Master Securities Loan Agreement



 






EXHIBIT 10.1




Master Securities Loan Agreement






	 	 	 
	Dated as of:

	 	April 13, 2005
	 
	 	 
	Between:

	 	Lorber Epsilon 1999 Limited Partnership (“Lender”)

and Jefferies & Company, Inc. (“Borrower”)







	1.  	Applicability.
	 
	   	From time to time the parties hereto may enter into transactions in which Lender will lend
to Borrower certain Securities (as defined herein) against a transfer of Collateral (as
defined herein). Each such transaction shall be referred to herein as a “Loan” and, unless
otherwise agreed in writing, shall be governed by this Agreement, including any supplemental
terms or conditions contained in an Annex or Schedule hereto and in any other annexes
identified herein or therein as applicable hereunder. Capitalized terms not otherwise
defined herein shall have the meanings provided in Section 24.
	 
	2.  	Loans of Securities.






	 	2.1  	Subject to the terms and conditions of this Agreement, Borrower or Lender may,
from time to time, seek to initiate a transaction in which Lender will lend Securities
to Borrower. Borrower and Lender shall agree on the terms of each Loan (which terms
may be amended during the Loan), including the issuer of the Securities, the amount of
Securities to be lent, the basis of compensation, the amount of Collateral to be
transferred by Borrower, and any additional terms. Such agreement shall be confirmed
(a) by a schedule and receipt listing the Loaned Securities provided by Borrower to
Lender in accordance with Section 3.2, (b) through any system that compares Loans and
in which Borrower and Lender are participants, or (c) in such other manner as may be
agreed by Borrower and Lender in writing. Such confirmation (the “Confirmation”),
together with the Agreement, shall constitute conclusive evidence of the terms agreed
between Borrower and Lender with respect to the Loan to which the Confirmation relates,
unless with respect to the Confirmation specific objection is made promptly after
receipt thereof. In the event of any inconsistency between the terms of such
Confirmation and this Agreement, this Agreement shall prevail unless each party has
executed such Confirmation.
	 
	 	2.2  	Notwithstanding any other provision in this Agreement regarding when a Loan
commences, unless otherwise agreed, a Loan hereunder shall not occur until the
Loaned Securities and the Collateral therefor have been transferred in accordance
with Section 15.




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	3.  	Transfer of Loaned Securities.






	 	3.1  	Unless otherwise agreed, Lender shall transfer Loaned Securities to Borrower
hereunder on or before the Cutoff Time on the date agreed to by Borrower and Lender for
the commencement of the Loan.
	 
	 	3.2  	Unless otherwise agreed, Borrower shall provide Lender, for each Loan in which
Lender is a Customer, with a schedule and receipt listing the Loaned Securities. Such
schedule and receipt may consist of (a) a schedule provided to Borrower by Lender and
executed and returned by Borrower when the Loaned Securities are received, (b) in the
case of Securities transferred through a Clearing Organization which provides
transferors with a notice evidencing such transfer, such notice, or (c) a confirmation
or other document provided to Lender by Borrower.
	 
	 	3.3  	Notwithstanding any other provision in this Agreement, the parties hereto agree
that they intend the Loans hereunder to be loans of Securities. If, however, any Loan
is deemed to be a loan of money by Borrower to Lender, then Borrower shall have, and
Lender shall be deemed to have granted, a security interest in the Loaned Securities
and the proceeds thereof.






	4.  	Collateral.






	 	4.1  	Unless otherwise agreed, Borrower shall, prior to or concurrently with the
transfer of the Loaned Securities to Borrower, but in no case later than the Close of
Business on the day of such transfer, transfer to Lender Collateral with a Market Value
at least equal to the Margin Percentage of the Market Value of the Loaned Securities.
	 
	 	4.2  	The Collateral transferred by Borrower to Lender, as adjusted pursuant to
Section 9, shall be security for Borrower’s obligations in respect of such Loan and for
any other obligations of Borrower to Lender hereunder. Borrower hereby pledges with,
assigns to, and grants Lender a continuing first priority security interest in, and a
lien upon, the Collateral, which shall attach upon the transfer of the Loaned
Securities by Lender to Borrower and which shall cease upon the transfer of the Loaned
Securities by Borrower to Lender. In addition to the rights and remedies given to
Lender hereunder, Lender shall have all the rights and remedies of a secured party
under the UCC. The Collateral will be held by Borrower in a segregated account.
	 
	 	4.3  	Except as otherwise provided herein, upon transfer to Lender of the Loaned
Securities on the day a Loan is terminated pursuant to Section 6, Lender shall be
obligated to transfer the Collateral (as adjusted pursuant to Section 9) to Borrower no
later than the Cutoff Time on such day, or, if such day is not a day on which a
transfer of such collateral may be effected under Section 15, the next day on which
such a transfer may be effected.
	 
	 	4.4  	If Borrower transfers Collateral to Lender, as provided in Section 4.1, and
Lender does not transfer the Loaned Securities to Borrower, Borrower shall have the




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	 	   	absolute right to the return of the Collateral; and if Lender transfers Loaned
Securities to Borrower and Borrower does not transfer Collateral to Lender as provided
in Section 4.1, Lender shall have the absolute right to the return of the Loaned
Securities.






	 	4.5  	Borrower may, upon reasonable notice to Lender (taking into account all
relevant factors, including industry practice, the type of Collateral to be
substituted, and the applicable method of transfer), substitute Collateral for
Collateral securing any Loan or Loans; provided, however, that such substituted
Collateral shall (a) consist only of cash, securities or other property that Borrower
and Lender agreed would be acceptable Collateral prior to the Loan or Loans and (b)
have a Market Value such that the aggregate Market Value of such substituted
Collateral, together with all other Collateral for Loans in which the party
substituting such Collateral is acting as Borrower, shall equal or exceed the agreed
upon Margin Percentage of the Market Value of the Loaned Securities.
	 
	 	4.6  	Prior to the expiration of any letter of credit supporting Borrower’s
obligations hereunder, Borrower shall, no later than the Extension Deadline, (a) obtain
an extension of the expiration of such letter of credit, (b) replace such letter of
credit by providing Lender with a substitute letter of credit in an amount at least
equal to the amount of the letter of credit for which it is substituted, or (c)
transfer such other Collateral to Lender as may be acceptable to Lender.






	5.  	Fees for Loan.






	 	5.1  	Unless otherwise agreed, (a) Borrower agrees to pay Lender a loan fee (a “Loan
Fee”), computed daily on each Loan based on the aggregate Market Value of the Loaned
Securities on the day for which such Loan Fee is being computed, and (b) Lender agrees
to pay Borrower a fee or rebate (a “Cash Collateral Fee”) on Collateral consisting of
cash, computed daily based on the amount of cash held by Lender as Collateral, in the
case of each of the Loan Fee and the Cash Collateral Fee at such rates as set forth on
Schedule B. Except as Borrower and Lender may otherwise agree (in the event that cash
Collateral is transferred by clearing house funds or otherwise), Loan Fees shall accrue
from and including the date on which the Loaned Securities are transferred to Borrower
to, but excluding, the date on which such Loaned Securities are returned to Lender, and
Cash Collateral Fees shall accrue from and including the date on which the cash
Collateral is transferred to Lender to, but excluding, the date on which such cash
Collateral is returned to Borrower.
	 
