Exhibit 10.20


 


	
  

  	
   

  	
  

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  September  1996
  Version

  



 


	
  Dated as of

  	
  June 30,
  2009

  
	
   

  	
   

  
	
  Between:

  	
  FSA
  Capital Management Services LLC and FSA Capital Markets Services LLC

  
	
   

  	
   

  
	
  and

  	
  FSA
  Asset Management LLC

  



 


1.     Applicability


 


From
time to time the parties hereto may enter into transactions in which one party
(“Seller”) agrees to transfer to the other (“Buyer”) securities or other assets
(“Securities”) against the transfer of funds by Buyer, with a simultaneous
agreement by Buyer to transfer to Seller such Securities at a date certain or
on demand, against the transfer of funds by Seller. Each such transaction shall
be referred to herein as a “Transaction” and, unless otherwise agreed in
writing, shall be governed by this Agreement, including any supplemental terms
or conditions contained in Annex I hereto and in any other annexes identified
herein or therein as applicable hereunder.


 


2.     Definitions


 


(a)   “Act of
Insolvency”, with respect to any party, (i) the commencement by such party
as debtor of any case or proceeding under any bankruptcy, insolvency,
reorganization, liquidation, moratorium, dissolution, delinquency or similar
law, or such party seeking the appointment or election of a receiver,
conservator, trustee, custodian or similar official for such party or any
substantial part of its property, or the convening of any meeting of creditors
for purposes of commencing any such case or proceeding or seeking such an
appointment or election, (ii) the commencement of any such case or
proceeding against such party, or another seeking such an appointment or
election, or the filing against a party of an application for a protective
decree under the provisions of the Securities Investor Protection Act of 1970,
which (A) is consented to or not timely contested by such party, (B) results
in the entry of an order for relief, such an appointment or election, the
issuance of such a protective decree or the entry of an order having a similar
effect, or (C) is not dismissed within 15 days, (iii) the making by
such party of a general assignment for the benefit of creditors, or (iv) the
admission in writing by such party of such party’s inability to pay such party’s
debts as they become due;


 


(b)   “Additional
Purchased Securities”, Securities provided by Seller to Buyer pursuant
to Paragraph 4(a) hereof;


 

















 


(c)   “Buyer’s
Margin Amount”, with respect to any Transaction as of any date, the amount
obtained by application of the Buyer’s Margin Percentage to the Repurchase
Price for such Transaction as of such date;


 


(d)   “Buyer’s
Margin Percentage”, with respect to any Transaction as of any date, a
percentage (which may be equal to the Seller’s Margin Percentage) agreed to by
Buyer and Seller or, in the absence of any such agreement, the percentage
obtained by dividing the Market Value of the Purchased Securities on the
Purchase Date by the Purchase Price on the Purchase Date for such Transaction;


 


(e)   “Confirmation”,
the meaning specified in Paragraph 3(b) hereof;


 


(f)    “Income”,
with respect to any Security at any time, any principal thereof and all
interest, dividends or other distributions thereon;


 


(g)   “Margin
Deficit”, the meaning specified in Paragraph 4(a) hereof;


 


(h)   “Margin
Excess”, the meaning specified in Paragraph 4(b) hereof;


 


(i)    “Margin
Notice Deadline”, the time agreed to by the parties in the relevant
Confirmation, Annex I hereto or otherwise as the deadline for giving notice
requiring same-day satisfaction of margin maintenance obligations as provided
in Paragraph 4 hereof (or, in the absence of any such agreement, the deadline
for such purposes established in accordance with market practice);


 


(j)    “Market
Value”, with respect to any Securities as of any date, the price for such
Securities on such date obtained from a generally recognized source agreed to
by the parties or the most recent closing bid quotation from such a source,
plus accrued Income to the extent not included therein (other than any Income
credited or transferred to, or applied to the obligations of, Seller pursuant
to Paragraph 5 hereof) as of such date (unless contrary to market practice for
such Securities);


 


(k)   “Price
Differential”, with respect to any Transaction as of any date, the aggregate
amount obtained by daily application of the Pricing Rate for such Transaction
to the Purchase Price for such Transaction on a 360 day per year basis for the
actual number of days during the period commencing on (and including) the
Purchase Date for such Transaction and ending on (but excluding) the date of
determination (reduced by any amount of such Price Differential previously paid
by Seller to Buyer with respect to such Transaction);


 


(l)    “Pricing
Rate”, the per annum percentage rate for determination of the Price
Differential;


 


(m)  “Prime Rate”,
the prime rate of U.S. commercial banks as published in The Wall Street Journal
(or, if more than one such rate is published, the average of such rates);


 


