EXHIBIT 10.14
[LOGO OF THE BOND MARKET ASSOCIATION]
MASTER REPURCHASE AGREEMENT
September 1996 Version
Dated as of
Between: Xxxxxxx Xxxxx Xxxxxx, Inc.
And KANKAKEE FED SVGS BANK
1. APPLICABILITY
From time to time the parties hereto may enter into transactions in which
one party ("Seller") agrees to transfer to the other ("Buyer") securities
or other assets ("Securities") against the transfer of funds by Buyer, with
a simultaneous agreement by Buyer to transfer to Seller such Securities at
a date certain or on demand, against the transfer of funds by Seller. Each
such transaction shall be referred to herein as a "Transaction" and, unless
otherwise agreed in writing, shall be governed by this Agreement, including
any supplemental terms or conditions contained in Annex I hereto and in any
other annexes identified herein or therein as applicable hereunder.
2. DEFINITIONS
(a) "Act of Insolvency", with respect to any party, (i) the commencement
by such party as debtor of any case or proceeding under any
bankruptcy, insolvency, reorganization, liquidation, moratorium,
dissolution, delinquency or similar law, or such party seeking the
appointment or election of a receiver, conservator, trustee, custodian
or similar official for such party or any substantial part of its
property, or the convening of any meeting of creditors for purposes of
commencing any such case or proceeding or seeking such an appointment
or election, (ii) the commencement of any such case or proceeding
against such party, or another seeking such an appointment or
election, or the filing against a party of an application for a
protective decree under the provisions of the Securities Investor
Protection Act of 1970, which (A) is consented to or not timely
contested by such party, (B) results in the entry of an order for
relief, such an appointment or election, the issuance of such a
protective decree or the entry of an order having a similar effect, or
(C) is not dismissed within 15 days, (iii) the making by such party of
a general assignment for the benefit of creditors, or (iv) the
admission in writing by such party of such party's inability to pay
such party's debts as they become due;
(b) "Additional Purchased Securities", Securities provided by Seller to
Buyer pursuant to Paragraph 4(a) hereof;
(c) "Buyer's Margin Amount", with respect to any Transaction as of any
date, the amount obtained by application of the Buyer's Margin
Percentage to the Repurchase Price for such Transaction as of such
date;
(d) "Buyer's Margin Percentage", with respect to any Transaction as of any
date, a percentage (which may be equal to the Seller's Margin
Percentage) agreed to by Buyer and Seller or, in the absence of any
such agreement, the percentage obtained by dividing the Market Value
of the Purchased Securities on the Purchase Date by the Purchase Price
on the Purchase Date for such Transaction;
(e) "Confirmation", the meaning specified in Paragraph 3(b) hereof;
(f) "Income", with respect to any Security at any time, any principal
thereof and all interest, dividends or other distributions thereon;
(g) "Margin Deficit", the meaning specified in Paragraph 4(a) hereof;
(h) "Margin Excess", the meaning specified in Paragraph 4(b) hereof;
(i) "Margin Notice Deadline", the time agreed to by the parties in the
relevant Confirmation, Annex I hereto or otherwise as the deadline for
giving notice requiring same-day satisfaction of margin maintenance
obligations as provided in Paragraph 4 hereof (or, in the absence of
any such agreement, the deadline for such purposes established in
accordance with market practice);
(j) "Market Value", with respect to any Securities as of any date, the
price for such Securities on such date obtained from a generally
recognized source agreed to by the parties or the most recent closing
bid quotation from such a source, plus accrued Income to the extent
not included therein (other than any Income credited or transferred
to, or applied to the obligations of, Seller pursuant to Paragraph 5
hereof) as of such date (unless contrary to market practice for such
Securities);
(k) "Price Differential", with respect to any Transaction as of any date,
the aggregate amount obtained by daily application of the Pricing Rate
for such Transaction to the Purchase Price for such Transaction on a
360 day per year basis for the actual number of days during the period
commencing on (and including) the Purchase Date for such Transaction
and ending on (but excluding) the date of determination (reduced by
any amount of such Price Differential previously paid by Seller to
Buyer with respect to such Transaction);
(l) "Pricing Rate", the per annum percentage rate for determination of the
Price Differential;
(m) "Prime Rate", the prime rate of U.S. commercial banks as published in
The Wall Street Journal (or, if more than one such rate is published,
the average of such rates);
(n) "Purchase Date", the date on which Purchased Securities are to be
transferred by Seller to Buyer;
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(o) "Purchase Price", (i) on the Purchase Date, the price at which
Purchased Securities are transferred by Seller to Buyer, and (ii)
thereafter, except where Buyer and Seller agree otherwise, such price
increased by the amount of any cash transferred by Buyer to Seller
pursuant to Paragraph 4(b) hereof and decreased by the amount of any
cash transferred by Seller to Buyer pursuant to Paragraph 4(a) hereof
or applied to reduce Seller's obligations under clause (ii) of
Paragraph 5 hereof;
(p) "Purchased Securities", the Securities transferred by Seller to Buyer
in a Transaction hereunder, and any Securities substituted therefor in
accordance with Paragraph 9 hereof. The term "Purchased Securities"
with respect to any Transaction at any time also shall include
Additional Purchased Securities delivered pursuant to Paragraph 4(a)
hereof and shall exclude Securities returned pursuant to Paragraph
4(b) hereof;
(q) "Repurchase Date", the date on which Seller is to repurchase the
Purchased Securities from Buyer, including any date determined by
application of the provisions of Paragraph 3(c) or 11 hereof;
(r) "Repurchase Price", the price at which Purchased Securities are to be
transferred from Buyer to Seller upon termination of a Transaction,
which will be determined in each case (including Transactions
terminable upon demand) as the sum of the Purchase Price and the Price
Differential as of the date of such determination;
(s) "Seller's Margin Amount", with respect to any Transaction as of any
date, the amount obtained by application of the Seller's Margin
Percentage to the Repurchase Price for such Transaction as of such
date;
(t) "Seller's Margin Percentage", with respect to any Transaction as of
any date, a percentage (which may be equal to the Buyer's Margin
Percentage) agreed to by Buyer and Seller or, in the absence of any
such agreement, the percentage obtained by dividing the Market Value
of the Purchased Securities on the Purchase Date by the Purchase Price
on the Purchase Date for such Transaction.
