanine Loan Subsidiary"), and
▇▇▇▇▇▇▇ REALTY TRUST, INC. ("Limited Guarantor")
Dated March 30, 2006
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TABLE OF CONTENTS
Page
1. Applicability............................................................1
2. Definitions..............................................................1
3. Program; Initiation of Transactions.....................................22
4. Repurchase..............................................................24
5. Price Differential......................................................25
6. Margin Maintenance......................................................26
7. Income Payments.........................................................27
8. Security Interest.......................................................29
9. Payment and Transfer....................................................32
10. Conditions Precedent....................................................32
11. Program; Costs..........................................................36
12. Servicing...............................................................40
13. Representations and Warranties..........................................42
14. Covenants...............................................................48
15. Events of Default.......................................................54
16. Remedies Upon Default...................................................57
17. Reports.................................................................60
18. Repurchase Transactions.................................................63
19. Single Agreement........................................................63
20. Notices and Other Communications........................................64
21. Entire Agreement; Severability..........................................66
22. Non assignability.......................................................66
23. Set-off.................................................................66
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24. Binding Effect; Governing Law; Jurisdiction.............................67
25. No Waivers, Etc.........................................................67
26. Intent..................................................................67
27. Disclosure Relating to Certain Federal Protections......................68
28. Power of Attorney.......................................................69
29. Buyer May Act Through Affiliates........................................69
30. Indemnification; Obligations............................................69
31. Counterparts............................................................70
32. Confidentiality.........................................................70
33. Recording of Communications.............................................71
34. Exit Fee................................................................72
35. Non-Recourse............................................................72
36. Periodic Due Diligence Review...........................................73
37. Authorizations..........................................................74
38. Documents Mutually Drafted..............................................74
39. General Interpretive Principles.........................................74
SCHEDULES
Schedule 1 - Representations and Warranties with Respect to Purchased Assets
Schedule 2 - Authorized Representatives
EXHIBITS
Exhibit A - Form of Transaction Request
Annex 1 - Purchased Asset Schedule
Annex 2 - Summary Diligence Materials
Exhibit B - Form of Purchase Confirmation
Exhibit C - Form of Closing Data Tape
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Exhibit D - Form of Officer's Compliance Certificate
Exhibit E - Form of Custodial Delivery Letter
Exhibit F - Form of Opinion of Seller's, Mezzanine Loan Subsidiary's and Limited
Guarantor's counsel
Exhibit G -1 Officer's Certificate of the Seller and Corporate Resolutions of
Seller
Exhibit G -1 Officer's Certificate of the Mezzanine Loan Subsidiary and
Corporate Resolutions of the Mezzanine Loan Subsidiary
Exhibit H - Form of Servicer Notice
Exhibit I - Form of Asset File
Exhibit J - Form of Trust Receipt
Exhibit K - Form of Distribution Worksheet
Exhibit L - Form of Servicing Report
Exhibit M - Competitors
Exhibit N - Form of Mezzanine Loan Subsidiary Acknowledgment
Exhibit O - Form of Section 11 Certificate
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1. Applicability
From time to time the parties hereto may enter into transactions in
which Seller agrees to transfer to Buyer Purchased Assets and the Mezzanine Loan
Subsidiary Interests (valued from time to time based on the Mezzanine Loans and
Mezzanine Loan Junior Interests owned by the Mezzanine Loan Subsidiary) (as
hereinafter defined) against the transfer of funds by Buyer with a simultaneous
agreement by Buyer to transfer to Seller such Purchased Assets, Mezzanine Loan
Subsidiary Interests, Mezzanine Loan Junior Interests and Mezzanine Loans at a
date certain or on demand, against the transfer of funds by Seller. Each such
transaction shall be referred to herein as a "Transaction" and, unless otherwise
agreed in writing, shall be governed by this Agreement, including any
supplemental terms or conditions contained in any annexes identified herein, as
applicable hereunder.
On the initial Purchase Date, Buyer will purchase the Mezzanine Loan
Subsidiary Interests from the Seller in connection with the initial Transaction.
After the initial Purchase Date, as part of separate Transactions
Seller may request and Buyer will fund, subject to the terms and conditions of
this Repurchase Agreement, an increase in the Purchase Price for the Mezzanine
Loan Subsidiary Interests based upon the acquisition of one or more additional
Mezzanine Loans or Mezzanine Loan Junior Interests by the Mezzanine Loan
Subsidiary.
2. Definitions
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"1933 Act" has the meaning set forth in Section 16(l) hereof.
"1934 Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Accepted Servicing Practices" means, with respect to any Purchased
Asset, those servicing practices of prudent institutions which service assets of
the same type as such Purchased Asset in the jurisdiction where the related
Mortgaged Property or underlying asset is located.
"Act of Insolvency" means, with respect to any Person, (i) the
filing of a petition, commencing, or authorizing the commencement of any case or
proceeding, or the voluntary joining of any case or proceeding under any
bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law
relating to the protection of creditors, or suffering any such petition or
proceeding to be commenced by another which is consented to, not timely
contested or results in entry of an order for relief; (ii) the seeking of the
appointment of a receiver, trustee, custodian or similar official for such party
or any substantial part of its property (iii) the appointment of a receiver,
conservator, or manager for such party by any governmental agency or authority
having the jurisdiction to do so; (iv) the making or offering by such party of a
composition with its creditors or a general assignment for the benefit of
creditors; (v) the admission by such party of such party of its inability to pay
its debts or discharge its obligations as they become due or mature; or (vi)
that any governmental authority or agency or any person, agency or entity acting
or purporting to act under governmental authority shall have taken any action to
condemn, seize or appropriate, or to assume custody or control of, all or any
substantial part of the property of such party, or shall have taken any action
to displace the management of such party or to curtail its authority in the
conduct of the business of such party.
"Adjusted Tangible Net Worth" means, for any Person, Net Worth of
such Person plus Subordinated Debt (provided that Subordinated Debt shall not be
taken into account to the extent that it would cause Adjusted Tangible Net Worth
to be comprised of greater than 25% Subordinated Debt), minus all intangible
assets, including capitalized servicing rights, goodwill, patents, tradenames,
trademarks, copyrights, franchises, any organizational expenses, deferred
expenses, prepaid expenses, prepaid assets, receivables from shareholders,
Affiliates or employees, and any other asset as shown as an intangible asset on
the balance sheet of such Person on a consolidated basis as determined at a
particular date in accordance with GAAP.
"Administration Fee" means, with respect to each Price Differential
Payment Date, an amount equal to the product of (A) 0.25% and (B) the Purchase
Price for such Transaction, calculated daily on the basis of a 360 day year for
the actual number of days during the period commencing on (and including) the
Purchase Date for such Transaction and ending on (but excluding) the Repurchase
Date.
"Affiliate" means, with respect to any Person, any "affiliate" of
such Person, as such term is defined in the Bankruptcy Code.
"Agent" means Column Financial Inc. or any affiliate or successor
thereto.
"Agreement" means this Master Repurchase Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"ALTA" means the American Land Title Association or any successor in
interest thereto.
"Appraised Value" means the value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property or Underlying Mortgaged Property, as applicable.
"Asset File" means, the documents specified on Exhibit I, together
with any additional documents and information required to be delivered to Buyer
or its designee (including the Custodian) pursuant to this Agreement.
"Asset Purchase Agreement" means with respect to each Purchased
Asset, the agreement pursuant to which the Seller or the Mezzanine Loan
Subsidiary, as applicable, acquired such Purchased Asset, as amended.
"Asset Value" means with respect to each Eligible Asset:
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(1) on the initial Purchase Date with respect to a Purchased Asset,
the applicable Purchase Price Percentage for the related Purchased Asset
multiplied by the lesser of (a) the Market Value of such Purchased Asset and (b)
the outstanding principal balance of such Purchased Asset; and
(2) thereafter, the applicable Purchase Price Percentage for the
related Purchased Asset multiplied by the Market Value of such Purchased Asset.
(a) Without limiting the generality of the foregoing, each Seller
acknowledges that the Asset Value of a Purchased Asset may be reduced to zero by
Buyer if:
(i) such Purchased Asset ceases to be an Eligible Asset;
(ii) such Purchased Asset (other than a Purchased Asset
that is a Physical Security) has been released from the possession
of the Custodian under the Custodial Agreement for a period in
excess of 10 calendar days (unless released to the Buyer);
(iii) such Purchased Asset is a Physical Security and
has been released from the possession of the Custodian (unless
released to the Buyer);
(iv) such Purchased Asset is a Non-Performing Asset;
(v) the Buyer has determined in its sole discretion that
the Purchased Asset is not eligible for sale or securitization in a
transaction consistent with the prevailing sale and securitization
industry with respect to substantially similar assets; or
(vi) such Purchased Asset contains a material breach of
a representation or warranty made by the Seller in this Agreement or
the Custodial Agreement.
"Asset Value Margin Call" has the meaning specified in Section 6(a)
hereof.
"Asset Value Margin Deficit" has the meaning specified in Section
6(a) hereof.
"Assignment and Acceptance" has the meaning set forth in Section 22
hereof.
"Assignment of Leases" means, with respect to any Mortgage, an
assignment of leases thereunder, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
Underlying Mortgaged Property is located to reflect the assignment of leases.
"Assignment of Mortgage" means an assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to Buyer.
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"Balloon Payment" means, for any Purchased Asset for which the final
principal payment is substantially greater than periodic scheduled principal
payments due thereunder, the payment due on its maturity date.
"Bank" means Key Bank.
"Bankruptcy Code" means the United States Bankruptcy Code of 1978,
as amended from time to time.
"Breakage Costs" has the meaning set forth in Section 4(e) hereof.
"Business Day" means any day other than (i) a Saturday or Sunday;
(ii) a public or bank holiday in New York City or (iii) any day on which the New
York Stock Exchange is closed.
"Buyer" means Column Financial Inc., and any permitted successor or
assign hereunder.
"Capital Lease Obligations" means, for any Person, all obligations
of such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent equity ownership interests in a Person which is not a
corporation, including, without limitation, any and all member or other
equivalent interests in any limited liability company, and any and all warrants
or options to purchase any of the foregoing.
"Care Facility" means a congregate care facility or assisted living
facility, nursing home, hospice, hospital or other healthcare facility.
"CDO Default" means upon Credit Suisse First Boston or its Affiliate
being formally engaged by the Seller or its affiliate to enter into a CDO
Transaction and Credit Suisse First Boston or its Affiliate defaults in its
obligations under the engagement agreement.
"CDO Transaction" means a CDO transaction of the Seller or an
Affiliate of the Seller, or other investment banking activities provided by and
acceptable to the Buyer or an Affiliate of the Buyer, with respect to any of the
Purchased Assets for which Credit Suisse First Boston or an Affiliate thereof
acts as co-lead underwriter of the CDO Transaction or investment banker, as
applicable.
"Change in Control" means:
(A) any transaction or event as a result of which the Limited
Guarantor and/or Winthrop Realty Trust, Inc. ceases (i) to own,
beneficially or of record, at least 40% of the membership interests
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of Seller, or (ii) to possess, directly or indirectly, the power to
direct or cause the direction of the management and policies of
Seller, whether through ownership of voting securities, beneficial
interests, by contract or otherwise;
(B) the sale, transfer, or other disposition of all or substantially
all of Seller's assets (excluding any such action taken in
connection with any securitization transaction); or
(C) any transaction or event as a result of which the Seller ceases
to own, beneficially or of record 100% the membership interests of
the Mezzanine Loan Subsidiary;
"Closing Data Tape" means, with respect to any Transaction as of any
Purchase Date, a computer tape or other electronic medium generated by Seller,
or any of its Affiliates and delivered to Buyer and Custodian, which provides,
with respect to each Purchased Asset that is the subject of such Transaction,
each of the data fields set forth on Exhibit C attached hereto and the
information responsive to each such field, as well as any and all new, modified
or updated information with respect to such Purchased Asset that has been
provided to Buyer prior to the applicable Purchase Date and as to which the
Purchase Price or any other information set forth in the Purchase Confirmation
for such Transaction has been based, in each case in a format that has
previously been approved by Buyer and is otherwise acceptable to Buyer.
"CMBS Security" means a Security backed by Commercial Mortgage Loans
Rated no lower than B.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Amount" means the aggregate outstanding cumulative
principal balance of Commercial Mortgage Loans, (and with respect to the
Mezzanine Loan Subsidiary Interests, all Mezzanine Loans and Mezzanine Loan
Junior Interests owned by the Mezzanine Loan Subsidiary), Commercial Mortgage
Loan Junior Interests, CMBS Securities, and CRE CDO Securities sold by the Buyer
or its Affiliates to the Seller or its Affiliates during the applicable
Collateral Amount Period.
"Collateral Amount Period" means (i) the period from the Effective
Date through the date of the first CDO Transaction thereafter, (ii) the period
between each CDO Transaction and the next successive CDO Transaction and (iii)
the period from the date of the final CDO Transaction prior to the Termination
Date and the Termination Date.
"Commercial Mortgage Loan" means a Mortgage Loan (a) secured by a
first mortgage lien on an Office Building, a Retail property, a Hotel or Motel
or other commercial or multifamily property, (b) with a Loan-to-Value Ratio of
80% or less and (c) as to which the representations and warranties in Schedule
1(a) hereof are correct.
"Commercial Mortgage Loan Junior Interest" means a Junior Interest
which represents a junior "B" participation interest or certificate or a "B
note" in an A/B structure in a Commercial Mortgage Loan.
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"Competitor" mean a competitor of the Seller listed on Exhibit M
hereto, as such exhibit may be amended from time to time with the prior consent
of the Buyer.
"Complete Submission" means with respect to any Transaction, the
Summary Diligence Materials together with a Preliminary Data Tape.
"Concentration Limit" means:
(a) The aggregate Purchase Price of all Mezzanine Loans that are
Purchased Assets shall not exceed 45% of the aggregate outstanding Purchase
Price; or
(b) The aggregate Purchase Price of all CRE CDO Securities that are
Purchased Assets shall not exceed 10% of the aggregate outstanding Purchase
Price; or
(c) The aggregate Purchase Price of all CMBS Securities Rated B or
B+ (or the equivalent thereof by any Rating Agency) that are Purchased Assets
shall not exceed 20% of the aggregate outstanding Purchase Price; or
(d) The aggregate Purchase Price of all Commercial Mortgage Loans
that are secured by Hotels or Motels that are Purchased Assets shall not exceed
30% of the aggregate outstanding Purchase Price; or
(e) The aggregate Purchase Price of all Commercial Mortgage Loans
that are secured by Office Buildings that are Purchased Asset shall not exceed
50% of the aggregate outstanding Purchase Price; or
(f) The aggregate Purchase Price of all Commercial Mortgage Loans
that are secured by Retail properties that are Purchased Assets shall not exceed
50% of the aggregate outstanding Purchase Price.
"Concentration Limit Margin Call" has the meaning specified in
Section 6(b) hereof.
"Concentration Limit Margin Deficit" has the meaning specified in
Section 6(b) hereof.
"Control Account Agreement" means that certain Control Account
Agreement, dated as of the date hereof, among Buyer, Servicer and Bank, as
amended.
"CRE CDO Security" means an investment grade asset-backed security,
which security entitles the holders thereof to receive payments that depend
(except for rights or other assets designed to assure the servicing or timely
distribution of proceeds to holders of the asset-backed securities) on the cash
flow from a portfolio of commercial loans to Rated obligors Rated no lower than
B, other asset-backed securities or corporate debt securities or any combination
of the foregoing.
"Custodial Agreement" means the custodial agreement dated as of the
date hereof, among Seller, Buyer and Custodian as the same may be amended from
time to time.
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"Custodial Delivery Letter" means the form executed by Seller in
order to deliver the Purchased Asset Schedule and the Purchased Assets to the
Custodian pursuant to Section 10(b)(4), a form of which is attached hereto as
Exhibit E.
"Custodian" means LaSalle Bank National Association or such other
party specified by Buyer and agreed to by Seller, which approval shall not be
unreasonably withheld.
"Default" means an Event of Default or an event that with notice or
lapse of time or both would become an Event of Default.
"Distribution Worksheet" means a worksheet setting forth the amounts
and recipients of remittances to be made on the next succeeding Price
Differential Payment Date, substantially in the form of Exhibit K.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Due Diligence Costs" has the meaning specified in Section 36
hereof.
"Effective Date" means the date upon which the conditions precedent
set forth in Section 10 shall have been satisfied.
"Eligible Asset" means any Commercial Mortgage Loan, (and with
respect to the Mezzanine Loan Subsidiary Interests, any Mezzanine Loan or
Mezzanine Loan Junior Interest owned by the Mezzanine Loan Subsidiary),
Commercial Mortgage Loan Junior Interest, CMBS Security, or CRE CDO Security
that, in each case, is acceptable to Buyer in its sole discretion and conforms
with the applicable representations and warranties on Schedule 1.
"Environmental Law" means any federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, written policy and
rule of common law now or hereafter in effect and in each case as amended, and
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
employee health and safety or hazardous materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C. ss.
1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq.; the
Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the Safe Drinking Water Act, 42
U.S.C. ss. 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. ss. 2701 et
seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42
U.S.C. ss. 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C.
ss. 1801 et seq. and the Occupational Safety and Health Act, 29 U.S.C. ss. 651
et seq.; and any state and local or foreign counterparts or equivalents, in each
case as amended from time to time.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any corporation or trade or business that is
a member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which Seller is a member and (ii) solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, described in Section 414(m) or (o) of the Code of which Seller is a
member.
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"Event of Default" has the meaning specified in Section 15 hereof.
"Event of Termination" means with respect to Seller or Limited
Guarantor (i) with respect to any Plan, a reportable event, as defined in
Section 4043 of ERISA, as to which the PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified with 30 days of the
occurrence of such event, or (ii) the withdrawal of Seller, Limited Guarantor or
any ERISA Affiliate thereof from a Plan during a plan year in which it is a
substantial employer, as defined in Section 4001(a)(2) of ERISA, or (iii) the
failure by Seller, Limited Guarantor or any ERISA Affiliate thereof to meet the
minimum funding standard of Section 412 of the Code or Section 302 of ERISA with
respect to any Plan, including, without limitation, the failure to make on or
before its due date a required installment under Section 412(m) of the Code or
Section 302(e) of ERISA, or (iv) the distribution under Section 4041 of ERISA of
a notice of intent to terminate any Plan or any action taken by Seller, Limited
Guarantor or any ERISA Affiliate thereof to terminate any plan, or (v) the
adoption of an amendment to any Plan that, pursuant to Section 401(a)(29) of the
Code or Section 307 of ERISA, would result in the loss of tax-exempt status of
the trust of which such Plan is a part if Seller, Limited Guarantor or any ERISA
Affiliate thereof fails to timely provide security to the Plan in accordance
with the provisions of said sections, or (vi) the institution by the PBGC of
proceedings under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or (vii) the receipt by
Seller, Limited Guarantor or any ERISA Affiliate thereof of a notice from a
Multiemployer Plan that action of the type described in the previous clause (vi)
has been taken by the PBGC with respect to such Multiemployer Plan, or (viii)
any event or circumstance exists which may reasonably be expected to constitute
grounds for Seller, Limited Guarantor or any ERISA Affiliate thereof to incur
liability under Title IV of ERISA or under Sections 412(c)(11) or 412(n) of the
Code with respect to any Plan.
"Exit Fee" means an amount equal to the product of (x) the
applicable Exit Fee Rate and (y) the Purchase Price then outstanding with
respect to the related Purchased Asset.
"Exit Fee Rate" means during each Collateral Amount Period (a) on or
prior to the date on which the Collateral Amount is equal to or exceeds
$100,000,000 (the "Initial Trigger Date"), 0.25%, (b) during the period from the
Initial Trigger Date through the date on which the Collateral Amount is equal to
or exceeds $150,000,000 (the "Secondary Trigger Date"), 0.50%, and (c) during
the period after the Secondary Trigger Date, 0.75%; provided that with respect
to any Purchased Asset, Mezzanine Loan or Mezzanine Loan Junior Interest which
(a) has been subject to a Transaction hereunder for more than 360 days or (b) is
subject to a Transaction hereunder on the Termination Date, the Exit Fee Rate
shall be 0.75%.
"▇▇▇▇▇▇ ▇▇▇" means ▇▇▇▇▇▇ Mae, the government sponsored enterprise
formerly known as the Federal National Mortgage Association.
"FDIA" has the meaning set forth in Section 26(c) hereof.
"FDICIA" has the meaning set forth in Section 26(d) hereof.
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"Fidelity Insurance" means insurance coverage with respect to
employee errors, omissions, dishonesty, forgery, theft, disappearance and
destruction, robbery and safe burglary, property (other than money and
securities) and computer fraud in an aggregate amount acceptable to Seller's
regulators.
"Fitch" means Fitch Ratings, Inc., or any successor thereto.
"▇▇▇▇▇▇▇ Mac" means the Federal Home Loan Mortgage Corporation or
any successor thereto.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America and applied on a consistent basis.
"Governing Agreement" means the agreement or agreements which govern
the issuance and the payment of the Securities including without limitation a
private placement memorandum or a prospectus.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, or any entity exercising executive,
legislative, judicial, regulatory or administrative functions over Seller,
Servicer, Limited Guarantor or Buyer, as applicable.
"Ground Lease" means a lease for all or any portion of the real
property comprising the Mortgaged Property, the lessee's interest in which is
held by the Mortgagor of the related Mortgage Loan.
"Ground Lessee" means the ground lessee under a Ground Lease.
"Guarantee" means, as to any Person, any obligation of such Person
directly or indirectly guaranteeing any Indebtedness of any other Person or in
any manner providing for the payment of any Indebtedness of any other Person or
otherwise protecting the holder of such Indebtedness against loss (whether by
virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, or to take-or-pay or otherwise); provided
that the term "Guarantee" shall not include (i) endorsements for collection or
deposit in the ordinary course of business, or (ii) obligations to make
servicing advances for delinquent taxes and insurance or other obligations in
respect of a Mortgaged Property, to the extent required by Buyer. The amount of
any Guarantee of a Person shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by such Person in good faith. The
terms "Guarantee" and "Guaranteed" used as verbs shall have correlative
meanings.
"Hotel" or "Motel" means a real estate development owned by the
Mortgagor or for which the Mortgagor is a Ground Lessee, which constitutes a
full operational hotel or motel which is part of a national or regional chain or
franchise (determined by the Buyer in its sole good faith discretion), including
all land, amenities and improvements, with individual rooms principally for
short-term rental to tenants occupying same.
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"Income" means with respect to any Purchased Asset at any time until
repurchased by the Seller, any principal received thereon or in respect thereof
and all interest, dividends or other distributions thereon.
"Indebtedness" means, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business, so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
Indebtedness so secured has been assumed by such Person; (d) obligations
(contingent or otherwise) of such Person in respect of letters of credit or
similar instruments issued or accepted by banks and other financial institutions
for the account of such Person; (e) Capital Lease Obligations of such Person;
(f) obligations of such Person under repurchase agreements, sale/buy-back
agreements or like arrangements; (g) Indebtedness of others Guaranteed by such
Person; (h) all obligations of such Person incurred in connection with the
acquisition or carrying of fixed assets by such Person; and (i) Indebtedness of
general partnerships of which such Person is a general partner.
"Indemnified Party" has the meaning set forth in Section 30(a)
hereof.
"Industrial Property" means a property owned by the Mortgagor or for
which the Mortgagor is a Ground Lessee, which constitutes a full operational
property, held partially or principally for lease to commercial tenants in
connection with manufacturing.
"Interest Rate Protection Agreement" means, with respect to any or
all of the Purchased Assets, any short sale of a US Treasury Security, or
futures contract, or mortgage related security, or Eurodollar futures contract,
or options related contract, or interest rate swap, cap or collar agreement, or
similar arrangement providing for protection against fluctuations in interest
rates or the exchange of nominal interest obligations, either generally or under
specific contingencies, entered into by Seller and a party acceptable to Buyer
in its sole discretion, which agreement is acceptable to Buyer in its sole
discretion.
"Junior Interest" means (a) a junior "B" participation interest or
certificate in a Commercial Mortgage Loan or Mezzanine Loan or (b) a "B note" in
an A/B structure of a Commercial Mortgage Loan or Mezzanine Loan, in each case
with a Loan-to-Value Ratio of 75% or less and as to which the representations
and warranties in Schedule 1(b) hereof are correct.
"Knowledge" means, with respect to Seller, Mezzanine Loan
Subsidiary, and Limited Guarantor, the actual knowledge of any of ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇
▇▇▇▇▇▇▇.
-10-
"LIBOR Period" means, with respect to each Price Differential
Payment Date, the period from and including the immediately preceding Price
Differential Payment Date (or, with respect to the first LIBOR Period for the
Transaction, from and including the Purchase Date) to but excluding such Price
Differential Payment Date, unless otherwise agreed to by the Buyer and the
Seller in writing.
"LIBOR" means, with respect to each day during the applicable LIBOR
Period, the rate per annum equal to the one month London Inter-Bank Offered Rate
for United States Dollar deposits as reported on the display designated as
"BBAM" "Page 1229a" on Bloomberg (or such other display as may replace "BBAM"
"Page 1229a" on Bloomberg), as of 8:00 a.m., New York City time, on the date two
Business Days prior to the commencement of such LIBOR Period, and if such rate
shall not be so quoted, or if the related LIBOR Period shall be less than one
month, the rate per annum at which the Buyer or its Affiliate is offered dollar
deposits at or about 8:00 a.m., New York City time, on the date two Business
Days prior to the commencement of the such LIBOR Period, by prime banks in the
interbank eurodollar market where the eurodollar and foreign currency exchange
operations in respect of its Transactions are then being conducted for delivery
on such day for a period of one month or such other period as agreed upon in
writing by the Buyer and the Seller and in an amount comparable to the amount of
the Transactions outstanding on such day.
"Lien" means any mortgage, lien, pledge, charge, security interest
or similar encumbrance.
"Limited Guarantor" means ▇▇▇▇▇▇▇ Realty Trust, Inc., in its
capacity as guarantor under the Limited Guaranty.
"Limited Guaranty" means the guaranty of the Limited Guarantor dated
as of the date hereof as the same may be amended from time to time.
"Limited Liability Company Agreement" shall mean the organizational
documents governing any Mezzanine Loan Subsidiary as contemplated by this
Repurchase Agreement.
"Loan Security Agreement" means as to any Purchased Asset, any
contract, instrument or other document related to security for repayment thereof
(other than in the case of a Mortgage Loan, the related Mortgage and Mortgage
Note), executed by the obligor and/or others in connection with such Purchased
Asset in favor of the Seller, including without limitation, any security
agreement, guaranty, title insurance policy, hazard insurance policy, chattel
mortgage, letter of credit or certificate of deposit or other pledged accounts,
and any other documents and records relating to any of the foregoing.
"Loan-to-Value Ratio" means with respect to any Eligible Asset, the
ratio of the current outstanding principal amount of the Eligible Asset to the
lesser of (a) the Appraised Value of the Mortgaged Property or Underlying
Mortgaged Property at origination or (b) if the Mortgaged Property or Underlying
Mortgaged Property was purchased within 12 months of the origination of the
Eligible Asset, the purchase price of the Mortgaged Property or Underlying
Mortgaged Property.
-11-
"Margin Call" has the meaning specified in Section 6(c) hereof.
"Margin Deadline" has the meaning specified in Section 6(d) hereof.
"Margin Deficit" has the meaning specified in Section 6(c) hereof.
"Market Value" means, as of any date with respect to any Purchased
Asset, the price at which such Purchased Asset could readily be sold as
determined by the Buyer in its sole discretion exercised in good faith For
purposes of determining the Market Value of the Mezzanine Loan Subsidiary
Interests, the Buyer shall use the aggregate Market Value of the Mezzanine Loans
and Mezzanine Loan Junior Interests owned by the Mezzanine Loan Subsidiary. If a
good faith determination of the Market Value of a Purchased Asset by the Buyer
results in a reduction in the Market Value of a Purchased Asset to a level which
is not commercially reasonable, the Seller may repurchase such Purchased Asset
without payment of an Exit Fee pursuant to Section 34.
"Material Adverse Effect" means (a) a material adverse change in, or
a material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of Seller, Limited Guarantor or any
Affiliate that is a party to any Program Agreement taken as a whole; (b) a
material impairment of the ability of Seller, Limited Guarantor or any Affiliate
that is a party to any Program Agreement to perform under any Program Agreement
and to avoid any Event of Default; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability of any Program Agreement
against Seller, Limited Guarantor or any Affiliate that is a party to any
Program Agreement.
"Maximum Aggregate Purchase Price" means THREE HUNDRED MILLION
DOLLARS ($300,000,000).
"Mezzanine Borrower" has the meaning set forth in paragraph 13 of
Schedule 1(c).
"Mezzanine Collateral" means the collateral pledged in respect of a
Mezzanine Loan.
"Mezzanine Loan" means a loan (a) purchased by the Mezzanine Loan
Subsidiary, (b) (i) secured by a second mortgage lien on commercial real
property to an entity that directly owns such commercial real property, or (ii)
to an entity owning an interest in a special purpose entity that directly owns
commercial real property and such loan is secured by a pledge of excess cash
flow after first mortgage debt service or equity interests in the owner of such
commercial real property, (c) with a Loan-to-Value Ratio of 85% or less and (d)
as to which the representations and warranties in Schedule 1(c) hereof are
correct.
"Mezzanine Loan Junior Interest" means a Junior Interest which
represents a junior "B" participation interest or certificate or a "B note" in
an A/B structure in a Mezzanine Loan.
"Mezzanine Loan Documents" means the documentation governing a
Mezzanine Loan.
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"Mezzanine Loan Subsidiary" shall mean 111 Debt Acquisition Mezz LLC
a wholly owned Subsidiary of the Seller that is a Special Purpose Entity formed
for the sole purpose of holding Mezzanine Loans and Mezzanine Loan Junior
Interests.
"Mezzanine Loan Subsidiary Agreement" shall mean that certain
Mezzanine Loan Subsidiary Agreement, dated as of March 30, 2006, executed and
delivered by a duly authorized officer of the Mezzanine Loan Subsidiary in favor
of the Buyer.
"Mezzanine Loan Subsidiary Interests" shall mean any and all of
Seller's interests, including units of membership interest, in Mezzanine Loan
Subsidiary including, without limitation, all its rights to participate in the
operation or management of Mezzanine Loan Subsidiary and all its rights to
properties, assets, member interests and distributions under the Limited
Liability Company Agreement in respect of such member interests. "LLC Interests"
also include (i) all accounts receivable arising out of the applicable Limited
Liability Company Agreement; (ii) all general intangibles arising out of the
applicable Limited Liability Company Agreement; and (iii) to the extent not
otherwise included, all proceeds of any and all the foregoing (including within
proceeds, whether or not otherwise included therein, and any and all contractual
rights of the Seller under any revenue sharing or similar agreement to receive
all or any portion of the revenues or profits of such Mezzanine Loan Subsidiary
).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successors
thereto.
"Mortgage" means, with respect to each Mortgage Loan, each mortgage,
assignment of rents, security agreement and fixture filing, or deed of trust,
assignment of rents, security agreement and fixture filing, deed to secure debt,
assignment of rents, security agreement and fixture filing, or similar
instrument creating and evidencing a lien on real property and other property
and rights incidental thereto.
"Mortgage Interest Rate" means the rate of interest borne on a
Mortgage Loan from time to time in accordance with the terms of the related
Mortgage Note.
"Mortgage Loan" means a Commercial Mortgage Loan or a Junior
Interest in a Commercial Mortgage Loan.
"Mortgage Note" means the promissory note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
"Mortgaged Property" means the real property securing repayment of
the debt evidenced by a Mortgage Note.
"Mortgagor" means the obligor or obligors on a Mortgage Note,
including any person who has assumed or guaranteed the obligations of the
obligor thereunder.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been or are required to be
made by Seller or any ERISA Affiliate and that is covered by Title IV of ERISA.
-13-
"Net Worth" means, with respect to any Person, an amount equal to,
on a consolidated basis, such Person's stockholder equity (determined in
accordance with GAAP).
"Non-Performing Asset" means (i) any Eligible Asset for which any
payment of principal or interest is more than twenty-nine (29) days past due,
(ii) any Eligible Asset with respect to which the related obligor is in
bankruptcy or (iii) any Eligible Asset (other than Securities) with respect to
which the related Mortgaged Property is in foreclosure.
"Notice Date" has the meaning given to it in Section 3(b) hereof.
"Obligations" means (a) all of Seller's indebtedness, obligations to
pay the Repurchase Price on the Repurchase Date, the Price Differential on each
Price Differential Payment Date, and other obligations and liabilities, to
Buyer, its Affiliates or Custodian arising under, or in connection with, the
Program Agreements, whether now existing or hereafter arising; (b) any and all
sums paid by Buyer or on behalf of Buyer in order to preserve any Purchased
Asset or its interest therein; (c) in the event of any proceeding for the
collection or enforcement of any of Seller's indebtedness, obligations or
liabilities referred to in clause (a), the reasonable expenses of retaking,
holding, collecting, preparing for sale, selling or otherwise disposing of or
realizing on any Purchased Asset, or of any exercise by Buyer of its rights
under the Program Agreements, including, without limitation, reasonable
attorneys' fees and disbursements and court costs; and (d) all of Seller's
indemnity obligations to Buyer or Custodian or both pursuant to the Program
Agreements.
"OFAC" has the meaning set forth in Section 13(a)(26) hereof.
"Office Building" means a building owned by the Mortgagor or for
which the Mortgagor is a Ground Lessee, which constitutes a full operational
office building, including all land, amenities and improvements, with individual
office space held principally for lease to commercial tenants and not
principally for lease to recreational or residential tenants.
"PBGC" means the Pension Benefit Limited Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Amount" means, the lesser of (a) one percent (1%) of the
aggregate outstanding Purchase Price and (b) ONE MILLION DOLLARS ($1,000,000).
"Permitted Investments" means any one or more of the following
obligations or securities having at the time of purchase, or at such other time
as may be specified, the required ratings, if any, provided for in this
definition:
(a) direct obligations of, or guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality thereof; provided that such obligations are backed by the full
faith and credit of the United States of America;
(b) direct obligations of, or guaranteed as to timely payment of
principal and interest by, ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇ or the Federal Farm Credit
System, provided that any such obligation, at the time of purchase or
contractual commitment providing for the purchase thereof, is qualified by any
rating agency as an investment of funds backing securities rated at least "AA"
(or such comparable rating);
-14-
(c) demand and time deposits in or certificates of deposit of, or
bankers' acceptances issued by, any bank or trust company, savings and loan
association or savings bank, provided that, in the case of obligations that are
not fully FDIC-insured deposits, the commercial paper or long-term unsecured
debt obligations of such depository institution or trust company (or in the case
of the principal depository institution in a holding company system, the
commercial paper or long-term unsecured debt obligations of such holding
company) have one of the two highest rating available for such securities by any
rating agency;
(d) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving one of the two highest
long-term debt rating available for such securities by any rating agency; and
(e) commercial or finance company paper (including both
non-interest-bearing discount obligations and interest-bearing obligations
payable on demand or on a specified date not more than one year after the date
of issuance hereof) that is rated by any rating agency in highest short-term
unsecured rating category at the time of such investment, and is issued by a
corporation the outstanding senior long-term debt obligations of which are then
rated by any such rating agency in one of its two highest short-term unsecured
rating category and its highest long-term unsecured rating category.
provided, however, that no instrument shall be a Permitted
Investment if it represents, (1) the right to receive only interest payments
with respect to the underlying debt instrument, (2) the right to receive both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity greater than 120% of the yield to
maturity at par of such underlying obligations, (3) an obligation that has a
remaining maturity of greater than three hundred sixty-five (365) days from the
date of acquisition thereof. If an obligation is rated by S&P, then such
obligation must be limited to those instruments that have a predetermined fixed
dollar of principal due at maturity that cannot vary or change or, if rated, the
obligation should not have an "r" highlighter affixed to its rating, and
interest thereon may either be fixed or variable and should be tied to a single
interest rate index plus a single fixed spread (if any) and move proportionately
with that index.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Physical Security" means a Security issued in definitive form that
are not registered on a Relevant System.
"Plan" means an employee benefit or other plan established or
maintained by any Seller or any ERISA Affiliate and covered by Title IV of
ERISA, other than a Multiemployer Plan.
"PML" has the meaning set forth in paragraph 22 of Schedule 1(a).
-15-
"Post Default Rate" means an annual rate of interest equal to the
greater of (a) the Pricing Rate plus 3.5% or (b) the Mortgage Interest Rate.
"Preliminary Data Tape" means a preliminary version of the Closing
Data Tape, which shall be attached to the Summary Diligence Materials as part of
the Complete Submission.
"Price Differential" means with respect to any Transaction as of any
date of determination, an amount equal to the product of (A) the Pricing Rate
for such Transaction and (B) the Purchase Price for such Transaction, calculated
daily on the basis of a 360-day year for the actual number of days during the
period commencing on (and including) the Purchase Date for such Transaction and
ending on (but excluding) the Repurchase Date.
"Price Differential Payment Date" means, with respect to a Purchased
Asset, the 15th day of the month following the related Purchase Date and each
succeeding 15th day of the month thereafter; provided, that, with respect to
such Purchased Asset, the final Price Differential Payment Date shall be the
related Repurchase Date; and provided, further, that if any such day is not a
Business Day, the Price Differential Payment Date shall be the next succeeding
Business Day.
"Pricing Rate" means LIBOR plus:
(a) 0.60% with respect to Transactions the subject of which
are Commercial Mortgage Loans;
(b) 0.75% with respect to Transactions the subject of which
are CDO Securities;
(c) 0.75% with respect to Transactions the subject of which
are CMBS Securities Rated no less than BBB-;
(d) 1.00% with respect to Transactions the subject of which
are CMBS Securities Rated at least B to BB+;
(e) 1.00% with respect to Transactions the subject of which
are Junior Interests;
(f) 1.00% with respect to Transactions the subject of which
are Mezzanine Loans;
The Pricing Rate shall change in accordance with LIBOR, as provided
in Section 5(a).
