Common use of Funding Process Clause in Contracts

Funding Process. A. Ignite shall continue to originate Mortgage Loans in accordance with its historical practices. Ignite shall send a weekly report (a “Mortgage Loan Report”) to CMR presenting in reasonable detail Mortgage Loans identified by Ignite and that Ignite believes satisfy the investment criteria of CMR and are appropriate for investment by CMR (each, a “Potential Qualifying Loan”). CMR shall then have a period of two (2) business days from the date of such notice (an “Initial Election Period”) to elect to fund all or a portion of those Potential Qualifying Loans by delivering written notice to Ignite (each, a “Preliminary Funding Notice”). Each Preliminary Funding Notice shall constitute an offer by CMR to fund all or the specified portion of each Potential Qualifying Loan listed in such Preliminary Funding Notice upon the terms and conditions set forth in the Mortgage Loan Report as modified by any requested changes set forth in such Preliminary Funding Notice, with such changes thereto as CMR shall deem appropriate for its funding thereof. If CMR fails to deliver a Preliminary Funding Notice to Ignite prior to the expiration of the Initial Election Period, or if the Preliminary Funding Notices delivered by CMR does not include all of the Potential Qualifying Loans listed on the Mortgage Loan Report, then Ignite may arrange for the funding of all or any such portion, as the case may be, of the remaining Potential Qualifying Loans set forth in the applicable Mortgage Loan Report that were not selected by CMR through one or more other investment programs sponsored by Parent (each, a “Competitive Program”) or third parties. B. No later than two (2) business days after its receipt of a Preliminary Funding Notice (an “Election Period”), Ignite may elect to accept any changes set forth in the applicable Preliminary Funding Notice that CMR requests be made to the terms of any Potential Qualifying Loan listed in such Preliminary Funding Notice. If Ignite rejects any of the modified terms requested by CMR, it may withdraw from the Preliminary Funding Notices each Potential Qualifying Loan with respect to which modified terms were requested and shall permit CMR to fund all or the specified portion of any remaining Potential Qualifying Loans listed on the Preliminary Funding Notices. If Ignite agrees to all modified terms requested by CMR in a Preliminary Funding Notice, then Ignite shall permit CMR to fund all or the specified portion of the Potential Qualifying Loan listed in the Preliminary Funding Notice upon the modified terms requested by CMR. C. Ignite may freely arrange for the funding of any Potential Qualifying Loan that was set forth in a Mortgage Loan Report or portion thereof that CMR did not elect to fund or as to which any modified terms set forth in the Preliminary Funding Notice were not accepted by Ignite. D. For any and all Mortgage Loans that CMR should choose to fund, as soon as available following the delivery of a Preliminary Funding Notice, Ignite shall deliver to CMR the due diligence materials, reports and documents described in Attachment “B” hereto (the “Specified Materials”) relating to the Mortgage Loan to be funded, participated in or purchased by CMR then in the possession of Ignite. Upon receipt of all Specified Materials, CMR shall have three (3) business days to review and approve or object in writing to the Specified Materials received. In addition, Ignite shall provide CMR with any additional documents and other information that CMR may reasonably request with respect to any Mortgage Loan to be funded by CMR hereunder. It shall be a condition to the obligation of CMR to fund any Mortgage Loan at a Closing (hereinafter defined) that Ignite shall have timely provided to CMR all of the Specified Materials (and any other documents and other information reasonably requested by CMR). In the event that with respect to any Mortgage Loan, (i) CMR does not approve the Specified Materials initially delivered to CMR, or (ii) the Specified Materials received by CMR thereafter do not support or conform to the representations and description of the Mortgage Loan provided by Ignite to CMR in the Mortgage Loan Report, including, without limitation, the borrower, loan amount, collateral type, ownership, appraised value, lien priority and environmental condition, CMR shall have no obligation to fund such Mortgage Loan at a Closing. E. Each closing of a funding of a Mortgage Loan by CMR hereunder (each, a “Closing”) shall take place at the principal offices of CMR, at the address specified in Article XII hereof, on the business day specified as the closing date for the applicable Mortgage Loan in the applicable Mortgage Loan Report. At each Closing, Ignite shall arrange for the execution and delivery to CMR of a standard set of investment documents, in form and substance reasonably acceptable to CMR (and shall