Margin Maintenance. (a) Purchaser may, at its option in its sole and absolute discretion, re-determine the Market Value for any Purchased Asset in accordance with the definition of Market Value. If there exists a Margin Deficit with respect to any Purchased Asset, Purchaser may, by notice to Seller substantially in the form of Exhibit VIII hereto (a “Margin Call”), require Seller to make a cash payment in reduction of the Repurchase Price of such Purchased Asset, so that after giving effect to such payment, no Margin Deficit shall exist with respect to such Purchased Asset. Seller shall have the opportunity to challenge the reduction of the Market Value of any Purchased Asset by requesting that Purchaser, at Seller’s sole cost and expense, order (i) if such reduction in Market Value is related to a reduction in the value of the related Mortgaged Property, a third-party appraisal of the related Mortgaged Property or Mortgaged Properties or (ii) if such reduction is otherwise related to a reduction in the value of the Purchased Asset, a third-party valuation of the fair market value of the Purchased Asset. In the interim period while Purchaser is awaiting receipt of and considering such appraisal or valuation, Seller shall post with Purchaser the Margin Amount. In the event that Purchaser subsequently determines that a Credit Event has not occurred or that a Margin Deficit does not exist, the Margin Amount shall be returned to Seller (or such portion thereof as reflects the decrease in the applicable Margin Deficit). (b) If a Margin Call is given by Purchaser on any Business Day at or prior to 10 a.m. (New York City time), Seller shall cure the related Margin Deficit (which may be by repurchasing the related Purchased Asset in accordance with Article 3(d)) by no later than 5:00 p.m. (New York City time) on the same Business Day. For the avoidance of doubt, if a Margin Call is given by Purchaser on any Business Day after the time set forth above, such Margin Call shall be considered given prior to such time on the immediately following Business Day. (c) The failure or delay by Purchaser, on any one or more occasions, to exercise its rights under this Article 4 shall not change or alter the terms and conditions or limit or waive the right of Purchaser to do so at a later date or in any way create additional rights for Seller.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.), Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Margin Maintenance. (a) Purchaser may, at its option in its sole and absolute discretion, re-determine the Market Value for any Purchased Asset in accordance with the definition of Market Value. If there exists a Margin Deficit with respect to any Purchased Asset, Purchaser may, by notice to Seller substantially in the form of Exhibit VIII hereto (a “Margin Call”), require Seller to make a cash payment in reduction of the Repurchase Price of such Purchased Asset, so that after giving effect to such payment, no Margin Deficit shall exist with respect to such Purchased Asset. Seller shall have the opportunity to challenge the reduction of the Market Value of any Purchased Asset by requesting that Purchaser, at Seller’s sole cost and expense, order (i) if such reduction in Market Value is related to a reduction in the value of the related Mortgaged Property, a third-party appraisal of the related Mortgaged Property or Mortgaged Properties or (ii) if such reduction is otherwise related to a reduction in the value of the Purchased Asset, a third-party valuation of the fair market value of the Purchased Asset. In the interim period while Purchaser is awaiting receipt of and considering such appraisal or valuation, Seller shall post with Purchaser the Margin Amount. In the event that Purchaser subsequently determines that a Credit Event has not occurred or that a Margin Deficit does not exist, the Margin Amount shall be returned to Seller (or such portion thereof as reflects the decrease in the applicable Margin Deficit).
(b) If a Margin Call is given by Purchaser on any Business Day at or prior to 10 a.m. 12 p.m. (New York City time), Seller shall cure (at Seller’s election) utilize one of any combination of the related Margin Deficit (which may be by repurchasing the related Purchased Asset in accordance with Article 3(d)) following by no later than 5:00 p.m. (New York City time) on the same immediately following Business Day. For Day (the “Margin Deadline”) (for the avoidance of doubt, doubt if a Margin Call is given by Purchaser under Article 4(a) on any Business Day after the time set forth above, such Margin Call shall be considered given prior to such time on the immediately following Business Day), so that after giving effect to such transfer, payment or repurchase, no Margin Deficit shall be outstanding: (A) transfer to Purchaser cash collateral or a letter of credit issued by an institution approved by the Purchaser and in form and substance acceptable to Purchaser in its sole discretion in an amount equal to the Margin Deficit, (B) repurchase one of more Purchased Assets pursuant to Article 3(d), or (C) transfer to Purchaser cash in an amount equal to so much of the Margin Deficit as Seller is able to fund through Unrestricted Cash as of the Margin Deadline. If Seller exercises the option described in Article 4(b)(C), and the required cash payment to Purchaser exceeds the Unrestricted Cash available to the Seller to make such payment by the Margin Deadline, then so long as Seller or Guarantor delivers a written certification to the Purchaser on such date of the Margin Call providing evidence satisfactory to the Purchaser in its reasonable good faith discretion that Seller has access to cash, whether through a capital call by the Guarantor to its limited partners, a sale of assets or otherwise, in an amount equal to satisfy the Margin Deficit in full within three (3) Business Days following the related Margin Deadline, then no later than 5:00 p.m. (New York City time) on the third (3rd) Business Day following the related Margin Deadline, Seller shall transfer to Purchaser cash in an amount equal to the remaining outstanding Margin Deficit, if any; provided, however, that to the extent that Seller or Guarantor, as applicable, apply any amounts designated as Unrestricted Cash for the satisfaction of any margin call deficit made after the related Margin Deadline in respect of any other credit facility of Seller or Guarantor, as applicable, the remaining outstanding Margin Deficit shall become immediately due and payable to Purchaser. To the extent the Guarantor makes a capital call in order to satisfy the Margin Deficit, the failure of the limited partners of Guarantor to honor any capital call by Guarantor within the time set forth herein, and to the extent the related Margin Call is not otherwise satisfied by Seller, shall constitute an immediate Event of Default.
