Exhibit 10.9
EXECUTION COPY
XXXXXXX XXXXX MORTGAGE LENDING, INC., as buyer (the “Buyer”) and
NY CREDIT FUNDING II, LLC, as seller (“Seller”), and
NY CREDIT OPERATING PARTNERSHIP LP, as guarantor (“Guarantor”)
Dated June 22, 2007
TABLE OF CONTENTS
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1. Applicability |
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1 |
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2. Definitions |
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1 |
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3. Program; Initiation of Transactions |
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26 |
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4. Repurchase; Sale or Disposition by Buyer |
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28 |
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5. Price Differential |
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30 |
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6. Margin Maintenance |
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30 |
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7. Income and Principal Payments |
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33 |
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8. Security Interest |
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35 |
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9. Payment and Transfer |
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36 |
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10. Conditions Precedent |
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37 |
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11. Program; Costs; Taxes |
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41 |
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12. Servicing |
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44 |
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13. Representations and Warranties |
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45 |
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14. Covenants |
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50 |
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15. Events of Xxxxxxx |
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00 |
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00. Remedies Upon Default |
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57 |
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17. Reports |
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60 |
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18. Repurchase Transactions |
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62 |
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19. Single Agreement |
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63 |
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20. Notices and Other Communications |
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63 |
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21. Entire Agreement; Severability |
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64 |
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22. Non-Assignability |
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65 |
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23. Set-off |
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65 |
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24. Binding Effect; Governing Law; Jurisdiction |
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66 |
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25. No Waivers, Etc. |
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66 |
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26. Intent |
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66 |
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27. Disclosure Relating to Certain Federal Protections |
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67 |
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28. Power of Attorney |
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68 |
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29. Buyer May Act Through Affiliates |
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68 |
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30. Indemnification; Obligations; Recourse |
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68 |
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31. Counterparts |
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69 |
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32. Confidentiality |
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69 |
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33. Recording of Communications |
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70 |
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34. Exit Fee |
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70 |
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35. Administration Fee |
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70 |
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36. Periodic Due Diligence Review |
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70 |
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37. Appointment of Agent |
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71 |
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38. Authorizations |
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71 |
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39. Documents Mutually Drafted |
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71 |
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40. General Interpretive Principles |
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72 |
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SCHEDULES |
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Schedule 1 – Representations and Warranties with Respect to
Purchased Assets |
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Schedule 2 – Eligibility Criteria |
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Schedule 3 – Authorized Representatives |
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Schedule 4 – Purchase Price Percentages and Pricing Rates |
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Schedule 5 – CF Sweep Percentage, Capital Call Percentage and
Buyer’s
Margin Percentage |
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Schedule 6 – List of Pre-Approved Special Servicers |
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EXHIBITS |
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Exhibit A – Form of Transaction Request |
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Annex 1 – Purchased Asset Schedule |
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Annex 2 – Summary Diligence Materials |
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Exhibit B – Form of Purchase Confirmation |
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Exhibit C – Form of Closing Data Tape |
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Exhibit D – Form of Officer’s Compliance Certificate |
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Exhibit E –Officer’s Certificate of the Seller and
Guarantor and Corporate Resolutions of Seller
and Guarantor |
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Exhibit F– Form of Servicer Notice |
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Exhibit G – Form of Asset File |
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Exhibit H – Form of Distribution Worksheet |
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Exhibit I – Form of Servicing Report |
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Exhibit J – Form of Irrevocable Instruction Letter |
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Exhibit K – Approved Special Servicers |
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-iii-
1. Applicability
From time to time the parties hereto may enter into transactions in which Seller agrees to
transfer Purchased Assets to Buyer against the transfer of funds by Buyer, with a simultaneous
agreement by Buyer to transfer to Seller such Purchased Assets at a date certain or on demand,
against the transfer of funds by Seller. Each such transaction shall be referred to herein as a
“Transaction” and, unless otherwise agreed in writing, shall be governed by this Agreement,
including any supplemental terms or conditions contained in any annexes identified herein, as
applicable hereunder.
2. Definitions
Whenever used in this Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
“1933 Act” has the meaning set forth in Section 16(l) hereof.
“1934 Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Accepted Servicing Practices” means the procedures that each Servicer follows in the
servicing and administration of, and in the same manner in which, and with the same care, skill,
prudence and diligence with which the Servicer services and administers, loans similar to the
Purchased Assets, and giving due consideration to customary and usual standards of practice of
prudent institutional multifamily and commercial mortgage lenders, loan servicers and asset
managers and with a view to the maximization of timely recovery of principal and interest on the
Purchased Assets but without regard to:
(i) any relationship that the Servicer, any subservicer or any Affiliate of the
Servicer or any subservicer may have with any borrower or any Affiliate of any
Borrower;
(ii) the Servicer’s or any subservicer’s obligations to make Servicing Advances
with respect to the Purchased Assets; or
(iii) the Servicer’s or any subservicer’s right to receive compensation for its
services under any servicing agreement or with respect to any particular
transaction.
“Account” means an account established by a Servicer for the benefit of Buyer, into
which all collections and proceeds on or in respect of the Purchased Assets shall be deposited by
such Servicer, and which is subject to the Account Agreement.
“Account Agreement” means that certain Cash Management Account Control Agreement,
dated as of the date hereof, among Buyer, Servicer and Bank, as such may be amended from time to
time.
“Act of Insolvency” means, with respect to any Person or its Affiliates, (i) the
filing of a petition, commencing, or authorizing the commencement of any case or proceeding, or the
voluntary joining of any case or proceeding under any bankruptcy, insolvency, reorganization,
liquidation, dissolution or similar law relating to the protection of creditors, or suffering any
such petition or proceeding to be commenced by another which is consented to, not timely contested
or results in entry of an order for relief; (ii) the seeking of the appointment of a receiver,
trustee, custodian or similar official for such party or an Affiliate or any substantial part of
the property of either (and such involuntary proceeding shall not have been dismissed within thirty
(30) days of its filing); (iii) the appointment of a receiver, conservator, or manager for such
party or an Affiliate by any governmental agency or authority having the jurisdiction to do so;
(iv) the making or offering by such party or an Affiliate of a composition with its creditors or a
general assignment for the benefit of creditors; (v) the admission by such party or an Affiliate of
such party of its inability to pay its debts or discharge its obligations as they become due or
mature; or (vi) that any governmental authority or agency or any person, agency or entity acting or
purporting to act under governmental authority shall have taken any action to condemn, seize or
appropriate, or to assume custody or control of, all or any substantial part of the property of
such party or of any of its Affiliates, or shall have taken any action to displace the management
of such party or of any of its Affiliates or to curtail its authority in the conduct of the
business of such party or of any of its Affiliates.
“Additional Collateral” has the meaning specified in Section 6(a) hereof.
“Adjusted Par Value” shall mean, with respect to any Purchased Asset, an amount
determined as (a) the Purchase Price divided by the Purchase Price Percentage (expressed as a
decimal) for such Purchased Asset, minus (b) the aggregate amount of all Principal Payments made
with respect to such Purchased Asset after the Purchase Date thereof.
“Administration Fee” means 0%.
“Affiliate” means, with respect to any Person, any “affiliate” of such Person, as such
term is defined in the Bankruptcy Code.
“ALTA” means the American Land Title Association or any successor in interest thereto.
“A Note” means a Mortgage Note that is not subordinate in right of payment to any
separate promissory note secured by a direct or beneficial interest in the same property.
“Appraised Value” means the value set forth in an appraisal made in connection with
the origination of the related Mortgage Loan as the value of the Mortgaged Property or Underlying
Mortgaged Property, as applicable, such appraisal conducted in accordance with market standards by
an appraiser that is a Member of the Appraisal Institute.
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“Asset File” means, the documents specified on Exhibit G, together with any
additional documents and information required to be delivered to Buyer or its designee (including
the Custodian) pursuant to this Agreement.
“Asset Value” means with respect to each Eligible Asset, the applicable Purchase Price
Percentage for the related Purchased Asset multiplied by the lesser of (a) the Market Value of such
Purchased Asset and (b) the outstanding principal balance of such Purchased Asset.
Without limiting the generality of the foregoing, Seller acknowledges that the Asset Value of
a Purchased Asset may be reduced to zero by Buyer if:
(i) such Purchased Asset ceases to be an Eligible Asset;
(ii) such Purchased Asset (other than a Purchased Asset that is a Physical
Security) has been released from the possession of the Custodian under the Custodial
Agreement (other than to a Bailee pursuant to a Bailee Agreement) for a period in
excess of 10 calendar days;
(iii) such Purchased Asset is a Physical Security and has been released from
the possession of the Custodian;
(iv) such Purchased Asset is a Non-Performing Asset;
(v) the Buyer has determined in its sole discretion that the Purchased Asset is
not eligible for sale or securitization (including, but not limited to, a collateral
debt obligation) in a transaction consistent with the prevailing sale and
securitization industry with respect to substantially similar assets;
(vi) such Purchased Asset contains a material breach of a representation or
warranty made by the Seller in this Agreement or the Custodial Agreement; and
(vii) such Purchased Asset is a Table Funded Purchased Asset in respect of
which the Asset Files have not been delivered to the Custodian within three (3)
Business Days following the Purchase Date.
“Assignment and Acceptance” has the meaning set forth in Section 22 hereof.
“Assignment of Leases” means, with respect to any Mortgage, an assignment of leases
thereunder, notice of transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the Underlying Mortgaged Property is located to reflect the
assignment of leases.
“Assignment of Mortgage” means an assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to Buyer.
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“Bailee” means, with respect to each Table Funded Purchased Asset, the related title
company or other settlement agent, in each case, approved in writing by the Buyer in its sole
discretion.
“Bailee Agreement” means the Bailee Agreement among the Seller, the Buyer and the
Bailee in the form of Exhibit 10 to the Custodial Agreement.
“Bailee’s Trust Receipt” means a Trust Receipt in the form of Attachment 2 to the
Bailee Agreement.
“Balloon Payment” means, for any Purchased Asset for which the final principal payment
is substantially greater than periodic scheduled principal payments due thereunder, the payment due
on its maturity date.
“Bank” means PNC Bank, National Association.
“Bank Loan” means any senior secured indebtedness or senior unsecured indebtedness (or
any participation or similar interest in any such indebtedness) to real estate related companies
and as to which the representations and warranties, if applicable, in Schedule 1 hereof are
true and correct in all material respects.
“Bank Loan Governing Agreement” means the agreement or agreements which govern a Bank
Loan, which may include without limitation, any loan or credit agreement and any note issued in
connection therewith.
“Bankruptcy Code” means the United States Bankruptcy Code of 1978, as amended from
time to time.
“Basic Mortgage Asset Document” means with respect to (i) any Commercial Mortgage
Loan, the original executed Mortgage Note and the original Assignment of Mortgage, (ii) any
Mezzanine Loan, the original executed Mezzanine Loan note, the second mortgage and pledge
agreement, the original stock certificates or other evidence of the pledged interests (if
applicable) and the assignment of the foregoing, (iii) any Junior Interest, the original executed
note and (iv) any Bank Loan, the original executed Note (to the extent Notes have been issued under
the related Bank Loan Governing Agreement) and the original assignment from Seller to Buyer.
“Breakage Costs” has the meaning set forth in Section 4(d) hereof.
“
Business Day” means any day other than a Saturday, Sunday, or other day on which
commercial banks, depository institutions or trust companies in the State of
New York, or in any
state in which the Account or any accounts used by NY Credit Funding II, LLC, NY Credit Advisors
LLC or Xxxxxxx Xxxxx Mortgage Lending, Inc. for remittance purposes are located, are authorized or
obligation by law, regulation or executive order to remain closed.
“Buyer” means Xxxxxxx Xxxxx Mortgage Lending, Inc., and any successor or assign
hereunder, and with respect to Section 11(e), any participants hereunder.
-4-
“Buyer’s Margin Amount” shall mean, with respect to any Purchased Asset as of any
date, the amount obtained by dividing the Repurchase Price (exclusive of Other Price Components)
for such Purchased Asset by the applicable Buyer’s Margin Percentage (expressed as a decimal) for
such Purchased Asset.
“Buyer’s Margin Percentage” for any Purchased Asset shall be the Buyer’s Margin
Percentage set forth in the Purchase Confirmation for such Purchased Asset, which shall, unless the
Buyer and Seller otherwise agree in such Purchase Confirmation, be the Buyer’s Margin Percentage
for the Category applicable to such Purchased Asset, as set forth in Schedule 5 attached to
this Agreement; provided, that with respect to Mortgage Loans not secured by Underlying Mortgaged
Properties that are Retail, Office, Multifamily, Hotels or Motel properties, the Buyer’s Margin
Percentage shall be determined by Buyer, in its sole discretion, upon request.
“Call Deficit” shall mean a Capital Call Deficit or a Margin Call Deficit.
“Call Support Amount” shall mean, with respect to any Purchased Asset as of any date,
an amount (which may be a positive or negative number) equal to the Deficit Cure Amount of such
Purchased Asset as of such date minus the Capital Call Amount of such Purchased Asset as of such
date.
“Call Support Condition” shall mean a condition existing if and for so long as the
aggregate sum of the Call Support Amounts for all Purchased Assets then included under this
Agreement (i.e., exclusive of any Purchased Asset which shall have been repurchased or is at the
time of determination being repurchased) is equal to zero or a positive amount.
“Capital Call” has the meaning specified in Section 6(a) hereof.
“Capital Call Amount” shall mean, with respect to any Purchased Asset as of any date,
the amount obtained by dividing the Repurchase Price (exclusive of Other Price Components) for such
Purchased Asset by the applicable Capital Call Percentage for such Purchased Asset.
“Capital Call Deferral” has the meaning specified in Section 6(b) hereof.
“Capital Call Deficit” has the meaning specified in Section 6(a) hereof.
“Capital Call Percentage” for any Purchased Asset shall be the “Capital Call
Percentage” set forth in the Purchase Confirmation for such Purchased Asset, which shall, unless
the Buyer and Seller otherwise agree in such Purchase Confirmation, be the “Capital Call
Percentage” for the Category applicable to such Purchased Asset, as set forth in Schedule 5
attached to this Agreement; provided, that with respect to Mortgage Loans not secured by Underlying
Mortgaged Properties that are Retail, Office, Multifamily, Hotels or Motel properties, the Capital
Call Percentage shall be determined by Buyer, in its sole discretion, upon request.
“Capital Stock” means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent equity
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ownership interests in a Person which is not a corporation, including, without limitation, any
and all member or other equivalent interests in any limited liability company, and any and all
warrants or options to purchase any of the foregoing.
“Care Facility” means a congregate care facility or assisted living facility, nursing
home, hospice, hospital or other healthcare facility.
“CF Sweep Condition” shall mean, with respect to any Purchased Asset as of any date, a
condition that will exist if and for so long as Buyer determines (in its sole discretion, exercised
in good faith) that (i) the Repurchase Price (exclusive of Other Price Components) of such
Purchased Asset as of such date exceeds (ii) the product obtained by multiplying (A) the Market
Value of such Purchased Asset as of such date, by (B) the CF Sweep Percentage (expressed as a
decimal) for such Purchased Asset.
“CF Sweep Percentage” for any Purchased Asset shall be the “CF Sweep Percentage” set
forth in the Confirmation for such Purchased Asset, which shall, unless the Buyer and Seller
otherwise agree in such Confirmation, be the “CF Sweep Percentage” for the Category applicable to
such Purchased Asset, as set forth in Schedule 5 attached to this Agreement; provided, that
with respect to Mortgage Loans not secured by Underlying Mortgaged Properties that are Retail,
Office, Multifamily, Hotels or Motel properties, the CF Sweep Percentage shall be determined by
Buyer, in its sole discretion, upon request.
“Category” has the meaning specified in Schedule 6 attached hereto.
“CDO Transaction” means a CDO transaction of the Seller or an Affiliate of the Seller
with respect to any of the Purchased Assets for which an Affiliate of the Buyer acts as co-manager
or co-lead underwriter.
“CDO-1 Closing Date” means the closing date of the first of the two CDO Transactions
contemplated by the MOU.
“CDO-2 Closing Date” means the closing date of the second of the two CDO Transactions
contemplated by the MOU.
“Change in Control” means:
(A) any transaction or event as a result of which Guarantor ceases to own,
beneficially or of record directly or indirectly, at least 51% of the stock of
Seller;
(B) the sale, transfer, or other disposition of all or substantially all of Seller’s
or Guarantor’s assets (excluding any such action taken in connection with any
securitization transaction including a CDO Transaction); or
(C) the consummation of a merger or consolidation of the Guarantor with or into
another entity or any other corporate reorganization, if more than 50% of the
combined voting power of the continuing or surviving entity’s stock outstanding
immediately after such merger, consolidation or such other reorganization is
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owned by Persons who were not stockholders of the Guarantor immediately prior to
such merger, consolidation or other reorganization.
“Closing Data Tape” means, with respect to any Transaction as of any Purchase Date, a
computer tape or other electronic medium generated by Seller or any of its Affiliates and delivered
to Buyer and Custodian, which provides, with respect to each Purchased Asset that is the subject of
such Transaction, each of the data fields set forth on Exhibit C attached hereto and the
information responsive to each such field, as well as any and all new, modified or updated
information with respect to such Purchased Asset that has been provided to Buyer prior to the
applicable Purchase Date and as to which the Purchase Price or any other information set forth in
the Purchase Confirmation for such Transaction has been based, in each case in a format that has
previously been approved by Buyer and is otherwise acceptable to Buyer.
“CMBS Conduit Securities” means CMBS Securities (A) issued by a single-seller or
multi-seller conduit under which the holders of such CMBS Securities have recourse to a specified
pool of assets (but not other assets originated by the conduit that support payments on other
series of securities) and (B) that entitle the holders thereof to receive payments that depend
(except for rights or other assets designed to assure the servicing or timely distribution of
proceeds to holders of the CMBS Securities) on the cash flow from a pool of commercial mortgage
loans.
“CMBS Credit Tenant Lease Securities” means CMBS Securities (other than CMBS Large
Loan Securities and CMBS Conduit Securities) that entitle the holders thereof to receive payments
that depend on the cash flow from a pool of commercial mortgage loans made to finance the
acquisition, construction and improvement of properties leased to corporate tenants (or on the cash
flow from such leases); provided that such dependence may in addition be conditioned upon rights or
additional assets designed to assure the servicing or timely distribution of proceeds to holders of
the CMBS Securities such as a financial guaranty insurance policy.
“CMBS Investment Grade Security” means a CMBS Security with an actual rating of at
least “BBB-” by S&P, “Baa3” by Xxxxx’x or “BBB-” by Fitch.
“CMBS Large Loan Securities” means CMBS Securities (other than CMBS Conduit
Securities) that entitle the holders thereof to receive payments that depend (except for rights or
other asset designed to assure the servicing or timely distribution of proceeds to holders of the
CMBS Securities) on the cash flow from a commercial mortgage loan or a small pool of commercial
mortgage loans made to finance the acquisition or improvement of real properties.
“CMBS Security” means an asset-backed security that entitles the holder thereof to
receive payments that depend (except for rights or other assets designed to assure the servicing or
timely distribution of proceeds to holders of the asset-backed securities) on the cash flow from a
pool of commercial mortgage loans).
“Code” means the Internal Revenue Code of 1986, as amended.
“Collection Period” shall mean with respect to the Price Differential Payment Date in
any month, the period beginning on the Cut-off Date in the month preceding the month
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in which such Price Differential Payment Date occurs (and in connection with the first Price
Differential Payment Date, the period beginning on the date of the first purchase under this
Agreement and continuing to but excluding the Cut-off Date immediately preceding such Price
Differential Payment Date.
“Commercial Mortgage Loan” means a mortgage loan, or senior interest therein, (a)
secured by a first mortgage lien on an Office Building, a Retail property, an Industrial Property,
a Self-Storage Property, a Hotel or Motel or other commercial or Multifamily property, (b) with a
Loan-to-Value Ratio of 85% or less and (c) as to which the representations and warranties in
Schedule 1 hereof are correct in all material respects.
“Complete Submission” means with respect to any Transaction, the Summary Diligence
Materials together with a Preliminary Data Tape.
“Concentration Limit” means:
(a) The aggregate outstanding principal balance of all Whole Loans that are Purchased Assets
shall be at least 40% of the Expected Portfolio Balance; or
(b) The aggregate outstanding principal balance of all Junior Interests and Mezzanine Loans
that are Purchased Assets shall not exceed, in the aggregate, 60% of the Expected Portfolio
Balance; or
(c) The aggregate outstanding principal balance of all CMBS Securities that are Purchased
Assets shall not exceed 0% of the Expected Portfolio Balance; provided, however, that not more than
0% of the aggregate outstanding principal balance of all CMBS Securities that are Purchased Assets
consists of non-investment grade CMBS Securities and not more than 0% of the aggregate outstanding
principal balance of all CMBS Securities that are Purchased Assets consists of non-investment grade
CMBS Securities issued by a single issuer; or
(d) The aggregate outstanding principal balance of all Bank Loans that are Purchased Assets
shall not exceed 0% of the Expected Portfolio Balance; or
(e) The aggregate outstanding principal balance of all Preferred Equity Securities that are
Purchased Assets shall not exceed 0% of the Expected Portfolio Balance; or
(f) The outstanding principal balance of any single Purchased Asset shall not exceed
$50,000,000 (unless such Purchased Asset is purchased from an Affiliate of the Buyer); or
(g) No more than four Purchased Assets shall each have an outstanding principal balance of
more than $35,000,000; or
(h) The LTV of any single Purchased Asset shall not exceed 85%; or
(i) The weighted average LTV of all Purchased Assets shall not exceed 80%; or
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(j) The weighted average DSCR of all Purchased Assets that are Commercial Mortgage Loans shall
not be less than 1.30:1; or
(k) The weighted average DSCR of all Purchased Assets that are Junior Interests shall not be
less than 1.10:1; or
(l) The weighted average DSCR of all Purchased Assets that are Mezzanine Loans shall not be
less than 1.05:1.
“Condo Conversion” means a Multifamily which is secured by a Mortgaged Property that
is in the process of being converted to and/or sold as condominium units in a condominium project.
“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of the
Consolidated Total Indebtedness to the sum of Consolidated Net Worth of Guarantor plus Unfunded
Capital Commitments. For example, if the Consolidated Total Indebtedness of Guarantor on any date
is $20,000,000, and the Consolidated Net Worth of Guarantor as of such date is $5,000,000, the
Consolidated Leverage Ratio is 4:1.
“Consolidated Total Indebtedness” means, as of any date of determination, all
Indebtedness of Guarantor and its subsidiaries (including Seller) outstanding at such date,
determined on a consolidated basis in accordance with GAAP, after eliminating intercompany items.
“Consolidated Net Worth” means, as of any date of determination, the aggregate fair
market value of the assets of the Guarantor and its subsidiaries (including Seller) minus the
aggregate full face amount of all liabilities and contingent liabilities of the Guarantor and its
subsidiaries (including Seller) as of such date, determined in accordance with GAAP, after
eliminating intercompany items.
“Credit Loss” shall mean with respect to any Purchased Asset, (1) any realized loss
with respect to such Purchased Asset (including any loss to Buyer as a result of the sale or
liquidation of a Purchased Asset for an amount that is less than the Repurchase Price for such
Purchased Asset), (2) any reduction in the DSCR (after giving effect to any reserves) for the real
property securing directly such Purchased Asset (including for purposes of this calculation, such
loan and any loan junior to, pari passu with or senior to such loan and secured, directly or
indirectly, by the related property) by 0.10%, or (3) any loss in value of such Purchased Asset as
determined by Buyer in its reasonable business discretion, exercised in good faith.
“Credit Risk Interest” means any Purchased Asset that, in the Buyer’s reasonable
business judgment, has a significant risk of declining in credit quality or, with a lapse of time,
becoming an Impaired Interest.
“Custodial Agreement” means the custodial agreement dated as of the date hereof, among
Seller, Buyer and Custodian as the same may be amended from time to time.
“Custodial Delivery Letter” means the notice from Seller which can be in electronic
form indicating that Seller is delivering an Asset File to the Custodian.
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“Custodian” means LaSalle Bank National Association, or such other party specified by
Buyer and agreed to by Seller, which approval shall not be unreasonably withheld.
“Cut-off Date” means the second Business Day preceding each Price Differential Payment
Date.
“Default” means an Event of Default or an event that with notice or lapse of time or
both would become an Event of Default.
“Deficit Cure Amount” shall mean, with respect any Purchased Asset as of any date, the
amount (expressed in dollars) obtained by dividing (i) the Repurchase Price (exclusive of Other
Price Components) of such Purchased Asset as of such date by (ii) the Purchase Price Percentage for
such Purchased Asset. With respect to any Purchased Asset that is the subject of a Credit Loss, if
such Purchased Asset has been sold or liquidated the Deficit Cure Amount for such Purchased Asset
will be equal to the outstanding Credit Loss.
“Distribution Worksheet” means a worksheet setting forth the amounts and recipients of
remittances to be made on the Price Differential Payment Date, substantially in the form of
Exhibit H.
“Dollars” and “$” means dollars in lawful currency of the United States of
America.
“DSCR” for any Purchased Asset or proposed Purchased Asset shall be the ratio
(expressed as a decimal, followed by an “x”) of (A) the underwritten “as is” annualized net cash
flow (based on the period of 12 consecutive complete calendar months preceding such date (or, if
such Purchased Asset was originated less than 12 months from the date of determination, the number
of months from the date of origination) generated by the real property or properties that directly
or indirectly secure such Purchased Asset, as determined by Buyer in its sole discretion, exercised
in good faith (which shall include consideration of interest reserves as a source of debt service
payments to the extent such reserves are funded as of the date of purchase of such Purchased Asset
hereunder), to (B) the annualized debt service or preferred return (as determined below) for the
Purchased Asset plus the annualized debt service or preferred return (as determined below) for any
and all senior and pari passu debt directly or indirectly secured by the real property or
properties that collateralize such Purchased Asset. The “debt service” for the Purchased Asset,
senior and pari passu debt, as applicable, or, in the case of a Preferred Equity Security, the
“preferred return,” for purposes of the calculation in clause (B) shall be, with respect to each
such debt or preferred return, as applicable, the greater of (1) the annualized debt service for
such debt or annualized preferred return, as applicable, based upon the actual interest rate and
amortization for such debt or preferred return (provided that if the interest rate is determined by
reference to a variable rate, the Buyer shall in its sole discretion, exercised in good faith,
select an appropriate rate as the assumed rate to be used to calculate the Combined DSCR, which
shall not be less than the rate that would apply assuming that the LIBOR or other base variable
rate used under the related loan documents or organizational documents, as applicable, to determine
the interest rate of the debt or preferred return equals the “strike price” of any interest rate
cap required and in place under the terms of the related loan documents or organizational
documents, as applicable, or if no interest rate cap is required or in place, the
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“strike rate” determined by Buyer in its sole discretion, exercised in good faith), and (2)
the debt service or preferred return, as applicable, due at a stabilized debt service or preferred
return constant, in each case as determined by Buyer in its sole discretion, exercised in good
faith. The foregoing elements of DSCR may be adjusted by the Buyer in its discretion.
“Due Diligence Costs” has the meaning specified in Section 36 hereof.
“Effective Date” means the date upon which the conditions precedent set forth in
Section 10 shall have been satisfied.
“Eligibility Criteria” has the meaning specified on Schedule 2 hereof.
“Eligible Asset” means any Whole Loan, CMBS Security, Mezzanine Loan, Real Estate CDO
Security, Preferred Equity Security, Table Funded Purchased Asset, Bank Loan or Junior Interest
that, in each case, (i) is acceptable to Buyer in its sole discretion, (ii) conforms in all
material respects with the applicable representations and warranties on Schedule 1, (iii)
satisfies the Eligibility Criteria set forth on Schedule 2 and (iv) does not cause the
Seller to be in violation of the Concentration Limit.
“Environmental Law” means any federal, state, foreign or local statute, law, rule,
regulation, ordinance, code, guideline, written policy and rule of common law now or hereafter in
effect and in each case as amended, and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment, relating to the
environment, employee health and safety or hazardous materials, including, without limitation,
CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.;
the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Clean Air Act, 42
U.S.C. § 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 3803 et
seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; the
Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et
seq.; the Hazardous Material Transportation Act, 49 U.S.C. § 1801 et seq.
and the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.; and any state
and local or foreign counterparts or equivalents, in each case as amended from time to time.
