INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3: (a) Seller may, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds the Facility Amount. Buyer shall have the right to review all New Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject any or all of the New Loans proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable). (b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed Transaction, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereof, Buyer shall within five (5) Business Days either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing. (c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:
Appears in 3 contracts
Samples: Master Repurchase Agreement (Gramercy Capital Corp), Master Repurchase Agreement (Gramercy Capital Corp), Master Repurchase Agreement (Gramercy Capital Corp)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Each Seller may, from time to time, prior to time during the Facility Termination DateRevolving Period, request that Buyer enter into a Transaction with respect to one or more New LoansMortgage Loans proposed to be sold to Buyer by such Seller. Such Seller shall initiate each request by submitting the Purchased Loan Information for each Mortgage Loan (a Preliminary Due Diligence Package “Transaction Request”) to Repo Agent for BuyerRepo Agent’s review and approval. Notwithstanding anything All fundings are subject to Repo Agent’s approval in its sole and absolute discretion. This Agreement is not a commitment by Buyer to enter into Transactions with either Seller but rather sets forth the contrary herein, procedures to be used in connection with periodic requests for Buyer shall have to enter into Transactions with each Seller. Each Seller hereby acknowledges that Buyer is under no obligation to consider for agree to enter into, or to enter into, any Transaction, to purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds the Facility AmountMortgage Loan. Buyer and its representatives shall have the right to review all New Mortgage Loans proposed to be sold to Buyer in connection with any Transaction and to conduct its own due diligence investigation of such New Loans Mortgage Loans, pursuant to Section 20, as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole and absolute discretion. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer or Repo Agent shall be entitled to make a determination, in its sole and absolute discretion, whether a New Mortgage Loan qualifies as an Eligible Loan Loan, and whether to reject any or all request to purchase such Mortgage Loan. The Aggregate Repurchase Price of the New Purchased Loans proposed subject to be sold to Buyer by Seller. Buyer outstanding Transactions shall have no obligation to consider for purchase not at any New Loans proposed by Seller after the original Facility Termination Date or during time exceed the Facility Extension Period (if applicable)Amount.
(b) Upon Buyer’s receipt of If a complete Preliminary Due Diligence Package with respect Seller submits a Transaction Request to Repo Agent before 10:00 a.m. (New York City time) on a proposed TransactionBusiness Day during the Revolving Period, Buyer Repo Agent shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate Days (excluding the New Loans. Upon Buyer’s receipt day of such additional Diligence Materials or Buyer’s waiver thereofreceipt), Buyer shall within five (5) Business Days either (i) notify such Seller of Buyer’s intent to proceed with the Transaction Transaction, subject to the terms and conditions of this Agreement, and of its determination with respect to the Purchase Price and the Market Asset Value for the related New Loans Mortgage Loan (such notice, a “Preliminary Approval”) or (ii) deny, in BuyerRepo Agent’s sole and absolute discretion, such Seller’s request for the applicable Transaction. BuyerRepo Agent’s failure to respond to such Seller within five two (52) Business Days, as applicable, Days shall be deemed to be a denial of such Seller’s request to enter into the proposed Transaction, unless Buyer Repo Agent and such Seller have agreed otherwise in writing.
(c) Upon a Seller’s receipt of BuyerRepo Agent’s Preliminary Approval with respect to a Transaction, such Seller shall, if such Seller desires to enter into such Transaction with respect to the related New Loans Mortgage Loan, upon the terms set forth by Buyer Repo Agent in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Mortgage Loan and related Eligible Mortgaged Property or Mortgaged Properties (to the extent applicable and not already delivered to Buyer or Custodian in connection with Repo Agent’s review of the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence Listproposed Transaction) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer Repo Agent in its sole and absolute discretion and pursuant to documentation reasonably satisfactory to BuyerRepo Agent in its sole and absolute discretion:
Appears in 2 contracts
Samples: Master Repurchase Agreement (Angel Oak Mortgage, Inc.), Master Repurchase Agreement (Angel Oak Mortgage, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Subject to the terms and conditions set forth in this Agreement (including, without limitation, the “Transaction Conditions Precedent” specified in Section 3(b) of this Agreement), an agreement to enter into a Transaction shall be made in writing at the initiation of Seller as provided below; provided, however, that (i) the aggregate outstanding Purchase Price at any time for all Transactions shall not exceed the Facility Amount and (ii) Buyer shall not have any obligation to enter into Transactions with Seller after the occurrence and during the continuance of a Default or an Event of Default or after the Facility Availability Period. Seller may, from time to time, prior submit to Buyer a Transaction Request, in the Facility Termination Dateform of Exhibit VIII attached hereto, request that Buyer for Buyer’s review and approval in order to enter into a Transaction with respect to one or more New Loansany Eligible Loan that Seller proposes to be included as Collateral under this Agreement. Seller shall initiate each request by submitting Upon Buyer’s receipt of a Preliminary complete Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to the contrary hereinPackage, Buyer shall have no obligation the right to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential request, in Buyer’s good faith business judgment, additional diligence materials and deliveries with respect to the Purchased Loans as applicable Eligible Loan, to the extent necessary for Buyer’s underwriting of such Eligible Loan. Upon Buyer’s receipt of the date Transaction Request, Due Diligence Package and additional diligence materials, Buyer shall use commercially reasonable efforts to within ten (10) Business Days and following receipt of determinationinternal credit approval, either (i) that when combined with all Purchased Loans which notify Seller of the Purchase Price and the Market Value for the Eligible Loan or (ii) deny Seller’s request for a Transaction. Buyer’s failure to respond to Seller within ten (10) Business Days shall be deemed to be a denial of Seller’s request for a Transaction, unless Buyer and Seller have not been repurchased by Seller hereunder exceeds the Facility Amountagreed otherwise in writing. Buyer shall have the right to review all New Eligible Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans as Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject that it shall or shall not purchase any or all of the New Eligible Loans proposed to be sold to Buyer by Seller. On the Purchase Date for the Transaction which shall be on a date mutually agreed upon by Buyer and Seller following the approval of an Eligible Loan by Buyer, the Purchased Loan shall be transferred to Buyer against the transfer of the Purchase Price to an account of Seller. Notwithstanding anything to the contrary in this Agreement, Seller shall have no obligation the right to consider revoke its request for purchase a Transaction at any New Loans time up to the Business Day prior to the proposed Purchase Date for such Transaction which Purchase Date was mutually agreed upon by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable)Buyer and Seller.
(b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent shall have been satisfied (or waived by Buyer’s receipt ), Buyer shall promptly deliver to Seller a written confirmation in the form of Exhibit I attached hereto of each Transaction (a complete Preliminary Due Diligence Package “Confirmation”). Such Confirmation shall describe the Purchased Loans, shall identify Buyer and Seller, and shall set forth:
(i) the Purchase Date,
(ii) the Purchase Price Percentage and the Purchase Price for such Purchased Loan,
(iii) the Repurchase Date,
(iv) the Pricing Rate, and
(v) any additional terms or conditions not inconsistent with this Agreement. With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on each subsequent Pricing Rate Determination Date for the next succeeding Pricing Rate Period for such Transaction. Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Pricing Rate Determination Date for the related Pricing Rate Period and notify Seller of such rate for such period on such subsequent Pricing Rate Determination Date. For purposes of this Section 3(b), the “Transaction Conditions Precedent” shall be deemed to have been satisfied with respect to a any proposed Transaction if:
(A) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction;
(B) the representations and warranties made by Seller in any of the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction, before and after giving effect to such Transaction, as though made on such Purchase Date (except to the extent such representations and warranties are made as of a particular date and except with respect to the representations and warranties for each individual Purchased Loan set forth in Exhibit VI hereto which are made as of the related Purchase Date only);
(C) Buyer shall have received from Seller all corporate and governmental approvals and closing documentation as Buyer may reasonably request,
(D) Seller shall have paid all of Buyer’s out-of-pocket costs and expenses pursuant to Section 30(d) of this Agreement;
(E) Buyer shall have (A) determined, in accordance with the right within applicable provisions of Section 3(a) of this Agreement, that the Assets proposed to be sold to Buyer by Seller in such Transaction are Eligible Loans and (B) obtained internal credit approval for the inclusion of such Eligible Loan as a Purchased Loan in a Transaction;
(F) Buyer shall have determined that no Material Adverse Change has occurred and is continuing;
(G) as of the applicable Purchase Date, the Debt Yield Test is satisfied and the Concentration Limit is not breached or violated (or, if as of the applicable Purchase Date, the Debt Yield Test is not satisfied or the Concentration Limit is breached or violated, then after the proposed Transaction is consummated the Debt Yield Test is satisfied and the Concentration Limit is not breached or violated); and
(H) at least two of Messrs. Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxx or Xxxxxx Xxxxx are in the employ of NRFC (2unless Buyer in its sole discretion accepts a replacement at the time two or more of such Persons are not in the employ of NRFC).
(c) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby unless specific objection is made no less than three (3) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate Days after the New Loansdate thereof. Upon Buyer’s receipt In the event of any conflict between the terms of such additional Diligence Materials or Buyer’s waiver thereofConfirmation and the terms of this Agreement, Buyer the Confirmation shall within prevail. An objection sent by Seller with respect to any Confirmation must state specifically that the writing is an objection, must specify the provision(s) of such Confirmation being objected to by Seller, must set forth such provision(s) in the manner that Seller believes such provisions should be stated, and must be sent by Seller no more than five (5) Business Days either after such Confirmation is received by Seller.
(d) No Transaction shall be terminable on demand by Buyer (other than upon the occurrence and during the continuance of an Event of Default). Seller shall be entitled to terminate a Transaction on demand, in whole only, and repurchase the Purchased Loan subject to a Transaction on any Business Day prior to the Repurchase Date (an “Early Repurchase Date”); provided, however, that:
(i) notify Seller notifies Buyer in writing of Buyer’s its intent to proceed terminate such Transaction and repurchase such Purchased Loan no later than three (3) Business Days prior to such Early Repurchase Date (or such shorter period of time as Buyer may agree to); provided, that Seller shall have the right to revoke such notice at any time up to the Business Day prior to such Early Repurchase Date,
(ii) on such Early Repurchase Date Seller pays to Buyer an amount equal to the sum of the Repurchase Price for such Transaction, the amount, if any, payable by Seller in the event any Hedging Transaction related to such Purchased Loan is being terminated as of such date and any other amounts payable under this Agreement (including, without limitation, Section 3(i) of this Agreement) with respect to such Transaction against transfer to Seller or its agent of such Purchased Loan,
(iii) on such Early Repurchase Date, following the payment of the amounts set forth in subclause (ii) above, no Margin Deficit exists, and
(iv) no Default exists or will exist as a result of such early repurchase. Such notice shall set forth the Early Repurchase Date and shall identify with particularity the Purchased Loans to be repurchased on such Early Repurchase Date.
(e) On the Repurchase Date, termination of the applicable Transaction will be effected by transfer to Seller or its agent of the applicable Purchased Loan and any Income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Section 5 of this Agreement) against the simultaneous transfer to an account of Buyer of the Repurchase Price, the amount, if any, payable by Seller in the event any Hedging Transaction related to such Purchased Loan is being terminated as of such date and any other amounts payable under this Agreement with respect to such Transaction.
(f) On any Remittance Date before the Repurchase Date, Seller shall have the right, from time to time, to transfer cash to Buyer for the purpose of reducing the Purchase Price of, but not terminating, a Transaction and without the release of any Collateral and without any prepayment fee or penalty.
(g) If prior to the first day of any Pricing Rate Period with respect to any Transaction, Buyer shall have determined in the exercise of its reasonable business judgment (which determination shall be conclusive and binding upon Seller) that, (i) by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBO Rate for such Pricing Rate Period, or (ii) the LIBO Rate determined or to be determined for such Pricing Rate Period will not adequately and fairly reflect the cost to Buyer (as determined and certified by Buyer) of making or maintaining Transactions during such Pricing Rate Period, Buyer shall give telecopy or telephonic notice (with written notice to follow the next Business Day) thereof to Seller as soon as practicable thereafter. If such notice is given and provided Buyer shall be making the same determination generally on all of its similarly situated customers, the Pricing Rate with respect to such Transaction for such Pricing Rate Period, and for any subsequent Pricing Rate Periods until such notice has been withdrawn by Buyer shall be a per annum rate equal to the Prime Rate plus 100 basis points (1.00%) (the “Alternative Rate”).
(h) Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for Buyer to effect Transactions as contemplated by the Transaction Documents, (a) the commitment of Buyer hereunder to enter into new Transactions shall forthwith be canceled, and (b) the Transactions then outstanding shall be converted automatically to Alternative Rate Transactions on the last day of the then current Pricing Rate Period or within such earlier period as may be required by law. If any such conversion of a Transaction occurs on a day which is not the last day of the then current Pricing Rate Period with respect to such Transaction, Seller shall pay to Buyer such amounts, if any, as may be required pursuant to Section 3(i) of this Agreement.
(i) Upon written demand by Buyer, Seller shall indemnify Buyer and hold Buyer harmless from any net actual, out-of-pocket loss or expense (not to include any lost profit or opportunity) (including, without limitation, reasonable actual attorneys’ fees and disbursements) which Buyer sustains or incurs as a consequence of (i) default by Seller in terminating any Transaction after Seller has given a notice in accordance with Section 3(d) hereof of a termination of a Transaction, (ii) any payment of the Repurchase Price on any day other than a Remittance Date or the Repurchase Date (including, without limitation, any such actual, out-of- pocket loss or expense arising from the reemployment of funds obtained by Buyer to maintain Transactions hereunder or from customary and reasonable fees payable to terminate the deposits from which such funds were obtained) or (iii) a default by Seller in selling Eligible Loans after Seller has notified Buyer of a proposed Transaction and Buyer has agreed to purchase such Eligible Loans in accordance with the Transaction provisions of this Agreement. A certificate as to such actual costs, losses, damages and expenses, setting forth the calculations therefor shall be submitted promptly by Buyer to Seller.
(j) If the adoption of its determination or any change in any Requirement of Law or in the interpretation or application thereof by any Governmental Authority or compliance by Buyer with any request or directive from any central bank or other Governmental Authority having jurisdiction over Buyer made subsequent to the date hereof:
(i) shall subject Buyer to any tax of any kind whatsoever with respect to the Purchase Price Transaction Documents, any Purchased Loan or any Transaction, or change the basis of taxation of payments to Buyer in respect thereof (except for income taxes and any changes in the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or rate of tax on Buyer’s overall net income); or
(ii) denyshall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of Buyer which is not otherwise included in the determination of the LIBO Rate hereunder; and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems, in Buyer’s sole the exercise of its reasonable business judgment, to be material, of entering into, continuing or maintaining Transactions or to reduce in a material manner any amount receivable under the Transaction Documents in respect thereof; then, in any such case and absolute discretionprovided Buyer imposes such additional costs generally on all of its similarly situated customers, Seller’s request Seller shall promptly pay Buyer any additional amounts necessary to compensate Buyer for such increased cost or reduced amount receivable. If Buyer becomes entitled to claim any additional amounts pursuant to this Section 3(j), it shall notify Seller in writing of the applicable Transactionevent by reason of which it has become so entitled. Buyer’s failure Such notification as to respond the calculation of any additional amounts payable pursuant to Seller within five (5) Business Days, as applicable, this subsection shall be deemed submitted by Buyer to be a denial Seller. This covenant shall survive the termination of Seller’s request to enter into this Agreement and the proposed Transaction, unless Buyer and repurchase by Seller have agreed otherwise in writingof any or all of the Purchased Loans.
(ck) Upon Seller’s receipt If Buyer shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof has the effect of reducing the rate of return on Buyer’s Preliminary Approval or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer, in the exercise of its reasonable business judgment, to be material, then from time to time, after submission by Buyer to Seller of a Transactionwritten request therefor, and provided Buyer imposes such additional costs generally on all of its similarly situated customers, Seller shall, if Seller desires shall pay to enter into Buyer such Transaction with respect additional amount or amounts as will compensate Buyer for such reduction. Such notification as to the related New Loans upon the terms set forth calculation of any additional amounts payable pursuant to this subsection shall be submitted by Buyer in its Preliminary Approval, deliver to Seller. This covenant shall survive the documents set forth below in termination of this Section 3(c) with respect to each New Loan Agreement and related Eligible Property the repurchase by Seller of any or Properties (to all of the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:Purchased Loans.
Appears in 2 contracts
Samples: Master Repurchase Agreement, Master Repurchase Agreement (NorthStar Real Estate Income Trust, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to one or more New LoansAssets. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approvalapproval in Buyer’s sole good faith discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, immediately after the purchase of such New Asset, the Aggregate Repurchase Price (excluding including the proposed Purchase Price Differential with respect to the Purchased Loans as of the date of determinationsuch New Asset) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole good faith discretion. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its Buyer’s sole and absolute good faith discretion, whether a New Loan Asset qualifies as an Eligible Loan and Asset or whether to reject any or all of the New Loans Asset proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionNew Asset, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List Package to evaluate such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New LoansAsset. Upon Buyer’s receipt of such additional Supplemental Due Diligence Materials Package or Buyer’s waiver thereof, Buyer shall shall, within five (5) Business Days Days, either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute good faith discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan Asset and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in Buyer’s sole good faith discretion and pursuant to documentation reasonably satisfactory to Buyer in Buyer’s sole good faith discretion:
Appears in 2 contracts
Samples: Master Repurchase and Securities Contract Agreement (Colony NorthStar Credit Real Estate, Inc.), Master Repurchase and Securities Contract Agreement (NorthStar Real Estate Income II, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller maymay prior to the earlier to occur of the Facility Termination Date and the commencement of a Wind Down Period, from time to time, prior to the Facility Termination Date, time request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request Assets by submitting a Preliminary Due Diligence Package for Buyer’s review and approval, which approval shall be in Buyer’s sole discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, (x) immediately after the purchase of such New Asset, the Aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility AmountAmount or (y) a Wind Down Period has commenced. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole discretion. Notwithstanding any provision to the contrary herein or in any other Transaction Document, Buyer shall be entitled to make a determinationdetermine, in its sole and absolute discretion, whether a New Loan Asset qualifies as an Eligible Loan and Asset or whether to reject any or all of the New Loans Asset proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionPackage, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary Package to properly evaluate the New Loansproposed Transaction. Upon Buyer’s receipt or waiver of such additional Supplemental Due Diligence Materials or Buyer’s waiver thereofPackage, Buyer shall shall, in its sole discretion, within five (5) Business Days Days, either (i) notify Seller of Buyer’s its intent to proceed with the Transaction and of together with its determination with respect to of the Purchase Price and the Market Value Asset Exposure Ratio for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, deny Seller’s request for the applicable Transactionrequest. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, Days shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its the Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan Asset and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s a Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in its sole discretion and pursuant to documentation reasonably satisfactory to BuyerBuyer in its sole discretion:
Appears in 2 contracts
Samples: Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.), Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Each Seller may, from time to time, prior to time during the Facility Termination DateRevolving Period, request that Buyer enter into a Transaction with respect to one or more New LoansMortgage Loans proposed to be sold to Buyer by such Seller. Such Seller shall initiate each request by submitting the Purchased Loan Information for each Mortgage Loan and, if applicable, a Preliminary Due Diligence Package request that the Purchase Price be remitted to the Disbursement Account (a “Transaction Request”) to Repo Agent for BuyerRepo Agent’s review and approval. Notwithstanding anything All fundings are subject to Repo Agent’s approval in its sole and absolute discretion. This Agreement is not a commitment by Xxxxx to enter into Transactions with either Seller but rather sets forth the contrary herein, procedures to be used in connection with periodic requests for Buyer shall have to enter into Transactions with each Seller. Each Seller hereby acknowledges that Buyer is under no obligation to consider for agree to enter into, or to enter into, any Transaction, to purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds the Facility AmountMortgage Loan. Buyer and its representatives shall have the right to review all New Mortgage Loans proposed to be sold to Buyer in connection with any Transaction and to conduct its own due diligence investigation of such New Loans Mortgage Loans, pursuant to Section 20, as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole and absolute discretion. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer or Repo Agent shall be entitled to make a determination, in its sole and absolute discretion, whether a New Mortgage Loan qualifies as an Eligible Loan Loan, and whether to reject any or all request to purchase such Mortgage Loan. The Aggregate Repurchase Price of the New Purchased Loans proposed subject to be sold to Buyer by Seller. Buyer outstanding Transactions shall have no obligation to consider for purchase not at any New Loans proposed by Seller after the original Facility Termination Date or during time exceed the Facility Extension Period (if applicable)Amount.
(b) Upon Buyer’s receipt of If a complete Preliminary Due Diligence Package with respect Seller submits a Transaction Request to Repo Agent before 10:00 a.m. (New York City time) on a proposed TransactionBusiness Day during the Revolving Period, Buyer Repo Agent shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate Days (excluding the New Loans. Upon Buyer’s receipt day of such additional Diligence Materials or Buyer’s waiver thereofreceipt), Buyer shall within five (5) Business Days either (i) notify such Seller of Buyer’s intent to proceed with the Transaction Transaction, subject to the terms and conditions of this Agreement, and of its determination with respect to the Purchase Price and the Market Asset Value for the related New Loans Mortgage Loan (such notice, a “Preliminary Approval”) or (ii) deny, in BuyerRepo Agent’s sole and absolute discretion, such Seller’s request for the applicable Transaction. BuyerRepo Agent’s failure to respond to such Seller within five two (52) Business Days, as applicable, Days shall be deemed to be a denial of such Seller’s request to enter into the proposed Transaction, unless Buyer Repo Agent and such Seller have agreed otherwise in writing.
(c) Upon a Seller’s receipt of BuyerRepo Agent’s Preliminary Approval with respect to a Transaction, such Seller shall, if such Seller desires to enter into such Transaction with respect to the related New Loans Mortgage Loan, upon the terms set forth by Buyer Repo Agent in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Mortgage Loan and related Eligible Mortgaged Property or Mortgaged Properties (to the extent applicable and not already delivered to Buyer or Custodian in connection with Repo Agent’s review of the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence Listproposed Transaction) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer Repo Agent in its sole and absolute discretion and pursuant to documentation reasonably satisfactory to BuyerRepo Agent in its sole and absolute discretion:
Appears in 2 contracts
Samples: Master Repurchase Agreement (Angel Oak Mortgage REIT, Inc.), Master Repurchase Agreement (Angel Oak Mortgage REIT, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior Subject to the Facility Termination Dateterms and conditions set forth in this Agreement (including, request that Buyer without limitation, the "Transaction Conditions Precedent" specified in Section 3(b) of this Agreement), an agreement to enter into a Transaction with respect to one or more New Loans. shall be made in writing at the initiation of Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to as provided below; provided, however, that (i) the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Securities and Purchased Loans as of the date of determination) that when combined for all Transactions shall not exceed the Facility Amount and (ii) the Buyer shall not have any obligation to enter into Transactions with all Purchased Loans which have not been repurchased the Seller after the Business Day prior to the three year anniversary date of the date of the Agreement. Seller shall give Buyer written notice of each proposed Transaction and Buyer shall inform Seller of its determination with respect to any assets proposed to be sold to Buyer by Seller hereunder exceeds the Facility Amountsolely in accordance with Exhibit VIII attached hereto. Buyer shall have the right to review all New Eligible Loans and Eligible Securities proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans and Eligible Securities as Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in the exercise of its sole and absolute discretiongood faith business judgment, whether a New Loan qualifies as an Eligible Loan and whether to reject that it shall or shall not purchase any or all of the New Loans assets proposed to be sold to Buyer by Seller. On the Purchase Date for the Transaction which shall be not less than three (3) Business Days following the approval of an Eligible Loan or an Eligible Security by the Buyer in accordance with Exhibit VIII hereto, the Purchased Securities shall have no obligation be transferred to consider for purchase any New Loans proposed by Seller after Buyer or its agent against the original Facility Termination Date or during transfer of the Facility Extension Period (if applicable)Purchase Price to an account of Seller.