(c) The failure or delay by Purchaser, on any one or more occasions, to exercise its rights under this Article 4 shall not change or alter the terms and conditions or limit or waive the right of Purchaser to do so at a later date or in any way create additional rights for Seller.
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Margin Maintenance. (a) Purchaser mayIf at any time the Aggregate Facility Purchase Price is greater than the aggregate Asset Value of all Purchased Mortgage Loans subject to Transactions (the positive amount of such difference, at its option in its sole a “Margin Deficit”), and absolute discretion, re-determine the Market Value for any Purchased Asset in accordance with the definition of Market Value. If there exists a such Margin Deficit with respect to any Purchased Assetis greater than the Minimum Margin Threshold, Purchaser may, then Buyer may by written notice to Seller substantially in the form of Exhibit VIII hereto (as such notice is more particularly set forth below, a “Margin Call”), require Seller to make a transfer to Buyer cash payment in reduction of an amount at least equal to the Repurchase Price of such Purchased Asset, so that after giving effect to such payment, no Margin Deficit shall exist (such amount, a “Margin Payment”); provided, that, notwithstanding the foregoing, Buyer may determine the Asset Value and any related Margin Deficit on an individual loan basis for any Purchased Mortgage Loan, in which event it shall, upon receipt, apply all amounts received with respect to such any individual Purchased Asset. Seller shall have Mortgage Loans against the opportunity to challenge the reduction of the Market Value of any Purchased Asset by requesting that Purchaser, at Seller’s sole cost and expense, order (i) if such reduction in Market Value is related to a reduction in the value of the related Mortgaged Property, a third-party appraisal of the related Mortgaged Property or Mortgaged Properties or (ii) if such reduction is otherwise related to a reduction in the value of the Purchased Asset, a third-party valuation of the fair market value of the Purchased Asset. In the interim period while Purchaser is awaiting receipt of and considering such appraisal or valuation, Seller shall post with Purchaser the Margin Amount. In the event that Purchaser subsequently determines that a Credit Event has not occurred or that a Margin Deficit does not exist, the Margin Amount shall be returned to Seller (or such portion thereof as reflects the decrease in the applicable Margin Deficit)Purchase Price thereof.
(b) If Buyer delivers a Margin Call is given by Purchaser to Seller on any Business Day at or prior to 10 10:00 a.m. (New York City time)) on any Business Day, then Seller shall transfer the Margin Payment to Buyer or its designee no later than 5:30 p.m. (New York City time) on such Business Day. In the event Buyer delivers a Margin Call to Seller after 10:00 a.m. (New York City time) on any Business Day, Seller shall cure be required to transfer the related Margin Deficit (which may be by repurchasing the related Purchased Asset in accordance with Article 3(d)) by Payment no later than 5:00 2:00 p.m. (New York City time) on the same Business Day. For the avoidance of doubt, if a Margin Call is given by Purchaser on any Business Day after the time set forth above, such Margin Call shall be considered given prior to such time on the immediately following Business Day.
(c) Seller shall transfer any Margin Payment to the account of Buyer that is referenced in Section 10(a) of this Agreement.
(d) In the event that a Margin Deficit exists with respect to any Purchased Mortgage Loans, Buyer may retain any funds received by it to which the Seller would otherwise be entitled hereunder, which funds (i) shall be held by Buyer against the related Margin Deficit and (ii) may be applied by Buyer against the Repurchase Price of any Purchased Mortgage Loan for which the related Margin Deficit remains otherwise unsatisfied. Notwithstanding the foregoing, Xxxxx retains the right, in its sole discretion, to make a Margin Call in accordance with the provisions of this Section 7.
(e) The failure or delay by Purchaserof Buyer, on any one or more occasions, to exercise its rights under this Article 4 hereunder, shall not change or alter the terms and conditions of this Agreement or limit or waive the right of Purchaser Buyer to do so at a later date date. Seller and Buyer each agree that a failure or delay by Buyer to exercise its rights hereunder shall not limit or waive Buyer’s rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller.