"Principal Prepayment" means, for any Purchased Asset, (i) any
amount applied to reduce the principal or other invested amount of such
Purchased Asset, other than a scheduled principal payment, including (i)
principal prepayments from any source and of any nature whatsoever, (ii) net
insurance or net condemnation proceeds, to the extent applied to reduce the
principal amount or other invested amount of the related Purchased Asset, and
(iii) any net proceeds from any sale, refinancing, liquidation or other
disposition of the underlying real property or interest relating to such
Purchased Asset to the extent applied to reduce the principal amount or the
invested amount of the related Purchased Asset.
-16-
"Program Agreements" means, collectively, the Servicer Notice, the
Custodial Agreement, this Agreement, the Limited Guaranty, the Control Account
Agreement, the Mezzanine Loan Subsidiary Acknowledgment, the Mezzanine Loan
Subsidiary Agreement, and all executed Purchase Confirmations.
"Prohibited Person" has the meaning set forth in Section 13(a)(26)
hereof.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Purchase Confirmation" means a confirmation of a Transaction, in
the form attached as Exhibit B hereto.
"Purchase Date" means the date on which Purchased Assets are to be
transferred by Seller or Mezzanine Loans or Mezzanine Loan Junior Interest are
to be pledged by the Mezzanine Loan Subsidiary to the Buyer.
"Purchase Price" means:
(a) on the Purchase Date, the price at which each Purchased Asset is
transferred by Seller to Buyer which shall equal the Asset Value of such
Purchased Asset on such Purchase Date minus any amounts required to be applied
pursuant to Sections 6(b) or (c); and
(b) on any day after the Purchase Date, except where Buyer and the
Seller agree otherwise, the amount determined under the immediately preceding
clause (a) decreased by the amount of any cash transferred by the Seller to
Buyer pursuant to Section 4(d) hereof or applied to reduce the Seller's
obligations under clause (ii) of Section 4(c) hereof or under Section 6 hereof.
"Purchase Price Decrease" shall mean a decrease in the Purchase
Price for the Mezzanine Loan Subsidiary Interests related to the removal of
Mezzanine Loans or Mezzanine Loan Junior Interests from the Mezzanine Loan
Subsidiary, and the decrease in value of the Mezzanine Loan Subsidiary Interests
related thereto.
"Purchase Price Increase" shall mean an increase in the Purchase
Price for the Mezzanine Loan Subsidiary Interests based upon Mezzanine Loan
Subsidiary acquiring an additional Mezzanine Loan or Mezzanine Loan Junior
Interest, as requested by Seller pursuant to Section 3(b) hereof.
"Purchase Price Percentage" means, with respect to each Eligible
Asset, the following percentage, as applicable:
(a) 70% with respect to Purchased Assets that are CMBS Securities
Rated at least B to BB+;
-17-
(b) 70% with respect to Purchased Assets that are Junior Interests;
(c) 70% with respect to Purchased Assets that are Mezzanine Loans;
(d) 75% with respect to Purchased Assets that are CDO Securities;
(e) 80% with respect to Purchased Assets that are CMBS Securities
Rated no less than BBB-; and
(f) 85% with respect to Purchased Assets that are Commercial
Mortgage Loans.
"Purchased Asset Schedule" means with respect to any Transaction as
of any date, a schedule in the form of Annex 1 to Exhibit A attached hereto. The
Purchased Asset Schedule shall be attached to each Trust Receipt and Custodial
Delivery Letter.
"Purchased Assets" means the collective reference to Eligible Assets
(other than Mezzanine Loans or Mezzanine Loan Junior Interests) and Mezzanine
Loan Subsidiary Interests, together with the Repurchase Assets related to such
Eligible Assets transferred by Seller to Buyer in a Transaction hereunder,
listed on the related Closing Data Tape attached to the related Transaction
Request; provided, that for purposes other than the sale or pledge of the
Purchased Assets, in the case of the Mezzanine Loan Subsidiary Interests,
Purchased Assets shall be deemed to include any and all Mezzanine Loans and
Mezzanine Loan Junior Interests owned by the Mezzanine Loan Subsidiary.
"Ramp-up Trigger Date" means the earlier of (a) the date which is 90
days after the initial Purchase Date hereunder and (b) the date on which the
outstanding Repurchase Price hereunder first exceeds $150,000,000.
"Rated" means the rating of an Eligible Asset by a Rating Agency
without regard to any pluses and minuses reflecting gradations within any
generic grades.
"Rating Agency" means any of S&P, Moody's or Fitch.
"Rating Margin Call" has the meaning specified in Section 6(c)
hereof.
"Rating Margin Deficit" has the meaning specified in Section 6(c)
hereof.
"Records" means all instruments, agreements and other books,
records, and reports and data generated by other media for the storage of
information maintained by Seller, Limited Guarantor, Servicer or any other
person or entity with respect to a Purchased Asset. Records shall include the
Mortgage Notes, any Mortgages, the Asset Files, the credit files related to the
Purchased Asset and any other instruments necessary to document or service a
Mortgage Loan.
"REIT" means a real estate investment trust, as defined in Section
856 of the Code.
-18-
"Relevant System" means (a) The Depository Trust Corporation in New
York, New York, or (b) such other applicable clearing organization or book-entry
system located in the United States, in either case based upon the system
pursuant to which the related Purchased Assets may be held in book-entry form.
"REMIC" means a real estate mortgage investment conduit, within the
meaning of Section 860D(a) of the Code.
"REMIC Provisions" means provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of subchapter M of Chapter 1 of the Code, and related
provisions, and regulations (including any applicable proposed regulations) and
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"Reporting Date" means the 15th day of each month or, if such day is
not a Business Day, the next succeeding Business Day.
"Repurchase Assets" has the meaning assigned thereto in Section 8
hereof.
"Repurchase Date" means the earlier of (i) the Termination Date,
(ii) the date set forth in the applicable Purchase Confirmation or (iii) the
date determined by application of Section 16 hereof.
"Repurchase Price" means the price at which Purchased Assets are to
be transferred from Buyer to Seller upon termination of a Transaction, which
will be determined in each case (including Transactions terminable upon demand)
as the sum of the Purchase Price and the accrued but unpaid Price Differential
as of the date of such determination.
"Requirement of Law" means, with respect to any Person, any law,
treaty, rule or regulation or determination of an arbitrator, a court or other
governmental authority, applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Responsible Officer" means as to any Person, the chief executive
officer or, with respect to financial matters, the chief financial officer of
such Person.
"Retail" means a property owned by the Mortgagor or for which the
Mortgagor is a Ground Lessee, which constitutes a full operational retail store,
held principally for lease to a commercial retail tenant within a shopping
center or mall and not principally for lease to recreational or residential
tenants.
"Rolling Termination Date" means, as of any date, the date which is
364 days from such date; provided, that on and after the earlier of (i) the
date, if any, on which the Buyer delivers to the Seller written notice that the
Buyer shall no longer roll the Rolling Termination Date forward (the "Rolling
Termination Notice Date"), or (ii) the date that is two (2) years after the
Effective Date, the Rolling Termination Date shall be fixed at the date that is
three (3) years after the Effective Date.
-19-
"S&P" means Standard & Poor's Ratings Services, or any successor
thereto.
"SEC" means the Securities and Exchange Commission, or any successor
thereto.
"Security" means a CRE CDO Security or a CMBS Security and as to
which the representations and warranties in Schedule 1(d) hereof are correct.
"Securities Account" means the account established by the Servicer
for the benefit of Buyer, into which all collections and proceeds on or in
respect of the Purchased Assets shall be deposited by Servicer, and which is
subject to the Control Account Agreement.
"Seller" means 111 Debt Acquisition LLC or its permitted successors
and assigns.
"Servicer" means Winthrop Realty Partners or any other servicer
approved by Buyer in its sole discretion, which may be Seller.
"Servicer Notice" means the notice acknowledged by the Servicer
substantially in the form of Exhibit H hereto.
"Servicing Report" means a report remitted by the Servicer monthly,
substantially in the form of Exhibit L hereto.
"Servicing Standard" shall have the meaning specified in Section
12(a).
"SIPA" means the Securities Investor Protection Act of 1970, as
amended from time to time.
"Special Purpose Entity" shall mean a Person, other than an
individual, which is formed or organized solely for the purpose of holding,
directly or indirectly, an ownership interest in one or more Mezzanine Loans or
Mezzanine Loan Junior Interests, does not engage in any business unrelated to
the Mezzanine Loans or Mezzanine Loan Junior Interests, does not have any assets
other than as otherwise expressly permitted by this Repurchase Agreement, has
its own separate books and records and will not commingle its funds in each case
which are separate and apart from the books, records or funds, as applicable, of
any other Person, and is subject to all of the limitations on the powers set
forth in the organizational documentation of the Seller or such Mezzanine Loan
Subsidiary, as the case may be, as in effect on each Purchase Date, and holds
itself out as a Person separate and apart from any other Person and otherwise
complies with all of the covenants set forth in Section 14(x).
"Statement Date" has the meaning set forth in Section 13(a)(5)
hereof.
"Subordinated Debt" means, Indebtedness of Seller which is (i)
unsecured, (ii) no part of the principal of such Indebtedness is required to be
paid (whether by way of mandatory sinking fund, mandatory redemption, mandatory
prepayment or otherwise) prior to the date which is one year following the
Termination Date and (iii) the payment of the principal of and interest on such
Indebtedness and other obligations of Seller in respect of such Indebtedness are
subordinated to the prior payment in full of the principal of and interest
(including post-petition obligations) on the Transactions and all other
obligations and liabilities of Seller to Buyer hereunder on terms and conditions
approved in writing by Buyer and all other terms and conditions of which are
satisfactory in form and substance to Buyer.
-20-
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"Summary Diligence Materials" means the items described on Annex 2
to Exhibit A hereto for each Eligible Asset proposed to be sold to Buyer in
accordance with, and subject to the terms and conditions of, this Agreement.
"Termination Date" means the earlier of (a) the Rolling Termination
Date, and (b) the date of the occurrence of an Event of Default.
"Testing Date" has the meaning set forth in paragraph 26 of Schedule
1(a).
"Third Party Servicer" means any servicer of the Purchased Assets or
a portion thereof, other than the Servicer who is the primary servicer and
administrator of the Purchased Assets.
"Title Exceptions" has the meaning set forth in paragraph 17 of
Schedule 1(a).
"Transaction" has the meaning set forth in Section 1 hereof.
"Transaction Request" means a request from Seller to Buyer, in the
form attached as Exhibit A hereto, to enter into a Transaction.
"Trust Receipt" means a trust receipt, substantially in the form
attached hereto as Exhibit J, issued by Custodian to Buyer confirming the
Custodian's possession of certain Asset Files which are the property of and held
by Custodian for the benefit of Buyer (or any other holder of such trust
receipt) or a bailment arrangement with counsel or other third party acceptable
to Buyer in its sole and absolute discretion.
"Underlying Mortgage Loan" means, with respect to any Junior
Interest, Mezzanine Loan, CMBS Security or CRE CDO Security, a mortgage loan
made in respect of the related Underlying Mortgaged Property.
"Underlying Mortgaged Property" means in the case of any:
(a) Commercial Mortgage Loan, the Mortgaged Property securing such
Commercial Mortgage Loan;
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(b) Junior Interest, the Mortgaged Property securing the Mortgage
Loan in which such Junior Interest represents a junior participation (if the
Junior Interest is of the type described in clause (a) of the definition
thereof) or the Mortgaged Property securing such Junior Interest (if the Junior
Interest is of the type described in clause (b) of the definition thereof);
(c) Mezzanine Loan, the Mortgaged Property that is (i) encumbered by
the second lien mortgage securing such Mezzanine Loan, or (ii) owned by the
Person the Capital Stock of which is pledged as collateral security for such
Mezzanine Loan, as applicable;
(d) CMBS Security, the Mortgaged Property securing the Underlying
Mortgage Loans related to such security; and
(e) CRE CDO Security, the Mortgaged Property securing the Underlying
Mortgage Loans related to such security.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect on the date hereof in the State of New York or the Uniform Commercial
Code as in effect in the applicable jurisdiction.
3. Program; Initiation of Transactions
a. From time to time, in the sole discretion of Buyer, Buyer may
purchase from Seller certain Eligible Assets that have been
purchased by Seller. All Purchased Assets shall be serviced by
Servicer in accordance with the Servicing Standard subject to the
Buyer's rights herein. The aggregate Purchase Price of Purchased
Assets subject to outstanding Transactions shall not exceed the
Maximum Aggregate Purchase Price.
b. With respect to each Transaction Seller shall give Buyer and
Custodian at least 10 Business Days' prior notice of any proposed
Purchase Date (the date on which such notice is given, the "Notice
Date"). On the Notice Date, Seller shall (i) request that Buyer
enter into a Transaction by furnishing to Buyer a Transaction
Request accompanied by a Complete Submission and (ii) deliver to
Buyer and Custodian a proposed Purchased Asset Schedule. In the
event the Purchased Asset Schedule provided by Seller contains
erroneous computer data, is not formatted properly or the computer
fields are otherwise improperly aligned, Buyer shall provide written
or electronic notice to Seller describing such error and Seller
shall correct the computer data, reformat the Eligible Assets or
properly align the computer fields. The Seller shall hold Buyer
harmless for such correction, reformatting or realigning, as
applicable.
c. With respect to each Transaction which Seller requests to enter
into simultaneously with the purchase by the Seller or the Mezzanine
Loan Subsidiaries of the related Purchased Assets, Mezzanine Loans
or Mezzanine Loan Junior Interests, Seller and the Buyer shall
cooperate in entering into a document and funding escrow arrangement
acceptable to the Buyer in its sole discretion.
-22-
d. Following receipt of a Transaction Request and a Complete
Submission, Buyer shall, as hereinafter provided, inform Seller of
its election to purchase any Eligible Assets proposed to be sold to
Buyer by Seller hereunder. Buyer shall have the right to review all
Eligible Assets proposed to be sold to Buyer and conduct its own due
diligence investigation of such Eligible Assets as Buyer determines.
Buyer shall conduct its diligence review within the following time
frame beginning on the Business Day following receipt of the
Complete Submission: in the case of a proposed Transaction of (i) up
to five (5) Eligible Assets, ten (10) Business Days; (ii) more than
five (5) but no more than twenty-five (25) Eligible Assets, twenty
(20) Business Days, and (iii) more than twenty-five (25) Eligible
Assets, a time frame to be mutually agreed upon by Buyer and Seller.
If, with respect to any Eligible Asset, Buyer does not respond to
Seller within the time frames specified in the preceding sentence,
Buyer shall be deemed to have elected not to purchase such Eligible
Asset. Upon completion of its review, Buyer shall in its sole
discretion determine whether to purchase such Eligible Assets or
provide a Purchase Price Increase with respect to the related
Mezzanine Loans or Mezzanine Loan Junior Interests purchased by the
Mezzanine Loan Subsidiary and consistent with this Agreement,
specify the terms for such proposed Transaction, including the
Purchase Price or Purchase Price Increase, Purchase Price
Percentage, the Asset Value, the Pricing Rate, and the Repurchase
Date for such Transaction. The terms thereof shall be set forth in
the Purchase Confirmation to be delivered to Seller on or prior to
the Purchase Date.
e. Upon the satisfaction of the applicable conditions precedent set
forth in Section 10 hereof, all of Seller's interest in the
Repurchase Assets shall pass to Buyer on the Purchase Date, against
the transfer of the Purchase Price or Purchase Price Increase to
Seller. Upon transfer of the Purchased Assets to Buyer as set forth
in this Section and until termination of any related Transactions as
set forth in Sections 4 or 16 of this Agreement, ownership of each
Purchased Asset, including each document in the related Asset File
and Records, is vested in Buyer; provided that, prior to the
recordation by the Custodian as provided for in the Custodial
Agreement record title in the name of Seller to each Purchased Asset
(other than with respect to Securities) shall be retained by Seller
on behalf of, and for the benefit of Buyer, for the sole purpose of
facilitating the servicing and the supervision of the servicing of
the Purchased Assets.
f. Upon transfer of the Mezzanine Loan Subsidiary Interests to Buyer
as set forth herein and until termination of any related
Transactions as set forth herein, ownership of the Mezzanine Loan
Subsidiary Interests is vested in the Buyer, and record title to
each Mezzanine Loan and each Mezzanine Loan Junior Interest shall be
retained by Mezzanine Loan Subsidiary Interests or a Servicer for
liquidation purposes, for the benefit of Buyer.
g. 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.
-23-
4. Repurchase
a. Seller shall repurchase the related Purchased Assets from Buyer
on each related Repurchase Date for the related Repurchase Price.
Such obligation to repurchase exists without regard to any prior or
intervening liquidation or foreclosure with respect to any Purchased
Asset (but liquidation or foreclosure proceeds received by Buyer
shall be applied to reduce the Repurchase Price for such Purchased
Asset on each Price Differential Payment Date except as otherwise
provided herein). Seller is obligated to repurchase and take
physical possession of the Purchased Assets from Buyer or its
designee (including the Custodian) at Seller's expense on the
related Repurchase Date.
b. Provided that no Event of Default shall have occurred and is
continuing, and Buyer has received the related Repurchase Price upon
repurchase of the Purchased Assets, Buyer agrees to release its
ownership interest hereunder in the Purchased Assets (including, the
Repurchase Assets related thereto) at the request of Seller and
concurrently with such release, Buyer shall be deemed to have
transferred its ownership interest in such Purchased Assets to the
Seller. Buyer agrees to deliver to Seller such instruments of
further assurance as Seller may reasonably request to evidence such
transfer.
c. With respect to prepayments in full or part by the related
Mortgagor or obligor of a Purchased Asset, Mezzanine Loan or
Mezzanine Loan Junior Interest, Seller agrees to (i) provide Buyer
with a copy of a report from the related Servicer indicating that
such Purchased Asset, Mezzanine Loan or Mezzanine Loan Junior
Interest has been paid in full or part, (ii) pay to Buyer the
portion of the Repurchase Price payable pursuant to Paragraph 4(a)
above within one Business Day of receipt of such prepayment and
(iii) provide Buyer a notice specifying each Purchased Asset,
Mezzanine Loan or Mezzanine Loan Junior Interest that has been
prepaid. With respect to Purchased Assets, Mezzanine Loans or
Mezzanine Loan Junior Interests being serviced by Third Party
Servicers, the Seller or Mezzanine Loan Subsidiary, as applicable,
and Servicer shall forward all payments to the Buyer to the extent
received from the underlying obligor and Third Party Servicer. Buyer
agrees to release its ownership interest in Purchased Assets,
Mezzanine Loans or Mezzanine Loan Junior Interests which have been
prepaid in full after receipt of evidence of compliance with clauses
(i) through (iii) of the second preceding sentence, and concurrently
with such release, Buyer shall be deemed to have transferred its
ownership interest in such Purchased Assets to the Seller. Buyer
agrees to deliver to Seller such instruments of further assurance as
Seller may reasonably request to evidence such transfer.
-24-
d. The Seller may voluntarily repurchase Purchased Assets or request
a Purchase Price Decrease without penalty or premium on any Business
Day. If the Seller intends to make such a repurchase or Purchase
Price Decrease, the Seller shall give two (2) Business Days' prior
written notice thereof to the Buyer, designating the Purchased
Assets, Mezzanine Loans or Mezzanine Loan Junior Interests to be
repurchased, which notice is irrevocable if not revoked prior to the
date one (1) Business Day prior to the proposed Repurchase Date. If
such notice is given and not revoked, the amount specified in such
notice shall be due and payable on the date specified therein, and,
on receipt, such amount shall be applied to the Repurchase Price for
the designated Purchased Assets. Buyer agrees to release its
ownership interest in Purchased Assets, or release its security
interest in the Mezzanine Loans and Mezzanine Loan Junior Interests,
immediately upon receipt of such Repurchase Price, and concurrently
with such release, Buyer shall be deemed to have transferred its
ownership interest in such Purchased Assets to the Seller. Buyer
agrees to deliver to Seller such instruments of further assurance as
Seller may reasonably request to evidence such transfer
e. If the Seller repurchases, in whole or in part, or causes a
Purchase Price Decrease with respect to, Purchased Assets, Mezzanine
Loans or Mezzanine Loan Junior Interests on any day which is not the
Repurchase Date or a Price Differential Payment Date (as determined
at the time the Buyer locked in the rate of LIBOR) for such
Purchased Assets, the Seller shall indemnify the Buyer and hold the
Buyer harmless from any losses, costs and/or expenses which the
Buyer sustains or incurs arising from the reemployment of funds
obtained by the Buyer hereunder or from fees payable to terminate
the deposits from which such funds were obtained, in each case for
the remainder of the applicable 30-day period ("Breakage Costs").
The Buyer shall deliver to the Seller a statement setting forth the
amount and basis of determination of any Breakage Costs in
reasonable detail, it being agreed that such statement and the
method of its calculation shall be conclusive and binding upon the
Seller, absent manifest error.
5. Price Differential
a. The Pricing Rate shall be reset with respect to each Libor Period
that a Transaction is outstanding, and, unless otherwise agreed, the
accrued and unpaid Price Differential shall be settled in cash on
the related Price Differential Payment Date immediately following
such Libor Period. Two Business Days prior to the Price Differential
Payment Date, Buyer shall give Seller written or electronic notice
of the amount of the Price Differential due on such Price
Differential Payment Date. On the Price Differential Payment Date,
Seller shall pay to Buyer (to the extent not paid on such date
through the distributions required pursuant to Sections 7(d), 7(e)
or 34 hereof) the accrued but unpaid Price Differential and the
accrued but unpaid Administration Fee for such Price Differential
Payment Date, by wire transfer in immediately available funds.
b. If Seller fails to pay (through Sections 7(d), 7(e), 34 or the
preceding clause (a)), all or part of the Price Differential by 3:00
p.m. (New York City time) on the related Price Differential Payment
Date, with respect to any Purchased Asset, Seller shall be obligated
to pay to Buyer (in addition to, and together with, the amount of
such Price Differential) the amount by which interest on the unpaid
Repurchase Price at a rate per annum equal to the Post Default Rate
exceeds the amount of such Price Differential, until the unpaid
Price Differential is received in full by Buyer.
-25-
6. Margin Maintenance
a. If at any time the Asset Value of the Purchased Assets subject to
Transactions is less than the Purchase Price for then outstanding
Transactions (an "Asset Value Margin Deficit"), then, if such Asset
Value Margin Deficit (combined with any Concentration Limit Margin
Deficit and any Rating Margin Deficit) is greater than the Permitted
Amount, Buyer may by notice to Seller require Seller to transfer to
Buyer cash in an amount at least equal to the Asset Value Margin
Deficit (such requirement, an "Asset Value Margin Call") and Buyer
shall apply such cash to the Repurchase Price with respect to the
Purchased Asset that gave rise to such Asset Value Margin Call.
b. If at any time after the Ramp-up Trigger Date, the Concentration
Limit is exceeded (the amount of such excess, a "Concentration Limit
Margin Deficit"), then, if such Concentration Limit Margin Deficit
(combined with any Asset Value Margin Deficit and any Rating Margin
Deficit) is greater than the Permitted Amount, Buyer may by notice
to Seller require Seller to transfer to Buyer cash in an amount such
that the Purchased Assets would be in compliance with such
Concentration Limit (such requirement, a "Concentration Limit Margin
Call") and the Buyer shall apply such cash to the outstanding
Purchase Price of all Purchased Assets on a weighted average, pro
rata, basis in the category of the Purchased Assets that exceeded
its respective Concentration Limit.
c. If at any time after the Ramp-up Trigger Date, the Buyer
determines in its sole good faith discretion that the Purchase Price
outstanding relative to Purchased Assets would not receive a rating
of at least BBB+ (or the comparable designation) from any Rating
Agency, as determined by Buyer in its sole good faith discretion
generally in accordance with the methodology used by any Rating
Agency, (a "Rating Margin Deficit" and together with an Asset Value
Margin Deficit and a Concentration Limit Margin Deficit a "Margin
Deficit"), then, if such Rating Margin Deficit (combined with any
Concentration Limit Margin Deficit and any Asset Value Margin
Deficit) is greater than the Permitted Amount, Buyer may by notice
to Seller require Seller to transfer to Buyer cash in an amount such
that the entire Purchase Price outstanding relative to such
Purchased Assets after application of such cash would receive a
rating of at least BBB+ (or the comparable designation) from any
Rating Agency, as determined by Buyer (such requirement, a "Rating
Margin Call" and together with an Asset Value Margin Call and a
Concentration Limit Margin Call a "Margin Deficit") and the Buyer
shall apply such cash to the outstanding Purchase Price of all
Purchased Assets on a weighted average, pro rata, basis.
-26-
d. Notices delivered pursuant to Sections 6(a), 6(b) or 6(c) may be
given by any written means pursuant to Section 20. Any notice given
before 10:00 a.m. (New York City time) on a Business Day shall be
met, and the related Margin Call satisfied, no later than 5:00 p.m.
(New York City time) on such Business Day; notice given after 10:00
a.m. (New York City time) on a Business Day shall be met, and the
related Margin Call satisfied, no later than 5:00 p.m. (New York
City time) on the following Business Day (the foregoing time
requirements for satisfaction of a Margin Call are referred to as
the "Margin Deadlines"). The failure of Buyer, on any one or more
occasions, to exercise its rights hereunder, shall not change or
alter the terms and conditions to which this Agreement is subject or
limit the right of Buyer to do so at a later date. Seller and Buyer
each agree that a failure or delay by Buyer to exercise its rights
hereunder shall not limit or waive Buyer's rights under this
Agreement or otherwise existing by law or in any way create
additional rights for Seller.
e. In the event that a Margin Deficit exists with respect to any
Purchased Asset, Buyer may retain any funds received by it to which
the Seller would otherwise be entitled hereunder, which funds shall
be applied by Buyer against the related Margin Deficit by
application against the Repurchase Price for the related Purchased
Asset for which the related Margin Deficit remains otherwise
unsatisfied. Notwithstanding the foregoing, the Buyer retains the
right, in its sole good faith discretion, to make a Margin Call in
accordance with the provisions of this Section 6.
7. Income Payments
a. The Securities Account shall be established by the Servicer in
accordance with the terms and conditions of the Control Account
Agreement concurrently with the execution and delivery of this
Agreement by Seller and Buyer. Buyer shall have sole dominion and
control over the Securities Account. All Income (other than amounts
deposited in escrow accounts in accordance with the Servicing
Standard) in respect of the Purchased Assets and any payments in
respect of associated Interest Rate Protection Agreements, as well
as any interest received from the reinvestment of such Income, shall
be deposited into the Securities Account within two (2) Business
Days of receipt by Servicer and shall be remitted by Servicer from
the Securities Account in accordance with this Agreement. All such
Income shall be held for and on behalf of Buyer, shall constitute
the property of Buyer subject to the terms of this Agreement and
once deposited into the Securities Account shall not be commingled
with other property of Seller, any Affiliate of Seller, or Servicer.
Servicer shall have the right at all times, subject to the
provisions of the Control Account Agreement, to access and remove
funds in the Securities Account to the extent permitted by the
Servicing Standard. Such amounts may be invested in Permitted
Investments that mature on the succeeding Price Differential Payment
Date.
b. Servicer shall deposit all Income (other than amounts deposited
in escrow accounts), derived from the Purchased Assets, whether
constituting collections thereon or proceeds of sale thereof, into
the Securities Account within two (2) Business Days of receipt by
Servicer.
-27-
c. In addition, with respect to each Purchased Asset, Seller shall
deliver to the Custodian an instruction letter from Buyer, signed by
the Servicer, with respect to such Purchased Asset, instructing the
Servicer, as applicable, to remit all sums required to be remitted
to the holder of such Purchased Asset under the loan documents to
the Securities Account or as otherwise directed in a written notice
signed by Buyer. Buyer may deliver such instruction letter to the
Servicer only upon the occurrence and during the continuance of an
Event of Default. With respect to Third Party Servicers, the parties
shall comply with Section 12(d) hereof.
d. Unless an Event of Default shall have occurred and be continuing,
all Balloon Payments and Principal Prepayments deposited into the
Securities Account shall, after notice to Buyer, be applied by Buyer
on the date of such deposit or, if such deposit is made after 3:00
p.m. (New York time), on the following Business Day, to reduce the
Repurchase Price of the related Purchased Asset by an amount equal
to the lesser of (i) the amount of such payment and (ii) the
Repurchase Price of the related Purchased Asset. The balance of such
Balloon Payments and Principal Prepayments in excess of the
Repurchase Price of the related Purchased Asset shall be paid to
Seller on such date.
e. Funds deposited in the Securities Account during any Libor Period
(except as provided in Section 7(d) above) shall be held therein
until the next Price Differential Payment Date. On or before 3:00
p.m. (New York time) on the day prior to the Price Differential
Payment Date, Servicer shall deliver to Buyer and the Bank a
Distribution Worksheet. Subject to the terms of the Control Account
Agreement and in accordance with the Buyer authorization (which
Buyer shall not unreasonably withhold, delay or condition unless an
Event of Default has occurred and is continuing), Buyer or Servicer
on Buyer's behalf, shall withdraw any funds on deposit in the
Securities Account and apply such funds as follows:
(i) first, to Buyer in payment of any accrued and
unpaid Price Differential to the extent not paid by Seller to
Buyer pursuant to Section 5;
(ii) second, to Buyer in payment of any accrued
and unpaid Administration Fee to the extent not paid by Seller
to Buyer pursuant to Section 5;
(iii) third, without limiting the rights of Buyer
under Section 6 of this Agreement, to Buyer, in the amount of
any unpaid Margin Deficit;
(iv) fourth, to Buyer in payment of any accrued
and unpaid Breakage Costs to the extent not paid by Seller to
Buyer pursuant to Section 4;
(v) fifth, to Buyer in reduction of the Purchase
Price of each Purchased Asset, the full amount of any payments
of principal or other invested amount received on or with
-28-
respect to such Purchased Asset and not theretofore applied in
reduction of such Repurchase Price pursuant to Section 7(d);
(vi) sixth, to the payment of all other costs and
fees then due and payable to Buyer pursuant to this Agreement;
and
(vii) seventh, any remainder shall be paid to
Seller.
f. Notwithstanding the preceding provisions, if an Event of Default
shall have occurred and be continuing hereunder, all funds in the
Securities Account shall be withdrawn and applied:
(i) first, in the same order of priority as
Sections 7 (e)(1), (2), and (3) above;
(ii) second, to reduction of the Repurchase Price
until reduced to zero;
(iii) third, to payment of all costs and fees and
any other Obligations payable to Buyer pursuant to this
Agreement; and
(iv) fourth, any remainder shall be paid to
Seller.
g. Buyer shall offset against the accrued and outstanding Price
Differential all Price Differential payments actually received by
Buyer pursuant to Section 5, except to the extent of any amounts
paid at the Post Default Rate, which excess amounts shall be applied
in reduction of Seller's obligation to pay excess interest on the
unpaid Repurchase Price calculated at the Post Default Rate..
8. Security Interest
a. Although the parties intend that all Transactions hereunder be
sales and purchases and not loans, in the event any such
Transactions are deemed to be loans, Seller hereby pledges to Buyer
as security for the performance by Seller of its Obligations and
hereby grants, assigns and pledges to Buyer a fully perfected first
priority security interest in all right, title and interest of the
Seller in and to the Purchased Assets, the Records, and all related
servicing rights, the Program Agreements (to the extent such Program
Agreements and Seller's right thereunder relate to the Purchased
Assets), any Property relating to the Purchased Assets, all
insurance policies and insurance proceeds relating to any Purchased
Asset or the related Mortgaged Property, including, but not limited
to, any payments or proceeds under any related primary insurance,
hazard insurance and, Income, the Securities Account, Interest Rate
-29-
Protection Agreements, Loan Security Agreements, the related Asset
Purchase Agreements, accounts (including any interest of Seller in
escrow accounts) and any other contract rights, instruments,
accounts, payments, rights to payment (including payments of
interest or finance charges) general intangibles and other assets
relating to the Purchased Assets (including, without limitation, any
other accounts) or any interest in the Purchased Assets, and any
proceeds (including the related securitization proceeds) and
distributions with respect to any of the foregoing and any other
property, rights, title or interests as are specified on a
Transaction Request and/or Trust Receipt, in all instances, whether
now owned or hereafter acquired, now existing or hereafter created
(collectively, the "Repurchase Assets"). Seller agrees to execute,
deliver and/or file such documents and perform such acts as may be
reasonably necessary to fully perfect Buyer's security interest
created hereby. Furthermore, the Seller hereby authorizes the Buyer
to file financing statements relating to the Repurchase Assets, as
the Buyer, at its option, may deem appropriate. The Seller shall pay
the filing costs for any financing statement or statements prepared
pursuant to this Section. Buyer agrees to release such security
interest with respect to any Repurchase Assets that are repurchased
by Seller and shall execute and deliver such documents and perform
such acts as may be reasonably necessary to effect such release.
The parties acknowledge and agree that the Mezzanine Loan Subsidiary
Interests constitute "general intangibles" (as defined in Section
9-102(a)(42) of the Uniform Commercial Code); and each Seller
therefore covenants and agrees that (A) the Mezzanine Loan
Subsidiary Interests are not and will not be dealt in or traded on
securities exchanges or securities markets, (B) the terms of the
Mezzanine Loan Subsidiary Interests do not and will not provide that
they are securities governed by the Uniform Commercial Code and (C)
the Mezzanine Loan Subsidiary Interests are not and will not be
investment company securities within the meaning of Section 8 103 of
the Uniform Commercial Code.
If Seller shall, as a result of its interest in the Mezzanine Loan
Subsidiary Interests, become entitled to receive or shall receive
any certificate evidencing any limited liability company interest or
other equity interest, any option rights, or any equity interest in
Mezzanine Loan Subsidiary , whether in addition to, in substitution
for, as a conversion of, or in exchange for the Mezzanine Loan
Subsidiary Interests, or otherwise in respect thereof, Seller shall
accept the same as the Buyer's agent, hold the same for and on
behalf of the Buyer and deliver the same forthwith to the Buyer in
the exact form received, duly endorsed by Seller to the Buyer, if
required, together with an undated transfer power, if required,
covering such certificate duly executed in blank, to be held by the
Buyer subject to the terms hereof as additional security for the
Obligations. Any sums paid upon or in respect of the Mezzanine Loan
Subsidiary Interests upon the liquidation or dissolution of
Mezzanine Loan Subsidiary shall be paid over to the Buyer as
additional security for any outstanding Obligations. If following
the occurrence and during the continuation of an Event of Default
any sums of money or property so paid or distributed in respect of
the Mezzanine Loan Subsidiary Interests shall be received by Seller,
Seller shall, until such money or property is paid or delivered to
the Buyer, hold such money or property for and on behalf of the
Buyer segregated from other funds of Seller, as additional security
for the Obligations.
-30-
Unless an Event of Default shall have occurred and be continuing,
Seller shall be permitted to receive all cash dividends or other
cash distributions paid in respect of the Mezzanine Loan Subsidiary
Interests and to exercise all voting and member rights with respect
to the Mezzanine Loan Subsidiary Interests; provided, however, that
no vote shall be cast or member right exercised or other action
taken which would impair the Mezzanine Loan Subsidiary Interests or
which would be inconsistent with or result in a violation of any
provision of this Agreement. Without the prior consent of the Buyer,
Seller will not (i) vote to enable, or take any other action to
permit Mezzanine Loan Subsidiary to issue any membership interests
of any nature or to issue any other membership interests convertible
into or granting the right to purchase or exchange for any
membership interests of Mezzanine Loan Subsidiary , or (ii) sell,
assign, transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Mezzanine Loan Subsidiary Interests or
(iii) create, incur or permit to exist any Lien or option in favor
of, or any claim of any Person with respect to, the Mezzanine Loan
Subsidiary Interests, or any interest therein, except for the Lien
provided for by this Agreement, or (iv) enter into any agreement
(other than the Limited Liability Company Agreement and this
Agreement) or undertaking restricting the right or ability of Seller
to sell, assign or transfer any of the Mezzanine Loan Subsidiary
Interests.
The Seller agrees to pay, and to save the Buyer harmless from, any
and all liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other taxes which may be
payable or determined to be payable with respect to any of the
Mezzanine Loan Subsidiary Interests.
b. Mezzanine Loan Subsidiary hereby pledges to Buyer as security for
the performance by Seller of its Obligations and hereby grants,
assigns and pledges to Buyer a fully perfected first priority
security interest in all of its right, title and interest in and to
the Mezzanine Loans, the Mezzanine Loan Junior Interests, the
Records related to such Mezzanine Loans or Mezzanine Loan Junior
Interests, and all related servicing rights, the Program Agreements
(to the extent such Program Agreements and the Mezzanine Loan
Subsidiary's right thereunder relate to the Mezzanine Loans or the
Mezzanine Loan Junior Interests), any Property relating to the
Mezzanine Loans or the Mezzanine Loan Junior Interests, all
insurance policies and insurance proceeds relating to any Mezzanine
Loans, the Mezzanine Loan Junior Interests or the related Mortgaged
Property, including, but not limited to, any payments or proceeds
under any related primary insurance, hazard insurance and, Income,
accounts (including any interest of the Mezzanine Loans or Mezzanine
Loan Junior Interests in escrow accounts) and any other contract
rights, instruments, accounts, payments, rights to payment
(including payments of interest or finance charges) general
intangibles and other assets relating to the Mezzanine Loans or
Mezzanine Loan Junior Interests (including, without limitation, any
other accounts) or any interest in the Mezzanine Loans or the
Mezzanine Loan Junior Interests, and any proceeds (including the
related securitization proceeds) and distributions with respect to
-31-
any of the foregoing, in all instances, whether now owned or
hereafter acquired, now existing or hereafter created (collectively,
the "Mezzanine Loan Assets"). Mezzanine Loan Subsidiary agrees to
execute, deliver and/or file such documents and perform such acts as
may be reasonably necessary to fully perfect Buyer's security
interest created hereby. Furthermore, the Mezzanine Loan Subsidiary
hereby authorizes the Buyer to file financing statements relating to
the Mezzanine Loan Assets, as the Buyer, at its option, may deem
appropriate. The Mezzanine Loan Subsidiary shall pay the filing
costs for any financing statement or statements prepared pursuant to
this paragraph. Buyer agrees to release such security interest with
respect to any Mezzanine Loans or Mezzanine Loan Junior Interests
that are released with respect to a Purchase Price Decrease and
shall execute and deliver such documents and perform such acts as
may be reasonably necessary to effect such release.
