Precautionary Security Interest. Without prejudice to the provisions of Section 9.1 and the expressed intent of the parties, in the event that, for any reason, any transaction hereunder concerning a Mortgage Loan is construed by any Regulatory Authority as a borrowing or financing, rather than a true sale and absolute conveyance of the Mortgage Loan, Seller and MBF intend and agree that MBF shall have a perfected first priority security interest in such Mortgage Loan purchased hereunder and in all Mortgage-backed Securities and Participation Certificates created on the basis of such Mortgage Loan. In such case, Seller shall be deemed to have hereby granted to MBF (and possession of any promissory notes, instruments, documents, securities and certificates by Seller or any Successor Servicer as servicer shall constitute possession on behalf of MBF for this purpose) a security interest in and lien upon the Mortgage Loan, the Mortgage Note, any applicable Takeout Commitment (to the extent assignable by Seller), any related Mortgage-backed Security or Participation Certificate, all servicing rights and other rights and privileges appurtenant thereto, the Custodial Account, and all proceeds of any and all of the foregoing. In such an event, Seller agrees that such security interest shall be of first priority and shall be free and clear of adverse claims, liens and interests. In such event, this Agreement shall constitute a security agreement, and MBF shall have all of the rights of a secured party under applicable law. Without prejudice to the provisions of Section 9.1 and the expressed intent of the parties, and merely as a precaution in the event that any transaction hereunder may be so construed, Seller authorizes MBF to file a financing statement for the above-described collateral. At MBF’s request, Seller and MBF will enter into a precautionary control agreement with the depository Eligible Bank with respect to the Custodial Account. Seller will also deliver possession of Mortgage Securities to MBF, will register all Mortgage Securities in MBF’s name by book entries, and will take such other actions to perfect its precautionary security interest as MBF requests.
Appears in 1 contract
Samples: Multifamily and Health Care Mortgage Loan Repurchase Agreement (Municipal Mortgage & Equity LLC)
Precautionary Security Interest. Without prejudice (a) Except as provided in Section 27(e) (for U.S. federal, state and local income tax purposes), Buyer and Sellers intend that all Transactions hereunder be one or more sales or other absolute Conveyances to Buyer of the Purchased Loans and not a loan or loans from Buyer to any Seller secured by the Purchased Loan. However to protect and preserve Buyer’s rights with respect to the provisions of Section 9.1 and Purchased Loan, including any Conveyance thereof pursuant to the expressed intent of the partiesLoan Documents, in the event that, for any reason, any transaction hereunder concerning a Mortgage Loan such Transaction is construed by any Regulatory Authority as a borrowing or financing, rather deemed to be other than a true sale or other absolute Conveyance, each Seller hereby pledges all of its right, title, and absolute conveyance of the Mortgage Loaninterest in, Seller to and MBF intend under and agree that MBF shall have grants a perfected first priority security interest in such Mortgage Loan purchased hereunder lien on, and in all Mortgage-backed Securities and Participation Certificates created on the basis of such Mortgage Loan. In such case, Seller shall be deemed to have hereby granted to MBF (and possession of any promissory notes, instruments, documents, securities and certificates by Seller or any Successor Servicer as servicer shall constitute possession on behalf of MBF for this purpose) a security interest in and lien upon right of set-off against, all of the Mortgage Loanfollowing property of such Seller and any and all interests of such Seller therein, whether now owned or hereafter acquired, now existing or hereafter created and wherever located (collectively, all of the Sellers’ property described in this Article 7, together with the Cash Management Account, the Mortgage Note“Collateral”) to Buyer to secure the payment and performance of all amounts or obligations owing to Buyer pursuant to this Agreement and the other Transaction Documents (including the obligation of such Seller to pay the Repurchase Price, or if the Transactions are recharacterized as loans, to repay such loans for the Repurchase Price):
