Article 8 Opt-In. The LLC Certificate of the issuer of the Capital Stock securing the Purchased Asset constitutes a “security” within the meaning of Article 8 of the UCC, and no amendment of the issuer’s operating agreement that amends the opt-in may be effected without the consent of the holder of the Mezzanine Loan. [ ] Re: Bailee Agreement (this “Bailee Agreement”) in connection with the sale of [ ] by KREF LENDING IV LLC (“Seller”) to Xxxxxx Xxxxxxx Bank, N.A., as buyer (together with its permitted successors and assigns, “Buyer”) Ladies and Gentlemen: In consideration of the mutual premises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller, Buyer and [ ] (“Bailee”) hereby agree as follows: 1. Seller shall deliver to Bailee in connection with any Purchased Assets delivered to Bailee hereunder a Purchased Asset File Checklist to which shall be attached a Purchased Asset Schedule identifying the Purchased Assets that are being delivered to Bailee hereunder. 2. On or prior to the date indicated on the Purchased Asset File Checklist (the “Purchase Date”), Seller shall have delivered to Bailee, as bailee for hire, the Purchased Asset File for each of the Purchased Assets listed in the Purchased Asset Schedule attached to such Purchased Asset File Checklist. 3. Bailee shall issue and deliver to Buyer (as defined in Section 5 below) on or prior to the Purchase Date by facsimile or other electronic transmission an initial trust receipt and certification in the form of Attachment 1 attached hereto (the “Trust Receipt”), which Trust Receipt shall state that Bailee has received the documents comprising the Purchased Asset File as set forth in the Purchased Asset File Checklist, in addition to such other documents required to be delivered to Buyer pursuant to the Master Repurchase and Securities Contract Agreement dated as of December 6, 2016, among Seller and Buyer (the “Repurchase Agreement”). 4. On the applicable Purchase Date, in the event that Buyer fails to purchase any New Asset from Seller that is identified in the related Purchased Asset File Checklist, Buyer shall deliver by facsimile or other electronic transmission to Bailee at [ ] to the attention of [ ], an authorization (the “Facsimile Authorization”) to release the Purchased Asset Files with respect to the Purchased Assets identified therein to Seller. Upon receipt of such Facsimile Authorization, Bailee shall release the Purchased Asset Files to Seller in accordance with Seller’s instructions. 5. Following the Purchase Date, Bailee shall forward the Purchased Asset Files to Xxxxx Fargo Bank, N.A. (“Custodian”) by insured overnight courier for receipt by Custodian no later than [1:00 p.m.] on the third (3rd) Business Day following the applicable Purchase Date (the “Delivery Date”). 6. From and after the applicable Purchase Date until the time of receipt of the Facsimile Authorization or the applicable Delivery Date, as applicable, Bailee (a) shall maintain continuous custody and control of the related Purchased Asset Files as bailee for Buyer and (b) is holding the related Purchased Asset Loans as sole and exclusive bailee for Buyer unless and until otherwise instructed in writing by Buyer. 7. Seller agrees to indemnify and hold Bailee and its partners, directors, officers, agents and employees harmless against any and all actual out-of-pocket third party liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorney’s fees, that may be imposed on, incurred by, or asserted against it or them in any way relating to or arising out of this Bailee Agreement or any action taken or not taken by it or them hereunder unless such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements (other than special, indirect, punitive or consequential damages, which shall in no event be paid by Seller) were imposed on, incurred by or asserted against Bailee because of the breach by Bailee of its obligations hereunder, which breach was caused by negligence, lack of good faith or willful misconduct on the part of Bailee or any of its partners, directors, officers, agents or employees. The foregoing indemnification shall survive any resignation or removal of Bailee or the termination or assignment of this Bailee Agreement. 8. In the event that Bailee fails to deliver a Mortgage Note, Participation Certificate or other material portion of a Purchased Asset File that was in its possession to Custodian within three (3) Business Days following the applicable Purchase Date, the same shall constitute a “Bailee Delivery Failure” under this Bailee Agreement. 9. Seller hereby represents, warrants and covenants that Bailee is not an affiliate of or otherwise controlled by Seller. Notwithstanding the foregoing, the parties hereby acknowledge that Bailee hereunder may act as counsel to Seller in connection with a proposed loan. 10. This Bailee Agreement may not be modified, amended or altered, except by written instrument, executed by all of the parties hereto. 11. This Bailee Agreement may not be assigned by Seller or Bailee without the prior written consent of Buyer. 12. For the purpose of facilitating the execution of this Bailee Agreement as herein provided and for other purposes, this Bailee Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute and be one and the same instrument. 13. This Bailee Agreement shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 14. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Repurchase Agreement. Very truly yours, KREF LENDING IV LLC, a Delaware limited liability company, Seller By: Name: Title: ACCEPTED AND AGREED: [ ], Bailee By: Name: Title: ACCEPTED AND AGREED: XXXXXX XXXXXXX BANK, N.A., a national banking association, Buyer By: Name: Title: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Re: Bailee Agreement, dated , 20 (the “Bailee Agreement”) among KREF Lending IV LLC ( “Seller”), Xxxxxx Xxxxxxx Bank, N.A. ( “Buyer”) and ( “Bailee”) Ladies and Gentlemen: In accordance with the provisions of Section 3 of the Bailee Agreement, the undersigned, as Bailee, hereby certifies that as to the Purchased Asset(s) referred to therein, it has reviewed the Purchased Asset File(s) and has determined that (i) all documents listed in Schedule A attached to the Bailee Agreement are in its possession and (ii) such documents have been reviewed by it and appear regular on their face and relate to the Purchased Asset(s). Bailee hereby confirms that it is holding the Purchase Loan File as agent and bailee for the exclusive use and benefit of Buyer pursuant to the terms of the Bailee Agreement. All capitalized terms used herein and not defined herein shall have the meanings ascribed to them in the Bailee Agreement. , Bailee By: Name: Title: Christen (Xxxxx) Xxx /s/ Xxxxxxxx Xxx Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx (1) Seller to provide. Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone (###) ###-#### Fax: (###) ###-#### Email: ################@xxxxxxxxxxxxx.xxx RE: Master Repurchase Agreement (as it may be amended, supplemented or otherwise modified, the “Repurchase Agreement”) dated as of December 6, 2016, between Xxxxxx Xxxxxxx Bank, N.A. (“Buyer”) and KREF Lending IV LLC (“Seller”) and Guaranty (the “Guaranty”) dated as of December 6, 2016, between KKR Real Estate Finance Holdings L.P. (“Guarantor”) and Buyer pertaining to the Repurchase Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Repurchase Agreement. THE UNDERSIGNED (SOLELY IN HIS OR HER CAPACITY AS AN OFFICER OF GUARANTOR, AND NOT IN HIS OR HER INDIVIDUAL CAPACITY) HEREBY CERTIFIES AS FOLLOWS: Guarantor is providing this Certificate pursuant to Section 4.7(b) of the Guaranty. [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(a) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](2) [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(b)(i) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](3) (2) Include for quarterly certificate. (3) Include for annual certificate. [Attached hereto as Exhibit B are the audited financial statements of the REIT satisfying the requirements of Section 4.1(b)(ii) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](4) Guarantor is in compliance with the financial covenants contained in Section 4.7(a) of the Guaranty. Pursuant to Section 4.7(b) of the Guaranty, Guarantor has calculated the financial covenants contained in Section 4.7(a) (as set forth on Exhibit [B](5)[C](6)) and as at the end of the prior quarterly fiscal period, the calculations are as follows: Ratio of Interest Income to Interest Expense: [ ] to [ ] Tangible Net Worth: [ ] Cash Liquidity: [ ] Ratio of Total Indebtedness to Tangible Net Worth: [ ] to [ ] As of the date hereof, neither Guarantor nor any Subsidiary of Guarantor (has entered into or amended a repurchase agreement, warehouse facility, credit facility or other similar arrangement with any Person which by its terms provides more favorable terms with respect to any financial covenants contained in the Guaranty or the Repurchase Agreement, including without limitation covenants covering the same or similar subject matter set forth in this Certificate. (4) Include for annual certificate. (5) Include for quarterly certificate. (6) Include for annual certificate. cc: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Attention: Xxxxxxxx X. Xxxxxxxx Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (###) ###-#### Fax: (###) ###-#### E-Mail: ########@xxxx.xxx (7) Include for annual certificate. (8) Include for quarterly certificate. (9) Include for annual certificate. BUYER Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: ##############@xxxxxxxxxxxxx.xxx with a copy to: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxx Bank, N.A. One Utah Center, 000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx Xxxx, Xxxx 00000 and to: Xxxxxx Xxxxxxx Bank, N.A. 0 Xxx Xxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxxx Xxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #######@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxx X. Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxx.xxx SELLER KREF Lending IV LLC 0 Xxxx 00xx Xxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxx Telephone: (###) ###-#### Email: ###############@xxx.xxx with a copy to: Xxxxxx Xxxx & Xxxxxxxx LLP 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Xxxx Telephone: (###) ###-#### Email: #####@xxxxxxxxxx.xxx

Appears in 2 contracts

Samples: Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.), Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.)