3. INITIATION; CONFIRMATION; TERMINATION
(a) An agreement to enter into a Transaction may be made orally or in
writing at the initiation of either Buyer or Seller. On the Purchase
Date for the Transaction, the Purchased Securities shall be
transferred to Buyer or its agent against the transfer of the Purchase
Price to an account of Seller.
(b) Upon agreeing to enter into a Transaction hereunder, Buyer or Seller
(or both), as shall be agreed, shall promptly deliver to the other
party a written confirmation of each Transaction (a "Confirmation").
The Confirmation shall describe the Purchased Securities (including
CUSIP number, if any), identify Buyer and Seller and set forth (i) the
Purchase Date, (ii) the Purchase Price, (iii) the Repurchase Date,
unless the Transaction is to be terminable on demand, (iv) the Pricing
Rate or Repurchase Price applicable to the Transaction, and (v) any
additional terms or conditions of the Transaction not inconsistent
with this Agreement. The Confirmation, together with this Agreement,
shall constitute conclusive evidence of the terms agreed between Buyer
and Seller with respect to the Transaction to which the Confirmation
relates, unless
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with respect to the Confirmation specific objection is made promptly
after receipt thereof. In the event of any conflict between the terms
of such Confirmation and this Agreement, this Agreement shall prevail.
(c) In the case of Transactions terminable upon demand, such demand shall
be made by Buyer or Seller, no later than such time as is customary in
accordance with market practice, by telephone or otherwise on or prior
to the business day on which such termination will be effective. On
the date specified in such demand, or on the date fixed for
termination in the case of Transactions having a fixed term,
termination of the Transaction will be effected by transfer to Seller
or its agent of the Purchased Securities and any Income in respect
thereof received by Buyer (and not previously credited or transferred
to, or applied to the obligations of, Seller pursuant to Paragraph 5
hereof) against the transfer of the Repurchase Price to an account of
Buyer.
4. MARGIN MAINTENANCE
(a) If at any time the aggregate Market Value of all Purchased Securities
subject to all Transactions in which a particular party hereto is
acting as Buyer is less than the aggregate Buyer's Margin Amount for
all such Transactions (a "Margin Deficit"), then Buyer may by notice
to Seller require Seller in such Transactions, at Seller's option, to
transfer to Buyer cash or additional Securities reasonably acceptable
to Buyer ("Additional Purchased Securities"), so that the cash and
aggregate Market Value of the Purchased Securities, including any such
Additional Purchased Securities, will thereupon equal or exceed such
aggregate Buyer's Margin Amount (decreased by the amount of any Margin
Deficit as of such date arising from any Transactions in which such
Buyer is acting as Seller).
(b) If at any time the aggregate Market Value of all Purchased Securities
subject to all Transactions in which a particular party hereto is
acting as Seller exceeds the aggregate Seller's Margin Amount for all
such Transactions at such time (a "Margin Excess"), then Seller may by
notice to Buyer require Buyer in such Transactions, at Buyer's option,
to transfer cash or Purchased Securities to Seller, so that the
aggregate Market Value of the Purchased Securities, after deduction of
any such cash or any Purchased Securities so transferred, will
thereupon not exceed such aggregate Seller's Margin Amount (increased
by the amount of any Margin Excess as of such date arising from any
Transactions in which such Seller is acting as Buyer).
(c) If any notice is given by Buyer or Seller under subparagraph (a) or
(b) of this Paragraph at or before the Margin Notice Deadline on any
business day, the party receiving such notice shall transfer cash or
Additional Purchased Securities as provided in such subparagraph no
later than the close of business in the relevant market on such day.
If any such notice is given after the Margin Notice Deadline, the
party receiving such notice shall transfer such cash or Securities no
later than the close of business in the relevant market on the next
business day following such notice.
(d) Any cash transferred pursuant to this Paragraph shall be attributed to
such Transactions as shall be agreed upon by Buyer and Seller.
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(e) Seller and Buyer may agree, with respect to any or all Transactions
hereunder, that the respective rights of Buyer or Seller (or both)
under subparagraphs (a) and (b) of this Paragraph may be exercised
only where a Margin Deficit or Margin Excess, as the case may be,
exceeds a specified dollar amount or a specified percentage of the
Repurchase Prices for such Transactions (which amount or percentage
shall be agreed to by Buyer and Seller prior to entering into any such
Transactions).
