Exhibit 10.15
[LOGO] Master Repurchase
Agreement
-------------------------------------------------------------------------
September 1996 Version
Dated as of March 20, 2002
Between: Liquid Funding, Ltd.
and LNR CMBS Holdings Corp.
1. Applicability
From time to time the parties hereto may enter into transactions in
which one party ("Seller") agrees to transfer to the other ("Buyer")
securities or other assets ("Securities") against the transfer of
funds by Buyer, with a simultaneous agreement by Buyer to transfer
to Seller such Securities at a date certain or on demand, against
the transfer of funds by Seller. Each such transaction shall be
referred to herein as a "Transaction" and, unless otherwise agreed
in writing, shall be governed by this Agreement, including any
supplemental terms or conditions contained in Annex I hereto and in
any other annexes identified herein or therein as applicable
hereunder.
2. Definitions
(a) "Act of Insolvency", with respect to any party, (i) the
commencement by such party as debtor of any case or proceeding
under any bankruptcy, insolvency, reorganization, liquidation,
moratorium, dissolution, delinquency or similar law, or such
party seeking the appointment or election of a receiver,
conservator, trustee, custodian or similar official for such
party or any substantial part of its property, or the
convening of any meeting of creditors for purposes of
commencing any such case or proceeding or seeking such an
appointment or election, (ii) the commencement of any such
case or proceeding against such party, or another seeking such
an appointment or election, or the filing against a party of
an application for a protective decree under the provisions of
the Securities Investor Protection Act of 1970, which (A) is
consented to or not timely contested by such party, (B)
results in the entry of an order for relief, such an
appointment or election, the issuance of such a protective
decree or the entry of an order having a similar effect, or
(C) is not dismissed within 15 days, (iii) the making by such
party of a general assignment for the benefit
of creditors, or (iv) the admission in writing by such party of
such party's inability to pay such party's debts as they become
due;
(b) "Additional Purchased Securities", Securities provided by Seller
to Buyer pursuant to Paragraph 4(a) hereof;
(c) "Buyer's Margin Amount", with respect to any Transaction as of
any date, the amount obtained by application of the Buyer's
Margin Percentage to the Repurchase Price for such Transaction as
of such date;
(d) "Buyer's Margin Percentage", with respect to any Transaction as
of any date, a percentage (which may be equal to the Seller's
Margin Percentage) agreed to by Buyer and Seller or, in the
absence of any such agreement, the percentage obtained by
dividing the Market Value of the Purchased Securities on the
Purchase Date by the Purchase Price on the Purchase Date for such
Transaction;
(e) "Confirmation", the meaning specified in Paragraph 3(b) hereof;
(f) "Income", with respect to any Security at any time, any principal
thereof and all interest, dividends or other distributions
thereon;
(g) "Margin Deficit", the meaning specified in Paragraph 4(a) hereof;
(h) "Margin Excess" the meaning specified in Paragraph 4(b) hereof;
(i) "Margin Notice Deadline", the time agreed to by the parties in
the relevant Confirmation, Annex I hereto or otherwise as the
deadline for giving notice requiring same-day satisfaction of
margin maintenance obligations as provided in Paragraph 4 hereof
(or, in the absence of any such agreement, the deadline for such
purposes established in accordance with market practice);
(j) "Market Value", with respect to any Securities as of any date,
the price for such Securities on such date obtained from a
generally recognized source agreed to by the parties or the most
recent closing bid quotation from such a source, plus accrued
Income to the extent not included therein (other than any Income
credited or transferred to, or applied to the obligations of,
Seller pursuant to Paragraph 5 hereof) as of such date (unless
contrary to market practice for such Securities);
(k) "Price Differential", with respect to any Transaction as of any
date, the aggregate amount obtained by daily application of the
Pricing Rate for such Transaction to the Purchase Price for such
Transaction on a 360 day per year basis for the actual number of
days during the period commencing on (and including) the Purchase
Date for such Transaction and ending on (but excluding) the date
of determination
2 September 1996 Master Repurchase Agreement
(reduced by any amount of such Price Differential previously paid
by Seller to Buyer with respect to such Transaction);
(l) "Pricing Rate", the per annum percentage rate for determination
of the Price Differential;
(m) "Prime Rate", the prime rate of U.S. commercial banks as
published in The Wall Street Journal (or, if more than one such
rate is published, the average of such rates);