(b) Upon Buyer agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent (as hereinafter defined) shall have been satisfied (or waived by Buyer’s receipt ), Buyer shall promptly deliver to Seller a written confirmation in the form of Exhibit I attached hereto of each Transaction (a complete Preliminary Due Diligence Package "Confirmation"). Such Confirmation shall describe the Purchased Securities (including CUSIP number, if any) and/or Purchased Loans, shall identify Buyer and Seller, and shall set forth:
(i) the Purchase Date,
(ii) the Purchase Price for such Purchased Securities and/or Purchased Loans,
(iii) the Repurchase Date,
(iv) the Pricing Rate applicable to the Transaction (including the Applicable Spread) and
(v) any additional terms or conditions not inconsistent with this Agreement. With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on each Reset Date for the next succeeding Pricing Rate Period for such Transaction. Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Pricing Rate Determination Date for the related Pricing Rate Period and notify Seller of such rate for such period on the Reset Date. For purposes of this Section 3(b), the "Transaction Conditions Precedent" shall be deemed to have been satisfied with respect to any proposed Transaction if:
(A) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction;
(B) Seller shall have certified to Buyer in writing the acquisition cost of such Assets (including therein reasonable supporting documentation required by the Buyer, if any);
(C) the representations and warranties made by Seller in any of the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction (except to the extent such representations and warranties are made as of a particular date);
(D) Buyer shall have (A) determined, in accordance with the applicable provisions of Section 3(a) of this Agreement, that the Assets proposed to be sold to Buyer by Seller in such Transaction are Eligible Securities and/or Eligible Loans and (B) obtained internal credit approval for the inclusion of such Eligible Securities and/or Eligible Loans as Purchased Securities and/or Purchased Loans in a Transaction and that following the consummation of the proposed Transaction, Buyer the Concentration Limits shall be satisfied;
(E) Seller shall have paid to Buyer the right within two Usage Fee due and payable (2which amount, upon the agreement of Buyer and Seller, may be held back from funds remitted to Seller by Buyer); and
(F) with respect to any proposed Transaction for Securities in the event the Seller or an Affiliate of the Seller owns the Related Securities, the Seller shall have caused ownership of the Related Securities to be transferred to the Seller simultaneous with or prior to the purchase of the Purchased Securities by Buyer and delivered to the Buyer a power of attorney, bond powers and any other documentation reasonably required by the Buyer sufficient to permit the Buyer upon the occurrence and during the continuance of an Event of Default to register the transfer of the Related Securities from Seller to Buyer or its designee.
(c) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby unless specific objection is made no less than three (3) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate Days after the New Loansdate thereof. Upon Buyer’s receipt In the event of any conflict between the terms of such additional Diligence Materials Confirmation and the terms of this Agreement, the Confirmation shall prevail. An objection with respect to any Confirmation must state specifically that the writing is an objection, must specify the provision(s) of such Confirmation being objected to by Seller, must set forth such provision(s) in the manner that the Seller believes such provisions should be stated, and must be received by Buyer no more than three (3) Business Days after such Confirmation is received by Seller.
(d) No Transaction shall be terminable on demand by Buyer (other than upon the occurrence and during the continuance of an Event of Default by Seller). Seller shall be entitled to terminate a Transaction in whole or Buyer’s waiver thereofin part on demand and repurchase all or a portion of the Purchased Securities and/or Purchased Loans subject to a Transaction on any Business Day prior to the Repurchase Date (an "Early Repurchase Date"); provided, however, that:
(i) Seller repurchases on such Early Repurchase Date, all or the applicable portion of the Purchased Securities and/or Purchased Loans subject to such Transaction which Seller has elected to repurchase,
(ii) Seller notifies Buyer shall within in writing of its intent to terminate such Transaction and repurchase such Purchased Securities and/or Purchased Loans no later than five (5) Business Days either prior to such Early Repurchase Date,
(iii) on such Early Repurchase Date Seller pays to Buyer an amount equal to the sum of the Repurchase Price for such Transaction (or, in the case of a termination of a Transaction in part an amount acceptable to the Buyer in the exercise of its good faith business judgment but not more than such Repurchase Price), the Exit Fee, if any, and any other amounts payable under this Agreement (including, without limitation, Section 3(i) of this Agreement) with respect to such Transaction against transfer to the Seller or its agent of such Purchased Securities and/or Purchased Loans, and
(iv) on such Early Repurchase Date, in addition to the amounts set forth in subclause (iii) above, Seller pays to Buyer, on account of each Purchased Security or Purchased Loan not subject to termination, an amount sufficient to reduce the Repurchase Price for each Purchased Security and each Purchased Loan to the Target Price for each such Purchased Security and Purchased Loan. Such notice shall set forth the Early Repurchase Date and shall identify with particularity the Purchased Securities and/or Purchased Loans to be repurchased on such Early Repurchase Date.
(e) On the Repurchase Date, termination of the Transactions will be effected by transfer to Seller or its agent of the Purchased Securities and Purchased Loans and any Income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Section 5 of this Agreement) against the simultaneous transfer of the Repurchase Price to an account of Buyer. Notwithstanding the foregoing, provided all of the Extension Conditions (as hereinafter defined) shall have been satisfied, the Repurchase Date shall be extended with respect to all of the Transactions until the first (1st) anniversary of the originally scheduled Repurchase Date (or if such day is not a Business Day, the next succeeding Business Day) (all of the other terms and conditions of such Transactions remaining the same). For purposes of the preceding sentence, the "Extension Conditions" shall be deemed to have been satisfied if:
(i) notify Seller shall have given Buyer written notice, not less than thirty (30) days prior to the originally scheduled Repurchase Date, of Buyer’s intent Seller's desire to proceed with extend the Transaction and Repurchase Date; provided; that if Seller fails to give such notice, the Seller shall be deemed to have notified Buyer of its determination desire to extend the originally scheduled Repurchase Date,
(ii) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the originally scheduled Repurchase Date,
(iii) Seller shall have paid Buyer an extension fee in an amount equal to one-quarter of one percent (0.25%) of the aggregate outstanding Xxxxxxxxxx Price of all Transactions as of the Business Day prior to the third anniversary of the date of this Agreement, and
(iv) on the originally scheduled Repurchase Date, in addition to the amounts set forth in subclause (iii) above, Seller pays to Buyer, on account of each Purchased Security or Purchased Loan, an amount sufficient to reduce the Repurchase Price for each Purchased Security and each Purchased Loan to the Target Price for each such Purchased Security and Purchased Loan. In the event the Repurchase Date is extended pursuant to this Section 3(e) of this Agreement, then Seller shall be required to terminate all Transactions in part (without the payment of any Exit Fee if the termination payment is not made in connection with an Early Repurchase Date) by paying 25%, 50% and 75% of the aggregate outstanding Repurchase Price, determined as of the Business Day prior to the third anniversary of the date of this Agreement, by not later than the later of the Remittance Dates occurring in March, June and September 2008, respectively (including, without limitation, by terminating Transactions on demand on Early Repurchase Dates pursuant to Section 3(d))and by paying any unpaid portion of the Repurchase Price of all Transactions on the Repurchase Date.
(i) On each Purchase Date, Seller shall pay Buyer a usage fee (a "Usage Fee") in an amount equal to 0.60% of the Purchase Price specified in the related Confirmation with respect to such Transaction.
(ii) Seller shall pay Buyer the Purchase Price Exit Fee with respect to any Transaction which is terminated for any reason (other than an Event of Default on the part of the Buyer) prior to the Repurchase Date; provided, that the Exit Fee shall be waived by the Buyer if the reason for the termination is (1) principal payments (including prepayments and repayments) received on the related Purchased Securities or Purchased Loans (whether at maturity or otherwise), (2) the related Purchased Securities or Purchased Loans are simultaneously included in a collateralized debt obligation securitization transaction where Deutsche Bank Securities Inc. acts as sole lead manager and sole book runner or (3) the Market Value determined by the Buyer for such Purchased Securities or Purchased Loans has decreased by more than 25% from such Market Value as of the related New Loans Purchase Date.
(g) If prior to the first day of any Pricing Rate Period with respect to any Transaction, (i) Buyer shall have determined in the exercise of its reasonable business judgment (which determination shall be conclusive and binding upon Seller) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBO Rate for such noticePricing Rate Period, a “Preliminary Approval”) or (ii) denythe LIBO Rate determined or to be determined for such Pricing Rate Period will not adequately and fairly reflect the cost to Buyer (as determined and certified by Buyer) of making or maintaining Transactions during such Pricing Rate Period, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond Buyer shall give telecopy or telephonic notice thereof to Seller within five (5) Business Daysas soon as practicable thereafter. If such notice is given, as applicablethe Pricing Rate with respect to such Transaction for such Pricing Rate Period, and for any subsequent Pricing Rate Periods until such notice has been withdrawn by Buyer, shall be deemed a per annum rate equal to be a denial the Federal Funds Rate plus the Applicable Spread (the "Alternative Rate").
(h) Notwithstanding any other provision herein, if the adoption of Seller’s request or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for Buyer to effect Transactions as contemplated by the Transaction Documents, (a) the commitment of Buyer hereunder to enter into new Transactions and to continue Transactions as such shall forthwith be canceled, and (b) the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt Transactions then outstanding shall be converted automatically to Alternative Rate Transactions on the last day of Buyer’s Preliminary Approval the then current Pricing Rate Period or within such earlier period as may be required by law. If any such conversion of a Transaction occurs on a day which is not the last day of the then current Pricing Rate Period with respect to a such Transaction, Seller shallshall pay to Buyer such amounts, if Seller desires to enter into such Transaction with respect to the related New Loans upon the terms set forth by Buyer in its Preliminary Approvalany, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or as may be required pursuant to a Supplemental Due Diligence ListSection 3(i) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:this Agreement.
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, may prior to the Facility Termination Date, from time to time request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request Assets by submitting a Preliminary Due Diligence Package for Buyer’s review and approval, which approval shall be in Buyer’s sole discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, immediately after the purchase of such New Asset, the Aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole discretion. Notwithstanding any provision to the contrary herein or in any other Transaction Document, Buyer shall be entitled to make a determinationdetermine, in its sole and absolute discretion, whether a New Loan Asset qualifies as an Eligible Loan and Asset or whether to reject any or all of the New Loans Asset proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionPackage, Buyer shall have the right within to request a Supplemental Due Diligence Package to evaluate the proposed Transaction. Not less than two (2) Business Days, Days prior to request the Purchase Date requested by Seller in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate writing for the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereofproposed Transaction, Buyer shall within five (5) Business Days shall, in its sole discretion, either (i) notify Seller of Buyer’s its intent to proceed with the Transaction and of together with its determination with respect to of the Purchase Price Price, Pricing Rate, Maximum Purchase Percentage and the Market Value for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, deny Seller’s request for the applicable Transactionrequest. Buyer’s failure to respond to Seller within five such two (52) Business Days, as applicable, Day period shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its the Preliminary Approval, deliver copies of the documents set forth below in this Section 3(c) with respect to each New Loan Asset and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s a Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in its sole discretion and pursuant to documentation reasonably satisfactory to BuyerBuyer in its sole discretion:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (TPG RE Finance Trust, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Subject to the terms and conditions set forth in this Agreement (including, without limitation, the “Transaction Conditions Precedent” specified in Section 3(b) of this Agreement), an agreement to enter into a Transaction shall be made in writing at the initiation of Seller as provided below; provided, however, that (i) the aggregate outstanding Purchase Price at any time for all Transactions shall not exceed the Facility Amount, (ii) Buyer shall not have any obligation to enter into Transactions with Seller after the occurrence and during the continuance of a Default or an Event of Default or during the thirty (30) day period immediately prior to the Facility Expiration Date, and (iii) this Agreement is not a commitment to enter into Transactions but rather sets forth the procedures to be used in connection with periodic requests to enter into Transactions and Seller hereby acknowledges that Buyer is under no obligation to agree to enter into, or to enter into, any Transaction pursuant to this Agreement. Seller may, from time to time, prior submit to Buyer a Transaction Request, in the Facility Termination Dateform of Exhibit VIII attached hereto, request that Buyer for Buyer’s review and approval in order to enter into a Transaction with respect to one or more New Loansany Eligible Loan that Seller proposes to be included as Collateral under this Agreement. Seller shall initiate each request by submitting Upon Buyer’s receipt of a Preliminary complete Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to the contrary hereinPackage, Buyer shall have no obligation the right to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential request, in Buyer’s good faith business judgment, additional diligence materials and deliveries with respect to the Purchased Loans as applicable Eligible Loan, to the extent necessary for the Buyer’s underwriting of such Eligible Loan. Upon Buyer’s receipt of the date Transaction Request and diligence materials, Buyer shall use commercially reasonable efforts to within ten (10) Business Days and following receipt of determinationinternal credit approval, either (i) that when combined with all Purchased Loans which notify Seller of the Purchase Price and the Market Value for the Eligible Loan or (ii) deny Seller’s request for a Transaction. Buyer’s failure to respond to Seller within ten (10) Business Days, as applicable, shall be deemed to be a denial of Seller’s request for a Transaction, unless Buyer and Seller have not been repurchased by Seller hereunder exceeds the Facility Amountagreed otherwise in writing. Buyer shall have the right to review all New Eligible Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans as Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject that it shall or shall not purchase any or all of the New Eligible Loans proposed to be sold to Buyer by Seller. On the Purchase Date for the Transaction which shall be on a date mutually agreed upon by Buyer and Seller following the approval of an Eligible Loan by Buyer, the Purchased Loan shall have no obligation be transferred to consider for purchase any New Loans proposed by Seller after Buyer against the original Facility Termination Date or during transfer of the Facility Extension Period (if applicable)Purchase Price to an account of Seller.
(b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent shall have been satisfied (or waived by Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed Transaction), Buyer shall have promptly deliver to Seller a written confirmation in the right within two form of Exhibit I attached hereto of each Transaction (2) Business Daysa “Confirmation”). Such Confirmation shall describe the Purchased Loans, to request in a Supplemental Due Diligence List such additional Diligence Materials shall identify Buyer and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereofSeller, Buyer and shall within five (5) Business Days either set forth:
(i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to Purchase Date,
(ii) (iii) (iv) the Purchase Price and for such Purchased Loan, the Market Value for Repurchase Date, the related New Loans (such noticePricing Rate, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:and
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, may prior to the Facility Termination Date, from time to time request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request Assets by submitting a Preliminary Due Diligence Package for Buyer’s review and approval, which approval shall be in Buyer’s sole discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, immediately after the purchase of such New Asset, the Aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees necessary in Buyer’s sole discretion, including, without limitation, any applicable lender licensee requirements with respect to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofany New Asset. Notwithstanding any provision to the contrary herein or in any other Transaction Document, Buyer shall be entitled to make a determinationdetermine, in its sole and absolute discretion, whether a New Loan Asset qualifies as an Eligible Loan and Asset or whether to reject any or all of the New Loans Asset proposed to be sold to Buyer by Seller. Notwithstanding anything in this Agreement to the contrary, prior to Seller requesting Buyer enter into a Transaction (or, for the avoidance of doubt, Buyer entering into any Transaction) with respect to one or more New Assets that consist of any Mezzanine Loan or Mezzanine Loans, Buyer shall have no obligation receive an opinion of counsel in form and substance satisfactory to consider Buyer as to the safe harbor treatment for purchase any New Loans proposed by Seller after “securities contracts” and “master netting agreements” under the original Facility Termination Date or during the Facility Extension Period (if applicable)Bankruptcy Code covering mezzanine loans.
(b) Upon BuyerXxxxx’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionPackage, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary Package to properly evaluate the New Loansproposed Transaction. Upon Buyer’s receipt or waiver of such additional Supplemental Due Diligence Materials or Buyer’s waiver thereofPackage, Buyer shall shall, in its sole discretion, within five (5) Business Days Days, either (i) notify Seller of Buyer’s its intent to proceed with the Transaction and of together with its determination with respect to of the Purchase Price and the Market Value for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, deny Seller’s request for the applicable Transactionrequest. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, Days shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer Xxxxx and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its the Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan Asset and related Eligible Property or Eligible Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s a Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in its sole discretion and pursuant to documentation reasonably satisfactory to BuyerBuyer in its sole discretion:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Ares Commercial Real Estate Corp)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph (h) Article 3 of the Existing Repurchase Agreement (“Initiation; Confirmation; Termination”is hereby modified by deleting the existing Article 3(a)(xiii) are hereby deleted and replaced in their respective entireties by inserting the following provisions of this Section 3:
(a) Seller mayparagraph in lieu thereof: “Buyer shall have received payment from Seller, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request by submitting a Preliminary Due Diligence Package as consideration for Buyer’s review agreement to enter into this Agreement, an up-front structuring fee in an amount equal to $350,000, such amount to be paid to Buyer in U.S. Dollars on the Closing Date, in immediately available funds, without deduction, set-off or counterclaim (the “Structuring Fee”); and”
(i) Article 3 of the Existing Repurchase Agreement is hereby modified by deleting Article 3(b)(i) in its entirety.
(j) Article 3 of the Existing Repurchase Agreement is hereby modified by deleting the existing Article 3(b)(iii)(C) and approval. Notwithstanding anything to inserting the contrary herein, following paragraph in lieu thereof: “Buyer shall have no obligation determined the Pricing Rate applicable to consider for purchase any proposed the Transaction that has an aggregate (including the Applicable Spread);”
(k) Article 3 of the Existing Repurchase Price (excluding Agreement is hereby modified by deleting the Price Differential with existing Article 3(d) and inserting the following paragraph in lieu thereof: “With respect to any Transaction, the Purchased Loans as of Pricing Rate shall be determined initially on the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds the Facility Amount. Buyer shall have the right to review all New Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision Pricing Rate Determination Date applicable to the contrary herein or any other Transaction Documentfirst Pricing Rate Period for such Transaction, Buyer and shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject any or reset on the Pricing Rate Determination Date for all of the New Loans proposed to be sold to Buyer by Sellernext succeeding Pricing Rate Periods for such Transaction. Buyer or its agent shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed Transaction, Buyer shall have the right within two (2) Business Days, to request determine in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereof, Buyer shall within five (5) Business Days either (i) notify Seller of Buyer’s intent to proceed accordance with the Transaction and terms of its determination with respect to this Agreement the Purchase Price and the Market Value Pricing Rate on each Pricing Rate Determination Date for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, Pricing Rate Period in Buyer’s sole and absolute discretion, Seller’s exercised in good faith, and notify Seller of such rate for such period each such Pricing Rate Determination Date.”
(l) Article 3 of the Existing Repurchase Agreement is hereby modified by deleting the existing Article 3(n)(ii) and inserting the following paragraph in lieu thereof: “Upon written request of a Seller delivered to Buyer at least thirty (30) days, but in no event earlier than sixty (60) days, prior to the then current Final Maturity Date, and so long as no Margin Deficit, Default or Event of Default and no event which has a Material Adverse Effect shall have occurred and be continuing on the then current Final Maturity Date, Buyer may in its sole discretion agree to extend the Maturity Date, for a period not to exceed three-hundred and sixty-four (364) additional days (the applicable Transaction. “Wind Down Period”) by giving notice to such Seller of such extension and of the end of the Wind Down Period determined by Buyer’s ; provided, that any failure by Buyer to respond deliver notice to such Seller of any objection or rejection to such Wind Down Period within five fifteen (515) Business Days, as applicable, days from the date first received by Buyer shall be deemed to be Buyer’s determination to extend the Final Maturity Date. In no event shall the Final Maturity Date be extended for more than one (1) Wind Down Period. Prior to the Wind Down Period, Seller shall pay down an amount equal to ten percent (10%) of the aggregate Repurchase Price of all Purchased Assets subject to Transactions then outstanding. During the Wind Down Period, (i) Buyer shall not finance any additional Eligible Assets from any Seller and (ii) for each of the four (4) successive calendar quarters, Seller is required to pay down an amount equal to twenty-five percent (25%) of the aggregate Repurchase Price of all Purchased Assets subject to Transactions then outstanding (determined as of the time at which the ten percent (10%) amount specified above was calculated) at the end of each calendar quarter. Notwithstanding any other provision of this Article 3(n)(ii) or otherwise herein, neither Buyer nor any of its Affiliates shall be under any obligation to extend the original Final Maturity Date, as the same may have been extended pursuant to this Article 3(n)(ii).”
(m) Article 4 of the Existing Repurchase Agreement is hereby modified by deleting existing Article 4(a) and inserting the following paragraph in lieu thereof: “If at any time Buyer’s Margin Amount for all Purchased Assets is less than the Repurchase Price for all Purchased Assets (a denial “Margin Deficit”), then Buyer may by notice to Seller in the form of Exhibit XII (a “Margin Deficit Notice”) require Seller to, at Seller’s request option, no later than one (1) Business Day following the receipt of a Margin Deficit Notice (the “Margin Deadline”) (provided that if such Margin Deficit Notice is received by Seller after 8:00 a.m. EST, Seller shall have two (2) Business Days after receipt thereof) to enter into the proposed Transactionextent such Margin Deficit equals or exceeds the Minimum Transfer Amount, unless (i) transfer to Buyer for no additional consideration (by transfer to Buyer or its designee (including the Custodian) Additional Eligible Collateral, (ii) repurchase some or all of the Purchased Assets at their respective Repurchase Prices, (iii) make a payment in reduction of the Purchase Price (which payment may be paid by the withdrawal by Buyer of funds held in the Depository Account after allocation and payment of any allocated amounts then due and payable to Buyer and Seller have agreed otherwise its Affiliates), or (iv) choose any combination of the foregoing, such that, after giving effect to such transfers, repurchases and payments, Buyer’s Margin Amount for all Purchased Assets, shall be equal to or greater than the related Repurchase Price for all Purchased Assets.”
(n) Article 4 of the Existing Repurchase Agreement is hereby modified by deleting Article 4(b) in writingits entirety.
(co) Upon Seller’s receipt Article 6 of Buyer’s Preliminary Approval with respect the Existing Repurchase Agreement is hereby modified by inserting the following paragraph as a new Article 6(e): “Seller and Guarantor each acknowledge that it has no rights to service the Purchased Assets but only has rights as a Transaction, Seller shall, if Seller desires party to enter into such Transaction the current Servicing Agreement or any other servicing agreement with respect to the Purchased Assets. Without limiting the generality of the foregoing and in the event that any Seller or Guarantor is deemed to retain any residual Servicing Rights, and for the avoidance of doubt, each Seller and Guarantor grants, assigns and pledges to Buyer a security interest in the Servicing Rights and proceeds related New Loans upon thereto and in all instances, whether now owned or hereafter acquired, now existing or hereafter created. The foregoing provision is intended to constitute a security agreement or other arrangement or other credit enhancement related to the terms set forth Agreement and Transactions hereunder as defined under Sections 101(47)(v) and 741(7)(x) of the Bankruptcy Code.”
(p) Article 11 of the Existing Repurchase Agreement is hereby modified by deleting the existing Article 11(l) and inserting the following paragraph in lieu thereof: “permit Guarantor’s Liquidity to be less than the greater of (i) $15,000,000 or (ii) an amount equal to ten percent (10%) of Guarantor’s and its consolidated Subsidiaries’ total Indebtedness (excluding (1) Non-Recourse Indebtedness and (2) Indebtedness maturing after the Maturity Date) plus five percent (5%) of the then-current aggregate outstanding amount due under the Wachovia Credit Facility;”
(q) Article 11 of the Existing Repurchase Agreement is hereby modified by deleting the existing Article 11(p) and inserting the following paragraph in lieu thereof: “permit the ratio of (A) Guarantor’s and its consolidated Subsidiaries’ Indebtedness (excluding Non-Recourse Indebtedness, borrowings under the Unsecured Credit Facility and trust preferred securities) to (B) Adjusted Total Assets of Guarantor and its consolidated Subsidiaries to exceed 0.12 to 1.00;”
(r) Article 28 of the Existing Repurchase Agreement is hereby modified by inserting the following paragraph as a new Article 28(g): “For the avoidance of doubt, no Seller retains any economic rights to the servicing, other than a Seller’s rights under the Servicing Agreement or any other servicing agreement related to the Purchased Assets. As such, each Seller expressly acknowledges that the Purchased Assets are sold to Buyer on a “servicing released” basis with such servicing retained by the Servicer.”
(s) Schedule I to the Existing Repurchase Agreement is hereby modified by deleting such Schedule I in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:entirety.
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to one or more New LoansAssets. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approvalapproval in Buyer’s sole good faith discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, immediately after the purchase of such New Asset, the Aggregate Repurchase Price (excluding including the proposed Purchase Price Differential with respect to the Purchased Loans as of the date of determinationsuch New Asset) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole good faith discretion. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its Buyer’s sole and absolute good faith discretion, whether a New Loan Asset qualifies as an Eligible Loan and Asset or whether to reject any or all of the New Loans Asset proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionNew Asset, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List Package to evaluate such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New LoansAsset. Upon Buyer’s receipt of such additional Supplemental Due Diligence Materials Package or Buyer’s waiver thereof, Buyer shall shall, within five (5) Business Days Days, either (i1) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii1) deny, in Buyer’s sole and absolute good faith discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan Asset and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in Buyer’s sole good faith discretion and pursuant to documentation reasonably satisfactory to Buyer in Buyer’s sole good faith discretion:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (NorthStar Real Estate Income Trust, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“"Initiation; Confirmation; Termination”") are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s 's review and approval. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that which has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds the Facility Amount. Buyer shall have the right to review all New Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees (subject to a cap of $35,000 per annum) upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject any or all of the New Loans proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable)Date.