(i) the Purchased Loans and the Loan Documents and the Loan File related thereto, including all files, documents, instruments, certificates, correspondence, appraisals, computer programs, computer storage media, accounting records and other books and records relating thereto, all Servicing Rights, all “securities accounts” (as defined in Section 8-501 (a) of the UCC) to which any applicable Takeout Commitment or all of the Purchased Loan or any proceeds that are credited and all “securities entitlements” (as defined in Section 8-102(a)(17) of the UCC) therein;
(ii) any Servicing Agreements, Servicing Records, insurance relating to the extent assignable by Purchased Loans, the Cash Management Account and all “deposit accounts” (as defined in the UCC, including, collection and escrow accounts) and securities accounts relating to the Purchased Loans;
(iii) all of such Seller’s right, title and interest in, to and under the applicable Loan Documents;
(iv) all Hedging Transactions to which such Seller is a party and all agreements, instruments and other documents evidencing and/or securing all Hedging Transactions;
(v) all “general intangibles” (including “payment intangibles”), any related Mortgage-backed Security “accounts,” “chattel paper,” “investment property,” “documents” and “instruments” as defined in the UCC relating to or Participation Certificate, all servicing rights and other rights and privileges appurtenant thereto, the Custodial Account, and all proceeds of constituting any and all of the foregoing. In such an event;
(vi) all “supporting obligations” and “letter of credit rights” as defined in the UCC relating to or constituting any and all of the foregoing; and
(vii) all replacements, substitutions or distributions on or proceeds, payments, Income and profits of, tort claims, insurance claims and other rights to payments, and records (but excluding any financial models or other proprietary information) and files relating to any and all of any of the foregoing.
(b) Each Seller agrees that such hereby pledges all of its right, title, and interest in, to and under and grants a first priority lien on, and security interest in and right of set-off against, all of its right, title and interest, in, to and under the Cash Management Account, to Buyer Agent for the benefit of Buyer to secure the payment and performance of all amounts or obligations owing to Buyer pursuant to this Agreement, each of the Transactions and the other Transaction Documents (including the obligation of such Seller to pay the Repurchase Price, or if the Transactions are recharacterized as loans, to repay such loans for the Repurchase Price).
(c) Buyer Agent’s security interest in a Purchased Loan, or the Collateral as a whole, shall be terminate only upon (i) in the case of first priority an individual Purchased Loan, the repurchase or other release thereof in accordance with the terms of this Agreement and shall be free (ii) in the case of the Collateral as a whole, the repayment in full of all amounts payable to Buyer Agent and clear Buyer and termination of adverse claims, liens Sellers’ obligations under this Agreement and intereststhe documents delivered in connection herewith and therewith. In such eventFor purposes of the grant of the security interest pursuant to this Article 7, this Agreement shall be deemed to constitute a security agreementagreement under the New York Uniform Commercial Code (the “UCC”) and the Uniform Commercial Code as in effect in any other applicable jurisdiction. In furtherance of the foregoing, (a) each Seller, at its sole cost and expense, shall cause to be filed in such locations as may be necessary to perfect and maintain perfection and priority of the security interest granted hereby, UCC financing statements and continuation statements (collectively, the “Filings”), and MBF shall forward copies of such Filings to Buyer upon completion thereof, (b) each Seller shall from time to time take such further actions as may be reasonably requested by Buyer to maintain and continue the perfection and priority of the security interest granted hereby (including marking its records and files to evidence the interests granted to Buyer hereunder), it being agreed that such Seller shall pay any and all fees required in connection therewith, and (c) each Seller hereby authorizes Buyer, at such Seller’s cost and expense, to prepare and file any and all Filings, which such Filings may include a collateral description of “all assets of the debtor” or a similarly generic collateral description. In addition, each Seller hereby authorizes Buyer to make Filings, at the sole cost and expense of such Seller, in such locations as Buyer may determine to be necessary or advisable to perfect and maintain priority of the security interest granted hereby. Seller 3 shall register the details of the security interests granted under this Agreement and the Deposit Account Control Agreement in its register of mortgages and charges maintained at its registered office in the Cayman Islands.