Article 8 Opt-In. The ~~LLC Certificate of the issuer of the Capital Stock securing the Purchased Asset constitutes a~~ Partnership hereby irrevocably elects that all Series D Preferred Units shall be “~~security~~securities” ~~within the meaning of~~ governed by Article 8 of the ~~UCC~~Uniform Commercial Code as in effect in the State of Utah and each other applicable jurisdiction. The ownership of Series D Preferred Units shall be evidenced by certificates. Each certificate evidencing Series D Preferred Units shall bear the following legend: “This certificate evidences an interest in Extra Space Storage LP and shall be a security governed by Article 8 of the Uniform Commercial Code as in effect in the State of Utah and, to the extent permitted by applicable law, each other applicable jurisdiction.” This provision shall not be amended, and no any purported amendment to this provision shall not take effect, until all outstanding certificates evidencing Series D Preferred Units have been surrendered for cancellation. To: Extra Space Storage Inc. c/o The undersigned Limited Partner or Assignee hereby irrevocably tenders for Redemption (a) undertakes (i) to surrender such OP Units and any certificate therefor at the closing of the ~~issuer’s operating agreement that amends the opt-in may be effected without the consent of the holder of the Mezzanine Loan. [ ] Re: Bailee Agreement~~ Redemption and (~~this “Bailee Agreement”) in connection with the sale of [ ] by KREF LENDING IV LLC (“Seller”~~ii) to ~~Xxxxxx Xxxxxxx Bank~~furnish to the General Partner, N.A., as buyer (together with its permitted successors and assigns, “Buyer”) Ladies and Gentlemen: In consideration of the mutual premises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller, Buyer and [ ] (“Bailee”) hereby agree as follows: 1. Seller shall deliver to Bailee in connection with any Purchased Assets delivered to Bailee hereunder a Purchased Asset File Checklist to which shall be attached a Purchased Asset Schedule identifying the Purchased Assets that are being delivered to Bailee hereunder. 2. On or prior to the ~~date indicated on the Purchased Asset File Checklist (the “Purchase~~ Specified Redemption Date~~”), Seller shall have delivered to Bailee, as bailee for hire~~, the ~~Purchased Asset File for each~~ documentation, instruments and information required under Section 8.6 of the ~~Purchased Assets listed in~~ Agreement; (b) directs that the ~~Purchased Asset Schedule attached to such Purchased Asset File Checklist. 3. Bailee shall issue and deliver to Buyer (as defined in Section 5 below) on or prior to~~ certified check representing the ~~Purchase Date by facsimile or other electronic transmission an initial trust receipt and certification in the form of Attachment 1 attached hereto (the “Trust Receipt”)~~Cash Amount, which Trust Receipt shall state that Bailee has received the documents comprising the Purchased Asset File as set forth in the Purchased Asset File Checklist, in addition to such other documents required to be delivered to Buyer pursuant to the Master Repurchase and Securities Contract Agreement dated as of December 6, 2016, among Seller and Buyer (the “Repurchase Agreement”). 4. On the applicable Purchase Date, in the event that Buyer fails to purchase any New Asset from Seller that is identified in the related Purchased Asset File Checklist, Buyer shall deliver by facsimile or other electronic transmission to Bailee at [ ] to the attention of [ ], an authorization (the “Facsimile Authorization”) to release the Purchased Asset Files with respect to the Purchased Assets identified therein to Seller. Upon receipt of such Facsimile Authorization, Bailee shall release the Purchased Asset Files to Seller in accordance with Seller’s instructions. 5. Following the Purchase Date, Bailee shall forward the Purchased Asset Files to Xxxxx Fargo Bank, N.A. (“Custodian”) by insured overnight courier for receipt by Custodian no later than [1:00 p.m.] on the third (3rd) Business Day following the applicable Purchase Date (the “Delivery Date”). 6. From and after the applicable Purchase Date until the time of receipt of the Facsimile Authorization or the ~~applicable Delivery Date~~REIT Shares Amount, as applicable, ~~Bailee~~ deliverable upon the closing of such Redemption be delivered to the address specified below; (ac) shall maintain continuous custody and control of the related Purchased Asset Files as bailee for Buyer and (b) is holding the related Purchased Asset Loans as sole and exclusive bailee for Buyer unless and until otherwise instructed in writing by Buyer. 7. Seller agrees to indemnify and hold Bailee and its partners, directors, officers, agents and employees harmless against any and all actual out-of-pocket third party liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorney’s fees, that may be imposed on, incurred by, or asserted against it or them in any way relating to or arising out of this Bailee Agreement or any action taken or not taken by it or them hereunder unless such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements (other than special, indirect, punitive or consequential damages, which shall in no event be paid by Seller) were imposed on, incurred by or asserted against Bailee because of the breach by Bailee of its obligations hereunder, which breach was caused by negligence, lack of good faith or willful misconduct on the part of Bailee or any of its partners, directors, officers, agents or employees. The foregoing indemnification shall survive any resignation or removal of Bailee or the termination or assignment of this Bailee Agreement. 8. In the event that Bailee fails to deliver a Mortgage Note, Participation Certificate or other material portion of a Purchased Asset File that was in its possession to Custodian within three (3) Business Days following the applicable Purchase Date, the same shall constitute a “Bailee Delivery Failure” under this Bailee Agreement. 9. Seller hereby represents, ~~warrants~~ warrants, certifies and covenants that Bailee is not an affiliate of or otherwise controlled by Seller. Notwithstanding the foregoing, the parties hereby acknowledge that Bailee hereunder may act as counsel to Seller in connection with a proposed loan.agrees that: 10. This Bailee Agreement may not be modified, amended or altered, except by written instrument, executed by all of the parties hereto. 11. This Bailee Agreement may not be assigned by Seller or Bailee without the prior written consent of Buyer. 12. For the purpose of facilitating the execution of this Bailee Agreement as herein provided and for other purposes, this Bailee Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute and be one and the same instrument. 13. This Bailee Agreement shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 14. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Repurchase Agreement. Very truly yours, KREF LENDING IV LLC, a Delaware limited liability company, Seller By: Name: Title: ACCEPTED AND AGREED: [ ], Bailee By: Name: Title: ACCEPTED AND AGREED: XXXXXX XXXXXXX BANK, N.A., a national banking association, Buyer By: Name: Title: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Re: Bailee Agreement, dated , 20 (the “Bailee Agreement”) among KREF Lending IV LLC ( “Seller”), Xxxxxx Xxxxxxx Bank, N.A. ( “Buyer”) and ( “Bailee”) Ladies and Gentlemen: In accordance with the provisions of Section 3 of the Bailee Agreement, the undersigned, as Bailee, hereby certifies that as to the Purchased Asset(s) referred to therein, it has reviewed the Purchased Asset File(s) and has determined that (i) the undersigned Limited Partner or Assignee is a Qualifying Party, (ii) the undersigned Limited Partner or Assignee has, and at the closing of the Redemption will have, good, marketable and unencumbered title to such OP Units, free and clear of the rights or interests of any Person, (iii) the undersigned Limited Partner or Assignee has, and at the closing of the Redemption will have, the full right, power and authority to tender and surrender such OP Units as provided herein, and (iv) the undersigned Limited Partner or Assignee has obtained the consent or approval of all ~~documents listed in Schedule A attached~~ Persons, if any, having the right to consent to or approve such tender and surrender; and (d) acknowledges that he will continue to own such OP Units until and unless either (i) such OP Units are acquired by the ~~Bailee~~ Parent pursuant to Section 8.6.B of the Agreement ~~are in its possession and~~ or (ii) such documents have been reviewed by it and appear regular on their face and relate to the Purchased Asset(s). Bailee hereby confirms that it is holding the Purchase Loan File as agent and bailee for the exclusive use and benefit of Buyer pursuant to the terms of the Bailee AgreementRedemption transaction closes. All capitalized terms used herein and not otherwise defined ~~herein~~ shall have the ~~meanings~~ same meaning ascribed to them respectively in the ~~Bailee~~ Agreement. ~~, Bailee By~~Dated: Name of Limited Partner or Assignee: (Signature of Limited Partner or Assignee) (city) (State) (Zip Code) Signature Guaranteed by: Issue Check Payable/REIT Shares to: Name: ~~Title~~Please insert social security or identifying number: ~~Christen (Xxxxx) Xxx /s/ Xxxxxxxx Xxx Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx (1) Seller to provide. Xxxxxx Xxxxxxx Bank~~To: Extra Space Storage Inc. c/o The undersigned Limited Partner or Assignee hereby irrevocably tenders for Series A Preferred Redemption Series A Preferred Units in Extra Space Storage LP in accordance with the terms of the Fourth Amended and Restated Agreement of Limited Partnership of Extra Space Storage LP, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone (###) ###-#### Fax: (###) ###-#### Email: ################@xxxxxxxxxxxxx.xxx RE: Master Repurchase Agreement (as it may be amended, supplemented or otherwise modified, the “Repurchase Agreement”) dated as of December 62, ~~2016, between Xxxxxx Xxxxxxx Bank, N.A. (“Buyer”) and KREF Lending IV LLC (“Seller”) and Guaranty~~ 2013 (the “~~Guaranty~~Agreement”), and the Series A Preferred Redemption rights referred to therein. The undersigned Limited Partner or Assignee: (a) undertakes (i) to surrender such Series A Preferred Units and any certificate therefor at the closing of the Series A Preferred Redemption and (ii) to furnish to the General Partner, prior to the Series A Preferred Redemption Date, the documentation, instruments and information required under Section 16.4 of the Agreement; (b) directs that the certified check representing the Series A Preferred Redemption Amount, or the Series A Preferred REIT Shares Amount, as applicable, deliverable upon the closing of such Redemption be delivered to the address specified below; (c) represents, warrants, certifies and agrees that: (i) the undersigned Limited Partner or Assignee is a Qualifying Party, (ii) the undersigned Limited Partner or Assignee has, and at the closing of the Series A Preferred Redemption will have, good, marketable and unencumbered title to such Series A Preferred Units, free and clear of the rights or interests of any Person, (iii) the undersigned Limited Partner or Assignee has, and at the closing of the Series A Preferred Redemption will have, the full right, power and authority to tender and surrender such Series A Preferred Units as provided herein, and (iv) the undersigned Limited Partner or Assignee has obtained the consent or approval of all Persons, if any, having the right to consent to or approve such tender and surrender; and (d) acknowledges that he will continue to own such Series A Preferred Units until and unless either (i) such Series A Preferred Units are acquired by the Parent pursuant to Section 16.4.B of the Agreement or (ii) such Series A Preferred Redemption transaction closes. All capitalized terms used herein and not otherwise defined shall have the same meaning ascribed to them respectively in the Agreement. Dated: Name of Limited Partner or Assignee: (Signature of Limited Partner or Assignee) (city) (State) (Zip Code) Signature Guaranteed by: Issue Check Payable/REIT Shares to: Name: Please insert social security or identifying number: To: Extra Space Storage Inc. c/o The undersigned Limited Partner or Assignee hereby irrevocably tenders for Series B Preferred Redemption Series B Preferred Units in Extra Space Storage LP in accordance with the terms of the Fourth Amended and Restated Agreement of Limited Partnership of Extra Space Storage LP, dated as of December 62, ~~2016~~2013 (the “Agreement”), ~~between KKR Real Estate Finance Holdings L.P.