Senior Participations. With respect to each Purchased Asset that is a Participation Interest: (i) either (A) the Participation Interest is treated as a real estate asset for purposes of Section 856(c) of the Code, and the interest payable pursuant to such Participation Interest is treated as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of Section 856(c) of the Code, or (B) the Participation Interest qualifies as a security that would not otherwise cause any parent REIT to fail to qualify as a REIT under the Code (including after the sale, transfer and assignment to Administrative Agent, on behalf of Buyers, of such Participation Interest); (ii) to the actual knowledge of Seller, as of the Purchase Date, the related participating Person was not a debtor in any outstanding proceeding pursuant to the federal bankruptcy code; and (iii) Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such Participation Interest is or may become obligated. With respect to each Purchased Asset that is a Mezzanine Loan and the related Mortgaged Property or Mortgaged Properties, on the related Purchase Date and at all times while this Agreement and any Transaction contemplated hereunder is in effect, Seller shall be deemed to make the following representations and warranties to Administrative Agent, on behalf of Buyers, as of such date; provided, however, that, with respect to any Purchased Asset, such representations and warranties shall be deemed to be modified by any Exception Report delivered by Seller to Administrative Agent, on behalf of Xxxxxx, prior to the issuance of a Confirmation with respect thereto. (1) The representations and warranties set forth in Exhibit III-I regarding Mortgage Loans shall be deemed incorporated herein in respect of each underlying Mortgage Loan and the related Mortgaged Property and Mortgagor related to the Purchased Asset; provided that if such representation is duplicative of any specific representation regarding the underlying Mortgage Loan, underlying Mortgaged Property or the Mortgagor, the representation hereunder shall control. (2) The Mezzanine Loan is a performing mezzanine loan secured by a pledge of all of the Capital Stock of a Mortgagor on the performing underlying Mortgage Loan that owns income producing commercial real estate.
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (FS Credit Real Estate Income Trust, Inc.)
Senior Participations. With respect to each Purchased Asset Loan Obligation that is a Participation Interest: Senior Participation:
(i) either Either (A) the Senior Participation Interest is treated as a real estate asset for purposes of Section 856(c) of the Code, and the interest payable pursuant to such Senior Participation Interest is treated as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of Section 856(c) of the Code, or (B) the Senior Participation Interest qualifies as a security that would not otherwise cause any parent REIT ARMS Equity to fail to qualify as a REIT under the Code (including after the sale, transfer and assignment to Administrative Agent, on behalf of Buyers, the Issuer of such Participation InterestSenior Participation); ;
(ii) to To the actual knowledge of the Seller, as of the Purchase Closing Date, the related participating Person Participating Institution was not a debtor in any outstanding proceeding pursuant to the federal bankruptcy code; and and
(iii) The Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such Senior Participation Interest is or may become obligated. With respect to each Purchased Asset that is a Mezzanine Loan and the related Mortgaged Property or Mortgaged Properties, on the related Purchase Date and at all times while this Agreement and any Transaction contemplated hereunder is in effect, Seller shall be deemed to make the following For purposes of these representations and warranties warranties, the phrases “the Seller’s knowledge” or “the Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth herein. Representation numbers referred to Administrative Agent, on behalf of Buyers, as of such date; provided, however, that, with respect to any Purchased Asset, such representations and warranties shall be deemed to be modified by any Exception Report delivered by Seller to Administrative Agent, on behalf of Xxxxxx, prior below relate to the issuance of a Confirmation with respect thereto.
(1) The corresponding Mortgage Loan representations and warranties set forth in Exhibit III-I regarding Mortgage Loans shall be deemed incorporated herein in respect of each underlying Mortgage Loan and the related Mortgaged Property and Mortgagor related Section 1(a) to the Purchased Asset; provided that if such representation is duplicative of any specific representation regarding the underlying Mortgage Loan, underlying Mortgaged Property or the Mortgagor, the representation hereunder shall controlLoan Obligations Purchase Agreement.
(2) The Mezzanine Loan is a performing mezzanine loan secured by a pledge of all of the Capital Stock of a Mortgagor on the performing underlying Mortgage Loan that owns income producing commercial real estate.
