SALE AND CONTRIBUTION AGREEMENT by and between CAPITALSOURCE REAL ESTATE LOAN LLC, 2007-A, as the Buyer and CSE MORTGAGE LLC, as the Seller Dated as of September 10, 2007
Exhibit 10.83
by and between
CAPITALSOURCE REAL ESTATE LOAN LLC, 2007-A,
as the Buyer
as the Buyer
and
CSE MORTGAGE LLC,
as the Seller
as the Seller
Dated as of September 10, 2007
TABLE OF CONTENTS
Page | ||||
ARTICLE I. GENERAL |
1 | |||
Section 1.1 Defined Terms |
1 | |||
Section 1.2 Other Terms |
3 | |||
Section 1.3 Computation of Time Periods |
3 | |||
Section 1.4 Interpretation |
3 | |||
ARTICLE II. SALE, TRANSFER AND ASSIGNMENT |
4 | |||
Section 2.1 Sale, Transfer and Assignment |
4 | |||
Section 2.2 Purchase Price |
6 | |||
Section 2.3 Payment of Purchase Price |
6 | |||
ARTICLE III. CONDITIONS PRECEDENT |
7 | |||
Section 3.1 Conditions Precedent to Closing and Initial Purchase |
7 | |||
Section 3.2 Conditions Precedent to all Purchases |
7 | |||
ARTICLE IV. REPRESENTATIONS AND WARRANTIES |
8 | |||
Section 4.1 Seller’s Representations and Warranties |
8 | |||
Section 4.2 Representations and Warranties of the Seller Relating to the
Agreement and the Purchased Collateral |
15 | |||
Section 4.3 Representations and Warranties of the Buyer |
17 | |||
ARTICLE V. COVENANTS |
18 | |||
Section 5.1 Affirmative Covenants of the Seller |
18 | |||
Section 5.2 Negative Covenants of Seller |
23 | |||
ARTICLE VI. REPURCHASE OBLIGATION |
25 | |||
Section 6.1 Retransfer of Purchased Collateral |
25 | |||
Section 6.2 Substitution of Assets |
25 | |||
Section 6.3 Deemed Collections |
26 | |||
ARTICLE VII. ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE PURCHASED
COLLATERAL |
27 | |||
Section 7.1 Rights of the Buyer |
27 | |||
Section 7.2 Responsibilities of Seller |
27 | |||
Section 7.3 Rights With Respect to Loan Files |
28 | |||
Section 7.4 Notice to Administrative Agent |
28 | |||
ARTICLE VIII. TERM AND TERMINATION |
28 | |||
Section 8.1 Purchase Termination Events |
28 | |||
Section 8.2 Remedies |
30 | |||
Section 8.3 Survival of Certain Provisions |
31 |
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TABLE OF
CONTENTS
Page | ||||
ARTICLE IX. INDEMNIFICATION |
31 | |||
Section 9.1 Indemnification by the Seller |
31 | |||
Section 9.2 Assignment of Indemnities |
34 | |||
ARTICLE X. MISCELLANEOUS |
34 | |||
Section 10.1 Amendments and Waivers |
34 | |||
Section 10.2 Notices, Etc. |
34 | |||
Section 10.3 Limitation of Liability |
34 | |||
Section 10.4 Binding Effect; Benefit of Agreement |
35 | |||
Section 10.5 GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF OBJECTION TO VENUE |
35 | |||
Section 10.6 WAIVER OF JURY TRIAL |
35 | |||
Section 10.7 Costs, Expenses and Taxes |
35 | |||
Section 10.8 No Proceedings |
36 | |||
Section 10.9 Recourse Against Certain Parties |
36 | |||
Section 10.10 Protection of Right, Title and Interest in the
Purchased Collateral; Further Action Evidencing Purchases |
37 | |||
Section 10.11 Execution in Counterparts; Severability; Integration |
38 | |||
Section 10.12 Waiver of Set-off |
39 | |||
Section 10.13 Heading and Exhibits |
39 | |||
Section 10.14 Rights of Inspection |
39 | |||
Section 10.15 Assignment |
40 | |||
Section 10.16 No Waiver; Cumulative Remedies |
40 | |||
Section 10.17 Intentionally Omitted |
40 | |||
Section 10.18 Revolving Loan Payments |
40 |
SCHEDULES
SCHEDULE I
|
Purchased Collateral List | |
SCHEDULE II
|
Lock-Box Banks and Lock-Box Accounts |
EXHIBITS
EXHIBIT A
|
Form of Sale Assignment | |
EXHIBIT B
|
Form of Officer’s Certificate |
APPENDICES
APPENDIX A
|
Condition Precedent Documents |
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THIS SALE AND CONTRIBUTION AGREEMENT (such agreement as amended, modified, supplemented or
restated from time to time, this “Agreement”) is dated as of September 10, 2007, by and
between CSE MORTGAGE LLC, a Delaware limited liability company, as the seller (in such capacity,
the “Seller”) and CAPITALSOURCE REAL ESTATE LOAN LLC, 2007-A, a Delaware limited liability
company, as the buyer (in such capacity, the “Buyer”).
W I T N E S S E T H:
WHEREAS, the Buyer desires to purchase from the Seller and the Seller desires to sell to the
Buyer certain assets originated or acquired by the Seller in the ordinary course of its business,
together with, among other things, certain related security and rights of payment thereunder; and
WHEREAS, the Seller and the Buyer acknowledge that a lien and security interest in the assets
and related security sold or otherwise conveyed by the Seller to the Buyer hereunder will be
granted and assigned by the Buyer pursuant to the Sale and Servicing Agreement (as defined herein)
and the related Transaction Documents, to the Administrative Agent, as agent for the Secured
Parties under the Sale and Servicing Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE I.
GENERAL
Section 1.1 Defined Terms.
Capitalized terms used but not defined herein have the meanings provided in the Sale and
Servicing Agreement (as defined below).
Applicable Insolvency Laws: Defined in Section 8.1(d).
Agreement: Defined in the Preamble.
Assets: The Assets listed on Schedule I hereto, as such Schedule I
may be amended, supplemented, restated or replaced from time to time.
Buyer: Defined in the Preamble.
Deemed Collection: Defined in Section 6.3.
Early Termination: Defined in Section 8.1.
Faxed Documents: Defined in Section 2.1(f).
Indemnified Amounts: Defined in Section 9.1.
Indemnified Party: Defined in Section 9.1.
Other Costs: Defined in Section 10.7(c).
Pension Plans: Defined in Section 4.1(y).
Purchase: A purchase by the Buyer of Purchased Collateral from the Seller pursuant to
Section 2.1.
Purchase Date: The second Business Day immediately following the Closing Date and any
subsequent day on which any Purchased Collateral is acquired by the Buyer pursuant to the terms of
this Agreement including any Substitution Date, as set forth in the related Sale Assignment.
Purchase Price: Defined in Section 2.2.
Purchase Termination Events: Defined in Section 8.1.
Purchased Collateral: Defined in Section 2.1(a).
Replaced Asset: Defined in Section 6.2(a).
Retransfer Date: Defined in Section 6.1.
Sale Assignment: Defined in Section 2.1(b).
Sale and Servicing Agreement: The Sale and Servicing Agreement, dated as of September
10, 2007 among CapitalSource Real Estate Loan LLC, 2007-A, as the seller, CSE Mortgage LLC, as the
originator and as the servicer, each of the purchasers from time to time party thereto, Citicorp
North America, Inc., as the administrative agent, and Xxxxx Fargo Bank, National Association, as
the backup servicer and as the collateral custodian, as the same may be amended, supplemented,
restated or replaced from time to time.
Schedule I: The schedule of all Purchased Collateral that is sold, transferred and
assigned by the Seller to the Buyer on a Purchase Date, which schedule as to the Purchased
Collateral identified as of the initial Purchase Date is attached hereto and as to any Purchased
Collateral identified on any subsequent Purchase Date is supplemented by the “Schedule I” attached
to the applicable Sale Assignment, and incorporated herein by reference, as such schedule may be
supplemented and amended from time to time pursuant to the terms hereof.
SEC: Defined in Section 5.1(q)(i).
Seller: Defined in the Preamble.
Substitute Asset: Defined in Section 6.2.
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Substitution Date: Any date on which the Seller transfers a Substitute Asset to the
Buyer.
Term Transactions: The Rule 144A/Regulation S private placements of Notes issued by
issuers in connection with securitizations in existence on and after the date hereof involving
CapitalSource Inc. or its Affiliates.
Warehouse Facilities. Repurchase agreements, trust preferred transactions, warehouse
facilities or other similar types of transactions in existence on and after the date hereof
involving CapitalSource Inc. or its Affiliates.
Section 1.2 Other Terms.
All accounting terms used but not specifically defined herein shall be construed in accordance
with GAAP. All terms used in Article 9 of the UCC in the State of New York, and used but not
specifically defined herein, are used herein as defined in such Article 9.
Section 1.3 Computation of Time Periods.
Unless otherwise stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word “from” means “from and including” and the words
“to” and “until” each mean “to but excluding.”
Section 1.4 Interpretation.
In each Transaction Document, unless a contrary intention appears:
(a) the singular number includes the plural number and vice versa;
(b) reference to any Person includes such Person’s successors and assigns but, if applicable,
only if such successors and assigns are permitted by the Transaction Documents;
(c) reference to any gender includes each other gender;
(d) reference to day or days without further qualification means calendar days;
(e) reference to any time of day means New York City time;
(f) reference to any agreement (including any Transaction Document), document or instrument
means such agreement, document or instrument as amended, supplemented or modified and in effect
from time to time in accordance with the terms thereof and, if applicable, the terms of the other
Transaction Documents, and reference to any promissory note includes any
promissory note that is an extension or renewal thereof or a substitute or replacement
therefor; and
(g) reference to any Applicable Law means such Applicable Law as amended, modified, codified,
replaced or reenacted, in whole or in part, and in effect from time to time, including rules and
regulations promulgated thereunder, and reference to any Section or other provision of any
Applicable Law means that provision of such Applicable Law from time to time
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in effect and
constituting the substantive amendment, modification, codification, replacement or reenactment of
such Section or other provision.
ARTICLE II.
SALE, TRANSFER AND ASSIGNMENT
Section 2.1 Sale, Transfer and Assignment.
(a) On the terms and subject to the conditions set forth in this Agreement (including the
conditions to Purchase set forth in Article III), on each Purchase Date, the Seller hereby sells,
transfers, assigns, sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases
and takes from the Seller all right, title and interest (whether now owned or hereafter acquired or
arising and wherever located) of the Seller in, to and under all accounts, general intangibles,
instruments, chattel paper, documents, money, letters of credit, advices of credit, deposit
accounts, certificates of deposit, investment property, goods and other property consisting of,
arising from or related to any of the following property (collectively, the “Purchased
Collateral”):
(i) the Assets identified by the Seller as of the initial Cut–Off Date which are listed on
Schedule I hereto, and the Assets identified by the Seller as of any additional Cut–Off Date which
are listed on Schedule I to the Sale Assignment, together with all monies due in payment of such
Loans on and after the related Cut–Off Date, but excluding any Excluded Amounts and any Retained
Interest;
(ii) all Related Security with respect to the Loans referred to in clause (i) above; and
(iii) all income and Proceeds of the foregoing.
(b) The Seller shall on or prior to any Purchase Date after the Closing Date execute and
deliver to the Buyer a certificate of assignment (the “Sale Assignment”) from the Seller to
the Buyer in the form of Exhibit A hereto. From and after such Purchase Date, the Purchased
Collateral listed on such assignment shall be deemed to be Purchased Collateral hereunder.
(c) On or before any Purchase Date with respect to the Purchased Collateral to be acquired by
the Buyer on that date, the Seller shall provide the Buyer with an Officer’s Certificate, in the
form of Exhibit B hereto, signed by a duly authorized Responsible Officer
certifying, as of such Purchase Date, to each of the items in Section 4.2, in the form
of Exhibit B hereto.
(d) Except as specifically provided in this Agreement, the sale and purchase of Purchased
Collateral under this Agreement shall be without recourse to the Seller; it being understood that
Seller shall be liable to the Buyer for all representations, warranties, covenants and indemnities
made by Seller pursuant to the terms of this Agreement, all of which obligations are limited so as
not to constitute recourse to the Seller for the credit risk of the Obligors.
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(e) The Buyer, the Administrative Agent, each Purchaser, the other Secured Parties, the Backup
Servicer and the Collateral Custodian shall not have any obligation or liability to any Obligor or
client of Seller (including any obligation to perform any of the obligations of Seller (including
any obligation with respect to any other related agreements)). No such obligation or liability is
intended to be assumed by the Buyer, the Administrative Agent, the Purchasers, the Secured Parties,
the Backup Servicer, or the Collateral Custodian, and any such assumption is expressly disclaimed.
(f) In connection with each Purchase of Purchased Collateral hereunder, the Seller shall
deliver to the Collateral Custodian (A) the Required Asset Documents with respect thereto on or
prior to the initial Purchase Date (except for any UCCs, which shall be in the possession of the
Collateral Custodian within two Business Days of the initial Purchase Date) as to any Existing
Assets, and (B) the duly executed original promissory note, if any, and the duly executed faxed
copies of the other documents included in the Required Asset Documents (the “Faxed
Documents”) on or prior to the related Purchase Date (and if prior to the related Purchase
Date, any such promissory note and Faxed Documents shall be held by the Collateral Custodian on
behalf of the Purchasers in escrow until such Purchase shall occur on the related Purchase Date),
and the duly executed original copies of the Faxed Documents (including any UCCs) within two
Business Days of the related Purchase Date as to any Additional Assets. In connection with such
transfer, the Seller hereby grants to each of the Buyer, the Administrative Agent and the Servicer
an irrevocable, non–exclusive license to use, without royalty or payment of any kind, all software
used by the Seller to account for the Purchased Collateral, to the extent necessary to administer
the Purchased Collateral, whether such software is owned by the Seller or is owned by others and
used by the Seller under license agreements with respect thereto; provided that should the consent
of any licensor of such software be required for the grant of the license described herein to be
effective, the Seller hereby agrees that upon the request of the Buyer or the Administrative Agent,
the Seller will use its reasonable efforts to obtain the consent of such third–party licensor. The
license granted hereby shall be irrevocable until the Collection Date and shall terminate on the
date this Agreement terminates in accordance with its terms. The Seller (i) shall take such action
requested by the Buyer, the Administrative Agent, from time to time hereafter, that may be
necessary or appropriate to ensure that the Buyer and its assigns under the Sale and Servicing
Agreement have an enforceable ownership interest in the Asset Files purchased from the Seller
hereunder, and (ii) shall use its reasonable efforts to ensure that each of the Buyer, the
Administrative Agent, and the Servicer has an enforceable right (whether by license or sublicense
or otherwise) to use all of the computer software used to account for the Purchased Collateral
and/or to recreate such Asset Files.
