EXHIBIT 10.6
MASTER REPURCHASE AGREEMENT
Dated as of December 8, 1997
Between:
LNR SANDS HOLDINGS INC.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY
1. APPLICABILITY
From time to time the parties hereto may enter into transactions in
which one party ("Seller") agrees to transfer to the other ("Buyer")
securities or financial instruments ("Securities") against the
transfer of funds by Buyer, with a simultaneous agreement by Buyer to
transfer to Seller such Securities at a date certain or on demand,
against the transfer of funds by Seller. Each such transaction shall
be referred to herein as a "Transaction" and shall be governed by this
Agreement, including any supplemental terms or conditions contained in
Annex I hereto, unless otherwise agreed in writing.
2. DEFINITIONS
(a) "Act of Insolvency", with respect to any party, (i) the
commencement by such party as debtor of any case or proceeding under
any bankruptcy, insolvency, reorganization, liquidation, dissolution
or similar law, or such party seeking the appointment of a receiver,
trustee, custodian or similar official for such party or any
substantial part of its property, or (ii) the commencement of any such
case or proceeding against such party, or another seeking such an
appointment, or the filing against a party of an application for a
protective decree under the provisions of the Securities Investor
Protection Act of 1970, which (A) is consented to or not timely
contested by such party, (B) results in the entry of an order for
relief, such an appointment, the issuance of such a protective decree
or the entry of an order having a similar effect, or (C) is not
dismissed within 15 days, (iii) the making by a party of a general
assignment for the benefit of creditors, or (iv) the admission in
writing by a party of such party's inability to pay such party's debts
as they become due;
(b) "Additional Purchased Securities", Securities provided by
Seller to Buyer pursuant to Paragraph 4(a) hereof;
(c) "Buyer's Margin Amount", with respect to any Transaction as of
any date, the amount obtained by application of a percentage (which
may be equal to the percentage that is agreed to as the Seller's
Margin Amount under subparagraph (q) of this Paragraph), agreed to by
Buyer and Seller prior to entering into the Transaction, to the
Repurchase Price for such Transaction as of such date;
(d) "Confirmation", the meaning specified in Paragraph 3(b) hereof;
(e) "Income", with respect to any Security at any time, any
principal thereof then payable and all interest, dividends or other
distributions thereon;
(f) "Margin Deficit", the meaning specified in Paragraph 4(a)
hereof;
(g) "Margin Excess", the meaning specified in Paragraph 4(b)
hereof;
(h) "Market Value", with respect to any Securities as of any date,
the price for such Securities on such date obtained from a generally
recognized source agreed to by the parties or the most recent closing
bid quotation from such a source, plus accrued Income to the extent
not included therein (other than any Income credited or transferred
to, or applied to the obligations of, Seller pursuant to Paragraph 5
hereof) as of such date (unless contrary to market practice for such
Securities);
(i) "Price Differential", with respect to any Transaction hereunder
as of any date, the aggregate amount obtained by daily application of
the Pricing Rate for such Transaction to the Purchase Price for such
Transaction on a 360 day per year basis for the actual number of days
during the period commencing on (and including) the Purchase Date for
such Transaction and ending on (but excluding) the date of
determination (reduced by any amount of such Price Differential
previously paid by Seller to Buyer with respect to such Transaction);
(j) "Pricing Rate", the per annum percentage rate for determination
of the Price Differential;
(k) "Prime Rate", the prime rate of U.S. money center commercial
banks as published in THE WALL STREET JOURNAL;
(l) "Purchase Date", the date on which Purchased Securities are
transferred by Seller to Buyer;
(m) "Purchase Price", (i) on the Purchase Date, the price at which
Purchased Securities are transferred by Seller to Buyer, and (ii)
thereafter, such price increased by the amount of any cash transferred
by Buyer to Seller pursuant to Paragraph 4(b) hereof and decreased by
the amount of any cash transferred by Seller to Buyer pursuant to
Paragraph 4(a) hereof or applied to reduce Seller's obligations under
clause (ii) of Paragraph 5 hereof;
(n) "Purchased Securities", the Securities transferred by Seller to
Buyer in a Transaction hereunder, and any Securities substituted
therefor in accordance with Paragraph 9 hereof. The term "Purchased
Securities" with respect to any Transaction at any time also shall
include Additional Purchased Securities delivered pursuant to
Paragraph 4(a) and shall exclude Securities returned pursuant to
Paragraph 4(b);
(o) "Repurchase Date", the date on which Seller is to repurchase
the Purchased Securities from Buyer, including any date determined by
application of the provisions of Paragraphs 3(c) or 11 hereof;
(p) "Repurchase Price", the price at which Purchased Securities are
to be transferred from Buyer to Seller upon termination of a
Transaction, which will be determined in each case (including
Transactions terminable upon demand) as the sum of the Purchase Price
and the Price Differential as of the date of such determination,
increased by any amount determined by the application of the
provisions of Paragraph 11 hereof;
(q) "Seller's Margin Amount", with respect to any Transaction as of
any date, the amount obtained by application of a percentage (which
may be equal to the percentage that is agreed to as the Buyer's Margin
Amount under subparagraph (c) of this Paragraph), agreed to by Buyer
and Seller prior to entering into the Transaction, to the Repurchase
Price for such Transaction as of such date.