Appears in 1 contract
Samples: Loan Obligation Purchase Agreement (Arbor Realty Trust Inc)
Senior Participations. With respect to each Purchased Asset that is a Participation Interest: Interest (i) either (A) the Participation Interest is treated as a real estate asset for purposes of Section 856(c) of the Code, and the interest payable pursuant to such Participation Interest is treated as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of Section 856(c) of the Code, or (B) the Participation Interest qualifies as a security that would not otherwise cause any parent REIT to fail to qualify as a REIT under the Code (including after the sale, transfer and assignment to Administrative Agent, on behalf of Buyers, Buyer of such Participation Interest); (ii) to the actual knowledge of Seller, as of the Purchase Closing Date, the related participating Person was not a debtor in any outstanding proceeding pursuant to the federal bankruptcy code; and (iii) Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such Participation Interest is or may become obligated. With respect [ ] Re: Bailee Agreement (the “Bailee Agreement”) in connection with the sale of [______________] by LXXX Warehouse II LLC (“Seller”) to each Mxxxxx Sxxxxxx 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 that is File Checklist attached as Attachment 1 attached hereto to which shall be attached a Mezzanine Loan and Purchased Asset Schedule identifying the related Mortgaged Property Purchased Assets are being delivered to Bailee hereunder.
2. On or Mortgaged Properties, prior to the date indicated on the related Purchased Asset File Checklist (the “Purchase Date and at all times while this Agreement and any Transaction contemplated hereunder is in effectDate”), Seller shall be deemed have delivered to make the following representations and warranties to Administrative Agent, on behalf of BuyersBailee, as bailee for hire, the Purchased Asset File for each of the Purchased Assets (listed in the Purchased Asset Schedule attached to such date; providedPurchased 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 2 attached hereto (the “Trust Receipt”), howeverwhich Trust Receipt shall state that Bailee has received the documents comprising the Purchased Asset File as set forth in the Purchased Asset File Checklist, thatin addition to such other documents required to be delivered to Buyer pursuant to the Master Repurchase and Securities Contract Agreement dated as of June 15, 2015, 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 Wxxxx Fargo Bank, N.A. (the “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 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 AssetAsset File that was in its possession to Custodian within three (3) Business Days following the applicable Purchase Date, such representations the same shall constitute a “Bailee Delivery Failure” under this Bailee Agreement.
9. Seller hereby represents, warrants and warranties 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 modified by any Exception Report delivered by Seller to Administrative Agentan original, on behalf of Xxxxxx, prior to and such counterparts shall constitute and be one and the issuance of a Confirmation with respect theretosame instrument.
(1) The representations and warranties set forth in Exhibit III-I regarding Mortgage Loans 13. This Bailee Agreement shall be deemed incorporated herein construed in respect accordance with the laws of each underlying Mortgage Loan the State of New York, and the related Mortgaged Property obligations, rights and Mortgagor related to remedies of the Purchased Asset; provided that if such representation is duplicative of any specific representation regarding the underlying Mortgage Loan, underlying Mortgaged Property or the Mortgagor, the representation parties hereunder shall controlbe determined in accordance with such laws.
(2) The Mezzanine Loan is 14. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Repurchase Agreement. Very truly yours, a performing mezzanine loan secured by Delaware limited liability company, Seller By: Name: Title: ACCEPTED AND AGREED: [_______], Bailee By: Name: Title: ACCEPTED AND AGREED: a pledge of all of the Capital Stock of a Mortgagor on the performing underlying Mortgage Loan that owns income producing commercial real estate.national banking association, Buyer By: Name: Title:
ATTACHMENT 1 TO BAILEE AGREEMENT PURCHASED ASSET FILE CHECKLIST
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (LoanCore Realty Trust, Inc.)