(f) Seller and Buyer may agree, with respect to any or all Transactions
hereunder, that the respective rights of Buyer and Seller under
subparagraphs (a) and (b) of this Paragraph to require the elimination
of a Margin Deficit or a Margin Excess, as the case may be, may be
exercised whenever such a Margin Deficit or Margin Excess exists with
respect to any single Transaction hereunder (calculated without regard
to any other Transaction outstanding under this Agreement).
5. INCOME PAYMENTS
Seller shall be entitled to receive an amount equal to all Income paid or
distributed on or in respect of the Securities that is not otherwise
received by Seller, to the full extent it would be so entitled if the
Securities had not been sold to Buyer. Buyer shall, as the parties may
agree with respect to any Transaction (or, in the absence of any such
agreement, as Buyer shall reasonably determine in its discretion), on the
date such Income is paid or distributed either (i) transfer to or credit to
the account of Seller such Income with respect to any Purchased Securities
subject to such Transaction or (ii) with respect to Income paid in cash,
apply the Income payment or payments to reduce the amount, if any, to be
transferred to Buyer by Seller upon termination of such Transaction. Buyer
shall not be obligated to take any action pursuant to the preceding
sentence (A) to the extent that such action would result in the creation of
a Margin Deficit, unless prior thereto or simultaneously therewith Seller
transfers to Buyer cash or Additional Purchased Securities sufficient to
eliminate such Margin Deficit, or (B) if an Event of Default with respect
to Seller has occurred and is then continuing at the time such Income is
paid or distributed.
6. SECURITY INTEREST
Although the parties intend that all Transactions hereunder be sales and
purchases and not loans, in the event any such Transactions are deemed to
be loans, Seller shall be deemed to have pledged to Buyer as security for
the performance by Seller of its obligations under each such Transaction,
and shall be deemed to have granted to Buyer a security interest in, all of
the Purchased Securities with respect to all Transactions hereunder and all
Income thereon and other proceeds thereof.
7. PAYMENT AND TRANSFER
Unless otherwise mutually agreed, all transfers of funds hereunder shall be
in immediately available funds. All Securities transferred by one party
hereto to the other party (i) shall be in suitable form for transfer or
shall be accompanied by duly executed instruments of transfer or assignment
in blank and such other documentation as the party receiving possession may
reasonably request, (ii) shall be transferred on the book-entry system of a
Federal Reserve Bank, or (iii) shall be transferred by any other method
mutually acceptable to Seller and Buyer.
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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 or securities intermediary
or a clearing corporation. All of Seller's interest in the Purchased
Securities shall pass to Buyer on the Purchase Date and, unless otherwise
agreed by Buyer and Seller, nothing in this Agreement shall preclude Buyer
from engaging in repurchase transactions with the Purchased Securities or
otherwise selling, transferring, pledging or hypothecating the Purchased
Securities, but no such transaction shall relieve Buyer of its obligations
to transfer Purchased Securities to Seller pursuant to Paragraph 3, 4 or 11
hereof, or of Buyer's obligation to credit or pay Income to, or apply
Income to the obligations of, Seller pursuant to Paragraph 5 hereof.
Required Disclosure for Transactions in Which the Seller Retains
Custody of the Purchased Securities
Seller is not permitted to substitute other securities for those
subject to this Agreement and therefore must keep Buyer's securities
segregated at all times, unless in this Agreement Buyer grants Seller
the right to substitute other securities. If Buyer grants the right to
substitute, this means that Buyer's securities will likely be
commingled with Seller's own securities during the trading day. Buyer
is advised that, during any trading day that Buyer's securities are
commingled with Seller's securities, they [will]* [may]** be subject
to liens granted by Seller to [its clearing bank]* [third parties]**
and may be used by Seller for deliveries on other securities
transactions. Whenever the securities are commingled, Seller's ability
to resegregate substitute securities for Buyer will be subject to
Seller's ability to satisfy [the clearing] *[any]** lien or to obtain
substitute securities.
* Language to be used under 17 C.F.R. B403.4(e) if Seller is a
government securities broker or dealer other than a financial
institution.
** Language to be used under 17 C.F.R. B403.5(d) if Seller is a
financial institution.
9. SUBSTITUTION
(a) Seller may, subject to agreement with and acceptance by Buyer,
substitute other Securities for any Purchased Securities. Such
substitution shall be made by transfer to Buyer of such other
Securities and transfer to Seller of such Purchased Securities. After
substitution, the substituted Securities shall be deemed to be
Purchased Securities.
(b) In Transactions in which Seller retains custody of Purchased
Securities, the parties expressly agree that Buyer shall be deemed,
for purposes of subparagraph (a) of this Paragraph, to have agreed to
and accepted in this Agreement substitution by Seller of other
Securities 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.
