Exhibit 10.25
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MASTER REPURCHASE AGREEMENT
DATED AS OF MARCH 4, 2005
AMONG
CAPITAL TRUST, INC., AS SELLER
AND
BANK OF AMERICA, N.A., AS BUYER
AND
BANC OF AMERICA SECURITIES LLC, AS BUYER
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TABLE OF CONTENTS
Page
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1. DEFINITIONS............................................................1
2. INITIATION; CONFIRMATION; TERMINATION; FEES...........................15
3. MARGIN MAINTENANCE....................................................22
4. INCOME PAYMENTS AND PRINCIPAL PAYMENTS................................22
5. SECURITY INTEREST.....................................................24
6. PAYMENT, TRANSFER AND CUSTODY.........................................26
7. SALE, TRANSFER, HYPOTHECATION OR PLEDGE OF PURCHASED
SECURITIES............................................................33
8. REPRESENTATIONS.......................................................33
9. NEGATIVE COVENANTS OF SELLER..........................................37
10. AFFIRMATIVE COVENANTS OF SELLER.......................................38
11. EVENTS OF DEFAULT; REMEDIES...........................................41
12. RECORDING OF COMMUNICATIONS...........................................46
13. SINGLE AGREEMENT......................................................46
14. NOTICES AND OTHER COMMUNICATIONS......................................47
15. ENTIRE AGREEMENT; SEVERABILITY........................................47
16. NON-ASSIGNABILITY.....................................................47
17. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.........................48
18. GOVERNING LAW.........................................................49
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19. NO WAIVERS, ETC.......................................................49
20. USE OF EMPLOYEE PLAN ASSETS...........................................49
21. INTENT................................................................50
22. DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS....................50
23. NO RELIANCE...........................................................51
24. INDEMNITY.............................................................51
25. DUE DILIGENCE.........................................................52
26. SERVICING.............................................................53
27. MISCELLANEOUS.........................................................53
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EXHIBITS
EXHIBIT I-A Form of Confirmation
EXHIBIT I-B Form of UCC Financing Statement
EXHIBIT I-C Form of UCC Financing Statement Amendment
EXHIBIT II Authorized Representatives of Seller
EXHIBIT III Monthly Servicer Report
EXHIBIT IV Form of Custodial Delivery
EXHIBIT V Form of Power of Attorney
EXHIBIT VI Representations and Warranties Regarding Individual
Purchased Loans
EXHIBIT VII Purchased Loan Information
EXHIBIT VIII Advance Procedure
EXHIBIT IX Form of Re-Direction Letter
EXHIBIT X Form of Servicer Notice and Agreement
EXHIBIT XI Form of Bailee Agreement
EXHIBIT XII Form of Request for Transaction
EXHIBIT XIII Form of Notice of Prepayment
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MASTER REPURCHASE AGREEMENT
MASTER REPURCHASE AGREEMENT dated as of March 4, 2005 (as
amended, restated, supplemented or otherwise modified and in effect from time to
time, this "Agreement"), between CAPITAL TRUST, INC., as seller, BANC OF AMERICA
SECURITIES LLC, as buyer and BANK OF AMERICA, N.A., as buyer. From time to xxxx
Xxxxxx (defined below) and Buyers (defined below) may enter into transactions,
subject to the terms and conditions hereof, pursuant to which Seller agrees to
sell to Buyers and Buyers agree to purchase from Seller certain Eligible Assets
(defined below) against payment by Buyers of a purchase price, with a
simultaneous agreement by Buyers to sell to Seller and Seller to repurchase from
Buyers such Eligible Assets at a date certain, as specified in the related
Confirmation (defined below), against payment by Seller of a repurchase price
determined in accordance herewith.
NOW THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS
The following capitalized terms shall have the respective
meanings set forth below.
"Acceptable Appraisal" shall mean, with respect to a Purchased
Loan or a loan which Seller proposes to become a Purchased Loan, an appraisal
acceptable to Buyers.
"Accepted Servicing Practices" shall mean with respect to any
Purchased Loan, those mortgage servicing practices of prudent mortgage loan
servicers which service mortgage or other commercial loans of the same type as
such Purchased Loan in the jurisdiction where the related Mortgaged Property is
located.
"Act of Insolvency" shall mean with respect to any party, (i) the
commencement by such party as debtor of any case or proceeding under any
bankruptcy, insolvency, reorganization, liquidation, moratorium, dissolution,
delinquency or similar law, or such party seeking the appointment or election of
a receiver, conservator, trustee, custodian or similar official for such party
or any substantial part of its property, or the convening of any meeting of
creditors for purposes of commencing any such case or proceeding or seeking such
an appointment or election, (ii) the commencement of any such case or proceeding
against such party, or another seeking such an appointment or election, or the
filing against a party of an application for a protective decree under the
provisions of the Securities Investor Protection Act of 1970, which (A) is
consented to or not timely contested by such party, (B) results in the entry of
an order for relief, such an appointment or election, the issuance of such a
protective decree or the entry of an order having a similar effect, or (C) is
not dismissed within fifteen (15) days, (iii) the making by such party of a
general assignment for the benefit of creditors, or (iv) the admission in
writing by such party of such party's inability to pay such party's debts as
they become due.
"Adjusted Total Indebtedness" shall mean Indebtedness less
liabilities of Seller consisting of (i) Indebtedness in respect of which Seller
has sold a participation interest to a third
party ("participated debt"), to the extent that the participated debt is not
reduced on the balance sheet of Seller under applicable accounting principles by
the amount of such participation interest, (ii) Indebtedness issued in
connection with a securitization transaction that is (A) non-recourse to Seller
(other than for breaches of representations and warranties) and (B) carried as a
liability on the balance sheet of Seller under applicable accounting principles
by reason of Seller owning a junior security issued in connection with such
securitization transaction, and (iii) Indebtedness of a fund that is managed by
Seller where (A) Seller owns less than 50% of the equity of such fund, (B) such
Indebtedness is non-recourse to Seller and (C) such Indebtedness is carried as a
liability on the balance sheet of Seller under applicable accounting principles.
"Affiliate" shall mean, when used with respect to any specified
Person, any other Person directly or indirectly controlling, controlled by, or
under common control with, such Person. Control shall mean the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise and "controlling" and "controlled" shall
have meanings correlative thereto; provided that, any Person which owns directly
or indirectly 10% or more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or 10% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed to control such
corporation or other Person.
"Agreement" shall have the meaning specified in the introductory
paragraph of this Agreement.
"Alternative Rate" shall have the meaning specified in Section
2.9 of this Agreement.
"Alternative Rate Transaction" shall mean, with respect to any
Pricing Rate Period, any Transaction with respect to which the Pricing Rate for
such Pricing Rate Period is determined with reference to the Alternative Rate.
"Applicable Spread" shall mean, with respect to a Transaction,
(i) so long as no Event of Default shall have occurred and be
continuing, the incremental per annum rate (expressed as a number of
"basis points", each basis point being equivalent to 1/100 of 1%)
specified in the Letter Agreement as being the "Applicable Spread", and
(ii) after the occurrence and during the continuance of an Event
of Default, the applicable incremental per annum rate described in
clause (i) of this definition, plus 300 basis points (3.0%).
"Approved Assignee" shall mean any Person satisfying the minimum
capital, net worth and/or similar measures of financial wherewithal required to
qualify as a permitted transferee of the Purchased Assets pursuant to the terms
of the Purchased Loan Documents, the Securitization Documents and applicable
securities laws.
"Asset Margin Deficit" shall have the meaning provided in Section
3.1.
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"Assignment of Leases" shall mean with respect to any Purchased
Loan that is a Mortgage Loan, any assignment of leases, rents and profits or
equivalent instrument, whether contained in the related Mortgage or executed
separately, assigning to the holder or holders of such Mortgage all of the
related Mortgagor's interest in the leases, rents and profits derived from the
ownership, operation, leasing or disposition of all or a portion of the related
Mortgaged Property as security for repayment of such Purchased Loan.
"Assignment of Mortgage" shall mean, with respect to any
Mortgage, an assignment of the mortgage, notice of transfer or equivalent
instrument in recordable form, sufficient under the laws of the jurisdiction
wherein the related property is located to reflect the assignment and pledge of
the Mortgage.
"B-Notes" shall mean (a) junior notes in commercial mortgage
loans having an "A/B" structure, (b) junior or senior or pari-passu
participations in performing commercial mortgage loans, or (c) participations in
instruments of a type referred to in the preceding clause.
"Bailee" shall mean Paul, Hastings, Xxxxxxxx & Xxxxxx LLP or such
other third party as Buyer may approve from time to time.
"Bailee Agreement" shall mean the Bailee Agreement among Seller,
Buyer and Bailee substantially in the form of Exhibit XI hereto.
"Bailee's Trust Receipt" shall mean a trust receipt in the form
of Attachment 2 to the Bailee Agreement to be provided by Bailee to Buyers
pursuant to the Bailee Agreement.
"Business Day" shall mean a day other than (i) a Saturday or
Sunday, or (ii) a day in which the New York Stock Exchange or banks in the State
of New York are authorized or obligated by law or executive order to be closed.
When used with respect to a Reset Date, a "Business Day" shall mean a day on
which banks in London, England are closed for interbank or foreign exchange
transactions.
"Buyers" shall refer collectively to Banc of America Securities
LLC and Bank of America, N.A., and any of their respective successors.
"Capital Lease" shall mean, as applied to any Person, any lease
of any property (whether real, personal or mixed) by that Person or entity as
lessee that, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of that Person or entity.
"Cash Management Account" shall mean a segregated interest
bearing account, in the name of Buyers, established at the Depository.
"CDO Closing Date" shall mean the effective date of the CDO
transaction of Capital Trust RE CDO 2005-1, Ltd., a [Cayman Islands Exempted
Company].
"Change of Control" shall mean the occurrence of (i) a change of
a majority of the members of the board of directors of Seller within any twelve
(12) month period without prior consent from Buyers; or (ii) a merger,
consolidation or other transaction in which a Person who is not an Affiliate and
has not been previously approved by Buyers, acquires in excess of
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50% of the voting common equity of Seller (a "Merger"). Notwithstanding the
foregoing, in the event that clause (i) or (ii) is the result of a Merger with a
Person that, in the good faith sole discretion of Buyers, has an equal or
superior credit profile to Seller, it shall not constitute a "Change of
Control".
"Closing Date" shall mean March 4, 2005.
"CMBS" shall mean performing commercial mortgage-backed
securities that (A) either (1) have a rating of at least "B+" from Standard and
Poor's and/or Fitch Inc., and/or "B1" from Moody's, or (2) are unrated
securities, in each case which are acceptable to Buyers in their sole discretion
and (B) are denominated in United States Dollars.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Collateral" has the meaning given to that term in Section 5.2 of
this Agreement.
"Collection Period" shall mean, with respect to each Remittance
Date, the period beginning on but excluding the Cut-off Date relating to the
immediately preceding Remittance Date and continuing to and including the
Cut-off Date relating to such Remittance Date.
"Confirmation" shall have the meaning specified in Section 2.1 of
this Agreement.
"Credit Approval Memo" shall mean the collateral summary prepared
in accordance with the normal credit review procedures of Seller for submission
to each Rating Agency with respect to each Eligible Asset for contribution to
the CDO under the CDO transaction, substantially in the form provided to Buyers
prior to the Closing Date or in such other form as shall be acceptable to
Buyers.
"Custodial Agreement" shall mean the Custodial Agreement, dated
as of the date hereof, by and among the Custodian, Seller and Buyers.
"Custodial Delivery" shall mean the form executed by Seller in
order to deliver the Purchased Loan Schedule and the Purchased Loan File to
Buyers or their designee (including the Custodian) pursuant to Section 6, a form
of which is attached hereto as Exhibit IV.
"Custodian" shall mean Deutsche Bank Trust Company Americas or
any successor Custodian comparably rated and qualified and appointed by Buyers
with the prior written consent of Seller (which consent shall not be
unreasonably withheld or delayed).
"Cut-off Date" shall mean the second Business Day preceding each
Remittance Date.
"Default" shall mean any event which, with the giving of notice,
the passage of time, or both, would constitute an Event of Default.
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"Defaulted Asset" shall mean any Eligible Asset as to which there
has occurred (a) a default as to the payment of principal and/or interest and
such default is continuing with respect to such Eligible Asset beyond any notice
requirement or grace period, (b) a default with respect to such Eligible Asset
that Buyers believe or have reason to believe will likely result in a default as
to the payment of principal and/or interest on an Eligible Asset, or (c) a
default as to the payment of principal and/or interest on another obligation of
the same issuer that is senior or pari passu in right of payment to such
Eligible Asset, and such default is continuing with respect to such obligation
(without regard to any notice requirement or grace period) (but, in each case,
only so long as such default has not been cured or waived).
"Depository" shall mean PNC Bank, N.A. or any successor
Depository comparably rated and qualified and appointed by Buyers with the prior
written consent of Seller (which consent shall not be unreasonably withheld or
delayed).
"Diligence Materials" shall mean the Credit Approval Memo and any
Supplemental Diligence Materials.
"Draft Appraisal" shall mean a draft appraisal which is
acceptable to Buyers.
"Early Repurchase Date" shall have the meaning specified in
Section 2.4 of this Agreement.
"EBITDA" shall mean net income (or loss) (prior to any impact
from minority interests and before deduction of preferred dividends on preferred
stock, if any) determined in accordance with GAAP, plus the following (but only
to the extent actually included in the determination of such net income (loss):
(i) income tax expense; (ii) extraordinary or non-recurring or unrealized gains
and losses; (iii) depreciation and amortization expense; and (iv) interest
expense.
"Eligible Assets" shall mean, collectively, the Eligible
Securities and the Eligible Loans.
"Eligible B Notes" shall mean B-Notes secured by liens on
properties described in the definition of "Eligible Loans", in each case which
conform in all material respects to the applicable representations and
warranties set forth in Exhibit VI attached hereto (except as otherwise agreed
by Buyers), are otherwise acceptable to Buyers in their sole discretion, and as
to which (i) the Stressed LTV for the Mortgaged Property from which payments on
such participation interest or junior note are derived or securing indirectly
such participation interest or junior note (including for purposes of this
calculation, such participation interest or junior note and any loan senior to
such participation interest or junior note and secured directly or indirectly by
the related Mortgaged Property and excluding any more junior loan or
participation) does not exceed 95%, and (ii) the Stressed DSCR is greater than
1.05X.
"Eligible First Lien Loans" shall mean performing loans, or
senior participations therein, secured by first liens in properties described in
the definition of "Eligible Loans" which conform in all material respects to the
applicable representations and warranties set forth in Exhibit VI attached
hereto (except as otherwise agreed by Buyers), are otherwise acceptable to
Buyers in their sole discretion, and as to which (i) the Stressed LTV for the
Mortgaged Property
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securing such loan (including for purposes of this calculation, such loan and
any loan secured by a first lien on the related Mortgaged Property and excluding
any more junior loan) does not exceed 95%, and (ii) the Stressed DSCR is greater
than 1.05X.
"Eligible Loans" shall mean any of the following types of
performing loans, which are otherwise acceptable to Buyers in their sole
discretion and are secured directly or indirectly by or the payments on which
are derived from a property that may include, but not be limited to,
multifamily, retail, office, industrial, warehouse, condominium, or hospitality
property (or any other property type acceptable to Buyers in the exercise of
their good faith business judgment) that is located in the United States of
America:
(i) Eligible Mezzanine Loans;
(ii) Eligible First Lien Loans; and
(iii) Eligible B Notes.
"Eligible Mezzanine Loans" shall mean performing loans or
participations therein evidenced by mezzanine notes and secured by pledges of
ownership interests in entities that directly or indirectly own properties
described in the definition of "Eligible Loans" (or participation interests in
such performing mezzanine loans), which conform in all material respects to the
applicable representations and warranties set forth in Exhibit VI attached
hereto (except as otherwise agreed by Buyers), are otherwise acceptable to
Buyers in their sole discretion, and as to which (i) the Stressed LTV for the
Mortgaged Property from which payments on such mezzanine loan are derived
(including for purposes of this calculation, such mezzanine loan and any loan
senior to such mezzanine loan and secured directly or indirectly by the related
Mortgaged Property and excluding any more junior loan or participation) does not
exceed 95%, and (ii) the Stressed DSCR, calculated on the same basis, is greater
than 1.05X.
"Eligible Securities" shall mean (i) CMBS which are acceptable to
Buyers in their sole discretion and (ii) any real estate investment trust debt
securities or collateralized debt obligation securities which are not described
in clause (i) but which a Buyer elects to purchase in its sole discretion.
"Environmental Report" shall have the meaning specified in
paragraph 12 of Exhibit VI.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated thereunder.
Section references to ERISA are to ERISA, as in effect at the date of this
Agreement and, as of the relevant date, any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"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)(l1) 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.
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"Event of Default" shall have the meaning specified in Section 11
of this Agreement.
"Federal Funds Rate" shall mean, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day, (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (New York
time) on such day or such transactions received by the Buyer from three Federal
funds brokers of recognized standing selected by the Buyer in its sole
discretion.
"Filings" shall have the meaning specified in Section 5.3 of this
Agreement.
"Fixed Charge Ratio" shall mean the ratio of EBITDA to Fixed
Charges.
"Fixed Charges" shall mean the sum of (i) interest expense, (ii)
preferred dividends required to be paid, (iii) capital lease obligations
required to be paid, and (iv) payments due under any ground lease.
"GAAP" shall mean with respect to the financial statements or
other financial information of any Person, generally accepted accounting
principles in the United States which are in effect from time to time.
"Governmental Authority" shall mean any national or federal
government, any state, regional, local or other political subdivision thereof
with jurisdiction and any Person with jurisdiction exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Hedging Agreements" shall mean, with respect to any or all of
the Purchased Assets, any futures options contract or any interest rate swap,
cap or collar agreement or similar derivative instruments providing for
protection against fluctuations in interest rates or the exchange of nominal
interest obligations, either generally or under specific contingencies, entered
into by Seller; provided, that any hedging shall be mutually agreed upon by
Seller and Buyers; provided further, that should Seller and Buyers agree to
hedge a Purchased Asset, Bank of America, N.A. shall act as swap counterparty
provided that Bank of America, N.A. provides commercially reasonable market
terms.
"Income" shall mean with respect to any Security at any time, any
principal thereof and all interest, dividends or other distributions thereon.
"Indebtedness" shall mean all liabilities disclosed on the
publicly-filed financial statements of Seller, including, without limitation:
(a) obligations created, issued or incurred by Seller for borrowed money; (b)
obligations of Seller 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
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Seller, whether or not the respective indebtedness so secured has been assumed
by Seller; (d) obligations of Seller in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for
account of such person; (e) Capital Leases of Seller; and (f) indebtedness of
others guaranteed by Seller.
"Indemnified Amounts" and "Indemnified Parties" shall have the
meaning specified in Section 24 of this Agreement.
"Letter Agreement" shall mean that certain Letter Agreement,
dated March 4, 2005, by and among Seller and Buyers.
"LIBOR" shall mean the rate per annum calculated as set forth
below:
(i) On each Reset Date, LIBOR for the next Pricing Rate Period,
unless otherwise requested in accordance with paragraph (ii) below, will
be with respect to each day during such Pricing Rate Period the rate per
annum for deposits in United States dollars for a one-month period which
appears on Telerate Page 3750 (or any successor page) as of 11:00 a.m.,
London time, on such date;
(ii) On any Reset Date on which no such rate appears on Telerate
Page 3750 as described above, LIBOR for the next Pricing Rate Period
will be determined on the basis of the rate per annum at which deposits
in United States dollars are offered by London Branch of Bank of
America, N.A. at approximately 11:00 a.m., London time, on such date to
prime banks in the London interbank market for a one-month period.
All percentages resulting from any calculations or determinations referred to in
this definition will be rounded upwards, if necessary, to the nearest multiple
of 1/100th of 1% and all U.S. dollar amounts used in or resulting from such
calculations will be rounded to the nearest cent (with one-half cent or more
being rounding upwards).
"LIBO Rate" shall mean, with respect to any Pricing Rate Period
pertaining to a Transaction, a rate per annum determined for such Pricing Rate
Period in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
LIBOR
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1 - Reserve Requirement
"LIBOR Transaction" shall mean, with respect to any Pricing Rate
Period, any Transaction with respect to which the Pricing Rate for such Pricing
Rate Period is determined with reference to the LIBO Rate.
"Lien" shall mean any mortgage, lien, encumbrance, charge or
other security interest, whether arising under contract, by operation of law,
judicial process or otherwise.
"Market Value" shall mean, with respect to any Purchased Asset as
of any date, the lesser of (x) the market value for such Purchased Asset on the
Purchase Date for such Purchased Asset and on the date of determination, as
determined by Buyers in their sole discretion exercised in good faith (including
the positive or negative value of any Hedging
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Agreements pledged with such Purchased Asset, determined by Buyers on the basis
of the economic terms thereof as set forth in the related hedge documentation
provided by Seller) and (y) the purchase price paid by Seller for such Eligible
Asset, if applicable. The Market Value of all Purchased Assets shall be
determined by Buyers on each Business Day during the term of the Agreement.
Without limiting the foregoing, the Market Value may be determined to be zero
for any Purchased Asset.
"Maximum Facility Amount" shall mean (a) prior to the CDO Closing
Date, $150,000,000, and (b) thereafter, $75,000,000.
"Mezzanine Borrower" shall mean the borrower under a Mezzanine
Note.
"Mezzanine Note" shall mean a note or other evidence of
indebtedness of the owner or owners of all equity or ownership interests in an
underlying real property owner secured by a pledge of such ownership interests.
"Monthly Servicer Report" shall mean a monthly report of the
Servicer in the form of Exhibit III.
"Mortgage" shall mean a mortgage, deed of trust, deed to secure
debt or other instrument, creating a valid and enforceable lien on or an
ownership interest in an estate in fee simple or leasehold estate in real
property and the improvements thereon, securing a mortgage note or similar
evidence of indebtedness.
"Mortgage Note" shall mean a note or other evidence of
indebtedness of a Mortgagor secured by a Mortgage.
"Mortgaged Property" shall mean the real property securing
repayment of the debt evidenced by a Mortgage Note.
"Mortgagor" shall mean the obligor on a Mortgage Note and the
grantor of the related Mortgage.
"Multiemployer Plan" shall mean a multiemployer plan defined as
such in Section 3(37) of ERISA to which contributions have been, or were
required to have been, made by Seller or any ERISA Affiliate and which is
covered by Title IV of ERISA.
"New Asset" shall mean an Eligible Loan or Eligible Security that
Seller proposes to be included as a Purchased Asset.
"Originated Loan" shall mean any Eligible Loan whose Purchased
Loan Documents were prepared by Seller or an Affiliate controlled by Seller.
"Permitted Purchased Loan Modification" shall mean any
modification of a Purchased Loan, other than a modification which (1) amends or
modifies the interest rate, principal amount, maturity date or any other
financial or economic term (including, but not limited to, the amortization
schedule) of a Purchased Loan, (2) extends any payment date for the payment of
such principal or interest, (3) amends, modifies or waives any cash management
or
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reserve account requirements of a Purchased Loan, (4) releases or subordinates
any portion of the collateral securing such Purchased Loan, (5) waives any
foreclosure rights with respect to any portion of the collateral securing such
Purchased Loan, (6) releases or modifies any guarantee or (7) modifies the terms
of any provisions applicable to casualty or condemnation proceeds.
"Person" shall mean an individual, corporation, limited liability
company, business trust, partnership, joint tenant or tenant-in-common, trust,
unincorporated organization, or other entity, or a federal, state or local
government or any agency or political subdivision thereof.
"Plan" means an employee benefit or other plan established or
maintained by Seller or any ERISA Affiliate during the five year period ended
prior to the date of this Agreement or to which Seller or any ERISA Affiliate
makes, is obligated to make or has, within the five year period ended prior to
the date of this Agreement, been required to make contributions and that is
covered by Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code,
other than a Multiemployer Plan.
"Pre-Existing Loan" shall mean any Eligible Loan that is not an
Originated Loan.
"Price Differential" shall mean, with respect to any Transaction
as of any date, the aggregate amount obtained by daily application of the
Pricing Rate for such Transaction to the Repurchase Price for such Transaction
on a 360-day-per-year basis 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 date of determination (reduced by any amount of such
Price Differential previously paid by Seller to Buyers with respect to such
Transaction).
"Pricing Rate" shall mean, for any Pricing Rate Period, an annual
rate equal to the LIBO Rate for such Pricing Rate Period plus the relevant
Applicable Spread, subject to adjustment and/or conversion as provided in
Sections 2.9 and 2.10.
"Pricing Rate Period" shall mean, (a) in the case of the first
Pricing Rate Period with respect to any Transaction, the period commencing on
and including the Purchase Date for such Transaction and ending on and excluding
the following Reset Date, and (b) in the case of any subsequent Pricing Rate
Period, the period commencing on and including such Reset Date and ending on and
excluding the following Reset Date; provided, however, that in no event shall
any Pricing Rate Period end subsequent to the Termination Date.
"Principal Payment" shall mean, with respect to any Purchased
Assets, any payment or prepayment of principal received by the Depository in
respect thereof.
"Purchase Date" shall mean the date on which Purchased Assets are
to be sold by Seller to Buyers hereunder.
"Purchase Percentage" shall mean, with respect to any Transaction
as of any day, the "Purchase Percentage" specified in the Letter Agreement.
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"Purchase Price" shall mean, with respect to any Purchased
Assets, (i) initially the price at which such Purchased Assets are transferred
by Seller to Buyers on the applicable Purchase Date and (ii) thereafter, such
price increased by the amount of any cash transferred by Buyers to Seller
pursuant to Section 3 hereof or decreased by any amounts received under Section
4 hereof. The Purchase Price as of any Purchase Date for any Purchased Assets
shall be an amount (expressed in United States Dollars) equal to the product
obtained by multiplying (A) the Market Value of such Purchased Assets by (B) the
Purchase Percentage.
"Purchased Assets" shall mean, collectively, the Purchased
Securities and the Purchased Loans.
"Purchased Loan Documents" shall mean, with respect to a
Purchased Loan, the documents comprising the Purchased Loan File for such
Purchased Loan.
"Purchased Loan Information" shall mean, with respect to each
Purchased Loan, the information set forth in Exhibit VII attached hereto.
"Purchased Loan File" shall mean the documents specified as the
"Purchased Loan File" in Section 6.5 together with any additional documents and
information required to be delivered to Buyers or their designee (including the
Custodian) pursuant to this Agreement.
"Purchased Loan Schedule" shall mean a schedule of Purchased
Loans attached to each Trust Receipt and Custodial Delivery containing
information substantially similar to the Purchased Loan Information.
"Purchased Loans" shall mean (i) with respect to any Transaction,
the Eligible Loans sold by Seller to Buyers in such Transaction until such
Eligible Loans are repurchased pursuant to this Agreement and (ii) with respect
to the Transactions in general, all Eligible Loans sold by Seller to Buyers and
any additional collateral delivered by Seller to Buyers pursuant to Section 3 of
this Agreement until such Eligible Loans are repurchased pursuant to this
Agreement.
"Purchased Securities" shall mean, (i) with respect to any
Transaction, the Eligible Securities sold by Seller to Buyers in such
Transaction until such Eligible Securities are repurchased pursuant to this
Agreement, and (ii) with respect to the Transactions in general, all Eligible
Securities sold by Seller to Buyers and any additional collateral delivered by
Seller to Buyers pursuant to Section 3 of this Agreement until such Eligible
Securities are repurchased pursuant to this Agreement. Whenever Purchased
Securities are rated by more than one Rating Agency and a split rating applies
to such Purchased Securities (i.e., one Rating Agency rates such Purchased
Securities at a lower rating level than the other of such Rating Agencies), then
for all purposes of this Agreement where a rating is to be selected, the lower
of the ratings shall apply.
"Qualifying Assignee" shall mean a Person that provides
commercial mortgage warehouse facilities acceptable to Buyer, provided that
prior to the occurrence of an Event of Default, none of the following entities
shall constitute a "Qualifying Assignee":
(i) iStar Financial and its Affiliates;
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(ii) Anthracite Carbon Fund, together with any successor funds,
to the extent such funds are in the same business as their predecessor
fund and its Affiliates;
(iii) DB Realty Mezzanine Investment Fund I LLC and DB Realty
Mezzanine Investment Fund II LLC, together with any successor funds, to
the extent such funds are in the same business as their predecessor
fund;
(iv) Brascan and its Affiliates;
(v) Guggenheim Structured Real Estate Operating Company, LLC and
its Affiliates;
(vi) XX Xxxxx/Gramercy Capital and their Affiliates;
(vii) Arbor Commercial Mortgage LLC and its Affiliates;
(viii) CW Capital and its Affiliates;
(ix) Fortress/Draw Bridge and its Affiliates;
(x) NorthStar Realty Finance Corporation and its Affiliates;
(xi) XX Xxxxxxx and its Affiliates; and
(xii) Whitehall and its Affiliates.