Senior Participations. With respect to each Purchased Asset Loan Obligation that is a Participation Interest: Senior Participation:
(i) either Either (A) the Senior Participation Interest is treated as a real estate asset for purposes of Section 856(c) of the Code, and the interest payable pursuant to such Senior Participation Interest is treated as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of Section 856(c) of the Code, or (B) the Senior Participation Interest qualifies as a security that would not otherwise cause any parent REIT ARMS Equity to fail to qualify as a REIT under the Code (including after the sale, transfer and assignment to Administrative Agent, on behalf of Buyers, the Issuer of such Participation InterestSenior Participation); ;
(ii) to To the actual knowledge of the Seller, as of the Purchase Closing Date, the related participating Person Participating Institution was not a debtor in any outstanding proceeding pursuant to the federal bankruptcy code; and ;
(iii) The Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such Senior Participation Interest is or may become obligated;
(iv) The participation agreement is legal, valid and enforceable as between its parties, and provides that (other than any Non-Controlling Participations) the lead and control participant (the “Lead Participant”) has full power, authority and discretion to service the Loan Obligation, modify and amend the terms thereof, pursue remedies and enforcement actions, including foreclosure or other legal action, without consent or approval of any other participant (each, a “Third Party Participant”);
(v) Each Third Party Participant is required to pay its pro rata share of any expenses, costs and fees associated with servicing and enforcing rights and remedies under the related Loan Obligation upon request therefor by the Lead Participant;
(vi) Each participation agreement is effective to convey the participation interest to the related Third Party Participant and is not intended to be or effective as a loan or other financing secured by the Loan Obligation. With respect The Lead Participant owes no fiduciary duty or obligation to any Third Party Participant pursuant to the participation agreement;
(vii) All amounts due and owing to any Third Party Participant pursuant to each Purchased Asset participation agreement have been duly and timely paid. There is no default by the Lead Participant, or to the Seller’s knowledge, by any Third Party Participant under any participation agreement;
(viii) The participation interest and Lead Participant role, rights and responsibilities are assignable by the Seller without consent or approval other than those that is a Mezzanine Loan and have been obtained;
(ix) The terms of the related Mortgaged Property participation agreement do not require or Mortgaged Propertiesobligate the Lead Participant or its successor or assigns to repurchase the participation interest under any circumstances; and
(x) The Seller, on in selling the related Purchase Date and at all times while this Agreement and any Transaction contemplated hereunder is in effectparticipation interest to each Third Party Participant, Seller shall be deemed made no misrepresentation, fraud or omission of information necessary for the Participant to make the following representations and warranties an informed decision to Administrative Agent, on behalf of Buyers, as of such date; provided, however, that, with respect to any Purchased Asset, such representations and warranties shall be deemed to be modified by any Exception Report delivered by Seller to Administrative Agent, on behalf of Xxxxxx, prior to the issuance of a Confirmation with respect theretopurchase its participation interest.
(1) The representations and warranties set forth in Exhibit III-I regarding Mortgage Loans shall be deemed incorporated herein in respect of each underlying Mortgage Loan and the related Mortgaged Property and Mortgagor related to the Purchased Asset; provided that if such representation is duplicative of any specific representation regarding the underlying Mortgage Loan, underlying Mortgaged Property or the Mortgagor, the representation hereunder shall control.
(2) The Mezzanine Loan is a performing mezzanine loan secured by a pledge of all of the Capital Stock of a Mortgagor on the performing underlying Mortgage Loan that owns income producing commercial real estate.
Appears in 1 contract
Samples: Indenture (Arbor Realty Trust Inc)
Senior Participations. With respect to each Purchased Asset that is a Participation Interest: (i) either (A) the Participation Interest is treated as a real estate asset for purposes of Section 856(c) of the Code, and the interest payable pursuant to such Participation Interest is treated as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of Section 856(c) of the Code, or (B) the Participation Interest qualifies as a security that would not otherwise cause any parent REIT to fail to qualify as a REIT under the Code (including after the sale, transfer and assignment to Administrative Agent, on behalf of Buyers, Buyer of such Participation Interest); (ii) to the actual knowledge of Seller, as of the Purchase Closing Date, the related participating Person was not a debtor in any outstanding proceeding pursuant to the federal bankruptcy code; and (iii) Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such Participation Interest is or may become obligated. With respect [ ] Re: Bailee Agreement (this “Bailee Agreement”) in connection with the sale of [______________] by CMTG MS Finance LLC (“Seller”) to each 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 is a Mezzanine Loan and are being delivered to Bailee hereunder.