provide CMR with customary representations and warranties as well as adequate assurances that such Mortgage Loans are valid and enforceable obligations of the respective borrowers and that no default, event of default, or similar event has occurred of which Ignite could reasonably be expected to be aware with respect to such Mortgage Loans). At each Closing, unless otherwise agreed upon by the parties, CMR shall fund all or the specified portion of each Mortgage Loan in the applicable amount payable in immediately available funds. F. CMR may, at its election, request periodic accounting and other financial records from Ignite that demonstrate its compliance with this Agreement. Any proprietary information and associated products, copyrights, trademarks and logos developed by parties to this Agreement shall remain the property of the party which developed them. G. Each party hereto shall, in a professional manner, take all steps reasonably necessary to perform its duties hereunder. H. In addition to the other matters set forth in this Article I, the parties agree to the covenants and other matters set forth in Attachment “A” hereto, which are incorporated by reference as if fully set forth herein. I. As promptly as possible but in any event within thirty (30) days (or such later date as the parties may agree) after (i) any person or entity engaged in the business of originating or brokering commercial loans becomes an Affiliate (as defined in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act of 1934, as amended) of Parent and/or Ignite, or (ii) any Affiliate of Parent and/or Ignite becomes engaged in the business of originating or brokering commercial loans, Parent shall provide CMR with written notice thereof setting forth information in reasonable detail describing the business of such person or entity and shall, if requested by CMR, within thirty (30) days after the date of such notice, cause each such person or entity to deliver to CMR a joinder agreement in form and substance reasonably acceptable to CMR pursuant to which such person or entity becomes a party to and agrees to be bound by the terms and provisions of this Agreement. J. Subject to the rotation process described in this Paragraph J, each investment opportunity in a Potential Qualifying Loan will be offered by Ignite to CMR, to the extent that CMR then has available capital in an amount sufficient to allow CMR to participate in such investment opportunity. Ignite may also offer certain Mortgage Loans it has identified as satisfying the investment criteria of a Competitive Program and appropriate for investment by such Competitive Program to such Competitive Program to the extent that such Competitive Program then has sufficient funds to allow the Competitive Program to participate in such Mortgage Loans. However, if the Parent’s investment committee determines that any Potential Qualifying Loan satisfies the investment criteria of CMR and one or more Competitive Programs and CMR and each such Competitive Program then has sufficient capital to invest in such Potential Qualifying Loan, then each such Potential Qualifying Loan, shall be subject to a rotation process that gives CMR and all applicable Competitive Programs sequential opportunities to be presented and acquire Potential Qualifying Loans. This rotation process shall continue such that CMR or a Competitive Program shall in turn be offered each Potential Qualifying Loan investment opportunity. The foregoing rotation process shall apply regardless of the number of applicable Competitive Programs, such that each has a fair and equitable opportunity, in an orderly and consistent rotation, to evaluate an applicable Potential Qualifying Loan. The foregoing notwithstanding, if the party next-in-line declines a Potential Qualifying Loan, then such Potential Qualifying Loan shall be presented to the next-in-line after the declining party, provided, that the failure by CMR or any Competitive Program to accept a Potential Qualifying Loan shall not affect its right to be offered any future Potential Qualifying Loan in accordance with the rotation process described in this Paragraph J (it being understood that CMR or a Competitive Program that declines to accept a Potential Qualifying Loan goes to the end of the rotation line behind all other applicable rotating parties). Parent’s investment committee shall allocate Mortgage Loan investment opportunities among CMR and all other Competitive Programs first, in accordance with the investment criteria that is best satisfied by the Mortgage Loan and second, pursuant to the foregoing rotation policy. To the extent that any investment opportunity does not satisfy CMR’s investment criteria, such investment opportunity shall not be subject to the rotation process described in this Paragraph J and Ignite may present such Mortgage Loan investment opportunity to any other Competitive Programs without presenting it to CMR.