(g) In connection with the sale of the Purchased Collateral, the Seller further agrees that it
will, at its own expense, indicate clearly and unambiguously in its computer files and its
financial statements, on or prior to each Purchase Date, that such Purchased Collateral has been
sold to the Buyer pursuant to this Agreement.
(h) The Seller further agrees to deliver to the Buyer on or before each Purchase Date a
computer file containing a true, complete and correct list of all Assets, identified by account
number and Outstanding Asset Balance as of the related Cut–Off Date. Such file or list shall be
marked as Schedule I to this Agreement, shall be delivered to the Buyer as confidential and
5
proprietary, and is hereby incorporated into and made a part of this Agreement as such Schedule I
may be supplemented and amended from time to time.
(i) It is the intention of the parties hereto that the conveyance of the Seller’s right, title
and interest in and to the Purchased Collateral by the Seller to the Buyer as provided in
Section 2.1 shall constitute an absolute transfer conveying good title, free and clear of
any Lien (other than Permitted Liens) and that the Purchased Collateral shall not be part of the
Seller’s bankruptcy estate in the event of an Insolvency Event with respect to the Seller.
Furthermore, it is not intended that such conveyance be deemed a pledge of the Assets and the other
Purchased Collateral by the Seller to the Buyer to secure a debt or other obligation of the Seller.
If, however, notwithstanding the intention of the parties, the conveyance provided for in this
Section 2.1 is determined to be a transfer for security, then this Agreement shall also be
deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and
the Seller hereby grants to the Buyer a duly perfected, first priority “security interest” within
the meaning of Article 9 of the UCC in all of the Seller’s right, title and interest in and to the
Purchased Collateral, now existing and hereafter created, to secure the prompt and complete payment
of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of the
Purchased Collateral together with all of the other obligations of the Seller hereunder. The Buyer
shall have, in addition to the rights and remedies which it may have under this Agreement, all
other rights and remedies provided to a secured creditor under the UCC and other Applicable Law,
which rights and remedies shall be cumulative.
Section 2.2 Purchase Price.
The purchase price for each item of Purchased Collateral sold to the Buyer by the Seller under
this Agreement (the “Purchase Price”) shall be a dollar amount equal to the Outstanding
Asset Balance thereof determined as of the related Cut–Off Date.
Section 2.3 Payment of Purchase Price.
(a) The Purchase Price for any Purchased Collateral sold by the Seller to the Buyer on any
Purchase Date shall be paid in a combination of (i) immediately available funds and (ii) if the
Buyer does not have sufficient funds to pay the full amount of the Purchase Price, by means of a
capital contribution by the Seller to the Buyer.
(b) Notwithstanding any provision herein to the contrary, the Seller may on any Purchase Date
elect to designate all or a portion of the Purchased Collateral proposed to be transferred to the
Buyer on such date as a capital contribution to the Buyer. In such event, the Purchase Price
payable with respect to such transfer shall be reduced by the Outstanding Asset Balance of the
Purchased Collateral or portions thereof that were so contributed; provided however that Purchased
Collateral contributed to the Buyer as capital shall constitute Purchased Collateral for all
purposes of this Agreement.
(c) The Seller, by accepting the Purchase Price paid for each purchase of Purchased
Collateral, shall be deemed to have certified, with respect to the Purchased Collateral to be sold
by it on such day, that its representations and warranties contained in Article IV are true
and
6
correct on and as of such day, with the same effect as though made on and as of such day and
that no Termination Event or Unmatured Termination Event has occurred.
(d) Upon the payment of the Purchase Price for any Purchase, title to the Purchased Collateral
included in such Purchase shall rest in Buyer, whether or not the conditions precedent to such
Purchase and the other covenants and agreements contained herein were in fact satisfied; provided
however that Buyer shall not be deemed to have waived any claim it may have under this Agreement
for the failure by the Seller in fact to satisfy any such condition precedent, covenant or
agreement.
ARTICLE III.
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to Closing and Initial Purchase.
The closing and initial Purchase hereunder are subject to the conditions precedent that (i)
each of the conditions precedent to the execution, delivery and effectiveness of each other
Transaction Document (other than a condition precedent in any such other Transaction Document
relating to the effectiveness of this Agreement) shall have been fulfilled, and (ii) on or prior to
the Closing Date, the Seller shall have delivered to the Buyer each of the items specified on
Appendix A hereto in form and substance satisfactory to the Buyer.
Section 3.2 Conditions Precedent to all Purchases.
The obligations of the Buyer to Purchase the Purchased Collateral from the Seller on any
Purchase Date (including the initial Purchase Date) shall be subject to the satisfaction of the
following conditions precedent that:
(a) all representations and warranties of the Seller contained in Sections 4.1 and
4.2 shall be true and correct on and as of such date as though made on and as of such date
and shall be deemed to have been made on and as of such day;
(b) (i) in the case of the initial Purchase Date, the Seller shall have delivered to the
Buyer, prior to the initial Purchase Date, a Schedule I that is true, accurate and complete in all
respects as of the initial Cut–Off Date, and (ii) in the case of any subsequent Purchase Date, the
Seller shall have delivered to the Buyer, prior to the applicable subsequent Purchase Date, a duly
executed and completed Sale Assignment along with a Schedule I that is true, accurate and complete
in all respects as of the related Cut–Off Date;
(c) on and as of such Purchase Date, the Seller shall have performed all of the covenants and
agreements required to be performed by it on or prior to such date pursuant to the provisions of
this Agreement;
(d) no event has occurred and is continuing, or would result from such Purchase, that
constitutes a Termination Event or Unmatured Termination Event;
(e) the Termination Date shall not have occurred;
7
(f) Intentionally Omitted;
(g) no Applicable Law shall prohibit or enjoin, and no order, judgment or decree of any
federal, state or local court or governmental body, agency or instrumentality shall prohibit or
enjoin, the making of any such Purchase by the Buyer in accordance with the provisions hereof;
(h) prior to the Closing Date, the Buyer and the Administrative Agent shall be in receipt of
UCC, tax and judgment lien searches of Seller;
(i) prior to the Closing Date, the Buyer and the Administrative Agent shall be in receipt of
UCC financing statements per paragraph (d) of Appendix A;
(j) prior to the Closing Date, the Buyer and the Administrative Agent shall be in receipt of
opinions of counsel satisfactory to such Persons;
(k) prior to the Closing Date, all limited liability company and legal proceedings and all
instruments in connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Buyer, and the Buyer shall have received from the Seller
copies of all documents (including, without limitation, records of limited liability company
proceedings, approvals and opinions) relevant to the transactions herein contemplated as the Buyer
may reasonably have requested;
(l) the Seller shall have paid all fees required to be paid by it on the Closing Date, and
shall have reimbursed the Buyer and its assignees for all fees, costs and expenses of closing the
transactions contemplated hereunder and under the other Transaction Documents;
(m) [intentionally omitted]; and
(n) with respect to an Acquired Loan intended to be included as a part of the Purchased
Collateral, the Buyer and the Administrative Agent shall have received a satisfactory opinion of
counsel.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1 Seller’s Representations and Warranties.
As of each Purchase Date, the Seller represents and warrants to the Buyer for the benefit of
the Buyer and each of its successors and assigns that:
(a) Organization and Good Standing. The Seller has been duly organized, and is
validly existing as a limited liability company in good standing, under the laws of the State of
Delaware, with all requisite company power and authority to own or lease its properties and conduct
its business as such business is presently conducted, and had at all relevant times, and now has,
all necessary power, authority and legal right to acquire, own and sell the Purchased Collateral.
8
(b) Due Qualification. The Seller is duly qualified to do business and is in good
standing as a limited liability company, and has obtained all necessary licenses and approvals, in
all jurisdictions in which the ownership or lease of property or the conduct of its business
requires such qualification, licenses or approvals.
(c) Power and Authority; Due Authorization; Execution and Delivery. The Seller (i)
has all necessary power, authority and legal right to (a) execute and deliver this Agreement and
the other Transaction Documents to which it is a party, (b) carry out the terms of the Transaction
Documents to which it is a party, and (c) sell and assign an ownership interest in the Purchased
Collateral on the terms and conditions provided herein and (ii) has duly authorized by all
necessary company action the execution, delivery and performance of this Agreement and the other
Transaction Documents to which it is a party and the sale and assignment of an ownership interest
in the Purchased Collateral on the terms and conditions herein provided. This Agreement and each
other Transaction Document to which the Seller is a party have been duly executed and delivered by
the Seller.
(d) Binding Obligation. This Agreement and each other Transaction Document to which
the Seller is a party constitutes a legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its respective terms, except as such enforceability may be
limited by Insolvency Laws and by general principals of equity (whether considered in a suit at law
or in equity).
(e) No Violation. The consummation of the transactions contemplated by this Agreement
and the other Transaction Documents to which it is a party and the fulfillment of the terms hereof
and thereof will not (i) conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time or both) a default under, the Seller’s
certificate of formation, operating agreement or any Contractual Obligation of the Seller, (ii)
result in the creation or imposition of any Lien (other than Permitted Liens) upon any of the
Seller’s properties pursuant to the terms of any such Contractual Obligation, other than this
Agreement, or (iii) violate any Applicable Law.
(f) No Proceedings. There is no litigation, proceedings or investigations pending or,
to the best knowledge of the Seller, threatened against the Seller, before any Governmental
Authority (i) asserting the legality, invalidity or enforceability of this Agreement or any other
Transaction Document to which the Seller is a party, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or any other Transaction Document to which
the Seller is a party or (iii) seeking any determination or ruling that could reasonably be
expected to have Material Adverse Effect.
(g) All Consents Required. All approvals, authorizations, consents, orders or other
actions of any Person or of any Governmental Authority (if any) required for the due execution,
delivery and performance by the Seller of this Agreement and any other Transaction Document to
which the Seller is a party have been obtained.
(h) Bulk Sales. The execution, delivery and performance of this Agreement and the
transactions contemplated hereby do not require compliance with any “bulk sales” act or similar law
by Seller.
9
(i) Solvency. The Seller is not the subject of any Insolvency Proceedings or
Insolvency Event. The transactions under this Agreement and any other Transaction Document to
which the Seller is a party do not and will not render the Seller not Solvent.
(j) Selection Procedures. No procedures believed by the Seller to be adverse to the
interests of the Buyers were utilized by the Seller in identifying and/or selecting the Assets
included in the Purchased Collateral. In addition, each Asset shall have been underwritten in
accordance with and satisfy the standards of any Credit and Collection Policy that has been
established by the Seller and is then in effect.
(k) Taxes. The Seller has filed or caused to be filed all tax returns that are
required to be filed by it. The Seller has paid or made adequate provisions for the payment of all
Taxes and all assessments made against it or any of its properties (other than any amount of Tax
the validity of which is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in accordance with GAAP have been provided on the books of the
Seller), and no tax lien has been filed and, to the Seller’s knowledge, no claim is being asserted
by an applicable Governmental Authority, with respect to any such Tax, fee or other charge.
(l) Exchange Act Compliance; Regulations T, U and X. None of the transactions
contemplated herein (including, without limitation, the use of the proceeds from the sale of the
Purchased Collateral) will violate or result in a violation of Section 7 of the Securities
Exchange Act, or any regulations issued pursuant thereto, including, without limitation,
Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter
II. The Seller does not own or intend to carry or purchase, and no proceeds from the sale of the
Purchased Collateral will be used to carry or purchase, any “margin stock” within the meaning of
Regulation U or to extend “purpose credit” within the meaning of Regulation U.
(m) Intentionally Omitted.
(n) Security Interest.