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed Transaction, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereof, Buyer shall within five (5) Business Days either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, On or after the date hereof and prior to the Facility Termination DateRepurchase Date and subject to the terms and conditions set forth in this Agreement (including, request that Buyer without limitation, the “Transaction Conditions Precedent” specified in Section 3(b) of this Agreement), an agreement to enter into a Transaction shall be made in writing at the initiation of Seller as provided below; provided, however, that entering into any Transaction shall be in Buyer’s sole and absolute discretion. Seller shall give Buyer written notice of each proposed Transaction and Buyer shall inform Seller of its determination with respect to one or more New Loans. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything any assets proposed to the contrary herein, be sold to Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds the Facility Amountsolely in accordance with Exhibit IX attached hereto. Buyer shall have the right to review all New Loans Eligible Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Eligible Assets as Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Upon receipt of all Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction DocumentMaterials, Buyer shall be entitled complete its due diligence review and financial modeling with respect to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject any or all of the New Loans assets proposed to be sold to Buyer by Seller. Buyer shall have no obligation be entitled to consider for make a determination, in the exercise of its sole discretion, that it shall not purchase any New Loans or all of the assets proposed to be sold to Buyer by Seller after Seller, such determination to be made no later than ten (10) Business days from Buyer’s receipt of the original Facility Termination Diligence Materials. Any failure by Buyer to respond within ten (10) Business Day shall constitute a refusal to purchase the Eligible Asset(s). On the Purchase Date for the Transaction which shall occur no later than forty-five (45) calendar days (or during such longer period as may be mutually agreed between Buyer and Seller) following the Facility Extension Period (if applicable)date of the approval of an Eligible Asset by Buyer in accordance with Exhibit IX hereto, the Purchased Assets shall be transferred to Buyer or its agent against the transfer of the Purchase Price in immediately available funds to an account designated by Seller.
(b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent (as hereinafter defined) shall have been satisfied (or waived by Buyer’s receipt ), Buyer shall contemporaneously deliver to Seller a duly executed written confirmation substantially in the form of Exhibit I attached hereto of each Transaction (a complete Preliminary Due Diligence Package “Confirmation”). Such Confirmation shall describe the Purchased Asset(s) which shall be the subject of the proposed Transaction, shall identify Buyer and Seller, and shall set forth (i) the Purchase Date, (ii) the Purchase Price for such Purchased Asset(s), (iii) the Repurchase Date, (iv) the Pricing Rate applicable to the Transaction and (v) any additional terms or conditions not inconsistent with this Agreement. With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on each LIBOR Determination Date for the next succeeding Pricing Rate Period for such Transaction. Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Pricing Rate Determination Date for the related Pricing Rate Period and notify Seller of such rate for such period on the LIBOR Determination Date. Such determination shall be binding on the Seller absent manifest error. For purposes of this Section 3(b), the “Transaction Conditions Precedent” shall be deemed to have been satisfied with respect to a any proposed Transaction if:
(1) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction, ;
(2) the representations and warranties made by Seller in any of the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction;
(3) Buyer or the Custodian on behalf of Buyer shall have received the right within applicable Transaction Documents and other documents and opinions specified in Section 7 of this Agreement. The Custodian shall have delivered a Trust Receipt satisfactory to Buyer no later than 1:00 p.m. on the Purchase Date;
(4) Buyer shall have received the Diligence Materials and completed to Buyer’s satisfaction its due diligence review and financial modeling with respect to the assets proposed to be sold to Buyer by Seller;
(5) Buyer shall have (A) determined, in accordance with the applicable provisions of Section 3(a) of this Agreement, that the assets proposed to be sold to Buyer by Seller in such Transaction are Eligible Assets and (B) obtained internal credit approval for the inclusion of such Eligible Asset as a Purchased Asset in a Transaction;
(6) the purchase by Buyer from Seller of the Purchased Assets shall be completed prior to the Repurchase Date;
(7) With respect to the initial Transaction and as otherwise required by Buyer in connection with any subsequent Transaction, Seller shall have delivered to Buyer an opinion of Seller’s counsel, in such form and substance reasonably acceptable to Buyer addressing the matters set forth in Exhibit V hereto; and
(8) On the proposed Purchase Date (A)(i) trading generally shall not have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) a general moratorium on commercial banking activities in New York shall not have been declared by either Federal or State of New York authorities, or (iii) there shall not have occurred any outbreak or escalation of hostilities or any change in financial markets (including the market for securities backed by mortgage loans and the repo or comparable lending market), or any calamity or crisis, or any major disruption of settlement of securities or clearance in the United States that, in the judgment of Buyer, is material and adverse and (B) in the case of any of the events specified in clauses (A)(i) through (iii) above, such event by itself or together with any other such event, makes it, in the judgment of Buyer, imprudent to purchase Eligible Assets on the terms and in the manner contemplated in this Agreement. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Transaction hereunder be consummated until such time as Buyer has received all of the following, each in form and substance reasonably satisfactory to Buyer: (i) the fully executed Transaction Documents and related Trust Receipt; (ii) the legal opinion described in subparagraph (7) above and (iii) Seller’s organizational documents, to the extent not delivered as of the date hereof.
(c) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby unless objected to in writing by Seller no more than two (2) Business DaysDays after the date such Confirmation is received by Seller. An objection sent by Seller with respect to any Confirmation must state specifically that the writing is an objection, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate must specify the New Loans. Upon Buyer’s receipt provision(s) of such additional Diligence Materials or Buyer’s waiver thereofConfirmation being objected to by Seller, must set forth such provision(s) in the manner that Seller believes such provisions should be stated, and must be received by Buyer shall within five no more than two (52) Business Days either after such Confirmation is received by Seller. Seller shall execute a written acceptance accepting each Confirmation not objected to by Seller within the aforementioned two (i2) notify Seller of Buyer’s intent to proceed with the Transaction Business Day period and of its determination with respect prior to the Purchase Price Date.
(d) Seller shall be entitled to terminate a Transaction and repurchase any or all of the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within Purchased Assets from Buyer on five (5) Business Days’ notice on any Business Day prior to the Repurchase Date (an “Early Repurchase Date”). Such notice shall set forth the Early Repurchase Date and shall identify with particularity the Purchased Assets that are Participation Interests in Mezzanine Loans or B Notes to be repurchased on such Early Repurchase Date. If Seller terminates any Transaction pursuant to the preceding sentence, as applicablethen Seller shall pay to Buyer, in addition to the related Repurchase Price, a termination fee (the "Exit Fee") on the Early Repurchase Date; provided, however, no Exit Fee shall be deemed paid if such fee is expressly waived pursuant to the relevant Confirmation. The Exit Fee shall be calculated as the product of (i) the Repurchase Price multiplied by (ii) 0.50% (50 basis points). Notwithstanding the foregoing:
(i) No Exit Fee will be payable for the early repurchase of Purchased Assets that are Participation Interests in Mezzanine Loans or B Notes only resulting from, or in connection with, (a) the sale of the underlying assets to Buyer or any of its Affiliates, (b) the maturity of the underlying assets, (c) any amortization or pay down, including prepayments in whole or in part, in respect of Purchased Loans or (d) the sale of the underlying assets to a denial securitization vehicle, including a CDO, for which Buyer or any of Seller’s request to enter into the proposed Transactionits Affiliates is acting in a lead manager, unless Buyer and Seller have agreed otherwise in writingbookrunner or co-bookrunner role.
(cii) Upon Seller’s receipt In the event of Buyer’s Preliminary Approval any Margin Call given by Buyer under Section 4(a) of this Agreement, no Exit Fee will be payable by Seller to Buyer with respect to a Transactionrelated transfer of cash by Seller to Buyer in connection with such Margin Call.
(iii) All other transactions which result in the reduction of the Repurchase Price or any other sales of Purchased Assets prior to the Repurchase Date will be subject to payment of the Exit Fee. On the Repurchase Date or any Early Repurchase Date, termination of the Transactions will be effected by transfer by Buyer to Seller or its agent of the Purchased Asset(s) and any Income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller shallpursuant to Section 5 of this Agreement) against the simultaneous transfer in immediately available funds of the Repurchase Price to an account designated by Buyer. The transfer (and/or release of security interest) on the Repurchase Date and/or Early Repurchase Date by Buyer to Seller of the Purchased Assets shall be free and clear of all liens, if encumbrances, security interests and claims created by Buyer in and to the interest of Buyer or its Affiliates. Buyer agrees upon receipt of the Repurchase Price to execute and deliver to Seller desires from time to time upon Seller’s request, all reassignments and other documentation deemed reasonably appropriate by Seller to give effect to the foregoing transfers (and/or release of security interest) of Purchased Assets including, without limitation UCC Termination Statements.
(e) Any provision hereof to the contrary notwithstanding, Transactions entered into hereunder shall be at the sole discretion of Buyer. Buyer is not required to enter into such any Transaction with respect to the related New Loans upon the terms set forth by and Buyer may, in its Preliminary Approvalsole discretion, deliver the documents set forth below reject for inclusion in this Section 3(c) with respect to each New Loan and related any Transaction any Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:Assets offered for sale hereunder by Seller.
Appears in 1 contract
Samples: Master Repurchase Agreement (American Mortgage Acceptance Co)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior On or after the date hereof and subject to the Facility Termination Dateterms and conditions set forth in this Agreement (including, request that Buyer without limitation, the "Transaction Conditions Precedent" specified in Section 2(b) of this Agreement), an agreement to enter into a Transaction shall be made in writing at the initiation of Seller as provided below; provided, however, that entering into any Transaction shall be in Buyer's sole and absolute discretion and that the aggregate Outstanding Purchase Price for all Transactions shall not exceed the Maximum Aggregate Purchase Price. Seller shall give Buyer written notice of each proposed Transaction and Buyer shall inform Seller of its determination with respect to one or more New Loans. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything any assets proposed to the contrary herein, be sold to Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds the Facility Amountsolely in accordance with Exhibit X attached hereto. Buyer shall have the right to review all New Loans Eligible Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Eligible Assets as Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its The expenses of any such due diligence review shall be paid in accordance with Section 20 of this Agreement. Upon receipt of all Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any Materials and other Transaction Documentrequired documentation, Buyer shall be entitled complete its due diligence review and financial modeling with respect to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject any or all of the New Loans assets proposed to be sold to Buyer by Seller. Buyer shall have no obligation be entitled to consider for make a determination, in the exercise of its sole discretion, that it shall not purchase any New Loans or all of the assets proposed to be sold to Buyer by Seller, such determination to be made in accordance with Exhibit X attached hereto. On the Purchase Date for the Transaction which shall be not less than one (1) Business Day following the approval of an Eligible Asset by Buyer in accordance with Exhibit X hereto, the Purchased Assets shall be transferred to Buyer or its agent against the transfer of the Purchase Price in immediately available funds to an account designated by Seller. To the extent Buyer enters into a Transaction with Seller after with respect to a Purchased Asset which is an Eligible Asset of the original Facility Termination Date or during type described in clause (ii) of the Facility Extension Period definition thereof (if applicablei.e., such Eligible Asset does not satisfy the characteristics described in clause (i) of the definition thereof), then such asset shall be deemed to be an Eligible Asset for all purposes of this Agreement.
(b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent (as hereinafter defined) shall have been satisfied (or waived by Buyer’s receipt ), Buyer shall promptly deliver to Seller a written confirmation substantially in the form of Exhibit I attached hereto of each Transaction (a "Confirmation"). In the absence of execution and delivery by Buyer of a complete Preliminary Due Diligence Package with respect to Confirmation for a proposed Transaction, Buyer shall under no circumstance be deemed to have agreed to enter into such Transaction. Such Confirmation shall describe the right within Purchased Asset(s) (and, in this connection, shall set forth (a) the name of the counterparty with respect to the Purchased Asset, (b) a description (including the date) of the participation agreement or other document, agreement or instrument pursuant to which the related Purchased Asset is made or governed and (c) the initial or then outstanding principal amount of the related Purchased Asset) which shall be the subject of the proposed Transaction, shall identify Buyer and Seller, and shall set forth (i) the Purchase Date, (ii) the Purchase Price for such Purchased Asset(s), (iii) the Repurchase Date, (iv) the Pricing Rate applicable to the Transaction and (v) any additional terms or conditions not inconsistent with this Agreement. Each Confirmation shall be deemed incorporated herein by reference with the same effect as if set forth herein at length. With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on each Reset Date for the next succeeding Pricing Rate Period for such Transaction. Buyer or its agent shall determine the Pricing Rate on each Pricing Rate Determination Date for the related Pricing Rate Period and notify Seller of such rate for such period on the Reset Date. For purposes of this Section 2(b), the "Transaction Conditions Precedent" shall be deemed to have been satisfied with respect to any proposed Transaction if:
(1) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction;
(2) Seller shall have certified to Buyer in writing the acquisition cost of such Purchased Assets (including therein reasonable supporting documentation required by Buyer, if any);
(3) the representations, warranties and covenants made by Seller in any of the Transaction Documents shall be true and correct in respect of the Eligible Asset in question in all material respects as of the Purchase Date for such Transaction;
(4) Buyer shall have received the Diligence Materials and completed to Buyer's satisfaction its due diligence review and financial modeling with respect to the assets proposed to be sold to Buyer by Seller;
(5) Buyer or the Custodian on behalf of Buyer shall have received the applicable Transaction documents and other documents and opinions specified in Section 6 of this Agreement. The Custodian shall have delivered a trust receipt satisfactory to Buyer no later than 3 p.m. on the Purchase Date;
(6) Buyer shall have determined, in accordance with the applicable provisions of Section 2(a) of this Agreement, that the assets proposed to be sold to Buyer by Seller in such Transaction are Eligible Assets;
(7) after giving effect to the requested Transaction, the sum of the Outstanding Purchase Prices of the Transactions under this Agreement shall not exceed the Maximum Aggregate Purchase Price;
(8) none of the following shall have occurred and be continuing:
(i) an event or events shall have occurred resulting in the effective absence of a "securities market" for securities backed by mortgage loans; or
(ii) there shall have occurred a material adverse change in the "repo market" or comparable "lending market";
(9) on or prior to the Purchase Date for the initial Transaction hereunder and from time to time thereafter as Buyer shall reasonably request, Seller shall have delivered to Buyer an opinion of Seller's counsel, in form and substance reasonably acceptable to Buyer, addressing the matters set forth at Exhibit XII, items 1 through 7; and
(10) if Seller is unable to make the representation set forth in Section 9(b)(xxii)(1) hereof on the Purchase Date for any Transaction, Seller shall have delivered on or prior to the related Purchase Date an opinion of Seller's counsel, in form and substance reasonably acceptable to Buyer, addressing the matters set forth at Exhibit XII, item 8, unless, upon request by Seller to Buyer, Buyer shall have waived such opinion with respect to such transaction (for the avoidance of doubt, failure to provide such opinion or receive a waiver from Buyer shall constitute a representation and warranty by Seller that the statement set forth in Section 9(b)(xxii)(1) hereof is true and correct with respect to such Transaction). Notwithstanding anything to the contrary contained in this Agreement, in no event shall any Transaction hereunder be consummated until such time as Buyer has received all of the following, each in form and substance reasonably satisfactory to Buyer: (i) the fully executed Custodial Agreement and related Trust Receipt; (ii) a Depository Agreement with respect to the Collection Account executed by the Depository; (iii) such legal opinions as Buyer may reasonably require; (iv) a Direction Letter, (v) Seller's organizational documents, to the extent not delivered as of the date hereof, and (vi) an executed Servicing Agreement.
(c) Each Confirmation shall, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby.
(d) Seller may, at its option so long as an Event of Default shall not have occurred and be continuing, increase or decrease the Outstanding Purchase Price with respect to any Transaction subsequent to the Purchase Date; provided, however, that (i) any decrease in the Outstanding Purchase Price shall be subject to an Exit Fee in accordance with Section 2(g) below and (ii) such action on the part of Seller shall not be permitted if it would create a Margin Deficit.
(e) Each Transaction entered into between Buyer and Seller shall remain outstanding from the initial Purchase Date until the related Repurchase Date, subject however to the provisions of Section 27(o) hereof.
(f) Seller shall be entitled to terminate a Transaction and repurchase any or all of the related Purchased Assets from Buyer on two (2) Business Days' notice on any Business Day prior to the Repurchase Date (an "Early Repurchase Date"). If Seller terminates any Transaction pursuant to the preceding sentence, Seller shall pay to request Buyer, in a Supplemental Due Diligence List addition to the related Repurchase Price, an amount equal to the Exit Fee on the Early Repurchase Date. Such notice shall set forth the Early Repurchase Date and shall identify with particularity the Purchased Assets to be repurchased on such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New LoansEarly Repurchase Date. Upon Buyer’s receipt Such notice may be withdrawn by Seller by written notice of such additional Diligence Materials or Buyer’s waiver thereof, withdrawal to Buyer shall within five not later than one (51) Business Days either Day prior to the designated Early Repurchase Date.
(i) notify Seller No Exit Fee will be payable for the early repurchase of Purchased Assets resulting from (a) the sale of the Purchased Assets to Buyer’s intent to proceed with the Transaction and , or any of its determination Affiliates, (b) the sale of the Purchased Assets to Buyer, or any of its Affiliates, under a Master Repurchase Agreement, (c) the sale of the Purchased Assets to a securitization vehicle, including a CDO, for which Buyer, or any of its Affiliates, are acting as part of the underwriting group in a lead or co-manager role or for which Buyer maintains, solely or together with another lead manager, the books related to the underwriting of such securitization (conventionally known as a "book runner" or "co-bookrunner") and with respect to which there is no more than one other lead manager, (d) maturity of the Purchased Assets, (e) contractual defaults by either party to the underlying loan documents and agreements, (f) any paydowns, prepayments or defaults on the Purchased Assets, (g) pay offs resulting from a Margin Call or Market Value calculation dispute between Seller and Buyer including, without limitation, for a Margin Call in accordance with Section 13(ix) hereof or (h) Seller's termination of a Transaction in response to a demand by Buyer pursuant to Sections 2(g) or (h) hereof.
(ii) Additional Purchased Assets acceptable to Buyer may be substituted and no Exit Fee will be payable in connection with such substitutions. On the Repurchase Date, termination of the Transactions will be effected by transfer to Seller or its agent of the Purchased Asset(s) and any Income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Section 4 of this Agreement) free and clear of all liens, encumbrances, security interests and claims created by Buyer or its Affiliates against the simultaneous transfer in immediately available funds of the Repurchase Price to an account designated by Buyer. Buyer agrees upon receipt of the Repurchase Price to execute and deliver from time to time upon Seller's request, such reassignments and other documentation reasonably requested by Seller to give effect to the forgoing transfers.
(g) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by any Governmental Authority or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority having jurisdiction over Buyer made subsequent to the date hereof:
(i) shall subject Buyer to any tax of any kind whatsoever with respect to the Purchase Price and Transaction Documents, any Purchased Asset or any Transaction, or change the Market Value basis of taxation of payments to Buyer in respect thereof (except for the related New Loans (such notice, a “Preliminary Approval”) or any taxes on Buyer's overall net income); or
(ii) denyshall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of Buyer which is not otherwise included in the determination of the LIBOR hereunder; and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems to be material, of entering into, continuing or maintaining Transactions or to reduce any amount receivable under the Transaction Documents in respect thereof; then, in any such case, Seller shall promptly pay Buyer’s sole and absolute discretion, upon its demand, any additional amounts necessary to compensate Buyer for such increased cost or reduced amount receivable which is actually incurred by Buyer. If Buyer becomes entitled to claim any additional amounts pursuant to this Section 2(g), it shall promptly notify Seller of the event by reason of which it has become so entitled. In the event that Seller elects to terminate a Transaction in response to a demand by Buyer pursuant to this Section 2(g), no Exit Fee with respect to such termination shall be due by Seller’s request for . A certificate as to the applicable Transaction. Buyer’s failure calculation of any additional amounts payable pursuant to respond this subsection shall be submitted by Buyer to Seller within five (5) Business Days, as applicable, and shall be conclusive and binding upon Seller in the absence of manifest error. This covenant shall survive the termination of this Agreement and the repurchase by Seller of any or all of the Purchased Assets.
(h) If Buyer shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation Controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof does or shall have the effect of reducing the rate of return on Buyer's or such corporation's capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer's or such corporation's policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then from time to time, after submission by Buyer to Seller of a denial written request therefor, Seller shall pay to Buyer such additional amount or amounts as will compensate Buyer for such reduction which is actually incurred by Buyer. A certificate as to the calculation of Seller’s request any additional amounts payable pursuant to this subsection shall be submitted by Buyer to Seller and shall be conclusive and binding upon Seller in the absence of manifest error. This covenant shall survive the termination of this Agreement and the repurchase by Seller of any or all of the Purchased Assets.
(i) Any provision hereof to the contrary notwithstanding other than the limitations set forth in Section 20 hereof, Seller shall pay all reasonable fees and expenses of Buyer (including all reasonable legal fees) associated with the purchase of any Eligible Asset under this Agreement and shall pay the fees and expenses of counsel to Buyer in connection with the preparation and execution of this Agreement and all other Transaction Documents.
(j) Any provision hereof to the contrary notwithstanding, Transactions entered into hereunder shall be at the sole discretion of Buyer. Buyer is not required to enter into the proposed Transactionany Transaction and Buyer may, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans upon the terms set forth by Buyer in its Preliminary Approvalsole discretion, deliver the documents set forth below reject for inclusion in this Section 3(c) with respect to each New Loan and related any Transaction any Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:Assets offered for sale hereunder by Seller.
Appears in 1 contract
Samples: Master Repurchase Agreement (Winthrop Realty Trust)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions (a) Subject to the terms and conditions set forth in this Agreement (including, without limitation, the Facility Conditions Precedent and Transaction Conditions Precedent specified in Sections 3(c) and (e) of Paragraph 3 this Agreement), an agreement to enter into a Transaction shall be made in writing at the initiation of Seller as provided below; provided, however, that (x) the aggregate of the Agreement Repurchase Prices (“Initiation; Confirmation; Termination”excluding Other Price Components) are hereby deleted for all Transactions shall not exceed the Facility Amount and replaced in their respective entireties by (y) Buyer shall not have any obligation to enter into Transactions with Seller after the following provisions occurrence and during the continuance of this Section 3:an Event of Default or during the thirty (30) day period immediately prior to the Facility Expiration Date.
(ai) Seller may, from time to time, prior submit to Buyer a Transaction Request, in the Facility Termination Dateform of Exhibit VIII attached hereto (the “Transaction Request”), request that Buyer for Buyer’s review and approval in order to enter into a Transaction with respect to one or more New Loansany Eligible Asset that Seller proposes to sell to Buyer under this Agreement. Seller shall initiate each request by submitting Upon Buyer’s receipt of a Preliminary complete Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to the contrary hereinPackage, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds the Facility Amount. Buyer shall have the right to review all New Loans proposed to be sold to Buyer in any Transaction request additional diligence materials and deliveries, and to conduct its own due diligence investigation of such New Loans Eligible Assets as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject any or all of the New Loans proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period endeavor within ten (if applicable).
(b10) Upon Buyer’s Business Days of its receipt of a complete Preliminary the Transaction Request and Due Diligence Package with respect to a proposed Transaction, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s following receipt of such additional Diligence Materials or Buyer’s waiver thereof, Buyer shall within five (5) Business Days internal credit approval to either (iA) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value market value for the related New Loans (such notice, a “Preliminary Approval”) Eligible Asset or (iiB) denydeny Seller’s request for a Transaction, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five ten (510) Business Days, as applicable, Days shall be deemed to be a denial of Seller’s request to enter into the proposed for a Transaction, unless Buyer and Seller have agreed otherwise in writing.
(cii) Buyer shall be entitled to make a determination, in the exercise of its sole discretion that it shall not purchase any or all of the Eligible Assets proposed to be sold to Buyer by Seller. On the Purchase Date for the Transaction, which shall be not less than three (3) Business Days following the approval of an Eligible Asset by Buyer, the Purchased Asset shall be transferred to Buyer or Custodian against the transfer of the Purchase Price to an account designated by Seller.
(b) Upon Seller’s receipt agreeing to enter into a Transaction hereunder, provided each of the Facility Transaction Conditions Precedent (as hereinafter defined) or Transaction Conditions Precedent (as hereinafter defined), as applicable, shall have been satisfied (or waived by Buyer’s Preliminary Approval ), Buyer and Seller shall enter into a written confirmation in the form of Exhibit I attached hereto with respect to each Transaction (a “Confirmation”) that shall describe the Purchased Assets which shall be the subject of the proposed Transaction and any additional terms and conditions not inconsistent with this Agreement unless such an inconsistent provision is waived in the Confirmation executed in accordance with Section 3(g)). In the absence of execution and delivery by Buyer of a Confirmation for a proposed Transaction, Seller shall, if Seller desires Buyer shall under no circumstance be deemed to have agreed to enter into such Transaction. With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on each Pricing Rate Determination Date for the next succeeding Pricing Rate Period for such Transaction. Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Pricing Rate Determination Date for the related Pricing Rate Period and notify Seller of such rate for such period on the Pricing Rate Determination Date.