	 	5.2  	Unless otherwise agreed, any Loan Fee or Cash Collateral Fee payable hereunder
shall be payable:






	 	(a)  	in the case of any Loan of Securities other than Government
Securities, upon the earlier of (i) the fifteenth day of the month following
the calendar month in which such fee was incurred and (ii) the termination of
all Loans hereunder (or, if a transfer of cash in accordance with Section 15
may not




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	 	   	be effected on such fifteenth day or the day of such termination, as
the case may be, the next day on which such a transfer may be effected); and






	 	(b)  	in the case of any Loan of Government Securities, upon the
termination of such Loan and at such other times, if any, as may be customary
in accordance with market practice.






	 	   	Notwithstanding the foregoing, all Loan Fees shall be payable by Borrower
immediately in the event of a Default hereunder by Borrower and all Cash Collateral
Fees shall be payable immediately by Lender in the event of a Default by Lender.






	6.  	Termination of the Loan.






	6.1	(a)   	 Unless otherwise agreed, either party may terminate a Loan on a termination
date established by notice given to the other party prior to the Close of Business on a
Business Day. The termination date established by a termination notice shall be a date
no earlier than the standard settlement date that would apply to a purchase or sale of
the Loaned Securities (in the case of notice given by Lender) or the noncash Collateral
securing the Loan (in the case of a notice given by Borrower) entered into at the time
of such notice, which date shall, unless Borrower and Lender agree to the contrary, be
(i) in the case of Government Securities, the next Business Day following such notice
and (ii) in the case of all other Securities, the third Business Day following such
notice.






	 	(b)  	Notwithstanding paragraph (a) and unless otherwise agreed,
Borrower may terminate a Loan on any Business Day by giving notice to Lender
and transferring the Loaned Securities to Lender before the Cutoff Time on such
Business Day.






	 	6.2  	Unless otherwise agreed, Borrower shall, on or before the Cutoff Time on the
termination date of a Loan, transfer the Loaned Securities to Lender; provided,
however, that upon such transfer by Borrower, Lender shall transfer the Collateral (as
adjusted pursuant to Section 9) to Borrower in accordance with Section 4.3.






	7.  	Rights in Respect of Loaned Securities and Collateral.






	 	7.1  	Except as set forth herein and in Sections 8.1 and 8.2 and as otherwise agreed
by Borrower and Lender, until Loaned Securities are required to be redelivered to
Lender upon termination of a Loan hereunder, Borrower shall have all of the incidents
of ownership of the Loaned Securities, including the right to transfer the Loaned
Securities to others; Lender hereby waives the right to vote, or to provide any consent
or to take any similar action with respect to, the Loaned Securities in
the event that the record date or deadline for such vote, consent or other action
falls during the term of the Loan.




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	8.  	Distributions.






	 	8.1  	Lender shall be entitled to receive all Distributions made on or in respect of
the Loaned Securities which are not otherwise received by Lender, to the full extent it
would be so entitled if the Loaned Securities had not been lent to Borrower.
	 
	 	8.2  	Any cash Distributions made on or in respect of the Loaned Securities, which
Lender is entitled to receive pursuant to Section 8.1, shall be paid by the transfer of
cash to Lender by Borrower, on the date any such Distribution is paid, in an amount
equal to such cash Distribution, so long as Lender is not in Default at the time of
such payment. Non-cash Distributions that Lender is entitled to receive pursuant to
Section 8.1 shall be added to the Loaned Securities on the date of distribution and
shall be considered such for all purposes, except that if the Loan has terminated,
Borrower shall forthwith transfer the same to Lender.
	 
	 	8.3  	Borrower shall be entitled to receive all Distributions made on or in respect
of non-cash Collateral which are not otherwise received by Borrower, to the full extent
it would be so entitled if the Collateral had not been transferred to Lender.
	 
	 	8.4  	Any cash Distributions made on or in respect of such Collateral, which Borrower
is entitled to receive pursuant to Section 8.3, shall be paid by the transfer of cash
to Borrower by Lender, on the date any such Distribution is paid, in an amount equal to
such cash Distribution, so long as Borrower is not in Default at the time of such
payment. Non-cash Distributions that Borrower is entitled to receive pursuant to
Section 8.3 shall be added to the Collateral on the date of distribution and shall be
considered such for all purposes, except that if each Loan secured by such Collateral
has terminated, Lender shall forthwith transfer the same to Borrower.
	 
	 	8.5  	Unless otherwise agreed by the parties:






	 	(a)  	If (i) Borrower is required to make a payment (a “Borrower
Payment”) with respect to cash Distributions on Loaned Securities under
Sections 8.1 and 8.2 (“Securities Distributions”), or (ii) Lender is required
to make a payment (a “Lender Payment”) with respect to cash Distributions on
Collateral under Sections 8.3 and 8.4 (“Collateral Distributions”), and (iii)
Borrower or Lender, as the case may be (“Payor”), shall be required by law to
collect any withholding or other tax, duty, fee, levy or charge required to be
deducted or withheld from such Borrower Payment or Lender Payment (“Tax”), then
Payor shall (subject to subsections (b) and (c) below), pay such additional
amounts as may be necessary in order that the net amount of the Borrower
Payment or Lender Payment received by the Lender or Borrower, as the case may
be (“Payee”), after payment of
such Tax equals the net amount of the Securities Distribution or Collateral
Distribution that would have been received if such Securities Distribution
or Collateral Distribution had been paid directly to the Payee.




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	 	(b)  	No additional amounts shall be payable to a Payee under
subsection (a) above to the extent that Tax would have been imposed on a
Securities Distribution or Collateral Distribution paid directly to the Payee.
	 
	 	(c)  	No additional amounts shall be payable to a Payee under
subsection (a) above to the extent that such Payee is entitled to an exemption
from, or reduction in the rate of, Tax on a Borrower Payment or Lender Payment
subject to the provision of a certificate or other documentation, but has
failed timely to provide such certificate or other documentation.
	 
	 	(d)  	Each party hereto shall be deemed to represent that, as of the
commencement of any Loan hereunder, no Tax would be imposed on any cash
Distribution paid to it with respect to (i) Loaned Securities subject to a Loan
in which it is acting as Lender or (ii) Collateral for any Loan in which it is
acting as Borrower, unless such party has given notice to the contrary to the
other party hereto (which notice shall specify the rate at which such Tax would
be imposed). Each party agrees to notify the other of any change that occurs
during the term of a Loan in the rate of any Tax that would be imposed on any
such cash Distributions payable to it.






	 	8.6  	To the extent that, under the provisions of Sections 8.1 through 8.5, (a) a
transfer of cash or other property by Borrower would give rise to a Margin Excess or
(b) a transfer of cash or other property by Lender would give rise to a Margin Deficit,
Borrower or Lender (as the case may be) shall not be obligated to make such transfer of
cash or other property in accordance with such Sections, but shall in lieu of such
transfer immediately credit the amounts that would have been transferable under such
Sections to the account of Lender or Borrower (as the case may be).






