Defaulting Buyers. (a) Notwithstanding any provision of this Agreement to the contrary, if any Buyer becomes a Defaulting Buyer, then the following provisions shall apply for so long as such Buyer is a Defaulting Buyer: (i) The applicable fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Buyer pursuant to Section 9.1; (ii) The Commitment of and the outstanding Purchase Prices paid by such Defaulting Buyer shall not be included in determining whether all Buyers or the Required Buyers have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 22), provided that (a) the Committed Sum of any Defaulting Buyer may not be increased or extended without the consent of such Buyer, and (b) any amendment, waiver, consent or other action or inaction requiring the consent of all Buyers or each affected Buyer that by its terms affects any Defaulting Buyer more adversely than the other affected Buyers shall require the consent of such Defaulting Buyer; (iii) If any Swing Line Transactions shall exist at the time a Buyer becomes a Defaulting Buyer, then the Seller shall within one Business Day following notice by the Agent repurchase the Purchased Loans subject to such Swing Line Transaction. (b) Notwithstanding any provision of this Agreement to the contrary, if the Defaulting Buyer is a Nonfunding Buyer, and the Agent or the other Buyer(s) (electively, in accordance with Section 2.1) fund or pay any other amounts required to be paid by it hereunder which the Nonfunding Buyer failed to fund or pay (the “Unfunded Amount”), then (i) the respective ownership interests of both (A) the Nonfunding Buyer and (B) Agent or the Buyer (or Buyers) that funded or paid the Unfunded Amount, shall be proportionately decreased and increased, respectively, to the same extent as if their respective Committed Sums were changed in direct proportion to the unreimbursed balance outstanding from time to time thereafter of the amount so funded or paid; (ii) the Nonfunding Buyer’s share of all subsequent distributions of Repurchase Prices and other realizations on the Purchased Loans received shall be paid to the Agent and/or other Buyer(s) that so funded the Unfunded Amount until the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and (iii) such adjustment shall remain in effect until such time as the Agent and/or other Buyer(s) that funded or paid the Unfunded Amount have been so fully repaid. (c) If no other Buyer funds or pays any of the Unfunded Amount, then the Pro Rata ownership interests of the Buyers in the Purchased Loans shall be changed so that each Buyer’s Pro Rata ownership interest in the Purchased Loans is equal to the ratio of (i) the sum of the portions of the Purchase Prices paid by that Buyer in all Open Transactions on that day, together with all other unreimbursed amounts paid by that Buyer under this Agreement or the other Transaction Documents (including, MASTER REPURCHASE AGREEMENT – Page 40 13312-786/M/I Financial Warehouse Facility without limitation, in respect of Swing Line Transactions and under Sections 22.10(d) hereof) as of such day to (ii) the total of the Purchase Prices paid by all Buyers in all Open Transactions on that day, together with all other unreimbursed amounts paid by all Buyers under this Agreement or the other Transaction Documents (including, without limitation, in respect of Swing Line Transactions and under Section 22.10(d) hereof) as of such day. The Nonfunding Buyer’s share of all subsequent distributions of any Repurchase Price, Margin Deficit payments and other realizations on the Purchased Loans received shall be paid to the other Buyers, pro rata among them in the ratio that the Pro Rata ownership interest in the Purchased Loans owned by each bears to the aggregate Pro Rata ownership interests in the Purchased Loans of all such other Buyers, and the Buyers’ respective Pro Rata ownership interests in the Purchased Loans shall be readjusted after each such payment, until their Pro Rata ownership interests are restored to what they were before any Nonfunding Buyer failed to fund or pay the Unfunded Amount. Notwithstanding any such changes in the Buyers’ Pro Rata ownership interests in any Purchased Loan due to Nonfunding Buyer’s failure to fund or pay an Unfunded Amount, such failure to fund shall not diminish any Buyer’s Funding Share(s) for subsequent Transactions. (d) Without limiting the foregoing, in the event that a Buyer becomes a Nonfunding Buyer, such Nonfunding Buyer shall have no right to receive any amounts owing to such Nonfunding Buyer under this Agreement or the other Transaction Documents until such Buyer ceases to be a Nonfunding Buyer, which shall occur: (i) in the event that the Agent or any other Buyer(s) fund or pay the Unfunded Amount (as described in Section 3.10(c)), at the time the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and (ii) in the event that neither the Agent nor any other Buyer funds or pays any of the Unfunded Amount (as described in Section 3.10(c)), at the time the Buyers’ Pro Rata ownership interests are restored to what they were before such Nonfunding Buyer failed to fund or pay the Unfunded Amount. (e) For so long as such Buyer is a Nonfunding Buyer, all of the following shall apply: (i) The amounts owing by such Nonfunding Buyer under this Agreement and the other Transaction Documents shall be deducted from and set off against the amounts otherwise owing to such Nonfunding Buyer under this Agreement and the other Transaction Documents. (ii) Such Nonfunding Buyer shall immediately pay to the Agent all sums of any kind paid to or received by such Nonfunding Buyer from the Seller or otherwise with respect to a Transaction, whether pursuant to the terms of this Agreement or the other Transaction Documents or in connection with the realization of the security therefor. Notwithstanding the fact that such Nonfunding Buyer may temporarily hold such sums, such Nonfunding Buyer shall be deemed to hold the same as a trustee and for the benefit of the Agent, it being the express intention of the Buyers that the Agent shall distribute such sums in accordance with the terms of this Agreement. (f) Notwithstanding anything contained herein to the contrary, if a Buyer becomes a Defaulting Buyer hereunder, then, upon notice to such Buyer, until such Buyer ceases to be a Defaulting Buyer, the Agent shall have the right, in its sole and absolute discretion and at such time or times that the Agent shall determine, to apply amounts which otherwise would be owing to such Defaulting Buyer under this Agreement and the other Transaction Documents to a deposit account, to be held in MASTER REPURCHASE AGREEMENT – Page 41 13312-786/M/I Financial Warehouse Facility such account and released as appropriate to satisfy such Defaulting Buyer’s potential future funding obligations with respect to Transactions (including Swing Line Transactions) under this Agreement. (g) If any Buyer becomes a Defaulting Buyer hereunder, then the Seller may, at its sole expense and effort, upon notice to such Buyer and the Agent, require such Buyer to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 22.17) all its interests, rights and obligations under this Agreement to an assignee (which assignee may be another Buyer) that shall assume such obligations, all in accordance with the procedures and conditions set forth in Section 26.4 hereof. (h) In the event that the Agent, the Seller and the Swing Line Buyer each agrees that a Defaulting Buyer has adequately remedied all matters that caused such Buyer to be a Defaulting Buyer (“Redeemed Buyer”), then the Swing Line Exposure of the other Buyers shall be readjusted to reflect the inclusion of such Redeemed Buyer’s Commitment and on such date such Redeemed Buyer shall purchase from the other Buyers at par a portion of the Open Transactions and take such other actions as the Agent shall determine may be necessary in order for such Redeemed Buyer to participate in such Open Transactions in accordance with its Pro Rata share, at which point the Redeemed Buyer shall cease to be a Defaulting Buyer. For purposes of this Section 3.10, “Swing Line Exposure” means, with respect to any Buyer at any time, such Buyer’s Pro Rata share of the aggregate Purchase Prices of all Swing Line Transactions outstanding at such time.
Appears in 1 contract
Defaulting Buyers. The obligations of the Buyers hereunder to pay its Allocation Percentage of the Purchase Price and to make payments pursuant to this Agreement are several and not joint. The failure of any Buyer to make pay any such Allocation Percentage of the Purchase Price or to make any payment on any date required pursuant to this Agreement shall not relieve any other Buyer of its corresponding obligation to do so on such date, and no Buyer shall be responsible for the failure of any other Buyer to so make its Allocation Percentage of the Purchase Price or to make any of its other payment required under this Agreement.
(a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Buyer becomes a Defaulting Buyer, then the following provisions shall apply for so long then, until such time as such that Buyer is a Defaulting Buyer:
(i) The applicable fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Buyer pursuant to Section 9.1;
(ii) The Commitment of and the outstanding Purchase Prices paid by such Defaulting Buyer shall not be included in determining whether all Buyers or the Required Buyers have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 22), provided that (a) the Committed Sum of any Defaulting Buyer may not be increased or extended without the consent of such Buyer, and (b) any amendment, waiver, consent or other action or inaction requiring the consent of all Buyers or each affected Buyer that by its terms affects any Defaulting Buyer more adversely than the other affected Buyers shall require the consent of such Defaulting Buyer;
(iii) If any Swing Line Transactions shall exist at the time a Buyer becomes no longer a Defaulting Buyer, then to the Seller shall within one Business Day following notice extent permitted by the Agent repurchase the Purchased Loans subject to such Swing Line Transaction.Applicable Law:
(b) Notwithstanding To the extent a Buyer has become a Defaulting Buyer due to its failure to Allocation Percentage of the Purchase Price or make a payment pursuant to clause (a) or (b) of the definition of “Defaulting Buyer”, then the other Buyers, or any provision of this Agreement them, shall have the right, but not the obligation to the contrary, if purchase all or any part of its Allocation Percentage of any such Defaulting Buyer Deficiency that should have been made by the Defaulting Buyer is a Nonfunding Buyer, and the Agent or Defaulting Buyer agrees to repay upon demand to each of the other Buyer(s) Buyers who has advanced a portion of the Defaulting Buyer Deficiency the amount advanced on behalf of the Defaulting Buyer, together with price differential thereon at the Default Rate (electivelywhich, in accordance with Section 2.1) fund or pay any other amounts required to be paid by it hereunder which for the Nonfunding Buyer failed to fund or pay (the “Unfunded Amount”), then
(i) the respective ownership interests avoidance of both (A) the Nonfunding Buyer and (B) Agent or the Buyer (or Buyers) that funded or paid the Unfunded Amountdoubt, shall not be proportionately decreased and increasedpayable or reimbursable by Seller). To the extent that the Defaulting Buyer thereafter funds such Defaulting Buyer Deficiency with price differential thereon, respectivelyif applicable, such Buyer shall no longer be a Defaulting Buyer. If more than one Buyer elects to advance a portion of a Defaulting Buyer Deficiency, such Buyers’ advances shall be made based on the same extent relative Applicable Percentage of each such advancing Buyer or as if their respective Committed Sums were changed in direct proportion to the unreimbursed balance outstanding otherwise agreed by such Buyers. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Buyer arising from time to time thereafter such Buyer having become a Defaulting Buyer, including any claim of the amount so funded or paid;
(ii) the Nonfunding any Non-Defaulting Buyer as a result of such Non-Defaulting Buyer’s share of all subsequent distributions of Repurchase Prices and other realizations on the Purchased Loans received shall be paid to the Agent and/or other Buyer(s) that so funded the Unfunded Amount until the Agent and/or increased exposure following such other Buyer(s) have been fully repaid the amount so funded or paid; and
(iii) such adjustment shall remain in effect until such time as the Agent and/or other Buyer(s) that funded or paid the Unfunded Amount have been so fully repaid.reallocation.