9. Payment and Transfer
Unless otherwise mutually agreed in writing, all transfers of funds
to be made by Seller hereunder shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to Buyer at the
following account maintained by Buyer: JPM Chase, Column Financial, Inc, ABA#
▇▇▇▇▇▇▇▇▇, Account # 066213630, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ or such
other account as Buyer shall specify to Seller in writing at least one Business
Day prior to the date any payment to such account by Seller is due. Seller
acknowledges that it has no rights of withdrawal from the foregoing account. All
Purchased Assets transferred by one party hereto to the other party shall be in
the case of a purchase by Buyer in suitable form for transfer or shall be
accompanied by duly executed instruments of transfer or assignment in blank and
such other documentation as Buyer may reasonably request. All Purchased Assets
shall be evidenced by a Trust Receipt. Any Repurchase Price received by Buyer
after 2:00 p.m. (New York City time) shall be deemed received on the next
succeeding Business Day.
10. Conditions Precedent
a. Initial Transaction. As conditions precedent to the initial
Transaction, Buyer shall have received on or before the day of such
initial Transaction the following, in form and substance
satisfactory to Buyer and duly executed by Seller, Limited Guarantor
and each other party thereto:
(i) Program Agreements. The Program Agreements
(including without limitation the Limited Guaranty and a
Custodial Agreement in a form acceptable to Buyer) duly
executed and delivered by the parties thereto and being in
full force and effect, free of any modification, breach or
waiver.
(ii) Security Interest. Evidence that all other
actions necessary or, in the opinion of Buyer, desirable to
perfect and protect Buyer's interest in the Purchased Assets,
Mezzanine Loans, Mezzanine Loan Junior Interests and other
Repurchase Assets have been taken, including, without
limitation, duly authorized and filed Uniform Commercial Code
financing statements on Form UCC-1.
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(iii) Organizational Documents. A certificate of
the corporate secretary of each of Seller, Mezzanine Loan
Subsidiary and Limited Guarantor substantially in the form of
Exhibit G hereto, attaching certified copies of each of
Seller's, Mezzanine Loan Subsidiary's and Limited Guarantor's
charter, bylaws and corporate resolutions approving the
Program Agreements and transactions thereunder (either
specifically or by general resolution) and all documents
evidencing other necessary corporate action or governmental
approvals as may be required in connection with the Program
Agreements.
(iv) Good Standing Certificate. A certified copy
of a good standing certificate from the jurisdiction of
organization of each of Seller, Mezzanine Loan Subsidiary and
Limited Guarantor, dated as of no earlier than the date 10
Business Days prior to the Purchase Date with respect to the
initial Transaction hereunder.
(v) Incumbency Certificate. An incumbency
certificate of the corporate secretary of each of Seller,
Mezzanine Loan Subsidiary and Limited Guarantor, certifying
the names, true signatures and titles of the representatives
duly authorized to request transactions hereunder and to
execute the Program Agreements.
(vi) Opinions of Counsel. An opinion of Seller's,
Mezzanine Loan Subsidiary's and Limited Guarantor's counsel,
in form and substance substantially as set forth in Exhibit F
attached hereto.
(vii) Fees. Payment of any fees due to Buyer
hereunder.
(viii) Insurance. Evidence that Seller or Limited
Guarantor has added Buyer as an additional loss payee under
the Seller's Fidelity Insurance.
b. All Transactions. The obligation of Buyer to enter into each
Transaction pursuant to this Agreement is subject to the following
conditions precedent:
(i) Due Diligence Review. Without limiting the
generality of Sections 3(d) and 36 hereof, Buyer shall have
completed, to its satisfaction, its due diligence review of
the related Eligible Assets, the related Asset Purchase
Agreement, Seller, Limited Guarantor and the Servicer.
(ii) Securities. With respect to Securities
proposed to be purchased:
(a) that shall be delivered or held in definitive,
certificated form, the Seller shall deliver to the Buyer or its
designee the original of the relevant certificate registered in the
name of the Buyer or its designee;
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(b) that shall be delivered through a Relevant System in
book-entry form and credited to or otherwise held in an account,
such Security shall be registered in the name of the Buyer or its
designee and the Seller shall take such actions necessary to provide
instruction to the relevant financial institution or other entity,
which instruction shall be sufficient if complied with to effect a
legally valid delivery of the relevant interest granted therein to
Buyer hereunder. In connection with any account to which the
Securities are credited or otherwise held, the Seller shall execute
and deliver such other and further documents or instruments
necessary, in the reasonable opinion of the Buyer, to effect a
legally valid delivery of the relevant interest granted therein to
Buyer hereunder. Any account to which the Securities are credited
shall be designed as the Buyer may direct.
(iii) Transaction Documents. Buyer or its designee
shall have received on or before the day of such Transaction
(unless otherwise specified in this Agreement) the following,
in form and substance satisfactory to Buyer and (if
applicable) duly executed:
(a) A Transaction Request delivered pursuant to Section 3(b)
hereof and a Purchase Confirmation;
(b) The Trust Receipt;
(c) The Closing Data Tape;
(d) An assignment of the related Asset Purchase Agreement;
(e) Such certificates, opinions of counsel or other documents
as Buyer may reasonably request.
(iv) Asset File. On or before each Purchase Date
with respect to each Purchased Asset (other than Purchased
Assets which are Securities), Seller shall deliver or cause to
be delivered to Buyer or its designee (initially, the
Custodian) the Custodial Delivery Letter in the form attached
hereto as Exhibit D. In connection with each sale, transfer,
conveyance and assignment of a Purchased Asset (other than
Purchased Assets which are Securities), on or prior to each
Purchase Date with respect to such Purchased Asset, Seller
shall deliver or cause to be delivered and released to the
Custodian the documents set forth in the Asset File,
pertaining to each of the Purchased Assets (other than
Purchased Assets which are Securities) identified in the
Custodial Delivery Letter delivered therewith.
(v) No Default. No Default or Event of Default
shall have occurred and be continuing;
(vi) Requirements of Law. Buyer shall not have
determined that the introduction of or a change in any
Requirement of Law or in the interpretation or administration
of any Requirement of Law applicable to Buyer has made it
unlawful, and no Governmental Authority shall have asserted
that it is unlawful, for Buyer to enter into Transactions with
a Pricing Rate based on LIBOR.
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(vii) Representations and Warranties. Both
immediately prior to the related Transaction and also after
giving effect thereto and to the intended use thereof, the
representations and warranties made by Seller in each Program
Agreement 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).
(viii) Minimum Amount. Each Eligible Asset subject
to a Transaction Request shall be for a Purchase Price not
less than $1,000,000.
(ix) Material Adverse Change. 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.
c. Transaction Request. Each Transaction Request delivered by the
Seller hereunder shall constitute a certification by the Seller that
all the conditions set forth in Section 10(b) (other than clause (9)
thereof) have been satisfied (both as of the date of such notice or
request and as of the date of such purchase). Each Purchase
Confirmation, together with this Agreement, shall be evidence of the
terms of the Transaction(s) covered thereby unless specific
objection is made no less than two (2) Business Days after the date
thereof and Seller's acceptance of the related proceeds shall
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constitute Seller's agreement to the terms of such Purchase
Confirmation. An objection sent by Seller with respect to any
Purchase Confirmation (as to which Seller has not accepted or has
returned the related proceeds) must state specifically that the
writing is an objection, must specify the provision(s) of such
Purchase Confirmation being objected to by Seller, and must set
forth such provision(s) in the manner that Seller believes such
provisions should be stated, and must be received by Buyer no more
than two (2) Business Days after such Purchase Confirmation is
received by Seller.
11. Program; Costs
a. Subject to the provisions of Section 36 hereof, Seller shall
reimburse Buyer for any of Buyer's reasonable out-of-pocket costs,
including due diligence review costs and reasonable attorney's fees,
incurred by Buyer in determining the acceptability to Buyer of any
Eligible Assets. Seller shall also pay, or reimburse Buyer if Buyer
shall pay, any termination fee, which may be due any servicer.
Seller shall pay the reasonable fees and expenses of Buyer's counsel
in connection with its preparation of the Program Agreements. Legal
fees for any subsequent amendments to this Agreement or related
documents shall be borne by Seller. Seller shall pay ongoing
custodial and bank fees and expenses and any other ongoing fees and
expenses, in each case, under any other Program Agreement.
b. If Buyer determines that, due to the introduction of or
compliance by Buyer with any change in, (i) any eurocurrency reserve
requirement or (ii) the interpretation of any law, regulation or any
guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be
an increase in the cost to Buyer in engaging in the present or any
future Transactions, then Seller agrees to pay to Buyer, from time
to time, upon demand by Buyer (with a copy to Custodian) the actual
cost of additional amounts as specified by Buyer (absent manifest
error) to compensate Buyer for such increased costs.
c. With respect to any Transaction, Buyer may conclusively rely
upon, and shall incur no liability to Seller in acting upon, any
request or other communication that Buyer reasonably believes to
have been given or made by a person authorized to enter into a
Transaction on Seller's behalf, whether or not such person is listed
on the certificate delivered pursuant to Section 10(a)(5) hereof. In
each such case, Seller hereby waives the right to dispute Buyer's
record of the terms of the Purchase Confirmation, request or other
communication (absent manifest error).
d. Notwithstanding the assignment of the Program Agreements with
respect to each Purchased Asset to Buyer, Seller agrees and
covenants with Buyer to enforce diligently Seller's rights and
remedies set forth in the Program Agreements.
e. Any and all payments by the Seller under or in respect of this
Repurchase Agreement or any other Repurchase Documents to which the
Seller is a party shall be made free and clear of, and without
deduction or withholding for or on account of, any and all present
or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities (including penalties, interest and
additions to tax) with respect thereto, whether now or hereafter
imposed, levied, collected, withheld or assessed by any taxation
authority or other Governmental Authority (collectively, "Taxes"),
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unless required by law or otherwise provided herein with respect to
Excluded Taxes. If the Seller shall be required under any applicable
Requirement of Law to deduct or withhold any Taxes from or in
respect of any sum payable under or in respect of this Repurchase
Agreement or any of the other Repurchase Documents to the Buyer, (i)
Seller shall make all such deductions and withholdings in respect of
Taxes, (ii) Seller shall pay the full amount deducted or withheld in
respect of Taxes to the relevant taxation authority or other
Governmental Authority in accordance with any applicable Requirement
of Law, and (iii) the sum payable by Seller shall be increased as
may be necessary so that after Seller has made all required
deductions and withholdings (including deductions and withholdings
applicable to additional amounts payable under this Section 11) such
Buyer receives an amount equal to the sum it would have received had
no such deductions or withholdings been made in respect of
Non-Excluded Taxes. For purposes of this Repurchase Agreement the
term "Non-Excluded Taxes" are Taxes other than, in the case of a
Buyer, Taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the jurisdiction under
the laws of which such Buyer is organized or of its applicable
lending office, or any political subdivision thereof, unless such
Taxes are imposed as a result of such Buyer having executed,
delivered or performed its obligations or received payments under,
or enforced, this Agreement or any of the other Repurchase Documents
(in which case such Taxes will be treated as Non-Excluded Taxes).
f. In addition, Seller hereby agrees to pay any present or future
stamp, recording, documentary, excise, property or value-added
taxes, or similar taxes, charges or levies that arise from any
payment made under or in respect of this Agreement or any other
Repurchase Document or from the execution, delivery or registration
of, any performance under, or otherwise with respect to, this
Agreement or any other Repurchase Document (collectively, "Other
Taxes").
g. Seller hereby agrees to indemnify Buyer for, and to hold it
harmless against, the full amount of Non-Excluded Taxes and Other
Taxes, and the full amount of Taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 11 imposed on or
paid by such Buyer and any liability (including penalties, additions
to tax, interest and expenses) arising therefrom or with respect
thereto. The indemnity by Seller provided for in this Section 11(g)
shall apply and be made whether or not the Non-Excluded Taxes or
Other Taxes for which indemnification hereunder is sought have been
correctly or legally asserted. Amounts payable by Seller under the
indemnity set forth in this Section 11(g) shall be paid within ten
(10) days from the date on which Buyer makes written demand
therefor.
h. Within thirty (30) days after the date of any payment of Taxes,
Seller (or any Person making such payment on behalf of Seller) shall
furnish to Buyer for its own account a certified copy of the
original official receipt evidencing payment thereof. For purposes
of subsection (i) of this Section 11, the terms "United States" and
"United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
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i. Each Buyer (including for avoidance of doubt any assignee,
successor or participant) that either (i) is not incorporated under
the laws of the United States, any State thereof, or the District of
Columbia or (ii) whose name does not include "Incorporated," "Inc.,"
"Corporation," "Corp.," "P.C.," "insurance company," or "assurance
company" (a "Non-Exempt Buyer") shall deliver or cause to be
delivered to Seller the following properly completed and duly
executed documents:
(i) in the case of a Non-Exempt Buyer that is not
a United States person, a complete and executed (x) U.S.
Internal Revenue Form W-8BEN with Part II completed in which
Buyer claims the benefits of a tax treaty with the United
States providing for a zero or reduced rate of withholding (or
any successor forms thereto), including all appropriate
attachments or (y) a U.S. Internal Revenue Service Form W-8ECI
(or any successor forms thereto); or
(ii) in the case of an individual, (x) a complete
and executed U.S. Internal Revenue Service Form W-8BEN (or any
successor forms thereto) and a certificate substantially in
the form of Exhibit XII (a "Section 11 Certificate") or (y) a
complete and executed U.S. Internal Revenue Service Form W-9
(or any successor forms thereto); or
(iii) in the case of a Non-Exempt Buyer that is
organized under the laws of the United States, any State
thereof, or the District of Columbia, a complete and executed
U.S. Internal Revenue Service Form W-9 (or any successor forms
thereto), including all appropriate attachments; or
(iv) in the case of a Non-Exempt Buyer that (x) is
not organized under the laws of the United States, any State
thereof, or the District of Columbia and (y) is treated as a
corporation for U.S. federal income tax purposes, a complete
and executed U.S. Internal Revenue Service Form W-8BEN
claiming a zero rate of withholding (or any successor forms
thereto) and a Section 11 Certificate; or
(v) in the case of a Non-Exempt Buyer that (A) is
treated as a partnership or other non-corporate entity, and
(B) is not organized under the laws of the United States, any
State thereof, or the District of Columbia, (x)(i) a complete
and executed U.S. Internal Revenue Service Form W-8IMY (or any
successor forms thereto) (including all required documents and
attachments) and (ii) a Section 11 Certificate, and (y)
without duplication, with respect to each of its beneficial
owners and the beneficial owners of such beneficial owners
looking through chains of owners to individuals or entities
that are treated as corporations for U.S. federal income tax
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purposes (all such owners, "beneficial owners"), the documents
that would be required by clause (i), (ii), (iii), (iv), (vi),
(vii) and/or this clause (v) with respect to each such
beneficial owner if such beneficial owner were Buyer,
provided, however, that no such documents will be required
with respect to a beneficial owner to the extent the actual
Buyer is determined to be in compliance with the requirements
for certification on behalf of its beneficial owner as may be
provided in applicable U.S. Treasury regulations, or the
requirements of this clause (v) are otherwise determined to be
unnecessary, all such determinations under this clause (v) to
be made in the sole discretion of Seller, provided, however,
that Buyer shall be provided an opportunity to establish such
compliance as reasonable; or
(vi) in the case of a Non-Exempt Buyer that is
disregarded for U.S. federal income tax purposes, the document
that would be required by clause (i), (ii), (iii), (iv), (v),
(vii) and/or this clause (vi) of this Section 11(i) with
respect to its beneficial owner if such beneficial owner were
the Buyer; or
(vii) in the case of a Non-Exempt Buyer that (A)
is not a United States person and (B) is acting in the
capacity as an "intermediary" (as defined in U.S. Treasury
Regulations), (x)(i) a U.S. Internal Revenue Service Form
W-8IMY (or any successor form thereto) (including all required
documents and attachments) and (ii) a Section 7 Certificate,
and (y) if the intermediary is a "non-qualified intermediary"
(as defined in U.S. Treasury Regulations), from each person
upon whose behalf the "non-qualified intermediary" is acting
the documents that would be required by clause (i), (ii),
(iii), (iv), (v), (vi), and/or this clause (vii) with respect
to each such person if each such person were Buyer.
j. If the forms referred to above in this Section 11(i) that are
provided by a Buyer at the time such Buyer first becomes a party to
this Agreement or, with respect to a grant of a participation, the
effective date thereof, indicate a United States interest
withholding tax rate in excess of zero, withholding tax at such rate
shall be treated as Taxes other than "Non-Excluded Taxes" ("Excluded
Taxes") and shall not qualify as Non-Excluded Taxes unless and until
such Buyer provides the appropriate form certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate shall be
considered Excluded Taxes solely for the periods governed by such
form. If, however, on the date a Person becomes an assignee,
successor or participant to this Agreement, Buyer transferor was
entitled to indemnification or additional amounts under this Section
11, then the Buyer assignee, successor or participant shall be
entitled to indemnification or additional amounts to the extent (and
only to the extent), that the Buyer transferor was entitled to such
indemnification or additional amounts for Non-Excluded Taxes, and
the Buyer assignee, successor or participant shall be entitled to
additional indemnification or additional amounts for any other or
additional Non-Excluded Taxes.
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k. For any period with respect to which Buyer has failed to provide
Seller with the appropriate form, certificate or other document
described in subsection (i) of this Section 11 (other than (i) if
such failure is due to a change in any applicable Requirement of
Law, or in the interpretation or application thereof, occurring
after the date on which a form, certificate or other document
originally was required to be provided, (ii) if such form,
certificate or other document otherwise is not required under
subsection (i) of this Section 11, or (iii) if it is legally
inadvisable or otherwise commercially disadvantageous for such Buyer
to deliver such form, certificate or other document), such Buyer
shall not be entitled to indemnification or additional amounts under
subsection (a), (e) or (g) of this Section 11 with respect to
Non-Excluded Taxes imposed by the United States by reason of such
failure; provided, however, that should a Buyer become subject to
Non-Excluded Taxes because of its failure to deliver a form,
certificate or other document required hereunder, Seller shall take
such steps as such Buyer shall reasonably request, to assist such
Buyer in recovering such Non-Excluded Taxes.
l. Without prejudice to the survival of any other agreement of the
Seller hereunder, the agreements and obligations of the Seller
contained in this Section 11 shall survive the termination of this
Agreement. Nothing contained in this Section 11 shall require the
Buyer to make available any of its tax returns or any other
information that it deems to be confidential or proprietary.
m. Each party to this Agreement acknowledges that it is its intent
for purposes of U.S. federal, state and local income and franchise
taxes, to treat the Transaction as indebtedness of the Seller that
is secured by the Purchased Assets, the Mezzanine Loans and the
Mezzanine Loan Junior Interests and the Purchased Assets as owned by
the Seller for federal income tax purposes in the absence of a
Default by the Seller. All parties to this Agreement agree to such
treatment and agree to take no action inconsistent with this
treatment, unless required by law.
12. Servicing
a. Seller, the Mezzanine Loan Subsidiary and the Buyer shall
contract with Servicer to service the Purchased Assets, Mezzanine
Loans and Mezzanine Loan Junior Interests consistent with the degree
of skill and care that Servicer customarily requires with respect to
similar Purchased Assets, Mezzanine Loans and Mezzanine Loan Junior
Interests owned or managed by it and in accordance with Accepted
Servicing Practices (the "Servicing Standard"). The Servicing
Standard shall require, inter alia, that: Servicer (i) comply with
all applicable federal, state and local laws and regulations, (ii)
maintain all state and federal licenses necessary for it to perform
its servicing responsibilities hereunder and (iii) not impair the
rights of the Buyer in any Purchased Assets, Mezzanine Loans or
Mezzanine Loan Junior Interests or any payment thereunder. In
addition, the Servicing Standard shall require that the Servicer
deposit all collections of Income (other than amounts deposited in
escrow accounts in accordance with to the Servicing Standard)
received by Servicer on account of the Purchased Assets, Mezzanine
Loans and Mezzanine Loan Junior Interests in the Securities Account
no later than two Business Days following receipt.
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b. Upon the occurrence and during the continuance of any of (i) an
Event of Default hereunder or (ii) an event of default under the
Servicing Standard, Buyer shall have the right to immediately
terminate the Servicer's right to service the Purchased Assets,
Mezzanine Loans and Mezzanine Loan Junior Interests without payment
of any penalty or termination fee. Seller and Servicer shall
cooperate in transferring the servicing of the Purchased Assets,
Mezzanine Loans and Mezzanine Loan Junior Interests to a successor
servicer appointed by Buyer in its sole discretion.
c. If Seller or the Mezzanine Loan Subsidiary should discover that,
for any reason whatsoever, Servicer or any entity responsible for
managing or servicing any Purchased Assets, Mezzanine Loans or
Mezzanine Loan Junior Interests has failed to perform in all
material respects any of the obligations of such entities with
respect to the Purchased Assets Mezzanine Loans and Mezzanine Loan
Junior Interests, or that an event of default under the Servicing
Standard has occurred, the Seller or Mezzanine Loan Subsidiary shall
promptly notify Buyer.
d. In the event that the Servicer is a master servicer of a
Purchased Asset, Mezzanine Loan or Mezzanine Loan Junior Interest
which is serviced by a Third Party Servicer, the Seller shall
provide promptly to Buyer a Servicer Notice addressed to and agreed
to by the Third Party Servicer of the related Purchased Assets,
Mezzanine Loans and Mezzanine Loan Junior Interests advising such
Third Party Servicer of such matters as Buyer may reasonably
request, including, without limitation, recognition by the master
servicer of Buyer's interest in such Purchased Assets, Mezzanine
Loans and Mezzanine Loan Junior Interests and the Third Party
Servicer's agreement that upon receipt of notice of an Event of
Default from Buyer, it will follow the instructions of Buyer with
respect to the Purchased Assets, Mezzanine Loans and Mezzanine Loan
Junior Interests and any related Income with respect thereto.
e. Seller shall not employ sub-servicers (other than the Servicer or
Affiliates thereof or Third Party Servicers) to service the
Purchased Assets, Mezzanine Loans or Mezzanine Loan Junior Interests
without the prior written approval of Buyer, which such approval
shall not be unreasonably withheld. If the Purchased Assets,
Mezzanine Loans or Mezzanine Loan Junior Interests are serviced, in
whole or in part, by a sub-servicer (i) Servicer shall nevertheless
remain primarily liable to Buyer for the servicing of the Purchased
Assets, Mezzanine Loans and Mezzanine Loan Junior Interests under
the Servicing Standard; and (ii) any agreement with a subservicer
shall entitle Buyer to terminate such subservicer without fee or
penalty in the event that Servicer is replaced.
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13. Representations and Warranties
a. Each of Seller, Mezzanine Loan Subsidiary and Limited Guarantor
represents and warrants to Buyer as of the date hereof and as of
each Purchase Date for any Transaction that:
(i) Seller, Mezzanine Loan Subsidiary and Limited
Guarantor Existence. Seller has been duly organized and is
validly existing as a limited liability company in good
standing under the laws of the State of Delaware Mezzanine
Loan Subsidiary has been duly organized and is validly
existing as a limited liability company in good standing under
the laws of the State of Delaware. Limited Guarantor has been
duly organized and is validly existing as a corporation in
good standing under the laws of the State of Maryland.
(ii) Licenses. Each of Seller, Mezzanine Loan
Subsidiary and Limited Guarantor is duly licensed or is
otherwise qualified in each jurisdiction in which it transacts
business for the business which it conducts and is not in
default of any applicable federal, state or local laws, rules
and regulations unless, in either instance, the failure to
take such action is not reasonably likely (either individually
or in the aggregate) to cause a Material Adverse Effect and is
not in default of such state's applicable laws, rules and
regulations. Each of Seller, Mezzanine Loan Subsidiary and
Limited Guarantor has the requisite power and authority and
legal right to originate and purchase Eligible Assets (as
applicable) and to own, sell and ▇▇▇▇▇ ▇ ▇▇▇▇ on all of its
right, title and interest in and to the Eligible Assets, and
to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and
conditions of, this Agreement, each Program Agreement and any
Transaction Request or Purchase Confirmation.
(iii) Power. Each of Seller, Mezzanine Loan
Subsidiary and Limited Guarantor has all requisite corporate
or other power, and has all governmental licenses,
authorizations, consents and approvals necessary to own its
assets and carry on its business as now being or as proposed
to be conducted, except where the lack of such licenses,
authorizations, consents and approvals would not be reasonably
likely to have a Material Adverse Effect.
(iv) Due Authorization. Each of Seller, Mezzanine
Loan Subsidiary and Limited Guarantor has all necessary
corporate or other power, authority and legal right to
execute, deliver and perform its obligations under each of the
Program Agreements, as applicable. This Agreement, any
Transaction Request, Purchase Confirmation and the Program
Agreements have been (or, in the case of Program Agreements
and any Transaction Request, Purchase Confirmation not yet
executed, will be) duly authorized, executed and delivered by
Seller, Mezzanine Loan Subsidiary and Limited Guarantor, all
requisite or other corporate action having been taken, and
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each is valid, binding and enforceable against Seller,
Mezzanine Loan Subsidiary and Limited Guarantor in accordance
with its terms except as such enforcement may be affected by
bankruptcy, by other insolvency laws, or by general principles
of equity.
(v) Financial Statements. The Limited Guarantor
has heretofore furnished to Buyer a copy of (a) its
consolidated balance sheet and the consolidated balance sheets
of its consolidated Subsidiaries for the fiscal year of the
Limited Guarantor ended December 31, 2005 and the related
consolidated statements of income and retained earnings and of
cash flows for the Limited Guarantor and its consolidated
Subsidiaries for such fiscal year, setting forth in each case
in comparative form the figures for the previous year, with
the opinion thereon of [ACCOUNTING FIRM]. All such financial
statements are complete and correct and fairly present, in all
material respects, the consolidated financial condition of the
Limited Guarantor and its Subsidiaries and the consolidated
results of their operations as at such dates and for such
fiscal periods, all in accordance with GAAP applied on a
consistent basis. Since December 31, 2005, there has been no
material adverse change in the consolidated business,
operations or financial condition of the Limited Guarantor and
its consolidated Subsidiaries taken as a whole from that set
forth in said financial statements nor is Seller aware of any
state of facts which (with notice or the lapse of time) would
or could result in any such material adverse change. The
Limited Guarantor has, on the date of the statements delivered
pursuant to this Section (the "Statement Date") no
liabilities, direct or indirect, fixed or contingent, matured
or unmatured, known or unknown, or liabilities for taxes,
long-term leases or unusual forward or long-term commitments
not disclosed by, or reserved against in, said balance sheet
and related statements, and at the present time there are no
material unrealized or anticipated losses from any loans,
advances or other commitments of Seller except as heretofore
disclosed to Buyer in writing.
(vi) Event of Default. There exists no Event of
Default under Section 15(b) hereof, which default gives rise
to a right to accelerate indebtedness as referenced in Section
15(b) hereof, under any mortgage, borrowing agreement or other
instrument or agreement pertaining to indebtedness for
borrowed money or to the repurchase of mortgage loans or
securities.
(vii) Solvency. Each of Seller, Mezzanine Loan
Subsidiary and Limited Guarantor is solvent and will not be
rendered insolvent by any Transaction and, after giving effect
to such Transaction, will not be left with an unreasonably
small amount of capital with which to engage in its business.
None of Seller, Mezzanine Loan Subsidiary nor Limited
Guarantor intends to incur, nor believes that it has incurred,
debts beyond its ability to pay such debts as they mature and
is not contemplating the commencement of insolvency,
bankruptcy, liquidation or consolidation proceedings or the
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appointment of a receiver, liquidator, conservator, trustee or
similar official in respect of such entity or any of its
assets. The amount of consideration being received by Seller
upon the sale of the Purchased Assets to Buyer constitutes
reasonably equivalent value and fair consideration for the
Seller's interests in such Purchased Assets. Neither Seller
nor Mezzanine Loan Subsidiary is transferring any Purchased
Assets with any intent to hinder, delay or defraud any of its
creditors.
(viii) No Conflicts. The execution, delivery and
performance by each of Seller, Mezzanine Loan Subsidiary and
Limited Guarantor of this Agreement, any Transaction Request
or Purchase Confirmation hereunder and the Program Agreements
do not conflict with any term or provision of the certificate
of incorporation or by-laws of Seller, Mezzanine Loan
Subsidiary or Limited Guarantor or any law, rule, regulation,
order, judgment, writ, injunction or decree applicable to
Seller, Mezzanine Loan Subsidiary or Limited Guarantor of any
court, regulatory body, administrative agency or governmental
body having jurisdiction over Seller, Mezzanine Loan
Subsidiary or Limited Guarantor, which conflict would have a
Material Adverse Effect and will not result in any violation
of any such mortgage, instrument, agreement or obligation to
which Seller, Mezzanine Loan Subsidiary or Limited Guarantor
is a party.
(ix) True and Complete Disclosure. All
information, reports, exhibits, schedules, financial
statements or certificates of Seller, Mezzanine Loan
Subsidiary, Limited Guarantor, or any Affiliate thereof or any
of their officers furnished or to be furnished to Buyer in
connection with the initial or any ongoing due diligence of
Seller, Mezzanine Loan Subsidiary, Limited Guarantor, or any
Affiliate or officer thereof, negotiation, preparation, or
delivery of the Program Agreements are true and complete and
do not omit to disclose any material facts necessary to make
the statements herein or therein, in light of the
circumstances in which they are made, not misleading. All
financial statements have been prepared in accordance with
GAAP.
(x) Approvals. No consent, approval, authorization
or order of, registration or filing with, or notice to any
governmental authority or court is required under applicable
law in connection with the execution, delivery and performance
by Seller, Mezzanine Loan Subsidiary or Limited Guarantor of
this Agreement, any Transaction Request, Purchase Confirmation
and the Program Agreements.
(xi) Litigation. There is no action, proceeding or
investigation pending with respect to which any of Seller,
Mezzanine Loan Subsidiary or Limited Guarantor has received
service of process or, to the best of Seller's, Mezzanine Loan
Subsidiary's or Limited Guarantor's Knowledge threatened
against it before any court, administrative agency or other
tribunal (A) asserting the invalidity of this Agreement, any
Transaction, Transaction Request, Purchase Confirmation or any
Program Agreement, (B) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement, any
Transaction Request, Purchase Confirmation or any Program
Agreement, (C) makes claims in an aggregate amount greater
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than (i) with respect to the Seller or the Mezzanine Loan
Subsidiary, $1,000,000, or (ii) with respect to the Limited
Guarantor, $10,000,000, (D) which requires filing with the
Securities and Exchange Commission in accordance with the 1934
Act or any rules thereunder or (E) which might materially and
adversely affect the validity of the Mortgage Loans or the
performance by it of its obligations under, or the validity or
enforceability of, this Agreement, any Transaction Request,
Purchase Confirmation or any Program Agreement.
(xii) Material Adverse Change. There has been no
material adverse change in the business, operations, financial
condition, properties (in the aggregate owned by such entity)
or prospects of Seller, Mezzanine Loan Subsidiary, or Limited
Guarantor or their Affiliates since the date set forth in the
most recent financial statements supplied to Buyer.
(xiii) Ownership. Upon payment of the Purchase
Price and the filing of the financing statement and delivery
of the Asset Files to the Custodian and the Custodian's
receipt of the related Purchased Asset Schedule, Buyer shall
become the sole owner of the Purchased Assets and related
Repurchase Assets, free and clear of all liens and
encumbrances.
(xiv) Reserved.
(xv) Taxes. Seller, Limited Guarantor and
Mezzanine Loan Subsidiary have timely filed all tax returns
that are required to be filed by them and have paid all taxes,
except for any such taxes as are being appropriately contested
in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves have been
provided. The charges, accruals and reserves on the books of
Seller, Mezzanine Loan Subsidiary, and Limited Guarantor in
respect of taxes and other governmental charges are, in the
opinion of Seller Mezzanine Loan Subsidiary or Limited
Guarantor, as applicable, adequate.
(xvi) Investment Company. Neither Seller,
Mezzanine Loan Subsidiary, nor Limited Guarantor is an
"investment company", or a company "controlled" by an
"investment company," within the meaning of the Investment
Company Act of 1940, as amended.
(xvii) Chief Executive Office; Jurisdiction of
Organization. On the Effective Date, Seller's chief executive
office, is, and has been, located at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. On the Effective Date, Seller's
jurisdiction of organization is Delaware. Seller shall provide
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Buyer with thirty days advance notice of any change in
Seller's principal office or place of business or
jurisdiction. Seller has no trade name. During the preceding
five years, Seller has not been known by or done business
under any other name, corporate or fictitious, and has not
filed or had filed against it any bankruptcy receivership or
similar petitions nor has it made any assignments for the
benefit of creditors. On the Effective Date, Mezzanine Loan
Subsidiary's chief executive office, is, and has been, located
at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. On the
Effective Date, Mezzanine Loan Subsidiary's jurisdiction of
organization is Delaware. Mezzanine Loan Subsidiary shall
provide Buyer with thirty days advance notice of any change in
Mezzanine Loan Subsidiary's principal office or place of
business or jurisdiction. Mezzanine Loan Subsidiary has no
trade name.
(xviii) Location of Books and Records. The
location where Seller and Mezzanine Loan Subsidiary keeps its
books and records, including all computer tapes and records
relating to the Purchased Assets and the related Repurchase
Assets is its respective chief executive office.
(xix) Reserved.
(xx) ERISA. Each Plan to which Seller, Mezzanine
Loan Subsidiary or its Subsidiaries make direct contributions,
and, to the knowledge of Seller, Mezzanine Loan Subsidiary
each other Plan and each Multiemployer Plan, is in compliance
in all material respects with, and has been administered in
all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State
law.
(xxi) Agreements. Neither Seller nor any
Subsidiary of Seller is a party to any agreement, instrument,
or indenture or subject to any restriction materially and
adversely affecting its business, operations, assets or
financial condition, except as disclosed in the financial
statements described in Section 13(a)(5) hereof. Neither
Seller nor any Subsidiary of Seller is in default in the
performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any
agreement, instrument, or indenture which default could have a
material adverse effect on the business, operations,
properties, or financial condition of Seller as a whole. No
holder of any indebtedness of Seller or of any of its
Subsidiaries has given notice of any asserted default
thereunder.
(xxii) Other Indebtedness. Neither the Seller nor
the Mezzanine Loan Subsidiary has any Indebtedness other than
Indebtedness evidenced by this Agreement.
(xxiii) No Reliance. Each of Seller, Mezzanine
Loan Subsidiary and Limited Guarantor has made its own
independent decisions to enter into the Program Agreements and
each Transaction and as to whether such Transaction is
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appropriate and proper for it based upon its own judgment and
upon advice from such advisors (including without limitation,
legal counsel and accountants) as it has deemed necessary.
Neither Seller, Mezzanine Loan Subsidiary nor Limited
Guarantor is relying upon any advice from Buyer as to any
aspect of the Transactions, including without limitation, the
legal, accounting or tax treatment of such Transactions.
(xxiv) Plan Assets. Neither Seller nor Mezzanine
Loan Subsidiary is an employee benefit plan as defined in
Section 3 of Title I of ERISA, or a plan described in Section
4975(e)(1) of the Code, and the Purchased Assets and the
Mezzanine Loans are not "plan assets" within the meaning of 29
CFR ss.2510.3-101 in the Seller's or Mezzanine Loan
Subsidiary's hands.
(xxv) No Prohibited Persons. None of the Seller,
Mezzanine Loan Subsidiary or any of their respective
Affiliates, officers, directors, partners or members, is an
entity or person (or to the Seller's or Mezzanine Loan
Subsidiary`s knowledge, owned or controlled by an entity or
person): (i) that is listed in the annex to, or is otherwise
subject to the provisions of Executive Order 13224 issued on
September 24, 2001 ("EO13224"); (ii) whose name appears on the
United States Treasury Department's Office of Foreign Assets
Control ("OFAC") most current list of "Specifically Designated
National and Blocked Persons" (which list may be published
from time to time in various mediums including, but not
limited to, the OFAC website,
http:▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇/▇▇▇▇▇▇.▇▇▇); (iii) who commits,
threatens to commit or supports "terrorism", as that term is
defined in EO13224; or (iv) who is otherwise affiliated with
any entity or person listed above (any and all parties or
persons described in clauses (i) through (iv) above are herein
referred to as a "Prohibited Person").
(xxvi) Asset File. Each Asset File delivered by
Seller represents a true and correct copy of the documents
contained therein and each Purchased Asset Schedule and
Closing Data Tape, together with all other information
contained therein prepared by Seller or its Affiliates and
delivered by Seller to Buyer immediately prior to the Purchase
Date, is true and correct and conforms in all material
respects to the Summary Diligence Materials and Preliminary
Data Tape previously provided to Buyer and pursuant to which
Buyer has elected to enter into the Transaction.
(xxvii) Real Estate Investment Trust. Limited
Guarantor has not engaged in any material "prohibited
transactions" as defined in Section 857(b)(6)(B)(iii) and (C)
of the Code. Limited Guarantor for its current "tax year" (as
defined in the Code) is entitled to a dividends paid deduction
under the requirements of Section 857 of the Code with respect
to any dividends paid by it with respect to each such year for
which it claims a deduction in its Form 1120-REIT filed with
the United States Internal Revenue Service for such year.