3. INITIATION; CONFIRMATION; TERMINATION
(a) An agreement to enter into a Transaction may be made orally or
in writing at the initiation of either Buyer or Seller. On the
Purchase Date for the Transaction, the Purchased Securities shall be
transferred to Buyer or its agent against the transfer of the Purchase
Price to an account of Seller.
(b) Upon agreeing to enter into a Transaction hereunder, Buyer or
Seller (or both), as shall be agreed, shall promptly deliver to the
other party a written confirmation of each Transaction (a
"Confirmation"). The Confirmation shall describe the Purchased
Securities (including CUSIP number, if any), identify Buyer and Seller
and set forth (i) the Purchase Date, (ii) the Purchase Price, (iii)
the Repurchase Date, unless the Transaction is to be terminable on
demand, (iv) the Pricing Rate or Repurchase Price applicable to the
Transaction, and (v) any additional terms or conditions of the
Transaction not inconsistent with this Agreement. The Confirmation,
together with this Agreement, shall constitute conclusive evidence of
the terms agreed between Buyer and Seller with respect to the
Transaction to which the Confirmation relates, unless with respect to
the Confirmation specific objection is made promptly after receipt
thereof. In the event of any conflict between the terms of such
Confirmation and this Agreement, this Agreement shall prevail.
(c) In the case of Transactions terminable upon demand, such demand
shall be made by Buyer or Seller, no later than such time as is
customary in accordance with market practice, by telephone or
otherwise on or prior to the business day on which such termination
will be effective. On the date specified in such demand, or on the
date fixed for termination in the case of Transactions having a fixed
term, termination of the Transaction will be effected by transfer to
Seller or its agent of the Purchase Securities and any Income in
respect thereof received by Buyer (and not previously credited or
transferred to, or applied to the obligations of, Seller pursuant to
Paragraph 5 hereof) against the transfer of the Repurchase Price to an
account of Buyer.
4. MARGIN MAINTENANCE
(a) If at any time the aggregate Market Value of all Purchased
Securities subject to all Transactions in which a particular party
hereto is acting as Buyer is less than the aggregate Buyer's Margin
Amount for all such Transactions (a "Margin Deficit"), then Buyer may
by notice to Seller require Seller in such Transactions, at Seller`s
option, to transfer to Buyer cash or additional Securities reasonably
acceptable to Buyer ("Additional Purchased Securities"), so that the
cash and aggregate Market Value of the Purchased Securities, including
any such Additional Purchased Securities, will thereupon equal or
exceed such aggregate Buyer's Margin Amount (decreased by the amount
of any Margin Deficit as of such date arising from any Transactions in
which such Buyer is acting as Seller).
(b) If at any time the aggregate Market Value of all Purchased
Securities subject to all Transactions in which a particular party
hereto is acting as Seller exceeds the aggregate Seller's Margin
Amount for all such Transactions at such time (a "Margin Excess"),
then Seller may by notice to Buyer require Buyer in such Transactions,
at Buyer's option, to transfer cash or Purchased Securities to Seller,
so that the aggregate Market Value of the Purchased Securities, after
deduction of any such cash or any Purchased Securities so transferred,
will thereupon not exceed such aggregate Seller's Margin Amount
(increased by the amount of any Margin Excess as of such date arising
from any Transactions in which such Seller is acting as Buyer).
(c) Any cash transferred pursuant to this Paragraph shall be
attributed to such Transactions as shall be agreed upon by Buyer and
Seller.
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(d) Seller and Buyer may agree, with respect to any or all
Transactions hereunder, that the respective rights of Buyer or Seller
(or both) under subparagraphs (a) and (b) of this Paragraph may be
exercised only where a Margin Deficit or Margin Excess exceeds a
specified dollar amount or a specified percentage of the Repurchase
Prices for such Transactions (which amount or percentage shall be
agreed to by Buyer and Seller prior to entering into any such
Transactions).
(e) Seller and Buyer may agree, with respect to any or all
Transactions hereunder, that the respective rights of Buyer and Seller
under subparagraphs (a) and (b) of this Paragraph to require the
elimination of a Margin Deficit or a Margin Excess, as the case may
be, may be exercised whenever such a Margin Deficit or Margin Excess
exists with respect to any single Transaction hereunder (calculated
without regard to any other Transaction outstanding under this
Agreement).
