Exhibit 10.16
XXXXXX XXXXXXX 0000 XXXXXXXX
XXX XXXX, XX 00000-0000
November 27, 2007
CUSTOMER FX PRIME BROKERAGE AGREEMENT
Ladies and Gentlemen:
In consideration of Xxxxxx Xxxxxxx Capital Group Inc. ("Xxxxxx Xxxxxxx")
agreeing to act as prime broker of each entity specified in Annex B attached
hereto (severally, and not jointly, each a "Customer") with respect to Currency
Option Transactions executed by Customer with one or more Executing Dealers and
given up to Xxxxxx Xxxxxxx in accordance with the terms of this Agreement,
Customer hereby agrees as follows:
1. DEFINITIONS
o "Advisor" means any third-party commodity trading advisor listed on Annex B.
If Customer directs Xxxxxx Xxxxxxx to accept trading instructions from an
Advisor, unless otherwise agreed in writing, Customer hereby appoints such
Advisor as Customer's agent for the purpose of receiving all communications,
notices and requests for instructions related to this Agreement and the
transactions effectuated pursuant to this Agreement, including, without
limitation, margin calls and any trading information or advice (subject to
Section 6(b) hereof). Advisor is authorized to access and use electronic
services, facilities and information provided electronically, including but not
limited to electronic trading systems, and on behalf of Customer, to agree to
the terms and conditions regarding such use and to enter into electronic trading
agreements. Customer hereby agrees to indemnify and hold Xxxxxx Xxxxxxx harmless
from and to pay Xxxxxx Xxxxxxx promptly on demand any and all losses arising
from Customer's appointment of Advisor; Xxxxxx Xxxxxxx shall be protected in
continuing to act in reliance on the appointment of the Advisor until Xxxxxx
Xxxxxxx receives written notice thereof; and termination of the appointment of
the Advisor shall not affect any liability in any way resulting from
transactions initiated prior to such termination. This indemnity is in addition
to (and in no way limits or restricts) any rights which Xxxxxx Xxxxxxx may have
under this Agreement.
o "Agreement" means this document along with all executed annexes to this
document.
o "Collateral" means any and all collateral, margin or other credit support
provided by Customer in accordance with and pursuant to the terms of the Master
Agreement between Customer and Xxxxxx Xxxxxxx as security for Customer's
obligations under outstanding Customer Currency Option Transactions and other
Currency Option Transactions governed under such Master Agreement, including any
applicable master cross-entity margining and netting agreement.
o "Currency Option Transaction" shall have the meaning set out in the 1998 FX
and Currency Option Definitions as published by the International Swaps and
Derivatives Association, Inc., the Emerging Markets Traders Association and The
Foreign Exchange Committee.
o "Customer Currency Option Transaction" means a Currency Option Transaction
entered into between Customer and Xxxxxx Xxxxxxx to offset a Give-Up
Transaction.
o "Dollar Value" means with respect to an amount of currency at any time (i) if
such currency is U.S. Dollars, such amount and (ii) in all other cases, the
amount of U.S. Dollars which could be purchased at the market rate prevailing at
such time against delivery of such amount of currency on a specified settlement
date. Such rate shall be determined by Xxxxxx Xxxxxxx (in good faith and in a
commercially reasonable manner) to be the market rate available to Xxxxxx
Xxxxxxx at such time in the New York foreign exchange market (or, at the
reasonable election of Xxxxxx Xxxxxxx, in the foreign exchange market of any
other financial center in which the currency is traded and which is then open
for business) for the purchase or, as the case may be, sale of one currency
against another currency for delivery on a specified date using the spot or
forward rate as designated in the Notice. If Xxxxxx Xxxxxxx is unable to obtain
a market rate pursuant to the preceding sentence, Xxxxxx Xxxxxxx will determine
the rate in good faith and in a commercially reasonable manner.
o "Executing Dealers" means dealers in the foreign exchange market, other than
Xxxxxx Xxxxxxx, with which Advisor on behalf of Customer executes Give-Up
Transactions, subject to the terms and conditions of this Agreement.