~~ and the Series B Preferred Redemption rights referred to therein. The undersigned Limited Partner or Assignee: (~~“Guarantor”~~a) undertakes (i) to surrender such Series B Preferred Units and ~~Buyer pertaining~~ any certificate therefor at the closing of the Series B Preferred Redemption and (ii) to furnish to the ~~Repurchase~~ General Partner, prior to the Series B Preferred Redemption Date, the documentation, instruments and information required under Section 17.4 of the Agreement; (b) directs that the certified check representing the Series B Preferred Redemption Amount, or the Series B Preferred REIT Shares Amount, as applicable, deliverable upon the closing of such Redemption be delivered to the address specified below; (c) represents, warrants, certifies and agrees that: (i) the undersigned Limited Partner or Assignee is a Qualifying Party, (ii) the undersigned Limited Partner or Assignee has, and at the closing of the Series B Preferred Redemption will have, good, marketable and unencumbered title to such Series B Preferred Units, free and clear of the rights or interests of any Person, (iii) the undersigned Limited Partner or Assignee has, and at the closing of the Series B Preferred Redemption will have, the full right, power and authority to tender and surrender such Series B Preferred Units as provided herein, and (iv) the undersigned Limited Partner or Assignee has obtained the consent or approval of all Persons, if any, having the right to consent to or approve such tender and surrender; and (d) acknowledges that he will continue to own such Series B Preferred Units until and unless either (i) such Series B Preferred Units are acquired by the Parent pursuant to Section 17.4.B of the Agreement or (ii) such Series B Preferred Redemption transaction closes. ~~Capitalized~~ All capitalized terms used ~~but~~ herein and not otherwise defined ~~herein~~ shall have the ~~meanings specified~~ same meaning ascribed to them respectively in the ~~Repurchase~~ Agreement. ~~THE UNDERSIGNED~~ Dated: Name of Limited Partner or Assignee: (~~SOLELY IN HIS OR HER CAPACITY AS AN OFFICER OF GUARANTOR~~Signature of Limited Partner or Assignee) (city) (State) (Zip Code) Signature Guaranteed by: Issue Check Payable/REIT Shares to: Name: Please insert social security or identifying number: To: Extra Space Storage Inc. c/o The undersigned Limited Partner or Assignee hereby irrevocably tenders for Series C Preferred Conversion (a) undertakes (i) to surrender such Series C Preferred Units and any certificate therefor at the closing of the Series C Preferred Conversion and (ii) to furnish to the General Partner, ~~AND NOT IN HIS OR HER INDIVIDUAL CAPACITY~~prior to the Series C Preferred Conversion Date, the documentation, instruments and information required under Section 18.5 of the Agreement; (b) ~~HEREBY CERTIFIES AS FOLLOWS~~directs that the OP Units deliverable upon the closing of such Conversion be delivered to the address specified below; (c) represents, warrants, certifies and agrees that: (i) the undersigned Limited Partner or Assignee is a Qualifying Party, (ii) the undersigned Limited Partner or Assignee has, and at the closing of the Series C Preferred Conversion will have, good, marketable and unencumbered title to such Series C Preferred Units, free and clear of the rights or interests of any other Person, (iii) the undersigned Limited Partner or Assignee has, and at the closing of the Series C Preferred Conversion will have, the full right, power and authority to request the conversion of such Series C Preferred Units as provided herein, and (iv) the undersigned Limited Partner or Assignee has obtained the consent or approval of all Persons, if any, having the right to consent to or approve such request for conversion; and (d) acknowledges that he will continue to own such Series C Preferred Units until and unless such Series C Preferred Conversion transaction closes. All capitalized terms used herein and not otherwise defined shall have the same meaning ascribed to them respectively in the Agreement. Dated: ~~Guarantor~~ Name of Limited Partner or Assignee: (Signature of Limited Partner or Assignee) (city) (State) (Zip Code) Signature Guaranteed by: Issue OP Units to: Name: Please insert social security or identifying number: To: Extra Space Storage Inc. c/o The undersigned Limited Partner or Assignee hereby irrevocably tenders for Series C Preferred Redemption Series C Preferred Units in Extra Space Storage LP in accordance with the terms of the Fourth Amended and Restated Agreement of Limited Partnership of Extra Space Storage LP, dated as of December 2, 2013 (the “Agreement”), and the Series C Preferred Redemption rights referred to therein. The undersigned Limited Partner or Assignee: (a) undertakes (i) to surrender such Series C Preferred Units and any certificate therefor at the closing of the Series C Preferred Redemption and (ii) to furnish to the General Partner, prior to the Series C Preferred Redemption Date, the documentation, instruments and information required under Section 18.4 of the Agreement; (b) directs that the certified check representing the Series C Preferred Redemption Amount, or the Series C Preferred REIT Shares Amount, as applicable, deliverable upon the closing of such Redemption be delivered to the address specified below; (c) represents, warrants, certifies and agrees that: (i) the undersigned Limited Partner or Assignee is ~~providing this Certificate~~ a Qualifying Party, (ii) the undersigned Limited Partner or Assignee has, and at the closing of the Series C Preferred Redemption will have, good, marketable and unencumbered title to such Series C Preferred Units, free and clear of the rights or interests of any other Person, (iii) the undersigned Limited Partner or Assignee has, and at the closing of the Series C Preferred Redemption will have, the full right, power and authority to tender and surrender such Series C Preferred Units as provided herein, and (iv) the undersigned Limited Partner or Assignee has obtained the consent or approval of all Persons, if any, having the right to consent to or approve such tender and surrender; and (d) acknowledges that he will continue to own such Series C Preferred Units until and unless either (i) such Series C Preferred Units are acquired by the Parent pursuant to Section ~~4.7(b)~~ 18.4.B of the ~~Guaranty~~Agreement or (ii) such Series C Preferred Redemption transaction closes. ~~[Attached hereto as Exhibit A are~~ All capitalized terms used herein and not otherwise defined shall have the ~~unaudited balance sheet and income statement~~ same meaning ascribed to them respectively in the Agreement. Dated: Name of ~~Guarantor satisfying the requirements~~ Limited Partner or Assignee: (Signature of ~~Section 4.1(a~~Limited Partner or Assignee) ~~of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries~~ (city) (State) (Zip Code) Signature Guaranteed by: Issue Check Payable/REIT Shares to: Name: Please insert social security or identifying number: To: Extra Space Storage Inc. c/o The undersigned Limited Partner or Assignee hereby irrevocably tenders for Series D Preferred Redemption Series D Preferred Units in Extra Space Storage LP in accordance with ~~GAAP~~the terms of the Fourth Amended and Restated Agreement of Limited Partnership of Extra Space Storage LP, ~~consistently applied~~dated as of December 2, 2013 (the “Agreement”), and the Series D Preferred Redemption rights referred to therein. The undersigned Limited Partner or Assignee: (a) undertakes (i) to surrender such Series D Preferred Units and any certificate therefor at the closing of the Series D Preferred Redemption and (ii) to furnish to the General Partner, prior to the Series D Preferred Redemption Date, the documentation, instruments and information required under Section 19.4 of the Agreement; (b) directs that the certified check representing the Series D Preferred Redemption Amount, or the Series D Preferred REIT Shares Amount, as applicable, deliverable upon the closing of such Redemption be delivered to the address specified below; (c) represents, warrants, certifies and agrees that: (i) the undersigned Limited Partner or Assignee is a Qualifying Party, (ii) the undersigned Limited Partner or Assignee has, and at the ~~end of~~closing of the Series D Preferred Redemption will have, good, marketable and unencumbered title to such Series D Preferred Units, free and clear of the rights or interests of any other Person, (iii) the undersigned Limited Partner or Assignee has, and ~~for~~at the closing of the Series D Preferred Redemption will have, the ~~prior quarterly fiscal period~~ full right, power and authority to tender and surrender such Series D Preferred Units as provided herein, and (~~subject~~ iv) the undersigned Limited Partner or Assignee has obtained the consent or approval of all Persons, if any, having the right to ~~normal year-end audit adjustments).](2~~consent to or approve such tender and surrender; and (d) ~~[Attached hereto as Exhibit A~~ acknowledges that he will continue to own such Series D Preferred Units until and unless either (i) such Series D Preferred Units are acquired by the ~~unaudited balance sheet and income statement of Guarantor satisfying the requirements of~~ Parent pursuant to Section ~~4.1(b)(i)~~ 19.4.B of the ~~Guaranty~~Agreement or (ii) such Series D Preferred Redemption transaction closes. ~~Guarantor represents that~~ All capitalized terms used herein and not otherwise defined shall have the ~~information herein fairly presents~~ same meaning ascribed to them respectively in the ~~consolidated financial condition and results~~ Agreement. Dated: Name of ~~operations~~ Limited Partner or Assignee: (Signature of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](3) (2) Include for quarterly certificate. (3) Include for annual certificate. [Attached hereto as Exhibit B are the audited financial statements of the REIT satisfying the requirements of Section 4.1(b)(ii) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](4) Guarantor is in compliance with the financial covenants contained in Section 4.7(a) of the Guaranty. Pursuant to Section 4.7(b) of the Guaranty, Guarantor has calculated the financial covenants contained in Section 4.7(aLimited Partner or Assignee) (~~as set forth on Exhibit [B](5)[C](6)~~city) ~~and as at the end of the prior quarterly fiscal period, the calculations are as follows~~(State) (Zip Code) Signature Guaranteed by: Ratio of Interest Income to Interest Expense: [ ] to [ ] Tangible Net Worth: [ ] Cash Liquidity: [ ] Ratio of Total Indebtedness to Tangible Net Worth: [ ] to [ ] As of the date hereof, neither Guarantor nor any Subsidiary of Guarantor (has entered into or amended a repurchase agreement, warehouse facility, credit facility or other similar arrangement with any Person which by its terms provides more favorable terms with respect to any financial covenants contained in the Guaranty or the Repurchase Agreement, including without limitation covenants covering the same or similar subject matter set forth in this Certificate. (4) Include for annual certificate. (5) Include for quarterly certificate. (6) Include for annual certificate. cc: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Attention: Xxxxxxxx X. Xxxxxxxx Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (###) ###-#### Fax: (###) ###-#### E-Mail: ########@xxxx.xxx (7) Include for annual certificate. (8) Include for quarterly certificate. (9) Include for annual certificate. BUYER Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: ##############@xxxxxxxxxxxxx.xxx with a copy Issue Check Payable/REIT Shares to: ~~Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention~~Name: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxx Bank, N.A. One Utah Center, 000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx Xxxx, Xxxx 00000 and to: Xxxxxx Xxxxxxx Bank, N.A. 0 Xxx Xxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxxx Xxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #######@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxx X. Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxx.xxx SELLER KREF Lending IV LLC 0 Xxxx 00xx Xxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxx Telephone: (###) ###-#### Email: ###############@xxx.xxx with a copy to: Xxxxxx Xxxx & Xxxxxxxx LLP 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Xxxx Telephone: (###) ###-#### Email: #####@xxxxxxxxxx.xxxPlease insert social security or identifying number:

