the form set forth in Exhibit IX attached
hereto.
"Underwriting Issues" shall mean, with respect to any New Assets as to which
Seller intends to request a Transaction, all material information that has come
to Seller's attention that, based on the making of commercially reasonable
inquiries and the exercise of commercially reasonable care and diligence under
the circumstances, would be considered a materially "negative" factor (either
separately or in the aggregate with other information), or a material defect in
loan documentation or closing deliveries (such as any absence of any material
Purchased Asset Document(s)), to a commercially
13
reasonable institutional Buyer in determining whether to originate or acquire
the New Assets in question.
"Undrawn Available Amount" shall mean the excess of the maximum drawable amount
of a Purchased Asset (as agreed to by Buyer and Seller) over the aggregate
Purchase Price of such Purchased Asset (calculated on an asset-by-asset basis).
"Whole Loan" shall mean a commercial mortgage loan or note secured by a first
lien on multifamily and commercial real property.
2.
INITIATION; CONFIRMATION; REVOLVING TRANSACTIONS; TERMINATION;
FEES
(A)
ON OR AFTER THE DATE HEREOF AND PRIOR TO THE COMMITMENT EXPIRATION
DATE AND SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT
(INCLUDING, WITHOUT LIMITATION, THE "TRANSACTION CONDITIONS PRECEDENT" SPECIFIED
IN SECTION 2(B) OF THIS AGREEMENT), AN AGREEMENT TO ENTER INTO A TRANSACTION
SHALL BE MADE IN WRITING AT THE INITIATION OF SELLER AS PROVIDED BELOW;
PROVIDED, HOWEVER, THAT ENTERING INTO ANY TRANSACTION SHALL BE IN BUYER'S SOLE
AND ABSOLUTE DISCRETION AND 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 AGGREGATE
PURCHASE PRICE. SELLER SHALL GIVE BUYER WRITTEN NOTICE OF EACH PROPOSED
TRANSACTION AND BUYER SHALL INFORM SELLER OF ITS DETERMINATION WITH RESPECT TO
ANY ASSETS PROPOSED TO BE SOLD TO BUYER BY SELLER SOLELY IN ACCORDANCE WITH
EXHIBIT X ATTACHED HERETO. BUYER SHALL HAVE THE RIGHT TO REVIEW ALL ELIGIBLE
ASSETS PROPOSED TO BE SOLD TO BUYER IN ANY TRANSACTION AND TO CONDUCT, AT ITS
OWN EXPENSE, ITS OWN DUE DILIGENCE INVESTIGATION OF SUCH ELIGIBLE ASSETS AS
BUYER DETERMINES. UPON RECEIPT OF ALL DILIGENCE MATERIALS AND OTHER REQUIRED
DOCUMENTATION, BUYER SHALL COMPLETE ITS DUE DILIGENCE REVIEW AND FINANCIAL
MODELING WITH RESPECT TO THE ASSETS PROPOSED TO BE SOLD TO BUYER BY SELLER.
BUYER SHALL BE ENTITLED TO MAKE A DETERMINATION, IN THE EXERCISE OF ITS SOLE
DISCRETION, THAT IT SHALL NOT PURCHASE ANY OR ALL OF THE ASSETS PROPOSED TO BE
SOLD TO BUYER BY SELLER, SUCH DETERMINATION TO BE MADE IN ACCORDANCE WITH
EXHIBIT X ATTACHED HERETO. ON THE PURCHASE DATE FOR THE TRANSACTION WHICH SHALL
BE NOT LESS THAN ONE (1) BUSINESS DAY FOLLOWING THE APPROVAL OF AN ELIGIBLE
ASSET BY BUYER IN ACCORDANCE WITH EXHIBIT X HERETO, THE PURCHASED ASSETS SHALL
BE TRANSFERRED TO BUYER OR ITS AGENT AGAINST THE TRANSFER OF THE PURCHASE PRICE
IN IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT