Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “Event of Default”) hereunder with respect to Buyer or a Seller, as applicable: (i) A Seller fails to repurchase or Buyer fails to transfer Purchased Mortgage Loans upon the applicable Repurchase Date pursuant to the terms hereof; (ii) A Seller or Buyer fails, after one (1) Business Day’s notice, to comply with Paragraph 4 hereof; (iii) An Act of Insolvency occurs with respect to a Seller or Buyer or any controlling entity thereof; (iv) Any representation or warranty made by a Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing; (v) Any covenant shall have been breached in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing; (vi) Buyer shall have reasonably determined that a Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller of such determination and such Seller shall not have responded with appropriate information to the contrary to the satisfaction of Buyer within twenty-four (24) hours; (vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby; (viii) A final judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 is rendered against a Seller, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayed; (ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds or indenture for borrowed funds by which a Seller is bound or affected shall occur and be continuing; (x) In the judgment of Buyer a material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of a Seller; (xi) A Seller shall be in default with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, which default could materially adversely affect the financial condition of a Seller (which covenants include, but are not limited to, an Act of Insolvency of a Seller or the failure of a Seller to make required payments under such contract or agreement as they become due); (xii) A Seller shall fail to promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility of a Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to material pending or future litigation involving a Seller; and (iv) any other developments which might materially and adversely affect the financial condition of a Seller; or (xiii) A Seller shall have failed to comply in any material respect with its obligations under the Custodial Agreement. (b) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur. (c) In all Transactions in which the defaulting party is a Seller, if Buyer is deemed to have exercised the option referred to in subparagraph (b) of this Paragraph, (i) each Seller’s obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this Paragraph, and (C) any amounts credited to the account of a Seller pursuant to subparagraph (f) of this Paragraph) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer applied to the aggregate unpaid Repurchase Prices owed by Seller, and (iv) the related Seller shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such Seller’s possession. (d) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller of payment of the aggregate Repurchase Prices for all such Transactions, Buyer’s right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to Seller, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such Seller. (e) After one (1) Business Day’s written notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this Paragraph), the nondefaulting party may: (i) as to Transactions in which the defaulting party is a Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder; and (ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“Replacement Mortgage Loans”) having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market. (f) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate. (g) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller of its option under subparagraph (b) of this Paragraph. (h) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default. (i) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law. (j) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx & Co. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization. (k) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Aames Financial Corp/De), Master Repurchase Agreement (Aames Investment Corp)
Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “Event of Default”) hereunder with respect to Buyer or a Seller, as applicable:
(i) A Seller fails to repurchase or Buyer fails to transfer Purchased Mortgage Loans upon the applicable Repurchase Date pursuant to the terms hereof;
(ii) A Seller or Buyer fails, after one (1) Business Day’s notice, fails to comply with Paragraph 4 hereof;
(iii) An Act of Insolvency occurs with respect to a Seller or Buyer or any controlling entity thereof;
(iv) Any representation or warranty made by a Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the those Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(v) Any covenant shall have been breached in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(vi) Buyer shall have reasonably determined in good faith and on a commercially reasonable basis that a Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller of such determination and such Seller shall not have responded with reasonably appropriate information to the contrary to the reasonable satisfaction of Buyer within twenty-four five (245) hoursBusiness Days;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby;
(viii) A final final, non-appealable judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 100,000 is rendered against a Seller, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayed;
(ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds or indenture for borrowed funds by which a Seller is bound or affected shall occur and be continuing;
(x) In the commercially reasonable judgment of Buyer Xxxxx, a material adverse change shall have occurred with respect to Seller. For purposes of this Agreement, a “material adverse change” shall be defined as a reduction in the business, operations, properties, prospects shareholders equity of twenty five percent or condition (financial or otherwise) of more in a Sellertwelve month period;
(xi) A Seller shall be in default of any payment obligation with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, in excess of $5,000,000, which default could materially adversely results in a material adverse affect on the financial condition of a Seller (which covenants include, but are not limited to, an Act of Insolvency of a Seller or the failure of a Seller to make required payments under such contract or agreement as they become due);
(xii) A Seller shall fail to promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility of a Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to material pending or future litigation involving a Seller; and (iv) any other developments which might materially and adversely affect the financial condition of a Seller; or
(xiii) A Seller shall have failed to comply in any material respect with its obligations under the Custodial Agreement.
(b) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(c) In all Transactions in which the defaulting party is a Seller, if Buyer is deemed to have exercised the option referred to in subparagraph subparagragh (b) of this Paragraph, (i) each Seller’s obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this Paragraph, and (C) any amounts credited to the account of a Seller pursuant to subparagraph (f) of this Paragraph) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer Xxxxx applied to the aggregate unpaid Repurchase Prices owed by Seller, and (iv) the related Seller shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such Seller’s possession.
(d) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller of payment of the aggregate Repurchase Prices for all such Transactions, BuyerXxxxx’s right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to Seller, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such SellerSeller or its designee.
(e) After one (1) Business Day’s written Upon the occurrence of an Event of Default, the nondefaulting party, without prior notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this Paragraph), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“Replacement Mortgage Loans”) having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market.
(f) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate.
(g) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller of its option under subparagraph (b) of this Paragraph.
(h) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(i) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(j) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx & Co. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
(k) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.
Appears in 1 contract
Samples: Master Repurchase Agreement (Taberna Realty Finance Trust)
Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “"Event of Default”") hereunder with respect to Buyer or a Sellerthe Sellers, as applicable:
(i) A Seller fails The Sellers fail to repurchase or Buyer fails to transfer Purchased Mortgage Loans HELs upon the applicable Repurchase Date pursuant to the terms hereof;
(ii) A Seller The Sellers fail or Buyer fails, after one (1) Business Day’s 's notice, to comply with Paragraph 4 hereof;
(iii) An Act of Insolvency occurs with respect to a Seller or Buyer or any controlling entity thereof;
(iv) Any representation or warranty made by a Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage LoansHELs, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans HELs without taking into account the Purchased Mortgage Loans HELs with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(v) Any covenant of a Seller or Buyer shall have been breached in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage LoansHELs, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans HELs without taking into account the Purchased Mortgage Loans HELs with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(vi) Buyer shall have reasonably determined that a Seller is or will be unable to meet its commitments under this Agreement, shall have notified such a Seller of such determination and such Seller shall not have responded with appropriate information to the contrary to the satisfaction of Buyer within twenty-four one (241) hoursBusiness Day;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans HELs purported to be covered hereby;
(viii) A final judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 100,000 is rendered against a Seller, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayed;
(ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds or indenture for borrowed funds by which a Seller is bound or affected shall occur and be continuing;
(x) In the judgment of Buyer a material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of a Seller;
(xi) A Seller shall be in default with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, which default could materially adversely affect the financial condition of a Seller (which covenants include, but are not limited to, an Act of Insolvency of a Seller or the failure of a Seller to make required payments under such contract or agreement as they become due);
(xii) A Seller The Sellers shall fail to promptly notify Buyer Buyer, upon the request of Buyer, of (i) the acceleration of any debt obligation or the termination of any credit facility of a Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any material adverse developments with respect to material pending or future litigation involving a Seller; and (iv) any other developments which might materially and adversely affect the financial condition of a Seller; or
(xiii) A Seller shall have failed to comply in any material respect with its obligations under the Custodial Agreement.