Appears in 1 contract

Samples: Limited Partnership Agreement

Article 8 Opt-In. The LLC Certificate of the issuer of the Capital Stock securing the Purchased Asset constitutes a “security” within the meaning of Article 8 of the UCC, and no amendment of the issuer’s operating agreement that amends the opt-in may be effected without the consent of the holder of the Mezzanine Loan. Exhibit IV [ ] Re: Bailee Agreement (this “Bailee Agreement”) in connection with the sale of [ [description of Purchased Asset] by ~~KREF LENDING IV LLC~~ ACRES Real Estate SPE 10, LLC, as seller (“Seller”) to Xxxxxx Xxxxxxx ~~Bank, N.A.~~Mortgage Capital Holdings LLC, as ~~buyer~~ administrative agent, on behalf of Buyers (together with its permitted successors and assigns, “~~Buyer~~Administrative Agent”) Ladies and Gentlemen: In consideration of the mutual premises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller, ~~Buyer~~ Administrative Agent, on behalf of Buyers, and [ [_________] (“Bailee”) hereby agree as follows: 1. Seller shall deliver to Bailee in connection with any Purchased Assets delivered to Bailee hereunder a ~~Purchased Asset File Checklist~~ Custodial Delivery Certificate in the form of Attachment 1 attached hereto (the “Custodial Delivery Certificate”) to which shall be attached a Purchased Asset Schedule identifying the Purchased ~~Assets that are~~ Asset(s) being delivered to Bailee hereunder. Such Purchased Asset Schedule shall contain the following fields of information: (a) the loan identifying number; (b) the obligor’s name; (c) the xxxxxx xxxxxxx, xxxx, xxxxx and zip code for the applicable real property; (d) the original balance; and (e) the current principal balance if different from the original balance and such other information as Administrative Agent, on behalf of Buyers, shall require. 2. On or prior to the date indicated on the ~~Purchased Asset File Checklist~~ Custodial Delivery Certificate (the “Purchase Date”), Seller shall have delivered to Bailee, as bailee for hire, the original Purchased Asset File (as set forth on Exhibit B to Attachment 1) for each of the Purchased Assets listed in ~~the Purchased Asset Schedule attached~~ Exhibit A to ~~such Purchased Asset File Checklist~~Attachment 1. 3. Bailee shall issue and deliver to ~~Buyer~~ Administrative Agent, on behalf of Buyers, and Custodian (as defined in Section 5 below) on or prior to the Purchase Date by facsimile or other electronic ~~transmission~~ transmission, in the name of Administrative Agent, on behalf of Buyers, an initial trust receipt and certification in the form of Attachment 1 attached hereto (the “Trust Receipt”), which Trust Receipt shall state that Bailee has received the original documents comprising the Purchased Asset File as set forth in the ~~Purchased Asset File Checklist~~Custodial Delivery Certificate, in addition to such other documents required to be delivered to ~~Buyer~~ Administrative Agent, on behalf of Buyers, and/or Custodian pursuant to the Master Repurchase and Securities Contract Agreement dated as of ~~December 6~~November 3, ~~2016~~2021, among by and among Administrative Agent, on behalf of Xxxxxx Xxxxxxx Bank, N.A., a national banking association (“MSBNA”), and such other financial institutions from time to time party thereto, as buyers (MSBNA, together with such other financial institutions from time to time party thereto, as buyers, and together with their respective successors and assigns, collectively, “Buyers” and individually, each a “Buyer”) and Seller ~~and Buyer~~ (as the same may have been or may be amended from time to time, the “Repurchase Agreement”). 4. On the applicable Purchase Date, in the event that ~~Buyer~~ Administrative Agent, on behalf of Buyers, fails to purchase any New Asset from Seller that is identified in the related ~~Purchased Asset File Checklist~~Custodial Delivery Certificate, ~~Buyer~~ Administrative Agent shall deliver by facsimile or other electronic transmission to Bailee at [ [_______] to the attention of [ [________], an authorization (the “~~Facsimile~~ Electronic Authorization”) to release the Purchased Asset Files with respect to the Purchased Assets identified therein to Seller. Upon receipt of such ~~Facsimile~~ Electronic Authorization, Bailee shall release the Purchased Asset Files to Seller in accordance with Seller’s instructions. 5. Following the Purchase Date, Bailee shall forward the Purchased Asset Files to ~~Xxxxx Fargo Bank, N.A.~~ [________________] (“Custodian”) by insured overnight courier for receipt by Custodian no later than [1:00 ~~p.m.]~~ p.m. on the third (3rd) Business Day following the applicable Purchase Date (the “Delivery Date”). 6. From and after the applicable Purchase Date until the time of receipt of the ~~Facsimile~~ Electronic Authorization or the applicable Delivery Date, as applicable, Bailee (a) shall maintain continuous custody and control of the related Purchased Asset Files as bailee for ~~Buyer~~ Administrative Agent, on behalf of Buyers, and (b) is holding the related Purchased Asset ~~Loans~~ Files as sole and exclusive bailee for ~~Buyer~~ Administrative Agent, on behalf of Buyers, unless and until otherwise instructed in writing by ~~Buyer~~Administrative Agent. 7. Seller agrees to indemnify and hold Bailee and its partners, directors, officers, agents and employees harmless against any and all actual and out-of-pocket third party liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorney’s fees, that may be imposed on, incurred by, or asserted against it or them in any way relating to or arising out of this Bailee Agreement or any action taken or not taken by it or them hereunder unless such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements (other than special, indirect, punitive or consequential damages, which shall in no event be paid by Seller) were imposed on, incurred by or asserted against Bailee because of the breach by Bailee of its obligations hereunder, which breach was caused by negligence, lack of good faith or willful misconduct on the part of Bailee or any of its partners, directors, officers, agents or employees. The foregoing indemnification shall survive any resignation or removal of Bailee or the termination or assignment of this Bailee Agreement. 8. In the event that the Bailee fails to ~~deliver a Mortgage Note, Participation Certificate or other material portion of~~ produce any document in a Purchased Asset File related to a Purchased Asset that is (or was required to be) then in its possession ~~to Custodian~~ within three (3) Business Days ~~following the applicable Purchase Date~~after required or requested by Seller or Administrative Agent, ~~the same shall constitute~~ on behalf of Buyers (a “Bailee Delivery Failure~~” under this~~ ”), the Bailee ~~Agreement~~shall indemnify and hold Administrative Agent and Buyers harmless against actual out of pocket liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorneys fees, that may be imposed on, incurred by, or asserted against it in any way relating to or arising out of such Bailee Delivery Failure (but excluding special, indirect, punitive or consequential damages). 9. Seller ~~hereby represents~~agrees to indemnify and hold Administrative Agent and Buyers and their respective affiliates and designees harmless against any and all actual and out-of-pocket third party liabilities, ~~warrants and covenants~~ obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorneys fees, that ~~Bailee is not an affiliate~~ may be imposed on, incurred by, or asserted against it or them in any way relating to or arising out of a Custodial Delivery Failure (as defined in the Custodial Agreement) or ~~otherwise controlled by Seller~~the Bailee’s negligence, lack of good faith or willful misconduct. Notwithstanding the foregoing, the parties hereby acknowledge that Bailee hereunder may act as counsel to Seller in connection with a proposed loan. 10. This Bailee Agreement may not be modified, amended The foregoing indemnification shall survive any termination or altered, except by written instrument, executed by all of the parties hereto. 11. This Bailee Agreement may not be assigned by Seller or Bailee without the prior written consent of Buyer. 12. For the purpose of facilitating the execution assignment of this Bailee Agreement as herein provided and for other purposes, this Bailee Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute and be one and the same instrumentAgreement. 13. This Bailee Agreement shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 14. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Repurchase Agreement. Very truly yours, KREF LENDING IV LLC, a Delaware limited liability company, Seller By: Name: Title: ACCEPTED AND AGREED: [ ], Bailee By: Name: Title: ACCEPTED AND AGREED: XXXXXX XXXXXXX BANK, N.A., a national banking association, Buyer By: Name: Title: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Re: Bailee Agreement, dated , 20 (the “Bailee Agreement”) among KREF Lending IV LLC ( “Seller”), Xxxxxx Xxxxxxx Bank, N.A. ( “Buyer”) and ( “Bailee”) Ladies and Gentlemen: In accordance with the provisions of Section 3 of the Bailee Agreement, the undersigned, as Bailee, hereby certifies that as to the Purchased Asset(s) referred to therein, it has reviewed the Purchased Asset File(s) and has determined that (i) all documents listed in Schedule A attached to the Bailee Agreement are in its possession and (ii) such documents have been reviewed by it and appear regular on their face and relate to the Purchased Asset(s). Bailee hereby confirms that it is holding the Purchase Loan File as agent and bailee for the exclusive use and benefit of Buyer pursuant to the terms of the Bailee Agreement. All capitalized terms used herein and not defined herein shall have the meanings ascribed to them in the Bailee Agreement. , Bailee By: Name: Title: Christen (Xxxxx) Xxx /s/ Xxxxxxxx Xxx Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx (1) Seller to provide. Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone (###) ###-#### Fax: (###) ###-#### Email: ################@xxxxxxxxxxxxx.xxx RE: Master Repurchase Agreement (as it may be amended, supplemented or otherwise modified, the “Repurchase Agreement”) dated as of December 6, 2016, between Xxxxxx Xxxxxxx Bank, N.A. (“Buyer”) and KREF Lending IV LLC (“Seller”) and Guaranty (the “Guaranty”) dated as of December 6, 2016, between KKR Real Estate Finance Holdings L.P. (“Guarantor”) and Buyer pertaining to the Repurchase Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Repurchase Agreement. THE UNDERSIGNED (SOLELY IN HIS OR HER CAPACITY AS AN OFFICER OF GUARANTOR, AND NOT IN HIS OR HER INDIVIDUAL CAPACITY) HEREBY CERTIFIES AS FOLLOWS: Guarantor is providing this Certificate pursuant to Section 4.7(b) of the Guaranty. [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(a) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](2) [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(b)(i) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](3) (2) Include for quarterly certificate. (3) Include for annual certificate. [Attached hereto as Exhibit B are the audited financial statements of the REIT satisfying the requirements of Section 4.1(b)(ii) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](4) Guarantor is in compliance with the financial covenants contained in Section 4.7(a) of the Guaranty. Pursuant to Section 4.7(b) of the Guaranty, Guarantor has calculated the financial covenants contained in Section 4.7(a) (as set forth on Exhibit [B](5)[C](6)) and as at the end of the prior quarterly fiscal period, the calculations are as follows: Ratio of Interest Income to Interest Expense: [ ] to [ ] Tangible Net Worth: [ ] Cash Liquidity: [ ] Ratio of Total Indebtedness to Tangible Net Worth: [ ] to [ ] As of the date hereof, neither Guarantor nor any Subsidiary of Guarantor (has entered into or amended a repurchase agreement, warehouse facility, credit facility or other similar arrangement with any Person which by its terms provides more favorable terms with respect to any financial covenants contained in the Guaranty or the Repurchase Agreement, including without limitation covenants covering the same or similar subject matter set forth in this Certificate. (4) Include for annual certificate. (5) Include for quarterly certificate. (6) Include for annual certificate. cc: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Attention: Xxxxxxxx X. Xxxxxxxx Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (###) ###-#### Fax: (###) ###-#### E-Mail: ########@xxxx.xxx (7) Include for annual certificate. (8) Include for quarterly certificate. (9) Include for annual certificate. BUYER Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: ##############@xxxxxxxxxxxxx.xxx with a copy to: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxx Bank, N.A. One Utah Center, 000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx Xxxx, Xxxx 00000 and to: Xxxxxx Xxxxxxx Bank, N.A. 0 Xxx Xxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxxx Xxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #######@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxx X. Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxx.xxx SELLER KREF Lending IV LLC 0 Xxxx 00xx Xxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxx Telephone: (###) ###-#### Email: ###############@xxx.xxx with a copy to: Xxxxxx Xxxx & Xxxxxxxx LLP 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Xxxx Telephone: (###) ###-#### Email: #####@xxxxxxxxxx.xxx

Appears in 1 contract

Samples: Master Repurchase and Securities Contract Agreement (ACRES Commercial Realty Corp.)