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10. REPRESENTATIONS
Each of Buyer and Seller represents and warrants to the other that (i) it
is duly authorized to execute and deliver this Agreement, to enter into
Transactions contemplated hereunder and to perform its obligations
hereunder and has taken all necessary action to authorize such execution,
delivery and performance, (ii) it will engage in such Transactions as
principal (or, if agreed in writing, in the form of an annex hereto or
otherwise, in advance of any Transaction by the other party hereto, as
agent for a disclosed principal), (iii) the person signing this Agreement
on its behalf is duly authorized to do so on its behalf (or on behalf of
any such disclosed principal), (iv) it has obtained all authorizations of
any governmental body required in connection with this Agreement and the
Transactions hereunder and such authorizations are in full force and effect
and (v) the execution, delivery and performance of this Agreement and the
Transactions hereunder will not violate any law, ordinance, charter, 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 transfer or Buyer fails to purchase
Purchased Securities upon the applicable Purchase Date, (ii) Seller fails
to repurchase or Buyer fails to transfer Purchased Securities upon the
applicable Repurchase Date, (iii) Seller or Buyer fails to comply with
Paragraph 4 hereof, (iv) Buyer fails, after one business day's notice, to
comply with Paragraph 5 hereof, (v) an Act of Insolvency occurs with
respect to Seller or Buyer, (vi) any representation made by Seller or Buyer
shall have been incorrect or untrue in any material respect when made or
repeated or deemed to have been made or repeated, or (vii) Seller or Buyer
shall admit to the other its inability to, or its intention not to, perform
any of its obligations hereunder (each an "Event of Default"):
(a) The nondefaulting party may, at its option (which option shall be
deemed to have been exercised immediately upon the occurrence of an
Act of Insolvency), declare an Event of Default to have occurred
hereunder and, upon the exercise or deemed exercise of such option,
the Repurchase Date for each Transaction hereunder shall, if it has
not already occurred, be deemed immediately to occur (except that, in
the event that the Purchase Date for any Transaction has not yet
occurred as of the date of such exercise or deemed exercise, such
Transaction shall be deemed immediately canceled). The nondefaulting
party shall (except upon the occurrence of an Act of Insolvency) give
notice to the defaulting party of the exercise of such option as
promptly as practicable.
(b) In all Transactions in which the defaulting party is acting as Seller,
if the nondefaulting party exercises or is deemed to have exercised
the option referred to in subparagraph (a) of this Paragraph, (i) the
defaulting party's obligations in such Transactions to repurchase all
Purchased Securities, at the Repurchase Price therefor on the
Repurchase Date determined in accordance with subparagraph (a) of
this Paragraph, shall thereupon become immediately due and payable,
(ii) all Income paid after such exercise or deemed exercise shall be
retained by the nondefaulting party and applied to the aggregate
unpaid Repurchase Prices and any other amounts owing by the defaulting
party hereunder, and (iii) the defaulting party shall immediately
deliver to the nondefaulting party any Purchased Securities subject to
such Transactions then in the defaulting party's possession or
control.
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(c) In all Transactions in which the defaulting party is acting as Buyer,
upon tender by the nondefaulting party of payment of the aggregate
Repurchase Prices for all such Transactions, all right, title and
interest in and entitlement to all Purchased Securities subject to
such Transactions shall be deemed transferred to the nondefaulting
party, and the defaulting party shall deliver all such Purchased
Securities to the nondefaulting party.
(d) If the nondefaulting party exercises or is deemed to have exercised
the option referred to in subparagraph (a) of this Paragraph, the
nondefaulting party, without prior notice to the defaulting party,
may:
(i) as to Transactions in which the defaulting party is acting as
Seller, (A) immediately sell, in a recognized market (or
otherwise in a commercially reasonable manner) at such price or
prices as the nondefaulting party may reasonably deem
satisfactory, any or all Purchased Securities subject to such
Transactions and apply the proceeds thereof to the aggregate
unpaid Repurchase Prices and any other amounts owing by the
defaulting party hereunder or (B) in its sole discretion elect,
in lieu of selling all or a portion of such Purchased Securities,
to give the defaulting party credit for such Purchased Securities
in an amount equal to the price therefor on such date, obtained
from a generally recognized source or the most recent closing bid
quotation from such a source, against the aggregate unpaid
Repurchase Prices and any other amounts owing by the defaulting
party hereunder; and
(ii) as to Transactions in which the defaulting party is acting as
Buyer, (A) immediately purchase, in a recognized market (or
otherwise in a commercially reasonable manner) at such price or
prices as the nondefaulting party may reasonably deem
satisfactory, securities ("Replacement Securities") of the same
class and amount as any Purchased Securities that are not
delivered by the defaulting party to the nondefaulting party as
required hereunder or (B) in its sole discretion elect, in lieu
of purchasing Replacement Securities, to be deemed to have
purchased Replacement Securities at the price therefor on such
date, obtained from a generally recognized source or the most
recent closing offer quotation from such a source.
Unless otherwise provided in Annex I, the parties acknowledge and
agree that (1) the Securities subject to any Transaction hereunder are
instruments traded in a recognized market, (2) in the absence of a
generally recognized source for prices or bid or offer quotations for
any Security, the nondefaulting party may establish the source
therefor in its sole discretion and (3) all prices, bids and offers
shall be determined together with accrued Income (except to the extent
contrary to market practice with respect to the relevant Securities).
(e) As to Transactions in which the defaulting party is acting as Buyer,
the defaulting party shall be liable to the nondefaulting party for
any excess of the price paid (or deemed paid) by the nondefaulting
party for Replacement Securities over the Repurchase Price for the
Purchased Securities replaced thereby and for any amounts payable by
the defaulting party under Paragraph 5 hereof or otherwise hereunder.
