HomeMy WebLinkAboutMarine Bank/Master Repurchase Agreement Marine
`Banks ,
Marine Bank Oshkosh, N.A.
MASTER REPURCHASE AGREEMENT
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Dated as of J c:N-nvary_lx,3, l976
Between:
Marine Bank Oshkosh, N.A.
and
C;t of n'A/*Is ki
r
1. Applicability
From time to time the parties hereto may enter into transactions in which one party ("Seller")ag-ees
to transfer to the other ("Buyer") securities or financial instruments ("Securities") against the transfer of
funds by Buyer, with a simultaneous agreement by Buyer to transfer to Seller such Securities at a date
certain or on demand, against the transfer of funds by Seller. Each such transaction shall be referred to
herein as a "Transaction" and shall be governed by this Agreement, including any supplemental terms
or conditions contained in Annex I hereto, unless otherwise agreed in writing.
2. Definitions
(a) "Act of Insolvency", with respect to any party, (i) the commencement by such party as debtor of
any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or
similar law, or such party seeking the appointment of a receiver, trustee, custodian or similar official for
such party or any substantial part of its property,or(ii)the commencement of any such case or proceeding
against such party,or another seeking such an appointment,or the filing against a party of an application
for a protective decree under the provisions of the Securities Investor Protection Act of 1970, which (A)
is consented to or not timely contested by such party, (B) results in the entry of an order for relief, such
an appointment, the issuance of such a protective decree or the entry of an order having a similar effect,
or (C) is not dismissed within 15 days, (iii)the making by a party of a general assignment for the benefit
of creditors, or (iv) the admission in writing by a party of such party's inability to pay such party's debts
as they become due;
(b) 'Additional Purchased Securities", securities provided by Seller to Buyer pursuant to Paragraph
4(a)hereof;
(c) "Buyer's Margin Amount", with respect to any Transaction as of any date, the amount obtained
by application of a percentage (which may be equal to the percentage that is agreed to as the Seller's
Margin Amount under subparagraph(q)of this Paragraph),agreed to by Buyer and Seller prior to entering
into the Transaction,to the Repurchase Price for such Transaction as of such date;
(d) "Confirmation",the meaning specified in Paragraph 3(b) hereof;
(e) "Income", with respect to any Security at any time, any principal thereof then payable and all
interest, dividends or other distributions thereon;
(f) "Margin Deficit",the meaning specified in Paragraph 4(a) hereof;
(g) "Margin Excess",the meaning specified in Paragraph 4(b) hereof;
(h) "Market Value", with respect to any Securities as of any date, the price for such Securities on
such date obtained from a generally recognized source agreed to by the parties or the most recent
closing bid quotation from such a source, plus accrued Income to the extent not included therein (other
than any Income credited or transferred to, or applied to the obligations of, Sellor pursuant to Paragraph
5 hereof)as of such date(unless contrary to market practice for such Securities);
300 North Main Street • P.O. Box 680 • Oshkosh, Wisconsin 54902 • 414/231-6610
Subsidiary of The Marine Corporation which traces its history to 1839.
