Document

Exhibit 10.1

FIRST AMENDMENT TO
MASTER REPURCHASE AND SECURITIES CONTRACT
THIS FIRST AMENDMENT TO MASTER REPURCHASE AND SECURITIES CONTRACT, dated as of October 28, 2021 (this “Amendment No. 1”), is entered into by and among CMFT RE LENDING RF SUB WF, LLC, a Delaware limited liability company, as seller (together with its successors and permitted assigns in such capacity, “Seller”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as buyer (together with its successors and assigns in such capacity, “Buyer”) and as acknowledged and agreed by CIM REAL ESTATE FINANCE TRUST, INC., a Maryland corporation, as guarantor (together with its successors and permitted assigns, “Guarantor”), CMFT RE LENDING SUB WF HOLDCO, LLC, a Delaware limited liability company, as equity pledgor (together with its successors and permitted assigns, in such capacity, “Equity Pledgor”) and CIM RE LENDING SUB, LLC, a Delaware limited liability company, as residual pledgor (together with its successors and permitted assigns, in such capacity, “Residual Pledgor” and together with Equity Pledgor, individually and collectively as the context requires, “Pledgor”).  Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Repurchase Agreement (as defined below).
R E C I T A L S
WHEREAS, Seller and Buyer are parties to that certain Master Repurchase and Securities Contract, dated as of May 20, 2021, (as amended by this Amendment No. 1 and as may be further amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time, the “Repurchase Agreement”); and
WHEREAS, the parties hereto desire to make certain amendments and modifications to the Repurchase Agreement.
NOW THEREFORE, in consideration of the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
Section 1.Amendments to the Repurchase Agreement.
(a)The following definitions contained in Section 2.01 of the Repurchase Agreement are hereby amended and restated in their entirety as follows:
““Pledge and Security Agreement”:  Individually and collectively, as the context may require: (a) the Pledge and Security Agreement, dated as of the Closing Date, executed by Pledgor in favor of Buyer, as joined into by CMFT RE Lending Sub II, LLC, the additional residual pledgor, pursuant to the Additional Pledgor Joinder Agreement, dated as of July 21, 2021, (b) the Preferred Equity Related Pledge and Security Agreement, dated as of October 28, 2021, executed by the PE Pledgor in favor of Buyer, and 
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(c) any other pledge and security agreement entered into by a pledgor with respect to any Additional Sellers or preferred equity holders, as each such agreement is amended, modified, restated, replaced, waived, substituted, supplemented or extended from time to time.”


““Residual Pledgor”:  Each of (a) CIM RE Lending Sub, LLC, a Delaware limited liability company, (b) CMFT RE Lending Sub II, LLC, a Delaware limited liability company, and (c) any additional residual pledgor entering into an Additional Pledgor Joinder Agreement to join into the Pledge and Security Agreement to pledge the related Pledged Assets (as defined in the Pledge and Security Agreement) of such additional residual pledgor, each of the above with their successors and permitted assigns.” 


(b)The following definition is hereby added to Section 2.01 of the Repurchase Agreement in appropriate alphabetical order:


““PE Pledgor”:  Individually or collectively as the context requires, CMFT Securities Investments, LLC, a Delaware limited liability company.”