(n)   “Purchase
Date”, the date on which Purchased Securities are to be transferred by Seller
to Buyer;


 


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(o)   “Purchase
Price”, (i) on the Purchase Date, the price at which Purchased Securities
are transferred by Seller to Buyer, and (ii) thereafter, except where
Buyer and Seller agree otherwise, such price increased by the amount of any
cash transferred by Buyer to Seller pursuant to Paragraph 4(b) hereof and
decreased by the amount of any cash transferred by Seller to Buyer pursuant to
Paragraph 4(a) hereof or applied to reduce Seller’s obligations under
clause (ii) of Paragraph 5 hereof;


 


(p)   “Purchased
Securities”, the Securities transferred by Seller to Buyer in a Transaction
hereunder, and any Securities substituted therefor in accordance with Paragraph
9 hereof. The term “Purchased Securities” with respect to any Transaction at
any time also shall include Additional Purchased Securities delivered pursuant
to Paragraph 4(a) hereof and shall exclude Securities returned pursuant to
Paragraph 4(b) hereof;


 


(q)   “Repurchase
Date”, the date on which Seller is to repurchase the Purchased Securities from
Buyer, including any date determined by application of the provisions of
Paragraph 3(c) or 11 hereof;


 


(r)    “Repurchase
Price”, the price at which Purchased Securities are to be transferred from
Buyer to Seller upon termination of a Transaction, which will be determined in
each case (including Transactions terminable upon demand) as the sum of the
Purchase Price and the Price Differential as of the date of such determination;


 


(s)   “Seller’s
Margin Amount”, with respect to any Transaction as of any date, the amount
obtained by application of the Seller’s Margin Percentage to the Repurchase
Price for such Transaction as of such date;


 


(t)    “Seller’s
Margin Percentage”, with respect to any Transaction as of any date, a
percentage (which may be equal to the Buyer’s Margin Percentage) agreed to by
Buyer and Seller or, in the absence of any such agreement, the percentage
obtained by dividing the Market Value of the Purchased Securities on the
Purchase Date by the Purchase Price on the Purchase Date for such Transaction.


 


3.     Initiation; Confirmation; Termination


 


(a)   An agreement
to enter into a Transaction may be made orally or in writing at the initiation
of either Buyer or Seller. On the Purchase Date for the Transaction, the
Purchased Securities shall be transferred to Buyer or its agent against the
transfer of the Purchase Price to an account of Seller.


 


(b)   Upon
agreeing to enter into a Transaction hereunder, Buyer or Seller (or both), as
shall be agreed, shall promptly deliver to the other party a written
confirmation of each Transaction (a “Confirmation”). The Confirmation shall
describe the Purchased Securities (including CUSIP number, if any), identify
Buyer and Seller and set forth (i) the Purchase Date, (ii) the
Purchase Price, (iii) the Repurchase Date, unless the Transaction is to be
terminable on demand, (iv) the Pricing Rate or Repurchase Price applicable
to the Transaction, and (v) any additional terms or conditions of the
Transaction not inconsistent with this Agreement. The Confirmation, together
with this Agreement, shall constitute conclusive evidence of the terms agreed
between Buyer and Seller with respect to the Transaction to which the
Confirmation relates, unless with


 


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respect to the Confirmation specific objection is made promptly after
receipt thereof. In the event of any conflict between the terms of such
Confirmation and this Agreement, this Agreement shall prevail.


 


(c)   In the case
of Transactions terminable upon demand, such demand shall be made by Buyer or
Seller, no later than such time as is customary in accordance with market
practice, by telephone or otherwise on or prior to the business day on which
such termination will be effective. On the date specified in such demand, or on
the date fixed for termination in the case of Transactions having a fixed term,
termination of the Transaction will be effected by transfer to Seller or its
agent of the Purchased Securities and any Income in respect thereof received by
Buyer (and not previously credited or transferred to, or applied to the
obligations of, Seller pursuant to Paragraph 5 hereof) against the transfer of
the Repurchase Price to an account of Buyer.


 


4.     Margin Maintenance


 


(a)   If at any
time the aggregate Market Value of all Purchased Securities subject to all
Transactions in which a particular party hereto is acting as Buyer is less than
the aggregate Buyer’s Margin Amount for all such Transactions (a “Margin
Deficit”), then Buyer may by notice to Seller require Seller in such
Transactions, at Seller’s option, to transfer to Buyer cash or additional
Securities reasonably acceptable to Buyer (“Additional Purchased Securities”),
so that the cash and aggregate Market Value of the Purchased Securities,
including any such Additional Purchased Securities, will thereupon equal or
exceed such aggregate Buyer’s Margin Amount (decreased by the amount of any
Margin Deficit as of such date arising from any Transactions in which such
Buyer is acting as Seller).