5. INCOME PAYMENTS
Where a particular Transaction's term extends over an Income
payment date on the Securities subject to that Transaction, Buyer
shall, as the parties may agree with respect to such Transaction (or,
in the absence of any agreement, as Buyer shall reasonably determine
in its discretion), on the date such income is payable either (i)
transfer to or credit to the account of Seller an amount equal to such
Income payment or payments with respect to any Purchased Securities
subject to such Transaction or (ii) apply the Income payment or
payments to reduce the amount to be transferred to Buyer by Seller
upon termination of the Transaction. Buyer shall not be obligated to
take any action pursuant to the preceding sentence to the extent that
such action would result in the creation of a Margin Deficit, unless
prior thereto or simultaneously therewith Seller transfers to Buyer
cash or Additional Purchased Securities sufficient to eliminate such
Margin Deficit.
6. SECURITY INTEREST
Although the parties intend that all Transactions hereunder be
sales and purchases and not loans, in the event any such Transactions
are deemed to be loans, Seller shall be deemed to have pledged to
Buyer as security for the performance by Seller of its obligations
under each such Transaction, and shall be deemed to have granted to
Buyer a security interest in, all of the Purchased Securities with
respect to all Transactions hereunder and all proceeds thereof.
7. PAYMENT AND TRANSFER
Unless otherwise mutually agreed, all transfers of funds hereunder
shall be in immediately available funds. All Securities transferred by
one party hereto to the other party (i) shall be in suitable form for
transfer or shall be accompanied by duly executed instruments of
transfer or assignment in blank and such other documentation as the
party receiving possession may reasonably request, (ii) shall be
transferred on the book-entry system of a Federal Reserve Bank, or
(iii) shall be transferred by any other method mutually acceptable to
Seller and Buyer. As used herein with respect to Securities,
"transfer" is intended to have the same meaning as when used in
Section 8-313 of the New York Uniform Commercial Code or, where
applicable, in any federal regulation governing transfers of the
Securities.
8. SEGREGATION OF PURCHASED SECURITIES
To the extent required by applicable law, all Purchased Securities
in the possession of Seller shall be segregated from other securities
in its possession and shall be identified as subject to this Agreement
Segregation may be accomplished by appropriate identification on the
books and records of the holder, including a financial intermediary or
a clearing corporation. Title to all Purchased Securities shall pass
to Buyer and, unless otherwise agreed by Buyer and Seller, nothing in
this Agreement shall preclude Buyer from engaging in repurchase
transactions with the Purchased Securities or otherwise pledging or
hypothecating the Purchased Securities, but no such transactions shall
relieve Buyer of its obligations to transfer Purchased Securities to
Seller pursuant to Paragraph. 3, 4 or 11 hereof, or of Buyer's
obligation to credit or pay Income to, or apply Income to the
obligations of, Seller pursuant to Paragraph 5 hereof.
REQUIRED DISCLOSURE FOR TRANSACTIONS IN WHICH
THE SELLER RETAINS CUSTODY OF THE PURCHASED
SECURITIES
Seller is not permitted to substitute other securities for those
subject to this Agreement and therefore must keep Buyer's securities
segregated at all times, unless in this Agreement Buyer grants Seller
the right to substitute other securities. If Buyer grants the right to
substitute, this means that Buyer's securities will likely be
commingled with Seller's own securities during the trading day. Buyer
is advised that, during any trading day that Buyer's securities are
commingled with Seller's securities, they [will]* be subject to liens
granted by Seller to [its clearing bank]* and may be used by Seller
for deliveries on other securities transactions. Whenever the
securities are commingled, Seller's ability to resegregate substitute
securities for Buyer will be subject to Seller's ability to satisfy
[the clearing]* lien or to obtain substitute securities.
*Language to be used under 17 C.F.R. Section 403.4(e) if Seller is a
government securities broker or dealer other than a financial
institution.
**Language to be used under 17 C.F.R. 403.5(d) if Seller is a
financial institution.
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9. SUBSTITUTION
(a) Seller may, subject to agreement with and acceptance by Buyer,
substitute other Securities for any Purchased Securities. Such
substitution shall be made by transfer to Buyer of such other
Securities and transfer to Seller of such Purchased Securities. After
substitution, the substituted Securities shall be deemed to be
Purchased Securities.
(b) In Transactions in which the Seller retains custody of
Purchased Securities, the parties expressly agree that Buyer shall be
deemed, for purposes of subparagraph (a) of this Paragraph, to have
agreed to and accepted in this Agreement substitution by Seller of
other Securities for Purchased Securities; PROVIDED, HOWEVER, that
such other Securities shall have a Market Value at least equal to the
Market Value of the Purchased Securities for which they are
substituted.
10. REPRESENTATIONS
Each of Buyer and Seller represents and warrants to the other that
(i) it is duly authorized to execute and deliver this Agreement, to
enter into the Transactions contemplated hereunder and to perform its
obligations hereunder and has taken all necessary action to authorize
such execution, delivery and performance, (ii) it will engage in such
Transactions as principal (or, if agreed in writing in advance of any
Transaction by the other party hereto, as agent for a disclosed
principal), (iii) the person signing this Agreement on its behalf is
duly authorized to do so on its behalf (or on behalf of any such
disclosed principal), (iv) it has obtained all authorizations of any
governmental body required in connection with this Agreement and the
Transactions hereunder and such authorizations are in full force and
effect and (v) the execution, delivery and performance of this
Agreement and the Transactions hereunder will not violate any law,
ordinance, charter, by-law or rule applicable to it or any agreement
by which it is bound or by which any of its assets are affected. On
the Purchase Date for any Transaction Buyer and Seller shall each be
deemed to repeat all the foregoing representations made by it.
