Exhibit 10.21
[▇▇▇▇▇▇ ▇▇▇▇▇▇▇ logo] ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
November 27, 2007
CUSTOMER FX PRIME BROKERAGE AGREEMENT
Ladies and Gentlemen:
In consideration of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇")
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 FX
Transactions executed by Advisor with one or more Executing Dealers and given up
to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in accordance with the terms of this Agreement, each Customer
hereby agrees as follows:
1. DEFINITIONS
o "Advisor" means any third-party commodity trading advisor listed on Annex B.
If Customer directs ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ harmless
from and to pay ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ promptly on demand any and all losses arising
from Customer's appointment of Advisor; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be protected in
continuing to act in reliance on the appointment of the Advisor until ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may have
under this Agreement.
o "Agreement" means this document along with all 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as security for Customer's
obligations under outstanding Customer FX Transactions and other FX Transactions
governed under such Master Agreement, including any applicable master
cross-entity margining and netting agreement.
o "Customer FX Transaction" means an FX Transaction entered into between
Customer and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (in good faith and in a
commercially reasonable manner) to be the market rate available to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ at such time in the New York foreign exchange market (or, at the
reasonable election of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is unable to obtain
a market rate pursuant to the preceding sentence, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, with which Advisor on behalf of Customer executes Give-Up
Transactions, subject to the terms and conditions of this Agreement.
o "FX 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 "Give-Up Agreement" means the Master FX Give-Up Agreement between ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 FX Transactions that are executed between
Advisor on behalf of Customer and an Executing Dealer and given up to ▇▇▇▇▇▇
▇▇▇▇▇▇▇, 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 FX Transactions between the parties to such Master Agreement and
Collateral, including, without limitation, a master NDF agreement related to
terms and conditions for non-deliverable FX 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, and for any
settlement date, the sum of the Dollar Value for each currency for which the
aggregate Dollar Value would result in a net amount owed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ by
such Executing Dealer with respect to such Give -Up Transactions.
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ calculated as follows: (i) for
each such Give-Up Transaction, determine the Dollar Value for each currency
(including U.S. dollars) owed by such Executing Dealer to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or owed
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to such Executing Dealer under each Give-Up Transaction; (ii)
for each currency (including U.S. Dollars), determine the net Dollar Value
amount owed by such Executing Dealer to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or owed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
to such Executing Dealer by summing the Dollar Value of all long and short
positions in such currency as determined in clause (i) above; and (iii)
aggregate the Dollar Value amount determined pursuant to clause (ii) above for
each currency with respect to which such Executing Dealer owes a net aggregate
amount to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
2. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AS PRIME BROKER. In connection with any FX Transactions where
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and provided that Customer has posted a
sufficient minimum amount of Collateral pursuant to the terms of the Master
Agreement between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may terminate its approval
of any Executing Dealer at any time and in its sole discretion, provided that
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ promptly notifies Customer and Advisor of any such determination
to terminate approval. Such termination shall be effective with respect to any
FX Transactions executed by Customer with such Executing Dealer after the giving
of such notice.
(b) Customer understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇) to the Give-Up Agreement for such Customer with such Executing
Dealer and provided that Customer has posted with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ a sufficient
amount of Collateral, to be determined in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ reasonable discretion
based on market indicia, to cover the initial exposure for Customer FX
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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall
have the right to reject such transaction; provided, however, that ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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 FX Transactions and other FX Transactions entered into with Customer,
and/or to request that Customer provide additional Collateral to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
in connection with such Give-Up Transaction. If ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ rejects a Give-Up
Transaction executed by Advisor on behalf of Customer with an Executing Dealer,
Customer acknowledges and agrees that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ agrees
to enter into a Customer FX 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ does not reject
such Give-Up Transaction and Customer has posted any upfront Collateral as may
be requested by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in its sole discretion with respect to such
Customer FX Transaction. The terms of each such Customer FX Transaction shall be
identical to the corresponding Give-Up Transaction. Without limitation of the
foregoing, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may exercise any and all rights and remedies afforded
to it under the applicable Master Agreement in connection with any Customer FX
Transaction, including but not limited to, the right to liquidate any such
Customer FX Transaction in accordance with and pursuant to the terms and
conditions of the Master Agreement between Customer and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In
addition, any Customer FX Transactions shall be subject to the provisions of
such Master Agreement regarding Customer's obligation to deposit and maintain
Collateral. Any Collateral delivered to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ by Customer in connection
with Customer FX Transactions shall be subject in all respects to the terms and
conditions of such Master Agreement, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 FX
Transaction, the terms of this Agreement will control.