Appears in 1 contract
Samples: Master Repurchase Agreement and Securities Contract (Radian Group Inc)
Margin Maintenance. (a) Purchaser mayIf at any time the Aggregate Facility Purchase Price is greater than the aggregate Asset Value of all Purchased Mortgage Loans subject to Transactions (the positive amount of such difference, at its option in its sole a “Margin Deficit”), and absolute discretion, re-determine the Market Value for any Purchased Asset in accordance with the definition of Market Value. If there exists a such Margin Deficit with respect to any Purchased Assetis greater than the Minimum Margin Threshold, Purchaser may, then Buyer may by written notice to Seller substantially in the form of Exhibit VIII hereto (as such notice is more particularly set forth below, a “Margin Call”), require Seller to make a transfer to Buyer cash payment in reduction of an amount at least equal to the Repurchase Price of such Purchased Asset, so that after giving effect to such payment, no Margin Deficit shall exist (such amount, a “Margin Payment”); provided, that, notwithstanding the foregoing, Buyer may determine the Asset Value and any related Margin Deficit on an individual loan basis for any Purchased Mortgage Loan, in which event it shall, upon receipt, apply all amounts received with respect to such any individual Purchased Asset. Seller shall have Mortgage Loans against the opportunity to challenge the reduction of the Market Value of any Purchased Asset by requesting that Purchaser, at Seller’s sole cost and expense, order (i) if such reduction in Market Value is related to a reduction in the value of the related Mortgaged Property, a third-party appraisal of the related Mortgaged Property or Mortgaged Properties or (ii) if such reduction is otherwise related to a reduction in the value of the Purchased Asset, a third-party valuation of the fair market value of the Purchased Asset. In the interim period while Purchaser is awaiting receipt of and considering such appraisal or valuation, Seller shall post with Purchaser the Margin Amount. In the event that Purchaser subsequently determines that a Credit Event has not occurred or that a Margin Deficit does not exist, the Margin Amount shall be returned to Seller (or such portion thereof as reflects the decrease in the applicable Margin Deficit)Purchase Price thereof.
(b) If Buyer delivers a Margin Call is given by Purchaser to Seller on any Business Day at or prior to 10 10:00 a.m. (New York City time)) on any Business Day, then Seller shall transfer the Margin Payment to Buyer or its designee no later than 5:30 p.m. (New York City time) on such Business Day. In the event Buyer delivers a Margin Call to Seller after 10:00 a.m. (New York City time) on any Business Day, Seller shall cure be required to transfer the related Margin Deficit (which may be by repurchasing the related Purchased Asset in accordance with Article 3(d)) by Payment no later than 5:00 2:00 p.m. (New York City time) on the same Business Day. For the avoidance of doubt, if a Margin Call is given by Purchaser on any Business Day after the time set forth above, such Margin Call shall be considered given prior to such time on the immediately following Business Day.
(c) Seller shall transfer any Margin Payment to the account of Buyer that is referenced in Section 10(a) of this Agreement.
(d) In the event that a Margin Deficit exists with respect to any Purchased Mortgage Loans, Buyer may retain any funds received by it to which the Seller would otherwise be entitled hereunder, which funds (i) shall be held by Buyer against the related Margin Deficit and (ii) may be applied by Buyer against the Repurchase Price of any Purchased Mortgage Loan for which the related Margin Deficit remains otherwise unsatisfied. Notwithstanding the foregoing, Buyer retains the right, in its sole discretion, to make a Margin Call in accordance with the provisions of this Section 7.
(e) The failure or delay by Purchaserof Buyer, on any one or more occasions, to exercise its rights under this Article 4 hereunder, shall not change or alter the terms and conditions of this Agreement or limit or waive the right of Purchaser Buyer to do so at a later date date. Seller and Buyer each agree that a failure or delay by Buyer to exercise its rights hereunder shall not limit or waive Buyer’s rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller.
Appears in 1 contract
Margin Maintenance. (a) Purchaser may, at its option in its sole and absolute discretion, re-determine the Market Value for any Purchased Asset in accordance with the definition of Market Value. If there exists a Margin Deficit Event with respect to any Purchased Asset, Purchaser may, by notice to Seller Sellers substantially in the form of Exhibit VIII hereto (a “Margin Call”), require Seller Sellers to make a cash payment in reduction of the Repurchase Price of such Purchased Asset, Asset so that after giving effect to such payment, no Margin Deficit shall exist or be deemed to exist with respect to such Purchased Asset. Seller shall have the opportunity to challenge the reduction of the Market Value of any Purchased Asset by requesting that Purchaser, at Seller’s sole cost and expense, order (i) if such reduction in Market Value is related to a reduction in the value of the related Mortgaged Property, a third-party appraisal of the related Mortgaged Property or Mortgaged Properties or (ii) if such reduction is otherwise related to a reduction in the value of the Purchased Asset, a third-party valuation of the fair market value of the Purchased Asset. In the interim period while Purchaser is awaiting receipt of and considering such appraisal or valuation, Seller shall post with Purchaser the Margin Amount. In the event that Purchaser subsequently determines that a Credit Event has not occurred or that a Margin Deficit does not exist, the Margin Amount shall be returned to Seller (or such portion thereof as reflects the decrease in the applicable Margin Deficit).
