pari passu Indebtedness
secured directly or indirectly by the applicable Underlying Mortgaged Property,
including, without limitation, any preferred equity interest or mezzanine debt
that is senior to, or pari passu with, the related Mortgage Asset in right of
payment or priority.
SECTION 2.02
OTHER DEFINITIONAL PROVISIONS; DETERMINATIONS BY THE
AGENT.
(A)
ALL REFERENCES TO, AND CALCULATIONS REQUIRED TO BE MADE IN RESPECT
OF, ANY PRINCIPAL AND/OR INTEREST ASSOCIATED WITH ANY MORTGAGE ASSET, SHALL,
WITH RESPECT TO MORTGAGE ASSETS CONSISTING OF PREFERRED EQUITY, BE DEEMED TO
REFER, RESPECTIVELY, TO THE FACE AMOUNT OF SUCH PREFERRED EQUITY AND THE
PREFERRED RETURN OR YIELD (HOWEVER SUCH TERMS ARE DENOMINATED, AS SET FORTH IN
THE RELATED MORTGAGE ASSET DOCUMENTS), WHETHER PAYABLE OR ACCRUED.
(B)
AS USED HEREIN, AND ANY CERTIFICATE OR OTHER DOCUMENT MADE OR
DELIVERED PURSUANT HERETO, ACCOUNTING TERMS RELATING TO A SELLER NOT DEFINED IN
SECTION 2.01, AND ACCOUNTING TERMS PARTLY DEFINED IN SECTION 2.01, TO THE EXTENT
NOT DEFINED, SHALL HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM UNDER GAAP.
(C)
THE WORDS "HEREOF," "HEREIN" AND "HEREUNDER" AND WORDS OF SIMILAR
IMPORT WHEN USED IN THIS AGREEMENT SHALL REFER TO THIS AGREEMENT AS A WHOLE AND
NOT TO ANY PARTICULAR PROVISION OF THIS AGREEMENT, AND SECTION, SCHEDULE AND
EXHIBIT REFERENCES ARE TO THIS AGREEMENT UNLESS OTHERWISE SPECIFIED.
(D)
THE MEANINGS GIVEN TO TERMS DEFINED HEREIN SHALL BE EQUALLY
APPLICABLE TO BOTH THE SINGULAR AND PLURAL FORMS OF SUCH TERMS.
(E)
ALL MATTERS TO BE DETERMINED BY THE AGENT IN ITS SOLE DISCRETION
HEREUNDER SHALL BE DETERMINED BY THE AGENT IN ITS SOLE DISCRETION EXERCISED IN
GOOD FAITH.
(F)
ALL REFERENCES HEREIN, OR IN ANY OTHER REPURCHASE DOCUMENT, TO
"THE SELLER" SHALL REFER TO THE APPLICABLE SELLER OF A PURCHASED ASSET IN
CONNECTION WITH A TRANSACTION HEREUNDER.
34
ARTICLE III
INITIATION; TERMINATION
SECTION 3.01
CONDITIONS PRECEDENT TO INITIAL TRANSACTION.
THE AGENT
AND EACH BUYER'S AGREEMENT TO ENTER INTO THE INITIAL TRANSACTION HEREUNDER IS
SUBJECT TO THE SATISFACTION, IMMEDIATELY PRIOR TO OR CONCURRENTLY WITH THE
MAKING OF SUCH TRANSACTION, OF THE CONDITION PRECEDENT THAT THE AGENT SHALL HAVE
RECEIVED FROM THE SELLERS PAYMENT OF AN AMOUNT EQUAL TO ALL FEES AND EXPENSES
PAYABLE HEREUNDER AND PURSUANT TO THE FEE LETTER, AND ALL OF THE FOLLOWING
DOCUMENTS, EACH OF WHICH SHALL BE SATISFACTORY IN FORM AND SUBSTANCE TO THE
AGENT AND ITS COUNSEL:
(A)
THE FOLLOWING REPURCHASE DOCUMENTS, AS WELL AS CERTAIN OTHER
DOCUMENTS, DELIVERED TO THE AGENT:
(I)
SECOND AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT.
THIS
SECOND AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT DULY COMPLETED AND
EXECUTED BY EACH OF THE PARTIES HERETO;
(II)
CUSTODIAL AGREEMENT.
THE CUSTODIAL AGREEMENT, DULY EXECUTED AND
DELIVERED BY EACH OF THE PARTIES THERETO;
(III)
ACCOUNT CONTROL AGREEMENT.
THE ACCOUNT CONTROL AGREEMENT, DULY
EXECUTED AND DELIVERED BY EACH OF THE PARTIES THERETO;
(IV)
INTEREST RATE PROTECTION AGREEMENTS.
ALL INTEREST RATE PROTECTION
AGREEMENTS REQUIRED PURSUANT TO SECTION 9.01(V), DULY EXECUTED AND DELIVERED BY
EACH OF THE PARTIES THERETO;
(V)
GUARANTEE AGREEMENT.
THE GUARANTEE AGREEMENT, DULY EXECUTED AND
DELIVERED BY