“Equity Security” means any security that does not entitle the holder thereof to
receive periodic payments of interest and one or more installments of principal acquired by the
Buyer as a result of the exercise or conversion of Purchased Assets, in conjunction with the
purchase of Purchased Assets or in exchange for a Purchased Asset.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
“ERISA Affiliate” means any corporation or trade or business that is a member of any
group of organizations (i) described in Section 414(b) or (c) of the Code of which Seller is a
member and (ii) solely for purposes of potential liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and Section
412(n) of the Code, described in Section 414(m) or (o) of the Code of which Seller is a member.
“Event of Default” has the meaning specified in Section 15 hereof.
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“Excess Cash Flow Sufficiency Condition” has the meaning specified in Section 6(b)
hereof.
“Expected Portfolio Balance” shall mean $300,000,000.
“Exit Fee” means, with respect to any Purchased Asset, an amount equal to the product
of (x) 0.90% and (y) the Outstanding Purchase Price with respect to the related Purchased Asset.
“Extended Commitment Expiration Date” has the meaning specified in Section 3(f)
hereof.
“Xxxxxx Xxx” means Xxxxxx Mae, the government sponsored enterprise formerly known as
the Federal National Mortgage Association.
“FDIA” has the meaning set forth in Section 26(c) hereof.
“FDICIA” has the meaning set forth in Section 26(d) hereof.
“Fitch” means Fitch Ratings, Inc., or any successor thereto.
“Xxxxxxx Mac” means the Federal Home Loan Mortgage Corporation or any successor
thereto.
“Future Advance Loan” means any Whole Loan acquired by the Buyer (referred to as the
“Funded Loan”) with respect to which, at the time of such acquisition and for so long as
the Buyer owns such Loan, there is outstanding another loan to the same borrower that was made by
the maker of the Funded Loan (the “Future Funding Commitment”) if with respect to the
Future Funding Commitment both (i) either it (A) is secured by the same mortgage or deed of trust
on the same mortgaged property as the Funded Loan or (B) if the Funded Loan is a participation
interest in a Mezzanine Loan, is secured by the same pledged collateral, and (ii) there exists a
continuing obligation on the part of the holder of the Future Funding Commitment after its
origination date to provide additional funding to the borrower under the Future Funding Commitment,
upon the terms and conditions of the underlying loan documents for the Future Funding Commitment.
“Future Funding Commitment” shall have the meaning assigned to such term in the
definition of the term “Future Advance Loan.”
“GAAP” means generally accepted accounting principles in effect from time to time in
the United States of America and applied on a consistent basis.
“Governing Agreement” means the agreement or agreements which govern the issuance and
the payment of the Securities including without limitation a private placement memorandum or a
prospectus.
“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory
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or administrative functions over the Seller, each Servicer, the Guarantor or the Buyer, as
applicable.
“Ground Lease” means a lease for all or any portion of the real property comprising
the Mortgaged Property, the lessee’s interest which is held by the Mortgagor of the related
Mortgage Loan.
“Ground Lessee” means the ground lessee under a Ground Lease.
“Guarantee” means, as to any Person, any obligation of such Person directly or
indirectly guaranteeing any Indebtedness of any other Person or in any manner providing for the
payment of any Indebtedness of any other Person or otherwise protecting the holder of such
Indebtedness against loss (whether by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, or to take-or-pay or otherwise);
provided that the term “Guarantee” shall not include (i) endorsements for collection or
deposit in the ordinary course of business, or (ii) obligations to make servicing advances for
delinquent taxes and insurance or other obligations in respect of a Mortgaged Property, to the
extent required by Buyer. The amount of any Guarantee of a Person shall be deemed to be an amount
equal to the stated or determinable amount of the primary obligation in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by such Person in good faith. The terms “Guarantee” and
“Guaranteed” used as verbs shall have correlative meanings.
“Guarantor” means NY Credit Operating Partnership LP, in its capacity as guarantor
under the Guaranty.
“Guaranty” means the guaranty of the Guarantor dated as of the date hereof as the same
may be amended from time to time.
“Hotel” or “Motel” means a real estate development owned by the Mortgagor or
for which the Mortgagor is a Ground Lessee, which constitutes a full operational hotel or motel
which is part of a national or regional chain or franchise (determined by the Buyer in its sole
good faith discretion), including all land, amenities and improvements, with individual rooms
principally for short-term rental to tenants occupying same.
“Impaired Asset” is a Purchased Asset as to which (i)(a) the issuer thereof has
defaulted in the payment of principal or interest and which default has continued beyond any
applicable grace or notice period or (b) pursuant to the Underlying Instruments, there has occurred
any default or event of default which entitles the holders of such Purchased Asset, with notice or
lapse of time or both, to accelerate the maturity (whether by mandatory prepayment, mandatory
redemption or otherwise) of all or a portion of the principal amount of such Purchased Asset and
(x) in the case of a default or event of default consisting of a failure of the obligor on such
Purchased Asset to make required interest payments, such Purchased Asset has not resumed current
cash payments of interest (whether or not any waiver or restructuring has been effected), or (y) in
the case of any other default or event of default, such default or event of default is continuing,
or (ii) the aggregate par amount of the entire class of such Purchased Asset and all other
securities secured by the same collateral that rank senior in priority of payment to
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such class exceeds the aggregate par amount (including reserved interest or other amounts
available for overcollateralization) of all collateral securing such issue (excluding defaulted
collateral).
“Income” means with respect to any Purchased Asset at any time until repurchased by
the Seller, any principal received thereon or in respect thereof and all interest, dividends or
other distributions thereon.
“Indebtedness” means, for any Person: (a) obligations created, issued or incurred by
such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the
sale of Property to another Person subject to an understanding or agreement, contingent or
otherwise, to repurchase such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of
business, so long as such trade accounts payable are payable within 90 days of the date the
respective goods are delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective Indebtedness so
secured has been assumed by such Person; (d) obligations (contingent or otherwise) of such Person
in respect of letters of credit or similar instruments issued or accepted by banks and other
financial institutions for the account of such Person; (e) obligations to pay rent or other amounts
under a lease of property; (f) obligations of such Person under repurchase agreements,
sale/buy-back agreements or like arrangements; (g) Indebtedness of others Guaranteed by such
Person; (h) all obligations of such Person incurred in connection with the acquisition or carrying
of fixed assets by such Person; and (i) Indebtedness of general partnerships of which such Person
is a general partner.
“Indemnified Party” has the meaning set forth in Section 30(a) hereof.
“Industrial Property” means a property owned by the Mortgagor or for which the
Mortgagor is a Ground Lessee, which constitutes a full operational property, held partially or
principally for lease to commercial tenants in connection with manufacturing.
“Ineligible Asset” means a Purchased Asset that does not satisfy the Eligibility
Criteria, the representations and warranties set forth on Schedule 1 hereto or the
eligibility criteria expected to be set forth in the indenture to be entered into in connection
with a CDO Transaction, as determined by Buyer.
“Initial Commitment Expiration Date” means the earlier of CDO-1 Closing Date or
January 15, 2008.
“Interest Only Security” means any security that by its terms provides for periodic
payments of interest and does not provide for the repayment of a stated principal amount.
“Interest Rate Protection Agreement” means, with respect to any or all of the
Purchased Assets, any short sale of a US Treasury Security, or futures contract, or mortgage
related security, or Eurodollar futures contract, or options related contract, or interest rate
swap, cap or collar agreement, or similar arrangement providing for protection against fluctuations
in interest rates or the exchange of nominal interest obligations, either generally or under
specific
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contingencies, entered into by Seller and a party reasonably acceptable to Buyer in its sole
discretion, which agreement is reasonably acceptable to Buyer in its sole discretion.
“Irrevocable Instruction Letter” means an instruction letter in the form of
Exhibit J hereto pursuant to which the Seller has directed the related paying agent with
respect to the applicable Purchased Asset to remit all amounts on account of such Purchased Asset
directly to the Account set forth in such letter.
“Issuer” means the related borrower with respect to any Bank Loan.
“Junior Interest” means (a) a junior “B” participation interest or certificate in a
Commercial Mortgage Loan or Mezzanine Loan or (b) a “B note” in an A/B structure of a Commercial
Mortgage Loan or Mezzanine Loan, in each case with a Loan-to-Value Ratio of 85% or less and as to
which the representations and warranties in Schedule 1(a) (with respect to a Junior
Interest relating to a Commercial Mortgage Loan), Schedule 1(b) and Schedule 1(c)
(with respect to a Junior Interest relating to a Mezzanine Loan) hereof are correct in all material
respects.
“LIBOR Period” means, with respect to each Price Differential Payment Date, the period
from and including the immediately preceding Price Differential Payment Date (or, with respect to
the first LIBOR Period for the Transaction, from and including the Purchase Date) to but excluding
such Price Differential Payment Date, unless otherwise agreed to by the Buyer and the Seller in
writing.
“
LIBOR” means, with respect to each day during the applicable LIBOR Period, the rate
per annum equal to the one month London Inter-Bank Offered Rate for United States Dollar deposits
as reported on the display designated as “BBAM” “Page 1229a” on Bloomberg (or such other display as
may replace “BBAM” “Page 1229a” on Bloomberg), as of 8:00 a.m.,
New York City time, on the date two
(2) Business Days prior to the commencement of such LIBOR Period, and if such rate shall not be so
quoted, or if the related LIBOR Period shall be less than one month, the rate per annum at which
the Buyer or its Affiliate is offered dollar deposits at or about 8:00 a.m.,
New York City time, on
the date two (2) Business Days prior to the commencement of the such LIBOR Period, by prime banks
in the interbank Eurodollar market where the Eurodollar and foreign currency exchange operations in
respect of its Transactions are then being conducted for delivery on such day for a period
corresponding to that set forth above or such other period as agreed upon in writing by the Buyer
and the Seller and in an amount comparable to the amount of the Transactions outstanding on such
day.
“Lien” means any mortgage, lien, pledge, charge, security interest or similar
encumbrance.
“Liquid Assets” of a Person means any of the following, but only to the extent owned
directly by such Person and only to the extent the same are free of all security interests, liens
and other charges or encumbrances: (k) cash and (ii) “Permitted Investments” maintained in one or
more Accounts; provided that the same may be liquidated to cash at such Person’s discretion not
more than two Business Days after such direction.
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“Liquid Net Worth” of any Person means (i) the aggregate fair market value (as
estimated by Buyer in good faith) of any Liquid Assets of such Person, minus (ii) the aggregate
full face amount of all current liabilities and current contingent liabilities of such Person
determined in accordance with GAAP.
“Loan Security Agreement” means as to any Purchased Asset, any contract, instrument or
other document related to security for repayment thereof (other than in the case of a Mortgage
Loan, the related Mortgage and Mortgage Note), executed by the obligor and/or others in connection
with such Mortgage Loan, including without limitation, any security agreement, guaranty, title
insurance policy, hazard insurance policy, chattel mortgage, letter of credit or certificate of
deposit or other pledged accounts, and any other documents and records relating to any of the
foregoing.
“Loan-to-Value Ratio” or “LTV” means with respect to any Eligible Asset, the
ratio of the current outstanding principal amount of the Eligible Asset plus the current
outstanding principal amount of all senior and pari passu debt directly or indirectly secured by
the real property or properties that collateralize such Eligible Asset to the lesser of (a) the
“as-is” Appraised Value of the Mortgaged Property or Underlying Mortgaged Property at origination
or (b) if the Mortgaged Property or Underlying Mortgaged Property was purchased within 12 months of
the origination of the Eligible Asset, the purchase price of the Mortgaged Property or Underlying
Mortgaged Property.
“Margin Call” has the meaning specified in Section 6(a) hereof.
“Margin Call Deficit” has the meaning specified in Section 6(a) hereof.
“Market Value” means, with respect to any Purchased Asset as of any relevant date, the
fair market value for such Purchased Asset on such date, taking into account in connection with any
fixed rate Purchased Asset the affect on value (positive or negative) of any Interest Rate
Protection Agreements entered into by Seller with respect to such Purchased Asset that have been
(and shall be on the Purchase Date) pledged to Buyer pursuant to documentation and deliveries
reasonably satisfactory to Buyer, as such fair market value is determined by Buyer in its sole
discretion, exercised in good faith, provided, that notwithstanding anything herein to the
contrary, the Market Value of a Purchased Asset, as of any date of determination shall in no event
exceed the lesser of (i) the price paid by Seller at the time the Purchased Asset is acquired by
Seller, less any reduction in the principal of the Purchased Asset occurring after such Purchased
Asset is acquired by Seller, and (ii) the outstanding principal balance of such Purchased Asset as
of the date Market Value is determined. The Market Value of all Purchased Assets shall be
determined by Buyer in its sole discretion, exercised in good faith, on each Business Day during
the term of this Agreement, or less frequently from time to time if Buyer elects in its sole
discretion.
“Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the business, operations or financial condition of the Seller or Guarantor
that constitutes a material impairment of the Seller’s or Guarantor’s ability to perform its
obligations under any Program Agreement or (b) a material adverse effect upon the legality,
validity, binding
-16-
effect or enforceability of any Program Agreement against Seller, Guarantor or any Affiliate
that is a party to any Program Agreement.
“Maximum Aggregate Purchase Price” means $300,000,000.
“Mezzanine Loan” means a loan (a)(i) secured by a second mortgage lien on commercial
real property to an entity that directly owns such commercial real property or (ii) to an entity
owning an interest in a special purpose entity that directly owns commercial real properties, and
such loan is secured by a pledge of excess cash flow after first mortgage debt service or equity
interests in the owner of such commercial real property, (b) with a Loan-to-Value Ratio of 85% or
less and (c) as to which the representations and warranties in Schedule 1(c) hereof are
correct in all material respects.
“Minimum Liquid Net Worth Amount” means $5,000,000.
“Minimum Net Worth Amount” means $50,000,000.
“Moody’s” means Xxxxx’x Investors Service, Inc. or any successors thereto.
“Mortgage” means, with respect to each Mortgage Loan, each mortgage, assignment of
rents, security agreement and fixture filing, or deed of trust, assignment of rents, security
agreement and fixture filing, deed to secure debt, assignment of rents, security agreement and
fixture filing, or similar instrument creating and evidencing a lien on real property and other
property and rights incidental thereto.
“Mortgage Interest Rate” means the rate of interest borne on a Mortgage Loan from time
to time in accordance with the terms of the related Mortgage Note.
“Mortgage Loan” means a Commercial Mortgage Loan or a Junior Interest in a Commercial
Mortgage Loan.
“Mortgage Note” means the promissory note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
“Mortgaged Property” means the real property securing repayment of the debt evidenced
by a Mortgage Note.
“Mortgagor” means the obligor or obligors on a Mortgage Note, including any person who
has assumed or guaranteed the obligations of the obligor thereunder.
“
MOU” means the memorandum of understanding, dated as of March 28, 2007, entered into
among Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Greenwich Capital Markets, Inc. and
New
York Credit Advisors (“
MOU”).
“Multiemployer Plan” means a multiemployer plan defined as such in Section 3(37) of
ERISA to which contributions have been or are required to be made by Seller or any ERISA Affiliate
and that is covered by Title IV of ERISA.
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“Multifamily” means a Commercial Mortgage Loan secured by a first mortgage lien on a
five-or-more family residential property, as to which the representations and warranties in
Schedule 1 hereof are correct in all material respects.
“Net Worth” means, with respect to any Person, an amount equal to, on a consolidated
basis, such Person’s stockholder equity (determined in accordance with GAAP).
“Non-Excluded Taxes” shall have the meaning set forth in Section 11(e)(i) hereof.
“Non-Performing Asset” means (i) any Eligible Asset for which any payment of principal
or interest is more than twenty-nine (29) days past due, (ii) any Eligible Asset with respect to
which the related obligor is in bankruptcy or (iii) any Eligible Asset (other than Securities) with
respect to which the related Mortgaged Property is in foreclosure.
“Notice Date” has the meaning given to it in Section 3(b) hereof.
“Obligations” means (a) all of Seller’s indebtedness, obligations to pay the
Repurchase Price on the Repurchase Date, the Price Differential on each Price Differential Payment
Date, and other obligations and liabilities, to Buyer, its Affiliates or Custodian arising under,
or in connection with, the Program Agreements, whether now existing or hereafter arising; (b) any
and all sums paid by Buyer or on behalf of Buyer in order to preserve any Purchased Asset or its
interest therein; (c) in the event of any proceeding for the collection or enforcement of Seller’s
indebtedness, obligations or liabilities referred to in clause (a), the reasonable expenses of
retaking, holding, collecting, preparing for sale, selling or otherwise disposing of or realizing
on any Purchased Asset, or of any exercise by Buyer of its rights under the Program Agreements,
including, without limitation, reasonable attorneys’ fees and disbursements and court costs; and
(d) all of Seller’s indemnity obligations to Buyer or Custodian or both pursuant to the Program
Agreements.
“OFAC” has the meaning set forth in Section 13(a)(24) hereof.
“Office Building” means a building owned by the Mortgagor or for which the Mortgagor
is a Ground Lessee, which constitutes a full operational office building, including all land,
amenities and improvements, with individual office space held principally for lease to commercial
tenants and not principally for lease to recreational or residential tenants.
“Other Price Components” means, with respect to the Repurchase Price of a Purchased
Asset, has the meaning set forth in the definition of Repurchase Price.
“Other Taxes” shall have the meaning set forth in Section 11(e)(ii) hereof.
“Outstanding Purchase Price” means, with respect to any Purchased Asset as of any date
of determination, an amount equal to the Purchase Price of such Purchased Asset, less any amounts
paid by Seller to Buyer on or prior to the date of such determination on account of the Repurchase
Price for such Purchased Asset.
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“Permitted Investments” means any one or more of the following obligations or
securities having at the time of purchase, or at such other time as may be specified, the required
ratings, if any, provided for in this definition:
(a) direct obligations of, or guaranteed as to timely payment of principal and interest by,
the United States of America or any agency or instrumentality thereof; provided that such
obligations are backed by the full faith and credit of the United States of America;
(b) direct obligations of, or guaranteed as to timely payment of principal and interest by,
Xxxxxxx Mac, Xxxxxx Xxx or the Federal Farm Credit System, provided that any such obligation, at
the time of purchase or contractual commitment providing for the purchase thereof, is qualified by
any rating agency as an investment of funds backing securities rated at least “AA” (or such
comparable rating);
(c) demand and time deposits in or certificates of deposit of, or bankers’ acceptances issued
by, any bank or trust company, savings and loan association or savings bank, provided that, in the
case of obligations that are not fully FDIC-insured deposits, the commercial paper or long-term
unsecured debt obligations of such depository institution or trust company (or in the case of the
principal depository institution in a holding company system, the commercial paper or long-term
unsecured debt obligations of such holding company) have one of the two highest rating available
for such securities by any rating agency;
(d) general obligations of or obligations guaranteed by any state of the United States or the
District of Columbia receiving one of the two highest long-term debt rating available for such
securities by any rating agency; and
(e) commercial or finance company paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a specified date not more than
one year after the date of issuance hereof) that is rated by any rating agency in highest
short-term unsecured rating category at the time of such investment, and is issued by a corporation
the outstanding senior long-term debt obligations of which are then rated by any such rating agency
in one of its two highest short-term unsecured rating category and its highest long-term unsecured
rating category.
provided, however, that no instrument shall be a Permitted Investment if it represents, (1) the
right to receive only interest payments with respect to the underlying debt instrument, (2) the
right to receive both principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying obligations, (3)
an obligation that has a remaining maturity of greater than three hundred sixty-five (365) days
from the date of acquisition thereof. If an obligation is rated by S&P, then such obligation must
be limited to those instruments that have a predetermined fixed dollar of principal due at maturity
that cannot vary or change or, if rated, the obligation should not have an “r” highlighter affixed
to its rating, and interest thereon may either be fixed or variable and should be tied to a single
interest rate index plus a single fixed spread (if any) and move proportionately with that index.
-19-
“Person” means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision or agency thereof.
“Physical Security” means a Security issued in definitive form that are not registered
on a Relevant System.
“Plan” means an employee benefit or other plan established or maintained by any Seller
or any ERISA Affiliate and covered by Title IV of ERISA, other than a Multiemployer Plan.
“Preferred Equity Securities” means securities providing for regular payments of
dividends or other distributions, representing equity interests in an entity (including, without
limitation, a partnership or a limited liability company) that is a borrower under a mortgage loan
secured by commercial properties (or in an entity operating or controlling, directly or through
affiliates, such commercial properties).
“Preliminary Data Tape” means a preliminary version of the Closing Data Tape, which
shall be attached to the Summary Diligence Materials as part of the Complete Submission.
“Price Differential” means with respect to any Transaction as of any date of
determination, an amount equal to the product of (A) the Pricing Rate for such Transaction and (B)
the Outstanding Purchase Price for such Transaction, calculated daily on the basis of a 360-day
year for the actual number of days during the period commencing on (and including) the preceding
Price Differential Payment Date (or in the case of the first Price Differential Payment Date,
commencing on the first Purchase Date) and ending on (but excluding) the Price Differential Payment
Date (or Repurchase Date, if applicable).
“Price Differential Payment Date” means the 25th day of the month; provided, that the
final Price Differential Payment Date shall be the related Repurchase Date; and provided, further,
that if any such day is not a Business Day, the Price Differential Payment Date shall be the next
succeeding Business Day.
“Pricing Rate” means LIBOR plus the rates, and subject to the changes and increases,
set forth on Schedule 4 hereto; to be based on the Asset Value and the as-is DSCR of such
Purchased Asset, as determined by the Buyer in its sole discretion provided, that with respect to
Mortgage Loans not secured by Underlying Mortgaged Properties that are Retail, Office, Multifamily,
Hotels or Motel properties, the Pricing Rate shall be determined by Buyer, in its sole discretion,
upon request.
“Principal Only Security” means any security (other than a Step-Up Security) that does
not provide for payment of interest or provides that all payments of interest will be deferred
until the final maturity thereof.
“Principal Prepayment” means, for any Purchased Asset, (i) any amount applied to
reduce the principal or other invested amount of such Purchased Asset, including any scheduled
principal payment, including (i) principal prepayments from any source and of any nature
whatsoever, (ii) net insurance or net condemnation proceeds, to the extent applied to
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reduce the principal amount of the related Purchased Asset, and (iii) any net proceeds from
any sale, refinancing, liquidation or other disposition of the underlying real property or interest
relating to such Purchased Asset to the extent applied to reduce the principal amount or the
invested amount of the related Purchased Asset.
“Principal Payment” shall mean, with respect to any Purchased Asset, any payment of
all or any part of any principal and any proceeds of redemption received by the Servicer in respect
thereof, including any Principal Prepayment.
“Program Agreements” means, collectively, the Servicing Agreement, the Servicer
Notices, the Custodial Agreement, this Agreement, the Guaranty, each Account Agreement and all
executed Purchase Confirmations.
“Prohibited Person” has the meaning set forth in Section 13(a)(24) hereof.
“Property” means any right or interest in or to property of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible.
“Purchase Confirmation” means a confirmation of a Transaction, in the form attached as
Exhibit B hereto.
“Purchase Date” means the date on which Purchased Assets are to be transferred by
Seller to Buyer.
“Purchase Price” with respect to any Purchased Asset, the price at which such
Purchased Asset is transferred by Seller to Buyer on the applicable Purchase Date. The Purchase
Price as of any Purchase Date for any Purchased Asset shall be set forth in the Purchase
Confirmation for the Transaction for the purchase of such Purchased Asset, which shall, unless the
Buyer and Seller otherwise agree in such Purchase Confirmation, be an amount (expressed in dollars)
equal to the product obtained by multiplying (i) the lesser of (A) the acquisition cost of such
Purchased Asset, (B) the purchase price paid by Seller for such Purchased Asset, (C) the Market
Value of such Purchased Asset or (D) the unpaid principal amount of the Purchased Asset, by (ii)
the Purchase Price Percentage for such Purchased Asset, as set forth in the Purchase Confirmation
for the Transaction.
“Purchase Price Percentage” for any Purchased Asset shall be the “Purchase Price
Percentage” set forth in the Purchase Confirmation for such Purchased Asset, which shall, unless
the Buyer and Seller otherwise agree in such Purchase Confirmation, be the “Purchase Price
Percentage” for the Category applicable to such Purchased Asset, as set forth in Schedule 4
attached to this Agreement.
“Purchased Asset Schedule” means with respect to any Transaction as of any date, a
schedule in the form of Annex 1 to Exhibit A attached hereto. The Purchased Asset
Schedule shall be attached to each Trust Receipt and Custodial Delivery Letter.
“Purchased Assets” means the collective reference to Eligible Assets, together with
the Repurchase Assets related to such Eligible Assets transferred by Seller to Buyer in a
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Transaction hereunder, listed on the related Closing Data Tape attached to the related
Transaction Request.
“Rated” means the rating of an Eligible Asset by a Rating Agency.
“Rating Agency” means any of S&P, Xxxxx’x or Xxxxx.
“Rating Margin Call” has the meaning specified in Section 6(c) hereof.
“Real Estate CDO Securities” means securities that entitle the holders thereof to
receive payments that depend on the cash flow from or the credit exposure to a portfolio consisting
primarily of (i) REIT Debt Securities, (ii) CMBS Securities, (iii) Real Estate Interests or (iv) a
combination of the foregoing; provided that such dependence may in addition be conditioned upon
rights or additional assets designed to assure the servicing or timely distribution of proceeds to
holders of the Real Estate CDO Securities such as a financial guaranty insurance policy.
“Real Estate Interests” means interests (other than REIT Debt Securities and CMBS
Securities but including Tenant Lease Loan Interests) that entitle the holders thereof to receive
payments that depend primarily on the cash flow from or sale proceeds of mortgage loans on
commercial and multifamily properties, including senior and junior mortgage loans, Mortgage Loans,
participation interests in mortgage loans on commercial and multifamily properties, including
subordinate interests (“Subordinate Loan Interests”), Mezzanine Loans, mortgage loans
secured by mortgages on commercial real estate properties that are subject to a lease to a single
tenant (“Credit Lease Loans”) and Tenant Lease Loan Interests.
“REIT Debt Securities” means securities issued by a real estate investment trust (as
defined in Section 856 of the Code or any successor provision) whose assets consist (except for
rights or other assets designed to assure the servicing or timely distribution of proceeds to
holders of the Assets) of a portfolio of real property interests.
“Records” means all instruments, agreements and other books, records, and reports and
data generated by other media for the storage of information maintained by the Seller, the
Guarantor, a Servicer or any other person or entity with respect to a Purchased Asset. Records
shall include the Mortgage Notes, any Mortgages, the Asset Files, the credit files related to the
Purchased Asset and any other instruments necessary to document or service a Mortgage Loan.
“
Relevant System” means (a) The Depository Trust Corporation in
New York,
New York, or
(b) such other applicable clearing organization or book-entry system located in the United States,
in either case based upon the system pursuant to which the related Purchased Assets may be held in
book-entry form.
“Reporting Date” means the date each month that is the Price Differential Payment
Date.
“Repurchase Assets” has the meaning assigned thereto in Section 8 hereof.
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“Repurchase Date” shall mean the Termination Date, or such earlier date as determined
by the Buyer pursuant to Section 16(a) herein, except that in the event that the Seller
completes a CDO Transaction and prior the CDO-1 Closing Date the Buyer and Seller mutually agree
not to enter into an engagement letter for Transaction 2 (as defined in the MOU) the Repurchase
Date shall be the date that is 60 days after the pricing date for the CDO Transaction.