(b) If a Margin Call is given by Purchaser under Article 4(a) on any Business Day at or prior to 10 a.m. 12:00 noon (New York City time), Seller Sellers shall cure the related Margin Deficit (which may be by repurchasing the related Purchased Asset as provided in accordance with Article 3(d)4(a) by no later than 5:00 p.m. (New York City time) on the same next succeeding Business Day. For the avoidance of doubt, if a Margin Call is given by Purchaser under Article 4(a) on any Business Day after the time set forth above12:00 noon (New York City time), such Margin Call shall be considered given prior to such time on the immediately following Business Day.
(c) From time to time, if (i) the Market Value of one or more Purchased Assets has been reduced and (ii) the event that resulted in such reduction in Market Value has been cured or otherwise remedied such that the Margin Amount for such Purchased Assets exceeds the Repurchase Price for such Purchased Assets as determined by Purchaser in accordance with the terms hereof (the amount of such excess, the “Margin Excess”), then Purchaser may, in its sole and absolute discretion, consider a request from Seller to transfer cash to Seller in an amount up to such Margin Excess, and such transfer shall be reflected as an increase in the outstanding Purchase Price of such Purchased Asset. Any such transfer of cash by Purchaser shall be limited to once per calendar quarter and subject to the following conditions:
(i) the transfer is in an amount that is at least equal to $1 million;
(ii) immediately after giving effect to the requested Purchase Price increase, the aggregate outstanding Purchase Price of the related Purchased Asset shall not exceed (x) the Margin Amount of such Purchased Asset and (y) in the case of a Sidecar Asset, the amount of the related Sidecar Facility with respect to such Sidecar Asset;
(iii) immediately after giving effect to the requested Purchase Price increase, the sum, without duplication, of (x) the aggregate outstanding Purchase Price for all outstanding Transactions (including, for the avoidance of doubt, in respect of Sidecar Assets) and (y) the requested Purchase Price increase shall not exceed an amount equal to the Maximum Facility Purchase Price;
(iv) no event shall have occurred which has, or would reasonably be expected to have a Material Adverse Effect;
(v) no Default or Event of Default shall have occurred and be continuing as of the related Purchase Price increase date or will occur as a result of such Purchase Price increase;
(vi) no Margin Deficit Event shall exist immediately prior to or after giving effect to the requested Purchase Price increase (other than any Margin Deficit Event that would be cured as a result of the application of proceeds of such Purchase Price increase as directed by Seller); and
(vii) all representations and warranties (except to the extent set forth in the Requested Exceptions Report attached to the related Confirmation) made by any Seller Party in the Transaction Documents shall be true, correct, complete and accurate on and as of the related Purchase Price increase date with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).
(d) The failure or delay by Purchaser, on any one or more occasions, to exercise its rights under this Article 4 shall not change or alter the terms and conditions or limit or waive the right of Purchaser to do so at a later date or in any way create additional rights for any Seller.
Appears in 1 contract
Samples: Master Repurchase Agreement (Benefit Street Partners Realty Trust, Inc.)
Margin Maintenance. (a) Purchaser mayIf at any time the Aggregate Facility Purchase Price is greater than the aggregate Asset Value of all Purchased Mortgage Loans subject to Transactions (the positive amount of such difference, at its option in its sole a “Margin Deficit”), and absolute discretion, re-determine the Market Value for any Purchased Asset in accordance with the definition of Market Value. If there exists a such Margin Deficit with respect to any Purchased Assetis greater than the Minimum Margin Threshold, Purchaser may, then Buyer may by written notice to Seller substantially in the form of Exhibit VIII hereto (as such notice is more particularly set forth below, a “Margin Call”), require Seller to make a transfer to Buyer cash payment in reduction of an amount at least equal to the Repurchase Price of such Purchased Asset, so that after giving effect to such payment, no Margin Deficit shall exist (such amount, a “Margin Payment”); provided, that, notwithstanding the foregoing, Buyer may determine the Asset Value and any related Margin Deficit on an individual loan basis for any Purchased Mortgage Loan, in which event it shall, upon receipt, apply all amounts received with respect to such any individual Purchased Asset. Seller shall have Mortgage Loans against the opportunity to challenge the reduction of the Market Value of any Purchased Asset by requesting that Purchaser, at Seller’s sole cost and expense, order (i) if such reduction in Market Value is related to a reduction in the value of the related Mortgaged Property, a third-party appraisal of the related Mortgaged Property or Mortgaged Properties or (ii) if such reduction is otherwise related to a reduction in the value of the Purchased Asset, a third-party valuation of the fair market value of the Purchased Asset. In the interim period while Purchaser is awaiting receipt of and considering such appraisal or valuation, Seller shall post with Purchaser the Margin Amount. In the event that Purchaser subsequently determines that a Credit Event has not occurred or that a Margin Deficit does not exist, the Margin Amount shall be returned to Seller (or such portion thereof as reflects the decrease in the applicable Margin Deficit)Purchase Price thereof.