	9.  	Mark to Market.






	 	9.1  	Borrower shall daily mark to market any Loan hereunder and in the event that at
the Close of Trading on any Business Day the Market Value of the Collateral for any
Loan to Borrower shall be less than 100% of the Market Value of all the outstanding
Loaned Securities subject to such Loan, Borrower shall transfer additional Collateral
no later than the Close of Business on the next Business Day so that the Market Value
of such additional Collateral, when added to the Market Value of the other Collateral
for such Loan, shall equal 100% of the Market Value of the Loaned Securities.
	 
	 	9.2  	In addition to any rights of Lender under Section 9.1, if at any time the
aggregate Market Value of all Collateral for Loans by Lender shall be less than the
Margin Percentage of the Market Value of all the outstanding Loaned Securities subject
to such Loans (a “Margin Deficit”), Lender may, by notice to Borrower, demand that
Borrower transfer to Lender additional Collateral so that the Market Value of such
additional Collateral, when added to the Market Value of all other Collateral




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	 	   	for
such Loans, shall equal or exceed the Margin Percentage of the Market Value of the
Loaned Securities.






	 	9.3  	Subject to Borrower’s obligations under Section 9.1, if at any time the Market
Value of all Collateral for Loans to Borrower shall be greater than the Margin
Percentage of the Market Value of all the outstanding Loaned Securities subject to such
Loans (a “Margin Excess”), Borrower may, by notice to Lender, demand that Lender
transfer to Borrower such amount of the Collateral selected by Borrower so that the
Market Value of the Collateral for such Loans, after deduction of such amounts, shall
thereupon not exceed the Margin Percentage of the Market Value of the Loaned
Securities.
	 
	 	9.4  	Borrower and Lender may agree, with respect to one or more Loans hereunder, to
mark the values to market pursuant to Sections 9.2 and 9.3 by separately valuing the
Loaned Securities lent and the Collateral given in respect thereof on a Loan-by-Loan
basis.
	 
	 	9.5  	Borrower and Lender may agree, with respect to any or all Loans hereunder, that
the respective rights of Lender and Borrower under Sections 9.2 and 9.3 may be
exercised only where a Margin Excess or Margin Deficit exceeds a specified dollar
amount or a specified percentage of the Market Value of the Loaned Securities under
such Loans (which amount or percentage shall be agreed to by Borrower and Lender prior
to entering into any such Loans).
	 
	 	9.6  	If any notice is given by Borrower or Lender under Sections 9.2 or 9.3 at or
before the Margin Notice Deadline on any day on which a transfer of Collateral may be
effected in accordance with Section 15, the party receiving such notice shall transfer
Collateral as provided in such Section no later than the Close of Business on such day.
If any such notice is given after the Margin Notice Deadline, the party receiving such
notice shall transfer such Collateral no later than the Close of Business on the next
Business Day following the day of such notice.






	10.  	Representations.






	   	The parties to this Agreement hereby make the following representations and warranties,
which shall continue during the term of any Loan hereunder:






	 	10.1  	Each party hereto represents and warrants that (a) it has the power to execute
and deliver this Agreement, to enter into the Loans contemplated hereby and to perform
its obligations hereunder, (b) it has taken all necessary action to authorize such
execution, delivery and performance, and (c) this Agreement constitutes a legal, valid
and binding obligation enforceable against it in accordance with its terms.
	 
	 	10.2  	Each party hereto represents and warrants that it has not relied on the other
for any tax or accounting advice concerning this Agreement and that it has made its




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	 	  	own
determination as to the tax and accounting treatment of any Loan and any dividends,
remuneration or other funds received hereunder.






	 	10.3  	Each party hereto represents and warrants that it is acting for its own account
unless it expressly specifies otherwise in writing and complies with Section 11.1(b).
	 
	 	10.4  	Borrower represents and warrants that it has, or will have at the time of
transfer of any Collateral, the right to grant a first priority security interest
therein subject to the terms and conditions hereof.
	 
	 	10.5  	(a) Borrower represents and warrants that it (or the person to whom it relends
the Loaned Securities) is borrowing or will borrow Loaned Securities that are Equity
Securities for the purpose of making delivery of such Loaned Securities in the case of
short sales, failure to receive securities required to be delivered, or as otherwise
permitted pursuant to Regulation T as in effect from time to time.
	 
	 	  	(b) Borrower and Lender may agree, as provided in Section 23.2, that Borrower shall
not be deemed to have made the representation or warranty in subsection (a) with
respect to any Loan.
	 
	 	10.6  	Lender represents and warrants that it has, or will have at the time of
transfer of any Loaned Securities, the right to transfer the Loaned Securities subject
to the terms and conditions hereof, and that it owns the Loaned Securities, free and
clear of all liens.






	11.  	Covenants.






	 	11.1  	Each party agrees to be liable as principal with respect to its obligations
hereunder.
	 
	 	11.2  	Promptly upon (and in any event within seven (7) Business Days after) demand by
Lender, Borrower shall furnish Lender with Borrower’s most recent publicly-available
financial statements and any other financial statements mutually agreed upon by
Borrower and Lender. Unless otherwise agreed, if Borrower is subject to the
requirements of Rule 17a-5(c) under the Exchange Act, it may satisfy the requirements
of this Section by furnishing Lender with its most recent statement required to be
furnished to customers pursuant to such Rule.






	12.  	Events of Default.
	 
	   	All Loans hereunder may, at the option of the non-defaulting party (which option shall be
deemed to have been exercised immediately upon the occurrence of an Act of Insolvency), be
terminated immediately upon the occurrence of any one or more of the following events
(individually, a “Default”):






	 	12.1  	if any Loaned Securities shall not be transferred to Lender upon termination of
the Loan as required by Section 6;




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	 	12.2  	if any Collateral shall not be transferred to Borrower upon termination of the
Loan as required by Sections 4.3 and 6;
	 
	 	12.3  	if either party shall fail to transfer Collateral as required by Section 9;
	 
	 	12.4  	if either party (a) shall fail to transfer to the other party amounts in
respect of Distributions required to be transferred by Section 8, (b) shall have been
notified of such failure by the other party prior to the Close of Business on any day,
and (c) shall not have cured such failure by the Cutoff Time on the next day after such
Close of Business on which a transfer of cash may be effected in accordance with
Section 15;
	 
	 	12.5  	if an Act of Insolvency occurs with respect to either party;
	 
	 	12.6  	if any representation made by either party in respect of this Agreement or any
Loan or Loans hereunder shall be incorrect or untrue in any material respect during the
term of any Loan hereunder;
	 
	 	12.7  	if either party notifies the other of its inability to or its intention not to
perform its obligations hereunder or otherwise disaffirms, rejects or repudiates any of
its obligations hereunder; or
	 
	 	12.8  	if either party (a) shall fail to perform any material obligation under this
Agreement not specifically set forth in clauses 12.1 through 12.7, above, including but
not limited to the payment of fees as required by Section 5, and the payment of
transfer taxes as required by Section 14, (b) shall have been notified of such failure
by the other party prior to the Close of Business on any day, and (c) shall not have
cured such failure by the Cutoff Time on the next day after such Close of Business on
which a transfer of cash may be effected in accordance with Section 15.






	   	The non-defaulting party shall (except upon the occurrence of an Act of Insolvency) give
notice as promptly as practicable to the defaulting party of the exercise of its option to
terminate all Loans hereunder pursuant to this Section 12.