“Repurchase Price” shall mean, with respect to any Purchased Asset as of any date, the
price at which such Purchased Asset is to be transferred from Buyer to Seller upon termination of
the related Transaction; such price will be determined in each case as the sum of (a) the Purchase
Price of such Purchased Asset, less any amounts paid by Seller to Buyer, or Income received by
Buyer from the Servicer pursuant to Section 7 hereof, on or prior to the date of such determination
on account of the Repurchase Price for such Purchased Asset (other than amounts applied to the
components of the Repurchase Price set forth in the following clauses (b), (c) and (d) of this
definition (collectively, the “Other Price Components”), (b) the accrued and unpaid Price
Differential with respect to such Purchased Asset as of the date of such determination, (c) the
Exit Fee, if any, payable with respect to the Purchased Asset, and (d) all other amounts due and
owing to Buyer under this Agreement and the Transaction Documents, provided that if such other
amounts are not payable at the time of a repurchase of a Purchased Asset the same shall not be
included in the Repurchase Price of such Purchased Asset.
“Requirement of Law” means, with respect to any Person, any law, treaty, rule or
regulation or determination of an arbitrator, a court or other governmental authority, applicable
to or binding upon such Person or any of its property or to which such Person or any of its
property is subject.
“Responsible Officer” means as to any Person, the chief executive officer or, with
respect to financial matters, the chief financial officer of such Person.
“Retail” means a property owned by the Mortgagor or for which the Mortgagor is a
Ground Lessee, which constitutes a full operational retail store, held principally for lease to a
commercial retail tenant within a shopping center or mall and not principally for lease to
recreational or residential tenants.
“S&P” means Standard & Poor’s Ratings Services, or any successor thereto.
“SEC” means the Securities and Exchange Commission, or any successor thereto.
“Section 7 Certificate” shall have the meaning specified in Section 11(e)(v) hereof.
“Security” means a CMBS Security or Real Estate CDO Security as to which the
representations and warranties in Schedule 1 hereof are correct in all material respects.
“Self-Storage Properties” means self storage facilities and other similar real
property interests used in one or more similar businesses;
“Seller” means NY Credit Funding II, LLC or its permitted successors and assigns.
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“Servicer” means any servicer of all or a portion of the Purchased Assets, including,
if applicable, the Seller or an Affiliate thereof.
“Servicer Notice” means the notice acknowledged by each Servicer substantially in the
form of Exhibit F hereto.
“Servicing Agreement” has the meaning set forth in Section 12(c) hereof.
“Servicing Report” means a report remitted by each Servicer monthly, substantially in
the form of Exhibit I hereto.
“SIPA” means the Securities Investor Protection Act of 1970, as amended from time to
time.
“Special Servicer” means (i) any of the entities listed on Schedule 6 pre-approved to
perform Special Services with respect to a Purchased Asset for so long as such entities are on
S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer or (ii) an entity engaged
to perform Special Services as mutually agreed upon by the Buyer and Seller.
“Special Services” means services relating to property or collateral inspections
(except as otherwise provided in a Servicing Agreement), lease approvals, modification, waivers or
amendments of Underlying Instruments, maintaining or releasing liens on any collateral securing a
loan other than Underlying Mortgaged Properties and related collateral, waivers of due-on-sale or
due-on-encumbrance clauses, work-outs or debt restructuring, assumptions or substitutions,
foreclosure or accepting deeds or conveyances in lieu thereof, asset management, disposition or
other similar activities of or with respect to any Purchased Asset or related Underlying Mortgaged
Property or other collateral.
“Statement Date” has the meaning set forth in Section 13(a)(5) hereof.
“Step-Down Bond” means a security which by the terms of the related Underlying
Instruments provides for a decrease, in the case of a fixed rate security, in the per annum
interest rate on such security or, in the case of a floating rate security, in the spread over the
applicable index or benchmark rate, solely as a function of the passage of time; provided that, for
purposes of measuring compliance with the Concentration Limit, the interest rate or spread, as
applicable, associated with any Step-Down Bond included in the Purchased Assets will be the lowest
possible applicable interest rate or spread, as applicable, as set forth in the related Underlying
Instruments; provided, further, that the term Step-Down Bond will not include any such security
providing for payment of a constant rate of interest at all times after the date of acquisition by
the Buyer or any Whole Loan.
“Step-Up Security” means a security with a current interest rate of zero percent per
annum at the time of purchase but which increases to predetermined levels on specific dates;
provided that the term Step-Up Security will not include any Whole Loan.
“Subsidiary” means, with respect to any Person, any corporation, partnership or other
entity of which at least a majority of the securities or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of directors or other
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persons performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or might have voting
power by reason of the happening of any contingency) is at the time directly or indirectly owned or
controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or
more Subsidiaries of such Person.
“Summary Diligence Materials” means the items described on Annex 2 to
Exhibit A hereto for each Eligible Asset proposed to be sold to Buyer in accordance with,
and subject to the terms and conditions of, this Agreement.
“Table Funded Purchased Asset” means a Purchased Asset which is sold to the Buyer (and
held by a Bailee pursuant to a Bailee Agreement) simultaneously with the origination or acquisition
thereof, which origination or acquisition, pursuant to the Seller’s request, is financed with the
Purchase Price and paid directly to a title company or other settlement agent, in each case,
approved in writing by the Buyer in its sole discretion, for disbursement to the parties entitled
thereto in connection with such origination or acquisition. A Purchased Asset shall cease to be a
Table Funded Purchased Asset after the Custodian has delivered a Trust Receipt to the Buyer
certifying its receipt of the Asset File therefor.
“Table Funded Trust Receipt” means a Trust Receipt in the form of Exhibit 9 to the
Custodial Agreement.
“Target Price” shall mean, with respect to any Purchased Asset as of any date, the
amount (expressed in dollars) obtained by multiplying (i) the lesser of the Adjusted Par Value or
Market Value of such Purchased Asset as of such date by (ii) the Purchase Price Percentage for such
Purchased Asset, as specified in the related Purchase Confirmation.
“Taxes” shall have the meaning set forth in Section 11(e)(i) hereof.
“Termination Date” means the Initial Commitment Expiration Date, subject to extension
as provided in Section 3(f) of this agreement.
“Third Party Servicer” means any servicer of the Purchased Assets or a portion
thereof, if such Servicer is not the Seller or an Affiliate thereof.
“Title Policy” means an American Land Title Association (or an equivalent form thereof
as adopted in the applicable jurisdiction) lender’s title insurance policy.
“Transaction” has the meaning set forth in Section 1 hereof.
“Transaction Request” means a request from Seller to Buyer, in the form attached as
Exhibit A hereto, to enter into a Transaction.
“Trust Receipt” shall have the meaning set forth in the Custodial Agreement.
“Underlying Instrument” means the trust deed, indenture, pooling and servicing
agreement or other agreement pursuant to which a Purchased Asset has been issued or created
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and each other agreement that governs the terms of or secures the obligations represented by
such Asset or of which holders of such Asset are the beneficiaries.
“Underlying Mortgage Loan” means, with respect to any Junior Interest, CMBS Security,
Real Estate CDO Security or Mezzanine Loan, a mortgage loan made in respect of the related
Underlying Mortgaged Property.
“Underlying Mortgaged Property” means in the case of any:
(a) Commercial Mortgage Loan, the Mortgaged Property securing such Commercial Mortgage Loan;
(b) Junior Interest, the Mortgaged Property securing the Mortgage Loan in which such Junior
Interest represents a junior participation (if the Junior Interest is of the type described in
clause (a) of the definition thereof) or the Mortgaged Property securing such Junior Interest (if
the Junior Interest is of the type described in clause (b) of the definition thereof);
(c) Mezzanine Loan, the Mortgaged Property that is owned by the Person the Capital Stock of
which is pledged as collateral security for such Mezzanine Loan;
(d) CMBS Security, the Mortgaged Property securing the Underlying Mortgage Loans related to
such security; and
(e) Real Estate CDO Security, the Mortgaged Property securing the Underlying Mortgage Loans
related to such security.
“Underlying Transaction” means the transaction entered into by the Issuer pursuant to
which the Bank Loan was issued.
“Unfunded Capital Commitments” means, as of any date of determination, all committed
and undrawn capital of the of the investors of the Guarantor.
“
Uniform Commercial Code” means the Uniform Commercial Code as in effect on the date
hereof in the State of
New York or the Uniform Commercial Code as in effect in the applicable
jurisdiction.
“Whole Loan” means a whole Commercial Mortgage Loan or a senior interest (including,
without limitation, an A Note) therein.
3. Program; Initiation of Transactions
a. From time to time, in the sole discretion of Buyer, Buyer may purchase from
Seller certain Eligible Assets that have been purchased by Seller. The aggregate
Purchase Price of Purchased Assets subject to outstanding Transactions plus the
aggregate amount of Future Funding Commitments with respect to all Purchased Assets
shall not exceed the Maximum Aggregate Purchase Price.
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b. With respect to each Transaction Seller shall give Buyer and Custodian at least
five (5) Business Days’ prior notice of any proposed Purchase Date (the date on
which such notice is given, the “Notice Date”). On the Notice Date, Seller
shall (i) request that Buyer enter into a Transaction by furnishing to Buyer a
Transaction Request accompanied by a Complete Submission and (ii) deliver to Buyer
and Custodian a proposed Purchased Asset Schedule. In the event the Purchased Asset
Schedule provided by Seller contains erroneous computer data, Buyer shall provide
written or electronic notice to Seller describing such error and Seller shall
correct the computer data. The Seller shall hold Buyer harmless for such
correction.
c. Following receipt of a Transaction Request and a Complete Submission, Buyer
shall, as hereinafter provided, inform Seller of its election to purchase any
Eligible Assets proposed to be sold to Buyer by Seller hereunder. Buyer shall have
the right to review all Eligible Assets proposed to be sold to Buyer and conduct its
own due diligence investigation of such Eligible Assets as Buyer determines. Buyer
shall conduct its diligence review within the following time frame beginning on the
Business Day following receipt of the Complete Submission: in the case of a proposed
Transaction of (i) up to five (5) Eligible Assets, ten (10) Business Days; (ii) more
than five (5) but no more than twenty-five (25) Eligible Assets, twenty (20)
Business Days, and (iii) more than twenty-five (25) Eligible Assets, a time frame to
be mutually agreed upon by Buyer and Seller. If, with respect to any Eligible
Asset, Buyer does not respond to Seller within the time frames specified in the
preceding sentence, Buyer shall be deemed to have elected not to purchase such
Eligible Asset. Upon completion of its review, Buyer shall in its sole discretion
determine whether to purchase such Eligible Assets and consistent with this
Agreement, specify the terms for such proposed Transaction, including the Purchase
Price, Purchase Price Percentage, the Asset Value, the Pricing Rate, and the
Repurchase Date for such Transaction. The terms thereof shall be set forth in the
Purchase Confirmation to be delivered to Seller on or prior to the Purchase Date,
subject to the Seller’s rights to confirm or reject such Purchase Confirmation set
forth in Section 10(b).
d. Upon the satisfaction of the applicable conditions precedent set forth in Section
10 hereof, all of Seller’s interest in the Repurchase Assets shall pass to Buyer on
the Purchase Date, against the transfer of the Purchase Price to Seller. Upon
transfer of the Purchased Assets to Buyer as set forth in this Section and until
termination of any related Transactions as set forth in Sections 4 or 16 of this
Agreement, ownership of each Purchased Asset, including each document in the related
Asset File and Records, is vested in Buyer; provided that, prior to the occurrence
and continuance of an Event of Default record title in the name of Seller to each
Purchased Asset (other than with respect to Securities) shall be retained by Seller
in trust, for the benefit of Buyer, for the sole purpose of facilitating the
servicing and the supervision of the servicing of the Purchased Assets.
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e. This Agreement is not a commitment by Buyer to enter into Transactions with
Seller but rather sets forth the procedures to be used in connection with periodic
requests for Buyer to enter into Transactions with Seller. Seller hereby
acknowledges that Buyer is under no obligation to agree to enter into, or to enter
into, any Transaction pursuant to this Agreement.
f. This Agreement shall terminate on the Termination Date. If no Event of Default
has occurred and is continuing, then in the event that Seller has executed an
engagement letter for Transaction 2 (as defined in the MOU) and such engagement
letter is consistent with the terms of the MOU, the Termination Date shall be
extended to (A) the date that is the earlier of (i) the CDO-2 Closing Date, (ii) 180
days after the Initial Commitment Expiration Date (the “Extended Commitment
Expiration Date”) and (iii) 364 days from the date of this Agreement or (B) such
other date as is mutually agreed upon by the Buyer and the Seller.
g. With respect to any Future Advance Loan, any Future Advance Commitment shall
remain the obligation of the Seller, and Buyer shall have no obligation to purchase
any loans funded in respect of such commitments unless such loan together with the
related Funded Loan would be an Eligible Asset hereunder at the time of purchase.
4. Repurchase; Sale or Disposition by Buyer
a. Seller shall repurchase each Purchased Assets from Buyer on the Repurchase Date.
Such obligation to repurchase exists without regard to any prior or intervening
liquidation or foreclosure with respect to any Purchased Asset (but liquidation or
foreclosure proceeds received by Buyer shall be applied to reduce the Repurchase
Price for such Purchased Asset on each Price Differential Payment Date). Seller is
obligated to repurchase and take physical possession of the Purchased Assets from
Buyer or its designee (including the Custodian) at Seller’s expense on the
Repurchase Date.
b. Provided that no Default or Event of Default shall have occurred and is
continuing and Buyer has received the related Repurchase Price, upon repurchase of
the Purchased Assets, Buyer agrees to release its ownership interest hereunder in
the Purchased Assets (including, the Repurchase Assets related thereto) at the
request of Seller.
c. With respect to Principal Prepayments in full or in part by the related Mortgagor
or obligor of a Purchased Asset, Seller agrees to (i) provide Buyer with a copy of a
report from the related Servicer indicating that such Purchased Asset has been paid
in full or part, (ii) pay to Buyer the portion of the Repurchase Price payable
pursuant to Section 7(c) within two Business Days of receipt of such prepayment from
the Servicer and (iii) provide Buyer a notice specifying each Purchased Asset that
has been prepaid. With respect to Purchased Assets being serviced by Third Party
Servicers, the Seller shall forward or cause to be forwarded all payments to the
Buyer to the extent received from the underlying
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obligor and the applicable Third Party Servicer up to the Repurchase Price for the
Purchased Asset. Buyer agrees to release its ownership interest in Purchased Assets
which have been prepaid in full after receipt of evidence of compliance with clauses
(i) through (iii) of the immediately preceding sentence.
d. The Seller may voluntarily repurchase Purchased Assets at their respective
Repurchase Prices without penalty or premium on any Business Day, upon the written
consent of the Buyer. If the Seller intends to make such a repurchase, the Seller
shall give two Business Days’ prior written notice thereof to the Buyer, designating
the Purchased Assets to be repurchased, which notice is irrevocable if not revoked
prior to the date one Business Day prior to the proposed Repurchase Date. Any
repurchase under this paragraph (other than with respect to Ineligible Assets and
Impaired Assets) shall include the applicable Exit Fee, provided, however that in
the event such Purchased Asset is included as an asset of the CDO Transaction, the
Buyer shall refund such Exit Fee to the Seller on the closing date of such CDO
Transaction.
e. If the Seller repurchases, in whole or in part, Purchased Assets on any day that
is not the Repurchase Date or a Price Differential Payment Date for such Purchased
Assets, the Seller shall indemnify the Buyer and hold the Buyer harmless from any
actual out-of-pocket losses, costs and/or expenses that the Buyer sustains or incurs
arising from the reemployment of funds obtained by the Buyer hereunder or from fees
payable to terminate the deposits from which such funds were obtained, in each case
for the remainder of the applicable LIBOR Period (“Breakage Costs”). The
Buyer shall deliver to the Seller a statement setting forth the amount and basis of
determination of any Breakage Costs in such detail as determined in good faith, and
in accordance with customary procedures used in the relevant markets by market
participants, by the Buyer to be adequate, it being agreed that such statement and
the method of its calculation shall be adequate and shall be conclusive and binding
upon the Seller, absent manifest error.
f. Prior to the Termination Date, the Buyer may sell or dispose (or direct the sale
or disposition) of any Ineligible Asset or Impaired Asset following notice to the
Seller, and the Seller shall terminate, at its own expense, any related Interest
Rate Protection Agreement within one Business Day of such sale or disposition;
provided, that, subject to the right of the Seller to otherwise commence foreclosure
or other remedies on any collateral securing any Purchased Asset pursuant to this
Section 4(f), nothing in this Section 4(f) shall prohibit the Buyer from commencing
foreclosure or other remedies on any collateral securing any Purchased Asset. Prior
to the Termination Date, provided that no Event of Default shall have occurred and
is continuing, the Seller shall at all times have the right, upon notice to the
Buyer, to direct the Servicer or the Special Servicer to commence foreclosure or
other remedies on any collateral securing any Purchased Asset. Upon notice of the
intent by the Buyer to sell an Ineligible Asset or Impaired Asset, the Seller (or an
Affiliate thereof) shall have the right to purchase such Ineligible Asset or
Impaired Asset within two Business Days following
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receipt of such notice of intent to sell in exchange for payment in cash of the
Repurchase Price for such Ineligible Asset or Impaired Asset. The proceeds from the
sale of any Ineligible Asset or Impaired Asset shall be deposited into the
applicable Account and shall be applied to the repayment of such Ineligible Asset or
Impaired Asset.
g. Upon the occurrence of a Termination Date other than CDO-1 Closing Date, CDO-2
Closing Date or the occurrence of an Event of Default, the Buyer shall give notice
thereof to the Seller, and upon such notice the Seller may elect, within five
Business Days of receipt of such notice, through written notice to the Buyer, to
purchase from the Buyer all of the Purchased Assets (and, at its option, and to the
extent permitted by any Interest Rate Protection Agreement, obtain a novation of any
Interest Rate Protection Agreement) for settlement on the Termination Date in
exchange for payment of the aggregate Repurchase Price therefor in cash on such
date. If the Seller does not so elect to purchase the Purchased Assets, then the
Buyer may exercise any of the remedies available to it pursuant to Section 16.
h. Five Business Days prior to the Repurchase Date, Buyer shall give Seller written
or electronic notice of the amount of the Repurchase Price due thereon.
5. Price Differential
a. On the beginning of each LIBOR Period that a Transaction is outstanding, the
Pricing Rate shall be reset and, unless otherwise agreed, the accrued and unpaid
Price Differential shall be settled in cash on each related Price Differential
Payment Date. On the Price Differential Payment Date, Seller shall pay to Buyer (to
the extent not paid on such date through the distributions required pursuant to
Sections 7(d) or 7(e) hereof) the accrued but unpaid Price Differential and the
accrued but unpaid Administration Fee for such Price Differential Payment Date
(along with any other amounts to be paid pursuant to Section 7 and Section 34), by
wire transfer in immediately available funds.
b. If Seller fails to pay all or part of the Price Differential by 5:00 p.m. (
New
York City time) on the related Price Differential Payment Date, with respect to any
Purchased Asset, Seller shall be obligated to pay to Buyer (in addition to, and
together with, the amount of such Price Differential) interest on the unpaid Price
Differential at the applicable Pricing Rate until the Price Differential is received
in full by Buyer. Accrued and unpaid interest on past due amounts shall be payable
on demand.
6. Margin Maintenance
a. Subject to the proviso at the end of this sentence, if at any time, any of the
following has occurred: (i) either (x) the Market Value of any Purchased Asset is
less than Buyer’s Margin Amount for such Purchased Asset or (y) if the Buyer
determines in its sole good faith discretion that the aggregate Outstanding
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Purchase Price (relative to the Purchased Assets) would not receive a rating of at
least BBB- (or the comparable designation) from any Rating Agency, as determined by
Buyer in its sole discretion generally in accordance with methodology used by any
Rating Agency (each, a “Margin Call Deficit”), (ii) a Credit Loss occurs
with respect to any Purchased Asset, or (iii) the Market Value of any Purchased
Asset is less than the Capital Call Amount of such Purchased Asset (each, a
“Capital Call Deficit”), then Buyer may by notice to Seller (each notice of
a Margin Call Deficit or Credit Loss is herein referred to as a “Margin
Call”; a notice of a Capital Call Deficit is herein referred to as a
“Capital Call”) require Seller to cure such Margin Call Deficit, Credit Loss
or Capital Call Deficit by transferring to Buyer, (A) cash or (B) additional
collateral acceptable to Buyer in its sole discretion, exercised in good faith (such
cash or additional collateral paid by Seller to Buyer is herein referred to as
“Additional Collateral”), so that the sum obtained by adding the Asset Value
of such Purchased Asset, plus the Asset Value of such Additional Collateral shall
equal or exceed the Deficit Cure Amount for such Purchased Asset as of the same
date; provided, however, that if and so long as the Call Support
Condition exists, Buyer shall not be required to make a Capital Call hereunder on
account of a Call Deficit unless and until the Call Support Condition no longer
exists. Seller’s failure to cure any Margin Call Deficit, Credit Loss or Capital
Call Deficit as required by the preceding sentence prior to expiration of the time
period set forth in the first sentence of Section 6(b) below (in the case of a
Margin Call) or the second sentence of Section 6(b) below (in the case of a Capital
Call) shall constitute an Event of Default under the Transaction Documents and shall
entitle Buyer to exercise its remedies under Section 16 of this Agreement
(including, without limitation, the liquidation remedy provided for in Section 16(d)
of this Agreement).
b. If any Margin Call is given by Buyer under Section 6(a) of this Agreement, Seller
shall transfer Additional Collateral as provided in Section 6(a) by no later than
two Business Days after the giving of such Margin Call notice. If any Capital Call
is given by Buyer under Section 6(a) of this Agreement, Seller shall transfer
Additional Collateral as provided in Section 6(a) of this Agreement by no later than
ten Business Days after the giving of such Capital Call notice; provided, however,
that if a Capital Call is made with respect to any Purchased Asset and Seller
requests, in a written notice to Buyer given not later than five Business Days after
the giving of a Capital Call notice, that Buyer make a determination whether the
“Excess Cash Flow Sufficiency Condition” (as defined below) will be
satisfied, Seller’s obligation to transfer Additional Collateral to cure a Capital
Call Deficit with respect to a Purchased Asset shall be deferred (each, a
“Capital Call Deferral”) if and for so long as (A) no Margin Call Deficit
exists with respect to such Purchased Asset, and no Capital Call Deficit or Margin
Call Deficit exists with respect to any other Purchased Asset, and no Event of
Default exists, and (B) Buyer determines, in Buyer’s sole discretion, exercised in
good faith, that the aggregate excess Income (i.e., the excess Income after
application thereof to the Price Differential and the other obligations of Seller in
accordance with Section 5 of this Agreement, exclusive, however, of Principal
Payments) to be generated from all other Purchased Assets (i.e., all Purchased
Assets other than the
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Purchased Asset to which such Capital Call is made) and distributed on the Price
Differential Payment Date immediately following such Capital Call will, when added
to the Asset Value of such Purchased Asset, equal or exceed the Deficit Cure Amount
for such Purchased Asset (the “
Excess Cash Flow Sufficiency Condition”). If
a Capital Call Deferral occurs, (X) the related Capital Call Deficit shall not be
deemed to have been waived and shall nevertheless continue to exist unless and until
the Capital Call Deficit is satisfied with Additional Collateral or pursuant to
applications of funds to satisfy the same pursuant to Section 6(a) and (Y) and any
CF Sweep Condition related to such Purchased Asset shall continue to exist. Without
limiting Buyer’s other rights and remedies or operating to extend any other
applicable time periods hereunder (including any time periods for notice and cure or
applicable to any Margin Call or Event of Default), (A) any Capital Call Deferral
shall automatically end if Buyer makes a Margin Call Deficit with respect to such
Purchased Asset or if a Capital Call Deficit or Margin Call Deficit exists with
respect to any other Purchased Asset or if an Event of Default occurs, and (B) such
Capital Call Deferral shall end at Buyer’s option, and Buyer may give a further
Capital Call notice with respect to the Capital Call Deficit subject to such Capital
Call Deferral (indicating that the Capital Call Deferral is ended), and the
provisions of this sentence and Section 6(a) of this Agreement shall apply to such
further Capital Call. Buyer may also make a Capital Call (indicating that the
Capital Call Deferral is ended) if Buyer determines, in good faith, that the Excess
Cash Flow Sufficiency Condition will not be satisfied. Notice required pursuant to
Section 6(a) of this Agreement may be given by any means of telecopier or
telegraphic transmission and shall be delivered in accordance with the terms of this
Agreement. The failure of Buyer on any one or more occasions to exercise its rights
under Section 6(a) of this Agreement shall not change or alter the terms and
conditions to which this Agreement is subject or limit the right of Buyer or Seller
to do so at a later date. Buyer and Seller agree that any failure or delay by Buyer
to exercise its rights under Section 6(a) of this Agreement shall not limit such
party’s rights under this Agreement or otherwise existing by law or in any way
create additional rights for such party. Notice delivered pursuant to Section 6(a)
shall be given by any written means. Any notice given before 10:00 a.m. (
New York
City time) on a Business Day shall be met, and the related Margin Call satisfied, no
later than 10:00 a.m. (
New York City time) on the second Business Days following the
date such notice was given; notice given after 10:00 a.m. (New York City time) on a
Business Day shall be met, and the related Margin Call satisfied, no later than 5:00
p.m. (New York City time) on the second Business Days following the date such notice
was given. The failure of Buyer, on any one or more occasions, to exercise its
rights hereunder, shall not change or alter the terms and conditions to which this
Agreement is subject or limit the right of Buyer to do so at a later date. Seller
and Buyer each agree that a failure or delay by Buyer to exercise its rights
hereunder shall not limit or waive Buyer’s rights under this Agreement or otherwise
existing by law or in any way create additional rights for Seller.
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c. Any Additional Collateral transferred to Buyer pursuant to Section 6(a) of this
Agreement with respect to any Purchased Assets shall be attributed to the
Transaction relating to such Purchased Assets.
d. On any day on which the aggregate Market Value of the Purchased Assets subject to
Transactions exceeds the then outstanding aggregate Target Price of all the
Purchased Assets (a “Margin Excess”), so long as no Default or Event of
Default has occurred and is continuing or will result therefrom, the Buyer shall,
upon receipt of written request from Seller, release Additional Collateral (with
such release not being subject to an Exit Fee, if any) as requested by the Seller,
in either case, in amount equal to the lesser of (i) the amount requested by the
Seller and (ii) such Margin Excess to Seller. To the extent that the Buyer remits
cash or collateral received as Additional Collateral to the Seller, such cash shall
not be additional Purchase Price with respect to the Transactions. Any request
received by the Buyer on any Business Day shall be remitted by the Buyer no later
than five Business Days following such request.