 


(b)   If at any
time the aggregate Market Value of all Purchased Securities subject to all
Transactions in which a particular party hereto is acting as Seller exceeds the
aggregate Seller’s Margin Amount for all such Transactions at such time (a “Margin
Excess”), then Seller may by notice to Buyer require Buyer in such
Transactions, at Buyer’s option, to transfer cash or Purchased Securities to
Seller, so that the aggregate Market Value of the Purchased Securities, after
deduction of any such cash or any Purchased Securities so transferred, will
thereupon not exceed such aggregate Seller’s Margin Amount (increased by the
amount of any Margin Excess as of such date arising from any Transactions in
which such Seller is acting as Buyer).


 


(c)   If any
notice is given by Buyer or Seller under subparagraph (a) or (b) of
this Paragraph at or before the Margin Notice Deadline on any business day, the
party receiving such notice shall transfer cash or Additional Purchased
Securities as provided in such subparagraph no later than the close of business
in the relevant market on such day. If any such notice is given after the
Margin Notice Deadline, the party receiving such notice shall transfer such
cash or Securities no later than the close of business in the relevant market
on the next business day following such notice.


 


(d)   Any cash
transferred pursuant to this Paragraph shall be attributed to such Transactions
as shall be agreed upon by Buyer and Seller.


 


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(e)   Seller and
Buyer may agree, with respect to any or all Transactions hereunder, that the
respective rights of Buyer or Seller (or both) under subparagraphs (a) and
(b) of this Paragraph may be exercised only where a Margin Deficit or
Margin Excess, as the case may be, exceeds a specified dollar amount or a
specified percentage of the Repurchase Prices for such Transactions (which
amount or percentage shall be agreed to by Buyer and Seller prior to entering
into any such Transactions).


 


(f)    Seller and
Buyer may agree, with respect to any or all Transactions hereunder, that the respective
rights of Buyer and Seller under subparagraphs (a) and (b) of this
Paragraph to require the elimination of a Margin Deficit or a Margin Excess, as
the case may be, may be exercised whenever such a Margin Deficit or Margin
Excess exists with respect to any single Transaction hereunder (calculated
without regard to any other Transaction outstanding under this Agreement).


 


5.     Income Payments


 


Seller
shall be entitled to receive an amount equal to all Income paid or distributed
on or in respect of the Securities that is not otherwise received by Seller, to
the full extent it would be so entitled if the Securities had not been sold to
Buyer. Buyer shall, as the parties may agree with respect to any Transaction
(or, in the absence of any such agreement, as Buyer shall reasonably determine
in its discretion), on the date such Income is paid or distributed either (i) transfer
to or credit to the account of Seller such Income with respect to any Purchased
Securities subject to such Transaction or (ii) with respect to Income paid
in cash, apply the Income payment or payments to reduce the amount, if any, to
be transferred to Buyer by Seller upon termination of such Transaction. Buyer
shall not be obligated to take any action pursuant to the preceding sentence (A) to
the extent that such action would result in the creation of a Margin Deficit,
unless prior thereto or simultaneously therewith Seller transfers to Buyer cash
or Additional Purchased Securities sufficient to eliminate such Margin Deficit,
or (B) if an Event of Default with respect to Seller has occurred and is
then continuing at the time such Income is paid or distributed.


 


6.     Security Interest


 


Although
the parties intend that all Transactions hereunder be sales and purchases and
not loans, in the event any such Transactions are deemed to be loans, Seller
shall be deemed to have pledged to Buyer as security for the performance by
Seller of its obligations under each such Transaction, and shall be deemed to
have granted to Buyer a security interest in, all of the Purchased Securities
with respect to all Transactions hereunder and all Income thereon and other
proceeds thereof.


 


7.     Payment and Transfer


 


Unless
otherwise mutually agreed, all transfers of funds hereunder shall be in
immediately available funds. All Securities transferred by one party hereto to
the other party (i) shall be in suitable form for transfer or shall be
accompanied by duly executed instruments of transfer or assignment in blank and
such other documentation as the party receiving possession may reasonably
request, (ii) shall be transferred on the book-entry system of a Federal
Reserve Bank, or (iii) shall be transferred by any other method mutually
acceptable to Seller and Buyer.