"Rating Agency" shall mean either of Fitch Inc. or Standard & Poor's.
"Relevant System" shall mean (a) The Depository Trust Company in New
York, New York, or (b) such other clearing organization or book-entry system as
is designated in writing by Buyers.
"REMIC" shall mean a real estate mortgage investment conduit, within the
meaning of Section 860D(a) of the Code.
"Remittance Date" shall mean the twenty-first (21st) calendar day of
each month, or the next succeeding Business Day, if such calendar day shall not
be a Business Day.
"Repurchase Date" shall mean, with respect to each Purchased Asset, the
date that is the earlier of (i) the 364th day (including the Purchase Date)
since such Purchased Asset was sold to Buyers by Seller and (ii) the Termination
Date.
"Repurchase Price" shall mean, with respect to any Purchased Assets as
of any date, the price at which such Purchased Assets are to be transferred from
Buyers to Seller upon termination of the related Transaction in whole or in
part; such price will be determined in each case as the sum of the Purchase
Price of such Purchased Assets and the Price Differential with respect to such
Purchased Assets as of the date of such determination, minus all Income and cash
actually received by Buyers in respect of such Transaction pursuant to Sections
3, 4.2, 4.3, 4.4, and 4.5 of this Agreement.
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"Requirement of Law" shall mean any law, treaty, rule, regulation, code,
directive, policy, order or requirement or determination of an arbitrator or a
court or other Governmental Authority whether now or hereafter enacted or in
effect.
"Reserve Requirement" shall mean, with respect to any Pricing Rate
Period, the aggregate (without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect during such Pricing Rate Period
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the Federal Reserve
System or other governmental authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board of
Governors) maintained by Buyers.
"Reset Date" shall mean two Business Days prior to the twenty-first
(21st) calendar day of each month, provided that if such day is not a Business
Day, the "Reset Date" shall be the first Business Day prior to the twenty-first
(21st) calendar day of such month.
"Securitization Documents" shall mean, with respect to any Eligible
Securities, any pooling and servicing agreements, special servicing agreements
or other agreements governing the issuance and administration of such Eligible
Securities and any offering document used in the distribution and sale of such
Eligible Securities (including, without limitation, the preliminary and final
private placement memorandum, prospectus and/or offering memorandum).
"Seller" shall mean Capital Trust, Inc., a corporation organized under
the laws of the State of Maryland.
"Servicer" shall mean Midland Loan Services, Inc. or any other servicer
engaged by Seller in respect of the Purchased Loans, which other servicer (a)
has a servicer rating of not less than "CPS2/CSS2" from Fitch, Inc. and not less
than "Above Average" from Standard & Poor's, or (b) shall have been approved by
Buyers in their sole discretion exercised in good faith.
"Servicer Notice and Agreement" shall have the meaning specified in
Section 26.5 of this Agreement.
"Servicing Agreement" has the meaning specified in Section 26.2 of this
Agreement.
"Servicing Records" has the meaning specified in Section 26.2 of this
Agreement.
"Specified Data" shall mean each certificate, document or financial or
similar statement furnished to Buyers by or on behalf of Seller that provides
information (other than summary information based upon documents available to
Buyers) relating to Seller or the Purchased Assets (i) as required by the terms
of the Agreement (e.g., financial statements of Seller) or (ii) in response to a
specific request from Buyers for such information as contemplated by the
Agreement.
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"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"Stressed DSCR" shall mean, with respect to each Eligible Asset, the
stressed debt service coverage ratio as calculated in accordance with Fitch
Inc.'s then current criteria.
"Stressed LTV" shall mean, with respect to each Eligible Asset, the
stressed loan-to-value ratio as calculated in accordance with Standard & Poor's
criteria.
"Subsidiary" shall mean, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of a contingency) to elect
a majority of the board of directors or other managers of such corporation,
partnership, limited liability company or other entity are at the time owned, or
the management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person.
"Supplemental Diligence Materials" shall mean, with respect to any New
Assets, any source documentation or supporting information concerning the New
Assets that Buyers shall reasonably request.
"Survey" shall mean a survey of a Mortgaged Property in form and content
satisfactory to Buyers and the company issuing the Title Policy for such
Mortgaged Property.
"Table Funded Purchased Loan" shall mean a Purchased Loan which is sold
to Buyers simultaneously with the origination or acquisition thereof, which
origination or acquisition is financed in part with the Purchase Price, and
which may be, pursuant to Seller's request, paid directly to Seller for
disbursement in connection with such origination or acquisition. A Purchased
Loan shall cease to be a Table Funded Purchased Loan after the Custodian has
delivered a Trust Receipt to Buyers certifying their receipt of the Purchased
Loan File therefor.
"Table Funded Trust Receipt" shall have the meaning given to such term
in the Custodial Agreement.
"Tangible Net Worth" shall mean, with respect to Seller, as of any date
of determination, the amounts which would be included under equity on a
consolidated balance sheet of Seller and its Subsidiaries at such date in
accordance with GAAP, less the consolidated net book value of all assets of
Seller and its Subsidiaries (to the extent reflected as an asset in the balance
sheet of Seller or any Subsidiary at such date) which will be treated as
intangibles under GAAP; provided, that residual securities issued by Seller or
its Subsidiaries shall not be treated as intangibles for purposes of this
definition.
"Telerate Page 3750" shall mean the display page currently so designated
on the Dow Xxxxx Service (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).
"Termination Date" shall mean March 4, 2010.
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"Title Policy" shall have the meaning specified in paragraph 8 of the
first paragraph of Exhibit VI.
"Total Indebtedness" shall mean, for any period, the aggregate
Indebtedness of Seller during such period.
"Transaction" shall mean any transaction Buyers and Seller may enter
into from time to time pursuant to which Seller agrees to transfer to Buyers
Purchased Assets against the transfer of funds by Buyers, with a simultaneous
agreement by Buyers to transfer to Seller such Purchased Assets at a date
certain or on demand against the transfer of funds by Seller.
"Transaction Conditions Precedent" shall have the meaning specified in
Section 2.1 of this Agreement.
"Transaction Documents" shall mean, collectively, this Agreement, any
applicable Schedules or Exhibits to the Agreement, the Custodial Agreement and
all Confirmations executed pursuant to this Agreement in connection with
specific Transactions.
"Trustee" shall mean, with respect to any Eligible Securities, the
trustee under the Securitization Documents applicable to such Eligible
Securities.
"Trust Receipt" shall mean a trust receipt issued by Custodian to Buyers
confirming the Custodian's possession of certain Purchased Loan Files which are
the property of and held by Custodian for the benefit of Buyers (or any other
holder of such trust receipt).
"UCC" shall have the meaning specified in Section 5.3 of this Agreement.
"Underwriting Guidelines" shall mean the underwriting guidelines of
Seller as in effect on the date of this Agreement.
"Underwriting Issues" shall mean, with respect to any New Asset, all
material information that has come to Seller's attention that, based on the
making of reasonable inquiries and the exercise of reasonable care and diligence
under the circumstances, would be considered a materially "negative" factor
(either separately or in the aggregate with other information) including but not
limited to, to the extent of Seller's knowledge, whether any of the Purchased
Assets were rejected for inclusion in, or repurchased from, any securitization
transaction, warehouse loan facility or a repurchase transaction due to the
breach of a representation and warranty), or a material defect in loan
documentation or closing deliveries (such as any absence of any material
Purchased Loan Document(s)), to a reasonable institutional mortgage buyer in
determining whether to originate or acquire the New Asset in question.
"Unused Fee" shall have the meaning specified in Section 2.6 of this
Agreement.
2. INITIATION; CONFIRMATION; TERMINATION; FEES
2.1 (a) Subject to the terms and conditions set forth in this
Agreement (including, without limitation, the "Transaction Conditions Precedent"
specified below) Buyers shall from time to time enter into Transactions with
Seller on any Business Day from and
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including the date of this Agreement to but excluding the Termination Date and
pursuant to any such Transaction, Seller shall be entitled to sell, repurchase
and re-sell any assets in accordance with this Agreement; provided, however,
that the aggregate Repurchase Price (excluding the Price Differential with
respect to the Purchased Assets as of the date of determination) for all
Transactions shall not exceed the Maximum Facility Amount. An agreement to enter
into a Transaction shall be made in writing at the initiation of Seller as
provided below. Seller shall give Buyers written notice of each proposed
Transaction and Buyers shall inform Seller of their determination with respect
to any assets proposed to be sold to Buyers by Seller solely in accordance with
Exhibit VIII attached hereto. Buyers shall have the right to review all Eligible
Loans and Eligible Securities proposed to be sold to Buyers in any Transaction
and to conduct its own due diligence investigation of such Eligible Loans and
Eligible Securities as Buyers determine. Buyers shall be entitled to make a
determination, in their sole discretion, that they shall not purchase any or all
of the assets proposed to be sold to Buyers by Seller.
(b) Upon agreeing to enter into a Transaction hereunder, provided
each of the Transaction Conditions Precedent shall have been satisfied (or
waived by Buyers), Buyers shall promptly deliver to Seller a written
confirmation in the form of Exhibit I attached hereto pertaining to such
Transaction (a "Confirmation").
(c) Each Confirmation shall describe the Purchased Asset(s) which
shall be the subject of a Transaction and, in this connection, shall set forth:
(A) the name of the borrower or issuer with respect to each
related Purchased Asset,
(B) a description (including the date) of the loan agreement or
other document, agreement or instrument pursuant to which each related
Purchased Asset is made or governed,
(C) the aggregate outstanding principal amount of each related
Purchased Asset,
(D) the name of the Buyer that will purchase each related
Purchased Asset and the name of the Seller, and
(E) all additional information required by Exhibit I attached
hereto.
(d) On the Purchase Date for each Transaction which shall be not
less than three (3) Business Days (unless otherwise agreed by Buyers) following
the approval of an Eligible Loan or an Eligible Security by Buyers in accordance
with Exhibit VIII hereto and delivery by Seller of a Request for Transaction in
the form of Exhibit XII hereto, each Purchased Asset subject to such Transaction
shall be transferred to the applicable Buyer or its agent against the transfer
of the Purchase Price to an account of Seller.
(e) On the Purchase Date for a Transaction, Seller shall
countersign and deliver to Buyers a counterpart of the related Confirmation.
Each Confirmation shall be deemed incorporated herein by reference with the same
effect as if set forth herein at length.
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(f) With respect to any Transaction, the Pricing Rate shall be
determined initially on the Purchase Date applicable to such Transaction, and
shall be reset on each Reset Date for the related Pricing Rate Period. Buyers or
their agent shall determine in accordance with the terms of this Agreement the
Pricing Rate on each Reset Date for the related Pricing Rate Period and notify
Seller and Custodian of such rate for such period on the Reset Date. For
purposes of this Section 2.1, the "Transaction Conditions Precedent" shall be
deemed to have been satisfied with respect to any proposed Transaction if:
(A) no Default or Event of Default under this Agreement shall
have occurred and be continuing as of the Purchase Date for such
proposed Transaction;
(B) the representations and warranties made by Seller in each of
the Transaction Documents with respect to each Eligible Asset to be
transferred on any Purchase Date shall be true and correct in all
material respects as of the Purchase Date for such Transaction;
(C) Buyers shall have received, reviewed and approved the
applicable Credit Approval Memo and, if requested, Supplemental
Diligence Materials;
(D) Buyers' counsel shall have completed in full any legal review
requested by Buyers;
(E) Buyers shall have (A) determined, in accordance with the
applicable provisions of Section 2.1 of this Agreement, that the assets
proposed to be sold to Buyers by Seller in such Transaction are Eligible
Securities and/or Eligible Loans, (B) determined that the assets
proposed to be sold to Buyers by Seller in such Transaction (i) do not
have Stressed LTV greater than 95% and (ii) Stressed DSCR is equal to or
greater than 1.05X, (C) completed all legal due diligence in respect of
such Eligible Securities and/or Eligible Loans and (D) obtained internal
credit approval for the inclusion of such Eligible Securities and/or
Eligible Loans as Purchased Assets in a Transaction;
(F) Buyers shall have received a Bailee's Trust Receipt or a
Trust Receipt from Custodian, as applicable, for the relevant Eligible
Asset, in form and substance acceptable to Buyers; and
(G) the Purchase Price of any individual asset proposed to be
sold to Buyers by Seller in such Transaction shall not be less than
$1,000,000 nor greater than $27,200,000.
2.2 Seller may enter into a Transaction hereunder and sell a
Purchased Asset to Buyers for less than the Maximum Purchase Price that Seller
would be permitted to receive hereunder. Thereafter, so long as no Default or
Event of Default shall have occurred and be continuing, Seller may obtain from
Buyers the balance of any Purchase Price then available in respect of a
Purchased Asset (after giving effect to any decrease in Market Value of such
Purchased Asset). In addition, so long as no Default or Event of Default shall
have occurred and be continuing, and subject to the terms and conditions of this
Agreement, including Section 2.11 of this Agreement, Seller may repay the
Repurchase Price in whole or in part and obtain a re-advance of Repurchase Price
in respect of a Purchased Asset. In connection with any
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prepayment of Repurchase Price on a date other than a Remittance Date, Seller
shall deliver to Buyers a Notice of Prepayment in the form of Exhibit XIII.
2.3 Each Confirmation, together with this Agreement, shall be
conclusive evidence of the terms of the Transaction(s) covered thereby unless
objected to in writing by Seller no more than two (2) Business Days after the
date such Confirmation is received by Seller. An objection sent by Seller with
respect to any Confirmation must state specifically that the writing is an
objection, must specify the provision(s) of such 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 Buyers no more than
two (2) Business Days after such Confirmation is received by Seller.
2.4 No Transaction shall be terminable on demand by Buyers, other
than (1) upon the occurrence and during the continuance of an Event of Default
by Seller, (2) to the extent an Eligible Asset becomes a Defaulted Asset, and/or
(3) a failure by Seller to correct all exceptions noted on the Bailee's Trust
Receipt or the Trust Receipt from Custodian, as applicable, as determined in
Buyers' sole discretion within five (5) Business Days. Seller shall be entitled
to terminate a Transaction in whole or in part on demand and repurchase all or a
portion of the Purchased Assets subject to a Transaction on any Business Day
prior to the Repurchase Date (an "Early Repurchase Date"); provided, however,
that:
(a) Seller repurchases on such Early Repurchase Date, all or the
portion of the Purchased Assets subject to such Transaction which Seller has
elected to repurchase;
(b) other than with respect to the payoff of an underlying
Mortgage Note, Mezzanine Note, B-Note, or another Purchased Asset, Seller
notifies Buyers in writing of its intent to terminate such Transaction and
repurchase such Purchased Assets no later than five (5) Business Days prior to
such Early Repurchase Date; and
(c) on such Early Repurchase Date, Seller pays to Buyers an
amount equal to the sum of the Repurchase Price for such Transaction (or, in the
case of a termination of a Transaction in part an amount acceptable to Buyers in
their sole discretion, but not more than such Repurchase Price), and any other
amounts payable under this Agreement (including, without limitation, Section
2.12 of this Agreement) with respect to such Transaction against transfer to
Seller or its agent of such Purchased Assets.
Such notice shall set forth the Early Repurchase Date and shall
identify with particularity the Purchased Assets to be repurchased on such Early
Repurchase Date.
2.5 On the Repurchase Date for a Transaction, termination of such
Transaction will be effected by transfer to Seller or its agent of the
applicable Purchased Assets and any Income in respect thereof received by Buyers
(and not previously credited or transferred to, or applied to the obligations
of, Seller pursuant to Section 4 of this Agreement) against the simultaneous
transfer of the applicable Repurchase Price to an account of Buyers.
2.6 Seller shall comply with the provisions of the Letter
Agreement, on or prior to the Closing Date. In addition, Seller shall pay Buyers
an unused fee (an "Unused Fee") in an amount equal to ten (10) basis points
(0.10%) per annum on the unused Maximum Facility
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Amount, which Unused Fee shall be payable quarterly in arrears during the term
of this Agreement on the first Remittance Date occurring after receipt by Seller
of the applicable invoice therefor; provided that the Unused Fee shall be
assessed against the following percentages of the unused Maximum Facility Amount
for the following periods:
------------------------------------------------------------------------------------
Period Percentage of Unused Facility Amount Against
Which Unused Fee is Assessed
------------------------------------------------------------------------------------
Closing Date ("CD") to and 0%
including 90 days thereafter
------------------------------------------------------------------------------------
91 days after CD to and including 33%
180 days after CD
------------------------------------------------------------------------------------
181 days after CD to and including 66%
270 days after CD
------------------------------------------------------------------------------------
Thereafter 100%
------------------------------------------------------------------------------------
2.7 Seller shall also reimburse Buyers for all reasonable fees,
costs, disbursements and expenses of legal counsel associated with the
preparation, negotiation and consummation of this Agreement and related
documentation, provided, that the onset of such fees, costs, disbursements and
for which Seller shall be liable shall not exceed $75,000. Subject to the prior
sentence and to the extent not previously covered in this Section 2.7, Seller
shall reimburse Buyers for all costs and expenses incurred by Buyers for
establishing and maintaining the facility created by this Agreement, including
all out-of-pocket expenses for due diligence, travel and fees and disbursements
of its counsel; provided, that the onset of due diligence fees and expenses
related to or otherwise connected with each Eligible Asset for which Seller
shall be liable shall be $7,500.
2.8 No more than once in each calendar quarter, Seller may by
notice to Buyers reduce the Maximum Facility Amount to an amount not less than
the aggregate amount of all then-open Transactions. Once reduced, the Maximum
Facility Amount may not be increased.
2.9 If prior to the first day of any Pricing Rate Period with
respect to any Transaction, (i) Buyers shall have determined (which
determination shall be conclusive and binding upon Seller) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the LIBO Rate for such Pricing Rate Period, or (ii)
the LIBO Rate determined or to be determined for such Pricing Rate Period will
not adequately and fairly reflect the cost to Buyers (as determined and
certified by Buyers) of making or maintaining Transactions during such Pricing
Rate Period, Buyers shall give facsimile or telephonic notice thereof to Seller
as soon as practicable thereafter. If such notice is given, the Pricing Rate
with respect to such Transaction for such Pricing Rate Period, and for any
subsequent Pricing Rate Periods until such notice has been withdrawn by Buyers,
shall be a per annum rate (the "Alternative Rate") equal to a rate determined
based on an index approximating
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the behavior of LIBOR as reasonably determined by Buyers (which may be the
Federal Funds Rate).
2.10 Notwithstanding any other provision herein, if the adoption
of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for Buyers to effect Transactions as
contemplated by the Transaction Documents, (a) the commitment of Buyers
hereunder to enter into new Transactions and to continue Transactions as such
shall forthwith be canceled, and (b) the Transactions then outstanding shall be
converted automatically to Alternative Rate Transactions on the last day of the
then current Pricing Rate Period or within such earlier period as may be
required by law. If any such conversion of a Transaction occurs on a day which
is not the last day of the then current Pricing Rate Period with respect to such
Transaction, Seller shall pay to Buyers such amounts, if any, as may be required
pursuant to Section 2.9 of this Agreement.
2.11 Upon demand by Buyers, Seller shall indemnify Buyers and
hold Buyers harmless from any actually-incurred net loss or expense (not to
include any lost profit or opportunity) (including, without limitation,
attorneys' fees and disbursements of external counsel) which Buyers may sustain
or incur as a consequence of (i) default by Seller in selling Eligible
Securities or Eligible Loans after Seller has notified Buyers of a Purchase Note
in a Request for Transaction for a period of more than three Business Days and
Buyers have agreed to purchase such Eligible Securities or Eligible Loans in
accordance with the provisions of this Agreement (including also, but not
limited to, a default by Seller in selling Eligible Securities and Eligible
Loans on the Purchase Date as set forth in an irrevocable notice in accordance
with Section 2.1 hereto), (ii) any payment of the Repurchase Price on any day
other than a Remittance Date or (iii) default by Seller in terminating any
Transaction more than three Business Days after Seller has given a notice in
accordance with Section 2.4 of a termination of a Transaction (in each case of
(i)-(iii) above, including, without limitation, any such loss or expense in the
nature of allocable breakage cost attributable thereto arising from the
reemployment of funds obtained by Buyers to maintain Transactions hereunder or
from fees payable to terminate the deposits from which such funds were
obtained). As a condition to Seller's liability under this paragraph, Buyers
shall promptly deliver to Seller a certificate as to such costs, losses, damages
and expenses, setting forth the calculations therefor and including any
available supporting documentation, which certificate shall be conclusive and
binding on Seller in the absence of manifest error.
2.12 If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof by any Governmental Authority or
compliance by Buyers with any directive from any central bank or other
Governmental Authority having jurisdiction over Buyers made subsequent to the
date hereof:
(a) shall subject Buyers to any tax of any kind whatsoever with
respect to the Transaction Documents, any Purchased Asset or any Transaction, or
change the basis of taxation of payments to Buyers in respect thereof (except
for changes in the rate of tax on Buyers' overall net income);
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or
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for the account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of Buyers which is not otherwise
included in the determination of the LIBO Rate hereunder; or
(c) shall impose on Buyers any other condition;
and the result of any of the foregoing is to increase the cost to Buyers, by an
amount which Buyers deem to be material, of entering into, continuing or
maintaining Transactions or to reduce any amount receivable under the
Transaction Documents in respect thereof; then, in any such case, Seller shall
promptly pay Buyers, within ten (10) Business Days after written submission, any
additional amounts necessary to compensate Buyers for such increased cost or
reduced amount receivable. If Buyers become entitled to claim any additional
amounts pursuant to this Section 2.12, they shall promptly notify Seller of the
event by reason of which they have become so entitled. As a condition to
Seller's liability under this paragraph, Buyers shall promptly deliver to Seller
a certificate as to the calculation of any additional amounts payable pursuant
to this subsection and including any available supporting documentation, which
certificate shall be conclusive and binding upon Seller in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the repurchase by Seller of any or all of the Purchased Assets.
2.13 If either Buyer shall have reasonably determined that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Buyer or
any corporation controlling such Buyer with any directive regarding capital
adequacy from any Governmental Authority made subsequent to the date hereof does
or shall have the effect of reducing the rate of return on such Buyer's or such
corporation's capital as a consequence of its obligations hereunder to a level
below that which such Buyer or such corporation could have achieved but for such
adoption, change or compliance by an amount which is deemed by such Buyer to be
material, then from time to time, within ten (10) Business Days after written
submission by such Buyer to Seller of a written request therefore, Seller shall
pay to such Buyer such additional amount or amounts as will compensate such
Buyer for such reduction. As a condition to Seller's liability under this
paragraph, such Buyer shall promptly deliver to Seller a certificate as to the
calculation of any additional amounts payable pursuant to this subsection and
including any available supporting documentation, which certificate shall be
conclusive and binding upon Seller in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the repurchase by
Seller of any or all of the Purchased Assets.
2.14 Without prejudice to any other rights which Seller may have
under this Agreement, upon any tender by Seller of payment of the aggregate
Repurchase Price for all Purchased Assets and all other amounts due and payable
to Buyers under this Agreement, all of Buyers' right, title and interest in such
Purchased Assets shall be deemed transferred to Seller, and Buyers shall
deliver, or cause the delivery of, such Purchased Assets to Seller.
2.15 On any Repurchase Date, termination of the applicable
Transactions will be effected by transfer to Seller or its agent of the
Purchased Assets and any Income in respect thereof received by Buyers (and not
previously credited or transferred to, or applied to the
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obligations of, Seller pursuant to Section 4 of this Agreement) against the
simultaneous transfer of the Repurchase Price to an account of Buyers.
3. MARGIN MAINTENANCE
3.1 If at any time, the Market Value of any Purchased Asset shall
be less than the Purchase Price less any unpaid Price Differential for such
Purchased Asset (an "Asset Margin Deficit"), Seller shall transfer cash to
Buyers so that the sum obtained by adding the Market Value of such Purchased
Asset plus such cash shall equal or exceed the Purchase Price less any unpaid
Price Differential for such Purchased Asset as of the same date; provided that,
so long as no Default or Event of Default has occurred and is continuing, to the
extent that the Market Value of one or more other Purchased Assets (the "Other
Assets") shall exceed the aggregate Purchase Price for the Purchased Asset in
respect of which an Asset Margin Deficit exists, then the amount of such Asset
Margin Deficit shall be satisfied in part or in whole by the Purchase Price for
the Other Assets being deemed to increase to an amount not to exceed the Market
Value of the Other Assets (and Seller shall remain liable to provide Buyers with
any additional cash that may be required so that, after giving effect to such
increase in the Purchase Price for such Other Assets and the provision of any
additional cash, no Asset Margin Deficit shall exist). Buyers shall provide
Seller with a reconciliation statement setting forth any such adjustment to the
Purchase Price of the Other Assets. Seller's failure to cure any Asset Margin
Deficit as required by the preceding sentence shall constitute an Event of
Default under the Transaction Documents and shall entitle Buyers to exercise
their remedies under Section 11 of the Agreement (including, without limitation,
the liquidation remedy provided for in Section 11.2(e) of this Agreement).
3.2 If any Asset Margin Deficit exists on any Business Day,
Seller shall transfer the cash required to be transferred pursuant to Section
3.1 by no later than the close of business in the relevant market on the next
Business Day following such notice. Notice required pursuant to Section 3.1 of
this Agreement may be given by any means of facsimile transmission and shall be
delivered in accordance with the terms of this Agreement. The failure of either
Buyer on any one or more occasions, to exercise its rights under this Section 3
shall not change or alter the terms and conditions to which this Agreement is
subject or limit the right of such Buyer to do so at a later date. Seller agrees
that any failure or delay by a Buyer to exercise its rights under this Section 3
shall not limit such Buyer's rights under this Agreement or otherwise existing
by law or in any way create additional rights for Seller.
3.3 Any cash transferred to Buyers pursuant to Section 3.1 of
this Agreement on account of an Asset Margin Deficit with respect to any
Purchased Asset shall be applied to reduce the Repurchase Price for such
Purchased Asset under the relevant Transaction.
4. INCOME PAYMENTS AND PRINCIPAL PAYMENTS
4.1 The Cash Management Account shall be established at the
Depository concurrently with the execution and delivery of this Agreement by
Seller and Buyers. Buyers shall have sole dominion and control over the Cash
Management Account. Seller shall cause all Income in respect of the Purchased
Assets and any payments in respect of associated Hedging Agreements to be
deposited directly into the Cash Management Account. Buyers shall instruct
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the Depository to maintain all amounts in the Cash Management Account in an
interest bearing account and, so long as no Event of Default shall have occurred
and be continuing, to pay all investment income earned thereon to Seller. All
such Income and investment income shall be remitted by the Depository in
accordance with the applicable provisions of Sections 4.2, 4.3, 4.4 and 4.5 of
this Agreement.
4.2 With respect to Purchased Loans, Seller shall deliver to each
Mortgagor, issuer of a participation, borrower under a Purchased Loan or other
applicable party making payments on a Purchased Loan an irrevocable direction
letter in the form attached as Exhibit IX to this Agreement instructing the
Mortgagor, issuer of a participation, borrower other applicable party to pay all
Income under the related Purchased Loan to the Cash Management Account and shall
provide to Buyers proof of such delivery. If a Mortgagor, issuer of a
participation, borrower or other applicable party forwards any Income with
respect to a Purchased Loan to Seller rather than directly to the Cash
Management Account, Seller shall (i) deliver an additional irrevocable direction
letter to the applicable Mortgagor, issuer of a participation, borrower or other
party and make other commercially reasonable efforts to cause such Mortgagor,
issuer of a participation, borrower or other applicable party to forward such
amounts directly to the Cash Management Account and (ii) within one Business Day
deposit in the Cash Management Account any such amounts and pending such
delivery, hold such amounts in trust for Buyers.