2. On or prior to the related Mortgaged Property or Mortgaged Properties, date indicated on the related Purchased Asset File Checklist (the “Purchase Date and at all times while this Agreement and any Transaction contemplated hereunder is in effectDate”), Seller shall be deemed have delivered to make the following representations and warranties to Administrative Agent, on behalf of BuyersBailee, as bailee for hire, the Purchased Asset File for each of the Purchased Assets listed in the Purchased Asset Schedule attached to such date; providedPurchased 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”), howeverwhich Trust Receipt shall state that Bailee has received the documents comprising the Purchased Asset File as set forth in the Purchased Asset File Checklist, thatin addition to such other documents required to be delivered to Buyer pursuant to the Master Repurchase and Securities Contract Agreement dated as of January 26, 2017, 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 any the Purchased AssetAssets identified therein to Seller. Upon receipt of such Facsimile Authorization, such representations and warranties Bailee shall be deemed release the Purchased Asset Files to be modified by any Exception Report delivered by Seller to Administrative Agent, on behalf of Xxxxxx, prior to the issuance of a Confirmation in accordance with respect theretoSeller’s instructions.
(1) The representations and warranties set forth in Exhibit III-I regarding Mortgage Loans 5. Following the Purchase Date, Bailee shall be deemed incorporated herein in respect of each underlying Mortgage Loan and the related Mortgaged Property and Mortgagor related to forward the Purchased Asset; provided that if such representation is duplicative of any specific representation regarding the underlying Mortgage LoanAsset Files to Xxxxx Fargo Bank, underlying Mortgaged Property or the Mortgagor, the representation hereunder shall control.
National Association (2“Custodian”) The Mezzanine Loan is a performing mezzanine loan secured by a pledge of all of the Capital Stock of a Mortgagor insured overnight courier for receipt by Custodian no later than 1:00 p.m. on the performing underlying Mortgage Loan that owns income producing commercial real estatethird (3rd) Business Day following the applicable Purchase Date (the “Delivery Date”).
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Senior Participations. With respect to each Purchased Asset that is a Participation Interest: (i) either (A) the Participation Interest is treated as a real estate asset for purposes of Section 856(c) of the Code, and the interest payable pursuant to such Participation Interest is treated as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of Section 856(c) of the Code, or (B) the Participation Interest qualifies as a security that would not otherwise cause any parent REIT to fail to qualify as a REIT under the Code (including after the sale, transfer and assignment to Administrative Agent, on behalf of Buyers, Buyer of such Participation Interest); (ii) to the actual knowledge Knowledge of Seller, as of the Purchase Date, the related participating Person was not a debtor in any outstanding proceeding pursuant to the federal bankruptcy code; and (iii) Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such Participation Interest is or may become obligated. With respect [ ] Re: Bailee Agreement (this “Bailee Agreement”) in connection with the sale of [ ] by TPG RE FINANCE 12, LTD. (“Seller”) to each Xxxxxx Xxxxxxx Bank, N.A., as buyer (together with its permitted successors and assigns, “Buyer”) Ladies and Gentlemen: Reference is made to that certain Master Repurchase and Securities Contract Agreement dated as of May 4, 2016, among Seller and Buyer (the “Repurchase Agreement”). 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 is a Mezzanine Loan and are being delivered to Bailee hereunder.
2. On or prior to the related Mortgaged Property or Mortgaged Properties, date indicated on the related Purchased Asset File Checklist (the “Purchase Date and at all times while this Agreement and any Transaction contemplated hereunder is in effectDate”), Seller shall be deemed have delivered to make the following representations and warranties to Administrative Agent, on behalf of BuyersBailee, as bailee for hire, the Purchased Asset Documents identified on such Purchased Asset File Checklist for each of the Purchased Assets listed in the Purchased Asset Schedule attached to such date; providedPurchased 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”), howeverwhich Trust Receipt shall state that Bailee has received the documents comprising the Purchased Asset Documents as set forth in the Purchased Asset File Checklist.