(b) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(c) In all Transactions in which the defaulting party is a Seller, if Buyer exercises or is deemed to have exercised the option referred to in subparagraph (b) of this Paragraph, (i) each the Seller’s 's obligations hereunder to repurchase all Purchased Mortgage Loans HELs in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans HELs pursuant to subparagraph (e)(i) of this Paragraph, and (C) any amounts credited to the account of a Seller pursuant to subparagraph (f) of this Paragraph) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer and applied to the aggregate unpaid Repurchase Prices owed by Sellerthe Sellers, and (iv) the related Seller Sellers shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans HELs subject to such Transactions then in such a Seller’s possession's possession or the possession of the Custodian, as applicable.
(d) In all Transactions in which the defaulting party is Buyer, upon tender by the related a Seller of payment of the aggregate Repurchase Prices for all such Transactions, Buyer’s 's right, title and interest in all Purchased Mortgage Loans HELs subject to such Transactions shall be deemed transferred to the related Seller, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans HELs to such Seller.
(e) After one (1) Business Day’s written notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this Paragraph), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“Replacement Mortgage Loans”) having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market.
(f) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate.
(g) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller of its option under subparagraph (b) of this Paragraph.
(h) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(i) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(j) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx & Co. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
(k) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.
Appears in 1 contract
Samples: Master Repurchase Agreement (Novastar Financial Inc)
Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “Event of Default”) hereunder with respect to Buyer or a Seller, as applicable:
(i) A Seller fails to repurchase or Buyer fails to transfer Purchased Mortgage Loans upon the applicable Repurchase Date pursuant to the terms hereof;
(ii) A Seller or Buyer fails, after one (1) Business Day’s notice, to comply with Paragraph 4 hereof;
(iii) An Act of Insolvency occurs with respect to a Seller or Buyer or any entity directly or indirectly controlling entity thereofSeller or Buyer;
(iv) Any representation or warranty made by a Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage Loans, (including without limitation the representations and warranties contained in Exhibit C hereto), such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, and after following the procedures and time frames set forth in Section 4 hereof if any Margin Deficit exists following such Market Value determination, no other Event of Default shall have occurred and be continuing;
(v) Any covenant shall have been breached in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans, Loans such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, and after following the procedures and time frames set forth in Section 4 hereof if any Margin Deficit exists following such Market Value determination, no other Event of Default shall have occurred and be continuing;
(vi) Buyer shall have reasonably determined that a Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller of such determination and such Seller shall not have responded with appropriate information to the contrary to the satisfaction of Buyer within twenty-four one (241) hoursBusiness Day;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby;
(viii) A final final, non-appealable judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 is rendered against a Seller, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayeddays;
(ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds in excess of $1,000,000 or indenture for borrowed funds in excess of $1,000,000 by which a Seller is bound or affected shall occur and be continuing;
(x) In the reasonable judgment of Buyer a material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of a Seller;
(xi) A Seller shall be in default with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, which default could materially adversely affect the financial condition of Guarantor and its subsidiaries taken as a Seller whole (which covenants include, but are not limited to, an Act of Insolvency of a Seller or the failure of a Seller to make required payments under such contract or agreement as they become due);
(xii) A Seller shall fail to promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility of a Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to material pending or future litigation involving a SellerSeller or Guarantor where the amount in controversy is in excess of $1,000,000 and the case is reasonably likely to be decided against Seller or Guarantor, as applicable; and (iv) any other developments which might materially and adversely affect the financial condition of a Seller; or;
(xiii) A Seller shall have failed to comply in any material respect with its obligations under the Custodial Agreement; or
(xiv) The Guaranty shall no longer be in full force and effect.
(b) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(c) In all Transactions in which the defaulting party is a Seller, if Buyer is deemed to have exercised the option referred to in subparagraph (b) of this Paragraph, (i) each Seller’s obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this Paragraph, and (C) any amounts credited to the account of a Seller pursuant to subparagraph (f) of this Paragraph) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer and applied to the aggregate unpaid Repurchase Prices owed by Seller, and (iv) in the related event that Seller does not pay the Repurchase Price, Seller shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such Seller’s possession, and (v) Seller shall be obligated to pay any related Breakage Fees.
(d) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller of payment of the aggregate Repurchase Purchase Prices and accrued and unpaid Price Differentials for all such Transactions, Buyer’s right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to Seller, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such Seller.
(e) After one (1) Business Day’s written notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this Paragraph), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“Replacement Mortgage Loans”) having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market.
(f) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate. Seller may, in the event of a Buyer default, terminate this Agreement and shall not incur a Breakage Fee in connection with such termination. In the event that Seller exercises its right to terminate this Agreement, Seller shall provide Buyer with written notice of termination specifying the date the Agreement shall terminate, which date of termination shall be not less than one (1) Business Day following the date of the written notice. The date of termination specified in such written notice shall be deemed to be the Repurchase Date for all Transactions.
(g) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller of its option under subparagraph (b) of this Paragraph.
(h) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(i) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(j) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur sixty (60) days after the date of such notice in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx & Co. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
(k) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.
(l) Buyer, at its option, may terminate this Agreement and all outstanding Transactions prior to the Termination Date, and in such case all outstanding Transactions shall terminate (subject to the notice requirement set forth in Paragraph 11(m) below) upon the occurrence of any one of the following Events of Termination:
(i) Buyer shall have reasonably determined that Seller or Guarantor is or will be unable to meet its commitments under this Agreement or the Guaranty, shall have notified Seller of such determination and Seller shall not have responded or caused the Guarantor to respond with appropriate information to the contrary to the satisfaction of Buyer within one (1) Business Day;
(ii) In the reasonable judgment of Buyer a material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of Seller or Guarantor;
(iii) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds in excess of $1,000,000 or indenture for borrowed funds in excess of $1,000,000 by which Seller or Guarantor is bound shall occur and be continuing;
(iv) Seller or Guarantor shall have failed to comply in any material respect with its obligations under any servicing agreement or any lease to which it is a party which default could materially adversely affect the financial condition of Guarantor and its subsidiaries taken as a whole;
(v) Guarantor shall have terminated the Guarantee in accordance with its provisions and a replacement guarantor satisfactory to the Buyer has not been appointed; or
(vi) Guarantor shall have failed to comply with the Financial Covenants.
(m) If Buyer exercises its right to terminate this Agreement pursuant to Paragraph 11(l) hereof, Buyer shall provide Seller with written notice of termination specifying the date the Agreement shall terminate, which date of termination shall be not less than one (1) Business Day following the date of the written notice. The date of termination specified in such written notice shall be deemed to be the Repurchase Date for all Transactions.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “"Event of Default”") hereunder with respect to Buyer or a Seller, as applicable:
(i) A Seller fails to repurchase or Buyer fails to transfer Purchased Mortgage Loans upon the applicable Repurchase Date pursuant to the terms hereof;
(ii) A Seller or Buyer fails, after one (1) Business Day’s 's notice, to comply with Paragraph 4 hereof;
(iii) An Act of Insolvency occurs with respect to a Seller or Buyer or any controlling entity thereof;
(iv) Any representation or warranty made by a Seller or Buyer in this Agreement or the Custody Agreement shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(v) Any covenant in this Agreement or the Custody Agreement shall have been breached in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(vi) Buyer shall have reasonably determined that a Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller of such determination and such Seller shall not have responded with appropriate information to the contrary to the satisfaction of Buyer within twenty-four (24) hours;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby;
(viii) A final judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 500,000 is rendered against a Seller, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayed;
(ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds or indenture for borrowed funds by which a Seller is bound or affected shall occur and be continuing;
(x) In the reasonable judgment of Buyer a material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of a Seller;
(xi) A Seller shall be in default with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, which default (a) permits acceleration of the obligations of the Seller under such contract or agreement by any other party thereto or (b) could materially adversely affect the financial condition of a Seller (which covenants include, but are not limited to, an Act of Insolvency of a Seller or the failure of a Seller to make required payments under such contract or agreement as they become due);
(xii) A Seller shall fail to promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility of a Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to material pending or future litigation involving Seller which could reasonably be expected to have a material adverse effect on the financial condition of the Seller; and (iv) any other developments which might materially and adversely affect the financial condition of a Seller; or
(xiii) A Seller shall have failed to comply in any material respect with its obligations under the Custodial Custody Agreement.