(c) If no other Buyer funds or pays any of the Unfunded Amount, then the Pro Rata ownership interests of the Buyers in the Purchased Loans shall be changed so that each Buyer’s Pro Rata ownership interest in the Purchased Loans is equal to the ratio of (i) the sum of the portions of the Purchase Prices paid by that Buyer in all Open Transactions on that day, together with all other unreimbursed amounts paid by that Buyer under this Agreement or the other Transaction Documents (including, MASTER REPURCHASE AGREEMENT – Page 40 13312-786/M/I Financial Warehouse Facility without limitation, in respect of Swing Line Transactions and under Sections 22.10(d) hereof) as of such day to (ii) the total of the Purchase Prices paid by all Buyers in all Open Transactions on that day, together with all other unreimbursed amounts paid by all Buyers under this Agreement or the other Transaction Documents (including, without limitation, in respect of Swing Line Transactions and under Section 22.10(d) hereof) as of such day. The Nonfunding Buyer’s share of all subsequent distributions Any payment of any Repurchase Price, Margin Deficit payments and fees or other realizations on amounts received by Administrate Agent for the Purchased Loans received shall be paid to the other Buyers, pro rata among them in the ratio that the Pro Rata ownership interest in the Purchased Loans owned by each bears to the aggregate Pro Rata ownership interests in the Purchased Loans account of all such other Buyers, and the Buyers’ respective Pro Rata ownership interests in the Purchased Loans shall be readjusted after each such payment, until their Pro Rata ownership interests are restored to what they were before any Nonfunding Defaulting Buyer failed to fund (whether voluntary or pay the Unfunded Amount. Notwithstanding any such changes in the Buyers’ Pro Rata ownership interests in any Purchased Loan due to Nonfunding Buyer’s failure to fund or pay an Unfunded Amount, such failure to fund shall not diminish any Buyer’s Funding Share(s) for subsequent Transactions.
(d) Without limiting the foregoing, in the event that a Buyer becomes a Nonfunding Buyer, such Nonfunding Buyer shall have no right to receive any amounts owing to such Nonfunding Buyer under this Agreement or the other Transaction Documents until such Buyer ceases to be a Nonfunding Buyer, which shall occur: (i) in the event that the Agent or any other Buyer(s) fund or pay the Unfunded Amount (as described in Section 3.10(c))mandatory, at the time the Agent and/or such other Buyer(smaturity or otherwise) have been fully repaid the amount so funded or paid; and (ii) in the event that neither the Agent nor any other Buyer funds or pays any of the Unfunded Amount (as described in Section 3.10(c)), at the time the Buyers’ Pro Rata ownership interests are restored to what they were before such Nonfunding Buyer failed to fund or pay the Unfunded Amount.
(e) For so long as such Buyer is a Nonfunding Buyer, all of the following shall apply:
(i) The amounts owing by such Nonfunding Buyer under this Agreement and the other Transaction Documents shall be deducted from and set off against the amounts otherwise owing to such Nonfunding Buyer under this Agreement and the other Transaction Documents.
(ii) Such Nonfunding Buyer shall immediately pay to the Agent all sums of any kind paid to or received by such Nonfunding Buyer Administrative Agent from the Seller or otherwise with respect to a Transaction, whether pursuant to the terms of this Agreement or the other Transaction Documents or in connection with the realization of the security therefor. Notwithstanding the fact that such Nonfunding Buyer may temporarily hold such sums, such Nonfunding Defaulting Buyer shall be deemed to hold the same as a trustee and for the benefit of the Agent, it being the express intention of the Buyers that the Agent shall distribute such sums in accordance with the terms of this Agreement.
(f) Notwithstanding anything contained herein to the contrary, if a Buyer becomes a Defaulting Buyer hereunder, then, upon notice to such Buyer, until such Buyer ceases to be a Defaulting Buyer, the Agent shall have the right, in its sole and absolute discretion and applied at such time or times that the as may be determined by Administrative Agent shall determineas follows: first, to apply the payment of any amounts which otherwise would be owing to by such Defaulting Buyer under to Administrative Agent hereunder; second, as may request (so long as no Default or Event of Default exists), to the funding of any Purchase Price in respect of which such Defaulting Buyer has failed to fund its portion thereof as required by this Agreement Agreement, as determined by Administrative Agent; third, if so determined by Administrative Agent and the other Transaction Documents to a deposit accountSeller, to be held in MASTER REPURCHASE AGREEMENT – Page 41 13312-786/M/I Financial Warehouse Facility such a deposit account and released as appropriate pro rata in order to satisfy such Defaulting Buyer’s potential future funding obligations with respect to Transactions (including Swing Line Transactions) Purchase Prices under this Agreement.
(g) If ; fourth, to the payment of any amounts owing to the Buyers as a result of any judgment of a court of competent jurisdiction obtained by any Buyer becomes a against such Defaulting Buyer hereunder, then the Seller may, at as a result of such Defaulting Buyer’s breach of its sole expense and effort, upon notice to such Buyer and the Agent, require such Buyer to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 22.17) all its interests, rights and obligations under this Agreement Agreement; fifth, so long as no Margin Deficit, Default or Event of Default exists, to an assignee (the payment of any amounts owing to Seller as a result of any judgment of a court of competent jurisdiction obtained by Seller against such Defaulting Buyer as a result of such Defaulting Buyer’s breach of its obligations under this Agreement; and sixth, to such Defaulting Buyer or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the Repurchase Price with respect to any Purchased Asset in respect of which assignee may such Defaulting Buyer has not fully funded its appropriate share of any related Purchase Price, such payment shall be another Buyer) that shall assume applied solely to pay the Purchase Price of all Non-Defaulting Buyers on a pro rata basis prior to being applied to the payment of any Purchase Price of such obligations, Defaulting Buyer until such time as all Purchase Price are held by the Buyers pro rata in accordance with the procedures Allocation Percentages hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Buyer that are applied (or held) to pay amounts owed by a Defaulting Buyer pursuant to this Section 15.18(c) shall be deemed paid to and redirected by such Defaulting Buyer, and each Buyer irrevocably consents hereto.
(d) If Seller and Administrative Agent agree in writing that a Buyer is no longer a Defaulting Buyer, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth in Section 26.4 hereof.
(h) In therein, that Buyer will, to the event extent applicable, purchase at par that the Agent, the Seller and the Swing Line Buyer each agrees that a Defaulting Buyer has adequately remedied all matters that caused such Buyer to be a Defaulting Buyer (“Redeemed Buyer”), then the Swing Line Exposure portion of outstanding Purchase Price of the other Buyers shall be readjusted to reflect the inclusion of such Redeemed Buyer’s Commitment and on such date such Redeemed Buyer shall purchase from the other Buyers at par a portion of the Open Transactions and or take such other actions as the Agent shall may determine may to be necessary in order for such Redeemed Buyer to participate in such Open Transactions cause the Purchase Prices to be held on a pro rata basis by the Buyers in accordance with its Pro Rata sharetheir Allocation Percentages, at which point the Redeemed whereupon such Buyer shall will cease to be a Defaulting Buyer; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Seller while that Buyer was a Defaulting Buyer; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Buyer to Buyer will constitute a waiver or release of any claim of any party hereunder arising from that Buyer’s having been a Defaulting Buyer.
(e) No Buyer shall be responsible for the failure of any Defaulting Buyer to pay any Purchase Price or other payment required hereunder. For purposes of The rights and remedies against a Defaulting Buyer under this Section 3.10Agreement are in addition to any other rights and remedies, “Swing Line Exposure” meansat law, in equity or otherwise that Administrative Agent, any Buyer, or Seller may have against such Defaulting Buyer with respect to any Defaulting Buyer at any time, such Buyer’s Pro Rata share of the aggregate Purchase Prices of all Swing Line Transactions outstanding at such time.Deficiency or otherwise.
Appears in 1 contract
Sources: Master Repurchase Agreement (EXP World Holdings, Inc.)