(i) "Price Differential", with respect to any Transaction hereunder as of any date, the aggregate
amount obtained by daily application of the Pricing Rate for such Transaction to the Purchase Price for
such Transaction on a 360 day per year basis for the actual number of days during the period commencing
on (and including) the Purchase Date for such Transaction and ending on (but excluding) the date of
determination (reduced by any amount of such Price Differential previously paid by Seller to Buyer with
respect to such Transaction);
(j) "Pricing Rate", the per annum percentage rate for determination of the Price Differential;
(k) "Prime Rate", the prime rate of U.S. money center commercial banks as published in The VII
Street Journal;
(I) "Purchase Date", the date on which Purchased Securities are transferred by Seller to Buyer;
(m) "Purchase Price", (i)on the Purchase Date,the price at which Purchased Securities are transferred
by Seller to Buyer, and (ii) thereafter, such price increased by the amount of any cash transferred by
Buyer to Seller pursuant to Paragraph 4(b) hereof and decreased by the amount of any cash transferred
by Seller to Buyer pursuant to Paragraph 4(a) hereof or applied to reduce Seller's obligations under
clause (ii) of Paragraph 5 hereof;
(n) "Purchased Securities", the Securities transferred by Seller to Buyer in a Transaction hereunder,
and any Securities substituted therefor in accordance with Paragraph 9 hereof. The term "Purchased
Securities"with respect to any Transaction at any time also shall include Additional Purchased Securities
delivered pursuant to Paragraph 4(a) and shall exclude Securities returned pursuant to Paragraph 4(b);
(o) "Repurchase Date", the date on which Seller is to repurchase the Purchased Securities from
Buyer, including any date determined by application of the provisions of Paragraphs 3(c) or 11 hereof;
(p) "Repurchase Price", the price at which Purchased Securities are to be transferred from Buyer
to Seller upon termination of a Transaction,which will be determined in each case(including transactions
terminable upon demand) as the sum of the Purchase Price and the Price Differential as of the date of
such determination, increased by any amount determined by the application of the provisions of Paragraph
11 hereof;
(q) "Seller's Margin Amount", with respect to any Transaction as of any date, the amount obtained
by application of a percentage (which may be equal to the percentage that is agreed to as the Buyer's
Margin Amount under subparagraph(c)of this Paragraph),agreed to by Buyer and Seller prior to entering
into the Transaction, to the Repurchase Price for such Transaction as of such date.
3. Initiation; Confirmation; Termination
(a) An agreement to enter into a Transaction may be made orally or in writing at the initiation of
either Buyer or Seller. On the Purchase Date for the Transaction, the Purchased Securities shall be
transferred to Buyer or its agent against the transfer of the Purchase Price to an account of Seller.
(b)Upon agreeing to enter into a Transaction hereunder,Buyer or Seller(or both),as shall be agreed,
shall promptly deliver to the other party a written confirmation of each Transaction (a "Confirmation").
The Confirmation shall describe the Purchased Securities (including CUSIP number, if any), identify
Buyer and Seller and set forth (i)the Purchase Date, (ii)the Purchase Price, (iii)the Repurchase Date,
unless the Transaction is to be terminable on demand, (iv)the Pricing Rate or Repurchase Price applicable
to the Transaction,and(v)any additional terms or conditions of the Transaction not inconsistent with this
Agreement. The Confirmation, together with this Agreement,shall constitute conclusive evidence of the
terms agreed between Buyer and Seller with respect to the Transaction to which the Confirmation relates,
unless with respect to the Confirmation specific objection is made promptly after receipt thereof. In the
event of any conflict between the terms of such Confirmation and this Agreement,this Agreement shall
prevail.
(c) In the case of Transactions terminable upon demand, such demand shall be made by Buyer or
Seller, no later than such time as is customary in accordance with market practice, by telephone or
otherwise on or prior to the business day on which such termination will be effective.On the date specified
in such demand, or on the date fixed for termination in the case of Transactions having a fixed term,
termination of the Transaction will be effected by transfer to Seller or its agent of the 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
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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
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from any Transactions in which such Buyer is acting as Seller).
(b) If at any time the aggregate Market Value of all Purchased Securities subject to all Transactions
in which a particular party hereto is acting as Seller exceeds the aggregate Seller's Margin Amount for
all such Transactions at such time (a"Margin Excess"),then Seller may by notice to Buyer require Buyer
in such Transactions, at Buyer's option, to transfer cash or Purchased Securities to Seller, so that the
aggregate Market Value of the Purchased Securities, after deduction of any such cash or any Purchased
Securities so transferred, will thereupon not exceed such aggregate Seller's Margin Amount (increased
by the amount of any Margin Excess as of such date arising from any Transactions in which such Seller
is acting as Buyer).
(c)Any cash transferred pursuant to this Paragraph shall be attributed to such Transactions as shall
be agreed upon by Buyer and Seller.
