SEVENTH AMENDMENT TO MASTER REPURCHASE AGREEMENT SEVENTH AMENDMENT TO MASTER REPURCHASE AGREEMENT, dated as
Exhibit 10.33
EXECUTION VERSION
SEVENTH AMENDMENT TO MASTER REPURCHASE AGREEMENT SEVENTH AMENDMENT TO MASTER REPURCHASE AGREEMENT, dated as
of December 26, 2023 (this “Amendment”), by and among CMTG BB FINANCE LLC, a Delaware limited liability company (“Seller”), and BARCLAYS BANK PLC, a public limited company organized under the laws of England and Wales, in its capacity as Purchaser (together with its successors and assigns, “Purchaser”). Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Repurchase Agreement (as defined below).
RECITALS
WHEREAS, Purchaser and Seller are parties to that certain Master Repurchase Agreement, dated as December 21, 2018, as amended by the First Amendment to Master Repurchase Agreement, dated October 31, 2019, the Omnibus Amendment, dated February 27, 2020, the Second Amendment to Master Repurchase Agreement, dated August 19, 2021, the Second Omnibus Amendment, dated December 20, 2021, the Fifth Amendment to Master Repurchase Agreement, dated January 28, 2022, and the Sixth Amendment to Master Repurchase Agreement, dated July 13, 2022 (collectively, the “Existing Repurchase Agreement” and, as amended by this Amendment, and as further amended, restated, supplemented or otherwise modified and in effect from time to time, the “Repurchase Agreement”); and
WHEREAS, Xxxxxxxxx has requested, and Xxxxxx has agreed, to make certain amendments and modifications to the Existing Repurchase Agreement (the “Facility”) as further set forth herein.
NOW THEREFORE, in consideration of the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE 1
AMENDMENTS TO THE EXISTING REPURCHASE AGREEMENT
“EU Securitisation Regulation” shall mean Regulation (EU) 2017/2402 (and as further amended, varied or substituted from time to time as a matter of EU law, including together with any delegated regulations, applicable guidance, regulatory technical standards, or implementing technical standards made thereunder).
“EU/UK Securitisation Regulation Event” shall mean:
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Purchaser, Retention Holder or Seller (for the purposes of this definition, a “Relevant Regulator”) stating or alleging that Retention Holder is failing to comply with the requirements of the Securitisation Regulations; or
“EU/UK Securitisation Regulation Event Notice” shall have the meaning specified in Article 3(k).
“Regulatory Event Restructuring” shall have the meaning specified in
Article 3(k).
“Restructuring Amendment Date” shall mean December 26, 2023. “Retention Holder” shall have that meaning ascribed to it in the Risk
Retention Letter.
“Risk Retention Event” shall mean a material breach by Retention Holder or Seller in each case in respect of any warranty, representation, undertaking or obligation contained in the Risk Retention Letter and which is not cured to Purchaser’s reasonable satisfaction within twenty (20) Business Days from written notice from Purchaser to Seller; provided that, a Risk Retention Event shall occur immediately if any such breach results from the willful misconduct or bad faith of any Seller Party or any Affiliate thereof.
“Risk Retention Letter” shall mean the risk retention letter, dated as of the Restructuring Amendment Date, from Retention Holder and Seller to Purchaser.
“Securitisation Regulations” shall mean the UK Securitisation Regulation and, for so long as any Purchaser is subject to the due-diligence requirements in the EU Securitisation Regulation and has confirmed such fact in writing to Seller, the EU Securitisation Regulation, and references to “each Securitisation Regulation” or “either Securitisation Regulation” shall be construed accordingly.
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“Security Agent and Subordination Agreement” shall mean that certain Security Agent and Subordination Agreement dated as of the Restructuring Amendment Date by and among Purchaser as purchaser and security agent, Subordinate Lender as subordinate lender, and Seller, as common obligor, pursuant to which, among other things, the rights of Subordinate Lender are subordinated to the rights of Purchaser.
“Subordinate Lender” shall mean Guarantor, in its capacity as lender under the Subordinated Facility Agreement.
“Subordinate Loan” shall mean an advance to Seller from Subordinate Lender under the Subordinated Facility Agreement (and such advances collectively being the “Subordinate Loans”).
“Subordinated Facility Agreement” shall mean that certain Subordinated Facility Agreement, dated as of the Restructuring Amendment Date, among Seller as borrower and Subordinate Lender as lender whereby Subordinate Xxxxxx has made provision for the Subordinate Loans to be advanced to Seller under the terms thereof.
“Transaction Documents” shall mean, collectively, this Agreement, any applicable Exhibits to this Agreement, the Fee Letter, the Guaranty, the Custodial Agreement, the Servicing Agreement, the Servicer Letter, the Account Control Agreement, each Pledge Agreement, the Subordinated Facility Agreement, the Security Agent and Subordination Agreement, the Risk Retention Letter, all Confirmations and assignment documentation executed pursuant to this Agreement in connection with specific Transactions, and all other documents executed in connection with this Agreement or any Transaction, each of the foregoing as they may be amended, restated, supplemented or modified from time to time.