	13.  	Remedies.






	 	13.1  	Upon the occurrence of a Default under Section 12 entitling Lender to terminate
all Loans hereunder, Lender shall have the right, in addition to any other remedies
provided herein, (a) to purchase a like amount of Loaned Securities (“Replacement
Securities”) in the principal market for such Loaned Securities in a commercially
reasonable manner, (b) to sell any Collateral in the principal market for such
Collateral in a commercially reasonable manner and (c) to apply and set off the
Collateral and any proceeds thereof (including any amounts drawn under a letter of
credit supporting any Loan) against the payment of the purchase price for
such Replacement Securities and any amounts due to Lender under Sections 5, 8, 14
and 16. In the event that Lender shall exercise such rights, Borrower’s obligation
to return a like amount of the Loaned Securities shall terminate.




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	 	   	Lender may
similarly apply the Collateral and any proceeds thereof to any other obligation of
Borrower under this Agreement, including Borrower’s obligations with respect to
Distributions paid to Borrower (and not forwarded to Lender) in respect of Loaned
Securities. In the event that (i) the purchase price of Replacement Securities
(plus all other amounts, if any, due to Lender hereunder) exceeds (ii) the amount of
the Collateral, Borrower shall be liable to Lender for the amount of such excess
together with interest thereon at a rate equal to (A) in the case of purchases of
Foreign Securities, LIBOR, (B) in the case of purchases of any other Securities (or
other amounts, if any, due to Lender hereunder), the Federal Funds Rate or (C) such
other rate as may be specified in Schedule B, in each case as such rate fluctuates
from day to day, from the date of such purchase until the date of payment of such
excess. As security for Borrower’s obligation to pay such excess, Lender shall
have, and Borrower hereby grants, a security interest in any property of Borrower
then held by or for Lender and a right of setoff with respect to such property and
any other amount payable by Lender to Borrower. The purchase price of Replacement
Securities purchased under this Section 13.1 shall include, and the proceeds of any
sale of Collateral shall be determined after deduction of, broker’s fees and
commissions and all other reasonable costs, fees and expenses related to such
purchase or sale (as the case may be). In the event Lender exercises its rights
under this Section 13.1, Lender may elect in its sole discretion, in lieu of
purchasing all or a portion of the Replacement Securities or selling all or a
portion of the Collateral, to be deemed to have made, respectively, such purchase of
Replacement Securities or sale of Collateral for an amount equal to the price
therefor on the date of such exercise obtained from a generally recognized source or
the last bid quotation from such a source at the most recent Close of Trading.
Subject to Section 17, upon the satisfaction of all obligations hereunder, any
remaining Collateral shall be returned to Borrower.
	 
	 	13.2  	Upon the occurrence of a Default under Section 12 entitling Borrower to
terminate all Loans hereunder, Borrower shall have the right, in addition to any other
remedies provided herein, (a) to purchase a like amount of Collateral (“Replacement
Collateral”) in the principal market for such Collateral in a commercially reasonable
manner, (b) to sell a like amount of the Loaned Securities in the principal market for
such Loaned Securities in a commercially reasonable manner and (c) to apply and set off
the Loaned Securities and any proceeds thereof against (i) the payment of the purchase
price for such Replacement Collateral, (ii) Lender’s obligation to return any cash or
other Collateral, and (iii) any amounts due to Borrower under Sections 5, 8 and 16. In
such event, Borrower may treat the Loaned Securities as its own and Lender’s obligation
to return a like amount of the Collateral shall terminate; provided, however, that
Lender shall immediately return any letters of credit supporting any Loan upon the
exercise or deemed exercise by Borrower of its termination rights under Section 12.
Borrower may similarly apply the Loaned Securities and any
proceeds thereof to any other obligation of Lender under this Agreement, including
Lender’s obligations with respect to Distributions paid to Lender (and not forwarded
to Borrower) in respect of Collateral. In the event that (i) the sales




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	 	   	price
received from such Loaned Securities is less than (ii) the purchase price of
Replacement Collateral (plus the amount of any cash or other Collateral not replaced
by Borrower and all other amounts, if any, due to Borrower hereunder), Lender shall
be liable to Borrower for the amount of any such deficiency, together with interest
on such amounts at a rate equal to (A) in the case of Collateral consisting of
Foreign Securities, LIBOR, (B) in the case of Collateral consisting of any other
Securities (or other amounts due, if any, to Borrower hereunder), the Federal Funds
Rate or (C) such other rate as may be specified in Schedule B, in each case as such
rate fluctuates from day to day, from the date of such sale until the date of
payment of such deficiency. As security for Lender’s obligation to pay such
deficiency, Borrower shall have, and Lender hereby grants, a security interest in
any property of Lender then held by or for Borrower and a right of setoff with
respect to such property and any other amount payable by Borrower to Lender. The
purchase price of any Replacement Collateral purchased under this Section 13.2 shall
include, and the proceeds of any sale of Loaned Securities shall be determined after
deduction of, broker’s fees and commissions and all other reasonable costs, fees and
expenses related to such purchase or sale (as the case may be). In the event
Borrower exercises its rights under this Section 13.2, Borrower may elect in its
sole discretion, in lieu of purchasing all or a portion of the Replacement
Collateral or selling all or a portion of the Loaned Securities, to be deemed to
have made, respectively, such purchase of Replacement Collateral or sale of Loaned
Securities for an amount equal to the price therefor on the date of such exercise
obtained from a generally recognized source or the last bid quotation from such a
source at the most recent Close of Trading. Subject to Section 17, upon the
satisfaction of all Lender’s obligations hereunder, any remaining Loaned Securities
(or remaining cash proceeds thereof) shall be returned to Lender.
	 
	 	13.3  	Unless otherwise agreed, the parties acknowledge and agree that (a) the Loaned
Securities and any Collateral consisting of Securities are of a type traded in a
recognized market, (b) in the absence of a generally recognized source for prices or
bid or offer quotations for any security, the non-defaulting party may establish the
source therefor in its reasonable discretion, and (c) all prices and bid and offer
quotations shall be increased to include accrued interest to the extent not already
included therein (except to the extent contrary to market practice with respect to the
relevant Securities).
	 
	 	13.4  	In addition to its rights hereunder, the non-defaulting party shall have any
rights otherwise available to it under any other agreement or applicable law.






	14.  	Transfer Taxes.
	 
	   	All transfer taxes with respect to the transfer of the Loaned Securities by Lender to
Borrower and by Borrower to Lender upon termination of the Loan and with respect to
the transfer of Collateral by Borrower to Lender and by Lender to Borrower upon termination
of the Loan or pursuant to Section 4.5 or Section 9 shall be paid by Borrower.




11









 












	15.  	Transfers.






	 	15.1  	All transfers by either Borrower or Lender of Loaned Securities or Collateral
consisting of “financial assets” (within the meaning of the UCC) hereunder shall be by
(a) in the case of certificated securities, physical delivery of certificates
representing such securities together with duly executed stock and bond transfer
powers, as the case may be, with signatures guaranteed by a bank or a member firm of
the New York Stock Exchange, Inc., (b) registration of an uncertificated security in
the transferee’s name by the issuer of such uncertificated security, (c) the crediting
by a Clearing Organization of such financial assets to the transferee’s “securities
account” (within the meaning of the UCC) maintained with such Clearing Organization, or
(d) such other means as Borrower and Lender may agree.
	 