(n) "Purchase Date", the date on which Purchased Securities are to be
transferred by Seller to Buyer;
(o) "Purchase Price", (i) on the Purchase Date, the price at which
Purchased Securities are transferred by Seller to Buyer, and (ii)
thereafter, except where Buyer and Seller agree otherwise, such
price increased by the amount of any cash transferred by Buyer to
Seller pursuant to Paragraph 4 (b) hereof and decreased by the
amount of any cash transferred by Seller to Buyer pursuant to
Paragraph 4(a) hereof or applied to reduce Seller's obligations
under clause (ii) of Paragraph 5 hereof;
(p) "Purchased Securities", the Securities transferred by Seller to
Buyer in a Transaction hereunder, and any Securities substituted
therefor in accordance with Paragraph 9 hereof. The term
"Purchased Securities" with respect to any Transaction at any
time also shall include Additional Purchased Securities delivered
pursuant to Paragraph 4(a) hereof and shall exclude Securities
returned pursuant to Paragraph 4(b) hereof;
(q) "Repurchase Date", the date on which Seller is to repurchase the
Purchased Securities from Buyer, including any date determined by
application of the provisions of Paragraph 3(c) or 11 hereof;
(r) "Repurchase Price", the price at which Purchased Securities are
to be transferred from Buyer to Seller upon termination of a
Transaction, which will be determined in each case (including
Transactions terminable upon demand) as the sum of the Purchase
Price and the Price Differential as of the date of such
determination;
(s) "Seller's Margin Amount", with respect to any Transaction as of
any date, the amount obtained by application of the Seller's
Margin Percentage to the Repurchase Price for such Transaction as
of such date;
(t) "Seller's Margin Percentage", with respect to any Transaction as
of any date, a percentage (which may be equal to the Buyer's
Margin Percentage) agreed to by Buyer and Seller or, in the
absence of any
3 September 1996 Master Repurchase Agreement
such agreement, the percentage obtained by dividing the Market
Value of the Purchased Securities on the Purchase Date by the
Purchase Price on the Purchase Date for such Transaction.
3. Initiation; Confirmation; Termination
(a) An agreement to enter into a Transaction may be made orally or in
writing at the initiation of either Buyer or Seller. On the
Purchase Date for the Transaction, the Purchased Securities shall
be transferred to Buyer or its agent against the transfer of the
Purchase Price to an account of Seller.
(b) Upon agreeing to enter into a Transaction hereunder, Buyer or
Seller (or both), as shall be agreed, shall promptly deliver to
the other party a written confirmation of each Transaction (a
"Confirmation"). The Confirmation shall describe the Purchased
Securities (including CUSIP number, if any), identify Buyer and
Seller and set forth (i) the Purchase Date, (ii) the Purchase
Price, (iii) the Repurchase Date, unless the Transaction is to be
terminable on demand, (iv) the Pricing Rate or Repurchase Price
applicable to the Transaction, and (v) any additional terms or
conditions of the Transaction not inconsistent with this
Agreement. The Confirmation, together with this Agreement, shall
constitute conclusive evidence of the terms agreed between Buyer
and Seller with respect to the Transaction to which the
Confirmation relates, unless with respect to the Confirmation
specific objection is made promptly after receipt thereof. In the
event of any conflict between the terms of such Confirmation and
this Agreement, this Agreement shall prevail.
(c) In the case of Transactions terminable upon demand, such demand
shall be made by Buyer or Seller, no later than such time as is
customary in accordance with market practice, by telephone or
otherwise on or prior to the business day on which such
termination will be effective. On the date specified in such
demand, or on the date fixed for termination in the case of
Transactions having a fixed term, termination of the Transaction
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 Paragraph 5
hereof) against the transfer of the Repurchase Price to an
account of Buyer.
4. Margin Maintenance
(a) If at any time the aggregate Market Value of all Purchased
Securities subject to all Transactions in which a particular
party hereto is acting as Buyer is less than the aggregate
Buyer's Margin Amount for all such Transactions (a "Margin
Deficit"), then Buyer may by notice to Seller require Seller in
such Transactions, at Seller's option, to transfer to Buyer cash
or additional Securities reasonably acceptable to Buyer
4 September 1996 Master Repurchase Agreement
("Additional Purchased Securities"), so that the cash and aggregate
Market Value of the Purchased Securities, including any such
Additional Purchased Securities, will thereupon equal or exceed such
aggregate Buyer's Margin Amount (decreased by the amount of any Margin
Deficit as of such date arising from any Transactions in which such
Buyer is acting as Seller).