(f) For purposes of this Paragraph 11, the Repurchase Price for each
Transaction hereunder in respect of which the defaulting party is
acting as Buyer shall not
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increase above the amount of such Repurchase Price for such
Transaction determined as of the date of the exercise or deemed
exercise by the nondefaulting party of the option referred to in
sub-paragraph (a) of this Paragraph,
(g) The defaulting party shall be liable to the nondefaulting party for
(i) the amount of all reasonable legal or other expenses incurred by
the nondefaulting party in connection with or as a result of an Event
of Default, (ii) damages in an amount equal to the cost (including all
fees, expenses and commissions) of entering into replacement
transactions and entering into or terminating hedge transactions in
connection with or as a result of an Event of Default, and (iii) any
other loss, damage, cost or expense directly arising or resulting from
the occurrence of an Event of Default in respect of a Transaction.
(h) To the extent permitted by applicable law, the defaulting party shall
be liable to the non-defaulting party for interest on any amounts
owing by the defaulting party hereunder, from the date the defaulting
party becomes liable for such amounts hereunder until such amounts are
(i) paid in full by the defaulting party or (ii) satisfied in full by
the exercise of the nondefaulting party's rights hereunder. Interest
on any sum payable by the defaulting party to the nondefaulting party
under this Paragraph 1l(h) shall be at a rate equal to the greater of
the Pricing Rate for the relevant Transaction or the Prime Rate.
(i) The nondefaulting party shall have, in addition to its rights
hereunder, any rights otherwise available to it under any other
agreement or applicable law.
12. SINGLE AGREEMENT
Buyer and Seller acknowledge that, and have entered hereinto and will enter
into each Transaction hereunder in consideration of and in reliance upon
the fact that, all Transactions hereunder constitute a single business and
contractual relationship and have been made in consideration of each other.
Accordingly, each of Buyer and Seller agrees (i) to perform all of its
obligations in respect of each Transaction hereunder, and that a default in
the performance of any such obligations shall constitute a default by it in
respect of all Transactions hereunder, (ii) that each of them shall be
entitled to set off claims and apply property held by them in respect of
any Transaction against obligations owing to them in respect of any other
Transactions hereunder and (iii) that payments, deliveries and other
transfers made by either of them in respect of any Transaction shall be
deemed to have been made in consideration of payments, deliveries and other
transfers in respect of any other Transactions hereunder, and the
obligations to make any such payments, deliveries and other transfers may
be applied against each other and netted.
13. NOTICES AND OTHER COMMUNICATIONS
Any and all notices, statements, demands or other communications hereunder
may be given by a party to the other by mail, facsimile, telegraph,
messenger or otherwise to the address specified in Annex II hereto, or so
sent to such party at any other place specified in a notice of change of
address hereafter received by the other. All notices, demands and requests
hereunder may be made orally, to be confirmed promptly in writing, or by
other communication as specified in the preceding sentence.
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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; TERMINATION
(a) The rights and obligations of the parties under this Agreement and
under any Transaction shall not be assigned by either party without
the prior written consent of the other party, and any such assignment
without the prior written consent of the other party shall be null and
void. Subject to the foregoing, this Agreement and any Transactions
shall be binding upon and shall inure to the benefit of the parties
and their respective successors and assigns. This Agreement may be
terminated by either party upon giving written notice to the other,
except that this Agreement shall, notwithstanding such notice, remain
applicable to any Transactions then outstanding.
(b) Subparagraph (a) of this Paragraph 15 shall not preclude a party from
assigning, charging or otherwise dealing with all or any part of its
interest in any sum payable to it under Paragraph 11 hereof.
16. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New York
without giving effect to the conflict of law principles thereof.
17. NO WAIVERS, ETC.
No express or implied waiver of any Event of Default by either party shall
constitute a waiver of any other Event of Default and no exercise of any
remedy hereunder by any party shall constitute a waiver of its right to
exercise any other remedy hereunder. No modification or waiver of any
provision of this Agreement and no consent by any party to a departure
here-from shall be effective unless and until such shall be in writing and
duly executed by both of the parties hereto. Without limitation on any of
the foregoing, the failure to give a notice pursuant to Paragraph 4(a) or
4(b) hereof will not constitute a waiver of any right to do so at a later
date.
18. USE OF EMPLOYEE PLAN ASSETS
(a) If assets of an employee benefit plan subject to any provision of the
Employee Retirement Income Security Act of 1974 ("ERISA") are intended
to be used by either party hereto (the "Plan Party") in a Transaction,
the Plan Party shall so notify the other party prior to the
Transaction. The Plan Party shall represent in writing to the other
party that the Transaction does not constitute a prohibited
transaction under ERISA or is otherwise exempt therefrom, and the
other party may proceed in reliance thereon but shall not be required
so to proceed.
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(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 out-standing Transaction
involving a Plan Party.
19. INTENT
(a) The parties recognize that each Transaction is a "repurchase
agreement" as that term is defined in Section 101 of Title 11 of the
United States Code, as amended (except insofar as the type of
Securities subject to such Transaction or the term of such Transaction
would render such definition inapplicable), and a "securities
contract" as that term is defined in Section 741 of Title 11 of the
United States Code, as amended (except insofar as the type of assets
subject to such Transaction would render such definition
inapplicable).
(b) It is understood that either party's right to liquidate Securities
delivered to it in connection with Transactions hereunder or to
exercise any other remedies pursuant to Paragraph 11 hereof is a
contractual right to liquidate such Transaction as described in
Sections 555 and 559 of Title 11 of the United States Code, as
amended.
(c) The parties agree and acknowledge that if a party hereto is an
"insured depository institution," as such term is defined in the
Federal Deposit Insurance Act, as amended ("FDIA"), then each
Transaction hereunder is a "qualified financial contract," as that
term is defined in FDIA and any rules, orders or policy statements
thereunder (except insofar as the type of assets subject to such
Transaction would render such definition inapplicable).