11. EVENTS OF DEFAULT
In the event that (i) Seller fails to repurchase or Buyer fails to
transfer Purchased Securities upon the applicable Repurchase Date,
(ii) Seller or Buyer fails, after one business day's notice, to comply
with Paragraph 4 hereof, (iii) Buyer fails to comply with Paragraph 5
hereof, (iv) an Act of Insolvency occurs with respect to Seller or
Buyer, (v) any representation made by Seller or Buyer shall have been
incorrect or untrue in any material respect when made or repeated or
deemed to have been made or repeated, or (vi) Seller or Buyer shall
admit to the other its inability to, or its intention not to, perform
any of its obligations hereunder (each an "Event of Default"):
(a) At the option of the nondefaulting party, exercised by written
notice to the defaulting party (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 be deemed immediately to occur.
(b) In all Transactions in which the defaulting party is acting as
Seller, if the nondefaulting party exercises or is deemed to have
exercised the option referred to in subparagraph (a) of this
Paragraph, (i) the defaulting party's obligations hereunder to
repurchase all Purchased Securities in such Transactions shall
thereupon become immediately due and payable, (ii) to the extent
permitted by applicable law, the Repurchase Price with respect to each
such Transaction shall be increased by the aggregate amount obtained
by daily application of (x) the greater of the Pricing Rate for such
Transaction or the Prime Rate to (y) the Repurchase Price for such
Transaction as of the Repurchase Date as determined pursuant to
subparagraph (a) of this Paragraph (decreased as of any day by (A) any
amounts retained by the nondefaulting party with respect to such
Repurchase Price pursuant to clause (iii) of this subparagraph, (B)
any proceeds from the sale of Purchased Securities pursuant to
subparagraph (d)(i) of this Paragraph, and (C) any amounts credited to
the account of the defaulting party pursuant to subparagraph (e) of
this Paragraph) on a 360 day per year basis for the actual number of
days during the period from and including the date of the Event of
Default giving rise to such option to but excluding the date of
payment of the Repurchase Price as so increased, (iii) all Income paid
after such exercise or deemed exercise shall be retained by the
nondefaulting party and applied to the aggregate unpaid Repurchase
Prices owed by the defaulting, and (iv) the defaulting party shall
immediately deliver to the nondefaulting party any Purchased
Securities subject to such Transactions then in the defaulting party's
possession.
(c) In all Transactions in which the defaulting party is acting as
Buyer, upon tender by the nondefaulting party of payment of the
aggregate Repurchase Prices for all such Transactions, the defaulting
party's right, title and interest in all Purchased Securities subject
to such Transactions shall be deemed transferred to the nondefaulting
party, and the defaulting party shall deliver all such Purchased
Securities to the nondefaulting party.
(d) After one business day's notice to the defaulting party (which
notice need not be given if an Act of Insolvency shall have occurred,
and which may be the notice given under subparagraph (a) of this
Paragraph or the notice referred to in clause (ii) of the first
sentence of this Paragraph), the nondefaulting party may:
(i) as to Transactions in which the defaulting party is acting
as Seller, (A) immediately sell, in a recognized market at such
price or prices as the nondefaulting party may reasonably deem
satisfactory, any or all Purchased Securities subject to such
Transactions and apply the proceeds thereof to the aggregate unpaid
Repurchase Prices and any other amounts owing by the defaulting
party hereunder
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or (B) In its sole discretion elect, in lieu of selling all or a
portion of such Purchased Securities, to give the defaulting party
credit for such Purchased Securities in an amount equal to the
price therefor on such date, obtained from a generally recognized
source or the most recent closing bid quotation from such a source,
against the aggregate unpaid Repurchase Prices and any other
amounts owing by the defaulting party hereunder; and
(ii) as to Transactions in which the defaulting party is acting
as Buyer, (A) purchase securities ("Replacement Securities") of the
same class and amount as any Purchased Securities that are not
delivered by the defaulting party to the nondefaulting party as
required hereunder or (B) in its sole discretion elect, in lieu of
purchasing Replacement Securities, to be deemed to have purchased
Replacement Securities at the price therefor on such date, obtained
from a generally recognized source or the most recent closing bid
quotation from such a source.
(e) As to Transactions in which the defaulting party is acting as
Buyer, the defaulting party shall be liable to the nondefaulting parry
(i) with respect to Purchased Securities (other than Additional
Purchased Securities), for any excess of the price paid (or deemed
paid) by the nondefaulting party for Replacement Securities therefor
over the Repurchase Price for such Purchased Securities and (ii) with
respect to Additional Purchased Securities, for the price paid (or
deemed paid) by the nondefaulting party for the Replacement Securities
therefor. In addition, the defaulting party shall be liable to the
nondefaulting party for interest on such remaining liability with
respect to each such purchase (or deemed purchase) of Replacement
Securities from the date of such purchase (or deemed purchase) until
paid in full by Buyer. Such interest shall be at a rate equal to the
greater of the Pricing Rate for such Transaction or the Prime Rate.