Defaulting Buyers. (a) Notwithstanding any provision of this Agreement to the contrary, if any Buyer becomes a Defaulting Buyer, then the following provisions shall apply for so long as such Buyer is a Defaulting Buyer:
(ia) The applicable fees Facility Fees and Non-usage Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Buyer pursuant to Section 9.1;
(iib) The Commitment of and the outstanding Purchase Prices paid by such Defaulting Buyer shall not be included in determining whether all Buyers or the Required Buyers have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 2222.4), provided that (a) the Committed Sum of any Defaulting Buyer may not be increased or extended without the consent of such Buyerwaiver, and (b) any amendment, waiver, consent modification or other action or inaction requiring the consent of all Buyers (including without limitation, any waiver, amendment, modification or each affected Buyer that by its terms action under Section 22.3 hereof), and any waiver, amendment, modification or action (other than actions under this Section 3.9) which affects any such Defaulting Buyer more adversely differently than the other affected Buyers shall require the consent of such Defaulting Buyer;
(iiic) If any Swing Line Transactions shall exist at the time a Buyer becomes a Defaulting Buyer, then the Seller shall within one Business Day following notice by the Agent repurchase the Purchased Loans subject to such Swing Line Transaction.
(b) Notwithstanding any provision of this Agreement to the contrary, if the Defaulting Buyer is a Nonfunding Buyer, and the Agent or the other Buyer(s) (electively, in accordance with Section 2.1) fund or pay any other amounts required to be paid by it hereunder which the Nonfunding Buyer failed to fund or pay (the “Unfunded Amount”), then
(i) the The respective ownership interests of both (Ai) the Nonfunding Defaulting Buyer and (Bii) Agent or the Buyer (or Buyers) that funded or paid the Unfunded Amount, Defaulting Buyer’s Funding Share(s) of any Transaction shall be proportionately decreased and increased, respectively, to the same extent as if their respective Committed Sums were changed in direct proportion to the unreimbursed balance outstanding from time to time thereafter of the amount so funded or paidfunded;
(ii) the Nonfunding Buyer’s share of all subsequent distributions of Repurchase Prices and other realizations on the Purchased Loans received shall be paid to the Agent and/or other Buyer(s) that so funded the Unfunded Amount until the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and
(iii) such adjustment shall remain in effect until such time as the Agent and/or other Buyer(s) that funded or paid the Unfunded Amount have been so fully repaid.
(cd) If no other Buyer funds or pays any of the Unfunded AmountDefaulting Buyer’s Funding Share, then the Pro Rata ownership interests of the Buyers in the Purchased Loans shall be changed changed, so that each Buyer’s Pro Rata ownership interest in the Purchased Loans is equal to the ratio of (i) the sum of the portions of the Purchase Prices paid by that Buyer in all Open Transactions on that day, together with all other unreimbursed amounts paid by that Buyer under this Agreement or the other Transaction Documents (including, MASTER REPURCHASE AGREEMENT – Page 40 13312-786/M/I Financial Warehouse Facility without limitation, in respect of Swing Line Transactions and under Sections 22.10(d) hereof) as of such day to (ii) the total of the Purchase Prices paid by all Buyers in all Open Transactions on that day, together with all other unreimbursed amounts paid by all Buyers under this Agreement or but the other Transaction Documents (including, without limitation, in respect of Swing Line Transactions and under Section 22.10(d) hereof) as of such day. The Nonfunding Defaulting Buyer’s share of all subsequent distributions of any Repurchase Price, Price and Margin Deficit payments and other realizations on the Purchased Loans received shall be paid to the other Buyers, pro rata among them in the ratio that the Pro Rata ownership interest in the Purchased Loans owned by each bears to the aggregate Pro Rata ownership interests in the Purchased Loans of all such other Buyers, and the Buyers’ respective Pro Rata ownership interests in the Purchased Loans shall be readjusted after each such payment, until their Pro Rata ownership interests are restored to what they were before any Nonfunding Defaulting Buyer failed to fund or pay the Unfunded Amountfund. Notwithstanding any such changes in the Buyers’ Pro Rata ownership interests in any Purchased Loan due to Nonfunding any Buyer’s failure to fund or pay an Unfunded Amountits Funding Share(s) of any Transaction, such failure to fund shall not diminish (nor shall it increase except at a Buyer's election pursuant to Section 2.1 hereof) any Buyer’s Funding Share(s) for subsequent Transactions.
(de) Without limiting the foregoingAny amount payable to such Defaulting Buyer hereunder (whether on account of Repurchase Price, Price Differential, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Buyer pursuant to Section 20.2 but excluding Section 6.4) shall, in the event that a Buyer becomes a Nonfunding lieu of being distributed to such Defaulting Buyer, be retained by the Agent in a segregated account and, subject to any applicable requirements of law, be applied at such Nonfunding time or times as may be determined by the Agent (i) first, to the payment of any amounts due and owing by such Defaulting Buyer shall have no right to receive the Agent hereunder, (ii) second, to the funding of any Transaction in respect of which such Defaulting Buyer has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, (iii) third, if so determined by the Agent and the Seller, held in such account as cash collateral for future funding obligations of the Defaulting Buyer under this Agreement, (iv) fourth, pro rata, to the payment of any amounts owing to the Seller or the Buyers as a result of any judgment of a court of competent jurisdiction obtained by any Seller or any Buyer against such Nonfunding Defaulting Buyer as a result of such Defaulting Buyer’s breach of its obligations under this Agreement Agreement, and (v) fifth, to such Defaulting Buyer or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is (x) a Purchase Price Decrease and (y) made at a time when the other Transaction Documents until conditions set forth in Section 14.2 are satisfied, such Buyer ceases payment shall be applied solely to be a Nonfunding reduce the Purchase Prices owed to all Buyers that are not Defaulting Buyers Pro Rata prior to being applied to any Purchase Prices owed to, any Defaulting Buyer. Notwithstanding anything to the contrary herein, as between the Seller and any Defaulting Buyer, which if any payment made by the Seller that would otherwise be payable to a Defaulting Buyer is retained by the Agent and applied as provided in this Section 3.9(e), the Seller’s Obligations to such Defaulting Buyer shall occur: be deemed satisfied to the extent of such payment and the Defaulting Buyer shall not be entitled to ask for or receive any additional amounts (iincluding without limitation, Price Differential) in from Seller with respect to such payment. In the event that the Agent or any other Buyer(s) fund or pay the Unfunded Amount (as described in Section 3.10(c)), at the time the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and (ii) in the event that neither the Agent nor any other Buyer funds or pays any of the Unfunded Amount (as described in Section 3.10(c)), at the time the Buyers’ Pro Rata ownership interests are restored to what they were before such Nonfunding Buyer failed to fund or pay the Unfunded Amount.
(e) For so long as such Buyer is a Nonfunding Buyer, all of the following shall apply:
(i) The amounts owing by such Nonfunding Buyer under this Agreement and the other Transaction Documents shall be deducted from and set off against the amounts otherwise owing to such Nonfunding Buyer under this Agreement and the other Transaction Documents.
(ii) Such Nonfunding Buyer shall immediately pay to the Agent Seller all sums of any kind paid to or received by such Nonfunding Buyer from the Seller or otherwise with respect to a Transaction, whether pursuant to the terms of this Agreement or the other Transaction Documents or in connection with the realization of the security therefor. Notwithstanding the fact that such Nonfunding Buyer may temporarily hold such sums, such Nonfunding Buyer shall be deemed to hold the same as a trustee and for the benefit of the Agent, it being the express intention of the Buyers that the Agent shall distribute such sums in accordance with the terms of this Agreement.
(f) Notwithstanding anything contained herein to the contrary, if a Buyer becomes a Defaulting Buyer hereunder, then, upon notice to such Buyer, until such Buyer ceases to be a Defaulting Buyer, the Agent shall have the right, in its sole and absolute discretion and at such time or times that the Agent shall determine, to apply amounts which otherwise would be owing to such Defaulting Buyer under this Agreement and the other Transaction Documents to a deposit account, to be held in MASTER REPURCHASE AGREEMENT – Page 41 13312-786/M/I Financial Warehouse Facility such account and released as appropriate to satisfy such Defaulting Buyer’s potential future funding obligations with respect to Transactions (including Swing Line Transactions) under this Agreement.
(g) If any Buyer becomes a Defaulting Buyer hereunder, then the Seller may, at its sole expense and effort, upon notice to such Buyer and the Agent, require such Buyer to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 22.17) all its interests, rights and obligations under this Agreement to an assignee (which assignee may be another Buyer) that shall assume such obligations, all in accordance with the procedures and conditions set forth in Section 26.4 hereof.
(h) In the event that the Agent, the Seller and the Swing Line Buyer each agrees agree that a Defaulting Buyer has adequately remedied all matters that caused such Buyer to be a Defaulting Buyer (“Redeemed Buyer”), then the Swing Line Exposure of the other Buyers shall be readjusted to reflect the inclusion of such Redeemed Buyer’s Commitment and on such date such Redeemed Buyer shall purchase from the other Buyers at par a portion of the Open Transactions and take such other actions as the Agent shall determine may be necessary in order for such Redeemed Buyer to participate in such Open Transactions in accordance with its Pro Rata share, . Nothing contained in the foregoing shall be deemed to constitute a waiver by the Seller of any of its rights or remedies (whether in equity or law) against any Buyer which fails to fund any Transaction hereunder at which point the Redeemed Buyer shall cease time or in the amount required to be a Defaulting Buyer. For purposes funded under the terms of this Section 3.10, “Swing Line Exposure” means, with respect to any Buyer at any time, such Buyer’s Pro Rata share of the aggregate Purchase Prices of all Swing Line Transactions outstanding at such timeAgreement.