o "Give-Up Agreement" means the Master FX Give-Up Agreement between Xxxxxx
Xxxxxxx and each Executing Dealer regarding the execution of Give-Up
Transactions.
o "Give-Up Notice" means a notice in the form attached as an exhibit to the
Give-Up Agreement between Xxxxxx Xxxxxxx and an Executing Dealer setting forth
specific limitations and parameters for the execution of Give-Up Transactions by
a particular Advisor on behalf of Customer with such Executing Dealer.
o "Give-Up Transaction" means any Currency Option Transactions that are executed
between Advisor on behalf of Customer and an Executing Dealer and given up to
Xxxxxx Xxxxxxx, as prime broker, in accordance with and subject to the terms and
conditions of this Agreement.
o "Master Agreement" means any form of agreement or general terms and conditions
governing Currency Option Transactions between the parties to such Master
Agreement and Collateral, including, without limitation, any master NDO
agreement related to terms and conditions for non-deliverable Currency Option
Transactions in specified currencies and any applicable master cross-entity
margining and netting agreement.
o "Net Daily Settlement Amount" means, with respect to Give-Up Transactions
executed by Advisor on behalf of Customer with an Executing Dealer for any
settlement date, the aggregate amount owed by such Executing Dealer to Xxxxxx
Xxxxxxx (excluding Netted Currency Option Transactions) calculated by Xxxxxx
Xxxxxxx as follows: (a) for each such Give -Up Transaction (excluding any option
premia that may be owed to Xxxxxx Xxxxxxx and assuming the exercise of any
Give-Up Transaction on its expiration date), determine the Dollar Value for each
currency (including USD) owed by such Executing Dealer to Xxxxxx Xxxxxxx or owed
by Xxxxxx Xxxxxxx to such Executing Dealer under such Give-Up Transaction; (b)
for each currency (including USD), determine the net Dollar Value amount owed by
such Executing Dealer to Xxxxxx Xxxxxxx or owed by Xxxxxx Xxxxxxx to such
Executing Dealer by summing the Dollar Value of all long and short positions in
such currency as determined pursuant to clause (a) above; and (c) aggregate the
Dollar Value(s) for all currencies determined pursuant to clause (b) in respect
of which such Executing Dealer owes a net aggregate amount to Xxxxxx Xxxxxxx.
o "Net Open Position" means, with respect to Give-Up Transactions executed by
Advisor on behalf of Customer with an Executing Dealer, the aggregate amount
owed by such Executing Dealer to Xxxxxx Xxxxxxx (excluding Netted Currency
Option Transactions) calculated by Xxxxxx Xxxxxxx as follows: (i) determine the
delta equivalent of each leg of the currency pair in respect of each Give-Up
Transaction; (ii) for each currency, aggregate and net the delta equivalents of
amounts in such currency (assuming exercise of each Give-Up Transaction on its
expiration date) deliverable to Xxxxxx Xxxxxxx and payable by such Executing
Dealer ; and (iii) aggregate the amounts determined pursuant to clause (ii)
above for each currency with respect to which such Executing Dealer owes a net
aggregate amount to Xxxxxx Xxxxxxx.
o "Netted Currency Option Transaction" means a Give-Up Transaction that is a
Currency Option Transaction sold by Xxxxxx Xxxxxxx and owned by an Executing
Dealer that may be discharged and terminated together with a Give-Up Transaction
that is a Currency Option Transaction sold by such Executing Dealer and owned by
Xxxxxx Xxxxxxx upon satisfying the following criteria:
(i) each Currency Option Transaction being with respect to the same put
currency and call currency;
(ii) each having the same expiration date and expiration time;
(iii) each being of the same style (i.e., either both being American style
of both being European style);
(iv) each having the same strike price;
(v) each being transacting by the same pair of offices of such Executing
Dealer and Xxxxxx Xxxxxxx; and
(vi) neither of which shall have been exercised by delivery of a notice
of exercise.
Where the relevant Currency Option Transactions are for different amounts of the
currency pair, only the portion of such Currency Option Transactions that is
partially discharged and terminated shall be considered a Netted Currency Option
Transaction for purposes of calculating Net Daily Settlement Amount and Net Open
Position.