(c)A new Section 2.03 is hereby added to the Repurchase Agreement, as follows:
“Section 2.03 Rates.  Price Differential on Transactions denominated in Dollars or any other currency permitted hereunder (if any) may be determined by reference to a benchmark rate that is, or may in the future become, the subject of regulatory reform or cessation.  Regulators have signaled the need to use alternative reference rates for some of these benchmark rates and, as a result, such benchmark rates may cease to comply with applicable laws and regulations, may be permanently discontinued or the basis on which they are calculated may change.  Buyer does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to the London interbank offered rate, the rates in any Benchmark, any component definition thereof or rates referenced in the definition thereof or with respect to any alternative, successor or replacement rate thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant to Section 12.01, will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, such Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Benchmark Replacement Conforming Changes implemented in accordance with Section 12.01. Buyer and its Affiliates or other related entities may engage in transactions that affect the calculation of a Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto and such 
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transactions may be adverse to Seller.  Buyer may select information sources or services in its reasonable discretion to ascertain any Benchmark, any component definition thereof or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to Seller or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.”
Section 2.Repurchase Documents in Full Force and Effect as Modified; No Novation.  The parties hereto have entered into this Amendment No. 1 and the Fee Letter solely to modify or amend the terms of the Repurchase Agreement and indirectly the other Repurchase Documents to the extent the amendments contained herein affect such other Repurchase Documents and do not intend this Amendment No. 1, the Fee Letter or the transactions contemplated hereby or thereby to be, and this Amendment No. 1, the Fee Letter and the transactions contemplated hereby or thereby shall not be construed to be, a novation of any of the obligations owing by Seller or any other Repurchase Party under or in connection with the Repurchase Agreement or any of the other Repurchase Documents.  It is the intention and agreement of each of the parties hereto that (a) the perfection and priority of all security interests securing the payment of the Repurchase Obligations of the Repurchase Parties under the Repurchase Agreement and the other Repurchase Documents are preserved, (b) the Liens and security interests granted under the Repurchase Agreement and the other Repurchase Documents shall continue in full force and effect without modification, interruption, lapse, termination or limitation, and (c) any reference to the Repurchase Agreement or the Fee Letter in any Repurchase Document shall be deemed to reference the Repurchase Agreement and the Fee Letter, as applicable, as amended by this Amendment No. 1 and the Fee Letter.  Except as specifically modified hereby and by the Fee Letter, nothing contained in this Amendment No. 1 or the Fee Letter is intended to amend, modify or otherwise affect any obligation of any Repurchase Party existing prior to the date hereof and the Repurchase Documents shall remain in full force and effect in accordance with their terms and are hereby ratified and confirmed.  The parties hereto agree to be bound by the terms and conditions of the Repurchase Documents, as modified by this Amendment No. 1 and the Fee Letter, as though such terms and conditions were set forth herein.
Section 3.Representations and Warranties.  Each of Seller, Guarantor and Pledgor represent and warrant, as of the date of this Amendment No. 1, as follows:
(a)it is duly incorporated or organized, validly existing and in good standing under the laws of its jurisdiction of organization and is duly qualified in each jurisdiction necessary to conduct business as presently conducted;
(b)the execution, delivery and performance by it of this Amendment No. 1 and the Fee Letter are within its corporate, limited liability company or partnership powers, has been duly authorized and does not contravene (i) its Governing Documents or its applicable 
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resolutions, (ii) any Requirements of Law or (iii) any Contractual Obligation, Indebtedness or Guarantee Obligation;
(c)no consent, license, permit, approval or authorization of, or registration, filing or declaration with, any Governmental Authority or other Person is required in connection with the execution, delivery, performance, validity or enforceability by or against it of this Amendment No. 1, the Fee Letter or the Repurchase Documents;
(d)this Amendment No. 1 and the Fee Letter have been duly executed and delivered by it;
(e)each of this Amendment No. 1, the Fee Letter and the other Repurchase Documents constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity;
(f)no Default or Event of Default exists or will exist after giving effect to this Amendment No. 1 and the Fee Letter;
(g)none of Seller, Guarantor nor Pledgor has any defense, offset, counterclaim, abatement, right of rescission or other claims, actions, causes of action, demands, damages or liabilities of any kind or nature, in all cases whether legal or equitable, available to Seller, Guarantor, Pledgor or any other Person with respect to (i) this Amendment No. 1, the Fee Letter, the Repurchase Agreement, the Repurchase Documents or any other instrument, document and/or agreement described herein or therein, as modified and amended hereby, (ii) the obligation of Seller to repay the Repurchase Obligations and other amounts due under the Repurchase Documents or (iii) Buyer or Buyer’s respective officers, employees, representatives, agents, counsel or directors arising out of or from or in any way related to or in connection with the Repurchase Agreement or the Repurchase Documents, including, without limitation, any action by such Persons, or failure of such Persons to act, under the Repurchase Agreement or the other Repurchase Documents on or prior to the date hereof;