Article 8 Opt-In. The LLC Certificate of the issuer of the Capital Stock securing the Purchased Asset constitutes a “security” within the meaning of Article 8 of the UCC, and no amendment of the issuer’s operating agreement that amends the opt-in may be effected without the consent of the holder of the Mezzanine Loan. [ ] Re: Bailee Agreement (~~this~~ the “Bailee Agreement”) in connection with the sale of [ ] by ~~KREF LENDING IV LLC~~ [SELLER] (“Seller”) to Xxxxxx Xxxxxxx Bank, N.A., as buyer (together with its permitted successors and assigns, “Buyer”) Ladies and Gentlemen: In consideration of the mutual premises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller, Buyer and [ [__________] (“Bailee”) hereby agree as follows: 1. Seller shall deliver to Bailee in connection with any Purchased Assets delivered to Bailee hereunder a Purchased Asset File Checklist to which shall be attached a Purchased Asset Schedule identifying the Purchased Assets that are being delivered to Bailee hereunder. 2. On or prior to the date indicated on the Purchased Asset File Checklist (the “Purchase Date”), Seller shall have delivered to Bailee, as bailee for hire, the Purchased Asset File for each of the Purchased Assets listed in the Purchased Asset Schedule attached to such Purchased Asset File Checklist. 3. Bailee shall issue and deliver to Buyer (as defined in Section 5 below) on or prior to the Purchase Date by facsimile or other electronic transmission an initial trust receipt and certification in the form of Attachment 1 attached hereto (the “Trust Receipt”), which Trust Receipt shall state that ~~Bailee~~ Xxxxxx has received the documents comprising the Purchased Asset File as set forth in the Purchased Asset File Checklist, in addition to such other documents required to be delivered to Buyer pursuant to the Second Amended and Restated Master Repurchase and Securities Contract Agreement dated as of ~~December 6~~[____], ~~2016~~2019, among Seller and Buyer (the “Repurchase Agreement”). 4. On the applicable Purchase Date, in the event that Buyer fails to purchase any New Asset from Seller that is identified in the related Purchased Asset File Checklist, Buyer shall deliver by facsimile or other electronic transmission to Bailee at [ [_____________] to the attention of [ [_____________], an authorization (the “Facsimile Authorization”) to release the Purchased Asset Files with respect to the Purchased Assets identified therein to Seller. Upon receipt of such Facsimile Authorization, ~~Bailee~~ Xxxxxx shall release the Purchased Asset Files to Seller in accordance with Seller’s instructions. 5. Following the Purchase Date, ~~Bailee~~ Xxxxxx shall forward the Purchased Asset Files to Xxxxx Fargo Bank, N.A. (“Custodian”) by insured overnight courier for receipt by Custodian no later than ~~[1:00 p.m.]~~ 2:00 p.m. on the third (3rd) ~~Business Day following the applicable Purchase Date~~ (the “Delivery Date”). 6. From and after the applicable Purchase Date until the time of receipt of the Facsimile Authorization or the applicable Delivery Date, as applicable, Bailee (a) shall maintain continuous custody and control of the related Purchased Asset Files as bailee for Buyer and (b) is holding the related Purchased Asset Loans as sole and exclusive bailee for Buyer unless and until otherwise instructed in writing by Buyer. 7. Seller agrees to indemnify and hold ~~Bailee~~ Xxxxxx and its partners, directors, officers, agents and employees harmless against any and all ~~actual out-of-pocket~~ third party liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorney’s fees, that may be imposed on, incurred by, or asserted against it or them in any way relating to or arising out of this Bailee Agreement or any action taken or not taken by it or them hereunder unless such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements (other than special, indirect, punitive or consequential damages, which shall in no event be paid by Seller) were imposed on, incurred by or asserted against Bailee because of the breach by ~~Bailee~~ Xxxxxx of its obligations hereunder, which breach was caused by negligence, lack of good faith or willful misconduct on the part of Bailee or any of its partners, directors, officers, agents or employees. The foregoing indemnification shall survive any resignation or removal of Bailee or the termination or assignment of this Bailee Agreement. 8. In the event that ~~Bailee~~ Xxxxxx fails to deliver a Mortgage Note, Mezzanine Note, LLC Certificate or Participation ~~Certificate~~ Certificate, as applicable, or other material portion of a Purchased Asset File that was in its possession to Custodian within three (3) Business Days following the applicable Purchase Date, the same shall constitute a “Bailee Delivery Failure” under this Bailee Agreement. 9. Seller hereby represents, warrants and covenants that Bailee is not an affiliate of or otherwise controlled by Seller. Notwithstanding the foregoing, the parties hereby acknowledge that ~~Bailee~~ Xxxxxx hereunder may act as counsel to Seller in connection with a proposed loan. 10. This Bailee Agreement may not be modified, amended or altered, except by written instrument, executed by all of the parties hereto. 11. This Bailee Agreement may not be assigned by Seller or Bailee without the prior written consent of Buyer. 12. For the purpose of facilitating the execution of this Bailee Agreement as herein provided and for other purposes, this Bailee Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute and be one and the same instrument. Electronically transmitted signature pages shall be binding to the same extent. 13. This Bailee Agreement shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 14. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Repurchase Agreement. Very truly yours, KREF LENDING IV LLC, a Delaware limited liability company, Seller By: Name: Title: ACCEPTED AND AGREED: [ ], Bailee By: Name: Title: ACCEPTED AND AGREED: XXXXXX XXXXXXX BANK, N.A., a national banking association, Buyer By: Name: Title: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Re: Bailee Agreement, dated , 20 (the “Bailee Agreement”) among KREF Lending IV LLC ( “Seller”), Xxxxxx Xxxxxxx Bank, N.A. ( “Buyer”) and ( “Bailee”) Ladies and Gentlemen: In accordance with the provisions of Section 3 of the Bailee Agreement, the undersigned, as Bailee, hereby certifies that as to the Purchased Asset(s) referred to therein, it has reviewed the Purchased Asset File(s) and has determined that (i) all documents listed in Schedule A attached to the Bailee Agreement are in its possession and (ii) such documents have been reviewed by it and appear regular on their face and relate to the Purchased Asset(s). Bailee hereby confirms that it is holding the Purchase Loan File as agent and bailee for the exclusive use and benefit of Buyer pursuant to the terms of the Bailee Agreement. All capitalized terms used herein and not defined herein shall have the meanings ascribed to them in the Bailee Agreement. , Bailee By: Name: Title: Christen (Xxxxx) Xxx /s/ Xxxxxxxx Xxx Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx (1) Seller to provide. Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone (###) ###-#### Fax: (###) ###-#### Email: ################@xxxxxxxxxxxxx.xxx RE: Master Repurchase Agreement (as it may be amended, supplemented or otherwise modified, the “Repurchase Agreement”) dated as of December 6, 2016, between Xxxxxx Xxxxxxx Bank, N.A. (“Buyer”) and KREF Lending IV LLC (“Seller”) and Guaranty (the “Guaranty”) dated as of December 6, 2016, between KKR Real Estate Finance Holdings L.P. (“Guarantor”) and Buyer pertaining to the Repurchase Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Repurchase Agreement. THE UNDERSIGNED (SOLELY IN HIS OR HER CAPACITY AS AN OFFICER OF GUARANTOR, AND NOT IN HIS OR HER INDIVIDUAL CAPACITY) HEREBY CERTIFIES AS FOLLOWS: Guarantor is providing this Certificate pursuant to Section 4.7(b) of the Guaranty. [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(a) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](2) [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(b)(i) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](3) (2) Include for quarterly certificate. (3) Include for annual certificate. [Attached hereto as Exhibit B are the audited financial statements of the REIT satisfying the requirements of Section 4.1(b)(ii) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](4) Guarantor is in compliance with the financial covenants contained in Section 4.7(a) of the Guaranty. Pursuant to Section 4.7(b) of the Guaranty, Guarantor has calculated the financial covenants contained in Section 4.7(a) (as set forth on Exhibit [B](5)[C](6)) and as at the end of the prior quarterly fiscal period, the calculations are as follows: Ratio of Interest Income to Interest Expense: [ ] to [ ] Tangible Net Worth: [ ] Cash Liquidity: [ ] Ratio of Total Indebtedness to Tangible Net Worth: [ ] to [ ] As of the date hereof, neither Guarantor nor any Subsidiary of Guarantor (has entered into or amended a repurchase agreement, warehouse facility, credit facility or other similar arrangement with any Person which by its terms provides more favorable terms with respect to any financial covenants contained in the Guaranty or the Repurchase Agreement, including without limitation covenants covering the same or similar subject matter set forth in this Certificate. (4) Include for annual certificate. (5) Include for quarterly certificate. (6) Include for annual certificate. cc: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Attention: Xxxxxxxx X. Xxxxxxxx Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (###) ###-#### Fax: (###) ###-#### E-Mail: ########@xxxx.xxx (7) Include for annual certificate. (8) Include for quarterly certificate. (9) Include for annual certificate. BUYER Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: ##############@xxxxxxxxxxxxx.xxx with a copy to: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxx Bank, N.A. One Utah Center, 000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx Xxxx, Xxxx 00000 and to: Xxxxxx Xxxxxxx Bank, N.A. 0 Xxx Xxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxxx Xxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #######@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxx X. Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxx.xxx SELLER KREF Lending IV LLC 0 Xxxx 00xx Xxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxx Telephone: (###) ###-#### Email: ###############@xxx.xxx with a copy to: Xxxxxx Xxxx & Xxxxxxxx LLP 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Xxxx Telephone: (###) ###-#### Email: #####@xxxxxxxxxx.xxx

Appears in 1 contract

Samples: Tenth Omnibus Amendment to Transaction Documents (BrightSpire Capital, Inc.)