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b. With respect to every Purchased Asset, each Mezzanine Loan and
each Mezzanine Loan Junior Interest, each of Seller, the Mezzanine
Loan Subsidiary and Limited Guarantor represents and warrants to
Buyer as of the applicable Purchase Date for any Transaction and
each date thereafter that each representation and warranty set forth
on Schedule 1 is true and correct.
c. The representations and warranties set forth in this Agreement
shall survive transfer of the Purchased Assets and pledge of the
Mezzanine Loans and Mezzanine Loan Junior Interests to Buyer and
shall continue for so long as the Purchased Assets, Mezzanine Loans
and Mezzanine Loan Junior Interests are subject to this Agreement.
Upon discovery by Seller, Mezzanine Loan Subsidiary, Limited
Guarantor, Servicer or Buyer of any breach of any of the
representations or warranties set forth in this Agreement, the party
discovering such breach shall promptly give notice of such discovery
to the others. Buyer has the right to require, in its unreviewable
discretion, Seller to repurchase or request a Purchase Price
Decrease within 1 Business Day after receipt of notice from Buyer
any Purchased Asset (i) for which a breach of one or more of the
representations and warranties referenced in Section 13(b) exists
and which breach has a material adverse effect on the value of such
Mortgage Loan or the interests of Buyer or (ii) which is determined
by Buyer, in its good faith discretion, to be unacceptable for
inclusion in a securitization.
Unless the Seller buys back the related Purchased Asset at the
Repurchase Price or makes a Purchase Price Decrease in the amount of
the Purchase Price Increase with respect to the related Mezzanine
Loan or Mezzanine Loan Junior Interests, with respect to each
Purchased Asset, Mezzanine Loan and Mezzanine Loan Junior Interest,
the Seller and the Mezzanine Loan Subsidiary agree that they shall
enforce all repurchase requirements set forth in the related Asset
Purchase Agreement related to representations and warranties made by
the seller of such Purchased Asset and/or Mezzanine Loan or
Mezzanine Loan Junior Interest.
14. Covenants
Each of Seller and Limited Guarantor covenants with Buyer that, during the term
of this facility:
a. Litigation. Seller and Limited Guarantor, as applicable, will
promptly, and in any event within ten (10) days after service of
process on any of the following, give to Buyer notice of all
litigation, actions, suits, arbitrations, investigations (including,
without limitation, any of the foregoing which are threatened or
pending) or other legal or arbitrable proceedings affecting Seller,
Limited Guarantor or the Mezzanine Loan Subsidiary or affecting any
of the Property of any of them before any Governmental Authority
that (i) questions or challenges the validity or enforceability of
any of the Program Agreements or any action to be taken in
connection with the transactions contemplated hereby, (ii) makes a
claim in an aggregate amount greater than (A) with respect to the
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Seller and the Mezzanine Loan Subsidiary, $1,000,000, and (B) with
respect to the Limited Guarantor, $10,000,000, or (iii) which,
individually or in the aggregate, if adversely determined, could be
reasonably likely to have a Material Adverse Effect. Seller and
Limited Guarantor, as applicable, will promptly provide notice of
any judgment, which with the passage of time, could cause an Event
of Default hereunder.
b. Prohibition of Fundamental Changes. Neither Seller nor Limited
Guarantor shall enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation, winding up or dissolution) or
sell all or substantially all of its assets; provided, that Seller
and Limited Guarantor may merge or consolidate with (a) any wholly
owned subsidiary of Seller, or (b) any other Person if Seller or
Limited Guarantor is the surviving corporation; and provided
further, that if after giving effect thereto, no Default would exist
hereunder.
c. Servicer. Upon the occurrence of any of the following (a) the
occurrence and continuation of an Event of Default, (b) the fifth
Business Day of each month, or (c) upon the request of Buyer, Seller
shall cause Servicer to provide to Buyer, electronically, in a
format mutually acceptable to Buyer and Seller, by no later than the
Reporting Date, a Servicing Report. Seller shall not cause the
Purchased Assets to be serviced by any servicer other than a
servicer expressly approved in writing by Buyer, which approval
shall be deemed granted by Buyer with respect to Seller with the
execution of this Agreement.
d. Insurance. The Seller or Limited Guarantor shall continue to
maintain, for Seller and its Subsidiaries, Fidelity Insurance in an
aggregate amount at least equal to $2,000,000. The Seller or Limited
Guarantor shall maintain, for Seller and its Subsidiaries, Fidelity
Insurance in respect of its officers, employees and agents, with
respect to any claims made in connection with all or any portion of
the Repurchase Assets. The Seller or Limited Guarantor shall notify
the Buyer of any material change in the terms of any such Fidelity
Insurance.
e. No Adverse Claims. Seller warrants and will defend, and shall
cause any Servicer to defend, the right, title and interest of Buyer
in and to all Purchased Assets and the related Repurchase Assets
against all adverse claims and demands.
f. Assignment. Except as permitted herein, neither Seller nor any
Servicer shall sell, assign, transfer or otherwise dispose of, or
grant any option with respect to, or pledge, hypothecate or grant a
security interest in or lien on or otherwise encumber (except
pursuant to the Program Agreements), any of the Purchased Assets or
any interest therein, provided that this Section shall not prevent
any transfer of Purchased Assets in accordance with the Program
Agreements.
g. Security Interest. Seller shall do all things necessary to
preserve the Purchased Assets and the related Repurchase Assets so
that they remain subject to a first priority perfected security
interest hereunder. Without limiting the foregoing, Seller will
comply with all applicable rules, regulations and other laws of any
Governmental Authority and cause the Purchased Assets or the related
Repurchase Assets to comply with all applicable rules, regulations
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and other laws. Seller will not allow any default for which Seller
is responsible to occur under any Purchased Assets or the related
Repurchase Assets or any Program Agreement and Seller shall fully
perform or cause to be performed when due all of its obligations
under any Purchased Assets or the related Repurchase Assets and any
Program Agreement.
h. Records.
(i) Seller shall collect and maintain or cause to
be collected and maintained all Records relating to the
Purchased Assets in accordance with industry custom and
practice for assets similar to the Purchased Assets, including
those maintained pursuant to the preceding subparagraph, and
all such Records shall be in Custodian's possession unless
Buyer otherwise approves. Seller will not cause any such
papers, records or files that are an original or an only copy
to leave Custodian's possession, except for individual items
removed in connection with servicing a specific Mortgage Loan,
in which event Seller will obtain or cause to be obtained a
receipt from a financially responsible person for any such
paper, record or file. Seller or the Servicer of the Purchased
Assets will maintain all such Records not in the possession of
Custodian in good and complete condition in accordance with
industry practices for assets similar to the Purchased Assets
and preserve them against loss.
(ii) For so long as Buyer has an interest in or
lien on any Purchased Asset, Seller will hold or cause to be
held all related Records for and on behalf of Buyer in
accordance with the terms of this Agreement. Seller shall
notify, or cause to be notified, every other party holding any
such Records of the interests and liens in favor of Buyer
granted hereby.
(iii) Upon reasonable advance notice from
Custodian or Buyer, Seller shall (x) make any and all such
Records available to Custodian or Buyer to examine any such
Records, either by its own officers or employees, or by agents
or contractors, or both, and make copies of all or any portion
thereof, and (y) permit Buyer or its authorized agents to
discuss the affairs, finances and accounts of Seller with its
chief operating officer and chief financial officer and to
discuss the affairs, finances and accounts of Seller with its
independent certified public accountants.
i. Books. Seller shall keep or cause to be kept in reasonable detail
books and records of account of its assets and business and shall
clearly reflect therein the transfer of Purchased Assets to Buyer.
j. Approvals. Seller shall maintain all licenses, permits or other
approvals necessary for Seller to conduct its business and to
perform its obligations under the Program Agreements, and Seller
shall conduct its business strictly in accordance with applicable
law.
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k. Material Change in Business. Neither Seller nor Limited Guarantor
shall make any material change in the nature of its business as
carried on at the date hereof. There shall be no material change in
the senior management of Seller.
l. Reserved.
m. Financial Covenants:
(i) Limited Guarantor shall maintain an Adjusted
Tangible Net Worth greater than or equal to $200,000,000.
(ii) Limited Guarantor's s ratio of Indebtedness
to Adjusted Tangible Net Worth shall not exceed 5:1.
n. Applicable Law. Seller and Limited Guarantor shall comply with
the requirements of all applicable laws, rules, regulations and
orders of any Governmental Authority.
o. Existence. Seller and the Limited Guarantor shall preserve and
maintain their legal existence and all of their material rights,
privileges, licenses and franchises.
p. Chief Executive Office; Jurisdiction of Organization. Seller
shall not move its chief executive office from the address referred
to in Section 13(a)(17) or change its jurisdiction of organization
from the jurisdiction referred to in Section 13(a)(17) unless it
shall have provided Buyer 30 days' prior written notice of such
change.
q. Taxes. Seller and Limited Guarantor shall timely file all tax
returns that are required to be filed by them and shall timely pay
and discharge all taxes, assessments and governmental charges or
levies imposed on it or on its income or profits or on any of its
property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is
being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained.
r. Transactions with Affiliates. Seller will not enter into any
transaction, including, without limitation, any purchase, sale,
lease or exchange of property or the rendering of any service, with
any Affiliate unless such transaction is (a) not prohibited under
the Program Agreements, (b) in the ordinary course of Seller's
business and (c) upon fair and reasonable terms no less favorable to
Seller than it would obtain in a comparable arm's length transaction
with a Person which is not an Affiliate, or make a payment that is
not otherwise permitted by this Section to any Affiliate.
s. Guarantees. Seller shall not create, incur, assume or suffer to
exist any Guarantees.
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t. Indebtedness. Seller shall not incur any additional Indebtedness
without the prior written consent of Buyer.
u. True and Correct Information. All information, reports, exhibits,
schedules, financial statements or certificates of Seller, Limited
Guarantor, any Affiliate thereof or any of their officers furnished
to Buyer hereunder and during Buyer's diligence of Seller and
Limited Guarantor are and will be true and complete and do not omit
to disclose any material facts necessary to make the statements
herein or therein, in light of the circumstances in which they are
made, not misleading. All required financial statements, information
and reports delivered by Seller to Buyer pursuant to this Agreement
shall be prepared in accordance with U.S. GAAP, or, if applicable,
to SEC filings, the appropriate SEC accounting regulations.
v. Plan Assets. Seller shall not be an employee benefit plan as
defined in Section 3 of Title I of ERISA, or a plan described in
Section 4975(e)(1) of the Code and the Seller shall not use "plan
assets" within the meaning of 29 CFR ss.2510.3-101 to engage in this
Agreement or any Transaction hereunder.
w. SPE Covenant Separateness. Seller shall (a) own no assets, and
will not engage in any business, other than the assets and
transactions specifically contemplated by this Agreement and assets
of similar type not subject to Transactions hereunder; (b) not incur
any Indebtedness or obligation, secured or unsecured, direct or
indirect, absolute or contingent (including guaranteeing any
obligation), other than pursuant hereto; (c) not make any loans or
advances to any third party, and shall not acquire obligations or
securities of its affiliates; (d) pay its debts and liabilities
(including, as applicable, shared personnel and overhead expenses)
only from its own assets; (e) comply with the provisions of its
organizational documents; (f) do all things necessary to observe
organizational formalities and to preserve its existence, and will
not amend, modify or otherwise change its organizational documents,
or suffer same to be amended, modified or otherwise changed, without
the prior written consent of Buyer; (g) maintain all of its books,
records, and bank accounts separate from those of its Affiliates;
(h) be, and at all times will hold itself out to the public as, a
legal entity separate and distinct from any other entity (including
any Affiliate), shall correct any known misunderstanding regarding
its status as a separate entity, shall conduct business in its own
name, shall not identify itself or any of its affiliates as a
division or part of the other and shall maintain and utilize
separate stationery, invoices and checks; (i) maintain adequate
capital for the normal obligations reasonably foreseeable in a
business of its size and character and in light of its contemplated
business operations; (j) not engage in or suffer any Change of
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Control, dissolution, winding up, liquidation, consolidation or
merger in whole or in part; (k) not commingle its funds or other
assets with those of any Affiliate or any other Person; (l) maintain
its assets in such a manner that it will not be costly or difficult
to segregate, ascertain or identify its individual assets from those
of any affiliate or any other person; (m) not and will not hold
itself out to be responsible for the debts or obligations of any
other Person; (n) cause each of its direct and indirect owners to
agree not to (i) file or consent to the filing of any bankruptcy,
insolvency or reorganization case or proceeding with respect to
Seller; institute any proceedings under any applicable insolvency
law or otherwise seek any relief under any laws relating to the
relief from debts or the protection of debtors generally with
respect to Seller; (ii) seek or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator, custodian or
any similar official for Seller or a substantial portion of its
properties; or (iii) make any assignment for the benefit of Seller's
creditors.
x. Mezzanine Loan Subsidiary Separateness. Mezzanine Loan Subsidiary
shall (a) own no assets, and will not engage in any business, other
than the assets and transactions specifically contemplated by this
Agreement and assets of similar type not subject to Transactions
hereunder; (b) not incur any Indebtedness or obligation, secured or
unsecured, direct or indirect, absolute or contingent (including
guaranteeing any obligation), other than pursuant hereto; (c) not
make any loans or advances to any third party and shall not acquire
obligations or securities of its affiliates; (d) pay its debts and
liabilities (including, as applicable, shared personnel and overhead
expenses) only from its own assets; (e) comply with the provisions
of its organizational documents; (f) do all things necessary to
observe organizational formalities and to preserve its existence,
and will not amend, modify or otherwise change its organizational
documents, or suffer same to be amended, modified or otherwise
changed, without the prior written consent of Buyer; (g) maintain
all of its books, records, and bank accounts separate from those of
its Affiliates; (h) be, and at all times will hold itself out to the
public as, a legal entity separate and distinct from any other
entity (including any Affiliate), shall correct any known
misunderstanding regarding its status as a separate entity, shall
conduct business in its own name, shall not identify itself or any
of its affiliates as a division or part of the other and shall
maintain and utilize separate stationery, invoices and checks; (i)
maintain adequate capital for the normal obligations reasonably
foreseeable in a business of its size and character and in light of
its contemplated business operations; (j) not engage in or suffer
any change of ownership, dissolution, winding up, liquidation,
consolidation or merger in whole or in part; (k) not commingle its
funds or other assets with those of any Affiliate or any other
Person; (l) maintain its assets in such a manner that it will not be
costly or difficult to segregate, ascertain or identify its
individual assets from those of any affiliate or any other person;
(m) not and will not hold itself out to be responsible for the debts
or obligations of any other Person; (n) cause each of its direct and
indirect owners to agree not to (i) file or consent to the filing of
any bankruptcy, insolvency or reorganization case or proceeding with
respect to Mezzanine Loan Subsidiary; institute any proceedings
under any applicable insolvency law or otherwise seek any relief
under any laws relating to the relief from debts or the protection
of debtors generally with respect to Seller; (ii) seek or consent to
the appointment of a receiver, liquidator, assignee, trustee,
sequestrator, custodian or any similar official for Mezzanine Loan
Subsidiary or a substantial portion of its properties; or (iii) make
any assignment for the benefit of Mezzanine Loan Subsidiary's
creditors.
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15. Events of Default
Each of the following shall constitute an "Event of Default"
hereunder:
a. Payment Failure. Failure of Seller to (i) make any payment of
Price Differential or Repurchase Price or any other sum which has
become due, on a Price Differential Payment Date or a Repurchase
Date or otherwise, whether by acceleration or otherwise, under the
terms of this Agreement, any other warehouse and security agreement
or any other document evidencing or securing Indebtedness of Seller
to Buyer or to any Affiliate of Buyer on or prior to the earlier of
(1) the expiration of any applicable grace period set forth in this
Agreement or (2) 5 Business Days following the date on which Seller
has knowledge of such failure to make a payment, or (ii) cure any
Margin Deficit when due pursuant to Section 6 hereof.
b. Cross Default. (i) Seller shall be in default under (i) any
Indebtedness of Seller, in the aggregate, in excess of $1,000,000
which default (1) involves the failure to pay a matured obligation,
or (2) permits the acceleration of the maturity of obligations by
any other party to or beneficiary with respect to such Indebtedness,
(ii) Limited Guarantor shall be in default under (i) any
Indebtedness of Limited Guarantor, in the aggregate, in excess of
$10,000,000 which default (1) involves the failure to pay a matured
obligation to the Limited Guarantor, or (2) permits the acceleration
of the maturity of obligations by any other party to or beneficiary
with respect to such Indebtedness, or (iii) Seller shall be in
default under any other contract or contracts, in the aggregate in
excess of $1,000,000 to which Seller is a party which default (1)
involves the failure to pay a matured obligation, or (2) permits the
acceleration of the maturity of obligations by any other party to or
beneficiary of such contract.
c. Assignment. Assignment or attempted assignment by Seller,
Mezzanine Loan Subsidiary or Limited Guarantor of this Agreement or
any rights hereunder without first obtaining the specific written
consent of Buyer, or the granting by Seller of any security
interest, lien or other encumbrances on any Purchased Assets to any
person other than Buyer.
d. Insolvency. An Act of Insolvency shall have occurred with respect
to Seller, Mezzanine Loan Subsidiary or Limited Guarantor.
e. Material Adverse Change. Any material adverse change in the
Property (in the aggregate owned by such entity), business,
financial condition or operations of Seller, Mezzanine Loan
Subsidiary or Limited Guarantor shall occur, in each case as
determined by Buyer in its sole good faith discretion, or any other
condition shall exist which, in Buyer's sole good faith discretion,
constitutes a material impairment of Seller's ability to perform its
obligations under this Agreement or any other Program Agreement.
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f. Breach of Identified Representation or Covenant or Obligation. A
breach by Seller or Limited Guarantor in any material respect of any
of the representations, warranties or covenants or obligations set
forth in Sections 13(a)(1), 13(a)(7), 13(a)(12), 14b, 14o, 14s, 14t,
14v, 14w or 14x of this Agreement.
g. Breach of Non-Identified Representation or Covenant. A breach by
Seller, Mezzanine Loan Subsidiary or Limited Guarantor of any other
material representation, warranty or covenant set forth in this
Agreement (and not otherwise specified in Section 15(f) above), if
such breach is not cured within five (5) Business Days (other than
the representations and warranties set forth in Schedule 1, which
shall be considered solely for the purpose of determining the Market
Value, the existence of a Margin Deficit and the obligation to
repurchase such Mortgage Loan) unless (i) such party shall have made
any such representations and warranties with Knowledge that they
were materially false or misleading at the time made, (ii) any such
representations and warranties have been determined by Buyer in its
reasonable discretion to be materially false or misleading on a
regular basis, or (iii) Buyer, in its reasonable discretion,
determines that such breach of a material representation, warranty
or covenant materially and adversely affects (A) the condition
(financial or otherwise) of such party; or (B) Buyer's determination
to enter into this Agreement or Transactions with such party, then
such breach shall constitute an immediate Event of Default and
Seller shall have no cure right hereunder).
h. Limited Guarantor Breach. A breach by Limited Guarantor of any
material representation, warranty or covenant set forth in the
Limited Guaranty or any other Program Agreement which continues
beyond any applicable notice and/or grace period, any "event of
default" by Limited Guarantor under the Limited Guaranty, any
repudiation of the Limited Guaranty by Limited Guarantor, or if the
Limited Guaranty is not enforceable against Limited Guarantor.
i. Change of Control. The occurrence of a Change in Control.
j. Judgment. A final judgment or judgments for the payment of money
in excess of $1,000,000 individually or in the aggregate shall be
rendered against the Seller or Mezzanine Loan Subsidiary by one or
more courts, administrative tribunals or other bodies having
jurisdiction and the same shall not be satisfied, discharged (or
provision shall not be made for such discharge) or bonded, or a stay
of execution thereof shall not be procured, within 30 days from the
date of entry thereof.
k. Government Action. Any Governmental Authority or any person,
agency or entity acting or purporting to act under governmental
authority shall have taken any action to condemn, seize or
appropriate, or to assume custody or control of, all or any
substantial part of the Property of Seller, Mezzanine Loan
Subsidiary or Limited Guarantor or shall have taken any action to
displace the management of Seller, Mezzanine Loan Subsidiary or
Limited Guarantor or to curtail its authority in the conduct of the
business of Seller, Mezzanine Loan Subsidiary, or Limited Guarantor
hereof, or takes any action in the nature of enforcement to remove,
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limit or restrict the approval of Seller, Mezzanine Loan Subsidiary
or Limited Guarantor as an issuer, buyer or a seller/servicer of
Mortgage Loans or securities backed thereby, and such action
provided for in this subparagraph m shall not have been discontinued
or stayed within 30 days.
l. Inability to Perform. An officer of Seller, Mezzanine Loan
Subsidiary or Limited Guarantor shall admit its inability to, or its
intention not to, perform any of Seller's Obligations or Mezzanine
Loan Subsidiary's or Limited Guarantor's obligations hereunder or
the Limited Guaranty.
m. Financial Statements. Seller's, Mezzanine Loan Subsidiary's or
Limited Guarantor's audited annual financial statements or the notes
thereto or other opinions or conclusions stated therein shall be
qualified or limited by reference to the status of Seller or Limited
Guarantor as a "going concern" or a reference of similar import.
n. REIT Asset and Income Tests. The failure of Limited Guarantor to
satisfy any of the following asset or income tests and Buyer has
delivered notice of an Event of Default to the Sellers with respect
thereto:
(i) At the close of each taxable year, at least 75 percent of
Limited Guarantor'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.
(ii) At the close of each taxable year, at least 95 percent of
Limited Guarantor's gross income consists of (i) the items of income
described in paragraph 1 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, and
(iv) dividends, in each case within the meaning of Section 856(c)(2)
of the Code.
(iii) At the close of each quarter of Limited Guarantor's
taxable years, at least 75 percent of the value of Limited
Guarantor'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 Limited Guarantor's
operations, but not including receivables purchased from another
person), and Government Securities; unless (a) the test described in
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this paragraph (3) has been satisfied as of the end of the
immediately preceding quarter of Limited Guarantor's taxable year,
(b) such test is not satisfied as the result of the acquisition of a
security or property during the current quarter of Limited
Guarantor's taxable year, (c) Limited Guarantor delivers within 10
days of the end of the current quarter of Limited Guarantor's
taxable year to Buyer notice that such test is not satisfied, (d)
such test is satisfied within the 30 day period as provided under
section 856(c)(4), and (e) an officer of Limited Guarantor certifies
as to such satisfaction within such 30 day period, and provides
documentation, reasonably satisfactory to Buyer evidencing such
satisfaction.
(iv) At the close of each quarter of each of Limited
Guarantor's taxable years, (a) not more than 25 percent of Limited
Guarantor's total asset value will be represented by securities
(other than those described in paragraph 3), (b) not more than 20
percent of Limited Guarantor'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 Limited Guarantor's total
assets will be represented by securities of any one issuer (other
than Government Securities and securities of taxable REIT
subsidiaries), and (ii) Limited Guarantor 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
Government Securities, securities of taxable REIT subsidiaries, and
securities of a qualified REIT subsidiary within the meaning of
Section 856(i) of the Code); unless (d) the tests described in this
paragraph (4) have been satisfied as of the end of the immediately
preceding quarter of Limited Guarantor's taxable year, (e) any of
the tests described in this paragraph (4) are not satisfied as the
result of the acquisition of a security or property during the
current quarter of Limited Guarantor's taxable year, (f) Limited
Guarantor delivers within 10 days of the end of the current quarter
of Limited Guarantor's taxable year to Buyer notice that such test
is not satisfied, (g) such test is satisfied within the 30 day
period as provided under section 856(c)(4), and (h) an officer of
Limited Guarantor certifies as to such satisfaction within such 30
day period, and provides documentation, reasonably satisfactory to
Buyer evidencing such satisfaction."
An Event of Default shall be deemed to be continuing unless
expressly waived by Buyer in writing.
16. Remedies Upon Default
In the event that an Event of Default shall have occurred and be
continuing:
a. Buyer may, at its option (which option shall be deemed to have
been exercised immediately upon the occurrence of an Act of
Insolvency of Seller, Limited Guarantor or Mezzanine Loan
Subsidiary), declare an Event of Default to have occurred hereunder
and, upon the exercise or deemed exercise of such option, the
Repurchase Date for each Transaction hereunder shall, if it has not
already occurred, be deemed immediately to occur (except that, in
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the event that the Purchase Date for any Transaction has not yet
occurred as of the date of such exercise or deemed exercise, such
Transaction shall be deemed immediately canceled). Buyer shall
(except upon the occurrence of an Act of Insolvency) give notice to
Seller and Limited Guarantor of the exercise of such option as
promptly as practicable.
b. If Buyer exercises or is deemed to have exercised the option
referred to in subparagraph (a) of this Section, (i) Seller's
obligations in such Transactions to repurchase all Purchased Assets,
at the Repurchase Price therefor on the Repurchase Date determined
in accordance with subparagraph (a) of this Section, shall thereupon
become immediately due and payable, (ii) all Income paid after such
exercise or deemed exercise shall be retained by Buyer and applied,
in Buyer's sole discretion, to the aggregate unpaid Repurchase
Prices for all outstanding Transactions and any other amounts owing
by Seller hereunder, and (iii) Seller shall immediately deliver to
Buyer the Asset Files relating to any Purchased Assets subject to
such Transactions then in Seller's possession or control.
c. Buyer also shall have the right to obtain physical possession,
and to commence an action to obtain physical possession, of all
Records and files of Seller relating to the Purchased Assets and all
documents relating to the Purchased Assets (including, without
limitation, any legal, credit or servicing files with respect to the
Purchased Assets) which are then or may thereafter come in to the
possession of Seller or any third party acting for Seller. To obtain
physical possession of any Purchased Assets held by Custodian, Buyer
shall present to Custodian a Trust Receipt. Buyer shall be entitled
to specific performance of all agreements of Seller contained in
this Agreement.
d. Buyer shall have the right to direct all servicers then servicing
any Purchased Assets to remit all collections thereon to Buyer, and
if any such payments are received by Seller, Seller shall not
commingle the amounts received with other funds of Seller and shall
promptly pay them over to Buyer. Buyer shall also have the right to
terminate any one or all of the servicers then servicing any
Purchased Assets with or without cause. In addition, Buyer shall
have the right to immediately sell the Purchased Assets and
liquidate all Repurchase Assets. Such disposition of Purchased
Assets may be, at Buyer's option, on either a servicing-released or
a servicing-retained basis. Buyer shall not be required to give any
warranties as to the Purchased Assets with respect to any such
disposition thereof. Buyer may specifically disclaim or modify any
warranties of title or the like relating to the Purchased Assets.
The foregoing procedure for disposition of the Purchased Assets and
liquidation of the Repurchase Assets shall not be considered to
adversely affect the commercial reasonableness of any sale thereof.
Seller agrees that it would not be commercially unreasonable for
Buyer to dispose of the Purchased Assets or the Repurchase Assets or
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any portion thereof by using Internet sites that provide for the
auction of assets similar to the Purchased Assets or the Repurchase
Assets, or that have the reasonable capability of doing so, or that
match buyers and sellers of assets. Buyer shall be entitled to place
the Purchased Assets in a pool for issuance of mortgage-backed
securities at the then-prevailing price for such securities and to
sell such securities for such prevailing price in the open market.
Buyer shall also be entitled to sell any or all of such Purchased
Assets individually for the prevailing price. Buyer shall also be
entitled, in its sole discretion to elect, in lieu of selling all or
a portion of such Purchased Assets, to give the Seller credit for
such Purchased Assets and the Repurchase Assets in an amount equal
to the Market Value of the Purchased Assets against the aggregate
unpaid Repurchase Price and any other amounts owing by the Seller
hereunder.
e. Upon the happening of one or more Events of Default, Buyer may
apply any proceeds from the liquidation of the Purchased Assets and
Repurchase Assets to the Repurchase Prices hereunder and all other
Obligations in the manner Buyer deems appropriate in its sole
discretion.
f. Seller shall be liable to Buyer for (i) the amount of all
reasonable legal or other expenses (including, without limitation,
all reasonable costs and expenses of Buyer in connection with the
enforcement of this Agreement or any other agreement evidencing a
Transaction, whether in action, suit or litigation or bankruptcy,
insolvency or other similar proceeding affecting creditors' rights
generally, further including, without limitation, the reasonable
fees and expenses of counsel (including the costs of internal
counsel of Buyer) incurred in connection with or as a result of an
Event of Default, (ii) damages in an amount equal to the reasonable
cost (including all reasonable fees, expenses and commissions) of
entering into replacement transactions and entering into or
terminating hedge transactions in connection with or as a result of
an Event of Default, and (iii) any other loss, damage, cost or
expense directly arising or resulting from the occurrence of an
Event of Default in respect of a Transaction.
g. To the extent permitted by applicable law, Seller shall be liable
to Buyer for interest on any amounts owing by Seller hereunder, from
the date Seller becomes liable for such amounts hereunder until such
amounts are (i) paid in full by Seller or (ii) satisfied in full by
the exercise of Buyer's rights hereunder. Interest on any sum
payable by Seller under this Section 16(g) shall be at a rate equal
to the Post Default Rate.
h. Buyer shall have, in addition to its rights hereunder, any rights
otherwise available to it under any other agreement with Seller or
applicable law.
i. Buyer may exercise one or more of the remedies available to Buyer
immediately upon the occurrence of an Event of Default and, except
to the extent provided in subsections (a) and (d) of this Section,
at any time thereafter during the continuation of such Event of
Default without notice to Seller. All rights and remedies arising
under this Agreement as amended from time to time hereunder are
cumulative and not exclusive of any other rights or remedies which
Buyer may have.
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j. Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and Seller hereby expressly waives any
defenses Seller might otherwise have to require Buyer to enforce its
rights by judicial process. Seller also waives any defense (other
than a defense of payment or performance) Seller might otherwise
have arising from the use of nonjudicial process, enforcement and
sale of all or any portion of the Repurchase Assets, or from any
other election of remedies. Seller recognizes that nonjudicial
remedies are consistent with the usages of the trade, are responsive
to commercial necessity and are the result of a bargain at arm's
length.
k. Buyer shall have the right to perform reasonable due diligence
with respect to Seller and the Purchased Assets, which review shall
be at the expense of Seller.
l. The Seller recognizes the Buyer may be unable to effect a public
sale of any or all of the Purchased Assets. The Seller acknowledges
and agrees that any such private sale may result in prices and other
terms less favorable to the Buyer than if such sale were a public
sale and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially
reasonable manner. The Buyer shall be under no obligation to delay a
sale of any of the Securities for the period of time necessary to
permit the Seller to register such securities for public sale under
the 1933 Act, or under applicable state securities laws, even if the
Seller would agree to do so.
m. Nothing contained in the Agreement shall obligate Buyer to
segregate any Purchased Assets delivered to Buyer by Seller.
Notwithstanding anything to the contrary set forth in the Agreement,
in no event shall Purchased Assets remain in the custody of Seller
or any Affiliate of Seller.
n. Upon any default of the Buyer under the provisions of this
Agreement, the Seller shall be entitled to seek specific performance
and/or damages.
17. Reports
a. Notices. Seller or Limited Guarantor shall furnish to Buyer (x)
promptly, copies of any material and adverse notices (including,
without limitation, notices of defaults, breaches, potential
defaults or potential breaches) relating to the Purchased Assets,
Mezzanine Loans, or Mezzanine Loan Junior Interests and any material
financial information relating to the Purchased Assets ,the
Mezzanine Loans or the Mezzanine Loan Junior Interests that is not
otherwise required to be provided by Seller hereunder which is given
to Seller's lenders, (y) immediately, notice of the occurrence of
any Event of Default hereunder or a default or breach by Seller or
Servicer or Limited Guarantor of any obligation under any Program
Agreement or any material contract or agreement of Seller or
Servicer or Limited Guarantor (or the occurrence of any other event
or circumstance) that such party reasonably expects has resulted in,
or will, with the passage of time, result in, a Material Adverse
Effect or an Event of Default and (z) the following:
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(i) as soon as available and in any event within
forty-five (45) calendar days after the end of each calendar
quarter, the unaudited consolidated balance sheets of Limited
Guarantor and its consolidated Subsidiaries as at the end of
such period and the related unaudited consolidated statements
of income and retained earnings and of cash flows for the
Limited Guarantor and its consolidated Subsidiaries for such
period and the portion of the fiscal year through the end of
such period, accompanied by a certificate of a Responsible
Officer of Limited Guarantor, which certificate shall state
that said consolidated financial statements fairly present in
all material respects the consolidated financial condition and
results of operations of Limited Guarantor and its
consolidated Subsidiaries in accordance with GAAP,
consistently applied, as at the end of, and for, such period
(subject to normal year-end adjustments);
(ii) as soon as available and in any event within
ninety (90) days after the end of each fiscal year of Limited
Guarantor, the consolidated balance sheets of Limited
Guarantor and its consolidated Subsidiaries as at the end of
such fiscal year and the related consolidated statements of
income and retained earnings and of cash flows for the Limited
Guarantor and its consolidated Subsidiaries for such year,
setting forth in each case in comparative form the figures for
the previous year, accompanied by an opinion thereon of
independent certified public accountants of recognized
national standing, which opinion and the scope of audit shall
be acceptable to Buyer in its sole discretion, shall have no
"going concern" qualification and shall state that said
consolidated financial statements fairly present the
consolidated financial condition and results of operations of
Limited Guarantor and its respective consolidated Subsidiaries
as at the end of, and for, such fiscal year in accordance with
GAAP;
(iii) such other statements prepared by Seller in
the ordinary course of business that Buyer may reasonably
request;
(iv) if applicable, copies of any 10-Ks, 10-Qs,
registration statements and other "corporate finance" SEC
filings (other than 8-Ks) by Seller or Limited Guarantor,
within 10 Business Days of their filing with the SEC;
provided, that, Limited Guarantor will provide Buyer and
Credit Suisse First Boston Corporation with a copy of the
annual 10-K filed with the SEC by Limited Guarantor, no later
than 90 days after the end of the year;
(v) as soon as available, and in any event within
thirty (30) days of receipt, copies of relevant portions of
all final written Governmental Authority audits, examinations,
evaluations, monitoring reviews and reports of Seller's
operations (including those prepared on a contract basis)
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which provide for or relate to (i) material corrective action
required, (ii) material sanctions proposed, imposed or
required, including without limitation notices of defaults,
notices of termination of approved status, notices of
imposition of supervisory agreements or interim servicing
agreements, and notices of probation, suspension, or
non-renewal, or (iii) "report cards," "grades" or other
classifications of the quality of Seller's operations;
(vi) as soon as available (using reasonable
efforts on the part of the Seller to obtain at least once per
calendar quarter0, financial statements with respect to the
underlying property related to the Purchased Assets;
(vii) from time to time such other information
regarding the financial condition, operations, or business of
the Limited Guarantor or Seller as Buyer may reasonably
request;
(viii) as soon as reasonably possible, and in any
event within thirty (30) days after a Responsible Officer of
the Limited Guarantor or Seller has knowledge of the
occurrence of any Event of Termination, stating the
particulars of such Event of Termination in reasonable detail;
(ix) As soon as reasonably possible, notice of any
of the following events:
(a) any material change in the insurance coverage required of
Seller, Limited Guarantor, Servicer or any other Person pursuant to
any Program Agreement, with a copy of evidence of same attached;
(b) any material dispute, litigation, investigation,
proceeding or suspension between Seller, Limited Guarantor or
Servicer, on the one hand, and any Governmental Authority or any
Person;
(c) any material change in accounting policies or financial
reporting practices of Seller, Limited Guarantor or Servicer;
(d) with respect to any Purchased Asset, immediately upon
receipt of notice or knowledge thereof, that the underlying
Mortgaged Property has been damaged by waste, fire, earthquake or
earth movement, windstorm, flood, tornado or other casualty, or
otherwise damaged so as to affect materially and adversely the value
of such Purchased Asset;
(e) any material issues raised upon examination of Seller or
Seller's facilities by any Governmental Authority;
(f) any material change in the Indebtedness of the Seller,
including, without limitation, any default, renewal, non-renewal,
termination, increase in available amount or decrease in available
amount related thereto;
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(g) promptly upon receipt of notice or knowledge of (i) any
default related to any Repurchase Asset, (ii) any lien or security
interest (other than security interests created hereby or by the
other Program Agreements) on, or claim asserted against, any of the
Purchased Assets; and
(h) any other event, circumstance or condition that has
resulted, or has a possibility of resulting, in a Material Adverse
Effect with respect to Seller or Servicer.
b. Officer's Certificates. Seller will furnish to Buyer, at the time
the Seller furnishes each set of financial statements pursuant to
Section 17(a)(1) or (2) above, a certificate of a Responsible
Officer of Seller in the form of Exhibit D hereto.
c. Servicing Reports. Seller will furnish to Buyer a Servicing
Report by no later than the Reporting Date.
d. Distribution Worksheet. Seller shall provide to Buyer,
electronically, in a format mutually acceptable to Buyer and Seller,
a Distribution Worksheet by no later than the Reporting Date.
e. Other. Seller shall deliver to Buyer any other reports or
information reasonably requested by Buyer or as otherwise required
pursuant to this Agreement.
18. Repurchase Transactions
Buyer may, in its sole election, engage in repurchase transactions
with the Purchased Assets or otherwise pledge, hypothecate, assign, transfer or
otherwise convey the Purchased Assets with a counterparty of Buyer's choice
except that, prior to the occurrence of an Event of Default, Buyer shall not
engage in any such repurchase transaction, pledge, hypothecation with a
Competitor. Unless an Event of Default shall have occurred and be continuing, no
such transaction shall relieve Buyer of its obligations to transfer Purchased
Assets to Seller pursuant to Section 4 hereof, or of Buyer's obligation to
credit or pay Income to, or apply Income to the obligations of, Seller pursuant
to Section 7 hereof. In the event Buyer engages in a repurchase transaction with
any of the Purchased Assets or otherwise pledges or hypothecates any of the
Purchased Assets, Buyer shall have the right to assign to Buyer's counterparty
any of the applicable representations or warranties herein and the remedies for
breach thereof, as they relate to the Purchased Assets that are subject to such
repurchase transaction.