	 	15.2  	All transfers of cash hereunder shall be by (a) wire transfer in immediately
available, freely transferable funds or (b) such other means as Borrower and Lender may
agree.
	 
	 	15.3  	All transfers of letters of credit from Borrower to Lender shall be made by
physical delivery to Lender of an irrevocable letter of credit issued by a “bank” as
defined in Section 3(a)(6)(A)-(C) of the Exchange Act. Transfers of letters of credit
from Lender to Borrower shall be made by causing such letters of credit to be returned
or by causing the amount of such letters of credit to be reduced to the amount required
after such transfer.
	 
	 	15.4  	A transfer of Securities, cash or letters of credit may be effected under this
Section 15 on any day except (a) a day on which the transferee is closed for business
at its address set forth in Schedule A hereto or (b) a day on which a Clearing
Organization or wire transfer system is closed, if the facilities of such Clearing
Organization or wire transfer system are required to effect such transfer.
	 
	 	15.5  	For the avoidance of doubt, the parties agree and acknowledge that the term
“securities,” as used herein (except in this Section 15), shall include any “security
entitlements” with respect to such securities (within the meaning of the UCC). In
every transfer of “financial assets” (within the meaning of the UCC) hereunder, the
transferor shall take all steps necessary (a) to effect a delivery to the transferee
under Section 8-301 of the UCC, or to cause the creation of a security entitlement in
favor of the transferee under Section 8-501 of the UCC, (b) to enable the transferee to
obtain “control” (within the meaning of Section 8-106 of the UCC), and (c) to provide
the transferee with comparable rights under any applicable foreign law or regulation.






	16.  	Contractual Currency.






	 	16.1  	Borrower and Lender agree that (a) any payment in respect of a Distribution
under Section 8 shall be made in the currency in which the underlying Distribution of
cash was made, (b) any return of cash shall be made in the




12









 












	 	   	currency in which the
underlying transfer of cash was made, and (c) any other payment of cash in connection
with a Loan under this Agreement shall be in the currency agreed upon by Borrower and
Lender in connection with such Loan (the currency established under clause (a), (b) or
(c) hereinafter referred to as the “Contractual Currency”). Notwithstanding the
foregoing, the payee of any such payment may, at its option, accept tender thereof in
any other currency; provided, however, that, to the extent permitted by applicable law,
the obligation of the payor to make such payment will be discharged only to the extent
of the amount of Contractual Currency that such payee may, consistent with normal
banking procedures, purchase with such other currency (after deduction of any premium
and costs of exchange) on the banking day next succeeding its receipt of such currency.
	 
	 	16.2  	If for any reason the amount in the Contractual Currency received under Section
16.1, including amounts received after conversion of any recovery under any judgment or
order expressed in a currency other than the Contractual Currency, falls short of the
amount in the Contractual Currency due in respect of this Agreement, the party required
to make the payment will (unless a Default has occurred and such party is the
non-defaulting party) as a separate and independent obligation and to the extent
permitted by applicable law, immediately pay such additional amount in the Contractual
Currency as may be necessary to compensate for the shortfall.
	 
	 	16.3  	If for any reason the amount in the Contractual Currency received under Section
16.1 exceeds the amount in the Contractual Currency due in respect of this Agreement,
then the party receiving the payment will (unless a Default has occurred and such party
is the non-defaulting party) refund promptly the amount of such excess.






	17.  	Single Agreement.
	 
	   	Borrower and Lender acknowledge that, and have entered into this Agreement in reliance on
the fact that, all Loans hereunder constitute a single business and contractual relationship
and have been entered into in consideration of each other. Accordingly, Borrower and Lender
hereby agree that payments, deliveries and other transfers made by either of them in respect
of any Loan shall be deemed to have been made in consideration of payments, deliveries and
other transfers in respect of any other Loan hereunder, and the obligations to make any such
payments, deliveries and other transfers may be applied against each other and netted. In
addition, Borrower and Lender acknowledge that, and have entered into this Agreement in
reliance on the fact that, all Loans hereunder have been entered into in consideration of
each other. Accordingly, Borrower and Lender hereby agree that (a) each shall perform all
of its obligations in respect of each Loan hereunder, and that a default in the performance
of any such obligation by Borrower or by Lender (the “Defaulting Party”) in any Loan
hereunder shall constitute a default by the
Defaulting Party under all such Loans hereunder, and (b) the non-defaulting party shall be
entitled to set off claims and apply property held by it in respect of any Loan




13









 












	   	hereunder
against obligations owing to it in respect of any other Loan with the Defaulting Party.
	 
	18.  	APPLICABLE LAW.
	 
	   	THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
	 
	19.  	Waiver.
	 
	   	The failure of a party to this Agreement to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term of this
Agreement. All waivers in respect of a Default must be in writing.
	 
	20.  	Survival of Remedies.
	 
	   	All remedies hereunder and all obligations with respect to any Loan shall survive the
termination of the relevant Loan, return of Loaned Securities or Collateral and termination
of this Agreement.
	 
	21.  	Notices and Other Communications.
	 
	   	Any and all notices, statements, demands or other communications hereunder may be given by a
party to the other by telephone, mail, facsimile, e-mail, electronic message, telegraph,
messenger or otherwise to the individuals and at the facsimile numbers and addresses
specified with respect to it in Schedule A hereto, or sent to such party at any other place
specified in a notice of change of number or address hereafter received by the other party.
Any notice, statement, demand or other communication hereunder will be deemed effective on
the day and at the time on which it is received or, if not received, on the day and at the
time on which its delivery was in good faith attempted; provided, however, that any notice
by a party to the other party by telephone shall be deemed effective only if (a) such notice
is followed by written confirmation thereof and (b) at least one of the other means of
providing notice that are specifically listed above has previously been attempted in good
faith by the notifying party.
	 
	22.  	SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.






	 	22.1  	EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING
IN NEW YORK CITY, AND ANY APPELLATE COURT FROM ANY SUCH COURT, SOLELY FOR THE PURPOSE
OF ANY SUIT, ACTION OR PROCEEDING BROUGHT TO ENFORCE ITS OBLIGATIONS HEREUNDER OR
RELATING IN ANY WAY TO THIS AGREEMENT OR ANY LOAN
HEREUNDER AND (B) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY
DEFENSE OF AN INCONVENIENT FORUM




14









 












	 	   	TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT AND ANY RIGHT OF JURISDICTION ON ACCOUNT OF ITS PLACE OF RESIDENCE OR
DOMICILE.
	 
	 	22.2  	EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.






	23.  	Miscellaneous.






	 	23.1  	Except as otherwise agreed by the parties, this Agreement supersedes any other
agreement between the parties hereto concerning loans of Securities between Borrower
and Lender. This Agreement shall not be assigned by either party without the prior
written consent of the other party and any attempted assignment without such consent
shall be null and void. Subject to the foregoing, this Agreement shall be binding upon
and shall inure to the benefit of Borrower and Lender and their respective heirs,
representatives, successors and assigns. This Agreement may be terminated by either
party upon notice to the other, subject only to fulfillment of any obligations then
outstanding. This Agreement shall not be modified, except by an instrument in writing
signed by the party against whom enforcement is sought. The parties hereto acknowledge
and agree that, in connection with this Agreement and each Loan hereunder, time is of
the essence. Each provision and agreement herein shall be treated as separate and
independent from any other provision herein and shall be enforceable notwithstanding
the unenforceability of any such other provision or agreement.