(d) If any Event of Default occurs and is continuing, (a) Buyer shall have all of the rights and remedies provided to a secured party by Requirements of Law (including the rights and remedies of a secured party under applicable law. Without the UCC and the right to set off any mutual debt and claim) and under any other agreement between Buyer and any Seller, (b) without limiting the generality of the foregoing, Buyer shall be entitled to set off the proceeds of the liquidation of the Purchased Loans against all of the Facility Obligations, without prejudice to the provisions of Section 9.1 and the expressed intent of the parties, and merely as a precaution in the event that Buyer’s right to recover any transaction hereunder may be so construed, Seller authorizes MBF to file a financing statement for the above-described collateral. At MBF’s request, Seller and MBF will enter into a precautionary control agreement with the depository Eligible Bank with respect to the Custodial Account. Seller will also deliver possession of Mortgage Securities to MBF, will register all Mortgage Securities in MBF’s name by book entries, and will take such other actions to perfect its precautionary security interest as MBF requests.deficiency,
Appears in 1 contract
Samples: Master Repurchase and Securities Contract (Starwood Property Trust, Inc.)
Precautionary Security Interest. Without prejudice (a) Buyer and Seller intend that all Transactions hereunder be one or more sales or other absolute Conveyances to Buyer of the Purchased Mortgage Loans and not a loan or loans from Buyer to Seller secured by the Purchased Mortgage Loan. However to protect and preserve Buyer’s rights with respect to the provisions of Section 9.1 and Purchased Mortgage Loan, including any Conveyance thereof pursuant to the expressed intent of the partiesMortgage Loan Purchase Documents, in the event that, for any reason, any transaction hereunder concerning a Mortgage Loan such Transaction is construed by any Regulatory Authority as a borrowing or financing, rather deemed to be other than a true sale and or other absolute conveyance of the Mortgage LoanConveyance, Seller hereby pledges all of its right, title, and MBF intend interest in, to and agree that MBF shall have under and grants a perfected first priority security interest in such Mortgage Loan purchased hereunder lien on, and in all Mortgage-backed Securities and Participation Certificates created on the basis of such Mortgage Loan. In such case, Seller shall be deemed to have hereby granted to MBF (and possession of any promissory notes, instruments, documents, securities and certificates by Seller or any Successor Servicer as servicer shall constitute possession on behalf of MBF for this purpose) a security interest in and lien upon right of set-off against, all of the Seller’s right, title and interest in and to all Purchased Mortgage LoanLoans, including, without limitation, the following property below and any and all interests of Seller therein, whether now owned or hereafter acquired, now existing or hereafter created and wherever located (collectively, together with the Cash Management, the “Collateral”) to Buyer to secure the payment and performance of all amounts or obligations owing to Buyer pursuant to this Agreement, each of the Transactions and the Transaction Documents (including the obligation of Seller to pay the Repurchase Price, or if the Transactions are recharacterized as loans, to repay such loans for the Repurchase Price):
(i) the Purchased Mortgage Loans, the Mortgage NoteLoan Documents, the Mortgage Loan File, including all files, documents, instruments, surveys, certificates, correspondence, appraisals, computer programs, computer storage media, accounting records and other books and records relating thereto, all Servicing Rights, all “securities accounts” (as defined in Section 8-501 (a) of the UCC) to which any applicable Takeout Commitment or all of the Purchased Mortgage Loan or any proceeds that are credited and all “securities entitlements” (as defined in Section 8-102(a)(17) of the UCC) therein;
(ii) the Servicing Agreements, Servicing Records, insurance relating to the extent assignable by Seller), any related Mortgage-backed Security or Participation Certificate, all servicing rights and other rights and privileges appurtenant thereto, the Custodial AccountPurchased Mortgage Loans, and all proceeds “deposit accounts” (as defined in the UCC, including, without limitation, collection and escrow accounts) and securities accounts relating to the Purchased Mortgage Loans;
(iii) all of Seller’s right, title and interest in, to and under the Transaction Documents and Mortgage Loan Purchase Documents related to the Purchased Mortgage Loans;
(iv) all Hedging Transactions and all agreements, instruments and other documents evidencing and/or securing all Hedging Transactions related to the Purchased Mortgage Loans;
(v) all “general intangibles” (including without limitation “payment intangibles”), “accounts,” “chattel paper,” “investment property,” “documents” and “instruments” as defined in the UCC relating to or constituting any and all of the foregoing. In such an event;
(vi) all “supporting obligations” and “letter of credit rights” as defined in the UCC relating to or constituting any and all of the foregoing; and
(vii) all replacements, substitutions or distributions on or proceeds, payments, Income and profits of, tort claims, insurance claims and other rights to payments, and records (but excluding any financial models or other proprietary information) and files relating to any and all of any of the foregoing.