(f) For purposes of this Paragraph 11, the Repurchase Price for
each Transaction hereunder in respect of which the defaulting party is
acting as Buyer shall not increase above the amount of such Repurchase
Price for such Transaction determined as of the date of the exercise
or deemed exercise by the nondefaulting party of its option under
subparagraph (a) of this Paragraph.
(g) The defaulting party shall be liable to the nondefaulting party
for the amount of all reasonable legal or other expenses incurred by
the nondefaulting party in connection with or as a consequence of an
Event of Default, together with interest thereon at a rate equal to
the greater of the Pricing Rate for the relevant Transaction or the
Prime Rate.
(h) The nondefaulting party shall have, in addition to its rights
hereunder, any rights otherwise available to it under any other
agreement or applicable law.
12. SINGLE AGREEMENT
Buyer and Seller acknowledge that, and have entered hereinto and
will enter into each Transaction hereunder in consideration of and in
reliance upon the fact that, all Transactions hereunder constitute a
single business and contractual relationship and have been made in
consideration of each other. Accordingly, each of Buyer and Seller
agrees (i) to perform all of its obligations in respect of each
Transaction hereunder, and that a default in the performance of any
such obligations shall constitute a default by it in respect of all
Transactions hereunder, (ii) that each of them shall be entitled to
set off claims and apply property held by them in respect of any
Transaction against obligations owing to them in respect of any other
Transactions hereunder and (iii) that payments, deliveries and other
transfers made by either of them in respect of any Transaction shall
be deemed to have been made in consideration of payments, deliveries
and other transfers in respect of any other Transactions hereunder,
and the obligations to make any such payments, deliveries and other
transfers may be applied against each other and netted.
13. NOTICES AND OTHER COMMUNICATIONS
Unless another address is specified in writing by the respective
party to whom any notice or other communication is to be given
hereunder, all such notices or communications shall be in writing or
confirmed in writing and delivered at the respective addresses set
forth in Annex II attached hereto.
14. ENTIRE AGREEMENT; SEVERABILITY
This Agreement shall supersede any existing agreements between the
parties containing general terms and conditions for repurchase
transactions. Each provision and agreement herein shall be treated as
separate and independent from any other provision or agreement herein
and shall be enforceable notwitlhstanding the unenforceability of any
such other provision or agreement.
15. NON-ASSIGNABILITY; TERMINATION
The rights and obligations of the parties under this Agreement and
under any Transaction shall not be assigned by either party without
the prior written consent of the other party. Subject to the
foregoing, this Agreement and any Transactions shall be binding upon
and shall inure to the benefit of the parties and their respective
successors and assigns. This Agreement may be canceled by either party
upon giving written notice to the other, except that this Agreement
shall, notwithstanding such notice, remain applicable to any
Transactions then outstanding.
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16. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New
York without giving effect to the conflict of law principles thereof.
17. NO WAIVERS, ETC.
No express or implied waiver of any Event of Default by either
party shalI constitute a waiver of any other Event of Default and no
exercise of any remedy hereunder by any party shall constitute a
waiver of its right to exercise any other remedy hereunder. No
modification or waiver of any provision of this Agreement and no
consent by any party to a departure herefrom shall be effective unless
and until such shall be in writing and duly executed by both of the
parties hereto. Without limitation on any of the foregoing, the
failure to give a notice pursuant to subparagraphs 4(a) or 4(b) hereof
will not constitute a waiver of any right to do so at a later date.
18. USE OF EMPLOYEE PLAN ASSETS
(a) If assets of an employee benefit plan subject to any provision
of the Employee Retirement Income Security Act of 1974 ("ERISA") are
intended to be used by either party hereto (the "Plan Party") in a
Transaction, the Plan Party shall so notify the other party prior to
the transaction. The Plan Party shall represent in writing to the
other party that the Transaction does not constitute a prohibited
transaction under ERISA or is otherwise exempt therefrom, and the
other party may proceed In reliance thereon but shall not be required
so to proceed.
(b) Subject to the last sentence of subparagraph (a) of this
Paragraph, any such Transaction shall proceed only if Seller furnishes
or has furnished to Buyer its most recent available audited statement
of its financial condition and Its most recent subsequent unaudited
statement of its financial condition.
(c) By entering into a Transaction pursuant to this Paragraph,
Seller shall be deemed (i) to represent to Buyer that since the date
of Seller's latest such financial statements, there has been no
material adverse change in Seller's financial condition which Seller
has not disclosed to Buyer, and (ii) to agree to provide Buyer with
future audited and unaudited statements of its financial condition as
they are issued, so long as it is a Seller in any outstanding
Transaction involving a Plan Party.
