Events of Default Remedies (a) With respect to each Transaction, each of the following clauses in this Section 14(a) shall be an “Event of Default” under this Agreement:
(i) the applicable Seller fails to repurchase any Purchased Loan upon the applicable Repurchase Date;
(ii) the applicable Seller fails to cure a Margin Deficit requested to be cured by Buyer in accordance with Section 4;
(iii) Sellers fail to pay any Concentration Limit Amount in accordance with Section 3(o);
(iv) a Purchase Price Amortization Amount exists and remains outstanding;
(v) the applicable Seller fails to pay any Extension Fee in accordance with the Fee Agreement;
(vi) an Act of Insolvency occurs with respect to QRS Seller, TRS Seller, Guarantor or Pledgor;
(vii) QRS Seller, TRS Seller, Guarantor or Pledgor shall admit in writing its inability to, or its intention not to, perform any of its obligations hereunder or under any other agreement to which it is a party;
(viii) either (A) the Transaction Documents shall for any reason not cause, or shall cease to cause, Buyer to be the owner free of any adverse claim of any of the Purchased Loans, or (B) if a Transaction is recharacterized as a secured financing, the Transaction Documents with respect to any Transaction shall for any reason cease to create a valid first priority security interest in favor of Buyer in any of the Purchased Loans;
(ix) the failure of either Seller to make any other payment owing to Buyer which has become due, whether by acceleration or otherwise under the terms of this Agreement, the Fee Agreement or any other Transaction Document which failure is not remedied within two (2) Business Days;
(x) any governmental, regulatory, or self-regulatory authority shall have removed, restricted, suspended or terminated the rights, privileges, or operations of QRS Seller, TRS Seller or Guarantor, which, in each case, has a material impact on such Person’s ability to perform under the Transaction Documents;
(xi) a Change of Control shall have occurred without the prior written consent of Buyer;
(xii) any representation made by QRS Seller, TRS Seller, Guarantor or Pledgor in any Transaction Document shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated and such incorrect or untrue representation exists and continues unremedied for ten (10) Business Days after the earlier of receipt of written notice thereof from Buyer or either Seller’s actual knowledge of such incorrect or untrue representation (other than the representations and warranties set forth in Section 10(i) made by the applicable Seller, which shall not be considered an Event of Default if incorrect or untrue in any material respect, provided the applicable Seller did not have actual knowledge that it was materially incorrect or untrue at the time made, and so long as the applicable Seller repurchases the related Purchased Loan on an Early Repurchase Date no later than two (2) Business Days after knowledge of such incorrect or untrue representation and terminates the related Transaction); provided, however, if the circumstances which resulted in such representation being incorrect or untrue can be remedied and provided further that QRS Seller, TRS Seller, Guarantor or Pledgor, as applicable, is diligently working to remedy such circumstances, QRS Seller, TRS Seller, Guarantor or Pledgor, as applicable, shall have an additional five (5) Business Days to pursue such remedy;
(i) Guarantor breaches any of the payment obligations set forth in the Guaranty, (ii) Guarantor shall fail to observe any of the financial covenants set forth in Section 5 of the Guaranty, or (iii) Pledgor breaches any of the payment obligations set forth in the Pledge Agreement;
(xiv) a final non-appealable judgment by any competent court in the United States of America for the payment of money in an amount greater than $250,000 (in the case of QRS Seller, TRS Seller or Pledgor) or $20,000,000 (in the case of Guarantor) shall have been rendered against QRS Seller, TRS Seller, Guarantor or Pledgor, and remained undischarged or unpaid for a period of thirty (30) days, during which period execution of such judgment is not effectively stayed by bonding over or other means reasonably acceptable to Buyer;
(xv) QRS Seller, TRS Seller, Guarantor or Pledgor shall have (x) defaulted under any Indebtedness to which it is a party, which default (A) involves the failure to pay a principal amount in excess of $250,000 (in the case of QRS Seller, TRS Seller or Pledgor) or $20,000,000 (in the case of Guarantor), or (B) results in the acceleration of the maturity of such Indebtedness in excess of a principal amount of $250,000 (in the case of QRS Seller, TRS Seller or Pledgor) or $20,000,000 (in the case of Guarantor) by any other party to or beneficiary of such Indebtedness or (y) failed to perform any other material non-payment obligation under such Indebtedness with an asserted damages claim in excess of the limits referenced in clause (x) with respect to QRS Seller, TRS Seller, Guarantor or Pledgor, as applicable; provided, however, with respect to clause (y), that any such default, failure to perform or breach shall not constitute an Event of Default if QRS Seller, TRS Seller, Guarantor or Pledgor cures such default or failure to perform, as the case may be, within the grace notice and/or cure period, if any, provided under the applicable agreement;