(b) If at any time the aggregate Market Value of all Purchased Securities
subject to all Transactions in which a particular party hereto is
acting as Seller exceeds the aggregate Seller's Margin Amount for all
such Transactions at such time (a "Margin Excess"), then Seller may by
notice to Buyer require Buyer in such Transactions, at Buyer's option,
to transfer cash or Purchased Securities to Seller, so that the
aggregate Market Value of the Purchased Securities, after deduction of
any such cash or any Purchased Securities so transferred, will
thereupon not exceed such aggregate Seller's Margin Amount (increased
by the amount of any Margin Excess as of such date arising from any
Transactions in which such Seller is acting as Buyer).
(c) If any notice is given by Buyer or Seller under subparagraph (a) or
(b) of this Paragraph at or before the Margin Notice Deadline on any
business day, the party receiving such notice shall transfer cash or
Additional Purchased Securities as provided in such subparagraph no
later than the close of business in the relevant market on such day.
If any such notice is given after the Margin Notice Deadline, the
party receiving such notice shall transfer such cash or Securities no
later than the close of business in the relevant market on the next
business day following such notice.
(d) Any cash transferred pursuant to this Paragraph shall be attributed to
such Transactions as shall be agreed upon by Buyer and Seller.
(e) Seller and Buyer may agree, with respect to any or all Transactions
hereunder, that the respective rights of Buyer or Seller (or both)
under subparagraphs (a) and (b) of this Paragraph may be exercised
only where a Margin Deficit or Margin Excess, as the case may be,
exceeds a specified dollar amount or a specified percentage of the
Repurchase Prices for such Transactions (which amount or percentage
shall be agreed to by Buyer and Seller prior to entering into any such
Transactions).
(f) Seller and Buyer may agree, with respect to any or all Transactions
hereunder, that the respective rights of Buyer and Seller under
subparagraphs (a) and (b) of this Paragraph to require the elimination
of a Margin Deficit or a Margin Excess, as the case may be, may be
exercised whenever such a Margin Deficit or Margin Excess exists
5 September 1996 Master Repurchase Agreement
with respect to any single Transaction hereunder (calculated
without regard to any other Transaction outstanding under
this Agreement).
5. Income Payments
Seller shall be entitled to receive an amount equal to all Income
paid or distributed on or in respect of the Securities that is
not otherwise received by Seller, to the full extent it would be
so entitled if the Securities had not been sold to Buyer. Buyer
shall, as the parties may agree with respect to any Transaction
(or, in the absence of any such agreement, as Buyer shall
reasonably determine in its discretion), on the date such Income
is paid or distributed either (i) transfer to or credit to the
account of Seller such Income with respect to any Purchased
Securities subject to such Transaction or (ii) with respect to
Income paid in cash, apply the Income payment or payments to
reduce the amount, if any, to be transferred to Buyer by Seller
upon termination of such Transaction. Buyer shall not be
obligated to take any action pursuant to the preceding sentence
(A) to the extent that such action would result in the creation
of a Margin Deficit, unless prior thereto or simultaneously
therewith Seller transfers to Buyer cash or Additional Purchased
Securities sufficient to eliminate such Margin Deficit, or (B) if
an Event of Default with respect to Seller has occurred and is
then continuing at the time such Income is paid or distributed.
6. Security Interest
Although the parties intend that all Transactions hereunder be
sales and purchases and not loans, in the event any such
Transactions are deemed to be loans, Seller shall be deemed to
have pledged to Buyer as security for the performance by Seller
of its obligations under each such Transaction, and shall be
deemed to have granted to Buyer a security interest in, all of
the Purchased Securities with respect to all Transactions
hereunder and all Income thereon and other proceeds thereof.
7. Payment and Transfer
Unless otherwise mutually agreed, all transfers of funds
hereunder shall be in immediately available funds. All Securities
transferred by one party hereto to the other party (i) shall be
in suitable form for transfer or shall be accompanied by duly
executed instruments of transfer or assignment in blank and such
other documentation as the party receiving possession may
reasonably request, (ii) shall be transferred on the book-entry
system of a Federal Reserve Bank, or (iii) shall be transferred
by any other method mutually acceptable to Seller and Buyer.