	24.  	Definitions.
	 
	   	For the purposes hereof:






	 	24.1  	“Act of Insolvency” shall mean, with respect to any party, (a) 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’s 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, (b) 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 (i) is
consented to or not timely contested by such party, (ii) 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 (iii) is not dismissed within 15 days, (c) the
making by such party of a general assignment for the benefit of creditors, or (d)




15









 












	 	   	the admission in writing by such party of such party’s inability to pay such party’s
debts as they become due.
	 
	 	24.2  	“Bankruptcy Code” shall have the meaning assigned in Section 25.1
	 
	 	24.3  	“Borrower” shall have the meaning assigned in Section 1.
	 
	 	24.4  	“Borrower Payment” shall have the meaning assigned in Section 8.5(a).
	 
	 	24.5  	“Broker-Dealer” shall mean any person that is a broker (including a municipal
securities broker), dealer, municipal securities dealer, government securities broker
or government securities dealer as defined in the Exchange Act, regardless of whether
the activities of such person are conducted in the United States or otherwise require
such person to register with the U.S. Securities and Exchange Commission or other
regulatory body.
	 
	 	24.6  	“Business Day” shall mean, with respect to any Loan hereunder, a day on which
regular trading occurs in the principal market for the Loaned Securities subject to
such Loan, provided, however, that for purposes of determining the Market Value of any
Securities hereunder, such term shall mean a day on which regular trading occurs in the
principal market for the Securities whose value is being determined. Notwithstanding
the foregoing, (a) for purposes of Section 9, “Business Day” shall mean any day on
which regular trading occurs in the principal market for any Loaned Securities or for
any Collateral consisting of Securities under any outstanding Loan hereunder and “next
Business Day” shall mean the next day on which a transfer of Collateral may be effected
in accordance with Section 15, and (b) in no event shall a Saturday or Sunday be
considered a Business Day.
	 
	 	24.7  	“Cash Collateral Fee” shall have the meaning assigned in Section 5.1.
	 
	 	24.8  	“Clearing Organization” shall mean (a) The Depository Trust Company, or, if
agreed to by Borrower and Lender, such other “securities intermediary” (within the
meaning of the UCC) at which Borrower (or Borrower’s agent) and Lender (or Lender’s
agent) maintain accounts, or (b) a Federal Reserve Bank, to the extent that it
maintains a book-entry system.
	 
	 	24.9  	“Close of Business” shall mean the time established by the parties in Schedule
B or otherwise orally or in writing or, in the absence of any such agreement, as shall
be determined in accordance with market practice.
	 
	 	24.10  	“Close of Trading” shall mean, with respect to any Security, the end of the
primary trading session established by the principal market for such Security on a
Business Day, unless otherwise agreed by the parties.
	 
	 	24.11  	“Collateral” shall mean cash, securities issued or guaranteed by the United
States government or its agencies or instrumentalities, or irrevocable bank letters of
credit issued by a person other than the Borrower or an affiliate thereof.




16









 












	 	24.12  	“Collateral Distributions” shall have the meaning assigned in Section 8.5(a).
	 
	 	24.13  	“Confirmation” shall have the meaning assigned in Section 2.1.
	 
	 	24.14  	“Contractual Currency” shall have the meaning assigned in Section 16.1.
	 
	 	24.15  	“Customer” shall mean any person that is a customer of Borrower under Rule
15c3-3 under the Exchange Act or any comparable regulation of the Secretary of the
Treasury under Section 15C of the Exchange Act (to the extent that Borrower is subject
to such Rule or comparable regulation).
	 
	 	24.16  	“Cutoff Time” shall mean a time on a Business Day by which a transfer of cash,
securities or other property must be made by Borrower or Lender to the other, as shall
be agreed by Borrower and Lender in Schedule B or otherwise orally or in writing or, in
the absence of any such agreement, as shall be determined in accordance with market
practice.
	 
	 	24.17  	“Default” shall have the meaning assigned in Section 12.
	 
	 	24.18  	“Defaulting Party” shall have the meaning assigned in Section 17.
	 
	 	24.19  	“Distribution” shall mean, with respect to any Security at any time, any
distribution made on or in respect of such Security, including, but not limited to: (a)
cash and all other property, (b) stock dividends, (c) Securities received as a result
of split ups of such Security and distributions in respect thereof, (d) interest
payments, (e) all rights to purchase additional Securities, and (f) any cash or other
consideration paid or provided by the issuer of such Security in exchange for any vote,
consent or the taking of any similar action in respect of such Security (regardless of
whether the record date for such vote, consent or other action falls during the term of
the Loan). In the event that the holder of a Security is entitled to elect the type of
distribution to be received from two or more alternatives, such election shall be made
by Lender, in the case of a Distribution in respect of the Loaned Securities, and by
Borrower, in the case of a Distribution in respect of Collateral.
	 
	 	24.20  	“Equity Security” shall mean any security (as defined in the Exchange Act)
other than a “nonequity security,” as defined in Regulation T.
	 
	 	24.21  	“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
	 
	 	24.22  	“Extension Deadline” shall mean, with respect to a letter of credit, the
Cutoff Time on the Business Day preceding the day on which the letter of credit
expires.
	 
	 	24.23  	“FDIA” shall have the meaning assigned in Section 25.4.
	 
	 	24.24  	“FDICIA” shall have the meaning assigned in Section 25.5.




17









 












	 	24.25  	“Federal Funds Rate” shall mean the rate of interest (expressed as an annual
rate), as published in Federal Reserve Statistical Release H.15(519) or any publication
substituted therefor, charged for federal funds (dollars in immediately available funds
borrowed by banks on an overnight unsecured basis) on that day or, if that day is not a
banking day in New York City, on the next preceding banking day.
	 
	 	24.26  	“Foreign Securities” shall mean, unless otherwise agreed, Securities that are
principally cleared and settled outside the United States.
	 
	 	24.27  	“Government Securities” shall mean government securities as defined in Section
3(a)(42)(A)-(C) of the Exchange Act.
	 
	 	24.28  	“Lender” shall have the meaning assigned in Section 1.
	 
	 	24.29  	“Lender Payment” shall have the meaning assigned in Section 8.5(a).
	 
	 	24.30  	“LIBOR” shall mean for any date, the offered rate for deposits in U.S. dollars
for a period of three months which appears on the Reuters Screen LIBO page as of 11:00
a.m., London time, on such date (or, if at least two such rates appear, the arithmetic
mean of such rates).
	 
	 	24.31  	“Loan” shall have the meaning assigned in Section 1.
	 
	 	24.32  	“Loan Fee” shall have the meaning assigned in Section 5.1.
	 
	 	24.33  	“Loaned Security” shall mean any Security transferred in a Loan hereunder
until such Security (or an identical Security) is transferred back to Lender hereunder,
except that, if any new or different Security shall be exchanged for any Loaned
Security by recapitalization, merger, consolidation or other corporate action, such new
or different Security shall, effective upon such exchange, be deemed to become a Loaned
Security in substitution for the former Loaned Security for which such exchange is
made. For purposes of return of Loaned Securities by Borrower or purchase or sale of
Securities pursuant to Section 13, such term shall include Securities of the same
issuer, class and quantity as the Loaned Securities, as adjusted pursuant to the
preceding sentence.
	 