4.3 Subject to Section 4.4 and 4.5, all Income and all scheduled
Principal Payments received by the Depository in respect of the Purchased Assets
and the associated Hedging Agreements during each Collection Period shall be
applied by the Depository on the related Remittance Date as follows:
(a) first, to remit payments then due under the Hedging
Agreements, if any;
(b) second, to remit to Buyers an amount equal to the Price
Differential which has accrued and is outstanding as of such Remittance Date;
(c) third, to remit to Buyers the Allocated Portion of scheduled
Principal Payments, if any (for purposes of this Section 4.3(c) and Section 4.4,
"Allocated Portion" shall mean the product of (i) the amount of such principal
repayment and (ii) the Purchase Percentage; provided that (A) the Allocated
Portion shall not exceed the amount of unpaid Repurchase Price payable by Seller
to Buyers for such Purchased Asset and (B) following the payment of the
Allocated Portion, no Asset Margin Deficit exists); and
(d) fourth, so long as no Event of Default shall have occurred
and be continuing to remit to Seller the remainder, if any.
4.4 Subject to Section 4.5, any unscheduled Principal Payment
received by the Depository in respect of any of the Purchased Assets during each
Collection Period shall be applied by the Depository on the next Business Day
following the Business Day upon which Buyers receive notice of such unscheduled
Principal Payment from Servicer to the Repurchase Price of the Purchased Assets
in respect of which such Principal Payment has been received, in the following
order of priority:
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(a) first, to remit the Allocated Portion of such unscheduled
Principal Payment to Buyers; and
(b) second, to remit to Seller the remainder of such unscheduled
Principal Payment.
4.5 If an Event of Default shall have occurred and be continuing,
all Income in the Cash Management Account in respect of the Purchased Assets and
the associated Hedging Transactions shall be applied on the Business Day next
following the Business Day on which such funds are deposited in the Cash
Management Account as follows:
(i) first, to Buyers, all costs and all other amounts payable by
Seller and outstanding hereunder and under the other Transaction
Documents;
(ii) second, to Buyers, an amount equal to the Price Differential
which has accrued and is outstanding in respect of the Transactions as
of such Business Day;
(iii) third, to Buyers, an amount equal to the aggregate
Repurchase Price of the Purchased Assets, until the aggregate Repurchase
Price for all of the Purchased Assets has been reduced to zero;
(iv) fourth, to any other amounts owing by Seller hereunder; and
(v) fifth, the remainder to Seller or as a court of competent
jurisdiction may otherwise direct.
5. SECURITY INTEREST
5.1 Buyers and Seller intend that all Transactions hereunder be
sales to Buyers of the Purchased Assets and not loans from Buyers to Seller
secured by the Purchased Assets. However, in the event any such Transaction to
which a Buyer is a party is deemed to be a loan, Seller hereby pledges all of
its right, title, and interest in, to and under and grants a first priority lien
on, and security interest in, all of the following property, whether now owned
or hereafter acquired, now existing or hereafter created and wherever located to
such Buyer to secure such loan the payment and performance of all other amounts
or obligations owing to such Buyer pursuant to this Agreement and the related
documents described herein:
(a) the Purchased Securities purchased by such Buyer
pursuant to this Agreement (and identified in Confirmations)
and all "securities accounts" created in connection therewith
(as defined in Section 8-501(a) of the UCC) to which any or
all of such Purchased Securities are credited;
(b) the Purchased Loans purchased by such Buyer
pursuant to this Agreement (and identified in Confirmations),
Servicing Agreements in connection with this Agreement,
Servicing Records in connection with this Agreement, insurance
relating to such Purchased Loans, and collection and escrow
accounts relating to such Purchased Loans;
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(c) all "general intangibles", "accounts" and
"chattel paper" as defined in the UCC relating to or
constituting any and all of the foregoing; and
(d) all replacements, substitutions or distributions
on or proceeds, payments, Income and profits of, and records
(but excluding any financial models or other proprietary
information) and files relating to any and all of any of the
foregoing.
5.2 In addition, irrespective of whether any Transaction is
deemed to be a loan, Seller hereby pledges all of its right, title, and interest
in, to and under and grants a first priority lien on, and security interest in,
all of the following property, whether now owned or hereafter acquired, now
existing or hereafter created and wherever located (collectively, together with
any and all collateral granted to Buyers pursuant to Section 5.1 above, the
"Collateral") to Buyers to secure the payment and performance of all other
amounts or obligations owing to Buyers pursuant to this Agreement and the
related documents described herein:
(a) the Cash Management Account created in connection
with this Agreement and all monies from time to time on
deposit in such Cash Management Account;
(b) the Hedging Agreements, if any;
(c) all "general intangibles", "accounts" and
"chattel paper" as defined in the UCC relating to or
constituting any and all of the foregoing; and
(d) all replacements, substitutions or distributions
on or proceeds, payments, Income and profits of, and records
(but excluding any financial models or other proprietary
information) and files relating to any and all of any of the
foregoing.
5.3 Buyers' security interest in the Collateral subject to any
Transaction shall terminate only upon termination of Seller's obligations with
respect to such Transaction under this Agreement and the documents delivered in
connection herewith and therewith or upon repurchase by Seller of any such
Collateral. For purposes of the grant of the security interest pursuant to this
Section 5, this Agreement shall be deemed to constitute a security agreement
under the New York Uniform Commercial Code (the "UCC"). Buyers shall have all of
the rights and may exercise all of the remedies of a secured creditor under the
UCC and the other laws of the State of New York and Seller shall have all of the
rights and may exercise all of the remedies of a debtor under the UCC and the
other laws of the State of New York. In furtherance of the foregoing, (i) Buyers
shall cause to be filed as a protective filing with respect to the Purchased
Assets and as a UCC filing with respect to the security interests granted in
Sections 5.1 and 5.2 (i) two separate UCC financing statements, each in the form
of Exhibit I-B attached hereto and each naming Seller as debtor and a Buyer as
secured party (to be filed in the filing office indicated therein), (ii)
amendments to each such UCC financing statement in the form of Exhibit I-C
attached hereto, in each case having attached to such UCC financing statement or
such UCC
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financing statement amendment a description of the related Purchased Assets
which identifies the related Purchased Assets by setting forth (a) the name of
the borrower or issuer with respect to each related Purchased Asset and (b) the
loan agreement (including the date) or other document, agreement or instrument
pursuant to which each related Purchased Asset was made or is governed and (iii)
such other UCC filings, in such locations as may be necessary to perfect and
maintain perfection and priority of the outright transfer and the security
interest granted hereby and, in each case, continuation statements and any
amendments thereto (collectively, the "Filings"), and shall forward copies of
such Filings to Seller upon completion thereof, and (b) Seller shall from time
to time, at its own expense, deliver and cause to be duly filed all such further
filings, instruments and documents and take all such further actions as may be
necessary or desirable or as may be requested by Buyer with respect to the
perfection and priority of the outright transfer of the Purchased Assets and the
security interests granted hereunder (including marking its records and files to
evidence the interests granted to Buyers hereunder).
6. PAYMENT, TRANSFER AND CUSTODY
6.1 Subject to the terms and conditions of this Agreement, on the
Purchase Date for each Transaction, ownership of the Purchased Assets shall be
transferred to Buyers or their designee (including the Custodian) against the
simultaneous transfer of the Purchase Price to an account of Seller specified in
the Confirmation relating to such Transaction.
6.2 On or prior to the applicable Purchase Date, Seller shall
deliver the related Purchased Securities re-registered in the name of Buyers or
other designee of Buyers or duly endorsed in blank if the Purchased Securities
are in certificated form in accordance with the Custodial Agreement (or, subject
to the approval of Buyers, together with documentation sufficient to permit the
re-registration of the Purchased Securities by Buyers in the name of Buyers or
other designee of Buyers) and Buyers or their other designee shall have all
rights of conversions, exchange, subscription and any other rights, privileges
and options pertaining to such Purchased Securities as the owner thereof, and in
connection therewith, the right to deposit and deliver any and all of such
Purchased Securities with any committee, depositary transfer, agent, register or
other designated agency upon such terms and conditions as Buyers may determine.
The Purchased Securities shall be held by Buyers or their designee, as exclusive
bailee and agent for Buyers, either directly or through the facilities of a
Relevant System, as "securities intermediary" (as defined in Section
8-102(a)(14) of the UCC and 31 C.F.R. Section 357.2) and credited to the
"securities account" (as defined in Section 8-501(a) of the UCC) of Buyers.
Buyers, as "entitlement holder" (as defined in Section 8-102(a)(7) of the UCC)
with respect to such Purchased Securities, shall be entitled to receive all cash
dividends and distributions paid in respect thereof (which, if any, shall be
either paid to Seller or applied to reduce the Repurchase Price). Any such
dividends or distributions with respect to such Purchased Securities received by
Seller shall be promptly remitted to the Cash Management Account.
6.3 With respect to the Purchased Securities that shall be
delivered or held in uncertificated form and the ownership of which is
registered on books maintained by the issuer thereof or its transfer agent,
Seller shall cause the registration of such security or other item of investment
property in the name of Buyers or their designee and at the request of Buyers,
shall take such other and further steps, and shall execute and deliver such
documents or instruments
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necessary in the opinion of Buyers, to effect a legally valid transfer to Buyers
hereunder. With respect to such Purchased Securities that shall be delivered or
held in definitive, certificated form, Seller shall deliver to Buyers or their
designee (which shall be the Custodian initially) the original of the relevant
certificate endorsed in blank, together with documentation sufficient to permit
the re-registration of the Purchased Securities by Buyers in the name of Buyers
or other designee of Buyers. Unless otherwise instructed by Buyers, any delivery
of a security or other item of investment property in definitive, certificated
form shall be made to the Custodian. With respect to such Purchased Securities
that shall be delivered through a Relevant System in book entry form and
credited to or otherwise held in a securities account, 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
register the transfer of such Purchased Securities from Seller to Buyers or
their designee. In connection with any account to which such Purchased
Securities are credited or otherwise held, Seller shall execute and deliver such
other and further documents or instruments necessary, in the opinion of Buyers,
to effect a legally valid transfer to Buyers hereunder. Any account to which
such Purchased Securities are credited or otherwise held shall be designated in
accordance with the Custodial Agreement or such variation thereon as Buyers may
direct. Any delivery of such Purchased Security in accordance with this
paragraph, or any other method acceptable to Buyers, shall be sufficient to
cause Buyers to be the "entitlement holder" (as defined in Section 8-102(a)(7)
of the UCC) with respect to such Purchased Securities and, if the Transaction is
recharacterized as a secured financing, to have a perfected first priority
security interest therein. No Purchased Securities, whether certificated or
uncertificated, shall remain in the possession of Seller or any of its agents or
in any securities account in the name of Seller or any of its agents.
6.4 As a condition to Buyers' purchase of any Purchased
Securities,
(a) Seller shall deliver to Buyers on or prior to the Purchase
Date with respect to such Purchased Securities:
(A) copies of the executed Securitization Documents governing
such Purchased Securities, and the offering documents related to such
Purchased Securities, each certified by Seller as a true, correct and
complete copy of the original document delivered to Seller, and any
ancillary documents required to be delivered to holders of the Purchased
Securities under such Securitization Documents;
(B) one or more officer's certificates with respect to the
completeness of the documents delivered as may be reasonably requested
by Buyers,
(C) an instruction letter from Seller to the Trustee under such
Securitization Documents, instructing the Trustee to remit all sums
required to be remitted to the holder of such Purchased Securities under
such Securitization Documents to the Depository or as otherwise directed
in a written notice signed by Seller and Buyers,
(D) copies of all distribution statements, if any, delivered to
Seller pursuant to such Securitization Documents during the three-month
period immediately preceding such Purchase Date,
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(E) a copy of the trade ticket or other transaction confirmation
pursuant to which Seller acquired such Purchased Securities,
(F) any other documents or instruments necessary in the opinion
of Buyers to consummate the sale of such Purchased Securities to Buyers
or, if such Transaction is recharacterized as a secured financing, to
create and perfect in favor of Buyers a valid perfected first priority
security interest in such Purchased Securities; and
(b) Seller shall have taken the requisite steps with respect to
delivery and/or registration of such Purchased Securities as described more
fully in Section 6.3 of this Agreement.
6.5 On or before each Purchase Date with respect to each
Purchased Loan, Seller shall deliver or cause to be delivered to Buyers or their
designee the Custodial Delivery in the form attached hereto as Exhibit IV. On or
before each Purchase Date, with respect to each Table Funded Purchased Loan,
Seller shall cause the Bailee to deliver to the Custodian by facsimile the
related Mortgage Note, the Bailee Agreement and the Bailee Trust Receipt issued
thereunder. In connection with each sale, transfer, conveyance and assignment of
a Purchased Loan, on or prior to each Purchase Date with respect to such
Purchased Loan (other than a Table Funded Purchased Loan) or by not later than
12:00 p.m. (New York time) on the third Business Day following the applicable
Purchase Date with respect to each Table Funded Purchased Loan, Seller shall
deliver or cause to be delivered and released to the Custodian the following
documents (collectively, the "Purchased Loan File"), pertaining to each of the
Purchased Loans identified in the Custodial Delivery delivered therewith:
(a) With respect to each Purchased Loan which is an Eligible
First Lien Loan:
(A) 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 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 Purchased Loan 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]").
(B) The original of any loan agreement, guarantee, indemnity or
cash management agreement executed in connection with the Mortgage Note
(if any).
(C) The original Mortgage with evidence of recording thereon, or
a copy thereof together with an officer's certificate of Seller
certifying that such 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.
(D) The originals of all assumption, modification, consolidation
or extension agreements with evidence of recording thereon, or copies
thereof together with an officer's certificate of Seller certifying that
such represent true and correct copies of
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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.
(E) The original Assignment of Mortgage in blank for each
Purchased Loan, in form and substance acceptable for recording and
signed in the name of the Last Endorsee (in the event that the Purchased
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 Purchased Loan was acquired or
originated while doing business under another name, the signature must
be in the following form: "[Last Endorsee], formerly known as [previous
name]").
(F) The originals of all intervening assignments of mortgage with
evidence of recording thereon, or copies thereof together with an
officer's certificate of Seller certifying that such 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.
(G) 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 been issued, the
irrevocable marked commitment to issue the same.
(H) The original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Purchased Loan.
(I) The original assignment of leases and rents, if any, 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.
(J) The originals of all intervening assignments of assignment of
leases and rents, if any, or copies thereof, with evidence of recording
thereon.
(K) A copy of the UCC financing statements, certified as true and
correct by Seller, and all necessary UCC continuation statements with
evidence of filing thereon or copies thereof certified by Seller to have
been sent for filing, and UCC assignments executed by Seller in blank,
which UCC assignments shall be in form and substance acceptable for
filing.
(L) An environmental indemnity agreement (if any).
(M) An omnibus assignment in blank (if any).
(N) A disbursement letter from the Mortgagor to the original
mortgagee (if any).
(O) Mortgagor's certificate or title affidavit (if any).
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(P) A survey of the Mortgaged Property (if any) as accepted by
the title company for issuance of the Title Policy.
(Q) A copy of the Mortgagor's opinion of counsel (if any).
(R) An assignment of permits, contracts and agreements (if any).
(S) All original letters of credit and originals or certified
copies of any interest rate cap or swap agreements relating to such
Purchased Loan.
(T) In respect of any Purchased Loan as to which the Mortgaged
Property or underlying real property, as applicable, consists of a
leasehold interest, the ground lease, memorandum of ground lease and
ground lessor consent and/or estoppel.
(U) The original of any participation agreement, intercreditor
agreement and/or servicing agreement executed in connection with the
Purchased Loan.
(V) All other documents and instruments evidencing, guaranteeing,
insuring or otherwise constituting or modifying such Purchased Loan, or
otherwise executed or delivered in connection with such Purchased Loan,
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.
(W) Such other documents, agreements or instruments as shall be
reasonably requested by Buyers.
(b) With respect to each Purchased Loan which is an Eligible
Mezzanine Loan (other than an Eligible Mezzanine Loan represented by a
participation interest in a performing mezzanine loan) or an Eligible B Note
(other than an Eligible B Note represented by a junior participation interest):
(A) The original Mezzanine Note or B-Note signed in connection
with the Purchased Loan 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 Loan
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]").
(B) The original of the loan agreement and the guarantee, if any,
executed in connection with the Purchased Loan.
(C) The original intercreditor or loan coordination agreement, if
any, executed in connection with the Purchased Loan.
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(D) The original security agreement executed in connection with
the Purchased Loan.
(E) Copies of all documents relating to the formation and
organization of the borrower of such Purchased Loan, together with all
consents and resolutions delivered in connection with such borrower's
obtaining the Purchased Loan.
(F) All other documents and instruments evidencing, guaranteeing,
insuring or otherwise constituting or modifying or otherwise affecting
such Purchased Loan, or otherwise executed or delivered in connection
with, or otherwise relating to, such Purchased Loan, 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.
(G) The assignment of Purchased Loan sufficient to transfer to
Buyers all of Seller's rights, title and interest in and to the
Purchased Loan.
(H) A copy of the borrower's opinion of counsel (if any).
(I) A copy of the UCC financing statements, certified as true and
correct by Seller, and all necessary UCC continuation statements with
evidence of filing thereon or copies thereof certified by Seller to have
been sent for filing, and UCC assignments executed by Seller in blank,
which UCC assignments shall be in form and substance acceptable for
filing.
(J) The original certificates representing the pledged equity
interests (if any).
(K) Stock powers relating to each pledged equity interest,
executed in blank, if an original stock certificate is provided.
(L) Assignment of any management agreements, agreements among
equity interest holders or other material contracts.
(M) If no original stock certificate is provided, evidence (which
may be an officer's certificate confirming such circumstances) that the
pledged ownership interests have been transferred to, or otherwise made
subject to a first priority security interest in favor of, Seller.
(N) The original environmental indemnity agreement, if any.
(O) All original letters of credit and originals or certified
copies of any interest rate cap or swap agreements, if any.
(P) Such other documents, agreements or instruments as shall be
reasonably requested by Buyers.
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(c) With respect to each Purchased Loan which is an Eligible B
Note represented by a junior participation interest or an Eligible Mezzanine
Loan represented by a participation interest in a performing mezzanine loan:
(A) Copies of all of the applicable documents described above
with respect to a Purchased Loan which is an Eligible First Lien Loan.
(B) The original of any participation agreement, intercreditor
agreement and/or servicing agreement executed in connection with the
Purchased Loan.
(C) The assignment of Purchased Loan sufficient to transfer to
Buyers all of Seller's rights, title and interest in and to the
Purchased Loan.
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 Loan 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 Buyers 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
Buyers 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. With respect to all of the Purchased
Loans delivered by Seller to Buyers or their designee (including the Custodian),
Seller shall execute an omnibus power of attorney substantially in the form of
Exhibit V attached hereto irrevocably appointing Buyers its attorney-in-fact
with full power upon the occurrence and during the continuance of an Event of
Default to (i) complete and record the Assignment of Mortgage, (ii) complete the
endorsement of the Mortgage Note or Mezzanine Note and (iii) take such other
steps as may be necessary or desirable to enforce Buyers' rights against such
Purchased Loans and the related Purchased Loan Files and the Servicing Records.
Buyers shall deposit the Purchased Loan Files representing the Purchased Loans,
or direct that the Purchased Loan Files be deposited directly, with the
Custodian. The Purchased Loan Files shall be maintained in accordance with the
Custodial Agreement. Any Purchased Loan Files not delivered to Buyers or their
designee (including the Custodian) are and shall be held in trust by Seller or
its designee for the benefit of Buyers as the owner thereof. Seller or its
designee shall maintain a copy of the Purchased Loan File and the originals of
the Purchased Loan File not delivered to Buyers or their designee. The
possession of the Purchased Loan File by Seller or its designee is at the will
of Buyers for the sole purpose of servicing the related Purchased Loan, 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 or its designee shall be marked appropriately to reflect
clearly the sale of the related Purchased Loan to Buyers. Seller or its designee
(including the Custodian) shall release its custody of the Purchased Loan File
only in accordance with written instructions from Buyers, unless such release is
required as incidental to the servicing of the Purchased Loans or is in
connection with a repurchase of any Purchased Loan by Seller.
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6.6 Unless an Event of Default on the part of Seller shall have
occurred and be continuing, Buyers shall exercise all voting and corporate
rights with respect to the Purchased Securities in accordance with Seller's
written instructions; provided, however, that Buyers shall not be required to
follow Seller's instructions concerning any vote or corporate right if doing so
would, in Buyers' reasonable business judgment, impair the Purchased Securities
or be inconsistent with or result in any violation of any provision of the
Transaction Documents. Upon the occurrence and during the continuation of an
Event of Default on the part of Seller, Buyers shall be entitled to exercise all
voting and corporate rights with respect to the Purchased Securities without
regard to Seller's instructions (including, but not limited to, if an Act of
Insolvency shall occur with respect to Seller, to the extent Seller controls or
is entitled to control selection of the special servicer, Buyers may transfer
such special servicing to an entity satisfactory to Buyers).
7. SALE, TRANSFER, HYPOTHECATION OR PLEDGE OF PURCHASED SECURITIES
7.1 Subject to the terms and conditions of this Agreement, title
to all Purchased Assets shall pass to Buyers on the applicable Purchase Date,
and Buyers shall have free and unrestricted use of all Purchased Assets subject
to the terms and conditions thereof. Nothing in this Agreement or any other
Transaction Document shall preclude Buyers from engaging in repurchase
transactions with the Purchased Assets or otherwise selling, transferring,
pledging, repledging, hypothecating, or rehypothecating the Purchased Assets,
but no such transaction shall relieve Buyers of their obligations under Section
16 or Buyers' obligations to transfer the Purchased Assets to Seller pursuant to
Sections 2 or 11 of this Agreement or of Buyers' obligation to credit or pay
Income to, or apply Income to the obligations of, Seller pursuant to Section 4
hereof.
7.2 Nothing contained in this Agreement or any other Transaction
Document shall obligate Buyers to segregate any Purchased Asset delivered to
Buyers by Seller. Notwithstanding anything to the contrary in this Agreement or
any other Transaction Document, no Purchased Asset shall remain in the custody
of Seller or an Affiliate of Seller.
8. REPRESENTATIONS
8.1 Seller represents and warrants to Buyers that (i) Seller is
duly authorized to execute and deliver this Agreement, to enter into
Transactions contemplated hereunder and to perform its obligations hereunder and
has taken all necessary action to authorize such execution, delivery and
performance, (ii) Seller will engage in such Transactions as principal (or, if
agreed in writing, in the form of an annex hereto or otherwise, in advance of
any Transaction by the other party hereto, as agent for a disclosed principal),
(iii) the person signing this Agreement on Seller's behalf is duly authorized to
do so on its behalf (or on behalf of any such disclosed principal), (iv) Seller
has obtained all authorizations of any governmental body required in connection
with this Agreement and the Transactions hereunder and such authorizations are
in full force and effect, and (v) the execution, delivery and performance of
this Agreement and the Transactions hereunder will not violate any law,
ordinance, charter, by-law or rule applicable to Seller or any agreement by
which it is bound or by which any of its assets are affected. On the
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Purchase Date for any Transaction Seller shall be deemed to repeat all the
foregoing representations.
8.2 In addition to the representations and warranties appearing
in Section 8.1 of this Agreement, Seller represents and warrants to Buyers that
as of the Purchase Date for the purchase of any Purchased Assets by Buyers from
Seller and any Transaction hereunder and as of the date of this Agreement and at
all times while this Agreement and any Transaction hereunder is in full force
and effect:
(a) Organization. Seller is duly organized, validly existing and
in good standing under the laws and regulations of the state of Seller's
organization and is duly licensed, qualified, and in good standing in every
state where such licensing or qualification is necessary for the transaction of
Seller's business, except to the extent that the failure to be so qualified
could not reasonably be expected to have a material adverse effect on the
business, operations, or financial condition of Seller or the validity or
enforceability of the Transaction Documents or the Purchased Assets. Seller has
the power to own and hold the assets it purports to own and hold, and to carry
on its business as now being conducted and proposed to be conducted, and has the
power to execute, deliver, and perform its obligations under this Agreement and
the other Transaction Documents.
(b) Due Execution; Enforceability. Each of the Transaction
Documents has been duly executed and delivered by Seller, for good and valuable
consideration. Each of the Transaction Documents constitute the legal, valid and
binding obligations of Seller, enforceable against Seller in accordance with
their respective terms subject to bankruptcy, insolvency, and other limitations
on creditors' rights generally and to equitable principles.
(c) Non-Contravention. Neither the execution and delivery of the
Transaction Documents, nor consummation by Seller of the transactions
contemplated by the Transaction Documents (or any of them), nor compliance by
Seller with the terms, conditions and provisions of the Transaction Documents
(or any of them) will conflict with or result in a breach of any of the terms,
conditions or provisions of (i) the certificate of incorporation or bylaws of
Seller, (ii) any contractual obligation to which Seller is now a party or the
rights under which have been assigned to Seller or the obligations under which
have been assumed by Seller or to which the assets of Seller are subject or
constitute a default thereunder, or result thereunder in the creation or
imposition of any lien upon any of the assets of Seller, other than pursuant to
the Transaction Documents, (iii) any judgment or order, writ, injunction, decree
or demand of any court applicable to Seller, or (iv) any applicable Requirement
of Law, to the extent that such default, conflict or breach would have a
material adverse effect upon Seller's ability to perform its obligations
hereunder. Seller has all necessary licenses, permits and other consents from
Governmental Authorities necessary to acquire, own and sell the Purchased Assets
and for the performance of its obligations under the Transaction Documents.
(d) Litigation; Requirements of Law. There is no action, suit,
proceeding, investigation, or arbitration pending or, to the best knowledge of
Seller, threatened against Seller or any of its assets, which may result in any
material adverse change in the business, operations, financial condition, or
assets of Seller, or which may have an adverse effect on the validity of the
Transaction Documents or the Purchased Assets or any material action taken or to
be taken in
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connection with the obligations of Seller under any of the Transaction
Documents. Seller is in compliance in all material respects with all
Requirements of Law. Seller is not in default in any material respect with
respect to any judgment, order, writ, injunction, decree, rule or regulation of
any arbitrator or Governmental Authority.
(e) No Broker. Seller has not dealt with any broker, investment
banker, agent, or other Person (other than Buyers or an Affiliate of Buyers) who
may be entitled to any commission or compensation in connection with the sale of
Purchased Assets pursuant to any of the Transaction Documents.
(f) Good Title to Purchased Assets. Immediately prior to the
purchase of any Purchased Assets by Buyers from Seller, such Purchased Assets
are free and clear of any lien, encumbrance or impediment to transfer (including
any "adverse claim" as defined in Section 8-102(a)(1) of the UCC), and Seller is
the record and beneficial owner of and has good and marketable title to and the
right to sell and transfer such Purchased Assets to Buyers and, upon transfer of
such Purchased Assets to Buyers, Buyers shall be the owner of such Purchased
Assets free of any adverse claim. In the event the related Transaction is
recharacterized as a secured financing of the Purchased Assets, the provisions
of this Agreement are effective to create in favor of Buyers a valid security
interest in all rights, title and interest of Seller in, to and under the
Purchased Assets and Buyers shall have a valid, perfected first priority
security interest in the Purchased Assets (and without limitation on the
foregoing, Buyers, as entitlement holder, shall have a "security entitlement" to
the Purchased Securities).
(g) No Default. No Default or Event of Default exists.
(h) Representations in Securitization Documents. All of the
Purchased Securities have been validly issued and are fully paid and
non-assessable and not subject to preemptive rights and have been offered,
issued and sold in compliance with all Requirements of Law. The Securitization
Documents are genuine, in full force and effect and the legal, valid and binding
obligation of the parties thereto, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, and other limitations on creditors' rights
generally and to equitable principles. Seller has not waived the performance of
any action or any default, breach or violation resulting from action or inaction
under a Securitization Document and has not been made aware of any such waiver.
Except as disclosed to Buyers in writing, there is no default, breach, violation
or event of acceleration existing under a Securitization Document and to
Seller's knowledge, no event has occurred which, with the passage of time or
giving of notice or both and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration thereunder.
Each Purchased Security is freely assignable and the related Securitization
Documents permit Seller to sell, assign or pledge such Purchased Security.