7. Income and Principal Payments
a. The Account shall be established by the Servicer in accordance with the terms and
conditions of the Account Agreement concurrently with the execution and delivery of
this Agreement by Seller and Buyer. Buyer shall have sole dominion and control over
the Account. Servicing fee, acquisition expenses and other related expenses with
respect to the Purchased Assets, as well as any payments made to a counterparty in
respect of any Interest Rate Protection Agreements, shall be paid directly from the
Account. All Income (other than amounts deposited in escrow accounts pursuant to
the Servicing Agreement) in respect of the Purchased Assets and any payments in
respect of associated Interest Rate Protection Agreements, as well as any interest
received from the reinvestment of such Income, shall be deposited into the Account
within two (2) Business Days of receipt by the Servicer and shall be remitted by
Servicer from the Account in accordance with the applicable provisions of this
Agreement. All such Income shall be held in trust for Buyer, shall constitute the
property of Buyer and once deposited into the Account shall not be commingled with
other property of Seller, any Affiliate of Seller, or Servicer. Such amounts may be
invested in Permitted Investments that mature on the succeeding Price Differential
Payment Date.
b. So long as no Event of Default shall have occurred and be continuing, and no CF
Sweep Condition, Margin Call Deficit, Capital Call Deficit or Credit Loss exists,
all Income (other than Principal Payments) received by the Servicer in respect of
the Purchased Assets and the associated Interest Rate Protection Agreements during
each Collection Period shall be applied by the Servicer on the related Price
Differential Payment Date as follows:
(i) first, to remit to Buyer an amount equal to the Price Differential
that has accrued and is outstanding as of such Price Differential Payment Date;
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(ii) second, to remit to Buyer an amount equal to any accrued premium
or accrued interest included in the Purchase Price for the Purchased Assets; and
(iii) third, to remit to Seller the remainder, if any.
c. So long as no Event of Default shall have occurred and be continuing, and no CF
Sweep Condition, Margin Call Deficit, Capital Call Deficit or Credit Loss exists,
any Principal Payment received by the Servicer in respect of any Purchased Asset
during each Collection Period shall be applied by the Servicer on the related Price
Differential Payment Date in the following order of priority:
(i) first, to make a payment to Buyer on account of the Repurchase Price of the
Purchased Asset in respect of which such Principal Payment has been received, until
the Repurchase Price for such Purchased Asset has been reduced to zero;
(ii) second, to make a payment on account of the Repurchase Price of any other
Purchased Assets as to which the Repurchase Price exceeds the Target Price (for this
purpose, making such payment in the order of those Purchased Assets with the largest
to smallest excess of Repurchase Price over Target Price), until the Repurchase
Price for each of the Purchased Assets has been reduced to the Target Price for such
Purchased Assets, respectively as of the date of such payment (as determined by
Buyer after giving effect to such payment); and
(iii) third, the remainder of such Principal Payment shall be remitted to
Seller.
d. If a CF Sweep Condition, Margin Call Deficit, Capital Call Deficit or Credit Loss
exists with respect to one or more Purchased Assets, then until the Repurchase Price
for each of such Purchased Assets has been reduced to the Target Price for such
Purchased Assets, and so long as no Event of Default shall have occurred and be
continuing, all Income and Principal Payments received by the Servicer in respect of
all of the Purchased Assets and the associated Interest Rate Protection Agreements
shall be applied by the Servicer on the Business Day next following the Business Day
on which such funds are deposited in the Account as follows:
(i) first, to remit to Buyer an amount equal to the Price Differential that has
accrued and is outstanding in respect of all of the Purchased Assets as of such
Business Day;
(ii) second, if a Credit Loss, Capital Call Deficit or Margin Call Deficit
exists with respect to any Purchased Asset, to make a payment on account of the
Repurchase Price of such Purchased Asset until the Repurchase Price for such
Purchased Asset has been reduced to zero; and
(iii) third, to make payments on account of the Repurchase Price of each of the
other Purchased Assets as to which a CF Sweep Condition shall have
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occurred (for this purpose, making such payment in the order of those Purchased
Assets with the largest to smallest excess of Repurchase Price over Target Price),
until the aggregate Repurchase Price for all of such Purchased Assets has been
reduced to zero.
(iv) fourth, to make a payment on account of the Repurchase Price of each
Purchased Assets as to which the Repurchase Price exceeds the Target Price (for this
purpose, making such payment in the order of those Purchased Assets with the largest
to smallest excess of Repurchase Price over Target Price), until the Repurchase
Price for each of the Purchased Assets has been reduced to the Target Price for such
Purchased Assets, respectively as of the date of such payment (as determined by
Buyer after giving effect to such payment); and
(v) fifth, the remainder of such Principal Payment shall be remitted to Seller.
e. If an Event of Default shall have occurred and be continuing, all Income
(including all Principal Payments) received by the Servicer in respect of the
Purchased Assets and the associated Interest Rate Protection Agreements shall be
applied by the Servicer on the Business Day next following the Business Day on which
such funds are deposited in the Account as follows (provided that Buyer may change
the order and manner of any such application from time to time in Buyer’s sole and
absolute discretion):
(i) first, to remit to Buyer an amount equal to any and all reasonable
out-of-pocket costs and expenses, including, but not limited to, reasonable
out-of-pocket attorneys’ fees and expenses and enforcement costs, due and owing by
Seller hereunder as of such Business Day;
(ii) second, to remit to Buyer an amount equal to the Price Differential that
has accrued and is outstanding in respect of all of the Purchased Assets as of such
Business Day;
(iii) third, to make a payment to Buyer pro rata on account of the Repurchase
Price of the Purchased Assets until the Repurchase Price for all of the Purchased
Assets has been reduced to zero; and
(iv) fourth, to remit to Seller the remainder.
8. Security Interest
a. Although the parties intend that all Transactions hereunder be sales and purchases and not
loans (other than for accounting and tax purposes), in the event any such Transactions are deemed
to be loans, Seller hereby pledges to Buyer as security for the performance by Seller of its
Obligations and hereby grants, assigns and pledges to Buyer a fully perfected first priority
security interest in the Purchased Assets, the Records, and all related servicing rights, the
Program Agreements (to the extent such Program Agreements and Seller’s right thereunder relate to
the Purchased Assets), any Property relating to the Purchased Assets, all insurance
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policies and insurance proceeds relating to any Purchased Asset or the related Mortgaged
Property, including, but not limited to, any payments or proceeds under any related primary
insurance, hazard insurance and, Income, each Account, Interest Rate Protection Agreements, Loan
Security Agreements, accounts (including any interest of Seller in escrow accounts) and any other
contract rights, instruments, accounts, payments, rights to payment (including payments of interest
or finance charges) general intangibles and other assets relating to the Purchased Assets
(including, without limitation, any other accounts) or any interest in the Purchased Assets, and
any proceeds (including the related securitization proceeds) and distributions with respect to any
of the foregoing and any other property, rights, title or interests as are specified on a
Transaction Request and/or Trust Receipt, in all instances, whether now owned or hereafter
acquired, now existing or hereafter created (collectively, the “Repurchase Assets”).
Seller agrees to execute, deliver and/or file such documents and perform such acts as may be
reasonably necessary to fully perfect Buyer’s security interest created hereby. Furthermore, the
Seller hereby authorizes the Buyer to file financing statements relating to the Repurchase Assets,
as the Buyer, at its option, may deem appropriate. The Seller shall pay the filing costs for any
financing statement or statements prepared pursuant to this Section.
b. The Buyer, as “entitlement holder” (as defined in Section 8-102(a) of the Uniform
Commercial Code) with respect to the CMBS Securities and Real Estate CDO Securities, shall be
entitled to receive all cash dividends and distributions paid in respect thereof and such amounts
shall be applied in accordance with Section 7 hereof. Unless an Event of Default shall have
occurred and be continuing, Seller shall be entitled to exercise all voting and corporate rights
with respect to the CMBS Securities and Real Estate CDO Securities, and Buyer shall exercise such
rights on Seller’s behalf during the time in which Buyer is the registered holder of such Purchased
Securities, provided, however, that no vote shall be cast or corporate right exercised or other
action taken which, in Buyer’s good faith judgment, would materially impair the CMBS Securities or
Real Estate CDO Securities or which would be inconsistent with or result in any violation of any
provision of this Agreement.
c. On or prior to the related Purchase Date, the Seller shall cause each CMBS Security and
each Real Estate CDO Security to be registered in the name of MLCI, as agent for the Buyer, and the
Buyer or its other designee shall have the rights of conversion, exchange, subscription and any
other rights, privileges and options pertaining to such CMBS Securities and Real Estate CDO
Securities with any committee, depositary transfer, agent, register or other designated agency upon
such terms and conditions as the Buyer may determine. Prior to the occurrence and continuance of
any Event of Default, the Buyer and its designee shall exercise such rights only on the Seller’s
behalf.
d. The foregoing security interest is intended to create a security agreement related to this
Agreement as contemplated under Section 101(47)(v) of the Bankruptcy Code.
9. Payment and Transfer
Unless otherwise mutually agreed in writing, all transfers of funds to be made by Seller
hereunder shall be made in Dollars, in immediately available funds, without deduction, set-off or
counterclaim, to Buyer at the following account maintained by the Servicer: Account No. 1019805188,
ABA No. [ ], Name of Bank: PNC Bank, National Association,
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Acct Name: “NY CREDIT FUNDING II, LLC, FOR THE BENEFIT OF XXXXXXX XXXXX MORTGAGE LENDING,
INC., TOGETHER WITH ITS SUCCESSORS AND ASSIGNS”, or such other account as Buyer shall specify to
Seller in writing. Seller acknowledges that it has no rights of withdrawal from the foregoing
account. All Purchased Assets transferred by one party hereto to the other party shall be in the
case of a purchase by Buyer in suitable form for transfer or shall be accompanied by duly executed
instruments of transfer or assignment in blank and such other documentation as Buyer may reasonably
request. All Purchased Assets shall be evidenced by a Trust Receipt. Any Repurchase Price
received by Buyer after 3:00 p.m. (New York City time) shall be deemed received on the next
succeeding Business Day.
10. Conditions Precedent
a. Initial Transaction. As conditions precedent to the initial Transaction,
Buyer shall have received on or before the day of such initial Transaction the
following, in form and substance satisfactory to Buyer and duly executed by Seller,
Guarantor and each other party thereto:
(1) Program Agreements. The Program Agreements (including without
limitation the Guaranty and a Custodial Agreement in a form acceptable to Buyer)
duly executed and delivered by the parties thereto and being in full force and
effect, free of any modification, breach or waiver.
(2) Security Interest. Evidence that all other actions necessary or,
in the opinion of Buyer, desirable to perfect and protect Buyer’s interest in the
Purchased Assets and other Repurchase Assets have been taken, including, without
limitation, duly authorized and filed Uniform Commercial Code financing statements
on Form UCC-1.
(3) Organizational Documents. A certificate of the corporate secretary
of each of Seller and Guarantor reasonably acceptable to Buyer, attaching certified
copies of Seller’s and Guarantor’s organizational documents and resolutions
approving the Program Agreements and transactions thereunder (either specifically or
by general resolution) and all documents evidencing other necessary corporate action
or governmental approvals as may be required in connection with the Program
Agreements.
(4) Good Standing Certificate. A certified copy of a good standing
certificate from the jurisdiction of organization of Seller and Guarantor, dated as
of no earlier than the date 30 Business Days prior to the Purchase Date with respect
to the initial Transaction hereunder.
(5) Incumbency Certificate. An incumbency certificate of the corporate
secretary of each of Seller and Guarantor, certifying the names, true signatures and
titles of the representatives duly authorized to request transactions hereunder and
to execute the Program Agreements.
(6) Opinion of Counsel. An opinion of Seller’s and Guarantor’s counsel
relating to certain corporate and enforceability matters and reasonably
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satisfactory to the Buyer and its counsel, including but not limited to, an
enforceability opinion, and addressed to the Buyer.
(7) Fees. Payment of any fees due to Buyer hereunder.
b. All Transactions. The obligation of Buyer to enter into each Transaction
pursuant to this Agreement is subject to the following conditions precedent:
(1) Due Diligence Review. Without limiting the generality of Sections
3(c) and 36 hereof, Buyer shall have completed, to its satisfaction, its due
diligence review of the related Eligible Assets, Seller, Guarantor and any Servicer.
(2) Securities. With respect to Securities proposed to be purchased:
(a) that shall be delivered or held in definitive, certificated
form, the Seller shall deliver to the Buyer or its designee the
original of the relevant certificate registered in the name of the
Buyer or its designee;
(b) that shall be delivered through a Relevant System in
book-entry form and credited to or otherwise held in an account, such
Security shall be registered in the name of the Buyer or its designee
and the Seller shall take such actions necessary to provide
instruction to the relevant financial institution or other entity,
which instruction shall be sufficient if complied with to effect a
legally valid delivery of the relevant interest granted therein to
Buyer hereunder. In connection with any account to which the
Securities are credited or otherwise held, the Seller shall execute
and deliver such other and further documents or instruments
necessary, in the reasonable opinion of the Buyer, to effect a
legally valid delivery of the relevant interest granted therein to
Buyer hereunder. Any account to which the Securities are credited
shall be designed as the Buyer may direct.
(3) Transaction Documents. Buyer or its designee shall have received
on or before the day of such Transaction (unless otherwise specified in this
Agreement) the following, in form and substance satisfactory to Buyer and (if
applicable) duly executed:
(a) A Transaction Request delivered pursuant to Section 3(c)
hereof and a Purchase Confirmation;
(b) The Trust Receipt or Table Funded Trust Receipt;
(c) The Closing Data Tape;
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(d) Such certificates, opinions of counsel (if any already in
existence and part of the Asset File) or other documents as Buyer may
reasonably request.
(4) Asset File.
(a) On or before each Purchase Date with respect to each
Purchased Asset (other than Purchased Assets which are Securities),
Seller or a third party Bailee shall deliver or cause to be delivered
to Buyer or its designee (initially, the Custodian) the Custodial
Delivery Letter. In connection with each sale, transfer, conveyance
and assignment of a Purchased Asset (other than Purchased Assets
which are Securities), on or prior to each Purchase Date with respect
to such Purchased Asset, Seller or a third party Bailee shall deliver
or cause to be delivered and released to the Custodian the documents
set forth in the Asset File, pertaining to each of the Purchased
Assets (other than Purchased Assets which are Securities) identified
in the Custodial Delivery Letter delivered therewith.
(b) With respect to each Table Funded Purchased Asset, the
Seller shall cause the Bailee to deliver to the Custodian with a copy
to the Buyer no later than 11:00 a.m. on the Purchase Date by
facsimile or by other electronic means acceptable to the parties the
related Basic Mortgage Asset Documents, the insured closing letter
(if any), the escrow instructions (if any), a fully executed Bailee
Agreement, a Bailee’s Trust Receipt issued by the Bailee thereunder
and such other evidence satisfactory to the Buyer in its discretion
that all documents necessary to effect a transfer of the Table Funded
Purchased Assets to the Buyer have been delivered to Bailee. With
respect to each Table Funded Purchased Asset, the Custodian shall
deliver to the Buyer a Table Funded Trust Receipt no later than 1:00
p.m. on the Purchase Date, which documents shall be acceptable to the
Buyer in its sole discretion. In the case of a Table Funded
Purchased Asset, Seller shall deliver or cause to be delivered and
released to the Custodian the documents set forth in the Asset File
pertaining to the Table Funded Purchased Assets identified in the
Custodial Delivery Letter delivered therewith within three (3)
Business Days following the applicable Purchase Date, and on the
second (2nd) Business Day following the Custodian’s
receipt of the Asset File, the Custodian shall deliver to the Buyer a
Trust Receipt certifying its receipt of the documents required to be
delivered pursuant to the Custodial Agreement, together with a
Purchased Asset Schedule and inventory list relating to the Basic
Mortgage Asset Documents, with any exceptions identified on the
inventory list by
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the Custodian as of the date and time of delivery of such
Purchased Asset Schedule.
(5) No Default. No Default or Event of Default shall have occurred and
be continuing;
(6) Requirements of Law. Buyer shall not have determined that the
introduction of or a change in any Requirement of Law or in the interpretation or
administration of any Requirement of Law applicable to Buyer has made it unlawful,
and no Governmental Authority shall have asserted that it is unlawful, for Buyer to
enter into Transactions with a Pricing Rate based on LIBOR; provided that in such
event the Buyer and Seller may agree to an alternative basis for the Pricing Rate.
(7) Representations and Warranties. Both immediately prior to the
related Transaction and also after giving effect thereto on the Purchase Date and to
the intended use thereof, the representations and warranties made by Seller in each
Program Agreement (other than the representations and warranties set forth on
Schedule 1, which shall be considered solely for the purpose of determining
whether a Purchased Asset is an Eligible Asset and the obligation to repurchase such
Mortgage Loan) shall be true, correct and complete on and as of such Purchase Date
in all material respects with the same force and effect as if made on and as of such
date (or, if any such representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date). With respect to each
Table-Funded Purchased Asset, Seller shall also represent and warrant that, as of
the Purchase Date, there exists no material change in the items set forth on
Annex 3 to Exhibit A hereto in the final Asset File relating to such
Purchased Asset and the most recent Summary Diligence Materials delivered to Buyer.
(8) Material Adverse Change. None of the following shall have occurred
and/or be continuing:
(a) an event or events shall have occurred in the good faith determination of
Buyer resulting in the effective absence of a “repo market” or comparable “lending
market” for financing debt obligations secured by mortgage loans or securities or an
event or events shall have occurred resulting in Buyer not being able to finance
Purchased Assets through the “repo market” or “lending market” with traditional
counterparties at rates which would have been reasonable prior to the occurrence of
such event or events; or
(b) an event or events shall have occurred resulting in the effective absence
of a “securities market” for securities backed by mortgage loans or an event or
events shall have occurred resulting in Buyer not being able to sell securities
backed by mortgage loans at prices which would have been reasonable prior to such
event or events; or
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(c) there shall have occurred a material adverse change in the financial
condition of Buyer which affects (or can reasonably be expected to affect)
materially and adversely the ability of Buyer to fund its obligations under this
Agreement.
(9) Margin Deficit. The Margin Deficit is not greater than zero.
(10) Capital Call Deficit. The Capital Call Deficit is not greater
than zero.
(11) Interest Rate Protection Agreements. The Seller has entered into
appropriate Interest Rate Protection Agreements, has provided the Buyer with copies
of such Interest Rate Protection Agreements and has provided the Buyer with
satisfactory evidence of the Buyer’s security interest in such Interest Rate
Protection Agreements.
(12) UCC Financing Statements. The Seller shall have prepared and
provided to Buyer UCC-1 financing statements and UCC-3 assignments, as applicable,
in favor of Buyer, for each Purchased Asset, reasonably acceptable to Buyer and in
form and substance acceptable for filing.
c. Transaction Request. Each Transaction Request delivered by the Seller
hereunder shall constitute a certification by the Seller that all the conditions set
forth in Section 10(b) have been satisfied (both as of the date of such notice or
request and as of the date of such purchase). Each Purchase Confirmation, together
with this Agreement, shall be evidence of the terms of the Transaction(s) covered
thereby unless specific objection is made no less than two (2) Business Days after
the date thereof and Seller’s acceptance of the related proceeds shall constitute
Seller’s agreement to the terms of such Purchase Confirmation. An objection sent by
Seller with respect to any Purchase Confirmation (as to which Seller has not
accepted or has returned the related proceeds) must state specifically that the
writing is an objection, must specify the provision(s) of such Purchase Confirmation
being objected to by Seller, must set forth such provision(s) in the manner that
Seller believes such provisions should be stated, and must be received by Buyer no
more than two (2) Business Days after such Purchase Confirmation is received by
Seller.
11. Program; Costs; Taxes
(a) Seller shall reimburse Buyer for any of Buyer’s reasonable out-of-pocket costs (subject to
a cap of $10,000 per Purchased Asset, which may be increased with respect to certain Purchased
Assets upon the mutual agreement of the Seller and the Buyer), including due diligence review costs
and reasonable attorney’s fees, incurred by Buyer in determining the acceptability to Buyer of any
Eligible Assets. Seller shall also pay, or reimburse Buyer if Buyer shall pay, any termination
fee, which may be due any Servicer. Seller shall pay the reasonable fees and expenses of Buyer’s
counsel in connection with the Program Agreements. Reasonable
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legal fees for any subsequent amendments to this Agreement or related documents shall be borne
by Seller. Seller shall pay ongoing custodial and bank fees and expenses and any other ongoing
fees and expenses under any other Program Agreement.
(b) If Buyer determines that, due to the introduction of, any change in, or the compliance by
Buyer with (i) any Eurodollar reserve requirement or (ii) the interpretation of any law, regulation
or any guideline or request from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be an increase in the cost to Buyer in engaging in the
present or any future Transactions or shall subject the Buyer to any Tax or increased Tax of any
kind whatsoever with respect to this Agreement or any Transaction or change the basis or rate of
taxation of payments to the Buyer in respect thereof, then Seller agrees to pay to Buyer, from time
to time, upon demand by Buyer (with a copy to Custodian) the additional amounts as specified by
Buyer to compensate Buyer for such increased cost.
(c) With respect to any Transaction, Buyer may conclusively rely upon, and shall incur no
liability to Seller in acting upon, any request or other communication (other than a Transaction
Request or other material agreement) that Buyer reasonably believes to have been given or made by a
person authorized to enter into a Transaction on Seller’s behalf, whether or not such person is
listed on the certificate delivered pursuant to Section 10(a)(5) hereof. In each such case, Seller
hereby waives the right to dispute Buyer’s record of the terms of the Purchase Confirmation,
request or other communication.
(d) Notwithstanding the assignment of the Program Agreements with respect to each Purchased
Asset to Buyer, Seller agrees and covenants with Buyer to enforce diligently Seller’s rights and
remedies set forth in the Program Agreements.
(e) Taxes.
(i) Any and all payments by the Seller under or in respect of this Agreement or any
other Program Agreements to which the Seller is a party shall be made free and clear of, and
without deduction or withholding for or on account of, any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities (including
penalties, interest and additions to tax) with respect thereto, whether now or hereafter
imposed, levied, collected, withheld or assessed by any taxation authority or other
Governmental Authority (collectively, “Taxes”), unless required by law. If the
Seller shall be required under any applicable Requirement of Law to deduct or withhold any
Taxes from or in respect of any sum payable under or in respect of this Agreement or any of
the other Program Agreements to the Buyer, (i) Seller shall make all such deductions and
withholdings in respect of Taxes, (ii) Seller shall pay the full amount deducted or withheld
in respect of Taxes to the relevant taxation authority or other Governmental Authority in
accordance with any applicable Requirement of Law, and (iii) the sum payable by Seller shall
be increased as may be necessary so that after Seller has made all required deductions and
withholdings (including deductions and withholdings applicable to additional amounts payable
under this Section 11(e)) such Buyer receives an amount equal to the sum it would have
received had no such deductions or withholdings been made in respect of Non-Excluded Taxes.
For purposes of this Agreement the term “Non-Excluded Taxes” are Taxes other than, in the
case of a Buyer,
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Taxes that are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the jurisdiction under the laws of which such Buyer is organized or of its
applicable lending office, or any political subdivision thereof, unless such Taxes are
imposed as a result of such Buyer having executed, delivered or performed its obligations or
received payments under, or enforced, this Agreement or any of the other Program Agreements
(in which case such Taxes will be treated as Non-Excluded Taxes).
(ii) In addition, Seller hereby agrees to pay any present or future stamp, recording,
documentary, excise, property or value-added taxes, or similar taxes, charges or levies that
arise from any payment made under or in respect of this Agreement or any other Program
Agreement or from the execution, delivery or registration of, any performance under, or
otherwise with respect to, this Agreement or any other Program Agreement (collectively,
“Other Taxes”).
(iii) Seller hereby agrees to indemnify Buyer for, and to hold it harmless against, the
full amount of Non-Excluded Taxes and Other Taxes, and the full amount of Taxes of any kind
imposed by any jurisdiction on amounts payable under this Section 11(e) imposed on or paid
by such Buyer and any liability (including penalties, additions to tax, interest and
expenses, but not including any costs or expenses arising as a result of the Buyer providing
erroneous information to the Seller regarding its tax status) arising therefrom or with
respect thereto. The indemnity by Seller provided for in this Section 11(e)(iii) shall
apply and be made whether or not the Non-Excluded Taxes or Other Taxes for which
indemnification hereunder is sought have been correctly or legally asserted. Amounts
payable by Seller under the indemnity set forth in this Section 11(e)(iii) shall be paid
within ten (10) Business Days from the date on which Buyer makes written demand therefor.
(iv) Within thirty (30) days after the date of any payment of Taxes, Seller (or any
Person making such payment on behalf of Seller) shall furnish to Buyer for its own account a
certified copy of the original official receipt evidencing payment thereof (and, if the
Seller is indemnifying the Buyer for Taxes pursuant to Section 11(e)(iv) above, the Buyer
shall provide such receipt to the Seller). For purposes of subsection (e) of this Section
11(e), the terms “United States” and “United States person” shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
Without prejudice to the survival of any other agreement of the Seller hereunder, the
agreements and obligations of the Seller contained in this Section 11(e) shall survive the
termination of this Agreement. Nothing contained in this Section 11(e) shall require the Buyer to
make available any of its tax returns or any other information that it deems to be confidential or
proprietary.
Each party to this Agreement acknowledges that it is its intent for purposes of U.S. federal,
state and local income and franchise taxes, to treat the Transaction as indebtedness of the Seller
that is secured by the Purchased Mortgage Loans and the Purchased Mortgage Loans as owned by the
Seller for U.S. federal income tax purposes in the absence of a Default by the Seller. All parties
to this Agreement agree to such treatment and agree to take no action inconsistent with this
treatment, unless required by law.
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12. Servicing
a. Seller covenants to maintain or cause the servicing of the Purchased Assets to be
maintained in conformity with Accepted Servicing Practices; provided, that
if any Purchased Asset becomes a Specially Serviced Purchased Asset, Seller
acknowledges and agrees that Buyer, in its sole discretion and without any consent
or consultation from Seller, has the right to consent to the appointment of any
Special Servicer that is not (i) a special servicer set forth on Schedule 6 hereto
and (ii) on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special
Servicer.
b. If the Purchased Assets are serviced by Seller, Seller agrees that Buyer is the
owner of all servicing records, including but not limited to any and all servicing
agreements, files, documents, records, data bases, computer tapes, copies of
computer tapes, proof of insurance coverage, insurance policies, appraisals, other
closing documentation, payment history records, and any other records relating to or
evidencing the servicing of the Purchased Assets (the “Servicing Records”). Seller
covenants to safeguard such Servicing Records and to deliver them promptly to Buyer
or its designee (including Custodian) at Buyer’s request.
c. If the Purchased Assets are serviced by a Third Party Servicer, Seller (i) shall,
in accordance with Section (3)(b)(7), provide a copy of the servicing agreement to
Buyer, which shall be in form and substance reasonably acceptable to Buyer (the
“Servicing Agreement”), and shall provide a Servicer Notice to Buyer
substantially in the form of Exhibit F hereto, fully executed by Seller and the
applicable Servicer; and (ii) hereby irrevocably assigns to Buyer and Buyer’s
successors and assigns all right, title and interest of Seller in, to and under, and
the benefits of, any Servicing Agreement with respect to the Purchased Assets.
Seller agrees that no Person shall assume the servicing obligations with respect to
the Purchased Assets as successor to the applicable Servicer unless such successor
is approved in writing by Buyer prior to such assumption of servicing obligations.
Each such servicing contract shall terminate automatically upon the earliest of (i)
the date on which this Agreement terminates or (ii) the transfer of servicing
approved by Buyer.
d. If the servicer of the Purchased Assets is Seller, upon the occurrence of an
Event of Default, Buyer shall have the right to terminate Seller as servicer of the
Purchased Assets and transfer servicing to Buyer’s designated Servicer, at no cost
or expense to Buyer, at any time thereafter. If a Servicer of the Purchased Assets
is not Seller, Buyer shall have the right, as contemplated in the applicable
Servicer Notice, upon the occurrence of an Event of Default, to terminate any
applicable Servicing Agreement and transfer servicing to Buyer’s designated
Servicer, at no cost or expense to Buyer, it being agreed that Seller will pay any
and all fees required to terminate such Servicing Agreement and to effectuate the
transfer of servicing to Buyer’s designated Servicer, as well as any servicing fees
and expenses payable to such Servicer.
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e. After the Purchase Date, until the repurchase of any Purchased Asset, Seller
shall have the right to modify or alter the terms of such Purchased Asset in
accordance with Accepted Servicing Practices.
f. In the event Seller or its Affiliate is servicing the Purchased Assets, Seller
shall permit Buyer, upon two (2) Business Day’s notice, during normal business
hours, to inspect Seller’s or its Affiliate’s servicing facilities, as the case may
be, for the purpose of satisfying Buyer that Seller or its Affiliate, as the case
may be, has the ability to service the Purchased Assets as provided in this
Agreement.
13. Representations and Warranties
a. Each of Seller and Guarantor represents and warrants to Buyer as of the date
hereof and as of each Purchase Date for any Transaction that:
(1) Seller and Guarantor Existence. Seller has been duly formed and is
validly existing as an limited liability company in good standing under the laws of
the State of Delaware. Guarantor has been duly formed and is validly existing as a
limited partnership in good standing under the laws of the State of Delaware.
(2) Licenses. Each of Seller and Guarantor is duly licensed or is
otherwise qualified in each jurisdiction in which it transacts business for the
business which it conducts and is not in default of any applicable federal, state or
local laws, rules and regulations unless, in either instance, the failure to take
such action would not (either individually or in the aggregate) to cause a Material
Adverse Effect and is not to its knowledge in default of such state’s applicable
laws, rules and regulations unless, in either instance, the default of which would
not (either individually or in the aggregate) cause a Material Adverse Effect. Each
of Seller and Guarantor has the requisite power and authority and legal right to
originate and purchase Eligible Assets (as applicable) and to own, sell and xxxxx x
xxxx on all of its right, title and interest in and to the Eligible Assets, and to
execute and deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement, each Program Agreement and any
Transaction Request or Purchase Confirmation.