(d)Seller and Buyer may agree,with respect to any or all Transactions hereunder,that the respective
rights of Buyer or Seller (or both) under subparagraphs (a) and (b) of this Paragraph may be exercised
only where a Margin Deficit or Margin Excess exceeds a specified dollar amount or a specified percentage
of the Repurchase Prices for such Transactions (which amount or percentage shall be agreed to by
Buyer and Seller prior to entering into any such Transactions).
(e)Seller and Buyer may agree,with respect to any or all Transactions hereunder,that the respective
rights of Buyer and Seller under subparagraphs (a) and (b) of this Paragraph to require the elimination
of a Margin Deficit or a Margin Excess, as the case may be, may be exercised whenever such a Margin
Deficit or Margin Excess exists with respect to any single Transaction hereunder (calculated without
regard to any other Transaction outstanding under this Agreement).
5. Income Payments
Where a particular Transaction's term extends over an Income payment date on the Securities subject
to that Transaction, Buyer shall, as the parties may agree with respect to such Transaction (or, in the
absence of any agreement, as Buyer shall reasonably determine in its discretion), on the date such
Income is payable either(i)transfer to or credit to the account of Seller an amount equal to such Income
payment or payments with respect to any Purchased Securities subject to such Transaction or(ii) apply
the Income payment or payments to reduce the amount to be transferred to Buyer by Seller upon
termination of the Transaction. Buyer shall not be obligated to take any action pursuant to the preceding
sentence to the extent that such action would result in the creation of a Margin Deficit,unless prior thereto
or simultaneously therewith Seller transfers to Buyer cash or Additional Purchased Securities sufficient
to eliminate such Margin Deficit.
6. Security Interest
Although the parties intend that all Transactions hereunder be sales and purchases and not loans,
in the event any such Transactions are deemed to be loans, Seller shall be deemed to have pledged to
Buyer as security for the performance by Serer of its obligations under each such Transaction,and shall
be deemed to have granted to Buyer a security interest in, all of the Purchased Securities with respect
to all Transactions hereunder and all proceeds thereof.
7. Payment and Transfer
Unless otherwise mutually agreed,all transfers of funds hereunder shall be in immediately available
funds. All Securities transferred by one party hereto to the other party (i) shall be in suitable form for
transfer or shall be accompanied by duly executed instruments of transfer or assignment in blank and
such other documentation as the party receiving possession may reasonably request,(ii)shall be transferred
on the book-entry system of a Federal Reserve Bank, or (iii) shall be transferred by any other method
mutually acceptable to Seller and Buyer.As used herein with respect to Securities,"transfer"is intended
to have the same meaning as when used in Section 8-313 of the New York Uniform Commercial Code.
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.Title to all Purchased Securities shall pass to Buyer and, unless otherwise agreed
by Buyer and Seller,nothing in this Agreement shall preclude Buyer from engaging in repurchase transactions
with the Purchased Securities or otherwise pledging or hypothecating the Purchased Securities, but no
such transaction shall relieve Buyer of its obligations to transfer Purchased Securities to Seller pursuant
to Paragraphs 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.
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9. Substitution
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 the Buyer of such other Securities
against simultaneous transfer to the Seller of such Purchased Securities. After substitution, the substituted
Securities shall be deemed to be Purchased Securities.
10. Representations
Each of Buyer and Seller represents and warrants to the other that(i)it is duly authorized to execute
and deliver this Agreement, to enter into the Transactions contemplated hereunder and to perform its
obligations hereunder and has taken all necessary action to authorize such execution, delivery and
performance, (ii) it will engage in such Transactions as principal (or, if agreed in writing in advance of
any Transaction by the other party hereto, as agent for a disclosed principal), (iii)the person signing this
Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed
principal), (iv) it has obtained all authorizations of any governmental body required in connection with
this Agreement and the Transactions hereunder and such authorizations are in full force and effect and
(v) the execution, delivery and performance of this Agreement and the Transactions hereunder will not
violate any law, ordinance, charter, by-law or rule applicable to it or any agreement by which it is bound
or by which any of its assets are affected. On the Purchase Date for any Transaction Buyer and Seller
shall each be deemed to repeat all the foregoing representations made by it.