(d) It is understood that this Agreement constitutes a "netting contract"
as defined in and subject to Title IV of the Federal Deposit Insurance
Corporation Improvement Act of 1991 ("FDICIA") and each payment
entitlement and payment obligation under any Transaction hereunder
shall constitute a "covered contractual payment entitlement" or
"covered contractual payment obligation", respectively, as defined in
and subject to FDICIA (except insofar as one or both of the parties is
not a "financial institution" as that term is defined in FDICIA).
20. DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS
The parties acknowledge that they have been advised that:
(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
11 . September 1996 . Master Repurchase Agreement
Corporation has taken the position that the provisions of the
Securities Investor Protection Act of 1970 ("SIPA") do not protect
the other party with respect to any Transaction hereunder;
(b) in the case of Transactions in which one of the parties is a
government securities broker or a government securities dealer
registered with the SEC under Section 15C of the 1934 Act, SIPA will
not provide protection to the other party with respect to any
Transaction hereunder; and
(c) in the case of Transactions in which one of the parties is a financial
institution, funds held by the financial institution pursuant to a
Transaction hereunder are not a deposit and therefore are not insured
by the Federal Deposit Insurance Corporation or the National Credit
Union Share Insurance Fund, as applicable.
Xxxxxxx Xxxxx Xxxxxx Inc. KANKAKEE FED SVGS BANK.
By: By: /s/ Xxxxxx X. Xxxxxxx
---------------------------- ---------------------------
Name: Xxxxxx Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxx
-------------------------
Title: Director Title: SR. V.P. & Treasurer
------------------------
Date: Date: 3/13/2002
--------------------------- -------------------------
12 . September 1996 . Master Repurchase Agreement
ANNEX I
SUPPLEMENTAL TERMS AND CONDITIONS
This Annex I supplements and forms a part of the Master Repurchase
Agreement dated as of 3/13/2002 (the "Agreement") between Xxxxxxx Xxxxx Xxxxxx
Inc. and KANKAKEE FED SVGS BNK. Capitalized terms used but not defined in this
Annex I shall have the meanings ascribed to them in the Agreement.
1. Other Applicable Annexes. In addition to this Annex I and Annex II, the
following Annexes and any Schedules thereto shall form a part of the
Agreement and shall be applicable thereunder.
Schedule B (ERISA Representations)
2. Definitions. For purposes of the Agreement and this Annex I, the following
terms shall have the following meanings:
"Margin Notice Deadline" means 10:00 A.M. New York time.
"Business Day" or "business day", with respect to any Transaction (other
than an International Transaction) hereunder, a day on which regular
trading may occur in the principal market for the Purchased Securities
subject to such Transaction, which includes shortened trading days, days on
which trades are permitted to occur but do not in fact occur and days on
which the Purchased Securities are subject to percentage of movement or
volume limitations, provided, however, that for purposes of calculating
Market Value, such term shall mean a day on which regular trading occurs in
the principal market for the assets the value of which is being determined.
Notwithstanding the foregoing, (i) for purposes of Paragraph 4 of the
Agreement, "business day" shall mean any day on which regular trading
occurs in the principal market for any Purchased Securities or for any
assets constituting Additional Purchased Securities under any outstanding
Transaction hereunder and "next business day" shall mean the next day on
which a transfer of Additional Purchased Securities may be effected in
accordance with Paragraph 7 of the Agreement, and (ii) in no event shall a
Saturday or Sunday be considered a business day.
3. Margin Maintenance. Notwithstanding Paragraph 4 of the Agreement, with
respect to any International Transaction (other than Transactions in
English government securities and Transactions in which the Purchase Price
and Repurchase Price are denominated in U.S. Dollars or which are cleared
and settled in the U.S.), transfers required to be made by Seller of cash
or Additional Purchased Securities and Buyer of cash or Purchased
Securities pursuant to Paragraph 4 of the Agreement shall be made by the
close of business on the next business day following the business day on
which notice is given, in the case of notice given at or before the Margin
Notice Deadline, or by the close of business on the second business day
following the business day on which notice is given, in the case of notice
given after the Margin Notice Deadline.
4. PURCHASE PRICE MAINTENANCE.
(a) The parties agree that in any Transaction hereunder whose term extends
over an income payment date for the Securities subject to such
transaction, Buyer shall on the date such income is paid transfer to
or credit to the account of Seller an amount equal to such income
payment or payments pursuant to Paragraph 5(I) and shall not apply the
income payment or payments to reduce the amount to be transferred to
Buyer or Seller upon termination of the Transaction pursuant to
Paragraph 5(II) of the Agreement.
(b) Notwithstanding the definition of Purchase Price in Paragraph 2 of the
Agreement and the provisions of Paragraph 4 of the Agreement, the
parties agree (i) that the Purchase Price will not be increased or
decreased by the amount of any cash transferred by one party to the
other pursuant to Paragraph 4 of the Agreement and (ii) that transfer
of such cash shall be treated as if it constituted a transfer of
Securities (with a Market Value equal to the U.S. dollar amount of
such cash) pursuant to Paragraph 4(a) or (b), as the case may be
(including for purposes of the definition of "Additional Purchased
Securities").