(i) Representations and Warranties Regarding Purchased Loans;
Delivery of Purchased Loan File. Seller represents and warrants to Buyers that
each Purchased Loan sold hereunder and each pool of Purchased Loans sold in a
Transaction hereunder, as of each Purchase Date for a Transaction conform in all
material respects to the applicable representations and warranties set forth in
Exhibit VI attached hereto, except as disclosed to Buyers in writing. It is
understood and agreed that the representations and warranties set forth in
Exhibit VI hereto, if any, shall survive delivery of the respective Purchased
Loan File to Buyers or their designee
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(including the Custodian) to the extent permitted by applicable law. With
respect to each Purchased Loan, the Mortgage Note or Mezzanine Note, the
Mortgage (if any), the Assignment of Mortgage (if any) and any other documents
required to be delivered under this Agreement and the Custodial Agreement for
such Purchased Loan have been delivered to Buyers or the Custodian on their
behalf. Except as otherwise disclosed to Buyers, Seller or its designee is in
possession of a complete, true and accurate Purchased Loan File with respect to
each Purchased Loan, except for such documents the originals of which have been
delivered to the Custodian.
(j) Adequate Capitalization; No Fraudulent Transfer. Seller has,
as of such Purchase Date, adequate capital for the normal obligations reasonably
foreseeable in a business of its size and character and in light of its
contemplated business operations. Seller is generally able to pay, and as of the
date hereof is paying, its debts as they come due. Seller has not become, or is
presently, financially insolvent nor will Seller be made insolvent by virtue of
Seller's execution of or performance under any of the Transaction Documents
within the meaning of the bankruptcy laws or the insolvency laws of any
jurisdiction. Seller has not entered into any Transaction Document or any
Transaction pursuant thereto in contemplation of insolvency or with intent to
hinder, delay or defraud any creditor.
(k) Consents. No consent, approval or other action of, or filing
by Seller with, any Governmental Authority or any other Person is required to
authorize, or is otherwise required in connection with, the execution, delivery
and performance of any of the Transaction Documents by Seller (other than
consents, approvals and filings that have been obtained or made, as applicable).
(l) Organizational Documents. Seller has delivered to Buyers
certified copies of its certificate of incorporation and by-laws, together with
all amendments thereto.
(m) No Encumbrances. Except as a result of entering into this
Agreement, there are (i) no outstanding rights, options, warrants or agreements
on the part of Seller for a purchase, sale or issuance, in connection with the
Purchased Assets, (ii) no agreements on the part of Seller to issue, sell or
distribute the Purchased Assets, and (iii) no obligations on the part of Seller
(contingent or otherwise) to purchase, redeem or otherwise acquire any
securities or any interest therein or to pay any dividend.
(n) Federal Regulations. Seller is not required to register as an
"investment company," or a company "controlled by an investment company," under
the Investment Company Act of 1940, as amended, or (B) a "holding company," or a
"subsidiary company of a holding company," or an "affiliate" of either a
"holding company" or a "subsidiary company of a holding company," as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended.
(o) Taxes. Seller has filed or caused to be filed all tax returns
which to the knowledge of Seller would be delinquent if they had not been filed
on or before the date hereof and has paid all taxes shown to be due and payable
on or before the date hereof on such returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it and any of its assets by any Governmental Authority, except for such taxes as
are being appropriately contested in good faith by appropriate proceedings
diligently
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conducted and with respect to which adequate reserves have been provided in
accordance with GAAP; no tax liens have been filed against any of Seller's
assets and, to Seller's knowledge, no claims are being asserted with respect to
any such taxes, fees or other charges.
(p) ERISA. Seller does not have any Plans or any ERISA Affiliates
and makes no contributions to any Plans or any Multiemployer Plans.
(q) Judgments/Bankruptcy. Except as disclosed in writing to
Buyers, there are no judgments against Seller unsatisfied of record or docketed
in any court located in the United States of America, and no Act of Insolvency
has ever occurred with respect to Seller.
(r) Specified Data. All Specified Data concerning Seller and the
Purchased Assets that has been delivered by or on behalf of Seller to Buyers
under or in connection with this Agreement, is complete and correct in all
material respects as of the date of delivery (or if stated to have been prepared
as of an earlier date, as of such earlier date).
(s) Location of Seller. On the date of this Agreement, Seller's
principal place of business is located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000. Seller's jurisdiction of organization is the State of Maryland.
The location where Seller keeps its books and records, including all computer
tapes and records relating to the Purchased Assets is its principal place of
business.
8.3 On the Purchase Date for any Transaction, Seller shall be
deemed to have made all of the representations set forth in Sections 8.1 and 8.2
of this Agreement as of such Purchase Date.
9. NEGATIVE COVENANTS OF SELLER
On and as of the date hereof and each Purchase Date and until
this Agreement is no longer in force with respect to any Transaction, Seller
shall not without the prior written consent of Buyers:
9.1 subject to Seller's right to repurchase, take any action
which would directly or indirectly impair or adversely affect Buyers' title to
the Purchased Assets;
9.2 transfer, assign, convey, grant, bargain, sell, set over,
deliver or otherwise dispose of, or pledge or hypothecate, directly or
indirectly, any interest in the Purchased Assets (or any of them) to any Person
other than Buyers, or engage in repurchase transactions or similar transactions
with respect to the Purchased Assets (or any of them) with any Person other than
Buyers so long as such Purchased Assets are subject to this Agreement;
9.3 create, incur or permit to exist any lien, encumbrance or
security interest in or on any of the Purchased Assets, subject to the security
interest granted by Seller pursuant to Section 5 of this Agreement, except as
described in Section 5 of this Agreement;
9.4 modify or terminate any of the organizational documents of
Seller in a manner adverse to the interests of Buyer under this Agreement;
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9.5 consent or assent to any amendment or supplement to, or
termination of, any Securitization Document, any note, loan agreement, mortgage
or guaranty relating to the Purchased Loans or other material agreement or
instrument relating to the Purchased Assets other than a Permitted Purchased
Loan Modification; provided, that Buyers agree to use commercially reasonably
efforts to respond to any such written request within five (5) Business Days;
9.6 at any time during which an Event of Default on the part of
Seller has occurred and is continuing, vote or take any action to permit any
rights afforded to a holder of the Purchased Securities under the related
Securitization Documents; or
9.7 after the occurrence and during the continuation of any Event
of Default under Section 11(a) hereof, make any distribution (other than the
minimum distributions necessary to maintain the REIT status of Seller), payment
on account of, or set apart assets for, a sinking or other analogous fund for
the purchase, redemption, defeasance, retirement or other acquisition of any
equity or ownership interest of Seller, 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
9.8 permit the ratio of Adjusted Total Indebtedness to Tangible
Net Worth at any time to be greater than 5.00 to 1.00.
9.9 permit its Fixed Charge Ratio to be less than 1.2 to 1.00.
9.10 permit Tangible Net Worth at any time to be less than
$200,000,000.
10. AFFIRMATIVE COVENANTS OF SELLER
10.1 Seller shall promptly notify Buyers of any material adverse
change in its business, operations, or financial condition.
10.2 Seller shall provide Buyers with copies of such documents as
Buyers may reasonably request evidencing the truthfulness of the representations
set forth in Section 8.
10.3 Seller (1) shall defend the right, title and interest of
Buyers in and to the Purchased Assets against, and take such other action as is
necessary to remove, any Liens, security interests, claims and demands of all
Persons (other than security interests by or through Buyers) and (2) shall, at
Buyers' request, take all action necessary to ensure that Buyers will have a
first priority security interest in the Purchased Assets subject to any of the
Transactions in the event such Transactions are recharacterized as secured
financings.
10.4 Seller shall notify Buyers and the Depository of the
occurrence of any Default or Event of Default as soon as possible but in no
event later than the Business Day after obtaining actual knowledge of such
event.
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10.5 If an Act of Insolvency occurs with respect to Seller,
Seller shall permit Buyers to transfer servicing and/or special servicing with
respect to all mortgage loans underlying the Purchased Securities to an entity
satisfactory to Buyers, to the extent Seller controls or is entitled to control
the selection of the servicer and/or special servicer, as the case may be.
10.6 Seller shall promptly (and in any event not later than two
(2) Business Days following receipt) deliver to Buyers (i) any notice of the
occurrence of an event of default under, notice of condemnation, casualty or
environmental contamination with respect to or report received by or required to
be delivered by Seller pursuant to the Securitization Documents, (ii) any notice
of transfer of servicing under the Securitization Documents, (iii) any notice of
termination or other unwind of any Hedging Agreement and (iv) any other
information with respect to the Purchased Assets as may be reasonably requested
by Buyers from time to time to the extent such information is in Seller's
possession or can be obtained by Seller at a reasonable cost.
10.7 Seller will permit Buyers, at Buyer's cost, or their
designated representative to inspect Seller's records with respect to the
Purchased Assets and the conduct and operation of its business related thereto
upon prior written notice from Buyers or their designated representative, at
such times and with such frequency, and to make copies of extracts of any and
all thereof, subject to the terms of any confidentiality agreement between
Buyers and Seller. Buyers shall act in a commercially reasonable manner in
requesting and conducting any inspection relating to the conduct and operation
of Seller's business. Subsequent to the occurrence and during the continuance of
an Event of Default, Seller shall reimburse Buyers for all costs associated with
this Section 10.7.
10.8 If Seller shall at any time become entitled to receive or
shall receive any rights, whether in addition to, in substitution of, as a
conversion of, or in exchange for the Purchased Securities, or otherwise in
respect thereof, Seller shall accept the same as Buyers' agent, hold the same in
trust for Buyers and deliver the same forthwith to Buyers in the exact form
received, duly endorsed by Seller to Buyers, if required, together with an
undated bond or other securities power covering such certificate duly executed
in blank to be held by Buyers hereunder as additional collateral security for
the Transactions. If any sums of money or property so paid or distributed in
respect of the Purchased Securities shall be received by Seller, Seller shall,
until such money or property is paid or delivered to Buyers, hold such money or
property in trust for Buyers, segregated from other funds of Seller, as
additional collateral security for the Transactions.
10.9 At any time from time to time upon prior written request of
Buyers, at the sole expense of Seller, Seller will promptly and duly execute and
deliver such further instruments and documents and take such further actions as
Buyers may reasonably request for the purposes of obtaining or preserving the
full benefits of this Agreement including the first priority security interest
granted hereunder and of the rights and powers herein granted. If any amount
payable under or in connection with any of the Purchased Assets shall be or
become evidenced by any promissory note, other instrument or chattel paper, such
note, instrument or chattel paper shall be promptly delivered to Buyers, duly
endorsed in blank in a manner
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satisfactory to Buyers, to be held as a Purchased Asset under the related
Transaction pursuant to this Agreement, and the documents delivered in
connection herewith.
10.10 Seller shall provide Buyers with the following financial
and reporting information as soon as possible and in any event:
(a) within 45 days after the last day of each of the first,
second, and third calendar quarters in any fiscal year, and within 90 days after
the fourth calendar quarter in any fiscal year, an officer's certificate from
Seller addressed to Buyers certifying that, as of such calendar quarter, (x)
Seller is in compliance with all of the terms, conditions and requirements of
this Agreement (and demonstrating compliance with the provisions of Sections
9.8, 9.9 and 9.10), and (y) no Event of Default exists;
(b) within 30 days after each month end, a Monthly Servicer
Report, and such other information as Buyers may from time to time request;
(c) to the extent available to Seller, within 30 days after each
month end, financial statements and rent rolls for each underlying Mortgagor;
(d) to the extent required by the underling loan documents and
available to Seller, within 45 days after the last day of each fiscal quarter of
each Mortgagor and 90 days after the last day of each fiscal year of each
Mortgagor, unaudited quarterly financial statements and audited annual financial
statements, respectively, of such Mortgagor;;
(e) within 45 days after the last day of each calendar quarter in
any fiscal year, Seller's 10-Q quarterly report filed with the U.S. Securities
and Exchange Commission;
(f) within 90 days after the last day of each calendar year,
Seller's 10-K annual report filed with the U.S. Securities and Exchange
Commission; and
(g) within 30 days after each month end, a written summary of all
outstanding Hedging Agreements, provided that with respect to all xxxxxx
provided by Buyers or any Affiliate of Buyers, Seller shall provide the written
summary provided to Seller by Buyers or their Affiliates.
10.11 Seller shall at all times comply in all material respects
with all laws, ordinances, rules and regulations of any federal, state,
municipal or other public authority having jurisdiction over Seller or any of
its assets and Seller shall do or cause to be done all things reasonably
necessary to preserve and maintain in full force and effect its legal existence,
and all licenses material to its business.
10.12 Seller shall at all times keep proper books of records and
accounts in which full, true and correct entries shall be made of its
transactions in accordance with GAAP and set aside on its books from its
earnings for each fiscal year all such proper reserves in accordance with GAAP.
10.13 Seller shall observe, perform and satisfy all the material
terms, provisions, covenants and conditions required to be observed, performed
or satisfied by it, and shall pay
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when due all costs, fees and expenses required to be paid by it, under the
Transaction Documents. Seller shall pay and discharge all taxes, levies, liens
and other charges on its assets and on the Purchased Assets that, in each case,
in any manner would create any lien or charge upon the Purchased Assets, 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 in accordance with GAAP.
10.14 Seller shall advise Buyers in writing of any change in
Seller's name or jurisdiction of organization and of any change in the places
where the books and records pertaining to the Purchased Assets are held not less
than fifteen (15) Business Days prior to taking any such action.
10.15 Seller will maintain records with respect to the Purchased
Assets and the conduct and operation of its business with no less a degree of
prudence than if the Purchased Assets were held by Seller for its own account
and will furnish Buyers, upon request by Buyers or their designated
representative, with reasonable information reasonably obtainable by Seller with
respect to the Purchased Assets and the conduct and operation of its business.
10.16 Seller shall provide Buyers with operating statements, the
occupancy status and other property level information within Seller's
possession, with respect to the Mortgaged Properties, and similar reports within
Seller's possession, in each case, as reasonably requested by Buyers.
10.17 Seller shall give each Buyer prior notice of all intended
changes, amendments or modifications to the Underwriting Guidelines. If Buyers
determine, in their sole discretion, that a proposed change is material, Buyers
will have no obligation to consider purchasing any New Asset that is originated
or acquired pursuant to the new Underwriting Guidelines. In the event that
Seller makes any amendment or modification to the Underwriting Guidelines,
Seller shall promptly deliver to each Buyer a complete copy of the amended or
modified Underwriting Guidelines. Seller shall originate or acquire all
Purchased Assets in a manner which is consistent with sound underwriting and
appraisal practices, and in compliance with applicable federal and state
consumer protection laws, including, without limitation, all laws with respect
to unfair or deceptive practices and all laws relating to predatory lending
practices.
11. EVENTS OF DEFAULT; REMEDIES
Each of the following shall constitute an "Event of Default"
hereunder:
(a) Failure of Buyers to receive on any Remittance Date the
accreted value of the Price Differential (less any amount of such Price
Differential previously paid by Seller to Buyers) (including, without
limitation, in the event the Income paid or distributed on or in respect of the
Purchased Assets is insufficient to make such payment and Seller does not make
such payment or cause such payment to be made), or failure of Seller to make any
other payment owing to Buyers which has become due, whether by acceleration or
otherwise under the terms of this Agreement, which failure is not remedied
within the applicable period, in each case excluding in circumstances where
sufficient funds for such payment are held in the Cash
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Management Account, unless funds are not applied to make a required payment
because of the action of Seller which has not been remedied within two (2)
Business Days.
(b) Assignment or attempted assignment by Seller of this
Agreement or any rights hereunder without first obtaining the specific written
consent of Buyers.
(c) Any representation or warranty made or deemed made by Seller
herein or in any other Transaction Document or which is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Transaction
Document shall prove to have been incorrect in any material respect on or as of
the date made or deemed made (other than the representations and warranties set
forth in Exhibit VI, which shall be considered solely for the purpose of
determining the Market Value of a Purchased Asset, unless Seller shall have made
any such representation with knowledge that it was materially incorrect or
untrue at the time made).
(d) Seller shall default in the observance or performance of any
agreement contained in Section 3 or Section 9 of this Agreement.
(e) Seller shall default in the observance or performance of any
other agreement contained in this Agreement or any other Transaction Document
(other than as provided in paragraphs (a) through (d) of this Section), and such
default shall continue unremedied for a period of 20 calendar days.
(f) The occurrence of a Change of Control.
(g) Seller fails to transfer the Purchased Assets to Buyers on
the applicable Purchase Date (provided Buyers have tendered the related Purchase
Price).
(h) a final judgment by any competent court, administrative
tribunal, or other body having jurisdiction in the United States of America for
the payment of money shall have been rendered against Seller in an amount in
excess of $5,000,000 that remains undischarged or unpaid for a period of thirty
(30) days, during which period execution of such judgment is not effectively
stayed by bonding over or other means acceptable to Buyers.
(i) 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, or shall have taken any
action to displace the management of Seller or to curtail its authority in any
material respect in the conduct of the business of Seller, or shall have taken
any action in the nature of enforcement to remove, limit or restrict the
approval of Seller thereof as an issuer, Buyers or a Seller/servicer of
Purchased Assets or securities backed thereby, and such action provided for in
this paragraph shall not have been discontinued or stayed within 30 days.
(j) Either (i) the Transaction Documents shall for any reason not
cause, or shall cease to cause, Buyers to be the owner, free of any adverse
claim, of any of the Purchased Assets, or (B) if a Transaction is
recharacterized as a secured financing, the Transaction Documents with respect
to any Transaction shall for any reason cease to create a valid first priority
security interest in favor of Buyers in any of the Purchased Assets.
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(k) Seller'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 as a "going concern" or a reference
of similar import.
(l) An Act of Insolvency shall have occurred with respect to
Seller.
(m) An officer of Seller shall admit its inability to, or its
intention not to, perform any of Seller's obligations hereunder or under any
other Transaction Documents.
(n) Seller shall have defaulted or failed to perform under any
note, indenture, loan agreement, guaranty, swap agreement or any other contract,
agreement or transaction to which it is a party, which default (A) involves the
failure to pay a matured obligation in excess of $5,000,000, or (B) permits the
acceleration of the maturity of obligations by any other party to or beneficiary
of such note, indenture, loan agreement, guaranty, swap agreement or other
contract agreement or transaction, or Seller shall breach any covenant or
condition, shall fail to perform, admit its inability to perform or state its
intention not to perform its obligations under any transaction or in respect of
any repurchase agreement, reverse repurchase agreement, securities contract or
derivative transaction with any party, in each case in respect of any obligation
in excess of $5,000,000.
(o) Buyers shall have determined in their sole discretion
exercised in good faith that there shall have occurred a material adverse change
in the business, operations, or financial condition of Seller from the
circumstances known to Buyers to exist as of the date of this Agreement.
An Event of Default with respect to Seller shall be deemed to be
continuing unless expressly waived by Buyers in writing.
11.2 If an Event of Default shall occur and be continuing, the
following rights and remedies shall be available to Buyers:
(a) Buyers may, at their option (which option shall be deemed to
have been exercised immediately upon the occurrence of an Act of Insolvency of
Seller), accelerate the Repurchase Date for each Transaction hereunder, if such
Repurchase Date has not already occurred (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). Buyers shall (except upon the occurrence of an Act of Insolvency of
Seller) give notice to Seller of the exercise of such option as promptly as
practicable.
(b) If Buyers exercise or are deemed to have exercised the option
referred to in subparagraph (a) above, Seller's obligations in such Transactions
to repurchase all Purchased Assets, at the Repurchase Price therefor, shall
thereupon become immediately due and payable, and (ii) all Income paid after
such exercise or deemed exercise shall be retained by Buyers and applied, in
Buyers' sole discretion, 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 Buyers any Purchased Loan Documents,
if any, that relate to any Purchased Assets then in Seller's possession or
control.
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(c) Buyers also shall have the right to obtain physical
possession, and to continue any action to obtain physical possession, of any and
all records and files of Seller relating to the Purchased Assets and all
documents relating to the Purchased Assets (including, without limitation, any
legal, credit or servicing files relating to the Purchased Assets) which are
then or may thereafter come into the possession of Seller or any third party
acting for Seller. Buyers shall be entitled to specific performance of all
agreements of Seller contained in this Agreement.
(d) Buyers shall have the right to direct all servicers,
including Servicer, then servicing any Purchased Assets to remit all collections
thereon to Buyers, and if any payments are received by Seller, Seller shall not
commingle the amounts received with other funds of Seller and shall promptly pay
them over to Buyers. Buyers shall also have the right to terminate any one or
all of the servicers then servicing any Purchased Assets with or without cause.
(e) Buyers shall deliver to Seller notice of their intention to
liquidate the Purchased Assets and other Collateral at least five (5) Business
Days prior to selling or otherwise liquidating any such Purchased Assets and
other Collateral, and said notice shall be deemed to be reasonable. Thereafter,
Buyers shall have the right to sell immediately and/or liquidate all or any
portion of the Purchased Assets and/or all other Collateral. Such disposition of
Purchased Assets and/or all other Collateral may be, at Buyers' option, on
either a servicing released or a servicing retained basis. Buyers shall not be
required to give any warranties as to the Purchased Assets and/or other
Collateral with respect to any such disposition thereof. Buyers may specifically
disclaim or modify any warranties of title or the like relating to the Purchased
Assets and/or other Collateral. The foregoing procedure for disposition of the
Purchased Assets and liquidation of the Collateral shall not be considered to
adversely affect the commercial reasonableness of any sale thereof. Seller
agrees that it would not be commercially unreasonable for Buyers to dispose of
the Purchased Assets or other Collateral or any portion thereof by using
Internet sites that provide for the auction of assets similar to the Purchased
Assets and/or other Collateral, or that have the reasonable capability of doing
so, or that match buyers and sellers of assets. Buyers shall be entitled to
place the Purchased Assets in one or more pools for issuance of securities at
the then prevailing price for such securities and to sell such securities for
such prevailing price in the open market. Buyers shall also be entitled to sell
any or all of such Purchased Assets individually for the prevailing price.
Seller shall have the right to bid in connection with any sale of Purchased
Assets or otherwise purchase such Purchased Assets or securities in any sale
contemplated by the foregoing in accordance with any procedures established
therefore by Buyers. Buyers agree to recognize, to the extent Seller's bid or
offer complies in all respects with the procedures and requirements imposed by
Buyers in the conduct of such sale, Seller's bid or offer provided that the same
is in excess of the bid or offer of any third party.
(f) Buyers shall apply any proceeds from the liquidation of the
Purchased Assets and other Collateral to the Repurchase Prices hereunder and all
other Obligations in the manner Buyers deem appropriate in their sole
discretion.
(g) The parties recognize that it may not be possible to sell all
of the Purchased Assets on a particular Business Day, or in a transaction with
the same purchaser, or in the same manner, because the market for such Purchased
Assets may not be liquid. In view of
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the nature of the Purchased Assets, the parties agree that, upon five (5)
Business Days prior written notice to Seller, liquidation of the Purchased
Assets does not require a public purchase or sale and that a private purchase or
sale shall be deemed to have been made in a commercially reasonable manner.
(h) Seller shall be liable to Buyers for (i) the amount of all
legal or other expenses, including, without limitation, all costs and expenses
of Buyers 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, further including, without limitation, the fees and expenses of
counsel (including the costs of internal counsel of Buyers) 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, actual out-of-pocket cost or actual, out-of-pocket
expense directly arising or resulting from the occurrence of an Event of Default
in respect of a Transaction.
(i) To the extent permitted by applicable law, Seller shall be
liable to Buyers 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 Buyers'
rights hereunder. Interest on any sum payable by Seller under this section shall
be at a rate equal to the rate otherwise in effect plus 3%.
(j) Buyers shall have, in addition to their rights and remedies
under the Transaction Documents, all of the rights and remedies provided by
applicable federal, state, foreign, and local laws (including, without
limitation, if the Transactions are recharacterized as secured financings, the
rights and remedies of a secured party under the UCC of the State of New York,
to the extent that the UCC is applicable, and the right to offset any mutual
debt and claim), in equity, and under any other agreement between Buyers and
Seller. Without limiting the generality of the foregoing, Buyers shall be
entitled to set off the proceeds of the liquidation of the Purchased Assets
against all of Seller's obligations to Buyers, only if such obligations are then
due, without prejudice to Buyers' right to recover any deficiency.
(k) Subject to the grace periods set forth herein, each party to
this Agreement may exercise any or all of the remedies available to such party
immediately upon the occurrence of an Event of Default and at any time during
the continuance thereof without prior notice to the other parties hereto (unless
otherwise specified herein). Except as expressly provided herein, all rights and
remedies arising under the Transaction Documents, as amended from time to time,
are cumulative and not exclusive of any other rights or remedies which each
party to this Agreement may have. No modification, amendment, extension,
discharge, termination or waiver of any provision of this Agreement or of any
other Transaction Document, nor consent to any departure by any party to this
Agreement therefrom, shall in any event be effective unless the same shall be in
a writing signed by the party against whom enforcement is sought, and then such
waiver or consent shall be effective only in the specific instance, and for the
purpose, for which given. Except as otherwise expressly provided herein, no
notice to, or demand on any party to this Agreement, shall entitle such party to
any other or future notice or demand in the same, similar or other
circumstances. Neither any failure nor any delay on the part of any party to
this
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Agreement in insisting upon strict performance of any term, condition, covenant
or agreement, or exercising any right, power, remedy or privilege hereunder, or
under any other Transaction Document shall operate as or constitute a waiver
thereof, nor shall a single or partial exercise thereof preclude any other
future exercise, or the exercise of any other right, power, remedy or privilege.
In particular, and not by way of limitation, by purchasing any Purchased Asset
under this Agreement on any Purchase Date, Buyers shall not be deemed to have
waived any right to assert any Default, Event of Default or breach by Seller of
any term, condition, covenant, representation or warranty under this Agreement
or any Transaction Document, notwithstanding that such Default, Event of Default
or breach may have arisen prior to such Purchase Date.
(l) Buyers may enforce their rights and remedies hereunder
without prior judicial process or hearing, and Seller hereby expressly waives
any defenses Seller might otherwise have to require Buyers to enforce their
rights by judicial process. Seller also waives any defense Seller might
otherwise have arising from the use of nonjudicial process, disposition of any
or all of the Purchased 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.
(m) Upon the occurrence and during the continuance of an Event of
Default, Buyers shall without regard to the adequacy of the security for the
obligations, be entitled to the appointment of a receiver by any court having
jurisdiction, without notice, to take possession of and protect, collect,
manage, liquidate, and sell the Purchased Assets and any other Collateral or any
portion thereof, collect the payments due with respect to the Purchased Assets
and any other Collateral or any portion thereof, and do anything that Buyers are
authorized hereunder to do. Seller shall pay all costs and expenses incurred by
Buyers in connection with the appointment and activities of such receiver.
12. RECORDING OF COMMUNICATIONS
EACH BUYER AND SELLER 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. EACH BUYER AND SELLER HEREBY CONSENTS TO THE ADMISSIBILITY OF
SUCH TAPE RECORDINGS IN ANY COURT, ARBITRATION, OR OTHER PROCEEDINGS, AND AGREES
THAT A DULY AUTHENTICATED TRANSCRIPT OF SUCH A TAPE RECORDING SHALL BE DEEMED TO
BE A WRITING CONCLUSIVELY EVIDENCING THE PARTIES' AGREEMENT.
13. SINGLE AGREEMENT
Buyers and Seller acknowledge that, and have entered hereinto 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 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,
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(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.
14. NOTICES AND OTHER COMMUNICATIONS
All notices, consents, approvals and requests required or
permitted hereunder shall be given in writing and shall be effective for all
purposes if hand delivered or sent by (a) hand delivery, with proof of attempted
delivery, (b) expedited prepaid delivery service, either commercial or United
States Postal Service, with proof of attempted delivery, or (c) by facsimile
(with transmission confirmation) provided that such faxed notice must also be
delivered by one of the means set forth in (a) or (b) above, to applicable
address specified below or at such other address and person as shall be
designated from time to time by any party hereto, as the case may be, in a
written notice to the other parties hereto in the manner provided for in this
Section. All notices, consents, approvals and requests directed to Seller (other
than Confirmations) shall be delivered to the following: Capital Trust, Inc. 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx X. Xxxxxx,
Facsimile Number: 000-000-0000, with a copy to: Paul, Hastings, Xxxxxxxx &
Xxxxxx LLP, 00 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxx X. Xxxxxx,
Esq., Facsimile Number: 212-230-7830; all notices, consents, approvals and
requests directed to Buyers shall be delivered to the following: Bank of
America, N.A./Banc of America Securities LLC, Mail Code NC1-007-21-02, 000 Xxxxx
Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx
Xxxxxx, Facsimile Number: 000-000-0000. A notice shall be deemed to have been
given: (a) in the case of hand delivery, at the time of delivery, (b) in the
case of expedited prepaid delivery upon the first attempted delivery on a
Business Day, or (c) in the case facsimile, upon receipt of transmission
confirmation, provided that such faxed notice was also delivered as required in
this Section. A party receiving a notice which does not comply with the
technical requirements for notice under this Section may elect to waive any
deficiencies and treat the notice as having been properly given.