19. Single Agreement
Buyer and Seller acknowledge that, and have entered hereunto, and
will enter into each Transaction hereunder, in consideration of and in reliance
upon the fact that, all Transactions hereunder constitute a single business and
contractual relationship and have been made in consideration of each other.
Accordingly, each of Buyer and Seller agrees (i) to perform all of its
obligations in respect of each Transaction hereunder, and that a default in the
performance of any such obligations shall constitute a default by it in respect
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of all Transactions hereunder, (ii) that each of them shall be entitled to
set-off claims and apply property held by them in respect of any Transaction
against obligations owing to them in respect of any other Transactions hereunder
and (iii) that payments, deliveries and other transfers made by either of them
in respect of any Transaction shall be deemed to have been made in consideration
of payments, deliveries and other transfers in respect of any other Transactions
hereunder, and the obligations to make any such payments, deliveries and other
transfers may be applied against each other and netted.
20. Notices and Other Communications
Any and all notices (with the exception of Transaction Requests or
Purchase Confirmations, which shall be delivered via facsimile only),
statements, demands or other communications hereunder may be given by a party to
the other by commercial courier guaranteeing overnight delivery (e.g., Federal
Express), mail with return receipt, facsimile (providing confirmation of
transmission), hand delivery with receipt acknowledged or otherwise to the
address specified below, or so sent to such party at any other place specified
in a notice of change of address hereafter received by the other. Such notices
shall be effective upon receipt. All notices, demands and requests hereunder
shall be in writing, as specified in the preceding sentence.
If to Seller:
111 Debt Acquisition LLC
c/o Winthrop Realty Associates
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone Number: ▇▇▇ ▇▇▇-▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to:
111 Debt Acquisition LLC
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
Telephone: ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to:
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Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇: P.A. ▇▇▇▇▇▇
Phone: ▇▇▇ ▇▇▇-▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
If to the Limited Guarantor:
▇▇▇▇▇▇▇ Realty Trust, Inc.
c/o Winthrop Realty Associates
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone Number: ▇▇▇ ▇▇▇-▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Realty Trust, Inc
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
Telephone: ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇: P.A. ▇▇▇▇▇▇
Phone: ▇▇▇ ▇▇▇-▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
If to Buyer:
Column Financial, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Column Financial, Inc.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
21. Entire Agreement; Severability
This Agreement shall supersede any existing agreements between the
parties containing general terms and conditions for repurchase transactions.
Each provision and agreement herein shall be treated as separate and independent
from any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.
22. Non assignability
The Program Agreements are not assignable by Seller or Limited
Guarantor. Buyer may from time to time assign or participate all or a portion of
its rights and obligations under this Agreement and the Program Agreements;
provided, however that, prior to the occurrence of an Event of Default, the
Buyer shall not assign or participate this Agreement or the Program Agreements
to a Competitor without the consent of the Seller, and provided further Buyer
shall maintain as agent of Seller, for review by Seller upon written request, a
register of assignees and a copy of an executed assignment and acceptance by
Buyer and assignee ("Assignment and Acceptance"), specifying the percentage or
portion of such rights and obligations assigned. Upon such assignment, (a) such
assignee shall be a party hereto and to each Program Agreement to the extent of
the percentage or portion set forth in the Assignment and Acceptance, and shall
succeed to the applicable rights and obligations of Buyer hereunder, and (b)
Buyer shall be released from its obligations hereunder and under the Program
Agreements, to the extent that such rights and obligations have been so assigned
by it to a Person which assumes the obligations of Buyer, provided, that if such
Person has a net worth less than the Buyer, such release of Buyer from its
obligations hereunder and under the Program Agreement shall be subject to the
approval of Seller, which approval shall not be unreasonably withheld. Unless
otherwise stated in the Assignment and Acceptance, Seller shall continue to take
directions solely from Buyer unless otherwise notified by Buyer in writing.
Buyer may distribute to any prospective assignee any document or other
information delivered to Buyer by Seller.
23. Set-off
In addition to any rights and remedies of Buyer provided by law,
Buyer shall have the right, without prior notice to Seller, any such notice
being expressly waived by Seller to the extent permitted by applicable law, upon
any amount becoming due and payable by Seller hereunder (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
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provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by Buyer or any
branch or agency thereof to or for the credit or the account of Seller. Buyer
agrees promptly to notify Seller after any such set-off and application made by
Buyer; provided, that the failure to give such notice shall not affect the
validity of such set-off and application.
24. Binding Effect; Governing Law; Jurisdiction
a. This Agreement shall be binding and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns. Seller acknowledges that the obligations of Buyer hereunder
or otherwise are not the subject of any guaranty by, or recourse to,
any direct or indirect parent or other Affiliate of Buyer. THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY,
THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
b. SELLER, BUYER AND LIMITED GUARANTOR HEREBY WAIVE TRIAL BY JURY.
SELLER, BUYER AND LIMITED GUARANTOR HEREBY IRREVOCABLY CONSENT TO
THE EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK, OR
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS IN ANY
ACTION OR PROCEEDING. SELLER, BUYER AND LIMITED GUARANTOR HEREBY
SUBMIT TO, AND WAIVE ANY OBJECTION THEY MAY HAVE TO, EXCLUSIVE
PERSONAL JURISDICTION AND VENUE IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇ AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK, WITH RESPECT TO ANY DISPUTES ARISING OUT OF OR RELATING
TO THE PROGRAM AGREEMENTS.
25. No Waivers, Etc.
No express or implied waiver of any Event of Default by either party
shall constitute a waiver of any other Event of Default and no exercise of any
remedy hereunder by any party shall constitute a waiver of its right to exercise
any other remedy hereunder. No modification or waiver of any provision of this
Agreement and no consent by any party to a departure herefrom shall be effective
unless and until such shall be in writing and duly executed by both of the
parties hereto. Without limitation on any of the foregoing, the failure to give
a notice pursuant to Section 6(a)-(c), 16(a) or otherwise, will not constitute a
waiver of any right to do so at a later date provided that the right to give
such notice then continues to exist.
26. Intent
a. The parties recognize that each Transaction is a "repurchase
agreement" as that term is defined in Section 101 of Title 11 of the
United States Code, as amended (except insofar as the type of
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Purchased Assets subject to such Transaction or the term of such
Transaction would render such definition inapplicable), and a
"securities contract" as that term is defined in Section 741 of
Title 11 of the United States Code, as amended (except insofar as
the type of assets subject to such Transaction would render such
definition inapplicable).
b. It is understood that either party's right to liquidate Purchased
Assets delivered to it in connection with Transactions hereunder or
to exercise any other remedies pursuant to Section 16 hereof is a
contractual right to liquidate such Transaction as described in
Sections 555 and 559 of Title 11 of the United States Code, as
amended.
c. The parties agree and acknowledge that if a party hereto is an
"insured depository institution," as such term is defined in the
Federal Deposit Insurance Act, as amended ("FDIA"), then each
Transaction hereunder is a "qualified financial contract," as that
term is defined in FDIA and any rules, orders or policy statements
thereunder (except insofar as the type of assets subject to such
Transaction would render such definition inapplicable).
d. It is understood that this Agreement constitutes a "netting
contract" as defined in and subject to Title IV of the Federal
Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA") and
each payment entitlement and payment obligation under any
Transaction hereunder shall constitute a "covered contractual
payment entitlement" or "covered contractual payment obligation",
respectively, as defined in and subject to FDICIA (except insofar as
one or both of the parties is not a "financial institution" as that
term is defined in FDICIA).
e. This Agreement is intended to be a "repurchase agreement" and a
"securities contract," within the meaning of Section 555 and Section
559 under the Bankruptcy Code.
27. Disclosure Relating to Certain Federal Protections
The parties acknowledge that they have been advised that:
a. in the case of Transactions in which one of the parties is a
broker or dealer registered with the SEC under Section 15 of the
1934 Act, the Securities Investor Protection Corporation has taken
the position that the provisions of the SIPA do not protect the
other party with respect to any Transaction hereunder;
b. in the case of Transactions in which one of the parties is a
government securities broker or a government securities dealer
registered with the SEC under Section 15C of the 1934 Act, SIPA will
not provide protection to the other party with respect to any
Transaction hereunder; and
c. in the case of Transactions in which one of the parties is a
financial institution, funds held by the financial institution
pursuant to a Transaction hereunder are not a deposit and therefore
are not insured by the FDIC or the National Credit Union Share
Insurance Fund, as applicable.
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28. Power of Attorney
Seller hereby authorizes Buyer to file such financing statement or
statements relating to the Repurchase Assets without Seller's signature thereon
as Buyer, at its option, may deem appropriate. Seller hereby appoints Buyer as
Seller's agent and attorney-in-fact to execute any such financing statement or
statements in Seller's name and to perform all other acts which Buyer deems
appropriate to perfect and continue its ownership interest in and/or the
security interest granted hereby, if applicable, and to protect, preserve and
realize upon the Repurchase Assets, including, but not limited to, the right to
endorse notes, complete blanks in documents, transfer servicing, and sign
assignments on behalf of Seller as its agent and attorney-in-fact. This agency
and power of attorney is coupled with an interest and is irrevocable without
Buyer's consent. Notwithstanding the foregoing, the power of attorney hereby
granted may be exercised only during the occurrence and continuance of any Event
of Default hereunder. Seller shall pay the filing costs for any financing
statement or statements prepared pursuant to this Section 28.
29. Buyer May Act Through Affiliates
Buyer may, from time to time, designate one or more affiliates
for the purpose of performing any action hereunder.
30. Indemnification; Obligations
a. Seller agrees to hold Buyer and each of its respective Affiliates
and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") harmless from and indemnify each Indemnified
Party (and will reimburse each Indemnified Party as the same is
incurred) against all liabilities, losses, damages, judgments, costs
and expenses (including, without limitation, reasonable fees and
expenses of counsel) of any kind which may be imposed on, incurred
by, or asserted against any Indemnified Party relating to or arising
out of this Agreement, any Transaction Request, Purchase
Confirmation, any Program Agreement or any transaction contemplated
hereby or thereby resulting from anything other than the Indemnified
Party's gross negligence or willful misconduct (provided that the
Seller shall have no liability for any losses due to act or
omissions on the part of the Buyer or any counterparty pursuant to
any transaction entered into by the Buyer pursuant to Section 18 or
Section 22 hereof. Seller agrees to reimburse each Indemnified Party
for all reasonable expenses in connection with the enforcement of
this Agreement and the exercise of any right or remedy provided for
herein, any Transaction Request, Purchase Confirmation and any
Program Agreement, including, without limitation, the reasonable
fees and disbursements of counsel. Seller's agreements in this
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Section 30 shall survive the payment in full of the Repurchase Price
and the expiration or termination of this Agreement. Seller hereby
acknowledges that its obligations hereunder are recourse obligations
of Seller and are not limited to recoveries each Indemnified Party
may have with respect to the Purchased Assets. Seller also agrees
not to assert any claim against Buyer or any of its Affiliates, or
any of their respective officers, directors, employees, attorneys
and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise
relating to the facility established hereunder, the actual or
proposed use of the proceeds of the Transactions, this Agreement or
any of the transactions contemplated thereby. THE FOREGOING
INDEMNITY AND AGREEMENT NOT TO ASSERT CLAIMS EXPRESSLY APPLIES,
WITHOUT LIMITATION, TO THE NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT) OF THE INDEMNIFIED PARTIES.
b. Without limitation to the provisions of Section 4, if any payment
of the Repurchase Price of any Transaction is made by Seller other
than on the then scheduled Repurchase Date thereto as a result of an
acceleration of the Repurchase Date pursuant to Section 16 or for
any other reason, Seller shall, upon demand by Buyer, pay to Buyer
an amount sufficient to compensate Buyer for any losses, costs or
expenses described in Section 4(e) that it may reasonably incur as
of a result of such payment.
c. Without limiting the provisions of Section 30(a) hereof, if
Seller fails to pay when due any costs, expenses or other amounts
payable by it under this Agreement, including, without limitation,
reasonable fees and expenses of counsel and indemnities, such amount
may be paid on behalf of Seller by Buyer, in its sole discretion.
31. Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all such counterparts shall
together constitute one and the same instrument.
32. Confidentiality
This Agreement and its terms, provisions, supplements and
amendments, and notices hereunder, are proprietary to Buyer and Agent and shall
be held by Seller and Limited Guarantor in strict confidence and shall not be
disclosed to any third party without the written consent of Buyer except for (i)
disclosure to Seller's or Limited Guarantor's direct and indirect Affiliates and
Subsidiaries, investors, potential investors, attorneys or accountants, but only
to the extent such disclosure is necessary and such parties are directed to hold
all information in strict confidence, or (ii) disclosure required by law, rule,
regulation or order of a court or other regulatory body. All information
provided previously, herein or hereafter by Seller and Limited Guarantor and/or
their agents and affiliates (such entities, the "Disclosing Parties") pursuant
to this Agreement and/or pursuant to its terms, provisions, supplements and
amendments, or notices hereunder, and/or pursuant to any negotiations or
discussions prior to entering into this Agreement or transactions hereunder or
in any way related hereto (all such information collectively, "Seller
Information"), is proprietary to Seller and Limited Guarantor and shall be held
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by Buyer and its agents and affiliates in strict confidence and shall not be
disclosed to any third party without the prior written consent of Seller and
Limited Guarantor except for (i) disclosure to Buyer's direct and indirect
Affiliates and Subsidiaries, attorneys or accountants, but only to the extent
such disclosure is necessary for the purpose of the transactions hereunder and
such parties agree to hold all information in strict confidence, (ii) disclosure
required by law, rule, regulation or order of a court or other regulatory body,
(iii) if such Seller Information was already in the Buyer's and its agents' and
affiliates' possession prior to the date hereof other than pursuant to the
Transactions hereunder, (iv) is or becomes available to the Buyer and its agents
and affiliates from a source other than the Disclosing Party, provided that such
source is not known by the Buyer to be bound by a confidentiality agreement with
the Disclosing Party, (v) in connection with any assignment or participation
pursuant to Section 18 hereof; provided that any potential counterparty to which
such Seller Information is provided shall sign a confidentiality agreement with
respect to such Seller Information, (vi) is or becomes generally available to
the public, (vii) was or is independently developed by the Buyer and/or its
agents and affiliates, and/or (viii) in the event of an Event of Default the
Buyer determines such information to be necessary or desirable to disclose in
connection with the marketing and sales of the Purchased Assets or otherwise to
enforce or exercise the Buyer's rights hereunder. Buyer and its agents and
affiliates agree not to use any Seller Information for any purpose whatsoever
other than transactions hereunder and, prior to the occurrence of an Event of
Default hereunder, agree not to contact directly or indirectly any of the
underlying obligors under the Purchased Assets or their directors, officers,
employees, agents, or affiliates (collectively, the "Prohibited Contact
Persons") without the prior written consent of Seller and Limited Guarantor,
unless such contact is due solely to a prior relationship between Buyer and such
Prohibited Contact Person or due solely to a general non-targeted solicitation
of a category of similar persons and entities. Notwithstanding the foregoing or
anything to the contrary contained herein or in any other Program Agreement, the
parties hereto may disclose to any and all Persons, without limitation of any
kind, the federal, state and local tax treatment of the Transactions, any fact
relevant to understanding the federal, state and local tax treatment of the
Transactions, and all materials of any kind (including opinions or other tax
analyses) relating to such federal, state and local tax treatment and that may
be relevant to understanding such tax treatment; provided that Seller may not
disclose the name of or identifying information with respect to Buyer or Agent
or any pricing terms (including, without limitation, the Pricing Rate, Exit Fee,
Purchase Price Percentage and Purchase Price) or other nonpublic business or
financial information (including any sublimits and financial covenants) that is
unrelated to the federal, state and local tax treatment of the Transactions and
is not relevant to understanding the federal, state and local tax treatment of
the Transactions, without the prior written consent of the Buyer.
33. Recording of Communications
Buyer, Seller and Limited Guarantor shall have the right (but not
the obligation) from time to time to make or cause to be made tape recordings of
communications between its employees and those of the other party with respect
to Transactions. Buyer, Seller and Limited Guarantor consent to the
admissibility of such tape recordings in any court, arbitration, or other
proceedings. The parties agree that a duly authenticated transcript of such a
tape recording shall be deemed to be a writing conclusively evidencing the
parties' agreement.
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34. Exit Fee
In the event that a Purchased Asset (a) is repurchased before the
Termination Date and is not directly placed in a CDO Transaction or placed into
another investment banking transaction provided by and acceptable to Buyer or an
Affiliate of Buyer, or (b) is not repurchased before the Termination Date, the
Seller shall pay to the Buyer the applicable Exit Fee on such Repurchase Date to
the account set forth in Section 9. No Exit Fee shall be payable if (a) a CDO
Default occurs or (b) Seller repurchases a Purchased Asset due to a reduction of
its Market Value by the Buyer to a level which is commercially unreasonable
(which Seller shall have the right to do upon at least two (2) Business Days
notice to the Buyer).
35. Non-Recourse
Anything contained herein to the contrary notwithstanding, with the
exception of the Limited Guaranty, no recourse shall be had for the payment of
any obligation or liability hereunder or for any claim based hereon or otherwise
in respect hereof against (i) Limited Guarantor, any direct or indirect partner,
agent, contractor, director, officer, member, consultant, manager, stockholder,
subscriber to capital stock, incorporator, beneficiary, participant, trustee or
advisor of Seller or Limited Guarantor, any member in Seller, or any partner or
member therein; (ii) any legal representative, heir, estate, successor or assign
of any thereof; (iii) any corporation (or any officer, director, employee or
shareholder thereof), limited liability company (or member thereof), partnership
(or any partner thereof), individual or entity to which any ownership interest
in Seller shall have been directly or indirectly transferred; (iv) any purchaser
of any asset of Seller; or (v) any other Person (except Seller, to the extent
expressly set forth in the Program Agreements), for any deficiency or other sum
owing with respect to any obligation or liability arising under this Agreement.
It is understood that any obligation or liability under or with respect to this
Agreement may not be enforced against any Person described in clauses (i)
through (v) above; provided, however, that the foregoing provisions of this
paragraph shall not:
(a) prevent recourse to (i) Seller, the assets of Seller or any Purchased
Assets or (ii) against Limited Guarantor or its assets to the extent of the
Limited Guarantor's obligation under the Limited Guaranty;
(b) in the event of any fraud, misappropriation or misapplication of
funds, or intentional misrepresentation, estop Buyer from instituting or
prosecuting a legal action or proceeding or otherwise making a claim against the
Person or Persons committing such fraud, misappropriating or misapplying such
funds, or making such intentional misrepresentation, or the recipient or
beneficiary of such fraud, misappropriation or misapplication, whether or not
such person, recipient or beneficiary, is any Person described in clauses (i)
through (v) above for losses relating to or arising from such actual fraud,
misappropriation or misapplication, or intentional misrepresentation; or
(c) constitute a waiver, release or discharge or any obligation evidenced
by this Agreement, and the same shall continue until paid or discharged in full.
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36. Periodic Due Diligence Review
Seller acknowledges that Buyer has the right to perform continuing
due diligence reviews with respect to the Seller and the Purchased Assets, for
purposes of verifying compliance with the representations, warranties and
specifications and updating Market Value determinations, made hereunder, or
otherwise, and Seller agrees that upon reasonable (but no less than one (1)
Business Day's) prior notice unless an Event of Default shall have occurred, in
which case no notice is required, to Seller, Buyer or its authorized
representatives will be permitted during normal business hours to examine,
inspect, and make copies and extracts of, the Asset Files and any and all
documents, records, agreements, instruments or information relating to such
Purchased Assets in the possession or under the control of Seller, Limited
Guarantor and/or the Custodian. Seller also shall make available to Buyer a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting the Asset Files and the Purchased Assets. Without limiting
the generality of the foregoing, Seller acknowledges that Buyer may purchase
Purchased Assets from Seller based solely upon the information provided by
Seller to Buyer in the Purchased Asset Schedule and the representations,
warranties and covenants contained herein, and that Buyer, at its option, has
the right at any time to conduct a partial or complete due diligence review on
some or all of the Purchased Assets purchased in a Transaction, including,
without limitation, ordering broker's price opinions, new credit reports and new
appraisals on the related Mortgaged Properties and otherwise re-generating the
information used to originate such Purchased Asset. Buyer may underwrite such
Purchased Assets itself or engage a mutually agreed upon third party underwriter
to perform such underwriting. Seller agrees to cooperate with Buyer and any
third party underwriter in connection with such underwriting, including, but not
limited to, providing Buyer and any third party underwriter with access to any
and all documents, records, agreements, instruments or information relating to
such Purchased Assets in the possession, or under the control, of Seller. Seller
further agrees that Seller shall pay all out-of-pocket costs and expenses
incurred by Buyer in connection with Buyer's activities pursuant to this Section
36 ("Due Diligence Costs").
Anything herein to the contrary notwithstanding, Seller's aggregate
obligation to pay costs and expenses in connection with or relating to each
Purchased Asset, Mezzanine Loan or Mezzanine Loan Junior Interest which is
submitted for a Transaction hereunder (including, without limitation, Due
Diligence Costs, but excluding costs payable pursuant to Section 16), whether or
not such Transaction is consummated, shall not exceed $7,500.
37. Appointment of Agent.
(a) As a broker-dealer registered with the SEC, Credit Suisse
Securities (USA) LLC ("CSS"), as agent of Buyer and Seller, will be responsible
for (i) effecting Transactions with respect to Securities hereunder, (ii)
issuing all required confirmations and statements to Buyer and Seller, (iii)
maintaining books and records relating to Transactions as required by SEC
regulations, and (iv) receiving, delivering and safeguarding Seller's funds and
any securities in connection with Transactions hereunder, in compliance with SEC
regulations.
(b) CSS is acting in connection with Transactions hereunder solely
in its capacity as agent for Buyer and Seller pursuant to instructions from
Buyer and Seller. CSS shall have no responsibility or personal liability to
Buyer or Seller arising from any failure by Buyer or Seller to make payment,
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deliver securities, or perform any other obligations hereunder, including
without limitation obligations to transfer margin or collateral, except for
CSS's gross negligence or willful misconduct in performing its duties as agent
hereunder. Each of Buyer and Seller agrees to proceed solely against the other
to collect or recover any securities or money owing to it or to enforce any of
its rights in connection with or as a result of Transactions hereunder.
(c) The parties acknowledge and agree that the Agreement shall not
govern any repurchase transaction between (i) CSS, acting in its individual
capacity, and Seller or (ii) Seller and any entity other than Buyer, regardless
of whether CSS is acting as agent for such other entity.
38. Authorizations
Any of the persons whose signatures and titles appear on Schedule 2
are authorized, acting singly, to act for Seller or Buyer, as the case may be,
under this Agreement.
39. Documents Mutually Drafted
The Seller, Limited Guarantor and the Buyer agree that this
Agreement each other Program Agreement prepared in connection with the
Transactions set forth herein have been mutually drafted and negotiated by each
party, and consequently such documents shall not be construed against either
party as the drafter thereof.
40. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
a. the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to
include the other gender;
b. accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
c. references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document
are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement;
d. a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also
apply to Paragraphs and other subdivisions;
e. the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular provision;
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f. the term "include" or "including" shall mean without limitation
by reason of enumeration;
g. all times specified herein or in any other Program Agreement
(unless expressly specified otherwise) are local times in New York,
New York unless otherwise stated; and
h. all references herein or in any Program Agreement to "good faith"
means good faith as defined in Section 1-201(19) of the UCC as in
effect in the State of New York.
[Signature Page Follows]
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IN WITNESS WHEREOF, Seller, Limited Guarantor and the Buyer have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
COLUMN FINANCIAL INC., as Buyer
By:
-------------------------------------
Title:
----------------------------------
Date:
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111 DEBT ACQUISITION LLC, as Seller
By:
-------------------------------------
Title:
----------------------------------
Date:
-----------------------------------
111 DEBT ACQUISITION MEZZ LLC, as Mezzanine Loan Subsidiary
By:
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Title:
----------------------------------
Date:
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▇▇▇▇▇▇▇ REALTY TRUST, INC., as Limited Guarantor
By:
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Title:
----------------------------------
Date:
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SCHEDULE 1
Schedule 1(a)
REPRESENTATIONS AND WARRANTIES
RE: PURCHASED ASSETS CONSISTING OF COMMERCIAL MORTGAGE LOANS
Seller represents and warrants to Buyer, with respect to each
Purchased Asset which is a Commercial Mortgage Loan, that except as specifically
disclosed in writing to and approved by Buyer in accordance with the Agreement,
as of the Purchase Date for each such Purchased Asset by Buyer from Seller and
as of the date of each Transaction hereunder and at all times while the Program
Agreements or any Transaction hereunder is in full force and effect the
representations set forth on this Schedule 1(a) shall be true and correct in all
material respects. For purposes of this Schedule 1(a) and the representations
and warranties set forth herein, a breach of a representation or warranty shall
be deemed to have been cured with respect to a Purchased Asset which is a
Commercial Mortgage Loan if and when Seller has taken or caused to be taken
action such that the event, circumstance or condition that gave rise to such
breach no longer affects such Purchased Asset.
1. The Commercial Mortgage Loan is a performing mortgage loan secured by a first
priority security interest in a commercial or multifamily property.
2. Such Commercial Mortgage Loan complies in all material respects with, or is
exempt from, all requirements of federal, state or local law relating to such
Commercial Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to Buyer thereof,
Seller had good and marketable title to, and was the sole owner and holder of,
such Commercial Mortgage Loan, and Seller is transferring such Commercial
Mortgage Loan free and clear of any and all liens, pledges, encumbrances,
charges, security interests or any other ownership interests of any nature
encumbering such Commercial Mortgage Loan (other than any security interest
created in favor of Buyer pursuant to this Agreement). Upon consummation of the
purchase contemplated to occur in respect of such Commercial Mortgage Loan on
the Purchase Date therefor, Seller will have validly and effectively conveyed to
Buyer all legal and beneficial interest in and to such Commercial Mortgage Loan
free and clear of any pledge, lien, encumbrance or security interest (other than
any security interest created in favor of Buyer pursuant to this Agreement).
4. No fraudulent acts were committed by Seller in connection with its
acquisition or origination of such Commercial Mortgage Loan nor were any
fraudulent acts committed by any Person in connection with the origination of
such Commercial Mortgage Loan.
5. All information contained in the related Complete Submission (or as otherwise
provided to Buyer) in respect of such Commercial Mortgage Loan is accurate and
complete in all material respects.
6. Except as included in the Complete Submission, Seller is not a party to any
document, instrument or agreement, and there is no document, that by its terms
modifies or affects the rights and obligations of any holder of such Commercial
Mortgage Loan and Seller has not consented to any material change or waiver to
any term or provision of any such document, instrument or agreement and no such
change or waiver exists.
Schedule 1(a)-1
7. Such Commercial Mortgage Loan is presently outstanding, the proceeds thereof
have been fully and properly disbursed and, except for amounts held in escrow by
Servicer, there is no requirement for any future advances thereunder.
8. Seller has full right, power and authority to sell and assign such Commercial
Mortgage Loan and such Commercial Mortgage Loan or any related Mortgage Note has
not been cancelled, satisfied or rescinded in whole or part nor has any
instrument been executed that would effect a cancellation, satisfaction or
rescission thereof.
9. Other than consents and approvals obtained as of the related Purchase Date or
those already granted in the related Mortgage and/or Mortgage Note, no consent
or approval by any Person is required in connection (i) with Seller's sale
and/or Buyer's acquisition of such Commercial Mortgage Loan, (ii) for Buyer's
exercise of any rights or remedies in respect of such Commercial Mortgage Loan
or (iii) for Buyer's sale, pledge or other disposition of such Commercial
Mortgage Loan, other than, in the case of clauses (ii) and (iii), customary
intercreditor restrictions limiting assignees to "qualified transferees". No
third party holds any "right of first refusal", "right of first negotiation",
"right of first offer", purchase option, or other similar rights of any kind,
and no other impediment exists to any such transfer or exercise of rights or
remedies.
10. No consent, approval, authorization or order of, or registration or filing
with, or notice to, any court or governmental agency or body having jurisdiction
or regulatory authority is required for any transfer or assignment by the holder
of such Commercial Mortgage Loan.
11. Seller has not received written notice of any outstanding liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind for which the holder of such Commercial
Mortgage Loan is or may become obligated.
12. Seller has not advanced funds, or knowingly received any advance of funds
from a party other than the mortgagee relating to such Commercial Mortgage Loan,
directly or indirectly, for the payment of any amount required by such
Commercial Mortgage Loan.
13. Each related Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed by the related
Mortgagor in connection with such Commercial Mortgage Loan is legal, valid and
binding obligation of the related Mortgagor (subject to any non-recourse
provisions therein and any state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except (i)
that certain provisions contained in such Commercial Mortgage Loan documents are
or may be unenforceable in whole or in part under applicable state or federal
laws, but neither the application of any such laws to any such provision nor the
inclusion of any such provisions renders any of the Commercial Mortgage Loan
documents invalid as a whole and such Commercial Mortgage Loan documents taken
Schedule 1(a)-2
as a whole are enforceable to the extent necessary and customary for the
practical realization of the rights and benefits afforded thereby and (ii) as
such enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws relating to or
affecting the enforcement of creditors' rights generally, or by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). The related Mortgage Note and Mortgage contain
no provision limiting the right or ability of Seller to assign, transfer and
convey the related Commercial Mortgage Loan to any other Person, except,
however, for customary intercreditor restrictions limiting assignees to
"qualified transferees". With respect to any Underlying Mortgaged Property that
has tenants, there exists as either part of the Mortgage or as a separate
document, an assignment of leases.
14. There is no offset, defense, counterclaim, abatement or right to rescission
with respect to any related Mortgage Note, Mortgage or other agreements executed
in connection therewith.
15. Seller has delivered to Buyer or its designee the original Mortgage Note(s)
made in respect of such Commercial Mortgage Loan, together with an original
endorsement thereof executed by [Seller] in blank and the related Asset File.
16. Each related Assignment of Mortgage and assignment of Assignment of Leases
from [Seller] in blank constitutes the legal, valid and binding first priority
assignment from [Seller] (assuming the insertion of the Buyer's name), except as
such enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws relating to or
affecting the enforcement of creditors' rights generally, or by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). Each Mortgage and Assignment of Leases is
freely assignable.
17. The Commercial Mortgage Loan is secured by one or more Mortgages and each
such Mortgage is a valid and enforceable first lien on the related Underlying
Mortgaged Property subject only to the exceptions set forth in paragraph (13)
above and the following title exceptions (each such title exception, a "Title
Exception", and collectively, the "Title Exceptions"): (a) the lien of current
real property taxes, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, none of which, individually or in the
aggregate, materially and adversely interferes with the current use of the
Underlying Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations under the
Commercial Mortgage Loan when they become due or materially and adversely
affects the value of the Underlying Mortgaged Property, (c) the exceptions
(general and specific) and exclusions set forth in the applicable policy
described in paragraph (21) below or appearing of record, none of which,
individually or in the aggregate, materially and adversely interferes with the
current use of the Underlying Mortgaged Property or the security intended to be
provided by such Mortgage or with the Mortgagor's ability to pay its obligations
under the Commercial Mortgage Loan when they become due or materially and
adversely affects the value of the Underlying Mortgaged Property, (d) other
matters to which like properties are commonly subject, none of which,
individually or in the aggregate, materially and adversely interferes with the
current use of the Underlying Mortgaged Property or the security intended to be
provided by such Mortgage or with the Mortgagor's ability to pay its obligations
under the Commercial Mortgage Loan when they become due or materially and
Schedule 1(a)-3
adversely affects the value of the Underlying Mortgaged Property, (e) the right
of tenants (whether under ground leases, space leases or operating leases) at
the Underlying Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such leases) and (f)
if such Commercial Mortgage Loan is cross-collateralized with any other
Commercial Mortgage Loan, the lien of the Mortgage for such other Commercial
Mortgage Loan, none of which, individually or in the aggregate, materially and
adversely interferes with the current use of the Underlying Mortgaged Property
or the security intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations under the Commercial Mortgage Loan when they
become due or materially and adversely affects the value of the Underlying
Mortgaged Property. Except with respect to cross-collateralized and
cross-defaulted Commercial Mortgage Loans and as provided below, there are no
mortgage loans that are senior or pari passu with respect to the related
Underlying Mortgaged Property or such Commercial Mortgage Loan.
18. UCC Financing Statements have been filed and/or recorded (or, if not filed
and/or recorded, have been submitted in proper form for filing and recording),
in all public places necessary to perfect a valid security interest in all items
of personal property located on the Underlying Mortgaged Property that are owned
by the Mortgagor and either (i) are reasonably necessary to operate the
Underlying Mortgaged Property or (ii) are (as indicated in the appraisal
obtained in connection with the origination of the related Commercial Mortgage
Loan) material to the value of the Underlying Mortgaged Property (other than any
personal property subject to a purchase money security interest or a sale and
leaseback financing arrangement permitted under the terms of such Commercial
Mortgage Loan or any other personal property leases applicable to such personal
property), to the extent perfection may be effected pursuant to applicable law
by recording or filing, and the Mortgages, security agreements, chattel
Mortgages or equivalent documents related to and delivered in connection with
the related Commercial Mortgage Loan establish and create a valid and
enforceable lien and priority security interest on such items of personalty
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or other laws
relating to or affecting the enforcement of creditor's rights generally, or by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
19. All real estate taxes and governmental assessments, or installments thereof,
which would be a lien on the Underlying Mortgaged Property and that have become
delinquent in respect of the Underlying Mortgaged Property have been paid, or an
escrow of funds in an amount sufficient to cover such payments has been
established. For purposes of this representation and warranty, real estate taxes
and governmental assessments and installments thereof shall not be considered
delinquent until the earlier of (a) the date on which interest and/or penalties
would first be payable thereon and (b) the date on which enforcement action is
entitled to be taken by the related taxing authority.
20. The related Underlying Mortgaged Property is free and clear of any material
damage (other than deferred maintenance for which escrows were established at
origination) that would affect materially and adversely the value of such
Underlying Mortgaged Property as security for the Commercial Mortgage Loan and
there is no proceeding pending or threatened for the total or partial
condemnation of such Underlying Mortgaged Property.
21. The lien of each related Mortgage as a first priority lien in the original
principal amount of such Commercial Mortgage Loan after all advances of
principal is insured by an ALTA lender's title insurance policy (or a binding
commitment therefor), or its equivalent as adopted in the applicable
Schedule 1(a)-4
jurisdiction, insuring the original mortgagee, its successors and assigns,
subject only to the Title Exceptions; the mortgagee or its successors or assigns
is the sole named insured of such policy; such policy is assignable without
consent of the insurer and will inure to the benefit of the mortgagee of record;
such title policy is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; all premiums thereon have been
paid; no claims have been made under such policy and no circumstance exists
which would impair or diminish the coverage of such policy. The insurer issuing
such policy is (x) a nationally recognized title insurance company and (y)
qualified to do business in the jurisdiction in which the related Underlying
Mortgaged Property is located to the extent required; such policy contains no
material exclusions for, or affirmatively insures (except for any Underlying
Mortgaged Property located in a jurisdiction where such insurance is not
available) (a) access to public road or (b) against any loss due to
encroachments of any material portion of the improvements thereon.
22. As of the date of its origination, all insurance coverage required under
each related Mortgage, which insurance covered such risks as were customarily
acceptable to prudent commercial and multifamily mortgage lending institutions
lending on the security of property comparable to the related Underlying
Mortgaged Property in the jurisdiction in which such Underlying Mortgaged
Property is located, and with respect to a fire and extended perils insurance
policy, is in an amount (subject to a customary deductible) at least equal to
the lesser of (i) the replacement cost of improvements located on such
Underlying Mortgaged Property, or (ii) the outstanding principal balance of the
Commercial Mortgage Loan, and in any event, the amount necessary to prevent
operation of any co-insurance provisions; and is also covered by business
interruption or rental loss insurance, in an amount at least equal to 12 months
of operations of the related Underlying Mortgaged Property, all of which was in
full force and effect with respect to the related Underlying Mortgaged Property;
and all insurance coverage required under each Mortgage, which insurance covers
such risks and is in such amounts as are customarily acceptable to prudent
commercial and multifamily mortgage lending institutions lending on the security
of property comparable to the related Underlying Mortgaged Property in the
jurisdiction in which such Underlying Mortgaged Property is located, is in full
force and effect with respect to the related Underlying Mortgaged Property; all
premiums due and payable have been paid; and no notice of termination or
cancellation with respect to any such insurance policy has been received by
Seller; and except for certain amounts not greater than amounts which would be
considered prudent by an institutional commercial and/or multifamily mortgage
lender with respect to a similar Commercial Mortgage Loan and which are set
forth in the related Mortgage, any insurance proceeds in respect of a casualty
loss, will be applied either (i) to the repair or restoration of all or part of
the related Underlying Mortgaged Property or (ii) the reduction of the
outstanding principal balance of the Commercial Mortgage Loan, subject in either
case to requirements with respect to leases at the related Underlying Mortgaged
Property and to other exceptions customarily provided for by prudent
institutional lenders for similar loans. The Underlying Mortgaged Property is
also covered by comprehensive general liability insurance against claims for
personal and bodily injury, death or property damage occurring on, in or about
the related Underlying Mortgaged Property, in an amount customarily required by
prudent institutional lenders. An architectural or engineering consultant has
Schedule 1(a)-5
performed an analysis of the Underlying Mortgaged Properties located in seismic
zone 3 or 4 in order to evaluate the structural and seismic condition of such
property, for the sole purpose of assessing the probable maximum loss ("PML")
for the Underlying Mortgaged Property in the event of an earthquake. In such
instance, the PML was based on a 475 year lookback with a 10% probability of
exceedance in a 50 year period. If the resulting report concluded that the PML
would exceed 20% of the amount of the replacement costs of the improvements,
earthquake insurance on such Underlying Mortgaged Property was obtained by an
insurer rated at least A-:V by A.M. Best Company or "BBB-" (or the equivalent)
from S&P and Fitch or "Baa3" (or the equivalent) from ▇▇▇▇▇'▇. If the Underlying
Mortgaged Property is located in Florida or within 25 miles of the coast of
Texas, Louisiana, Mississippi, Alabama, Georgia, North Carolina or South
Carolina such Underlying Mortgaged Property is insured by windstorm insurance in
an amount at least equal to the lesser of (i) the outstanding principal balance
of such Commercial Mortgage Loan and (ii) 100% of the full insurable value, or
100% of the replacement cost, of the improvements located on the related
Underlying Mortgaged Property.