(i) This Agreement creates a valid and continuing security interest (as defined in the
applicable UCC) in the Purchased Collateral in favor of the Buyer and the Administrative Agent as
assignee on behalf of the Secured Parties, which security interest is prior to all other Liens
(except for Permitted Liens), and is enforceable as such against creditors of and purchasers from
the Seller;
(ii) each of the Assets, along with the related Asset Files, constitutes a “general
intangible,” an “instrument,” an “account,” or “chattel paper,” within the meaning of Article 9 of
the UCC of all applicable jurisdictions;
(iii) the Seller owns and has good and marketable title to the Purchased Collateral free and
clear of any Lien (other than Permitted Liens), claim or encumbrance of any Person;
(iv) the Seller has received all consents and approvals required by the terms of any Asset to
the sale and granting of a security interest in the Assets hereunder to the Buyer and the
Administrative Agent as assignee on behalf of the Secured Parties;
10
(v) the Seller has caused the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under Applicable Law in order to perfect the
security interest in the Purchased Collateral granted hereunder to the Buyer and the Administrative
Agent as assignee on behalf of the Secured Parties;
(vi) other than the security interest granted to the Buyer and the Administrative Agent as
assignee on behalf of the Secured Parties, the Seller has not pledged, assigned, sold, granted a
security interest in or otherwise conveyed any of the Purchased Collateral. The Seller has not
authorized the filing of and is not aware of any financing statements against the Seller that
include a description of collateral covering the Purchased Collateral other than any financing
statement (A) relating to the security interest granted to the Purchasers under the Sale and
Servicing Agreement, or (B) that has been terminated. The Seller is not aware of the filing of any
judgment or tax lien filings against the Seller;
(vii) all original executed copies of each underlying promissory note or copies of each Loan
Register, as applicable, that constitute or evidence each Asset has been, or subject to the
delivery requirements contained herein, will be delivered to the Collateral Custodian;
(viii) the Seller has received a written acknowledgment from the Collateral Custodian that the
Collateral Custodian or its bailee is holding the underlying promissory notes (if any) and the
copies of the Loan Registers that constitute or evidence the Assets solely on behalf of and for the
benefit of the Secured Parties;
(ix) none of the underlying promissory notes or Loan Registers, as applicable, that constitute
or evidence the Assets has any marks or notations indicating that they have been pledged, assigned
or otherwise conveyed to any Person other than the Administrative Agent, on behalf of the Secured
Parties;
(x) none of the Collateral has been pledged or otherwise made subject to a Lien; and
(xi) with respect to (1) any Asset comprising “financial assets” within the meaning of the
UCC, such Assets have been delivered to and are being held in a “securities account” within the
meaning of the UCC that is maintained in the name of, and under the control and direction of the
Collateral Custodian or another institution that for the purposes of the UCC is a “securities
intermediary” whose “jurisdiction” with respect to the Collateral is the State of New York, the
terms of which account treat the Collateral Custodian as entitled to exercise the rights that
comprise any financial assets credited to such account solely on behalf of and for the benefit of
the Secured Parties and (2) any Asset comprising certificated securities within the meaning of the
UCC, such Assets have been delivered to the Collateral Custodian and indorsed in blank to the
Collateral Custodian solely on behalf of and for the benefit of the Secured Parties.
(o) Reports Accurate. All Monthly Reports (if prepared by the Seller in its capacity
as Servicer or otherwise, or to the extent that information contained therein is supplied by the
Seller), information, exhibits, schedules, financial statements, documents, books, records or
11
reports furnished or to be furnished by the Seller to the Buyer in connection with this Agreement
are true, complete and correct.
(p) Location of Offices. The principal place of business and chief executive office
of the Seller and the office where the Seller keeps all the Records are located at the address of
the Seller referred to in Section 9.2 hereof (or at such other locations as to which the
notice and other requirements specified in Section 5.2(f) shall have been satisfied).
(q) Lock–Boxes. The names and addresses of all the Lock–Box Banks, together with the
account numbers of the Lock–Box Accounts at such Lock–Box Banks and the names, addresses and
account numbers of all accounts to which Collections on the Purchased Collateral outstanding before
the initial Purchase hereunder have been sent, are specified in Schedule II (which shall be
deemed to be amended in respect of terminating or adding any Lock–Box Account or Lock–Box Bank upon
satisfaction of the notice and other requirements specified in Section 5.2(j)). The Seller
has not granted or agreed to grant to any Person other than the Buyer and Collateral Custodian an
interest in any Lock–Box Account except as disclosed to the Administrative Agent and in a manner
consistent with the Intercreditor Agreement.
(r) Tradenames. The Seller has no trade names, fictitious names, assumed names or
“doing business as” names or other names under which it has done or is doing business.
(s) Sale Agreement. This Agreement is the only agreement or arrangement pursuant to
which the Seller sells the Purchased Collateral that is the subject of this Agreement.
(t) Value Given. The Buyer has given reasonably equivalent value to the Seller in
consideration for the transfer to the Buyer of the Purchased Collateral, no such transfer shall
have been made for or on account of an antecedent debt owed by the Seller to the Buyer, and no such
transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Code.
(u) Accounting. The Seller accounts for the transfers from it to the Buyer of
interests in Purchased Collateral as financings of such Purchased Collateral for consolidated
accounting purposes (with a notation that it is treating the transfers as a sale for legal and all
other purposes on its books, records and financial statements, in each case consistent with GAAP
and with the requirements set forth herein).
(v) Special Purpose Entity. The Buyer is an entity with assets and liabilities
separate and distinct from those of the Seller and any Affiliates thereof, and the Seller hereby
acknowledges that the Administrative Agent, the Purchasers and the other Secured Parties are
entering into the transactions contemplated by the Sale and Servicing Agreement in reliance upon
the Buyer’s identity as a separate legal entity separate from the Seller and from each Affiliate of
the Seller. Therefore, from and after the date of execution and delivery of this Agreement, the
Seller shall take all steps, including, without limitation, all steps that the Administrative
Agent, any Purchaser, or any other Secured Party may from time to time reasonably request, to
maintain the Buyer’s identity as a separate legal entity and to make it manifest to third parties
that the Buyer is an entity with assets and liabilities distinct from those of the Seller and any
Affiliate thereof and not just a division of the Seller or any such Affiliate.
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Without limiting
the generality of the foregoing and in addition to the other covenants set forth herein, Seller
shall take all reasonable steps to ensure that the Buyer (i) will take or refrain from taking, as
applicable, each of the activities specified in the non-consolidation opinion of Xxxxxx Xxxxx LLP,
dated as of the date hereof, necessary or reasonably appropriate to maintain Buyer’s identity as a
separate legal entity separate from the Seller and from each Affiliate of the Seller, and (ii) will
not take, refrain from taking, or fail to take (as applicable) any other action described in
Section 4.1(u) of the Sale and Servicing Agreement.
(w) Intentionally Omitted.
(x) Investment Company Act. The Seller is not, and is not controlled by, an
“investment company” within the meaning of, or is exempt from the registration requirement of, the
Investment Company Act of 1940, as amended.
(y) ERISA. The present value of all benefits vested under all “employee pension
benefit plans,” as such term is defined in Section 3 of ERISA, maintained by the Seller, or in
which employees of the Seller are entitled to participate, as from time to time in effect (herein
called the “Pension Plans”), does not exceed the value of the assets of the Pension Plan
allocable to such vested benefits (based on the value of such assets as of the last annual
valuation date). No prohibited transactions, accumulated funding deficiencies, withdrawals or
reportable events have occurred with respect to any Pension Plans that, in the aggregate, could
subject the Seller to any material tax, penalty or other liability. No notice of intent to
terminate a Pension Plan has been billed, nor has any Pension Plan been terminated under
Section 4041(f) of ERISA, nor has the Pension Benefit Guaranty Corporation instituted
proceedings to terminate, or appoint a trustee to administer a Pension Plan and no event has
occurred or condition exists that might constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan.
(z) Compliance with Law. The Seller has complied in all respects with all Applicable
Laws to which it may be subject, and no Purchased Collateral
contravenes any Applicable Laws (including, without limitation, all applicable predatory and abusive lending laws and all
laws, rules and regulations relating to licensing, truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection practices, and privacy).
(aa) Credit and Collection Policy. The Seller has complied in all material respects
with the Credit and Collection Policy with respect to all of the Purchased Collateral.
(bb) Collections. The Seller acknowledges that all Collections received by it or its
Affiliates with respect to the Purchased Collateral sold hereunder are held and shall be held in
trust for the benefit of the Buyer (or its assignees) until deposited into the Lock–Box Account as
required by the Sale and Servicing Agreement.
(cc) Set–Off, etc. Other than B-Note Loans and Mezzanine Loans, no Purchased
Collateral has been compromised, adjusted, extended, satisfied, subordinated, rescinded, set–off or
modified by the Seller or the Obligor thereof, and no Purchased Collateral is subject to
compromise, adjustment, extension, satisfaction, subordination, rescission, set–off, counterclaim,
defense, abatement, suspension, deferment, deduction, reduction, termination or modification,
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whether arising out of transactions concerning the Purchased Collateral or otherwise, by the Seller
or the Obligor with respect thereto, except for amendments to such Purchased Collateral otherwise
permitted under the Transaction Documents and in accordance with the Credit and Collection Policy.
(dd) Full Payment. The Seller has no knowledge of any fact which should lead it to
expect that any Purchased Collateral will not be paid in full.
(ee) Accuracy of Representations and Warranties. Each representation or warranty by
the Seller contained herein or in any certificate or other document furnished by the Seller
pursuant hereto or in connection herewith is true and correct in all material respects.
(ff) Representations and Warranties for Benefit of Buyer’s Assignees. Each of the
representations and warranties of the Seller contained in this Agreement and the other Transaction
Documents to which it is a party and that have been executed and delivered on or prior to such
Purchase Date is true and correct in all material respects on the date it was made, and the Seller
hereby makes each such representation and warranty to, and for the benefit of the Administrative
Agent, the Purchasers and the other Secured Parties as if the same were set forth in full herein.
(gg) Ownership of Buyer. The Seller owns, directly or indirectly, 100% of the
membership interests of the Buyer, free and clear of any Lien. Such membership interests are
validly issued, fully paid and non–assessable, and there are no options, warrants or other rights
to acquire membership interests of the Buyer.
(hh) Participation, Acquired and Assigned Loans. The participations created with
respect to the Participation Loans and the sale to the Buyer with respect to the Acquired and
Assigned Loans do not violate any provisions of the underlying Required Asset Documents and such
documents do not contain any express or implied prohibitions on participations or sales of such
Loans, other than those that have been complied with.
(ii) Environmental.
(i) Each item of the Related Property is in compliance with all applicable Environmental Laws,
and there is no violation of any Environmental Law with respect to such Related Property and there
are no conditions relating to such Related Property that could give rise to liability under any
applicable Environmental Laws.
(ii) None of the Related Property contains, or has previously contained, any Materials of
Environmental Concern at, on or under the Related Property in amounts or concentrations that
constitute or constituted a violation of, or could give rise to liability under, Environmental
Laws.
(iii) The Seller has not received any written or verbal notice of, or inquiry from any
Governmental Authority regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with Environmental Laws with
regard to any of the Related Property, nor does Seller have knowledge or reason to believe that any
such notice will be received or is being threatened.
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(iv) Materials of Environmental Concern have not been transported or disposed of from the
Related Property, or generated, treated, stored or disposed of at, on or under any of the Related
Property or any other location, in each case by or on behalf of the Seller in violation of, or in a
manner that would be reasonably likely to give rise to liability under, any applicable
Environmental Law.
(v) No judicial proceeding or governmental or administrative action is pending or, to the best
knowledge of the Seller, threatened, under any Environmental Law to which any of the Seller is or
will be named as a party, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial requirements,
outstanding under any Environmental Law with respect to the Seller or the Related Property.
(vi) There has been no release or threat of release of Materials of Environmental Concern at
or from any of the Related Property, or arising from or related to the operations (including,
without limitation, disposal) of the Seller in connection with the Related Property in violation of
or in amounts or in a manner that could give rise to liability under Environmental Laws.
(jj) USA PATRIOT Act. Neither the Seller nor any Affiliate of the Seller is (i) a
country, territory, organization, person or entity named on an Office of Foreign Asset Control
(OFAC) list, (ii) a Person that resides or has a place of business in a country or territory named
on such lists or which is designated as a “Non-Cooperative Jurisdiction” by the Financial Action
Task Force on Money Laundering, or whose subscription funds are transferred from or through such a
jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT Act, i.e., a
foreign bank that does not have a physical presence in any country and that is not affiliated with
a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv)
a person or entity that resides in or is organized under the laws of a jurisdiction designated
by the United States Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT
Act as warranting special measures due to money laundering concerns.
(kk) Material Adverse Effect. The Seller represents and warrants that (i) since June
30, 2007 and (ii) as of the most recent Purchase Date there has been no Material Adverse Effect.
It is understood and agreed that the representations and warranties provided in this
Section 4.1 shall survive (x) the sale and assignment or contribution of the Purchased
Collateral to the Buyer and (y) any subsequent transfer of the Purchased Collateral by the Buyer
(including its grant of a first priority perfected security interest in, to and under the Purchased
Collateral pursuant to the Sale and Servicing Agreement). Upon discovery by the Seller or the
Buyer of a breach of any of the foregoing representations and warranties, the party discovering
such breach shall give prompt written notice thereof to the other and to the Administrative Agent
immediately upon obtaining knowledge of such breach.
Section 4.2 Representations and Warranties of the Seller Relating to the Agreement and the
Purchased Collateral.
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The Seller hereby represents and warrants to the Buyer, (i) with respect to clauses
(a) through (c) below, as of the Closing Date and as of each Purchase Date and (ii)
with respect to clause (d) below, since June 30, 2007 and as of the most recent Purchase
Date:
(a) Binding Obligation, Valid Transfer and Security Interest.
(i) This Agreement and each other Transaction Document to which the Seller is a party each
constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforceability may be limited by Insolvency Laws and
except as such enforceability may be limited by general principles of equity (whether considered in
a suit at law or in equity).
(ii) This Agreement constitutes a valid transfer to the Buyer of all right, title and interest
of the Seller in, to and under all Purchased Collateral, free and clear of any Lien of any Person
claiming through or under the Seller or its Affiliates, except for Permitted Liens. If the
conveyances contemplated by this Agreement are determined to be a transfer for security, then this
Agreement constitutes a grant of a security interest in all Purchased Collateral to the Buyer which
upon the delivery of the Required Asset Documents to the Collateral Custodian and the filing of the
financing statements described in Section 4.1(n) and, in the case of Additional Assets on
the applicable Purchase Date, shall be a first priority perfected security interest in all
Purchased Collateral, subject only to Permitted Liens. Neither the Seller nor any Person claiming
through or under Seller shall have any claim to or interest in the Collection Account or the Excess
Spread Account and, if this Agreement constitutes the grant of a security interest in such
property, except for the interest of Seller in such property as a debtor for purposes of the UCC.