19. INTENT
(a) The parties recognize that each transaction is a "repurchase
agreement" as that term is defined In Section 101 of Title 11 of the
United States Code, as amended (except insofar as the type of
Securities subject to such Transaction or the term of such Transaction
would render such definition inapplicable), and a "securities
contract" as that term is defined in Section 741 of Title 11 of the
United States Code, as amended.
(b) it is understood that either party's right to liquidate
Securities delivered to it in connection with Transactions hereunder
or to exercise any other remedies pursuant to Paragraph 11 hereof, is
a contractual right to liquidate such Transaction as described in
Sections 555 and 559 of Title 11 of the United States Code, as
amended.
20. DISCLOSURE RELATING TO CRETAN FEDERAL PROTECTIONS
The parties acknowledge that they have been advised that:
(a) in the case of Transactions in which one of the parties is a
broker or dealer registered with the Securities and Exchange
Commission ("SEC") under Section 15 of the Securities Exchange Act of
1934 ("1934 Act"), the Securities Investor Protection Corporation has
taken the position that the provisions of the Securities investor
Protection Act of 1970 ("SIPA") do not protect the other party with
respect to any Transaction hereunder;
(b) in the case of Transactions in which one of the parties is a
government securities broker or a government securities dealer
registered with the SEC under Section 15C of the 1934 Act, SIPA will
not provide protection to the other party with respect to any
Transaction hereunder; and
(c) In the case of Transactions in which one of the parties is a
financial institution, funds held by the financial institution
pursuant to a Transaction hereunder are not a deposit and therefore
are not insured by the Federal Deposit Insurance Corporation, the
Federal Savings and Loan Insurance Corporation or the National Credit
Union Share Insurance Fund, as applicable.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company [Name of Party]LNR Sands Holdings Inc.
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate
Funding Corp.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------ ----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President Title: Vice President - CFO
Date: Date: December 8, 1997
6
SUPPLEMENTAL TERMS AND CONDITIONS
7
NAMES AND ADDRESSES FOR COMMUNICATIONS BETWEEN PARTIES
8
ANNEX I
SUPPLEMENTAL TERMS AND CONDITIONS
This Annex I forms a part of the Master Repurchase Agreement dated
as of DECEMBER 8, 1997 (the "Agreement") between LNR SANDS and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Company. Capitalized terms used but not defined in this Annex I shall
have the meanings ascribed to them in the Agreement. LNR SANDS shall act only
as Buyer and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company shall act only as Seller under the
Agreement.
1. (a) "Margin Notice Deadline", as used in the Agreement and in
this Annex I, means __ [a.m./p.m.].
(b) Paragraph 2 of the Agreement is amended by adding the following
defined term:
"Mortgage Loan", any loan or divided or undivided interest
therein secured by a mortgage, deed of trust or other instrument creating a
mortgage lien on any fee interest of the obligor on the related mortgage note
in land and improvements thereon subject to the lien of such mortgage, deed of
trust or other instrument."
(c) The definition of "Market Value" in Paragraph 2 of the Agreement
is amended by adding the following at the end thereof:
"and, with respect to any Mortgage Loan, as of any date, the
market value thereof on such date as may reasonably be determined by Seller in
accordance with commercially acceptable standards on the date of
determination;"
(d) Paragraph 2 of the Agreement is further amended by adding the
following paragraph at the end thereof:
"The term "Securities" shall include Mortgage Loans, but such
inclusion is for purposes of reference only and is not intended to, and shall
not, affect the characterization of Mortgage Loans for any other purpose."
2. Subparagraph 3(c) of the Agreement is amended by adding the
following at the end of the first sentence thereof:
"In the case of Transactions involving Mortgage Loans, such
demand shall be made no later than 4 :00 p.m., New York City time, on the
business day preceding the day on which such termination will be effective,
which day shall also be a business day."
3. Paragraph 6 of the Agreement is amended by adding the following
at the end of the last sentence thereof:
"In the case of Transactions involving Mortgage Loans, Buyer
hereby pledges to Seller as security for the performance by Buyer of its
obligations under each such Transaction, and grants to Seller a security
interest in, all of the Purchased Securities consisting of Mortgage Loans with
respect to all such Transactions and all proceeds thereof."
4. Paragraph 7 of the Agreement is amended by adding the following
at the end of the last sentence thereof:
"On the Purchase Date in respect of Transactions involving
Mortgage Loans, Seller shall transfer such Mortgage Loans to Buyer by marking
its books and records to reflect that such Mortgage Loans have been sold to
Buyer. Transfers of Mortgage Loans by Buyer to Seller for purposes of this
Paragraph 7 shall be accomplished by an appropriate notation in the Seller's
books and records reflecting that such Mortgage Loans have been sold by Buyer
to Seller."