The insurance policies contain a standard mortgagee clause naming
Seller, its successors and assigns as loss payee, in the case of a property
insurance policy, and additional insured in the case of a liability insurance
policy and provide that they are not terminable without 30 days prior written
notice to the mortgagee (or, with respect to non-payment, 10 days prior written
notice to the mortgagee) or such lesser period as prescribed by applicable law.
Each Mortgage requires that the Mortgagor maintain insurance as described above
or permits the mortgagee to require insurance as described above, and permits
the mortgagee to purchase such insurance at the Mortgagor's expense if Mortgagor
fails to do so.
23. (a) Other than payments due but not yet 30 days or more delinquent, there is
no material default, breach, violation or event of acceleration existing under
the related Mortgage or the related Mortgage Note, and no event has occurred
(other than payments due but not yet delinquent) which, with the passage of time
or with notice and the expiration of any grace or cure period, would constitute
a material default, breach, violation or event of acceleration, and (b) Seller
has not waived any material default, breach, violation or event of acceleration
under such Mortgage or Mortgage Note and pursuant to the terms of the related
Mortgage or the related Mortgage Note and other documents in the related
Mortgage Loan documents no Person or party other than the holder of such
Mortgage Note may declare any event of default or accelerate the related
indebtedness under either of such Mortgage or Mortgage Note.
24. Such Commercial Mortgage Loan is not, since origination, and has not been,
30 days or more past due in respect of any scheduled payment or part thereof.
25. Each related Mortgage does not provide for or permit, without the prior
written consent of the holder of the Mortgage Note, the related Underlying
Mortgaged Property to secure any other promissory note or obligation except as
expressly described in such Mortgage.
26. Such Commercial Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3)of the Code (without regard to Treasury Regulations
Sections 1.860G-2(a)(3) or 1.860G-2(f)(2)), is directly secured by a Mortgage on
a commercial property or a multifamily residential property, and either (1)
substantially all of the proceeds of such Commercial Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within the
meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d)) and such
interest in real property was the only security for such Commercial Mortgage
Loan as of the Testing Date (as defined below), or (2) the fair market value of
the interest in real property which secures such Commercial Mortgage Loan was at
Schedule 1(a)-6
least equal to 80% of the principal amount of the Commercial Mortgage Loan (a)
as of the Testing Date, or (b) as of the Purchase Date. For purposes of the
previous sentence, (1) the fair market value of the referenced interest in real
property shall first be reduced by (a) the amount of any lien on such interest
in real property that is senior to the Commercial Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property that is on a
parity with the Commercial Mortgage Loan, and (2) the "Testing Date" shall be
the date on which the referenced Commercial Mortgage Loan was originated unless
(a) such Commercial Mortgage Loan was modified after the date of its origination
in a manner that would cause a "significant modification" of such Commercial
Mortgage Loan within the meaning of Treasury Regulations Section 1.1001-3(b),
and (b) such "significant modification" did not occur at a time when such
Commercial Mortgage Loan was in default or when default with respect to such
Commercial Mortgage Loan was reasonably foreseeable. However, if the referenced
Commercial Mortgage Loan has been subjected to a "significant modification"
after the date of its origination and at a time when such Commercial Mortgage
Loan was not in default or when default with respect to such Commercial Mortgage
Loan was not reasonably foreseeable, the Testing Date shall be the date upon
which the latest such "significant modification" occurred.
27. There is no material and adverse environmental condition or circumstance
affecting the Underlying Mortgaged Property; there is no material violation of
any applicable Environmental Law with respect to the Underlying Mortgaged
Property; neither Seller nor the owner of the Underlying Mortgaged Property has
taken any actions which would cause the Underlying Mortgaged Property not to be
in compliance with all applicable Environmental Laws; the Underlying Mortgage
Loan documents require the Mortgagor to comply with all Environmental Laws; and
each Mortgagor has agreed to indemnify the mortgagee for any losses resulting
from any material, adverse environmental condition or failure of the Mortgagor
to abide by such Environmental Laws or has provided environmental insurance.
28. Each related Mortgage and Assignment of Leases, together with applicable
state law, contains customary and enforceable provisions for comparable
mortgaged properties similarly situated such as to render the rights and
remedies of the holder thereof adequate for the practical realization against
the Underlying Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure, subject to
the effects of bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws relating to or affecting the enforcement
of creditors' rights generally, or by general principles of equity (regardless
of whether such enforcement is considered in a proceeding in equity or at law).
29. No Mortgagor is a debtor in any state or federal bankruptcy or insolvency
proceeding.
30. Such Commercial Mortgage Loan is a whole loan and contains no equity
participation by the lender or shared appreciation feature and does not provide
for any contingent or additional interest in the form of participation in the
cash flow of the related Underlying Mortgaged Property or provide for negative
amortization. Seller holds no preferred equity interest.
Schedule 1(a)-7
31. Subject to certain exceptions, which are customarily acceptable to prudent
commercial and multifamily mortgage lending institutions lending on the security
of property comparable to the related Underlying Mortgaged Property, each
related Mortgage or loan agreement contains provisions for the acceleration of
the payment of the unpaid principal balance of such Commercial Mortgage Loan if,
without complying with the requirements of the Mortgage or loan agreement, (a)
the related Underlying Mortgaged Property, or any controlling interest in the
related Mortgagor, is directly transferred or sold (other than by reason of
family and estate planning transfers, transfers by devise, descent or operation
of law upon the death of a member, general partner or shareholder of the related
borrower and transfers of less than a controlling interest (as such term is
defined in the related Commercial Mortgage Loan documents) in a mortgagor,
issuance of non-controlling new equity interests, transfers among existing
members, partners or shareholders in the Mortgagor or an affiliate thereof,
transfers among affiliated Mortgagors with respect to Commercial Mortgage Loans
which are cross-collateralized or cross-defaulted with other mortgage loans or
multi-property Commercial Mortgage Loans or transfers of a similar nature to the
foregoing meeting the requirements of the Commercial Mortgage Loan (such as
pledges of ownership interests that do not result in a change of control) or a
substitution or release of collateral within the parameters of paragraph (34)
below), or (b) the related Underlying Mortgaged Property or controlling interest
in the Mortgagor is encumbered in connection with subordinate financing by a
lien or security interest against the related Underlying Mortgaged Property,
other than any existing permitted additional debt. The Commercial Mortgage Loan
documents require the Mortgagor to pay all reasonable costs incurred by the
Mortgagor with respect to any transfer, assumption or encumbrance requiring
lender's approval.
32. Except as set forth in the related Complete Submission, the terms of the
related Mortgage Note(s) and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by such
Mortgage and no such waiver, modification, alteration, satisfaction, impairment,
cancellation, subordination or rescission has occurred since the date upon which
the Complete Submission for such Commercial Mortgage Loan was delivered to Buyer
or its designee.
33. Each related Underlying Mortgaged Property was inspected by or on behalf of
the related originator or an affiliate during the 12 month period prior to the
related origination date.
34. No material portion of the related Underlying Mortgaged Property has been
released from the lien of the related Mortgage in any manner which materially
and adversely affects the value of the Commercial Mortgage Loan or materially
interferes with the security intended to be provided by such Mortgage, and,
except with respect to Commercial Mortgage Loans (a) which permit defeasance by
means of substituting for the Underlying Mortgaged Property (or, in the case of
a Commercial Mortgage Loan secured by multiple Underlying Mortgaged Properties,
one or more of such Underlying Mortgaged Properties) "government securities" as
defined in the Investment Company Act of 1940, as amended, sufficient to pay the
Commercial Mortgage Loans (or portions thereof) in accordance with its terms,
(b) where a release of the portion of the Underlying Mortgaged Property was
contemplated at origination and such portion was not considered material for
purposes of underwriting the Commercial Mortgage Loan, (c) where release is
Schedule 1(a)-8
conditional upon the satisfaction of certain underwriting and legal requirements
and the payment of a release price that represents adequate consideration for
such Underlying Mortgaged Property or the portion thereof that is being
released, (d) which permit the related Mortgagor to substitute a replacement
property in compliance with REMIC Provisions or (e) which permit the release(s)
of unimproved out-parcels or other portions of the Underlying Mortgaged Property
that will not have a material adverse effect on the underwritten value of the
security for the Commercial Mortgage Loan or that were not allocated to any
value in the underwriting during the origination of the Commercial Mortgage
Loan, the terms of the related Mortgage do not provide for release of any
portion of the Underlying Mortgaged Property from the lien of the Mortgage
except in consideration of payment in full therefor.
35. There are no material violations of any applicable zoning ordinances,
building codes or land laws applicable to the Underlying Mortgaged Property or
the use and occupancy thereof which (i) are not insured by an ALTA lender's
title insurance policy, or its equivalent as adopted in the applicable
jurisdiction, or a law and ordinance insurance policy or (ii) would have a
material adverse effect on the value, operation or net operating income of the
Underlying Mortgaged Property. The Commercial Mortgage Loan documents require
the Underlying Mortgaged Property to comply with all applicable laws and
ordinances.
36. None of the material improvements which were included for the purposes of
determining the appraised value of the related Underlying Mortgaged Property at
the time of the origination of the Commercial Mortgage Loan lies outside of the
boundaries and building restriction lines of such property (except Underlying
Mortgaged Properties which are legal non-conforming uses), to an extent which
would have a material adverse affect on the value of the Underlying Mortgaged
Property or related Mortgagor's use and operation of such Underlying Mortgaged
Property (unless affirmatively covered by title insurance) and no improvements
on adjoining properties encroached upon such Underlying Mortgaged Property to
any material and adverse extent (unless affirmatively covered by title
insurance).
37. The related Mortgagor has covenanted in its organizational documents and/or
the Commercial Mortgage Loan documents to own no significant asset other than
the related Underlying Mortgaged Properties, as applicable, and assets
incidental to its ownership and operation of such Underlying Mortgaged
Properties, and to hold itself out as being a legal entity, separate and apart
from any other Person.
38. No advance of funds has been made other than pursuant to the loan documents,
directly or indirectly, by the mortgagee, the Seller or the Servicer to the
Mortgagor and no funds have been received from any Person other than the
Mortgagor, for or on account of payments due on the Mortgage Note or the
Mortgage.
39. There is no pending action, suit or proceeding, or governmental
investigation of which mortgagee, Seller or Servicer has received notice,
against the Mortgagor or the related Underlying Mortgaged Property the adverse
outcome of which could reasonably be expected to materially and adversely affect
such Mortgagor's ability to pay principal, interest or any other amounts due
under such Commercial Mortgage Loan or the security intended to be provided by
the Commercial Mortgage Loan documents or the current use of the Underlying
Mortgaged Property.
Schedule 1(a)-9
40. If the related Mortgage is a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and serving
under such Mortgage or may be substituted in accordance with the Mortgage and
applicable law.
41. The Commercial Mortgage Loan and the interest (exclusive of any default
interest, late charges or prepayment premiums) contracted for complied as of the
date of origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury.
42. Each Commercial Mortgage Loan that is cross-collateralized is
cross-collateralized only with other Commercial Mortgage Loans sold pursuant to
this Agreement.
43. The improvements located on the Underlying Mortgaged Property are either not
located in a federally designated special flood hazard area or, if so located,
the Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in full force and
effect in an amount no less than the lesser of (i) the original principal
balance of the Commercial Mortgage Loan, (ii) the value of such improvements on
the related Underlying Mortgaged Property located in such flood hazard area or
(iii) the maximum allowed under the related federal flood insurance program.
44. All escrow deposits and payments required pursuant to the Commercial
Mortgage Loan required to be deposited with the Servicer in accordance with the
Commercial Mortgage Loan documents have been so deposited, are in the
possession, or under the control, of Servicer or its agent and there are no
deficiencies in connection therewith.
45. The related Mortgagor, the related lessee, franchisor or operator is in
possession of all material licenses, permits and authorizations then required
for use of the related Underlying Mortgaged Property by the related Mortgagor.
The Commercial Mortgage Loan documents require the Mortgagor, the related
lessee, franchisor or operator to maintain all such licenses, permits and
authorizations.
46. The origination (or acquisition, as the case may be), servicing and
collection practices used by mortgagee and servicer with respect to the
Commercial Mortgage Loan have been in all respects legal and have met customary
industry standards for servicing of commercial mortgage loans for conduit loan
programs.
47. Except for Mortgagors under Commercial Mortgage Loans the Underlying
Mortgaged Property with respect to which includes a Ground Lease, the related
Mortgagor (or its affiliate) has title in the fee simple interest in each
related Underlying Mortgaged Property.
48. The Commercial Mortgage Loan documents for such Commercial Mortgage Loan
provide that such Commercial Mortgage Loan is non-recourse to the related
Mortgagor except that the related Mortgagor and an additional guarantor accepts
responsibility for any loss incurred due to fraud on the part of the Mortgagor
and/or other intentional material misrepresentation. Furthermore, the Commercial
Mortgage Loan documents for each Commercial Mortgage Loan provide that the
related Mortgagor and an additional guarantor shall be liable to the lender for
losses incurred due to the misapplication or misappropriation of rents collected
Schedule 1(a)-10
in advance or received by the related Mortgagor after the occurrence of an event
of default and not paid to the mortgagee or applied to the Underlying Mortgaged
Property in the ordinary course of business, misapplication or conversion by the
Mortgagor of insurance proceeds or condemnation awards or breach of the
environmental covenants in the related Commercial Mortgage Loan documents.
49. Subject to the exceptions set forth in paragraph (13) and upon possession of
the Underlying Mortgaged Property as required under applicable state law, any
Assignment of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with such Commercial
Mortgage Loan establishes and creates a valid, subsisting and enforceable lien
and security interest in the related Mortgagor's interest in all leases,
subleases, licenses or other agreements pursuant to which any Person is entitled
to occupy, use or possess all or any portion of the real property.
50. With respect to such Commercial Mortgage Loan, any prepayment premium and
yield maintenance charge constitutes a "customary prepayment penalty" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
51. If such Commercial Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Commercial Mortgage Loan permits defeasance (1) no
earlier than two years after any securitization of such Commercial Mortgage Loan
and (2) only with substitute collateral constituting "government securities"
within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an
amount sufficient to make all scheduled payments under the Mortgage Note. Such
Commercial Mortgage Loan was not originated with the intent to collateralize a
REMIC offering with obligations that are not real estate mortgages. In addition,
if such Mortgage contains such a defeasance provision, it provides (or otherwise
contains provisions pursuant to which the holder can require) that an opinion be
provided to the effect that such holder has a first priority perfected security
interest in the defeasance collateral. The related Commercial Mortgage Loan
documents permit the lender to charge all of its expenses associated with a
defeasance to the Mortgagor (including rating agencies' fees, accounting fees
and attorneys' fees), and provide that the related Mortgagor must deliver (or
otherwise, the Commercial Mortgage Loan documents contain certain provisions
pursuant to which the lender can require) (a) an accountant's certification as
to the adequacy of the defeasance collateral to make payments under the related
Commercial Mortgage Loan for the remainder of its term, (b) an opinion of
counsel that the defeasance complies with all applicable REMIC Provisions, and
(c) assurances from each applicable Rating Agency that the defeasance will not
result in the withdrawal, downgrade or qualification of the ratings assigned to
any certificates backed by the related Commercial Mortgage Loan.
52. The originator of such Commercial Mortgage Loan was authorized to do
business in the jurisdiction in which the related Underlying Mortgaged Property
is located at all times when it originated and held the Commercial Mortgage
Loan.
53. Neither Seller nor any affiliate thereof has any obligation to make any
capital contributions to the Mortgagor under the Commercial Mortgage Loan.
54. The related Underlying Mortgaged Property is not encumbered, and none of the
Commercial Mortgage Loan documents permits the related Underlying Mortgaged
Property to be encumbered without the prior written consent of the holder of
such Commercial Mortgage Loan, by any lien securing the payment of money junior
to or of equal priority with, or superior to, the lien of the related Mortgage.
Schedule 1(a)-11
55. Each related Underlying Mortgaged Property constitutes one or more complete
separate tax lots (or the related Mortgagor has covenanted to obtain separate
tax lots and a Person has indemnified the mortgagee for any loss suffered in
connection therewith or an escrow of funds in an amount sufficient to pay taxes
resulting from a breach thereof has been established) or is subject to an
endorsement under the related title insurance policy.
56. An appraisal of the related Underlying Mortgaged Property was conducted
within 12 months of the origination of the Commercial Mortgage Loan, which
appraisal is signed by a qualified appraiser who had no interest, direct or
indirect, in the Underlying Mortgaged Property or in any loan made on the
security thereof; and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan, and such appraisal and appraiser both
satisfied either (A) the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the Appraisal
Foundation, or (B) the guidelines in Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act or 1989, in either case as in effect on the
date such Commercial Mortgage Loan was originated.
57. The related Commercial Mortgage Loan documents require the Mortgagor to
provide the mortgagee with certain financial information at the times required
under the related Commercial Mortgage Loan documents.
58. The related Underlying Mortgaged Property is served by public utilities,
water and sewer (or septic facilities) and otherwise appropriate for the use in
which the Underlying Mortgaged Property is currently being utilized.
59. Each Underlying Mortgaged Property is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage, and no rights are outstanding that under law could give rise
to any such lien that would be prior or equal to the lien of the related
Mortgage except, in each case, for liens insured against by the Title Policy
referred to herein.
60. No Commercial Mortgage Loan is secured by a Care Facility or an Industrial
Property.
61. Each Commercial Loan has a Loan-to-Value Ratio of 80% or less.
62. With respect to each related Underlying Mortgaged Property consisting of a
Ground Lease, Seller represents and warrants the following with respect to the
related Ground Lease:
(ii) Such Ground Lease or a memorandum thereof has been or will be duly recorded
no later than 30 days after the origination date and such Ground Lease permits
the interest of the lessee thereunder to be encumbered by the related Mortgage
or, if consent of the lessor thereunder is required, it has been obtained prior
to the origination date.
(iii) Upon the foreclosure of the Commercial Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to the mortgagee under the leasehold estate and its assigns without
the consent of the lessor thereunder (or, if any such consent is required, it
has been obtained prior to the Purchase Date).
Schedule 1(a)-12
(iv) Such Ground Lease may not be amended, modified, canceled or terminated
without the prior written consent of the mortgagee and any such action without
such consent is not binding on the mortgagee, its successors or assigns, except
termination or cancellation if (i) an event of default occurs under the Ground
Lease, (ii) notice thereof is provided to the mortgagee and (iii) such default
is curable by the mortgagee as provided in the Ground Lease but remains uncured
beyond the applicable cure period.
(v) Such Ground Lease is in full force and effect, there is no material default
under such Ground Lease, and there is no event which, with the passage of time
or with notice and the expiration of any grace or cure period, would constitute
a material default under such Ground Lease.
(vi) The Ground Lease or ancillary agreement between the lessor and the lessee
requires the lessor to give notice of any default by the lessee to the
mortgagee. The Ground Lease or ancillary agreement further provides that no
notice given is effective against the mortgagee unless a copy has been given to
the mortgagee in a manner described in the Ground Lease or ancillary agreement.
(vii) The Ground Lease (i) is not subject to any liens or encumbrances superior
to, or of equal priority with, the Mortgage, subject, however, to only the Title
Exceptions or (ii) is subject to a subordination, non-disturbance and attornment
agreement to which the mortgagee on the lessor's fee interest in the Underlying
Mortgaged Property is subject.
(viii) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the lessee
under the Ground Lease) to cure any curable default under such Ground Lease
before the lessor thereunder may terminate such Ground Lease.
(ix) Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of which can
be exercised by the mortgagee if the mortgagee acquires the lessee's rights
under the Ground Lease) that extends not less than 20 years beyond the stated
maturity date of the Mortgage.
(x) Under the terms of such Ground Lease, any estoppel or consent letter
received by the mortgagee from the lessor, and the related Mortgage, taken
together, any related insurance proceeds or condemnation award (other than in
respect of a total or substantially total loss or taking) will be applied either
to the repair or restoration of all or part of the related Underlying Mortgaged
Property, with the mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as repair or restoration progresses, or to the
payment or defeasance of the outstanding principal balance of the Commercial
Mortgage Loan, together with any accrued interest (except in cases where a
different allocation would not be viewed as commercially unreasonable by any
commercial mortgage lender, taking into account the relative duration of the
Ground Lease and the related Mortgage and the ratio of the market value of the
related Underlying Mortgaged Property to the outstanding principal balance of
such Commercial Mortgage Loan).
Schedule 1(a)-13
(xi) The Ground Lease does not impose any restrictions on subletting that would
be viewed as commercially unreasonable by a prudent commercial lender.
(xii) The ground lessor under such Ground Lease is required to enter into a new
lease upon termination of the Ground Lease for any reason, including the
rejection of the Ground Lease in bankruptcy.
(63) Security Interest. The Transactions under this Agreement constitute a sale
of, or creates a valid, first priority security interest in favor of the Buyer,
in the Purchased Assets or other Repurchase Assets purported to be covered
hereby.
Schedule 1(a)-14
Schedule 1(b)
REPRESENTATIONS AND WARRANTIES
RE: PURCHASED ASSETS CONSISTING OF JUNIOR INTERESTS
Seller represents and warrants to Buyer, with respect to each
Purchased Asset which is a Junior Interest, that except as specifically
disclosed to in writing and approved by Buyer in accordance with the Agreement,
as of the Purchase Date for each such Purchased Asset by Buyer from Seller and
as of the date of each Transaction hereunder and at all times while the Program
Agreements or any Transaction hereunder is in full force and effect the
representations set forth on this Schedule 1(b) shall be true and correct in all
material respects. For purposes of this Schedule 1(b) and the representations
and warranties set forth herein, a breach of a representation or warranty shall
be deemed to have been cured with respect to (a) a Purchased Asset which is a
Commercial Mortgage Loan Junior Interest or (b) a Mezzanine Loan Junior Interest
owned by the Mezzanine Loan Subsidiary, in each case, if and when Seller has
taken or caused to be taken action such that the event, circumstance or
condition that gave rise to such breach no longer affects such Junior Interest.
1. With respect to each Underlying Mortgage Loan and Underlying Mortgaged
Property related to each Commercial Mortgage Loan Junior Interest, the
representations and warranties set forth on Schedule 1(a) with respect to such
Underlying Mortgage Loan and Underlying Mortgaged Property are true and correct
in all material respects. With respect to each Underlying Mortgage Loan and
Underlying Mortgaged Property related to each Mezzanine Loan Junior Interest,
the representations and warranties set forth on Schedule 1(c) with respect to
such Underlying Mortgage Loan and Underlying Mortgaged Property are true and
correct in all material respects.
2. The Junior Interest is (a) a junior participation interest in a Commercial
Mortgage Loan or a Mezzanine Loan or (b) a "B-note" in an "A/B structure" in a
Commercial Mortgage Loan or a Mezzanine Loan.
3. Each Junior Interest has a Loan-to-Value Ratio of 75% or less.
4. Seller has delivered to Buyer or its designee the original promissory note,
certificate or other similar indicia of ownership of such Junior Interest,
however denominated, together with an original assignment thereof, executed by
Seller in blank, or, with respect to a participation interest, reissued in
Buyer's name (or such other name as designated by the Buyer).
5. No default or event of default has occurred under any agreement pertaining to
any lien or other interest that ranks pari passu with or senior to the interests
of the holder of such Junior Interest in respect of the related Underlying
Mortgaged Property and there is no provision in any such agreement which would
provide for any increase in the principal amount of any such lien or other
interest.
6. No (i) monetary default, breach or violation exists with respect to any
agreement or other document governing or pertaining to such Junior Interest, the
related Commercial Mortgage Loan, the related Mezzanine Loan or any other
Schedule 1(b)-1
obligation of the owner of the Underlying Mortgaged Property, (ii) material
non-monetary default, breach or violation exists with respect to such Junior
Interest, the related Commercial Mortgage Loan, the related Mezzanine Loan or
any other obligation of the owner of the Underlying Mortgaged Property, or (iii)
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event of
acceleration.
7. Such Junior Interest has not been and shall not be deemed to be a Security
within the meaning of the Securities Act of 1933, as amended or the Securities
Exchange Act of 1934, as amended.
8. No issuer of the Purchased Asset, no co-participant and no Mortgagor related
to any Underlying Mortgage Loan, is a debtor in any state or federal bankruptcy
or insolvency proceeding.
9. The Transactions under this Agreement constitute a sale of, or creates a
valid, first priority security interest in favor of the Buyer, in such Junior
Interest.
Schedule 1(b)-2
Schedule 1(c)
REPRESENTATIONS AND WARRANTIES
RE: PURCHASED ASSETS CONSISTING OF MEZZANINE LOANS
Seller represents and warrants to Buyer, with respect to each
Mezzanine Loan owned by the Mezzanine Loan Subsidiary, that except as
specifically disclosed to in writing and approved by Buyer in accordance with
the Agreement, as of the Purchase Date for each such Purchased Asset by Buyer
from Seller and as of the date of each Transaction hereunder and at all times
while the Program Agreements or any Transaction hereunder is in full force and
effect or the Mezzanine Loan Subsidiary continues to own such Mezzanine Loan the
representations set forth on this Schedule 1(c) shall be true and correct in all
material respects. For purposes of this Schedule 1(c) and the representations
and warranties set forth herein, a breach of a representation or warranty shall
be deemed to have been cured with respect to a Mezzanine Loan owned by the
Mezzanine Loan Subsidiary if and when Seller has taken or caused to be taken
action such that the event, circumstance or condition that gave rise to such
breach no longer affects such Purchased Asset.
1. The Mezzanine Loan is a performing mezzanine loan secured by a pledge of all
of the Capital Stock of a Mortgagor that owns income producing commercial real
estate.
2. Such Mezzanine Loan complies in all material respects with, or is exempt
from, all requirements of federal, state or local law relating to such Mezzanine
Loan.
3. Mezzanine Loan Subsidiary has good and marketable title to, and is the sole
owner and holder of, such Mezzanine Loan, and Mezzanine Loan Subsidiary is
pledging such Mezzanine Loan free and clear of any and all liens, pledges,
encumbrances, charges, security interests or any other ownership interests of
any nature encumbering such Mezzanine Loan.
4. No fraudulent acts were committed by Mezzanine Loan Subsidiary in connection
with its acquisition or origination of such Mezzanine Loan nor were any
fraudulent acts committed by any Person in connection with the origination of
such Mezzanine Loan.
5. All information contained in the related Complete Submission (or as otherwise
provided to Buyer) in respect of such Mezzanine Loan is accurate and complete in
all material respects.
6. Except as included in the Complete Submission, neither Seller nor Mezzanine
Loan Subsidiary is a party to any document, instrument or agreement, and there
is no document, that by its terms modifies or affects the rights and obligations
of any holder of such Mezzanine Loan and neither Mezzanine Loan Subsidiary nor
Seller has consented to any material change or waiver to any term or provision
of any such document, instrument or agreement and no such change or waiver
exists.
Schedule 1(c)-1
7. Such Mezzanine Loan is presently outstanding, the proceeds thereof have been
fully and properly disbursed and, except for amounts held in escrow by Servicer,
there is no requirement for any future advances thereunder.
8. Mezzanine Loan Subsidiary has full right, power and authority to sell and
assign such Mezzanine Loan and such Mezzanine Loan or any related Mezzanine Loan
Document has not been cancelled, satisfied or rescinded in whole or part nor has
any instrument been executed that would effect a cancellation, satisfaction or
rescission thereof.
9. Other than consents and approvals obtained as of the related Purchase Date or
those already granted in the Mezzanine Loan Documents, no consent or approval by
any Person is required in connection (i) with Mezzanine Loan Subsidiary's pledge
of such Mezzanine Loan, (ii) for Buyer's exercise of any rights or remedies in
respect of such Mezzanine Loan or (iii) for Buyer's sale, pledge or other
disposition of such Mezzanine Loan, other than, in the case of clauses (ii) or
(iii), customary intercreditor restrictions limiting assignees to "qualified
transferees". No third party holds any "right of first refusal", "right of first
negotiation", "right of first offer", purchase option, or other similar rights
of any kind, and no other impediment exists to any such transfer or exercise of
rights or remedies.
10. The Mezzanine Loan is secured by a pledge of equity ownership interests in
the related Mortgagor under the Underlying Mortgage Loan or a direct or indirect
owner of the related Mortgagor and the security interest created thereby has
been fully perfected in favor of the originator and its successors and assigns.
11. The owner of the Underlying Mortgaged Property has been duly organized and
is validly existing and in good standing under the laws of its jurisdiction of
organization, with requisite power and authority to own its assets and to
transact the business in which it is now engaged, the sole purpose of the owner
of the Underlying Mortgaged Property under its organizational documents is to
own, finance, sell or otherwise manage the Properties and to engage in any and
all activities related or incidental thereto, and the Mortgaged Properties
constitute the sole assets of the owner of the Underlying Mortgaged Property.
12. The owner of the Underlying Mortgaged Property has good and marketable title
to the Underlying Mortgaged Property, no claims under the title policies
insuring the owner of the Underlying Mortgaged Property's title to the
Properties have been made, and the owner of the Underlying Mortgaged Property
has not received any written notice regarding any material violation of any
easement, restrictive covenant or similar instrument affecting the Underlying
Mortgaged Property.
13. The representations and warranties made by the borrower (the "Mezzanine
Borrower") in the Mezzanine Loan Documents were true and correct in all material
respects as of the date such representations and warranties were stated to be
true therein, and there has been no adverse change with respect to the Mezzanine
Loan, the Mezzanine Borrower, the Underlying Mortgaged Property or the owner of
the Underlying Mortgaged Property that would render any such representation or
warranty not true or correct in any material respect as of the Purchase Date.
Schedule 1(c)-2
14. The Mezzanine Loan Documents provide for the acceleration of the payment of
the unpaid principal balance of the Mezzanine Loan if (i) the related borrower
voluntarily transfers or encumbers all or any portion of any related Mezzanine
Collateral, or (ii) any direct or indirect interest in the related borrower is
voluntarily transferred or assigned, other than, in each case, as permitted
under the terms and conditions of the related loan documents.
15. Pursuant to the terms of the Mezzanine Loan Documents: (a) no material terms
of any related Mortgage may be waived, canceled, subordinated or modified in any
material respect and no material portion of such Mortgage or the Underlying
Mortgaged Property may be released without the consent of the holder of the
Mezzanine Loan; (b) no material action may be taken by the owner of the
Underlying Mortgaged Property with respect to the Underlying Mortgaged Property
without the consent of the holder of the Mezzanine Loan; (c) the holder of the
Mezzanine Loan is entitled to approve the budget of the owner of the Underlying
Mortgaged Property as it relates to the Underlying Mortgaged Property; and (d)
the holder of the Mezzanine Loan's consent is required prior to the owner of the
Underlying Mortgaged Property incurring any additional indebtedness.
16. There is no (i) monetary default, breach or violation with respect to such
Mezzanine Loan, the Underlying Mortgage Loan or any other obligation of the
owner of the Underlying Mortgaged Property, (ii) material non-monetary default,
breach or violation with respect to such Mezzanine Loan, the Underlying Mortgage
Loan or any other obligation of the owner of the Underlying Mortgaged Property
or (iii) event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach, violation or
event of acceleration.
17. No default or event of default has occurred under any agreement pertaining
to any lien or other interest that ranks pari passu with or senior to the
interests of the holder of such Mezzanine Loan or with respect to any Underlying
Mortgage Loan or other indebtedness in respect of the related Underlying
Mortgaged Property and there is no provision in any agreement related to any
such lien, interest or loan which would provide for any increase in the
principal amount of any such lien, other interest or loan.
18. Mezzanine Loan Subsidiary's security interest in the Mezzanine collateral is
covered by a UCC-9 insurance policy (the "UCC-9 Policy") in the maximum
principal amount of the Mezzanine Loan insuring that the related pledge is a
valid first priority lien on the Mezzanine Collateral, subject only to the
exceptions stated therein (or a pro forma title policy or marked up title
insurance commitment on which the required premium has been paid exists which
evidences that such UCC-9 Policy will be issued), such UCC-9 Policy (or, if it
has yet to be issued, the coverage to be provided thereby) is in full force and
effect, no material claims have been made thereunder and no claims have been
paid thereunder, Mezzanine Loan Subsidiary has not done, by act or omission,
anything that would materially impair the coverage under the UCC-9 Policy and as
of the Purchase Date, the UCC-9 Policy (or, if it has yet to be issued, the
coverage to be provided thereby) will inure to the benefit of Buyer without the
consent of or notice to the insurer.
Schedule 1(c)-3
19. The Mezzanine Loan, and each party involved in the origination of the
Mezzanine Loan, complied as of the date of origination with, or was exempt from,
applicable state or federal laws, regulations and other requirements pertaining
to usury.
20. Mezzanine Loan Subsidiary has delivered to Buyer or its designee the
original promissory note made in respect of such Mezzanine Loan, together with
an original assignment thereof executed by Mezzanine Loan Subsidiary in blank.
21. The Mezzanine Loan Subsidiary has not received any written notice that the
Mezzanine Loan may be subject to reduction or disallowance for any reason,
including without limitation, any setoff, right of recoupment, defense,
counterclaim or impairment of any kind.
22. The Mezzanine Loan Subsidiary has no obligation to make loans to, make
guarantees on behalf of, or otherwise extend credit to, or make any of the
foregoing for the benefit of, the Mezzanine Borrower or any other person under
or in connection with the Mezzanine Loan.
23. The servicing and collection practices used by the servicer of the Mezzanine
Loan, and the origination practices of the related originator, have been in all
respects legal, proper and prudent and have met customary industry standards by
prudent institutional commercial mezzanine lenders and mezzanine loan servicers
except to the extent that, in connection with its origination, such standards
were modified as reflected in the documentation delivered to Buyer.
24. If applicable, the ground lessor consented to and acknowledged that (i) the
Mezzanine Loan is permitted / approved, (ii) any foreclosure of the Mezzanine
Loan and related change in ownership of the ground lessee will not require the
consent of the ground lessor or constitute a default under the ground lease,
(iii) copies of default notices would be sent to Mezzanine Lender and (iv) it
would accept cure from Mezzanine Lender on behalf of the ground lessee.
25. To the extent the Buyer was granted a security interest with respect to the
Mezzanine Loan, such interest (i) was given for due consideration, (ii) has
attached, (iii) is perfected, (iv) is a first priority Lien, and (v) has been
appropriately assigned to the Buyer by the owner of the Underlying Mortgaged
Property.
26. No consent, approval, authorization or order of, or registration or filing
with, or notice to, any court or governmental agency or body having jurisdiction
or regulatory authority is required for any transfer or assignment by the holder
of such Mezzanine Loan.
27. Mezzanine Loan Subsidiary has not received written notice of any outstanding
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind for which the holder of such
Mezzanine Loan is or may become obligated.
28. Mezzanine Loan Subsidiary has not advanced funds, or knowingly received any
advance of funds from a party other than the borrower relating to such Mezzanine
Loan, directly or indirectly, for the payment of any amount required by such
Mezzanine Loan.
Schedule 1(c)-4
29. All real estate taxes and governmental assessments, or installments thereof,
which would be a lien on any related Underlying Mortgaged Property and that for
the related Purchased Asset have become delinquent in respect of such Underlying
Mortgaged Property have been paid, or an escrow of funds in an amount sufficient
to cover such payments has been established. For purposes of this representation
and warranty, real estate taxes and governmental assessments and installments
thereof shall not be considered delinquent until the earlier of (a) the date on
which interest and/or penalties would first be payable thereon and (b) the date
on which enforcement action is entitled to be taken by the related taxing
authority.
30. Each related Underlying Mortgaged Property is free and clear of any material
damage (other than deferred maintenance for which escrows were established at
origination) that would affect materially and adversely the value of such
Underlying Mortgaged Property as security for the related Underlying Mortgage
Loan and there is no proceeding pending or threatened for the total or partial
condemnation of such Underlying Mortgaged Property.