15. 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 agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.
16. NON-ASSIGNABILITY
16.1 The rights and obligations of the parties under the
Transaction Documents and under any Transaction shall not be assigned by either
party without the prior written consent of the other party; provided, that
Buyers shall be permitted to assign such rights and obligations without the
consent of Seller in the case of an assignment by Buyers to any Qualifying
Assignee. In the event of any such assignment by Buyers, Buyers shall so notify
Seller; provided, that
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Seller shall not be obligated to deal directly with any party other than Buyers
in connection with any Transactions, or to pay or reimburse Buyers or any other
Person for any fees, costs, expenses or other amounts that would not have been
incurred had no such assignment taken place.
16.2 Buyers shall be entitled to issue to any Qualified Assignee
one or more participation interests with respect to any or all of the
Transactions, (i) Buyers shall act as exclusive agent for all participants in
any dealings with Seller in connection with all Transactions, (ii) Seller shall
not be obligated to deal directly with any party other than Buyers in connection
with any Transactions, or to pay or reimburse Buyers or any other Person for any
fees, costs, expenses or other amounts that would not have been incurred had no
participation interests in the related Transactions been issued and (iii) Buyers
shall maintain unilateral control over all discretionary determinations to be
made by it hereunder, including without limitation, determinations as to
eligibility and purchase of Eligible Loans and Eligible Securities, the Market
Value thereof, the granting of waivers of noncompliance with the terms of the
Transaction Documents, the granting of extensions of the Termination Date and/or
increases in the Maximum Facility Amount and the exercise of rights and remedies
upon the occurrence and during the continuation of an Event of Default.
16.3 Subject to the foregoing, the Transaction Documents and any
Transactions shall be binding upon and shall inure to the benefit of the parties
and their respective permitted successors and assigns. Nothing in the
Transaction Documents, express or implied, shall give to any Person, other than
the parties to the Transaction Documents and their respective successors, any
benefit or any legal or equitable right, power, remedy or claim under the
Transaction Documents.
17. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
17.1 Each party irrevocably and unconditionally (i) submits to
the non-exclusive jurisdiction of any United States Federal or New York State
court sitting in Manhattan, and any appellate court from any such court, solely
for the purpose of any suit, action or proceeding brought to enforce its
obligations under this Agreement or relating in any way to this Agreement or any
Transaction under this Agreement and (ii) waives, to the fullest extent it may
effectively do so, any defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court and any right of jurisdiction on
account of its place of residence or domicile.
17.2 To the extent that either party has or hereafter may acquire
any immunity (sovereign or otherwise) from any legal action, suit or proceeding,
from jurisdiction of any court or from set off or any legal process (whether
service or notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise) with respect to itself or any
of its property, such party hereby irrevocably waives and agrees not to plead or
claim such immunity in respect of any action brought to enforce its obligations
under this Agreement or relating in any way to this Agreement or any Transaction
under this Agreement.
17.3 The parties hereby irrevocably waive, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding and irrevocably consent to the service
of any summons and complaint and any other
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process by the mailing of copies of such process to them at their respective
address specified herein. The parties hereby agree that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Section 17 shall affect the right of Buyers to serve legal
process in any other manner permitted by law or affect the right of Buyers to
bring any action or proceeding against Seller or its property in the courts of
other jurisdictions.
17.4 EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY INSTRUMENT OR
DOCUMENT DELIVERED HEREUNDER OR THEREUNDER.
18. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New
York without giving effect to the conflict of law principles thereof.
19. 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 3.1 hereof will not constitute a waiver of any
right to do so at a later date.
20. USE OF EMPLOYEE PLAN ASSETS
(a) If assets of an employee benefit plan subject to any
provision of the Employee Retirement Income Security Act of 1974 ("ERISA") are
intended to be used by either party hereto (the "Plan Party") in a Transaction,
the Plan Party shall so notify the other party prior to the Transaction. The
Plan Party shall represent in writing to the other party that the Transaction
does not constitute a prohibited transaction under ERISA or is otherwise exempt
therefrom, and the other party may proceed in reliance thereon but shall not be
required so to proceed.
(b) Subject to the last sentence of subparagraph (a) of this
Paragraph, any such Transaction shall proceed only if Seller furnishes or has
furnished to Buyers its most recent available audited statement of its financial
condition and its most recent subsequent unaudited statement of its financial
condition.
(c) By entering into a Transaction pursuant to this Paragraph,
Seller shall be deemed (i) to represent to Buyers that since the date of
Seller's latest such financial statements, there has been no material adverse
change in Seller's business, operations, or financial condition which Seller has
not disclosed to Buyers, and (ii) to agree to provide Buyers with future audited
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and unaudited statements of its financial condition as they are issued, so long
as it is a Seller in any outstanding Transaction involving a Plan Party.
21. 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 amended (except insofar as the type of Securities 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
Securities delivered to it in connection with Transactions hereunder or to
exercise any other remedies pursuant to Section 11 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).
22. 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 Securities and Exchange Commission ("SEC")
under Section 15 of the Securities Exchange Act of 1934 ("1934 Act"), the
Securities Investor Protection Corporation has taken the position that the
provisions of the Securities Investor Protection Act of 1970 ("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 a
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deposit and therefore are not insured by the Federal Deposit Insurance
Corporation or the National Credit Union Share Insurance Fund, as applicable.
23. NO RELIANCE
Each Buyer and Seller hereby acknowledges, represents and
warrants to the other that, in connection with the negotiation of, the entering
into, and the performance under, the Transaction Documents and each Transaction
thereunder:
23.1 It is not relying (for purposes of making any investment
decision or otherwise) upon any advice, counsel or representations (whether
written or oral) of the other party to the Transaction Documents, other than the
representations expressly set forth in the Transaction Documents.
23.2 It has consulted with its own legal, regulatory, tax,
business, investment, financial and accounting advisors to the extent that it
has deemed necessary, and it has made its own investment, hedging and trading
decisions (including decisions regarding the suitability of any Transaction)
based upon its own judgment and upon any advice from such advisors as it has
deemed necessary and not upon any view expressed by the other party.
23.3 It is a sophisticated and informed Person that has a full
understanding of all the terms, conditions and risks (economic and otherwise) of
the Transaction Documents and each Transaction thereunder and is capable of
assuming and willing to assume (financially and otherwise) those risks;
23.4 It is entering into the Transaction Documents and each
Transaction thereunder for the purposes of managing its borrowings or
investments or hedging its underlying assets or liabilities and not for purposes
of speculation; and
23.5 It is not acting as a fiduciary or financial, investment or
commodity trading advisor for the other party and has not given the other party
(directly or indirectly through any other Person) any assurance, guaranty or
representation whatsoever as to the merits (either legal, regulatory, tax,
business, investment, financial accounting or otherwise) of the Transaction
Documents or any Transaction thereunder.
24. INDEMNITY
Seller hereby agrees to indemnify Buyers, Buyers' designees and
each of the officers, directors, employees and agents ("Indemnified Parties")
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, taxes (including stamp, excise, sales or
other taxes which may be payable or determined to be payable with respect to any
of the Purchased Assets or in connection with any of the transactions
contemplated by this Agreement and the documents delivered in connection
herewith, other than income taxes of Buyers), fees, actual out-of-pocket costs
and expenses (including attorneys fees and disbursements actually incurred to
external counsel) or disbursements (all of the foregoing, collectively
"Indemnified Amounts") which may at any time (including, without limitation,
such time as this Agreement shall no longer be in effect and the Transactions
shall have been repaid in full) be imposed on or asserted against any
Indemnified Party in any way whatsoever arising out
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of or in connection with, or relating to, this Agreement or any Transactions
hereunder or any action taken or omitted to be taken by any Indemnified Party
under or in connection with any of the foregoing; provided, that Seller shall
not be liable for Indemnified Amounts resulting from the gross negligence or
willful misconduct or a bad act of any Indemnified Party. Without limiting the
generality of the foregoing, Seller agrees to hold Buyers harmless from and
indemnify Buyers against all Indemnified Amounts with respect to all Purchased
Assets relating to or arising out of any violation or alleged violation of any
environmental law, rule or regulation or any consumer credit laws, including
without limitation ERISA, the Truth in Lending Act and/or the Real Estate
Settlement Procedures Act, that, in each case, results from anything other than
Buyers' gross negligence or willful misconduct. In any suit, proceeding or
action brought by Buyers in connection with any Purchased Asset for any sum
owing thereunder, or to enforce any provisions of any Purchased Asset, Seller
will save, indemnify and hold Buyers harmless from and against actual
out-of-pocket expenses, and all actual loss or damage suffered by reason of any
defense, set-off, counterclaim, recoupment or reduction or liability whatsoever
of the account debtor or obligor thereunder, arising out of a breach by Seller
of any obligation thereunder or arising out of any other agreement, indebtedness
or liability at any time owing to or in favor of such account debtor or obligor
or its successors from Seller. Seller also agrees to reimburse Buyers as and
when billed by Buyers for Buyers' costs and expenses incurred in connection with
Buyers' due diligence reviews with respect to the Purchased Assets (subject to a
maximum of $7,500 per Purchased Asset) and the enforcement or the preservation
of Buyers' rights under this Agreement or any Transaction contemplated hereby,
including without limitation the fees and disbursements of its external counsel.
Seller hereby acknowledges that, the obligation of Seller hereunder is a
recourse obligation of Seller.
25. DUE DILIGENCE
Seller acknowledges that Buyers have the right to perform
continuing due diligence reviews with respect to the Purchased Assets, for
purposes of verifying compliance with the representations, warranties and
specifications made hereunder, or otherwise, and Seller agrees that upon prior
written notice to Seller, Buyers or their authorized representatives will be
permitted during normal business hours to examine, inspect, and make copies and
extracts of, the Purchased Loan Files, Servicing Records and any and all
documents, records, agreements, instruments or information relating to such
Purchased Assets in the possession or under the control of Seller, any other
servicer or subservicer and/or the Custodian. Seller also shall make available
to Buyers a knowledgeable financial or accounting officer for the purpose of
answering questions respecting the Purchased Loan Files and the Purchased
Assets. Without limiting the generality of the foregoing, Seller acknowledges
that Buyers may enter into Transactions with Seller based solely upon the
information provided by Seller to Buyers and the representations, warranties and
covenants contained herein, and that Buyers, at their option, has the right at
any time to conduct a partial or complete due diligence review on some or all of
the Purchased Assets. Buyers may underwrite such Purchased Loans themselves or
engage a third party underwriter to perform such underwriting. Seller agrees to
reasonably cooperate with Buyers and any third party underwriter in connection
with such underwriting, including, but not limited to, providing Buyers 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 reimburse
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Buyers for any and all out-of-pocket costs and expenses reasonably incurred by
Buyers in connection with Buyers' activities pursuant to this Section 25
following an Event of Default.
26. SERVICING
26.1 Notwithstanding the purchase and sale of the Purchased Loans
hereby, subject to Section 26.3, the Servicer shall continue to service the
Purchased Loans for the benefit of Buyers and, if Buyers shall exercise their
rights to pledge or hypothecate the Purchased Loans prior to the Termination
Date pursuant to Section 7, Buyers' assigns. Seller shall service or cause the
Servicer to service the Purchased Loans in accordance with Accepted Servicing
Practices.
26.2 Seller agrees that Buyers are the owner of all servicing
records, including but not limited to any and all servicing agreements (the
"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 Purchased Loans (the
"Servicing Records") so long as the Purchased Loans are subject to this
Agreement. Seller grants Buyers a security interest in all servicing fees and
rights relating to the Purchased Loans and all Servicing Records to secure the
obligation of Seller or its designee to service in conformity with this Section
and any other obligation of Seller to Buyers. Seller covenants to safeguard such
Servicing Records and to deliver them promptly to Buyers or their designee
(including the Custodian) at Buyers' request.
26.3 Upon the occurrence and continuance of an Event of Default,
Buyers may, in their sole discretion, (i) sell their right to the Purchased
Loans on a servicing released basis or (ii) terminate any Servicer of the
Purchased Loans with or without cause, in each case without payment of any
termination fee.
26.4 Seller hereby irrevocably assign all rights, title and
interest in the Servicing Agreements in the Purchased Loans to Buyers.
26.5 Seller shall cause each Servicer engaged by Seller to
execute a servicer notice and agreement in the form of Exhibit X attached hereto
(a "Servicer Notice and Agreement")pursuant to which such Servicer (i) agrees to
deposit all Income in respect of the Purchased Loans serviced by it directly
into the Cash Management Account and (ii) acknowledges Buyers' rights under
Section 26.2, Section 26.3 and Section 26.4 of this Agreement.
27. MISCELLANEOUS
27.1 Time is of the essence under the Transaction Documents and
all Transactions thereunder and all references to a time shall mean New York
time in effect on the date of the action unless otherwise expressly stated in
the Transaction Documents.
27.2 All rights, remedies and powers of Buyers and Seller
hereunder and in connection herewith are irrevocable and cumulative, and not
alternative or exclusive, and shall be in addition to all other rights, remedies
and powers of Buyers or Seller, as applicable, whether
-53-
under law, equity or agreement. In addition to the rights and remedies granted
to it in this Agreement, Buyers shall have all rights and remedies of a secured
party under the UCC and Seller shall have all rights and remedies of a debtor
under the UCC.
27.3 The Transaction Documents may be executed in counterparts,
each of which so executed shall be deemed to be an original, but all of such
counterparts shall together constitute but one and the same instrument.
27.4 The headings in the Transaction Documents are for
convenience of reference only and shall not affect the interpretation or
construction of the Transaction Documents.
27.5 Subject to the limits described in Section 2.7, without
limiting the rights and remedies of Buyers under the Transaction Documents,
Seller shall pay Buyers' out-of-pocket costs and expenses, including fees
actually incurred and expenses of accountants, attorneys and advisors, incurred
in connection with the preparation, negotiation, execution and consummation of,
and any amendment, supplement or modification to, the Transaction Documents and
the Transactions thereunder. Seller agrees to pay Buyers on demand all costs and
expenses (including expenses actually incurred to external counsel for legal
services of every kind) of any subsequent enforcement of any of the provisions
hereof, or of the performance by Buyers of any obligations of Seller in respect
of the Purchased Securities, or any actual or attempted sale, or any exchange,
enforcement, collection, compromise or settlement in respect of any of the
Purchased Assets and for the custody, care or preservation of the Purchased
Assets (including insurance costs) and defending or asserting rights and claims
of Buyers in respect thereof, by litigation or otherwise. In addition, Seller
agrees to pay Buyers on demand all costs and expenses (including expenses of
counsel) incurred in connection with the maintenance of the Cash Management
Account and registering the Purchased Securities in the name of Buyers or their
nominee. All such expenses shall be recourse obligations of Seller to Buyers
under this Agreement.
27.6 Each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or be invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
27.7 This Agreement and the Letter Agreement contain a final and
complete integration of all prior expressions by the parties with respect to the
subject matter hereof and thereof and shall constitute the entire agreement
among the parties with respect to such subject matter, superseding all prior
oral or written understandings.
27.8 The parties understand that this Agreement is a legally
binding agreement that may affect such party's rights. Each party represents to
the other that it has received legal advice from counsel of its choice regarding
the meaning and legal significance of this Agreement and that it is satisfied
with its legal counsel and the advice received from it.
-54-
27.9 Should any provision of this Agreement require judicial
interpretation, it is agreed that a court interpreting or construing the same
shall not apply a presumption that the terms hereof shall be more strictly
construed against any Person by reason of the rule of construction that a
document is to be construed more strictly against the Person who itself or
through its agent prepared the same, it being agreed that all parties have
participated in the preparation of this Agreement.
27.10 The parties recognize that each Transaction is a
"securities contract" as that term is defined in Section 741 of Title 11 of the
United States Code, as amended. Buyers' duty with respect to the custody,
safekeeping and physical preservation of any Purchased Assets in its possession
shall be to deal with such Purchased Assets in the same manner as Buyers deal
with similar property for its own account. None of Buyers or any of Buyers'
affiliates, directors, officers or employees shall be liable for failure to
demand, collect or realize upon all or any part of the Purchased Assets or for
any delay in doing so, and except as otherwise expressly provided in this
Agreement, no such Person shall be under any obligation to sell or otherwise
disposed of any Purchased Assets upon the request of Seller or otherwise. All
authorizations and agencies contained herein with respect to the Purchased
Assets are irrevocable and are powers coupled with an interest.
27.11 In addition to any rights and remedies of Buyers provided
by this Agreement and by applicable law, each 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 Termination Date, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, 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 either Buyer or any Affiliate thereof to or for the
credit or the account of Seller ; provided that the right of set-off hereunder
may be exercised by Buyers only (i) if an Event of Default has occurred and is
continuing and (ii) after, or in connection with, the application by Buyers of
all amounts then held in the Cash Management Account to the obligations of
Seller hereunder (unless Buyers shall be stayed or otherwise prevented from
applying such amounts to the obligations of Seller hereunder, in which case
Buyers may exercise such right of set-off without regard to this clause (ii)).
If any such obligation is unascertained, Buyers shall account to Seller when the
obligation is ascertained. Each Buyer agrees promptly to notify Seller after any
such set-off and application made by such Buyer; provided, that the failure to
give such notice shall not affect the validity of such set-off and application.
-55-
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the 4th day of March, 2005.
BUYERS:
-------
BANK OF AMERICA, N.A.
By:/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
BANK OF AMERICA SECURITIES LLC
By:/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
SELLER:
-------
CAPITAL TRUST, INC.
By:/s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
EXHIBITS
EXHIBIT I-A Form of Confirmation
EXHIBIT I-B Form of UCC Financing Statement
EXHIBIT I-C Form of UCC Financing Statement Amendment
EXHIBIT II Authorized Representatives of Seller
EXHIBIT III Monthly Reporting Package
EXHIBIT IV Form of Custodial Agreement
EXHIBIT V Form of Power of Attorney
EXHIBIT VI Representations and Warranties Regarding Individual
Purchased Loans
EXHIBIT VII Purchased Loan Information
EXHIBIT VIII Transaction Procedure
EXHIBIT IX Redirection Letter
I-A-1
EXHIBIT I-A
CONFIRMATION STATEMENT
CAPITAL TRUST, INC.
Ladies and Gentlemen:
[Banc of America Securities LLC] [Bank of America, N.A.] is
pleased to deliver its written CONFIRMATION of its agreement to enter into the
Transaction pursuant to which [Banc of America Securities LLC] [Bank of America,
N.A.] shall purchase from you the Purchased Assets identified below pursuant to
the Master Repurchase Agreement among BANC OF AMERICA SECURITIES LLC and BANK OF
AMERICA, N.A. (the "Buyers"), and CAPITAL TRUST, INC. ("Seller"), dated as of
March __, 2005 (the "Agreement"; capitalized terms used herein without
definition have the meanings given in the Agreement), as follows below and on
the attached Schedule 1:
Purchase Date: __________, 20__
Repurchase Date __________, 20__
Purchased Loans:
Purchased Securities Description: CUSIP # (if applicable)______
___________________________
Aggregate Principal Amount of
Purchased Assets (Original/Current): ___________________________
Advance Rate:
Interest Rate:
Percentage Class Purchased: _________%
Market Value: $
Purchase Price: $
Governing Agreements/Trustee: As identified on attached Schedule 1
----------
Additional Terms: ____________________________
Name and address for communications: Buyers: Bank of America, N.A.
Banc of America Securities LLC
Mail Code: NC1-007-21-02
Hearst Tower
I-1
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Seller: Capital Trust, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A.
By: ___________________________________________
Name:______________________________________
Title:_____________________________________
BANC OF AMERICA SECURITIES LLC
By: ___________________________________________
Name:______________________________________
Title:_____________________________________
AGREED AND ACKNOWLEDGED:
[_______________________________]
By: [_______________________]
[_______________________]
By: ___________________________________________
Name:______________________________________
Title:_____________________________________
I-2
Schedule 1 to Confirmation Statement
Purchased Securities/Name of Issuer/Title of Security*:
Aggregate Principal Amount (Original/Current):
CUSIP NO.:
Securitization Documents (including Master
Servicer, Special Servicer and Trustee):
________________________________________________________________________________
Purchased Loans/Name of Borrower*:
Aggregate Principal Amount (Original/Current):
Purchased Loan Documents:
_________________________
* Include a separate entry for each Purchased Security and/or each Purchased
Asset.
S1-1
Summary of Purchased Assets
Purchased Asset: ______
Seller Buyers' Original Buyers' Spread LIBOR
Class, if Outstanding Owned Market Rating, Purchase Purchase over Reset
any Balance Face Value if any Percentage Price LIBOR Period
---------- -------------- -------- --------- --------- ------------- ---------- ---------- --------
S1-2
EXHIBIT I-B
FORM OF UCC FINANCING STATEMENT
[See attached]
[GRAPHIC OMITTED]
UCC FINANCING STATEMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
======================================================================== THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
| A. NAME & PHONE CONTACT AT FILER [optional] |
| |
| Xxxxx Xxxx, Esquire (000) 000-0000 |
| |
|______________________________________________________________________|
| B. SEND ACKNOWLEDGMENT TO: (Name and Address) |
| ______ ______ |
| | | |
| | | |
| | Cadwalader, Xxxxxxxxxx & Xxxx LLP | |
| | 000 Xxxx Xxxxx Xxxxxx | |
| | Xxxxx 0000 | |
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 |
| ATTN: Xxxxx Xxxx |
| | | |
====================================================================================================================================
1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate or combine names
---
------------------------------------------------------------------------------------------------------------------------------
|1a. ORGANIZATION'S NAME | | |
| | | |
OR |-----------------------------------------------------------|----------------------------------|--------------------|---------
|1b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX
| | | |
------------------------------------------------------------------|----------------------------------|--------------------|---------
1c. MAILING ADDRESS | CITY | STATE| POSTAL CODE | COUNTRY
| | | |
------------------------------------------------------------------|----------------------------------|------------------------------
1d. TAX ID#: SSN OR EIN |ADD'L INFO RE |1e. TYPE OF ORGANIZATION |1f. JURISDICTION OF ORGANIZATION |1g.ORGANIZATIONAL ID #, if any
|ORGANIZATION | | | |_| NONE
|DEBTOR | | |
====================================================================================================================================
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b) - do not abbreviate or combine names
---
------------------------------------------------------------------------------------------------------------------------------
|2a. ORGANIZATION'S NAME | | |
| | | |
OR |-----------------------------------------------------------|----------------------------------|--------------------|---------
|2b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX
| | | |
------------------------------------------------------------------|----------------------------------|--------------------|---------
2c. MAILING ADDRESS | CITY | STATE| POSTAL CODE | COUNTRY
| | | |
------------------------------------------------------------------|----------------------------------|------------------------------
2d. TAX ID#: SSN OR EIN |ADD'L INFO RE |2e. TYPE OF ORGANIZATION |2f. JURISDICTION OF ORGANIZATION |2g.ORGANIZATIONAL ID #, if any
|ORGANIZATION | | | |_| NONE
|DEBTOR | | |
====================================================================================================================================
3. SECURED PARTY'S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one secured party name (3a or 3b)
---
------------------------------------------------------------------------------------------------------------------------------
|3a. ORGANIZATION'S NAME | | |
| | | |
OR |-----------------------------------------------------------|----------------------------------|--------------------|---------
|3b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX
| | | |
------------------------------------------------------------------|----------------------------------|--------------------|---------
3c. MAILING ADDRESS | CITY | STATE| POSTAL CODE | COUNTRY
| | | |
====================================================================================================================================
4. This FINANCING STATEMENT covers the following collateral:
All of the Debtor's right, title and interest in, to and under each of the following items of property, whether now owned or
hereafter acquired, now existing or hereafter created and wherever located: (a) the Purchased Securities purchased by the
Secured Party pursuant to the Agreement (and identified in the Confirmations) and all "securities accounts" (as defined in
Section 8-501(a) of the UCC) created in connection therewith to which any or all of such Purchased Securities are credited;
(b) the Purchased Loans purchased by the Secured Party pursuant to the Agreement (and identified in the Confirmations),
Servicing Agreements in connection with the Agreement, Servicing Records in connection with the Agreement, insurance relating
to such Purchased Loans, and collection and escrow accounts relating to such Purchased Loans; (c) the Cash Management Account
created in connection with the Agreement and all monies from time to time on deposit in such Cash Management Account; (d) the
Hedging Agreements, if any; (e) all "general intangibles", "accounts", and "chattel paper" as defined in the UCC relating to
or constituting any and all of the foregoing; and (f) all replacements, substitutions or distributions on or proceeds,
payments, Income and profits of, and records (but excluding any financial models or other proprietary information) files
relating to any and all of the foregoing;
====================================================================================================================================
S1-3
====================================================================================================================================
all as further described on Annex I attached hereto.
====================================================================================================================================
5. ALTERNATIVE DESIGNATION (if applicable): |_|LESSEE/LESSOR |_|CONSIGNEE/CONSIGNOR |_|BAILEE/XXXXXX |_|SELLER/BUYER |_|AG. LIEN
|_|NON-UCC FILING
====================================================================================================================================
6. |_|This FINANCING STATEMENT is to be filed | 7. Check to REQUEST SEARCH __ __ __
[for record](or recorded) in the REAL | REPORT(S) on Debtor(s) | |All Debtors | |Debtor 1 | |Debtor 2
ESTATE RECORDS. Attach addendum. | [ADDITIONAL FEE][optional] |__| |__| |__|
[if applicable] |
====================================================================================================================================
8. OPTIONAL FILER REFERENCE DATA
Maryland-State Department of Assessments and Taxation
====================================================================================================================================
FILING OFFICE COPY - NATIONAL UCC FINANCING STATEMENT (FORM UCC1) (REV. 07/29/98)
NATUCC1 5/4/01 C T System Online
-4-
ANNEX I
attached to and made a part of
Uniform Commercial Code ("UCC")
Financing Statement, Form UCC-1
Debtor:
Secured Party:
The UCC Financing Statement, Form UCC-1, to which this Annex I is
attached and of which it forms a part, covers all of the Debtor's right, title
and interest in, to and under each of the following items of property, whether
now owned or hereafter acquired, now existing or hereafter created and wherever
located:
(a) the Purchased Securities purchased by the Secured Party pursuant to
the Agreement (and identified in the Confirmations and on Schedule I to
this Annex I) and all "securities accounts" (as defined in Section
8-501(a) of the UCC) created in connection therewith to which any of all
of such Purchased Securities are credited;
(b) the Purchased Loans purchased pursuant by the Secured Party to the
Agreement (and identified in the Confirmations and on Schedule I to this
Annex I), Servicing Agreements in connection with the Agreement,
Servicing Records in connection with the Agreement, insurance relating
to such Purchased Loans, and collection and escrow accounts relating to
such Purchased Loans;
(c) the Cash Management Account created in connection with the Agreement
and all monies from time to time on deposit in such Cash Management
Account;
(d) the Hedging Agreements, if any;
(e) all "general intangibles", "accounts", and "chattel paper" as
defined in the UCC relating to or constituting any and all of the
foregoing; and
(f) all replacements, substitutions or distributions on or proceeds,
payments, Income and profits of, and records (but excluding any
financial models or other proprietary information) and files relating to
any and all of any of the foregoing.
The following terms shall have the following meanings:
"Agreement" shall mean the Master Repurchase Agreement dated as
of March 4, 2005, by and among the Debtor and the Buyers, as the same may be
amended, supplemented or otherwise changed and in effect from time to time.
"B-Notes" shall mean (a) junior notes in commercial mortgage
loans having an "A/B" structure, (b) junior or senior or pari-passu
participations in performing commercial mortgage loans, or (c) participations in
instruments of a type referred to in the preceding clause.
"Buyers" shall mean the Secured Party and Banc of America
Securities LLC.
"Cash Management Account" shall mean a segregated interest
bearing account, in the name of the Buyers, established at the Depository.
"CMBS" shall mean performing commercial mortgage-backed
securities that (A) either (1) have a rating of at least "B+" from Standard and
Poor's and/or Fitch Inc., and/or "B1" from Moody's, or (2) are unrated
securities, in each case which are acceptable to the Buyers in their sole
discretion and (B) are denominated in United States Dollars.