(b) Eligibility of Purchased Collateral. As of the Closing Date and each Purchase
Date, (i) the Schedule I (the Purchased Collateral List) is an accurate and complete listing in all
respects of all the Purchased Collateral as of the Cut–Off Date and the information contained
therein with respect to the identity of such Purchased Collateral and the amounts owing thereunder
is true and correct in all respects as of the related Cut–Off Date, (ii) each item of Purchased
Collateral included in the Borrowing Base is an Eligible Asset as of such date, (iii) each item of
Purchased Collateral is free and clear of any Lien of any Person (other than Permitted Liens) and
in compliance with all Applicable Laws, (iv) with respect to each item of Purchased Collateral, all
consents, licenses, approvals or authorizations of or registrations or declarations of any
Governmental Authority required to be obtained, effected or given by the Seller in connection with
the transfer of an ownership interest in item of Purchased Collateral to the Buyer have been duly
obtained, effected or given and are in full force and effect, and (v) the representations and
warranties set forth in Section 4.2(a) are true and correct with respect to each item of
Purchased Collateral.
(c) No Fraud. Each Asset was originated without any fraud or material
misrepresentation by the Originator or, to the best of the Seller’s knowledge, on the part of the
Obligor.
(d) Material Adverse Effect. There has been no Material Adverse Effect.
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It is understood and agreed that the representations and warranties provided in this
Section 4.2 shall survive (x) the sale and assignment or contribution of the Purchased
Collateral to the Buyer, (y) any subsequent transfer of the Purchased Collateral by the Buyer
(including its grant of a perfected security interest in, to and under the Purchased Collateral
pursuant to the Sale and Servicing Agreement which, shall be of first priority security interest)
and (z) the termination of this Agreement and the Sale and Servicing Agreement. Upon discovery by
the Seller or the Buyer of a breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice thereof to the other and to the
Administrative Agent immediately upon obtaining knowledge of such breach.
Section 4.3 Representations and Warranties of the Buyer.
The Buyer hereby represents and warrants to the Seller, as of the Closing Date and each
Purchase Date, that:
(a) Organization and Good Standing. The Buyer has been duly organized, and is validly
existing as a limited liability company in good standing under the laws of the State of Delaware,
with all requisite company power and authority to own or lease its properties and conduct its
business as such business is presently conducted, and had at all relevant times, and now has, all
necessary power, authority and legal right to acquire and own the Purchased Collateral.
(b) Due Qualification. The Buyer is duly qualified to do business and is in good
standing as a limited liability company, and has obtained all necessary licenses and approvals in
all jurisdictions in which the ownership or lease of property or the conduct of its business
requires such qualification, licenses or approvals.
(c) Power and Authority; Due Authorization; Execution and Delivery. The Buyer (i) has
all necessary power, authority and legal right to (a) execute and deliver this Agreement and the
other Transaction Documents to which it is a party, (b) carry out the terms of the Transaction
Documents to which it is a party, and (ii) has duly authorized by all necessary company action the
execution, delivery and performance of this Agreement and the other Transaction Documents to which
it is a party and the purchase of the Purchased Collateral on the terms and conditions herein
provided. This Agreement and each other Transaction Document to which the Buyer is a party have
been duly executed and delivered by the Buyer.
(d) Binding Obligation. This Agreement and each other Transaction Document to which
the Buyer is a party constitutes a legal, valid and binding obligation of the Buyer enforceable
against the Buyer in accordance with its respective terms, except as such enforceability may be
limited by Insolvency Laws and by general principles of equity (whether considered in a suit at law
or in equity).
(e) No Violation. The consummation of the transactions contemplated by this Agreement
and the other Transaction Documents to which it is a party and the fulfillment of the terms hereof
and thereof will not (i) conflict with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time or both) a default under, the Buyer’s
certificate of formation, operating agreement or any Contractual Obligation of the
17
Buyer, (ii)
result in the creation or imposition of any Lien (other than Permitted Liens) upon any of the
Buyer’s properties pursuant to the terms of any such Contractual Obligation, other than this
Agreement, or (iii) violate any Applicable Law.
(f) No Proceedings. There is no litigation, proceedings or investigations pending or,
to the best knowledge of the Buyer, threatened against the Buyer, before any Governmental Authority
(i) asserting the legality, invalidity or enforceability of this Agreement or any other Transaction
Document to which the Buyer is a party, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any other Transaction Document to which the Buyer is
a party or (iii) seeking any determination or ruling that could reasonably be expected to have
Material Adverse Effect.
(g) All Consents Required. All approvals, authorizations, consents, orders, licenses
or other actions of any Person or of any Governmental Authority (if any) required for the due
execution, delivery and performance by the Buyer of this Agreement and any other Transaction
Document to which the Buyer is a party have been obtained.
(h) Material Adverse Effect. The Buyer represents and warrants that (i) since August
9, 2007 there has been no Material Adverse Effect.
ARTICLE V.
COVENANTS
Section 5.1 Affirmative Covenants of the Seller.
From the date hereof until the Collection Date:
(a) Compliance with Laws. The Seller will comply in all material respects with all
Applicable Laws, including those with respect to the Purchased Collateral or any part thereof.
(b) Preservation of Limited Liability Company Existence. The Seller will preserve and
maintain its limited liability company existence, rights, franchises and privileges in the
jurisdiction of its formation, and qualify and remain qualified in good standing as a foreign
limited liability company in each jurisdiction where the failure to preserve and maintain such
existence, rights, franchises, privileges and qualification has had, or could reasonably be
expected to have, a Material Adverse Effect.
(c) Performance and Compliance with Assets. The Seller will, at its expense, timely
and fully perform and comply with all provisions, covenants and other promises required to be
observed by it under the Purchased Collateral and all other agreements related to such Purchased
Collateral.
(d) Keeping of Records and Books of Account. The Seller will maintain and implement
administrative and operating procedures (including, without limitation, an ability to recreate
records evidencing the Purchased Collateral in the event of the destruction of the originals
thereof), and keep and maintain all documents, books, records and other information
18
reasonably
necessary or advisable for the collection of all or any portion of the Purchased Collateral.
(e) Buyer’s Assets. With respect to the Purchased Collateral sold to the Buyer, the
Seller will (i) sell such Purchased Collateral solely pursuant to and in accordance with the terms
of this Agreement, (ii) (at the Seller’s expense) take all action necessary to perfect, protect and
more fully evidence the Buyer’s or its assignee’s ownership or security interest in such Purchased
Collateral free and clear of any Lien other than the Lien created hereunder and Permitted Liens,
including, without limitation, (a) filing and maintaining (at the Seller’s expense), effective
financing statements against the Seller in all necessary or appropriate filing offices, and filing
continuation statements, amendments or assignments with respect thereto in such filing offices, and
(b) executing or causing to be executed such other instruments or notices as may be necessary or
appropriate, (iii) permit the Buyer, the Administrative Agent or their respective agents or
representatives to visit the offices of the Seller during normal office hours and upon reasonable
notice examine and make copies of all documents, books, records and other information concerning
the Purchased Collateral and discuss matters related thereto with any of the officers or employees
of the Seller having knowledge of such matters, and (iv) take all additional action that the Buyer
or the Administrative Agent may reasonably request to perfect, protect and more fully evidence the
respective interests of the parties to this Agreement in the Purchased Collateral.
(f) Delivery of Collections. The Seller will cause (1) all proceeds from all
Lock–Boxes to be directly deposited by a Lock–Box Bank into a Lock–Box Account and (2) each
Lock–Box and Lock–Box Account to be subject at all times to a Lock–Box Agreement and Intercreditor
Agreement. In the event any payments relating to any Purchased Collateral are remitted directly to
the Seller or any Affiliate of the Seller, the Seller will remit (or will cause all
such payments to be remitted) directly to a Lock–Box Bank and deposited into a Lock–Box
Account within two Business Days following receipt thereof, and, at all times prior to such
remittance, the Seller will itself hold or, if applicable, will cause such payments to be held in
trust for the exclusive benefit of the Buyer, the Administrative Agent and the Purchasers. Until
so deposited, all such Collections shall be held in trust for the Buyer or its assignees by the
Seller.
(g) Credit and Collection Policy. The Seller will (a) comply in all material respects
with the Credit and Collection Policy in regard to the Purchased Collateral, and (b) furnish to the
Buyer and the Administrative Agent, prior to its effective date, prompt notice of any material
changes in the Credit and Collection Policy. The Seller may agree to or otherwise permit to occur
changes in the Credit and Collection Policy that would not impair the collectibility of any of the
Purchased Collateral or otherwise adversely affect the interests or remedies of the Buyer, the
Administrative Agent or the Secured Parties under this Agreement or any other Transaction Document.
The Seller may not agree to or otherwise permit to occur changes in the Credit and Collection
Policy which would impair the collectibility of any of the Purchased Collateral or otherwise
adversely affect the interests or remedies of the Buyer, the Administrative Agent or the Secured
Parties under this Agreement or any other Transaction Document, without the prior written consent
of the Buyer and the Administrative Agent.
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(h) Termination Events. The Seller will provide the Buyer and the Administrative
Agent with immediate written notice of the occurrence of each Termination Event and each Unmatured
Termination Event of which the Seller has knowledge or has received notice. In addition, no later
than two Business Days following the Seller’s knowledge or notice of the occurrence of any
Termination Event or Unmatured Termination Event, the Seller will provide to the Buyer and the
Administrative Agent a written statement of the chief financial officer or chief accounting officer
of Seller setting forth the details of such event and the action that the Seller proposes to take
with respect thereto.
(i) Taxes. The Seller will file and pay any and all Taxes required to meet the
obligations of the Transaction Documents.
(j) Obligor Notification Forms. The Seller shall furnish the Buyer and the
Administrative Agent with an appropriate power of attorney to send (at the Buyer’s or the
Administrative Agent’s discretion after the occurrence of a Termination Event or an Unmatured
Termination Event) Obligor notification forms to give notice to the Obligors of the Secured
Parties’ interest in the Purchased Collateral and the obligation to make payments as directed by
the Buyer or the Administrative Agent.
(k) Adverse Claims. The Seller will not create, or participate in the creation of, or
permit to exist, any Liens in relation to each Lock–Box Account other than as disclosed on or prior
to the Closing Date to the Buyer and the Administrative Agent and in a manner consistent with the
Intercreditor Agreement.
(l) Notices. The Seller will furnish to the Buyer and the Administrative Agent:
(i) Income Tax Liability. Within ten Business Days after the receipt of revenue agent
reports or other written proposals, determinations or assessments of the Internal Revenue Service
or any other taxing authority which propose, determine or otherwise set forth positive adjustments
to the Tax liability of any Affiliated group (within the meaning of Section 1504(a)(l) of
the Internal Revenue Code of 1986 (as amended from time to time)) which equal or exceed $1,000,000
in the aggregate, telephonic or facsimile notice (confirmed in writing within five Business Days)
specifying the nature of the items giving rise to such adjustments and the amounts thereof;
(ii) Auditors’ Management Letters. Promptly after the receipt thereof, any auditors’
management letters that are received by the Seller or by its accountants;
(iii) Representations. Forthwith upon receiving knowledge of same, the Seller shall
notify the Buyer and the Administrative Agent if any representation or warranty set forth in
Section 4.1 was incorrect at the time it was given or deemed to have been given and at the
same time deliver to the Buyer and the Administrative Agent a written notice setting forth in
reasonable detail the nature of such facts and circumstances. In particular, but without limiting
the foregoing, the Seller shall notify the Buyer and the Administrative Agent in the manner set
forth in the preceding sentence before any Purchase Date of any facts or circumstances within the
knowledge of the Seller which would render any of the said
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representations and warranties untrue at
the date when such representations and warranties were made or deemed to have been made;
(iv) ERISA. Promptly after receiving notice of any “reportable event” (as defined in
Title IV of ERISA) with respect to the Seller (or any ERISA Affiliate thereof), a copy of such
notice;
(v) Proceedings. As soon as possible and in any event within three Business Days
after any executive officer of the Seller receives notice or obtains knowledge thereof, of any
settlement of, material judgment (including a material judgment with respect to the liability phase
of a bifurcated trial) in or commencement of any labor controversy (of a material nature), material
litigation, material action, material suit or material proceeding before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting
the Purchased Collateral, the Transaction Documents, the Buyer’s or the Secured Parties’ interest
in the Purchased Collateral, or the Seller, or any other Subsidiary of CapitalSource Inc.; and
(vi) Notice of Material Events. Promptly upon becoming aware thereof, notice of any
other event or circumstances that, in the reasonable judgment of the Seller, is likely to have a
Material Adverse Effect.
(m) Other. The Seller will furnish to the Buyer and the Administrative Agent
promptly, from time to time, such other information, documents, records or reports respecting the
Purchased Collateral or the condition or operations, financial or otherwise, of Seller as the Buyer
and the Administrative Agent may from time to time reasonably request in order to protect the
interests of the Buyer, the Administrative Agent and the Secured Parties under or as contemplated
by this Agreement and the Sale and Servicing Agreement.