Appears in 1 contract
Defaulting Buyers. The obligations of the Buyers hereunder to pay its Allocation Percentage of the Purchase Price and to make payments pursuant to this Agreement are several and not joint. The failure of any Buyer to make pay any such Allocation Percentage of the Purchase Price or to make any payment on any date required pursuant to this Agreement shall not relieve any other Buyer of its corresponding obligation to do so on such date, and no Buyer shall be responsible for the failure of any other Buyer to so make its Allocation Percentage of the Purchase Price or to make any of its other payment required under this Agreement.
(a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Buyer becomes a Defaulting Buyer, then the following provisions shall apply for so long then, until such time as such that Buyer is a Defaulting Buyer:
(i) The applicable fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Buyer pursuant to Section 9.1;
(ii) The Commitment of and the outstanding Purchase Prices paid by such Defaulting Buyer shall not be included in determining whether all Buyers or the Required Buyers have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 22), provided that (a) the Committed Sum of any Defaulting Buyer may not be increased or extended without the consent of such Buyer, and (b) any amendment, waiver, consent or other action or inaction requiring the consent of all Buyers or each affected Buyer that by its terms affects any Defaulting Buyer more adversely than the other affected Buyers shall require the consent of such Defaulting Buyer;
(iii) If any Swing Line Transactions shall exist at the time a Buyer becomes no longer a Defaulting Buyer, then to the Seller shall within one Business Day following notice extent permitted by the Agent repurchase the Purchased Loans subject to such Swing Line Transaction.Applicable Law:
(b) Notwithstanding any provision of this Agreement to To the contrary, if the extent a Buyer has become a Defaulting Buyer is a Nonfunding Buyer, and the Agent or the other Buyer(s) (electively, in accordance with Section 2.1) fund or pay any other amounts required due to be paid by it hereunder which the Nonfunding Buyer failed its failure to fund or pay (the “Unfunded Amount”), then
(i) the respective ownership interests of both (A) the Nonfunding Buyer and (B) Agent or the Buyer (or Buyers) that funded or paid the Unfunded Amount, shall be proportionately decreased and increased, respectively, to the same extent as if their respective Committed Sums were changed in direct proportion to the unreimbursed balance outstanding from time to time thereafter of the amount so funded or paid;
(ii) the Nonfunding Buyer’s share of all subsequent distributions of Repurchase Prices and other realizations on the Purchased Loans received shall be paid to the Agent and/or other Buyer(s) that so funded the Unfunded Amount until the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and
(iii) such adjustment shall remain in effect until such time as the Agent and/or other Buyer(s) that funded or paid the Unfunded Amount have been so fully repaid.
(c) If no other Buyer funds or pays any of the Unfunded Amount, then the Pro Rata ownership interests of the Buyers in the Purchased Loans shall be changed so that each Buyer’s Pro Rata ownership interest in the Purchased Loans is equal to the ratio of (i) the sum of the portions Allocation Percentage of the Purchase Prices paid by that Buyer in all Open Transactions on that day, together with all other unreimbursed amounts paid by that Buyer under this Agreement Price or the other Transaction Documents make a payment pursuant to clause (including, MASTER REPURCHASE AGREEMENT – Page 40 13312-786/M/I Financial Warehouse Facility without limitation, in respect of Swing Line Transactions and under Sections 22.10(da) hereofor (b) as of such day to (ii) the total of the Purchase Prices paid by all Buyers in all Open Transactions on that daydefinition of “Defaulting Buyer”, together with all other unreimbursed amounts paid by all Buyers under this Agreement or the other Transaction Documents (including, without limitation, in respect of Swing Line Transactions and under Section 22.10(d) hereof) as of such day. The Nonfunding Buyer’s share of all subsequent distributions of any Repurchase Price, Margin Deficit payments and other realizations on the Purchased Loans received shall be paid to then the other Buyers, pro rata among them in the ratio that the Pro Rata ownership interest in the Purchased Loans owned by each bears to the aggregate Pro Rata ownership interests in the Purchased Loans of all such other Buyers, and the Buyers’ respective Pro Rata ownership interests in the Purchased Loans shall be readjusted after each such payment, until their Pro Rata ownership interests are restored to what they were before any Nonfunding Buyer failed to fund or pay the Unfunded Amount. Notwithstanding any such changes in the Buyers’ Pro Rata ownership interests in any Purchased Loan due to Nonfunding Buyer’s failure to fund or pay an Unfunded Amount, such failure to fund shall not diminish any Buyer’s Funding Share(s) for subsequent Transactions.
(d) Without limiting the foregoing, in the event that a Buyer becomes a Nonfunding Buyer, such Nonfunding Buyer shall have no right to receive any amounts owing to such Nonfunding Buyer under this Agreement or the other Transaction Documents until such Buyer ceases to be a Nonfunding Buyer, which shall occur: (i) in the event that the Agent or any other Buyer(s) fund or pay the Unfunded Amount (as described in Section 3.10(c))of them, at the time the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and (ii) in the event that neither the Agent nor any other Buyer funds or pays any of the Unfunded Amount (as described in Section 3.10(c)), at the time the Buyers’ Pro Rata ownership interests are restored to what they were before such Nonfunding Buyer failed to fund or pay the Unfunded Amount.
(e) For so long as such Buyer is a Nonfunding Buyer, all of the following shall apply:
(i) The amounts owing by such Nonfunding Buyer under this Agreement and the other Transaction Documents shall be deducted from and set off against the amounts otherwise owing to such Nonfunding Buyer under this Agreement and the other Transaction Documents.
(ii) Such Nonfunding Buyer shall immediately pay to the Agent all sums of any kind paid to or received by such Nonfunding Buyer from the Seller or otherwise with respect to a Transaction, whether pursuant to the terms of this Agreement or the other Transaction Documents or in connection with the realization of the security therefor. Notwithstanding the fact that such Nonfunding Buyer may temporarily hold such sums, such Nonfunding Buyer shall be deemed to hold the same as a trustee and for the benefit of the Agent, it being the express intention of the Buyers that the Agent shall distribute such sums in accordance with the terms of this Agreement.
(f) Notwithstanding anything contained herein to the contrary, if a Buyer becomes a Defaulting Buyer hereunder, then, upon notice to such Buyer, until such Buyer ceases to be a Defaulting Buyer, the Agent shall have the right, in but not the obligation to purchase all or any part of its sole and absolute discretion and at such time or times that the Agent shall determine, to apply amounts which otherwise would be owing to Allocation Percentage of any such Defaulting Buyer under this Agreement Deficiency that should have been made by the Defaulting Buyer, and the other Transaction Documents to a deposit account, to be held in MASTER REPURCHASE AGREEMENT – Page 41 13312-786/M/I Financial Warehouse Facility such account and released as appropriate to satisfy such Defaulting Buyer’s potential future funding obligations with respect to Transactions (including Swing Line Transactions) under this Agreement.
(g) If any Buyer becomes a Defaulting Buyer hereunder, then the Seller may, at its sole expense and effort, agrees to repay upon notice demand to such Buyer and the Agent, require such Buyer to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 22.17) all its interests, rights and obligations under this Agreement to an assignee (which assignee may be another Buyer) that shall assume such obligations, all in accordance with the procedures and conditions set forth in Section 26.4 hereof.
(h) In the event that the Agent, the Seller and the Swing Line Buyer each agrees that a Defaulting Buyer has adequately remedied all matters that caused such Buyer to be a Defaulting Buyer (“Redeemed Buyer”), then the Swing Line Exposure of the other Buyers shall be readjusted to reflect the inclusion of such Redeemed Buyer’s Commitment and on such date such Redeemed Buyer shall purchase from the other Buyers at par who has advanced a portion of the Open Transactions and take such other actions as Defaulting Buyer Deficiency the Agent shall determine may be necessary in order for such Redeemed Buyer to participate in such Open Transactions in accordance with its Pro Rata share, at which point the Redeemed Buyer shall cease to be a Defaulting Buyer. For purposes of this Section 3.10, “Swing Line Exposure” means, with respect to any Buyer at any time, such Buyer’s Pro Rata share of the aggregate Purchase Prices of all Swing Line Transactions outstanding at such time.amount advanced on behalf of
Appears in 1 contract
Sources: Master Repurchase Agreement (Altisource Asset Management Corp)
Defaulting Buyers. (a) Notwithstanding any provision of this Agreement to the contrary, if any Buyer becomes a Defaulting Buyer, then the following provisions shall apply for so long as such Buyer is a Defaulting Buyer:
(ia) The applicable fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Buyer pursuant to Section 9.1;
(iib) The the Commitment of and the outstanding Purchase Prices paid by such Defaulting Buyer shall not be included in determining whether all Buyers or the Required Buyers have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 22), provided that (a) the Committed Sum of any Defaulting Buyer may not be increased or extended without the consent of such Buyer, and (b) any amendment, waiver, consent amendment or other action or inaction modification requiring the consent of all Buyers or each affected Buyer that by its terms which affects any such Defaulting Buyer more adversely differently than the other affected Buyers shall require the consent of such Defaulting Buyer;
(iiic) If if any Swing Line Transactions shall exist at the time a Buyer becomes a Defaulting Buyer, Buyer then the Seller shall within one Business Day following notice by the Agent repurchase the Purchased Loans subject to such Swing Line Transaction.Transactions;
(b) Notwithstanding any provision of this Agreement to the contrary, if the Defaulting Buyer is a Nonfunding Buyer, and the Agent or the other Buyer(s) (electively, in accordance with Section 2.1) fund or pay any other amounts required to be paid by it hereunder which the Nonfunding Buyer failed to fund or pay (the “Unfunded Amount”), then
(id) the respective ownership interests of both (Ai) the Nonfunding Defaulting Buyer and (Bii) Agent or the Buyer (or Buyers) that funded or paid the Unfunded Amount, Defaulting Buyer’s Funding Share(s) of any Transaction shall be proportionately decreased and increased, respectively, to the same extent as if their respective Committed Sums were changed in direct proportion to the unreimbursed balance outstanding from time to time thereafter of the amount so funded or paidfunded;
(iie) the Nonfunding Buyer’s share of all subsequent distributions of Repurchase Prices and other realizations on the Purchased Loans received shall be paid to the Agent and/or other Buyer(s) that so funded the Unfunded Amount until the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and
(iii) such adjustment shall remain in effect until such time as the Agent and/or other Buyer(s) that funded or paid the Unfunded Amount have been so fully repaid.