(xiv) Any Approvals of the Seller are materially adversely modified or revoked.
(b) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(c) In all Transactions in which the defaulting party is a Seller, if Buyer is deemed to have exercised the option referred to in subparagraph (b) of this Paragraph, (i) each Seller’s 's obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this Paragraph, and (C) any amounts credited to the account of a Seller pursuant to subparagraph (f) of this Paragraph) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer applied to the aggregate unpaid Repurchase Prices owed by Seller, and (iv) the related Seller shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such Seller’s 's possession.
(d) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller of payment of the aggregate Repurchase Prices for all such Transactions, Buyer’s 's right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to Seller, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such Seller.
(e) After one (1) Business Day’s written 's notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this Paragraph), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“"Replacement Mortgage Loans”") having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market.
(f) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate.
(g) For purposes of this Paragraph 1112, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller of its option under subparagraph (b) of this Paragraph.
(h) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(i) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(j) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx Steaxxx & Co. Xo. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
(k) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.
Appears in 1 contract
Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “Event of Default”) hereunder with respect to Buyer or a Seller, as applicable:
(i) A Seller fails to repurchase or Buyer fails to transfer Purchased Mortgage Loans upon the applicable Repurchase Date pursuant to the terms hereof;
(ii) A Seller or Buyer fails, after one (1) Business Day’s notice, to comply with Paragraph Section 4 hereof;
(iii) An Act of Insolvency occurs with respect to a Seller or Buyer or any entity directly or indirectly controlling entity thereofSeller or Buyer;
(iv) Any representation or warranty made by a Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining (including without limitation the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred representations and be continuing;
(v) Any covenant shall have been breached warranties contained in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage LoansExhibit C and Exhibit D hereto), such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, and after following the procedures and time frames set forth in Section 4 hereof if any Margin Deficit exists following such Market Value determination, no other Event of Default shall have occurred and be continuing;
(v) Any covenant shall have been breached in any material respect and, other than with respect to a breach of Seller’s obligation to pay any amounts owed under Sections 1, 3 and 4 of this Agreement or Seller’s obligation pursuant to Section 10(e)(x) herein, Seller fails to cure such breach within five (5) Business Days following the earlier of (A) an officer of Seller discovering the existence of such breach or (B) receipt by Seller of notice from Buyer of the existence of such breach; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans (including Section 10(e)(x)), such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, and after following the procedures and time frames set forth in Section 4 hereof if any Margin Deficit exists following such Market Value determination, no other Event of Default shall have occurred and be continuing; and provided further, that Seller’s breach of Section 10(e)(xix) herein shall not constitute an Event of Default but shall trigger the terms of Section 10(e)(xx) herein;
(vi) Buyer shall have reasonably determined that a Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller of such determination and such Seller shall not have responded with appropriate information to the contrary to the satisfaction of Buyer within twenty-four five (245) hoursBusiness Days;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby;
(viii) A final final, non-appealable judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 is rendered against a Seller, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayeddays;
(ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds in excess of $10,000,000 or indenture for borrowed funds in excess of $10,000,000 by which a Seller is bound or affected shall occur and be continuing;
(x) In the commercially reasonable judgment of Buyer a material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of a Seller;
(xi) A Seller Seller, Servicer or Guarantor shall be in default with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, which default could materially adversely affect the financial condition of Guarantor and its subsidiaries taken as a Seller whole (which covenants include, but are not limited to, an Act of Insolvency of a Seller or the failure of a Seller to make required payments under such contract or agreement as they become due);
(xii) A Seller shall fail to promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility of a Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to material pending or future litigation involving a Seller; and (iv) any other developments which might materially and adversely affect the financial condition of a Seller; or
(xiii) A Seller shall have failed to comply in any material respect with its obligations under the Custodial Agreement and, other than with respect to a breach of Seller’s obligation pursuant to Section 10(e)(x) herein or Section 3(c) of the Custodial Agreement., Seller fails to cure such breach within five (5) Business Days following the earlier of (A) an officer of Seller discovering the existence of such breach or (B) receipt by Seller of notice from Buyer of the existence of such breach; provided, however, that in the case of obligations with respect to the Purchased Mortgage Loans (including Section 10(e)(x) herein and Section 3(c) of the Custodial Agreement) such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, and after following the procedures and time frames set forth in Section 4 hereof if any Margin Deficit exists following such Market Value determination, no other Event of Default shall have occurred and be continuing;
(bxiii) The Guaranty shall no longer be in full force and effect;
(xiv) An “Event of Default” (as such term is defined under the MLPA) shall have occurred under the MLPA with respect to Seller; or
(xv) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(cb) In all Transactions in which the defaulting party is a Seller, if Buyer is deemed to have exercised the option referred to in subparagraph (b) of this ParagraphSection, (i) each Seller’s obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph Section (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this ParagraphSection, and (C) any amounts credited to the account of a Seller pursuant to subparagraph (f) of this ParagraphSection) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer and applied to the aggregate unpaid Repurchase Prices owed by Seller, and (iv) in the related event that Seller does not pay the Repurchase Price, Seller shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such Seller’s possession, and (v) Seller shall be obligated to pay any related Breakage Fees.
(dc) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller of payment of the aggregate Repurchase Purchase Prices and accrued and unpaid Price Differentials for all such Transactions, Buyer’s right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to Seller, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such Seller.
(ed) After one (1) Business Day’s written notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph Section or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this ParagraphSection), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“Replacement Mortgage Loans”) having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market.
(fe) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate. Seller may, in the event of a Buyer default, terminate this Agreement and shall not incur a Breakage Fee in connection with such termination. In the event that Seller exercises its right to terminate this Agreement, Seller shall provide Buyer with written notice of termination specifying the date the Agreement shall terminate, which date of termination shall be not less than one (1) Business Day following the date of the written notice. The date of termination specified in such written notice shall be deemed to be the Repurchase Date for all Transactions.
(gf) For purposes of this Paragraph Section 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller of its option under subparagraph (b) of this ParagraphSection 11.
(hg) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(ih) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(ji) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur sixty (60) days after the date of such notice in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx & Co. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
(kj) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.