(h)except as specifically provided in this Amendment No. 1 and the Fee Letter, the Repurchase Obligations are not reduced or modified by this Amendment No. 1 or the Fee Letter;
(i)the representations and warranties of Seller, Guarantor and Pledgor set forth in the Repurchase Documents are true and correct in all material respects as of the date hereof; and
(j)immediately after giving effect to this Amendment No. 1 and the Fee Letter, Seller, Guarantor and Pledgor are in compliance with each of their covenants set forth in the Repurchase Documents.
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Section 4.Conditions Precedent.
(a)The effectiveness of this Amendment No. 1 is subject to the following conditions precedent:  (i) delivery to Buyer of this Amendment No. 1 and the Fee Letter, duly executed by the parties hereto or thereto, (ii) delivery to Buyer of the Preferred Equity Related Pledge and Security Agreement duly executed by the parties thereto (the “PE Pledge Agreement”), (iii) Buyer’s receipt of the Additional Structuring Fee, (iv) delivery to Buyer of an opinion of counsel of PE Pledgor, in form acceptable to Buyer, addressing the execution, delivery and enforceability of the PE Pledge Agreement, (v) delivery to Buyer of Officer’s Certificate certifying to the Governing Documents of PE Pledgor and the PE Documents (as defined in the PE Pledge Agreement) and (vi) delivery to Buyer of such other documents, agreements or certifications as Buyer may require.
(b)Seller acknowledges and agrees that it shall pay all reasonable legal fees and expenses of Moore & Van Allen, PLLC, as counsel to Buyer, relating to this Amendment No. 1 and the Fee Letter in an amount to be set forth on a separate invoice at the time of closing this Amendment No. 1 and the Fee Letter or, if not submitted at that time, within ten (10) Business Days of receipt of such invoice to the extent such fees and expenses are not paid upon the closing of this Amendment No. 1 and the Fee Letter.
Section 5.Miscellaneous.
(a)This Amendment No. 1 may be executed in any number of counterparts (including by facsimile or other electronic transmission), and by the different parties hereto on the same or separate counterparts, each of which shall be deemed to be an original instrument but all of which together shall constitute one and the same agreement.
(b)The descriptive headings of the various sections of this Amendment No. 1 are inserted for convenience of reference only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.
(c)This Amendment No. 1 may not be amended or otherwise modified, waived or supplemented except as provided in the Repurchase Agreement.
(d)The interpretive provisions of Section 2.02 to the Repurchase Agreement are incorporated herein mutadis mutandis.
(e)This Amendment No. 1 (together with the other Repurchase Documents, as amended hereby) represents the final agreement among the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements between the parties.  There are no unwritten oral agreements between the parties.
(f)THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
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(g)In consideration of Buyer entering into this Amendment No. 1 and the Fee Letter, Seller, Guarantor and Pledgor hereby waive, release and discharge Buyer and Buyer’s officers, employees, representatives, agents, counsel and directors from any and all actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, now known or unknown, suspected or unsuspected to the extent that any of the foregoing arises out of or from or in any way relating to or in connection with the Repurchase Agreement or the Repurchase Documents, including, but not limited to, any action or failure to act under the Repurchase Agreement or the other Repurchase Documents on or prior to the date hereof, except, with respect to any such Person being released hereby, any actions, causes of action, claims, demands, damages and liabilities arising out of such Person’s gross negligence or willful misconduct in connection with the Repurchase Agreement or the other Repurchase Documents.
(h)Guarantor and each Pledgor (i) agrees to and consents to the terms and provisions of this Amendment No. 1 and the Fee Letter, (ii) acknowledges and confirms that the Guaranty and the Pledge and Security Agreement remain in full force and effect notwithstanding this Amendment No. 1 and the Fee Letter, and (iii) reaffirm their obligations under the Guaranty and the Pledge and Security Agreement (as applicable).
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be executed by their respective officers thereunto duly authorized, as of the date first above written.


SELLER:
CMFT RE LENDING RF SUB WF, LLC,
a Delaware limited liability company


By:    /s/ Nathan D. DeBacker
Name:    Nathan D. DeBacker 
Title:    Vice President, Chief Financial Officer and Treasurer


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BUYER:
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:    /s/ H. Lee Goins III
Name:    H. Lee Goins III
Title:    Managing Director


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ACKNOWLEDGED AND AGREED: 




CIM REAL ESTATE FINANCE TRUST, INC., 
a Maryland corporation, as Guarantor


By:    /s/ Nathan D. DeBacker
Name:    Nathan D. DeBacker 
Title:    Chief Financial Officer and Treasurer 


CMFT RE LENDING SUB WF HOLDCO, LLC,  
a Delaware limited liability company, as Equity Pledgor 




By:    /s/ Nathan D. DeBacker
Name:    Nathan D. DeBacker 
Title:    Vice President, Chief Financial Officer and Treasurer
CIM RE LENDING SUB, LLC,
a Delaware limited liability company, as Residual Pledgor 




By:    /s/ Nathan D. DeBacker
Name:    Nathan D. DeBacker
Title:    Vice President, Chief Financial Officer and Treasurer 






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