2. XXXXXX XXXXXXX AS PRIME BROKER. In connection with any Currency Option
Transactions where Xxxxxx Xxxxxxx acts as prime broker for the Customer:
(a) Advisor on behalf of Customer may execute Give-Up Transactions only with
Executing Dealers that have been approved by Xxxxxx Xxxxxxx, at its discretion,
for the execution of Give-Up Transactions with Customer and that have entered
into a Give-Up Agreement, a Give-Up Notice with respect to Customer, and a
Master Agreement with Xxxxxx Xxxxxxx, and provided that Customer has posted a
sufficient minimum amount of Collateral pursuant to the terms of the Master
Agreement between Xxxxxx Xxxxxxx and Customer prior to the execution of any
Give-Up Transaction with any Executing Dealer. Advisor on behalf of Customer
shall not be permitted to execute Give-Up Transactions with more than fifteen
Executing Dealers at any given time. Xxxxxx Xxxxxxx may terminate its approval
of any Executing Dealer at any time and in its sole discretion, provided that
Xxxxxx Xxxxxxx promptly notifies Customer and Advisor of any such determination
to terminate approval. Such termination shall be effective with respect to any
Currency Option Transactions executed by Customer with such Executing Dealer
after the giving of such notice.
(b) Customer understands that Xxxxxx Xxxxxxx will only accept Give-Up
Transactions executed by Advisor on behalf of Customer with an Executing Dealer
that are within the limitations and parameters set forth in the corresponding
Give-Up Notice (a copy of which shall be provided to Customer and Advisor by
Xxxxxx Xxxxxxx) to the Give-Up Agreement for such Customer with such Executing
Dealer and provided that Customer has posted with Xxxxxx Xxxxxxx a sufficient
amount of Collateral, to be determined in Xxxxxx Xxxxxxx'x reasonable discretion
based on market indicia, to cover the initial exposure for Customer Currency
Option Transactions related to such Give-Up Transactions. If Advisor on behalf
of Customer executes a Give-Up Transaction with an Executing Dealer that exceeds
the limitations set forth in the applicable Give-Up Notice, Xxxxxx Xxxxxxx shall
have the right to reject such transaction; provided, however, that Xxxxxx
Xxxxxxx reserves the right, in its sole discretion, to accept any Give-Up
Transactions that exceed the prescribed limitations, to accept and assign such
Give-Up Transaction to a third party, to close-out and liquidate outstanding
Customer Currency Option Transactions and other Currency Option Transactions
entered into with Customer, and/or to request that Customer provide additional
Collateral to Xxxxxx Xxxxxxx in connection with such Give-Up Transaction. If
Xxxxxx Xxxxxxx rejects a Give-Up Transaction executed by Advisor on behalf of
Customer with an Executing Dealer, Customer acknowledges and agrees that Xxxxxx
Xxxxxxx shall have no liability, whether in contract, tort or otherwise, to
Customer or Advisor or the Executing Dealer with respect to such Give-Up
Transaction, and that such rejected transaction shall be for the sole account
and risk of Customer and subject to the terms and conditions of the Master
Agreement (if any) between Customer and such Executing Dealer.
(c) Subject to the terms and conditions set forth herein, Xxxxxx Xxxxxxx agrees
to enter into a Customer Currency Option Transaction with Advisor on behalf of
Customer to offset each applicable Give-Up Transaction executed by Advisor on
behalf of Customer with an Executing Dealer, provided that Xxxxxx Xxxxxxx does
not reject such Give-Up Transaction and Customer has posted any upfront
Collateral as may be requested by Xxxxxx Xxxxxxx in its sole discretion with
respect to such Customer Currency Option Transaction. The terms of each such
Customer Currency Option Transaction shall be identical to the corresponding
Give-Up Transaction. Without limitation of the foregoing, Xxxxxx Xxxxxxx may
exercise any and all rights and remedies afforded to it under the applicable
Master Agreement in connection with any Customer Currency Option Transaction,
including but not limited to, the right to liquidate any such Customer Currency
Option Transaction in accordance with and pursuant to the terms and conditions
of the Master Agreement between Customer and Xxxxxx Xxxxxxx. In addition, any
Customer Currency Option Transactions shall be subject to the provisions of such
Master Agreement regarding Customer's obligation to deposit and maintain
Collateral. Any Collateral delivered to Xxxxxx Xxxxxxx by Customer in connection
with Customer Currency Option Transactions shall be subject in all respects to
the terms and conditions of such Master Agreement, and Xxxxxx Xxxxxxx shall be
entitled to exercise any and all rights and remedies afforded to it under such
Master Agreement with respect to such Collateral. In the event of a conflict
between this Agreement and such Master Agreement with respect to any Customer
Currency Option Transaction, the terms of this Agreement will control.
