EXHIBIT 10.3
OCEANFIRST BANK
MASTER REPURCHASE AGREEMENT
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This Master Repurchase Agreement is entered into between OceanFirst Bank, having
its principal office at 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, XX, 00000, (the "Seller")
and Storage Engine, Inc., residing at Xxx Xxxxxx Xxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx
00000 (the "Buyer").
1. APPLICABILITY
From time to time the parties hereto may enter into transactions in which
Seller agrees to transfer to 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 Schedule A hereto,
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unless otherwise agreed in writing.
2. DEFINITIONS
(a) "Additional Purchased Securities," Securities provided by Seller to
Buyer pursuant to Paragraph 4(a) hereof;
(b) "Buyer's Margin Amount," with respect to any Transaction 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
(p) 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;
(c) "Confirmation," the meaning specified in Paragraph 3(b) hereof;
(d) "Income," with respect to any Security at any time, any principal
thereof then payable and all interest, dividends or other distributions thereon;
(e) "Margin Deficit," the meaning specified in Paragraph 4(a) hereof;
(f) "Margin Excess," the meaning specified in Paragraph 4(b) hereof;
(g) "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);
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THIS OBLIGATION IS NOT A SAVINGS ACCOUNT OR A DEPOSIT AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION.
(h) "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 365 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);
(i) "Pricing Rate," the per annum percentage rate for determination of
the Price Differential;
(j) "Prime Rate," the prime rate of U.S. money center commercial banks as
published in The Wall Street Journal;
(k) "Purchase Date," the date on which Purchased Securities are
transferred by Seller to Buyer;
(l) "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;
(m) "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);
(n) "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), 12 or 14 hereof;
(o) "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 Paragraphs 12 or 14 hereof;
(p) "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
(b) 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. REPURCHASE TRANSACTION
(a) Initiation. An agreement to enter into a Transaction may be made
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orally or in writing, or automatically, as provided in the Sweep Account
Agreement between the parties, at
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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 in immediately available funds to an
account of Seller. Unless Seller is notified to the contrary, Seller is
authorized to debit Buyer's deposit account maintained with Seller for the
Purchase Price.
(b) Confirmation. Upon agreeing to enter into a Transaction hereunder,
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Seller shall promptly deliver to Buyer 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) Termination. In the case of Transactions terminable upon demand,
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such demand shall be made by Buyer or Seller as provided in the Sweep Account
Agreement, and, in any event, 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 in the case of repurchase transactions terminable upon demand, or
on the Repurchase Date in the case of Transactions terminable upon a fixed term,
termination of the Transaction will be effected (i) by Seller crediting to
Buyer's deposit account maintained with Seller, the Purchase Price, in
immediately available funds, against delivery to Seller of the Purchased
Securities and any Income in respect thereof received by Buyer (and not
previously credited or transferred to, or applied to the obligations of, Seller
pursuant to Paragraph 5 hereof) and by Seller crediting the Price Differential
to Buyer's investment account on the last day of the month in which any
Transaction terminates; and (ii) by Buyer or its agent delivering the Purchased
Securities and any Income in respect thereof received by Buyer (and not
previously credited or transferred to, or applied to the obligations of, Seller
pursuant to Paragraph 5 hereof) against delivery to Buyer of the Purchase Price
in immediately available funds.
4. MARGIN MAINTENANCE
(a) Seller's Obligation. If at any time the aggregate Market Value of all
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Purchased Securities subject to all Transactions is less than the aggregate
Buyer's Margin Amount for all such Transactions (a "Margin Deficit"), then Buyer
may, by written notice to Seller, require Seller, 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 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) Buyer's Obligation. If at any time the aggregate Market Value of all
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Purchased Securities subject to all Transactions exceeds the aggregate Seller's
Margin Amount for all such
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Transactions (a "Margin Excess"), then Seller may, by written notice to Buyer,
require Buyer, 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 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) General.
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(i) Any cash transferred pursuant to this Paragraph shall be
attributed to such Transactions as shall be agreed upon by Buyer and Seller.