4. On the applicable Purchase Date, thatin 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 Documents set forth on the Purchased Asset File Checklist 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 Documents identified on the Purchased Asset File Checklist to U.S. Bank National Association (“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 will forward in accordance with paragraph 5 above) and control of the related Purchased Asset Documents as set forth in the Purchased Asset File Checklist as bailee for Buyer and (b) is holding the related Purchased Asset Documents 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 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 gross negligence 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 the Purchased AssetAsset Documents that are then in its possession to Custodian within three (3) Business Days following the applicable Purchase Date, such representations the same shall constitute a “Bailee Delivery Failure” under this Bailee Agreement.
9. Seller hereby represents, warrants and warranties 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 Transaction [and [ ] has represented Seller in connection with negotiation, execution and delivery of the Repurchase Agreement.]
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 modified by any Exception Report delivered by Seller to Administrative Agentan original, on behalf of Xxxxxx, prior and such counterparts shall constitute and be one and the same instrument. Electronically transmitted signature pages shall be binding to the issuance same extent
13. This Bailee Agreement shall be construed in accordance with the laws of a Confirmation the State of New York, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with respect theretosuch laws.
14. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Repurchase Agreement. Very truly yours, TPG RE FINANCE 12, LTD., an exempted company incorporated with limited liability under the laws of the Cayman Islands, 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, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Re: Bailee Agreement, dated , 20 (1the “Bailee Agreement”) The representations among TPG RE FINANCE 12, LTD. (“Seller”), Xxxxxx Xxxxxxx Bank, N.A. ( “Buyer”) and warranties set forth in Exhibit III-I regarding Mortgage Loans shall be deemed incorporated herein in respect ( “Bailee”) Ladies and Gentlemen: In accordance with the provisions of each underlying Mortgage Loan and Section 3 of the related Mortgaged Property and Mortgagor related Bailee Agreement, the undersigned, as Bailee, hereby certifies that as to the Purchased Asset; provided that if such representation is duplicative of any specific representation regarding Asset(s) referred to therein, it has reviewed the underlying Mortgage Loan, underlying Mortgaged Property or Purchased Asset Documents identified on the Mortgagor, the representation hereunder shall control.
(2) The Mezzanine Loan is a performing mezzanine loan secured by a pledge of all Purchased Asset File Checklist for each of the Capital Stock Purchased Assets referred to therein 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 Purchased Asset Documents as agent and bailee for the exclusive use and benefit of a Mortgagor on Buyer pursuant to the performing underlying Mortgage Loan that owns income producing commercial real estate.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: Xxxxx X. Xxxx Xxxx X. Xxxxx Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxx X. Xxxxx Xxxxxx Xxxxxxx Bank, N.A. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (TPG RE Finance Trust, Inc.)