(n) Separate Identity. The Seller acknowledges that the Administrative Agent, the
Purchasers and the other Secured Parties are entering into the transactions contemplated by the
Sale and Servicing Agreement in reliance upon the Buyer’s identity as a legal entity that is
separate from the Seller and any Affiliates thereof. Therefore, from and after the date of
execution and delivery of this Agreement, the Seller will take all reasonable steps including,
without limitation, all steps that the Administrative Agent, the Purchasers and the other Secured
Parties may from time to time reasonably request to maintain the Buyer’s identity as a separate
legal entity and to make it manifest to third parties that the Buyer is an entity with assets and
liabilities distinct from those of the Seller and any Affiliates thereof and not just a division of
the Seller or any such Affiliate. Without limiting the generality of the foregoing and in addition
to the other covenants set forth herein, the Seller agrees that:
(i) the Seller will take all other actions necessary on its part to ensure that the Buyer is
at all times in compliance with Section 4.1(u) of the Sale and Servicing Agreement;
(ii) the Seller shall maintain limited liability company records and books of account separate
from those of the Buyer;
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(iii) the annual financial statements of the Seller shall disclose the effects of the Seller’s
transactions in accordance with GAAP and the annual financial statements of the Seller shall not
reflect in any way that the assets of the Buyer, including, without limitation, the Purchased
Collateral, could be available to pay creditors of the Seller or any other Affiliate of the Seller;
(iv) the resolutions, agreements and other instruments underlying the transactions described
in this Agreement shall be continuously maintained by the Seller as official records;
(v) the Seller shall maintain an arm’s–length relationship with the Buyer and will not hold
itself out as being liable for the debts of the Buyer;
(vi) the Seller shall keep its assets and its liabilities wholly separate from those of the
Buyer;
(vii) the Seller will avoid the appearance, and promptly correct any known misperception of
any of the Seller’s creditors, that the assets of the Buyer are available to pay the obligations
and debts of the Seller; and
(viii) to the extent that the Seller services the Assets and performs other services on the
Buyer’s behalf, the Seller will clearly identify itself as an agent for the Buyer in the
performance of such duties; provided, however, that the Seller will not be required to so identify
itself when communicating with the Obligors.
(o) Cooperation with Requests for Information or Documents. The Seller will cooperate
fully with all reasonable requests of the Buyer regarding the provision of any information or
documents, necessary or desirable, including the provision of such information or
documents in electronic or machine–readable format, to allow each of the Buyer and its
assignees to carry out their responsibilities under the Transaction Documents.
(p) Payment Performance and Discharge of Obligations. The Seller will pay, perform
and discharge all of its obligations and liabilities, including, without limitation, all taxes,
assessments and governmental charges upon its income and properties, when due, the non–payment,
performance or discharge of which would reasonably be expected to have a Material Adverse Effect,
unless and only to the extent that such obligations, liabilities, taxes, assessments and
governmental charges shall be contested in good faith and by appropriate proceedings and that, to
the extent required by GAAP, proper and adequate book reserves relating thereto are established by
the Seller and then only to the extent that a bond is filed in cases where the filing of a bond is
necessary to avoid the creation of a Lien against any of its properties.
(q) Copies of Other Information. The Seller will deliver to the Buyer and the
Administrative Agent:
(i) promptly, but in any event within ten Business Days after the filing thereof, a copy of
(a) each report or other filing made by the Seller or any other Subsidiary of CapitalSource Inc.
with the Securities and Exchange Commission (the “SEC”) and required by the SEC to be
delivered to the shareholders of the Seller or any of its Affiliates, and (b) each
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report and final
registration statement of the Seller or any other Subsidiary of CapitalSource Inc. filed with the
SEC; and
(ii) promptly, from time to time, such other information, documents, records or reports
respecting the Purchased Collateral or the conditions or operations, financial or otherwise, of the
Seller (including, without limitation, reports and notices relating to the Seller’s actions under
and compliance with ERISA and the Investment Company Act of 1940, as amended) as the Buyer, the
Administrative Agent may from time to time request in order to perform their obligations hereunder
or under any other Transaction Document or to protect the interests of the Buyer under or as
contemplated by this Agreement and the other Transaction Documents.
Section 5.2 Negative Covenants of Seller.
From the date hereof until the Collection Date:
(a) Purchased Collateral Not to be Evidenced by Instruments. The Seller will take no
action to cause any Purchased Collateral that is not, as of the related Purchase Date, as the case
may be, evidenced by an instrument, to be so evidenced except in connection with the enforcement or
collection of such Purchased Collateral.
(b) Security Interests. Except as otherwise permitted herein and in respect of any
Optional Sale or Discretionary Sale, the Seller will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on any Purchased
Collateral, whether now existing or hereafter transferred hereunder, or any interest, therein, and
the Seller will not sell, pledge, assign or suffer to exist any Lien on its interest, if any,
hereunder.
The Seller will promptly notify the Buyer and the Administrative Agent of the existence of any
Lien on any Purchased Collateral and the Seller shall defend the right, title and interest of the
Buyer and the Administrative Agent in, to and under the Purchased Collateral against all claims of
third parties; provided however that nothing in this Section 5.2(b) shall prevent or be
deemed to prohibit the Seller from suffering to exist Permitted Liens upon any of the Purchased
Collateral.
(c) Mergers, Acquisitions, Sales, etc. The Seller will not be a party to any merger
or consolidation, or purchase or otherwise acquire any of the assets or any stock of any class of,
or any partnership or joint venture interest in, any other Person, or sell, transfer, convey or
lease any of its assets, or sell or assign with or without recourse any Purchased Collateral or any
interest therein (other than pursuant hereto or to the Sale and Servicing Agreement).
(d) Deposits to Special Accounts. Except as otherwise provided in the Lock–Box
Agreement, the Seller will not deposit or otherwise credit, or cause or permit to be so deposited
or credited, to any Lock–Box Account cash or cash proceeds other than Collections in respect of
Purchased Collateral.
(e) Restricted Payments. The Seller shall not make any Restricted Junior Payment,
except that, so long as no Termination Event or Unmatured Termination Event has occurred and is
continuing or would result therefrom, the Seller may declare and make distributions to its members
on their membership interests.
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(f) Change of Name or Location of Loan Files. The Seller shall not (x) change its
name, move the location of its principal place of business and chief executive office, change the
offices where it keeps the records from the location referred to in Section 10.2 or change
the jurisdiction of its formation, or (y) move, or consent to the Collateral Custodian or Servicer
moving, the Required Asset Documents and Asset Files from the location thereof on the Closing Date,
unless the Seller has given at least 30 days’ written notice to the Buyer and the Administrative
Agent and has taken all actions required under the UCC of each relevant jurisdiction in order to
continue the first priority perfected security interest of the Buyer and the Administrative Agent
in the Purchased Collateral.
(g) Accounting of Purchases. Other than for tax and consolidated accounting purposes,
the Seller will not account for or treat (whether in financial statements or otherwise) the
transactions contemplated hereby in any manner other than as a sale of the Purchased Collateral by
the Seller to the Buyer. Other than for consolidated tax and accounting purposes, the Seller will
not account for or treat (whether in financial statements or otherwise) the transactions
contemplated by this Agreement in any manner other than as a sale of the Purchased Collateral by
the Seller to the Buyer.
(h) ERISA Matters. The Seller will not (a) engage or permit any ERISA Affiliate to
engage in any prohibited transaction for which an exemption is not available or has not previously
been obtained from the United States Department of Labor, (b) permit to exist any accumulated
funding deficiency, as defined in Section 302(a) of ERISA and Section 412(a) of the
Code, or funding deficiency with respect to any Benefit Plan other than a Multiemployer Plan, (c)
fail to make any payments to a Multiemployer Plan that the Seller or any ERISA
Affiliate may be required to make under the agreement relating to such Multiemployer Plan or
any law pertaining thereto, (d) terminate any Benefit Plan so as to result in any liability, or (e)
permit to exist any occurrence of any reportable event described in Title IV of ERISA.
(i) Organizational Documents. The Seller will not amend, modify, waive or terminate
any provision of its certificate of formation or operating agreement without the prior written
consent of the Buyer and the Administrative Agent.
(j) Changes in Payment Instructions to Obligors. The Seller will not add or terminate
any bank as a Lock–Box Bank or any Lock–Box Account from those listed in Schedule II or
make any change, or permit the Buyer or Servicer to make any change, in its instructions to
Obligors regarding payments to be made to the Seller or Servicer or payments to be made to any
Lock–Box Bank, unless the Buyer and the Administrative Agent have consented to such addition,
termination or change (which consent shall not be unreasonably withheld) and has received duly
executed copies of Lock–Box Agreements with each new Lock–Box Bank or with respect to each new
Lock–Box Account, as the case may be.
(k) Extension or Amendment of Assets. The Seller will not, except as otherwise
permitted herein or in the other Transaction Documents, extend, amend or otherwise modify, or
permit the Servicer to extend, amend or otherwise modify, the terms of any Purchased Collateral
(including the Related Security).
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(l) Credit and Collection Policy. The Seller may amend, modify, restate or replace,
in whole or in part, the Credit and Collection Policy, if such amendment, modification, restatement
or replacement would not impair the collectibility of any of the Purchased Collateral or otherwise
adversely affect the interests or remedies of the Buyer, the Administrative Agent or the Secured
Parties under this Agreement or any other Transaction Document. The Seller may not amend, modify,
restate or replace, in whole or in part, the Credit and Collection Policy, if such amendment,
modification, restatement or replacement would impair the collectibility of any of the Purchased
Collateral or otherwise adversely affect the interests or remedies of the Buyer, the Administrative
Agent or the Secured Parties under this Agreement or any Transaction Document without the prior
written consent of the Buyer and the Administrative Agent.
ARTICLE VI.
REPURCHASE OBLIGATION
Section 6.1 Retransfer of Purchased Collateral.
If on any day an Asset is (or becomes) a Warranty Asset, no later than two Business Days
following the earlier of knowledge by the Seller of such Asset becoming a Warranty Asset or receipt
by the Seller from the Buyer, Administrative Agent or the Servicer of written notice thereof, the
Seller shall either: (a) make a deposit to the Collection Account (for allocation pursuant to
Sections 2.9 or 2.10, as applicable, of the Sale and Servicing Agreement) in immediately available
funds in an amount equal to the Retransfer Price; or (b) subject to the satisfaction of the
conditions in Section 6.2, substitute for such Warranty Asset, a Substitute
Asset. In either of the foregoing instances, the Seller may (in its discretion) accept
retransfer of each such Warranty Asset and any Related Security. Upon confirmation of the
occurrence of the Retransfer Date for each for each Warranty Asset, the Buyer shall (if and when
the Seller elects to accept the retransfer of such Warranty Asset) automatically and without
further action be deemed to transfer, assign and set–over to the Seller, without recourse,
representation or warranty, all the right, title and interest of the Buyer in, to and under such
Warranty Asset and all future monies due or to become due with respect thereto, the Related
Security, all Proceeds of such Warranty Asset and Recoveries and Insurance Proceeds relating
thereto, all rights to security for any such Warranty Asset and all Proceeds and products of the
foregoing. The Buyer shall (if and when the Seller elects to accept the retransfer of such
Warranty Asset), at the sole expense of the Seller, execute such documents and instruments of
transfer as may be prepared by the Seller and take other such actions as shall reasonably be
requested by the Seller to effect the transfer of such Warranty Asset pursuant to this Section
6.1.
Section 6.2 Substitution of Assets.
On any day prior to the occurrence of a Termination Event (and after the Termination Date at
the discretion of the Buyer), the Seller may, subject to the conditions set forth in this
Section 6.2 and subject to the other restrictions contained herein, replace any Asset with
one or more Eligible Assets (each, a “Substitute Asset”); provided that no such replacement
shall occur unless each of the following conditions is satisfied as of the date of such replacement
and substitution:
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(a) the Seller has recommended to the Buyer (with a copy to the Collateral Custodian) in
writing that the Asset to be replaced should be replaced (each, a “Replaced Asset”);
(b) each Substitute Asset is an Eligible Asset on the date of substitution;
(c) after giving effect to any such substitution, the Advances Outstanding do not exceed the
lesser of (i) the Facility Amount and (ii) the Maximum Availability;
(d) for purposes only of substitutions pursuant to Section 6.1 undertaken because an
Asset has become a Warranty Asset, the aggregate Outstanding Asset Balance of such Substitute
Assets shall be equal to or greater than the aggregate Outstanding Asset Balance of the Replaced
Asset;
(e) for purposes only of substitutions pursuant to Section 6.1 undertaken because an
Asset has become a Warranty Asset, such Substitute Assets, at the time of substitution by the
Seller, shall have no greater weighted average life than the Replaced Assets;
(f) all representations and warranties of the Seller contained in Sections 4.1 and
4.2 shall be true and correct as of the date of substitution of any such Substitute Asset;
(g) the substitution of any Substitute Asset does not cause a Termination Event or Unmatured
Termination Event to occur;
(h) the sum of the Outstanding Asset Balance of all Substitute Assets does not exceed 20% of
the Facility Amount;
(i) the sum of the Outstanding Asset Balance of all Substitute Assets substituted for
Delinquent Assets, Charged–Off Asset and Warranty Assets does not exceed 10% of the Facility
Amount, calculated on an annualized basis commencing on the Closing Date;
(j) the Seller shall deliver to the Buyer on the date of such substitution a certificate of a
Responsible Officer certifying that each of the foregoing is true and correct as of such date; and
(k) each Asset that is replaced pursuant to the terms of this Section 6.2 shall be
substituted only with another Asset that meets the foregoing conditions.
(l) In addition, the Seller shall in connection with such substitution deliver to the
Collateral Custodian the related Required Asset Documents. In connection with any such
substitution, the Buyer shall, automatically and without further action, be deemed to transfer to
the Seller, free and clear of any Lien created pursuant to this Agreement, all of the right, title
and interest of the Buyer in, to and under such Replaced Asset, and the Buyer shall be deemed to
represent and warrant that it has the company authority and has taken all necessary company action
to accomplish such transfer, but without any other representation and warranty, express or implied.
Section 6.3 Deemed Collections.
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If on any day (i) the Buyer does not own or alternatively have a valid and perfected first
priority security interest in each item of Purchased Collateral or (ii) any Loan which has been
represented by the Seller to be an Eligible Asset is later determined not to have been an Eligible
Asset as of the related Cut-Off Date, upon the earlier of the Seller’s receipt of notice from the
Buyer or the Seller becoming aware thereof and the Seller’s failure to cure such breach within 30
days, the Seller shall be deemed to have received on such day a collection (a “Deemed
Collection”) of such Asset in full and shall on such day pay to the Buyer an amount equal to
the Outstanding Asset Balance of such Asset. In connection with any such Deemed Collection, the
Buyer shall automatically and without further action, be deemed to transfer to the Seller, free and
clear of any Lien created pursuant to this Agreement, all of the right, title and interest of the
Buyer in, to, and under the Asset with respect to which the Buyer has received such Deemed
Collection, but without any representation and warranty of any kind, express or implied.