(c) Buyer shall not be obligated to enter into, execute, and close this Agreement and consummate any Transactions until the following conditions have been satisfied, or waived by Buyer, on and as of the date hereof (the “Facility Conditions Precedent”):
(i) Buyer shall have obtained internal credit approval to enter into this Agreement and the Transactions contemplated herein;
(ii) Buyer or the Custodian on behalf of Buyer shall have received this Agreement and the other Transaction Documents executed by Seller and/or Guarantor, as applicable;
(iii) Buyer or the Custodian on behalf of Buyer shall have received the following documents; (A) a good standing certificate dated a recent date with respect to Seller and Guarantor from their respective states of formation, (B) an executed Power of Attorney of Seller in the related New Loans upon form of Exhibit V hereto, (C) such opinions from counsel to Seller and Guarantor as Buyer may reasonably require, including, without limitation, with respect to corporate matters, enforceability, no consents or approvals required other than those that have been obtained, absence of conflicts with Requirements of Law, organizational documents and material agreements, perfected security interest in the terms set forth Purchased Assets by filing, perfected security interest in the Purchased Asset Documents by possession, perfected security interest in the Cash Management Account and any other collateral pledged pursuant to the Transaction Documents, Investment Company Act matters, the applicability of Bankruptcy Code safe harbors, a true sale opinion (if applicable) and such other opinions as may be reasonably required by Buyer and (D) all other documents, certificates, information, financial statements, reports, approvals as it may require;
(iv) Buyer shall have received a certificate of a responsible officer of Seller and Guarantor, as applicable, certifying such Person’s (i) governing documents, (ii) certificates of formation, limited partnership or articles of incorporation, as applicable and (iii) incumbency;
(v) no Requirements of Law shall prohibit or render it unlawful for Seller or Guarantor, and no order, judgment or decree of any Governmental Authority shall prohibit, enjoin or render it unlawful, to enter into any Transaction Document, including after giving effect to the consummation thereof;
(vi) Buyer has received payment from Seller of all fees and expenses then payable under the Fee Letter, this Agreement and the other Transaction Documents, including the costs and expenses actually incurred by Buyer (including legal fees) in connection with its Preliminary Approvaldue diligence and underwriting review of each Eligible Asset approved by Buyer for purchase as of the date hereof;
(vii) (A) UCC financing statements have been filed against Seller in the office of the Secretary of State of the State of Delaware naming Seller as debtor and Buyer as secured party, deliver (B) Buyer has received such searches of UCC filings, tax liens, judgments, pending litigation and other matters relating to Seller and Guarantor, as Buyer may require, and (C) the documents set forth below results of such searches are satisfactory to Buyer;
(viii) all information, reports, certificates, documents, financial statements, operating statements, forecasts, books, records, files, exhibits and schedules concerning Seller or Guarantor furnished by or on behalf of Seller or Guarantor to Buyer in this Section 3(cconnection with the Transaction Documents, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements herein or therein, in light of the circumstances under which they were made, not misleading; and
(ix) with respect to Seller or Guarantor, as applicable, a No Plan Asset Certificate. By its release of its signature page to this Agreement and delivery of any then payable Purchase Price to Seller, except as expressly set forth in a side letter duly executed and delivered by each New Loan of Buyer and related Eligible Property Seller dated as of the date hereof (“Facility Letter of Reservation”), Buyer acknowledges that the Facility Conditions Precedent have been satisfied or Properties (waived by Buyer and this Agreement is in full force and effect. Notwithstanding the foregoing to the extent contrary, Seller shall not already delivered be relieved of its obligations to deliver any Purchased Asset Documents or other information listed on the Facility Letter of Reservation and a failure to deliver any Purchased Asset Documents or other information listed on the Facility Letter of Reservation shall not be deemed a waiver of the Facility Condition Precedent(s) set forth in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance Facility Letter of a Confirmation (as defined below), all in a manner reasonably satisfactory to Reservation by Buyer and pursuant the failure to documentation reasonably satisfactory to Buyer:deliver Purchased Asset Documents or other information listed on the Facility Letter of Reservation shall constitute an Event of Default hereunder after the delivery of notice and the expiration of any applicable cure period with respect thereto as provided in Section 13(xviii).
Appears in 1 contract
Samples: Master Repurchase and Securities Contract (Benefit Street Partners Realty Trust, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, may from time to time, prior to the Facility Termination Date, time request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request Assets by submitting a Preliminary Due Diligence Package for Buyer’s review and approval, which approval shall be in Buyer’s sole discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, immediately after the purchase of such New Asset, the Aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole discretion. Notwithstanding any provision to the contrary herein or in any other Transaction Document, Buyer shall be entitled to make a determinationdetermine, in its sole and absolute discretion, whether a New Loan Asset qualifies as an Eligible Loan and Asset or whether to reject any or all of the New Loans Asset proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionPackage, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary Package to properly evaluate the New Loansproposed Transaction. Upon Buyer’s receipt or waiver of such additional Supplemental Due Diligence Materials or Buyer’s waiver thereofPackage, Buyer shall shall, in its sole discretion, within five (5) Business Days Days, either (i) notify Seller of Buyer’s its intent to proceed with the Transaction and of together with its determination with respect to of the Purchase Price and the Market Value for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, deny Seller’s request for the applicable Transactionrequest. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, Days shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its the Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan Asset and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s a Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in its sole discretion and pursuant to documentation reasonably satisfactory to BuyerBuyer in its sole discretion:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Granite Point Mortgage Trust Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, may prior to the Facility Termination Date, from time to time request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request Assets by submitting a Preliminary Due Diligence Package for Buyer’s review and approval, which approval shall be in Buyer’s sole discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, immediately after the purchase of such New Asset, the Aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole discretion. Notwithstanding any provision to the contrary herein or in any other Transaction Document, Buyer shall be entitled to make a determinationdetermine, in its sole and absolute discretion, whether a New Loan Asset qualifies as an Eligible Loan and Asset or whether to reject any or all of the New Loans Asset proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionPackage, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary Package to properly evaluate the New Loansproposed Transaction. Upon Buyer’s receipt or waiver of such additional Supplemental Due Diligence Materials or Buyer’s waiver thereofPackage, Buyer shall shall, in its sole discretion, within five (5) Business Days Days, either (i) notify Seller of Buyer’s its intent to proceed with the Transaction and of together with its determination with respect to of the Purchase Price and the Market Value for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, deny Seller’s request for the applicable Transactionrequest. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, Days shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its the Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan Asset and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s a Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in its sole discretion and pursuant to documentation reasonably satisfactory to BuyerBuyer in its sole discretion:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Resource Capital Corp.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted modified and replaced superseded in their respective entireties by the following provisions of this Section 3:
(a) Seller maySubject to the terms and conditions set forth in the Agreement (including, without limitation, the "Transaction Conditions Precedent" specified in Section 3(b) of this Annex I), the Buyer shall from time to timetime enter into Transactions with the Seller on any Business Day from and including the date of the Agreement to but excluding the three year anniversary date of the date of the Agreement and pursuant to any such Transaction, prior Seller shall be entitled to the Facility Termination Datesell, request that Buyer repurchase and re-sell any assets in accordance with this Agreement. An agreement to enter into a Transaction with respect to one or more New Loans. shall be made in writing at the initiation of Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to as provided below; provided, however, that the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase -------- ------- Price (excluding the Price Differential with respect to the Purchased Securities and Purchased Loans as of the date of determination) that when combined with for all Purchased Loans which have Transactions shall not been repurchased by Seller hereunder exceeds exceed the Facility Amount. Seller shall give Buyer written notice of each proposed Transaction and Buyer shall inform Seller of its determination with respect to any assets proposed to be sold to Buyer by Seller solely in accordance with Exhibit VIII attached hereto. Buyer shall have the right to review all New Eligible Loans and Eligible Securities proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans and Eligible Securities as Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in the exercise of its sole and absolute discretiongood faith business judgment, whether a New Loan qualifies as an Eligible Loan and whether to reject that it shall not purchase any or all of the New Loans assets proposed to be sold to Buyer by Seller. On the Purchase Date for the Transaction which shall be not less than three (3) Business Days following the approval of an Eligible Loan or an Eligible Security by the Buyer in accordance with Exhibit VIII hereto, the Purchased Securities or Purchased Loans, as applicable shall have no obligation be transferred to consider for purchase any New Loans proposed by Seller after Buyer or its agent against the original Facility Termination Date or during transfer of the Facility Extension Period (if applicable)Purchase Price to Seller's account at the Depository.
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed Transaction, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereof, Buyer shall within five (5) Business Days either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request agreeing to enter into a Transaction hereunder, provided each of the proposed Transaction, unless Buyer and Seller Transaction Conditions Precedent (as hereinafter defined) shall have agreed otherwise in writing.
been satisfied (c) Upon Seller’s receipt of or waived by Buyer’s Preliminary Approval with respect to a Transaction), Seller shallshall promptly deliver to Buyer a written confirmation in the form of Exhibit I attached hereto of each Transaction (a "Confirmation"). Unless otherwise agreed by the parties, if Seller desires to enter into such Transaction with respect to the related New Loans upon the terms set forth by Buyer in its Preliminary Approval, shall deliver the documents set forth below in this Section 3(c) a ------------ separate Confirmation with respect to each New Purchased Loan and related Eligible Property or Properties (to Purchased Security which is the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance subject of a Transaction. Such Confirmation shall describe the Purchased Securities (as defined below)including CUSIP number, all in a manner reasonably satisfactory to if any) and/or Purchased Loans, shall identify Buyer and pursuant to documentation reasonably satisfactory to Buyer:Seller, and shall set forth (i) the Purchase Date,
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to one or more New LoansAssets. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approvalapproval in Buyer’s sole good faith discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, immediately after the purchase of such New Asset, (i) the Aggregate Repurchase Price (excluding including the proposed Purchase Price Differential with respect to the Purchased Loans as of the date of determinationsuch New Asset) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility AmountAmount or (ii) the Aggregate Foreign Asset Repurchase Price (including the proposed Purchase Price of such New Asset if it is a New Foreign Asset) would exceed the Foreign Asset Facility Sub-Limit. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole good faith discretion. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its Buyer’s sole and absolute good faith discretion, whether a New Loan Asset qualifies as an Eligible Loan and Asset or whether to reject any or all of the New Loans Asset proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionNew Asset, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List Package to evaluate such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New LoansAsset. Upon Buyer’s receipt of such additional Supplemental Due Diligence Materials Package or Buyer’s waiver thereof, Buyer shall shall, within five (5) Business Days Days, either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute good faith discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan Asset and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in Buyer’s sole good faith discretion and pursuant to documentation reasonably satisfactory to Buyer in Buyer’s sole good faith discretion:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Colony Credit Real Estate, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted modified and replaced superseded in their respective entireties by the following provisions of this Section 3:
3.1 Subject to the terms and conditions set forth in the Agreement (a) Seller mayincluding, without limitation, the "Transaction Conditions Precedent" specified in Section 3.2 of this Annex I), each Buyer shall from time to timetime enter into Transactions with Seller on any Business Day from and including the date of the Agreement, prior to but excluding the Facility Termination Date, request that Buyer and pursuant to any such Transaction, Seller shall be entitled to sell, repurchase and re-sell any assets in accordance with this Agreement. An agreement to enter into a Transaction with respect to one or more New Loans. shall be made in writing at the initiation of Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to as provided below; provided, however, that the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans Assets as of the date of determination) that when combined with for all Purchased Loans which have Transactions for all Buyers shall not been repurchased by Seller hereunder exceeds exceed the Facility Amount; provided, further, that, notwithstanding anything contained herein to the contrary, BANA is not required to enter into any Transaction where the asset(s) to be purchased is, or includes, an Eligible Non-Investment Grade CMBS Security originally issued by Bank of America, N.A. or an Affiliate thereof and, for the avoidance of doubt, BAMCC may enter into such Transactions subject to the terms and conditions hereof. Seller shall give the Buyer Agent written notice of each proposed Transaction and the Buyer Agent shall inform Seller of its determination with respect to any assets proposed to be sold to the applicable Buyer by Seller solely in accordance with Exhibit VIII attached hereto. The Buyer Agent shall have the right to review all New Eligible Loans and Eligible Securities proposed to be sold to the applicable Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans and Eligible Securities as the Buyer determines is Agent reasonably necessarydetermines. Seller agrees to promptly reimburse The Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer Agent shall be entitled to make a determination, in the exercise of its sole and absolute discretiongood faith business judgment, whether a New Loan qualifies as an Eligible Loan and whether to reject that it shall not purchase any or all of the New Loans assets proposed to be sold to the applicable Buyer by Seller. Buyer On the Purchase Date for the Transaction which shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period be not less than three (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed Transaction, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereof, Buyer shall within five (53) Business Days either (i) notify Seller following the approval of Buyer’s intent an Eligible Loan or an Eligible Security by the Buyer Agent in accordance with Exhibit VIII hereto, the Purchased Assets shall be transferred to proceed with Buyer or its agent against the Transaction and transfer of its determination with respect to the Purchase Price and to an account of Seller.
3.2 Upon agreeing to enter into a Transaction hereunder, provided each of the Market Value for Transaction Conditions Precedent (as hereinafter defined) shall have been satisfied (or waived by the related New Loans (such noticeBuyer Agent), a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller Buyer shall promptly (and in any event within five (5) Business Days) deliver to Seller a written confirmation in the form of Exhibit I attached hereto of each Transaction (a "Confirmation"). Unless otherwise agreed by the parties, as applicablethe applicable Buyer shall deliver a separate Confirmation with respect to each Purchased Asset which is the subject of a Transaction. Such Confirmation shall describe the Purchased Securities (including CUSIP number, if any) and/or Purchased Loans, shall identify the applicable Buyer and Seller, and shall set forth:
3.2.1 the Purchase Date;
3.2.2 the Purchase Price for such Purchased Assets;
3.2.3 the Termination Date;
3.2.4 the Pricing Rate applicable to the Transaction (including the Applicable Spread); and
3.2.5 any additional terms or conditions not inconsistent with the Agreement. With respect to any Transaction, the Pricing Rate shall be determined initially on the Purchase Date applicable to such Transaction, and shall be reset on each Reset Date for the related Pricing Rate Period. The Buyer Agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Reset Date for the related Pricing Rate Period and notify Seller and Custodian of such rate for such period on the Reset Date. For purposes of this Section 3.2, the "Transaction Conditions Precedent" shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval been satisfied with respect to any proposed Transaction if:
A. no Default or Event of Default under the Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction;
B. the representations and warranties made by Seller in each of the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction;
C. The Buyer Agent shall have (i) determined, in accordance with the applicable provisions of Section 3.1 of this Annex I, that the assets proposed to be sold to the applicable Buyer by Seller in such Transaction are Eligible Securities and/or Eligible Loans, (ii) completed all legal due diligence in respect of such Eligible Securities and/or Eligible Loans and (iii) obtained internal credit approval for the inclusion of such Eligible Securities and/or Eligible Loans as Purchased Assets in a Transaction; and
D. the Buyer Agent shall have received the Guaranty executed by the Sponsor.
3.3 Each Confirmation, together with the Agreement, including this Annex I, shall be conclusive evidence of the terms of the Transaction(s) covered thereby unless objected to in writing by Seller shall, if no more than two (2) Business Days after the date such Confirmation is received by Seller. An objection sent by Seller desires to enter into such Transaction with respect to any Confirmation must state specifically that the related New Loans writing is an objection, must specify the provision(s) of such Confirmation being objected to by Seller, must set forth such provision(s) in the manner that Seller believes such provisions should be stated, and must be received by the applicable Buyer no more than two (2) Business Days after such Confirmation is received by Seller.
3.4 No Transaction shall be terminable on demand by a Buyer (other than upon the terms set forth occurrence and during the continuance of an Event of Default by Buyer Seller). Seller shall be entitled to terminate a Transaction in its Preliminary Approval, deliver whole or in part on demand and repurchase all or a portion of the documents set forth below in this Section 3(c) with respect Purchased Assets subject to each New Loan and related Eligible Property or Properties (a Transaction on any Business Day prior to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation Termination Date (as defined belowan "Early Termination Date"); provided, however, that: 3.4.1 Seller repurchases on such Early Termination Date, all in a manner reasonably satisfactory or the portion of the Purchased Assets subject to Buyer and pursuant such Transaction which Seller has elected to documentation reasonably satisfactory to Buyer:repurchase;
Appears in 1 contract
Samples: Master Repurchase Agreement (Anthracite Capital Inc)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller maySubject to the terms and conditions set forth in this Agreement (including, without limitation, the "Transaction Conditions Precedent" specified below) Buyers shall from time to time, prior to the Facility Termination Date, request that Buyer time enter into a Transaction Transactions with respect Seller on any Business Day from and including the date of this Agreement to one or more New Loans. but excluding the Termination Date and pursuant to any such Transaction, Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review be entitled to sell, repurchase and approval. Notwithstanding anything to re-sell any assets in accordance with this Agreement; provided, however, that the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans Assets as of the date of determination) that when combined with for all Purchased Loans which have Transactions shall not been repurchased by Seller hereunder exceeds exceed the Maximum Facility Amount. Buyer An agreement to enter into a Transaction shall be made in writing at the initiation of Seller as provided below. Seller shall give Buyers written notice of each proposed Transaction and Buyers shall inform Seller of their determination with respect to any assets proposed to be sold to Buyers by Seller solely in accordance with Exhibit VIII attached hereto. Buyers shall have the right to review all New Eligible Loans and Eligible Securities proposed to be sold to Buyer Buyers in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans and Eligible Securities as Buyer determines is reasonably necessaryBuyers determine. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer Buyers shall be entitled to make a determination, in its their sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject that they shall not purchase any or all of the New Loans assets proposed to be sold to Buyer Buyers by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent shall have been satisfied (or waived by Buyers), Buyers shall promptly deliver to Seller a written confirmation in the form of Exhibit I attached hereto pertaining to such Transaction (a "Confirmation").
(c) Each Confirmation shall describe the Purchased Asset(s) which shall be the subject of a complete Preliminary Due Diligence Package Transaction and, in this connection, shall set forth:
(A) the name of the borrower or issuer with respect to each related Purchased Asset,
(B) a description (including the date) of the loan agreement or other document, agreement or instrument pursuant to which each related Purchased Asset is made or governed,
(C) the aggregate outstanding principal amount of each related Purchased Asset,
(D) the name of the Buyer that will purchase each related Purchased Asset and the name of the Seller, and
(E) all additional information required by Exhibit I attached hereto.
(d) On the Purchase Date for each Transaction which shall be not less than three (3) Business Days (unless otherwise agreed by Buyers) following the approval of an Eligible Loan or an Eligible Security by Buyers in accordance with Exhibit VIII hereto and delivery by Seller of a Request for Transaction in the form of Exhibit XII hereto, each Purchased Asset subject to such Transaction shall be transferred to the applicable Buyer or its agent against the transfer of the Purchase Price to an account of Seller.
(e) On the Purchase Date for a Transaction, Seller shall countersign and deliver to Buyers a counterpart of the related Confirmation. Each Confirmation shall be deemed incorporated herein by reference with the same effect as if set forth herein at length.
(f) With respect to any Transaction, the Pricing Rate shall be determined initially on the Purchase Date applicable to such Transaction, and shall be reset on each Reset Date for the related Pricing Rate Period. Buyers or their agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Reset Date for the related Pricing Rate Period and notify Seller and Custodian of such rate for such period on the Reset Date. For purposes of this Section 2.1, the "Transaction Conditions Precedent" shall be deemed to have been satisfied with respect to any proposed Transaction if:
(A) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction, Buyer ;
(B) the representations and warranties made by Seller in each of the Transaction Documents with respect to each Eligible Asset to be transferred on any Purchase Date shall be true and correct in all material respects as of the Purchase Date for such Transaction;
(C) Buyers shall have received, reviewed and approved the right within applicable Credit Approval Memo and, if requested, Supplemental Diligence Materials;
(D) Buyers' counsel shall have completed in full any legal review requested by Buyers;
(E) Buyers shall have (A) determined, in accordance with the applicable provisions of Section 2.1 of this Agreement, that the assets proposed to be sold to Buyers by Seller in such Transaction are Eligible Securities and/or Eligible Loans, (B) determined that the assets proposed to be sold to Buyers by Seller in such Transaction (i) do not have Stressed LTV greater than 95% and (ii) Stressed DSCR is equal to or greater than 1.05X, (C) completed all legal due diligence in respect of such Eligible Securities and/or Eligible Loans and (D) obtained internal credit approval for the inclusion of such Eligible Securities and/or Eligible Loans as Purchased Assets in a Transaction;
(F) Buyers shall have received a Bailee's Trust Receipt or a Trust Receipt from Custodian, as applicable, for the relevant Eligible Asset, in form and substance acceptable to Buyers; and
(G) the Purchase Price of any individual asset proposed to be sold to Buyers by Seller in such Transaction shall not be less than $1,000,000 nor greater than $27,200,000.
2.2 Seller may enter into a Transaction hereunder and sell a Purchased Asset to Buyers for less than the Maximum Purchase Price that Seller would be permitted to receive hereunder. Thereafter, so long as no Default or Event of Default shall have occurred and be continuing, Seller may obtain from Buyers the balance of any Purchase Price then available in respect of a Purchased Asset (after giving effect to any decrease in Market Value of such Purchased Asset). In addition, so long as no Default or Event of Default shall have occurred and be continuing, and subject to the terms and conditions of this Agreement, including Section 2.11 of this Agreement, Seller may repay the Repurchase Price in whole or in part and obtain a re-advance of Repurchase Price in respect of a Purchased Asset. In connection with any prepayment of Repurchase Price on a date other than a Remittance Date, Seller shall deliver to Buyers a Notice of Prepayment in the form of Exhibit XIII.
2.3 Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby unless objected to in writing by Seller no more than two (2) Business DaysDays after the date such Confirmation is received by Seller. An objection sent by Seller with respect to any Confirmation must state specifically that the writing is an objection, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate must specify the New Loans. Upon Buyer’s receipt provision(s) of such additional Diligence Materials Confirmation being objected to by Seller, must set forth such provision(s) in the manner that Seller believes such provisions should be stated, and must be received by Buyers no more than two (2) Business Days after such Confirmation is received by Seller.
2.4 No Transaction shall be terminable on demand by Buyers, other than (1) upon the occurrence and during the continuance of an Event of Default by Seller, (2) to the extent an Eligible Asset becomes a Defaulted Asset, and/or (3) a failure by Seller to correct all exceptions noted on the Bailee's Trust Receipt or Buyer’s waiver thereofthe Trust Receipt from Custodian, Buyer shall as applicable, as determined in Buyers' sole discretion within five (5) Business Days either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of 2.1 Subject to the terms and conditions set forth in this Agreement (including, without limitation, the “Initiation; Confirmation; Termination”) are hereby deleted and replaced Transaction Conditions Precedent” specified in their respective entireties by the following provisions Section 2.2 of this Section 3:
(aAgreement) Seller may, the Buyers shall from time to time, prior to the Facility Termination Date, request that Buyer time separately enter into a Transaction Transactions with respect Seller on any Business Day from and including the Effective Date to one or more New Loans. but excluding the Termination Date and pursuant to any such Transaction, Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review be entitled to sell, repurchase and approval. Notwithstanding anything to re-sell any assets in accordance with this Agreement; provided, however, that the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding Exit Fees and the Price Differential with respect to the Purchased Loans Assets as of the date of determination) that when combined with for all Purchased Loans which have Transactions shall not been repurchased by Seller hereunder exceeds exceed the Maximum Facility Amount. An agreement to enter into a Transaction shall be made in writing at the initiation of Seller as provided below. Seller shall give the Buyer written notice of each proposed Transaction and the Buyer shall inform Seller of their determination with respect to any assets proposed to be sold to the Buyer by Seller solely in accordance with Exhibit VII attached hereto. The Buyer shall have the right to review all New Eligible Loans proposed to be sold to the Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans as the Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, The Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject that they shall not purchase any or all of the New Loans Assets proposed to be sold to the Buyer by Seller. On the Purchase Date for the Transaction, which shall be no later than fifteen (15) days after Seller has received the notice of approval of the request for transaction in accordance with Exhibit VII attached hereto and at least two (2) Business Days from the date upon which the Confirmation is fully executed by Seller and the Buyer, provided each of the Transaction Conditions Precedent shall have been satisfied (or waived by the Buyer), the Purchased Assets shall be transferred to the Buyer or its agent against the transfer of the Purchase Price to an account of Seller. On each Subsequent Purchase Date, which shall be no less than two (2) Business Days following the date upon which the Confirmation is fully executed by the Buyer and Seller in accordance with Exhibit VII attached hereto, provided each of the Transaction Conditions Precedent shall have been satisfied (or waived by the Buyer), the Buyer shall have no obligation transfer to consider for purchase the account of Seller all or the portion of the Contingent Purchase Price requested in such Confirmation. Upon the execution and delivery of any New Loans proposed by Seller after such Confirmation in connection with a Subsequent Purchase Date, such Confirmation shall supercede any previous confirmation executed and delivered in respect of the original Facility Termination Date or during the Facility Extension Period (if applicable)relevant Purchased Asset.