(k) Buyer, at its option, may terminate this Agreement and all outstanding Transactions prior to the Termination Date, and in such case all outstanding Transactions shall terminate (subject to the notice requirement set forth in Section 11(m) below) upon the occurrence of any one of the following Events of Termination:
(i) Buyer shall have reasonably determined that Seller or Guarantor is or will be unable to meet its commitments under this Agreement or the Guaranty, shall have notified Seller of such determination and Seller shall not have responded or caused the Guarantor to respond with appropriate information to the contrary to the satisfaction of Buyer within five (5) Business Days;
(ii) A material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of Seller or Guarantor;
(iii) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds in excess of $10,000,000 or indenture for borrowed funds in excess of $10,000,000 by which Seller or Guarantor is bound shall occur and be continuing;
(iv) Guarantor shall have terminated the Guarantee in accordance with its provisions and a replacement guarantor satisfactory to the Buyer has not been appointed; or
(v) Guarantor shall have failed to comply with the Financial Covenants.
(l) If Buyer exercises its right to terminate this Agreement pursuant to Section 11(l) hereof, Buyer shall provide Seller with written notice of termination specifying the date the Agreement shall terminate, which date of termination shall be not less than one (1) Business Day following the date of the written notice. The date of termination specified in such written notice shall be deemed to be the Repurchase Date for all Transactions.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
Events of Default; Event of Termination. (a) The Each of the following events shall constitute events of default (each an “"Event of Default”) hereunder with respect to Buyer or a Seller, as applicable" under this Agreement:
(i) A Seller fails either (A) the Transaction Documents shall for any reason not cause, or shall cease to repurchase cause, Buyer to be the owner free of any adverse claim of any of the Purchased Loans, 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 Buyer fails to transfer in any of the Purchased Mortgage Loans upon the applicable Repurchase Date pursuant to the terms hereofLoans;
(ii) A in the event that Buyer or any of its Affiliates is a party to any Hedging Transaction and a default or breach occurs thereunder on the part of Seller or any of its Affiliates which results in the early termination of such Hedging Transaction or otherwise is not cured within the cure period for such default or breach provided under the terms and conditions of such Hedging Transaction;
(iii) failure of Buyer fails, after to receive no later than one (1) Business Day’s noticeDay following any Remittance Date the accreted value of the Price Differential (less any amount of such Price Differential previously paid by Seller to Buyer) (including, without limitation, in the event the Income paid or distributed on or in respect of the Purchased Loans is insufficient to comply with Paragraph 4 hereof;
(iii) An Act of Insolvency occurs with respect make such payment and Seller does not make such payment or cause such payment to a Seller or Buyer or any controlling entity thereofbe made);
(iv) Any failure of Buyer to receive the Repurchase Price for any Purchased Loans on the date the same is due under this Agreement (whether on the Repurchase Date, Early Repurchase Date or otherwise as provided herein);
(v) failure of Seller to make any other payment (i.e., a payment of a type not specified in any other clause of this Section 14) owing to Buyer 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 the case of a failure pursuant to Section 4 or three Business Days in the case of any other such failure;
(vi) any governmental, regulatory, or self-regulatory authority shall have taken any action to remove, limit, restrict, suspend or terminate the rights, privileges, or operations of Seller, which suspension has a material adverse effect on the financial condition or business operations of Seller, taken as a whole;
(vii) Buyer shall have determined, in the exercise of its good faith business judgment, (A) that there has been a material adverse change in the business, operations, corporate structure or financial condition, creditworthiness or prospects, taken as a whole, of Seller; (B) that Seller will not meet or has breached any of its obligations under any Transaction pursuant to any of the Transaction Documents; or (C) that a material adverse change in the financial or legal condition of Seller may occur due to the pendency or threatened pendency of a material legal action against Seller;
(viii) a Change of Control or an Act of Insolvency shall have occurred with respect to Seller;
(ix) any representation or warranty made by a Seller or Buyer hereunder shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(vx) Any covenant shall have been breached in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(vi) Buyer shall have reasonably determined that a Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller of such determination and such Seller shall not have responded with appropriate information to the contrary to the satisfaction of Buyer within twenty-four (24) hours;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby;
(viii) A final judgment by any competent court in the United States of America for the payment of money in an amount of at least greater than $1,000,000 is 250,000 shall have been rendered against a Seller, and the same remains remained undischarged or unpaid for a period of sixty thirty (6030) days days, during which period execution of such judgment is not effectively stayed;
(ixxi) Any event if Seller or Buyer shall breach or fail to perform any of default the terms, covenants, obligations or any event which with noticeconditions of this Agreement, the passage other than as specifically otherwise referred to in this definition of time "Event of Default", and such breach or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds or indenture for borrowed funds by which a Seller failure to perform is bound or affected shall occur and be continuingnot remedied within five (5) Business Days;
(xxii) In the judgment of Buyer a material adverse change Seller shall have occurred in the business, operations, properties, prospects defaulted or condition (financial or otherwise) of a Seller;
(xi) A Seller shall be in default with respect failed to any normal and customary covenants perform under any debt contract or other note, indenture, loan agreement, any servicing guaranty, swap agreement or any lease other contract, agreement or transaction to which it is a party, which default could materially adversely affect the financial condition of a Seller (which covenants include, but are not limited to, an Act of Insolvency of a Seller or A) involves the failure to pay a matured obligation in excess of a $250,000, 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 to make required payments under such contract shall breach any covenant or agreement as they become due);
(xii) A Seller condition, shall fail to promptly notify Buyer of (i) the acceleration perform, admits its inability to perform or state its intention not to perform its obligations under any Transaction or in respect of any debt obligation repurchase agreement, reverse repurchase agreement, securities contract or derivative transaction with any party. Notwithstanding anything to the termination contrary herein, for purposes of any credit facility this Section 14(a), an Event of a Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments Default with respect to material pending or future litigation involving a Seller; and (iv) any one Buyer shall not be an Event of Default with respect to the other developments which might materially and adversely affect the financial condition of a Seller; or
(xiii) A Seller shall have failed to comply in any material respect with its obligations under the Custodial AgreementBuyer.
(b) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(c) In all Transactions in which the defaulting party is a Seller, if Buyer is deemed to have exercised the option referred to in subparagraph (b) of this Paragraph, (i) each Seller’s obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this Paragraph, and (C) any amounts credited to the account of a Seller pursuant to subparagraph (f) of this Paragraph) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer applied to the aggregate unpaid Repurchase Prices owed by Seller, and (iv) the related Seller shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such Seller’s possession.
(d) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller of payment of the aggregate Repurchase Prices for all such Transactions, Buyer’s right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to Seller, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such Seller.
(e) After one (1) Business Day’s written notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this Paragraph), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“Replacement Mortgage Loans”) having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market.
(f) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate.
(g) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller of its option under subparagraph (b) of this Paragraph.
(h) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(i) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(j) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur in the event that the senior debt obligations or short-term debt obligations of The Bear Xxxxxxx & Co. Companies Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
, Seller shall pay to Buyer the then outstanding Repurchase Price in twelve (k12) The exercise by any party of remedies after the occurrence of an Event of Default monthly installments, which shall be conducted as equal in amount as possible. In the event that there are less than twelve (12) months outstanding with respect to a commercially reasonable mannerTransaction, Seller shall pay to Buyer 1/12 of the remaining outstanding Repurchase Price on a monthly basis, with the entire balance paid back to Buyer within twelve (12) months. In the event that Buyer delivers such notice to Seller, Buyer shall not be required to enter into any Transactions under this Agreement.