13a
5. SUBMISSION TO JURISDICTION AND WAIVER OF IMMUNITY.
Each party irrevocably and unconditionally (I) submits to the exclusive
jurisdiction of any United States Federal or New York State court sitting
in Manhattan, and any appellate court from any such court, solely for the
purpose of any suit, action or proceeding brought to enforce its
obligations under the Agreement or relating in any way to the Agreement or
any Transaction under the Agreement and (II) waives, to the fullest extent
it may effectively do so, any defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court and any right of
jurisdiction on account of its place of residence or domicilo.
To the extent that either party has or hereafter may acquire any immunity
(sovereign or otherwise) from any legal action, suit or proceeding, from
jurisdiction of any court or from set off or any legal process (whether
service or notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) with respect to
itself or any of its property, such party hereby irrevocably waives and
agrees not to plead or claim such immunity in respect of any action brought
to enforce its obligations under the Agreement or relating in any way to
the Agreement or any Transaction under the Agreement.
Each party hereto hereby irrevocably waives all right to trial by jury in
any action or proceeding arising out of or relating to this Agreement or
any Transaction hereunder.
6. CROSS DEFAULT.
Each party to this agreement (such party, "Party X") agrees that, upon the
insolvency of Party X or any of its affiliates or the default of Party X or
any of its affiliates under any transaction with the other party hereto or
any of such other party's affiliates (such other party or any of its
affiliates, a "Non-Defaulting Party"), each Non-Defaulting Party may,
without prior notice to Party X: (a) liquidate any transaction between
Party X and any Non-Defaulting Party (which liquidation may include the
conversion of amounts denominated in multiple currencies into a single
currency if deemed necessary or desirable by the Non-Defaulting Party), (b)
reduce any amounts due and owing to Party X under any transaction between
Party X and any Non-Defaulting Party by setting off against such amounts
any amounts due and owing to a Non-Defaulting Party by Party X, and (c)
treat all security for, and all amounts due and owing to Party X under, any
transaction between Party X and any Non-Defaulting Party as security for
all transactions between Party X and any Non-Defaulting Party; provided,
however, that the exercise of the remedies described in clauses (a), (b)
and (c) above (or in any other similar provision in any agreement between
the parties) shall be deemed to occur immediately subsequent to, but
independent of, the exercise of any netting, liquidation, set-off or other
similar provision contained in any master agreement between the parties;
provided, further that each provision and agreement hereof shall be treated
as independent from any other provision or agreement herein and shall be
enforceable notwithstanding the unenforceability of any such other
provision or agreement. For purposes of the foregoing, the term "affiliate"
shall not include any entity that controls or is under common control with
Xxxxxxx Xxxxx Barney Holdings Inc., but in any event such term shall
include Xxxxxxx Xxxxx Xxxxxx Holdings Inc. and any entity controlled by it.
7. SUBSTITUTIONS.
(a) In the case of any Transaction for which the Repurchase Date is other
than the business day immediately following the Purchase Date and with
respect to which Seller does not have any existing right to substitute
substantially the same Securities for Purchased Securities, Seller
shall have the right, subject to the proviso to this sentence, upon
notice to Buyer, which notice shall be given at or prior to 10 A.M.
New York time on such business day, to substitute substantially the
same Securities for any Purchased Securities; provided, however, that
Buyer may elect by the close of business on the business day notice is
received, or by the close of the next business day if notice is given
after 10 A.M. New York time on such day, not to accept such
substitution. In the event such substitution is accepted by Buyer,
such substitution shall be made by Seller's transfer to Buyer of such
other Securities and Buyer's transfer to Seller of such Purchased
Securities, and after substitution, the substituted Securities shall
be deemed to be Purchased Securities. In the event Buyer elects not to
accept such substitution, Buyer shall offer Seller the right to
terminate the Transaction.
13b
(b) In the event Seller exercises its right to substitute or terminate
under sub-paragraph (a), Seller shall be obligated to pay to Buyer, by
the close of the business day of such substitution or termination, as
the case may be, an amount equal to (A) Buyer's actual cost (including
all fees, expenses and commissions) of (i) entering into replacement
transactions; (ii) entering into or terminating hedge transactions;
and/or (iii) terminating transactions or substituting securities in
like transactions with third parties in connection with or as a result
of such substitution or termination, and (B) to the extent Buyer
determines not to enter into replacement transactions, the loss
incurred by Buyer directly arising or resulting from such substitution
or termination. The foregoing amounts shall be solely determined and
calculated by Buyer in good faith.
8. "OPEN" TRANSACTIONS.
Whenever the parties enter into a Transaction on an "open basis", it is
understood that the Transaction will terminate on the next succeeding
Business Day, and that on any day that a Transaction is terminating, the
parties may enter into a new Transaction (which may be accomplished by
resetting the rate) which will, itself, terminate on the next succeeding
Business Day. In all cases, unless the parties have agreed otherwise,
"open" Transactions will settle following termination in accordance with
the normal timeframe determined in accordance with market practice.
9. RESALE OF PURCHASED SECURITIES
The parties hereto acknowledge that from time to time the Purchased
Securities may consist of Securities that have not been registered under
the United States Securities Act of 1933 (the "Securities Act").