(d) Advisor on behalf of Customer shall provide Xxxxxx Xxxxxxx with written
notice of the details of each Give-Up Transaction promptly upon executing such
Give-Up Transaction (the "Trade Details"). Such notification may be made by
Advisor either by (i) transmitting such Trade Details directly in written form
to Xxxxxx Xxxxxxx or (ii) affirming the Trade Details transmitted by Xxxxxx
Xxxxxxx to Advisor on behalf of Customer, in each case, through Xxxxxx Xxxxxxx'x
electronic or web-based proprietary systems or services. In the event that
Advisor fails to provide such written notice to Xxxxxx Xxxxxxx on a timely
basis, Xxxxxx Xxxxxxx shall have the right, in its sole discretion, to reject
such Give-Up Transaction or to execute the corresponding Customer Currency
Option Transaction in accordance with the terms submitted to Xxxxxx Xxxxxxx by
the relevant Executing Dealer; provided, however, that Xxxxxx Xxxxxxx shall use
reasonable efforts to notify Advisor of missing Trade Details.
(e) In the event that Advisor on behalf of Customer notifies Xxxxxx Xxxxxxx of
the Trade Details of any Give-Up Transaction in accordance with subparagraph (d)
above but the terms set forth in such notice differ from the Trade Details of
the Give-Up Transaction reflected in the notice submitted to Xxxxxx Xxxxxxx by
the applicable Executing Dealer, Xxxxxx Xxxxxxx shall have the right, in its
discretion, to reject such Give-Up Transaction or, notwithstanding anything
herein to the contrary, to delay acceptance of such Give-Up Transaction unless
and until the discrepancies between the notices submitted by Advisor and the
Executing Dealer are reconciled. Advisor understands that it shall be
responsible for resolving discrepancies in Trade Details with respect to any
Give-Up Transaction and that Xxxxxx Xxxxxxx'x acceptance of any Give-Up
Transaction is conditional on the satisfactory resolution of such discrepancies
between Advisor and the relevant Executing Dealer. Customer acknowledges and
agrees that Xxxxxx Xxxxxxx shall have no liability, whether in contract, tort or
otherwise, to Customer or the Executing Dealer with respect to any delays in
accepting a Give-Up Transaction if such delays result from discrepancies in
Trade Details, unless arising from or related to Xxxxxx Xxxxxxx'x negligence or
misconduct.
(f) Advisor on behalf of Customer agrees promptly to either (i) execute and
return hard-copy Confirmations provided by Xxxxxx Xxxxxxx to Customer with
respect to a Customer Currency Option Transaction, or (ii) to electronically
affirm Confirmations transmitted to Customer through Xxxxxx Xxxxxxx'x electronic
or web-based proprietary systems or services. Confirmations shall be conclusive
and binding if not objected to in writing within three days after transmittal by
Xxxxxx Xxxxxxx to Customer. For purposes hereof, "Confirmation" shall have the
meaning ascribed to it in the Master Agreement entered into between Customer and
Xxxxxx Xxxxxxx and may be included within or as part of the Trade Details of the
Give-Up Transaction that Xxxxxx Xxxxxxx provides to Customer electronically
through its web-based proprietary systems or services. In the event of any
inconsistency with respect to the terms contained in any Confirmation provided
by Xxxxxx Xxxxxxx for a Customer Currency Option Transaction that is a
Non-Deliverable Currency Option Transaction and the Trade Details of the
corresponding accepted Give-Up Transaction provided by the relevant Executing
Dealer, the terms of the Trade Details of the Give-Up Transaction shall prevail.