11. Events of Default
In the event that (i) Seller fails to repurchase or Buyer fails to transfer Purchased Securities upon
the applicable Repurchase Date, (ii) Seller or Buyer fails, after one business day's notice, to comply with
Paragraph 4 hereof, (iii) Buyer fails to comply with Paragraph 5 hereof, (iv) an Act of Insolvency occurs
with respect to Seller or Buyer, (v) any representation made by Seller or Buyer shall have been incorrect
or untrue in any material respect when made or repeated or deemed to have been made or repeated,
or (vi) Seller or Buyer shall admit to the other its inability to, or its intention not to, perform any of its
obligations hereunder(each an "Event of Default"):
(a)At the option of the nondefaulting party, exercised by written notice to the defaulting party(which
option shall be deemed to have been exercised, even if no notice is given, immediately upon the occurrence
of an Act of Insolvency),the Repurchase Date for each Transaction hereunder shall be deemed immediately
to occur.
(b) In all Transactions in which the defaulting party is acting as Seller, if the nondefaulting party
exercises or is deemed to have exercised the option referred to in subparagraph (a) of this paragraph.
(0 the defaulting party's obligations hereunder to repurchase all Purchased Securities in such Transactions
shall thereupon become immediately due and payable, (ii) to the extent permitted by applicable law. the
Repurchase Price with respect to each such Transaction shall be increased by the aggregate amount
obtained by daily application of(x)the greater of the Pricing Rate for such Transaction or the Prime Rate
to(y) the Repurchase Price for such Transaction as of the Repurchase Date as determined pursuant to
subparagraph (a) of this Paragraph (decreased as of any day by (A) any amounts retained by the
nondefaulting party with respect to such Repurchase Price pursuant to clause (iii)of this subparagraph,
(B)any proceeds from the sale of Purchased Securities pursuant to subparagraph(d)(i)of this paragraph,
and (C) any amounts credited to the account of the defaulting party pursuant to subparagraph (e)of this
paragraph) on a 360 day per year basis for the actual number of days during the period from 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 nondefautting
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 this Paragraph),the nondefaulting
party may:
(i) as to Transactions in which the defaulting party is acting as Seller, (A)immediately sell, in a
recognized market at such price or prices as the nondefautting party may reasonably deem satisfactory,
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any or all Purchased Securities subject to such Transactions and apply the proceeds thereof to the
aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party hereunder
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or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Securities, to
give the defaulting party credit for suc ; Purchased Securities in an amount equal to the price therefor
on such date,obtained from a generally recognized source or the most recent closing bid quotation
from such a source,against the aggregate unpaid Repurchase Prices and any other amounts owing
by the defaulting party hereunder; and
(ii) as to Transactions in which the defaulting party is acting as Buyer, (A) purchase securities
("Replacement Securities")of the same class and amu;:nt 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 shalt be at a rate equal to the greater of the Pricing Rate for such Transaction or the Prime
Rate.
(f) For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in
respect of which the defaulting party is acting as Buyer shall not increase above the amount of such
Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise
by the nondefaulting party of its option under subparagraph (a) of this paragraph.
(g) The defaulting party shall be liable to the nondefaulting party for the amount of all reasonable
legal or other expenses incurred by the nondefaulting party in connection with or as a consequence of
an Event of Default, together with interest thereon at a rate equal to the greater of the Pricing Rate for
the relevant Transaction or the Prime Rate.
(h) The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise
available to it under any other agreement or applicable law.