(b) If Buyer delivers a Margin Call is given by Purchaser to Seller on any Business Day at or prior to 10 10:00 a.m. (New York City time)) on any Business Day, then Seller shall transfer the Margin Payment to Buyer or its designee no later than 5:30 p.m. (New York City time) on such Business Day. In the event Buyer delivers a Margin Call to Seller after 10:00 a.m. (New York City time) on any Business Day, Seller shall cure be required to transfer the related Margin Deficit (which may be by repurchasing the related Purchased Asset in accordance with Article 3(d)) by Payment no later than 5:00 2:00 p.m. (New York City time) on the same Business Day. For the avoidance of doubt, if a Margin Call is given by Purchaser on any Business Day after the time set forth above, such Margin Call shall be considered given prior to such time on the immediately following Business Day.
(c) Seller shall transfer any Margin Payment to the account of Buyer that is referenced in Section 10(a) of this Agreement.
(d) In the event that a Margin Deficit exists with respect to any Purchased Mortgage Loans, Buyer may retain any funds received by it to which the Seller would otherwise be entitled hereunder, which funds (i) shall be held by Buyer against the related Margin Deficit and (ii) may be applied by Buyer against the Repurchase Price of any Purchased Mortgage Loan for which the related Margin Deficit remains otherwise unsatisfied. Notwithstanding the foregoing, Buyer retains the right, in its sole discretion, to make a Margin Call in accordance with the provisions of this Section 7. (e) The failure or delay by Purchaserof Buyer, on any one or more occasions, to exercise its rights under this Article 4 hereunder, shall not change or alter the terms and conditions of this Agreement or limit or waive the right of Purchaser Buyer to do so at a later date date. Seller and Buyer each agree that a failure or delay by Buyer to exercise its rights hereunder shall not limit or waive Buyer’s rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller. Section 8. Taxes. 39
(a) Any and all payments by Seller under or in respect of this Agreement or any other Facility Documents to which Seller is a party shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities (including penalties, interest and additions to tax) with respect thereto, whether now or hereafter imposed, levied, collected, withheld or assessed by any taxation authority or other Governmental Authority (collectively, “Taxes”), unless required by law. If Seller shall be required under any applicable Requirement of Law to deduct or withhold any Taxes from or in respect of any sum payable under or in respect of this Agreement or any of the other Facility Documents to Buyer, (i) Seller shall make all such deductions and withholdings in respect of Taxes, (ii) Seller shall pay the full amount deducted or withheld in respect of Taxes to the relevant taxation authority or other Governmental Authority in accordance with any applicable Requirement of Law, and (iii) the sum payable by Seller shall be increased as may be necessary so that after Seller has made all required deductions and withholdings (including deductions and withholdings applicable to additional amounts payable under this Section 8) Buyer receives an amount equal to the sum it would have received had no such deductions or withholdings been made in respect of Non-Excluded Taxes. For purposes of this Agreement (i) the term “Non-Excluded Taxes” are (a) Taxes other than Excluded Taxes and (b) to the extent not otherwise described in (a), Other Taxes, and (ii) the term “Excluded Taxes” are, in the case of Buyer, (a) Taxes that are imposed on its overall net income (and franchise taxes and branch profits taxes imposed in lieu thereof) by the jurisdiction under the laws of which Buyer is organized or of its applicable lending office, or any political subdivision thereof, or that are Taxes imposed as a result of a present or former connection between the Buyer and the jurisdiction imposing such Tax unless such Taxes are imposed as a result of Buyer having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement or any of the other Facility Documents (in which case such Taxes will be treated as Non-Excluded Taxes), (b) Taxes imposed on amounts payable to or for the account of Buyer with respect to an applicable interest in a Facility Document pursuant to a law in effect on the date on which Buyer acquires such interest in a Facility Document other than amounts with respect to such Taxes that were payable to such Buyer's assignor immediately before such Buyer became a party hereto, (c) Taxes attributable to a Buyer’s failure to provide Seller with the appropriate form, certificate or other document described in subsection (e) of this Section 8, and (d) any withholding Taxes imposed under FATCA.
(b) In addition, Seller hereby agrees to pay any present or future stamp, recording, documentary, excise, property or value-added taxes, or similar taxes, charges or levies that arise from any payment made under or in respect of this Agreement or any other Facility Document or from the execution, delivery or registration of, any performance under, or otherwise with respect to, this Agreement or any other Facility Document (collectively, “Other Taxes”).
(c) Seller hereby agrees to indemnify Buyer for, and to hold it harmless against, the full amount of Non-Excluded Taxes, and the full amount of 40
(d) Within thirty (30) days after the date of any payment of Taxes, Seller (or any Person making such payment on behalf of Seller) shall furnish to Buyer for its own account a certified copy of the official receipt evidencing payment thereof.