Funding Process. A. Ignite CMCS shall continue to originate Mortgage Loans in accordance with its historical practices. Ignite CMCS shall send a weekly report (a “Mortgage Loan Report”) to CMR presenting in reasonable detail Mortgage Loans identified by Ignite CMCS and that Ignite CMCS believes satisfy the investment criteria of CMR and are appropriate for investment by CMR (each, a “Potential Qualifying Loan”). CMR shall then have a period of two (2) business days from the date of such notice (an “Initial Election Period”) to elect to fund all or a portion of those Potential Qualifying Loans by delivering written notice to Ignite CMCS (each, a “Preliminary Funding Notice”). Each Preliminary Funding Notice shall constitute an offer by CMR to fund all or the specified portion of each Potential Qualifying Loan listed in such Preliminary Funding Notice upon the terms and conditions set forth in the Mortgage Loan Report as modified by any requested changes set forth in such Preliminary Funding Notice, with such changes thereto as CMR shall deem appropriate for its funding thereof. If CMR fails to deliver a Preliminary Funding Notice to Ignite CMCS prior to the expiration of the Initial Election Period, or if the Preliminary Funding Notices delivered by CMR does not include all of the Potential Qualifying Loans listed on the Mortgage Loan Report, then Ignite CMCS may arrange for the funding of all or any such portion, as the case may be, of the remaining Potential Qualifying Loans set forth in the applicable Mortgage Loan Report that were not selected by CMR through one or more other investment programs sponsored by Parent (each, a “Competitive Program”) or third parties. B. No later than two (2) business days after its receipt of a Preliminary Funding Notice (an “Election Period”), Ignite CMCS may elect to accept any changes set forth in the applicable Preliminary Funding Notice that CMR requests be made to the terms of any Potential Qualifying Loan listed in such Preliminary Funding Notice. If Ignite CMCS rejects any of the modified terms requested by CMR, it may withdraw from the Preliminary Funding Notices each Potential Qualifying Loan with respect to which modified terms were requested and shall permit CMR to fund all or the specified portion of any remaining Potential Qualifying Loans listed on the Preliminary Funding Notices. If Ignite CMCS agrees to all modified terms requested by CMR in a Preliminary Funding Notice, then Ignite CMCS shall permit CMR to fund all or the specified portion of the Potential Qualifying Loan listed in the Preliminary Funding Notice upon the modified terms requested by CMR. C. Ignite CMCS may freely arrange for the funding of any Potential Qualifying Loan that was set forth in a Mortgage Loan Report or portion thereof that CMR did not elect to fund or as to which any modified terms set forth in the Preliminary Funding Notice were not accepted by IgniteCMCS. D. For any and all Mortgage Loans that CMR should choose to fund, as soon as available following the delivery of a Preliminary Funding Notice, Ignite CMCS shall deliver to CMR the due diligence materials, reports and documents described in Attachment “B” hereto (the “Specified Materials”) relating to the Mortgage Loan to be funded, participated in or purchased by CMR then in the possession of IgniteCMCS. Upon receipt of all Specified Materials, CMR shall have three (3) business days to review and approve or object in writing to the Specified Materials received. In addition, Ignite CMCS shall provide CMR with any additional documents and other information that CMR may reasonably request with respect to any Mortgage Loan to be funded by CMR hereunder. It shall be a condition to the obligation of CMR to fund any Mortgage Loan at a Closing (hereinafter defined) that Ignite CMCS shall have timely provided to CMR all of the Specified Materials (and any other documents and other information reasonably requested by CMR). In the event that with respect to any Mortgage Loan, (i) CMR does not approve the Specified Materials initially delivered to CMR, or (ii) the Specified Materials received by CMR thereafter do not support or conform to the representations and description of the Mortgage Loan provided by Ignite CMCS to CMR in the Mortgage Loan Report, including, without limitation, the borrower, loan amount, collateral type, ownership, appraised value, lien priority and environmental condition, CMR shall have no obligation to fund such Mortgage Loan at a Closing. E. Each closing of a funding of a Mortgage Loan by CMR hereunder (each, a “Closing”) shall take place at the principal offices of CMR, at the address specified in Article XII hereof, on the business day specified as the closing date for the applicable Mortgage Loan in the applicable Mortgage Loan Report. At each Closing, Ignite CMCS shall arrange for the execution and delivery to CMR of a standard set of investment documents, in form and substance reasonably acceptable to CMR (and shall