8. Segregation of Purchased Securities
To the extent required by applicable law, all Purchased
Securities in
6 September 1996 Master Repurchase Agreement
the possession of Seller shall be segregated from other
securities in its possession and shall be identified as subject
to this Agreement. Segregation may be accomplished by appropriate
identification on the books and records of the holder, including
a financial or securities intermediary or a clearing corporation.
All of Seller's interest in the Purchased Securities shall pass
to Buyer on the Purchase Date and, unless otherwise agreed by
Buyer and Seller, nothing in this Agreement shall preclude Buyer
from engaging in repurchase transactions with the Purchased
Securities or otherwise selling, transferring, pledging or
hypothecating the Purchased Securities, but no such transaction
shall relieve Buyer of its obligations to transfer Purchased
Securities to Seller pursuant to Paragraph 3, 4 or 11 hereof, or
of Buyer's obligation to credit or pay Income to, or apply Income
to the obligations of, Seller pursuant to Paragraph 5 hereof.
Required Disclosure for Transactions in Which the Seller Retains Custody of
the Purchased Securities Seller is not permitted to substitute other
securities for those subject to this Agreement and therefore must keep
Buyer's securities segregated at all times, unless in this Agreement Buyer
grants Seller the right to substitute other securities. If Buyer grants the
right to substitute, this means that Buyer's securities will likely be
commingled with Seller's own securities during the trading day. Buyer is
advised that, during any trading day that Buyer's securities are commingled
with Seller's securities, they [will]* [may]** be subject to liens granted
by Seller to [its clearing bank]* [third parties]** and may be used by
Seller for deliveries on other securities transactions. Whenever the
securities are commingled, Seller's ability to resegregate substitute
securities for Buyer will be subject to Seller's ability to satisfy [the
clearing]* [any] ** lien or to obtain substitute securities.
* Language to be used under 17 C.F.R. 403:4 (e) if Seller is a government
securities broker or dealer other than a financial institution.
** Language to be used under 17 C.F.R. 403.5(d) if Seller is a financial
institution.
9. Substitution
(a) Seller may, subject to agreement with and acceptance by
Buyer, substitute other Securities for any Purchased
Securities. Such substitution shall be made by transfer to
Buyer of such other Securities and transfer to Seller of
such Purchased Securities. After substitution, the
substituted Securities shall be deemed to be Purchased
Securities.
(b) In Transactions in which Seller retains custody of Purchased
Securities, the parties expressly agree that Buyer shall be
deemed, for purposes of subparagraph (a) of this Paragraph,
to have agreed to and accepted in this Agreement
substitution by Seller of other Securities
7 September 1996 Master Repurchase Agreement
for Purchased Securities; provided, however, that such other
Securities shall have a Market Value at least equal to the
Market Value of the Purchased Securities for which they are
substituted.
10. Representations
Each of Buyer and Seller represents and warrants to the other
that (i) it is duly authorized to execute and deliver this
Agreement, to enter into Transactions contemplated hereunder and
to perform its obligations hereunder and has taken all necessary
action to authorize such execution, delivery and performance,
(ii) it will engage in such Transactions as principal (or, if
agreed in writing, in the form of an annex hereto or otherwise,
in advance of any Transaction by the other party hereto, as agent
for a disclosed principal), (iii) the person signing this
Agreement on its behalf is duly authorized to do so on its behalf
(or on behalf of any such disclosed principal), (iv) it has
obtained all authorizations of any governmental body required in
connection with this Agreement and the Transactions hereunder and
such authorizations are in full force and effect and (v) the
execution, delivery and performance of this Agreement and the
Transactions hereunder will not violate any law, ordinance,
charter, bylaw or rule applicable to it or any agreement by which
it is bound or by which any of its assets are affected. On the
Purchase Date for any Transaction Buyer and Seller shall each be
deemed to repeat all the foregoing representations made by it.