(b) Seller agrees that such hereby pledges all of its right, title, and interest in, to and under and grants a first priority lien on, and security interest in and right of set-off against, all of its right, title and interest, in, to and under the Cash Management Account, to Buyer to secure the payment and performance of all amounts or obligations owing to Buyer pursuant to this Agreement, each of the Transactions and the Transaction Documents (including the obligation of Seller to pay the Repurchase Price, or if the Transactions are recharacterized as loans, to repay such loans for the Repurchase Price).
(c) Buyer’s security interest in a Purchased Mortgage Loan, or the Collateral as a whole, shall be terminate only upon (i) in the case of first priority an individual Purchased Mortgage Loan, the repurchase thereof in accordance with the terms of this Agreement and shall be free (ii) in the case of the Collateral as a whole, the repayment in full of all amounts payable to Buyer and clear termination of adverse claims, liens Seller’s obligations under this Agreement and intereststhe documents delivered in connection herewith and therewith. In such eventFor purposes of the grant of the security interest pursuant to this Article 6, this Agreement shall be deemed to constitute a security agreementagreement under the New York Uniform Commercial Code (the “UCC”) and the Uniform Commercial Code as in effect in any other applicable jurisdiction. In furtherance of the foregoing, (a) Seller, at its sole cost and expense, shall cause to be filed in such locations as may be necessary to perfect and maintain perfection and priority of the security interest granted hereby, UCC financing statements and continuation statements (collectively, the “Filings”), and MBF shall forward copies of such Filings to Buyer upon completion thereof, (b) Seller shall from time to time take such further actions as may be reasonably requested by Buyer to maintain and continue the perfection and priority of the security interest granted hereby (including marking its records and files to evidence the interests granted to Buyer hereunder), it being agreed that Seller shall pay any and all fees required in connection therewith, and (c) Seller hereby authorizes Buyer, at Seller’s cost and expense, to prepare and file any and all Filings, which such Filings may include a collateral description of “all assets of the debtor” or a similarly generic collateral description. In addition, Seller hereby authorizes Buyer to make Filings, at the sole cost and expense of Seller, in such locations as Buyer may determine to be necessary or advisable to perfect and maintain priority of the security interest granted hereby.