(3) Power. Each of Seller and Guarantor has all requisite limited
liability company or limited partnership power, as the case may be, and has all
governmental licenses, authorizations, consents and approvals necessary to own its
assets and carry on its business as now being or as proposed to be conducted, except
where the lack of such licenses, authorizations, consents and approvals would not be
reasonably likely to have a Material Adverse Effect.
(4) Due Authorization. Each of Seller and Guarantor has all necessary
limited liability company or limited partnership power, as the case may be,
authority and legal right to execute, deliver and perform its obligations under each
of the Program Agreements, as applicable. This Agreement, any Transaction
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Request, Purchase Confirmation and the Program Agreements have been (or, in the
case of Program Agreements and any Transaction Request, Purchase Confirmation not
yet executed, will be) duly authorized, executed and delivered by Seller and
Guarantor, as the case may be, all requisite or other limited liability company or
limited partnership action, as the case may be, having been taken, and each is
valid, binding and enforceable against Seller and Guarantor in accordance with its
terms except as such enforcement may be affected by bankruptcy, by other insolvency
laws, or by general principles of equity.
(5) Financial Statements. Guarantor has heretofore furnished to Buyer
a copy of its consolidated balance sheet and the consolidated balance sheets of its
consolidated Subsidiaries for the quarterly fiscal period of Guarantor ended
December 31, 2006 and the related consolidated statements of income and retained
earnings and of cash flows for Guarantor and its consolidated Subsidiaries for such
quarterly fiscal period. All such financial statements are complete and correct and
fairly present, in all material respects, the consolidated financial condition of
the Guarantor and its Subsidiaries and the consolidated results of their operations
as at such dates and for such fiscal period, all in accordance with GAAP applied on
a consistent basis. Since December 31, 2006, there has been no material adverse
change in the consolidated business, operations or financial condition of the
Guarantor and its consolidated Subsidiaries taken as a whole from that set forth in
said financial statements nor is Guarantor aware of any state of facts which (with
notice or the lapse of time) would or could result in any such material adverse
change. Guarantor has, on the date of the statements delivered pursuant to this
Section (the “Statement Date”) no material liabilities, direct or indirect,
fixed or contingent, matured or unmatured, known or unknown, or liabilities for
taxes, long-term leases or unusual forward or long-term commitments not disclosed
by, or reserved against in, said balance sheet and related statements, and at the
present time there are no material unrealized or anticipated losses from any loans,
advances or other commitments of Guarantor except as heretofore disclosed to Buyer
in writing.
(6) Event of Default. There exists no Event of Default under Section
15(b) hereof, which default gives rise to a right to accelerate indebtedness as
referenced in Section 15(b) hereof, under any mortgage, borrowing agreement or other
instrument or agreement pertaining to indebtedness for borrowed money or to the
repurchase of mortgage loans or securities.
(7) Solvency. Each of Seller and Guarantor is solvent and will not be
rendered insolvent by any Transaction and, after giving effect to such Transaction,
will not be left with an unreasonably small amount of capital with which to engage
in its business. Neither Seller nor Guarantor intends to incur, nor believes that
it has incurred, debts beyond its ability to pay such debts as they mature and is
not contemplating the commencement of insolvency, bankruptcy, liquidation or
consolidation proceedings or the appointment of a receiver, liquidator, conservator,
trustee or similar official in respect of such entity or any of its assets. The
amount of consideration being received by Seller upon the sale
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of the Purchased Assets to Buyer constitutes reasonably equivalent value and
fair consideration for such Purchased Assets. Seller is not transferring any
Purchased Assets with any intent to hinder, delay or defraud any of its creditors.
(8) No Conflicts. The execution, delivery and performance by each of
Seller and Guarantor of this Agreement, any Transaction hereunder and the Program
Agreements do not conflict with any term or provision of the organizational
documents of Seller or Guarantor or any law, rule, regulation, order, judgment,
writ, injunction or decree applicable to Seller or Guarantor of any court,
regulatory body, administrative agency or governmental body having jurisdiction over
Seller or Guarantor, which conflict would have a Material Adverse Effect and will
not result in any violation of any such mortgage, instrument, agreement or
obligation to which Seller or Guarantor is a party.
(9) True and Complete Disclosure. All information, reports, exhibits,
schedules, financial statements or certificates of Seller, Guarantor, or any
Affiliate thereof or any of their officers prepared by or on behalf of Seller and/or
Guarantor and furnished or to be furnished to Buyer in connection with the initial
or any ongoing due diligence of Seller, Guarantor, or any Affiliate or officer
thereof, negotiation, preparation, or delivery of the Program Agreements are true
and complete in all material respects and to the knowledge of Seller, Guarantor or
any Affiliate thereof do not omit to disclose any material facts necessary to make
the statements herein or therein, in light of the circumstances in which they are
made, not misleading. All financial statements have been prepared in accordance
with GAAP.
(10) Approvals. No consent, approval, authorization or order of,
registration or filing with, or notice to any governmental authority or court is
required under applicable law in connection with the execution, delivery and
performance by Seller or Guarantor of this Agreement, any Transaction Request,
Purchase Confirmation and the Program Agreements.
(11) Litigation. There is no action, proceeding or investigation
pending with respect to which Seller or Guarantor has received service of process
or, to the best of Seller’s or Guarantor’s knowledge threatened against it before
any court, administrative agency or other tribunal (A) asserting the invalidity of
this Agreement, any Transaction, Transaction Request, Purchase Confirmation or any
Program Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, any Transaction Request, Purchase
Confirmation or any Program Agreement, (C) makes a claim individually in an amount
greater than $2,500,000 or in an aggregate amount greater than $5,000,000, or (D)
which might materially and adversely affect the validity of the Mortgage Loans or
the performance by it of its obligations under, or the validity or enforceability
of, this Agreement, any Transaction Request, Purchase Confirmation or any Program
Agreement.
(12) Intentionally Omitted.
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(13) Ownership. Upon payment of the Purchase Price and the filing of
the financing statement and delivery of the Asset Files to the Custodian and the
Custodian’s receipt of the related Purchased Asset Schedule, Buyer shall become the
sole owner of the Purchased Assets and related Repurchase Assets, free and clear of
all liens and encumbrances except for Seller’s rights hereunder.
(14) Taxes. Seller and Guarantor have timely filed all tax returns
that are required to be filed by them and have timely paid all Taxes, except for any
such Taxes as are being appropriately contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate reserves have
been provided. The charges, accruals and reserves on the books of Seller and
Guarantor in respect of Taxes and other governmental charges, as applicable, are
adequate.
(15) Investment Company. Neither Seller nor Guarantor is required to
register as an “investment company,” or a company “controlled” by an “investment
company,” within the meaning of the Investment Company Act of 1940, as amended.
(16) Chief Executive Office; Jurisdiction of Organization. On the
Effective Date, Seller’s chief executive office, is, and has been, located at c/o NY
Credit Advisors, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. On the Effective
Date, Seller’s jurisdiction of organization is Delaware. On the Effective Date,
Guarantor’s chief executive office, is, and has been, located at c/o NY Credit
Advisors, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. On the Effective Date,
Guarantor’s jurisdiction of organization is Delaware. Seller shall provide Buyer
with five (5) days advance notice of any change in Seller’s principal office or
place of business or jurisdiction. Seller does not have any trade name. During the
preceding five years, Seller has not been known by or done business under any other
name, corporate or fictitious, and has not filed or had filed against it any
bankruptcy receivership or similar petitions nor has it made any assignments for the
benefit of creditors.
(17) Location of Books and Records. The location where Seller keeps
its books and records, including all computer tapes and records relating to the
Purchased Assets and the related Repurchase Assets is its chief executive office.
(18) ERISA. Each Plan to which Seller or its Subsidiaries make direct
contributions, if any, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable provisions
of ERISA, the Code and any other Federal or State law.
(19) Adverse Selection. Seller has not selected the Purchased Assets
in a manner so as to adversely affect Buyer’s interests.
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(20) Agreements. None of Seller or Guarantor is a party to any
agreement, instrument, or indenture or subject to any restriction which could have a
Material Adverse Effect, except as disclosed in the financial statements described
in Section 13(a)(5) hereof. None of Seller or Guarantor is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement, instrument, or indenture which default could
have a material adverse effect on the business, operations, properties, or financial
condition of Seller as a whole. No holder of any indebtedness of Seller or of any
of its Subsidiaries has given notice of any asserted default thereunder.
(21) Intentionally Omitted.
(22) No Reliance. Each of Seller and Guarantor has made its own
independent decisions to enter into the Program Agreements and each Transaction and
as to whether such Transaction is appropriate and proper for it based upon its own
judgment and upon advice from such advisors (including without limitation, legal
counsel and accountants) as it has deemed necessary. Neither Seller nor Guarantor
is relying upon any advice from Buyer as to any aspect of the Transactions,
including without limitation, the legal, accounting or tax treatment of such
Transactions.
(23) Plan Assets. Seller is not an employee benefit plan as defined in
Section 3 of Title I of ERISA, or a plan described in Section 4975(e)(1) of the
Code, and the Purchased Assets are not “plan assets” within the meaning of 29 CFR §
2510.3-101 in the Seller’s hands.
(24) No Prohibited Persons. Neither the Seller nor any of its
respective Affiliates, officers, directors, partners or members, is an entity or
person (or to the Seller’s knowledge, owned or controlled by an entity or person):
(i) that is listed in the annex to, or is otherwise subject to the provisions of
Executive Order 13224 issued on September 24, 2001 (“EO13224”); (ii) whose
name appears on the United States Treasury Department’s Office of Foreign Assets
Control (“OFAC”) most current list of “Specifically Designated National and
Blocked Persons” (which list may be published from time to time in various mediums
including, but not limited to, the OFAC website,
http:xxx.xxxxx.xxx/xxxx/x00xxx.xxx); (iii) to the Seller’s knowledge, who commits,
threatens to commit or supports “terrorism,” as that term is defined in EO13224; or
(iv) to the Seller’s knowledge, who is otherwise affiliated with any entity or
person listed above (any and all parties or persons described in clauses (i) through
(iv) above are herein referred to as a “Prohibited Person”).
(25) Asset File. Each Asset File delivered by Seller represents a true
and correct copy of the documents contained therein and each Purchased Asset
Schedule and Closing Data Tape, together with all other information contained
therein prepared by Seller or its Affiliates and delivered by Seller to Buyer
immediately prior to the Purchase Date, is true and correct.
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(26) Re-registration Documents. With respect to Purchased Assets which
are Bank Loans, the Seller has delivered to the Buyer as part of the Loan File all
documents (executed by the Seller to the extent necessary) necessary (other than the
completion of any necessary Buyer signatures and delivery to the related
administrative agent under the Bank Loan) in order to re-register the related
Purchased Assets in the name of the Buyer or its designee.
(27) Funding Obligations. There is no funding obligation of any kind
(whether fixed, contingent, conditional or otherwise) in respect of any Purchased
Assets (including any obligation to make advances or to purchase participations in
letters of credit under any Asset File documents or any obligation related to any
currency or interest rate swap, hedge or similar arrangement) that Seller or Buyer
is or shall be required to pay or otherwise perform that Seller has not paid or
otherwise performed in full, except for, with respect to any Future Advance Loan,
any additional future funding obligations identified on the Transaction Request and
approved in writing by Buyer in its sole discretion will be deemed approved upon
receipt of the Purchase Confirmation with respect to such Purchased Asset.
b. With respect to every Purchased Asset and each Mezzanine Loan, each of Seller and
Guarantor represents and warrants to Buyer as of the applicable Purchase Date for
any Transaction and each date thereafter that each representation and warranty set
forth on Schedule 1 is true and correct in all material respects.
c. The representations and warranties set forth in this Agreement shall survive
transfer of the Purchased Assets to Buyer and shall continue for so long as the
Purchased Assets and Mezzanine Loans are subject to this Agreement. Upon discovery
by the Seller, the Guarantor, a Servicer or the Buyer of any breach of any of the
representations or warranties set forth in this Agreement, the party discovering
such breach shall promptly give notice of such discovery to the others. Buyer has
the right to require Seller to repurchase within 1 Business Day after receipt of
notice from Buyer any Purchased Asset (i) for which a breach of one or more of the
representations and warranties referenced in Section 13(b) exists and which breach
has a material adverse effect on the value of such Mortgage Loan or the interests of
Buyer or (ii) which is reasonable determined by Buyer, in its reasonable discretion,
to be unacceptable for inclusion in a securitization.
14. Covenants
Each of Seller and Guarantor covenants with Buyer that, during the term of this facility:
a. Litigation. Seller and Guarantor, as applicable, will promptly, and in
any event within ten (10) days after service of process on any of the following,
give to Buyer notice of all litigation, actions, suits, arbitrations, investigations
(including, without limitation, any of the foregoing which are threatened or
pending) or other
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legal or arbitrable proceedings affecting Seller or Guarantor or affecting any of
the Property of any of them before any Governmental Authority that (i) questions or
challenges the validity or enforceability of any of the Program Agreements or any
action to be taken in connection with the transactions contemplated hereby, (ii)
makes a claim individually in an amount greater than $5,000,000 or in an aggregate
amount greater than $15,000,000, or (iii) which, individually or in the aggregate,
if adversely determined, would have a Material Adverse Effect. Each of Seller and
Guarantor, as applicable, will promptly provide notice of any judgment, which with
the passage of time, could cause an Event of Default hereunder.
b. Prohibition of Fundamental Changes. Guarantor shall not, nor shall
Guarantor permit Seller to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation,
winding up or dissolution) or sell all or substantially all of its assets; provided,
that Seller and Guarantor may merge or consolidate with (a) any wholly owned
subsidiary of Seller, or (b) any other Person if Seller or the respective Guarantor
is the surviving Person; and provided further, that if after giving effect thereto,
no Default would exist hereunder.
c. Servicer. Upon the occurrence of any of the following (a) the occurrence
and continuation of an Event of Default, (b) the fifteenth (15th)
Business Day of each month, or (c) upon the request of Buyer, Seller shall cause
each Servicer to provide to Buyer, electronically, in a format mutually acceptable
to Buyer and Seller, by no later than the Reporting Date, a Servicing Report.
Seller shall not cause the Purchased Assets to be serviced by any servicer other
than a servicer expressly approved in writing by Buyer, which approval shall be
deemed granted by Buyer with respect to Seller or any Affiliate thereof with the
execution of this Agreement.
d. Intentionally Omitted.
e. No Adverse Claims. Seller warrants and will defend the right, title and
interest of Buyer in and to all Purchased Assets and the related Repurchase Assets
against all adverse claims and demands.
f. Assignment. Except as permitted herein, neither Seller nor any Servicer
shall sell, assign, transfer or otherwise dispose of, or grant any option with
respect to, or pledge, hypothecate or grant a security interest in or lien on or
otherwise encumber (except pursuant to the Program Agreements), any of the Purchased
Assets or any interest therein, provided that this Section shall not prevent any
transfer of Purchased Assets in accordance with the Program Agreements.
g. Security Interest. Seller shall do all things necessary to preserve the
Purchased Assets and the related Repurchase Assets so that they remain subject to a
first priority perfected security interest hereunder. Seller will not allow any
default for which Seller is responsible to occur under any Purchased Assets or the
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related Repurchase Assets or any Program Agreement and Seller shall fully
perform or cause to be performed when due all of its obligations under any Purchased
Assets or the related Repurchase Assets and any Program Agreement.
h. Records.
(1) Seller shall collect and maintain or cause to be collected and maintained
all Records relating to the Purchased Assets in accordance with industry custom and
practice for assets similar to the Purchased Assets, including those maintained
pursuant to the preceding subparagraph, and all such Records shall be in Custodian’s
possession unless Buyer otherwise approves. Seller will not allow any such papers,
records or files that are an original or an only copy to leave Custodian’s
possession, except for individual items removed in connection with servicing a
specific Mortgage Loan, in which event Seller will obtain or cause to be obtained a
receipt from a financially responsible person for any such paper, record or file.
Seller or the applicable Servicer of the Purchased Assets will maintain all such
Records not in the possession of Custodian in good and complete condition in
accordance with industry practices for assets similar to the Purchased Assets and
preserve them against loss.
(2) For so long as Buyer has an interest in or lien on any Purchased Asset,
Seller will hold or cause to be held all related Records in trust for Buyer. Seller
shall notify, or cause to be notified, every other party holding any such Records of
the interests and liens in favor of Buyer granted hereby.
(3) Upon reasonable advance notice from Custodian or Buyer, Seller shall (x)
make any and all such Records available to Custodian or Buyer to examine any such
Records, either by its own officers or employees, or by agents or contractors, or
both, and make copies of all or any portion thereof, and (y) permit Buyer or its
authorized agents to discuss the affairs, finances and accounts of Seller with its
chief operating officer and chief financial officer and to discuss the affairs,
finances and accounts of Seller with its independent certified public accountants.
i. Books. Seller shall keep or cause to be kept in reasonable detail books
and records of account of its assets and business and shall clearly reflect therein
the transfer of Purchased Assets to Buyer.
j. Approvals. Seller shall maintain all licenses, permits or other
approvals necessary for Seller to conduct its business and to perform its
obligations under the Program Agreements, and Seller shall conduct its business
strictly in accordance with applicable law.
k. Intentionally Omitted.
l. Distributions. Seller shall not pay any dividends greater than Net
Income in any given calendar year except to the extent necessary to maintain
Seller’s
qualification as a REIT under the Code or to prevent the Seller being subject to
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income or excise tax under Section 857 or Section 4981 of the Code. If an Event of
Default has occurred and is continuing, neither Seller nor Guarantor shall pay any
dividends with respect to any capital stock or other equity interests in such
entity, whether now or hereafter outstanding, or make any other distribution in
respect thereof, either directly or indirectly, whether in cash or property or in
obligations of Seller or Guarantor.
m. Applicable Law. Each of Seller and Guarantor shall comply with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority, unless the failure to comply would not (either individually
or in the aggregate) cause a Material Adverse Effect.
n. Existence. Each of Seller and Guarantor shall preserve and maintain
their legal existence and all of their material rights, privileges, licenses and
franchises, unless the failure to comply would not (either individually or in the
aggregate) cause a Material Adverse Effect.
o. Chief Executive Office; Jurisdiction of Organization. Seller shall not
move its chief executive office from the address referred to in Section 13(a)(16) or
change its jurisdiction of organization from the jurisdiction referred to in Section
13(a)(16) unless it shall have provided Buyer 5 days’ prior written notice of such
change.
p. Taxes. Each of Seller and Guarantor shall timely file all tax returns
that are required to be filed by them and shall timely pay and discharge all Taxes,
assessments and governmental charges or levies imposed on it or on its income or
profits or on any of its property, except for any such Tax, assessment, charge or
levy the payment of which is being contested in good faith by proper proceedings
diligently conducted and with respect to which adequate reserves are being
maintained.
q. Transactions with Affiliates. Seller will not enter into any
transaction, including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service, with any Affiliate unless such transaction
is (a) in the ordinary course of Seller’s business and (b) upon fair and reasonable
terms no less favorable to Seller than it would obtain in a comparable arm’s length
transaction with a Person which is not an Affiliate.
r. Guarantees. Seller shall not create, incur, assume or suffer to exist
any Guarantees.
s. Indebtedness. Seller shall give Buyer prompt written notice of its
incurrence or planned incurrence of any additional Indebtedness not in existence as
of the date of this Agreement, other than trade payables in the ordinary course of
business, including but not limited to any increase of the existing maximum
facility amounts with respect to, and any modification of the materials terms of,
any credit facility in existence from time to time.
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t. True and Correct Information. All information, reports, exhibits,
schedules, financial statements or certificates of Seller and Guarantor or any of
their officers prepared by Seller and/or Guarantor and furnished to Buyer hereunder
and during Buyer’s diligence of Seller and Guarantor are and will be true and
complete in all material respects as of the date the same was prepared and will do
not omit to disclose any material facts necessary to make the statements herein or
therein, in light of the circumstances in which they are made, not misleading as of
the date of this Agreement; provided, that any information furnished by or on behalf
of the Seller and/or Guarantor or any of their officers and directors may be
superseded within a reasonable time by correct information and shall not constitute
a violation of these representations and warranties. All financial statements,
information and reports delivered by Seller to Buyer pursuant to this Agreement
shall be prepared in accordance with U.S. GAAP, or, if applicable, to SEC filings,
the appropriate SEC accounting regulations.
u. Plan Assets. Seller shall not be an employee benefit plan as defined in
Section 3 of Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code
and the Seller shall not use “plan assets” within the meaning of 29 CFR § 2510.3-101
to engage in this Agreement or any Transaction hereunder.
v. Voting Rights. Unless an Event of Default shall have occurred and be
continuing, the Seller shall be entitled to exercise all voting and corporate rights
with respect to the Purchased Assets; provided, that no vote shall be cast or
corporate right exercised or other action taken which, in Buyer’s good faith
judgment, would be inconsistent with or result in any violation of any provision of
this Agreement.
w. Hedging. The Seller shall enter into and maintain Interest Rate
Protection Agreements in an amount and in accordance with Seller’s written policy as
approved by Buyer. Seller shall not amend such written policy without the prior
written consent of Buyer.
x. Financial Covenants:
(1) Guarantor shall maintain a Consolidated Net Worth plus Unfunded Capital
Commitments greater than or equal to the Minimum Net Worth Amount.
(2) Guarantor’s Consolidated Leverage Ratio shall not exceed 4.00:1.00.
(3) Guarantor shall maintain a Liquid Net Worth greater than or equal to the
Minimum Liquid Net Worth Amount.
(4) Guarantor shall maintain a ratio of net cash flow to interest on all of its
Consolidated Total Indebtedness of at least 1.25:1.00.
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y. Impaired Assets and Ineligible Assets. The Seller and/or Guarantor
shall, upon obtaining knowledge thereof, promptly notify Buyer of (A) any Default,
(B) any occurrence that has resulted or could reasonably be expected to result in a
Material Adverse Change with respect to it and (C) any Purchased Asset becoming an
Impaired Asset or an Ineligible Asset;
15. Events of Default
Each of the following shall constitute an “Event of Default” hereunder:
a. Payment Failure. Failure of (i) the Seller to make any payment of Price
Differential or Repurchase Price or any other sum which has become due, on a Price
Differential Payment Date or a Repurchase Date or otherwise, whether by acceleration
or otherwise, under the terms of this Agreement, any other warehouse and security
agreement or any other document evidencing or securing Indebtedness of Seller to
Buyer or to any Affiliate of Buyer, or (ii) the Seller to cure any Margin Deficit or
Capital Call Deficit when due pursuant to Section 6 hereof.
b. Cross Default. (i) Seller, Guarantor or any of their Affiliates shall be
in default under (i) any Indebtedness, which Indebtedness is, in the aggregate, in
excess of $10 million of Seller, Guarantor or any of their Affiliates which default
(1) involves the failure to pay a matured obligation, or (2) permits the
acceleration of the maturity of obligations by any other party to or beneficiary
with respect to such Indebtedness, or (ii) any other contract or contracts, in the
aggregate in excess of $5 million to which Seller, Guarantor or any of their
Affiliates is a party which default (1) involves the failure to pay a matured
obligation, or (2) permits the acceleration of the maturity of obligations by any
other party to or beneficiary of such contract.
c. Assignment. Assignment or attempted assignment by Seller or Guarantor of
this Agreement or any rights hereunder without first obtaining the specific written
consent of Buyer, or the granting by Seller of any security interest, lien or other
encumbrances on any Purchased Assets to any person other than Buyer.
d. Insolvency. An Act of Insolvency shall have occurred with respect to the
Seller, the Guarantor or any Affiliate.
e. Material Adverse Change. Any material adverse change in the Property,
business, financial condition or operations of Seller, Guarantor or any of its
Affiliates shall occur, in each case as determined by Buyer in its sole good faith
discretion, or any other condition shall exist which, in Buyer’s sole good faith
discretion, constitutes a material impairment of Seller’s ability to perform its
obligations under this Agreement or any other Program Agreement.
f. Breach of Identified Representation or Covenant or Obligation. A breach
by Seller or Guarantor of any of the material representations, warranties or
covenants
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or obligations set forth in Sections 13(a)(1), 13(a)(7), 13(a)(20), 14(b),
14(o), 14(t), 14(v) and 14(w) of this Agreement.
g. Breach of Non-Identified Representation or Covenant. A breach by Seller
or Guarantor of any other material representation, warranty or covenant set forth in
this Agreement (and not otherwise specified in Section 15(f) above), if such breach
is not cured within ten (10) Business Days (other than the representations and
warranties set forth in Schedule 1, which shall be considered solely for the
purpose of determining whether a Purchased Asset is an Eligible Asset and the
obligation to repurchase such Mortgage Loan) unless (i) such party shall have made
any such representations and warranties with knowledge that they were materially
false or misleading at the time made, (ii) any such representations and warranties
have been determined by Buyer in its sole discretion to be materially false or
misleading on a regular basis, or (iii) Buyer, in its sole discretion, determines
that such breach of a material representation, warranty or covenant materially and
adversely affects (A) the condition (financial or otherwise) of such party, its
Subsidiaries or Affiliates; or (B) Buyer’s determination to enter into this
Agreement or Transactions with such party, then such breach shall constitute an
immediate Event of Default and Seller shall have no cure right hereunder).
h. Guarantor Breach. A breach by Guarantor of any material representation,
warranty or covenant set forth in the Guaranty or any other Program Agreement, any
“event of default” by Guarantor under the Guaranty, any repudiation of the Guaranty
by Guarantor, or if the Guaranty is not enforceable against Guarantor.
i. Change of Control. The occurrence of a Change in Control.
j. Failure to Transfer. Seller fails to transfer the Purchased Assets to
Buyer on the applicable Purchase Date (provided Buyer has tendered the related
Purchase Price).
k. Judgment. A final judgment or judgments (i) shall be rendered against
the Seller or (ii) for the payment of money in excess of $2,500,000 individually or
$5,000,000 in the aggregate shall be rendered against the Seller or Guarantor, in
each case, by one or more courts, administrative tribunals or other bodies having
jurisdiction and the same shall not be satisfied, discharged (or provision shall not
be made for such discharge) or bonded, or a stay of execution thereof shall not be
procured, within 30 days from the date of entry thereof.
l. Government Action. Any Governmental Authority or any person, agency or
entity acting or purporting to act under governmental authority shall have taken any
action to condemn, seize or appropriate, or to assume custody or control of, all or
any substantial part of the Property of Seller, Guarantor or any Affiliate thereof,
or shall have taken any action to displace the management of Seller, Guarantor or
any Affiliate thereof or to curtail its authority in the conduct of the
business of Seller, Guarantor or any Affiliate thereof, or takes any action in the
nature of enforcement to remove, limit or restrict the approval of Seller,
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Guarantor
or Affiliate as an issuer, buyer or a seller/servicer of Mortgage Loans or
securities backed thereby, and such action provided for in this subparagraph shall
not have been discontinued or stayed within 30 days.
m. Inability to Perform. An officer of Seller or Guarantor shall admit its
inability to, or its intention not to, perform any of Seller’s Obligations or
Guarantor’s obligations hereunder or under the Guaranty.
n. Security Interest. This Agreement shall for any reason cease to create a
valid, first priority security interest in any material portion of the Purchased
Assets or other Repurchase Assets purported to be covered hereby.
o. Financial Statements. Seller’s or Guarantor’s audited annual financial
statements or the notes thereto or other opinions or conclusions stated therein
shall be qualified or limited by reference to the status of Seller or Guarantor as a
“going concern” or a reference of similar import.
An Event of Default shall be deemed to be continuing unless expressly waived by Buyer in
writing.