Article 8 Opt-In. The LLC Certificate of the issuer of the Capital Stock securing the Purchased Asset constitutes a “security” within the meaning of Article 8 of the UCC, and no amendment of the issuer’s operating agreement that amends the opt-in may be effected without the consent of the holder of the Mezzanine Loan. , 20 [ ] Re: Bailee Agreement (this “Bailee Agreement”) in connection with the sale of [ [description of Purchased Asset] by ~~KREF LENDING IV LLC~~ FS CREIT FINANCE MS-1 LLC, as seller (“Seller”) to Xxxxxx Xxxxxxx ~~Bank, N.A.~~Mortgage Capital Holdings LLC, as ~~buyer~~ administrative agent, on behalf of Buyers (together with its permitted successors and assigns, “~~Buyer~~Administrative Agent”) Ladies and Gentlemen: In consideration of the mutual premises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller, ~~Buyer~~ Administrative Agent, on behalf of Buyers, and [ ] (“Bailee”) hereby agree as follows: 1. Seller shall deliver to Bailee in connection with any Purchased Assets delivered to Bailee hereunder a ~~Purchased Asset File Checklist~~ Custodial Delivery Certificate in the form of Attachment 1 attached hereto (the “Custodial Delivery Certificate”) to which shall be attached a Purchased Asset Schedule identifying the Purchased ~~Assets that are~~ Asset(s) being delivered to Bailee hereunder. Such Purchased Asset Schedule shall contain the following fields of information: (a) the loan identifying number; (b) the obligor’s name; (c) the xxxxxx xxxxxxx, xxxx, xxxxx and zip code for the applicable real property; (d) the original balance; and (e) the current principal balance if different from the original balance and such other information as Administrative Agent, on behalf of Buyers, shall require. 2. On or prior to the date indicated on the ~~Purchased Asset File Checklist~~ Custodial Delivery Certificate (the “Purchase Date”), Seller shall have delivered to Bailee, as bailee for hire, the original Purchased Asset File (as set forth on Exhibit B to Attachment 1) for each of the Purchased Assets listed in ~~the Purchased Asset Schedule attached~~ Exhibit A to ~~such Purchased Asset File Checklist~~Attachment 1. 3. Bailee shall issue and deliver to ~~Buyer~~ Administrative Agent, on behalf of Buyers, and Custodian (as defined in Section 5 below) on or prior to the Purchase Date by facsimile or other electronic ~~transmission~~ transmission, in the name of Administrative Agent, on behalf of Buyers, an initial trust receipt and certification in the form of Attachment 1 attached hereto (the “Trust Receipt”), which Trust Receipt shall state that Bailee has received the original documents comprising the Purchased Asset File as set forth in the ~~Purchased Asset File Checklist~~Custodial Delivery Certificate, in addition to such other documents required to be delivered to ~~Buyer~~ Administrative Agent, on behalf of Buyers, and/or Custodian pursuant to the Master Repurchase and Securities Contract Agreement dated as of ~~December 6~~October 13, ~~2016~~2022, among by and among Administrative Agent, on behalf of Xxxxxx Xxxxxxx Bank, N.A., a national banking association (“MSBNA”), and such other financial institutions from time to time party thereto, as buyers (MSBNA, together with such other financial institutions from time to time party thereto, as buyers, and together with their respective successors and assigns, collectively, “Buyers” and individually, each a “Buyer”) and Seller ~~and Buyer~~ (as the same may have been or may be amended from time to time, the “Repurchase Agreement”). 4. On the applicable Purchase Date, in the event that ~~Buyer~~ Administrative Agent, on behalf of Xxxxxx, fails to purchase any New Asset from Seller that is identified in the related ~~Purchased Asset File Checklist~~Custodial Delivery Certificate, ~~Buyer~~ Administrative Agent shall deliver by facsimile or other electronic transmission to ~~Bailee~~ Xxxxxx at [ ] to the attention of [ ], an authorization (the “~~Facsimile~~ Electronic Authorization”) to release the Purchased Asset Files with respect to the Purchased Assets identified therein to Seller. Upon receipt of such ~~Facsimile~~ Electronic Authorization, ~~Bailee~~ Xxxxxx shall release the Purchased Asset Files to Seller in accordance with Seller’s instructions. 5. Following the Purchase Date, ~~Bailee~~ Xxxxxx shall forward the Purchased Asset Files to ~~Xxxxx Fargo Bank~~Computershare Trust Company, N.A. (“Custodian”) by insured overnight courier for receipt by Custodian no later than [1:00 ~~p.m.]~~ p.m. on the third (3rd) Business Day following the applicable Purchase Date (the “Delivery Date”). 6. From and after the applicable Purchase Date until the time of receipt of the ~~Facsimile~~ Electronic Authorization or the applicable Delivery Date, as applicable, Bailee (a) shall maintain continuous custody and control of the related Purchased Asset Files as bailee for ~~Buyer~~ Administrative Agent, on behalf of Buyers, and (b) is holding the related Purchased Asset ~~Loans~~ Files as sole and exclusive bailee for ~~Buyer~~ Administrative Agent, on behalf of Buyers, unless and until otherwise instructed in writing by ~~Buyer~~Administrative Agent. 7. Seller agrees to indemnify and hold Bailee and its partners, directors, officers, agents and employees harmless against any and all actual out-of-pocket third party liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorney’s fees, that may be imposed on, incurred by, or asserted against it or them in any way relating to or arising out of this Bailee Agreement or any action taken or not taken by it or them hereunder unless such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements (other than special, indirect, punitive or consequential damages, which shall in no event be paid by Seller) were imposed on, incurred by or asserted against Bailee because of the breach by Bailee of its obligations hereunder, which breach was caused by negligence, lack of good faith or willful misconduct on the part of Bailee or any of its partners, directors, officers, agents or employees. The foregoing indemnification shall survive any resignation or removal of Bailee or the termination or assignment of this Bailee Agreement. 8. In the event that Bailee fails to deliver a Mortgage Note, Participation Certificate or other material portion of a Purchased Asset File that was in its possession to Custodian within three (3) Business Days following the applicable Purchase Date, the same shall constitute a “Bailee Delivery Failure” under this Bailee Agreement. 9. Seller hereby represents, warrants and covenants that Bailee is not an affiliate of or otherwise controlled by Seller. Notwithstanding the foregoing, the parties hereby acknowledge that Bailee hereunder may act as counsel to Seller in connection with a proposed loan. 10. This Bailee Agreement may not be modified, amended or altered, except by written instrument, executed by all of the parties hereto. 11. This Bailee Agreement may not be assigned by Seller or Bailee without the prior written consent of Buyer. 12. For the purpose of facilitating the execution of this Bailee Agreement as herein provided and for other purposes, this Bailee Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute and be one and the same instrument. 13. This Bailee Agreement shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 14. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Repurchase Agreement. Very truly yours, KREF LENDING IV LLC, a Delaware limited liability company, Seller By: Name: Title: ACCEPTED AND AGREED: [ ], Bailee By: Name: Title: ACCEPTED AND AGREED: XXXXXX XXXXXXX BANK, N.A., a national banking association, Buyer By: Name: Title: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Re: Bailee Agreement, dated , 20 (the “Bailee Agreement”) among KREF Lending IV LLC ( “Seller”), Xxxxxx Xxxxxxx Bank, N.A. ( “Buyer”) and ( “Bailee”) Ladies and Gentlemen: In accordance with the provisions of Section 3 of the Bailee Agreement, the undersigned, as Bailee, hereby certifies that as to the Purchased Asset(s) referred to therein, it has reviewed the Purchased Asset File(s) and has determined that (i) all documents listed in Schedule A attached to the Bailee Agreement are in its possession and (ii) such documents have been reviewed by it and appear regular on their face and relate to the Purchased Asset(s). Bailee hereby confirms that it is holding the Purchase Loan File as agent and bailee for the exclusive use and benefit of Buyer pursuant to the terms of the Bailee Agreement. All capitalized terms used herein and not defined herein shall have the meanings ascribed to them in the Bailee Agreement. , Bailee By: Name: Title: Christen (Xxxxx) Xxx /s/ Xxxxxxxx Xxx Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx (1) Seller to provide. Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone (###) ###-#### Fax: (###) ###-#### Email: ################@xxxxxxxxxxxxx.xxx RE: Master Repurchase Agreement (as it may be amended, supplemented or otherwise modified, the “Repurchase Agreement”) dated as of December 6, 2016, between Xxxxxx Xxxxxxx Bank, N.A. (“Buyer”) and KREF Lending IV LLC (“Seller”) and Guaranty (the “Guaranty”) dated as of December 6, 2016, between KKR Real Estate Finance Holdings L.P. (“Guarantor”) and Buyer pertaining to the Repurchase Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Repurchase Agreement. THE UNDERSIGNED (SOLELY IN HIS OR HER CAPACITY AS AN OFFICER OF GUARANTOR, AND NOT IN HIS OR HER INDIVIDUAL CAPACITY) HEREBY CERTIFIES AS FOLLOWS: Guarantor is providing this Certificate pursuant to Section 4.7(b) of the Guaranty. [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(a) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](2) [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(b)(i) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](3) (2) Include for quarterly certificate. (3) Include for annual certificate. [Attached hereto as Exhibit B are the audited financial statements of the REIT satisfying the requirements of Section 4.1(b)(ii) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](4) Guarantor is in compliance with the financial covenants contained in Section 4.7(a) of the Guaranty. Pursuant to Section 4.7(b) of the Guaranty, Guarantor has calculated the financial covenants contained in Section 4.7(a) (as set forth on Exhibit [B](5)[C](6)) and as at the end of the prior quarterly fiscal period, the calculations are as follows: Ratio of Interest Income to Interest Expense: [ ] to [ ] Tangible Net Worth: [ ] Cash Liquidity: [ ] Ratio of Total Indebtedness to Tangible Net Worth: [ ] to [ ] As of the date hereof, neither Guarantor nor any Subsidiary of Guarantor (has entered into or amended a repurchase agreement, warehouse facility, credit facility or other similar arrangement with any Person which by its terms provides more favorable terms with respect to any financial covenants contained in the Guaranty or the Repurchase Agreement, including without limitation covenants covering the same or similar subject matter set forth in this Certificate. (4) Include for annual certificate. (5) Include for quarterly certificate. (6) Include for annual certificate. cc: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Attention: Xxxxxxxx X. Xxxxxxxx Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (###) ###-#### Fax: (###) ###-#### E-Mail: ########@xxxx.xxx (7) Include for annual certificate. (8) Include for quarterly certificate. (9) Include for annual certificate. BUYER Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: ##############@xxxxxxxxxxxxx.xxx with a copy to: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxx Bank, N.A. One Utah Center, 000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx Xxxx, Xxxx 00000 and to: Xxxxxx Xxxxxxx Bank, N.A. 0 Xxx Xxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxxx Xxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #######@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxx X. Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxx.xxx SELLER KREF Lending IV LLC 0 Xxxx 00xx Xxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxx Telephone: (###) ###-#### Email: ###############@xxx.xxx with a copy to: Xxxxxx Xxxx & Xxxxxxxx LLP 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Xxxx Telephone: (###) ###-#### Email: #####@xxxxxxxxxx.xxx

Appears in 1 contract

Samples: Master Repurchase and Securities Contract Agreement (FS Credit Real Estate Income Trust, Inc.)