(g) Customer acknowledges that, notwithstanding the foregoing, Xxxxxx Xxxxxxx
shall be under no obligation whatsoever to accept Give-Up Transactions executed
by Advisor on behalf of Customer with Executing Dealers and to enter into
offsetting Customer Currency Option Transactions with Customer, except in
accordance with the terms of this Section 2 and Section 3. Customer further
acknowledges that Xxxxxx Xxxxxxx shall settle each Customer Currency Option
Transaction on the same terms as the corresponding accepted Give-Up Transaction
between Xxxxxx Xxxxxxx and the relevant Executing Dealer and that any waiting
periods, exercise of terms or exotic features, market or other disruption
events, interpretations, market practices, disputes or other events that modify
or otherwise impact the terms of settlement of an accepted Give-Up Transaction
shall equally modify or otherwise impact the terms of settlement of the
corresponding Customer Currency Option Transaction. Customer agrees that Xxxxxx
Xxxxxxx shall have no liability, whether in contract, tort or otherwise, to
Customer for any losses attributable to the foregoing risks associated with the
interdependency between Customer Currency Option Transactions and corresponding
accepted Give-Up Transactions. For the avoidance of doubt, the only risk that
Xxxxxx Xxxxxxx hereby agrees to assume with respect to Customer Currency Option
Transactions and accepted Give-Up Transactions is credit risk; Customer hereby
agrees to assume all other risks associated with Give-Up Transactions, which
risks Customer agrees Xxxxxx Xxxxxxx shall pass through to Customer.
3. LIMITS. Xxxxxx Xxxxxxx, from time to time and in its sole discretion, will
establish the maximum permissible Net Open Position and the Net Daily Settlement
Amount that may exist as of any given time with respect to the aggregate of all
Customer Currency Option Transactions with each Executing Dealer that are
outstanding as of such time and will notify Advisor of such limits as soon as
reasonably practicable. In the event that Advisor on behalf of Customer enters
into a Give-Up Transaction that would, if the corresponding Customer Currency
Option Transaction were executed, cause any of such limits to be exceeded,
Xxxxxx Xxxxxxx shall have the right, in its sole discretion, to (i) accept such
Give-Up Transaction or reject such Give-Up Transaction (in which latter case, no
Customer Currency Option Transaction shall be established); (ii) accept the
corresponding Customer Currency Option Transaction subject to Customer's prior
deposit of additional Collateral with Xxxxxx Xxxxxxx, in a form and amount
specified by Xxxxxx Xxxxxxx in its reasonable discretion based on market
indicia. Xxxxxx Xxxxxxx may at any time and in its sole discretion amend the
Give-Up Notice governing the limits and other parameters with which Advisor on
behalf of Customer may execute Give-Up Transactions with any Executing Dealer by
notifying Customer and Advisor as soon as reasonably practicable. Any amendments
to a Give-Up Notice with an Executing Dealer, copies of which shall be provided
to Customer by Xxxxxx Xxxxxxx, may serve to terminate Advisor on behalf of
Customer's ability to execute Give-Up Transactions with such Executing Dealer or
reduce the volume of Give-Up Transactions permissible under such Give-Up Notice
to zero. Amendments to the Give-Up Notice shall be effective after the giving of
such notice by Xxxxxx Xxxxxxx with respect to Give-Up Transactions executed
subsequent to such notice.
4. FEES AND OTHER CHARGES. Customer agrees to pay to Xxxxxx Xxxxxxx as
compensation for Xxxxxx Xxxxxxx acting as prime broker hereunder, as of the end
of each calendar month during the term of this Agreement, the fees specified in
Annex A hereto. Xxxxxx Xxxxxxx may modify the terms of Annex A at any time and
from time to time, and such modified terms shall be applicable to all Give-Up
Transactions executed after the date of such modification, provided that, Xxxxxx
Xxxxxxx provides Customer with notice of such modification. Fees due to Xxxxxx
Xxxxxxx hereunder shall be paid to the account specified by Xxxxxx Xxxxxxx
within 30 days of Customer's receipt of an invoice from Xxxxxx Xxxxxxx
identifying the fees due for the preceding month.