(e) For purposes of subsection (e) of this Section 8, the terms “United States” and “United States person” shall have the meanings specified in section 7701 of the Code. Each Buyer (including for avoidance of doubt any assignee, successor or participant) shall deliver or cause to be delivered to Seller the following properly completed and duly executed documents: (i) in the case of a Buyer that is not a United States person, or is a foreign disregarded entity for U.S. federal income tax purposes that is entitled to provide such form, a complete and executed copy of (x) U.S. Internal Revenue Form W-8BEN or U.S. Internal Revenue Form W-8BEN-E in which Buyer claims the benefits of a tax treaty with the United States, if applicable, providing for a zero or reduced rate of withholding (or any successor forms thereto), including all appropriate attachments or (y) a U.S. Internal Revenue Service Form W-8ECI (or any successor forms thereto); or (ii) in the case of an individual, (x) a complete and executed copy of U.S. Internal Revenue Service Form W-8BEN (or any successor forms thereto) and, if applicable, a certificate substantially in the form of Exhibit D (a “Section 8 Certificate”) or (y) a complete and executed copy of U.S. Internal Revenue Service Form W-9 (or any successor forms thereto); or (iii) in the case of a Buyer that is organized under the laws of the United States, any State thereof, or the District of Columbia, a complete and executed copy of U.S. Internal Revenue Service Form W-9 (or any successor forms thereto), including all appropriate attachments; or (iv) in the case of a Buyer that (x) is not organized under the laws of the United States, any State thereof, or the District of Columbia and (y) is treated as a corporation for U.S. federal income tax purposes, a complete and executed copy of U.S. Internal Revenue Service Form W-8BEN-E (or any successor forms thereto) and, if applicable, a Section 8 Certificate; or (v) in the case of a Buyer that (A) is treated as a partnership or other non-corporate entity, and (B) is not organized under the laws of the United States, 41
Appears in 1 contract
Samples: Master Repurchase Agreement and Securities Contract (loanDepot, Inc.)
Margin Maintenance. (a) Purchaser may, If at its option in its sole and absolute discretion, re-determine any time the Market aggregate outstanding amount of the Purchase Price of the Note is greater than the Asset Value for any Purchased Asset in accordance with the definition of Market Value. If there exists related Transaction (such excess, a “Margin Deficit with respect to any Purchased AssetDeficit”), Purchaser may, then the Administrative Agent may by notice to Seller substantially require Seller to transfer to the Administrative Agent for the benefit of Buyer cash in an amount at least equal to the form of Exhibit VIII hereto Margin Deficit (such requirement, a “Margin Call”), require Seller to make a cash payment in reduction of the Repurchase Price of such Purchased Asset, so that after giving effect to such payment, no Margin Deficit shall exist with respect to such Purchased Asset. Seller shall have the opportunity to challenge the reduction of the Market Value of any Purchased Asset by requesting that Purchaser, at Seller’s sole cost and expense, order (i) if such reduction in Market Value is related to a reduction in the value of the related Mortgaged Property, a third-party appraisal of the related Mortgaged Property or Mortgaged Properties or (ii) if such reduction is otherwise related to a reduction in the value of the Purchased Asset, a third-party valuation of the fair market value of the Purchased Asset. In the interim period while Purchaser is awaiting receipt of and considering such appraisal or valuation, Seller shall post with Purchaser the Margin Amount. In the event that Purchaser subsequently determines that a Credit Event has not occurred or that a Margin Deficit does not exist, the Margin Amount shall be returned to Seller (or such portion thereof as reflects the decrease in the applicable Margin Deficit).
(b) If Notice delivered pursuant to Section 2.05(a) may be given by any written or electronic means. With respect to a Margin Call is Call, any notice given by Purchaser on any Business Day at or prior to 10 a.m. before 5:00 p.m. (New York City time)) on a Business Day shall be met, Seller shall cure and the related Margin Deficit (which may be by repurchasing the related Purchased Asset in accordance with Article 3(d)) by Call satisfied, no later than 5:00 p.m. (New York City time) on the same following Business Day. For With respect to a Margin Call, any notice given after 5:00 p.m. (New York City time) on a Business Day shall be met, and the avoidance related Margin Call satisfied, no later than 5:00 p.m. (New York City time) on the second (2nd) Business Day following the date of doubt, if such notice. The foregoing time requirements for satisfaction of a Margin Call is given by Purchaser on any Business Day after are referred to as the time set forth above, such “Margin Call shall be considered given prior to such time on the immediately following Business Day.
(c) Deadlines”. The failure or delay by Purchaserof Buyer, on any one or more occasions, to exercise its rights under this Article 4 hereunder, shall not change or alter the terms and conditions to which this Agreement is subject or limit or waive the right of Purchaser Buyer to do so at a later date date. Seller and Buyer each agree that a failure or delay by Buyer to exercise its rights hereunder shall not limit or waive Buyer’s rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller.
(c) In the event that a Margin Deficit exists, Buyer may retain any funds received by it to which Seller would otherwise be entitled hereunder, which funds (i) may be held by Buyer against the related Margin Deficit (provided that the Buyer shall pay interest thereon at the overnight federal funds rate), or (ii) may be applied by Buyer or the Administrative Agent on its behalf against the Purchase Price. Notwithstanding the foregoing, Buyer retains the right, in its sole discretion, to make a Margin Call in accordance with the provisions of this Section 2.05.