(xvi) either Seller fails to observe or perform in any material respect any other obligation of such Seller under the Repurchase Documents or Purchased Loan Documents to which such Seller is a party, and such failure continues unremedied for five (5) Business Days after the earlier of receipt of notice thereof from Buyer or the discovery of such failure by such Seller; provided, however, in the case of any such failure to observe or perform any obligations that are susceptible to cure but cannot be cured within such five (5) Business Day period through the exercise of reasonable diligence, if such Seller commences such cure within the initial five (5) Business Day period and diligently prosecutes such cure, such five (5) Business Day cure period shall be extended to thirty (30) calendar days, and if at the end of such extended period, Buyer determines that such Seller has diligently prosecuted such cure and continues to diligently prosecute such cure, Buyer may extend the time to cure by up to an additional thirty (30) calendar days; or
(xvii) either Guarantor or Pledgor fails to observe or perform in any material respect any other obligation of Guarantor or Pledgor, as applicable, under the Transaction Documents to which Guarantor or Pledgor is a party, and such failure continues unremedied for five (5) Business Days after the earlier of receipt of notice thereof from Buyer or the discovery of such failure by Guarantor or Pledgor, as applicable; provided, however, in the case of any such failure to observe or perform any obligations that are susceptible to cure but cannot be cured within such five (5) Business Day period through the exercise of reasonable diligence, if Guarantor or Pledgor, as applicable, commences such cure within the initial five (5) Business Day period and diligently prosecutes such cure, such five (5) Business Day cure period shall be extended to thirty (30) calendar days, and if at the end of such extended period, Buyer determines that Guarantor or Pledgor, as applicable, has diligently prosecuted such cure and continues to diligently prosecute such cure, Buyer may extend the time to cure by up to an additional thirty (30) calendar days.
(b) After the occurrence and during the continuance of an Event of Default, each Seller hereby appoints Buyer as attorney-in-fact of such Seller for the purpose of carrying out the provisions of this Agreement and taking any action and executing or endorsing any instruments that Buyer may deem necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest. If an Event of Default shall occur and be continuing, the following rights and remedies shall be available to Buyer:
(i) At the option of Buyer, exercised by written notice to Sellers (which option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence of an Act of Insolvency), the Repurchase Date for each Transaction hereunder shall, if it has not already occurred, be deemed immediately to occur (the date on which such option is exercised or deemed to have been exercised being referred to hereinafter as the “Accelerated Repurchase Date”), Buyer shall have the right to (A) declare the Availability Period End Date to have occurred, (B) to declare the Maturity Date to have occurred, and (C) to terminate this Agreement and any of the other Transaction Documents, as determined by Buyer.
(ii) If Buyer exercises or is deemed to have exercised the option referred to in Section 14(b)(i):
(A) Sellers’ obligations hereunder to repurchase all Purchased Loans shall become immediately due and payable on and as of the Accelerated Repurchase Date;
(B) to the extent permitted by applicable law, the Repurchase Price with respect to each Transaction (determined as of the Accelerated Repurchase Date) shall be increased by the aggregate amount obtained by daily application of, on a 360 day per year basis for the actual number of days during the period from and including the Accelerated Repurchase Date to but excluding the date of payment of the Repurchase Price (as so increased), (x) the Pricing Rate for such Transaction multiplied by (y) the outstanding Purchase Price for such Transaction (decreased by (I) any amounts actually remitted to Buyer by the Depository or the applicable Seller from time to time pursuant to Section 4 or Section 5 and applied to such Repurchase Price, and (II) any amounts applied to the Repurchase Price pursuant to Section 14(b)(iii)); and
(C) the Custodian shall, upon the request of Buyer, deliver to Buyer all instruments, certificates and other documents then held by the Custodian relating to the Purchased Loans.