5. REPRESENTATIONS AND WARRANTIES. Customer represents and warrants that (a) it
has full power and authority to execute this Agreement and the persons executing
this Agreement have been duly authorized to do so; (b) this Agreement is binding
upon it and enforceable against it in accordance with its terms (subject to
applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to enforceability, to
equitable principals of general application (regardless of whether enforcement
is sought in a proceeding in equity or at law)) and does not and will not
violate the terms of any agreements to which Advisor on behalf of Customer is
bound; (c) it understands and is prepared to accept all of the risks of
executing Give-Up Transactions with the Executing Dealers, (d) it is solely
responsible for the selection of the Executing Dealers and Xxxxxx Xxxxxxx has no
responsibility therefor; (e) Xxxxxx Xxxxxxx has no responsibility or liability
for any acts or omissions of the Executing Dealers or for any other matters
related to the execution of Give-Up Transactions; and (f) Xxxxxx Xxxxxxx is not
acting as a fiduciary of, or an advisor to, Customer in connection with any
Give-Up Transactions, and does not perform any analysis or make any judgment on
any matters pertaining to the suitability of any order or offer any opinion,
judgment or other type of information pertaining to the nature, value, potential
or suitability of any particular Give-Up Transaction or Customer Currency Option
Transaction.
6. TERMINATION. This Agreement shall remain in full force and effect unless and
until terminated by either party upon 30 days' prior written notice to the other
party, provided, however, that the terms and conditions of this Agreement shall
remain in effect and applicable with respect to any Give-Up Transaction and
Customer Currency Option Transactions executed prior to the effective date of
termination and, provided further, that Sections 7 and 8 of this Agreement shall
remain in full force and effect and survive any termination of this Agreement.
In addition, any breach of this Agreement by Customer shall constitute an event
of default, termination event or other similar event as may be defined under the
Master Agreement between Customer and Xxxxxx Xxxxxxx, and Xxxxxx Xxxxxxx shall
be entitled to exercise any and all of the rights and remedies afforded to it
under such Master Agreement.
7. LIMITATION OF LIABILITY. Xxxxxx Xxxxxxx shall not be liable in connection
with the execution, processing or other actions taken in connection with Give-Up
Transactions or Customer Currency Option Transactions, except in the event of
negligence or misconduct on Xxxxxx Xxxxxxx'x part.
8. INDEMNIFICATION. In consideration of Xxxxxx Xxxxxxx'x acting as prime broker
for Customer, Customer agrees to indemnify and hold Xxxxxx Xxxxxxx harmless from
and against any and all losses, claims, damages and liabilities in connection
with the execution of Give-Up Transactions and Customer Currency Option
Transactions, or in connection with Xxxxxx Xxxxxxx acting or declining to act as
prime broker, except for actions taken or omitted to be taken by Xxxxxx Xxxxxxx
which are a result of, or constitute, misconduct or negligence. Customer also
agrees that Xxxxxx Xxxxxxx shall have no responsibility for Customer's or
Advisor's compliance with any law or regulation and that Xxxxxx Xxxxxxx shall
not be liable for delays in the transmission of orders or instructions due to
the breakdown or failure of transmission or communication facilities or any
other cause beyond Xxxxxx Xxxxxxx'x control, including any mistake, error,
negligence or misconduct of any Executing Dealer or clearing or nostro bank or
agent or their respective officers, directors, employees or agents.
9. NOTICES. All notices required or permitted to be given hereunder shall be
provided to the addresses and in the manner specified in the Master Agreement.
10. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be binding
upon and inure to the benefit of any successors or permitted assignees of the
parties, provided that Customer may not assign its rights or obligations under
this Agreement without the express written consent of Xxxxxx Xxxxxxx.
