c50984_ex10-5.htm -- Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing








Master Repurchase 

Agreement 


September 1996 Version 



Dated as of 



Between: 



and 

	
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;

	
	 
	 	
(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

	
	 



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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 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

	
	 



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		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.

	
	 
	 	
(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).

	
	 



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(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.

	
	 
	
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

	
	 



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		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. ß403.4(e)
    if Seller is a government securities broker or dealer other than a financial
    institution.
	 	 	** Language to be used under 17 C.F.R. ß403.5(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.

	
	 
	
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

	
	 



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will not violate any law, ordinance, charter, bylaw 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.

	
	 
	 	
(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:

	
	 



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(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 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 subparagraph (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.

	
	 



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	 	(h)	To the extent permitted by applicable
        law, the defaulting party shall be liable to the nondefaulting 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 11(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. 
	 	 
	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 







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	 	 	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 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 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. 
	 	 	 
	 	(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. 
	 	 	 




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	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 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.

	
	 



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    [Name of Party]		 
		
      [Name of Party]		 
	By:	 
	 
		By:	 
	 
	Title:  	 
	 
		Title:   	 
	 
	Date:	 
	 
		Date:	 
	 




 

 

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