"Confirmation" shall mean a written confirmation of each
Transaction sent from the Buyers and delivered to the Debtor in the form of
Exhibit I to the Agreement.
"Debtor" shall mean Capital Trust, Inc.
"Depository" shall mean PNC Bank, N.A. or any successor
Depository comparably rated and qualified and appointed by the Buyers with the
prior written consent of Debtor (which consent shall not be unreasonably
withheld or delayed).
"Eligible Assets" shall mean, collectively, the Eligible
Securities and the Eligible Loans.
"Eligible B Notes" shall mean B-Notes secured by liens on
properties described in the definition of "Eligible Loans", in each case which
conform in all material respects to the applicable representations and
warranties set forth in Exhibit VI to the Agreement (except as otherwise agreed
by the Buyers), are otherwise acceptable to the Buyers in their sole discretion,
and as to which (i) the Stressed LTV for the Mortgaged Property from which
payments on such participation interest or junior note are derived or securing
indirectly such participation interest or junior note (including for purposes of
this calculation, such participation interest or junior note and any loan senior
to such participation interest or junior note and secured directly or indirectly
by the related Mortgaged Property and excluding any more junior loan or
participation) does not exceed 95%, and (ii) the Stressed DSCR is greater than
1.05X.
"Eligible First Lien Loans" shall mean performing loans, or
senior participations therein, secured by first liens in properties described in
the definition of "Eligible Loans" which conform in all material respects to the
applicable representations and warranties set forth in Exhibit VI to the
Agreement (except as otherwise agreed by the Buyers), are otherwise acceptable
to the Buyers in their sole discretion, and as to which (i) the Stressed LTV for
the Mortgaged Property securing such loan (including for purposes of this
calculation, such loan and any loan secured by a first lien on the related
Mortgaged Property and excluding any more junior loan) does not exceed 95%, and
(ii) the Stressed DSCR is greater than 1.05X.
"Eligible Loans" shall mean any of the following types of
performing loans, which are otherwise acceptable to the Buyers in their sole
discretion and are secured directly or indirectly by or the payments on which
are derived from a property that may include, but not be limited to,
multifamily, retail, office, industrial, warehouse, condominium, or hospitality
property (or any other property type acceptable to the Buyers in the exercise of
their good faith business judgment) that is located in the United States of
America:
(i) Eligible Mezzanine Loans;
(ii) Eligible First Lien Loans; and
(iii) Eligible B Notes.
-6-
"Eligible Mezzanine Loans" shall mean performing loans or
participations therein evidenced by mezzanine notes and secured by pledges of
ownership interests in entities that directly or indirectly own properties
described in the definition of "Eligible Loans" (or participation interests in
such performing mezzanine loans), which conform in all material respects to the
applicable representations and warranties set forth in Exhibit VI to the
Agreement (except as otherwise agreed by the Buyers), are otherwise acceptable
to the Buyers in their sole discretion, and as to which (i) the Stressed LTV for
the Mortgaged Property from which payments on such mezzanine loan are derived
(including for purposes of this calculation, such mezzanine loan and any loan
senior to such mezzanine loan and secured directly or indirectly by the related
Mortgaged Property and excluding any more junior loan or participation) does not
exceed 95%, and (ii) the Stressed DSCR, calculated on the same basis, is greater
than 1.05X.
"Eligible Securities" shall mean (i) CMBS which are acceptable to
the Buyers in their sole discretion and (ii) any real estate investment trust
debt securities or collateralized debt obligation securities which are not
described in clause (i) but which the Buyers elect to purchase in its sole
discretion.
"Hedging Agreements" shall mean, with respect to any of all of
the Purchased Assets, and futures options contract or any interest rate swap,
cap or collar agreement or similar derivative instruments providing for
protection against fluctuations in interest rates or the exchange of nominal
interest obligations, either generally or under specific contingencies, entered
into by Debtor; provided, that any hedging shall be mutually agreed upon by
Debtor and the Buyers; provided further, that should Debtor and the Buyers agree
to hedge a Purchased Asset, Bank of America, N.A. shall act as swap counterparty
provided that Bank of America, N.A. provides commercially reasonable market
terms.
"Income" shall mean with respect to any Security at any time, any
principal thereof and all interest, dividends or other distributions thereon.
"Mortgage" shall mean a mortgage, deed of trust, deed to secure
debt or other instrument, creating a valid and enforceable lien on or an
ownership interest in an estate in fee simple or leasehold estate in real
property and the improvements thereon, securing a mortgage note or similar
evidence of indebtedness.
"Mortgage Note" shall mean a note or other evidence of
indebtedness of a Mortgagor secured by a Mortgage.
"Mortgaged Property" shall mean the real property securing
repayment of the debt evidenced by a Mortgage Note.
"Mortgagor" shall mean the obligor on a Mortgage Note and the
grantor of the related Mortgage.
"Purchased Assets" shall mean, collectively, the Purchased
Securities and the Purchased Loans.
"Purchased Loans" shall mean (i) with respect to any Transaction,
the Eligible Loans sold by Debtor to the Buyers in such Transaction until such
Eligible Loans are repurchased pursuant to the Agreement, including, without
limitation, the loans listed in Schedule I hereto and (ii) with respect to the
Transactions in general, all Eligible Loans sold by Debtor to the Buyers and any
additional collateral delivered by Debtor to the Buyers pursuant to Section 3 of
the Agreement until such Eligible Loans are repurchased pursuant to the
Agreement.
-7-
"Purchased Securities" shall mean, (i) with respect to any
Transaction, the Eligible Securities sold by Debtor to the Buyers in such
Transaction until such Eligible Securities are repurchased pursuant to the
Agreement, including, without limitation, the securities listed in Schedule I
hereto until such Securities are repurchased pursuant to the Agreement and (ii)
with respect to the Transactions in general, all Eligible Securities sold by
Debtor to the Buyers and any additional collateral delivered by Debtor to the
Buyers pursuant to Section 3 of the Agreement until such Eligible Securities are
repurchased pursuant to the Agreement. Whenever Purchased Securities are rated
by more than one Rating Agency and a split rating applies to such Purchased
Securities (i.e., one Rating Agency rates such Purchased Securities at a lower
rating level than the other of such Rating Agencies), then for all purposes of
the Agreement where a rating is to be selected, the lower of the ratings shall
apply.
"Rating Agency" shall mean either of Fitch Inc. or Standard &
Poor's.
"Servicing Agreement" shall mean any and all agreements relating
to the servicing of the Purchased Loans so long as the Purchased Loans are
subject to the Agreement.
"Servicing Records" shall mean any and all records relating to or
evidencing the servicing of Purchased Loans so long as the Purchased Loans are
subject to the Agreement, including any and all files, documents, records,
databases, computer tapes, copies of computer tapes, proof of insurance
coverage, insurance policies, appraisals, other closing documentation, payment
history records and any other such records.
"Stressed DSCR" shall mean, with respect to each Eligible Asset,
the stressed debt service coverage ratio as calculated in accordance with Fitch
Inc.'s then current criteria.
"Stressed LTV" shall mean, with respect to each Eligible Asset,
the stressed loan-to-value ratio as calculated in accordance with Standard &
Poor's criteria.
"Transaction" shall mean any transaction the Buyers and Debtor
may enter into from time to time pursuant to which Debtor agrees to transfer to
the Buyers Purchased Assets against the transfer of funds by the Buyers, with a
simultaneous agreement by the Buyers to transfer to Debtor such Purchased Assets
at a date certain or on demand against the transfer of funds by Debtor.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in the State of New York.
Any attempt by a Person, other than a Buyer, to obtain an
ownership interest or a security interest in the Collateral without the prior
written consent of the Buyers will violate the rights of the Buyers.
The parties intend that the Transactions under the Agreement
constitute purchases and sales of the property subject thereto. This financing
statement shall not be construed as evidence to the contrary.
FILING LOCATION: Maryland State Department of Assessments and Taxation
-8-
SCHEDULE I
[attached]
EXHIBIT I-C
FORM OF UCC FINANCING STATEMENT AMENDMENT
[See attached]
[GRAPHIC OMITTED]
UCC FINANCING STATEMENT AMENDMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
========================================================================
| A. NAME & PHONE CONTACT AT FILER [optional] |
| |
| Xxxxx Xxxx, Esquire |
| |
|______________________________________________________________________|
| B. SEND ACKNOWLEDGMENT TO: (Name and Address) |
| ______ ______ |
| | | |
| | | |
| | Cadwalader, Xxxxxxxxxx & Xxxx | |
| | 000 Xxxx Xxxxx Xxxxxx | |
| | Xxxxx 0000 | |
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 |
| ATTN: Xxxxx Xxxx |
| | | | THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
====================================================================================================================================
1a. INITIAL FINANCING STATEMENT FILE # |1b. This FINANCING STATEMENT AMENDMENT is
| to be filed [for record] (or recorded) in the
||_| REAL ESTATE RECORDS.
====================================================================================================================================
2. |_| TERMINATION: Effectiveness of the Financing Statement identified above is terminated with respect to security interest(s)
of the Secured Party authorizing this Termination Statement.
====================================================================================================================================
3. |_| CONTINUATION: Effectiveness of the Financing Statement identified above with respect to security interest(s) of the Secured
Party authorizing this Continuation Statement is continued for the additional period provided by applicable law.
====================================================================================================================================
4. |_| ASSIGNMENT (full or partial): Give name of assignee in item 7a or 7b and address of assignee in item 7c; and also give name
of assignor in item 9.
====================================================================================================================================
5. |_| AMENDMENT (PARTY INFORMATION): This Amendment affects |_| Debtor or |_| Secured Party of record. Check only one of these
two boxes. ---
Also check one of the following three boxes and provided appropriate information in items 6 and/or 7.
---
__ __ __
| | CHANGE name and/or address: Give current | | DELETE name: Give record name | | ADD name: Complete item 7a or 7b,
|__| record name in time 6a or 6b; also give |__| to be deleted in item 6a or 6b. |__| and also item 7c; also complete
new name (if name change) in item 7a or items 7d-7g (if applicable)
7b and/or new address (if address change)
in item 7c.
====================================================================================================================================
6. CURRENT RECORD INFORMATION:
------------------------------------------------------------------------------------------------------------------------------
|6a. ORGANIZATION'S NAME | | |
| | | |
OR |-----------------------------------------------------------|----------------------------------|--------------------|---------
|6b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX
| | | |
====================================================================================================================================
7. CHANGED (NEW) OR ADDED INFORMATION:
------------------------------------------------------------------------------------------------------------------------------
|7a. ORGANIZATION'S NAME | | |
| | | |
OR |-----------------------------------------------------------|----------------------------------|--------------------|---------
|7b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX
| | | |
------------------------------------------------------------------|----------------------------------|--------------------|---------
7c. MAILING ADDRESS | CITY | STATE| POSTAL CODE | COUNTRY
| | | |
------------------------------------------------------------------|----------------------------------|------------------------------
7d. TAX ID#: SSN OR EIN |ADD'L INFO RE |7e. TYPE OF ORGANIZATION |7f. JURISDICTION OF ORGANIZATION |7g.ORGANIZATIONAL ID #, if any
|ORGANIZATION | | | |_| NONE
|DEBTOR | | |
====================================================================================================================================
8. AMENDMENT (COLLATERAL CHANGE): check only one box.
Describe collateral |_|deleted or |_|added, or give entire |_|restated collateral description, or describe collateral
|_|assigned.
All of the Debtor's right, title and interest in, to and under each of the following items of property, whether now owned or
hereafter acquired, now existing or hereafter created and wherever located: (a) the Purchased Securities purchased by the
Secured Party pursuant to the Agreement (and identified in the Confirmations) and all "securities accounts" (as defined in
Section 8-501(a) of the UCC) created in connection therewith to which any or all of such Purchased Securities are credited; (b)
the Purchased Loans purchased by the Secured Party pursuant to the Agreement (and identified in the Confirmations), Servicing
Agreements in connection with the Agreement, Servicing Records in connection with the Agreement, insurance relating to such
Purchased Loans, and collection and escrow accounts relating to such Purchased Loans; (c) the Cash Management Account created in
connection with the Agreement and all monies from time to time on deposit in such Cash Management Account; (d) the Hedging
Agreements, if any; (e) all "general intangibles", "accounts", and "chattel paper" as defined in the UCC relating to or
constituting any and all of the foregoing; and (f) all replacements, substitutions or distributions on or proceeds, payments,
Income and profits of, and records (but excluding any financial models or other proprietary information) files relating to any
and all of the foregoing; all as further described on Annex I attached hereto.
====================================================================================================================================
9. NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT (name of assignor, if this is an Assignment). If this is an Amendment
authorized by a Debtor which adds collateral or adds the authorizing Debtor, or if this is a Termination authorized by a Debtor,
check here |_| and enter name of DEBTOR authorizing this Amendment.
------------------------------------------------------------------------------------------------------------------------------
|9a. ORGANIZATION'S NAME | | |
| | | |
OR |-----------------------------------------------------------|----------------------------------|--------------------|---------
|9b. INDIVIDUAL'S LAST NAME | FIRST NAME | MIDDLE NAME | SUFFIX
| | | |
====================================================================================================================================
10. OPTIONAL FILER REFERENCE DATA
====================================================================================================================================
FILING OFFICE COPY - NATIONAL UCC FINANCING STATEMENT AMENDMENT (FORM UCC3) (REV. 07/29/98)
NATUCC3 4/23/01 C T System Online
ANNEX I
attached to and made a part of
Uniform Commercial Code ("UCC")
Financing Statement, Form UCC-1
Debtor:
Secured Party:
The UCC Financing Statement, Form UCC-1, to which this Annex I is
attached and of which it forms a part, covers all of the Debtor's right, title
and interest in, to and under each of the following items of property, whether
now owned or hereafter acquired, now existing or hereafter created and wherever
located:
(a) the Purchased Securities purchased by the Secured Party pursuant to
the Agreement (and identified in the Confirmations and on Schedule I to
this Annex I) and all "securities accounts" (as defined in Section
8-501(a) of the UCC) created in connection therewith to which any of all
of such Purchased Securities are credited;
(b) the Purchased Loans purchased pursuant by the Secured Party to the
Agreement (and identified in the Confirmations and on Schedule I to this
Annex I), Servicing Agreements in connection with the Agreement,
Servicing Records in connection with the Agreement, insurance relating
to such Purchased Loans, and collection and escrow accounts relating to
such Purchased Loans;
(c) the Cash Management Account created in connection with the Agreement
and all monies from time to time on deposit in such Cash Management
Account;
(d) the Hedging Agreements, if any;
(e) all "general intangibles", "accounts", and "chattel paper" as
defined in the UCC relating to or constituting any and all of the
foregoing; and
(f) all replacements, substitutions or distributions on or proceeds,
payments, Income and profits of, and records (but excluding any
financial models or other proprietary information) and files relating to
any and all of any of the foregoing.
The following terms shall have the following meanings:
"Agreement" shall mean the Master Repurchase Agreement dated as
of March 4, 2005, by and among the Debtor and the Buyers, as the same may be
amended, supplemented or otherwise changed and in effect from time to time.
"B-Notes" shall mean (a) junior notes in commercial mortgage
loans having an "A/B" structure, (b) junior or senior or pari-passu
participations in performing commercial mortgage loans, or (c) participations in
instruments of a type referred to in the preceding clause.
"Buyers" shall mean the Secured Party and Banc of America
Securities LLC.
"Cash Management Account" shall mean a segregated interest
bearing account, in the name of the Buyers, established at the Depository.
"CMBS" shall mean performing commercial mortgage-backed
securities that (A) either (1) have a rating of at least "B+" from Standard and
Poor's and/or Fitch Inc., and/or "B1" from Moody's, or (2) are unrated
securities, in each case which are acceptable to the Buyers in their sole
discretion and (B) are denominated in United States Dollars.
"Confirmation" shall mean a written confirmation of each
Transaction sent from the Buyers and delivered to the Debtor in the form of
Exhibit I to the Agreement.
"Debtor" shall mean Capital Trust, Inc.
"Depository" shall mean PNC Bank, N.A. or any successor
Depository comparably rated and qualified and appointed by the Buyers with the
prior written consent of Debtor (which consent shall not be unreasonably
withheld or delayed).
"Eligible Assets" shall mean, collectively, the Eligible
Securities and the Eligible Loans.
"Eligible B Notes" shall mean B-Notes secured by liens on
properties described in the definition of "Eligible Loans", in each case which
conform in all material respects to the applicable representations and
warranties set forth in Exhibit VI to the Agreement (except as otherwise agreed
by the Buyers), are otherwise acceptable to the Buyers in their sole discretion,
and as to which (i) the Stressed LTV for the Mortgaged Property from which
payments on such participation interest or junior note are derived or securing
indirectly such participation interest or junior note (including for purposes of
this calculation, such participation interest or junior note and any loan senior
to such participation interest or junior note and secured directly or indirectly
by the related Mortgaged Property and excluding any more junior loan or
participation) does not exceed 95%, and (ii) the Stressed DSCR is greater than
1.05X.
"Eligible First Lien Loans" shall mean performing loans, or
senior participations therein, secured by first liens in properties described in
the definition of "Eligible Loans" which conform in all material respects to the
applicable representations and warranties set forth in Exhibit VI to the
Agreement (except as otherwise agreed by the Buyers), are otherwise acceptable
to the Buyers in their sole discretion, and as to which (i) the Stressed LTV for
the Mortgaged Property securing such loan (including for purposes of this
calculation, such loan and any loan secured by a first lien on the related
Mortgaged Property and excluding any more junior loan) does not exceed 95%, and
(ii) the Stressed DSCR is greater than 1.05X.
"Eligible Loans" shall mean any of the following types of
performing loans, which are otherwise acceptable to the Buyers in their sole
discretion and are secured directly or indirectly by or the payments on which
are derived from a property that may include, but not be limited to,
multifamily, retail, office, industrial, warehouse, condominium, or hospitality
property (or any other property type acceptable to the Buyers in the exercise of
their good faith business judgment) that is located in the United States of
America:
(i) Eligible Mezzanine Loans;
(ii) Eligible First Lien Loans; and
(iii) Eligible B Notes.
-13-
"Eligible Mezzanine Loans" shall mean performing loans or
participations therein evidenced by mezzanine notes and secured by pledges of
ownership interests in entities that directly or indirectly own properties
described in the definition of "Eligible Loans" (or participation interests in
such performing mezzanine loans), which conform in all material respects to the
applicable representations and warranties set forth in Exhibit VI to the
Agreement (except as otherwise agreed by the Buyers), are otherwise acceptable
to the Buyers in their sole discretion, and as to which (i) the Stressed LTV for
the Mortgaged Property from which payments on such mezzanine loan are derived
(including for purposes of this calculation, such mezzanine loan and any loan
senior to such mezzanine loan and secured directly or indirectly by the related
Mortgaged Property and excluding any more junior loan or participation) does not
exceed 95%, and (ii) the Stressed DSCR, calculated on the same basis, is greater
than 1.05X.
"Eligible Securities" shall mean (i) CMBS which are acceptable to
the Buyers in their sole discretion and (ii) any real estate investment trust
debt securities or collateralized debt obligation securities which are not
described in clause (i) but which the Buyers elect to purchase in its sole
discretion.
"Hedging Agreements" shall mean, with respect to any of all of
the Purchased Assets, and futures options contract or any interest rate swap,
cap or collar agreement or similar derivative instruments providing for
protection against fluctuations in interest rates or the exchange of nominal
interest obligations, either generally or under specific contingencies, entered
into by Debtor; provided, that any hedging shall be mutually agreed upon by
Debtor and the Buyers; provided further, that should Debtor and the Buyers agree
to hedge a Purchased Asset, Bank of America, N.A. shall act as swap counterparty
provided that Bank of America, N.A. provides commercially reasonable market
terms.
"Income" shall mean with respect to any Security at any time, any
principal thereof and all interest, dividends or other distributions thereon.
"Mortgage" shall mean a mortgage, deed of trust, deed to secure
debt or other instrument, creating a valid and enforceable lien on or an
ownership interest in an estate in fee simple or leasehold estate in real
property and the improvements thereon, securing a mortgage note or similar
evidence of indebtedness.
"Mortgage Note" shall mean a note or other evidence of
indebtedness of a Mortgagor secured by a Mortgage.
"Mortgaged Property" shall mean the real property securing
repayment of the debt evidenced by a Mortgage Note.
"Mortgagor" shall mean the obligor on a Mortgage Note and the
grantor of the related Mortgage.
"Purchased Assets" shall mean, collectively, the Purchased
Securities and the Purchased Loans.
"Purchased Loans" shall mean (i) with respect to any Transaction,
the Eligible Loans sold by Debtor to the Buyers in such Transaction until such
Eligible Loans are repurchased pursuant to the Agreement, including, without
limitation, the loans listed in Schedule I hereto and (ii) with respect to the
Transactions in general, all Eligible Loans sold by Debtor to the Buyers and any
additional collateral delivered by Debtor to the Buyers pursuant to Section 3 of
the Agreement until such Eligible Loans are repurchased pursuant to the
Agreement.
-14-
"Purchased Securities" shall mean, (i) with respect to any
Transaction, the Eligible Securities sold by Debtor to the Buyers in such
Transaction until such Eligible Securities are repurchased pursuant to the
Agreement, including, without limitation, the securities listed in Schedule I
hereto until such Securities are repurchased pursuant to the Agreement and (ii)
with respect to the Transactions in general, all Eligible Securities sold by
Debtor to the Buyers and any additional collateral delivered by Debtor to the
Buyers pursuant to Section 3 of the Agreement until such Eligible Securities are
repurchased pursuant to the Agreement. Whenever Purchased Securities are rated
by more than one Rating Agency and a split rating applies to such Purchased
Securities (i.e., one Rating Agency rates such Purchased Securities at a lower
rating level than the other of such Rating Agencies), then for all purposes of
the Agreement where a rating is to be selected, the lower of the ratings shall
apply.
"Rating Agency" shall mean either of Fitch Inc. or Standard &
Poor's.
"Servicing Agreement" shall mean any and all agreements relating
to the servicing of the Purchased Loans so long as the Purchased Loans are
subject to the Agreement.
"Servicing Records" shall mean any and all records relating to or
evidencing the servicing of Purchased Loans so long as the Purchased Loans are
subject to the Agreement, including any and all files, documents, records,
databases, computer tapes, copies of computer tapes, proof of insurance
coverage, insurance policies, appraisals, other closing documentation, payment
history records and any other such records.
"Stressed DSCR" shall mean, with respect to each Eligible Asset,
the stressed debt service coverage ratio as calculated in accordance with Fitch
Inc.'s then current criteria.
"Stressed LTV" shall mean, with respect to each Eligible Asset,
the stressed loan-to-value ratio as calculated in accordance with Standard &
Poor's criteria.
"Transaction" shall mean any transaction the Buyers and Debtor
may enter into from time to time pursuant to which Debtor agrees to transfer to
the Buyers Purchased Assets against the transfer of funds by the Buyers, with a
simultaneous agreement by the Buyers to transfer to Debtor such Purchased Assets
at a date certain or on demand against the transfer of funds by Debtor.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in the State of New York.
Any attempt by a Person, other than a Buyer, to obtain an
ownership interest or a security interest in the Collateral without the prior
written consent of the Buyers will violate the rights of the Buyers.
The parties intend that the Transactions under the Agreement
constitute purchases and sales of the property subject thereto. This financing
statement shall not be construed as evidence to the contrary.
FILING LOCATION: Maryland State Department of Assessments and Taxation
-15-
SCHEDULE I
[attached]
EXHIBIT II
AUTHORIZED REPRESENTATIVES OF SELLER
Name Specimen Signature
---- ------------------
Xxxx X. Xxxxx _______________________________________
Xxxxxxx X. Xxxxxx _______________________________________
Xxxxx X. Xxxxxx _______________________________________
II-1
EXHIBIT III
MONTHLY SERVICER REPORT
-----------------------
FORM OF AGGREGATE COLLATERAL REPORT
AGGREGATE COLLATERAL REPORT INFORMATION
FOR EACH PURCHASED SECURITY
Servicer Loan Number
Borrower Name
Beginning Principal Balance
Interest Rate or Pay Rate
Pmt Due Date
Principal Paid
Accrued Interest Paid
Other Interest Paid
Senior and Sub Servicer Fees Withheld
Borrower Paid Service Fees to Lender
Service Fees Paid by Borrower
Service Fees Paid by Lender
Net Interest
Net Remittance
Non-Cash Adj. and Advances
Ending Principal Balance
III-1
EXHIBIT IV
FORM OF CUSTODIAL DELIVERY
On this ______ of ________, 20__, CAPITAL TRUST, INC. ("Seller"),
as Seller under that certain Master Repurchase Agreement, dated as of January
__, 2005 (the "Repurchase Agreement") between Seller, BANC OF AMERICA SECURITIES
LLC and BANK OF AMERICA, N.A. (together with Banc of America Securities LLC, the
"Buyers"), does hereby deliver to [_____________] ("Custodian"), as custodian
under that certain Custodial Agreement, dated as of March __, 2005, among
Buyers, Seller and Custodian, the Purchased Loan Files with respect to the
Purchased Loans to be purchased by Buyers pursuant to the Repurchase Agreement,
which Purchased Loans are listed on the Purchased Loan Schedule attached hereto
and which Purchased Loans shall be subject to the terms of the Custodial
Agreement on the date hereof.
With respect to the Purchased Loan Files delivered hereby, for
the purposes of issuing the Trust Receipt, the Custodian shall review the
Purchased Loan Files to ascertain delivery of the documents listed in Section
3(g) to the Custodial Agreement.
Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Custodial Agreement.
IN WITNESS WHEREOF, Seller has caused its name to be signed
hereto by its officer thereunto duly authorized as of the day and year first
above written.
CAPITAL TRUST, INC., a Maryland
corporation
By: __________________________________
Name:_____________________________
Title:____________________________
IV-1
EXHIBIT V
FORM OF POWER OF ATTORNEY
"Know All Men by These Presents, that CAPITAL TRUST, INC.
("Seller"), does hereby appoint each of BANC OF AMERICA SECURITIES LLC and BANK
OF AMERICA, N.A. ("Buyer"), its attorney-in-fact to act in Seller's name, place
and stead in any way which Seller could do with respect to (i) the completion of
the endorsements of the Mortgage Notes and the Assignments of Mortgages and the
Mezzanine Notes, (ii) the recordation of the Assignments of Mortgages and (iii)
the enforcement of Seller's rights under the Purchased Loans purchased by Buyers
pursuant to the Master Repurchase Agreement dated as of March ___, 2005 (the
"Repurchase Agreement") between Seller and Buyers and to take such other steps
as may be necessary or desirable to enforce Buyers' rights against such
Purchased Loans, the related Purchased Loan Files and the Servicing Records to
the extent that Seller is permitted by law to act through an agent. Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
such terms in the Repurchase Agreement.
TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, SELLER HEREBY AGREES
THAT ANY THIRD PARTY RECEIVING A DULY EXECUTED COPY OF FACSIMILE OF THIS
INSTRUMENT MAY ACT HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE
INEFFECTIVE AS TO SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR KNOWLEDGE
OR SUCH REVOCATION OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY,
AND SELLER ON ITS OWN BEHALF AND ON BEHALF OF SELLER'S ASSIGNS, HEREBY AGREES TO
INDEMNIFY AND HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND AGAINST ANY AND ALL
CLAIMS THAT MAY ARISE AGAINST SUCH THIRD PARTY BY REASON OF SUCH THIRD PARTY
HAVING RELIED ON THE PROVISIONS OF THIS INSTRUMENT.
IN WITNESS WHEREOF Seller has caused this Power of Attorney to be
executed this __th day of March 2005.
CAPITAL TRUST, INC., a Maryland
corporation
By: __________________________________
Name:_____________________________
Title:____________________________
V-1
EXHIBIT VI
REPRESENTATIONS AND WARRANTIES REGARDING EACH INDIVIDUAL
PURCHASED LOAN WHICH IS AN ELIGIBLE FIRST LIEN LOAN
With respect to each Purchased Loan which is an Eligible First Lien Loan
Seller represents and warrants on each Purchase Date as follows, other than as
set forth on the exception report provided to Buyers in accordance with the
Agreement (the parties agreeing that where a representation or warranty with
respect to a Purchased Asset is qualified "to the knowledge" of Seller, the
failure of such representation and warranty to be true (without regard to the
actual knowledge of such failure by Seller) shall be taken into account in
determining the Market value of such Purchased Asset).