Article 8 Opt-In. The LLC Certificate of the issuer of the Capital Stock securing the Purchased Asset constitutes a “security” within the meaning of Article 8 of the UCC, and no amendment of the issuer’s operating agreement that amends the opt-in may be effected without the consent of the holder of the Mezzanine Loan. , 20 [ ] Re: Bailee Agreement (~~this~~ the “Bailee Agreement”) in connection with the sale of [ ] by ~~KREF LENDING IV LLC~~ [SELLER] (“Seller”) to Xxxxxx Xxxxxxx Bank, N.A., as buyer (together with its permitted successors and assigns, “Buyer”) Ladies and Gentlemen: In consideration of the mutual premises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller, Buyer and [ ] (“Bailee”) hereby agree as follows: 1. Seller shall deliver to Bailee in connection with any Purchased Assets delivered to Bailee hereunder a Purchased Asset File Checklist to which shall be attached a Purchased Asset Schedule identifying the Purchased Assets that are being delivered to Bailee hereunder. 2. On or prior to the date indicated on the Purchased Asset File Checklist (the “Purchase Date”), Seller shall have delivered to Bailee, as bailee for hire, the Purchased Asset File for each of the Purchased Assets listed in the Purchased Asset Schedule attached to such Purchased Asset File Checklist. 3. Bailee shall issue and deliver to Buyer (as defined in Section 5 below) on or prior to the Purchase Date by facsimile or other electronic transmission an initial trust receipt and certification in the form of Attachment 1 attached hereto (the “Trust Receipt”), which Trust Receipt shall state that Bailee has received the documents comprising the Purchased Asset File as set forth in the Purchased Asset File Checklist, in addition to such other documents required to be delivered to Buyer pursuant to the Second Amended and Restated Master Repurchase and Securities Contract Agreement dated as of ~~December 6~~[ ], ~~2016~~2019, among Seller and Buyer (the “Repurchase Agreement”). 4. On the applicable Purchase Date, in the event that Buyer fails to purchase any New Asset from Seller that is identified in the related Purchased Asset File Checklist, Buyer shall deliver by facsimile or other electronic transmission to Bailee at [ ] to the attention of [ ], an authorization (the “Facsimile Authorization”) to release the Purchased Asset Files with respect to the Purchased Assets identified therein to Seller. Upon receipt of such Facsimile Authorization, Bailee shall release the Purchased Asset Files to Seller in accordance with Seller’s instructions. 5. Following the Purchase Date, Bailee shall forward the Purchased Asset Files to Xxxxx Fargo Bank, N.A. (“Custodian”) by insured overnight courier for receipt by Custodian no later than ~~[1:00 p.m.]~~ 2:00 p.m. on the third (3rd) (or, in the case of a Foreign Purchased Asset, the seventh (7th)) Business Day following the applicable Purchase Date (the “Delivery Date”). 6. From and after the applicable Purchase Date until the time of receipt of the Facsimile Authorization or the applicable Delivery Date, as applicable, Bailee (a) shall maintain continuous custody and control of the related Purchased Asset Files as bailee for Buyer and (b) is holding the related Purchased Asset Loans as sole and exclusive bailee for Buyer unless and until otherwise instructed in writing by Buyer. 7. Seller agrees to indemnify and hold Bailee and its partners, directors, officers, agents and employees harmless against any and all ~~actual out-of-pocket~~ third party liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorney’s fees, that may be imposed on, incurred by, or asserted against it or them in any way relating to or arising out of this Bailee Agreement or any action taken or not taken by it or them hereunder unless such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements (other than special, indirect, punitive or consequential damages, which shall in no event be paid by Seller) were imposed on, incurred by or asserted against Bailee because of the breach by Bailee of its obligations hereunder, which breach was caused by negligence, lack of good faith or willful misconduct on the part of Bailee or any of its partners, directors, officers, agents or employees. The foregoing indemnification shall survive any resignation or removal of Bailee or the termination or assignment of this Bailee Agreement. 8. In the event that Bailee fails to deliver a Mortgage Note, Mezzanine Note, LLC Certificate or Participation ~~Certificate~~ Certificate, as applicable, or other material portion of a Purchased Asset File that was in its possession to Custodian within three (3) Business Days following the applicable Purchase Date, the same shall constitute a “Bailee Delivery Failure” under this Bailee Agreement. 9. Seller hereby represents, warrants and covenants that Bailee is not an affiliate of or otherwise controlled by Seller. Notwithstanding the foregoing, the parties hereby acknowledge that Bailee hereunder may act as counsel to Seller in connection with a proposed loan. 10. This Bailee Agreement may not be modified, amended or altered, except by written instrument, executed by all of the parties hereto. 11. This Bailee Agreement may not be assigned by Seller or Bailee without the prior written consent of Buyer. 12. For the purpose of facilitating the execution of this Bailee Agreement as herein provided and for other purposes, this Bailee Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute and be one and the same instrument. Electronically transmitted signature pages shall be binding to the same extent. 13. This Bailee Agreement shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 14. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Repurchase Agreement. Very truly yours, KREF LENDING IV LLC, a Delaware limited liability company, Seller By: Name: Title: ACCEPTED AND AGREED: [ ], Bailee By: Name: Title: ACCEPTED AND AGREED: XXXXXX XXXXXXX BANK, N.A., a national banking association, Buyer By: Name: Title: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Re: Bailee Agreement, dated , 20 (the “Bailee Agreement”) among KREF Lending IV LLC ( “Seller”), Xxxxxx Xxxxxxx Bank, N.A. ( “Buyer”) and ( “Bailee”) Ladies and Gentlemen: In accordance with the provisions of Section 3 of the Bailee Agreement, the undersigned, as Bailee, hereby certifies that as to the Purchased Asset(s) referred to therein, it has reviewed the Purchased Asset File(s) and has determined that (i) all documents listed in Schedule A attached to the Bailee Agreement are in its possession and (ii) such documents have been reviewed by it and appear regular on their face and relate to the Purchased Asset(s). Bailee hereby confirms that it is holding the Purchase Loan File as agent and bailee for the exclusive use and benefit of Buyer pursuant to the terms of the Bailee Agreement. All capitalized terms used herein and not defined herein shall have the meanings ascribed to them in the Bailee Agreement. , Bailee By: Name: Title: Christen (Xxxxx) Xxx /s/ Xxxxxxxx Xxx Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx (1) Seller to provide. Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone (###) ###-#### Fax: (###) ###-#### Email: ################@xxxxxxxxxxxxx.xxx RE: Master Repurchase Agreement (as it may be amended, supplemented or otherwise modified, the “Repurchase Agreement”) dated as of December 6, 2016, between Xxxxxx Xxxxxxx Bank, N.A. (“Buyer”) and KREF Lending IV LLC (“Seller”) and Guaranty (the “Guaranty”) dated as of December 6, 2016, between KKR Real Estate Finance Holdings L.P. (“Guarantor”) and Buyer pertaining to the Repurchase Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Repurchase Agreement. THE UNDERSIGNED (SOLELY IN HIS OR HER CAPACITY AS AN OFFICER OF GUARANTOR, AND NOT IN HIS OR HER INDIVIDUAL CAPACITY) HEREBY CERTIFIES AS FOLLOWS: Guarantor is providing this Certificate pursuant to Section 4.7(b) of the Guaranty. [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(a) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](2) [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(b)(i) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](3) (2) Include for quarterly certificate. (3) Include for annual certificate. [Attached hereto as Exhibit B are the audited financial statements of the REIT satisfying the requirements of Section 4.1(b)(ii) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](4) Guarantor is in compliance with the financial covenants contained in Section 4.7(a) of the Guaranty. Pursuant to Section 4.7(b) of the Guaranty, Guarantor has calculated the financial covenants contained in Section 4.7(a) (as set forth on Exhibit [B](5)[C](6)) and as at the end of the prior quarterly fiscal period, the calculations are as follows: Ratio of Interest Income to Interest Expense: [ ] to [ ] Tangible Net Worth: [ ] Cash Liquidity: [ ] Ratio of Total Indebtedness to Tangible Net Worth: [ ] to [ ] As of the date hereof, neither Guarantor nor any Subsidiary of Guarantor (has entered into or amended a repurchase agreement, warehouse facility, credit facility or other similar arrangement with any Person which by its terms provides more favorable terms with respect to any financial covenants contained in the Guaranty or the Repurchase Agreement, including without limitation covenants covering the same or similar subject matter set forth in this Certificate. (4) Include for annual certificate. (5) Include for quarterly certificate. (6) Include for annual certificate. cc: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Attention: Xxxxxxxx X. Xxxxxxxx Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (###) ###-#### Fax: (###) ###-#### E-Mail: ########@xxxx.xxx (7) Include for annual certificate. (8) Include for quarterly certificate. (9) Include for annual certificate. BUYER Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: ##############@xxxxxxxxxxxxx.xxx with a copy to: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxx Bank, N.A. One Utah Center, 000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx Xxxx, Xxxx 00000 and to: Xxxxxx Xxxxxxx Bank, N.A. 0 Xxx Xxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxxx Xxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #######@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxx X. Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxx.xxx SELLER KREF Lending IV LLC 0 Xxxx 00xx Xxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxx Telephone: (###) ###-#### Email: ###############@xxx.xxx with a copy to: Xxxxxx Xxxx & Xxxxxxxx LLP 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Xxxx Telephone: (###) ###-#### Email: #####@xxxxxxxxxx.xxx

Appears in 1 contract

Samples: Master Repurchase and Securities Contract Agreement (Colony Credit Real Estate, Inc.)