11. MISCELLANEOUS. (a) In the event any one or more of the provisions contained
in this Agreement is held invalid, illegal, or unenforceable in any respect
under the law of any jurisdiction, the validity, legality, and enforceability of
the remaining provisions under the law of such jurisdiction, and the validity,
legality, and enforceability of such and any other provisions under the law of
any other jurisdiction, shall not in any way be affected or impaired thereby.
The headings used in this Agreement are for convenience of reference only and
are not to affect the construction of or to be taken into consideration in
interpreting this Agreement.
(b) No indulgence or concession granted by a party and no omission or delay on
the part of a party in exercising any right, power, or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power, or privilege preclude any other or further
exercise thereof or the exercise of any other right, power, or privilege.
(c) This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York without giving effect to conflict of laws
provisions. With respect to any suit, action or other proceedings
("Proceedings") related to this Agreement, each party irrevocably (i) submits to
the exclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New York City and
(ii) waives any objection which it may have at any time to the laying of venue
of any Proceedings brought in any such court, waives any claim that such
Proceedings have been brought in an inconvenient forum and further waives the
right to object, with respect to such Proceedings, that such court does not have
jurisdiction over such party.
(d) Each party hereby irrevocably waives any and all right to trial by jury in
any Proceedings.
(e) This Agreement (and each amendment, modification and waiver in respect of
it) may be executed and delivered in counterparts, each of which will be deemed
an original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by their respective officers thereunto duly executed as of the date first
written above.
XXXXXX XXXXXXX CAPITAL GROUP INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Signer
DEMETER MANAGEMENT CORPORATION, as general partner
and/or trading manager for each entity listed in
Annex B attached hereto (severally, and not
jointly, each a "Customer")
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: President
Annex A
Fee Schedule
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In connection with Xxxxxx Xxxxxxx'x services as prime broker under the terms of
this Agreement, the following fees shall be payable by Customer:
Deliverable Currency
Option Transactions*: Each Customer (as applicable), hereby agrees to pay Xxxxxx
Xxxxxxx a servicing fee in the amount of USD 8.00 per each USD 1 million (or its
equivalent) in notional amount of Give-In Transactions that Advisor enters into
on behalf of the Accounts for the first USD 2 billion in a calendar month. The
fee in the amount of USD 8.00 per each USD 1 million shall be reduced to USD
6.00 per each USD 1 million if the business exceeds USD 2 billion in a given
calendar month. Provided, however, that such fee shall not be payable for any
Customer Transaction that Xxxxxx Xxxxxxx rejects or for any foreign exchange
transactions that are executed by Advisor on behalf of the Accounts directly
with Xxxxxx Xxxxxxx and not through any Dealer under the terms of a Give-Up
Agreement.
NDOs: Each Customer (as applicable), hereby agrees to pay Xxxxxx Xxxxxxx a
servicing fee in the amount of USD 8.00 per each USD 1 million (or its
equivalent) in notional amount of Give-In Transactions that Advisor enters into
on behalf of the Accounts for the first USD 2 billion in a calendar month. The
fee in the amount of USD 8.00 per each USD 1 million shall be reduced to USD
6.00 per each USD 1 million if the business exceeds USD 2 billion in a given
calendar month. Provided, however, that such fee shall not be payable for any
Customer Transaction that Xxxxxx Xxxxxxx rejects or for any foreign exchange
transactions that are executed by Advisor on behalf of the Accounts directly
with Xxxxxx Xxxxxxx and not through any Dealer under the terms of a Give-Up
Agreement.
All fees shall be payable on a per Customer basis and shall be subject to the
provisions set forth in Section 4 of the Agreement. The fees for notional
amounts that are less than USD $1 million (or the Dollar Value of its
equivalent) shall be pro-rated.
* Limited to Deliverable Currency Option Transactions that are traded by Xxxxxx
Xxxxxxx as "vanilla" options (i.e., standard call and put options that are
either American or European style, do not have any special or unusual features,
such as barriers, and for which the pay-off is determined by reference to a
single strike price).
Annex B
Customers
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Xxxxxx Xxxxxxx Spectrum Currency L.P., managed by DKR Fusion
Management L.P. (its Advisor)