(c) If if no other Buyer funds or pays any of the Unfunded AmountDefaulting Buyer’s Funding Share, then the Pro Rata ownership interests of the Buyers in the Purchased Loans shall be changed changed, so that each Buyer’s Pro Rata ownership interest in the Purchased Loans is equal to the ratio of (i) the sum of the portions of the Purchase Prices paid by that Buyer in all Open Transactions on that day, together with all other unreimbursed amounts paid by that Buyer under this Agreement or the other Transaction Documents (including, MASTER REPURCHASE AGREEMENT – Page 40 13312-786/M/I Financial Warehouse Facility without limitation, in respect of Swing Line Transactions and under Sections 22.10(d) hereof) as of such day to (ii) the total of the Purchase Prices paid by all Buyers in all Open Transactions on that day, together with all other unreimbursed amounts paid by all Buyers under this Agreement or but the other Transaction Documents (including, without limitation, in respect of Swing Line Transactions and under Section 22.10(d) hereof) as of such day. The Nonfunding Defaulting Buyer’s share of all subsequent distributions of any Repurchase Price, Price and Margin Deficit payments and other realizations on the Purchased Loans received shall be paid to the other Buyers, pro rata among them in the ratio that the Pro Rata ownership interest in the Purchased Loans owned by each bears to the aggregate Pro Rata ownership interests in the Purchased Loans of all such other Buyers, and the Buyers’ respective Pro Rata ownership interests in the Purchased Loans shall be readjusted after each such payment, until their Pro Rata ownership interests are restored to what they were before any Nonfunding Defaulting Buyer failed to fund or pay the Unfunded Amountfund. Notwithstanding any such changes in the Buyers’ Pro Rata ownership interests in any Purchased Loan due to Nonfunding any Buyer’s failure to fund or pay an Unfunded Amountits Funding Share(s) of any Transaction, such failure to fund shall not diminish any Buyer’s Funding Share(s) for subsequent Transactions.
(df) Without limiting the foregoingany amount payable to such Defaulting Buyer hereunder (whether on account of Repurchase Price, Price Differential, Margin Deficits, Purchase Price Decrease, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Buyer pursuant to Section 20.2 but excluding Section 6.4) shall, in the event that a Buyer becomes a Nonfunding Buyer, such Nonfunding Buyer shall have no right to receive any amounts owing lieu of being distributed to such Nonfunding Buyer under this Agreement or the other Transaction Documents until such Buyer ceases to be a Nonfunding Buyer, which shall occur: (i) in the event that the Agent or any other Buyer(s) fund or pay the Unfunded Amount (as described in Section 3.10(c)), at the time the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and (ii) in the event that neither the Agent nor any other Buyer funds or pays any of the Unfunded Amount (as described in Section 3.10(c)), at the time the Buyers’ Pro Rata ownership interests are restored to what they were before such Nonfunding Buyer failed to fund or pay the Unfunded Amount.
(e) For so long as such Buyer is a Nonfunding Buyer, all of the following shall apply:
(i) The amounts owing by such Nonfunding Buyer under this Agreement and the other Transaction Documents shall be deducted from and set off against the amounts otherwise owing to such Nonfunding Buyer under this Agreement and the other Transaction Documents.
(ii) Such Nonfunding Buyer shall immediately pay to the Agent all sums of any kind paid to or received by such Nonfunding Buyer from the Seller or otherwise with respect to a Transaction, whether pursuant to the terms of this Agreement or the other Transaction Documents or in connection with the realization of the security therefor. Notwithstanding the fact that such Nonfunding Buyer may temporarily hold such sums, such Nonfunding Buyer shall be deemed to hold the same as a trustee and for the benefit of the Agent, it being the express intention of the Buyers that the Agent shall distribute such sums in accordance with the terms of this Agreement.
(f) Notwithstanding anything contained herein to the contrary, if a Buyer becomes a Defaulting Buyer hereunder, then, upon notice to such Buyer, until such Buyer ceases to be a Defaulting Buyer, be retained by the Agent shall have the rightin a segregated account and, in its sole and absolute discretion and subject to any applicable requirements of law, be applied at such time or times that as may be determined by the Agent shall determine(i) first, to apply the payment of any amounts owing by such Defaulting Buyer to the Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Buyer to the Swing Line Buyer hereunder, (iii) third, to the funding of any Transaction or the funding of any participating interest in any Swing Line Transaction in respect of which otherwise would be such Defaulting Buyer has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, (iv) fourth, if so determined by the Agent and the Seller, held in such account as cash collateral for future funding obligations of the Defaulting Buyer under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Seller or the Buyers as a result of any judgment of a court of competent jurisdiction obtained by the Seller or any Buyer against such Defaulting Buyer as a result of such Defaulting Buyer’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Buyer under this Agreement or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is (x) a Purchase Price Decrease and (y) made at a time when the other Transaction Documents to a deposit account, to be held in MASTER REPURCHASE AGREEMENT – Page 41 13312-786/M/I Financial Warehouse Facility such account and released as appropriate to satisfy such Defaulting Buyer’s potential future funding obligations with respect to Transactions (including Swing Line Transactions) under this Agreement.
(g) If any Buyer becomes a Defaulting Buyer hereunder, then the Seller may, at its sole expense and effort, upon notice to such Buyer and the Agent, require such Buyer to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 22.17) all its interests, rights and obligations under this Agreement to an assignee (which assignee may be another Buyer) that shall assume such obligations, all in accordance with the procedures and conditions set forth in Section 26.4 hereof.
(h) In the event that the Agent14.2 are satisfied, the Seller and the Swing Line Buyer each agrees that a Defaulting Buyer has adequately remedied all matters that caused such Buyer to be a Defaulting Buyer (“Redeemed Buyer”), then the Swing Line Exposure of the other Buyers payment shall be readjusted applied solely to reflect reduce the inclusion of such Redeemed Buyer’s Commitment and on such date such Redeemed Buyer shall purchase from the other Purchase Prices owed to all Buyers at par a portion of the Open Transactions and take such other actions as the Agent shall determine may be necessary in order for such Redeemed Buyer to participate in such Open Transactions in accordance with its that are not Defaulting Buyers Pro Rata share, at which point the Redeemed Buyer shall cease prior to be a being applied to any Purchase Prices owed to any Defaulting Buyer. For purposes of this Section 3.10, “Swing Line Exposure” means, with respect to any Buyer at any time, such Buyer’s Pro Rata share of the aggregate Purchase Prices of all Swing Line Transactions outstanding at such time.
Appears in 1 contract
Defaulting Buyers. (a) Notwithstanding any provision of this Agreement to the contrary, if any Buyer becomes a Defaulting Buyer, then the following provisions shall apply for so long as such Buyer is a Defaulting Buyer:
(ia) The applicable fees Facility Fees and Non-usage Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Buyer pursuant to Section 9.1;
(iib) The Commitment of and the outstanding Purchase Prices paid by such Defaulting Buyer shall not be included in determining whether all Buyers or the Required Buyers have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 2222.4), provided that (a) the Committed Sum of any Defaulting Buyer may not be increased or extended without the consent of such Buyerwaiver, and (b) any amendment, waiver, consent modification or other action or inaction requiring the consent of all Buyers (including without limitation, any waiver, amendment, modification or each affected Buyer that by its terms action under Section 22.3 hereof), and any waiver, amendment, modification or action (other than actions under this Section 3.11) which affects any such Defaulting Buyer more adversely differently than the other affected Buyers shall require the consent of such Defaulting Buyer;
(iiic) If any Swing Line Transactions shall exist at the time a Buyer becomes a Defaulting Buyer, then the Seller shall within one Business Day following notice by the Agent repurchase the Purchased Loans subject to such Swing Line Transaction.
(b) Notwithstanding any provision of this Agreement to the contrary, if the Defaulting Buyer is a Nonfunding Buyer, and the Agent or the other Buyer(s) (electively, in accordance with Section 2.1) fund or pay any other amounts required to be paid by it hereunder which the Nonfunding Buyer failed to fund or pay (the “Unfunded Amount”), then
(i) the The respective ownership interests of both (Ai) the Nonfunding Defaulting Buyer and (Bii) Agent or the Buyer (or Buyers) that funded or paid the Unfunded Amount, Defaulting Buyer’s Funding Share(s) of any Transaction shall be proportionately decreased and increased, respectively, to the same extent as if their respective Committed Sums were changed in direct proportion to the unreimbursed balance outstanding from time to time thereafter of the amount so funded or paidfunded;
(ii) the Nonfunding Buyer’s share of all subsequent distributions of Repurchase Prices and other realizations on the Purchased Loans received shall be paid to the Agent and/or other Buyer(s) that so funded the Unfunded Amount until the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and
(iii) such adjustment shall remain in effect until such time as the Agent and/or other Buyer(s) that funded or paid the Unfunded Amount have been so fully repaid.