31. As of the date of origination of the Mezzanine Loan, all insurance coverage
required under the Mezzanine Loan Documents and/or any Mortgage Loan related to
the Underlying Mortgaged Property, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the related
Underlying Mortgaged Property in the jurisdiction in which such Underlying
Mortgaged Property is located, and with respect to a fire and extended perils
insurance policy, is in an amount (subject to a customary deductible) at least
equal to the lesser of (i) the replacement cost of improvements located on such
Underlying Mortgaged Property, or (ii) the outstanding principal balance of the
Underlying Mortgage Loan, and in any event, the amount necessary to prevent
operation of any co-insurance provisions; and is also covered by business
interruption or rental loss insurance, in an amount at least equal to 12 months
of operations of the related Underlying Mortgaged Property, all of which was in
full force and effect with respect to each related Underlying Mortgaged
Property; and, as of the Purchase Date for the related Purchased Asset, all
insurance coverage required under the Mezzanine Loan Documents and/or any
Underlying Mortgage Loan related to the Underlying Mortgaged Property, which
insurance covers such risks and is in such amounts as are customarily acceptable
to prudent commercial and multifamily mortgage lending institutions lending on
the security of property comparable to the related Underlying Mortgaged Property
in the jurisdiction in which such Underlying Mortgaged Property is located, is
in full force and effect with respect to each related Underlying Mortgaged
Property; all premiums due and payable for the related Purchased Asset have been
paid; and no notice of termination or cancellation with respect to any such
insurance policy has been received by Seller; and except for certain amounts not
greater than amounts which would be considered prudent by an institutional
commercial and/or multifamily mortgage lender with respect to a similar mortgage
loan and which are set forth in the Mezzanine Loan Documents and/or any
Underlying Mortgage Loan related to the Underlying Mortgaged Property, any
insurance proceeds in respect of a casualty loss, will be applied either (i) to
the repair or restoration of all or part of the related Underlying Mortgaged
Property or (ii) the reduction of the outstanding principal balance of the
Underlying Mortgage Loan, subject in either case to requirements with respect to
leases at the related Underlying Mortgaged Property and to other exceptions
customarily provided for by prudent institutional lenders for similar loans. The
Underlying Mortgaged Property is also covered by comprehensive general liability
Schedule 1(c)-5
insurance against claims for personal and bodily injury, death or property
damage occurring on, in or about the related Underlying Mortgaged Property, in
an amount customarily required by prudent institutional lenders. An
architectural or engineering consultant has performed an analysis of the
Underlying Mortgaged Properties located in seismic zone 3 or 4 in order to
evaluate the structural and seismic condition of such property, for the sole
purpose of assessing the probable maximum loss ("PML") for the Underlying
Mortgaged Property in the event of an earthquake. In such instance, the PML was
based on a 475 year lookback with a 10% probability of exceedance in a 50 year
period. If the resulting report concluded that the PML would exceed 20% of the
amount of the replacement costs of the improvements, earthquake insurance on
such Underlying Mortgaged Property was obtained by an insurer rated at least
A-:V by A.M. Best Company or "BBB-" (or the equivalent) from S&P and Fitch or
"Baa3" (or the equivalent) from ▇▇▇▇▇'▇. If the Underlying Mortgaged Property is
located in Florida or within 25 miles of the coast of Texas, Louisiana,
Mississippi, Alabama, Georgia, North Carolina or South Carolina such Underlying
Mortgaged Property is insured by windstorm insurance in an amount at least equal
to the lesser of (i) the outstanding principal balance of such Underlying
Mortgage Loan and (ii) 100% of the full insurable value, or 100% of the
replacement cost, of the improvements located on the related Underlying
Mortgaged Property.
32. The insurance policies contain a standard mortgagee clause naming the
mortgagee, its successors and assigns as loss payee, in the case of a property
insurance policy, and additional insured in the case of a liability insurance
policy and provide that they are not terminable without 30 days prior written
notice to the mortgagee (or, with respect to non-payment, 10 days prior written
notice to the mortgagee) or such lesser period as prescribed by applicable law.
Each Mortgage requires that the Mortgagor maintain insurance as described above
or permits the mortgagee to require insurance as described above, and permits
the mortgagee to purchase such insurance at the Mortgagor's expense if Mortgagor
fails to do so.
33. There is no material and adverse environmental condition or circumstance
affecting the Underlying Mortgaged Property; there is no material violation of
any applicable Environmental Law with respect to the Underlying Mortgaged
Property; neither Mezzanine Loan Subsidiary nor the owner of the Underlying
Mortgaged Property has taken any actions which would cause the Underlying
Mortgaged Property not to be in compliance with all applicable Environmental
Laws; the Underlying Mortgage Loan documents require the Mortgagor to comply
with all Environmental Laws; and each Mortgagor has agreed to indemnify the
mortgagee for any losses resulting from any material, adverse environmental
condition or failure of the Mortgagor to abide by such Environmental Laws or has
provided environmental insurance.
34. No borrower under the Mezzanine Loan nor any Mortgagor under any Underlying
Mortgage Loan is a debtor in any state or federal bankruptcy or insolvency
proceeding.
35. Each related Underlying Mortgaged Property was inspected by or on behalf of
the related originator or an affiliate during the 12 month period prior to the
related origination date.
36. There are no material violations of any applicable zoning ordinances,
building codes and land laws applicable to the Underlying Mortgaged Property or
the use and occupancy thereof which (i) are not insured by an ALTA lender's
title insurance policy, or its equivalent as adopted in the applicable
Schedule 1(c)-6
jurisdiction, or a law and ordinance insurance policy or (ii) would have a
material adverse effect on the value, operation or net operating income of the
Underlying Mortgaged Property. The Mezzanine Loan Documents and the Underlying
Mortgage Loan documents require the Underlying Mortgaged Property to comply with
all applicable laws and ordinances.
37. None of the material improvements which were included for the purposes of
determining the appraised value of any related Underlying Mortgaged Property at
the time of the origination of the Mezzanine Loan or any related Underlying
Mortgage Loan lies outside of the boundaries and building restriction lines of
such property (except Underlying Mortgaged Properties which are legal
non-conforming uses), to an extent which would have a material adverse affect on
the value of the Underlying Mortgaged Property or the related Mortgagor's use
and operation of such Underlying Mortgaged Property (unless affirmatively
covered by title insurance) and no improvements on adjoining properties
encroached upon such Underlying Mortgaged Property to any material and adverse
extent (unless affirmatively covered by title insurance).
38. As of the Purchase Date with respect to the related Purchase Price Increase,
there was no pending action, suit or proceeding, or governmental investigation
of which the Mezzanine Loan Subsidiary, the Seller, the Mezzanine Borrower or
the owner of the Underlying Mortgaged Property has received notice, against the
Mortgagor or the related Underlying Mortgaged Property the adverse outcome of
which could reasonably be expected to materially and adversely affect the
Mezzanine Loan or the Underlying Mortgage Loan.
39. The improvements located on the Underlying Mortgaged Property are either not
located in a federally designated special flood hazard area or, if so located,
the Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in full force and
effect in an amount no less than the lesser of (i) the original principal
balance of the Underlying Mortgage Loan, (ii) the value of such improvements on
the related Underlying Mortgaged Property located in such flood hazard area or
(iii) the maximum allowed under the related federal flood insurance program.
40. Except for Mortgagors under Underlying Mortgage Loans the Underlying
Mortgaged Property with respect to which includes a Ground Lease, the related
Mortgagor (or its affiliate) has title in the fee simple interest in each
related Underlying Mortgaged Property.
41. The related Underlying Mortgaged Property is not encumbered, and none of the
Mezzanine Loan Documents or any Underlying Mortgage Loan documents permits the
related Underlying Mortgaged Property to be encumbered subsequent to the
Purchase Date of the related Purchased Asset without the prior written consent
of the holder thereof, by any lien securing the payment of money junior to or of
equal priority with, or superior to, the lien of the related Mortgage (other
than Title Exceptions, taxes, assessments and contested mechanics and
materialmens liens that become payable after such Purchase Date).
42. Each related Underlying Mortgaged Property constitutes one or more complete
separate tax lots (or the related Mortgagor has covenanted to obtain separate
tax lots and a Person has indemnified the mortgagee for any loss suffered in
connection therewith or an escrow of funds in an amount sufficient to pay taxes
resulting from a breach thereof has been established) or is subject to an
endorsement under the related title insurance policy.
Schedule 1(c)-7
43. An appraisal of the related Underlying Mortgaged Property was conducted
within 12 months of the origination of the Commercial Mortgage Loan, which
appraisal is signed by a qualified appraiser who had no interest, direct or
indirect, in the Underlying Mortgaged Property or in any loan made on the
security thereof; and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan, and such appraisal and appraiser both
satisfied either (A) the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the Appraisal
Foundation, or (B) the guidelines in Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act or 1989, in either case as in effect on the
date such Underlying Mortgage Loan was originated.
44. The related Underlying Mortgaged Property is served by public utilities,
water and sewer (or septic facilities) and otherwise appropriate for the use in
which the Underlying Mortgaged Property is currently being utilized.
45. To the extent required under applicable law, Mezzanine Loan Subsidiary is
authorized to transact and do business in each jurisdiction in which a Mortgaged
Property is located at all times when it held the Mezzanine Loan.
46. The Mezzanine Collateral does not secure any mezzanine loan other than the
Mezzanine Loan being transferred and assigned to the Buyer hereunder (except for
Mezzanine Loans, if any, which are cross-collateralized with other Mezzanine
Loans being conveyed to the Buyer or subsequent transferee hereunder and
identified on the Purchased Asset Schedule).
47. Pursuant to the terms of the Mezzanine Loan Documents, the Mezzanine Loan
Subsidiary satisfied any transfer conditions or requirements (or such conditions
or requirements were validly waived by any requisite parties) in the Mezzanine
Loan Documents with respect to the pledge of the Mezzanine Loan to the Buyer.
48. Each Mezzanine Loan has a Loan-to-Value Ratio of 85% or less
49. With respect to each related Underlying Mortgaged Property consisting of a
Ground Lease, Seller represents and warrants the following with respect to the
related Ground Lease:
(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded no later than 30 days after the origination date of the related
Purchased Asset and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent of the lessor
thereunder is required, it has been obtained prior to the origination date.
(ii) Upon the foreclosure of the Underlying Mortgage Loan (or acceptance
of a deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to the mortgagee under the leasehold estate and its assigns without
the consent of the lessor thereunder (or, if any such consent is required, it
has been obtained prior to the Purchase Date).
Schedule 1(c)-8
(iii) Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its successors or
assigns, except termination or cancellation if (i) an event of default occurs
under the Ground Lease, (ii) notice thereof is provided to the mortgagee and
(iii) such default is curable by the mortgagee as provided in the Ground Lease
but remains uncured beyond the applicable cure period.
(iv) Such Ground Lease is in full force and effect, there is no material
default under such Ground Lease, and there is no event which, with the passage
of time or with notice and the expiration of any grace or cure period, would
constitute a material default under such Ground Lease.
(v) The Ground Lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee to the
mortgagee. The Ground Lease or ancillary agreement further provides that no
notice given is effective against the mortgagee unless a copy has been given to
the mortgagee in a manner described in the Ground Lease or ancillary agreement.
(vi) The Ground Lease (i) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however, to only
the Title Exceptions or (ii) is subject to a subordination, non-disturbance and
attornment agreement to which the mortgagee on the lessor's fee interest in the
Underlying Mortgaged Property is subject.
(vii) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the lessee
under the Ground Lease) to cure any curable default under such Ground Lease
before the lessor thereunder may terminate such Ground Lease.
(viii) Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of which can
be exercised by the mortgagee if the mortgagee acquires the lessee's rights
under the Ground Lease) that extends not less than 20 years beyond the stated
maturity date of the Mortgage.
(ix) Under the terms of such Ground Lease, any estoppel or consent letter
received by the mortgagee from the lessor, and the related Mortgage, taken
together, any related insurance proceeds or condemnation award (other than in
respect of a total or substantially total loss or taking) will be applied either
to the repair or restoration of all or part of the related Underlying Mortgaged
Property, with the mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as repair or restoration progresses, or to the
payment or defeasance of the outstanding principal balance of the Underlying
Mortgage Loan, together with any accrued interest (except in cases where a
different allocation would not be viewed as commercially unreasonable by any
commercial mortgage lender, taking into account the relative duration of the
Ground Lease and the related Mortgage and the ratio of the market value of the
related Underlying Mortgaged Property to the outstanding principal balance of
such Underlying Mortgage Loan).
Schedule 1(c)-9
(x) The Ground Lease does not impose any restrictions on subletting that
would be viewed as commercially unreasonable by a prudent commercial lender.
(xi) The ground lessor under such Ground Lease is required to enter into a
new lease upon termination of the Ground Lease for any reason, including the
rejection of the Ground Lease in bankruptcy.
50 The Transactions under this Agreement constitute a sale of, or creates a
valid, first priority security interest in favor of the Buyer, in the Mezzanine
Loan Subsidiary Interests, and creates a valid, first priority security interest
in favor of the Buyer in the Mezzanine Loans.
Schedule 1(c)-10
Schedule 1(d)
REPRESENTATIONS AND WARRANTIES
RE: PURCHASED ASSETS CONSISTING OF SECURITIES
Seller represents and warrants to Buyer, with respect to each
Purchased Asset which is a Security, that except as specifically disclosed to in
writing and approved by Buyer in accordance with the Agreement, as of the
Purchase Date for each such Purchased Asset by Buyer from Seller and as of the
date of each Transaction hereunder and at all times while the Program Agreements
or any Transaction hereunder is in full force and effect the representations set
forth on this Schedule 1(d) shall be true and correct in all material respects.
For purposes of this Schedule 1(d) and the representations and warranties set
forth herein, a breach of a representation or warranty shall be deemed to have
been cured with respect to a Purchased Asset which is a Security if and when
Seller has taken or caused to be taken action such that the event, circumstance
or condition that gave rise to such breach no longer affects such Purchased
Asset.
1. The CMBS Security consists of pass-through certificates Rated no lower than B
representing beneficial ownership interests in one or more first lien mortgage
loans secured by commercial and/or multifamily properties.
2. Each CRE CDO Security is of investment grade and consists of asset-backed
securities, which security entitles the holders thereof to receive payments that
depend (except for rights or other assets designed to assure the servicing or
timely distribution of proceeds to holders of the asset-backed securities) on
the cash flow from a portfolio of underlying collateral.
3. Immediately prior to the sale, transfer and assignment to Buyer thereof,
Seller had good and marketable title to, and was the sole owner and holder of,
such Security, and Seller is transferring such Security free and clear of any
and all liens, pledges, encumbrances, charges, security interests or any other
ownership interests of any nature encumbering such Security (other than any
security interest created in favor of Buyer pursuant to this Agreement).
4. Seller has full right, power and authority to sell and assign such Security
and such Security has not been cancelled, satisfied or rescinded in whole or
part nor has any instrument been executed that would effect a cancellation,
satisfaction or rescission thereof.
5. Other than consents and approvals obtained as of the related Purchase Date or
those already granted in the related documents governing such Security, no
consent or approval by any Person is required in connection (i) with Buyer's
acquisition of such Security, (ii) for Buyer's exercise of any rights or
remedies in respect of such Security or (iii) for Buyer's sale or other
disposition of such Security other than, in the case of clauses (ii) and (iii),
customary restrictions set forth in the documents governing the Security. No
third party holds any "right of first refusal", "right of first negotiation",
"right of first offer", purchase option, or other similar rights of any kind,
and no other impediment exists to any such transfer or exercise of rights or
remedies.
Schedule 1(d)-1
6. Upon consummation of the purchase contemplated to occur in respect of such
Security on the Purchase Date therefor, Seller will have validly and effectively
conveyed to Buyer all legal and beneficial interest in and to such Security free
and clear of any and all liens, pledges, encumbrances, charges, security
interests or any other ownership interests of any nature (other than any
security interest created in favor of Buyer pursuant to this Agreement).
7. The Security is a certificated security in registered form, or is in
uncertificated form and held through the facilities of (a) The Depository Trust
Corporation in New York, New York, or (b) such other clearing organization or
book-entry system as is approved in writing by the Buyer.
8. With respect to any Security that is a certificated security, Seller has
delivered to Buyer or its designee such certificated security, along with any
and all certificates, assignments, bond powers executed in blank, necessary to
transfer such certificated security under the issuing documents of such
Security.
9. All information contained in the related Complete Submission (or as otherwise
provided to Buyer) in respect of such Security is accurate and complete in all
material respects.
10. As of the date of its issuance, such Security complied in all material
respects with, or was exempt from, all requirements of federal, state or local
law relating to the issuance thereof including, without limitation, any
registration requirements of the Securities Act of 1933, as amended.
11. Except as included in the Complete Submission, there is no document that by
its terms modifies or affects the rights and obligations of the holder of such
Security, the terms of the related pooling and servicing agreement or any other
agreement relating to the Security, and, since issuance, there has been no
material change or waiver to any term or provision of any such document,
instrument or agreement.
12. No (i) monetary default, breach or violation exists with respect to any
Governing Agreement or other document governing or pertaining to such Security,
(ii) material non-monetary default, breach or violation exists with respect to
any such Governing Agreement or other document governing or pertaining to such
Security, or (iii) event exists which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration under such documents or agreements.
13. No consent, approval, authorization or order of, or registration or filing
with, or notice to, any court or governmental agency or body having jurisdiction
or regulatory authority over Seller is required for any transfer or assignment
of such Security.
14. Except as disclosed in the Complete Submission, (i) no interest shortfalls
have occurred and no realized losses have been applied to any Security, and (ii)
the Seller is not aware of any circumstances that could have a material adverse
effect on the Security.
Schedule 1(d)-2
15. There are no circumstances or conditions with respect to the Security, the
Underlying Mortgaged Property or the related Mortgagor's credit standing that
can reasonably be expected to cause private institutional investors to regard
the Security as an unacceptable investment or adversely affect the value or
marketability of the Security.
16. Seller has not received written notice of any outstanding liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind for which the holder of such Security is
or may become obligated.
17. There is no material inaccuracy in any servicer report or trustee report
delivered to it (and, in turn, delivered pursuant to the terms of this
Agreement) in connection with such Security.
18. No servicer of the Security has made any advances, directly or indirectly,
with respect to the Security or to any mortgage loan relating to such Security.
19. The Transactions under this Agreement constitute a sale of, or creates a
valid, first priority security interest in favor of the Buyer, in the
Securities.
Schedule 1(d)-3
Schedule 1(e)
REPRESENTATIONS AND WARRANTIES
RE: PURCHASED ASSETS CONSISTING OF MEZZANINE LOAN INTERESTS
The Seller represents and warrants to the Buyer, with respect to the
Mezzanine Loan Subsidiary Interests subject to a Transaction, that except as
specifically disclosed to in writing and approved by Buyer in accordance with
the Agreement, as of the Purchase Date for the purchase of Mezzanine Loan
Subsidiary Interests subject to a Transaction by the Buyer from the Seller and
as of the date of this Repurchase Agreement and at all times while the Program
Agreements and any Transaction hereunder is in full force and effect, the
representations set forth in this Schedule 1(e) shall be true and correct in all
material respects. For purposes of this Schedule 1(e) and the representations
and warranties set forth herein, a breach of a representation or warranty shall
be deemed to have been cured with respect to the Mezzanine Loan Subsidiary
Interests if and when the Seller has taken or caused to be taken action such
that the event, circumstance or condition that gave rise to such breach no
longer adversely affects such Mezzanine Loan Subsidiary Interests. With respect
to those representations and warranties which are made to the best of the
Seller's knowledge, if it is discovered by the Seller or the Buyer that the
substance of such representation and warranty is inaccurate, notwithstanding the
Seller's lack of knowledge with respect to the substance of such representation
and warranty, such inaccuracy shall be deemed a breach of the applicable
representation and warranty.
(a) Mezzanine Loan Subsidiary Interest. The Mezzanine Loan
Subsidiary Interests constitute all the issued and outstanding limited liability
company interests of all classes of Mezzanine Loan Subsidiary interests and are
not certificated. The Seller shall not issue certificates representing the
Mezzanine Loan Subsidiary Interest or issue additional limited liability company
interest other than the Mezzanine Loan Subsidiary Interests;
(b) Duly and Validly Issued. All of the shares of the Mezzanine Loan
Subsidiary Interests have been duly and validly issued and, if capital stock of
a corporation, are fully paid and nonassessable;
(c) Securities. None of the Mezzanine Loan Subsidiary Interests (i)
are dealt in or traded on securities exchanges or in securities markets, (ii)
are by their terms expressly subject to Article 8 of the Uniform Commercial Code
of any jurisdiction, (iii) constitute an investment company security or (iv) are
held in a securities account (in each case within the meaning of Section
8-103(c) of the Uniform Commercial Code;
(d) Beneficial Owners. The Seller is the sole record and beneficial
owners of, and have title to, the Mezzanine Loan Subsidiary Interests, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the Lien created herein;
Schedule 1(e)-1
(e) Consents. All consents of majority in interest of the members of
the Mezzanine Loan Subsidiary to the grant of the security interests provided
herein to the Seller and to the Transactions provided for herein have been
obtained and are in full force and effect;
(f) First Priority Lien. The Lien granted hereunder is a first
priority Lien on the Mezzanine Loan Subsidiary Interests; and
(g) No Waiver. The Seller has not waived or agreed to any waiver
under, or agreed to any amendment or other modification of, the Limited
Liability Company Agreement.
Schedule 1(e)-2
SCHEDULE 2
AUTHORIZED REPRESENTATIVES
SELLER NOTICES
Address:
Name:
Telephone:
Facsimile:
SELLER AUTHORIZATIONS
Any of the persons whose signatures and titles appear below are authorized,
acting singly, to act for Seller under this Agreement:
Name Title Signature
----------------------- ------------------------- --------------------------
A-I-1
MEZZANINE LOAN SUBSIDIARY NOTICES
Address:
Name:
Telephone:
Facsimile:
MEZZANINE LOAN SUBSIDIARY AUTHORIZATIONS
Any of the persons whose signatures and titles appear below are authorized,
acting singly, to act for Seller under this Agreement:
Name Title Signature
----------------------- ------------------------- --------------------------
A-I-1
BUYER NOTICES
Address:
Name:
Telephone:
Facsimile:
BUYER AUTHORIZATIONS
Any of the persons whose signatures and titles appear below, including any other
authorized officers, are authorized, acting singly, to act for Buyer under this
Agreement:
Name Title Signature
----------------------- ------------------------- --------------------------
A-I-2
EXHIBIT A
FORM OF TRANSACTION REQUEST
______, 2006
Column Financial Inc.
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ Sleeper
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Re: Master Repurchase Agreement dated as of March 30, 2006, as amended, (the
"Agreement") by and among Column Financial, Inc. (the "Buyer"), 111 Debt
Acquisition LLC (the "Seller"), 111 Debt Acquisition Mezz LLC (the
"Mezzanine Loan Subsidiary") and ▇▇▇▇▇▇▇ Realty trust, Inc. (the
"Guarantor").
Ladies and Gentlemen:
Pursuant to Section 3 of the Agreement, the Seller hereby requests that
the Buyer enter into a Transaction with the Buyer to purchase the Eligible
Asset(s) listed on the Purchased Asset Schedule attached hereto as Annex 1 and
as classified below in accordance with the Agreement:
ASSET CLASS
----------------------------------------------------------------------------------------------------------------------
Commercial Junior Mezzanine CRE CDO
Mortgage Loans Interests Loans CMBS Security Security Total
----------------------------------------------------------------------------------------------------------------------
Commercial and Multifamily
Assets:
----------------------------------------------------------------------------------------------------------------------
Number of Purchased
Assets
----------------------------------------------------------------------------------------------------------------------
Original Unpaid
Principal Balance
----------------------------------------------------------------------------------------------------------------------
Current Unpaid
Principal Balance
----------------------------------------------------------------------------------------------------------------------
Anticipated Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price
Percentage of Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price
----------------------------------------------------------------------------------------------------------------------
Retail Property:
----------------------------------------------------------------------------------------------------------------------
Number of Purchased Assets
----------------------------------------------------------------------------------------------------------------------
Original Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Current Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Anticipated Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price Percentage of
Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price
----------------------------------------------------------------------------------------------------------------------
A-1
ASSET CLASS
----------------------------------------------------------------------------------------------------------------------
First Junior Mezzanine CRE CDO
Mortgage Loans Interests Loans CMBS Security Security Total
----------------------------------------------------------------------------------------------------------------------
Office Building:
----------------------------------------------------------------------------------------------------------------------
Number of Purchased Assets
----------------------------------------------------------------------------------------------------------------------
Original Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Current Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Anticipated Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price Percentage of
Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price
----------------------------------------------------------------------------------------------------------------------
Hotel or Motel:
----------------------------------------------------------------------------------------------------------------------
Number of Purchased Assets
----------------------------------------------------------------------------------------------------------------------
Original Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Current Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Anticipated Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price Percentage of
Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price
----------------------------------------------------------------------------------------------------------------------
Total Assets: _____________________
Total Anticipated Asset Value: _____________________
Total Purchase Price: _____________________
Purchase Date: _______________, 2006
In connection with this Transaction Request, the undersigned hereby certifies
that: (i) each of the Transaction Conditions Precedent set forth in the
Agreement has been satisfied as of the date hereof, or will be satisfied at
least one Business Day prior to the proposed Purchase Date; and (ii) attached
hereto is (x) the Summary Due Diligence Materials relating to each Eligible
Asset described on Annex 2 hereto, and (y) with respect to each Eligible Asset,
a Preliminary Date Tape containing the data fields set forth in Exhibit C to the
Agreement.
With respect to the representations and warranties of the Seller made
pursuant to Section 13 of the Agreement and Schedule 1 thereto, the Seller
hereby informs the Buyer of the exceptions to such representations and
warranties, if any, set forth on Annex 3 hereto.
A-2
All capitalized terms used but not defined herein shall have the meanings
specified in the Agreement.
111 DEBT ACQUISITION LLC
By:
Name:
Title:
A-3
Annex I to Exhibit A
PURCHASED ASSET SCHEDULE(1)
-----------------------------------------------------------------------------------------------------------------------------------
Original Current
Principal Principal
Amount Amount Requested
Proposed of of Anticipated Purchase Requested Requested Repurchase
Loan Property Name of Purchase Asset Asset Eligible Eligible Asset Price Purchase Purchase Date, if
Number Name Borrower Date Class Type Asset Asset Value Percentage Price Date any
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
----------
(1) Any Purchase Asset Schedule attached electronically to any Transaction
Request or Purchase Confirmation shall be attached as a "pdf" file.
A-4
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[Date]
[________________]
Attention:
Re: Master Repurchase Agreement dated as of March 30, 2006, as amended, (the
"Agreement") by and among Column Financial, Inc. (the "Buyer"), 111 Debt
Acquisition LLC (the "Seller"), 111 Debt Acquisition Mezz LLC (the
"Mezzanine Loan Subsidiary") and ▇▇▇▇▇▇▇ Realty Trust, Inc. (the
"Guarantor").
Ladies and Gentlemen:
Column Financial, Inc. hereby confirms the sale by the Seller and the
purchase by the Buyer, of the Eligible Asset(s) described on the Purchase Asset
schedule attached hereto as Annex 1. This Purchase Confirmation is subject to
the following terms and conditions:
ASSET CLASS
----------------------------------------------------------------------------------------------------------------------
Commercial Junior Mezzanine CRE CDO
Mortgage Loans Interests Loans CMBS Security Security Total
----------------------------------------------------------------------------------------------------------------------
Commercial and Multifamily
Assets:
----------------------------------------------------------------------------------------------------------------------
Number of Purchased Assets
----------------------------------------------------------------------------------------------------------------------
Original Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Current Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price Percentage of
Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price
----------------------------------------------------------------------------------------------------------------------
Retail Property:
----------------------------------------------------------------------------------------------------------------------
Number of Purchased Assets
----------------------------------------------------------------------------------------------------------------------
Original Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Current Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price Percentage of
Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price
----------------------------------------------------------------------------------------------------------------------
B-1
ASSET CLASS
----------------------------------------------------------------------------------------------------------------------
First Junior Mezzanine CRE CDO
Mortgage Loans Interests Loans CMBS Security Security Total
----------------------------------------------------------------------------------------------------------------------
Office Building:
----------------------------------------------------------------------------------------------------------------------
Number of Purchased Assets
----------------------------------------------------------------------------------------------------------------------
Original Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Current Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price Percentage of
Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price
----------------------------------------------------------------------------------------------------------------------
Hotel or Motel:
----------------------------------------------------------------------------------------------------------------------
Number of Purchased Assets
----------------------------------------------------------------------------------------------------------------------
Original Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Current Unpaid Principal
Balance
----------------------------------------------------------------------------------------------------------------------
Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price Percentage of
Asset Value
----------------------------------------------------------------------------------------------------------------------
Purchase Price
----------------------------------------------------------------------------------------------------------------------
Total Assets: _____________________
Total Asset Value: _____________________
Total Purchase Price: _____________________
Purchase Date: _______________, 2006
With respect to the representations and warranties of the Seller made
pursuant to Section 13 of the Agreement and Schedule 1 thereto, the Buyer hereby
acknowledges and consents to the exceptions to such representations and
warranties, if any, set forth on Annex 2 hereto.
All capitalized terms used herein but not otherwise defined shall have the
meanings specified in the Agreement. The Agreement is incorporated by reference
into this Purchase Confirmation, and is made a part hereof as if it were fully
set forth herein and as evidenced hereby until all amounts due in connection
with this Transaction are paid in full.
Column Financial Inc.
By:
------------------------------
Name:
Title:
B-2
111 DEBT ACQUISITION LLC
By:
----------------------------
Name:
Title:
B-3
EXHIBIT C
FORM OF CLOSING DATA TAPE
1. Loan Number
2. Project_Name
3. Master Category
4. Legal Entity
5. SBU
6. Deal
7. Loan_Number
8. Seller
9. Property_Address
10. City
11. State
12. Zip_Code
13. Property_Type
14. Year_Built
15. #of Properties
16. Year Renovated
17. Occupancy
18. Date_Occupancy
19. Units/Pads/Rooms
20. NRSF
21. Appraisal Value
22. Appraisal Date
23. Cross Collateralized
24. Cross_Defaulted
25. Original_Balance
26. Current_Balance (at cut-off)
27. Current_Participated_Balance (at cut-off)
28. Position in Capital Structure
29. First Mortgage Balance Collateral
30. Subordinate Balance Collateral
31. Closed
32. Funding_Date
33. First_Pay_Date
34. Rate
35. Spread Index
36. Monthly Debt Service
37. Loan_Type
38. Interest_Rate_Cap
39. Additional Financing Indicator
40. Remaining I/O Terms (months)
41. Note Rate At Cut-off
42. Interest Accrual Method Code
C-1
43. Prepayment Terms Description
44. First Rate Adjustment Date
45. First Payment Adjustment Date
46. Lifetime Rate Floor
47. Periodic Rate Increase Limit
48. Periodic Rate Decrease Limit
49. Payment Frequency
50. Negative Amortization Allowed (Y/N)
51. Maturity Date At Cut-off
52. Last Extended Maturity Date
53. Exit Fee
54. Ownership_Interest
55. Ground Lease (Y/S/N)
56. Cross-Collateralized Loan Grouping
57. Lien_Position
58. Loan Structure Code
59. Senior Debt Amount at Cut-off
60. Senior Debt Type Code
61. Senior Debt Fully Extended Maturity Date
62. Senior Debt Periodic P&I Payment at Cut-off
63. Senior Debt Fixed or Floating
64. Senior Debt Margin (if floating)
65. Senior Debt Rate (if fixed)
66. Subordinate Debt
67. Junior Debt Amount at Cut-off
68. Junior Debt Type Code
69. Junior Debt Fully Extended Maturity Date
70. Junior Debt Periodic P&I Payment at Cut-off
71. Junior Debt Fixed or Floating
72. Junior Debt Margin (if floating)
73. Junior Debt Rate (if fixed)
74. Loan_Purpose SPE
75. Lockbox
76. Escrows
77. Actual_NOI
78. Acutal NOT Period (eg t-12 ended 4-30-04 etc)
79. UW_NOI
80. UW date based on
81. ▇▇_▇▇▇▇
▇▇. UW_NCF
83. UW_NDSC
84. Lockout Expiration Date
85. OriginalTerm
86. AmortTerm
87. Rem_Term
88. Rem_AmTerm
C-2
89. CLTV (Combined LTV all debt)
90. BLTV (Senior debt LTV)
91. McCracken_Rate
92. McCracken_PI
93. Servicing_Fee
94. Credit Score
95. Remaining Funding Obligations
96. Remaining Funding Obligations-Amount
97. Recourse Loan
98. Recourse to:
99. Recourse Provider Net Worth
100. Sponsor (Current)
101. Sponsor Net Worth
102. Loan Revised//Amended YorN
103. Property or loan transferred YorN
104. Transfer Date(if applicable)
C-3
EXHIBIT D
OFFICER'S COMPLIANCE CERTIFICATE
I, ___________________, do hereby certify that I am the [duly elected, qualified
and authorized] [CFO/TREASURER/FINANCIAL OFFICER] of 111 Debt Acquisition LLC
("Seller"). This Certificate is delivered to you in connection with Section 17b
of the Master Repurchase Agreement dated as of March 30, 2006, among Seller, 111
Debt Acquisition Mezz LLC ("Mezzanine Loan Subsidiary"), ▇▇▇▇▇▇▇ Realty Trust,
Inc. ("Limited Guarantor") and Column Financial Inc. (as amended from time to
time, the "Agreement"), as the same may have been amended from time to time. I
hereby certify that, as of the date of the financial statements attached hereto
and as of the date hereof, Seller is and has been in compliance with all the
terms of the Agreement and, without limiting the generality of the foregoing, I
certify that:
Adjusted Tangible Net Worth. Limited Guarantor has maintained an
Adjusted Tangible Net Worth of at least $200 million. A detailed
summary of the calculation of Limited Guarantor's actual Adjusted
Tangible Net Worth is provided in Schedule 1 hereto.
Indebtedness to Adjusted Tangible Net Worth Ratio. Limited
Guarantor's ratio of Indebtedness to Adjusted Tangible Net Worth has
not exceeded 5:1. A calculation of Limited Guarantor's actual
Indebtedness to Adjust Tangible Net Worth is provided in Schedule 1
hereto.
Maintenance of Profitability. Seller has not permitted, for any Test
Period, net income for such Test Period, before income taxes for
such Test Period and distributions made during such Test Period, to
be less than $1.00.
Insurance. Seller, Limited Guarantor, or their Affiliates, have
maintained, for Seller and its Subsidiaries, insurance coverage with
respect to employee dishonesty, forgery or alteration, theft,
disappearance and destruction, robbery and safe burglary, property
(other than money and securities) and computer fraud or an aggregate
amount of at least $2,000,000.
Financial Statements. The financial statements attached hereto are
accurate and complete, accurately reflect the financial condition of
Limited Guarantor, and do not omit any material fact as of the
date(s) thereof.
Documentation. Seller has performed the documentation procedures
required by its operational guidelines with respect to endorsements
and assignments, including the recordation of assignments, or has
verified that such documentation procedures have been performed by a
prior holder of such Mortgage Loan.
Compliance. Seller has observed or performed in all material
respects all of its covenants and other agreements, and satisfied
every condition, contained in the Agreement and the other Program
Agreements to be observed, performed and satisfied by it. [If a
covenant or other agreement or condition has not been complied with,
Seller shall describe such lack of compliance and provide the date
of any related waiver thereof.]
D-1
Regulatory Action. Seller is not currently under investigation or,
to best of Seller's knowledge, no investigation by any federal,
state or local government agency is threatened. Seller has not been
the subject of any government investigation which has resulted in
the voluntary or involuntary suspension of a license, a cease and
desist order, or such other action as could adversely impact
Seller's business. [If so, Seller shall describe the situation in
reasonable detail and describe the action that Seller has taken or
proposes to take in connection therewith.]
No Default. No Default or Event of Default has occurred or is
continuing. [If any Default or Event of Default has occurred and is
continuing, Seller shall describe the same in reasonable detail and
describe the action Seller has taken or proposes to take with
respect thereto, and if such Default or Event of Default has been
expressly waived by Buyer in writing, Seller shall describe the
Default or Event of Default and provide the date of the related
waiver.]
D-2
IN WITNESS WHEREOF, I have set my hand this _____ day of ________, ________.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[Acknowledged and Agreed,]
▇▇▇▇▇▇▇ Realty Trust, Inc., as Limited Guarantor
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
D-3
EXHIBIT E
FORM OF CUSTODIAL DELIVERY LETTER
E-1
EXHIBIT F
FORM OF OPINION OF SELLER'S AND GUARANTOR'S COUNSEL
_________, ____
Column Financial Inc.
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel to 111 Debt Acquisition LLC ("Seller"), 111 Debt
Acquisition Mezz LLC ("Mezzanine Loan Subsidiary") and ▇▇▇▇▇▇▇ Realty Trust,
Inc. ("Limited Guarantor") in connection with the sale and repurchase by Seller
of certain assets (the "Eligible Assets") purchased from time to time (each such
date, a "Purchase Date") by Column Financial Inc. ("Buyer") pursuant to a Master
Repurchase Agreement, dated as of March 30, 2006, among Seller, Mezzanine Loan
Subsidiary, Limited Guarantor and Buyer (the "Master Repurchase Agreement") and
Limited Guarantor's guarantee of Seller's obligations under the Master
Repurchase Agreement pursuant to the Limited Guaranty dated as of March 30, 2006
(the "Limited Guaranty"). Capitalized terms used but not defined herein shall
have the meanings set forth in the Master Repurchase Agreement.
We have acted as counsel to Seller, Mezzanine Loan Subsidiary and Limited
Guarantor in connection with the preparation, execution and delivery of, and the
initial purchase of Eligible Assets made under, the Master Repurchase Agreement
and the Limited Guaranty.
In connection with rendering this opinion, we have examined such documents as we
have deemed necessary or advisable, including the following documents:
a. The Program Agreements;
b. The organizational documents of Seller, the Mezzanine Loan Subsidiary and the
Limited Guarantor;
c. The certified Consents of the Officer of Seller, the Mezzanine Loan
Subsidiary and the Limited Guarantor relating to the transactions provided for
in the Program Agreements;
d. A copy of a UCC-1 financing statement describing the Repurchase Assets naming
Seller as debtor and Buyer as secured party, which will be filed under the
Uniform Commercial Code as in effect in the State of Delaware with the office of
the Secretary of the State of Delaware (the "Filing Office") on or about March
30, 2006 , and a copy of a UCC-1 financing statement describing the Mezzanine
Loans naming the Mezzanine Loan Subsidiary as debtor and Buyer as secured party,
which will be filed under the Uniform Commercial Code as in effect in the State
of Delaware with the office of the Secretary of the State of Delaware (the
"Filing Office") on or about March 30, 2006 (the "Financing Statements");
F-1
e. The reports attached hereto as Exhibit A (the "Search Reports"), which set
forth the results of an examination conducted by [Federal Research Corporation]
of all currently indexed UCC-1 financing statements naming Seller or Mezzanine
Loan Subsidiary as debtor that are on file in the Filing Office;
f. Good standing certificates, as of a recent date, for Seller, Mezzanine Loan
Subsidiary and Limited Guarantor from each of the States listed on Schedule 1
attached hereto; and
g. The certificates, letters and opinions required to be furnished by Seller,
Mezzanine Loan Subsidiary, Limited Guarantor and others in connection with the
execution of the Program Agreements, and the additional certificates, letter and
documents delivered by or on behalf of such parties concurrently herewith.
