Between: Anthracite Funding, LLC, Seller and Deutsche Bank AG, Cayman Islands Branch, Buyer
Dated
as
of December 23, 2004
Between:
Anthracite
Funding, LLC, Seller
and
Deutsche
Bank AG, Cayman Islands Branch, Buyer
| 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);
|
2
| (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 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
| 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 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).
|
4
| (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 a 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 a 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.
5
| 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 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.
6
|
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. §403.4(e) if Seller is a government securities
broker or dealer other than a financial institution.
** Language
to be used under 17 C.F.R. §403.5(d) if Seller is a financial
institution.
|
| 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 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.
7
| 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.
|
8
| (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.
|
9
| (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.
|
| (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.
10
| 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 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.
11
| 18. |
Use
of Employee Plan Assets
|
| (a) |
If
assets of an employee benefit plan subject to any provision of the
Employee Retirement Income Security Act of 1974 (“ERISA”) are intended to
be used by either party hereto (the “Plan Party”) in a Transaction, the
Plan Party shall so notify the other party prior to the Transaction.
The
Plan Party shall represent in writing to the other party that the
Transaction does not constitute a prohibited transaction under ERISA
or is
otherwise exempt therefrom, and the other party may proceed in reliance
thereon but shall not be required so to
proceed.
|
| (b) |
Subject
to the last sentence of subparagraph (a) of this Paragraph, any such
Transaction shall proceed only if Seller furnishes or has furnished
to
Buyer its most recent available audited statement of its financial
condition and its most recent subsequent unaudited statement of its
financial condition.
|
| (c) |
By
entering into a Transaction pursuant to this Paragraph, Seller shall
be
deemed (i) to represent to Buyer that since the date of Seller’s latest
such financial statements, there has been no material adverse change
in
Seller’s financial condition which Seller has not disclosed to Buyer, and
(ii) to agree to provide Buyer with future audited and unaudited
statements of its financial condition as they are issued, so long as
it is
a Seller in any outstanding Transaction involving a Plan
Party.
|
| 19. |
Intent
|
| (a) |
The
parties recognize that each Transaction is a “repurchase agreement” as
that term is defined in Section 101 of Title 11 of the United States
Code,
as amended (except insofar as the type of Securities subject to such
Transaction or the term of such Transaction would render such definition
inapplicable), and a “securities contract” as that term is defined in
Section 741 of Title 11 of the United States Code, as amended (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).
|
12
| 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.
|
13
| Anthracite Funding, LLC | |||||
| By: | Anthracite Capital, Inc., its sole member | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx | ||||
|
Name: Xxxxxx Xxxxxxxxx |
|||||
| Title: Vice President | |||||
| Deutsche Bank AG, Cayman Islands Branch | |||||
|
By:
|
/s/
Xxxxxxxxxxx Xxxxxxx
|
||||
|
Name: Xxxxxxxxxxx Xxxxxxx |
|||||
| Title: Vice President | |||||
| By: | /s/ Xxxxxxxxx Xxxxxxxx | ||||
|
Name: Xxxxxxxxx Xxxxxxxx |
|||||
| Title: Vice President | |||||
14