1. Purchased Loan Schedule and Purchased Loan Information. The
information set forth in the Purchased Loan Schedule and the Purchased Loan
Information is complete, true and correct in all material respects as of the
date thereof.
2. Ownership of Purchased Loans. Immediately prior to the transfer to
Buyers of the Purchased Loans, Seller had good title to, and was the sole
owner of, each Purchased Loan. Seller has full right, power and authority to
transfer and assign each of the Purchased Loans to or at the direction of
Buyers and has validly and effectively conveyed (or caused to be conveyed) to
Buyers or their designee all of Seller's legal and beneficial interest in and
to the Purchased Loans free and clear of any and all pledges, liens, charges,
security interests and/or other encumbrances. The sale of the Purchased Loans
to Buyers or their designee does not require Seller to obtain any governmental
or regulatory approval or consent that has not been obtained.
3. Payment Record. The Purchased Loan is performing and no scheduled
payment of principal and interest under any Purchased Loan was 30 days or more
past due as of the Purchase Date without giving effect to any applicable grace
period, and no Purchased Loan was at any time 30 days or more delinquent.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Purchased Loan constitutes a valid and enforceable lien
upon the related Mortgaged Property, prior to all other liens and
encumbrances, except for
(a) the lien for current real estate taxes and assessments not
yet due and payable,
(b) covenants, conditions and restrictions, rights of way,
easements and other matters that are for Mortgagor's benefit or are
insured by the related lender's title insurance policy,
(c) other matters to which like properties are commonly subject,
none of which matters referred to in clauses (b) or (c) interferes with
the security intended to be provided by such Mortgage or the
marketability or current use of the Mortgaged Property or the current
ability of the Mortgaged Property to
VI-1
generate operating income sufficient to service the Purchased Loan debt
(the foregoing items (a) through (c) being herein referred to as the
"Permitted Encumbrances"). The related assignment of such Mortgage
executed and delivered in favor of Buyers is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and
interest in, to and under such Mortgage. Such Mortgage establishes and
creates a valid and enforceable security interest in favor of the holder
thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate the related Mortgaged Property. A
Uniform Commercial Code financing statement has been filed and/or
recorded in all places necessary to perfect a valid security interest in
such personal property, and such security interest is a first or second
priority security interest, subject to any prior purchase money security
interest in such personal property and any personal property leases
applicable to such personal property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in
rents or other personal property to the extent that possession or
control of such items or actions other than the filing of Uniform
Commercial Code financing statements are required in order to effect
such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases set forth in
the Mortgage (or in a separate instrument) and related to and delivered in
connection with each Purchased Loan establishes and creates a valid,
subsisting and enforceable perfected lien and security interest in the related
Mortgagor's interest in all leases, sub-leases, licenses or other agreements
pursuant to which any person is entitled to occupy, use or possess all or any
portion of the real property subject to the related Mortgage, and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases, not included in a Mortgage, executed
and delivered in favor of Buyers is in recordable form and constitutes a
legal, valid and binding assignment, sufficient to convey to the assignee
named therein all of the assignor's right, title and interest in, to and under
such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage or Mortgage
Note has been satisfied, canceled, rescinded or subordinated in whole or in
part, and the related Mortgaged Property has not been released from the lien
of such Mortgage, in whole or in material part, nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release. None of the terms of any Mortgage Note, Mortgage or
Assignment of Leases have been impaired, waived, altered or modified in any
material respect, except by written instruments, all of which are included in
the related Mortgage File.
7. Condition of Property; Condemnation. Except as set forth in an
engineering report prepared in connection with the origination or acquisition
of the related Purchased Loan and included in the related Purchased Loan File,
to Seller's actual knowledge each Mortgaged Property is free and clear of any
damage that would materially and adversely affect its value as security for
the related Purchased Loan (normal wear and tear excepted), except to the
extent reserves have been established to cover the costs to remediate such
damages. Neither Seller nor mortgagee has received
VI-2
notice of any pending or threatened proceeding for the condemnation of all or
any portion of any Mortgaged Property. As of the date of the origination or
acquisition of each Purchased Loan, all of the improvements on the related
Mortgaged Property which were considered in determining the appraised value of
the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's title insurance policy referred to herein or that do
not materially and adversely affect the value or marketability of such
Mortgaged Property, and no improvements on adjoining properties encroach upon
such Mortgaged Property, except those encroachments that are insured against
by the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form thereof as adopted in the
applicable jurisdiction) lender's title insurance policy (or, if a title
policy meeting the foregoing description has not yet been issued, is evidenced
by a commitment for title insurance "marked up" at the closing of such
Purchased Loan and a binding enforceable commitment of the applicable title
insurance company to issue the policy described in such commitment without any
conditions to such issuance) (the "Title Policy") in the original principal
amount of the related Purchased Loan after all advances of principal. Each
Title Policy insures that the related Mortgage is a valid first priority lien
on such Mortgaged Property, subject only to the Permitted Encumbrances. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and
no claims have been made thereunder. No holder of the related Mortgage has
done, by act or omission, anything that would impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Purchased Loan to Buyers, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of Buyers
without the consent of or notice to the insurer.
9. No Holdbacks. Except as set forth on the Purchased Loan Schedule, the
proceeds of each Purchased Loan have been fully disbursed and there is no
obligation for future advances with respect thereto. With respect to each
Purchased Loan, any and all requirements as to completion of any on-site or
off-site improvement and as to disbursements of any funds escrowed for such
purpose that were to have been complied with on or before the Purchase Date
have been complied with, or any such funds so escrowed have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Purchased Loan contain customary and enforceable provisions such as would be
expected to render the rights and remedies of the holder thereof adequate for
the practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby.
11. Buyer under Deed of Trust. If any Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
VI-3
12. Environmental Conditions. An environmental site assessment (or an
update of a previous assessment) was performed with respect to each Mortgaged
Property in connection with the origination or acquisition of the related
Purchased Loan, a report of each such assessment (an "Environmental Report")
has been delivered to Buyers and a copy has been included as part of the
related Purchased Loan File, and, to Seller's actual knowledge, there is no
adverse environmental condition or circumstance affecting any Mortgaged
Property that was not disclosed in such report. To Seller's actual knowledge,
each related Mortgagor is now in compliance, and each Mortgage requires the
related Mortgagor to cause any tenants leasing space at the related Mortgaged
Property to comply with all applicable federal, state and local environmental
laws and regulations. Where such Environmental Report disclosed the existence
of a material and adverse environmental condition or circumstance affecting
any Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or circumstance, (ii)
the related Mortgagor was required either to provide additional security
and/or to obtain an operations and maintenance plan or (iii) the related
Mortgagor provided evidence that applicable federal, state or local
governmental authorities would not take any action, or require the taking of
any action, in respect of such condition or circumstance. The related
Purchased Loan Documents contain provisions pursuant to which the related
borrower or a principal of such borrower has agreed to indemnify the mortgagee
for damages resulting from violations of any applicable Environmental Laws.
13. Loan Document Status. Each Mortgage Note, Mortgage and any other
agreement that evidences or secures a Purchased Loan and that was executed by
or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements), enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity (regardless
of whether such enforcement is considered in a proceeding in equity or at
law). Seller has not received any written notice of any and to Seller's actual
knowledge there are no valid defenses, counterclaims or rights of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements.
14. Insurance. Each Mortgaged Property is required pursuant to the
related Mortgage to be and is insured by (a) a fire and extended perils
insurance policy issued by an insurer meeting the requirements of such
Purchased Loan providing coverage against loss or damage sustained by reason
of fire, lightning, windstorm, hail, explosion, riot, riot attending a strike,
civil commotion, aircraft, vehicles and smoke, and, to the extent required as
of the date of origination by the originator of such Purchased Loan consistent
with its normal commercial mortgage lending practices, against other risks
insured against by persons operating like properties in the locality of the
Mortgaged Property in an amount not less than the lesser of the principal
balance of the related Purchased Loan and the replacement cost (not allowing
for depreciation) of the Mortgaged Property, and not less than the amount
necessary to avoid the operation of any co-insurance provisions with respect
to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to twelve months of operations
of the Mortgaged Property (other than Manufactured Housing Communities); (c) a
flood
VI-4
insurance policy (if any portion of the Mortgaged Property is located in an
area identified by the Federal Emergency Management Agency as having special
flood hazards) in an amount generally required by mortgage lenders and (d) a
comprehensive general liability insurance policy in amounts as are generally
required by commercial mortgage lenders. Such insurance policy contains a
standard mortgagee clause that names the mortgagee as an additional insured
and that requires at least thirty days' (in the case of termination or
cancellation other than for nonpayment of premiums) and at least ten (10)
days' (in the case of termination or cancellation for nonpayment of premiums)
prior notice to the holder of the Mortgage, and no such notice has been
received, including any notice of nonpayment of premiums. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement ~herefore from such Mortgagor. Other than as set forth in
paragraph 17(h) hereof, each Mortgage provides that casualty insurance
proceeds will be applied either to the restoration or repair of the related
Mortgaged Property or to the reduction or defeasance of the principal amount
of the Purchased Loan.
15. Taxes and Assessments. To Seller's actual knowledge, there are no
delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property which are or may become a lien of priority higher than the lien of
the related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered unpaid until the date
on which interest and/or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. To Seller's actual knowledge, no Mortgagor and
no tenant leasing space at the Related Mortgaged Property which constitutes
more than [20]% of the gross leased space or which leases at least [10,000]
square feet of such Mortgaged Property is a debtor in any state or federal
bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Purchased Loan
is secured in whole or in part by the interest of a Mortgagor as a lessee
under a ground lease of a Mortgaged Property (a "Ground Lease"), by the
related Mortgagor's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest"). With respect to any
Purchased Loan secured by a Ground Lease but not by the related Fee Interest:
a. Such Ground Lease or a memorandum thereof has been duly
recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between Seller and related lessor) permits the
current use of the Mortgaged Property and permits the interest of the
lessee thereunder to be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such lessee, its
successors or assigns in a manner that would adversely effect the
security provided by the related Mortgage by limiting in any way its
current use; and there has been no change in the payment terms of
VI-5
such Ground Lease since the origination or acquisition of the related
Purchased Loan, with the exception of changes reflected in written
instruments that are a part of the related Mortgage File;
b. The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances other than Permitted Encumbrances;
c. The Mortgagor's interest in such Ground Lease is assignable
to Buyers and their successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required,
it has been obtained prior to the Purchase Date) and, in the event that
it is so assigned, is further assignable by Buyers and their successors
and assigns upon notice to, but without the need to obtain the consent
of, such lessor;
d. Such Ground Lease is in full force and effect, and no event
of default has occurred, Seller has received no notice that an event of
default has occurred thereunder, and there exists no condition that, but
for the passage of time or the giving of notice, or both, would result
in an event of default under the terms of such Ground Lease;
e. Such Ground Lease, or an estoppel letter or other agreement,
(A) requires the lessor under such Ground Lease to give notice of any
default by the lessee to the mortgagee, provided that the mortgagee has
provided the lessor with notice of its lien in accordance with the
provisions of such Ground Lease to the extent such Ground Lease requires
such notice, (B) further provides that no notice of termination given
under such Ground Lease (including rejection of such Ground Lease in a
bankruptcy proceeding) is effective against the holder of the Mortgage
unless a copy of such notice has been delivered to such holder and the
lessor has offered to enter into a new lease with such holder on terms
that do not materially vary from the economic terms of the Ground Lease;
f. A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of
the lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
g. Such Ground Lease has an original term (including any
extension options set forth therein that can be exercised by the
mortgagee if the mortgagee acquires the lessee's rights under the Ground
Lease) which extends not less than twenty years beyond the stated
maturity date of the related Purchased Loan;
h. Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or condemnation
award other than in respect of a total loss will be applied either to
the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a designee appointed by it having the
right to hold and disburse such proceeds as the repair
VI-6
or restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender for conduit programs), or to the payment or defeasance of the
outstanding principal balance of the Purchased Loan together with any
accrued interest thereon;
i. Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders;
j. Such Ground Lease provides, or the lessor has otherwise
agreed, that such Ground Lease may not be amended or modified in any
manner materially adverse to the interest of the mortgagee without the
prior written consent of the mortgagee under such Purchased Loan; and
k. The ground lessor is required to enter into a new lease with
Seller upon termination of the Ground Lease for any reason including
rejection of the Ground Lease in bankruptcy.
18. Escrow Deposits. All escrow deposits relating to each Purchased Loan
that are, as of the Purchase Date, required to be deposited with Seller or its
agent have been so deposited.
19. Stressed LTV Ratio. The gross proceeds of each Purchased Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Purchased Loan and either: (a) such Purchased Loan is secured by
an interest in real property having a fair market value (i) at the date the
Purchased Loan was originated at least equal to 95 percent of the original
principal balance of the Purchased Loan or (ii) at the Purchase Date at least
equal to 95 percent of the principal balance of the Purchased Loan on such
date; provided that for purposes hereof, the fair market value of the real
property interest must first be reduced by (x) the amount of any lien on the
real property interest that is senior to the Purchased Loan and (y) a
proportionate amount of any lien that is in parity with the Purchased Loan
(unless such other lien secures a Purchased Loan that is cross-collateralized
with such Purchased Loan, in which event the computation described in clauses
(a)(i) and (a)(ii) of this paragraph 19 shall be made on a pro rata basis in
accordance with the fair market values of the Mortgaged Properties securing
such cross-collateralized Purchased Loans; or (b) substantially all the
proceeds of such Purchased Loan were used to acquire, improve or protect the
real property which served as the only security for such Purchased Loan (other
than a recourse feature or other third party credit enhancement within the
meaning of Treasury Regulations Section 1.860G-2(a)(1)(ii)).
20. Advancement of Funds by Seller. Seller has not and no other holder
of a Purchased Loan has advanced funds or induced, solicited or received any
advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by
such Purchased Loan.
VI-7
21. No Mechanics' Liens. As of the date of the Mortgage, and to the
actual knowledge of Seller as of the Purchase Date, each Mortgaged Property is
free and clear of any and all mechanics' and materialmen's liens, and no
rights are outstanding that under law could give rise to any such lien.
22. Compliance with Usury Laws. Each Purchased Loan complied with, or is
exempt from, all applicable usury laws in effect at its date of origination.
23. Cross-collateralization; Cross-default. No Purchased Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Purchased Loans, unless either (a) the effect of such
cross-collateralization or cross-default provision is being terminated
simultaneously herewith or (b) such Purchased Loan is subject to a standstill
and release agreement reasonably acceptable to Buyers which prohibits any
action against the borrower under the Purchased Loan and against the Mortgaged
Property by the holder of such other loan and requires release of any such
cross-collateralization at the request of Buyers upon the occurrence and
during the continuation of an Event of Default if Seller shall have failed to
repurchase such Purchased Loan pursuant to the terms of the Agreement.
24. Releases of Mortgaged Property. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon payment
in full of all amounts due under the related Purchased Loan; provided, that
the mortgagee may be required to grant releases of portions of the related
Mortgaged Properties if (a) release is conditioned upon the satisfaction of
certain legal and underwriting requirements or the payment of a release price
or (b) a total or partial defeasance is effected in respect of such Purchased
Loan. No Purchased Loan permits the release or substitution of collateral if
such release or substitution (a) would create a "significant modification" of
such Purchased Loan within the meaning of Treas. Reg. ss.1.1001 3 or (b) would
cause such Purchased Loan not to be a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (without regard to clauses (A)(i) or (A)(ii)
thereof).
25. No Equity Participation or Contingent Interest. No Purchased Loan
contains any equity participation by the lender or provides for negative
amortization or for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property.
26. No Material Default. To Seller's actual knowledge, there exists no
event of default, material default, breach or event of acceleration under the
documents evidencing or securing the Purchased Loan. Seller has not waived any
event of default, material default or breach under the Purchased Loan
Documents.
27. Local Law Compliance. To Seller's actual knowledge, the improvements
located on or forming part of the related Mortgaged Property comply with
applicable zoning laws and ordinances, or constitute legal non-conforming uses
or structures or, if any such improvement does not so comply, such
non-compliance does not materially and adversely affect the value of the
related Mortgaged Property.
VI-8
28. Junior Liens. None of the Purchased Loans permits the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage without the prior written consent of the
holder thereof. None of the Mortgaged Properties is encumbered by any lien
junior to the lien of the related Mortgage. Each Purchased Loan contains a
"due on sale" clause that provides for the acceleration of the payment of the
unpaid principal balance of the Purchased Loan if, without the prior written
consent of the holder of the Purchased Loan, the related Mortgaged Property is
transferred or sold.
29. Actions Concerning Purchased Loans. To the actual knowledge of
Seller, there are no actions, suits or proceedings pending or threatened
before any court, administrative agency or arbitrator concerning any Purchased
Loan or related Mortgagor or Mortgaged Property that might materially and
adversely affect the value of the Mortgaged Property as security for the
Purchased Loan.
30. Servicing. The servicing and collection practices used by Seller
have been in all material respects legal, proper and prudent and have met
customary industry standards for servicing of commercial loans similar to the
Purchased Loans in question.
31. Licenses and Permits. As of the date of origination of the Purchased
Loan, to Seller's actual knowledge, the related Mortgagor was in possession of
all material licenses, permits and franchises required by applicable law for
the ownership and operation of the related Mortgaged Property as it was then
operated.
32. Assisted Living Facility Regulation. If any Mortgaged Property is
operated as an assisted living facility, (a) the related Mortgagor and
operator, if different, is in compliance in all material respects with all
federal and state laws applicable to the use and operation of the related
Mortgaged Property and (b) if the operator of the Mortgaged Property
participates in Medicare or Medicaid programs, the facility is in compliance
in all material respects with the requirements for participation in such
programs.
33. Non-Recourse Exceptions. The Purchased Loan Documents for each
Purchased Loan provide that such Purchased Loan constitutes the non-recourse
obligations of the related obligor thereon except that either (i) such
provision does not apply in the case of fraud, misappropriation of awards,
rents, proceeds, bankruptcy of Mortgagor and other carve-outs that are
customary by the Mortgagor or (ii) such documents provide that the Mortgagor
shall be liable to the holder of the Purchased Loan for losses incurred as a
result of fraud by the Mortgagor.
34. Single Purpose Entity. The Mortgagor on each Purchased Loan with an
outstanding principal balance in excess of $10,000,000, was, as of the
origination of the Purchased Loan, a Single Purpose Entity. For this purpose,
a "Single Purpose Entity" shall mean an entity, other than an individual,
whose organizational documents provide substantially to the effect that it was
formed or organized solely for the purpose of owning and operating one or more
Mortgaged Properties securing the Purchased Loans and prohibit it from
engaging in any business unrelated to such Mortgaged Property or
VI-9
Properties, and whose organizational documents further provide, or which
entity represented in the related Purchased Loan documents, substantially to
the effect that it does not have any assets other than those related to its
interest in and operation of such Mortgaged Property or Properties, or any
indebtedness other than as permitted by the related Mortgage or the other
related Purchased Loan documents, that it has its own books and records and
accounts separate and apart from any other person, and that it holds itself
out as a legal entity, separate and apart from any other person.
Each borrower of a Purchased Loan in excess of $10,000,000 is an entity
which has represented in connection with the origination of the Purchased Loan,
or whose organizational documents as of the date of origination of the Purchased
Loan, provided that so long as the Purchased Loan is outstanding it will have at
least one independent director, manager or executive committee member.
35. Separate Tax Parcels. Each Mortgaged Property constitutes one or
more complete separate tax lots or is subject to an endorsement under the
related title insurance policy.
36. Operating or Financial Statement. The related Purchased Loan
Documents require the related borrower to furnish to the mortgagee at least
annually an operating statement with respect to the related Mortgaged
Property.
37. Inspections. Seller (or if Seller is not the originator, the
originator of the Purchased Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Purchased
Loan.
38. Defeasance. Each Purchased Loan containing provisions for defeasance
of mortgage collateral either (i) requires the prior written consent of, and
compliance with the conditions set by, the holder of the Purchased Loan, or
(ii) requires that (A) defeasance may not occur prior to the time permitted by
applicable "real estate mortgage investment conduit" rules and regulations (if
applicable), (B) the replacement collateral consist of U.S. governmental
securities in an amount sufficient to make all scheduled payments under the
Mortgage Note when due, (C) independent public accountants certify that the
collateral is sufficient to make such payments, (D) counsel provide an opinion
that Buyer has a perfected security interest in such collateral prior to any
other claim or interest, and (E) all costs and expenses arising from the
defeasance of the mortgage collateral shall be borne by the borrower.
39. Fraud. No fraudulent acts were committed by Seller in connection
with its acquisition or origination of such Purchased Loan nor were any
fraudulent acts committed by any Person in connection with the origination of
such Purchased Loan.
40. Other Agreements. Except as included in the related Purchased Loan
File, Seller is not a party to any document, instrument or agreement, and
there is no document, that by its terms modifies or affects the rights and
obligations of any holder of such Purchased Loan and Seller has not consented
to any material change or waiver to any
VI-10
term or provision of any such document, instrument or agreement and no such
change or waiver exists.
41. Appraisal. An appraisal of the related Mortgaged Property was
conducted in connection with the origination of such Purchased Loan; and such
appraisal satisfied either (A) the requirements of the "Uniform Standards of
Professional Appraisal Practice" as adopted by the Appraisal Standards Board
of the Appraisal Foundation, or (B) the guidelines in Title XI of the
Financial Institutions Reform, Recovery and Enforcement Act or 1989, in either
case as in effect on the date such Purchased Loan was originated.
REPRESENTATIONS AND WARRANTIES REGARDING EACH INDIVIDUAL
PURCHASED LOAN WHICH IS AN ELIGIBLE MEZZANINE LOAN
With respect to each Purchased Loan which is an Eligible Mezzanine Loan,
Seller represents and warrants on each Purchase Date (i) that each
representation or warranty set forth in any other section of this Exhibit VI
which pertains to the underlying Mortgaged Property related to such Purchased
Loan is to Seller's actual knowledge true and correct in all respects, and (ii)
that on each Purchase Date, other than as set forth on the exception report
provided to Buyer in accordance with the Agreement:
1. Purchased Loan Information. The information set forth in the
Purchased Loan Schedule is complete, true and correct in all material
respects.
2. No Default or Dispute Under Purchased Loan Documents. To Seller's
actual knowledge, there exists no material default, breach or event of
acceleration (and no event which, with the passage of time or the giving of
notice, or both, would constitute any of the foregoing) under the documents
evidencing or securing the Purchased Loan, in any such case to the extent the
same materially and adversely affects the value of the Purchased Loan and the
related underlying real property.
3. No Offsets, Defenses or Counterclaims. To Seller's actual knowledge,
there is no valid offset, defense or counterclaim to such Purchased Loan.
4. Equity Pledges. With respect to each Purchased Loan which is an
Eligible Mezzanine Loan only, the pledge of ownership interests securing such
Purchased Loan encumbers the direct or indirect equity or ownership interests
in the underlying real property owner and has been fully first priority
perfected in favor of Seller as mezzanine lender.
5. Lockbox. The lockbox administrator, if any, is not an Affiliate of
Seller.
6. Enforceability. The Purchased Loan Documents have been duly and
properly executed by Seller, and each is the legal, valid and binding
obligation of the parties thereto, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally and by general principles of
equity (regardless of whether such enforcement is considered in a proceeding
in equity or
VI-11
at law). The Purchased Loan is not usurious. Seller has fully and validly
perfected all security interests created or intended to be created pursuant to
the Purchased Loan Documents.
7. Waivers and Modifications. The terms of the related Purchased Loan
Documents have not been impaired, waived, altered or modified in any material
respect (other than by a written instrument which is included in the related
Purchased Loan File).
8. Valid Assignment. The assignment of Purchased Loan constitutes the
legal, valid and binding assignment of such Purchased Loan from Seller to or
for the benefit of Buyer. No consent or approval by any third party is
required for any such assignment of such Purchased Loan, for Buyers' exercise
of any rights or remedies under the assignment of Purchased Loan, or for
Buyers' sale or other disposition of such Purchased Loan if Buyers acquire
title thereto, other than consents and approvals which have been obtained. No
third party (including underlying real property owner and underlying real
property mortgagee) holds any "right of first refusal," "right of first
negotiation," "right of first offer," purchase option, or other similar rights
of any kind on account of the occurrence of any of the foregoing. No other
impediment exists to any such transfer.
9. Certain Representations and Warranties. To Seller's actual knowledge,
all representations and warranties in the Purchased Loan Documents and in the
underlying real property mortgage documents are true and correct in all
material respects.
10. Parties Authorized. To the extent required under applicable law as
of the Purchase Date, to Seller's actual knowledge, each party to the
Purchased Loan Documents was authorized to do business in the jurisdiction in
which the related underlying real property is located at all times when it
held the Purchased Loan to the extent necessary to ensure the validity and
enforceability of such Purchased Loan.
11. No Advances of Funds. No party to the Purchased Loan Documents has
advanced funds on account of any default under the Purchased Loan or under the
underlying real property mortgage documents.
12. Servicing. The servicing and collection practices used by Seller for
the Purchased Loan have complied with applicable law in all material respects
and are consistent with those employed by prudent servicers of comparable
loans.
13. No Assignment. Seller has not effectuated any transfer, sale,
assignment, hypothecation, or other conveyance of any of its rights and
obligations under any Purchased Loan Document, except in connection with the
Agreement.
14. No Bankruptcy. None of the following parties is a debtor in any
state or federal bankruptcy or insolvency proceeding: Seller; or, to Seller's
actual knowledge, underlying real property owner; or, to Seller's actual
knowledge, underlying real property mortgagee.
VI-12
REPRESENTATIONS AND WARRANTIES REGARDING EACH INDIVIDUAL
PURCHASED LOAN WHICH IS AN ELIGIBLE B NOTE
With respect to each Purchased Loan which is an Eligible B Note, Seller
represents and warrants (i) that each representation or warranty set forth in
any other section of this Exhibit VI which pertains to the underlying Mortgaged
Property related to such Purchased Loan is true and correct in all respects, and
(ii) that on each Purchase Date, other than as set forth on the exception report
provided to Buyers in accordance with the Agreement:
1. Purchased Loan Information. The information set forth in the
Purchased Loan Schedule is complete, true and correct in all material
respects.
2. No Default or Dispute Under Purchased Loan Documents. To Seller's
actual knowledge, there exists no material default, breach or event of
acceleration (and no event which, with the passage of time or the giving of
notice, or both, would constitute any of the foregoing) under the documents
evidencing or securing the Purchased Loan, in any such case to the extent the
same materially and adversely affects the value of the Purchased Loan and the
related underlying real property.
3. No Offsets, Defenses or Counterclaims. To Seller's actual knowledge,
there is no valid offset, defense or counterclaim to such Purchased Loan.
4. Lockbox. The lockbox administrator, if any, is not an Affiliate of
Seller.
5. Enforceability. The Purchased Loan Documents have been duly and
properly executed by Seller, and each is the legal, valid and binding
obligation of the parties thereto, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally and by general principles of
equity (regardless of whether such enforcement is considered in a proceeding
in equity or at law). The Purchased Loan is not usurious. Seller has fully and
validly perfected all security interests created or intended to be created
pursuant to the Purchased Loan Documents.
6. Waivers and Modifications. The terms of the related Purchased Loan
Documents have not been impaired, waived, altered or modified in any material
respect (other than by a written instrument which is included in the related
Purchased Loan File).
7. Valid Assignment. The assignment of Purchased Loan constitutes the
legal, valid and binding assignment of such Purchased Loan from Seller to or
for the benefit of Buyer. No consent or approval by any third party is
required for any such assignment of such Purchased Loan, for Buyer's exercise
of any rights or remedies under the assignment of Purchased Loan, or for
Buyer's sale or other disposition of such Purchased Loan if Buyer acquires
title thereto, other than consents and approvals which have been obtained. No
third party (including underlying real property owner and underlying real
property mortgagee) holds any "right of first refusal," "right of first
negotiation," "right of first offer," purchase option, or other similar rights
of any kind on
VI-13
account of the occurrence of any of the foregoing. No other material
impediment exists to any such transfer.
8. Certain Representations and Warranties. All representations and
warranties in the Purchased Loan Documents and in the underlying documents for
the performing commercial mortgage loan secured by a first lien on a
multifamily or commercial property to which such Purchased Loan relates are
true and correct in all material respects.