(ii) 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 Price for such Transactions (which amount or
percentage shall be agreed to by Buyer and Seller prior to entering into any
such Transactions).
(iii) Seller and Buyer may agree, with respect to any or all
Transactions hereunder, that the respective rights of Buyer and Seller upon
subparagraphs (a) and (b) of this Paragraph to require the elimination of a
Margin Deficit or 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
In the event that Buyer is in possession of the Purchased Securities and
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
IT IS THE INTENTION OF THE PARTIES HERETO THAT ALL TRANSACTIONS BE TREATED
AS SALES AND PURCHASES AND RESALES AND REPURCHASES OF SECURITIES.
NOTWITHSTANDING THE FOREGOING OR ANY OTHER PROVISION OF THIS AGREEMENT, IN THE
EVENT THAT A TRANSACTION HEREUNDER IS DEEMED NOT TO BE A SALE AND PURCHASE, IN
ADDITION TO ALL RIGHTS HEREUNDER, SELLER HEREBY PLEDGES TO
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BUYER, AS SECURITY FOR THE PERFORMANCE BY SELLER OF ITS OBLIGATIONS UNDER EACH
TRANSACTION SUBJECT TO THIS AGREEMENT, AND GRANTS TO BUYER A FIRST SECURITY
INTEREST IN AND A LIEN UPON, ALL THE PURCHASED SECURITIES (TOGETHER WITH ALL
INCOME PAID IN RESPECT OF ALL THE PURCHASED SECURITIES AND COLLECTED BY BUYER
AND ALL RIGHTS RELATED THERETO, ALL PROCEEDS THEREOF AND ALL SUBSTITUTIONS
THEREFOR) APPLICABLE TO ALL SUCH TRANSACTIONS WITH BUYER. THE EXISTENCE OF SUCH
FIRST SECURITY INTEREST, LIEN AND PLEDGE SHALL BE DEEMED NOT TO VIOLATE THE
REPRESENTATIONS AND WARRANTIES IN RESPECT OF SUCH SECURITIES MADE BY SELLER IN
PARAGRAPH 10. IN ACCORDANCE WITH THE FOREGOING, SELLER AGREES TO TAKE, OR TO
CAUSE TO BE TAKEN, SUCH ACTIONS AS IT MAY DEEM APPROPRIATE WITH RESPECT TO THE
PERFECTION OF THE BUYER'S INTEREST IN THE PURCHASED SECURITIES AS A SECURED
PARTY.
7. PAYMENT AND DELIVERY
Any requirement to "deliver" or "transfer" cash or funds under this
Agreement shall be made in immediately available funds. When one party is
required to "deliver" or "transfer" securities under this Agreement that party
shall take, or cause to be taken, such actions as it may deem appropriate to
perfect the other party's interest in such securities as an outright purchaser,
(i) in the case of certificated securities and instruments, by physical delivery
of such certificated securities and instruments in form suitable for transfer or
accompanied by duly executed instruments of transfer or assignment in blank and
accompanied by such other documentation as the party receiving possession may
reasonably request, (ii) in the case of securities held in a federal book entry
system by appropriate transfer and registration of such securities to and in the
name of the party receiving possession; or (iii) by any other method mutually
agreed upon by the parties.
8. SEGREGATION OF PURCHASED SECURITIES
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, in the case of non-certificated securities and, in
addition, by physical segregation with respect to certificated securities. Title
to all Purchased Securities under a repurchase agreement 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 transaction shall relieve Buyer of its obligations to transfer Purchased
Securities to Seller pursuant to Paragraphs 3, 4, 12 or 14 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.
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9. SUBSTITUTION
(a) Buyer hereby grants to Seller the right to substitute other
securities for those subject to this Agreement. 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 maybe subject to liens
granted by Seller to third parties and may be used by Seller for deliveries on
other securities transactions. Whenever the securities are commingled, Seller's
ability to resegregate substitute securities for Buyer will be subject to
Seller's ability to satisfy any lien or to obtain substitute securities.