Senior Participations. With respect to each Purchased Asset Loan Obligation that is a Participation Interest: Senior Participation:
(i) either Either (A) the Senior Participation Interest is treated as a real estate asset for purposes of Section 856(c) of the Code, and the interest payable pursuant to such Senior Participation Interest is treated as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of Section 856(c) of the Code, or (B) the Senior Participation Interest qualifies as a security that would not otherwise cause any parent REIT ARMS Equity to fail to qualify as a REIT under the Code (including after the sale, transfer and assignment to Administrative Agent, on behalf of Buyers, the Issuer of such Participation InterestSenior Participation); ;
(ii) to To the actual knowledge of the Seller, as of the Purchase Closing Date, the related participating Person Participating Institution was not a debtor in any outstanding proceeding pursuant to the federal bankruptcy code; and ;
(iii) The Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such Senior Participation Interest is or may become obligated
(iv) The participation agreement is legal, valid and enforceable as between its parties, and provides that (other than any Non-Controlling Participations) the lead and control participant (the “Lead Participant”) has full power, authority and discretion to service the Loan Obligation, modify and amend the terms thereof, pursue remedies and enforcement actions, including foreclosure or other legal action, without consent or approval of any other participant (each, a “Third Party Participant”);
(v) Each Third Party Participant is required to pay its pro rata share of any expenses, costs and fees associated with servicing and enforcing rights and remedies under the related Loan Obligation upon request therefor by the Lead Participant;
(vi) Each participation agreement is effective to convey the participation interest to the related Third Party Participant and is not intended to be or effective as a loan or other financing secured by the Loan Obligation. With respect The Lead Participant owes no fiduciary duty or obligation to any Third Party Participant pursuant to the participation agreement;
(vii) All amounts due and owing to any Third Party Participant pursuant to each Purchased Asset participation agreement have been duly and timely paid. There is no default by the Lead Participant, or to the Seller’s knowledge, by any Third Party Participant under any participation agreement;
(viii) The participation interest and Lead Participant role, rights and responsibilities are assignable by the Seller without consent or approval other than those that is a Mezzanine Loan and have been obtained;
(ix) The terms of the related Mortgaged Property participation agreement do not require or Mortgaged Propertiesobligate the Lead Participant or its successor or assigns to repurchase the participation interest under any circumstances; and
(x) The Seller, on in selling the related Purchase Date and at all times while this Agreement and any Transaction contemplated hereunder is in effectparticipation interest to each Third Party Participant, Seller shall be deemed made no misrepresentation, fraud or omission of information necessary for the Participant to make the following an informed decision to purchase its participation interest. For purposes of these representations and warranties warranties, the phrases “the Seller’s knowledge” or “the Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth herein. Representation numbers referred to Administrative Agent, on behalf of Buyers, as of such date; provided, however, that, with respect to any Purchased Asset, such representations and warranties shall be deemed to be modified by any Exception Report delivered by Seller to Administrative Agent, on behalf of Xxxxxx, prior below relate to the issuance of a Confirmation with respect thereto.
(1) The corresponding Closing Date Loan Obligation representations and warranties set forth in Exhibit III-I regarding Mortgage Loans shall be deemed incorporated herein in respect of each underlying Mortgage Loan and the related Mortgaged Property and Mortgagor related Section 1(a) to the Purchased Asset; provided that if such representation is duplicative of any specific representation regarding the underlying Mortgage Loan, underlying Mortgaged Property or the Mortgagor, the representation hereunder shall controlthis Agreement.
(2) The Mezzanine Loan is a performing mezzanine loan secured by a pledge of all of the Capital Stock of a Mortgagor on the performing underlying Mortgage Loan that owns income producing commercial real estate.
Appears in 1 contract
Samples: Loan Obligation Purchase Agreement (Arbor Realty Trust Inc)
Senior Participations. With respect to each Purchased Asset Mortgage Loan that is a Participation Interest: Senior Participation:
(i) either Either (A) the Senior Participation Interest is treated as a real estate asset for purposes of Section 856(c) of the Code, and the interest payable pursuant to such Senior Participation Interest is treated as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of Section 856(c) of the Code, or (B) the Senior Participation Interest qualifies as a security that would not otherwise cause any parent the Parent REIT to fail to qualify as a REIT under the Code (including after the sale, transfer and assignment to Administrative Agent, on behalf of Buyers, the Issuer of such Participation InterestSenior Participation); ;
(ii) to To the actual knowledge of the Seller, as of the Purchase Closing Date, the related participating Person Participating Institution was not a debtor in any outstanding proceeding pursuant to the federal bankruptcy code; and and
(iii) The Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such Senior Participation Interest is or may become obligated. With respect to each Purchased Asset that is a Mezzanine Loan and the related Mortgaged Property or Mortgaged Properties, on the related Purchase Date and at all times while this Agreement and any Transaction contemplated hereunder is in effect, Seller shall be deemed to make the following For purposes of these representations and warranties to Administrative Agentwarranties, the phrases “the Seller’s knowledge” or “the Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth herein. DivCore Subordinate Debt Club I Advisors, LLC, a Delaware limited liability company (the “Collateral Manager”), in connection with the acquisition of the [Additional Mortgage Loan[s]] [Reinvestment Mortgage Loan[s]] identified on behalf Schedule 1 hereto that have been selected by the Collateral Manager as permitted under the Indenture, dated as of BuyersDecember 6, 2013 (the “Indenture”), among DivCore CLO 2013-1, Ltd., as issuer, DivCore CLO 2013-1, LLC, as co-issuer, Situs Asset Management LLC, as advancing agent and Xxxxx Fargo Bank, National Association, as trustee, hereby certifies, pursuant to Section [10.4(d)] [12.2(a)] [12.3(b)] of the Indenture, that such date; provided, however, that, [Additional Mortgage Loan] [Reinvestment Mortgage Loan] satisfies all of the [Eligibility Criteria] [Reinvestment Criteria] as of the date hereof. Attached as Schedule 2 hereto are wiring instructions. Please release $[●] from the [●] Account with respect to any Purchased Asset, such representations and warranties shall be deemed to be modified by any Exception Report delivered by Seller to Administrative Agent, on behalf of Xxxxxx, prior to the issuance of a Confirmation with respect thereto.