“UK Securitisation Regulation” shall mean Regulation (EU) 2017/2402 in the form in effect on 31 December 2020 as it forms part of United Kingdom domestic law by virtue of the European Union (Withdrawal) Act 2018, as amended by the Securitisation (Amendment) (EU Exit) Regulations 2019 of the United Kingdom and as further amended, varied, replaced or substituted from time to time, including (i) any technical standards thereunder as may be effective from time to time and (ii) any regulatory guidance relating thereto as may from time to time be published by the UK Financial Conduct Authority and/or the UK Prudential Regulation Authority (or, in each case, any successor).
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extent the same would cause Seller to violate the covenants contained in this Agreement or Guarantor to violate the financial covenants contained in the Guaranty (including, without limitation, further equity funding of Seller from any affiliate thereof);
(ix) permit the organizational documents or organizational structure of Seller to be amended, except as reasonably necessary in connection with the Subordinate Loan;
(xv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction, other than the Subordinate Loan;
(xx) Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, (C) the Subordinate Loan, and (D) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred.
(xix) Risk Retention Event. A Risk Retention Event shall have
occurred.
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documents. Seller shall deliver to Purchaser a copy of any such amendment, restatement or other modification of Seller’s organizational documents entered into pursuant to this paragraph promptly following execution thereof.
ARTICLE 2 REPRESENTATIONS
Seller and the Subordinate Lender represents and warrants to Purchaser, as of the date of
this Amendment, as follows:
behalf;
Requirement of Law applicable to it or its organizational documents or any agreement by which it is bound or by which any of its assets are affected;
ARTICLE 3 CONDITIONS PRECEDENT
This Amendment and its provisions shall become effective upon the satisfaction of
each of the following conditions precedent:
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ARTICLE 4 REAFFIRMATION AND ACKNOWLEDGMENT
Seller on behalf of itself and no other Person hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, and grants of security interests and liens in favor of Purchaser, under each Transaction Document to which it is a party, (ii) agrees and acknowledges that such ratification and reaffirmation is not a condition to the continued effectiveness of such Transaction Documents, and (iii) agrees that neither such ratification and reaffirmation, nor Purchaser’s solicitation of such ratification and reaffirmation, constitutes a course of dealing giving rise to any obligation or condition requiring a similar or any other ratification or reaffirmation from Seller, Guarantor and/or Equity Pledgor with respect to any subsequent modifications to the Repurchase Agreement or the other Transaction Documents. The Existing Repurchase Agreement (as amended as of the date hereof) and the other Transaction Documents shall remain in full force and effect and are hereby ratified and confirmed.
ARTICLE 5 GOVERNING LAW
THIS AMENDMENT (AND ANY CLAIM, CONTROVERSY OR DISPUTE
ARISING UNDER OR RELATED TO THIS AMENDMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AMENDMENT AND THE INTERPRETATION AND ENFORCEMENT OF THIS AMENDMENT) SHALL BE GOVERNED AND 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 WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
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ARTICLE 6 MISCELLANEOUS
impair, constitute a waiver by, or otherwise affect any right, power or remedy of Purchaser under the Repurchase Agreement or any other Transaction Document, (ii) constitute a waiver of any provision in the Repurchase Agreement or in any of the other Transaction Documents or of any Default or Event of Default that may have occurred and be continuing, (iii) limit, impair, constitute a waiver by, or otherwise affect any right or power of Purchaser to determine that a Margin Deficit, Default or Event of Default has occurred pursuant to the terms of the Transaction Documents or
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[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the date first above written.
SELLER:
CMTG BB FINANCE LLC,
a Delaware limited liability company
By: Name:X. Xxxxxxx XxXxxxxx
Title: Authorized Signatory
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
Barclays-Xxxxxx – Seventh Amendment to Master Repurchase Agreement
PURCHASER:
BARCLAYS BANK PLC
By:
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
[Barclays/Xxxxxx – Signature Page to Seventh Amendment to Master Repurchase Agreement]
By signing below, Xxxxxx Mortgage Trust, Inc., a Maryland corporation (“Guarantor”), hereby acknowledges the foregoing Amendment and in connection with Seller’s agreement to the terms of the foregoing Amendment reaffirms the terms and conditions of that certain Guaranty, dated as of December 21, 2018 (as so amended, and as the same may be further amended, modified, restated, replaced, waived, substituted, supplemented or extended and in effect from time to time, the “Guaranty”), for the benefit of Purchaser, and acknowledges and agrees that the Guaranty remains in full force and effect.
GUARANTOR:
XXXXXX MORTGAGE TRUST, INC.,
a Maryland corporation
By: Name:X. Xxxxxxx XxXxxxxx
Title: Authorized Signatory
Barclays-Xxxxxx – Seventh Amendment to Master Repurchase Agreement