11. Events of Default
In the event that (i) Seller fails to transfer or Buyer fails to
purchase Purchased Securities upon the applicable Purchase Date,
(ii) Seller fails to repurchase or Buyer fails to transfer
Purchased Securities upon the applicable Repurchase Date, (iii)
Seller or Buyer fails to comply with Paragraph 4 hereof, (iv)
Buyer fails, after one business day's notice, to comply with
Paragraph 5 hereof, (v) an Act of Insolvency occurs with respect
to Seller or Buyer, (vi) any representation made by Seller or
Buyer shall have been incorrect or untrue in any material respect
when made or repeated or deemed to have been made or repeated, or
(vii) Seller or Buyer shall admit to the other its inability to,
or its intention not to, perform any of its obligations hereunder
(each an "Event of Default"):
(a) The nondefaulting party may, at its option (which option
shall be deemed to have been exercised immediately upon the
occurrence of an Act of Insolvency), declare an Event of
Default to have occurred hereunder and, upon the exercise or
deemed exercise of such option, the Repurchase Date for each
Transaction hereunder shall, if it has not already occurred,
be deemed immediately to occur (except that, in the event
that the Purchase Date for any Transaction has not yet
occurred as of the date of such exercise or deemed exercise,
such Transaction
8 September 1996 Master Repurchase Agreement
shall be deemed immediately canceled). The nondefaulting
party shall (except upon the occurrence of an Act of
Insolvency) give notice to the defaulting party of the
exercise of such option as promptly as practicable.
(b) In all Transactions in which the defaulting party is acting
as Seller, if the nondefaulting party exercises or is deemed
to have exercised the option referred to in subparagraph (a)
of this Paragraph, (i) the defaulting party's obligations in
such Transactions to repurchase all Purchased Securities, at
the Repurchase Price therefor on the Repurchase Date
determined in accordance with subparagraph (a) of this
Paragraph, shall thereupon become immediately due and
payable, (ii) all Income paid after such exercise or deemed
exercise shall be retained by the nondefaulting party and
applied to the aggregate unpaid Repurchase Prices and any
other amounts owing by the defaulting party hereunder, and
(iii) the defaulting party shall immediately deliver to the
nondefaulting party any Purchased Securities subject to such
Transactions then in the defaulting party's possession or
control.
(c) In all Transactions in which the defaulting party is acting
as Buyer, upon tender by the nondefaulting party of payment
of the aggregate Repurchase Prices for all such
Transactions, all right, title and interest in and
entitlement to all Purchased Securities subject to such
Transactions shall be deemed transferred to the
nondefaulting party, and the defaulting party shall deliver
all such Purchased Securities to the nondefaulting party.
(d) If the nondefaulting party exercises or is deemed to have
exercised the option referred to in subparagraph (a) of this
Paragraph, the nondefaulting party, without prior notice to
the defaulting party, may:
(i) as to Transactions in which the defaulting party is
acting as Seller, (A) immediately sell, in a recognized
market (or otherwise in a commercially reasonable
manner) at such price or prices as the nondefaulting
party may reasonably deem satisfactory, any or all
Purchased Securities subject to such Transactions and
apply the proceeds thereof to the aggregate unpaid
Repurchase Prices and any other amounts owing by the
defaulting party hereunder or (B) in its sole
discretion elect, in lieu of selling all or a portion
of such Purchased Securities, to give the defaulting
party credit for such Purchased Securities in an amount
equal to the price therefor on such date, obtained from
a generally recognized source or the most recent
closing bid quotation from such a source, against the
aggregate unpaid Repurchase Prices and any other
amounts owing by the defaulting party hereunder; and
9 September 1996 Master Repurchase Agreement
(ii) as to Transactions in which the defaulting party is
acting as Buyer, (A) immediately purchase, in a
recognized market (or otherwise in a commercially
reasonable manner) at such price or prices as the
nondefaulting party may reasonably deem satisfactory,
securities ("Replacement Securities") of the same class
and amount as any Purchased Securities that are not
delivered by the defaulting party to the nondefaulting
party as required hereunder or (B) in its sole
discretion elect, in lieu of purchasing Replacement
Securities, to be deemed to have purchased Replacement
Securities at the price therefor on such date, obtained
from a generally recognized source or the most recent
closing offer quotation from such a source.
Unless otherwise provided in Annex I, the parties acknowledge and
agree that (1) the Securities subject to any Transaction
hereunder are instruments traded in a recognized market, (2) in
the absence of a generally recognized source for prices or bid or
offer quotations for any Security, the nondefaulting party may
establish the source therefor in its sole discretion and (3) all
prices, bids and offers shall be determined together with accrued
Income (except to the extent contrary to market practice with
respect to the relevant Securities).
(e) As to Transactions in which the defaulting party is acting
as Buyer, the defaulting party shall be liable to the
nondefaulting party for any excess of the price paid (or
deemed paid) by the nondefaulting party for Replacement
Securities over the Repurchase Price for the Purchased
Securities replaced thereby and for any amounts payable by
the defaulting party under Paragraph 5 hereof or otherwise
hereunder.