(1) The representations and warranties acquisition evidenced hereby. Capitalized terms used but not otherwise defined herein have the meanings set forth in Exhibit III-I regarding Mortgage Loans shall be deemed incorporated herein in respect of each underlying Mortgage Loan and the related Mortgaged Property and Mortgagor related to the Purchased Asset; provided that if such representation is duplicative of any specific representation regarding the underlying Mortgage Loan, underlying Mortgaged Property or the Mortgagor, the representation hereunder shall controlIndenture.
(2) The Mezzanine Loan is a performing mezzanine loan secured by a pledge of all of the Capital Stock of a Mortgagor on the performing underlying Mortgage Loan that owns income producing commercial real estate.
Appears in 1 contract
Senior Participations. With respect to each Purchased Asset that is a Participation Interest: (i) either (A) the Participation Interest is treated as a real estate asset for purposes of Section 856(c) of the Code, and the interest payable pursuant to such Participation Interest is treated as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of Section 856(c) of the Code, or (B) the Participation Interest qualifies as a security that would not otherwise cause any parent REIT to fail to qualify as a REIT under the Code (including after the sale, transfer and assignment to Administrative Agent, on behalf of Buyers, Buyer of such Participation Interest); (ii) to the actual knowledge of Seller, as of the Purchase Closing Date, the related participating Person was not a debtor in any outstanding proceeding pursuant to the federal bankruptcy code; and (iii) Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such Participation Interest is or may become obligated. With respect [ ] Re: Bailee Agreement (this “Bailee Agreement”) in connection with the sale of [ ] by TH Commercial MS II, LLC (“Seller”) to each 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 is a Mezzanine Loan and are being delivered to Bailee hereunder.
2. On or prior to the related Mortgaged Property or Mortgaged Properties, date indicated on the related Purchased Asset File Checklist (the “Purchase Date and at all times while this Agreement and any Transaction contemplated hereunder is in effectDate”), Seller shall be deemed have delivered to make the following representations and warranties to Administrative Agent, on behalf of BuyersBailee, as bailee for hire, the Purchased Asset File for each of the Purchased Assets listed in the Purchased Asset Schedule attached to such date; providedPurchased 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”), howeverwhich Trust Receipt shall state that Bailee has received the documents comprising the Purchased Asset File as set forth in the Purchased Asset File Checklist, thatin addition to such other documents required to be delivered to Buyer pursuant to the Master Repurchase and Securities Contract Agreement dated as of [ ], 2015, 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, National Association (“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 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 AssetAsset File that was in its possession to Custodian within three (3) Business Days following the applicable Purchase Date, such representations the same shall constitute a “Bailee Delivery Failure” under this Bailee Agreement.
9. Seller hereby represents, warrants and warranties 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 modified by any Exception Report delivered by Seller to Administrative Agentan original, on behalf of Xxxxxx, prior to and such counterparts shall constitute and be one and the issuance of a Confirmation with respect theretosame instrument.