Appears in 1 contract
Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “Event of Default”) hereunder with respect to Buyer or a SellerSellers, as applicable:
(i) A Seller fails Sellers fail to repurchase or Buyer fails to transfer Purchased Mortgage Loans upon the applicable Repurchase Date pursuant to the terms hereof;
(ii) A Seller Sellers or Buyer failsfail, after one (1) Business Day’s notice, to comply with Paragraph Section 4 hereof;
(iii) An Act of Insolvency occurs with respect to a Seller Sellers or Buyer or any entity directly or indirectly controlling entity thereofSellers or Buyer;
(iv) Any representation or warranty made by a Seller Sellers or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining (including without limitation the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred representations and be continuing;
(v) Any covenant shall have been breached warranties contained in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage LoansExhibit C and Exhibit D hereto), such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, and after following the procedures and time frames set forth in Section 4 hereof if any Margin Deficit exists following such Market Value determination, no other Event of Default shall have occurred and be continuing;
(v) Any covenant shall have been breached in any material respect and, other than with respect to a breach of Sellers’ obligation to pay any amounts owed under Sections 1, 3 and 4 of this Agreement or Sellers’ obligation pursuant to Section 10(e)(x) herein, Sellers fail to cure such breach within five (5) Business Days following the earlier of (A) an officer of any Seller discovering the existence of such breach or (B) receipt by Sellers of notice from Buyer of the existence of such breach; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans (including Section 10(e)(x)), such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, and after following the procedures and time frames set forth in Section 4 hereof if any Margin Deficit exists following such Market Value determination, no other Event of Default shall have occurred and be continuing;
(vi) Buyer shall have reasonably determined that a any Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller Sellers of such determination and such Seller Sellers shall not have responded with appropriate information to the contrary to the satisfaction of Buyer within twenty-four five (245) hoursBusiness Days;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby;
(viii) A final final, non-appealable judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 is rendered against a any Seller, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayeddays;
(ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds in excess of $10,000,000 or indenture for borrowed funds in excess of $10,000,000 by which a any Seller is bound or affected shall occur and be continuing;
(x) In the commercially reasonable judgment of Buyer a material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of a any Seller;
(xi) A Seller Any Seller, Servicer or Guarantor shall be in default with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, which default could materially adversely affect the financial condition of Guarantor and its subsidiaries taken as a Seller whole (which covenants include, but are not limited to, an Act of Insolvency of a any Seller or the failure of a any Seller to make required payments under such contract or agreement as they become due);
(xii) A Seller shall fail to promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility of a Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to material pending or future litigation involving a Seller; and (iv) any other developments which might materially and adversely affect the financial condition of a Seller; or
(xiii) A Seller Sellers shall have failed to comply in any material respect with its obligations under the Custodial Custody Agreement and, other than with respect to a breach of Sellers’ obligation pursuant to Section 10(e)(x) herein or Section 3(c) of the Custody Agreement., Sellers fail to cure such breach within five (5) Business Days following the earlier of (A) an officer of any Seller discovering the existence of such breach or (B) receipt by Sellers of notice from Buyer of the existence of such breach; provided, however, that in the case of obligations with respect to the Purchased Mortgage Loans (including Section 10(e)(x) herein and Section 3(c) of the Custody Agreement) such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, and after following the procedures and time frames set forth in Section 4 hereof if any Margin Deficit exists following such Market Value determination, no other Event of Default shall have occurred and be continuing;
(bxiii) The Guaranty shall no longer be in full force and effect; or
(xiv) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(cb) In all Transactions in which the defaulting party is a any Seller, if Buyer is deemed to have exercised the option referred to in subparagraph (b) of this ParagraphSection, (i) each Seller’s Sellers’ obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph Section (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this ParagraphSection, and (C) any amounts credited to the account of a Seller Sellers pursuant to subparagraph (f) of this ParagraphSection) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer and applied to the aggregate unpaid Repurchase Prices owed by SellerSellers, and (iv) in the related Seller event that Sellers do not pay the Repurchase Price, Sellers shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such any Seller’s possession, and (v) Sellers shall be obligated to pay any related Breakage Fees.
(dc) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller Sellers of payment of the aggregate Repurchase Purchase Prices and accrued and unpaid Price Differentials for all such Transactions, Buyer’s right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to SellerSellers, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such SellerSellers.
(ed) After one (1) Business Day’s written notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph Section or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this ParagraphSection), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a any Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller Sellers hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller Sellers credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller Sellers hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“Replacement Mortgage Loans”) having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller Sellers as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market.
(fe) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller Sellers (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller Sellers for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller Sellers for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller Sellers for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate. Sellers may, in the event of a Buyer default, terminate this Agreement and shall not incur a Breakage Fee in connection with such termination. In the event that Sellers exercise their right to terminate this Agreement, Sellers shall provide Buyer with written notice of termination specifying the date the Agreement shall terminate, which date of termination shall be not less than one (1) Business Day following the date of the written notice. The date of termination specified in such written notice shall be deemed to be the Repurchase Date for all Transactions.
(gf) For purposes of this Paragraph Section 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller Sellers of its option under subparagraph (b) of this ParagraphSection 11.
(hg) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(ih) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(j) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx & Co. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
(ki) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.
(j) Buyer, at its option, may terminate this Agreement and all outstanding Transactions prior to the Termination Date, and in such case all outstanding Transactions shall terminate (subject to the notice requirement set forth in Section 11(m) below) upon the occurrence of any one of the following Events of Termination:
(i) Buyer shall have reasonably determined that Sellers or Guarantor are or will be unable to meet its commitments under this Agreement or the Guaranty, shall have notified Sellers of such determination and Sellers shall not have responded or caused the Guarantor to respond with appropriate information to the contrary to the satisfaction of Buyer within five (5) Business Days;
(ii) A material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of any Seller or Guarantor;
(iii) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds in excess of $10,000,000 or indenture for borrowed funds in excess of $10,000,000 by which any Seller or Guarantor are bound shall occur and be continuing;
(iv) Guarantor shall have terminated the Guarantee in accordance with its provisions and a replacement guarantor satisfactory to the Buyer has not been appointed; or
(v) Guarantor shall have failed to comply with the Financial Covenants.
(k) If Buyer exercises its right to terminate this Agreement pursuant to Section 11(k) hereof, Buyer shall provide Sellers with written notice of termination specifying the date the Agreement shall terminate, which date of termination shall be not less than one (1) Business Day following the date of the written notice. The date of termination specified in such written notice shall be deemed to be the Repurchase Date for all Transactions.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “"Event of Default”") hereunder with respect to Buyer or a Seller, as applicable:
(i) A Seller fails to repurchase or Buyer fails to transfer Purchased Mortgage Loans upon the applicable Repurchase Date pursuant to the terms hereof;
(ii) A Seller or Buyer fails, after one (1) Business Day’s 's notice, to comply with Paragraph 4 hereof;
(iii) An Act of Insolvency occurs with respect to a Seller or Buyer or any controlling entity thereof;
(iv) Any representation or warranty made by a Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(v) Any covenant shall have been breached in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(vi) Buyer shall have reasonably determined that a Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller of such determination and such Seller shall not have responded with appropriate information to the contrary to the satisfaction of Buyer within twenty-four one (241) hoursBusiness Day;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby;
(viii) A final judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 100,000 is rendered against a Seller, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayed;
(ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds or indenture for borrowed funds by which a Seller is bound or affected shall occur and be continuing;
(x) In the reasonable judgment of Buyer a material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of a Seller;
(xi) A Seller shall be in default with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, which default could materially adversely affect the financial condition of a Seller (which covenants include, but are not limited to, an Act of Insolvency of a Seller or the failure of a Seller to make required payments under such contract or agreement as they become due);
(xii) A Seller shall fail to promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility with respect to which Seller is the debtor and involving an amount in excess of $1,000,000 (each a Seller"Debt Obligation"); (ii) the amount and maturity of any such debt Debt Obligation assumed after the date hereof; (iii) the filing of any class action law suit naming Seller as a defendant or respondent; (iv) the filing of any law suit with an amount in controversy in excess of $1,000,000 naming Seller as a defendant or respondent; (v) the occurrence adverse developments with respect to material pending or future existing litigation involving a Seller; and (ivvi) any other developments which might materially and adversely affect the financial condition of a Seller;
(xiii) Any Mortgage Loan shall have been subject to the Agreement or the Custody Agreement for more than 180 days in aggregate; or
(xiiixiv) A Seller shall have failed to comply in any material respect with its obligations under the Custodial Custody Agreement.