(f) For purposes of this Paragraph 11, the Repurchase Price for
each Transaction hereunder in respect of which the
defaulting party is acting as Buyer shall not increase above
the amount of such Repurchase Price for such Transaction
determined as of the date of the exercise or deemed exercise
by the nondefaulting party of the option referred to in
sub-paragraph (a) of this Paragraph.
(g) The defaulting party shall be liable to the nondefaulting
party for (i) the amount of all reasonable legal or other
expenses incurred by the nondefaulting party in connection
with or as a result of an Event of Default, (ii) damages in
an amount equal to the cost (including all fees, expenses
and commissions) of entering into replacement transactions
and entering into or terminating hedge transactions in
connection with or as a result of an Event of Default, and
(iii) any other loss, damage, cost or expense directly
arising or resulting from the occurrence of an Event of
Default in respect of a Transaction.
(h) To the extent permitted by applicable law, the defaulting
party shall be liable to the non-defaulting party for
interest on any amounts owing by
10 September 1996 Master Repurchase Agreement
the defaulting party hereunder, from the date the defaulting
party becomes liable for such amounts hereunder until such
amounts are (i) paid in full by the defaulting party or (ii)
satisfied in full by the exercise of the nondefaulting
party's rights hereunder. Interest on any sum payable by the
defaulting party to the nondefaulting party under this
Paragraph 11(h) shall be at a rate equal to the greater of
the Pricing Rate for the relevant Transaction or the Prime
Rate.
(i) The nondefaulting party shall have, in addition to its
rights hereunder, any rights otherwise available to it under
any other agreement or applicable law.
12. Single Agreement
Buyer and Seller acknowledge that, and have entered hereinto and
will enter into each Transaction hereunder in consideration of
and in reliance upon the fact that, all Transactions hereunder
constitute a single business and contractual relationship and
have been made in consideration of each other. Accordingly, each
of Buyer and Seller agrees (i) to perform all of its obligations
in respect of each Transaction hereunder, and that a default in
the performance of any such obligations shall constitute a
default by it in respect of all Transactions hereunder, (ii) that
each of them shall be entitled to set off claims and apply
property held by them in respect of any Transaction against
obligations owing to them in respect of any other Transactions
hereunder and (iii) that payments, deliveries and other transfers
made by either of them in respect of any Transaction shall be
deemed to have been made in consideration of payments, deliveries
and other transfers in respect of any other Transactions
hereunder, and the obligations to make any such payments,
deliveries and other transfers may be applied against each other
and netted.
13. Notices and Other Communications
Any and all notices, statements, demands or other communications
hereunder may be given by a party to the other by mail,
facsimile, telegraph, messenger or otherwise to the address
specified in Annex II hereto, or so sent to such party at any
other place specified in a notice of change of address hereafter
received by the other. All notices, demands and requests
hereunder may be made orally, to be confirmed promptly in
writing, or by other communication as specified in the preceding
sentence.
14. Entire Agreement; Severability
This Agreement shall supersede any existing agreements between
the parties containing general terms and conditions for
repurchase transactions. Each provision and agreement herein
shall be treated as separate and independent from any other
provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of
11 September 1996 Master Repurchase Agreement
any such other provision or agreement.
15. Non-assignability; Termination
(a) The rights and obligations of the parties under this
Agreement and under any Transaction shall not be assigned by
either party without the prior written consent of the other
party, and any such assignment without the prior written
consent of the other party shall be null and void. Subject
to the foregoing, this Agreement and any Transactions shall
be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns. This
Agreement may be terminated by either party upon giving
written notice to the other, except that this Agreement
shall, notwithstanding such notice, remain applicable to any
Transactions then outstanding.
(b) Subparagraph (a) of this Paragraph 15 shall not preclude a
party from assigning, charging or otherwise dealing with all
or any part of its interest in any sum payable to it under
Paragraph 11 hereof.
16. Governing Law
This Agreement shall be governed by the laws of the State of New
York without giving effect to the conflict of law principles
thereof.
17. No Waivers, Etc.
No express or implied waiver of any Event of Default by either
party shall constitute a waiver of any other Event of Default and
no exercise of any remedy hereunder by any party shall constitute
a waiver of its right to exercise any other remedy hereunder. No
modification or waiver of any provision of this Agreement and no
consent by any party to a departure herefrom shall be effective
unless and until such shall be in writing and duly executed by
both of the parties hereto. Without limitation on any of the
foregoing, the failure to give a notice pursuant to Paragraph
4(a) or 4(b) hereof will not constitute a waiver of any right to
do so at a later date.