2.2 Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent shall have been satisfied (bor waived by the Buyer), Seller shall prepare and Seller and the Buyer shall execute a written confirmation in the form of Exhibit I attached hereto of each Transaction (a “Confirmation”) Upon Buyer’s receipt and follow all other Transaction procedures described in Exhibit VII attached hereto. In the absence of execution and delivery by the Buyer of a complete Preliminary Due Diligence Package separate Confirmation with respect to each Purchased Asset which is the subject of a proposed Transaction, Buyer shall under no circumstances be deemed to have agreed to enter into such Transaction or purchase such Purchased Asset. With respect to any Transaction, the right within Pricing Rate shall be determined initially on the Purchase Date applicable to such Transaction, and shall be reset on each Reset Date for the related Pricing Rate Period. The Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Reset Date for the related Pricing Rate Period and notify Seller and Custodian of such rate for such period on the Reset Date. For purposes of this Agreement, the “Transaction Conditions Precedent” shall be deemed to have been satisfied with respect to any proposed Transaction if:
(a) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction;
(b) the representations and warranties made by Seller in each of the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction;
(c) no Margin Deficit shall exist, either immediately prior to or after giving effect to the requested Transaction;
(d) none of the following shall have occurred and be continuing:
(i) an event or events shall have occurred in the determination of Buyer resulting in the effective absence of a “repo market” or related “lending market” for purchasing (subject to repurchase) or financing debt obligations secured by commercial mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been commercially reasonable prior to the occurrence of such event or events; or
(ii) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by Purchased Assets or an event or events shall have occurred resulting in the Buyer not being able to sell securities backed by Purchased Assets at prices which would have been commercially reasonable prior to such event or events; or
(iii) there shall have occurred a material adverse change in the “repo market” or comparable “lending market” which affects (or can reasonably be expected to affect) materially and adversely the ability of Seller to fund its obligations under this Agreement;
(e) the Buyer shall have received, reviewed and approved the applicable Diligence Materials, the Purchased Asset Documents and any source documentation or supporting information referenced therein, including without limitation third party reports;
(f) the Buyer’s counsel shall have completed in full any legal review requested by the Buyer;
(g) the Buyer shall have (A) determined, in accordance with the applicable provisions of Section 2.1 of this Agreement, that the assets proposed to be sold to the Buyer by Seller in such Transaction are Eligible Assets, (B) determined that the Purchase Price of no single asset proposed to be sold to the Buyer by Seller in such Transaction exceeds 20% of the Maximum Facility Amount (unless the relevant Eligible Loan is investment grade), (C) completed all legal due diligence in respect of such Eligible Loans and (D) obtained internal credit approval for the inclusion of such Eligible Loans as Purchased Assets in a Transaction;
(h) the (i) Purchase Price of any Purchased Asset sold to the Buyer under the Agreement on any Purchase Date shall not be less than $1,000,000 and (ii) the portion of the Contingent Purchase Price related to any Purchased Asset paid by the Buyer to Seller on any Purchase Date shall not be less than $1,000,000;
(i) Reserved;
(j) the Buyer shall have received the Custodial Agreement, executed and delivered by an authorized officer of each of the parties thereto;
(k) the Buyer shall have received the Guarantee, executed and delivered by an authorized officer of Guarantor, and the Guarantee shall be in the form attached hereto as Exhibit XI;
(l) the Buyer shall have received an opinion of counsel to Seller with respect to due authorization, execution and delivery and enforceability and the perfection of the Buyer’s security interests in the New Assets, and such opinion shall be satisfactory to the Buyer in form and substance; and
(m) with respect to each Purchased Loan that is not a Table Funded Purchased Loan, the Buyer shall have received a Trust Receipt from the Custodian, and with respect to each Table Funded Purchased Loan, the Buyer shall have received an executed Bailee Agreement and a Trust Receipt (as defined in such Bailee Agreement) from the Settlement Agent; and
(n) with respect to any Purchased Asset that is acquired by Seller from an Affiliate of Seller, the Buyers shall have received the written agreement of such Affiliate (i) consenting to Seller’s pledge of such Purchased Asset and any Collateral related thereto to each Buyer under this Agreement and (ii) agreeing that, if the transfer by such Affiliate to Seller is deemed to be a loan by Seller to such Affiliate, such Affiliate’s rights in respect of such Purchased Asset and any Collateral related thereto shall be subject and subordinate to the rights of the Buyers under this Agreement.
2.3 Upon execution by the Buyer, each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby.
2.4 No Transaction shall be terminable on demand by the Buyer, other than (1) upon the occurrence and during the continuance of an Event of Default by Seller and/or (2) to the extent of such Eligible Assets, with respect to any Eligible Assets that become delinquent, defaulted or similarly affected, as determined in the Buyer's sole discretion. Seller shall be entitled to (and shall, in the event demand is given by the Buyer pursuant to the immediately preceding sentence, in accordance with the Buyer's demand) terminate a Transaction in whole or in part on demand and repurchase all or a portion of the Purchased Assets subject to a Transaction on any Business Day prior to the Repurchase Date (an “Early Repurchase Date”); provided, however, that:
(a) Seller repurchases on such Early Repurchase Date, all or the portion of the Purchased Assets subject to such Transaction which Seller has elected to repurchase;
(b) Seller notifies the Buyer in writing of its intent to terminate such Transaction and repurchase such Purchased Assets no less than two (2) Business Days, Days prior to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereof, Buyer shall within five (5) Business Days either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.Early Repurchase Date;
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transactionon such Early Repurchase Date, Seller shall, if Seller desires pays to enter into the Buyer an amount equal to the sum of the Repurchase Price for such Transaction with respect (or, in the case of a termination of a Transaction in part an amount acceptable to the related New Loans upon the terms set forth by Buyer in its Preliminary Approvalsole discretion, deliver the documents set forth below in but not more than such Repurchase Price), and any other amounts payable under this Agreement (including, without limitation, Section 3(c2.11 of this Agreement) with respect to each New Loan and related Eligible Property such Transaction against transfer to Seller or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance its agent of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:such Purchased Assets; and
Appears in 1 contract
Samples: Master Repurchase Agreement (CBRE Realty Finance Inc)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Subject to the terms and conditions set forth in this Agreement (including, without limitation, the “Transaction Conditions Precedent” specified in Section 3(b) of this Agreement), an agreement to enter into a Transaction shall be made in writing at the initiation of Seller as provided below; provided, however, that (i) the aggregate outstanding Purchase Price at any time for all Transactions shall not exceed the Facility Amount and (ii) Buyer shall not have any obligation to enter into Transactions with Seller after the occurrence and during the continuance of a Default or an Event of Default or during the thirty (30) day period immediately prior to the Facility Expiration Date. Seller may, from time to time, prior submit to Buyer a Transaction Request, in the Facility Termination Dateform of Exhibit VIII attached hereto, request that Buyer for Buyer’s review and approval in order to enter into a Transaction with respect to one or more New Loansany Eligible Loan that Seller proposes to be included as Collateral under this Agreement. Seller shall initiate each request by submitting Upon Buyer’s receipt of a Preliminary complete Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to the contrary hereinPackage, Buyer shall have no obligation the right to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential request, in Buyer’s good faith business judgment, additional diligence materials and deliveries with respect to the Purchased Loans as applicable Eligible Loan, to the extent necessary for the Buyer’s underwriting of such Eligible Loan. Upon Buyer’s receipt of the date Transaction Request and diligence materials, Buyer shall use commercially reasonable efforts to within ten (10) Business Days and following receipt of determinationinternal credit approval, either (i) that when combined with all Purchased Loans which notify Seller of the Purchase Price and the Market Value for the Eligible Loan or (ii) deny Seller’s request for a Transaction. Buyer’s failure to respond to Seller within ten (10) Business Days, as applicable, shall be deemed to be a denial of Seller’s request for a Transaction, unless Buyer and Seller have not been repurchased by Seller hereunder exceeds the Facility Amountagreed otherwise in writing. Buyer shall have the right to review all New Eligible Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans as Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject that it shall or shall not purchase any or all of the New Eligible Loans proposed to be sold to Buyer by Seller. On the Purchase Date for the Transaction which shall be on a date mutually agreed upon by Buyer and Seller following the approval of an Eligible Loan by Buyer, the Purchased Loan shall have no obligation be transferred to consider for purchase any New Loans proposed by Seller after Buyer against the original Facility Termination Date or during transfer of the Facility Extension Period (if applicable)Purchase Price to an account of Seller.
(b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent shall have been satisfied (or waived by Buyer’s receipt ), Buyer shall promptly deliver to Seller a written confirmation in the form of Exhibit I attached hereto of each Transaction (a complete Preliminary Due Diligence Package “Confirmation”). Such Confirmation shall describe the Purchased Loans, shall identify Buyer and Seller, and shall set forth:
(i) the Purchase Date,
(ii) the Purchase Price for such Purchased Loan,
(iii) the Repurchase Date,
(iv) the Pricing Rate, and
(v) any additional terms or conditions not inconsistent with this Agreement. With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on each Reset Date for the next succeeding Pricing Rate Period for such Transaction. Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Pricing Rate Determination Date for the related Pricing Rate Period and notify Seller of such rate for such period on the Reset Date. For purposes of this Section 3(b), the “Transaction Conditions Precedent” shall be deemed to have been satisfied with respect to a any proposed Transaction if:
(A) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction, ;
(B) the representations and warranties made by Seller in any of the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction (except to the extent such representations and warranties are made as of a particular date);
(C) Buyer shall have received from Seller all corporate and governmental approvals, legal opinions and closing documentation as Buyer may reasonably request,
(D) Seller shall have paid all of Buyer’s out-of-pocket costs and expenses pursuant to Section 30(d) of this Agreement; and
(E) Buyer shall have (A) determined, in accordance with the right within two applicable provisions of Section 3(a) of this Agreement, that the Assets proposed to be sold to Buyer by Seller in such Transaction are Eligible Loans and (2B) obtained internal credit approval for the inclusion of such Eligible Loan as a Purchased Loan in a Transaction.
(c) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby unless specific objection is made no less than three (3) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate Days after the New Loansdate thereof. Upon Buyer’s receipt In the event of any conflict between the terms of such additional Diligence Materials or Buyer’s waiver thereofConfirmation and the terms of this Agreement, Buyer the Confirmation shall within prevail. An objection sent by Seller with respect to any Confirmation must state specifically that the writing is an objection, must specify the provision(s) of such Confirmation being objected to by Seller, must set forth such provision(s) in the manner that Seller believes such provisions should be stated, and must be sent by Seller no more than five (5) Business Days either after such Confirmation is received by Seller.
(d) No Transaction shall be terminable on demand by Buyer (other than upon the occurrence and during the continuance of an Event of Default). Seller shall be entitled to terminate a Transaction on demand, in whole only, and repurchase the Purchased Loan subject to a Transaction on any Business Day prior to the Repurchase Date (an “Early Repurchase Date”); provided, however, that:
(i) notify Seller notifies Buyer in writing of Buyer’s its intent to proceed with the terminate such Transaction and repurchase such Purchased Loan no later than three (3) Business Days prior to such Early Repurchase Date,
(ii) on such Early Repurchase Date Seller pays to Buyer an amount equal to the sum of its determination the Repurchase Price for such Transaction, the amount, if any, payable by Seller in the event any Hedging Transaction related to such Purchased Loan is being terminated as of such date and any other amounts payable under this Agreement (including, without limitation, Section 3(i) of this Agreement) with respect to such Transaction against transfer to the Seller or its agent of such Purchased Loan,
(iii) on such Early Repurchase Date, following the payment of the amounts set forth in subclause (ii) above, no Margin Deficit exists. Such notice shall set forth the Early Repurchase Date and shall identify with particularity the Purchased Loans to be repurchased on such Early Repurchase Date.
(e) On the Repurchase Date, termination of the applicable Transaction will be effected by transfer to Seller or its agent of the applicable Purchased Loan and any Income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Section 5 of this Agreement) against the simultaneous transfer to an account of Buyer of the Repurchase Price, the amount, if any, payable by Seller in the event any Hedging Transaction related to such Purchased Loan is being terminated as of such date and any other amounts payable under this Agreement with respect to such Transaction.
(f) On any Remittance Date before the Repurchase Date, Seller shall have the right, from time to time, to transfer cash to Buyer for the purpose of reducing the Purchase Price and the Market Value for the related New Loans (such noticeof, but not terminating, a “Preliminary Approval”Transaction and without the release of any Collateral and without any prepayment fee or penalty.
(g) If prior to the first day of any Pricing Rate Period with respect to any Transaction, Buyer shall have determined in the exercise of its reasonable business judgment (which determination (with respect to subparagraph (i) only) shall be conclusive and binding upon Seller) that, (i) by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBO Rate for such Pricing Rate Period, or (ii) denythe LIBO Rate determined or to be determined for such Pricing Rate Period will not adequately and fairly reflect the cost to Buyer (as determined and certified by Buyer) of making or maintaining Transactions during such Pricing Rate Period, in Buyer’s sole and absolute discretion, Seller’s request for Buyer shall give telecopy or telephonic notice (with written notice to follow the applicable Transaction. Buyer’s failure to respond next Business Day) thereof to Seller within five as soon as practicable thereafter. If such notice is given, and provided Buyer shall be making the same determination generally on all of its similarly situated customers, the Pricing Rate with respect to such Transaction for such Pricing Rate Period, and for any subsequent Pricing Rate Periods until (51) Business Daysthe LIBO Rate is ascertainable for subsequent pricing periods (as determined by Buyer in the exercise of its reasonable business judgment) or (2) the LIBO Rate adequately and fairly reflects the cost to Buyer of making or maintaining Transactions during such Pricing Rate Period, as applicable, shall be deemed a per annum rate equal to be a denial the Federal Funds Rate plus 25 basis points (0.25%) plus the Applicable Spread (the “Alternative Rate”).
(h) Notwithstanding any other provision herein, if the adoption of Seller’s request or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for Buyer to effect Transactions as contemplated by the Transaction Documents, (a) the commitment of Buyer hereunder to enter into new Transactions shall forthwith be canceled, and (b) the proposed Transactions then outstanding shall be converted automatically to Alternative Rate Transactions on the last day of the then current Pricing Rate Period or within such earlier period as may be required by law. If any such conversion of a Transaction occurs on a day which is not the last day of the then current Pricing Rate Period with respect to such Transaction, unless Seller shall pay to Buyer and Seller have agreed otherwise in writingsuch amounts, if any, as may be required pursuant to Section 3(i) of this Agreement.
(ci) Upon Seller’s receipt written demand by Buyer, Seller shall indemnify Buyer and hold Buyer harmless from any net actual, out-of-pocket loss or expense (not to include any lost profit or opportunity) (including, without limitation, reasonable actual attorneys’ fees and disbursements) which Buyer sustains or incurs as a consequence of Buyer’s Preliminary Approval (i) default by the Seller in terminating any Transaction after the Seller has given a notice in accordance with respect to Section 3(d) hereof of a termination of a Transaction, (ii) any payment of the Repurchase Price on any day other than a Remittance Date or the Repurchase Date (including, without limitation, any such actual, out-of-pocket loss or expense arising from the reemployment of funds obtained by Buyer to maintain Transactions hereunder or from customary and reasonable fees payable to terminate the deposits from which such funds were obtained) or (iii) a default by Seller shallin selling Eligible Loans after Seller has notified Buyer of a proposed Transaction and Buyer has agreed to purchase such Eligible Loans in accordance with the provisions of this Agreement. A certificate as to such actual costs, if Seller desires losses, damages and expenses, setting forth the calculations therefor shall be submitted promptly by Buyer to enter into such Transaction Seller.
(j) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by any Governmental Authority or compliance by Buyer with any request or directive from any central bank or other Governmental Authority having jurisdiction over Buyer made subsequent to the date hereof:
(i) shall subject Buyer to any tax of any kind whatsoever with respect to the related New Loans upon Transaction Documents, any Purchased Loan or any Transaction, or change the terms set forth basis of taxation of payments to Buyer in respect thereof (except for income taxes and any changes in the rate of tax on Buyer’s overall net income); or
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of Buyer which is not otherwise included in the determination of the LIBO Rate hereunder; and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems, in the exercise of its reasonable business judgment, to be material, of entering into, continuing or maintaining Transactions or to reduce in a material manner any amount receivable under the Transaction Documents in respect thereof; then, in any such case and provided Buyer imposes such additional costs generally on all of its similarly situated customers, Seller shall promptly pay Buyer any additional amounts necessary to compensate Buyer for such increased cost or reduced amount receivable. If Buyer becomes entitled to claim any additional amounts pursuant to this Section 3(j), it shall notify Seller in writing of the event by reason of which it has become so entitled. Such notification as to the calculation of any additional amounts payable pursuant to this subsection shall be submitted by Buyer to Seller. This covenant shall survive the termination of this Agreement and the repurchase by Seller of any or all of the Purchased Loans.
(k) If Buyer shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof has the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its Preliminary Approvalobligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, deliver the documents set forth below in this Section 3(c) change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to each New Loan capital adequacy) by an amount deemed by Buyer, in the exercise of its reasonable business judgment, to be material, then from time to time, after submission by Buyer to Seller of a written request therefor, and related Eligible Property provided Buyer imposes such additional costs generally on all of its similarly situated customers, Seller shall pay to Buyer such additional amount or Properties (amounts as will compensate Buyer for such reduction. Such notification as to the extent not already delivered in the Preliminary Due Diligence Package or calculation of any additional amounts payable pursuant to a Supplemental Due Diligence List) as a condition precedent this subsection shall be submitted by Buyer to Buyer’s Final Approval Seller. This covenant shall survive the termination of this Agreement and issuance the repurchase by Seller of a Confirmation (as defined below), any or all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:of the Purchased Loans.
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approvalapproval in Buyer’s sole discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Loan if, immediately after the purchase of such New Loan, the Aggregate Repurchase Price (excluding including the proposed Purchase Price Differential with respect to the Purchased Loans as of the date of determinationsuch New Loan) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans as Buyer determines is reasonably necessarynecessary in Buyer’s sole discretion. Seller agrees to promptly reimburse Buyer promptly for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and or whether to reject any or all of the New Loans Loan proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionNew Loan, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List Package to evaluate such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New LoansLoan. Upon Buyer’s receipt of such additional Supplemental Due Diligence Materials Package or Buyer’s waiver thereof, Buyer shall shall, within five three (53) Business Days Days, either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans Loan (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five three (53) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Loan upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in its sole discretion (unless otherwise expressly provided below) and pursuant to documentation reasonably satisfactory to BuyerBuyer in its sole discretion:
Appears in 1 contract
Samples: Master Repurchase Agreement (Starwood Property Trust, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to one or more New LoansAssets. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approvalapproval in Xxxxx’s sole good faith discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, immediately after the purchase of such New Asset, the Aggregate Repurchase Price (excluding including the proposed Purchase Price Differential with respect to the Purchased Loans as of the date of determinationsuch New Asset) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, necessary in its Buyer’s sole and absolute good faith discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject any or all of the New Loans proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon BuyerXxxxx’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionNew Asset, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List Package to evaluate such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New LoansAsset. Upon Buyer’s receipt of such additional Supplemental Due Diligence Materials Package or Buyer’s waiver thereof, Buyer shall shall, within five (5) Business Days Days, either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute good faith discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan Asset and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in Buyer’s sole good faith discretion and pursuant to documentation reasonably satisfactory to Buyer in Buyer’s sole good faith discretion:
Appears in 1 contract
Samples: Tenth Omnibus Amendment to Transaction Documents (BrightSpire Capital, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that which has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds the Facility Amount. Buyer shall determine, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan. Buyer shall have the right to review all New Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject that it shall not purchase any or all of the New Loans proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed Transaction, Buyer shall have the right within two five (25) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereof, Buyer shall within five (5) Business Days either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing. Notwithstanding anything to the contrary herein, Buyer may deny, in Buyer’s sole and absolute discretion, Seller’s request for a Transaction at any time prior to the issuance of a Confirmation irrespective of Buyer’s request for additional Diligence Materials.”
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans upon the terms set forth by Buyer in with respect to its Preliminary Approvaldetermination of Market Value and Purchase Price for the related New Loans, deliver satisfy the documents conditions set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to October 25, 2014 (the Facility Termination “Outside Date”), request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approvalapproval in Buyer’s sole discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Loan if, immediately after the purchase of such New Loan, the Aggregate Repurchase Price (excluding including the proposed Purchase Price Differential with respect to the Purchased Loans as of the date of determinationsuch New Loan) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole discretion. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and or whether to reject any or all of the New Loans Loan proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionNew Loan, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List Package to evaluate such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New LoansLoan. Upon Buyer’s receipt of such additional Supplemental Due Diligence Materials Package or Buyer’s waiver thereof, Buyer shall shall, within five (5) Business Days Days, either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans Loan (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Loan upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in its sole discretion and pursuant to documentation reasonably satisfactory to Buyer in its sole discretion:
(i) Delivery of Purchased Loan Documents. Seller shall deliver to Buyer:: (A) with respect to any New Loan that is a Pre-Existing Loan, copies of the Purchased Loan Documents, except for such Purchased Loan Documents that were not in Seller’s possession; and (B) with respect to any New Loan that is an Originated Loan, drafts of the Purchased Loan Documents.
Appears in 1 contract
Samples: Master Repurchase Agreement
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior Subject to the Facility Termination Dateterms and conditions set forth in this Agreement (including, request that Buyer without limitation, the “Transaction Conditions Precedent” specified in Section 3(b) of this Agreement), an agreement to enter into a Transaction with respect to one or more New Loans. shall be made in writing at the initiation of Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to as provided below; provided, however, that the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with for all Purchased Loans which have Transactions shall not been repurchased by Seller hereunder exceeds exceed the Facility Amount. Seller shall give Buyer written notice of each proposed Transaction and Buyer shall inform Seller of its determination with respect to any assets proposed to be sold to Buyer by Seller solely in accordance with Exhibit VIII attached hereto. Buyer shall have the right to review all New Eligible Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans as Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in the exercise of its sole and absolute discretiongood faith business judgment, whether a New Loan qualifies as an Eligible Loan and whether to reject it will purchase any or all of the New Eligible Loans proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent (as hereinafter defined) shall have been satisfied (or waived by Buyer’s receipt ), Buyer shall promptly deliver to Seller a written confirmation in the form of Exhibit I attached hereto of each Transaction (a complete Preliminary Due Diligence Package “Confirmation”). Such Confirmation shall describe the Purchased Loans, shall identify Buyer and Seller, and shall set forth:
(i) the Purchase Date,
(ii) the Purchase Price for such Purchased Loans,
(iii) the Repurchase Date,
(iv) the Pricing Rate applicable to the Transaction (including the Applicable Spread) and
(v) any additional terms or conditions not inconsistent with this Agreement. Repurchase Agreement $400MM Facility With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on each Reset Date for the next succeeding Pricing Rate Period for such Transaction. Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Pricing Rate Determination Date for the related Pricing Rate Period and notify Seller of such rate for such period on the Reset Date. For purposes of this Section 3(b), the “Transaction Conditions Precedent” shall be deemed to have been satisfied with respect to a any proposed Transaction if:
(A) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction;
(B) Seller shall have certified to Buyer in writing the acquisition cost of such Securities (including therein reasonable supporting documentation required by the Buyer, if any);
(C) the representations and warranties made by Seller in any of the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction (except to the extent such representations and warranties are made as of a particular date); and
(D) Buyer shall have (I) determined, in accordance with the right within two applicable provisions of Section 3(a) of this Agreement, that the assets proposed to be sold to Buyer by Seller in such Transaction are Eligible Loans and (2II) obtained internal credit approval for the inclusion of such Eligible Loan as a Purchased Loan in a Transaction.