(d) If any circumstance described in this Article 6 occurs, (a) Buyer shall have all of the rights and remedies provided to a secured party by Requirements of Law (including the rights and remedies of a secured party under applicable law. Without the UCC and the right to set off any mutual debt and claim) and under any other agreement between Buyer and Seller, (b) without limiting the generality of the foregoing, Buyer shall be entitled to set off the proceeds of the liquidation of the Purchased Mortgage Loans against all of the Facility Obligations, without prejudice to Buyer’s right to recover any deficiency, (d) the provisions possession by Buyer or any of Section 9.1 and the expressed intent its agents, including Custodian, of the partiesMortgage Loan Documents, the Purchased Mortgage Loans and such other items of property as constitute instruments, money, negotiable documents, securities or chattel paper shall be deemed to be possession by the secured party for purposes of perfecting such security interest under the UCC and Requirements of Law, and merely as a precaution in (e) notifications to Persons (other than Buyer) holding such property, and acknowledgments, receipts or confirmations from Persons (other than Buyer) holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents of the event that any transaction hereunder may be so construed, Seller authorizes MBF to file a financing statement secured party for the above-described collateralpurpose of perfecting such security interest under the UCC and Requirements of Law. At MBF’s requestThe assignment, pledge and grant of security interest contained herein shall be, and Seller hereby represents and MBF will enter into warrants to Buyer that it is, a precautionary control agreement with first priority perfected security interest. For the depository Eligible Bank avoidance of doubt, (x) each Purchased Mortgage Loan secures the Facility Obligations with respect to all other Transactions and all other Purchased Mortgage Loans, including any Purchased Mortgage Loans that are junior in priority to the Custodial AccountPurchased Mortgage Loan in question, and (y) if an Event of Default exists, no Purchased Mortgage Loans relating to a Purchased Mortgage Loans will be released from Buyer’s lien or transferred to Seller until the Facility Obligations are indefeasibly paid in full (unless required by the terms of the Mortgage Loan Documents). Notwithstanding the foregoing, the Facility Obligations shall be full recourse to Seller.
(e) The grant of a security interest under this Article 6 shall not constitute or result in the creation or assumption by Buyer of any obligation of Seller or any other Person in connection with any of the Purchased Mortgage Loans, whether or not Buyer exercises any right with respect thereto. Seller shall remain liable under the Purchased Mortgage Loans and Mortgage Loan Documents to perform all of Seller’s duties and obligations thereunder to the same extent as if the Transaction Documents had not been executed. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, upon Buyer’s exercise of remedies pursuant to Section 14(iii) of this Agreement following an Event of Default, Buyer will also deliver be deemed to have simultaneously assumed all of Seller’s obligations under the Purchased Mortgage Loans.
(f) Seller agrees, to the extent permitted by Requirements of Law, that neither it nor anyone claiming through or under it will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption law now or hereafter in force in any locality where the Purchased Mortgage Loan or any Mortgaged Property may be situated in order to prevent, hinder or delay the enforcement or foreclosure of this Agreement, or the absolute sale of any of the Purchased Mortgage Loans, or the final and absolute putting into possession thereof, immediately after such sale, of Mortgage Securities to MBF, will register all Mortgage Securities in MBF’s name by book entriesthe purchasers thereof, and will take Seller, for itself and all who may at any time claim through or under it, hereby waives, to the full extent that it may be lawful so to do, the benefit of all such other actions laws and any and all right to perfect its precautionary have any of the properties or assets constituting the Purchased Mortgage Loans marshaled upon any such sale, and agrees that Buyer or any court having jurisdiction to foreclose the security interest interests granted in this Agreement may sell the Purchased Mortgage Loans as MBF requestsan entirety or in such parcels as Buyer or such court may determine.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract (TPG RE Finance Trust, Inc.)