(b) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(c) In all Transactions in which the defaulting party is a Seller, if Buyer is deemed to have exercised the option referred to in subparagraph (b) of this Paragraph, (i) each Seller’s 's obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and or the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this Paragraph, and (C) any amounts credited to the account of a Seller pursuant to subparagraph (f) of this Paragraph) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer applied to the aggregate unpaid Repurchase Prices owed by Seller, and (iv) the related Seller shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such Seller’s 's possession.
(d) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller of payment of the aggregate Repurchase Prices for all such Transactions, Buyer’s 's right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to Seller, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such Seller.
(e) After one (1) Business Day’s written 's notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this Paragraph), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market (in a commercially reasonable manner) at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans of substantially the same type (“"Replacement Mortgage Loans”") having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans of substantially the same type in the secondary market.
(f) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate.
(g) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller of its option under subparagraph (b) of this Paragraph.
(h) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(i) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(j) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx & Co. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
(k) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.full
Appears in 1 contract
Samples: Master Repurchase Agreement (Rock Financial Corp/Mi/)
Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “"Event of Default”") hereunder with respect to Buyer or a Seller, as applicable:
(i) A Seller fails to repurchase or Buyer fails to transfer Purchased Mortgage Loans upon the applicable Repurchase Date pursuant to the terms hereof;
(ii) A Seller or Buyer fails, after one (1) Business Day’s 's notice, to comply with Paragraph 4 hereof;
(iii) An Act of Insolvency occurs with respect to a Seller or Buyer or any controlling entity thereof;
(iv) Any representation or warranty made by a Seller or Buyer in this Agreement or the Custody Agreement shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(v) Any covenant in this Agreement or the Custody Agreement shall have been breached in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(vi) Buyer shall have reasonably determined that a Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller of such determination and such Seller shall not have responded with appropriate information to the contrary to the satisfaction of Buyer within twenty-four (24) hours;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby;
(viii) A final judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 500,000 is rendered against a Seller, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayed;
(ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds or indenture for borrowed funds by which a Seller is bound or affected shall occur and be continuing;
(x) In the reasonable judgment of Buyer a material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of a Seller;
(xi) A Seller shall be in default with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, which default (a) permits acceleration of the obligations of the Seller under such contract or agreement by any other party thereto or (b) could materially adversely affect the financial condition of a Seller (which covenants include, but are not limited to, an Act of Insolvency of a Seller or the failure of a Seller to make required payments under such contract or agreement as they become due);
(xii) A Seller shall fail to promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility of a Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to material pending or future litigation involving Seller which could reasonably be expected to have a material adverse effect on the financial condition of the Seller; and (iv) any other developments which might materially and adversely affect the financial condition of a Seller; or
(xiii) A Seller shall have failed to comply in any material respect with its obligations under the Custodial Custody Agreement.
(xiv) Any Approvals of the Seller are materially adversely modified or revoked.
(b) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(c) In all Transactions in which the defaulting party is a Seller, if Buyer is deemed to have exercised the option referred to in subparagraph (b) of this Paragraph, (i) each Seller’s 's obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this Paragraph, and (C) any amounts credited to the account of a Seller pursuant to subparagraph (f) of this Paragraph) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer applied to the aggregate unpaid Repurchase Prices owed by Seller, and (iv) the related Seller shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such Seller’s possession.
(d) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller of payment of the aggregate Repurchase Prices for all such Transactions, Buyer’s right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to Seller, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such Seller.
(e) After one (1) Business Day’s written notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this Paragraph), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“Replacement Mortgage Loans”) having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market.
(f) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate.
(g) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller of its option under subparagraph (b) of this Paragraph.
(h) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(i) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(j) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx & Co. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
(k) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.,
Appears in 1 contract
Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “Event of Default”) hereunder with respect to Buyer or a SellerSellers, as applicable:
(i) A Seller fails Sellers fail to repurchase or Buyer fails to transfer Purchased Mortgage Loans upon the applicable Repurchase Date pursuant to the terms hereof;
(ii) A Seller Sellers or Buyer failsfail, after one (1) Business Day’s notice, to comply with Paragraph Section 4 hereof;
(iii) An Act of Insolvency occurs with respect to a Seller Sellers or Buyer or any entity directly or indirectly controlling entity thereofSellers or Buyer;
(iv) Any representation or warranty made by a Seller Sellers or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining (including without limitation the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred representations and be continuing;
(v) Any covenant shall have been breached warranties contained in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage LoansExhibit C and Exhibit D hereto), such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, and after following the procedures and time frames set forth in Section 4 hereof if any Margin Deficit exists following such Market Value determination, no other Event of Default shall have occurred and be continuing;
(v) Any covenant shall have been breached in any material respect and, other than with respect to a breach of Sellers’ obligation to pay any amounts owed under Sections 1, 3 and 4 of this Agreement or Sellers’ obligation pursuant to Section 10(e)(x) herein, Sellers fail to cure such breach within five (5) Business Days following the earlier of (A) an officer of any Seller discovering the existence of such breach or (B) receipt by Sellers of notice from Buyer of the existence of such breach; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans (including Section 10(e)(x)), such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, and after following the procedures and time frames set forth in Section 4 hereof if any Margin Deficit exists following such Market Value determination, no other Event of Default shall have occurred and be continuing;
(vi) Buyer shall have reasonably determined that a any Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller Sellers of such determination and such Seller Sellers shall not have responded with appropriate information to the contrary to the satisfaction of Buyer within twenty-four five (245) hoursBusiness Days;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby;
(viii) A final final, non-appealable judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 is rendered against a any Seller, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayeddays;
(ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds in excess of $10,000,000 or indenture for borrowed funds in excess of $10,000,000 by which a any Seller is bound or affected shall occur and be continuing;
(x) In the commercially reasonable judgment of Buyer a material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of a any Seller;
(xi) A Seller Any Seller, Servicer or Guarantor shall be in default with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, which default could materially adversely affect the financial condition of Guarantor and its subsidiaries taken as a Seller whole (which covenants include, but are not limited to, an Act of Insolvency of a any Seller or the failure of a any Seller to make required payments under such contract or agreement as they become due);
(xii) A Seller shall fail to promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility of a Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to material pending or future litigation involving a Seller; and (iv) any other developments which might materially and adversely affect the financial condition of a Seller; or
(xiii) A Seller Sellers shall have failed to comply in any material respect with its obligations under the Custodial Custody Agreement and, other than with respect to a breach of Sellers’ obligation pursuant to Section 10(e)(x) herein or Section 3(c) of the Custody Agreement., Sellers fail to cure such breach within five (5) Business Days following the earlier of (A) an officer of any Seller discovering the existence of such breach or (B) receipt by Sellers of notice from Buyer of the existence of such breach; provided, however, that in the case of obligations with respect to the Purchased Mortgage Loans (including Section 10(e)(x) herein and Section 3(c) of the Custody Agreement) such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, and after following the procedures and time frames set forth in Section 4 hereof if any Margin Deficit exists following such Market Value determination, no other Event of Default shall have occurred and be continuing;
(bxiii) The Guaranty shall no longer be in full force and effect;
(xiv) An “Event of Default” (as such term is defined under the MLPA) shall have occurred under the MLPA with respect to Sellers; or
(xv) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(cb) In all Transactions in which the defaulting party is a any Seller, if Buyer is deemed to have exercised the option referred to in subparagraph (b) of this ParagraphSection, (i) each Seller’s Sellers’ obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph Section (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this ParagraphSection, and (C) any amounts credited to the account of a Seller Sellers pursuant to subparagraph (f) of this ParagraphSection) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer and applied to the aggregate unpaid Repurchase Prices owed by SellerSellers, and (iv) in the related Seller event that Sellers do not pay the Repurchase Price, Sellers shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such any Seller’s possession, and (v) Sellers shall be obligated to pay any related Breakage Fees.