(c) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby unless specific objection is made no more than three (3) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate Days after the New Loansdate thereof. Upon Buyer’s receipt In the event of any conflict between the terms of such additional Diligence Materials Confirmation and the terms of this Agreement, the Confirmation shall prevail. An objection sent by Seller with respect to any Confirmation must state specifically that the writing is an objection, must specify the provision(s) of such Confirmation being objected to by Seller, must set forth such provision(s) in the manner that Seller believes such provisions should be stated, and must be received by Buyer no more than three (3) Business Days after such Confirmation is received by Seller.
(d) No Transaction shall be terminable on demand by Buyer (other than upon the occurrence and during the continuance of an Event of Default (other than with respect to Buyer)). Seller shall be entitled to terminate a Transaction on demand and repurchase the Purchased Loans subject to a Transaction in whole or Buyer’s waiver thereofin part on any Business Day prior to the Repurchase Date (an “Early Repurchase Date”); provided, however, that: Repurchase Agreement $400MM Facility
(i) Seller notifies Buyer shall within in writing of its intent to terminate such Transaction and repurchase such Purchased Loans no later than five (5) Business Days prior to such Early Repurchase Date,
(ii) on such Early Repurchase Date Seller pays to Buyer an amount equal to the sum of the Repurchase Price for such Transaction, the Exit Fee, if any, and any other amounts payable under this Agreement (including, without limitation, Section 3(i) of this Agreement) with respect to such Transaction against transfer to the Seller or its agent of such Purchased Loans, and
(iii) on such Early Repurchase Date, in addition, but after giving effect to the amounts set forth in subclause (ii) above, Seller pays to Buyer, on account of each Purchased Loan, an amount sufficient to reduce the Repurchase Price for each Purchased Loan to the Target Price for each such Purchased Loan. Such notice shall set forth the Early Repurchase Date and shall identify with particularity the Purchased Loans to be repurchased on such Early Repurchase Date.
(e) On the Repurchase Date, termination of the Transactions will be effected by transfer to Seller or its agent of the Purchased Loans and any Income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Section 5 of this Agreement) against the simultaneous transfer of the Repurchase Price to an account of Buyer.
(f) Seller shall pay to Buyer the Exit Fee with respect to any Purchased Loan if the related Transaction is terminated for any reason prior to the Repurchase Date agreed upon by Buyer and Seller; provided, that the Exit Fee shall be deemed waived by Buyer if the reason for the termination is any of
(1) principal payments (either prepayments or repayments) received on the Purchased Loan,
(2) the related Purchased Loan is included contemporaneously in a securitization transaction where DBSI is sole lead manager (or co-lead manager, provided the economics to DBSI are as outlined in an engagement letter for a collateralized debt obligation securitization transaction mutually acceptable to DBSI and the Sponsor) and sole bookrunner, or
(3) the occurrence of an Early Repurchase Date with respect to a Purchased Loan that has been the subject of a Margin Deficit where the related Market Value has decreased by more than 25% from such Market Value as of the related Purchase Date, or Repurchase Agreement $400MM Facility
(4) the occurrence of an event set forth in Section 3(j) or (k) below which results in an increased cost to Seller for the continuance of the related Transaction.
(g) If prior to the first day of any Pricing Rate Period with respect to any Transaction, (i) notify Buyer shall have determined in the exercise of its reasonable business judgment (which determination shall be conclusive and binding upon Seller) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBO Rate for such Pricing Rate Period, or (ii) the LIBO Rate determined or to be determined for such Pricing Rate Period will not adequately and fairly reflect the cost to Buyer (as reasonably determined and certified by Buyer) of making or maintaining Transactions during such Pricing Rate Period, Buyer shall give telecopy or telephonic notice thereof to Seller as soon as practicable thereafter. If such notice is given, the Pricing Rate with respect to such Transaction for such Pricing Rate Period, and for any subsequent Pricing Rate Periods until such notice has been withdrawn by Buyer, shall be a per annum rate equal to the Federal Funds Rate plus 125 basis points (1.25%) (the “Alternative Rate”).
(h) Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for Buyer to effect Transactions as contemplated by the Transaction Documents, (a) the commitment of Buyer hereunder to enter into new Transactions and to continue Transactions as such shall forthwith be canceled, and (b) the Transactions then outstanding shall be converted automatically to Alternative Rate Transactions on the last day of the then current Pricing Rate Period or within such earlier period as may be required by law.
(i) Upon demand by Buyer’s intent , Seller shall indemnify Buyer and hold Buyer harmless from any net loss or expense (not to proceed include any lost profit or opportunity) (including, without limitation, reasonable and documented attorneys’ fees and disbursements) which Buyer may sustain or incur as a consequence of (i) default by the Seller in terminating any Transaction after the Seller has given a notice in accordance with Section 3(d) of a termination of a Transaction, (ii) any payment of the Repurchase Price on any day other than a Remittance Date (including, without limitation, any such reasonable loss or expense arising from the reemployment of funds obtained by Buyer to maintain Transactions hereunder or from fees payable to terminate the deposits from which such funds were obtained) or (iii) a default by Seller in selling Eligible Loans after Seller has notified Buyer of a proposed Transaction and Buyer has agreed to purchase such Eligible Loans in accordance with the Transaction provisions of this Agreement. A certificate as to such costs, losses, damages and expenses, setting forth the calculations therefor shall be submitted promptly by Buyer to Seller and shall be prima facie evidence of its determination the information set forth therein.
(j) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by any Governmental Authority or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority having jurisdiction over Buyer made subsequent to the date hereof: Repurchase Agreement $400MM Facility
(i) shall subject Buyer to any tax of any kind whatsoever with respect to the Purchase Price Transaction Documents, any Purchased Loan or any Transaction, or change the basis of taxation of payments to Buyer in respect thereof (except for income taxes and any changes in the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or rate of tax on Buyer’s overall net income);
(ii) denyshall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of Buyer which is not otherwise included in the determination of the LIBO Rate hereunder; or
(iii) shall impose on Buyer any other condition; and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems, in the exercise of its reasonable business judgment, to be material, of entering into, continuing or maintaining Transactions or to reduce any amount receivable under the Transaction Documents in respect thereof; then, in any such case, Seller shall promptly pay Buyer’s sole and absolute discretion, Seller’s request upon its demand, any additional amounts necessary to compensate Buyer for such increased cost or reduced amount receivable. If Buyer becomes entitled to claim any additional amounts pursuant to this Section 3(j), it shall, within ten (10) Business Days of such event, notify Seller of the applicable Transactionevent by reason of which it has become so entitled. Buyer’s failure Such notification as to respond the calculation of any additional amounts payable pursuant to this subsection shall be submitted by Buyer to Seller within five (5) Business Days, as applicable, and shall be deemed to be a denial prima facie evidence of Seller’s request to enter into such additional amounts. This obligation of the proposed Transaction, unless Buyer Seller shall survive the termination of this Agreement and the repurchase by Seller have agreed otherwise in writingof any or all of the Purchased Securities and Purchased Loans.
(ck) Upon Seller’s receipt If Buyer shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof does or shall have the effect of reducing the rate of return on Buyer’s Preliminary Approval or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer, in the exercise of its reasonable business judgment, to be material, then from time to time, after submission by Buyer to Seller of a Transactionwritten request therefor, Seller shall, if Seller desires shall pay to enter into Buyer such Transaction with respect additional amounts as will compensate Buyer for such reduction. Such notification as to the related New Loans upon the terms set forth calculation of any additional amounts payable pursuant to this subsection shall be submitted by Buyer in its Preliminary Approval, deliver to Seller and shall be prima facie evidence of such additional amounts. This obligation of the documents set forth below in Seller shall survive the termination of this Section 3(c) with respect to each New Loan Agreement and related Eligible Property the repurchase by Seller of any or Properties (to all of the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:Purchased Loans. Repurchase Agreement $400MM Facility
Appears in 1 contract
Samples: Master Repurchase Agreement (CBRE Realty Finance Inc)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior Subject to the Facility Termination Dateterms and conditions set forth in this Agreement (including, request that Buyer without limitation, the Transaction Conditions Precedent specified in Section 3(b) of this Agreement), an agreement to enter into a Transaction with respect to one or more New Loans. shall be made in writing at the initiation of Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to as provided below; provided, however, that (i) the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the accrued Price Differential Differential) with respect to the Purchased Loans Assets as of the date of determinationdetermination for all Transactions shall not exceed the Facility Amount and (ii) that when combined the Buyer shall not have any obligation to enter into Transactions with all Purchased Loans the Seller after the date (the “Outside Purchase Date”) which have not been repurchased is six (6) months prior to the Repurchase Date (as same may be extended). Seller shall give Buyer written notice of each proposed Transaction and Buyer shall inform Seller of its determination with respect to any assets proposed to be sold to Buyer by Seller hereunder exceeds the Facility Amountsolely in accordance with Exhibit VIII attached hereto. Buyer shall have the right to review all New Loans Eligible Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Eligible Assets as Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in the exercise of its sole and absolute discretiongood faith business judgment, whether a New Loan qualifies as an Eligible Loan and whether to reject that it shall or shall not purchase any or all of the New Loans assets proposed to be sold to Buyer by Seller. It shall be an additional condition precedent to any Transaction that all Eligible Assets sold to Buyer in Transactions will comply with the conditions set forth on Schedule I attached to this Agreement. On the Purchase Date for the Transaction which shall have no obligation be on a date mutually agreed upon by Buyer and Seller following the approval of an Eligible Asset by Buyer in accordance with Exhibit VIII hereto, each Purchased Asset shall be transferred to consider for purchase any New Loans proposed by Seller after Buyer or its agent against the original Facility Termination Date or during transfer of the Facility Extension Period (if applicable)Purchase Price to an account of Seller.
(b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent (as hereinafter defined) shall have been satisfied (or waived by Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed Transaction), Buyer shall have promptly deliver to Seller a written confirmation in the right within two form of Exhibit I attached hereto of each Transaction (2) Business Daysa “Confirmation”). Such Confirmation shall describe each Purchased Asset (including, to request in a Supplemental Due Diligence List such additional Diligence Materials for any Purchased Securities, the CUSIP number, if any), shall identify Buyer and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereofSeller, Buyer and shall within five (5) Business Days either set forth:
(i) the Purchase Date,
(ii) the Purchase Price for such Purchased Asset,
(iii) the Repurchase Date,
(iv) the Pricing Rate applicable to the Transaction (including the Applicable Spread), and
(v) any additional terms or conditions not inconsistent with this Agreement. With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on the Pricing Rate Determination Date for each succeeding Pricing Rate Period for such Transaction. Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Pricing Rate Determination Date for the related Pricing Rate Period and notify Seller of Buyer’s intent to proceed with the such rate for such period. The “Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, Conditions Precedent” shall be deemed to have been satisfied with respect to any proposed Transaction if:
(A) no Default or Event of Default (in each case, other than with respect to Buyer) under this Agreement shall have occurred and be a denial continuing as of Seller’s request to enter into the Purchase Date for such proposed Transaction;
(B) Seller shall have certified to Buyer in writing the acquisition cost of each applicable Purchased Asset (including therein reasonable supporting documentation required by the Buyer, unless if any);
(C) the representations and warranties made by Seller in each of the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction (except to the extent such representations and warranties are made as of a particular date);
(D) Buyer shall have (A) determined, in accordance with the applicable provisions of Section 3(a) of this Agreement, that each applicable Purchased Asset proposed to be sold to Buyer by Seller in such Transaction is an Eligible Asset and (B) obtained internal credit approval for the inclusion of such Eligible Asset in a Transaction; and
(E) no Material Adverse Change shall have occurred with respect to Seller have agreed otherwise in writingor Sponsor.
(c) Upon Seller’s receipt Each Confirmation, together with this Agreement, shall be conclusive evidence of Buyer’s Preliminary Approval the terms of the Transaction(s) covered thereby unless specific objection is made no less than three (3) Business Days after the date thereof. In the event of any conflict between the terms of such Confirmation and the terms of this Agreement, the Confirmation shall prevail. An objection sent by Seller with respect to any Confirmation must state specifically that the writing is an objection, must specify the provision(s) of such Confirmation being objected to by Seller, must set forth such provision(s) in the manner that Seller believes such provisions should be stated, and must be received by Buyer no more than three (3) Business Days after such Confirmation is received by Seller.
(d) No Transaction shall be terminable on demand by Buyer (other than upon the occurrence and during the continuance of an Event of Default by Seller). Seller shall be entitled to terminate a TransactionTransaction on demand, in whole or in part, and repurchase any or all of the Purchased Assets subject to a Transaction on any Business Day prior to the Repurchase Date (an “Early Repurchase Date”); provided, however, that:
(i) Seller shall, if Seller desires notifies Buyer in writing of its intent to enter into terminate such Transaction and repurchase such Purchased Assets no later than three (3) Business Days prior to such Early Repurchase Date,
(ii) on such Early Repurchase Date Seller pays to Buyer an amount equal to the sum of the Repurchase Price for such Transaction and any other amounts payable under this Agreement (including, without limitation, under Section 3(i) of this Agreement) with respect to such Transaction against transfer to the related New Loans Seller or its agent of such Purchased Asset(s), and
(iii) on such Early Repurchase Date, in addition to the amounts set forth in subclause (ii) above, Seller pays to Buyer, on account of each Purchased Asset not subject to termination, an amount sufficient to reduce the Repurchase Price (excluding accrued Price Differential) for each Purchased Asset to the Target Price for such Purchased Asset. Such notice shall set forth the Early Repurchase Date and shall identify with particularity the Purchased Asset(s) to be repurchased on such Early Repurchase Date.
(e) On the Repurchase Date, termination of the Transactions will be effected by transfer to Seller or its agent of the Purchased Assets and any Income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Section 5 of this Agreement) against the simultaneous transfer of the Repurchase Price to an account of Buyer. Notwithstanding the foregoing, Seller shall have the right to extend the Repurchase Date with respect to all of the Transactions for one (1) additional period of twelve (12) months (the “Extension Term), upon all of the terms and conditions of this Agreement, provided that each of the following “Extension Conditions” shall have been satisfied:
(i) Seller shall have given Buyer written notice (the “Extension Notice”), not less than sixty (60) days prior to the originally scheduled Repurchase Date, of Seller’s desire to extend the Repurchase Date,
(ii) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the originally scheduled Repurchase Date,
(iii) Seller shall have paid Buyer an extension fee in an amount equal to the product of (A) twenty-five basis points (0.25%) and (B) the Facility Amount (as same may have been reduced pursuant to the last sentence of this Section 3(e) below) (the “Extension Fee”),
(iv) in addition to the amounts set forth in subclause (iii) above, Seller pays to Buyer, on account of each Purchased Asset, an amount sufficient to reduce the Repurchase Price (excluding accrued Price Differential) for each Purchased Asset to the Target Price for each such Purchased Asset; and
(v) unless otherwise agreed to in writing by Buyer in its Preliminary Approvalsole discretion, deliver the documents set forth below in average Undrawn Balance for the prior twelve (12) calendar months shall not be greater than $75,000,000 (except if Seller has exercised its right to reduce the Facility Amount as provided below). In the event the Repurchase Date is extended pursuant to this Section 3(c) with respect 3(e), then Seller shall be required to each New Loan and related Eligible Property or Properties terminate all Transactions by paying the Repurchase Price of all Transactions on the Repurchase Date (as so extended). In addition, if the Repurchase Date is extended pursuant to this Section 3(e), the Outside Purchase Date shall also be extended to the extent date which is six (6) months prior to the Repurchase Date (as so extended) unless Seller shall request in writing in its notice delivered under clause (i) above that the Outside Purchase Date not already delivered be so extended. Seller may elect to reduce the Facility Amount for the Extension Term (but not before) by up to $75,000,000 (but to an amount not less than the aggregate Repurchase Price (excluding Price Differential) for all Purchased Assets then subject to Transactions hereunder) by delivering notice of its election to so reduce the Facility Amount in the Preliminary Due Diligence Package or pursuant Extension Notice.
a) Seller shall be required to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory pay the Facility Fee to Buyer and pursuant to documentation reasonably satisfactory to Buyer:on the date hereof.
Appears in 1 contract
Samples: Master Repurchase Agreement (Resource Capital Corp.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of 2.1 Subject to the terms and conditions set forth in this Agreement (including, without limitation, the “Initiation; Confirmation; Termination”) are hereby deleted and replaced Transaction Conditions Precedent” specified in their respective entireties by the following provisions Section 2.2 of this Section 3:
(aAgreement) Seller may, the Buyers shall from time to time, prior to the Facility Termination Date, request that Buyer time separately enter into a Transaction Transactions with respect Seller on any Business Day from and including the Closing Date to one or more New Loans. but excluding the Termination Date and pursuant to any such Transaction, Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review be entitled to sell, repurchase and approval. Notwithstanding anything to re-sell any assets in accordance with this Agreement; provided, however, that the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Xxxxxxxxxx Price (excluding Exit Fees and the Price Differential with respect to the Purchased Loans Assets as of the date of determination) that when combined with for all Purchased Loans which have Transactions shall not been repurchased by Seller hereunder exceeds exceed the Maximum Facility Amount. An agreement to enter into a Transaction shall be made in writing at the initiation of Seller as provided below. Seller shall give the Buyer written notice of each proposed Transaction and the Buyer shall inform Seller of their determination with respect to any assets proposed to be sold to the Buyer by Seller solely in accordance with Exhibit VII attached hereto. The Buyer shall have the right to review all New Eligible Loans and Eligible Securities proposed to be sold to the Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans and Eligible Securities as the Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, The Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject that they shall not purchase any or all of the New Loans Assets proposed to be sold to the Buyer by Seller. On the Purchase Date for the Transaction, which shall be no later than fifteen (15) days after Seller has received the notice of approval of the request for transaction in accordance with Exhibit VII attached hereto and at least two (2) Business Days from the date upon which the Confirmation is fully executed by Seller and the Buyer, provided each of the Transaction Conditions Precedent shall have been satisfied (or waived by the Buyer), the Purchased Assets shall be transferred to the Buyer or its agent against the transfer of the Purchase Price to an account of Seller. On each Subsequent Purchase Date, which shall be no less man two (2) Business Days following the date upon which the Confirmation is fully executed by the Buyer and Seller in accordance with Exhibit VII attached hereto, provided each of the Transaction Conditions Precedent shall have been satisfied (or waived by the Buyer), the Buyer shall have no obligation transfer to consider for purchase the account of Seller all or the portion of the Contingent Purchase Price requested in such Confirmation. Upon the execution and delivery of any New Loans proposed by Seller after such Confirmation in connection with a Subsequent Purchase Date, such Confirmation shall supercede any previous confirmation executed and delivered in respect of the original Facility Termination Date or during the Facility Extension Period (if applicable)relevant Purchased Asset.
2.2 Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent shall have been satisfied (bor waived by the Buyer), Seller shall prepare and Seller and the Buyer shall execute a written confirmation in the form of Exhibit I attached hereto of each Transaction (a “Confirmation”) Upon Buyer’s receipt and follow all other Transaction procedures described in Exhibit VII attached hereto. In the absence of execution and delivery by the Buyer of a complete Preliminary Due Diligence Package separate Confirmation with respect to each Purchased Asset which is the subject of a proposed Transaction, Buyer shall under no circumstances be deemed to have agreed to enter into such Transaction or purchase such Purchased Asset. With respect to any Transaction, the right within Pricing Rate shall be determined initially on the Purchase Date applicable to such Transaction, and shall be reset on each Reset Date for the related Pricing Rate Period. The Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Reset Date for the related Pricing Rate Period and notify Seller and Custodian of such rate for such period on the Reset Date. For purposes of this Agreement, the “Transaction Conditions Precedent” shall be deemed to have been satisfied with respect to any proposed Transaction if:
(a) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction;
(b) the representations and warranties made by Seller in each of the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction;
(c) no Margin Deficit shall exist, either immediately prior to or after giving effect to the requested Transaction;
(d) none of the following shall have occurred and be continuing:
(i) an event or events shall have occurred in the determination of Buyer resulting in the effective absence of a “repo market” or related “lending market” for purchasing (subject to repurchase) or financing debt obligations secured by commercial mortgage loans or securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Assets through the “repo market” or “lending market” with traditional counterparties at rates which would have been commercially reasonable prior to the occurrence of such event or events; or
(ii) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by Purchased Assets or an event or events shall have occurred resulting in the Buyer not being able to sell securities backed by Purchased Assets at prices which would have been commercially reasonable prior to such event or events; or
(iii) there shall have occurred a material adverse change in the “repo market” or comparable “lending market” which affects (or can reasonably be expected to affect) materially and adversely the ability of Seller to fund its obligations under this Agreement;
(e) the Buyer shall have received, reviewed and approved the applicable Diligence Materials, the Purchased Asset Documents and any source documentation or supporting information referenced therein, including without limitation third party reports and, in the case of CMBS securities, any related rating letters, private and public placement memoranda, and trustee reports;
(f) the Buyer’s counsel shall have completed in full any legal review requested by the Buyer;
(g) the Buyer shall have (A) determined, in accordance with the applicable provisions of Section 2.1 of this Agreement, that the assets proposed to be sold to the Buyer by Seller in such Transaction are Eligible Assets, (B) determined that the Purchase Price of no single asset proposed to be sold to the Buyer by Seller in such Transaction exceeds 10% of the Maximum Facility Amount (unless otherwise approved by the Buyer in its sole discretion), (C) completed all legal due diligence in respect of such Eligible Securities and/or Eligible Loans and (D) obtained internal credit approval for the inclusion of such Eligible Securities and/or Eligible Loans as Purchased Assets in a Transaction;
(h) the (i) Purchase Price of any Purchased Asset sold to the Buyer under the Agreement on any Purchase Date shall not be less than $1,000,000 and (ii) the portion of the Contingent Purchase Price related to any Purchased Asset paid by the Buyer to Seller on any Purchase Date shall not be less than $1,000,000;
(i) Reserved;
(j) the Buyer shall have received the Custodial Agreement, executed and delivered by an authorized officer of each of the parties thereto;
(k) the Buyer shall have received the Guarantee, executed and delivered by an authorized officer of Guarantor, and the Guarantee shall be in the form attached hereto as Exhibit XI;
(1) the Buyer shall have received an opinion of counsel to Seller with respect to due authorization, execution and delivery and enforceability and the perfection of the Buyer’s security interests in the New Assets, and such opinion shall be satisfactory to the Buyer in form and substance;
(m) with respect to each Purchased Loan that is not a Table Funded Purchased Loan, the Buyer shall have received a Trust Receipt from the Custodian, and with respect to each Table Funded Purchased Loan, the Buyer shall have received an executed Bailee Agreement and a Trust Receipt (as defined in such Bailee Agreement) from the Settlement Agent; and
(n) with respect to any Purchased Asset that is acquired by Seller from an Affiliate of Seller, the Buyers shall have received the written agreement of such Affiliate (i) consenting to Seller’s pledge of such Purchased Asset and any Collateral related thereto to each Buyer under this Agreement and (ii) agreeing that, if the transfer by such Affiliate to Seller is deemed to be a loan by Seller to such Affiliate, such Affiliate’s rights in respect of such Purchased Asset and any Collateral related thereto shall be subject and subordinate to the rights of the Buyers under this Agreement.