16. Remedies Upon Default
In the event that an Event of Default shall have occurred and is continuing:
a. Buyer may, at its option (which option shall be deemed to have been exercised
immediately upon the occurrence of an Act of Insolvency of Seller or any Affiliate),
declare an Event of Default to have occurred hereunder and, upon the exercise or
deemed exercise of such option, the Repurchase Date for each Transaction hereunder
shall, if it has not already occurred, be deemed immediately to occur (except that,
in the event that the Purchase Date for any Transaction has not yet occurred as of
the date of such exercise or deemed exercise, such Transaction shall be deemed
immediately canceled). Buyer shall (except upon the occurrence of an Act of
Insolvency) give notice to Seller and Guarantor of the exercise of such option as
promptly as practicable.
b. If Buyer exercises or is deemed to have exercised the option referred to in
subparagraph (a) of this Section, (i) Seller’s obligations in such Transactions to
repurchase all Purchased Assets, at the Repurchase Price therefor on the Repurchase
Date determined in accordance with subparagraph (a) of this Section, shall thereupon
become immediately due and payable, (ii) all Income paid after such exercise or
deemed exercise shall be retained by Buyer and applied to the aggregate unpaid
Repurchase Prices for all outstanding Transactions and any other amounts owing by
Seller hereunder, and (iii) Seller shall immediately deliver to Buyer the Asset
Files relating to any Purchased Assets subject to such Transactions then in Seller’s
possession or control.
c. Buyer also shall have the right to obtain physical possession, and to commence an
action to obtain physical possession, of all Records and files of
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Seller relating to
the Purchased Assets and all documents relating to the Purchased Assets (including,
without limitation, any legal, credit or servicing files with respect to the
Purchased Assets) which are then or may thereafter come in to the possession of
Seller or any third party acting for Seller. To obtain physical possession of any
Purchased Assets held by Custodian, Buyer shall present to Custodian a Trust
Receipt.
d. Buyer shall have the right to direct all servicers then servicing any Purchased
Assets to remit all collections thereon to Buyer, and if any such payments are
received by Seller, Seller shall not commingle the amounts received with other funds
of Seller and shall promptly pay them over to Buyer. Buyer shall also have the
right to terminate any one or all of the servicers then servicing any Purchased
Assets with or without cause. In addition, Buyer shall have the right to
immediately sell the Purchased Assets and liquidate all Repurchase Assets (with the
Seller entitled to a right of first offer, acceptable in the sole discretion of the
Buyer). Such disposition of Purchased Assets may be, at Buyer’s option, on either a
servicing-released or a servicing-retained basis. Buyer shall not be required to
give any warranties as to the Purchased Assets with respect to any such disposition
thereof. Buyer may specifically disclaim or modify any warranties of title or the
like relating to the Purchased Assets. The foregoing procedure for disposition of
the Purchased Assets and liquidation of the Repurchase Assets shall not be
considered to adversely affect the commercial reasonableness of any sale thereof.
Seller agrees that it would not be commercially unreasonable for Buyer to dispose of
the Purchased Assets or the Repurchase Assets or any portion thereof by using
Internet sites that provide for the auction of assets similar to the Purchased
Assets or the Repurchase Assets, or that have the reasonable capability of doing so,
or that match buyers and sellers of assets. Buyer shall be entitled to place the
Purchased Assets in a pool for issuance of mortgage-backed securities at the
then-prevailing price for such securities and to sell such securities for such
prevailing price in the open market. Buyer shall also be entitled to sell any or
all of such Purchased Assets individually for the prevailing price. Buyer shall
also be entitled, in its sole discretion to elect, in lieu of selling all or a
portion of such Purchased Assets, to give the Seller credit for such Purchased
Assets and the Repurchase Assets in an amount equal to the Market Value of the
Purchased Assets against the aggregate unpaid Repurchase Price and any other amounts
owing by the Seller hereunder.
e. Upon the happening of one or more Events of Default, Buyer may apply any proceeds
from the liquidation of the Purchased Assets and Repurchase Assets to the Repurchase
Prices hereunder and all other Obligations in the manner Buyer deems appropriate in
its sole discretion.
f. Seller shall be liable to Buyer for (i) the amount of all reasonable legal or
other expenses (including, without limitation, all costs and expenses of Buyer in
connection with the enforcement of this Agreement or any other agreement
evidencing a Transaction, whether in action, suit or litigation or bankruptcy,
insolvency or other similar proceeding affecting creditors’ rights generally,
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further including, without limitation, the reasonable fees and expenses of counsel
(including the costs of internal counsel of Buyer) incurred in connection with or as
a result of an Event of Default, (ii) damages in an amount equal to the cost
(including all fees, expenses and commissions) of entering into replacement
transactions and entering into or terminating hedge transactions in connection with
or as a result of an Event of Default, and (iii) any other loss, damage, cost or
expense directly arising or resulting from the occurrence of an Event of Default in
respect of a Transaction.
g. To the extent permitted by applicable law, Seller shall be liable to Buyer for
interest on any amounts owing by Seller hereunder, from the date Seller becomes
liable for such amounts hereunder until such amounts are (i) paid in full by Seller
or (ii) satisfied in full by the exercise of Buyer’s rights hereunder.
h. Buyer shall have, in addition to its rights hereunder, any rights otherwise
available to it under any other agreement or applicable law.
i. Buyer may exercise one or more of the remedies available to Buyer immediately
upon the occurrence of an Event of Default and, except to the extent provided in
subsections (a) and (d) of this Section, at any time thereafter without notice to
Seller. All rights and remedies arising under this Agreement as amended from time
to time hereunder are cumulative and not exclusive of any other rights or remedies
which Buyer may have.
j. Buyer may enforce its rights and remedies hereunder without prior judicial
process or hearing, and Seller hereby expressly waives any defenses Seller might
otherwise have to require Buyer to enforce its rights by judicial process. Seller
also waives any defense (other than a defense of payment or performance) Seller
might otherwise have arising from the use of nonjudicial process, enforcement and
sale of all or any portion of the Repurchase Assets, or from any other election of
remedies. Seller recognizes that nonjudicial remedies are consistent with the
usages of the trade, are responsive to commercial necessity and are the result of a
bargain at arm’s length.
k. Buyer shall perform reasonable due diligence in accordance with Section 36 hereof
with respect to Seller and the Purchased Assets, which review shall be at the
expense of Seller.
l. The Seller recognizes the Buyer may be unable to effect a public sale of any or
all of the Purchased Assets. The Seller acknowledges and agrees that any such
private sale may result in prices and other terms less favorable to the Buyer than
if such sale were a public sale and, notwithstanding such circumstances, agrees that
any such private sale shall be deemed to have been made in a commercially reasonable
manner. The Buyer shall be under no obligation to delay a sale of any of the
Securities for the period of time necessary to permit the Seller to register
such securities for public sale under the 1933 Act, or under applicable state
securities laws, even if the Seller would agree to do so.
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m. Nothing contained in the Agreement shall obligate Buyer to segregate any
Purchased Assets delivered to Buyer by Seller. Notwithstanding anything to the
contrary set forth in the Agreement, in no event shall Purchased Assets remain in
the custody of Seller or any Affiliate of Seller.
17. Reports
a. Notices. Seller or Guarantor shall furnish to Buyer (x) promptly, copies
of any material and adverse notices (including, without limitation, notices of
defaults, breaches, potential defaults or potential breaches) and any material
financial information that is not otherwise required to be provided by Seller
hereunder which is given to Seller’s lenders, (y) immediately, notice of the
occurrence of any Event of Default hereunder or default or breach by the Seller, a
Servicer or the Guarantor of any obligation under any Program Agreement or any
material contract or agreement of the Seller, a Servicer or the Guarantor or the
occurrence of any event or circumstance that such party reasonably expects has
resulted in, or will, with the passage of time, result in, a Material Adverse Effect
or an Event of Default or such a default or breach by such party and (z) the
following:
(1) as soon as available and in any event within forty-five (45) calendar days
after the end of each quarter, the unaudited consolidated balance sheets of
Guarantor, Seller and their consolidated Subsidiaries as at the end of such period
and the related unaudited consolidated statements of income and retained earnings
and of cash flows for the Guarantor, Seller and their consolidated Subsidiaries for
such period and the portion of the fiscal year through the end of such period,
accompanied by a certificate of a Responsible Officer of Guarantor and Seller, which
certificate shall state that said consolidated financial statements fairly present
in all material respects the consolidated financial condition and results of
operations of Guarantor and Seller and their consolidated Subsidiaries in accordance
with GAAP, consistently applied, as at the end of, and for, such period (subject to
normal year-end adjustments);
(2) as soon as available and in any event within ninety (90) days after the end
of each fiscal year of Guarantor and Seller, the consolidated balance sheets of
Guarantor and Seller and their consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and retained earnings
and of cash flows for the Guarantor and Seller and their consolidated Subsidiaries
for such year, setting forth in each case in comparative form the figures for the
previous year, accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion and the scope of audit
shall be acceptable to Buyer in its sole discretion, shall have no “going concern”
qualification and shall state that said consolidated financial statements fairly
present the consolidated financial condition and results
of operations of Guarantor and Seller and their respective consolidated
Subsidiaries as at the end of, and for, such fiscal year in accordance with GAAP;
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(3) such other prepared statements that Buyer may reasonably request;
(4) as soon as available, and in any event within thirty (30) days of receipt,
copies of relevant portions of all final written Governmental Authority and investor
audits, examinations, evaluations, monitoring reviews and reports of its operations
(including those prepared on a contract basis) which provide for or relate to (i)
material corrective action required, (ii) material sanctions proposed, imposed or
required, including without limitation notices of defaults, notices of termination
of approved status, notices of imposition of supervisory agreements or interim
servicing agreements, and notices of probation, suspension, or non-renewal, or (iii)
“report cards,” “grades” or other classifications of the quality of Seller’s
operations;
(5) as soon as available, but in any event once per calendar quarter, financial
statements with respect to the underlying property related to the Purchased Assets
as delivered by the underlying obligors and diligently pursued by Seller;
(6) from time to time such other information regarding the financial condition,
operations, or business of the Guarantor or Seller as Buyer may reasonably request;
(7) As soon as reasonably possible, notice of any of the following events:
(a) change in the insurance coverage required of the Seller, the Guarantor, a
Servicer or any other Person pursuant to any Program Agreement, with a copy of
evidence of same attached;
(b) any material dispute, litigation, investigation, proceeding or suspension
between the Seller, the Guarantor or any Servicer, on the one hand, and any
Governmental Authority or any Person;
(c) any material change in accounting policies or financial reporting practices
of the Seller, the Guarantor or any Servicer;
(d) with respect to any Purchased Asset, immediately upon receipt of notice or
knowledge thereof, that the underlying Mortgaged Property has been damaged by waste,
fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, or
otherwise damaged so as to affect adversely the value of such Purchased Asset;
(e) any material issues raised upon examination of Seller or Seller’s
facilities by any Governmental Authority;
(f) any material change in the Indebtedness of the Seller, including, without
limitation, any default, renewal, non-renewal, termination, increase in
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available
amount or decrease in available amount (not requested by Seller) related thereto;
(g) promptly upon receipt of notice or knowledge of (i) any default related to
any Repurchase Asset, (ii) any lien or security interest (other than security
interests created hereby or by the other Program Agreements) on, or claim asserted
against, any of the Purchased Assets; and
(h) any other event, circumstance or condition that has resulted, or has a
possibility of resulting, in a Material Adverse Effect with respect to the Seller or
any Servicer.
b. Officer’s Certificates. Seller will furnish to Buyer, at the time the
Seller furnishes each set of financial statements pursuant to Section 17(a)(1) or
(2) above, a certificate of a Responsible Officer of Seller in the form of
Exhibit D hereto.
c. Servicing Reports. Seller will furnish to Buyer a Servicing Report by no
later than the Reporting Date.
d. Distribution Worksheet. Seller shall provide to Buyer, electronically,
in a format mutually acceptable to Buyer and Seller, a Distribution Worksheet by no
later than the Reporting Date.
e. Hedge Valuations. Seller shall provide to Buyer on a monthly basis, or
as otherwise requested by Buyer, a report setting forth the valuations of all
Interest Rate Protection Agreements.
f. Other. Seller shall deliver to Buyer any other reports or information
reasonably requested by Buyer or as otherwise required pursuant to this Agreement.
18. Repurchase Transactions
Buyer may, in its sole election, engage in repurchase transactions with the Purchased Assets
or otherwise pledge, hypothecate, assign, transfer or otherwise convey the Purchased Assets with a
counterparty of Buyer’s choice. Unless an Event of Default shall have occurred, no such
transaction shall relieve Buyer of its obligations to transfer Purchased Assets to Seller pursuant
to Section 4 hereof, or of Buyer’s obligation to credit or pay Income to, or apply Income to the
obligations of, Seller pursuant to Section 7 hereof. In the event Buyer engages in a repurchase
transaction with any of the Purchased Assets or otherwise pledges or hypothecates any of the
Purchased Assets, Buyer shall have the right to assign to Buyer’s counterparty any of the
applicable representations or warranties herein and the remedies for breach thereof, as they relate
to the Purchased Assets that are subject to such repurchase transaction. Notwithstanding the
foregoing, Seller shall not be obligated to deal with any party other than the Buyer after the
Buyer takes any actions in accordance with this Section 18.
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19. Single Agreement
Buyer and Seller acknowledge that, and have entered hereunto, and will enter into each
Transaction hereunder, in consideration of and in reliance upon the fact that, all Transactions
hereunder constitute a single business and contractual relationship and have been made in
consideration of each other. Accordingly, each of Buyer and Seller agrees (i) to perform all of
its obligations in respect of each Transaction hereunder, and that a default in the performance of
any such obligations shall constitute a default by it in respect of all Transactions hereunder,
(ii) that each of them shall be entitled to set-off claims and apply property held by them in
respect of any Transaction against obligations owing to them in respect of any other Transactions
hereunder and (iii) that payments, deliveries and other transfers made by either of them in respect
of any Transaction shall be deemed to have been made in consideration of payments, deliveries and
other transfers in respect of any other Transactions hereunder, and the obligations to make any
such payments, deliveries and other transfers may be applied against each other and netted.
20. Notices and Other Communications
Any and all notices (with the exception of Transaction Requests or Purchase Confirmations,
which shall be delivered via facsimile only), statements, demands or other communications hereunder
may be given by a party to the other by mail, facsimile, messenger or otherwise to the address
specified below, or so sent to such party at any other place specified in a notice of change of
address hereafter received by the other. All notices, demands and requests hereunder may be made
orally, to be confirmed promptly in writing, or by other communication as specified in the
preceding sentence.
If to Seller:
NY Credit Funding II, LLC
c/o NY Credit Advisors, LLC,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxx Xxxxx, Esq.
If to Guarantor:
NY Credit Operating Partnership LP
c/o NY Credit Advisors, LLC,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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with a copy to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
If to Buyer:
Xxxxxxx Xxxxx Mortgage Lending, Inc.
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Malay Bansal
with a copy to:
Xxxxxxx Xxxxx Mortgage Lending, Inc.
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx
with a copy to:
Xxxxxxx Xxxxx Mortgage Lending, Inc.
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
21. Entire Agreement; Severability
This Agreement shall supersede any existing agreements between the parties containing general
terms and conditions for repurchase transactions. Each provision and agreement herein shall be
treated as separate and independent from any other provision or
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agreement herein and shall be enforceable notwithstanding the unenforceability of any such
other provision or agreement.
22. Non-Assignability
The Program Agreements are not assignable by Seller or Guarantor. Buyer may from time to time
assign all or a portion of its rights and obligations under this Agreement and the Program
Agreements; provided, however that assignments to Buyer’s non-Affiliates shall require the consent
of the Seller not to be unreasonably withheld unless there is an Event of Default, in which case no
consent shall be required; and provided further that Buyer shall maintain as agent of Seller, for
review by Seller upon written request, a register of assignees and a copy of an executed assignment
and acceptance by Buyer and assignee (“Assignment and Acceptance”), specifying the
percentage or portion of such rights and obligations assigned. Upon such assignment, (a) such
assignee shall be a party hereto and to each Program Agreement to the extent of the percentage or
portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and
obligations of Buyer hereunder, and (b) Buyer shall, to the extent that such rights and obligations
have been so assigned by it to either (i) an Affiliate of Buyer which assumes the obligations of
Buyer or (ii) to another Person approved by Seller (such approval not to be unreasonably withheld)
which assumes the obligations of Buyer, be released from its obligations hereunder and under the
Program Agreements. Unless otherwise stated in the Assignment and Acceptance, Seller shall
continue to take directions solely from Buyer unless otherwise notified by Buyer in writing. Buyer
may distribute to any prospective assignee any document or other information delivered to Buyer by
Seller.
The Buyer may sell participations to one or more Persons in or to all or a portion of its
rights and obligations under this Agreement; provided, however, that (i) the Buyer’s obligations
under this Agreement shall remain unchanged, (ii) the Buyer shall remain solely responsible to the
other parties hereto for the performance of such obligations; and (iii) the Seller shall continue
to deal solely and directly with the Buyer in connection with the Buyer’s rights and obligations
under this Agreement and the other Program Agreements, except as provided in Section 11(e).
The Buyer may, in connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 22, disclose to the assignee or participant or proposed
assignee or participant, as the case may be, any information relating to the Seller or any of its
respective Subsidiaries or to any aspect of the Transactions that has been furnished to the Buyer
by or on behalf of the Seller or any of their respective Subsidiaries; provided that such assignee
or participant agrees to hold such information subject to the confidentiality provisions of this
Agreement.
23. Set-off
In addition to any rights and remedies of Buyer provided by law, Buyer shall have the right,
without prior notice to Seller, any such notice being expressly waived by Seller to the extent
permitted by applicable law, upon any amount becoming due and payable by Seller hereunder (whether
at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply against
such amount any and all deposits (general or special, time or demand,
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provisional or final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by Buyer or any branch or agency thereof to or for the credit or the account
of Seller. Buyer agrees promptly to notify Seller after any such set-off and application made by
Buyer; provided, that the failure to give such notice shall not affect the validity of such set-off
and application.
24. Binding Effect; Governing Law; Jurisdiction
a. This Agreement shall be binding and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Seller acknowledges that the
obligations of Buyer hereunder or otherwise are not the subject of any guaranty by,
or recourse to, any direct or indirect parent or other Affiliate of Buyer. THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAW OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
b. EACH OF SELLER AND GUARANTOR HEREBY WAIVES TRIAL BY JURY. EACH OF SELLER AND
GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY COURT OF
THE STATE OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS IN ANY
ACTION OR PROCEEDING. EACH OF SELLER AND GUARANTOR HEREBY SUBMITS TO, AND WAIVES
ANY OBJECTION THEY MAY HAVE TO, EXCLUSIVE PERSONAL JURISDICTION AND VENUE IN XXX
XXXXXX XX XXX XXXXX XX XXX XXXX AND THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, WITH RESPECT TO ANY DISPUTES ARISING OUT OF OR
RELATING TO THE PROGRAM AGREEMENTS.
25. No Waivers, Etc.
No express or implied waiver of any Event of Default by either party shall constitute a waiver
of any other Event of Default and no exercise of any remedy hereunder by any party shall constitute
a waiver of its right to exercise any other remedy hereunder. No modification or waiver of any
provision of this Agreement and no consent by any party to a departure herefrom shall be effective
unless and until such shall be in writing and duly executed by both of the parties hereto. Without
limitation on any of the foregoing, the failure to give a notice pursuant to Section 6(a), 16(a) or
otherwise, will not constitute a waiver of any right to do so at a later date.
26. Intent
a. The parties recognize that each Transaction is a “repurchase agreement”
as that term is defined in Section 101 of Title 11 of the United States Code, as
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amended (except insofar as the type of Purchased Assets subject to such Transaction
or the term of such Transaction would render such definition inapplicable), and a
“securities contract” as that term is defined in Section 741 of Title 11 of
the United States Code, as amended (except insofar as the type of assets subject to
such Transaction would render such definition inapplicable).
b. It is understood that either party’s right to liquidate Purchased Assets
delivered to it in connection with Transactions hereunder or to exercise any other
remedies pursuant to Section 16 hereof is a contractual right to liquidate such
Transaction as described in Sections 555 and 559 of Title 11 of the United States
Code, as amended.
c. The parties agree and acknowledge that if a party hereto is an “insured
depository institution,” as such term is defined in the Federal Deposit
Insurance Act, as amended (“FDIA”), then each Transaction hereunder is a
“qualified financial contract,” as that term is defined in FDIA and any
rules, orders or policy statements thereunder (except insofar as the type of assets
subject to such Transaction would render such definition inapplicable).
d. It is understood that this Agreement constitutes a “netting contract” as
defined in and subject to Title IV of the Federal Deposit Insurance Corporation
Improvement Act of 1991 (“FDICIA”) and each payment entitlement and payment
obligation under any Transaction hereunder shall constitute a “covered
contractual payment entitlement” or “covered contractual payment
obligation,” respectively, as defined in and subject to FDICIA (except insofar
as one or both of the parties is not a “financial institution” as that term
is defined in FDICIA).
e. This Agreement is intended to be a “repurchase agreement” and a “securities
contract,” within the meaning of Section 555 and Section 559 under the Bankruptcy
Code.
27. Disclosure Relating to Certain Federal Protections
The parties acknowledge that they have been advised that:
a. in the case of Transactions in which one of the parties is a broker or dealer
registered with the SEC under Section 15 of the 1934 Act, the Securities Investor
Protection Corporation has taken the position that the provisions of the SIPA do not
protect the other party with respect to any Transaction hereunder;
b. in the case of Transactions in which one of the parties is a government
securities broker or a government securities dealer registered with the SEC under
Section 15C of the 1934 Act, SIPA will not provide protection to the other party
with respect to any Transaction hereunder; and
c. in the case of Transactions in which one of the parties is a financial
institution, funds held by the financial institution pursuant to a Transaction
hereunder are not
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a deposit and therefore are not insured by the FDIC or the National Credit Union
Share Insurance Fund, as applicable.
28. Power of Attorney
Seller hereby authorizes Buyer to file such financing statement or statements relating to the
Repurchase Assets without Seller’s signature thereon as Buyer, at its option, may deem appropriate.
Seller hereby appoints Buyer as Seller’s agent and attorney-in-fact to (i) execute any such
financing statement or statements in Seller’s name and to perform all other acts which Buyer deems
appropriate to perfect and continue its ownership interest in and/or the security interest granted
hereby, if applicable, and to protect, preserve and realize upon the Repurchase Assets, including,
but not limited to, the right to endorse notes, complete blanks in documents, transfer servicing,
and sign assignments on behalf of Seller as its agent and attorney-in-fact and (ii) to pay or
discharge Taxes and Liens levied or placed on or threatened against the Repurchase Assets. This
agency and power of attorney is coupled with an interest and is irrevocable without Buyer’s
consent. Notwithstanding the foregoing, the power of attorney hereby granted may be exercised only
during the occurrence and continuance of any Event of Default hereunder. Seller shall pay the
filing costs for any financing statement or statements prepared pursuant to this Section 28.
29. Buyer May Act Through Affiliates
Buyer may, from time to time, designate one or more affiliates for the purpose of performing
any action hereunder.
30. Indemnification; Obligations; Recourse
a. Each of Seller and Guarantor agrees to hold Buyer and each of its respective
Affiliates and their officers, directors, employees, agents and advisors (each, an
“Indemnified Party”) harmless from and indemnify each Indemnified Party (and
will reimburse each Indemnified Party as the same is incurred) against all
liabilities, losses, damages, judgments, costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) of any kind which may be
imposed on, incurred by, or asserted against any Indemnified Party relating to or
arising out of this Agreement, any Transaction Request, Purchase Confirmation, any
Program Agreement or any transaction contemplated hereby or thereby resulting from
anything other than the Indemnified Party’s gross negligence or willful misconduct.
Seller and Guarantor also agree to reimburse each Indemnified Party for all
reasonable expenses in connection with the enforcement of this Agreement and the
exercise of any right or remedy provided for herein, any Transaction Request,
Purchase Confirmation and any Program Agreement, including, without limitation, the
reasonable fees and disbursements of counsel. Seller’s and Guarantor’s agreements
in this Section 30 shall survive the payment in full of the Repurchase Price and the
expiration or termination of this Agreement. Each of Seller and Guarantor hereby
acknowledges that its obligations hereunder are recourse obligations of Seller and
Guarantor and are not limited to recoveries each Indemnified Party may have with
respect to the
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Purchased Assets. Seller and Guarantor also agrees not to assert any claim against
Buyer or any of its Affiliates, or any of their respective officers, directors,
employees, attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
facility established hereunder, the actual or proposed use of the proceeds of the
Transactions, this Agreement or any of the transactions contemplated thereby. THE
FOREGOING INDEMNITY AND AGREEMENT NOT TO ASSERT CLAIMS EXPRESSLY APPLIES, WITHOUT
LIMITATION, TO THE NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF
THE INDEMNIFIED PARTIES.
b. Without limitation to the provisions of Section 4, if any payment of the
Repurchase Price of any Transaction is made by Seller other than on the then
scheduled Repurchase Date thereto as a result of an acceleration of the Repurchase
Date pursuant to Section 16 or for any other reason, Seller shall, upon demand by
Buyer, pay to Buyer an amount sufficient to compensate Buyer for any losses, costs
or expenses that it may reasonably incur as of a result of such payment.
c. Without limiting the provisions of Section 30(a) hereof, if Seller fails to pay
when due any costs, expenses or other amounts payable by it under this Agreement,
including, without limitation, fees and expenses of counsel and indemnities, such
amount may be paid on behalf of Seller by Buyer, in its sole discretion.
d. The obligations of the Seller from time to time to pay the Repurchase Price, the
Price Differential, and all other amounts due and Obligations owing under this
Repurchase Agreement shall be full recourse obligations of the Seller.
31. Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed to
be an original, and all such counterparts shall together constitute one and the same instrument.
32. Confidentiality
This Agreement and its terms, provisions, supplements and amendments, and notices hereunder,
are proprietary to Buyer and shall be held by Seller and Guarantor in strict confidence and shall
not be disclosed to any third party without the written consent of Buyer except for (i) disclosure
to Seller’s and Guarantor’s direct and indirect Affiliates and Subsidiaries, attorneys, investors
or accountants, but only to the extent such disclosure is necessary and such parties agree to hold
all information in strict confidence, or (ii) disclosure required by law, rule, regulation or
order of a court or other regulatory body.
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33. Recording of Communications
Buyer, Seller and Guarantor shall have the right (but not the obligation) from time to time to
make or cause to be made tape recordings of communications between its employees and those of the
other party with respect to Transactions. Buyer, Seller and Guarantor consent to the admissibility
of such tape recordings in any court, arbitration, or other proceedings. The parties agree that a
duly authenticated transcript of such a tape recording shall be deemed to be a writing conclusively
evidencing the parties’ agreement.
34. Exit Fee
In the event that a Purchased Asset (a) is repurchased before the Termination Date and is not
directly placed in a CDO Transaction or placed into another investment banking transaction provided
by and acceptable to Buyer or an Affiliate of Buyer or (b) is not repurchased before the
Termination Date, the Seller shall pay to the Buyer the applicable Exit Fee on such Repurchase Date
to the account set forth in Section 9; provided, that, with respect to a Purchased Asset
repurchased before the Termination Date, no such Exit Fee shall be due if such Purchased Asset is
(i) prepaid in whole or in part, (ii) repurchased as a result of no longer being an Eligible Asset
or (iii) placed in a CDO transaction for which the Buyer or an Affiliate thereof acts as lead
manager under the terms of the MOU; provided, further, that in the event the Seller pays an Exit
Fee with respect to a Purchased Asset, and such Purchased Asset is later included as an asset of
the CDO Transaction, the Buyer shall refund such Exit Fee to the Seller on the closing date of such
CDO Transaction. The obligations of the Seller to pay the Exit Fee shall survive the termination
of this Agreement.
35. Administration Fee
The Seller shall pay to the Buyer in consideration of its administration of the facility, with
respect to each Price Differential Payment Date, an amount designated by the Buyer in its sole
discretion, calculated daily on the basis of a 360 day year for the actual number of days during
the period commencing on (and including) the Purchase Date for such Transaction and ending on (but
excluding) the Repurchase Date.