(cd) If no other Buyer funds or pays any of the Unfunded AmountDefaulting Buyer’s Funding Share, then the Pro Rata ownership interests of the Buyers in the Purchased Loans shall be changed changed, so that each Buyer’s Pro Rata ownership interest in the Purchased Loans is equal to the ratio of (i) the sum of the portions of the Purchase Prices paid by that Buyer in all Open Transactions on that day, together with all other unreimbursed amounts paid by that Buyer under this Agreement or the other Transaction Documents (including, MASTER REPURCHASE AGREEMENT – Page 40 13312-786/M/I Financial Warehouse Facility without limitation, in respect of Swing Line Transactions and under Sections 22.10(d) hereof) as of such day to (ii) the total of the Purchase Prices paid by all Buyers in all Open Transactions on that day, together with all other unreimbursed amounts paid by all Buyers under this Agreement or but the other Transaction Documents (including, without limitation, in respect of Swing Line Transactions and under Section 22.10(d) hereof) as of such day. The Nonfunding Defaulting Buyer’s share of all subsequent distributions of any Repurchase Price, Price and Margin Deficit payments and other realizations on the Purchased Loans received shall be paid to the other Buyers, pro rata among them in the ratio that the Pro Rata ownership interest in the Purchased Loans owned by each bears to the aggregate Pro Rata ownership interests in the Purchased Loans of all such other Buyers, and the Buyers’ respective Pro Rata ownership interests in the Purchased Loans shall be readjusted after each such payment, until their Pro Rata ownership interests are restored to what they were before any Nonfunding Defaulting Buyer failed to fund or pay the Unfunded Amountfund. Notwithstanding any such changes in the Buyers’ Pro Rata ownership interests in any Purchased Loan due to Nonfunding any Buyer’s failure to fund or pay an Unfunded Amountits Funding Share(s) of any Transaction, such failure to fund shall not diminish (nor shall it increase except at a Buyer’s election pursuant to Section 2.1 hereof) any Buyer’s Funding Share(s) for subsequent Transactions.
(de) Without limiting the foregoingAny amount payable to such Defaulting Buyer hereunder (whether on account of Repurchase Price, Price Differential, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Buyer pursuant to Section 20.2 but excluding Section 6.4) shall, in the event that a Buyer becomes a Nonfunding Buyer, such Nonfunding Buyer shall have no right to receive any amounts owing lieu of being distributed to such Nonfunding Buyer under this Agreement or the other Transaction Documents until such Buyer ceases to be a Nonfunding Buyer, which shall occur: (i) in the event that the Agent or any other Buyer(s) fund or pay the Unfunded Amount (as described in Section 3.10(c)), at the time the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and (ii) in the event that neither the Agent nor any other Buyer funds or pays any of the Unfunded Amount (as described in Section 3.10(c)), at the time the Buyers’ Pro Rata ownership interests are restored to what they were before such Nonfunding Buyer failed to fund or pay the Unfunded Amount.
(e) For so long as such Buyer is a Nonfunding Buyer, all of the following shall apply:
(i) The amounts owing by such Nonfunding Buyer under this Agreement and the other Transaction Documents shall be deducted from and set off against the amounts otherwise owing to such Nonfunding Buyer under this Agreement and the other Transaction Documents.
(ii) Such Nonfunding Buyer shall immediately pay to the Agent all sums of any kind paid to or received by such Nonfunding Buyer from the Seller or otherwise with respect to a Transaction, whether pursuant to the terms of this Agreement or the other Transaction Documents or in connection with the realization of the security therefor. Notwithstanding the fact that such Nonfunding Buyer may temporarily hold such sums, such Nonfunding Buyer shall be deemed to hold the same as a trustee and for the benefit of the Agent, it being the express intention of the Buyers that the Agent shall distribute such sums in accordance with the terms of this Agreement.
(f) Notwithstanding anything contained herein to the contrary, if a Buyer becomes a Defaulting Buyer hereunder, then, upon notice to such Buyer, until such Buyer ceases to be a Defaulting Buyer, be retained by the Agent shall have the rightin a segregated account and, in its sole and absolute discretion and subject to any applicable requirements of law, be applied at such time or times that as may be determined by the Agent shall determine(i) first, to apply the payment of any amounts due and owing by such Defaulting Buyer to the Agent hereunder, (ii) second, pro rata, to the payment of any amounts due and owing by such Defaulting Buyer to the Swing Line Buyer hereunder, (iii) third, to the funding of any Transaction or the funding of any participating interest in any Swing Line Transaction in respect of which otherwise would be such Defaulting Buyer has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, (iv) fourth, if so determined by the Agent and the Seller, held in such account as cash collateral for future funding obligations of the Defaulting Buyer under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Seller or the Buyers as a result of any judgment of a court of competent jurisdiction obtained by any Seller or any Buyer against such Defaulting Buyer as a result of such Defaulting Buyer’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Buyer under this Agreement or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is (x) a Purchase Price Decrease and (y) made at a time when the other Transaction Documents to a deposit account, to be held in MASTER REPURCHASE AGREEMENT – Page 41 13312-786/M/I Financial Warehouse Facility such account and released as appropriate to satisfy such Defaulting Buyer’s potential future funding obligations with respect to Transactions (including Swing Line Transactions) under this Agreement.
(g) If any Buyer becomes a Defaulting Buyer hereunder, then the Seller may, at its sole expense and effort, upon notice to such Buyer and the Agent, require such Buyer to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 22.17) all its interests, rights and obligations under this Agreement to an assignee (which assignee may be another Buyer) that shall assume such obligations, all in accordance with the procedures and conditions set forth in Section 26.4 hereof.
(h) In 14.2 are satisfied, such payment shall be applied solely to reduce the event Purchase Prices owed to all Buyers that are not Defaulting Buyers Pro Rata prior to being applied to any Purchase Prices owed to, any Defaulting Buyer. Notwithstanding anything to the Agentcontrary herein, as between the Seller and any Defaulting Buyer, if any payment made by the Swing Line Buyer each agrees Seller that would otherwise be payable to a Defaulting Buyer has adequately remedied all matters that caused is retained by the Agent and applied as provided in this Section 3.11(f), the Seller’s Obligations to such Buyer to be a Defaulting Buyer (“Redeemed Buyer”), then the Swing Line Exposure of the other Buyers shall be readjusted deemed satisfied to reflect the inclusion extent of such Redeemed Buyer’s Commitment payment and on such date such Redeemed the Defaulting Buyer shall purchase not be entitled to ask for or receive any additional amounts (including without limitation, Price Differential) from the other Buyers at par a portion of the Open Transactions and take such other actions as the Agent shall determine may be necessary in order for such Redeemed Buyer to participate in such Open Transactions in accordance with its Pro Rata share, at which point the Redeemed Buyer shall cease to be a Defaulting Buyer. For purposes of this Section 3.10, “Swing Line Exposure” means, Seller with respect to any Buyer at any time, such Buyer’s Pro Rata share of the aggregate Purchase Prices of all Swing Line Transactions outstanding at such timepayment.
Appears in 1 contract
Defaulting Buyers. (a) Notwithstanding any provision of this Agreement to the contrary, if any Buyer becomes a Defaulting Buyer, then the following provisions shall apply for so long as such Buyer is a Defaulting Buyer:
(ia) The applicable fees Facility Fees and Non-usage Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Buyer pursuant to Section 9.1;
(iib) The Commitment of and the outstanding Purchase Prices paid by such Defaulting Buyer shall not be included in determining whether all Buyers or the Required Buyers have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 2222.4), provided that (a) the Committed Sum of any Defaulting Buyer may not be increased or extended without the consent of such Buyerwaiver, and (b) any amendment, waiver, consent modification or other action or inaction requiring the consent of all Buyers (including without limitation, any waiver, amendment, modification or each affected Buyer that by its terms action under Section 22.3 hereof), and any waiver, amendment, modification or action (other than actions under this Section 3.9) which affects any such Defaulting Buyer more adversely differently than the other affected Buyers shall require the consent of such Defaulting Buyer;
(iiic) If any Swing Line Transactions shall exist at the time a Buyer becomes a Defaulting Buyer, then the Seller shall within one Business Day following notice by the Agent repurchase the Purchased Loans subject to such Swing Line Transaction.
(b) Notwithstanding any provision of this Agreement to the contrary, if the Defaulting Buyer is a Nonfunding Buyer, and the Agent or the other Buyer(s) (electively, in accordance with Section 2.1) fund or pay any other amounts required to be paid by it hereunder which the Nonfunding Buyer failed to fund or pay (the “Unfunded Amount”), then
(i) the The respective ownership interests of both (Ai) the Nonfunding Defaulting Buyer and (Bii) Agent or the Buyer (or Buyers) that funded or paid the Unfunded Amount, Defaulting Buyer’s Funding Share(s) of any Transaction shall be proportionately decreased and increased, respectively, to the same extent as if their respective Committed Sums were changed in direct proportion to the unreimbursed balance outstanding from time to time thereafter of the amount so funded or paidfunded;
(ii) the Nonfunding Buyer’s share of all subsequent distributions of Repurchase Prices and other realizations on the Purchased Loans received shall be paid to the Agent and/or other Buyer(s) that so funded the Unfunded Amount until the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and
(iii) such adjustment shall remain in effect until such time as the Agent and/or other Buyer(s) that funded or paid the Unfunded Amount have been so fully repaid.