2.3 Upon execution by the Buyer, each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby.
2.4 No Transaction shall be terminable on demand by the Buyer, other than (1) upon the occurrence and during the continuance of an Event of Default by Seller and/or (2) to the extent of such Eligible Assets, with respect to any Eligible Assets that become delinquent, defaulted or similarly affected, as determined in the Buyer’s sole discretion. Seller shall be entitled to (and shall, in the event demand is given by the Buyer pursuant to the immediately preceding sentence, in accordance with the Buyer’s demand) terminate a Transaction in whole or in part on demand and repurchase all or a portion of the Purchased Assets subject to a Transaction on any Business Day prior to the Repurchase Date (an “Early Repurchase Date”); provided, however, that:
(a) Seller repurchases on such Early Repurchase Date, all or the portion of the Purchased Assets subject to such Transaction which Seller has elected to repurchase;
(b) Seller notifies the Buyer in writing of its intent to terminate such Transaction and repurchase such Purchased Assets no less than two (2) Business Days, Days prior to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereof, Buyer shall within five (5) Business Days either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.Early Repurchase Date;
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transactionon such Early Repurchase Date, Seller shall, if Seller desires pays to enter into the Buyer an amount equal to the sum of the Repurchase Price for such Transaction with respect (or, in the case of a termination of a Transaction in part an amount acceptable to the related New Loans upon the terms set forth by Buyer in its Preliminary Approvalsole discretion, deliver the documents set forth below in but not more than such Repurchase Price), and any other amounts payable under this Agreement (including, without limitation, Section 3(c2.11 of this Agreement) with respect to each New Loan and related Eligible Property such Transaction against transfer to Seller or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance its agent of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:such Purchased Assets; and
Appears in 1 contract
Samples: Master Repurchase Agreement (CBRE Realty Finance Inc)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, On or after the Initial Commitment Commencement Date and prior to the Facility Termination DateCommitment Expiration Date and subject to the terms and conditions set forth in this Agreement (including, request that Buyer without limitation, the “Transaction Conditions Precedent” specified in Section 3(b) of this Agreement), one or more proposals to enter into a Transaction with respect to one or more New Loans. may be requested by Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to as provided below; provided, however, that the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate of the Repurchase Price Prices (excluding the Other Price Differential with respect to the Purchased Loans as of the date of determinationComponents) that when combined with for all Purchased Loans Transactions purchased hereunder and outstanding at any one time (i.e., which shall not then have not been repurchased by Seller hereunder exceeds Seller) shall not exceed the Facility Amount. Seller shall give Buyer written notice of each proposed Transaction and Buyer shall inform Seller of its determination with respect to any assets proposed to be sold to Buyer by Seller solely in accordance with Exhibit VIII attached hereto. Buyer shall have the right to review all New Eligible Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans as Buyer determines is reasonably necessaryin good faith. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject any or all of the New Loans proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed Transaction, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereof, Buyer shall within Within five (5) Business Days either (i) notify after Seller’s certification to Buyer that Seller of Buyer’s intent has delivered to proceed with the Transaction Buyer all Diligence Materials and of its determination other required documentation with respect to any Loan(s) Seller requests Buyer to consider for purchase under the Purchase Price and the Market Value for the related New Loans (such noticeterms of this Agreement, a “Preliminary Approval”) or (ii) deny, in Buyer agrees to provide Seller with Buyer’s sole and absolute discretion, Sellerdetermination of the completeness of the Diligence Materials including Buyer’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval any additional or missing documentation with respect to a Transaction, Seller shallsuch Loan(s), if any. Seller desires to enter into shall provide Buyer with any such Transaction with respect to the related New Loans upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(cadditional or missing documentation within three (3) with respect to each New Loan and related Eligible Property or Properties Business Days after request thereof (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below“Additional Submission”), all in a manner reasonably satisfactory and Buyer agrees to Buyer and pursuant to provide Seller with confirmation of the completeness of such documentation reasonably satisfactory to Buyer:(or notice of such missing or
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Each Seller may, from time to time, prior to time during the Facility Termination DateRevolving Period, request that Buyer enter into a Transaction with respect to one or more New LoansMortgage Loans proposed to be sold to Buyer by such Seller. Such Seller shall initiate each request by submitting the Purchased Loan Information for each Mortgage Loan (a Preliminary Due Diligence Package “Transaction Request”) to Repo Agent for BuyerRepo Agent’s review and approval. Notwithstanding anything All fundings are subject to Repo Agent’s approval in its sole and absolute discretion. This Agreement is not a commitment by Xxxxx to enter into Transactions with either Seller but rather sets forth the contrary herein, procedures to be used in connection with periodic requests for Buyer shall have to enter into Transactions with each Seller. Each Seller hereby acknowledges that Buyer is under no obligation to consider for agree to enter into, or to enter into, any Transaction, to purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds the Facility AmountMortgage Loan. Buyer and its representatives shall have the right to review all New Mortgage Loans proposed to be sold to Buyer in connection with any Transaction and to conduct its own due diligence investigation of such New Loans Mortgage Loans, pursuant to Section 20, as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole and absolute discretion. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer or Repo Agent shall be entitled to make a determination, in its sole and absolute discretion, whether a New Mortgage Loan qualifies as an Eligible Loan Loan, and whether to reject any or all request to purchase such Mortgage Loan. The Aggregate Repurchase Price of the New Purchased Loans proposed subject to be sold to Buyer by Seller. Buyer outstanding Transactions shall have no obligation to consider for purchase not at any New Loans proposed by Seller after the original Facility Termination Date or during time exceed the Facility Extension Period (if applicable)Amount.
(b) Upon Buyer’s receipt of If a complete Preliminary Due Diligence Package with respect Seller submits a Transaction Request to Repo Agent before 10:00 a.m. (New York City time) on a proposed TransactionBusiness Day during the Revolving Period, Buyer Repo Agent shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate Days (excluding the New Loans. Upon Buyer’s receipt day of such additional Diligence Materials or Buyer’s waiver thereofreceipt), Buyer shall within five (5) Business Days either (i) notify such Seller of Buyer’s intent to proceed with the Transaction Transaction, subject to the terms and conditions of this Agreement, and of its determination with respect to the Purchase Price and the Market Asset Value for the related New Loans Mortgage Loan (such notice, a “Preliminary Approval”) or (ii) deny, in BuyerRepo Agent’s sole and absolute discretion, such Seller’s request for the applicable Transaction. BuyerRepo Agent’s failure to respond to such Seller within five two (52) Business Days, as applicable, Days shall be deemed to be a denial of such Seller’s request to enter into the proposed Transaction, unless Buyer Repo Agent and such Seller have agreed otherwise in writing.
(c) Upon a Seller’s receipt of BuyerRepo Agent’s Preliminary Approval with respect to a Transaction, such Seller shall, if such Seller desires to enter into such Transaction with respect to the related New Loans Mortgage Loan, upon the terms set forth by Buyer Repo Agent in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Mortgage Loan and related Eligible Mortgaged Property or Mortgaged Properties (to the extent applicable and not already delivered to Buyer or Custodian in connection with Repo Agent’s review of the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence Listproposed Transaction) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer Repo Agent in its sole and absolute discretion and pursuant to documentation reasonably satisfactory to BuyerRepo Agent in its sole and absolute discretion:
Appears in 1 contract
Samples: Master Repurchase Agreement (Angel Oak Mortgage, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, may prior to the Facility Termination Date, from time to time request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request Assets by submitting a Preliminary Due Diligence Package for Buyer’s review and approval, which approval shall be in Buyer’s sole discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, immediately after the purchase of such New Asset, the Aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees necessary in Buyer’s sole discretion, including, without limitation, any applicable lender licensee requirements with respect to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofany New Asset. Notwithstanding any provision to the contrary herein or in any other Transaction Document, Buyer shall be entitled to make a determinationdetermine, in its sole and absolute discretion, whether a New Loan Asset qualifies as an Eligible Loan and Asset or whether to reject any or all of the New Loans Asset proposed to be sold to Buyer by Seller. Notwithstanding anything in this Agreement to the contrary, prior to Seller requesting Buyer enter into a Transaction (or, for the avoidance of doubt, Buyer entering into any Transaction) with respect to one or more New Assets that consist of any Mezzanine Loan or Mezzanine Loans, Buyer shall have no obligation receive an opinion of counsel in form and substance satisfactory to consider Buyer as to the safe harbor treatment for purchase any New Loans proposed by Seller after “securities contracts” and “master netting agreements” under the original Facility Termination Date or during the Facility Extension Period (if applicable)Bankruptcy Code covering mezzanine loans.
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionPackage, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary Package to properly evaluate the New Loansproposed Transaction. Upon Buyer’s receipt or waiver of such additional Supplemental Due Diligence Materials or Buyer’s waiver thereofPackage, Buyer shall shall, in its sole discretion, within five (5) Business Days Days, either (i) notify Seller of Buyer’s its intent to proceed with the Transaction and of together with its determination with respect to of the Purchase Price and the Market Value for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, deny Seller’s request for the applicable Transactionrequest. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, Days shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its the Preliminary Approval, deliver the documents set forth below in this Section 3(c3(c) with respect to each New Loan Asset and related Eligible Property or Eligible Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s a Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in its sole discretion and pursuant to documentation reasonably satisfactory to BuyerBuyer in its sole discretion:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Ares Commercial Real Estate Corp)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior Subject to the Facility Termination Dateterms and conditions set forth in this Agreement (including, request that Buyer without limitation, the “Transaction Conditions Precedent” specified in Section 3(b) of this Agreement), an agreement to enter into a Transaction with respect to one or more New Loans. shall be made in writing at the initiation of Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to as provided below; provided, however, that (i) the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans Securities as of the date of determination) that when combined with for all Purchased Loans which have Transactions shall not been repurchased by Seller hereunder exceeds exceed the Facility Amount. Amount and (ii) the Buyer shall not have any obligation to enter into a Transaction with the right Seller (A) after the three year anniversary date of the date of this Agreement or (B) more than one time with respect to review the Eligible CRIIMI Securities and the Eligible GNMA Securities (i.e. the Seller may not sell, repurchase and resell). For all New Loans purposes of this Agreement, each of the Transactions with respect to the Eligible CRIIMI Securities as a whole and the Eligible GNMA Securities as a whole shall be deemed the subject of individual separate Transactions. Seller shall give Buyer written notice of each proposed to Transaction. On the Purchase Date for a Transaction, the Purchased Securities shall be sold transferred to Buyer in any Transaction and to conduct or its own due diligence investigation of such New Loans as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to designee against the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject any or all transfer of the New Loans proposed Purchase Price to be sold to Buyer by an account of Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Provided each of the Transaction Conditions Precedent (as hereinafter defined) shall have been satisfied (or waived by Buyer’s receipt ), Buyer shall promptly deliver to Seller a written confirmation in the form of Exhibit I attached hereto of each Transaction (a complete Preliminary Due Diligence Package “Confirmation”). Such Confirmation shall describe the Purchased Securities (including CUSIP number, if any), shall identify Buyer and Seller, and shall set forth:
(i) the Purchase Date,
(ii) the Purchase Price for such Purchased Securities,
(iii) the Repurchase Date,
(iv) the Pricing Rate applicable to the Transaction (including the Applicable Spread) and
(v) any additional terms or conditions not inconsistent with this Agreement. With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on each Reset Date for the next succeeding Pricing Rate Period for such Transaction. Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Pricing Rate Determination Date for the related Pricing Rate Period and notify Seller of such rate for such period on the Reset Date. For purposes of this Section 3(b), the “Transaction Conditions Precedent” shall be deemed to have been satisfied with respect to a any proposed Transaction if:
(A) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction;
(B) the representations and warranties made by Seller and Sponsor in the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction (except to the extent such representations and warranties are made as of a particular date); and
(C) the aggregate Purchase Price with respect to the Eligible CRIIMI Securities and the Eligible GNMA Securities shall not exceed $42,000,000 and $53,000,000, Buyer respectively, without the prior written approval of the Buyer.
(c) Absent manifest error, each Confirmation, together with this Agreement, shall have be conclusive evidence of the right within two terms of the Transaction(s) covered thereby unless specific objection is made by Seller no less than three (23) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate Days after the New Loansdate thereof. Upon Buyer’s receipt In the event of any conflict between the terms of such additional Diligence Materials Confirmation and the terms of this Agreement, this Agreement shall prevail. An objection sent by Seller with respect to any Confirmation must state specifically that the writing is an objection, must specify the provision(s) of such Confirmation being objected to by Seller, must set forth such provision(s) in the manner that Seller believes such provisions should be stated, and must be received by Buyer no more than three (3) Business Days after such Confirmation is received by Seller.
(d) No Transaction shall be terminable on demand by Buyer (other than upon the occurrence and during the continuance of an Event of Default by Seller). Seller shall be entitled to terminate a Transaction on demand and repurchase all of the Purchased Securities subject to a Transaction (or Buyer’s waiver thereofin the case of the Transaction with respect to the Eligible CRIIMI Securities, the Class B Certificate and/or the Class E Securities) on any Business Day prior to the Repurchase Date (an “Early Repurchase Date”); provided, however, that:
(i) Seller repurchases on such Early Repurchase Date, all of the Purchased Securities subject to such Transaction,
(ii) Seller notifies Buyer shall within in writing of its intent to terminate such Transaction and repurchase such Purchased Securities no later than five (5) Business Days either prior to such Early Repurchase Date,
(iii) on such Early Repurchase Date Seller pays to Buyer an amount equal to the sum of the Repurchase Price for such Transaction, the Exit Fee, if any, and any other amounts payable under this Agreement (including, without limitation, Section 3(i) of this Agreement) with respect to such Transaction against transfer to the Seller or its agent of such Purchased Securities, and
(iv) in the event the Transaction being terminated on demand relates to the Eligible GNMA Securities, then on such Early Repurchase Date, in addition to the amounts set forth in subclause (iii) above, Seller pays to Buyer, on account of each Purchased Security that is an Eligible CRIIMI Security, an amount sufficient to eliminate any Margin Deficit or CF Sweep Event. Such notice shall set forth the Early Repurchase Date and shall identify with particularity the Purchased Securities to be repurchased on such Early Repurchase Date.
(e) On the Repurchase Date, termination of the Transactions will be effected by transfer to Seller or its agent of the Purchased Securities and any Income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Section 5 of this Agreement) against the simultaneous transfer of the Repurchase Price to an account of Buyer. Notwithstanding the foregoing, provided all of the Extension Conditions (as hereinafter defined) shall have been satisfied, the Repurchase Date shall be extended with respect to all of the Transactions until the first (1st) anniversary of the originally scheduled Repurchase Date (all of the other terms and conditions of such Transactions remaining the same). For purposes of the preceding sentence, the “Extension Conditions” shall be deemed to have been satisfied if:
(i) notify Seller shall have given Buyer written notice, not less than thirty (30) days prior to the originally scheduled Repurchase Date, of BuyerSeller’s intent desire to proceed extend the Repurchase Date,
(ii) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the originally scheduled Repurchase Date, and
(iii) Seller shall have paid Buyer an extension fee in an amount equal to 0.15% (15 basis points) of the aggregate outstanding Repurchase Price of all Transactions for Eligible CRIIMI Securities as of the originally scheduled Repurchase Date. In the event the Repurchase Date is extended pursuant to this Section 3(e), then Seller shall be required to (i) terminate all Transactions in part by paying 25% of the aggregate outstanding Repurchase Price, determined as of the originally scheduled Repurchase Date, by not later than each of the Remittance Dates occurring in September and December of 2007 and March of 2008 (i.e. pay 50% of such aggregate outstanding Repurchase Price by the December 2007 Remittance Date, etc.) (including, without limitation, by terminating Transactions on demand on Early Repurchase Dates pursuant to Section 3(d)) and (ii) pay any unpaid portion of the Repurchase Price of all Transactions on the Repurchase Date.
(f) In the event a Transaction for Eligible CRIIMI Securities is terminated prior to the related Repurchase Date, the Seller shall pay Buyer the Exit Fee on the related Early Repurchase Date; provided, that notwithstanding the foregoing, (1) the Exit Fee shall be waived if the reason for the early termination is the related Eligible CRIIMI Security is, simultaneous with the early termination, included in a collateralized debt obligation transaction in which Deutsche Bank Securities Inc. or an Affiliate thereof acts a sole lead manager and sole bookrunner and (2) no Exit Fee shall be due and payable in connection with (i) any principal payments made on the Eligible CRIIMI Securities, (ii) partial terminations pursuant to Section 3(e) or (iii) a transfer pursuant to Section 14(b) hereof.
(g) If prior to the first day of any Pricing Rate Period with respect to any Transaction, (i) Buyer shall have determined in the exercise of its reasonable business judgment (which determination shall be conclusive and binding upon Seller) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBO Rate for such Pricing Rate Period, or (ii) the LIBO Rate determined or to be determined for such Pricing Rate Period will not adequately and fairly reflect the cost to Buyer (as determined and certified by Buyer) of making or maintaining Transactions during such Pricing Rate Period, Buyer shall give telecopy or telephonic notice thereof to Seller as soon as practicable thereafter. If such notice is given, the Pricing Rate with respect to such Transaction for such Pricing Rate Period, and for any subsequent Pricing Rate Periods until such notice has been withdrawn by Buyer, shall be a per annum rate equal to the U.S. Federal Funds Rate plus 125 basis points (1.25%) (the “Alternative Rate”).
(h) Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for Buyer to effect Transactions as contemplated by the Transaction Documents, (a) the commitment of Buyer hereunder to enter into new Transactions and to continue Transactions as such shall forthwith be canceled, and (b) the Transactions then outstanding shall be converted automatically to Alternative Rate Transactions on the last day of the then current Pricing Rate Period or within such earlier period as may be required by law. If any such conversion of a Transaction occurs on a day which is not the last day of the then current Pricing Rate Period with respect to such Transaction, Seller shall pay to Buyer such amounts, if any, as may be required pursuant to Section 3(i) of this Agreement.
(i) Upon demand by Buyer, Seller shall indemnify Buyer and hold Buyer harmless from any net loss or reasonable expense (not to include any lost profit or opportunity) (including, without limitation, reasonable attorneys’ fees and disbursements) which Buyer may sustain or incur as a consequence of (i) default by the Seller in terminating any Transaction after the Seller has given a notice in accordance with Section 3(d) of a termination of a Transaction, (ii) any payment of the Repurchase Price on any day other than a Remittance Date (including, without limitation, any such reasonable loss or expense arising from the reemployment of funds obtained by Buyer to maintain Transactions hereunder or from fees payable to terminate the deposits from which such funds were obtained) or (iii) a default by Seller in selling Eligible CRIIMI Securities or Eligible GNMA Securities after Seller has notified Buyer of a proposed Transaction and Buyer has agreed to purchase such Eligible CRIIMI Securities or Eligible GNMA Securities in accordance with the provisions of its determination this Agreement. A certificate as to such costs, losses, damages and expenses, setting forth the calculations therefor shall be submitted promptly by Buyer to Seller and shall be prima facie evidence of the information set forth therein absent manifest error.
(j) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by any Governmental Authority or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority having jurisdiction over Buyer made subsequent to the date hereof:
(i) shall subject Buyer to any tax of any kind whatsoever with respect to the Purchase Price Transaction Documents, any Purchased Security or any Transaction, or change the basis of taxation of payments to Buyer in respect thereof (except for income taxes and any changes in the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or rate of tax on Buyer’s overall net income);
(ii) denyshall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of Buyer which is not otherwise included in the determination of the LIBO Rate hereunder; or
(iii) shall impose on Buyer any other condition; and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems, in the exercise of its reasonable good faith business judgment, to be material, of entering into, continuing or maintaining Transactions or to reduce any amount receivable under the Transaction Documents in respect thereof; then, in any such case, Seller shall promptly pay Buyer’s sole and absolute discretion, Seller’s request upon its demand, any additional amounts necessary to compensate Buyer for such increased cost or reduced amount receivable. If Buyer becomes entitled to claim any additional amounts pursuant to this Section 3(j), it shall, within ten (10) Business Days of such event, notify Seller of the applicable Transactionevent by reason of which it has become so entitled. Buyer’s failure Such notification as to respond the calculation of any additional amounts payable pursuant to this subsection shall be submitted by Buyer to Seller within five (5) Business Days, as applicable, and shall be deemed to be a denial prima facie evidence of Seller’s request to enter into such additional amounts absent manifest error. This covenant shall survive the proposed Transaction, unless Buyer termination of this Agreement and the repurchase by Seller have agreed otherwise in writingof any or all of the Purchased Securities.
(ck) Upon Seller’s receipt If Buyer shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof does or shall have the effect of reducing the rate of return on Buyer’s Preliminary Approval or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer, in the exercise of its reasonable business judgment, to be material, then from time to time, after submission by Buyer to Seller of a Transactionwritten request therefor, Seller shall, if Seller desires shall pay to enter into Buyer such Transaction with respect additional amount or amounts as will compensate Buyer for such reduction. Such notification as to the related New Loans upon the terms set forth calculation of any additional amounts payable pursuant to this subsection shall be submitted by Buyer in its Preliminary Approval, deliver to Seller and shall be prima facie evidence of such additional amounts absent manifest error. This covenant shall survive the documents set forth below in termination of this Agreement and the repurchase by Seller of any or all of the Purchased Securities.
(l) No amount shall be payable by Seller under Section 3(c3(j) or Section 3(k) with respect to each New Loan and related Eligible Property or Properties any period in excess of one hundred twenty (120) days prior to the extent not already delivered date of demand by the Buyer unless the effect of the applicable change in or adoption of the Preliminary Due Diligence Package or pursuant Requirement of Law is retroactive by its terms to a Supplemental Due Diligence Listperiod prior to the date of such change in or adoption of the Requirement of Law, in which case any additional amount or amounts shall be payable for the retroactive period but only if the Buyer provides its written demand not later than one hundred twenty (120) as a condition precedent to Buyer’s Final Approval and issuance days after the change in or the adoption of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:the Requirement of Law.
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted modified and replaced superseded in their respective entireties by the following provisions of this Section 3:
(a) Seller maySubject to the terms and conditions set forth in the Agreement (including, without limitation, the "Transaction Conditions Precedent" specified in Section 3(b) of this Annex I) the Buyer shall from time to timetime enter into Transactions with the Seller on any Business Day from and including the date of the Agreement to but excluding the three year anniversary date of the date of the Agreement and pursuant to any such Transaction, prior Seller shall be entitled to the Facility Termination Datesell, request that Buyer repurchase and re-sell any assets in accordance with this Agreement. An agreement to enter into a Transaction with respect to one or more New Loans. shall be made in writing at the initiation of Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to as provided below; provided, however, that the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Securities and Purchased Loans as of the date of determination) that when combined with for all Purchased Loans which have Transactions shall not been repurchased by Seller hereunder exceeds exceed the Facility Amount. Seller shall give Buyer written notice of each proposed Transaction and Buyer shall inform Seller of its determination with respect to any assets proposed to be sold to Buyer by Seller solely in accordance with Exhibit VIII attached hereto. Buyer shall have the right to review all New Eligible Loans and Eligible Securities proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans and Eligible Securities as Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in the exercise of its sole and absolute discretiongood faith business judgment, whether a New Loan qualifies as an Eligible Loan and whether to reject that it shall not purchase any or all of the New Loans assets proposed to be sold to Buyer by Seller. On the Purchase Date for the Transaction which shall be not less than three (3) Business Days following the approval of an Eligible Loan or an Eligible Security by the Buyer in accordance with Exhibit VIII hereto, the Purchased Securities or Purchased Loans shall have no obligation be transferred to consider for purchase Buyer or its agent against the transfer of the Purchase Price to an account of Seller. With respect to a Transaction involving an Eligible Loan or Eligible Security to be purchased by Buyer in a currency other than United States Dollars, Seller shall give Buyer irrevocable notice of sale of such Eligible Loan or Eligible Security at least one (1) Business Day in advance of the related Purchase Date; provided further, that, if Seller does not complete such Transaction on the Purchase Date set forth in such irrevocable notice, Seller shall pay Buyer any New Loans proposed amounts, if any, as may be required pursuant to Section 3(i) hereof. Any proposal by Seller after for Transactions relating to Eligible Loans or Eligible Securities denominated in United Kingdom Sterling or for which the original Facility Termination related Mortgaged Property is located in England, Wales, Northern Ireland or Scotland shall be governed by the English Loan Supplement which supersedes this Annex I; provided, that any Eligible Loans for which the related Mortgaged Property is located in England, Wales, Northern Ireland or Scotland and which are described in clauses (iii)(y) and (iv)(y) of the definition of Eligible Loans to be entered into by Seller and Buyer must be approved by Buyer in its sole discretion and consent and subject to applicable terms and conditions set forth at such time. From time to time, Seller may propose to Buyer that Buyer and Seller enter into Transactions involving Eligible Loans or Eligible Securities denominated in a currency other than United States Dollars or United Kingdom Sterling or for which the related Mortgaged Property is located outside of the United States or England, Wales, Scotland or Northern Ireland. Any proposal by Seller for Transactions relating to Eligible Loans or Eligible Securities denominated in a currency other than United States Dollars or United Kingdom Sterling or for which the related Mortgaged Property is located outside of the United States or England, Wales, Northern Ireland or Scotland may be entered into by Seller and Buyer at Buyer's sole discretion and consent and subject to applicable terms and conditions set forth at such time. All outstanding and/or proposed Transactions denominated in a currency other than United States Dollars shall be converted to United States Dollars on each Purchase Date (or, on the relevant Purchase Date with respect to proposed Transactions) or during on any other date in relation to which a determination is required to give effect to the Facility Extension Period (if applicable)Repurchase Agreement, in each case on the basis of the spot rate for the sale of such other currency against the purchase of United States Dollars in the [London foreign exchange market] quoted by any leading international bank selected by the Buyer on the first date immediately preceding the date of calculation on which commercial banks and foreign exchange markets are open for business in London.