36. Periodic Due Diligence Review
Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with
respect to the Seller and the Purchased Assets, for purposes of verifying compliance with the
representations, warranties and specifications and updating Market Value determinations, made
hereunder, or otherwise, and Seller agrees that upon reasonable (but no less than one (1) Business
Day’s) prior notice unless an Event of Default shall have occurred, in which case no notice is
required, to Seller, Buyer or its authorized representatives will be permitted during normal
business hours to examine, inspect, and make copies and extracts of, the Asset Files and any and
all documents, records, agreements, instruments or information relating to such Purchased Assets in
the possession or under the control of Seller, Guarantor and/or the Custodian. Seller also shall
make available to Buyer a knowledgeable financial or accounting officer for the purpose of
answering questions respecting the Asset Files and the Purchased Assets. Without limiting the
generality of the foregoing, Seller acknowledges that Buyer may
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purchase Purchased Assets from Seller based solely upon the information provided by Seller to
Buyer in the Purchased Asset Schedule and the representations, warranties and covenants contained
herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete
due diligence review on some or all of the Purchased Assets purchased in a Transaction, including,
without limitation, ordering broker’s price opinions, new credit reports and new appraisals on the
related Mortgaged Properties and otherwise re-generating the information used to originate such
Purchased Asset. Buyer may underwrite such Purchased Assets itself or engage a mutually agreed
upon third party underwriter to perform such underwriting. Seller agrees to cooperate with Buyer
and any third party underwriter in connection with such underwriting, including, but not limited
to, providing Buyer and any third party underwriter with access to any and all documents, records,
agreements, instruments or information relating to such Purchased Assets in the possession, or
under the control, of Seller. Seller further agrees that Seller shall pay all out-of-pocket costs
and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 36
(“Due Diligence Costs”).
37. Appointment of Agent.
(a) As a broker-dealer registered with the SEC, Xxxxxxx Xxxxx & Co. Incorporated
(“MLCI”), as agent of Buyer and Seller, will be responsible for (i) effecting Transactions
with respect to Securities hereunder, (ii) issuing all required confirmations and statements to
Buyer and Seller, (iii) maintaining books and records relating to Transactions as required by SEC
regulations, and (iv) receiving, delivering and safeguarding Seller’s funds and any securities in
connection with Transactions hereunder, in compliance with SEC regulations.
(b) MLCI is acting in connection with Transactions hereunder solely in its capacity as agent
for Buyer and Seller pursuant to instructions from Buyer and Seller. MLCI shall have no
responsibility or personal liability to Buyer or Seller arising from any failure by Buyer or Seller
to make payment, deliver securities, or perform any other obligations hereunder, including without
limitation obligations to transfer margin or collateral, except for MLCI’s gross negligence or
willful misconduct in performing its duties as agent hereunder. Each of Buyer and Seller agrees to
proceed solely against the other to collect or recover any securities or money owing to it or to
enforce any of its rights in connection with or as a result of Transactions hereunder.
(c) The parties acknowledge and agree that this Agreement shall not govern any repurchase
transaction between (i) MLCI, acting in its individual capacity, and Seller or (ii) Seller and any
entity other than Buyer, regardless of whether MLCI is acting as agent for such other entity.
38. Authorizations
Any of the persons whose signatures and titles appear on Schedule 3 are authorized,
acting singly, to act for Seller or Buyer, as the case may be, under this Agreement.
39. Documents Mutually Drafted
The Seller, Guarantor and the Buyer agree that this Agreement each other Program Agreement
prepared in connection with the Transactions set forth herein have been
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mutually drafted and negotiated by each party, and consequently such documents shall not be
construed against either party as the drafter thereof.
40. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
a. the terms defined in this Agreement have the meanings assigned to them in this
Agreement and include the plural as well as the singular, and the use of any gender
herein shall be deemed to include the other gender;
b. accounting terms not otherwise defined herein have the meanings assigned to them
in accordance with generally accepted accounting principles;
c. references herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and
other subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this Agreement;
d. a reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference appears,
and this rule shall also apply to Paragraphs and other subdivisions;
e. the words “herein,” “hereof,” “hereunder” and other words of similar import refer
to this Agreement as a whole and not to any particular provision;
f. the term “include” or “including” shall mean without limitation by reason of
enumeration;
g. all times specified herein or in any other Program Agreement (unless expressly
specified otherwise) are local times in New York, New York unless otherwise stated;
and
h. all references herein or in any Program Agreement to “good faith” means good
faith as defined in Section 1-201(19) of the UCC as in effect in the State of New
York.
[Signature Page Follows]
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IN WITNESS WHEREOF, Seller, Guarantor and the Buyer have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the date first above written.
XXXXXXX XXXXX MORTGAGE LENDING, INC., as Buyer
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By: |
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/s/ Malay Bansal |
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Name:
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Malay Bansal
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Title: |
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Authorized Signatory |
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Executed as deed by
NY CREDIT FUNDING II, LLC, as Seller
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By: |
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/s/ Xxxxxx X. Xxxxxxx |
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Name:
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Xxxxxx X. Xxxxxxx
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Title: |
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Chief Financial Officer |
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Witness:
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By: |
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/s/ Xxxxxx X. Xxxxxxxxx |
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Name:
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Xxxxxx X. Xxxxxxxxx
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Title: |
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Director |
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NY CREDIT OPERATING PARTNERSHIP LP, as Guarantor
By: NYCC GP LLC, its general partner
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By: |
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/s/ Xxxxxx X. Xxxxxxx |
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Name:
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Xxxxxx X. Xxxxxxx
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Title: |
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Chief Financial Officer |
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SCHEDULE 1
REPRESENTATIONS AND WARRANTIES
Schedule 1-1
SCHEDULE 2
ELIGIBILITY CRITERIA
Schedule 2-1
SCHEDULE 3
AUTHORIZED REPRESENTATIVES
SELLER NOTICES
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Address:
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NY Credit Funding II, LLC |
Name: [ ]
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c/o NY Credit Advisors, LLC, |
Telephone: [ ]
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000 Xxxx Xxxxxx |
Facsimile: [ ]
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Xxx Xxxx, Xxx Xxxx 00000 |
SELLER AUTHORIZATIONS
Any of the persons whose signatures and titles appear below are authorized, acting singly, to act
for Seller under this Agreement:
Schedule 3-1
GUARANTOR NOTICES
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Address:
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NY Credit Operating Partnership LP |
Name: [ ]
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c/o NY Credit Advisors, LLC, |
Telephone: [ ]
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000 Xxxx Xxxxxx |
Facsimile: [ ]
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Xxx Xxxx, Xxx Xxxx 00000 |
GUARANTOR AUTHORIZATIONS
Any of the persons whose signatures and titles appear below are authorized, acting singly, to act
for Seller under this Agreement:
Schedule 3-2
BUYER NOTICES
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Name:
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Xxxxxxx Xxxxx Mortgage Lending, Inc.
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Address:
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Xxxxxxx Xxxxx Mortgage Lending, Inc. |
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Telephone: |
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Facsimile: |
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BUYER AUTHORIZATIONS
Any of the persons whose signatures and titles appear below, including any other authorized
officers, are authorized, acting singly, to act for Buyer under this Agreement:
Schedule 3-3
SCHEDULE 4
PURCHASE PRICE PERCENTAGES AND PRICING RATES
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DSCR > 1.30 |
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DSCR Between 1.10 & 1.30 |
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DSCR < 1.10 |
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Purchase Price |
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Purchase Price |
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Purchase Price |
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Type |
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LTV |
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Percentage * |
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Pricing Rate |
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Percentage * |
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Pricing Rate |
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Percentage * |
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Pricing Rate |
Whole Loans |
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< 75 |
% |
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90.0 |
% |
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75 |
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87.5 |
% |
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85 |
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85.0 |
% |
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95 |
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Whole Loans |
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< 80 |
% |
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87.5 |
% |
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80 |
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85.0 |
% |
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90 |
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82.5 |
% |
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105 |
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Whole Loans |
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< 85 |
% |
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87.5 |
% |
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85 |
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85.0 |
% |
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100 |
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80.0 |
% |
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115 |
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Junior Interests |
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< 70 |
% |
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85.0 |
% |
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125 |
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80.0 |
% |
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135 |
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75.0 |
% |
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145 |
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Junior Interests |
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< 75 |
% |
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77.5 |
% |
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135 |
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75.0 |
% |
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145 |
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70.0 |
% |
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155 |
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Junior Interests |
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< 80 |
% |
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72.5 |
% |
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145 |
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70.0 |
% |
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150 |
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67.5 |
% |
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155 |
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Junior Interests |
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< 85 |
% |
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67.5 |
% |
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150 |
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65.0 |
% |
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160 |
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62.5 |
% |
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165 |
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Junior Interests |
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< 90 |
% |
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60.0 |
% |
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155 |
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60.0 |
% |
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170 |
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55.0 |
% |
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185 |
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Mezz |
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< 75 |
% |
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77.5 |
% |
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155 |
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75.0 |
% |
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160 |
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70.0 |
% |
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165 |
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Mezz |
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< 80 |
% |
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70.0 |
% |
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165 |
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65.0 |
% |
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175 |
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60.0 |
% |
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180 |
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Mezz |
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< 85 |
% |
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62.5 |
% |
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170 |
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60.0 |
% |
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180 |
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57.5 |
% |
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190 |
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Mezz |
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< 90 |
% |
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55.0 |
% |
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185 |
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55.0 |
% |
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195 |
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52.5 |
% |
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205 |
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* |
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Purchase price percentages may be modified to maintain a portfolio average of an
approximately BBB rating (or the equivalent designation). |
Schedule 4-1
SCHEDULE 5
CF SWEEP PERCENTAGE, CAPITAL CALL PERCENTAGES AND BUYER’S
MARGIN PERCENTAGE
|
|
|
|
|
|
|
|
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|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DSCR > 1.30 |
|
DSCR Between 1.10 & 1.30 |
|
DSCR < 1.10 |
|
|
|
|
|
|
CF |
|
|
|
|
|
|
|
|
|
CF |
|
|
|
|
|
|
|
|
|
CF |
|
|
|
|
|
|
|
|
|
|
Sweep |
|
Capital |
|
Margin |
|
Sweep |
|
Capital |
|
Margin |
|
Sweep |
|
Capital |
|
Margin |
Type |
|
LTV |
|
% |
|
Call % |
|
Call % |
|
% |
|
Call % |
|
Call % |
|
% |
|
Call % |
|
Call % |
Whole Loans |
|
|
< 75% |
|
|
|
91.5 |
% |
|
|
92.5 |
% |
|
|
95.0 |
% |
|
|
89.5 |
% |
|
|
91.5 |
% |
|
|
94.5 |
% |
|
|
87.0 |
% |
|
|
89.0 |
% |
|
|
92.0 |
% |
Whole Loans |
|
|
< 80% |
|
|
|
88.0 |
% |
|
|
90.0 |
% |
|
|
93.0 |
% |
|
|
85.5 |
% |
|
|
87.5 |
% |
|
|
90.5 |
% |
|
|
83.5 |
% |
|
|
86.5 |
% |
|
|
89.5 |
% |
Whole Loans |
|
|
< 85% |
|
|
|
87.5 |
% |
|
|
89.5 |
% |
|
|
92.5 |
% |
|
|
85.0 |
% |
|
|
87.0 |
% |
|
|
90.0 |
% |
|
|
80.0 |
% |
|
|
82.0 |
% |
|
|
85.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Junior Interests |
|
|
< 70% |
|
|
|
87.0 |
% |
|
|
89.0 |
% |
|
|
92.0 |
% |
|
|
82.5 |
% |
|
|
85.5 |
% |
|
|
88.5 |
% |
|
|
77.5 |
% |
|
|
80.5 |
% |
|
|
83.5 |
% |
Junior Interests |
|
|
< 75% |
|
|
|
80.0 |
% |
|
|
83.0 |
% |
|
|
86.0 |
% |
|
|
77.5 |
% |
|
|
80.5 |
% |
|
|
83.5 |
% |
|
|
72.5 |
% |
|
|
75.5 |
% |
|
|
78.5 |
% |
Junior Interests |
|
|
< 80% |
|
|
|
73.5 |
% |
|
|
76.5 |
% |
|
|
79.5 |
% |
|
|
71.0 |
% |
|
|
74.0 |
% |
|
|
77.0 |
% |
|
|
68.5 |
% |
|
|
71.5 |
% |
|
|
74.5 |
% |
Junior Interests |
|
|
< 85% |
|
|
|
65.0 |
% |
|
|
69.5 |
% |
|
|
72.5 |
% |
|
|
62.5 |
% |
|
|
67.0 |
% |
|
|
70.0 |
% |
|
|
60.0 |
% |
|
|
64.5 |
% |
|
|
67.5 |
% |
Junior Interests |
|
|
< 90% |
|
|
|
55.0 |
% |
|
|
62.0 |
% |
|
|
65.0 |
% |
|
|
55.0 |
% |
|
|
62.0 |
% |
|
|
65.0 |
% |
|
|
50.0 |
% |
|
|
57.0 |
% |
|
|
60.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mezz |
|
|
< 75% |
|
|
|
80.0 |
% |
|
|
83.0 |
% |
|
|
86.0 |
% |
|
|
77.5 |
% |
|
|
80.5 |
% |
|
|
83.5 |
% |
|
|
72.5 |
% |
|
|
75.5 |
% |
|
|
78.5 |
% |
Mezz |
|
|
< 80% |
|
|
|
71.0 |
% |
|
|
74.0 |
% |
|
|
77.0 |
% |
|
|
66.0 |
% |
|
|
69.0 |
% |
|
|
72.0 |
% |
|
|
61.0 |
% |
|
|
64.0 |
% |
|
|
67.0 |
% |
Mezz |
|
|
< 85% |
|
|
|
60.0 |
% |
|
|
64.5 |
% |
|
|
67.5 |
% |
|
|
57.5 |
% |
|
|
62.0 |
% |
|
|
65.0 |
% |
|
|
55.0 |
% |
|
|
59.5 |
% |
|
|
62.5 |
% |
Mezz |
|
|
< 90% |
|
|
|
50.0 |
% |
|
|
57.0 |
% |
|
|
60.0 |
% |
|
|
50.0 |
% |
|
|
57.0 |
% |
|
|
60.0 |
% |
|
|
47.5 |
% |
|
|
54.5 |
% |
|
|
57.5 |
% |
|
|
|
* |
|
Percentages may be modified to maintain a portfolio average of an approximately BBB
rating (or the equivalent designation). |
Schedule 6
SCHEDULE 6
LIST OF PRE-APPROVED SPECIAL SERVICERS
• |
|
CWCapital Asset Management LLC |
• |
|
Midland Loan Services, Inc. |
• |
|
X.X. Xxxxxx Company, Inc. |
• |
|
Centerline Servicing Inc. |
Schedule 6
EXHIBIT A
FORM OF TRANSACTION REQUEST
, 2007
Xxxxxxx Xxxxx Mortgage Lending, Inc.
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Malay Bansal
Attention: Xxxx Xxxxxx
Attention: Xxxxxxx Xxxxxxx
|
|
|
Re: |
|
Master Repurchase Agreement dated as of June
22, 2007, as amended, (the “Agreement”) by and
among Xxxxxxx Xxxxx Mortgage Lending, Inc.
(the “Buyer”), NY Credit Funding II, LLC (the
“Seller”) and NY Credit Operating Partnership
LP (the “Guarantor”). |
Ladies and Gentlemen:
Pursuant to Section 3 of the Agreement, the Seller hereby requests that the Buyer enter into a
Transaction with the Buyer to purchase the Eligible Asset(s) listed on the Purchased Asset Schedule
attached hereto as Annex 1 and as classified below in accordance with the Agreement:
ASSET CLASS
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Real |
|
|
|
|
|
|
|
|
|
[Commercial |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Estate |
|
|
|
|
|
|
|
|
|
Mortgage |
|
|
[Junior |
|
|
[Mezzanine |
|
|
[CMBS |
|
|
CDO |
|
|
[Bank |
|
|
|
|
|
|
Loans] |
|
|
Interests] |
|
|
Loans] |
|
|
Security] |
|
|
Security] |
|
|
Loans] |
|
|
Total |
|
[Commercial and
Multifamily Assets:] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Purchased
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Original Unpaid
Principal Balance |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Unpaid
Principal Balance |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anticipated Asset Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase Price
Percentage of Asset
Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase Price |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Retail Property:] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Purchased
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Original Unpaid
Principal Balance |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Unpaid
Principal Balance |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anticipated Asset Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase Price
Percentage of Asset
Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase Price |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A-1
ASSET CLASS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Real |
|
|
|
|
|
|
|
|
|
Commercial |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Estate |
|
|
|
|
|
|
|
|
|
Mortgage |
|
|
Junior |
|
|
Mezzanine |
|
|
[CMBS |
|
|
CDO |
|
|
[Bank |
|
|
|
|
|
|
Loans |
|
|
Interests |
|
|
Loans |
|
|
Security] |
|
|
Security] |
|
|
Loan] |
|
|
Total |
|
[Office Building:] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Purchased
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Original Unpaid
Principal Balance |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Unpaid
Principal Balance |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anticipated Asset Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase Price
Percentage of Asset
Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase Price |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Hotel or Motel:] |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Purchased
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Original Unpaid
Principal Balance |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Unpaid
Principal Balance |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anticipated Asset Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase Price
Percentage of Asset
Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase Price |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Anticipated Asset Value: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Purchase Price: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase Date:
|
|
, 2007 |
|
|
In connection with this Transaction Request, the undersigned hereby certifies that: (i) each of the
Transaction Conditions Precedent set forth in the Agreement has been satisfied as of the date
hereof, or will be satisfied at least one Business Day prior to the proposed Purchase Date; and
(ii) attached hereto is (x) the Summary Due Diligence Materials relating to each Eligible Asset
described on Annex 2 hereto, and (y) with respect to each Eligible Asset, a Preliminary
Data Tape containing the data fields set forth in Exhibit C to the Agreement.
A-2
With respect to the representations and warranties of the Seller made pursuant to Section 13
of the Agreement and Schedule 1 thereto, the Seller hereby informs the Buyer of the
exceptions to such representations and warranties, if any, set forth on Annex 4 hereto.
All capitalized terms used but not defined herein shall have the meanings specified in the
Agreement.
|
|
|
|
|
NY CREDIT FUNDING II, LLC |
|
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
A-3
Annex 1 to Exhibit A
PURCHASED ASSET SCHEDULE1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Original |
|
|
Current |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal |
|
|
Principal |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount |
|
|
Amount |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Requested |
|
|
|
|
|
|
|
|
|
|
|
Proposed |
|
|
|
|
|
|
|
|
|
|
of |
|
|
of |
|
|
Anticipated |
|
|
Purchase |
|
|
Requested |
|
|
Requested |
|
|
Repurchase |
|
Loan |
|
Property |
|
|
Name of |
|
|
Purchase |
|
|
Asset |
|
|
Asset |
|
|
Eligible |
|
|
Eligible |
|
|
Asset |
|
|
Price |
|
|
Purchase |
|
|
Purchase |
|
|
Date, if |
|
Number |
|
Name |
|
|
Borrower |
|
|
Date |
|
|
Class |
|
|
Type |
|
|
Asset |
|
|
Asset |
|
|
Value |
|
|
Percentage |
|
|
Price |
|
|
Date |
|
|
any |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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1 |
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Any Purchase Asset Schedule attached electronically to any Transaction Request or
Purchase Confirmation shall be attached as a “pdf” file. |
A-4
Annex 2 to Exhibit A
SUMMARY DILIGENCE MATERIALS
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Asset summary report/credit report, including all pertinent details on each Eligible
Asset, including but not limited to the information pertaining to the respective local
markets with respect to the underlying collateral, borrower/sponsor information,
underwriting information and rent rolls. |
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Underwriting information and rent rolls in Microsoft Excel format. |
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All third party reports, including but not limited to appraisal, engineering,
environmental and seismic reports. |
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The complete Asset File for each Eligible Asset, or, if the Eligible Asset will be a
Table-Funded Purchased Asset, the most recent version of each document contained in the
Asset File. |
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A Preliminary Data Tape in Microsoft Excel format containing the data fields set forth
in Exhibit C to the Agreement. |
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If any debt secured by the underlying collateral has been securitized, the name of the
related securitization and, if available, the offering materials related to such
securitization. |
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Any other information provided by or given to any rating agency regarding the Eligible
Asset. |
A-5
Annex 3 to Exhibit A
TABLE-FUNDED PURCHASED ASSET FINALIZATION ITEMS
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Revisions to the balance, interest rate, maturity date, extension options, grace periods
or other material terms of a promissory note |
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Any changes with respect to underlying collateral, including but not limited to property
and parcels secured by a mortgage, lien type (i.e,. first vs. second, fee vs. leasehold),
title exceptions |
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Any changes with respect to provisions regarding restrictions on additional or mezzanine
financing |
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Any changes to release provisions |
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Any changes to terms of any guaranties, if applicable |
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Any other material adverse change to the terms of the Purchased Asset or the materials
comprising the Asset File |
A-6
Annex 4 to Exhibit A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
A-7
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[Date]
[ ]
Attention: [ ]
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Re:
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Master Repurchase Agreement dated as of June 22, 2007, as
amended, (the “Agreement”) by and among Xxxxxxx Xxxxx
Mortgage Lending, Inc. (the “Buyer”), NY Credit Funding II,
LLC (the “Seller”) and NY Credit Operating
Partnership LP (“Guarantor”). |
Ladies and Gentlemen:
Xxxxxxx Xxxxx Mortgage Lending, Inc. hereby confirms the sale by the Seller and the purchase
by the Buyer, of the Eligible Asset(s) described on the Purchase Asset schedule attached hereto as
Annex 1. This Purchase Confirmation is subject to the following terms and conditions:
ASSET CLASS
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[Real |
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[Commercial |
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Estate |
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Mortgage |
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[Junior |
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[Mezzanine |
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[CMBS |
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CDO |
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[Bank |
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Loans] |
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Interests] |
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Loans] |
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Security] |
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Security] |
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Loan] |
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Total |
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[Commercial and
Multifamily Assets:] |
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Number of Purchased Assets |
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Original Unpaid Principal
Balance |
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Current Unpaid Principal
Balance |
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Asset Value |
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Purchase Price Percentage
of Asset Value |
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Purchase Price |
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[Retail Property:] |
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Number of Purchased Assets |
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Original Unpaid Principal
Balance |
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Current Unpaid Principal
Balance |
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Asset Value |
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Purchase Price Percentage
of Asset Value |
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Purchase Price |
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B-1
ASSET CLASS
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[Real |
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Estate |
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[First Mortgage |
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[Junior |
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[Mezzanine |
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[CMBS |
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CDO |
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[Bank |
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Loans] |
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Interests] |
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Loans] |
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Security] |
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Security] |
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Loan] |
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Total |
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[Office Building:] |
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Number of Purchased Assets |
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Original Unpaid Principal
Balance |
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Current Unpaid Principal
Balance |
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Asset Value |
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Purchase Price Percentage
of Asset Value |
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Purchase Price |
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[Hotel or Motel:] |
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Number of Purchased Assets |
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Original Unpaid Principal
Balance |
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Current Unpaid Principal
Balance |
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Asset Value |
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Purchase Price Percentage
of Asset Value |
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Purchase Price |
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Total Assets:
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Total Asset Value: |
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Total Purchase Price: |
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Purchase Date:
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, 200[] |
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With respect to the representations and warranties of the Seller made pursuant to Section 13
of the Agreement and Schedule 1 thereto, the Buyer hereby acknowledges and consents to the
exceptions to such representations and warranties, if any, set forth on Annex 2 hereto.
All capitalized terms used herein but not otherwise defined shall have the meanings specified
in the Agreement. The Agreement is incorporated by reference into this Purchase Confirmation, and
is made a part hereof as if it were fully set forth herein and as evidenced hereby until all
amounts due in connection with this Transaction are paid in full.
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XXXXXXX XXXXX MORTGAGE LENDING, INC. |
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By: |
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Name: |
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Title: |
B-2
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NY CREDIT FUNDING II, LLC |
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By: |
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Name: |
Title: |
B-3
EXHIBIT C
FORM OF CLOSING DATA TAPE
1. Loan Number
2. Project_Name
3. Master Category
4. Legal Entity
5. SBU
6. Deal
7. Loan_Number
8. Seller
9. Property_Address
10. City
11. State
12. Zip_Code
13. Property_Type
14. Year_Built
15. #of Properties
16. Year Renovated
17. Occupancy
18. Date_Occupancy
19. Units/Pads/Rooms
20. NRSF
21. Appraisal Value
22. Appraisal Date
23. Cross Collateralized
24. Cross_Defaulted
25. Original_Balance
26. Current_Balance (at cut-off)
27. Current_Participated_Balance (at cut-off)
28. Position in Capital Structure
29. First Mortgage Balance Collateral
30. Subordinate Balance Collateral
31. Closed
32. Funding_Date
33. First_Pay_Date
34. Rate
35. Spread Index
36. Monthly Debt Service
37. Loan_Type
38. Interest_Rate_Cap
39. Additional Financing Indicator
40. Remaining I/O Terms (months)
41. Note Rate At Cut-off
42. Interest Accrual Method Code
C-1
43. Prepayment Terms Description
44. First Rate Adjustment Date
45. First Payment Adjustment Date
46. Lifetime Rate Floor
47. Periodic Rate Increase Limit
48. Periodic Rate Decrease Limit
49. Payment Frequency
50. Negative Amortization Allowed (Y/N)
51. Maturity Date At Cut-off
52. Last Extended Maturity Date
53. Exit Fee
54. Ownership_Interest
55. Ground Lease (Y/S/N)
56. Cross-Collateralized Loan Grouping
57. Lien_Position
58. Loan Structure Code
59. Senior Debt Amount at Cut-off
60. Senior Debt Type Code
61. Senior Debt Fully Extended Maturity Date
62. Senior Debt Periodic P&I Payment at Cut-off
63. Senior Debt Fixed or Floating
64. Senior Debt Margin (if floating)
65. Senior Debt Rate (if fixed)
66. Subordinate Debt
67. Junior Debt Amount at Cut-off
68. Junior Debt Type Code
69. Junior Debt Fully Extended Maturity Date
70. Junior Debt Periodic P&I Payment at Cut-off
71. Junior Debt Fixed or Floating
72. Junior Debt Margin (if floating)
73. Junior Debt Rate (if fixed)
74. Loan_Purpose SPE
75. Lockbox
76. Escrows
77. Actual_NOI
78. Actual NOT Period (eg t-12 ended 4-30-04 etc)
79. UW_NOI
80. UW date based on
81. XX_Xxxx
00. UW_NCF
83. UW_NDSC
84. Lockout Expiration Date
85. OriginalTerm
86. AmortTerm
87. Rem_Term
88. Rem_AmTerm
C-2
89. CLTV (Combined LTV all debt)
90. BLTV (Senior debt LTV)
91. McCracken_Rate
92. McCracken_PI
93. Servicing_Fee
94. Credit Score
95. Remaining Funding Obligations
96. Remaining Funding Obligations-Amount
97. Recourse Loan
98. Recourse to:
99. Recourse Provider Net Worth
100. Sponsor (Current)
101. Sponsor Net Worth
102. Loan Revised//Amended YorN
103. Property or loan transferred YorN
104. Transfer Date(if applicable)
C-3
EXHIBIT D
OFFICER’S COMPLIANCE CERTIFICATE
I,
, do hereby certify that I am the [duly elected, qualified and authorized]
[CFO/TREASURER/FINANCIAL OFFICER] of NY Credit Funding II, LLC (“
Seller”). This
Certificate is delivered to you in connection with Section 17b of the
Master Repurchase Agreement
dated as of June 22, 2007, among Seller, NY Credit Operating Partnership LP (“
Guarantor”)
and Xxxxxxx Xxxxx Mortgage Lending, Inc. (as amended from time to time, the “
Agreement”),
as the same may have been amended from time to time. I hereby certify that, as of the date of the
financial statements attached hereto and as of the date hereof, Seller is and has been in
compliance with all the terms of the Agreement and, without limiting the generality of the
foregoing, I certify that:
Financial Covenants of Guarantor. Guarantor has maintained (i) a
Consolidated Net Worth plus Unfunded Capital Commitments greater than or equal to
the Minimum Net Worth Amount, (ii) Consolidated Leverage Ratio of no less than
4.00:1.00, (iii) a Liquid Net Worth greater than or equal to the Minimum Liquid Net
Worth Amount and (iv) a ratio of net cash flow to interest on all of its
Consolidated Total Indebtedness of at least 1.25:1.00.