(dc) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller Sellers of payment of the aggregate Repurchase Purchase Prices and accrued and unpaid Price Differentials for all such Transactions, Buyer’s right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to SellerSellers, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such SellerSellers.
(ed) After one (1) Business Day’s written notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph Section or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this ParagraphSection), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a any Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller Sellers hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller Sellers credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller Sellers hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“Replacement Mortgage Loans”) having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller Sellers as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market.
(fe) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller Sellers (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller Sellers for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller Sellers for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller Sellers for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate. Sellers may, in the event of a Buyer default, terminate this Agreement and shall not incur a Breakage Fee in connection with such termination. In the event that Sellers exercises their right to terminate this Agreement, Sellers shall provide Buyer with written notice of termination specifying the date the Agreement shall terminate, which date of termination shall be not less than one (1) Business Day following the date of the written notice. The date of termination specified in such written notice shall be deemed to be the Repurchase Date for all Transactions.
(gf) For purposes of this Paragraph Section 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller Sellers of its option under subparagraph (b) of this ParagraphSection 11.
(hg) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(ih) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(ji) At the option of Buyer, exercised by written notice to each SellerSellers, the Repurchase Date for any or all Transactions shall be deemed to immediately occur sixty (60) days after the date of such notice in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx & Co. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
(kj) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.
(k) Buyer, at its option, may terminate this Agreement and all outstanding Transactions prior to the Termination Date, and in such case all outstanding Transactions shall terminate (subject to the notice requirement set forth in Section 11(m) below) upon the occurrence of any one of the following Events of Termination:
(i) Buyer shall have reasonably determined that Sellers or Guarantor are or will be unable to meet its commitments under this Agreement or the Guaranty, shall have notified Sellers of such determination and Sellers shall not have responded or caused the Guarantor to respond with appropriate information to the contrary to the satisfaction of Buyer within five (5) Business Days;
(ii) A material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of any Seller or Guarantor;
(iii) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds in excess of $10,000,000 or indenture for borrowed funds in excess of $10,000,000 by which any Seller or Guarantor are bound shall occur and be continuing;
(iv) Guarantor shall have terminated the Guarantee in accordance with its provisions and a replacement guarantor satisfactory to the Buyer has not been appointed; or
(v) Guarantor shall have failed to comply with the Financial Covenants.
(l) If Buyer exercises its right to terminate this Agreement pursuant to Section 11(l) hereof, Buyer shall provide Sellers with written notice of termination specifying the date the Agreement shall terminate, which date of termination shall be not less than one (1) Business Day following the date of the written notice. The date of termination specified in such written notice shall be deemed to be the Repurchase Date for all Transactions.
Appears in 1 contract
Samples: Master Repurchase Agreement (New Century Financial Corp)
Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “Event of Default”) hereunder with respect to Buyer or a Seller, as applicable:
(i) A Seller fails to repurchase or Buyer fails to transfer Purchased Mortgage Loans upon the applicable Repurchase Date pursuant to the terms hereof;
(ii) A Seller or Buyer fails, after one (1) Business Day’s notice, fails to comply with Paragraph 4 hereof;
(iii) An Act of Insolvency occurs with respect to a Seller Seller, Buyer or Buyer Guarantor or any controlling entity thereof;
(iv) Any representation or warranty made by a Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the those Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(v) Any covenant shall have been breached in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(vi) Buyer shall have reasonably determined in good faith and on a commercially reasonable basis that a Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller of such determination and such Seller shall not have responded with reasonably appropriate information to the contrary to the reasonable satisfaction of Buyer within twenty-four five (245) hoursBusiness Days;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby;
(viii) A final final, non-appealable judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 100,000 is rendered against a SellerSeller or Guarantor, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayed;
(ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds or indenture for borrowed funds by which a Seller is bound or affected shall occur and be continuing;
(x) In the commercially reasonable judgment of Buyer Buyer, a material adverse change shall have occurred with respect to Seller or Guarantor; for purposes of this Agreement, a “material adverse change” shall be defined as a reduction in the business, operations, properties, prospects shareholders equity of twenty five percent or condition (financial or otherwise) of more in a Sellertwelve month period;
(xi) A Seller or Guarantor shall be in default of any payment obligation with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, in excess of $5,000,000, which default could materially adversely affect results in a material adverse effect on the financial condition of a Seller or Guarantor (which covenants include, but are not limited to, an Act of Insolvency of a Seller or Guarantor or the failure of a Seller or Guarantor to make required payments under such contract or agreement as they become due);
(xii) A Seller or Guarantor shall fail to promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility of a SellerSeller or Guarantor; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to material pending or future litigation involving a Seller; and (iv) any other developments which might materially and adversely affect the financial condition of a Seller; or
(xiii) A Seller shall have failed to comply in any material respect with its obligations under the Custodial Agreement.
(b) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(c) In all Transactions in which the defaulting party is a Seller, if Buyer is deemed to have exercised the option referred to in subparagraph (b) of this Paragraph, (i) each Seller’s obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this Paragraph, and (C) any amounts credited to the account of a Seller pursuant to subparagraph (f) of this Paragraph) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer applied to the aggregate unpaid Repurchase Prices owed by Seller, and (iv) the related Seller shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such Seller’s possession.
(d) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller of payment of the aggregate Repurchase Prices for all such Transactions, Buyer’s right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to Seller, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such Seller.
(e) After one (1) Business Day’s written notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this Paragraph), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“Replacement Mortgage Loans”) having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market.
(f) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate.
(g) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller of its option under subparagraph (b) of this Paragraph.