	 	24.34  	“Margin Deficit” shall have the meaning assigned in Section 9.2.
	 
	 	24.35  	“Margin Excess” shall have the meaning assigned in Section 9.3.
	 
	 	24.36  	“Margin Notice Deadline” shall mean the time agreed to by the parties in the
relevant Confirmation, Schedule B hereto or otherwise as the deadline for giving notice
requiring same-day satisfaction of mark-to-market obligations as provided in Section 9
hereof (or, in the absence of any such agreement, the deadline for such purposes
established in accordance with market practice).
	 
	 	24.37  	“Margin Percentage” shall mean, with respect to any Loan as of any date, a
percentage agreed by Borrower and Lender, which shall be not less than 100%,




18









 












	 	   	unless (a)
Borrower and Lender agree otherwise, as provided in Section 23.2, and (b) Lender is not
a Customer. Notwithstanding the previous sentence, in the event that the writing or
other confirmation evidencing the agreement described in clause (a) does not set out
such percentage with respect to any such Loan, the Margin Percentage shall not be a
percentage less than the percentage obtained by dividing (i) the Market Value of the
Collateral required to be transferred by Borrower to Lender with respect to such Loan
at the commencement of the Loan by (ii) the Market Value of the Loaned Securities
required to be transferred by Lender to Borrower at the commencement of the Loan.
	 
	 	24.38  	“Market Value” shall have the meaning set forth in Annex I or otherwise agreed
to by Borrower and Lender in writing. Notwithstanding the previous sentence, in the
event that the meaning of Market Value has not been set forth in Annex I or in any
other writing, as described in the previous sentence, Market Value shall be determined
in accordance with market practice for the Securities, based on the price for such
Securities as of the most recent Close of Trading obtained from a generally recognized
source agreed to by the parties or the closing bid quotation at the most recent Close
of Trading obtained from such source, plus accrued interest to the extent not included
therein (other than any interest credited or transferred to, or applied to the
obligations of, the other party pursuant to Section 8, unless market practice with
respect to the valuation of such Securities in connection with securities loans is to
the contrary). If the relevant quotation did not exist at such Close of Trading, then
the Market Value shall be the relevant quotation on the next preceding Close of Trading
at which there was such a quotation. The determinations of Market Value provided for
in Annex I or in any other writing described in the first sentences of this Section
24.38 or, if applicable, in the preceding sentence shall apply for all purposes under
this Agreement, except for purposes of Section 13.
	 
	 	24.39  	“Payee” shall have the meaning assigned in Section 8.5(a).
	 
	 	24.40  	“Payor” shall have the meaning assigned in Section 8.5(a).
	 
	 	24.41  	“Plan” shall mean: (a) any “employee benefit plan” as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974 which is subject to Part 4 of
Subtitle B of Title I of such Act; (b) any “plan” as defined in Section 4975(e)(1) of
the Internal Revenue Code of 1986; or (c) any entity the assets of which are deemed to
be assets of any such “employee benefit plan” or “plan” by reason of the Department of
Labor’s plan asset regulation, 29 C.F.R. Section 2510.3-101.
	 
	 	24.42  	“Regulation T” shall mean Regulation T of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
	 
	 	24.43  	“Retransfer” shall mean, with respect to any Collateral, to pledge, repledge,
hypothecate, rehypothecate, lend, relend, sell or otherwise transfer such




19









 












	 	   	Collateral,
or to re-register any such Collateral evidenced by physical certificates in any name
other than Borrower’s.
	 
	 	24.44  	“Securities” shall mean securities or, if agreed by the parties in writing,
other assets.
	 
	 	24.45  	“Securities Distributions” shall have the meaning assigned in Section 8.5(a).
	 
	 	24.46  	“Tax” shall have the meaning assigned in Section 8.5(a).
	 
	 	24.47  	“UCC” shall mean the New York Uniform Commercial Code.






	25.  	Intent.






	 	25.1  	The parties recognize that each Loan hereunder is a “securities contract,” as
such term is defined in Section 741 of Title 11 of the United States Code (the
“Bankruptcy Code”), as amended (except insofar as the type of assets subject to the
Loan would render such definition inapplicable).
	 
	 	25.2  	It is understood that each and every transfer of funds, securities and other
property under this Agreement and each Loan hereunder is a “settlement payment” or a
“margin payment,” as such terms are used in Sections 362(b)(6) and 546(e) of the
Bankruptcy Code.
	 
	 	25.3  	It is understood that the rights given to Borrower and Lender hereunder upon a
Default by the other constitute the right to cause the liquidation of a securities
contract and the right to set off mutual debts and claims in connection with a
securities contract, as such terms are used in Sections 555 and 362(b)(6) of the
Bankruptcy Code.
	 
	 	25.4  	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 Loan hereunder is a “securities contract” and “qualified
financial contract,” as such terms are defined in the FDIA and any rules, orders or
policy statements thereunder (except insofar as the type of assets subject to the Loan
would render such definitions inapplicable).
	 
	 	25.5  	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 obligation under any Loan 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).
	 
	 	25.6  	Except to the extent required by applicable law or regulation or as otherwise
agreed, Borrower and Lender agree that Loans hereunder shall in no event be “exchange
contracts” for purposes of the rules of any securities exchange and that




20









 












	 	   	Loans
hereunder shall not be governed by the buy-in or similar rules of any such exchange,
registered national securities association or other self-regulatory organization.






	26.  	DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS.






	 	26.1  	WITHOUT WAIVING ANY RIGHTS GIVEN TO LENDER HEREUNDER, IT IS UNDERSTOOD AND
AGREED THAT THE PROVISIONS OF THE SECURITIES INVESTOR PROTECTION ACT OF 1970 MAY NOT
PROTECT LENDER WITH RESPECT TO LOANED SECURITIES HEREUNDER AND THAT, THEREFORE, THE
COLLATERAL DELIVERED TO LENDER MAY CONSTITUTE THE ONLY SOURCE OF SATISFACTION OF
BORROWER’S OBLIGATIONS IN THE EVENT BORROWER FAILS TO RETURN THE LOANED SECURITIES.
	 
	 	26.2  	LENDER ACKNOWLEDGES THAT, IN CONNECTION WITH LOANS OF GOVERNMENT SECURITIES AND
AS OTHERWISE PERMITTED BY APPLICABLE LAW, SOME SECURITIES PROVIDED BY BORROWER AS
COLLATERAL UNDER THIS AGREEMENT MAY NOT BE GUARANTEED BY THE UNITED STATES.





(Signature Page Follows)




21









 








     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.



LENDER:




LORBER EPSILON 1999 LIMITED PARTNERSHIP




By: LORBER EPSILON 1999 LLC, Its General Partner





		
	By: 	/s/ Howard M. Lorber



Title: Manager

Date: April 13, 2005





BORROWER:

JEFFERIES & COMPANY, INC.