5. Paragraph 8 of the Agreement is amended by adding the following
at the end of the last sentence thereof:
"In the case of Transactions involving Mortgage Loans, to the
extent that record title to such Mortgage Loans in the name of Seller is
retained by Seller, such record title shall be retained in trust, for the
benefit of Buyer, for the sole purpose of facilitating the servicing and the
supervision of the Mortgage Loans. Upon termination of any Transaction as set
forth in paragraph 3(c) of this Agreement, Buyer agrees promptly to execute
such instruments and documents as are deemed necessary by Seller to reconvey
the related Mortgage Loans to Seller or its designee. Seller shall prepare and
furnish to Buyer all such instruments and documents at Seller's expense. Buyer
shall not be responsible for recording or filing any such instruments or
documents. Any such reconveyance to Seller shall be made without recourse to
Buyer and without any representations and warranties, except that Buyer shall
be deemed to represent and warrant to Seller that (i) Buyer is reconveying to
Seller all right, title and interest to such Mortgage Loans to the same extent
as was originally conveyed by Seller to Buyer and (ii) Buyer has not agreed to
any modification or waiver of any provision of such Mortgage Loans which would
materially adversely affect the value thereof or Seller's interest therein or
materially impair the security therefor."
6. In the case of Transactions involving Mortgage Loans, the text
entitled "Required Disclosure for Transactions in Which the Seller Retains
Custody of the Purchased Securities" is replaced with the following:
DISCLOSURE FOR TRANSACTIONS IN WHICH THE SELLER RETAINS CUSTODY OF THE
PURCHASED SECURITIES
Seller is not permitted to substitute other Purchased Securities for those
subject to this Agreement and therefore must keep the Purchased Securities
segregated at all times, unless in this Agreement the Buyer grants Seller the
right to substitute other Purchased Securities. If Buyer grants Seller such
right to substitute, this means that the Purchased Securities will likely be
commingled with Seller's own assets. Buyer is advised that, if the Purchased
Securities are commingled with Seller's other assets, they may be subject to
liens granted by Seller to third parties and may be used by Seller for
deliveries on other transactions. Seller makes no representation to Buyer
concerning Buyer's rights in Purchased Securities commingled with other assets
of Seller.
7. (a) Subparagraph 11(d)(i) of the Agreement is amended by adding
after the word "hereunder" in the last sentence thereof the following:
"and in either case, upon receipt by Buyer of the aggregate
unpaid Repurchase Prices and any other amount owing by the defaulting party,
including, without limitation, any unpaid fees, expenses or other amounts to
which Buyer is otherwise entitled hereunder, Buyer shall transfer the portion
of the Purchased Securities and proceeds thereof."
(b) Paragraph 11 of the Agreement is amended by adding the following
subparagraph at the end of the last subparagraph thereof.
"Any purchases of Replacement Securities, pursuant to Paragraph
11(d)(ii) of this Agreement, which are Mortgage Loans shall be, to the extent
reasonably possible, of the same type and amount as the Purchased Securities
that are not delivered by Buyer and may be effected in public or private
purchases, in each case as Seller may reasonably deem appropriate and at such
price or prices as Seller may reasonably deem satisfactory. In the event
Seller elects in lieu of so purchasing such Replacement Securities to be
deemed to have purchased Replacement Securities as provided in Paragraph
11(d)(ii), such Replacement Securities shall be deemed to have been purchased
at the market value thereof as reasonably determined by Seller in accordance
with commercially acceptable standards or, if applicable, at the prevailing
price therefor in a recognized market."
8. If the Agreement is in the form of the 1987 Public Securities
Association Master Repurchase Agreement, the Agreement shall be further
amended as follows:
(a) The definition of "Buyer's Margin Amount" in Paragraph 2 of the
Agreement is amended by adding the following at the end thereof:
";in the case of a Transaction involving Mortgage Loans, such
percentage shall be, in the absence of any agreement in respect thereof
between Buyer and Seller, the percentage calculated by dividing the Market
Value of the Purchased Securities on
the Purchase Date by the Purchase Price on the Purchase Date;"
(b) The definition of "Seller's Margin Amount" in Paragraph 2 of the
Agreement is amended by adding the following at the end thereof:
"; in the case of a Transaction involving Mortgage Loans, such
percentage shall be, in the absence of any agreement in respect thereof
between Buyer and Seller, the percentage employed in calculating the Buyer's
Margin Amount."
(c) Paragraph 4 of the Agreement is amended by adding the following
subparagraph at the end of the last subparagraph thereof.
"If any notice is given by Buyer or Seller under subparagraph
(a) or (b) of this Paragraph at or before the Margin Notice Deadline on any
business day, the party receiving such notice shall transfer cash or
Additional Purchased Securities as provided in such subparagraph no later than
the close of business in the relevant market on such day. If any such notice
is given after the Margin Notice Deadline, the party receiving such notice
shall transfer such cash or Securities no later than the close of business in
the relevant market on the next business day following such notice."
(d) Subparagraph 11(d)(i) of the Agreement is amended by inserting,
following the word "market" and before the word "at", on the second line
thereof, the phrase "or in any other commercially reasonable manner".