ARTICLE VII.
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE PURCHASED COLLATERAL
RESPECT OF THE PURCHASED COLLATERAL
Section 7.1 Rights of the Buyer.
(a) The Seller hereby authorizes the Buyer and the Administrative Agent and/or their
respective designees or assignees to take any and all steps in Seller’s name and on behalf of
Seller that the Buyer and the Administrative Agent and/or their respective designees or assignees
determine are reasonably necessary or appropriate to collect all amounts due under any and all
Purchased Collateral and enforcing or protecting their rights under this Agreement, including
endorsing the name of Seller on checks and other instruments representing Collections and enforcing
such Purchased Collateral.
(b) Except as set forth in Sections 6.1, 6.2 and 6.3 with respect the
retransfer, substitution or the deemed collection of certain Assets, the Buyer shall have no
obligation to account for, replace, substitute or return any Purchased Collateral to Seller. The
Buyer shall have no obligation to account for or to return Collections, or any interest or other
finance charge collected pursuant thereto, to Seller, irrespective of whether such Collections and
charges are in excess of the Purchase Price for such Purchased Collateral.
(c) The Buyer shall have the unrestricted right to further assign, transfer, deliver,
hypothecate, subdivide or otherwise deal with the Purchased Collateral and all of the Buyer’s
right, title and interest in, to and under this Agreement, on whatever terms the Buyer shall
determine, pursuant to Sale and Servicing Agreement or otherwise.
(d) The Buyer shall have the sole right to retain any gains or profits created by buying,
selling or holding the Purchased Collateral and shall have the sole risk of and responsibility for
losses or damages created by such buying, selling or holding.
Section 7.2 Responsibilities of Seller.
Notwithstanding anything to the contrary contained herein:
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(a) Seller agrees to deliver directly to the Administrative Agent (for the Buyer’s account),
within two Business Days after receipt thereof, any Collections that it receives, in the form so
received, and agrees that all such Collections shall be deemed to be received in trust for the
Buyer and shall be maintained and segregated separate and apart from all other funds and moneys of
Seller until delivery of such Collections to the Collection Account.
(b) Seller shall perform all of its obligations hereunder and under the Purchased Collateral
to the same extent as if such Purchased Collateral had not been sold hereunder, and the exercise by
the Buyer or its designee or assignee of the Buyer’s rights hereunder or in connection herewith
shall not relieve Seller from any of its obligations under the Purchased Collateral.
Section 7.3 Rights With Respect to Loan Files.
At any time when a Servicer other than CSE Mortgage LLC has been designated pursuant to
Section 6.16 of the Sale and Servicing Agreement, the Seller shall, at the Buyer’s or the
Administrative Agent’s request, assemble all of the Asset Files which evidence the Purchased
Collateral originated by the Seller, or which are otherwise necessary or desirable to collect
such Purchased Collateral, and make the same available to the Buyer and the Administrative Agent at
a place selected by the Administrative Agent or its designee.
Section 7.4 Notice to Administrative Agent.
Seller agrees that, concurrently with its delivery to the Buyer, copies of all notices,
reports, documents and other information shall be delivered by the Seller to the Administrative
Agent.
ARTICLE VIII.
TERM AND TERMINATION
Section 8.1 Purchase Termination Events.
If any of the following events (each a “Purchase Termination Event”) shall have
occurred and be continuing:
(a) the Seller shall fail (i) to pay any amount due pursuant to Sections 6.1 or
6.3 in accordance with the provisions thereof and such failure shall continue unremedied
for a period of five Business Days from the earlier of (A) the date any Responsible Officer of the
Seller obtains knowledge of such failure and (B) the date the Seller receives notice of such
failure from the Buyer, the Servicer or the Administrative Agent or (ii) to pay any other amount
required to be paid by the Seller hereunder within two Business Days of the date when due; or
(b) the Seller shall fail to observe or perform any covenant or agreement applicable to it
contained herein (other than as specified in paragraph (a) of this Section 8.1),
and the same continues unremedied for a period of 10 days after the earlier to occur of (i) the
date on which written notice of such failure requiring the same to be remedied shall have been
given to the Sellerand (ii) the date on which the Seller becomes aware thereof;
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(c) any representation, warranty, certification or statement made or deemed made by the Seller
in this Agreement or in any statement, record, certificate, financial statement or other document
delivered pursuant to this Agreement shall prove to have been incorrect when made or deemed made,
provided that a Purchase Termination Event shall not be deemed to have occurred under this
paragraph (iii) based upon a breach of any representation or warranty set forth in Sections
6.1 or 6.3 if the Seller shall have complied with the provisions of Sections
6.1 or 6.3, as applicable, in respect thereof; or
(d) (A) a court having jurisdiction in the premises shall enter a decree or order for relief
in respect of the Seller in an involuntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect (the Bankruptcy Code and all
other such applicable laws being collectively, “Applicable Insolvency Laws”), which decree
or order is not stayed or any other similar relief shall be granted under any applicable
federal or state law no now or hereafter in effect and shall not be stayed; (B) (I) any involuntary
case is commenced against the Seller under any Applicable Insolvency Law now or hereafter in
effect, a decree or order of a court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over
the Seller, or over all or a substantial part of the property of the Seller, shall have been
entered, an interim receiver, trustee or other custodian of the Seller for all or a substantial
part of the property of the Seller is involuntarily appointed, a warrant of attachment, execution
or similar process is issued against any substantial part of the property of the Seller, and (II)
any event referred to in clause (B)(I) above continues for 60 days unless dismissed, bonded or
disclosed; (C) the Seller shall at its request have a decree or an order for relief entered with
respect to it or commence a voluntary case under any Applicable Insolvency Law now or hereafter in
effect, or shall consent to the entry of a decree or an order for relief in an involuntary case, or
to the conversion of an involuntary case to a voluntary case, under any such Applicable Insolvency
Law, consent to the appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; (D) the making by the Seller of any general
assignment for the benefit of creditors; (E) the inability or failure of the Seller generally to
pay its debts as such debts become due; or (F) manager of the Seller authorizes action to approve
any of the foregoing; or
(e) there shall have occurred (A) a Termination Event set forth in Section 10.1 of the Sale
and Servicing Agreement or (B) the Amortization Period shall have commenced and be continuing; or
(f) the Seller has been terminated as Servicer following a Servicer Termination Event with
respect to such Seller under Section 6.15 of the Sale and Servicing Agreement; or
(g) a notice of Lien shall have been filed by the Pension Benefit Guaranty Corporation against
the Seller under Section 412(n) of the Code or Section 302(f) of ERISA for a failure to make a
required installment or other payment to a plan to which Section 412(n) of the Code or Section
302(f) of ERISA applies unless there shall have been delivered to the Administrative Agent proof of
release of such Lien; or
(h) any Lien in an amount equal to or greater than $1,000,000 has been asserted against or
imposed on, any real or personal property of the Seller pursuant to the Comprehensive
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Environmental
Response, Compensation, and Liability Act, 42 U.S.C. § 9607(1), or any equivalent or comparable
state law, relating to or arising from the costs of, response to, or investigation, remediation or
monitoring of, any environmental contamination resulting from the current or past operations of the
Seller; or
(i) a Federal tax notice of Lien, in an amount equal to or greater than $1,000,000, shall have
been filed against the Seller unless there shall have been delivered to the Administrative Agent
proof of release of such Lien,
then, (A) in the case of any Purchase Termination Event described in paragraph (c),
(d)(A), (e), (f), (g) or (h) above the obligation of the
Buyer to purchase Purchased Collateral from the Seller shall thereupon automatically terminate
without further notice of any kind, which is hereby
waived by such Seller, (B) in the case of any Purchase Termination Event described in paragraph
(d)(B) above, the obligation of the Buyer to purchase Purchased Collateral from the Seller
shall thereupon terminate without notice of any kind, which is hereby waived by the Seller unless
both the Buyer and the Seller agree in writing that such event shall not trigger an Early
Termination hereunder and (C) in the case of any other Purchase Termination Event, so long as such
Purchase Termination Event shall be continuing, the Buyer and the Administrative Agent may
terminate its obligation to purchase Purchased Collateral from the Seller by written notice to the
Seller (any termination pursuant to clause (A), (B) or (C) of this
Article VIII is herein called an “Early Termination”); provided however that in the
event of any involuntary petition or proceeding as described in paragraphs (d)(A) and
(d)(B) above, the Buyer shall not purchase Purchased Collateral from the Seller unless such
involuntary petition or proceeding is dismissed, bonded or discharged within 60 days of the filing
of such petition or the commencement of such proceeding.
Section 8.2 Remedies.
(a) If a Purchase Termination Event has occurred and is continuing, the Buyer (and its
assignee) shall have all of the rights and remedies provided to a secured creditor under the UCC of
each applicable jurisdiction and other Applicable Laws in respect thereto, which rights shall be
cumulative.
(b) The Seller agrees that, upon the occurrence and during the continuation of a Purchased
Termination Event under Section 8.1(a) or Section 8.1(d)(A) the Buyer or the
Administrative Agent shall have the right to:
(i) require the Seller to, and the Seller hereby agrees that it will at the Seller’s expense
and upon request of the Buyer or the Administrative Agent forthwith, assemble all or any part of
the Purchased Collateral as directed by the Buyer or the Administrative Agent and make the same
available at a place to be designated by the Buyer or the Administrative Agent; and
(ii) without notice except as specified below, sell the Purchased Collateral or any part
thereof in one or more parcels at a public or private sale, at any of the Buyer’s or the
Administrative Agent’s offices or elsewhere, for cash, or credit or for future delivery, and upon
such other terms as the Buyer or the Administrative Agent may deem
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commercially reasonable. The
Seller agrees that, to the extent notice of sale shall be required by law, at least ten days’
notice to the Seller of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. The Buyer or the Administrative Agent
shall not be obligated to make any sale of Purchased Collateral regardless of notice of sale having
been given. The Buyer or the Administrative Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
Section 8.3 Survival of Certain Provisions.
Notwithstanding any provision contained herein to the contrary, the Seller’s representations,
covenants and obligations set forth in Articles IV, V, VI, and VII
create and constitute the continuing obligation of the parties hereto in accordance with its terms,
and shall remain in full force and effect until the Collection Date; provided however that the
rights and remedies with respect to any breach of any representation and warranty made or deemed
made by the Seller pursuant to Articles III and IV and the provisions of
Sections 6.1, 6.2 and 6.3, the rights and obligations under Article
VII, the indemnification provisions of Article IX and the provisions of Sections
10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9,
10.10, 10.12, 10.15 and 10.17 shall be continuing and shall survive
any termination of this Agreement.
ARTICLE IX.
INDEMNIFICATION
Section 9.1 Indemnification by the Seller.
Without limiting any other rights that the Buyer, any assignee of the Buyer or any of such
Persons’ respective shareholders, officers, employees, agents, or Affiliates (each an
“Indemnified Party”) may have hereunder or under Applicable Law, the Seller hereby agrees
to indemnify each Indemnified Party from and against any and all damages, losses, claims,
liabilities and related costs and expenses, including attorneys’ fees and disbursements (all of the
foregoing being collectively referred to as “Indemnified Amounts”), awarded against or
incurred by such Indemnified Party or other non–monetary damages of any such Indemnified Party or
any of them arising out of or as a result of this Agreement or the ownership of an interest in the
Purchased Collateral or in respect of any Purchased Collateral excluding, however, (a) Indemnified
Amounts to the extent resulting from the gross negligence or willful misconduct on the part of the
applicable Indemnified Party, and (b) Indemnified Amounts that have the effect of recourse for
non–payment of the Purchased Collateral due to the insolvency of any Obligor. Without limiting the
foregoing, the Seller shall indemnify each Indemnified Party for Indemnified Amounts relating to or
resulting from:
(i) any representation or warranty made or deemed made by the Seller, or any of its officers
relating to the eligibility or qualification of any Asset, which shall have been false or incorrect
in any respect when made or deemed made or delivered;
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(ii) any other representation or warranty made or deemed made by the Seller, or any of its
officers under or in connection with this Agreement or any other Transaction Document, which shall
have been false or incorrect in any material respect when made or deemed made or delivered;
(iii) the failure by the Seller to comply with any term, provision or covenant contained in
this Agreement or any agreement executed in connection with this Agreement, or with any Applicable
Law, with respect to any Purchased Collateral or the nonconformity of any Purchased Collateral with
any such Applicable Law;
(iv) the failure to vest and maintain vested in the Buyer, an undivided ownership interest in
the Purchased Collateral, together with all Collections, free and clear of any Lien (other than
Permitted Liens) whether existing at the time of any Purchase or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements, continuation statements
or other similar instruments or documents under the UCC of any applicable jurisdiction or other
Applicable Laws with respect to any Purchased Collateral, whether at the time of any Purchase or at
any subsequent time;
(vi) any dispute, claim, offset or defense (other than the discharge in bankruptcy of the
Obligor) of the Obligor to the payment with respect to any Purchased Collateral (including, without
limitation, a defense based on the Purchased Collateral not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its terms), or any other claim
resulting from the sale of the merchandise or services related to such Purchased Collateral or the
furnishing or failure to furnish such merchandise or services;
(vii) any failure of the Seller to perform its duties or obligations in accordance with the
provisions of this Agreement or any of the other Transaction Documents to which it is a party or
any failure by the Seller or any Affiliate thereof to perform its respective duties under any
Purchased Collateral;
(viii) the failure of any Lock–Box Bank to remit any amounts held in a Lock–Box Account
pursuant to the instructions of the Collateral Custodian or the Administrative Agent (to the extent
such Person is entitled to give such instructions in accordance with the terms hereof, the Sale and
Servicing Agreement and of any applicable Lock–Box Agreement) whether by reason of the exercise of
set–off rights or otherwise;
(ix) any inability to obtain any judgment in, or utilize the court or other adjudication
system of, any state in which an Obligor may be located as a result of the failure of the Seller to
qualify to do business or file any notice or business activity report or any similar report;
(x) any action taken by the Seller in the enforcement or collection of any Purchased
Collateral;
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(xi) any products liability claim or personal injury or property damage suit or other similar
or related claim or action of whatever sort arising out of or in connection with any Related
Property or services that are the subject of any Purchased Collateral;
(xii) any claim, suit or action of any kind arising out of or in connection with Environmental
Laws including any vicarious liability;
(xiii) the failure by Seller to pay when due any Taxes for which the Seller is liable,
including without limitation, sales, excise or personal property taxes payable in connection with
the Purchased Collateral;
(xiv) any repayment by the Indemnified Party of any amount previously distributed hereunder or
under any Transaction Document to the Seller, in each case which amount the Indemnified Party
believes in good faith is required to be repaid;
(xv) the commingling of Collections on the Purchased Collateral at any time with other funds
of the Seller unless permitted under any Transaction Document;
(xvi) any investigation, litigation or proceeding related to this Agreement or the use of
proceeds of Purchases by the Seller or the security interest in the Purchased Collateral;
(xvii) any failure by the Buyer to give reasonably equivalent value to the Seller in
consideration for the transfer by the Seller to the Buyer of any item of the Purchased Collateral
or any attempt by any Person to void or otherwise avoid any such transfer under any statutory
provision or common law or equitable action, including, without limitation, any provision of the
Bankruptcy Code;
(xviii) the failure of the Seller or any of its agents or representatives to remit to the
Buyer Collections on the Purchased Collateral remitted to the Seller or any such agent or
representative; or
(xix) the failure of any of the hedge requirements to be properly performed in connection with
the Transaction Documents.