(b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent (as hereinafter defined) shall have been satisfied (or waived by Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed Transaction), Buyer shall have the right within two promptly (2) Business Days, to request and in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereof, Buyer shall within five (5) Business Days either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller any event within five (5) Business Days) deliver to Seller a written confirmation in the form of Exhibit I attached hereto of each Transaction (a "Confirmation"). Unless otherwise agreed by the parties, as applicableBuyer shall deliver a separate Confirmation with respect to each Purchased Loan or Purchased Security which is the subject of a Transaction. Such Confirmation shall describe the Purchased Securities (including CUSIP number, if any) and/or Purchased Loans, shall identify Buyer and Seller, and shall set forth:
(i) the Purchase Date,
(ii) the Purchase Price for such Purchased Securities and/or Purchased Loans,
(iii) the Repurchase Date,
(iv) the Pricing Rate applicable to the Transaction (including the Applicable Spread)
(v) the acquisition cost; and
(vi) and any additional terms or conditions not inconsistent with the Agreement. With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on each Reset Date for the next two succeeding Pricing Rate Periods for such Transaction. Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Pricing Rate Determination Date for the next succeeding two Pricing Rate Periods and notify Seller of such rate for such periods on the Reset Date. For purposes of this Section 3(b), the "Transaction Conditions Precedent" shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval been satisfied with respect to any proposed Transaction if:
(1) no Default or Event of Default under the Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction;
(2) Seller shall have certified to Buyer in writing the acquisition cost of such Securities (including therein reasonable supporting documentation required by the Buyer, if any);
(3) the representations and warranties made by Seller in any of the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction;
(4) Buyer shall have (A) determined, in accordance with the applicable provisions of Section 3(a) of this Annex I, that the assets proposed to be sold to Buyer by Seller in such Transaction are Eligible Securities and/or Eligible Loans and (B) with respect to any Eligible Loan only, obtained internal credit approval for the inclusion of such Eligible Loan as a Purchased Loan in a Transaction;
(5) [reserved];
(6) Buyer shall have received the Guaranty executed by the Sponsor;
(7) following the consummation of such Transaction, the total Repurchase Price of Transactions with respect to Purchased Loans of the types described in clauses (iii) and (iv) of the definition of Eligible Loan shall not exceed $100,000,000;
(8) with respect to any proposed Transaction for Securities in the event the Seller shallor an Affiliate of the Seller owns the Related Securities, if the Seller desires shall have (x) caused ownership of the Related Securities to enter into such Transaction be transferred to the Seller simultaneous with or prior to the purchase of the Purchased Securities by Buyer and (y) delivered to the Buyer a power of attorney and any other documentation reasonably required by the Buyer sufficient to permit the Buyer upon the occurrence and during the continuance of an Event of Default to register the transfer of the Related Securities from Seller to Buyer or its designee;
(9) Buyer shall have determined that, with respect to the related New Loans upon Purchased Securities then subject to Transactions, following the terms set forth by Buyer consummation of the proposed Transaction:
(i) the aggregate Market Value with respect to all Purchased Securities then subject to Transactions in its Preliminary Approval, deliver the documents each Rating Category set forth below in this Section 3(cdoes not exceed the applicable percentage set forth below as a percentage of the Market Value of all Purchased Securities then subject to Transactions: Rating Category (or the Maximum Market Value (%) equivalent) BB- 45 B+ 35 B 35 X- 00 XX&XXX 00
(xx) if the number of separate issues of Purchased Securities then subject to Transactions with a minimum $20,000,000 outstanding face or notional principal amount per issue is less than or equal to ten (10), then the aggregate outstanding face or notional principal amount of all Purchased Securities then subject to Transactions issued by a single issuer does not exceed $100,000,000; provided, however, if the number of issues is greater than ten (10), than the aggregate outstanding face or notional principal amount of all Purchased Securities then subject to Transactions issued by a single issuer may exceed $100,000,000;
(10) Buyer shall have determined that, with respect to any Purchased Securities which are the subject of a proposed Transaction and are rated "B+"(or the equivalent) or lower or are not rated, such Purchased Securities, together with any Purchased Securities issued by the same trust, entitle the holder thereof to control the selection of the special servicer for the mortgage loans underlying such Purchased Securities; and
(11) with respect to each New Loan and related Eligible Property any proposed Transaction for Purchased Securities in a "real estate mortgage investment conduit" (or Properties (to the extent not already delivered REMIC), in the Preliminary Due Diligence Package event the Seller or pursuant an Affiliate of the Seller owns the Related Securities (it being understood that for purposes of this provision, Related Securities shall include (a) the securities issued in such "real estate mortgage investment conduit" (or REMIC) transaction which have no rating and (b) if such unrated securities do not entitle the holder thereof to a Supplemental Due Diligence List) control the selection of the special servicer for the mortgage loans underlying such Purchased Securities (i.e. serve as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined belowthe controlling class), all in the securities which have a manner reasonably satisfactory rating and entitle the holder thereof to Buyer and pursuant to documentation reasonably satisfactory to Buyer:control the selection of the special servicer for the mortgage loans underlying such Purchased Securities (i.e. serve as the controlling class)), the Seller shall have either
Appears in 1 contract
Samples: Master Repurchase Agreement (Anthracite Capital Inc)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) From and after the Closing Date to the date that is one (1) year after the Closing Date, Seller may, from time to time, prior to the Facility Termination Date, time request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request Assets by submitting a Preliminary Due Diligence Package for Buyer’s review and approval, which approval shall be in Buyer’s sole discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, immediately after the purchase of such New Asset, the Aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole discretion. Notwithstanding any provision to the contrary herein or in any other Transaction Document, Buyer shall be entitled to make a determinationdetermine, in its sole and absolute discretion, whether a New Loan Asset qualifies as an Eligible Loan and Asset or whether to reject any or all of the New Loans Asset proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionPackage, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary Package to properly evaluate the New Loansproposed Transaction. Upon Buyer’s receipt or waiver of such additional Supplemental Due Diligence Materials or Buyer’s waiver thereofPackage, Buyer shall shall, in its sole discretion, within five (5) Business Days Days, either (i) notify Seller of Buyer’s its intent to proceed with the Transaction and of together with its determination with respect to of the Purchase Price and the Market Value for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, deny Seller’s request for the applicable Transactionrequest. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, Days shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its the Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan Asset and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s a Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in its sole discretion and pursuant to documentation reasonably satisfactory to BuyerBuyer in its sole discretion:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Subject to the terms and conditions set forth in this Agreement (including, without limitation, the “Transaction Conditions Precedent” specified in Section 3(b) of this Agreement), an agreement to enter into a Transaction shall be made in writing at the initiation of Seller as provided below; provided, however, that (i) the aggregate outstanding Purchase Price at any time for all Transactions shall not exceed the Facility Amount, (ii) Buyer shall not have any obligation to enter into Transactions with Seller after the occurrence and during the continuance of a Default or an Event of Default or after the Facility Availability Period and (iii) this Agreement is not a commitment to enter into Transactions but rather sets forth the procedures to be used in connection with periodic requests to enter into Transactions and Seller hereby acknowledges that Buyer is under no obligation to agree to enter into, or to enter into, any Transaction pursuant to this Agreement. Seller may, from time to time, prior submit to Buyer a Transaction Request, in the Facility Termination Dateform of Exhibit VIII attached hereto, request that Buyer for Buyer’s review and approval in order to enter into a Transaction with respect to one or more New Loansany Eligible Loan that Seller proposes to be included as Collateral under this Agreement. Seller shall initiate each request by submitting Upon Buyer’s receipt of a Preliminary complete Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to the contrary hereinPackage, Buyer shall have no obligation the right to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential request, in Buyer’s good faith business judgment, additional diligence materials and deliveries with respect to the Purchased Loans as applicable Eligible Loan, to the extent necessary for Buyer’s underwriting of such Eligible Loan. Upon Buyer’s receipt of the date Transaction Request, Due Diligence Package and additional diligence materials, Buyer shall use commercially reasonable efforts to within ten (10) Business Days and following receipt of determinationinternal credit approval, either (i) that when combined with all Purchased Loans which notify Seller of the Purchase Price and the Market Value for the Eligible Loan or (ii) deny Seller’s request for a Transaction. Buyer’s failure to respond to Seller within ten (10) Business Days shall be deemed to be a denial of Seller’s request for a Transaction, unless Buyer and Seller have not been repurchased by Seller hereunder exceeds the Facility Amountagreed otherwise in writing. Buyer shall have the right to review all New Eligible Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans as Buyer determines is reasonably necessarydetermines. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject that it shall or shall not purchase any or all of the New Eligible Loans proposed to be sold to Buyer by Seller. On the Purchase Date for the Transaction which shall be on a date mutually agreed upon by Buyer and Seller following the approval of an Eligible Loan by Buyer, the Purchased Loan shall be transferred to Buyer against the transfer of the Purchase Price to an account of Seller. Notwithstanding anything to the contrary in this Agreement, Seller shall have no obligation the right to consider revoke its request for purchase a Transaction at any New Loans time up to the Business Day prior to the proposed Purchase Date for such Transaction which Purchase Date was mutually agreed upon by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable)Buyer and Seller.
(b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent shall have been satisfied (or waived by Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed Transaction), Buyer shall have promptly deliver to Seller a written confirmation in the right within two form of Exhibit I attached hereto of each Transaction (2) Business Daysa “Confirmation”). Such Confirmation shall describe the Purchased Loans, to request in a Supplemental Due Diligence List such additional Diligence Materials shall identify Buyer and deliveries that Buyer deems necessary to properly evaluate the New Loans. Upon Buyer’s receipt of such additional Diligence Materials or Buyer’s waiver thereofSeller, Buyer and shall within five (5) Business Days either set forth:
(i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to Purchase Date,
(ii) the Purchase Price Percentage and the Market Value Purchase Price for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.Purchased Loan,
(ciii) Upon Seller’s receipt of Buyer’s Preliminary Approval the Repurchase Date,
(iv) the Pricing Rate, and
(v) any additional terms or conditions not inconsistent with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:Agreement.
Appears in 1 contract
Samples: Master Repurchase Agreement (NorthStar Real Estate Income II, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, On or after the Initial Purchase Date and prior to the Facility Termination DateRepurchase Date and subject to the terms and conditions set forth in this Agreement (including, request that Buyer without limitation, the "Transaction Conditions Precedent" specified in Section 3(b) of this Agreement), an agreement to enter into a Transaction with respect to one or more New Loans. shall be made in writing at the initiation of Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to as provided below; provided, however, that the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate Repurchase Price (excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined for all Transactions shall not exceed the Maximum Aggregate Purchase Price. Seller shall give Buyer written notice of each proposed Transaction and Buyer shall inform Seller of its determination with all Purchased Loans which have not been repurchased respect to any assets proposed to be sold to Buyer by Seller hereunder exceeds the Facility Amountsolely in accordance with Exhibit VIII attached hereto. Buyer shall have the right to review all New Eligible Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Eligible Loans as Buyer determines is determines. Upon receipt of all Diligence Materials and other reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Documentrequired documentation, Buyer shall be entitled complete its due diligence review and financial modeling with respect to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and whether to reject any or all of the New Loans assets proposed to be sold to Buyer by Seller. Buyer shall have no obligation be entitled to consider for make a determination, in the exercise of its sole discretion, that it shall not purchase any New Loans or all of the assets proposed to be sold to Buyer by Seller after and Buyer's failure to make such a determination shall constitute a refusal to purchase the original Facility Termination Eligible Loan(s). On the Purchase Date for the Transaction which shall be not less than three (3) Business Days following the approval of an Eligible Loan by Buyer in accordance with Exhibit VIII hereto, the Purchased Loans shall be transferred to Buyer or during its agent against the Facility Extension Period transfer of the Purchase Price in immediately available funds to an account designated by Seller. To the extent Buyer enters into a Transaction with Seller with respect to a Purchased Loan which is an Eligible Loan of the type described in clause (if applicableiv) of the definition thereof (i.e., such Eligible Loan does not satisfy the characteristics described in clauses (i)-(iii) of the definition thereof), then such loan shall be deemed to be an Eligible Loan for all purposes of this Agreement.
(b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction Conditions Precedent (as hereinafter defined) shall have been satisfied (or waived by Buyer’s receipt ), Buyer shall promptly deliver to Seller a written confirmation substantially in the form of Exhibit I attached hereto of each Transaction (a "Confirmation"). In the absence of execution and delivery by Buyer of a complete Preliminary Due Diligence Package with respect to Confirmation for a proposed Transaction, Buyer shall under no circumstance be deemed to have agreed to enter into such Transaction. Such Confirmation shall describe the right within Purchased Loan(s) which shall be the subject of the proposed Transaction, shall identify Buyer and Seller, and shall set forth (i) the Purchase Date, (ii) the Purchase Price for such Purchased Loan(s), (iii) the Repurchase Date, (iv) the Pricing Rate applicable to the Transaction and (v) any additional terms or conditions not inconsistent with this Agreement. With respect to any Transaction, the Pricing Rate shall be determined initially on the Pricing Rate Determination Date applicable to the first Pricing Rate Period for such Transaction, and shall be reset on each Reset Date for the next succeeding Pricing Rate Period for such Transaction. Buyer or its agent shall determine in accordance with the terms of this Agreement the Pricing Rate on each Pricing Rate Determination Date for the related Pricing Rate Period and notify Seller of such rate for such period on the Reset Date. For purposes of this Section 3(b), the "Transaction Conditions Precedent" shall be deemed to have been satisfied with respect to any proposed Transaction if:
(1) no Default or Event of Default under this Agreement shall have occurred and be continuing as of the Purchase Date for such proposed Transaction;
(2) the representations and warranties made by Seller in any of the Transaction Documents shall be true and correct in all material respects as of the Purchase Date for such Transaction;
(3) Buyer shall have received the Diligence Materials and completed to Buyer's satisfaction its due diligence review and financial modeling with respect to the assets proposed to be sold to Buyer by Seller;
(4) Buyer or the Custodian on behalf of Buyer shall have received the applicable Transaction Documents and other documents and opinions specified in Section 7 of this Agreement. The Custodian shall have delivered a Trust Receipt satisfactory to Buyer no later than 4:00 p.m. on the Purchase Date;
(5) Buyer shall have determined, in accordance with the applicable provisions of Section 3(a) of this Agreement, that the assets proposed to be sold to Buyer by Seller in such Transaction are Eligible Loans;
(6) none of the following shall have occurred and/or be continuing:
(i) an event or events shall have occurred resulting in the effective absence of a "repo market" or comparable "lending market" for financing mortgage securities or mortgage loans or an event or events shall have occurred resulting in Buyer not being able to finance any Transactions through the "repo market" or "lending market" with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(ii) an event or events shall have occurred resulting in the effective absence of a "securities market" for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or
(iii) there shall have occurred a material adverse change in the "repo market" or comparable "lending market" or in the financial condition of Buyer which effects (or can reasonably be expected to effect) materially and adversely the ability of Buyer to fund its obligations under this Agreement;
(7) the purchase by Buyer from Seller of the Purchased Loans shall be completed prior to the Repurchase Date and the aggregate of the Purchase Prices for all Transaction shall not exceed the Maximum Aggregate Purchase Price; and
(8) With respect to the initial Transaction and as otherwise required by Buyer in connection with any subsequent Transaction, Seller shall have delivered to Buyer a due authorization, execution and enforceability opinion of Seller's counsel, in such form reasonably acceptable to Buyer, including an opinion that Buyer has a perfected security interest in such collateral as is subject to such Transaction, prior to any other claim or interest, subject to reasonable and customary exceptions, qualifications and assumptions. Notwithstanding anything to the contrary contained in this Agreement, in no event shall any Transaction hereunder be consummated until such time as Buyer has received all of the following, each in form and substance reasonably satisfactory to Buyer: (i) the fully executed Custodial Agreement and related Trust Receipt; (ii) a Depository Agreement with respect to the Collection Account executed by the Depository; (iii) such legal opinions as Buyer may reasonably require; and (iv) Seller's organizational documents to the extent not delivered as of the date hereof.
(c) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby unless objected to in writing by Seller no more than two (2) Business DaysDays after the date such Confirmation is received by Seller. An objection sent by Seller with respect to any Confirmation must state specifically that the writing is an objection, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate must specify the New Loans. Upon Buyer’s receipt provision(s) of such additional Diligence Materials or Buyer’s waiver thereofConfirmation being objected to by Seller, must set forth such provision(s) in the manner that Seller believes such provisions should be stated, and must be received by Buyer shall within five no more than two (52) Business Days either after such Confirmation is received by Seller. Seller shall execute a written acceptance accepting each Confirmation not objected to by Seller within the aforementioned two (i2) notify Seller of Buyer’s intent to proceed with the Transaction Business Day period and of its determination with respect prior to the Purchase Price Date.
(d) Each Transaction entered into between Buyer and Seller shall remain outstanding from the Market Value for initial Purchase Date until February 12, 2006.
(e) Seller shall be entitled to terminate a Transaction and repurchase any or all of the related New Purchased Loans from Buyer on three (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (53) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect ' notice on any Business Day prior to the related New Loans upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties Repurchase Date (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a Supplemental Due Diligence List) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined belowan "Early Repurchase Date"), all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:.
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to (i) one or more New Loans, (ii) subject to satisfaction of all of the applicable requirements of Section 13.01 hereto, as determined in Buyer’s sole and absolute discretion, a new Future Funding Advance in respect of a Purchased Loan, or (iii) subject to satisfaction of all of the applicable requirements of Section 3(s) hereto, as determined in Buyer’s sole and absolute discretion, a new Additional Advance Transaction in respect of a Purchased Loan for an amount equal to the Additional Advance Amount. Seller shall initiate each request for a New Loan by submitting a Preliminary Due Diligence an Initial Screening Package for in form and substance reasonably acceptable to Buyer’s review and approval. Upon receipt of the Initial Screening Package, Buyer shall, within five (5) Business Days, inform Seller in writing whether Buyer is prepared to proceed with consideration of such New Loan, which consideration shall be conducted in accordance with the procedures set forth in this Section 3.
(b) Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Loan if, immediately after the purchase of such New Loan, the Aggregate Repurchase Price (excluding including the proposed Purchase Price Differential with respect to the Purchased Loans as of the date of determinationsuch New Loan) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans as Buyer determines is reasonably necessarynecessary in Buyer’s sole discretion. Subject to the limitations set forth in Section 20, Seller agrees to promptly reimburse Buyer promptly for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and or whether to reject any or all of the New Loans Loan proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(bc) If Buyer notifies Seller in writing that Buyer is prepared to proceed with consideration of a New Loan for which Seller submitted an Initial Screening Package, then Seller shall prepare and submit to Buyer a Preliminary Due Diligence Package. Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionNew Loan, Buyer shall have the right shall, within two (2) 10 Business Days, inform Seller whether it is prepared to request in proceed with further consideration of such New Loan, or whether Buyer will require a Supplemental Due Diligence List Package in order to continue its evaluation of such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New LoansLoan. Upon Buyer’s receipt of such additional Supplemental Due Diligence Materials Package or Buyer’s waiver thereof, Buyer shall shall, within five (5) 5 Business Days Days, either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Maximum Purchase Price Percentage and the Market Value for the related New Loans Loan (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) 5 Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(cd) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Loan upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c3(d) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner and/or form reasonably satisfactory to Buyer in its sole discretion and pursuant to documentation reasonably satisfactory to BuyerBuyer in accordance with the requirements of this Agent:
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to one or more New LoansAssets. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval, which approval shall be in Buyer’s sole discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Asset if, immediately after the purchase of such New Asset, the Aggregate Repurchase Price (excluding including the proposed Purchase Price Differential with respect to the Purchased Loans as of the date of determinationsuch New Asset) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans Assets proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans Assets as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole discretion. Notwithstanding any provision to the contrary herein or in any other Transaction Document, Buyer shall be entitled to make a determinationdetermine, in its sole and absolute discretion, whether a New Loan Asset qualifies as an Eligible Loan and Asset or whether to reject any or all of the New Loans Asset proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionPackage, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List such additional Diligence Materials and deliveries that Buyer deems necessary Package to properly evaluate the New Loansproposed Transaction. Upon Buyer’s receipt or waiver of such additional Supplemental Due Diligence Materials or Buyer’s waiver thereofPackage, Buyer shall shall, within five (5) Business Days Days, either (i) notify Seller of Buyer’s its intent to proceed with the Transaction and of together with its determination with respect to of the Purchase Price and the Market Value for the related New Loans Asset (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transactionrequest. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, Days shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s a Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Asset upon the terms set forth by Buyer in its the Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan Asset and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in its sole discretion and pursuant to documentation reasonably satisfactory to BuyerBuyer in its sole discretion:
Appears in 1 contract
Samples: Master Repurchase and Securities Contract Agreement (LoanCore Realty Trust, Inc.)
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Master Repurchase Agreement (“Initiation; Confirmation; Termination”) are is hereby deleted in its entirety and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to the Facility Termination Date, request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approval. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an New Loan if, immediately after the purchase of such New Loan, the aggregate Repurchase Price (including such New Loan and excluding the Price Differential with respect to the Purchased Loans as of the date of determination) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds the Facility Amount. Buyer shall have the right to review all New Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer promptly for its Diligence Fees upon request for payment or reimbursement thereof. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and or whether to reject any or all of the New Loans proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionNew Loan, Buyer shall have the right right, within two (2) Business Days, to request in a Supplemental Due Diligence List Package to evaluate such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New LoansLoan. Upon Buyer’s receipt of such additional Supplemental Due Diligence Materials Package or Buyer’s waiver thereof, Buyer shall within five three (53) Business Days either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five three (53) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably satisfactory to Buyer and pursuant to documentation reasonably satisfactory to Buyer:
Appears in 1 contract
INITIATION; CONFIRMATION; TERMINATION; FEES. The provisions of Paragraph 3 of the Agreement (“Initiation; Confirmation; Termination”) are hereby deleted and replaced in their respective entireties by the following provisions of this Section 3:
(a) Seller may, from time to time, prior to October 25, 2014 (the Facility Termination “Outside Date”), request that Buyer enter into a Transaction with respect to one or more New Loans. Seller shall initiate each request by submitting a Preliminary Due Diligence Package for Buyer’s review and approvalapproval in Buyer’s sole discretion. Notwithstanding anything to the contrary herein, Buyer shall have no obligation to consider for purchase any proposed Transaction that has an aggregate New Loan if, immediately after the purchase of such New Loan, the Aggregate Repurchase Price (excluding including the proposed Purchase Price Differential with respect to the Purchased Loans as of the date of determinationsuch New Loan) that when combined with all Purchased Loans which have not been repurchased by Seller hereunder exceeds would exceed the Facility Amount. Buyer and its representatives shall have the right to review all New Loans proposed to be sold to Buyer in any Transaction and to conduct its own due diligence investigation of such New Loans as Buyer determines is reasonably necessary. Seller agrees to promptly reimburse Buyer for its Diligence Fees upon request for payment or reimbursement thereofnecessary in Buyer’s sole discretion. Notwithstanding any provision to the contrary herein or any other Transaction Document, Buyer shall be entitled to make a determination, in its sole and absolute discretion, whether a New Loan qualifies as an Eligible Loan and or whether to reject any or all of the New Loans Loan proposed to be sold to Buyer by Seller. Buyer shall have no obligation to consider for purchase any New Loans proposed by Seller after the original Facility Termination Date or during the Facility Extension Period (if applicable).
(b) Upon Buyer’s receipt of a complete Preliminary Due Diligence Package with respect to a proposed TransactionNew Loan, Buyer shall have the right within two (2) Business Days, to request in a Supplemental Due Diligence List Package to evaluate such additional Diligence Materials and deliveries that Buyer deems necessary to properly evaluate the New LoansLoan. Upon Buyer’s receipt of such additional Supplemental Due Diligence Materials Package or Buyer’s waiver thereof, Buyer shall shall, within five (5) Business Days Days, either (i) notify Seller of Buyer’s intent to proceed with the Transaction and of its determination with respect to the Purchase Price and the Market Value for the related New Loans Loan (such notice, a “Preliminary Approval”) or (ii) deny, in Buyer’s sole and absolute discretion, Seller’s request for the applicable Transaction. Buyer’s failure to respond to Seller within five (5) Business Days, as applicable, shall be deemed to be a denial of Seller’s request to enter into the proposed Transaction, unless Buyer and Seller have agreed otherwise in writing.
(c) Upon Seller’s receipt of Buyer’s Preliminary Approval with respect to a Transaction, Seller shall, if Seller desires to enter into such Transaction with respect to the related New Loans Loan upon the terms set forth by Buyer in its Preliminary Approval, deliver the documents set forth below in this Section 3(c) with respect to each New Loan and related Eligible Property or Properties (to the extent not already delivered in the Preliminary Due Diligence Package or pursuant to a in the Supplemental Due Diligence ListPackage) as a condition precedent to Buyer’s Final Approval and issuance of a Confirmation (as defined below)Confirmation, all in a manner reasonably and/or form satisfactory to Buyer in its sole discretion and pursuant to documentation reasonably satisfactory to BuyerBuyer in its sole discretion:
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