(b) If Seller substitutes 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.
(c) In Transactions in which the Seller retains custody of Purchased
Securities, the parties expressly agree that Buyer shall be deemed, for purposes
of subparagraph (b) 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
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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 corporate or other 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
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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 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 (3) of this Paragraph) on a 365 day per year
basis for the actual number of days during the period from the date of the Event
of Default giving rise to such option to 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 party, 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 Transaction 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 the 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 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,
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(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 party (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 into this Agreement 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 and
this Agreement. Accordingly, each of Buyer and Seller agrees (i) to perform all
of its obligations in respect of each Transaction hereunder, and (ii) that a
default in the performance of any such obligations shall constitute a default by
it in respect of all Transactions hereunder, (iii) that, in the event of default
hereunder, 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 (iv) 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.
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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 Schedule B attached hereto.
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All written notices which are required or provided to be given hereunder shall
be effective upon actual receipt by the party to which such notice is given.
14. ENTIRE AGREEMENT; SEVERABILITY
This Agreement shall supersede any existing agreements between the parties
containing general terms and conditions for repurchase transactions. Each
provision and agreement herein shall be treated as separate and independent from
any other provision or agreement herein and shall be enforceable notwithstanding
the unenforceability of any such other provision or agreement.
15. NON-ASSIGNABILITY
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
such Transactions shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns.
16. TERMINATION
This Agreement may be terminated by either party upon ten business days'
prior written notice to the other, except that this Agreement shall,
notwithstanding such notice, remain applicable to any Transactions then
outstanding and any actions or omissions of either party prior to termination.
17. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New Jersey
without giving effect to the conflict of law principles thereof.
18. NO WAIVERS, ETC.
No express or implied waiver of any Event of Default by either party shall
constitute a waiver of any other Event of Default and no exercise of any remedy
hereunder by any party shall constitute a waiver of its right to exercise any
other remedy hereunder. No modification or waiver of any provision of this
Agreement and no consent by any party to a departure herefrom shall be effective
unless and until such shall be in writing and duly executed by both of the
parties hereto. Without limitation on any of the foregoing, the failure to give
a notice pursuant to subparagraphs 4(a) or 4(b) hereof will not constitute a
waiver of any right to do so at a later date.
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19. 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.
20. 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 Paragraphs 12 or 14 hereof, is a contractual right to
liquidate such Transaction as described in Sections 555 and 559 of Title 11 of
the United States Code, as amended.
(c) It is the intention of the parties hereto that individual repurchase
transactions be treated as sales and purchases and resales and repurchases of
government securities, notwithstanding the fact that one or both parties may
account for such transactions on some other basis and notwithstanding the fact
that the incremental difference between the Purchase Price and the Repurchase
Price may, for convenience, particularly in light of the pricing system used by
Seller, be described in terms of a rate of interest and notwithstanding the fact
that they may be described or characterized in certain contexts, legal or
otherwise, as loans.
21. DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS
BUYER ACKNOWLEDGES THAT IT HAS BEEN ADVISED THAT FUNDS HELD BY SELLER
PURSUANT TO A TRANSACTION HEREUNDER ARE NOT A SAVINGS ACCOUNT OR A DEPOSIT AND
THEREFORE ARE NOT INSURED BY
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THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE U.S. GOVERNMENT, OR ANY AGENCY OF
THE U.S. GOVERNMENT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed and delivered as of the date first above written.
OCEANFIRST BANK
By: Wm. X. Xxxxxxx, III
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Title: Senior Vice President
BUYER
By: /s/ Xxxxx X. Xxxxx
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Xxxxx Xxxxx
Title: President & CEO
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Schedule A
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Additional Terms and Conditions
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NONE
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Schedule B
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Notices
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To Seller: OCEANFIRST BANK
000 Xxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
To Buyer: Storage Engine
0 Xxxxxx Xxxxx - 0X
Xxxxxx Xxxxx, XX 00000
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