9. Parties Authorized. To the extent required under applicable law as of
the Purchase Date, to Seller's actual knowledge, each party to the Purchased
Loan Documents was authorized to do business in the jurisdiction in which the
related underlying real property is located at all times when it held the
Purchased Loan to the extent necessary to ensure the validity and
enforceability of such Purchased Loan.
10. No Advances of Funds. No party to the Purchased Loan Documents has
advanced funds on account of any default under the Purchased Loan or under the
underlying real property mortgage documents.
11. Servicing. The servicing and collection practices used by Seller for
the Purchased Loan have complied with applicable law in all material respects
and are consistent with those employed by prudent servicers of comparable
loans.
12. No Assignment. Seller has not effectuated any transfer, sale,
assignment, hypothecation, or other conveyance of any of its rights and
obligations under any Purchased Loan Document, except in connection with the
Agreement.
13. No Bankruptcy. To Seller's actual knowledge, none of the following
parties is a debtor in any state or federal bankruptcy or insolvency
proceeding: Seller; to Seller's actual knowledge, underlying real property
owner; or to Seller's actual knowledge, underlying real property mortgagee.
REPRESENTATIONS AND WARRANTIES REGARDING EACH INDIVIDUAL
PURCHASED SECURITY WHICH CONSISTS OF CMBS
With respect to each Purchased Security which is a CMBS Seller represents and
warrants on each Purchase Date as follows, other than as set forth on the
exception report provided to Buyers in accordance with the Agreement.
1. The CMBS consists of pass-through certificates representing
beneficial ownership interests in one or more REMICs consisting of one or more
first lien mortgage loans secured by commercial and/or multifamily properties.
2. Immediately prior to the sale, transfer and assignment to Buyers
thereof, Seller had good and marketable title to, and was the sole owner and
holder of, such CMBS, and Seller is transferring such CMBS free and clear of
any and all liens, pledges, encumbrances, charges, security interests or any
other ownership interests of any nature encumbering such CMBS.
VI-14
3. Seller has full right, power and authority to sell and assign such
CMBS and such CMBS has not been cancelled, satisfied or rescinded in whole or
part nor has any instrument been executed that would effect a cancellation,
satisfaction or rescission thereof.
4. Other than consents and approvals obtained as of the related Purchase
Date or those already granted in the related documents governing such CMBS, no
consent or approval by any Person is required in connection with each Buyer's
acquisition of such CMBS, for each Buyer's exercise of any rights or remedies
in respect of such CMBS or for each Buyer's sale or other disposition of such
CMBS. No third party holds any "right of first refusal", "right of first
negotiation", "right of first offer", purchase option, or other similar rights
of any kind, and no other impediment exists to any such transfer or exercise
of rights or remedies.
5. Upon consummation of the purchase contemplated to occur in respect of
such CMBS on the Purchase Date ~herefore, Seller will have validly and
effectively conveyed to each Buyer all legal and beneficial interest in and to
such CMBS free and clear of any and all liens, pledges, encumbrances, charges,
security interests or any other ownership interests of any nature.
6. The CMBS is a certificated security in registered form, or is in
uncertificated form and held through the facilities of (a) The Depository
Trust Corporation in New York, New York, or (b) such other clearing
organization or book-entry system as is designated in writing by Buyers.
7. With respect to any CMBS that is a certificated security, Seller has
delivered to Buyers or their designee such certificated security, along with
any and all certificates, assignments, bond powers executed in blank,
necessary to transfer such certificated security under the issuing documents
of such CMBS.
8. All information contained in the related Credit Approval Memo (or as
otherwise provided to Buyers) in respect of such CMBS is accurate and complete
in all material respects.
9. As of the date of its issuance, such CMBS complied in all material
respects with, or was exempt from, all requirements of federal, state or local
law relating to the issuance thereof including, without limitation, any
registration requirements of the Securities Act of 1933, as amended.
10. Except as included in the Credit Approval Memo, there is no document
that by its terms modifies or affects the rights and obligations of the holder
of such CMBS, the terms of the related pooling and servicing agreement or any
other agreement relating to the CMBS, and, since issuance, there has been no
material change or waiver to any term or provision of any such document,
instrument or agreement.
11. There is no (i) monetary default, breach or violation exists with
respect to any pooling and servicing agreement or other document governing or
pertaining to such CMBS, (ii) material non-monetary default, breach or
violation exists with respect to any
VI-15
such agreement or other document or other document governing or pertaining to
such CMBS, or (iii) event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration under such documents and
agreements.
12. No consent, approval, authorization or order of, or registration or
filing with, or notice to, any court or governmental agency or body having
jurisdiction or regulatory authority over Seller is required for any transfer
or assignment of such CMBS.
13. Except as included in the Credit Approval Memo, (i) no interest
shortfalls have occurred and no realized losses have been applied to any CMBS
or otherwise incurred with respect to any mortgage loan related to such CMBS
nor any class of CMBS issued under the same governing documents as any CMBS,
and (ii) Seller is not aware of any circumstances that could have a material
adverse effect on the CMBS.
14. There are no circumstances or conditions with respect to the CMBS,
the Mortgaged Property or the related Mortgagor's credit standing that can
reasonably be expected to cause private institutional investors to regard the
CMBS as an unacceptable investment or adversely affect the value or
marketability of the CMBS.
15. Seller has not received written notice of any outstanding
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind for which the holder of
such CMBS is or may become obligated.
16. To Seller's actual knowledge, there is no material inaccuracy in any
servicer report or trustee report delivered to it (and, in turn, delivered
pursuant to the terms of the Agreement) in connection with such CMBS.
17. No servicer of the CMBS has made any advances, directly or
indirectly, with respect to the CMBS or to any mortgage loan relating to such
CMBS.
VI-16
EXHIBIT VII
PURCHASED LOAN INFORMATION
[INSERT RATING AGENCY PACKAGE]
VII-1
EXHIBIT VIII
ADVANCE PROCEDURE
Final Approval of New Assets Which are Eligible Securities/Preliminary
Approval of New Assets Which are Eligible Loans.
(a) Seller may, from time to time, submit to Buyers a Credit Approval
Memo for Buyers' review and approval in order to request that Buyers enter into
a Transaction with respect to any New Asset that Seller proposes to be included
as a Purchased Asset under the Agreement.
(b) Upon Buyers' receipt of the Credit Approval Memo together with all
underlying legal documents requested by Buyers, Buyers, within two (2) Business
Days, shall have the right to request, in Buyers' business judgment, additional
diligence materials and deliveries that Buyers shall specify. Upon Buyers'
receipt of all of the Diligence Materials or Buyers' waiver thereof, Buyers,
within two (2) Business Days (in the case of an Eligible Security) or five (5)
Business Days and following receipt of internal credit approval, shall either
(i) notify Seller of the Purchase Price and the Market Value for the New Asset
or (ii) deny, in Buyers' business judgment, Seller's request for a Transaction;
provided that Buyers' failure to respond to Seller within two (2) or five (5)
Business Days, as applicable, shall not be deemed to be an approval or a denial
of Seller's request for an Advance, and Buyers shall not be liable to Seller for
any such failure to respond.
Final Approval of New Assets which are Eligible Loans. Upon Buyers'
notification to Seller of the Purchase Price and the Market Value for any New
Asset which is an Eligible Loan, Seller shall, if Seller desires to enter into a
Transaction with respect to such New Asset, satisfy the conditions set forth
below (in addition to satisfying the Transaction Conditions Precedent to
obtaining each advance) as a condition precedent to Buyers' approval of such New
Asset as a Purchased Asset, all in a manner reasonably satisfactory to Buyers
and pursuant to documentation reasonably satisfactory to Buyers:
(i) Delivery of Purchased Loan Documents. Seller shall deliver to
Buyers: (i) with respect to any New Asset that is a Pre-Existing Loan,
each of the Purchased Loan Documents, except Purchased Loan Documents
that Seller expressly and specifically disclosed in Seller's Credit
Approval Memo were not in Seller's possession; and (ii) with respect to
any New Asset that is an Originated Loan, each of the Purchased Loan
Documents.
(ii) Environmental and Engineering. If available, Buyers shall have
received a "Phase 1" (and, if necessary, "Phase 2") environmental
report, an asbestos survey and an engineering report, each in form
reasonably satisfactory to Buyers, by an engineer or environmental
consultant reasonably approved by Buyers.
(iii) Appraisal. Buyers shall have received either an Acceptable
Appraisal or a Draft Appraisal. If Buyers receive only a Draft Appraisal
prior to entering into a Transaction, Seller shall deliver an Acceptable
Appraisal on or before thirty (30) days after the Purchase Date.
VIII-1
(iv) Insurance. Buyers shall have received certificates or other
evidence of insurance demonstrating insurance coverage in respect of the
Mortgaged Property of types, in amounts, with insurers and otherwise in
compliance with the terms, provisions and conditions set forth in the
Purchased Loan Documents. Such certificates or other evidence shall
indicate that Seller will be named as an additional insured as its
interest may appear and shall contain a loss payee endorsement in favor
of such additional insured with respect to the policies required to be
maintained under the Purchased Loan Documents.
(v) Survey. Buyers shall have received all surveys of the Mortgaged
Property that are in Seller's possession.
(vi) Lien Search Reports. Buyers or Buyers' counsel shall have
received, as reasonably requested by Buyers, satisfactory reports of
UCC, tax lien, judgment and litigation searches and title updates
conducted by search firms and/or title companies acceptable to Buyers
with respect to the Eligible Loan, Mortgaged Property, Seller and
Mortgagor, such searches to be conducted in each location Buyers shall
reasonably designate.
(vii) Opinions of Counsel. Buyers shall have received copies of all
legal opinions in Seller's possession with respect to the Eligible Loan
which shall be in form and substance reasonably satisfactory to Buyers.
(viii) Additional Real Estate Matters. Seller shall have delivered
to Buyers to the extent in Seller's possession such other real estate
related certificates and documentation as may have been requested by
Buyers, such as: (i) certificates of occupancy issued by the appropriate
Governmental Authority and either letters certifying that the Mortgaged
Property is in compliance with all applicable zoning laws issued by the
appropriate Governmental Authority or evidence that the related Title
Policy includes a zoning endorsement and (ii) abstracts of all leases in
effect at the Mortgaged Property and estoppel certificates, in form and
substance acceptable to Buyers, from any ground lessor and from any
tenant that occupies 7.5% or more of the rentable space at the Mortgaged
Property, and in any event from tenants whose occupancies aggregate not
less than 70% of the occupied rentable square footage at the Mortgaged
Property.
(ix) Other Documents. Buyers shall have received such other
documents as Buyers or their counsel shall reasonably deem necessary.
(c) Within two (2) Business Days of Seller's satisfaction of all of the
conditions enumerated in clauses (a) through (i) above, Buyers shall either (i)
if the Purchased Loan Documents with respect to a New Asset are not reasonably
satisfactory in form and substance to Buyers, notify Seller that Buyers have not
approved such New Asset as a Purchased Asset or (ii) notify Seller that Buyers
have approved the New Asset as a Purchased Asset, provided that Buyers' failure
to respond to Seller within two (2) Business Days shall not be deemed to be an
approval or a denial of the New Asset, and Buyers shall not be liable to Seller
for any such failure to respond.
VIII-2
(d) Following approval by Buyers of a New Asset as a Purchased Asset,
Seller shall, no later than three (3) Business Days prior to the related
Purchase Date, deliver to Buyers a Request for Transaction.
VIII-3
EXHIBIT IX
FORM OF REDIRECTION LETTER
[Letterhead of Seller]
______ __, 20__
[Borrower Name]
[Address]
Re: [__________]
To Whom It May Concern:
Capital Trust, Inc. ("CT") has transferred its interest in the
Loan to Banc of America Securities LLC and Bank of America, N.A., (the "Banks")
in accordance with that certain Master Repurchase Agreement between CT and the
Banks dated as of _________ __, 2005. All notices, demands and requests to be
given to the lender under the documents evidencing, securing and/or governing
the Loan shall be sent to the following address (until such addresses for notice
is changed in accordance with the Loan documents):
Bank of America, N.A./Banc of America Securities LLC
Mail Code: NC1-007-21-02
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
with a copy to:
Capital Trust, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
All payments to be made to the Banks under the Loan shall be made
by wire transfer in accordance with the following instructions:
[_______________]
ABA [_______________]
BNF: [_______________]
Account #: ___________
Account name: Bank of America/ Capital Trust Facility
Cash Management Acct
Attn: [_______________]
IX-1
Please feel free to call Xxxxx X. Xxxxxx at (000) 000-0000 should
you have any questions or concerns. Thank you.
CAPITAL TRUST, INC., a Maryland
corporation
By: __________________________________
Name:_____________________________
Title:____________________________
IX-2
EXHIBIT X
FORM OF SERVICER NOTICE AND AGREEMENT
March ___, 2005
Midland Loan Services, Inc., as Servicer
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: President
Re: Master Repurchase Agreement, dated as of March [__], 2005 (the
"Repurchase Agreement"), between CAPITAL TRUST, INC., as seller
("Seller"), BANK OF AMERICA, N.A., as a buyer and BANC OF AMERICA
SECURITIES LLC, as a buyer (collectively, the "Buyers")
------------------------------------------------------------------------
Ladies and Gentlemen:
Midland Loan Services, Inc. ("Servicer") is servicing certain mortgage
loans for Seller pursuant to that certain Servicing Agreement, dated as of
[__________] (the "Servicing Agreement"), between Servicer and Seller. Pursuant
to the Repurchase Agreement among Buyers and Seller, Servicer is hereby notified
of the following (defined terms not otherwise defined herein shall have their
respective meaning set forth in the Repurchase Agreement or the Servicing
Agreement):
Servicer shall segregate all Income collected on account of the
Purchased Loans, hold such Income in trust for the sole and exclusive benefit of
Buyers, and remit such collections to the following account which has been
established at PNC Bank, National Association: ABA# [_________], Account #
[_______], the ("Cash Management Account"). Servicer acknowledges that the Cash
Management Account is held for the benefit of Buyers pursuant to the Custodial
Agreement, dated as of March [__], 2005, by and between Seller, Buyers and
Deutsche Bank Trust Company Americas. Servicer shall provide Buyers with prompt
notice of any unscheduled Principal Payments deposited in the Cash Management
Account.
Buyers are 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 Purchased Loans
(the "Servicing Records") so long as the Purchased Loans are subject to the
Repurchase Agreement. Pursuant to the Repurchase Agreement, Seller has granted
Buyers a security interest in all servicing fees and rights relating to the
Purchased Loans and all Servicing Records to secure the obligation of Seller or
its designee to service in conformity with the Repurchase Agreement and any
other obligation of Seller to Buyers. Seller has covenanted to safeguard such
Servicing Records and to deliver them promptly to Buyers or their designee
(including the Custodian) at Buyers' request.
X-1
Upon the occurrence and during the continuance of an Event of Default,
Buyers may, in their sole discretion, (i) sell their right to the Purchased
Loans on a servicing released basis or (ii) terminate any Servicer of the
Purchased Loans with or without cause, in each case without payment of any
termination fee. Upon receipt of a notice of an Event of Default from either
Buyer, Servicer shall follow the instructions of such Buyer, without any further
consent from Seller or any other Person, with respect to the Purchased Loans,
and shall deliver to such Buyer any information with respect to the Purchased
Loans reasonably requested by such Buyer.
Pursuant to the Repurchase Agreement, Seller has irrevocably assigned
all rights, title and interest in the Servicing Agreements in the Purchased
Loans to Buyers.
Notwithstanding any contrary information or direction which may be
delivered to Servicer by Seller, Servicer may conclusively rely on any
information, direction or notice of an Event of Default delivered by either
Buyer, and Seller shall indemnify and hold Servicer harmless for any and all
claims asserted against Servicer for any actions taken in good faith by Servicer
in connection with the delivery of such information or notice of an Event of
Default.
No provision of this Servicer Notice may be amended, countermanded or
otherwise modified without the prior written consent of Buyers. Buyers are an
intended third party beneficiary of this letter.
Please acknowledge receipt and your agreement to the terms of this
instruction letter by signing in the signature block below and forwarding an
executed copy to Buyers promptly upon receipt. Any notices to Buyers should be
delivered to the following, address: Bank of America, N.A., Mail Code:
NC1-007-21-02, Hearst Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000;
Attention: Xxxxx Xxxxxx; Facsimile: (000) 000-0000 and any notice to Servicer
should be sent:
if to Servicer, by U.S. Mail at:
Midland Loan Services, Inc.
X.X. Xxx 00000
Xxxxxxx Xxxxxxx, XX 00000-0000
Attention: President
Facsimile No.: (000) 000-0000
or by delivery to:
Midland Loan Services, Inc.
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: President
Very truly yours,
CAPITAL TRUST, INC.
X-2
By:_______________________________________________
Name:
Title:
ACKNOWLEDGED AND AGREED TO:
___________________________________________
as Servicer
By ___________________________________________
Title:
Telephone:
Facsimile:
X-3
EXHIBIT XI
FORM OF BAILEE AGREEMENT
[CAPITAL TRUST, INC.
NAME AND ADDRESS]
_______________ __, 20__
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Bailee Agreement (the "Bailee Agreement") in connection with the
sale of _______________ by Capital Trust, Inc. (the "Seller") to
Bank of America, N.A. (the "Buyer")
Gentlemen and Mesdames:
In consideration of the mutual promises set forth herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller, the Buyer and Paul, Hastings, Xxxxxxxx & Xxxxxx LLP (the
"Bailee") hereby agree as follows:
1. Seller shall deliver to the Bailee in connection with any Purchased
Loans delivered to the Bailee hereunder an Identification Certificate in the
form of Attachment 1 attached hereto to which shall be attached a Purchased
Loan Schedule identifying which Purchased Loans are being delivered to the
Bailee hereunder. Such Purchased Loan Schedule shall contain the following
fields of information: (a) the loan identifying number; (b) the obligor's
name; (c) the xxxxxx xxxxxxx, xxxx, xxxxx and zip code for the applicable real
property; (d) the original balance; and (e) the current principal balance if
different from the original balance and such other information as Seller and
Buyer shall require.
2. On or prior to the date indicated on the Custodial Delivery
Certificate delivered by Seller (the "Funding Date"), Seller shall have
delivered to the Bailee, as bailee for hire, the original documents set forth
on Schedule A attached hereto (collectively, the "Purchased Loan File") for
each of the Purchased Loans (each a "Purchased Loan" and collectively, the
"Purchased Loans") listed in Exhibit A to Attachment 1 attached hereto (the
"Purchased Loan Schedule").
3. The Bailee shall issue and deliver to the Buyer and the Custodian on
or prior to the Funding Date by facsimile (a) in the name of the Buyer, an
initial trust receipt and certification in the form of Attachment 2 attached
hereto (the "Trust Receipt ") which Trust Receipt shall state that the Bailee
has received the documents comprising the Purchased Loan File as set forth in
the Custodial Delivery Certificate (as defined in that certain Custodial
Agreement dated as of ______ __, 2005, among Seller, Buyer and Custodian (as
defined in Section 5 below), in addition to such other documents required
XI-1
to be delivered to Buyer and/or Custodian pursuant to the Master Repurchase
Agreement dated as of _____________, 2005, between Seller and Buyer (the
"Repurchase Agreement").
4. On the applicable Funding Date, in the event that the Buyer fails to
purchase any New Loan from Seller that is identified in the related Custodial
Delivery Certificate, the Buyer shall deliver by facsimile to the Bailee at
(000) 000-0000 to the attention of Xxxxxx X. Xxxxxx, Esq., an authorization
(the "Facsimile Authorization") to release the Purchased Loan Files with
respect to the Purchased Loans identified therein to Seller. Upon receipt of
such Facsimile Authorization, the Bailee shall release the Purchased Loan
Files to Seller in accordance with Seller's instructions.
5. Following the Funding Date, the Bailee shall forward the Purchased
Loan Files to Deutsche Bank Trust Company Americas, 0000 Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000, Attention: Mortgage Custody-QT051C (the
"Custodian") by insured overnight courier for receipt by the Custodian no
later than 1:00 p.m. on the third Business Day following the applicable
Funding Date (the "Delivery Date").
6. From and after the applicable Funding Date until the time of receipt
of the Facsimile Authorization or the applicable Delivery Date, as applicable,
the Bailee (a) shall maintain continuous custody and control of the related
Purchased Loan Files as bailee for the Buyer and (b) is holding the related
Purchased Loan Loans as sole and exclusive bailee for the Buyer unless and
until otherwise instructed in writing by the Buyer.
7. Seller agrees to indemnify and hold the Bailee and its partners,
directors, officers, agents and employees harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever,
including reasonable attorney's fees, that may be imposed on, incurred by, or
asserted against it or them in any way relating to or arising out of this
Bailee Agreement or any action taken or not taken by it or them hereunder
unless such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements (other than special,
indirect, punitive or consequential damages, which shall in no event be paid
by the Bailee) were imposed on, incurred by or asserted against the Bailee
because of the breach by the Bailee of its obligations hereunder, which breach
was caused by negligence, lack of good faith or willful misconduct on the part
of the Bailee or any of its partners, directors, officers, agents or
employees. The foregoing indemnification shall survive any resignation or
removal of the Bailee or the termination or assignment of this Bailee
Agreement.
8. (a) In the event that the Bailee fails to produce a Mortgage Note,
Mezzanine Note, assignment of Purchased Loan or any other document related to
a Purchased Loan that was in its possession within ten (10) business days
after required or requested by Seller or Buyer (a "Delivery Failure"), the
Bailee shall indemnify Seller or Buyer in accordance with the succeeding
paragraph of this Section 8.
XI-2
(b) The Bailee agrees to indemnify and hold the Buyer and Seller, and
their respective affiliates and designees harmless against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including reasonable attorney's fees, that may be imposed
on, incurred by, or asserted against it or them in any way relating to
or arising out of a Custodial Delivery Failure or the Bailee's
negligence, lack of good faith or willful misconduct. The foregoing
indemnification shall survive any termination or assignment of this
Bailee Agreement.
9. Seller hereby represents, warrants and covenants that the Bailee is
not an affiliate of or otherwise controlled by Seller. Notwithstanding the
foregoing, the parties hereby acknowledge that the Bailee hereunder may act as
Counsel to Seller in connection with a proposed loan and Paul, Hastings,
Xxxxxxxx & Xxxxxx LLP, if acting as Bailee, has represented Seller in
connection with negotiation, execution and delivery of the Repurchase
Agreement.
10. In connection with a pledge of the Purchased Loans as collateral for
an obligation of the Buyer, the Buyer may pledge its interest in the
corresponding Purchased Loan Files held by the Bailee for the benefit of the
Buyer from time to time by delivering written notice to the Bailee that the
Buyer has pledged its interest in the identified Purchased Loans and Purchased
Loan Files, together with the identity of the party to whom the Purchased
Loans have been pledged (such party, the "Pledgee"). Upon receipt of such
notice from the Buyer, the Bailee shall xxxx its records to reflect the pledge
of the Purchased Loans by the Buyer to the Pledgee. The Bailee's records shall
reflect the pledge of the Purchased Loans by the Buyer to the Pledgee until
such time as the Bailee receives written instructions from the Buyer that the
Purchased Loans are no longer pledged by the Buyer to the Pledgee, at which
time the Bailee shall change its records to reflect the release of the pledge
of the Purchased Loans and that the Bailee is holding the Purchased Loans as
custodian for, and for the benefit of, the Buyer.
11. From time to time, subject to the acceptance and approval of Buyer,
Seller may request pursuant to a request substantially in the form of Annex 6
to the Custodial Agreement the delivery by the Custodian to the Bailee of some
or all of the Purchased Loan File for the purposes set forth in such request.
Upon receipt of the Purchased Loan File or such portions thereof, Bailee shall
hold the same as sole and exclusive bailee for the Buyer until such time as
the Purchased Loan File, or such portions thereof, are redelivered to
Custodian or to such other Persons, as otherwise directed by Buyer, subject in
either case to the provisions set forth herein governing standards of care and
indemnification and except as otherwise provided by any document specifically
amending, supplementing or modifying the terms hereof which is executed and
delivered by all parties hereto in connection with such delivery of the
Purchased Loan File, or such portions thereof, to Bailee. Notwithstanding
anything to the contrary contained in this Section 11, Bailee shall have the
right to deliver such Purchased Loan File, or portions thereof, to Buyer upon
five (5) days written notice to Buyer.
XI-3
12. The agreement set forth in this Bailee Agreement may not be
modified, amended or altered, except by written instrument, executed by all of
the parties hereto.
13. This Bailee Agreement may not be assigned by Seller or the Bailee
without the prior written consent of the Buyer.
14. For the purpose of facilitating the execution of this Bailee
Agreement as herein provided and for other purposes, this Bailee Agreement may
be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute and be one and the same instrument.
15. This Bailee Agreement shall be construed in accordance with the laws
of the State of New York, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
16. Capitalized terms used herein and defined herein shall have the
meanings ascribed to them in the Repurchase Agreement.
[signatures begin on next page]
XI-4
Very truly yours,
CAPITAL TRUST, INC., a Maryland
corporation
By:_________________________________
Name:
Title:
ACCEPTED AND AGREED:
PAUL, HASTINGS, XXXXXXXX &
XXXXXX LLP, Bailee
By:_________________________________
Name:
Title:
ACCEPTED AND AGREED:
BANK OF AMERICA, N.A., Buyer
By:_________________________
Name:
Title:
XI-5
Attachment 1 to Bailee Agreement
CUSTODIAL DELIVERY CERTIFICATE
------------------------------
XI-6
Attachment 2 to Bailee Agreement
TRUST RECEIPT
-------------
XI-7
EXHIBIT XII
FORM OF REQUEST FOR TRANSACTION
[ADDRESS OF BUYERS]
Attention:
Telephone:
Telecopy:
Re: Master Repurchase Agreement, dated as of ______ __, 20__ (the
"Agreement"), by and between Capital Trust, Inc. (the "Seller")
and Bank of America Securities LLC and Bank of America, N.A.
(the "Buyers").
----------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Buyers: Bank of America Securities LLC
Bank of America, N.A.
-------------------------------------------------------------------------------------------------
Seller: Capital Trust, Inc.
-------------------------------------------------------------------------------------------------
Requested Purchase Date: _______________________________________
-------------------------------------------------------------------------------------------------
Type of Transaction
-------------------------------------------------------------------------------------------------
Transmission Date: _______________________________________
-------------------------------------------------------------------------------------------------
Eligible Securities to be sold See Schedule 1 hereto
----------
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Eligible Loans to be sold See Schedule 2 hereto
----------
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Settlement Locations, Wiring-Instructions and See Schedule 3 hereto
Amounts to Be Wired ----------
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Requested Wire Amount: $___________________
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Wire Instructions:
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Requested by:
Capital Trust, Inc.
By: ___________________________________________
Name:
Title:
I hereby certify, as a Responsible Officer of the Seller, that both immediately
prior to the entering into of the Transaction herein requested, and also after
giving effect thereto, that the representations and warranties made by the
Seller in Section 8 of the Agreement, and elsewhere in each of the Transaction
Documents, shall with respect to the Eligible Assets subject to the Transaction
be true and complete on and as of the date of the entering into of such
Transaction 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).
Responsible Officer of Seller:
_______________________________________________
Name:
Title:
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Schedule 1
Eligible Securities
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Schedule 2
Eligible Loans
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Schedule 3
Settlement Locations, Wiring-Instructions and Amounts
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EXHIBIT XIII
FORM OF NOTICE OF PREPAYMENT
[Letterhead of Seller]
______ __, 20__
Bank of America, N.A./Banc of America Securities LLC
Mail Code: NC1-007-21-02
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention:_____Angie Dugick
Re: [DESCRIPTION OF ELIGIBLE ASSET SUBJECT TO PREPAYMENT]
To Whom It May Concern:
Capital Trust, Inc. ("CT") hereby notifies you of its intention
to prepay the Repurchase Price for the above referenced Eligible Asset(s) in
accordance with that certain Master Repurchase Agreement between CT and Bank of
America Securities LLC and Bank of America, N.A. (the "Buyers"), dated as of
March __, 2005 (the "Agreement").
CT acknowledges that it may be required to pay all applicable
breakage costs, if any, which may arise pursuant to Section 2.11 of the
Agreement.
Please feel free to call Xxxxx X. Xxxxxx at (000) 000-0000 should
you have any questions or concerns. Thank you.
CAPITAL TRUST, INC., a Maryland
corporation
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
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