(h) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(i) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(j) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx & Co. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
(k) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.;
Appears in 1 contract
Events of Default; Event of Termination. (a) The following events shall constitute events of default (each an “"Event of Default”") hereunder with respect to Buyer Lender or a SellerBorrower, as applicable:
(i) A Seller Borrower fails to repurchase redeem or Buyer Lender fails to transfer Purchased release Financed Mortgage Loans upon the applicable Repurchase Payoff Date pursuant to the terms hereof;
(ii) A Seller Borrower or Buyer Lender fails, after one (1) Business Day’s 's notice, to comply with Paragraph 4 hereof;
(iii) An Act of Insolvency occurs with respect to a Seller Borrower or Buyer Lender or any controlling entity thereof;
(iv) Any representation or warranty made by a Seller Borrower or Buyer Lender shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated; provided, however, that in the case of representations and warranties made with respect to the Purchased Financed Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Financed Mortgage Loans without taking into account the Purchased Financed Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(v) Any covenant shall have been breached in any material respect; provided, however, that in the case of covenants made with respect to the Purchased Mortgage Loans, such circumstance shall not constitute an Event of Default if, after determining the Market Value of the Purchased Mortgage Loans without taking into account the Purchased Mortgage Loans with respect to which such circumstance has occurred, no other Event of Default shall have occurred and be continuing;
(vi) Buyer shall have reasonably determined that a Seller is or will be unable to meet its commitments under this Agreement, shall have notified such Seller of such determination and such Seller shall not have responded with appropriate information to the contrary to the satisfaction of Buyer within twenty-four (24) hours;
(vii) This Agreement shall for any reason cease to create a valid, first priority security interest in any of the Purchased Mortgage Loans purported to be covered hereby;
(viii) A final judgment by any competent court in the United States of America for the payment of money in an amount of at least $1,000,000 is rendered against a Seller, and the same remains undischarged for a period of sixty (60) days during which execution of such judgment is not effectively stayed;
(ix) Any event of default or any event which with notice, the passage of time or both shall constitute an event of default shall occur and be continuing under any repurchase or other financing agreement for borrowed funds or indenture for borrowed funds by which a Seller is bound or affected shall occur and be continuing;
(x) In the judgment of Buyer a material adverse change shall have occurred in the business, operations, properties, prospects or condition (financial or otherwise) of a Seller;
(xi) A Seller shall be in default with respect to any normal and customary covenants under any debt contract or agreement, any servicing agreement or any lease to which it is a party, which default could materially adversely affect the financial condition of a Seller (which covenants include, but are not limited to, an Act of Insolvency of a Seller or the failure of a Seller to make required payments under such contract or agreement as they become due);
(xii) A Seller shall fail to promptly notify Buyer of (i) the acceleration of any debt obligation or the termination of any credit facility of a Seller; (ii) the amount and maturity of any such debt assumed after the date hereof; (iii) any adverse developments with respect to material pending or future litigation involving a Seller; and (iv) any other developments which might materially and adversely affect the financial condition of a Seller; or
(xiii) A Seller shall have failed to comply in any material respect with its obligations under the Custodial Agreement.
(b) If an Event of Default shall have occurred and be continuing, then, at the option of the nondefaulting party, exercised by written notice to the defaulting party (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed immediately to occur.
(c) In all Transactions in which the defaulting party is a Seller, if Buyer is deemed to have exercised the option referred to in subparagraph (b) of this Paragraph, (i) each Seller’s obligations hereunder to repurchase all Purchased Mortgage Loans in such Transactions shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law, the Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount obtained by daily application of (x) the greater of the Pricing Rate for such Transaction and the Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to subparagraph (b) of this Paragraph (decreased as of any day by (A) any amounts retained by Buyer with respect to such Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the sale of Purchased Mortgage Loans pursuant to subparagraph (e)(i) of this Paragraph, and (C) any amounts credited to the account of a Seller pursuant to subparagraph (f) of this Paragraph) on a 360 day per year basis for the actual number of days during the period from and including the date of the Event of Default giving rise to such option to but excluding the date of payment of the Repurchase Price as so increased, (iii) all Income paid after such exercise or deemed exercise shall be payable to and retained by Buyer applied to the aggregate unpaid Repurchase Prices owed by Seller, and (iv) the related Seller shall immediately deliver or cause the Custodian to deliver to Buyer any documents relating to Purchased Mortgage Loans subject to such Transactions then in such Seller’s possession.
(d) In all Transactions in which the defaulting party is Buyer, upon tender by the related Seller of payment of the aggregate Repurchase Prices for all such Transactions, Buyer’s right, title and interest in all Purchased Mortgage Loans subject to such Transactions shall be deemed transferred to Seller, and Buyer shall deliver or cause the Custodian to deliver all documents relating to such Purchased Mortgage Loans to such Seller.
(e) After one (1) Business Day’s written notice to the defaulting party (which notice need not be given if an Act of Insolvency shall have occurred, and which may be the notice given under subparagraph (b) of this Paragraph or the notice referred to in clause (ii) of the first sentence of subparagraph (a) of this Paragraph), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is a Seller, (A) immediately sell on a servicing released or servicing retained basis as Buyer deems desirable, in a recognized market at such price or prices as Buyer may in its sole discretion deem satisfactory, any or all Purchased Mortgage Loans subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Mortgage Loans, to give such Seller credit for such Purchased Mortgage Loans in an amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase Prices and any other amounts owing by such Seller hereunder; and
(ii) as to Transactions in which the defaulting party is Buyer, (A) purchase mortgage loans (“Replacement Mortgage Loans”) having substantially the same outstanding principal amount, maturity and interest rate as any Purchased Mortgage Loans that are not transferred by Buyer to the related Seller as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Mortgage Loans, to be deemed to have purchased Replacement Mortgage Loans at the price therefor on such date, calculated as the average of the prices obtained from three (3) nationally recognized registered broker/dealers that buy and sell comparable mortgage loans in the secondary market.
(f) As to Transactions in which the defaulting party is Buyer, Buyer shall be liable to the related Seller (i) with respect to Purchased Mortgage Loans (other than Additional Purchased Mortgage Loans), for any excess of the price paid (or deemed paid) by such Seller for Replacement Mortgage Loans therefor over the Repurchase Price for such Purchased Mortgage Loans and (ii) with respect to Additional Purchased Mortgage Loans, for the price paid (or deemed paid) by such Seller for the Replacement Mortgage Loans therefor. In addition, Buyer shall be liable to such Seller for interest on such remaining liability with respect to each such purchase (or deemed purchase) of Replacement Mortgage Loans from the date of such purchase (or deemed purchase) until paid in full by Buyer. Such interest shall be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime Rate.
(g) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the related Seller of its option under subparagraph (b) of this Paragraph.
(h) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate. Expenses incurred in connection with an Event of Default shall include without limitation those costs and expenses incurred by the nondefaulting party as a result of the early termination of any repurchase agreement or reverse repurchase agreement entered into by the nondefaulting party in connection with the Transaction then in default.
(i) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.
(j) At the option of Buyer, exercised by written notice to each Seller, the Repurchase Date for any or all Transactions shall be deemed to immediately occur in the event that the senior debt obligations or short-term debt obligations of Bear Xxxxxxx & Co. Inc. shall be rated below the four highest generic grades (without regard to any pluses or minuses reflecting gradations within such generic grades) by any nationally recognized statistical rating organization.
(k) The exercise by any party of remedies after the occurrence of an Event of Default shall be conducted in a commercially reasonable manner.of
Appears in 1 contract
Samples: Master Financing Agreement (Cityscape Financial Corp)