(cd) If no other Buyer funds or pays any of the Unfunded AmountDefaulting Buyer’s Funding Share, then the Pro Rata ownership interests of the Buyers in the Purchased Loans shall be changed changed, so that each Buyer’s Pro Rata ownership interest in the Purchased Loans is equal to the ratio of (i) the sum of the portions of the Purchase Prices paid by that Buyer in all Open Transactions on that day, together with all other unreimbursed amounts paid by that Buyer under this Agreement or the other Transaction Documents (including, MASTER REPURCHASE AGREEMENT – Page 40 13312-786/M/I Financial Warehouse Facility without limitation, in respect of Swing Line Transactions and under Sections 22.10(d) hereof) as of such day to (ii) the total of the Purchase Prices paid by all Buyers in all Open Transactions on that day, together with all other unreimbursed amounts paid by all Buyers under this Agreement or but the other Transaction Documents (including, without limitation, in respect of Swing Line Transactions and under Section 22.10(d) hereof) as of such day. The Nonfunding Defaulting Buyer’s share of all subsequent distributions of any Repurchase Price, Price and Margin Deficit payments and other realizations on the Purchased Loans received shall be paid to the other Buyers, pro rata among them in the ratio that the Pro Rata ownership interest in the Purchased Loans owned by each bears to the aggregate Pro Rata ownership interests in the Purchased Loans of all such other Buyers, and the Buyers’ respective Pro Rata ownership interests in the Purchased Loans shall be readjusted after each such payment, until their Pro Rata ownership interests are restored to what they were before any Nonfunding Defaulting Buyer failed to fund or pay the Unfunded Amountfund. Notwithstanding any such changes in the Buyers’ Pro Rata ownership interests in any Purchased Loan due to Nonfunding any Buyer’s failure to fund or pay an Unfunded Amountits Funding Share(s) of any Transaction, such failure to fund shall not diminish (nor shall it increase except at a Buyer’s election pursuant to Section 2.1 hereof) any Buyer’s Funding Share(s) for subsequent Transactions.
(de) Without limiting the foregoingAny amount payable to such Defaulting Buyer hereunder (whether on account of Repurchase Price, Price Differential, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Buyer pursuant to Section 20.2 but excluding Section 6.4) shall, in the event that a Buyer becomes a Nonfunding lieu of being distributed to such Defaulting Buyer, be retained by the Agent in a segregated account and, subject to any applicable requirements of law, be applied at such Nonfunding time or times as may be determined by the Agent (i) first, to the payment of any amounts due and owing by such Defaulting Buyer shall have no right to receive the Agent hereunder, (ii) second, to the funding of any Transaction in respect of which such Defaulting Buyer has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, (iii) third, if so determined by the Agent and the Seller, held in such account as cash collateral for future funding obligations of the Defaulting Buyer under this Agreement, (iv) fourth, pro rata, to the payment of any amounts owing to the Seller or the Buyers as a result of any judgment of a court of competent jurisdiction obtained by any Seller or any Buyer against such Nonfunding Defaulting Buyer as a result of such Defaulting Buyer’s breach of its obligations under this Agreement Agreement, and (v) fifth, to such Defaulting Buyer or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is (x) a Purchase Price Decrease and (y) made at a time when the other Transaction Documents until conditions set forth in Section 14.2 are satisfied, such Buyer ceases payment shall be applied solely to be a Nonfunding reduce the Purchase Prices owed to all Buyers that are not Defaulting Buyers Pro Rata prior to being applied to any Purchase Prices owed to, any Defaulting Buyer. Notwithstanding anything to the contrary herein, as between the Seller and any Defaulting Buyer, which if any payment made by the Seller that would otherwise be payable to a Defaulting Buyer is retained by the Agent and applied as provided in this Section 3.9(f), the Seller’s Obligations to such Defaulting Buyer shall occur: be deemed satisfied to the extent of such payment and the Defaulting Buyer shall not be entitled to ask for or receive any additional amounts (iincluding without limitation, Price Differential) in from Seller with respect to such payment. In the event that the Agent or any other Buyer(s) fund or pay the Unfunded Amount (as described in Section 3.10(c)), at the time the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and (ii) in the event that neither the Agent nor any other Buyer funds or pays any of the Unfunded Amount (as described in Section 3.10(c)), at the time the Buyers’ Pro Rata ownership interests are restored to what they were before such Nonfunding Buyer failed to fund or pay the Unfunded Amount.
(e) For so long as such Buyer is a Nonfunding Buyer, all of the following shall apply:
(i) The amounts owing by such Nonfunding Buyer under this Agreement and the other Transaction Documents shall be deducted from and set off against the amounts otherwise owing to such Nonfunding Buyer under this Agreement and the other Transaction Documents.
(ii) Such Nonfunding Buyer shall immediately pay to the Agent Seller all sums of any kind paid to or received by such Nonfunding Buyer from the Seller or otherwise with respect to a Transaction, whether pursuant to the terms of this Agreement or the other Transaction Documents or in connection with the realization of the security therefor. Notwithstanding the fact that such Nonfunding Buyer may temporarily hold such sums, such Nonfunding Buyer shall be deemed to hold the same as a trustee and for the benefit of the Agent, it being the express intention of the Buyers that the Agent shall distribute such sums in accordance with the terms of this Agreement.
(f) Notwithstanding anything contained herein to the contrary, if a Buyer becomes a Defaulting Buyer hereunder, then, upon notice to such Buyer, until such Buyer ceases to be a Defaulting Buyer, the Agent shall have the right, in its sole and absolute discretion and at such time or times that the Agent shall determine, to apply amounts which otherwise would be owing to such Defaulting Buyer under this Agreement and the other Transaction Documents to a deposit account, to be held in MASTER REPURCHASE AGREEMENT – Page 41 13312-786/M/I Financial Warehouse Facility such account and released as appropriate to satisfy such Defaulting Buyer’s potential future funding obligations with respect to Transactions (including Swing Line Transactions) under this Agreement.
(g) If any Buyer becomes a Defaulting Buyer hereunder, then the Seller may, at its sole expense and effort, upon notice to such Buyer and the Agent, require such Buyer to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 22.17) all its interests, rights and obligations under this Agreement to an assignee (which assignee may be another Buyer) that shall assume such obligations, all in accordance with the procedures and conditions set forth in Section 26.4 hereof.
(h) In the event that the Agent, the Seller and the Swing Line Buyer each agrees agree that a Defaulting Buyer has adequately remedied all matters that caused such Buyer to be a Defaulting Buyer (“Redeemed Buyer”), then the Swing Line Exposure of the other Buyers shall be readjusted to reflect the inclusion of such Redeemed Buyer’s Commitment and on such date such Redeemed Buyer shall purchase from the other Buyers at par a portion of the Open Transactions and take such other actions as the Agent shall determine may be necessary in order for such Redeemed Buyer to participate in such Open Transactions in accordance with its Pro Rata share, . Nothing contained in the foregoing shall be deemed to constitute a waiver by the Seller of any of its rights or remedies (whether in equity or law) against any Buyer which fails to fund any Transaction hereunder at which point the Redeemed Buyer shall cease time or in the amount required to be a Defaulting Buyer. For purposes funded under the terms of this Section 3.10, “Swing Line Exposure” means, with respect to any Buyer at any time, such Buyer’s Pro Rata share of the aggregate Purchase Prices of all Swing Line Transactions outstanding at such timeAgreement.
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Defaulting Buyers. (a) Notwithstanding any provision of this Agreement If and to the contrary, if extent that any Buyer becomes a Defaulting Buyer, then the following provisions shall apply for so long as such Buyer is a Defaulting Buyerthen:
(i) The applicable fees To the extent a Buyer has become a Defaulting Buyer due to its failure to fund a Required Advance or a Buyer Payment, then the other Buyers, or any of them, shall cease have the right, but not the obligation, to accrue on advance all or any part of its Pro Rata Share of any such Deficiency that should have been made by the unfunded Defaulting Buyer, and the Defaulting Buyer agrees to repay upon demand to each of the Buyers who has advanced a portion of the Commitment Deficiency the amount advanced on behalf of such the Defaulting Buyer, together with interest thereon at the federal funds rate. To the extent that the Defaulting Buyer pursuant to Section 9.1thereafter funds such Deficiency with interest thereon, if applicable, such Buyer shall no longer be a Defaulting Buyer;
(ii) The Commitment If more than one Buyer elects to advance a portion of and a Deficiency, such ▇▇▇▇▇▇’ advances shall be made based on the outstanding Purchase Prices paid relative Pro Rata Shares of the Facility of each such advancing Buyer or as otherwise agreed to by such Buyers. In the event the Defaulting Buyer fails to advance or repay the Deficiency, the interest of such Defaulting Buyer shall not be included in determining whether all Buyers or the Required Buyers have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 22), provided that (a) the Committed Sum of any Defaulting Buyer may not be increased or extended without the consent of such Buyer, and (b) any amendment, waiver, consent or other action or inaction requiring the consent of all Buyers or each affected Buyer that by its terms affects any Defaulting Buyer more adversely than the other affected Buyers shall require the consent of such Defaulting Buyer;
(iii) If any Swing Line Transactions shall exist at the time a Buyer becomes a Defaulting Buyer, then the Seller shall within one Business Day following notice by the Agent repurchase the Purchased Loans subject to such Swing Line Transaction.