Precautionary Security Interest. Without prejudice to the provisions of Section 9.1 and the expressed intent of the parties, in the event that, for any reason, any transaction hereunder concerning a Mortgage Purchased Loan is construed by any Regulatory Authority as a borrowing or financing, rather than a true sale and absolute conveyance of the Mortgage Purchased Loan, Seller and MBF Buyer intend and agree that MBF Buyer shall have a perfected first priority security interest in such Mortgage Purchased Loan purchased hereunder and in all Mortgage-backed Securities and Participation Certificates created on the basis of such Mortgage Loanhereunder. In such case, Seller shall be deemed to have hereby granted to MBF Buyer (and possession of any promissory notes, instruments, documents, securities and certificates instruments or documents by Seller or any Successor Servicer as servicer shall constitute possession on behalf of MBF Buyer for this purpose) a first priority security interest in and lien upon upon: (i) the Mortgage LoanPurchased Loan and the Servicing Rights related thereto, (ii) the Mortgage Note, and all other documents comprising the Credit File, the Wet Funding Documents Package or the Dry Funding Documents Package, as applicable, (iii) the Servicing File and Servicing Records, (iv) and all rights of Seller to receive from any third party or to take delivery of any such documents which constitute a part of the Credit File, the Wet Funding Documents Package or the Dry Funding Documents Package, as applicable, Servicing Records or Servicing File, (v) any applicable Takeout Commitment and any purchase agreements or other agreements, contracts or take-out commitments relating to or constituting any or all of the foregoing and all rights to receive documentation relating thereto, (vi) all related Income, (vii) all mortgage guaranties and insurance (issued by governmental agencies or otherwise) and any mortgage insurance certificate or other document evidencing such mortgage guaranties or insurance relating to any Purchased Loans and all claims and payments thereunder and all rights of Seller to receive from any third party or to take delivery of any of the extent assignable by Seller)foregoing, (viii) all other insurance policies and proceeds and all rights of Seller to receive from any related Mortgage-backed Security third party or Participation Certificateto take delivery of any of the foregoing, (ix) all servicing rights and other rights and privileges appurtenant theretocollateral pledged to secure the Purchased Loan, the Custodial AccountAccount and all amounts on deposit therein, (x) all “accounts”, “chattel paper”, “commercial tort claims”, “deposit accounts”, “documents,” “equipment”, “general intangibles”, “goods”, “instruments” , “inventory”, “investment property”, “letter of credit rights”, and “securities” accounts” as each of those terms is defined in the UCC, (xii) all cash and Cash Equivalents and all products and proceeds relating to or constituting any or all of the foregoing, and (xii) any and all replacements, substitutions, distributions on or proceeds of any or all of the foregoing and all proceeds of any and all of the foregoing (the “Purchased Assets”). Seller shall also be deemed to have granted to Buyer a first priority security interest in and lien upon all Hedging Arrangements applicable to such Purchased Loan, all accounts in which those Hedging Arrangements are held, all rights to payments arising under such Hedging Arrangements, and all proceeds of any of the foregoing, except that this security interest shall apply only to rights and benefits, including rights to payments, related to that Purchased Loan. In such an event, Seller agrees that such security interest shall be of first priority and shall be free and clear of adverse claims, liens and interests. In such event, this Agreement shall constitute a security agreement, and MBF Buyer shall have all of the rights of a secured party under applicable law. Without prejudice to the provisions of Section 9.1 and the expressed intent of the parties, and merely as a precaution in the event that any transaction hereunder may be so construed, Seller authorizes MBF Buyer to file a financing statement for the above-described collateral. At MBF’s request, Seller and MBF will enter into The foregoing provisions are intended to constitute a precautionary control security agreement with the depository Eligible Bank with respect or other arrangement or other credit enhancement related to the Custodial Account. Seller will also deliver possession Agreement and the transactions hereunder as defined under Sections 101(47)(v) and 741(7)(x) of Mortgage Securities to MBF, will register all Mortgage Securities in MBF’s name by book entries, and will take such other actions to perfect its precautionary security interest as MBF requestsTitle 11 of the USC.