By: /s/ Andrew Whittaker






Title: Vice Chairman




Date: April 13, 2005






22









 





Annex I




Market Value




Unless otherwise agreed by Borrower and Lender:





	1.  	If the principal market for the Securities to be valued is a national securities exchange in
the United States, their Market Value shall be determined by their last sale price on such
exchange at the most recent Close of Trading or, if there was no sale on the Business Day of
the most recent Close of Trading, by the last sale price at the Close of Trading on the next
preceding Business Day on which there was a sale on such exchange, all as quoted on the
Consolidated Tape or, if not quoted on the Consolidated Tape, then as quoted by such exchange.






	2.  	If the principal market for the Securities to be valued is the over-the-counter market, and
the Securities are quoted on The Nasdaq Stock Market (“Nasdaq”), their Market Value shall be
the last sale price on Nasdaq at the most recent Close of Trading or, if the Securities are
issues for which last sale prices are not quoted on Nasdaq, the last bid price at such Close
of Trading. If the relevant quotation did not exist at such Close of Trading, then the Market
Value shall be the relevant quotation on the next preceding Close of Trading at which there
was such a quotation.






	3.  	Except as provided in Section 4 of this Annex, if the principal market for the Securities to
be valued is the over-the-counter market, and the Securities are not quoted on Nasdaq, their
Market Value shall be determined in accordance with market practice for such Securities, based
on the price for such Securities as of the most recent Close of Trading obtained from a
generally recognized source agreed to by the parties or the closing bid quotation at the most
recent Close of Trading obtained from such a source. If the relevant quotation did not exist
at such Close of Trading, then the Market Value shall be the relevant quotation on the next
preceding Close of Trading at which there was such a quotation.






	4.  	If the Securities to be valued are Foreign Securities, their Market Value shall be determined
as of the most recent Close of Trading in accordance with market practice in the principal
market for such Securities.






	5.  	The Market Value of a letter of credit shall be the undrawn amount thereof.







	6.  	All determinations of Market Value under Sections 1 through 4 of this Annex shall include,
where applicable, accrued interest to the extent not already included therein (other than any
interest credited or transferred to, or applied to the obligations of, the other party
pursuant to Section 8 of the Agreement), unless market practice with respect to the valuation
of such Securities in connection with securities loans is to the contrary.






	7.  	The determinations of Market Value provided for in this Annex shall apply for all purposes
under the Agreement, except for purposes of Section 13 of the Agreement.




Annex I-1









 











Annex II




Term Loans




This Annex sets forth additional terms and conditions governing Loans designated as “Term Loans” in
which Lender lends to Borrower a specific amount of Loaned Securities (“Term Loan Amount”) against
a pledge of cash Collateral by Borrower for an agreed upon Cash Collateral Fee until a scheduled
termination date (“Termination Date”). Unless otherwise defined, capitalized terms used but not
defined in this Annex shall have the meanings assigned in the Securities Loan Agreement of which it
forms a part (such agreement, together with this Annex and any other annexes, schedules or
exhibits, referred to as the “Agreement”).




	1.  	The terms of this Annex shall apply to Loans of Equity Securities only if they are designated
as Term Loans in a Confirmation therefor provided pursuant to the Agreement and executed by
each party, in a schedule to the Agreement or in this Annex. All Loans of Securities other
than Equity Securities shall be “Term Loans” subject to this Annex, unless otherwise agreed in
a Confirmation or other writing.
	 
	2.  	The Confirmation for a Term Loan shall set forth, in addition to any terms required to be set
forth therein under the Agreement, the Term Loan Amount, the Cash Collateral Fee and the
Termination Date. Lender and Borrower agree that, except as specifically provided in this
Annex, each Term Loan shall be subject to all terms and conditions of the Agreement,
including, without limitation, any provisions regarding the parties’ respective rights to
terminate a Loan.
	 
	3.  	In the event that either party exercises its right under the Agreement to terminate a Term
Loan on a date (the “Early Termination Date”) prior to the Termination Date, Lender and
Borrower shall, unless otherwise agreed, use their best efforts to negotiate in good faith a
new Term Loan (the “Replacement Loan”) of comparable or other Securities, which shall be
mutually agreed upon by the parties, with a Market Value equal to the Market Value of the Term
Loan Amount under the terminated Term Loan (the “Terminated Loan”) as of the Early Termination
Date. Such agreement shall, in accordance with Section 2 of this Annex, be confirmed in a new
Confirmation at the commencement of the Replacement Loan and be executed by each party. Each
Replacement Loan shall be subject to the same terms as the corresponding Terminated Loan,
other than with respect to the commencement date and the identity of the Loaned Securities.
The Replacement Loan shall commence on the date on which the parties agree which Securities
shall be the subject of the Replacement Loan and shall be scheduled to terminate on the
scheduled Termination Date of the Terminated Loan.
	 
	4.  	Borrower and Lender agree that, except as provided in Section 5 of this Annex, if the parties
enter into a Replacement Loan, the Collateral for the related Terminated Loan need not be
returned to Borrower and shall instead serve as Collateral for such Replacement Loan.
	 
	5.  	If the parties are unable to negotiate and enter into a Replacement Loan for some or all of
the Term Loan Amount on or before the Early Termination Date, (a) the party requesting




Annex II-1









 












	   	termination of the Terminated Loan shall pay to the other party a Breakage Fee computed in
accordance with Section 6 of this Annex with respect to that portion of the Term Loan Amount
for which a Replacement Loan is not entered into and (b) upon the transfer by Borrower to
Lender of the Loaned Securities subject to the Terminated Loan, Lender shall transfer to
Borrower Collateral for the Terminated Loan in accordance with and to the extent required
under the Agreement, provided that no Default has occurred with respect to Borrower.
	 
	6.  	For purposes of this Annex, the term “Breakage Fee” shall mean a fee agreed by Borrower and
Lender in the Confirmation or otherwise orally or in writing. In the absence of any such
agreement, the term “Breakage Fee” shall mean, with respect to Loans of Government Securities,
a fee equal to the sum of (a) the cost to the non-terminating party (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 the termination of the
Terminated Loan, and (b) any other loss, damage, cost or expense directly arising or resulting
from the termination of the Terminated Loan that is incurred by the non-terminating party
(other than consequential losses or costs for lost profits or lost opportunities), as
determined by the non-terminating party in a commercially reasonable manner, and (c) any other
amounts due and payable by the terminating party to the non-terminating party under the
Agreement on the Early Termination Date.




Annex II-2









 











Schedule A




Names and Addresses for Communications





		
	                     	Lorber Epsilon 1999 Limited Partnership

c/o Vector Group Ltd.

100 S. E. Second Street, 32nd Floor

Miami, Florida 33131

Attention: Howard M. Lorber


Jefferies & Company, Inc.

11100 Santa Monica Boulevard, 10th Floor

Los Angeles, California 90025

Attention: Ronald Johnson






Schedule A-1









 








Schedule B




Supplemental Provisions





	A.  	IDENTIFICATION AND AMOUNT OF LOANED SECURITIES:
	 
	   	Issuer:           Vector Group Ltd.

Amount:        Up to 300,000 shares of common stock of the Issuer
	 
	B.  	COLLATERAL:
	 
	   	Cash in an amount equal to the daily Market Value of the Loaned Securities
	 
	C.  	FEES:
	 
	   	Loan Fee: ___%
	 
	   	Cash Collateral Fee: ___%





     At all times, the net of the two fees should result in a net benefit of 25 basis points to be
retained by Lender.




Schedule B-1