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Margin Maintenance. If the notice to be given by Buyer to Seller under Section 4(a) is given at or before 11:00 a.m. (aEastern time) Purchaser mayon a Business Day, Seller shall transfer cash and/or, if acceptable to Buyer, Additional Purchased Mortgage Loans to Buyer before 6:00 p.m. (Eastern time) on the date of such notice, and if such notice is given after 11:00 a.m. (Eastern time), Seller shall transfer such cash and/or Additional Purchased Mortgage Loans before 10:30 a.m. (Eastern time) on the Business Day following the date of such notice. All cash required to be delivered to Buyer pursuant to this Section 4(b) shall be deposited by Seller into the Operating Account and, provided that no Event of Default has occurred and is continuing, if received by 3:30 p.m. (Eastern Time) shall be applied by Buyer on the Business Day received to reduce pro rata the Purchase Prices of all Purchased Mortgage Loans that are then subject to outstanding Transactions, or if received after such time, will be held by Buyer in the Operating Account as security for the Obligations until the next Business Day after such deposit, when it will be so applied. Following the occurrence and during the continuance of any Event of Default, any such cash may be applied to reduce the Repurchase Price of such Purchased Mortgage Loans as Buyer shall select, with the amount to be applied to the Repurchase Price of any particular Purchased Mortgage Loan to be determined by Buyer, using such reasonable method of allocation as Buyer shall elect in its sole discretion at its option the time. Buyer’s election, in its sole and absolute discretion, re-determine the Market Value for not to make a Margin Call at any Purchased Asset in accordance with the definition of Market Value. If time there exists is a Margin Deficit with respect to shall not in any Purchased Asset, Purchaser may, by notice to Seller substantially in the form of Exhibit VIII hereto (a “Margin Call”), require Seller way limit or impair its right to make a cash payment in reduction of the Repurchase Price of such Purchased Asset, so that after giving effect to such payment, no Margin Deficit shall exist with respect to such Purchased Asset. Seller shall have the opportunity to challenge the reduction of the Market Value of Call at any Purchased Asset by requesting that Purchaser, at Seller’s sole cost and expense, order (i) if such reduction in Market Value is related to a reduction in the value of the related Mortgaged Property, a third-party appraisal of the related Mortgaged Property or Mortgaged Properties or (ii) if such reduction is otherwise related to a reduction in the value of the Purchased Asset, a third-party valuation of the fair market value of the Purchased Asset. In the interim period while Purchaser is awaiting receipt of and considering such appraisal or valuation, Seller shall post with Purchaser the Margin Amount. In the event that Purchaser subsequently determines that a Credit Event has not occurred or that other time a Margin Deficit does not exist, the Margin Amount shall be returned to Seller exists (or such portion thereof as reflects the decrease in the applicable Margin Deficitstill exists).
(b) If a Margin Call is given by Purchaser on any Business Day at or prior to 10 a.m. (New York City time), Seller shall cure the related Margin Deficit (which may be by repurchasing the related Purchased Asset in accordance with Article 3(d)) by no later than 5:00 p.m. (New York City time) on the same Business Day. For the avoidance of doubt, if a Margin Call is given by Purchaser on any Business Day after the time set forth above, such Margin Call shall be considered given prior to such time on the immediately following Business Day.
(c) The failure or delay by Purchaser, on any one or more occasions, to exercise its rights under this Article 4 shall not change or alter the terms and conditions or limit or waive the right of Purchaser to do so at a later date or in any way create additional rights for Seller.
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Margin Maintenance. (a) Purchaser Buyer may, at its option in its sole and absolute discretion, re-determine the Market Value for any Purchased Asset in accordance with the definition of Market Value. If there exists if a Margin Deficit with respect Event has occurred, at any time and from time to any Purchased Assettime. If a Margin Deficit Event then exists that results in a Margin Deficit that equals or exceeds the applicable Margin Deficit Threshold, Purchaser may, then Buyer may by notice to Seller substantially in the form of Exhibit VIII hereto VII (a “Margin CallDeficit Notice”), ) require Seller to make a cash payment in reduction of the Repurchase outstanding Purchase Price of for such Purchased AssetAsset such that, so that after giving effect to such payment, no Margin Deficit shall exist with respect to such the related Purchased Asset. Seller shall have perform the opportunity to challenge obligations under this Article 4(a) by the reduction close of the Market Value of any Purchased Asset by requesting that Purchaser, at Seller’s sole cost and expense, order (i) next succeeding Business Day if such reduction in Market Value is related to a reduction in the value of the related Mortgaged Property, a third-party appraisal of the related Mortgaged Property or Mortgaged Properties or (ii) if such reduction is otherwise related to a reduction in the value of the Purchased Asset, a third-party valuation of the fair market value of the Purchased Asset. In the interim period while Purchaser is awaiting receipt of and considering such appraisal or valuation, Seller shall post with Purchaser the Margin Amount. In the event that Purchaser subsequently determines that a Credit Event has not occurred or that a Margin Deficit does not existNotice was received by Seller prior to 3:00 p.m. New York City time, or, the second (2nd) succeeding Business Day if the Margin Amount shall be returned to Notice was received by Seller (or such portion thereof as reflects the decrease in the applicable Margin Deficit)after 3:00 p.m. New York City time.