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY LNR Sands Holdings Inc
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate
Funding Corp.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------- ---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President Title: Vice President and CFO
Date: Date: December 8, 1997
FORM W-9 REQUEST FOR TAXPAYER GIVE FORM TO THE
IDENTIFICATION NUMBER AND REQUESTER. DO NOT
DEPARTMENT OF THE TREASURY CERTIFICATION SEND TO THE IRS.
INTERNAL REVENUE SERVICE
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PLEASE PRINT OR TYPE
Name (if a joint account or you changed your name, see Specific Instructions on
page 2.)
LNR SANDS HOLDINGS INC.
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Business name, if different from above. (See Specific Instructions on page 2.)
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Check appropriate box: [ ] Individual/Sole proprietor [X] Corporation
[ [ Partnership [ ] Other
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Address (number, street, and apt. or suite no.) Requester's name and
address (optional)
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
--------------------------------------------------------------------------------
City, state, and ZIP code
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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PART I TAXPAYER IDENTIFICATION NUMBER (TIN) List account number(s)
here (optional)
Enter your TIN in the Social security number
appropriate box. - -
For individuals, this or
is your social security Employer identification number PART II FOR PAYEES
number (SSN). However, 8 8 - 0 3 7 8 - 2 3 3 EXEMPT FROM BACKUP
if you are a resident WITHHOLDING (SEE
alien OR a sole proprietor, see the instructions THE INSTRUCTIONS ON
on page 2. For other entities, it is your PAGE 2.)
employer identification number (EIN). If you do
not have a number, see HOW TO GET A TIN on page 2.
NOTE: IF THE ACCOUNT IS MORE THAN ONE NAME, SEE THE
CHART ON PAGE 2 FOR GUIDELINES ON WHOSE NUMBER TO
ENTER.
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PART III CERTIFICATION
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number
(or I am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal Revenue
Service (IRS) that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or (c) the IRS has notified me
that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS.--You must cross out item 2 above if you have been
notified by the IRS that you are currently subject to backup withholding
because you have failed to report all interest and dividends on your tax
return. For real estate transactions, item 2 does not apply. For mortgage
interest paid, acquisition or abandonment of secured property, cancellation of
debt, contributions to an individual retirement arrangement (▇▇▇), and
generally, payments other than interest and dividends, you are not required to
sign the Certification, but you must provide your correct TIN. (See the
instructions on page 2.)
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SIGN
HERE SIGNATURE /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ DATE 12/8/97
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PURPOSE OF FORM.--A person who is required to file an information return with
the IRS must get your correct taxpayer identification number (TIN) to report,
for example, income paid to you, real estate transactions, mortgage interest you
paid, acquisition or abandonment of secured property, cancellation of debt, or
contributions you made to an ▇▇▇.
Use Form W-9 to give your correct TIN to the person requesting it (the
requester) and, when applicable, to:
1. Certify the TIN you are giving is correct (or you are waiting for a
number to be issued.)
2. Certify you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are an exempt payee.
NOTE: IF A REQUESTER GIVES YOU A FORM OTHER THAN A W-9 TO REQUEST YOUR TIN, YOU
MUST USE THE REQUESTER'S FORM IF IT IS SUBSTANTIALLY SIMILAR TO THIS FORM W-9.
WHAT IS BACKUP WITHHOLDING?--Persons making certain payments to you must
withhold and pay to the IRS 31% of such payments under certain conditions. This
is called "backup withholding." Payments that may be subject to backup
withholding include interest, dividends, broker and barter exchange
transactions, rents, royalties, nonemployee pay, and certain payments from
fishing boat operators. Real estate transactions are not subject to backup
withholding.
If you give the requester your correct TIN, make the proper certifications,
and report all your taxable interest and dividends on your tax return,
payments you receive will not be subject to backup withholding. Payments you
receive will be subject to backup withholding if:
1. You do not furnish your TIN to the requester, or
2. The IRS tells the requester that you furnished an incorrect TIN, or
3. The IRS tells you that you are subject to backup withholding because
you did not report all your interest and dividends on your tax return (for
reportable interest and dividends only), or
4. You do not certify to the requester that you are not subject to
backup withholding under 3 above (for reportable interest and dividend accounts
opened after 1983 only), or
5. You do not certify your TIN when required. See the Part III
instructions on page 2 for details.
Certain payees and payments are exempt from backup withholding. See the
Part II instructions and the separate INSTRUCTIONS FOR THE REQUESTER OF FORM
W-9
PENALTIES
FAILURE TO FURNISH TIN.--If you fail to furnish your correct TIN to a requester,
you are subject to a penalty of $50 for each such failure unless your failure is
due to reasonable cause and not to willful neglect.
CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you make
a false statement with no reasonable basis that results in no backup
withholding, you are subject to a $500 penalty.
CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
MISUSE OF TINS.--If the requester discloses or uses TINs in violation of
Federal law, the requester may be subject to civil and criminal penalties.
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CAT. NO. 10231X
FORM W-9 (REV. 12-96)