18. Use of Employee Plan Assets
(a) If assets of an employee benefit plan subject to any
provision of the Employee Retirement Income Security Act of
1974 ("ERISA") are intended to be used by either party
hereto (the "Plan Party") in a Transaction, the Plan Party
shall so notify the other party prior to the Transaction.
The Plan Party shall represent in writing to the other party
that the Transaction does not constitute a prohibited
transaction under ERISA or is otherwise exempt therefrom,
and the other party may proceed in reliance thereon but
shall not be required so to proceed.
(b) Subject to the last sentence of subparagraph (a) of this
Paragraph, any such Transaction shall proceed only if Seller
furnishes or has furnished to Buyer its most recent
available audited statement of its financial
12 September 1996 Master Repurchase Agreement
condition and its most recent subsequent unaudited statement
of its financial condition.
(c) By entering into a Transaction pursuant to this Paragraph,
Seller shall be deemed (i) to represent to Buyer that since
the date of Seller's latest such financial statements, there
has been no material adverse change in Seller's financial
condition which Seller has not disclosed to Buyer, and (ii)
to agree to provide Buyer with future audited and unaudited
statements of its financial condition as they are issued, so
long as it is a Seller in any outstanding Transaction
involving a Plan Party.
19. Intent
(a) The parties recognize that each Transaction is a "repurchase
agreement" as that term is defined in Section 101 of Title
11 of the United States Code, as amended (except insofar as
the type of Securities subject to such Transaction or the
term of such Transaction would render such definition
inapplicable), and a "securities contract" as that term is
defined in Section 741 of Title 11 of the United States
Code, as amended (except insofar as the type of assets
subject to such Transaction would render such definition
inapplicable).
(b) It is understood that either party's right to liquidate
Securities delivered to it in connection with Transactions
hereunder or to exercise any other remedies pursuant to
Paragraph 11 hereof is a contractual right to liquidate such
Transaction as described in Sections 555 and 559 of Title 11
of the United States Code, as amended.
(c) The parties agree and acknowledge that if a party hereto is
an "insured depository institution," as such term is defined
in the Federal Deposit Insurance Act, as amended ("FDIA"),
then each Transaction hereunder is a "qualified financial
contract," as that term is defined in FDIA and any rules,
orders or policy statements thereunder (except insofar as
the type of assets subject to such Transaction would render
such definition inapplicable).
(d) It is understood that this Agreement constitutes a "netting
contract" as defined in and subject to Title IV of the
Federal Deposit Insurance Corporation Improvement Act of
1991 ("FDICIA") and each payment entitlement and payment
obligation under any Transaction hereunder shall constitute
a "covered contractual payment entitlement" or "covered
contractual payment obligation", respectively, as defined in
and subject to FDICIA (except insofar as one or both of the
parties is not a "financial institution" as that term is
defined in FDICIA).
20. Disclosure Relating to Certain Federal Protections
The parties acknowledge that they have been advised that:
13 September 1996 Master Repurchase Agreement
(a) in the case of Transactions in which one of the parties is a
broker or dealer registered with the Securities and Exchange
Commission ("SEC") under Section 15 of the Securities
Exchange Act of 1934 ("1934 Act"), the Securities Investor
Protection Corporation has taken the position that the
provisions of the Securities Investor Protection Act of 1970
("SIPA") do not protect the other party with respect to any
Transaction hereunder;
(b) in the case of Transactions in which one of the parties is a
government securities broker or a government securities
dealer registered with the SEC under Section 15C of the 1934
Act, SIPA will not provide protection to the other party
with respect to any Transaction hereunder; and
(c) in the case of Transactions in which one of the parties is a
financial institution, funds held by the financial
institution pursuant to a Transaction hereunder are not a
deposit and therefore are not insured by the Federal Deposit
Insurance Corporation or the National Credit Union Share
Insurance Fund, as applicable.
By: Liquid Funding, Ltd. By: LNR CMBS Holdings Corp.
------------------------------- -------------------------------
Title: ____________________________ Title: ____________________________
Date: ____________________________ Date: ____________________________
14 September 0000 Xxxxxx Xxxxxxxxxx Agreement