For purposes of the opinions expressed below, we have assumed the authenticity
of all documents submitted to us as originals, the genuineness of all
signatures, the legal capacity of natural persons and the conformity to the
originals of all documents.
Based solely upon the foregoing, we are of the opinion that:
1. Seller is a limited liability company, duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has the corporate
power and authority to own its properties and transact the business in which it
is engaged. Seller is duly qualified as a foreign [[ ]] to transact
business in, and is in good standing under, the laws of each state in which a
mortgaged property is located or is otherwise exempt under applicable law from
such qualification. The principal place of business of Seller is located at
___________.
2. Mezzanine Loan Subsidiary is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has the corporate power and authority to own its properties and transact the
business in which it is engaged. Mezzanine Loan Subsidiary is duly qualified as
a foreign [[ ]] to transact business in, and is in good standing under,
the laws of each state in which a mortgaged property is located or is otherwise
exempt under applicable law from such qualification. The principal place of
business of Mezzanine Loan Subsidiary is located at ___________.
3. Limited Guarantor is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Maryland, and has the corporate
power and authority to own its properties and transact the business in which it
is engaged. Limited Guarantor is duly qualified as a foreign corporation to
transact business in, and is in good standing under, the laws of each state in
which a mortgaged property is located or is otherwise exempt under applicable
law from such qualification. The principal place of business of Limited
Guarantor is located at _______.
4. Each of the Seller and the Mezzanine Loan Subsidiary has the power to engage
in the transactions contemplated by the Program Agreements, and has all
requisite power, authority and legal right to execute and deliver the Program
Agreements, to transfer and deliver the Repurchase Assets and to perform and
observe the terms and conditions of the Program Agreements. Limited Guarantor
has the power, authority and legal right to issue and deliver the Limited
Guaranty and to perform and observe the terms and conditions thereof.
F-2
5. The Program Agreements have been duly and validly authorized, executed and
delivered by each of Seller, Mezzanine Loan Subsidiary and Limited Guarantor, as
applicable, and are valid, legal and binding agreements, enforceable against
Seller, Mezzanine Loan Subsidiary and Limited Guarantor in accordance with their
respective terms, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally, none of which will materially
interfere with the realization of the benefits provided thereunder or with
Buyer's ownership of the Purchased Assets.
6. No consent, approval, authorization or order of, or notice, filing or
registration with, any court or governmental agency or body is required for the
execution, delivery and performance by any of Seller, Mezzanine Loan Subsidiary
or Limited Guarantor of, or compliance by such entity with, the Program
Agreements, or the transfer of the Repurchase Assets or the consummation of the
transactions contemplated by the Program Agreements.
7. Neither the transfer or delivery of the Purchased Assets, nor the
consummation of any other of the transactions contemplated in the Program
Agreements, nor the fulfillment of the terms of the Program Agreements will
result in a breach of or constitutes or will constitute a default under (a) the
charter or by-laws of any of Seller, Mezzanine Loan Subsidiary or Limited
Guarantor, or the terms of any material indenture or other agreement or
instrument to which any of Seller, Mezzanine Loan Subsidiary or Limited
Guarantor is a party or by which it is bound or to which it is subject, (b) any
contractual or legal restriction contained in any indenture, mortgage, deed of
trust, agreement, instrument or other similar document to which Seller or
Mezzanine Loan Subsidiary is a party or by which it is bound or to which it is
subject, or (c) any statute or order, rule, regulation, writ, injunction or
decree of any court, governmental authority or regulatory body to which any of
Seller, Mezzanine Loan Subsidiary or Limited Guarantor or any of its properties
is subject or by which it is bound.
8. There are no actions, suits, proceedings or investigations pending or, to the
best of our knowledge, threatened against any of Seller, Mezzanine Loan
Subsidiary or Limited Guarantor that, in our judgment, either in any one
instance or in the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of any of
Seller, Mezzanine Loan Subsidiary or Limited Guarantor or in any material
impairment of the right or ability of any of Seller, Mezzanine Loan Subsidiary
or Limited Guarantor to carry on its business substantially as now conducted or
in any material liability on the part of any of Seller, Mezzanine Loan
Subsidiary or Limited Guarantor that would draw into question the validity of
the Program Agreements, or of any action taken or to be taken in connection with
the transactions contemplated thereby, or that would be likely to impair
materially the ability of any of Seller, Mezzanine Loan Subsidiary or Limited
Guarantor to perform under the terms of, the Program Agreements.
9. The conveyance of each Purchased Asset as and in the manner contemplated by
the Program Agreements is sufficient fully to transfer to Buyer all right, title
and interest of either of Seller or Limited Guarantor thereto as owner,
noteholder and mortgagee, or in the alternative, a security interest therein.
F-3
10. The Repurchase Agreement is effective to create, in favor of the Buyer, a
valid "security interest" as defined in Section 1-201(37) of the Uniform
Commercial Code in all of (a) the right, title and interest of the Seller in, to
and under the Repurchase Assets, and (b) the right, title and interest of the
Mezzanine Loan Subsidiary in, to and under the Mezzanine Loans except that (i)
such security interests will continue in Repurchase Assets after its sale,
exchange or other disposition only to the extent provided in Section 9-315 of
the Uniform Commercial Code, (ii) the security interests in Repurchase Assets in
which the Seller acquires rights or the security interests in Mezzanine Loans in
which the Mezzanine Loan Subsidiary acquires rights after the commencement of a
case under the Bankruptcy Code in respect of the Seller or the Mezzanine Loan
Subsidiary, as applicable, may be limited by Section 552 of the Bankruptcy Code.
11. When the Mortgage Notes are delivered to the Custodian, endorsed in blank by
a duly authorized officer of Seller or the Mezzanine Loan Subsidiary, as
applicable, the security interest referred to in Section 9 above in the Mortgage
Notes will constitute a fully perfected first-priority security interest in all
right, title and interest of Seller or Mezzanine Loan Subsidiary, as applicable,
therein.
11. (a) Upon the filing of Financing Statements with the Filing Office, the
security interests referred to in Section 9 above will constitute a fully
perfected security interest under the Uniform Commercial Code in (a) all
right, title and interest of Seller in, to and under such Repurchase
Assets, and (b) all right, title and interest of Mezzanine Loan Subsidiary
in, to and under the Mezzanine Loans, to the extent that a security
interest therein can be perfected by filing under the Uniform Commercial
Code.
(b) The UCC Search Report sets forth the proper filing offices and the
proper debtors necessary to identify those Persons who have on file in the
jurisdictions listed on Schedule 1 financing statements covering the
Repurchase Assets as of the dates and times specified on Schedule 2. The
UCC Search Report identifies no Person who has filed in any Filing Office
a financing statement describing the Repurchase Assets prior to the
effective dates of the UCC Search Report.
12. Seller is not an "investment company", or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
13. The provisions of the Control Account Agreement are effective to cause the
security interest of the Buyer in the Securities Account to be a fully perfected
first-priority security interest therein.
F-4
Very truly yours,
-----------------------------
F-5
EXHIBIT G
Certificate of an Officer of the Seller [or Limited Guarantor]
The undersigned, ____________ of [SELLER] [Limited Guarantor],
a [STATE] [corporation] (the "[Seller] [Limited Guarantor]"), hereby certifies
as follows:
1. Attached hereto as Exhibit A is a copy of the Certificate of
Incorporation of the [Seller] [Limited Guarantor], as certified by the Secretary
of State of the State of [STATE].
2. Neither any amendment to the Certificate of Incorporation of the
[Seller] [Limited Guarantor] nor any other charter document with respect to the
[Seller] [Limited Guarantor] has been filed, recorded or executed since _______
__, 200__, and no authorization for the filing, recording or execution of any
such amendment or other charter document is outstanding.
3. Attached hereto as Exhibit B is a true, correct and complete copy
of the By-laws of the [Seller] [Limited Guarantor] as in effect as of the date
hereof and at all times since ________, 200__.
4. Attached hereto as Exhibit C is a true, correct and complete copy
of resolutions adopted by the Board of Directors of the [Seller] [Limited
Guarantor] by unanimous written consent on _________ __, 200_ (the
"Resolutions"). The Resolutions have not been further amended, modified or
rescinded and are in full force and effect in the form adopted, and they are the
only resolutions adopted by the Board of Directors of the [Seller] [Limited
Guarantor] or by any committee of or designated by such Board of Directors
relating to the execution and delivery of, and performance of the transactions
contemplated by the Master Repurchase Agreement dated as of [DATE] __, 2001 (the
"Repurchase Agreement"), between the Seller, [the Limited Guarantor] and Column
Financial Inc. (the "Buyer") and the Custodial Agreement dated as of [DATE] __,
2001, among the Seller, the Buyer and LaSalle Bank, National Association, as
custodian (the "Custodian").
5. The Repurchase Agreement and the [Custodial Agreement]
[Guarantee] are substantially in the form approved by the Resolutions or
pursuant to authority duly granted by the Resolutions.
6. The undersigned, as a officers of the [Seller] [Limited
Guarantor] or as attorney-in-fact, are authorized to and have signed manually
the Repurchase Agreement, the [Custodial Agreement] [Guarantee] or any other
document delivered in connection with the transactions contemplated thereby,
were duly elected or appointed, were qualified and acting as such officer or
attorney-in-fact at the respective times of the signing and delivery thereof,
and were duly authorized to sign such document on behalf of the [Seller]
[Limited Guarantor], and the signature of each such person appearing on any such
document is the genuine signature of each such person.
Name Title Signature
---- ----- ---------
G-1
IN WITNESS WHEREOF, the undersigned has hereunto executed this Certificate
as of the _____ day of __________________, 200_.
_________________________________________[Seller] [Limited Guarantor], as
[Seller] [Limited Guarantor]
By:
------------------------------
Name:
Title:
G-2
Exhibit C to Officer's Certificate of the Seller or Limited Guarantor
CORPORATE RESOLUTIONS OF SELLER OR GUARANTOR
Action of the Board of Directors
Without a Meeting Pursuant to
Section ______ of ________
The undersigned, being the directors of 111 Debt Acquisition LLC a limited
liability company (the "Seller"), do hereby consent to the taking of the
following action without a meeting and do hereby adopt the following resolutions
by written consent pursuant to Section ____________ of ______________ of the
State of __________:
WHEREAS, it is in the best interests of the Seller to transfer from
time to time to Buyer Mortgage Loans against the transfer of funds by Buyer,
with a simultaneous agreement by Buyer to transfer to Seller such Mortgage Loans
at a date certain or on demand, against the transfer of funds by Seller pursuant
to the terms of the Repurchase Agreement (as defined below).
NOW, THEREFORE, be it
RESOLVED, that the execution, delivery and performance by the Seller
of the Master Repurchase Agreement (the "Repurchase Agreement") to be entered
into by the Seller, 111 Debt Acquisition Mezz LLC, ▇▇▇▇▇▇▇ Realty Trust Inc, and
Column Financial Inc. as Buyer, substantially in the form of the draft dated
March 30, 2006, attached hereto as Exhibit A, are hereby authorized and approved
and that the [President] or any [Vice President] (collectively, the "Authorized
Officers") of the Seller be and each of them hereby is authorized and directed
to execute and deliver the Repurchase Agreement to the Buyer with such changes
as the officer executing the same shall approve, his execution and delivery
thereof to be conclusive evidence of such approval;
RESOLVED, that the execution, delivery and performance by the Seller
of the Custodial Agreement (the "Custodial Agreement") to be entered into by the
Seller, the Buyer and LaSalle Bank, National Association, as custodian (the
"Custodian") substantially in the form of the draft dated _________ __, 200_,
attached hereto as Exhibit B, are hereby authorized and approved and that the
Authorized Officers of the Seller be and each of them hereby is authorized and
directed to execute and deliver the Custodial Agreement to the Buyer and
Custodian with such changes as the officer executing the same shall approve, his
execution and delivery thereof to be conclusive evidence of such approval;
G-3
RESOLVED, that the Authorized Officers hereby are, and each hereby
is, authorized to execute and deliver all such aforementioned agreements on
behalf of the Seller and to do or cause to be done, in the name and on behalf of
the Seller, any and all such acts and things, and to execute, deliver and file
in the name and on behalf of the Seller, any and all such agreements,
applications, certificates, instructions, receipts and other documents and
instruments, as such Authorized Officer may deem necessary, advisable or
appropriate in order to carry out the purposes of the foregoing resolutions.
RESOLVED, that the proper officers, agents and counsel of the Seller
are, and each of such officers, agents and counsel is, hereby authorized for and
in the name and on behalf of the Seller to take all such further actions and to
execute and deliver all such other agreements, instruments and documents, and to
make all governmental filings, in the name and on behalf of the Seller and such
officers are authorized to pay such fees, taxes and expenses, as advisable in
order to fully carry out the intent and accomplish the purposes of the
resolutions heretofore adopted hereby.
Dated as of:_________________ ___, 200_
G-4
EXHIBIT H
FORM OF SERVICER NOTICE
[Date]
[________________], as Servicer
[ADDRESS]
Attention: ___________
Re: Master Repurchase Agreement, dated as of March 30, 2006 (the
"Repurchase Agreement"), by and between 111 Debt Acquisition
LLC (the "Seller"), 111 Debt Acquisition Mezz LLC (the
"Mezzanine Loan Subsidiary") and Column Financial Inc. (the
"Buyer").
Ladies and Gentlemen:
[___________________] (the "Servicer") is servicing certain mortgage loans for
Seller pursuant to that certain Servicing Agreement between the Servicer and
Seller. Pursuant to the Repurchase Agreement between Buyer and Seller, the
Servicer is hereby notified that Seller has pledged to Buyer certain mortgage
loans which are serviced by Servicer which are subject to a security interest in
favor of Buyer.
Upon receipt of a Notice of Event of Default from Buyer in which Buyer shall
identify the mortgage loans which are then pledged to Buyer under the Repurchase
Agreement (the "Mortgage Loans"), the Servicer shall segregate all amounts
collected on account of such Mortgage Loans, hold them in trust for the sole and
exclusive benefit of Buyer, and remit such collections in accordance with
Buyer's written instructions. Following such Notice of Event of Default,
Servicer shall follow the instructions of Buyer with respect to the Mortgage
Loans, and shall deliver to Buyer any information with respect to the Mortgage
Loans reasonably requested by Buyer.
Notwithstanding any contrary information which may be delivered to the Servicer
by Seller, the Servicer may conclusively rely on any information or Notice of
Event of Default delivered by Buyer, and Seller shall indemnify and hold the
Servicer harmless for any and all claims asserted against it for any actions
taken in good faith by the Servicer in connection with the delivery of such
information or Notice of Event of Default.
H-1
Please acknowledge receipt of this instruction letter by signing in the
signature block below and forwarding an executed copy to Buyer promptly upon
receipt. Any notices to Buyer should be delivered to the following addresses:
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: Legal Department;
Telephone:; Facsimile:.
Very truly yours,
[____________________]
By:
-----------------------------
Name:
Title:
ACKNOWLEDGED:
[__________________],
as Servicer
By:
------------------------
Title:
Telephone:
Facsimile:
H-2
EXHIBIT I
FORM OF ASSET FILE
(i) With respect to each Purchased Asset constituting a Commercial
Mortgage Loan:
(A) the original Mortgage Note bearing all intervening
endorsements into Seller, and further endorsed by Seller "Pay
to the order of _________ without recourse or, except as
provided in that certain Master Repurchase Agreement, dated as
of March 30, 2006 between 111 Debt Acquisition LLC, 111 Debt
Acquisition Mezz LLC, ▇▇▇▇▇▇▇ Realty Trust, Inc. and Column
Financial, Inc., warranty" and signed in the name of Seller by
an authorized Person, or a lost note affidavit, together with
an indemnity in a form reasonably approved by Buyer with a
copy of the applicable Mortgage Note attached thereto;
(B) the original or copy of any loan agreement, Guarantee or
indemnity executed in connection with the Purchased Asset;
(C) the original or a certified copy of the Mortgage with evidence
of recording thereon, or a copy thereof together with an
officer's certificate of Seller certifying that such copy
represents a true and correct copy of the original and that
such original has been submitted for recordation in the
appropriate governmental recording office of the jurisdiction
where the Mortgaged Property is located;
(D) the originals or certified copies of all assumption,
modification, consolidation or extension agreements with
evidence of recording thereon, or copies thereof together with
an officer's certificate of Seller certifying that such copies
represent true and correct copies of the originals and that
such originals have each been submitted for recordation in the
appropriate governmental recording office of the jurisdiction
where the Mortgaged Property is located;
(E) the original Assignment of Mortgage in blank for each
Purchased Asset, in form and substance suitable for recording
and otherwise reasonably acceptable to Buyer and signed in the
name of Seller;
(F) the originals of all intervening assignments of mortgage into
Parent with evidence of recording thereon, or copies thereof
together with an officer's certificate of Seller certifying
that such copies represent true and correct copies of the
originals and that such originals have each been submitted for
recordation in the appropriate governmental recording office
of the jurisdiction where the Mortgaged Property is located;
I-1
(G) if applicable, an Assignment of Mortgage relating to such
Purchased Asset assigning the Mortgage for such Purchased
Asset from Parent to Seller;
(H) the original or a copy of the mortgagee title insurance policy
or, if the original mortgagee title insurance policy has not
been issued, the original or a copy of the irrevocable marked
commitment to issue the same;
(I) the original of any cash management agreement, security
agreement, chattel mortgage or equivalent document executed in
connection with the Purchased Asset, if any;
(J) all other documents and instruments evidencing, guaranteeing,
insuring or otherwise constituting or modifying or otherwise
affecting such Purchased Asset, or otherwise executed or
delivered in connection with, or otherwise relating to, such
Purchased Asset, including all documents establishing or
implementing any lockbox pursuant to which Seller is entitled
to receive any payments from cash flow of the underlying real
property;
(K) the original assignment of leases and rents, if any, with
evidence of recording thereon, or a copy thereof together with
an officer's certificate of Seller certifying that such copy
represents a true and correct copy of the original and that
such original has been submitted for recordation in the
appropriate governmental recording office of the jurisdiction
where the Mortgaged Property is located;
(L) the originals of all intervening assignments of assignments of
leases and rents in blank for each Purchased Asset, in form
and substance suitable for recording and otherwise reasonably
acceptable to Buyer and signed in the name of Seller, or
copies thereof together with an officer's certificate of
Seller certifying that such copies represent true and correct
copies of the originals and that such originals have each been
submitted for recordation in the appropriate governmental
recording office of the jurisdiction where the Mortgaged
Property is located;
(M) a copy of any UCC-1 financing statements filed in connection
with such Purchased Asset, certified as true and correct by
Seller, and all necessary UCC-3 continuation statements with
evidence of filing thereon or copies thereof together with an
officer's certificate of Seller certifying that such copies
represent true and correct copies of the originals and that
such originals have each been submitted for filing in the
appropriate governmental recording office of the appropriate
jurisdiction and UCC-3 assignments prepared by Seller in
blank, which UCC assignments shall be in form and substance
acceptable for filing;
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(N) the original environmental indemnity agreement, if any,
executed in connection with the Purchased Assets;
(O) all original letters of credit and originals or certified
copies of any interest rate cap or swap agreements relating to
such Purchased Asset;
(P) the original omnibus assignment in blank, if any, for each
Purchased Asset in form and substance reasonably acceptable to
Buyer and sufficient to transfer to Buyer all of Seller's
rights, title and interest in and to the Purchased Asset,
signed in the name of Seller;
(Q) UCC-1 financing statements prepared by Seller for the purpose
of perfecting Seller's security interest in such Purchased
Asset, which such UCC-1 financing statements shall be
reasonably acceptable to Buyer and in form and substance
acceptable for filing;
(R) UCC-3 assignments prepared by Seller in favor of Buyer for the
purpose of assigning Seller's security interest in such
Purchased Asset to Buyer, which such UCC-3 assignments shall
be reasonably acceptable to Buyer and in form and substance
acceptable for filing;
(S) UCC-1 financing statements prepared by Seller in favor of
Buyer for the purpose of perfecting Buyer's security interest
in such Purchased Asset, which such UCC-1 financing statements
shall be reasonably acceptable to Buyer and in form and
substance acceptable for filing;
(T) in respect of any Purchased Asset which is a Hospitality
Asset, any franchise or reservation system agreement and any
franchise "comfort letter";
(U) in respect of any Purchased Asset as to which the Mortgaged
Property or underlying real property, as applicable, consists
of a leasehold interest, the ground lease, memorandum of
ground lease and ground lessor consent and/or estoppel; and
(V) such other documents, agreements or instruments as shall be
reasonably requested by Buyer.
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(ii) With respect to each Purchased Asset constituting a Mezzanine Loan:
(A) the original Mezzanine Note signed in connection with the
Purchased Asset, bearing all intervening endorsements into
Seller, and further endorsed by Seller "Pay to the order of
__________ without recourse or, except as provided in that
certain Master Repurchase Agreement, dated as of March 30,
2006 between 111 Debt Acquisition LLC, 111 Debt Acquisition
Mezz LLC ,▇▇▇▇▇▇▇ Realty Trust, Inc. and Column Financial,
Inc., warranty" and signed in the name of Seller by an
authorized Person or a lost note affidavit together with an
indemnity in a form reasonably approved by Buyer with a copy
of the applicable Mezzanine Note attached thereto;
(B) the original or a copy of any loan agreement and Guarantee or
indemnity executed in connection with the Purchased Asset;
(C) the original or a copy of any intercreditor or loan
coordination agreement executed in connection with the
Purchased Asset;
(D) the original or a copy security agreement executed in
connection with the Purchased Asset, pursuant to which the
pledged ownership interests have been transferred to, or
otherwise made subject to a first priority security interest
in favor of Seller;
(E) the original or a copy of all other documents and instruments
evidencing, guaranteeing, insuring or otherwise constituting
or modifying or otherwise affecting such Purchased Asset, or
otherwise executed or delivered in connection with, or
otherwise relating to, such Purchased Asset, including all
documents establishing or implementing any lockbox pursuant to
which Seller is entitled to receive any payments from cash
flow of the underlying real property;
(F) a copy of any UCC-1 financing statements filed in connection
with such Purchased Asset, certified as true and correct by
Seller, and all necessary UCC-3 continuation statements with
evidence of filing thereon or copies thereof together with an
officer's certificate of Seller certifying that such copies
represent true and correct copies of the originals and that
such originals have each been submitted for filing in the
appropriate governmental recording office of the appropriate
jurisdiction and UCC-3 assignments prepared by Seller in
blank, which UCC assignments shall be in form and substance
acceptable for filing;
(G) the original certificates representing the pledged equity
interests (if any);
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(H) original stock powers relating to each pledged equity
interest, executed in blank, if an original stock certificate
is provided;
(I) the original environmental indemnity agreement, if any,
executed in connection with the Purchased Assets;
(J) all original letters of credit and originals or certified
copies of any interest rate cap or swap agreements relating to
such Purchased Asset;
(K) the original omnibus assignment in blank, if any, for such
Purchased Asset in form and substance reasonably acceptable to
Buyer and sufficient to transfer to Buyer all of Seller's
rights, title and interest in and to the Purchased Asset,
signed in the name of Seller;
(L) UCC-1 financing statements prepared by Seller for the purpose
of perfecting Seller's security interest in such Purchased
Asset, which such UCC-1 financing statements shall be
reasonably acceptable to Buyer and in form and substance
acceptable for filing;
(M) UCC-3 assignments prepared by Seller in favor of Buyer for the
purpose of assigning Seller's security interest in such
Purchased Asset to Buyer, which such UCC-3 assignments shall
be reasonably acceptable to Buyer and in form and substance
acceptable for filing;
(N) UCC-1 financing statements prepared by Seller in favor of
Buyer for the purpose of perfecting Buyer's security interest
in such Purchased Asset, which such UCC-1 financing statements
shall be reasonably acceptable to Buyer and in form and
substance acceptable for filing; and
(O) such other documents, agreements or instruments as shall be
reasonably requested by Buyer.
(iii) With respect to each Purchased Asset constituting a Junior Interest:
(A) the original certificates representing the Purchased Assets,
if any, together with originals of all intervening
assignments;
(B) the original of any participation agreement, intercreditor
agreement, paying agency, servicing agreement or similar
agreement executed in connection with the Purchased Asset,
together with the original of all intervening assignments;
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(C) the original assignment of Purchased Asset sufficient to
transfer to Buyer all of Seller's rights, title and interest
in and to the Purchased Asset;
(D) all original letters of credit and originals or certified
copies of any interest rate cap or swap agreements relating to
such Purchased Asset;
(E) UCC-1 financing statements prepared by Seller for the purpose
of perfecting Seller's security interest in such Purchased
Asset, which such UCC-1 financing statements shall be
reasonably acceptable to Buyer and in form and substance
acceptable for filing;
(F) UCC-3 assignments prepared by Seller in favor of Buyer for the
purpose of assigning Seller's security interest in such
Purchased Asset to Buyer, which such UCC-3 assignments shall
be reasonably acceptable to Buyer and in form and substance
acceptable for filing;
(G) UCC-1 financing statements prepared by Seller in favor of
Buyer for the purpose of perfecting Buyer's security interest
in such Purchased Asset, which such UCC-1 financing statements
shall be reasonably acceptable to Buyer and in form and
substance acceptable for filing; and
(H) such other documents, agreements or instruments as shall be
reasonably requested by Buyer.
From time to time, Seller shall forward to the Custodian additional original
documents or additional documents evidencing any assumption, modification,
consolidation or extension of a Purchased Asset approved in accordance with the
terms of this Agreement, and upon receipt of any such other documents, the
Custodian shall hold such other documents as Buyer shall request from time to
time. With respect to any documents which have been delivered or are being
delivered to recording offices for recording and have not been returned to
Seller in time to permit their delivery hereunder at the time required, in lieu
of delivering such original documents, Seller shall deliver to Buyer a true copy
thereof with an officer's certificate certifying that such copy is a true,
correct and complete copy of the original, which has been transmitted for
recordation. Seller shall deliver such original documents to the Custodian
promptly when they are received. The Asset Files shall be maintained in
accordance with the Custodial Agreement. Any Asset Files not required to be
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delivered to Buyer or its designee (including the Custodian) are and shall be
held in trust by Seller or its designee for the benefit of Buyer as the owner
thereof. Seller or its designee shall maintain a copy of the Asset File. The
temporary possession of any documents required to be included in the Asset File
by Seller under any provision hereof is at the will of Buyer for the sole
purpose of servicing the related Purchased Asset, and such retention and
possession by Seller or its designee is in a custodial capacity only. The books
and records (including, without limitation, any computer records or tapes) of
Seller and Servicer shall be marked appropriately to reflect clearly the sale of
the related Purchased Asset to Buyer.
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EXHIBIT J
FORM OF TRUST RECEIPT
Column Financial, Inc.
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mason Sleeper
Seller: [ ]
[ ]
[ ]
Re: The Custodial Agreement, dated as of March 30, 2006, among Column
Financial, Inc., as the Buyer and LaSalle Bank, National
Association, as the Custodian.
Ladies and Gentlemen:
The Custodian hereby certifies that the above named person is the
Registered Holder of this Trust Receipt. Pursuant to the Custodial Agreement,
the Registered Holder is entitled to possession of the Custodial Files evidenced
by this Trust Receipt; provided, however, that in the event that the Registered
Holder requests release of a Custodial File from the possession of the
Custodian, the related Purchased Asset shall no longer be subject to or entitled
to the benefits of the Custodial Agreement. Capitalized terms used herein and
not otherwise defined shall have the meanings set forth in the Custodial
Agreement.
In accordance with the provisions of [Section 3] of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies that as
to each Purchased Asset listed in the related Custodial Delivery Letter (other
than any Purchased Asset specifically identified on the exception report
attached hereto), it has reviewed the Custodial File and has determined that
except as set forth in the attached exception report (i) all Purchased Asset
Files set forth in [Section 2 (c)] of the Custodial Agreement as being required
in connection with the specific Purchased Asset; (as list of which is attached
hereto) are in its possession; and (ii) the documents in the Custodial File have
been reviewed by it and appear regular on their face and relate to such
Purchased Asset. The Custodian makes no representations as to: (i) the validity,
legality, enforceability, recordability, genuineness or due authorization of any
of the Purchased Asset Documents with respect to the Purchased Assets identified
on the related Custodial Delivery Letter, or (ii) the collectability,
insurability, effectiveness or suitability of any such Purchased Asset. The
Custodian has not conducted an independent review of the Purchased Asset Files
other than as specifically outlined in the Custodial Agreement.
Any transfer of this Trust Receipt may be registered upon presentation of
this Trust Receipt (a) by the Registered Holder duly endorsed by the Registered
Holder hereof or his duly authorized attorney or (b) by the transferee hereof
together with appropriate evidence of such transfer, at the office of the
Custodian.
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The Custodial Files may be inspected by the Registered Holder hereof at
the office of the Custodian during normal business hours.
This Trust Receipt shall not be valid for any purpose unless duly executed
below by manual signature.
LASALLE BANK, NATIONAL
ASSOCIATION, as Custodian
By:
------------------------------
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EXHIBIT K
FORM OF DISTRIBUTION WORKSHEET
1. Trading Account
2. Security Number
3. Winthrop Loan #
4. Asset Name
5. Asset Type
6. Start Date
7. End Date
8. Days of Interest Applied
9. Pricing Rate
10. All-in Rate
11. Current Advanced Amount
12. Total Interest Due
13. Total Interest Received w/ Loan Payment
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EXHIBIT L
FORM OF SERVICING REPORT
1. Loan Number
2. Position
3. Borrower Name
4. UPB
5. Late Charge Balance
6. Next Payment Date
7. Current DSCR March 31, 2005
8. Identified Problems with Servicer's Inspections
9. Tenant Occupying > 25% has vacated
10. Borrower, or affiliate, subject to Bankruptcy
11. If Yes to Bankruptcy, provide details
12. Maturity Date
13. Asset subject to Litigation
14. Interest Reserves Balance
15. Subject to Significant Covenant Violation
16. Material Defaults
17. Material Damage to Property
18. Borrower is 30 days or more Delinquent on Payment
19. Minimum Escrow Pmts/Balances have not been remitted or maintained
20. Criteria Requiring creation of springing Lockbox has occurred
21. Comments
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EXHIBIT M
Competitors
Cap Lease Funding
Northstar
Arbor Financial
Lexington Property Trust
American Financial Realty Trust
iStar
Gramercy Capital
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EXHIBIT N
[FORM OF MEZZANINE LOAN SUBSIDIARY ACKNOWLEDGMENT]
To: [Mezzanine Loan Subsidiary]
[Address]
Dear Sirs:
In accordance with the requirements of that certain Master
Repurchase Agreement dated as of March 30, 2006 (as amended, supplemented and
otherwise modified from time to time, the "Repurchase Agreement") (defined terms
used herein as therein defined) among Column Financial, Inc. (the "Buyer"), 111
Debt Acquisition Mezz LLC ("Mezzanine Loan Subsidiary"), ▇▇▇▇▇▇▇ Realty Trust,
Inc. ("Guarantor") and 111 Debt Acquisition LLC (the "Seller"), you are hereby
instructed, notwithstanding your and our understanding that the membership
interest described below is not a security under the Uniform Commercial Code, as
a precaution in the event that such interest was nevertheless held to be a
security, to register the pledge of the following interests as follows:
The entire membership interest owned by the undersigned in
[Mezzanine Loan Subsidiary] (the "Issuer") by Seller, including, without
limitation, all of the following property now owned or at any time hereafter
acquired by Seller or in which Seller now has or at any time in the future may
acquire any right, title or interest:
a. the membership interests of the Seller listed on Schedule 1
to the Repurchase Agreement, together with all additional
partnership interests of, or other equity interests in, [Mezzanine
Loan Subsidiary] and options, warrants, and other rights hereafter
acquired by the Seller in respect of such membership interests or
other equity interests or entitling the Seller to acquire any such
membership interests or other equity interests (whether in
connection with any capital increase, recapitalization,
reclassification, or reorganization of [Mezzanine Loan Subsidiary]
or otherwise) (all such partnership interests and other equity
interests, and all such options, warrants and other rights being
hereinafter collectively referred to as the "LLC Interests");
b. all certificates, instruments, or other writings
representing or evidencing the LLC Interests, and all accounts and
general intangibles arising out of, or in connection with, the LLC
Interests;
c. any and all moneys or property due and to become due to the
Seller now or in the future in respect of the LLC Interests, or to
which the Seller may now or in the future be entitled to in their
capacity as a member of the Issuer, whether by way of a dividend,
distribution, return of capital, or otherwise;
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d. all other claims which the Seller now has or may in the
future acquire in its capacity as a shareholder of [Mezzanine Loan
Subsidiary] against the Seller and its property;
e. all rights of the Seller under the Limited Liability
Company Agreement (and all other agreements, if any, to which the
Seller is a party from time to time which relate to their ownership
of the LLC Interests), including, without limitation, all voting and
consent rights of the Seller arising thereunder or otherwise in
connection with the Seller's ownership of the LLC Interests; and
f. to the extent not otherwise included, all Proceeds of any
or all of the foregoing.
You are hereby further authorized and instructed to execute and
deliver to the Buyer a Confirmation Statement and Instruction Agreement,
substantially in the form of Exhibit A to this Agreement and, to the extent
provided more fully therein, to comply with the instructions of the Buyer in
respect of the LLC Interests without further consent of, or notice to, the
undersigned.
Very truly yours,
Seller:
[SELLER]
By:
----------------------------
Name:
Title:
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EXHIBIT A TO
FORM OF MEZZANINE LOAN SUBSIDIARY ACKNOWLEDGMENT
[Form of Confirmation Statement and Instruction Agreement]
[insert date]
To: COLUMN FINANCIAL, INC.
Pursuant to the requirements of that certain Master Repurchase Agreement dated
as of March 30, 2006 (as amended, supplemented and otherwise modified from time
to time, the "Repurchase Agreement") among Column Financial, Inc. (the "Buyer")
and [Seller], (the "Seller") (defined terms used herein as therein defined),
this Confirmation Statement and Instruction Agreement relates to those
membership interests (the "LLC Interests") issued by [Mezzanine Loan
Subsidiary], a Delaware limited liability company (the "Issuer").
The LLC Interests are not (i) "investment company securities" (within the
meaning of Section 8-103 of the Uniform Commercial Code) or (ii) dealt in or
traded on securities exchanges or in securities markets. None of the terms of
any LLC Interests provides that it is a "security" (within the meaning of
Sections 8-102(a)(15) and 8-103 of the Uniform Commercial Code).
Nevertheless, in the event that the LLC Interests should be determined to be
"securities" (within the meaning of Sections 8-102(a)(15) and 8-103 of the
Uniform Commercial Code), for purposes of perfecting the security interest of
the Buyer therein, the Issuer agrees as follows:
On the date hereof, the registered owner of 100% of the Issuer is: the Seller.
The registered pledgee of the LLC Interests is:
COLUMN FINANCIAL, INC.
Taxpayer I.D. Number: [________________]
There are no liens of the Issuer on the LLC Interests or any adverse claims
thereto for which the Issuer has a duty under Section 8-403 of the Uniform
Commercial Code. The Issuer has by book-entry registered the LLC Interests in
the name of the registered pledgee on or before March 30, 2006. No other pledge
is currently registered on the books and records of the Issuer with respect to
the LLC Interests.
The Issuer agrees to: (i) comply with the instructions of the Buyer, without any
further consent from the Pledgor or any other Person, in respect of the LLC
Interests; and (ii) disregard any request made by the Pledgor or any other
Person which contravenes the instructions of the Buyer with respect to the LLC
Interests.
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EXHIBIT O
SECTION 11 CERTIFICATE
FORM OF SECTION 7 CERTIFICATE
Reference is hereby made to the Repurchase Agreement dated as of
____________________ (as amended, restated, supplemented or otherwise modified
from time to time, the "Agreement"), among 111 Debt Acquisition LLC (the
"Seller"), 111 Debt Acquisition Mezz LLC, ▇▇▇▇▇▇▇ Realty Trust, Inc. and Column
Financial Inc. (the "Buyer"). Pursuant to the provisions of Section 7 of the
Agreement, the undersigned hereby certifies that:
1. It is a ___ natural individual person, ____ treated as a
corporation for U.S. federal income tax purposes, ____
disregarded for federal income tax purposes (in which case a
copy of this Section 7 Certificate is attached in respect of
its sole beneficial owner), or ____ treated as a partnership
for U.S. federal income tax purposes (one must be checked).
2. It is the beneficial owner of amounts received pursuant to the
Agreement.
3. It is not a bank, as such term is used in section 881(c)(3)(A)
of the Internal Revenue Code of 1986, as amended (the "Code"),
or the Agreement is not, with respect to the undersigned, a
loan agreement entered into in the ordinary course of its
trade or business, within the meaning of such section.
4. It is not a 10-percent shareholder of the Seller within the
meaning of section 871(h)(3) or 881(c)(3)(B) of the Code.
5. It is not a controlled foreign corporation that is related to
the Seller within the meaning of section 881(c)(3)(C) of the
Code.
6. Amounts paid to it under the Repurchase Documents are not
effectively connected with its conduct of a trade or business
in the United States.
[NAME OF UNDERSIGNED]
By: ________________________
Title:______________________
Date: ______________, ______
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