(b) Notwithstanding any provision of this Agreement Facility to the contrary, if extent of the Defaulting Buyer is a Nonfunding Buyer, and the Agent or the other Buyer(s) (electively, in accordance with Section 2.1) fund or pay any other amounts required to be paid by it hereunder which the Nonfunding Buyer failed to fund or pay (the “Unfunded Amount”), then
(i) the respective ownership interests of both (A) the Nonfunding Buyer and (B) Agent or the Buyer (or Buyers) that funded or paid the Unfunded AmountDeficiency, shall be proportionately decreased and increased, respectively, subordinate to the same extent as if their respective Committed Sums were changed in direct proportion to the unreimbursed balance outstanding from time to time thereafter of the amount so funded or paid;
(ii) the Nonfunding Buyer’s share of all subsequent distributions of Repurchase Prices and other realizations on the Purchased Loans received shall be paid to the Agent and/or other Buyer(s) that so funded the Unfunded Amount until the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and
(iii) such adjustment shall remain in effect until such time as the Agent and/or other Buyer(s) that funded or paid the Unfunded Amount have been so fully repaid.
(c) If no other Buyer funds or pays any of the Unfunded Amount, then the Pro Rata ownership interests of the Buyers in the Purchased Loans shall be changed so that each Buyer’s Pro Rata ownership interest in the Purchased Loans is equal to the ratio of (i) the sum of the portions of the Purchase Prices paid by that Buyer in all Open Transactions on that day, together with all other unreimbursed amounts paid by that Buyer under this Agreement or the other Transaction Documents (including, MASTER REPURCHASE AGREEMENT – Page 40 13312-786/M/I Financial Warehouse Facility without limitation, in respect of Swing Line Transactions and under Sections 22.10(d) hereof) as of such day to (ii) the total of the Purchase Prices paid by all Buyers in all Open Transactions on that day, together with all other unreimbursed amounts paid by all Buyers under this Agreement or the other Transaction Documents (including, without limitation, in respect of Swing Line Transactions and under Section 22.10(d) hereof) as of such day. The Nonfunding Buyer’s share of all subsequent distributions of any Repurchase Price, Margin Deficit payments and other realizations on the Purchased Loans received shall be paid to the other Buyers, pro rata among them in the ratio that the Pro Rata ownership interest in the Purchased Loans owned by each bears and all payments otherwise payable to the aggregate Pro Rata ownership interests Defaulting Buyer in accordance with or pursuant to this Agreement shall be distributed by the Purchased Loans of all such other Agent to the non-Defaulting Buyers, and pro rata, to advance or repay the Buyers’ respective Pro Rata ownership interests in the Purchased Loans shall be readjusted after Deficiency, as applicable, until such time such Defaulting Buyer advances or repays all Deficiencies attributable to each such payment, until their Pro Rata ownership interests are restored to what they were before any Nonfunding Buyer failed to fund or pay the Unfunded Amountnon-Defaulting Buyer. Notwithstanding any such changes in the Buyers’ Pro Rata ownership interests in any Purchased Loan due to Nonfunding Buyer’s failure to fund or pay an Unfunded Amount, such failure to fund shall not diminish any Buyer’s Funding Share(s) for subsequent Transactions.
(d) Without limiting the foregoing, in the event that a Buyer becomes a Nonfunding Buyer, such Nonfunding Buyer shall have no right to receive any amounts owing to such Nonfunding Buyer under The provisions of this Agreement or the other Transaction Documents until such Buyer ceases to be a Nonfunding Buyer, which shall occur: (i) in the event that the Agent or any other Buyer(s) fund or pay the Unfunded Amount (as described in Section 3.10(c)), at the time the Agent and/or such other Buyer(s) have been fully repaid the amount so funded or paid; and clause (ii) in the event that neither the Agent nor shall apply and be effective regardless of whether an Event of Default occurs and is continuing, and notwithstanding (x) any other Buyer funds or pays any of the Unfunded Amount (as described in Section 3.10(c)), at the time the Buyers’ Pro Rata ownership interests are restored to what they were before such Nonfunding Buyer failed to fund or pay the Unfunded Amount.
(e) For so long as such Buyer is a Nonfunding Buyer, all of the following shall apply:
(i) The amounts owing by such Nonfunding Buyer under this Agreement and the other Transaction Documents shall be deducted from and set off against the amounts otherwise owing to such Nonfunding Buyer under this Agreement and the other Transaction Documents.
(ii) Such Nonfunding Buyer shall immediately pay to the Agent all sums of any kind paid to or received by such Nonfunding Buyer from the Seller or otherwise with respect to a Transaction, whether pursuant to the terms contrary provision of this Agreement or the other Transaction Documents Documents, or in connection with the realization (y) any instruction of the security therefor. Notwithstanding the fact Seller as to its desired application of payments;
(iii) The rights and remedies against a Defaulting Buyer under this Article 28(f) are in addition to any other rights and remedies, at law, in equity or otherwise that such Nonfunding Administrative Agent or any Buyer may temporarily hold have against such sumsDefaulting Buyer with respect to any Deficiency or otherwise.
(iv) The failure of any Buyer to pay any Deficiency shall not relieve any other Buyer of its obligation, such Nonfunding if any, hereunder or pursuant to any Transaction Document to make its Pro Rata Share of a Required Advance or Buyer Payment, in each case available on the applicable funding date, but no Buyer shall be deemed to hold the same as a trustee and responsible for the benefit failure of any Defaulting Buyer to make its Pro Rata Share of the AgentRequired Advance or Buyer Payment on the applicable funding date; provided, it being the express intention however, that each Buyer shall be obligated to fund its Pro Rata Share of the Buyers that balance of the Agent shall distribute such sums then current Required Advance or Buyer Payment (i.e., excluding the Deficiency), as the case may be, in accordance with the terms of this Agreementmanner required hereunder or pursuant to any Transaction Document.
(fv) Notwithstanding anything contained herein to the contrarycontrary contained herein, if for as long as a Buyer becomes a Defaulting Buyer hereunder, then, upon notice to such Buyer, until such Buyer ceases to be is a Defaulting Buyer, the Agent such Buyer shall have the rightno right to consent to, in its sole and absolute discretion and at such time approve or times that the Agent shall determine, to apply amounts which otherwise would be owing to such Defaulting Buyer under this Agreement and the other Transaction Documents to a deposit account, to be held in MASTER REPURCHASE AGREEMENT – Page 41 13312-786/M/I Financial Warehouse Facility such account and released as appropriate to satisfy such Defaulting Buyer’s potential future funding obligations vote on any action or decision with respect to Transactions the Facility hereunder requiring the consent, approval or vote of any Buyer, and for purposes of determining how many or which Buyers constitute the Majority Buyers, for purposes of consenting to, approving or voting with respect to any decision or any action (including Swing Line Transactionsor waiver or forbearance from taking an action) under this Agreementby Administrative Agent, the portion of the outstanding principal amount of the Facility allocated to any Defaulting Buyer shall be disregarded for such determination. If a Defaulting Buyer cures the applicable default such that it is no longer a Defaulting Buyer, its consent, approval or voting rights hereunder shall be reinstated as and from the date of its cure of such default.
(gvi) If any Buyer becomes is a Defaulting Buyer, then, provided no Event of Default then exists, Seller, upon ten (10) Business Days’ written notice to Administrative Agent and such Defaulting Buyer hereunder, then the Seller may, at its sole expense and effort, upon notice to such Buyer and the Agent, either (x) require such Defaulting Buyer to assign and delegate, without recourse (in accordance with and subject to the restrictions set forth in Section 22.17) delegate all of its interests, rights and obligations under this Agreement and the Transaction Documents to an assignee Eligible Assignee that is reasonably acceptable to Administrative Agent (which assignee may be another Buyeras directed by the Majority Buyers in their reasonable discretion) that shall assume such obligations, all obligations or (y) repurchase such Buyer’s interest in each of the Purchased Assets in accordance with Article 3(e) (and in such event no Exit Fee shall be payable by Seller); provided that (A) as of the date that such Defaulting Buyer is replaced in accordance with the procedures terms and conditions set forth in Section 26.4 hereof.
, no Event of Default shall have occurred and be continuing, (hB) In such assignee Buyer agrees to assume all of the event that the Agent, the Seller and the Swing Line Buyer each agrees that a obligations of such Defaulting Buyer has adequately remedied all matters that caused and such Buyer to be a Defaulting Buyer (“Redeemed Buyer”), then shall have received from the Swing Line Exposure assignee Buyer or Seller payment of an amount equal to the outstanding Purchase Price of the Purchased Assets attributable to such Defaulting Buyer’s interest in the Transactions hereunder as of the date such Defaulting Buyer is replaced, together with accrued and unpaid Price Differential thereon, and any other Buyers shall be readjusted amounts accrued and payable to reflect the inclusion Defaulting Buyer as of the date of such Redeemed Buyer’s Commitment transfer, (C) such assignment does not conflict with applicable law and (D) such assignee Buyer consents to the proposed amendment, waiver or consent on such date such Redeemed Buyer account of which Seller shall purchase from the other Buyers at par a portion of the Open Transactions and take such other actions as the Agent shall determine may be necessary in order for such Redeemed Buyer have exercised its rights pursuant to participate in such Open Transactions in accordance with its Pro Rata share, at which point the Redeemed Buyer shall cease to be a Defaulting Buyer. For purposes of this Section 3.10, “Swing Line Exposure” means, with respect to any Buyer at any time, such Buyer’s Pro Rata share of the aggregate Purchase Prices of all Swing Line Transactions outstanding at such timeclause (vi).
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Sources: Master Repurchase and Securities Contract Agreement (Starwood Credit Real Estate Income Trust)