Appears in 1 contract
Precautionary Security Interest. Without prejudice (a) Buyer and Seller intend that each Transaction hereunder be a sale or other absolute Conveyance to Buyer of the applicable Purchased Assets and not loans from Buyer to Seller secured by such Purchased Assets. However, to protect and preserve Buyer’s rights with respect to the provisions of Section 9.1 and Purchased Assets, including any Conveyance thereof pursuant to the expressed intent of the partiesrelated Mortgage Loan Purchase Documents, in the event that, for any reason, any transaction hereunder concerning a Mortgage Loan such Transaction is construed by any Regulatory Authority as a borrowing or financing, rather deemed to be other than a true sale and or other absolute conveyance of the Mortgage LoanConveyance, Seller hereby pledges all of its right, title, and MBF intend interest in, to and agree that MBF shall have under and grants a perfected first priority lien on, and security interest in such and right of set-off against the property set forth in sub-clauses (i) – (vii) below and any and all interests of Seller therein, whether now owned or hereafter acquired, now existing or hereafter created and wherever located (collectively, the “Collateral”) to Buyer to secure the payment and performance of the Facility Obligations:
(i) The Mortgage Notes, the Purchased Assets, the Purchased Asset Documents, all Servicing Rights, all “securities accounts” (as defined in Section 8-501 (a) of the UCC) to which any or all of the Purchased Assets or any proceeds thereof are credited and all “securities entitlements” (as defined in Section 8-102(a)(17) of the UCC) therein;
(ii) the Servicing Agreements, Servicing Records, insurance relating to the Purchased Assets, and all “deposit accounts” (as defined in Section 9-102(a)(29) of the UCC, including, without limitation, collection and escrow accounts) and securities accounts relating to the Purchased Assets;
(iii) all of Seller’s right, title and interest in, to and under the Transaction Documents and the Mortgage Loan purchased hereunder Purchase Documents;
(iv) all Hedging Transactions and all agreements, instruments and other documents evidencing and/or securing all Hedging Transactions;
(v) all “general intangibles” (including without limitation “payment intangibles”), “accounts,” “chattel paper,” “investment property,” “documents” and “instruments” as defined in the UCC relating to or constituting any and all Mortgage-backed Securities of the foregoing;
(vi) all “supporting obligations” and Participation Certificates created “letter of credit rights” as defined in the UCC relating to or constituting any and all of the foregoing; and
(vii) all replacements, substitutions or distributions on or proceeds, payments, Income and profits of, tort claims, insurance claims and other rights to payments, and records (but excluding any financial models or other proprietary information) and files relating to any and all of any of the basis foregoing.
(b) Without limiting Section 6(a), to secure payment of such Mortgage Loan. In such casethe Facility Obligations owing to Buyer, Seller shall be deemed hereby grants to have hereby granted to MBF (and possession of any promissory notes, instruments, documents, securities and certificates by Seller or any Successor Servicer as servicer shall constitute possession on behalf of MBF for this purpose) Buyer a security interest in all of Seller’s right, title and lien upon interest in, to and under each of the Mortgage Loanfollowing items of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located:
(i) the Funding Account, the Mortgage NoteCash Management Account and any subaccount thereof and all financial assets (including, any applicable Takeout Commitment (without limitation, all securities entitlements with respect to all financial assets) from time to time on deposit in or credited to the extent assignable by Seller), Funding Account or Cash Management Account; and
(ii) any related Mortgage-backed Security or Participation Certificate, all servicing rights and other rights and privileges appurtenant thereto, the Custodial Account, and all replacements, substitutions, distributions on, income relating to or proceeds of any and all of the foregoing. In such an event, Seller agrees that such .
(c) Buyer’s security interest in a Purchased Asset, or the Collateral as a whole, shall be terminate only upon (i) in the case of first priority an individual Purchased Asset, the repurchase thereof in accordance with the terms of this Agreement and shall be free (ii) in the case of the Collateral as a whole, the repayment in full of all amounts payable to Buyer and clear termination of adverse claims, liens Seller’s obligations under this Agreement and intereststhe documents delivered in connection herewith and therewith. In such eventFor purposes of the grant of the security interest pursuant to this Section 6, this Agreement shall be deemed to constitute a security agreementagreement under the New York Uniform Commercial Code (the “UCC”) and the Uniform Commercial Code as in effect in any other applicable jurisdiction. In furtherance of the foregoing, (a) Seller, at its sole cost and expense, shall cause to be filed in such locations as may be necessary to perfect and maintain perfection and priority of the security interest granted hereby, UCC financing statements and continuation statements (collectively, the “Filings”), and MBF shall forward copies of such Filings to Buyer upon completion thereof, (b) Seller shall from time to time take such further actions as may be reasonably requested by Buyer to maintain and continue the perfection and priority of the security interest granted hereby (including marking its records and files to evidence the interests granted to Buyer hereunder), it being agreed that Seller shall pay any and all fees required in connection therewith, and (c) Seller hereby authorizes Buyer, at Seller’s cost and expense, to prepare and file any and all Filings, which such Filings may include a specific collateral description (not an “all assets of the debtor” description) or a similarly generic collateral description. In addition, Seller hereby authorizes Buyer to make Filings, at the sole cost and expense of Seller, in such locations as Buyer may determine to be reasonably necessary or advisable to perfect and maintain priority of the security interest granted hereby.