(iii) Upon the occurrence and during the continuance of an Event of Default, Buyer shall have the right to (A) immediately sell, at a public or private sale in a commercially reasonable manner and at such price or prices as Buyer may reasonably deem satisfactory, any or all of the Purchased Loans or (B) in its sole discretion elect, in lieu of selling all or a portion of any or all of the Purchased Loans, give Sellers credit for such Purchased Loans in an amount equal to the market value of such Purchased Loans as determined by Buyer in its sole good faith against the aggregate unpaid Repurchase Price for such Purchased Loans and any other amounts owing by Sellers under the Transaction Documents. The proceeds of any disposition of Purchased Loans effected pursuant to this Section 14(b)(iii) shall be applied in accordance with Section 5(f).
(iv) The parties recognize that it may not be possible to purchase or sell all of the Purchased Loans on a particular Business Day, or in a transaction with the same purchaser, or in the same manner because the market for such Purchased Loans may not be liquid. In view of the nature of the Purchased Loans, the parties agree that liquidation of a Transaction or the Purchased Loans does not require a public purchase or sale and that a good faith private purchase or sale shall be deemed to have been made in a commercially reasonable manner. Accordingly, Buyer may elect, in its sole discretion, the time and manner of liquidating any Purchased Loans, and nothing contained herein shall (A) obligate Buyer to liquidate any Purchased Loans on the occurrence and during the continuance of an Event of Default or to liquidate all of the Purchased Loans in the same manner or on the same Business Day or (B) constitute a waiver of any right or remedy of Buyer.
(v) Sellers shall be liable to Buyer, on a joint and several basis, for (A) the amount of all actual out-of-pocket expenses, including third party legal fees and expenses, actually incurred by Buyer in connection with or as a consequence of an Event of Default, and (B) any other actual loss, damage, cost or expense directly arising or resulting from the occurrence of an Event of Default.
(vi) Buyer shall have, in addition to its rights and remedies under the Transaction Documents, all of the rights and remedies provided by applicable federal, state, foreign, and local laws (including, without limitation, if the Transactions are recharacterized as secured financings, the rights and remedies of a secured party under the UCC of the State of New York, to the extent that the UCC is applicable, and the right to offset any mutual debt and claim), in equity, and under any other agreement between Buyer QRS Seller and/or TRS Seller. Without limiting the generality of the foregoing, Buyer shall be entitled to set off the proceeds of the liquidation of the Purchased Loans against all of Sellers’ aggregate obligations to Buyer pursuant to this Agreement, whether or not such obligations are then due, without prejudice to Buyer’s right to recover any deficiency.
(vii) Subject to the notice and grace periods set forth herein, Buyer may exercise any or all of the remedies available to Buyer immediately upon the occurrence of an Event of Default and at any time during the continuance thereof. All rights and remedies arising under the Transaction Documents, as amended from time to time, are cumulative and not exclusive of any other rights or remedies which Buyer may have.
(viii) Buyer may enforce its rights and remedies hereunder without prior judicial process or hearing, and each Seller hereby expressly waives any defenses such Seller might otherwise have to require Buyer to enforce its rights by judicial process. Each Seller also waives any defense such Seller might otherwise have arising from the use of nonjudicial process, disposition of any or all of the Purchased Loans, or from any other election of remedies. Each Seller recognizes that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm’s length.
(ix) Upon the designation of any Accelerated Repurchase Date, Buyer may, without prior notice to either Seller, set off any sum or obligation (whether or not arising under this Agreement, whether matured or unmatured, whether or not contingent and irrespective of the currency, place of payment or booking office of the sum or obligation) owed by either Seller to Buyer or any Affiliate of Buyer against any sum or obligation (whether or not arising under this Agreement, whether matured or unmatured, whether or not contingent and irrespective of the currency, place of payment or booking office of the sum or obligation) owed by Buyer or any Affiliate of Buyer to either Seller. Buyer will give written notice to the other party of any set off effected under this Section 14(b)(ix). If a sum or obligation is unascertained, Buyer may in good faith estimate that obligation and set-off in respect of the estimate, subject to the relevant party accounting to the other when the obligation is ascertained. Nothing in this Section 14(b)(ix) shall be effective to create a charge or other security interest. This Section 14(b)(ix) shall be without prejudice and in addition to any right of set-off, combination of accounts, Lien or other rights to which any party is at any time otherwise entitled (whether by operation of law, contract or otherwise).