(1) The representations and warranties set forth in Exhibit III-I regarding Mortgage Loans 13. This Bailee Agreement shall be deemed incorporated herein construed in respect accordance with the laws of each underlying Mortgage Loan the State of New York, and the related Mortgaged Property obligations, rights and Mortgagor related 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, TH COMMERCIAL MS II, 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, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxx Re: Bailee Agreement, dated , 20 (the “Bailee Agreement”) among TH Commercial MS II, 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; provided Asset(s) referred to therein, it has reviewed the Purchased Asset File(s) and has determined that if (i) all documents listed in Schedule A attached to the Bailee Agreement are in its possession and (ii) such representation 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 duplicative holding the Purchase Loan File as agent and bailee for the exclusive use and benefit of any specific representation regarding Buyer pursuant to the underlying Mortgage Loan, underlying Mortgaged Property or the Mortgagor, the representation hereunder shall control.
(2) The Mezzanine Loan is a performing mezzanine loan secured by a pledge of all terms of the Capital Stock of a Mortgagor on Bailee Agreement. All capitalized terms used herein and not defined herein shall have the performing underlying Mortgage Loan that owns income producing commercial real estate.meanings ascribed to them in the Bailee Agreement. , Bailee By: Name: Title: [·] [·] [·] [·] [·]
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Granite Point Mortgage Trust Inc.)
Senior Participations. With respect to each Purchased Asset Loan Obligation that is a Participation Interest: Senior Participation:
(i) either Either (A) the Senior Participation Interest is treated as a real estate asset for purposes of Section 856(c) of the Code, and the interest payable pursuant to such Senior Participation Interest is treated as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of Section 856(c) of the Code, or (B) the Senior Participation Interest qualifies as a security that would not otherwise cause any parent REIT ARMS Equity to fail to qualify as a REIT under the Code (including after the sale, transfer and assignment to Administrative Agent, on behalf of Buyers, the Issuer of such Participation InterestSenior Participation); ;
(ii) to To the actual knowledge of the Seller, as of the Purchase Closing Date, the related participating Person Participating Institution was not a debtor in any outstanding proceeding pursuant to the federal bankruptcy code; and and
(iii) The Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such Senior Participation Interest is or may become obligated. With respect to each Purchased Asset that is a Mezzanine Loan and the related Mortgaged Property or Mortgaged Properties, on the related Purchase Date and at all times while this Agreement and any Transaction contemplated hereunder is in effect, Seller shall be deemed to make the following For purposes of these representations and warranties warranties, the phrases “the Seller’s knowledge” or “the Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth herein. Representation numbers referred to Administrative Agent, on behalf of Buyers, as of such date; provided, however, that, with respect to any Purchased Asset, such representations and warranties shall be deemed to be modified by any Exception Report delivered by Seller to Administrative Agent, on behalf of Xxxxxx, prior below relate to the issuance of a Confirmation with respect thereto.
(1) The corresponding Mortgage Loan representations and warranties set forth in Exhibit III-I regarding Mortgage Loans shall be deemed incorporated herein in respect of each underlying Mortgage Loan and the related Mortgaged Property and Mortgagor related Section 1(a) to the Purchased AssetLoan Obligations Purchase Agreement. Vintage Pointe (10) Condition of Property On November 25, 2012, there was a fire in one of the 27 buildings that comprise the Mortgage Property. The fire affected 16 units in such building, seven of which were occupied. The building is a separate building that does not affect the usage of the other buildings which comprise the Mortgaged Property. Income from this building was not underwritten. Borrower anticipates that insurance proceeds will be used to address further property renovations and/or pay down the loan; provided that if such representation is duplicative in either event, it will not affect the use of any specific representation regarding the underlying Mortgage Loan, underlying remainder of the Mortgaged Property or income underwritten income for the Mortgagor, the representation hereunder shall controlMortgage Property.
(2) The Mezzanine Loan is a performing mezzanine loan secured by a pledge of all of the Capital Stock of a Mortgagor on the performing underlying Mortgage Loan that owns income producing commercial real estate.
Appears in 1 contract
Samples: Loan Obligation Purchase Agreement (Arbor Realty Trust Inc)