(b) If a Margin Call is given by Purchaser on any Business Day at or prior to 10 a.m. (New York City time), Seller shall cure the related Margin Deficit (which may be by repurchasing the related Purchased Asset in accordance with Article 3(d)) by no later than 5:00 p.m. (New York City time) on the same Business Day. For the avoidance of doubt, if a Margin Call is given by Purchaser on any Business Day after the time set forth above, such Margin Call shall be considered given prior to such time on the immediately following Business Day.
(c) The failure or delay by Purchaserof Buyer, on any one or more occasions, to exercise its rights under this Article 4 hereunder, shall not change or alter the terms and conditions to which this Agreement is subject or limit or waive the right of Purchaser Buyer to do so at a later date date. Seller and Buyer each agree that a failure or delay by Buyer to exercise its rights hereunder shall not limit or waive Buyer’s rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller.
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Margin Maintenance. (a) Purchaser may, at its option in its sole and absolute discretion, re-determine the Market Value for any Purchased Asset in accordance with the definition of Market Value. If there exists a Margin Deficit with respect to any Purchased Asset, Purchaser may, by notice to Seller substantially in the form of Exhibit VIII hereto (a “Margin Call”), require Seller to make a cash payment in reduction of the Repurchase Price of such Purchased Asset, so that after giving effect to such payment, no Margin Deficit shall exist with respect to such Purchased Asset. Seller shall have the opportunity to challenge the reduction of the Market Value of any Purchased Asset by requesting that Purchaser, at Seller’s sole cost and expense, order (i) if such reduction in Market Value is related to a reduction in the value of the related Mortgaged Property, a third-party appraisal of the related Mortgaged Property or Mortgaged Properties or (ii) if such reduction is otherwise related to a reduction in the value of the Purchased Asset, a third-party valuation of the fair market value of the Purchased Asset. In the interim period while Purchaser is awaiting receipt of and considering such appraisal or valuation, Seller shall post with Purchaser the Margin Amount. In the event that Purchaser subsequently determines that a Credit Event has not occurred or that a Margin Deficit does not exist, the Margin Amount shall be returned to Seller (or such portion thereof as reflects the decrease in the applicable Margin Deficit).
(b) If a Margin Call is given by Purchaser on any Business Day at or prior to 10 a.m. 12 p.m. (New York City time), Seller shall cure (at Seller’s election) utilize one of any combination of the related Margin Deficit (which may be by repurchasing the related Purchased Asset in accordance with Article 3(d)) following by no later than 5:00 p.m. (New York City time) on the same immediately following Business Day. For Day (the “Margin Deadline”) (for the avoidance of doubt, doubt if a Margin Call is given by Purchaser under Article 4(a) on any Business Day after the time set forth above, such Margin Call shall be considered given prior to such time on the immediately following Business Day), so that after giving effect to such transfer, payment or repurchase, no Margin Deficit shall be outstanding: (A) transfer to Purchaser cash collateral or a letter of credit issued by an institution approved by the Purchaser and in form and substance acceptable to Purchaser in its sole discretion in an amount equal to the Margin Deficit, (B) repurchase one of more Purchased Assets pursuant to Article 3(d), or (C) transfer to Purchaser cash in an amount equal to so much of the Margin Deficit as Seller is able to fund through Unrestricted Cash as of the Margin Deadline. If Seller exercises the option described in Article 4(b)(C), and the required cash payment to Purchaser exceeds the Unrestricted Cash available to the Seller to make such payment by the Margin Deadline, then so long as Seller or Guarantor delivers a written certification to the Purchaser on such date of the Margin Call providing evidence satisfactory to the Purchaser in its reasonable good faith discretion that Seller has access to cash, whether through a capital call by the Guarantor to its limited partners, a sale of assets, a draw on a subscription or similar facility, or otherwise, in an amount equal to satisfy the Margin Deficit in full within three (3) Business Days following the related Margin Deadline, then no later than 5:00 p.m. (New York City time) on the third (3rd) Business Day following the related Margin Deadline, Seller shall transfer to Purchaser cash in an amount equal to the remaining outstanding Margin Deficit, if any; provided, however, that (i) until such Margin Deficit has been satisfied in full, Seller shall notify Purchaser in writing within one (1) Business Day in the event that Guarantor receives notice of a margin call (or similar exercise of remedies) with respect to any other credit facility for which Guarantor is a guarantor and (ii) to the extent that Seller or Guarantor, as applicable, apply any amounts designated as Unrestricted Cash for the satisfaction of any margin call deficit made after the related Margin Deadline in respect of any other credit facility of Seller or Guarantor, as applicable(or similar exercise of remedies), the remaining outstanding Margin Deficit shall become immediately due and payable to Purchaser. To the extent the Guarantor makes a capital call in order to satisfy the Margin Deficit, the failure of the limited partners of Guarantor to honor any capital call by Guarantor within the time set forth herein, and to the extent the related Margin Call is not otherwise satisfied by Seller, shall constitute an immediate Event of Default.
(c) The failure or delay by Purchaser, on any one or more occasions, to exercise its rights under this Article 4 shall not change or alter the terms and conditions or limit or waive the right of Purchaser to do so at a later date or in any way create additional rights for Seller.
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Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