(b) Any amounts subject to the indemnification provisions of this Section 9.1 shall be
paid by the Seller to the Indemnified Party within five Business Days following such Person’s
demand therefor.
(c) If for any reason the indemnification provided above in this Section 9.1 is
unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then
the Seller shall contribute to the amount paid or payable by such Indemnified Party as a result of
such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by such Indemnified Party on the one hand and the Seller, on the other
hand, but also the relative fault of such Indemnified Party as well as any other relevant equitable
considerations.
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(d) The obligations of the Seller under this Section 9.1 shall survive the termination
of this Agreement.
(e) Indemnification under Section 9.1 shall be in an amount necessary to make the
Indemnified Party whole after taking into account any tax consequences to the Indemnified Party of
the receipt of the indemnity provided hereunder, including the effect of such tax or refund on the
amount of tax measured by net income or profits that is or was payable by the Indemnified Party.
Section 9.2 Assignment of Indemnities.
The Seller acknowledges that, pursuant to the Sale and Servicing Agreement, the Buyer is
assigning its rights of indemnity granted hereunder to the Administrative Agent, the Purchasers,
the other Secured Parties, the Backup Servicer and the Collateral Custodian. Effective as of the
Closing Date, (i) the Administrative Agent, the Purchasers, the other Secured Parties, the Backup
Servicer and the Collateral Custodian as applicable, shall have all rights of the Buyer hereunder
and may in turn assign such rights, and (ii) the obligations of the Seller under this Article
IX shall inure to the Administrative Agent, the Backup Servicer or the Collateral Custodian.
The Seller agrees that, upon such assignment, the Administrative Agent, the Purchasers, the other
Secured Parties, the Backup Servicer and the Collateral Custodian or the assignee of any such
Person, as applicable, may enforce directly, without joinder of the Buyer, the indemnities set
forth in this Article IX.
ARTICLE X.
MISCELLANEOUS
Section 10.1 Amendments and Waivers.
Except as provided in this Section 10.1, no amendment, waiver or other modification of
any provision of this Agreement shall be effective unless signed by the Buyer and Seller and
consented to in writing by the Administrative Agent. The Buyer shall provide not less than ten
Business Days’ prior written notice of any such amendment to the Administrative Agent.
Section 10.2 Notices, Etc.
All notices and other communications provided for hereunder shall, unless otherwise stated
herein, be in writing (including telex communication and communication by facsimile copy) and
mailed, telexed, transmitted or delivered, as to each party hereto, at its address set forth under
its name on the signature pages hereof or at such other address as shall be designated by such
party in a written notice to the other parties hereto. All such notices and communications shall
be effective, upon receipt, or in the case of (a) notice by mail, five days after being deposited
in the United States mail, first class postage prepaid, or (b) notice by facsimile copy, when
confirmation of receipt is obtained.
Section 10.3 Limitation of Liability.
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Except with respect to any claim arising out of the willful misconduct or gross negligence of
the Purchasers, the Administrative Agent or any other Secured Party, no claim may be made by the
Seller or any other Person against the Purchasers, the Administrative Agent or any other Secured
Party or their respective Affiliates, directors, managers, officers, employees, attorneys or agents
for any special, indirect, consequential or punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement, or any act, omission or event occurring in connection therewith;
and the Seller hereby waives, releases and agrees not to xxx upon any claim for any
such damages, whether or not accrued and whether or not known or suspected to exist in its
favor.
Section 10.4 Binding Effect; Benefit of Agreement.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. The Administrative Agent, the Purchasers, the other
Secured Parties, the Collateral Custodian and the Backup Servicer shall be third–party
beneficiaries of this Agreement.
Section 10.5 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS THEREOF (OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). EACH OF THE PARTIES
HERETO HEREBY AGREES TO THE NON–EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT
LOCATED IN NEW YORK CITY. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM
NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE
AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT.
Section 10.6 WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL
WITHOUT A JURY.
Section 10.7 Costs, Expenses and Taxes.
(a) In addition to the rights of indemnification granted under Article IX hereof, the
Seller agrees to pay on demand all reasonable out of pocket costs and expenses of the Buyer or
35
its assignees incurred in connection with the preparation, execution, delivery, administration
(including periodic auditing), renewal, amendment or modification of, or any waiver or consent
issued in connection with, this Agreement and the other documents to be delivered hereunder or in
connection herewith, including, without limitation, the reasonable fees and out–of–pocket expenses
of counsel with respect thereto and with respect to advising the Buyer or its assignees as to its
rights and remedies under this Agreement and the other documents to be delivered hereunder or in
connection herewith, and all costs and expenses, if any (including reasonable counsel fees and
expenses), incurred by the Buyer or its assignees in connection with the enforcement of this
Agreement and the other documents to be delivered hereunder or in connection herewith.
(b) The Seller shall pay on demand any and all stamp, sales, excise and other taxes and fees
payable or determined to be payable in connection with the execution, delivery, filing and
recording of this Agreement and the other documents to be delivered hereunder.
(c) The Seller shall pay on demand all other reasonable out of pocket costs, expenses and
Taxes (excluding income taxes) incurred by the Buyer or its assignees in connection with the
execution, delivery, filing and recording of this Agreement and the other documents to be delivered
hereunder (“Other Costs”), including, without limitation, all costs and expenses incurred
by the Buyer or its assignees in connection with periodic audits of the Seller’s books and records.
Section 10.8 No Proceedings.
(a) Each of the parties hereto hereby agrees that it will not institute against, or join any
other Person in instituting against, any Issuer any Insolvency Proceeding so long as any commercial
paper or other senior indebtedness issued by any Issuer shall be outstanding and there shall not
have elapsed one year and one day since the last day on which any such commercial paper or other
senior indebtedness shall have been outstanding.
(b) The Seller hereby agrees that it will not institute against, or join any other Person in
instituting against, the Buyer any Insolvency Proceeding so long as there shall not have elapsed
one year and one day since the Collection Date.
Section 10.9 Recourse Against Certain Parties.
(a) No recourse under or with respect to any obligation, covenant or agreement (including,
without limitation, the payment of any fees or any other obligations) of the Seller as contained in
this Agreement or any other agreement, instrument or document entered into by it pursuant hereto or
in connection herewith shall be had against any administrator of the Seller or any incorporator,
manager, officer, employee or director of the Seller or of any such administrator, as such, by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise it being expressly agreed and understood that the agreements of the Seller contained in
this Agreement and all of the other agreements,
instruments and documents entered into by it pursuant hereto or in connection herewith are, in
each case, solely the limited liability company obligations of the Seller, and that no personal
liability whatsoever shall attach to or be incurred by any administrator of the Seller or any
36
incorporator, manager, officer, employee or director of the Seller or of any such administrator, as
such, or any of them, under or by reason of any of the obligations, covenants or agreements of the
Seller contained in this Agreement or in any other such instruments, documents or agreements, or
which are implied therefrom, and that any and all personal liability of every such administrator of
the Seller and each incorporator, manager, officer, employee or director of the Seller or of any
such administrator, or any of them, for breaches by the Seller of any such obligations, covenants
or agreements, which liability may arise either at common law or at equity, by statute or
constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for
the execution of this Agreement. The provisions of this Section 10.9(a) shall survive the
termination of this Agreement.
(b) No recourse under or with respect to any obligation, covenant or agreement (including,
without limitation, the payment of any fees or any other obligations) of the Buyer as contained in
this Agreement or any other agreement, instrument or document entered into by it pursuant hereto or
in connection herewith shall be had against any administrator of the Buyer or any incorporator,
manager, officer, employee or director of the Buyer or of any such administrator, as such, by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise it being expressly agreed and understood that the agreements of the Buyer contained in
this Agreement and all of the other agreements, instruments and documents entered into by it
pursuant hereto or in connection herewith are, in each case, solely the limited liability company
obligations of the Buyer, and that no personal liability whatsoever shall attach to or be incurred
by any administrator of the Buyer or any incorporator, manager, officer, employee or director of
the Buyer or of any such administrator, as such, or any of them, under or by reason of any of the
obligations, covenants or agreements of the Buyer contained in this Agreement or in any other such
instruments, documents or agreements, or which are implied therefrom, and that any and all personal
liability of every such administrator of the Buyer and each incorporator, manager, officer,
employee or director of the Buyer or of any such administrator, or any of them, for breaches by the
Buyer of any such obligations, covenants or agreements, which liability may arise either at common
law or at equity, by statute or constitution, or otherwise, is hereby expressly waived as a
condition of and in consideration for the execution of this Agreement. The provisions of this
Section 10.9 (b) shall survive the termination of this Agreement.
Section 10.10 Protection of Right, Title and Interest in the Purchased Collateral; Further Action
Evidencing Purchases.
(a) The Seller shall cause this Agreement, all amendments hereto and/or all financing
statements and continuation statements and any other necessary documents covering the Buyer’s
right, title and interest to the Purchased Collateral to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the right, title and interest of the
Buyer hereunder to all property comprising the Purchased Collateral. The Seller shall deliver to
the
Buyer the file–stamped copies of, or filing receipts for, any document recorded, registered or
filed as provided above, as soon as available following such recording, registration or filing.
The Seller shall cooperate fully with the Buyer in connection with the obligations set forth above
and will execute any and all documents reasonably required to fulfill the intent of this
Section 10.10(a).
37
(b) The Seller agrees that from time to time, at its expense, it will promptly execute and
deliver all instruments and documents, and take all actions, that the Buyer or the Administrative
Agent may reasonably request in order to perfect, protect or more fully evidence the Purchases
hereunder and the security and/or interest granted in the Purchased Collateral, or to enable the
Buyer or the Administrative Agent to exercise and enforce its rights and remedies hereunder or
under any Transaction Document. At any time the Buyer or the Administrative Agent may direct the
Seller or any Servicer to notify the Obligors, at Seller’s expense, of the Buyer’s or the
Administrative Agent’s interest in the Purchased Collateral under this Agreement and may direct
that payments of all amounts due or that become due under any or all of the Purchased Collateral be
made directly to the Buyer or the Administrative Agent.
(c) If the Seller fails to perform any of its obligations hereunder, the Buyer or the
Administrative Agent may (but shall not be required to) perform, or cause performance of, such
obligation; and the Buyer’s or the Administrative Agent’s costs and expenses incurred in connection
therewith shall be payable by the Seller as provided in Article IX, as applicable. The
Seller irrevocably authorizes the Buyer or the Administrative Agent at any time and from time to
time at the Buyer’s or the Administrative Agent’s sole discretion and appoints the Buyer and the
Administrative Agent as its attorney–in–fact to act on behalf of the Seller (i) to execute on
behalf of the Seller as debtor and to file financing statements necessary or desirable in the
Buyer’s or the Administrative Agent’s sole discretion to perfect and to maintain the perfection and
priority of the interest of the Buyer or the Administrative Agent in the Purchased Collateral and
(ii) to file a carbon, photographic or other reproduction of this Agreement or any financing
statement with respect to the Purchased Collateral as a financing statement in such offices as the
Buyer or the Administrative Agent in their sole discretion deem necessary or desirable to perfect
and to maintain the perfection and priority of the interests of the Buyer and the Administrative
Agent in the Purchased Collateral. This appointment is coupled with an interest and is
irrevocable.
(d) Without limiting the generality of the foregoing, Seller will, not earlier than six (6)
months and not later than three months prior to the fifth anniversary of the date of filing of the
financing statement referred to in Sections 3.1 or 3.2 or any other financing
statement filed pursuant to this Agreement or in connection with any Purchase hereunder, unless the
Collection Date shall have occurred:
(i) execute and deliver and file or cause to be filed an appropriate continuation statement
with respect to such financing statement; and
(ii) deliver or cause to be delivered to the Buyer and the Administrative Agent an opinion of
the counsel for Seller, in form and substance reasonably satisfactory to the Buyer and the
Administrative Agent, confirming and updating the opinion delivered pursuant to Sections
3.1 or 3.2 with respect to perfection and otherwise to the effect that the security
interest hereunder continues to be an enforceable and perfected security interest,
subject to no other Liens of record except as provided herein or otherwise permitted
hereunder, which opinion may contain usual and customary assumptions, limitations and exceptions.