Financial Statements. The financial statements attached hereto are accurate
and complete, accurately reflect the financial condition of Seller and Guarantor,
and do not omit any material fact as of the date(s) thereof.
Documentation. Seller has performed the documentation procedures required
by its operational guidelines with respect to endorsements and assignments,
including the recordation of assignments, or has verified that such documentation
procedures have been performed by a prior holder of such Mortgage Loan.
Compliance. Seller has observed or performed in all material respects all
of its covenants and other agreements, and satisfied every condition, contained in
the Agreement and the other Program Agreements to be observed, performed and
satisfied by it. If a covenant or other agreement or condition has not been
complied with, Seller shall describe such lack of compliance and provide the date of
any related waiver thereof.
Regulatory Action. Seller is not currently under investigation or, to best
of Seller’s knowledge, no investigation by any federal, state or local government
agency is threatened. Seller has not been the subject of any government
investigation which has resulted in the voluntary or involuntary suspension of a
license, a cease and desist order, or such other action as could adversely impact
Seller’s business. If so, Seller shall describe the situation in reasonable detail
and describe the action that Seller has taken or proposes to take in connection
therewith.
D-1
No Default. No Default or Event of Default has occurred or is continuing.
If any Default or Event of Default has occurred and is continuing, Seller shall
describe the same in reasonable detail and describe the action Seller has taken or
proposes to take with respect thereto, and if such Default or Event of Default has
been expressly waived by Buyer in writing, Seller shall describe the Default or
Event of Default and provide the date of the related waiver.
D-2
IN WITNESS WHEREOF, I have set my hand this day of , .
Acknowledged and Agreed,
NY Credit Operating Partnership LP, as Guarantor
D-3
EXHIBIT E
Certificate of an Officer of the Seller [or [Guarantor]]
The undersigned, of [SELLER] [Guarantor], a [STATE] [corporation] (the
“[Seller] [[Guarantor]]”), hereby certifies as follows:
1. Attached hereto as Exhibit A is a copy of the Certificate of Incorporation of the
[Seller] [[Guarantor]], as certified by the Secretary of State of the State of [STATE].
2. Neither any amendment to the Certificate of Incorporation of the [Seller] [[Guarantor]] nor
any other charter document with respect to the [Seller] [[Guarantor]] has been filed, recorded or
executed since ___, 200___, and no authorization for the filing, recording or execution of
any such amendment or other charter document is outstanding.
3. Attached hereto as Exhibit B is a true, correct and complete copy of the By-laws of
the [Seller] [[Guarantor]] as in effect as of the date hereof and at all times since ,
200___.
4. Attached hereto as
Exhibit C is a true, correct and complete copy of resolutions
adopted by the Board of Directors of the [Seller] [[Guarantor]] by unanimous written consent on
___, 200___(the “
Resolutions”). The Resolutions have not been further amended,
modified or rescinded and are in full force and effect in the form adopted, and they are the only
resolutions adopted by the Board of Directors of the [Seller] [[Guarantor]] or by any committee of
or designated by such Board of Directors relating to the execution and delivery of, and performance
of the transactions contemplated by the
Master Repurchase Agreement dated as of June 22, 2007 (the
“
Repurchase Agreement”), between the Seller, the Guarantor and Xxxxxxx Xxxxx Mortgage
Lending, Inc. (the “
Buyer”) and the Custodial Agreement dated as of June 22, 2007, among
the Seller, the Buyer and LaSalle Bank National Association, as custodian (the
“
Custodian”).
5. The Repurchase Agreement, the Custodial Agreement and Guaranty are substantially in the
form approved by the Resolutions or pursuant to authority duly granted by the Resolutions.
6. The undersigned, as a officers of the [Seller] [[Guarantor]] or as attorney-in-fact, are
authorized to and have signed manually the Repurchase Agreement, the Custodial Agreement, Guaranty
or any other document delivered in connection with the transactions contemplated thereby, were duly
elected or appointed, were qualified and acting as such officer or attorney-in-fact at the
respective times of the signing and delivery thereof, and were duly authorized to sign such
document on behalf of the [Seller] [[Guarantor]], and the signature of each such person appearing
on any such document is the genuine signature of each such person.
E-1
IN WITNESS WHEREOF, the undersigned has hereunto executed this Certificate as of the day
of , 200_.
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[Seller] [[Guarantor]], as [Seller] [[Guarantor]] |
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By: |
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Name: |
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Title: |
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E-2
Exhibit C to Officer’s Certificate of the Seller or [Guarantor]
CORPORATE RESOLUTIONS OF SELLER [OR GUARANTOR]
Action of the Board of Directors
Without a Meeting Pursuant to
Section of
The undersigned, being the directors of [ ], a [corporation] (the
“Seller”), do hereby consent to the taking of the following action without a meeting and do
hereby adopt the following resolutions by written consent pursuant to Section of
of the State of :
WHEREAS, it is in the best interests of the Seller to transfer from time to time to Buyer
Mortgage Loans against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to
transfer to Seller such Mortgage Loans at a date certain or on demand, against the transfer of
funds by Seller pursuant to the terms of the Repurchase Agreement (as defined below).
NOW, THEREFORE, be it
RESOLVED, that the execution, delivery and performance by the Seller of the
Master Repurchase
Agreement (the “
Repurchase Agreement”) to be entered into by the Seller and Xxxxxxx Xxxxx
Mortgage Lending, Inc., as Buyer, substantially in the form of the draft dated June 22, 2007,
attached hereto as
Exhibit A, are hereby authorized and approved and that the [President]
or any [Vice President] (collectively, the “
Authorized Officers”) of the Seller be and each
of them hereby is authorized and directed to execute and deliver the Repurchase Agreement to the
Buyer with such changes as the officer executing the same shall approve, his execution and delivery
thereof to be conclusive evidence of such approval;
RESOLVED, that the execution, delivery and performance by the Seller of the Custodial
Agreement (the “Custodial Agreement”) to be entered into by the Seller, the Buyer and
LaSalle Bank National Association, as custodian (the “Custodian”) substantially in the form
of the draft dated June 22, 2007, attached hereto as Exhibit B, are hereby authorized and
approved and that the Authorized Officers of the Seller be and each of them hereby is authorized
and directed to execute and deliver the Custodial Agreement to the Buyer and Custodian with such
changes as the officer executing the same shall approve, his execution and delivery thereof to be
conclusive evidence of such approval;
E-3
RESOLVED, that the Authorized Officers hereby are, and each hereby is, authorized to execute
and deliver all such aforementioned agreements on behalf of the Seller and to do or cause to be
done, in the name and on behalf of the Seller, any and all such acts and things, and to execute,
deliver and file in the name and on behalf of the Seller, any and all such agreements,
applications, certificates, instructions, receipts and other documents and instruments, as such
Authorized Officer may deem necessary, advisable or appropriate in order to carry out the purposes
of the foregoing resolutions.
RESOLVED, that the proper officers, agents and counsel of the Seller are, and each of such
officers, agents and counsel is, hereby authorized for and in the name and on behalf of the Seller
to take all such further actions and to execute and deliver all such other agreements, instruments
and documents, and to make all governmental filings, in the name and on behalf of the Seller and
such officers are authorized to pay such fees, taxes and expenses, as advisable in order to fully
carry out the intent and accomplish the purposes of the resolutions heretofore adopted hereby.
Dated as of: ___, 200_
E-4
EXHIBIT F
FORM OF SERVICER NOTICE
[Date]
[ ], as Servicer
[ADDRESS]
Attention:
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Re:
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Master Repurchase Agreement, dated as of June 22, 2007 (the
“Repurchase Agreement”), by and between NY CREDIT FUNDING II, LLC (the
“Seller”), NY Credit Operating Partnership LP (“Guarantor”) and Xxxxxxx Xxxxx
Mortgage Lending, Inc. (the “Buyer”). |
Ladies and Gentlemen:
[ ] (the “Servicer”) is servicing certain mortgage loans for Seller
pursuant to that certain Servicing Agreement between the Servicer and Seller. Pursuant to the
Repurchase Agreement between Buyer and Seller, the Servicer is hereby notified that Seller has
pledged to Buyer certain mortgage loans which are serviced by Servicer which are subject to a
security interest in favor of Buyer.
Upon the receipt of written notice from Buyer that a default or an event of default has occurred
and is continuing under the Repurchase Agreement (a “Notice of Event of Default”) in which
Buyer shall identify the mortgage loans which are then pledged to Buyer under the Repurchase
Agreement (the “Mortgage Loans”), the Servicer shall segregate all amounts collected on
account of such Mortgage Loans, hold them in trust for the sole and exclusive benefit of Buyer, and
remit such collections in accordance with Buyer’s written instructions. Following such Notice of
Event of Default, Servicer shall follow the instructions of Buyer with respect to the Mortgage
Loans, and shall deliver to Buyer any information with respect to the Mortgage Loans reasonably
requested by Buyer.
Notwithstanding any contrary information which may be delivered to the Servicer by Seller, the
Servicer may conclusively rely on any information or Notice of Event of Default delivered by Buyer,
and Seller shall indemnify and hold the Servicer harmless for any and all claims asserted against
it for any actions taken in good faith by the Servicer in connection with the delivery of such
information or Notice of Event of Default.
F-1
Please acknowledge receipt of this instruction letter by signing in the signature block below and
forwarding an executed copy to Buyer promptly upon receipt. Any notices to Buyer should be
delivered to the following addresses: Xxxxxxx Xxxxx Mortgage Lending, Inc., c/o Merrill Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000,
Attention: Malay Bansal (Facsimile (000) 000-0000), with copies to Xxxx Xxxxxx (Facsimile (000)
000-0000) and Xxxxxxx Xxxxxxx (Facsimile (000) 000-0000). (000) 000-0000
Very truly yours,
NY CREDIT FUNDING II, LLC
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By:
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Name: |
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Title: |
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ACKNOWLEDGED: |
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[ ], |
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as Servicer |
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By: |
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Title: |
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Telephone: |
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Facsimile: |
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F-2
EXHIBIT G
FORM OF ASSET FILE
With respect to each Purchased Asset which is a Whole Loan:
(1) The original Mortgage Note bearing all intervening endorsements, endorsed
“Pay to the order of without recourse” and signed in the name of the last endorsee
(the “Last Endorsee”) by an authorized Person (in the event that the Purchased Asset
was acquired by the Last Endorsee in a merger, the signature must be in the
following form: “[Last Endorsee], successor by merger to [name of predecessor]”; in
the event that the Purchased Asset was acquired or originated by the Last Endorsee
while doing business under another name, the signature must be in the following
form: “[Last Endorsee], formerly known as [previous name]”); or, in the event Seller
purchased the applicable Whole Loan and the seller (or a predecessor-in-interest to
such seller) of such Whole Loan lost any of the Mortgage Notes evidencing the
applicable Whole Loan, a lost note affidavit, with a copy of the applicable Mortgage
Note attached thereto, if the original Mortgage Note shall have been lost.
(2) The original of any guarantee, loan agreement or indemnity executed in
connection with the Mortgage Note (if any).
(3) The original Mortgage, or a certified copy thereof from the applicable
recorder’s office, in each case with evidence of recording thereon, or a copy of the
original Mortgage together with an officer’s certificate of Seller certifying that
such copy represents a true and correct copy of the original and that such original
has been submitted for recordation in the appropriate governmental recording office
of the jurisdiction where the Mortgaged Property is located.
(4) The originals of all assumption, modification, consolidation or extension
agreements, or a certified copy thereof from the applicable recorder’s office, in
each case with evidence of recording thereon, or copies of such agreements together
with an officer’s certificate of Seller certifying that such copies represent true
and correct copies of the originals and that such originals have each been submitted
for recordation in the appropriate governmental recording office of the jurisdiction
where the Mortgaged Property is located.
(5) The original Assignment of Mortgage to Buyer or its designee, or in blank,
as Buyer requires, for each Purchased Asset evidenced by a Mortgage Note secured by
a Mortgage, in form and substance acceptable for recording and signed in the name of
the Last Endorsee (in the event that such Purchased Asset was acquired by the Last
Endorsee in a merger, the signature must be in the following form: “[Last Endorsee],
successor by merger to [name of predecessor]”; in the event that such Purchased
Asset was acquired or originated
G-1
while doing business under another name, the signature must be in the following
form: “[Last Endorsee], formerly known as [previous name]”).
(6) The originals of all intervening assignments of mortgage, or a certified
copy thereof from the applicable recorder’s office, in each case with evidence of
recording thereon, or copies of such assignments together with an officer’s
certificate of Seller certifying that such assignments represent true and correct
copies of the originals and that such originals have each been submitted for
recordation in the appropriate governmental recording office of the jurisdiction
where the Mortgaged Property is located.
(7) The original attorney’s opinion of title and abstract of title or the
original mortgagee title insurance policy, or if the original mortgagee title
insurance policy has not yet been issued, the irrevocable marked commitment to issue
the same, or a final pro-forma title policy issued by the applicable title company.
(8) the original of any cash management agreement, security agreement, chattel
mortgage or equivalent document executed in connection with the Purchased Asset, if
any.
(9) The original of any security agreement, chattel mortgage or equivalent
document executed in connection with the Purchased Asset.
(10) The original assignment of leases and rents in blank, if any, or a
certified copy of such assignment of leases and rents from the applicable recorder’s
office, in each case, with evidence of recording thereon, or a copy thereof together
with an officer’s certificate of Seller, certifying that such copy represents a true
and correct copy of the original that has been submitted for recordation in the
appropriate governmental recording office of the jurisdiction where the Mortgaged
Property is located.
(11) The originals of all intervening assignments of assignment of leases and
rents, if any, or copies of the intervening assignments, in each case, with evidence
of recording thereon.
(12) A copy of the UCC-1 financing statements and all necessary UCC-3
continuation statements with evidence of filing thereon or copies thereof certified
by Seller to have been sent for filing, and UCC-3 assignments from Seller to Buyer
or its designee, which UCC-3 assignments shall be in form and substance acceptable
for filing.
(13) An environmental indemnity agreement (if any).
(14) An omnibus assignment in blank (if any).
(15) A disbursement letter from the Mortgagor to the original mortgagee (if
any).
G-2
(16) A survey of the Mortgaged Property (if any) as accepted by the title
company for issuance of the Title Policy.
(17) A copy of the Mortgagor’s enforceability/due authority opinion (and any
other opinions relating to the applicable Purchased Asset) of counsel (if any).
(18) An assignment of permits, contracts and agreements (if any).
(19) All original letters of credit and originals or certified copies of any
interest rate cap or swap agreements relating to such Purchased Asset.
(20) An assignment of any interest rate cap agreement or other interest rate
protection agreement entered into by the Mortgagor or its affiliates, with the
counterparty’s written consent to such assignment and agreement not to amend or
modify the underlying cap or other interest rate protection agreement and, subject
to the express terms of any participation agreement or intercreditor agreement, to
make all payments thereunder to Buyer as assignee.
(21) In respect of any Purchased Asset which is secured by a Hotel or Motel,
any franchise or reservation system agreement and any franchise “comfort letter.”
(22) In respect of any Purchased Asset as to which the Mortgaged Property or
underlying real property, as applicable, consists of a leasehold interest, the
ground lease, memorandum or ground lease and ground lease consent and/or estoppel.
(23) The related Irrevocable Instruction Letter.
(24) Such other documents, agreements or instruments as shall be reasonably
requested by Buyer.
With respect to each Purchased Asset which is a Mezzanine Loan:
(1) The original Mezzanine Note signed in connection with the Purchased Asset
bearing all intervening endorsements, endorsed “Pay to the order of without
recourse” and signed in the name of the Last Endorsee by an authorized Person (in
the event that the Mezzanine Note was acquired by the Last Endorsee in a merger, the
signature must be in the following form: “[Last Endorsee], successor by merger to
[name of predecessor]”; in the event that the Purchased Asset was acquired or
originated by the Last Endorsee while doing business under another name, the
signature must be in the following form: “[Last Endorsee], formerly known as
[previous name]”); or a lost note affidavit, with a copy of the applicable Mezzanine
Note attached thereto, if the original Mezzanine Note shall have been lost.
G-3
(2) The original of the loan agreement and the guarantee, if any, executed in
connection with such Purchased Asset.
(3) The original intercreditor or loan coordination agreement, if any, executed
in connection with such Purchased Asset.
(4) The original mezzanine pledge agreement or security agreement, pursuant to
which the pledged ownership interests have been transferred to, or otherwise made
subject to a first priority security interest in favor of Seller, executed in
connection with the Purchased Asset.
(5) Copies of all documents relating to the formation and organization of the
borrower with respect to such Purchased Asset, together with all consents and
resolutions delivered in connection with such borrower’s obtaining the Purchased
Asset.
(6) Copies of all other documents and instruments, if any, evidencing,
guaranteeing, insuring or otherwise constituting or modifying or otherwise affecting
such Purchased Asset, or otherwise executed or delivered in connection with, or
otherwise relating to, such Purchased Asset, including all documents establishing or
implementing any lockbox pursuant to which Seller is entitled to receive any
payments from cash flow of the underlying real property to the extent Seller
actually has copies of such documents in its possession.
(7) An original executed assignment of Purchased Asset sufficient to transfer
to Buyer all of Seller’s rights, title and interest in and to the Purchased Asset.
(8) A copy of the borrower’s enforceability/due authority opinion (and any
other opinions relating to the applicable Purchased Asset) of counsel (if any).
(9) A copy of the UCC-1 financing statements and all necessary UCC-3
continuation statements with evidence of filing thereon or copies thereof certified
by Seller to have been sent for filing, and UCC-3 assignments from Seller to Buyer
or its designee, which UCC-3 assignments shall be in form and substance acceptable
for filing.
(10) The original certificates representing the related Pledged Equity (if
any).
(11) Original stock powers relating to each Pledged Equity, executed in blank,
if an original stock certificate is provided.
(12) Copy of the Assignment of any management agreements, agreements among
equity interest holders or other material contracts.
G-4
(13) If no original stock certificate or other instrument is provided, evidence
satisfactory to Buyer that the Pledged Equity has been transferred to, or otherwise
made subject to a first priority security interest in favor of, Seller.
(14) To the extent in Seller’s possession, copies of all material loan
documents and related closing documents pertaining to the closing of the senior
indebtedness incurred or owed by the owner of the real property with respect to
which the borrower of the Mezzanine Loan has pledged its ownership interests,
whether directly or indirectly through intermediate entities, including without
limitation the organizational documents of such owner. Notwithstanding the
foregoing, Seller shall deliver to Buyer a copy of the (i) senior loan agreement (if
any), (ii) senior promissory note, (iii) senior mortgage, (iv) senior cash
management agreement (if any); and (v) senior assignment of leases and rents.
(15) An assignment of any interest rate cap agreement or other interest rate
protection agreement entered into by the borrower under the Purchased Asset or its
affiliates with respect to the Purchased Asset, with the counterparty’s written
consent to such assignment and agreement not to amend or modify the underlying cap
or other interest rate protection agreement and to make all payments thereunder to
Buyer as assignee.
(16) The original environmental indemnity agreement, if any, executed in
connection with the Purchased Asset.
(17) The original omnibus assignment in blank, if any, for each Purchased Asset
in from and substance reasonably acceptable to Buyer and sufficient to transfer to
Buyer all of Seller’s rights, title and interest in and to the Purchased Asset,
signed in the name of Seller.
(18) The related Irrevocable Instruction Letter.
(19) Such other documents, agreements or instruments as shall be reasonably
requested by Buyer.
With respect to each Purchased Asset constituting a Junior Interest (including a junior or “B”
loan)
(1) original counterparts, if available, and otherwise certified copies of all
of the following documents:
(2) Either, (i) the underlying Mortgage Note evidencing the Junior Interest
bearing all intervening endorsements, endorsed “Pay to the order of
without recourse” and signed in the name of the last endorsee (the
“Last Endorsee”) by an authorized Person (in the event that the Mortgage Loan was
acquired by the Last Endorsee in a merger, the signature must be in the following
form: “[Last Endorsee], successor by merger to [name of predecessor]”; in the event
that the Mortgage Loan was acquired or originated by
G-5
the Last Endorsee while doing business under another name, the signature must
be in the following form: “[Last Endorsee], formerly known as [previous name]”); or
(ii) the applicable participation certificate evidencing Seller’s Junior Interest
together with an assignment of such participation certificate to Buyer. If the
Junior Interest is not evidenced by an original junior Mortgage Note, as
contemplated by subclause (i) above, Seller shall then deliver a copy of the
executed Mortgage Note and all endorsements shall be provided, which will show the
current holder thereof.
(3) Any guarantee executed in connection with the Mortgage Note (if any).
(4) A copy of the underlying Mortgage, or a certified copy thereof from the
applicable recorder’s office, in each case with evidence of recording thereon, or an
officer’s certificate of Seller certifying that such copy of the underlying Mortgage
represents a true and correct copy of the original.
(5) Copies of all assumption, modification, consolidation or extension
agreements, if any, or a certified copy thereof from the applicable recorder’s
office, in each case with evidence of recording thereon, or an officer’s certificate
of Seller certifying that such represent true and correct copies of the originals
and that such originals.
(6) Copies of all intervening assignments of mortgage, if any, or a certified
copy thereof from the applicable recorder’s office, in each case with evidence of
recording thereon, or an officer’s certificate of Seller certifying that such
represent true and correct copies of the originals.
(7) The attorney’s opinion of title and abstract of title or the mortgagee
title insurance policy, or if the original mortgagee title insurance policy has not
been issued, the irrevocable marked commitment to issue the same or a final
pro-forma title policy issued by the applicable title company.
(8) Any security agreement, chattel mortgage or equivalent document executed in
connection with such Purchased Asset.
(9) A copy of the assignment of leases and rents, if any, with evidence of
recording thereon, or any officer’s certificate of Seller, certifying that such copy
represents a true and correct copy of the original that has been submitted for
recordation in the appropriate governmental recording office of the jurisdiction
where the underlying Mortgaged Property is located.
(10) Copies of all intervening assignments of assignment of leases and rents,
if any, with evidence of recording thereon.
(11) A copy of the UCC-l financing statements and all necessary UCC-3
continuation statements with evidence of filing thereon or copies thereof.
G-6
(12) An environmental indemnity agreement (if any).
(13) An omnibus assignment in blank (if any) with respect to all of Seller’s
right, title and interest in and to the Junior Interest.
(14) A disbursement letter from the Mortgagor to the original mortgagee (if
any).
(15) A survey of the underlying Mortgaged Property (if any) as accepted by the
title company for issuance of the Title Policy.
(16) A copy of the Mortgagor’s enforceability/due authority opinion (and any
other opinions relating the applicable Purchased Asset) of counsel (if any).
(17) An assignment of permits, contracts and agreements (if any).
(18) An assignment of any interest rate cap agreement or other interest rate
protection agreement entered into by the Mortgagor or its affiliates, with the
counterparty’s written consent to such assignment and agreement not to amend or
modify the underlying cap or other interest rate protection agreement and, if
permitted pursuant to the express terms of any participation agreement, co-lender
agreement or intercreditor agreement, to make all payments due Seller thereunder to
Buyer as assignee.
(19) the original of any participation agreement, co-lender agreement or
intercreditor agreement and/or servicing agreement executed in connection with the
Purchased Asset, together with all intervening assignments.
(20) The related Irrevocable Instruction Letter.
(21) Such other documents, agreements or instruments as shall be reasonably
requested by Buyer.
With respect to each Purchased Asset constituting a Bank Loan:
(1) the related Bank Loan Governing Agreements;
(2) the related Irrevocable Instruction Letter;
(3) the related original note (to the extent Notes have been issued under the
related Bank Loan Governing Agreement), endorsed in blank by original signature of
the Borrower, and an original assignment of such Bank Loan from Seller to Buyer, as
required under the related Bank Loan Governing Agreement; and
G-7
(4) any additional documents identified in the related Transaction Request.
From time to time, Seller shall forward to the Custodian additional original documents or
additional documents evidencing any assumption, modification, consolidation or extension of a
Purchased Asset approved in accordance with the terms of this Agreement, and upon receipt of any
such other documents, the Custodian shall hold such other documents as Buyer shall request from
time to time. With respect to any documents which have been delivered or are being delivered to
recording offices for recording and have not been returned to Seller in time to permit their
delivery hereunder at the time required, in lieu of delivering such original documents, Seller
shall deliver to Buyer a true copy thereof with an officer’s certificate certifying that such copy
is a true, correct and complete copy of the original, which has been transmitted for recordation.
Seller shall deliver such original documents to the Custodian promptly when they are received. The
Asset Files shall be maintained in accordance with the Custodial Agreement. Any Asset Files not
required to be delivered to Buyer or its designee (including the Custodian) are and shall be held
in trust by Seller or its designee for the benefit of Buyer as the owner thereof. Seller or its
designee shall maintain a copy of the Asset File. The temporary possession of any documents
required to be included in the Asset File by Seller under any provision hereof is at the will of
Buyer for the sole purpose of servicing the related Purchased Asset, and such retention and
possession by Seller or its designee is in a custodial capacity only. The books and records
(including, without limitation, any computer records or tapes) of Seller and the applicable
Servicer shall be marked appropriately to reflect clearly the sale of the related Purchased Asset
to Buyer.
G-8
EXHIBIT H
FORM OF DISTRIBUTION WORKSHEET
1. Trading Account
2. Security Number
3. Loan #
4. Asset Name
5. Asset Type
6. Start Date
7. End Date
8. Days of Interest Applied
9. Pricing Rate
10. All-in Rate
11. Current Advanced Amount
12. Total Interest Due
13. Total Interest Received w/ Loan Payment
H-1
EXHIBIT I
FORM OF SERVICING REPORT
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NY |
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Credit |
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Property/ |
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Rounding |
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Gross |
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Beginning |
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Service |
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MLS |
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NY Credit |
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Non Cash |
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Ending |
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Days |
MLS |
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Borrower |
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Due |
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LIBOR |
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LIBOR |
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Interest |
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Principal |
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Principal |
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Gross |
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Fee |
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Service |
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Net |
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Buyer |
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Total |
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Principal |
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Principal |
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in |
Loan # |
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Date |
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Rate |
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Rate |
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Spread |
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Rate |
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Balance |
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Payment |
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Interest |
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Rate |
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Fee |
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Interest |
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Remittance |
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Remittance |
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Adj |
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Balance |
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Accrual |
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Buyer Portion |
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Bank Interest due
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NY Credit Totals |
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I-1
EXHIBIT J
FORM OF IRREVOCABLE INSTRUCTION LETTER
NY CREDIT FUNDING II, LLC
[ ]
[ ], 2007
To: The Addressees on Schedule A hereto
Re: Irrevocable Notice of Redirection of Payments of [Asset]
To Whom It May Concern:
Please be advised that NY CREDIT FUNDING II, LLC (“NY Credit”) currently owns a $[ ]
interest in the [Asset]. Such interest is pledged pursuant to a repurchase agreement to Xxxxxxx
Xxxxx Mortgage Lending, Inc. (“Merrill”), which is therefore a “Loan Pledgee” (or the equivalent
term) pursuant to the related intercreditor, participation or credit agreement.
NY Credit has entered into a new loan repurchase facility with Merrill. As such, from and after
the date hereof, you are hereby authorized and directed to remit all payments for the portion of NY
Credit’s entire interest in the above-referenced asset stated in this notice pursuant to the
following wire instructions:
[Wire instructions]
Notwithstanding anything herein to the contrary, this instruction letter shall only apply to the
above-referenced portion of the loan interest held by NY Credit, and not to any other portion of
the above-referenced loan interest held by affiliates of NY Credit.
This instruction letter is irrevocable absent the prior written consent of Xxxxxxx.
[SIGNATURE ON FOLLOWING PAGE]
J-1
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Very truly yours, |
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NY CREDIT FUNDING II, LLC |
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By: |
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Name: |
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Title: |
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J-2
EXHIBIT K
APPROVED SPECIAL SERVICERS
K-1