Article 8 Opt-In. The LLC Certificate of the issuer of the Capital Stock securing the Purchased Asset constitutes a “security” within the meaning of Article 8 of the UCC, and no amendment of the issuer’s operating agreement that amends the opt-in may be effected without the consent of the holder of the Mezzanine Loan. [ ] Re: Bailee Agreement (~~this~~ the “Bailee Agreement”) in connection with the sale of [ ] by ~~KREF LENDING IV LLC~~ [SELLER] (“Seller”) to Xxxxxx Xxxxxxx Bank, N.A., as buyer (together with its permitted successors and assigns, “Buyer”) Ladies and Gentlemen: In consideration of the mutual premises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller, Buyer and [ ] (“Bailee”) hereby agree as follows: 1. Seller shall deliver to Bailee in connection with any Purchased Assets delivered to Bailee hereunder a Purchased Asset File Checklist to which shall be attached a Purchased Asset Schedule identifying the Purchased Assets that are being delivered to Bailee hereunder. 2. On or prior to the date indicated on the Purchased Asset File Checklist (the “Purchase Date”), Seller shall have delivered to Bailee, as bailee for hire, the Purchased Asset File for each of the Purchased Assets listed in the Purchased Asset Schedule attached to such Purchased Asset File Checklist. 3. Bailee shall issue and deliver to Buyer (as defined in Section 5 below) on or prior to the Purchase Date by facsimile or other electronic transmission an initial trust receipt and certification in the form of Attachment 1 attached hereto (the “Trust Receipt”), which Trust Receipt shall state that Bailee has received the documents comprising the Purchased Asset File as set forth in the Purchased Asset File Checklist, in addition to such other documents required to be delivered to Buyer pursuant to the Amended and Restated Master Repurchase and Securities Contract Agreement dated as of ~~December 6~~April 20, ~~2016~~2018, among Seller and Buyer (the “Repurchase Agreement”). 4. On the applicable Purchase Date, in the event that Buyer fails to purchase any New Asset from Seller that is identified in the related Purchased Asset File Checklist, Buyer shall deliver by facsimile or other electronic transmission to Bailee at [ [____________] to the attention of [ [_____________], an authorization (the “Facsimile Authorization”) to release the Purchased Asset Files with respect to the Purchased Assets identified therein to Seller. Upon receipt of such Facsimile Authorization, Bailee shall release the Purchased Asset Files to Seller in accordance with Seller’s instructions. 5. Following the Purchase Date, Bailee shall forward the Purchased Asset Files to Xxxxx Fargo Bank, N.A. (“Custodian”) by insured overnight courier for receipt by Custodian no later than ~~[1:00 p.m.]~~ 2:00 p.m. on the third (3rd) Business Day following the applicable Purchase Date (the “Delivery Date”). 6. From and after the applicable Purchase Date until the time of receipt of the Facsimile Authorization or the applicable Delivery Date, as applicable, Bailee (a) shall maintain continuous custody and control of the related Purchased Asset Files as bailee for Buyer and (b) is holding the related Purchased Asset Loans as sole and exclusive bailee for Buyer unless and until otherwise instructed in writing by Buyer. 7. Seller agrees to indemnify and hold Bailee and its partners, directors, officers, agents and employees harmless against any and all ~~actual out-of-pocket~~ third party liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, including reasonable attorney’s fees, that may be imposed on, incurred by, or asserted against it or them in any way relating to or arising out of this Bailee Agreement or any action taken or not taken by it or them hereunder unless such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements (other than special, indirect, punitive or consequential damages, which shall in no event be paid by Seller) were imposed on, incurred by or asserted against Bailee because of the breach by Bailee of its obligations hereunder, which breach was caused by negligence, lack of good faith or willful misconduct on the part of Bailee or any of its partners, directors, officers, agents or employees. The foregoing indemnification shall survive any resignation or removal of Bailee or the termination or assignment of this Bailee Agreement. 8. In the event that Bailee fails to deliver a Mortgage Note, Mezzanine Note, LLC Certificate or Participation ~~Certificate~~ Certificate, as applicable, or other material portion of a Purchased Asset File that was in its possession to Custodian within three (3) Business Days following the applicable Purchase Date, the same shall constitute a “Bailee Delivery Failure” under this Bailee Agreement. 9. Seller hereby represents, warrants and covenants that Bailee is not an affiliate of or otherwise controlled by Seller. Notwithstanding the foregoing, the parties hereby acknowledge that Bailee hereunder may act as counsel to Seller in connection with a proposed loan. 10. This Bailee Agreement may not be modified, amended or altered, except by written instrument, executed by all of the parties hereto. 11. This Bailee Agreement may not be assigned by Seller or Bailee without the prior written consent of Buyer. 12. For the purpose of facilitating the execution of this Bailee Agreement as herein provided and for other purposes, this Bailee Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute and be one and the same instrument. Electronically transmitted signature pages shall be binding to the same extent. 13. This Bailee Agreement shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 14. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Repurchase Agreement. Very truly yours, KREF LENDING IV LLC, a Delaware limited liability company, Seller By: Name: Title: ACCEPTED AND AGREED: [ ], Bailee By: Name: Title: ACCEPTED AND AGREED: XXXXXX XXXXXXX BANK, N.A., a national banking association, Buyer By: Name: Title: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Re: Bailee Agreement, dated , 20 (the “Bailee Agreement”) among KREF Lending IV LLC ( “Seller”), Xxxxxx Xxxxxxx Bank, N.A. ( “Buyer”) and ( “Bailee”) Ladies and Gentlemen: In accordance with the provisions of Section 3 of the Bailee Agreement, the undersigned, as Bailee, hereby certifies that as to the Purchased Asset(s) referred to therein, it has reviewed the Purchased Asset File(s) and has determined that (i) all documents listed in Schedule A attached to the Bailee Agreement are in its possession and (ii) such documents have been reviewed by it and appear regular on their face and relate to the Purchased Asset(s). Bailee hereby confirms that it is holding the Purchase Loan File as agent and bailee for the exclusive use and benefit of Buyer pursuant to the terms of the Bailee Agreement. All capitalized terms used herein and not defined herein shall have the meanings ascribed to them in the Bailee Agreement. , Bailee By: Name: Title: Christen (Xxxxx) Xxx /s/ Xxxxxxxx Xxx Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx (1) Seller to provide. Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone (###) ###-#### Fax: (###) ###-#### Email: ################@xxxxxxxxxxxxx.xxx RE: Master Repurchase Agreement (as it may be amended, supplemented or otherwise modified, the “Repurchase Agreement”) dated as of December 6, 2016, between Xxxxxx Xxxxxxx Bank, N.A. (“Buyer”) and KREF Lending IV LLC (“Seller”) and Guaranty (the “Guaranty”) dated as of December 6, 2016, between KKR Real Estate Finance Holdings L.P. (“Guarantor”) and Buyer pertaining to the Repurchase Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Repurchase Agreement. THE UNDERSIGNED (SOLELY IN HIS OR HER CAPACITY AS AN OFFICER OF GUARANTOR, AND NOT IN HIS OR HER INDIVIDUAL CAPACITY) HEREBY CERTIFIES AS FOLLOWS: Guarantor is providing this Certificate pursuant to Section 4.7(b) of the Guaranty. [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(a) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](2) [Attached hereto as Exhibit A are the unaudited balance sheet and income statement of Guarantor satisfying the requirements of Section 4.1(b)(i) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](3) (2) Include for quarterly certificate. (3) Include for annual certificate. [Attached hereto as Exhibit B are the audited financial statements of the REIT satisfying the requirements of Section 4.1(b)(ii) of the Guaranty. Guarantor represents that the information herein fairly presents the consolidated financial condition and results of operations of Guarantor and its consolidated Subsidiaries in accordance with GAAP, consistently applied, as at the end of, and for, the prior quarterly fiscal period (subject to normal year-end audit adjustments).](4) Guarantor is in compliance with the financial covenants contained in Section 4.7(a) of the Guaranty. Pursuant to Section 4.7(b) of the Guaranty, Guarantor has calculated the financial covenants contained in Section 4.7(a) (as set forth on Exhibit [B](5)[C](6)) and as at the end of the prior quarterly fiscal period, the calculations are as follows: Ratio of Interest Income to Interest Expense: [ ] to [ ] Tangible Net Worth: [ ] Cash Liquidity: [ ] Ratio of Total Indebtedness to Tangible Net Worth: [ ] to [ ] As of the date hereof, neither Guarantor nor any Subsidiary of Guarantor (has entered into or amended a repurchase agreement, warehouse facility, credit facility or other similar arrangement with any Person which by its terms provides more favorable terms with respect to any financial covenants contained in the Guaranty or the Repurchase Agreement, including without limitation covenants covering the same or similar subject matter set forth in this Certificate. (4) Include for annual certificate. (5) Include for quarterly certificate. (6) Include for annual certificate. cc: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Attention: Xxxxxxxx X. Xxxxxxxx Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Telephone: (###) ###-#### Fax: (###) ###-#### E-Mail: ########@xxxx.xxx (7) Include for annual certificate. (8) Include for quarterly certificate. (9) Include for annual certificate. BUYER Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: ##############@xxxxxxxxxxxxx.xxx with a copy to: Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx Xxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxx Bank, N.A. One Utah Center, 000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx Xxxx, Xxxx 00000 and to: Xxxxxx Xxxxxxx Bank, N.A. 0 Xxx Xxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxxx Xxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #######@xxxxxxxxxxxxx.xxx and to: Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP Xxx Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxx X. Xxxxxxxx Telephone: (###) ###-#### Fax: (###) ###-#### Email: #########@xxxx.xxx SELLER KREF Lending IV LLC 0 Xxxx 00xx Xxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxx Telephone: (###) ###-#### Email: ###############@xxx.xxx with a copy to: Xxxxxx Xxxx & Xxxxxxxx LLP 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Xxxx Telephone: (###) ###-#### Email: #####@xxxxxxxxxx.xxx

Appears in 1 contract

Samples: Master Repurchase and Securities Contract Agreement (Colony NorthStar Credit Real Estate, Inc.)

Common use of Article 8 Opt-In Clause in Contracts