12. Single Agreement
Buyer and Seller acknowledge that, and have entered hereinto and will enter into each Transaction
hereunder in consideration of and in reliance upon the fact that, all Transactions hereunder constitute a
single business and contractual relationship and have been made in consideration of each other.Accordingly,
each of Buyer and Seller agrees (i) to perform all of its obligations in respect of each Transaction
hereunder, and that a default in the performance of any such obligations shall constitute a default by it
in respect of all Transactions hereunder, (ii)that each of them shall be entitled to set off claims and apply
property held by them in respect of any Transaction against obligations owing to them in respect of any
other Transactions hereunder and (iii) that payments, deliveries and other transfers made by either of
them in respect of any Transaction shall be deemed to have been made in consideration of payments,
deliveries and other Transactions hereunder, and the obligations to make any such payments,deliveries
and other transfers may be applied against each other and netted.
13. Notices and Other Communications
Unless another address is specified in writing by the respective party to whom any notice or other
communication is to be given hereunder, all such notices or communications shall be in writing or confirmed
in writing and delivered at the respective addresses set forth in Annex II attached hereto.
14. Entire Agreement;Severability
This Agreement shall supersede any existing agreements between the parties containing general
terms and conditions for repurchase transactions. Each provision and agreement herein shall be treated
as separate and independent from any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.
15. Non-assignability;Termination
The rights and obligations of the parties under this Agreement and under any Transaction shall not
be assigned by either party without the prior written consent of the other party. Subject to the foregoing,
this Agreement and any Transactions shall be binding upon and shall inure to the benefit of the parties
and their respective successors and assigns. This Agreement may be cancelled by either party upon
giving written notice to the other, except that this Agreement shall, notwithstanding such notice, remain
applicable to any Transactions then outstanding.
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1t3: 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 pi ovision of this
Agreement and no consent by any party to a departure herefrom shall be effective unless and until such
shall be in writing and duly executed by both of the parties hereto. Without limitation on any of the
foregoing, the failure to give a notice pursuant to subparagraphs 4(a) or 4(b)hereof will not constitute a
waiver of any right to do so at a later date.
18. Use of Employee Plan Assets
(a)If assets of an employee benefit plan subject to any provision of the Employee Retirement Income
Security Act of 1974 ("ERISA') are intended to be used by either party hereto (the "Plan Party") in a
Transaction,the Plan Party shall so notify the other party prior to the Transaction. The PIE i Party shall
represent in writing to the other party that the Transaction does not constitute a prohibited transaction
under ERISA or is otherwise exempt therefrom, and the other party may proceed in reliance thereon but
shall not be required so to proceed.
(b) Subject-to the last sentence of subparagraph (a) of this paragraph, any such Transaction shall
proceed only if Seller furnishes or has furnished to Buyer its most recent available audited statement of
its financial condition and its most recent subsequent unaudited statement of its financial condition.
(c) By entering into a Transaction pursuant to this paragraph, Seller shall be deemed (i)to represent
to Buyer that since the date of Seller's latest such financial statements, there has been no material
adverse change in Seller's financial condition which Seller has not disclosed to Buyer, and (ii) to agree
to provide Buyer with future audited and unaudited statements of its financial condition as they are
issued, so long as it is a Seller in any outstanding Transaction involving a Plan Party.
19. Intent
(a)The parties recognize that each Transaction is a"repurchase agreement"as that term is defined
in Section 101(39) 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(7)of Title 11 of the United
States Code,as amended.
(b) It is understood that either party's right to liquidate securities delivered to it in connection with
Transactions hereunder or to exercise any other remedies pursuant to Paragraph 11 hereof, is a contractual
right to liquidate such Transaction as described in Sections 555 and 559 of Title 11 of the United States
Code, as amended.
Marine Bank Oshkosh, N.A. [Name of Pa j
By //,‘ //o� i �7 042)
By „!
Title v• / res. al—a- Title City Manager City Clerk
Date 6''*`✓414"- /3 /ft' Date February 8, 1988
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ANNEX I
Supplemental Terms and Conditions
1. Purchased securities in possession of the Seller may, subject to
acceptance by Buyer, substitute other securities for any purchased
securities. Such substitution shall be made by informing the Buyer on
the day of substitution, or by confirming the substitution in writing
to the Buyer one day prior to the substitution date.
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