(d) If any Transaction is deemed to be other than a sale or other absolute Conveyance, (i) Buyer shall have all of the rights and remedies provided to a secured party by Requirements of Law (including the rights and remedies of a secured party under applicable law. Without the UCC and the right to set off any mutual debt and claim) and under any other agreement between Buyer and Seller, (ii) without limiting the generality of the foregoing, Buyer shall be entitled to set off the proceeds of the liquidation of the Purchased Assets against all of the Facility Obligations, without prejudice to Buyer’s right to recover any deficiency, (iii) the provisions possession by Buyer or any of Section 9.1 and the expressed intent its agents, including Custodian, of the partiesPurchased Asset Documents, the Purchased Assets and such other items of property as constitute instruments, money, negotiable documents, securities or chattel paper shall be deemed to be possession by the secured party for purposes of perfecting such security interest under the UCC and Requirements of Law, and merely as a precaution in (iv) notifications to Persons (other than Buyer) holding such property, and acknowledgments, receipts or confirmations from Persons (other than Buyer) holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents of the event that any transaction hereunder may be so construed, Seller authorizes MBF to file a financing statement secured party for the above-described collateralpurpose of perfecting such security interest under the UCC and Requirements of Law. At MBF’s requestFor the avoidance of doubt, Seller and MBF will enter into a precautionary control agreement with (x) each Purchased Asset secures the depository Eligible Bank Facility Obligations with respect to all other Transactions and all other Purchased Assets, including any Purchased Assets that are junior in priority to the Custodial AccountPurchased Asset in question, and (y) if an Event of Default exists, no Purchased Assets relating to a Purchased Assets will be released from Buyer’s lien or transferred to Seller until the Facility Obligations are indefeasibly paid in full. Notwithstanding the foregoing, the Facility Obligations shall be full recourse to Seller.
(e) The grant of a security interest under this Article 6 shall not constitute or result in the creation or assumption by Buyer of any obligation of Seller or any other Person in connection with any Purchased Assets, whether or not Buyer exercises any right with respect thereto. Seller shall remain liable under the Purchased Assets and Purchased Asset Documents to perform all of Seller’s duties and obligations thereunder to the same extent as if the Transaction Documents had not been executed.
(f) Seller agrees, to the extent permitted by Requirements of Law, that neither it nor anyone claiming through or under it will also deliver set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption law now or hereafter in force in any locality where any Purchased Assets may be situated in order to prevent, hinder or delay the enforcement of this Agreement or foreclosure of any security interest hereunder, or the absolute sale of any of the Purchased Assets, or the final and absolute putting into possession thereof, immediately after such sale, of Mortgage Securities to MBF, will register all Mortgage Securities in MBF’s name by book entriesthe purchasers thereof, and will take Seller, for itself and all who may at any time claim through or under it, hereby waives, to the full extent that it may be lawful so to do, the benefit of all such other actions laws and any and all right to perfect its precautionary have any of the properties or assets constituting the Purchased Assets marshaled upon any such sale, and agrees that Buyer or any court having jurisdiction to foreclose the security interest interests granted in this Agreement may sell the Purchased Assets as MBF requestsan entirety or in such parcels as Buyer or such court may determine.
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Samples: Master Repurchase and Securities Contract (Benefit Street Partners Realty Trust, Inc.)