(d) Advisor on behalf of Customer shall provide ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or (ii) affirming the Trade Details transmitted by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ to Advisor on behalf of Customer, in each case, through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇
electronic or web-based proprietary systems or services. In the event that
Advisor fails to provide such written notice to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on a timely
basis, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have the right, in its sole discretion, to reject
such Give-Up Transaction or to execute the corresponding Customer FX
Transactions in accordance with the terms submitted to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ by the
relevant Executing Dealer; provided, however, that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall use
reasonable efforts to notify Advisor of missing Trade Details.
(e) In the event that Advisor on behalf of Customer notifies ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ by
the applicable Executing Dealer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ negligence or
misconduct.
(f) Advisor on behalf of Customer agrees promptly to either (i) execute and
return hard-copy Confirmations provided by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Customer with
respect to a Customer FX Transaction, or (ii) to electronically affirm
Confirmations transmitted to Customer through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Customer. For purposes hereof, "Confirmation" shall have the
meaning ascribed to it in the Master Agreement entered into between Customer and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and may be included within or as part of the Trade Details of the
Give-Up Transaction that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for a Customer FX Transaction that is a Non-Deliverable FX
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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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 FX Transactions with Customer, except in accordance with the
terms of this Section 2 and Section 3. Customer further acknowledges that ▇▇▇▇▇▇
▇▇▇▇▇▇▇ shall settle each Customer FX Transaction on the same terms as the
corresponding accepted Give-Up Transaction between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 FX Transaction.
Customer agrees that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 FX
Transactions and corresponding accepted Give-Up Transactions. For the avoidance
of doubt, the only risk that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ hereby agrees to assume with respect
to Customer FX 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall pass through to
Customer.
3. LIMITS. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 FX 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 FX Transaction
were executed, cause any of such limits to be exceeded, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 FX
Transaction shall be established); (ii) accept the corresponding Customer FX
Transaction subject to Customer's prior deposit of additional Collateral with
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in a form and amount specified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in its
reasonable discretion based on market indicia. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇ with respect to Give-Up Transactions executed subsequent to such notice.
4. FEES AND OTHER CHARGES. Customer agrees to pay to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as
compensation for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ provides Customer with notice of such modification. Fees due to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ hereunder shall be paid to the account specified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
within 30 days of Customer's receipt of an invoice from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ has no
responsibility therefor; (e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 FX 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 FX 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.
7. LIMITATION OF LIABILITY. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall not be liable in connection
with the execution, processing or other actions taken in connection with Give-Up
Transactions or Customer FX Transactions, except in the event of negligence or
misconduct on ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ part.
8. INDEMNIFICATION. In consideration of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ acting as prime broker
for Customer, Customer agrees to indemnify and hold ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ harmless from
and against any and all losses, claims, damages and liabilities in connection
with the execution of Give-Up Transactions and Customer FX Transactions, or in
connection with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ acting or declining to act as prime broker,
except for actions taken or omitted to be taken by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ which are a
result of, or constitute, misconduct or negligence. Customer also agrees that
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have no responsibility for Customer's or Advisor's
compliance with any law or regulation and that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
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.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
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/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
Annex A
Fee Schedule
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In connection with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ services as prime broker under the terms of
this Agreement, the following fees shall be payable by Customer:
Spot: Each Customer (as applicable), hereby agrees to pay ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ rejects or
for any foreign exchange transactions that are executed by Advisor on
behalf of the Accounts directly with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and not through any
Dealer under the terms of a Give-Up Agreement.
Deliverable Forwards: Each Customer (as applicable), hereby agrees to pay
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ rejects or for any foreign exchange transactions that
are executed by Advisor on behalf of the Accounts directly with ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and not through any Dealer under the terms of a Give-Up Agreement.
NDFs: Each Customer (as applicable), hereby agrees to pay ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ rejects or
for any foreign exchange transactions that are executed by Advisor on
behalf of the Accounts directly with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
Annex B
Customers
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Spectrum Technical L.P., managed by ▇▇▇▇▇▇▇ Capital Management,
Inc. (its Advisor)