provide CMR with customary representations and warranties as well as adequate assurances that such Mortgage Loans are valid and enforceable obligations of the respective borrowers and that no default, event of default, or similar event has occurred of which Ignite Consolidate Mortgage could reasonably be expected to be aware with respect to such Mortgage Loans). At each Closing, unless otherwise agreed upon by the parties, CMR shall fund all or the specified portion of each Mortgage Loan in the applicable amount payable in immediately available funds. F. CMR may, at its election, request periodic accounting and other financial records from Ignite CMCS that demonstrate its compliance with this Agreement. Any proprietary information and associated products, copyrights, trademarks and logos developed by parties to this Agreement shall remain the property of the party which developed them. G. Each party hereto shall, in a professional manner, take all steps reasonably necessary to perform its duties hereunder. H. In addition to the other matters set forth in this Article I, the parties agree to the covenants and other matters set forth in Attachment “A” hereto, which are incorporated by reference as if fully set forth herein. I. As promptly as possible but in any event within thirty (30) days (or such later date as the parties may agree) after (i) any person or entity engaged in the business of originating or brokering commercial loans becomes an Affiliate (as defined in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act of 1934, as amended) of Parent and/or IgniteCMCS, or (ii) any Affiliate of Parent and/or Ignite CMCS becomes engaged in the business of originating or brokering commercial loans, Parent shall provide CMR with written notice thereof setting forth information in reasonable detail describing the business of such person or entity and shall, if requested by CMR, within thirty (30) days after the date of such notice, cause each such person or entity to deliver to CMR a joinder agreement in form and substance reasonably acceptable to CMR pursuant to which such person or entity becomes a party to and agrees to be bound by the terms and provisions of this Agreement. J. Subject to the rotation process described in this Paragraph J, each investment opportunity in a Potential Qualifying Loan will be offered by Ignite CMCS to CMR, to the extent that CMR then has available capital in an amount sufficient to allow CMR to participate in such investment opportunity. Ignite CMCS may also offer certain Mortgage Loans it has identified as satisfying the investment criteria of a Competitive Program and appropriate for investment by such Competitive Program to such Competitive Program to the extent that such Competitive Program then has sufficient funds to allow the Competitive Program to participate in such Mortgage Loans. However, if the Parent’s investment committee determines that any Potential Qualifying Loan satisfies the investment criteria of CMR and one or more Competitive Programs and CMR and each such Competitive Program then has sufficient capital to invest in such Potential Qualifying Loan, then each such Potential Qualifying Loan, shall be subject to a rotation process that gives CMR and all applicable Competitive Programs sequential opportunities to be presented and acquire Potential Qualifying Loans. This rotation process shall continue such that CMR or a Competitive Program shall in turn be offered each Potential Qualifying Loan investment opportunity. The foregoing rotation process shall apply regardless of the number of applicable Competitive Programs, such that each has a fair and equitable opportunity, in an orderly and consistent rotation, to evaluate an applicable Potential Qualifying Loan. The foregoing notwithstanding, if the party next-in-line declines a Potential Qualifying Loan, then such Potential Qualifying Loan shall be presented to the next-in-line after the declining party, provided, that the failure by CMR or any Competitive Program to accept a Potential Qualifying Loan shall not affect its right to be offered any future Potential Qualifying Loan in accordance with the rotation process described in this Paragraph J (it being understood that CMR or a Competitive Program that declines to accept a Potential Qualifying Loan goes to the end of the rotation line behind all other applicable rotating parties). Parent’s investment committee shall allocate Mortgage Loan investment opportunities among CMR and all other Competitive Programs first, in accordance with the investment criteria that is best satisfied by the Mortgage Loan and second, pursuant to the foregoing rotation policy. To the extent that any investment opportunity does not satisfy CMR’s investment criteria, such investment opportunity shall not be subject to the rotation process described in this Paragraph J and Ignite CMCS may present such Mortgage Loan investment opportunity to any other Competitive Programs without presenting it to CMR.