Accordingly, Buyer agrees that if any Purchased Securities consist of
Securities that have not been registered under the Securities Act, Buyer
will not resell or otherwise transfer such Purchased Securities except in
accordance with Regulation S or Rule 144A or other available exemption
under the Securities Act and in accordance with all applicable laws and
regulations in each jurisdiction in which it offers, sells or delivers
Purchased Securities. In addition, if any Purchased Securities consist of
bearer debt securities issued by a non-U.S. entity and if Buyer resells or
otherwise transfers any such obligations, Buyer agrees that it will do so
only under procedures adequate to satisfy the restrictions of applicable
U.S. Treasury regulations relating to an original issuance of bearer bonds.
10. LIMITATION OF LIABILITY
No party shall be required to pay or be liable to the other party for any
consequential, indirect or punitive damages, opportunity costs or lost
profits (whether or not arising from its negligence).
11. In the event of any inconsistency between the provisions of this Annex and
the provisions of the Master Repurchase Agreement attached hereto, the
terms contained in this Annex shall prevail.
Xxxxxxx Xxxxx Barney Inc. KANKAKEE FED SVGS BANK.
By: By: /s/ Xxxxxx X. Xxxxxxx
------------------------ -------------------------
Name: Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Director Title: SR. V.P. & Treas.
13c
ANNEX II
NAMES AND ADDRESSES FOR COMMUNICATIONS BETWEEN PARTIES
Contract Issues:
Xxxxxxx Xxxxx Barney Inc.
Attention: Xxxxx X. Xxxxxx
Assistant Vice President
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Telefax: 000-000-0000
Operations Issues:
Xxxxxxx Xxxxx Barney Inc.
Xxx Xxxxxxx
000 Xxxx 00/xx/ Xxxxxx - 0/xx/ Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
14
SCHEDULE B
This Schedule B sets forth additional terms and conditions governing
Transactions with parties that may involve "Plan Assets" as defined below.
Unless otherwise defined, capitalized terms used but not defined in this
Schedule shall have the meanings assigned in the Master Repurchase Agreement of
which this Schedule forms part (such agreement, together with this Schedule and
any other Annexes and Schedules or Exhibits attached thereto, shall be referred
to as the "Agreement").
1. Paragraph 18 of the Master Repurchase Agreement is hereby deleted.
2. ERISA Representations and Covenants. Each party represents and warrants
(which representations and warranties shall be deemed to be repeated upon
commencement of any Transaction and to continue for the duration of each such
Transaction) that the assets that are used in connection with the execution,
delivery and performance of this Agreement, or the Transactions entered pursuant
hereto, are not the assets of: (i) any employee benefit or other plan subject to
any provision of Title I of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"); (ii) a plan described in Section 4975 of the United States
Internal Revenue Code of 1986, as amended (the "Code"); (iii) an entity whose
underlying assets include "plan assets" by reason of United States Department of
Labor regulation section 2510.3-101 or otherwise; or (iv) a government plan that
is subject to any federal, state, or local law that is substantially similar to
the provisions of Section 406 of ERISA or Section 4975 of the Code (each a
"Plan").
3. Change in Fund Character. If a party intends to enter into a Transaction
using the assets of any Plan (the "Plan Party"), the Plan Party shall notify the
other party (the "Non-Plan Party") in writing prior to the use of such Plan
assets for any purpose under this Agreement. In no event shall a Plan Party
enter into a Transaction using Plan assets under this Agreement, unless such
Plan Party amends this Schedule B (i) to disclose in writing the identity of any
such Plans and (ii) to represent and warrant to the satisfaction of the Non-Plan
Party that such Transaction will not constitute a prohibited transaction for
which no exemptive relief is available under ERISA and the reasons therefor. The
Non-Plan Party may enter into such Transaction involving the assets of any such
Plan in reliance upon such representations and warranties of the Plan Party but
shall not be required to so proceed.
4. Indemnity. The Plan Party, Plan Party's Trustee, Investment advisor, or
named fiduciary, agrees to indemnify and hold the Non-Plan Party, the Non-Plan
Party's affiliates, successors and assigns and any director, officer, employee
or agent of any of the foregoing, harmless from and against, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs and expenses, including but not limited to reasonable attorneys' fees and
disbursements, related to or arising out of any actions taken by the Non-Plan
Party in reliance upon the representations, warranties and agreements of the
Plan Party under this Schedule B. These indemnification obligations shall
survive the termination of this Agreement.
5. Termination. If any of the provisions contained in this Schedule B are
breached by a Plan Party, the Non-Plan Party may terminate the Transactions that
are deemed, at the Non-Plan Party's sole discretion, to be in breach of this
Schedule B ("Affected Transactions"). The Plan Party shall pay the Non-Plan
Party a Breakage Fee for all Affected Transactions that are terminated before
their scheduled termination date. "Breakage Fee" shall mean, a fee equal to the
sum of (a) the cost to such Non-Plan Party (including all fees, expenses, and
commissions) of entering into replacement transactions and entering into or
terminating hedge transactions in connection with or as a result of the
termination of the Affected Transaction, and (b) any other loss, damage, cost or
expense directly arising or resulting from the termination of the Affected
Transactions that are incurred by such Non-Plan Party (other than losses or
costs for lost profits or lost opportunities), as determined by such Non-Plan
Party in a commercially reasonable manner, and (c) any other amount due and
payable by such Non-Plan Party to the Plan Party. The determination of the
Breakage Fee hereunder shall be made in accordance with market practice at the
side of the market of such Non-Plan Party.
[Counterparty] [Plan Party trustee, investment adviser,
or named fiduciary]
By:_________________________ By: ____________________________
Title:______________________ Title: _________________________