Section 10.11 Execution in Counterparts; Severability; Integration.
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This Agreement may be executed in any number of counterparts and by different parties hereto
in separate counterparts (including by facsimile), each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and the same agreement.
In case any provision in or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not
in any way be affected or impaired thereby. This Agreement and the Transaction Documents contains
the final and complete integration of all prior expressions by the parties hereto with respect to
the subject matter hereof and shall constitute the entire agreement among the parties hereto with
respect to the subject matter hereof, superseding all prior oral or written understandings.
Section 10.12 Waiver of Set-off.
(a) The Seller’s obligations under this Agreement shall not be affected by any right of
set-off, counterclaim, recoupment, defense or other right the Seller might have against the Buyer,
the Administrative Agent, the Purchasers, the other Secured Parties, the Backup Servicer, the
Collateral Custodian or any assignee of such Persons, all of which rights are hereby waived by the
Seller.
(b) The Buyer shall have the right to set–off against the Seller any amounts to which the
Seller may be entitled and to apply such amounts to any claims the Buyer may have against the
Seller from time to time under this Agreement. Upon any such set–off, the Buyer shall give notice
of the amount thereof and the reasons therefor to the Seller.
Section 10.13 Heading and Exhibits.
The headings herein are for purposes of references only and shall not otherwise affect the
meaning or interpretation of any provision hereof. The schedules and exhibits attached hereto and
referred to herein shall constitute a part of this Agreement and are incorporated into this
Agreement for all purposes.
Section 10.14 Rights of Inspection.
The Buyer and its representatives and assigns may conduct at any reasonable time, with
reasonable notice, and from time to time, and the Seller will fully cooperate with, a reasonable
number of field examinations and audits of the inventory, the Loans and business affairs of the
Seller each calendar year. Each such inspection shall be at the sole expense of the Seller. The
Buyer and its representatives and successors and assigns acknowledge that in exercising the rights
and privileges conferred in this Section 10.14, it or its representatives or assigns may,
from time to time, obtain knowledge of information, practices, books, correspondence and records of
a confidential nature and in which the Seller has a proprietary interest. The Buyer and its
representatives and successors and assigns agree that (i) they shall retain in strict confidence
and shall use their best efforts to ensure that their representatives retain in strict confidence
and will not disclose without the prior written consent of the Seller any or all of such
information, practices, books, correspondence and records furnished to them and (ii) that they will
not, and will use their best efforts to ensure that their representatives and assigns will not,
make any use
39
whatsoever (other than for the purposes contemplated by this Agreement) of any of such
information, practices, books, correspondence and records without the prior written consent of the
Seller, unless such information is generally available to the public or is required by law to be
disclosed.
Section 10.15 Assignment.
Notwithstanding anything to the contrary contained herein, this Agreement may not be assigned
by the Buyer or the Seller except as permitted by this Section 10.15 or by the Sale and
Servicing Agreement. Simultaneously with the execution and delivery of this Agreement, the Buyer
shall assign all of its right, title and interest herein to the Administrative Agent as agent for
the Secured Parties under the Sale and Servicing Agreement, to which assignment the Seller hereby
expressly consents. Upon assignment, the Seller agrees to perform its obligations hereunder for
the benefit of the Administrative Agent as agent for the Secured Parties and the Administrative
Agent, in such capacity, shall be a third party beneficiary hereof. The Administrative Agent as
agent for the Secured Parties upon such assignment may enforce the provisions of this Agreement,
exercise the rights of the Buyer and enforce the obligations of the Seller hereunder without
joinder of the Buyer.
Section 10.16 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the Buyer or the Seller, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law. Any waiver of this Agreement shall be
effective only in the specific instance and for the specific purpose for which given.
Section 10.17 Intentionally Omitted.
Section 10.18 Revolving Loan Payments.
(a) With respect to each Revolving Loan included as part of the Purchased Collateral, the
Buyer will own only the principal portion of such Loans outstanding as of the applicable Cut–Off
Date that is included in the Purchased Collateral. Collections from the Obligor on such Revolving
Loan will be allocated first to the portion of such Loan owned by the Seller, its Affiliate special
purpose entities under the Warehouse Facilities, any co-lenders under such facility and portions
owned by the issuers in a Term Transaction (or any similar future transactions entered into after
the date hereof); provided that if (i) a payment default occurs, or an event of default occurs
(without waiver) with respect to any of the related Loans, or an Insolvency Event with respect to
the related Obligor , (ii) the Servicer has determined that the creditworthiness of the Obligor
under such related Loan has deteriorated such that it materially and adversely affects the value of
such related Loan or has reduced in a material manner the likelihood of repayment in full
thereunder, (iii) the Seller has determined in its sole discretion to reduce or terminate its
commitment to an Obligor, or (iv) a Termination Event or Unmatured Termination Event occurs, then
at such time and all times thereafter, Collections received on
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(A) the applicable Loan (in the case
of clause (i), (ii) or (iii) above) or (B) all the Revolving Loans (in the
case of clause (iv) above) will be allocated between the portion owned by the Seller, its
Affiliate special purpose entities under the Warehouse Facilities (or any similar facilities
entered into after the date hereof) and any co-lenders under the facility, portions owned by
issuers in a Term Transaction (or any similar future transactions entered into after the date
hereof) and the portion owned by the Buyer, pro rata based upon the outstanding principal amount of
each such portion.
(b) Notwithstanding the foregoing or anything to the contrary contained herein or any
Transaction Document, any payments made by any Hedge Counterparty pursuant to the terms of the
Hedge Agreements shall be solely for the benefit of the Administrative Agent, and the Secured
Parties, and shall not be subject to the pro rata sharing provisions of this Section 10.18.
In furtherance of the foregoing clause of this paragraph, the Seller hereby releases any right,
title, or interest it may have in or to any payment made or to be made at any time by any Hedge
Counterparty pursuant to the terms of any Hedge Agreement.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the Buyer and the Seller have caused this Agreement to be duly executed by
their respective officers thereunto duly authorized, as of the day and year first above written.
CAPITALSOURCE REAL ESTATE LOAN LLC, 2007-A |
||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||
Title: Vice President & Treasurer |
||||||
0000 Xxxxxxx Xxxxxx | ||||||
00xx Xxxxx | ||||||
Xxxxx Xxxxx, Xxxxxxxx 00000 | ||||||
Attention: Treasurer | ||||||
Facsimile No.: (301) 841–2375 | ||||||
Confirmation No.: (301) 841–2731 |
[Signature Continued on Following Page]
CSE MORTGAGE LLC | ||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||
Title: Vice President & Treasurer |
||||||
0000 Xxxxxxx Xxxxxx | ||||||
00xx Xxxxx | ||||||
Xxxxx Xxxxx, Xxxxxxxx 00000 | ||||||
Attention: Treasurer | ||||||
Facsimile No.: (301) 841–2371 | ||||||
Confirmation No.: (301) 841–2735 |
SCHEDULE I
PURCHASED COLLATERAL LIST
CAPITALSOURCE REAL ESTATE LOAN LLC, 2007-A
Purchased Collateral List
Purchased Collateral List
(See Attached)
SCHEDULE II
LOCK–BOX BANKS AND LOCK–BOX ACCOUNTS
Bank Name | Account Name | Account Number | ||
Bank of America, NA |
CapitalSource Funding LLC | 003930559738 | ||
Bank of America, NA |
CapitalSource Funding LLC | 003938703751 | ||
Bank of America, NA |
CapitalSource Funding LLC | 003939396662 |
EXHIBIT A
FORM OF SALE ASSIGNMENT
SALE ASSIGNMENT NO. ___, dated as of , from CSE MORTGAGE LLC (the
“Seller”) to CAPITALSOURCE REAL ESTATE LOAN LLC, 2007-A (the “Buyer”).
(a) We refer to the Sale and Contribution Agreement, dated as of September 10, 2007 (the
“Agreement”), by and between the Seller and the Buyer.
(b) Defined Terms. All capitalized terms used herein shall have the meanings ascribed
to them in the Agreement unless otherwise defined herein.
“Addition Date” shall mean, with respect to the Additional Assets designated hereby,
, ___.
“Cut–Off Date” shall mean, with respect to the Additional Assets designated hereby,
, ___.
(c) Designation of Additional Assets. Seller delivers herewith a computer file or
microfiche list containing a true and complete list of the Additional Assets, identified by account
number, Obligor and Outstanding Asset Balance as of the Cut–Off Date. Such computer file,
microfiche list or other documentation shall be as of the date of this Sale Assignment incorporated
into and made part of this Sale Assignment and is marked as Schedule I hereto.
The Seller does hereby sell, transfer, assign, set over and otherwise convey to the Buyer, and the
Buyer hereby purchases and takes from the Seller, all right, title and interest of the Seller in,
to and under all accounts, general intangibles, instruments, chattel paper, documents, money,
letters of credit, advices of credit, deposit accounts, certificates of deposit, investment
property, goods and other property consisting of, arising from or related to any of the following
property, whether now owned or existing or hereafter created, arising or acquired and wherever
located (collectively, the “Purchased Collateral”):
the Additional Assets that are identified by the Seller as of the Cut–Off Date, which are
listed on Schedule I, together with all monies due in payment of such Assets on and after
the Cut–Off Date, but excluding any Excluded Amounts and any Retained Interest;
all Related Security with respect to the Additional Assets referred to in clause (i) above;
and
all income and Proceeds of the foregoing.
(d) This Sale Assignment is made without recourse but on the terms and subject to the
conditions set forth in the Transaction Documents to which the Seller is a party. The Seller
acknowledges and agrees that the Buyer is accepting this Sale Assignment in reliance or the
representations, warranties and covenants of the Seller contained in the Transaction Documents to
which the Seller is a party.
(e) Ratification of the Agreement. The Agreement is hereby ratified, and all
references to the “Sale and Contribution Agreement,” to “this Agreement” and “herein” shall be
deemed from and after the Addition Date to be a reference to the Agreement as supplemented by this
Sale Assignment. Except as expressly amended hereby, all the representations, warranties, terms
covenants and conditions of the Agreement shall remain unamended and shall continue to be, and
shall, remain, in full force and effect in accordance with its terms and except as expressly
provided herein shall not constitute or be deemed to constitute a waiver of compliance with or
consent to non–compliance with any term or provision of the Agreement.
(f) THIS
SALE ASSIGNMENT NO. ___ SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE CHOICE OF LAW PROVISIONS.
[Remainder of Page Intentionally Left Blank]
2
IN WITNESS WHEREOF, the Seller has caused this Sale Assignment to be executed by its duly
authorized officer as of the date first above written.
CSE MORTGAGE LLC | ||||||
By: | ||||||
Title: |
||||||
CSE Mortgage LLC | ||||||
0000 Xxxxxxx Xxxxxx | ||||||
00xx Xxxxx | ||||||
Xxxxx Xxxxx, Xxxxxxxx 00000 | ||||||
Attention: Treasurer | ||||||
Facsimile No.: (301) 841–2375 | ||||||
Confirmation No.: (301) 841–2731 |
3
EXHIBIT B
FORM OF OFFICER’S PURCHASE DATE CERTIFICATE
This Officer’s Purchase Date Certificate is delivered pursuant to the provisions of Section
2.1(c) of the Sale and Contribution Agreement (such agreement as amended, supplemented, modified or
restated from time to time, the “Agreement”), dated as of September 10, 2007, between CSE
Mortgage LLC, as the Seller, and CAPITALSOURCE REAL ESTATE LOAN LLC, 2007-A, as the Buyer. This
Officer’s certificate relates to the Purchase Date on , 20___.
(a) Capitalized terms used and not otherwise defined herein have the meanings assigned to them
in the Agreement. References herein to certain sections are referenced to the respective sections
of the Agreement.
(b) The undersigned is a Responsible Officer of the Seller.
(c) The undersigned hereby certifies to the Administrative Agent and the Secured Parties that
all of the representations and warranties in Section 4.2 of the Agreement are true, accurate and
complete as of the Purchase Date referenced above.
IN WITNESS WHEREOF, the undersigned has executed this certificate this ___day of
, 200[_].
By: | ||||||
Title: |
APPENDIX A
CONDITION PRECEDENT DOCUMENTS
(a) Copies of resolutions of the manager of the Seller approving the execution, delivery and
performance of the Agreement and the transactions contemplated thereby, certified by the Secretary
or an Assistant Secretary of the Seller.
(b) A copy of an officially certified document dated reasonably close to the Closing Date
evidencing the due organization and good standing of the Seller in each applicable jurisdiction.
(c) Copies of the certificate or articles of formation and operating agreement of the Seller
certified by the Secretary or an Assistant Secretary of the Seller.
(d) Filed UCC–1 financing statement executed by the Seller as debtor, naming the Buyer as
secured party and the Administrative Agent as assignee, describing the Purchased Collateral,
meeting the requirements of the laws of each jurisdiction in which it is necessary or reasonably
desirable, or in which the Seller is required by Applicable Law, and in such manner as is necessary
or reasonably desirable, to perfect the conveyance of the Purchased Collateral and the Related
Security to the Buyer.
(e) Opinions of counsel to the Seller, dated the Closing Date, in form and substance
satisfactory to the Buyer.
(f) Executed counterparts of this Agreement executed on behalf of the Seller.
(g) A duly completed, executed and delivered initial Purchased Collateral List (Schedule I).
(h) UCC, tax and judgment lien searches of the Seller.
(i) Parent Undertaking — Originator.
(j) Parent Undertaking — Servicer.
(k) Confirmation and Undertaking Letter.