 


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8.     Segregation of Purchased Securities


 


To
the extent required by applicable law, all Purchased Securities in the
possession of Seller shall be segregated from other securities in its
possession and shall be identified as subject to this Agreement. Segregation
may be accomplished by appropriate identification on the books and records of
the holder, including a financial or securities intermediary or a clearing
corporation. All of Seller’s interest in the Purchased Securities shall pass to
Buyer on the Purchase Date and, unless otherwise agreed by Buyer and Seller,
nothing in this Agreement shall preclude Buyer from engaging in repurchase
transactions with the Purchased Securities or otherwise selling, transferring,
pledging or hypothecating the Purchased Securities, but no such transaction
shall relieve Buyer of its obligations to transfer Purchased Securities to
Seller pursuant to Paragraph 3, 4 or 11 hereof, or of Buyer’s obligation to
credit or pay Income to, or apply Income to the obligations of, Seller pursuant
to Paragraph 5 hereof.


 


Required Disclosure for Transactions in Which the Seller
Retains Custody of the Purchased Securities


 


Seller
is not permitted to substitute other securities for those subject to this
Agreement and therefore must keep Buyer’s securities segregated at all times,
unless in this Agreement Buyer grants Seller the right to substitute other
securities. If Buyer grants the right to substitute, this means that Buyer’s
securities will likely be commingled with Seller’s own securities during the
trading day. Buyer is advised that, during any trading day that Buyer’s
securities are commingled with Seller’s securities, they [will]* [may]** be
subject to liens granted by Seller to [its clearing bank]* [third parties]**
and may be used by Seller for deliveries on other securities transactions.
Whenever the securities are commingled, Seller’s ability to resegregate
substitute securities for Buyer will be subject to Seller’s ability to satisfy
[the clearing]* [any]** lien or to obtain substitute securities.


 






*
Language to be used under 17 C.F.R. ß403.4(e) if Seller is a government
securities broker or dealer other than a financial institution.


 


**
Language to be used under 17 C.F.R. ß403.5(d) if Seller is a financial
institution.


 


9.     Substitution


 


(a)   Seller may,
subject to agreement with and acceptance by Buyer, substitute other Securities
for any Purchased Securities. Such substitution shall be made by transfer to
Buyer of such other Securities and transfer to Seller of such Purchased Securities.
After substitution, the substituted Securities shall be deemed to be Purchased
Securities.


 


(b)   In
Transactions in which Seller retains custody of Purchased Securities, the
parties expressly agree that Buyer shall be deemed, for purposes of subparagraph
(a) of this Paragraph, to have agreed to and accepted in this Agreement
substitution by Seller of other Securities for Purchased Securities; provided,
however, that such other Securities shall have a Market Value at least equal to
the Market Value of the Purchased Securities for which they are substituted.


 


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10.  Representations


 


Each
of Buyer and Seller represents and warrants to the other that (i) it is
duly authorized to execute and deliver this Agreement, to enter into
Transactions contemplated hereunder and to perform its obligations hereunder
and has taken all necessary action to authorize such execution, delivery and
performance, (ii) it will engage in such Transactions as principal (or, if
agreed in writing, in the form of an annex hereto or otherwise, in advance of
any Transaction by the other party hereto, as agent for a disclosed principal),
(iii) the person signing this Agreement on its behalf is duly authorized
to do so on its behalf (or on behalf of any such disclosed principal), (iv) it
has obtained all authorizations of any governmental body required in connection
with this Agreement and the Transactions hereunder and such authorizations are
in full force and effect and (v) the execution, delivery and performance
of this Agreement and the Transactions hereunder will not violate any law,
ordinance, charter, bylaw or rule applicable to it or any agreement by
which it is bound or by which any of its assets are affected. On the Purchase
Date for any Transaction Buyer and Seller shall each be deemed to repeat all
the foregoing representations made by it.


 


11.  Events of Default


 


In
the event that (i) Seller fails to transfer or Buyer fails to purchase
Purchased Securities upon the applicable Purchase Date, (ii) Seller fails
to repurchase or Buyer fails to transfer Purchased Securities upon the
applicable Repurchase Date, (iii) Seller or Buyer fails to comply with
Paragraph 4 hereof, (iv) Buyer fails, after one business day’s notice, to
comply with Paragraph 5 hereof, (v) an Act of Insolvency occurs with
respect to Seller or Buyer, (vi) any representation made by Seller or
Buyer shall have been incorrect or untrue in any material respect when made or
repeated or deemed to have been made or repeated, or (vii) Seller or Buyer
shall admit to the other its inability to, or its intention not to, perform any
of its obligations hereunder (each an “Event of Default”):


 


(a)   The
nondefaulting party may, at its option (which option shall be deemed to have
been exercised immediately upon the occurrence of an Act of Insolvency),
declare an Event of Default to have occurred hereunder and, upon the exercise
or deemed exercise of such option, the Repurchase Date for each Transaction
hereunder shall, if it has not already occurred, be deemed immediately to occur
(except that, in the event that the Purchase Date for any Transaction has not
yet occurred as of the date of such exercise or deemed exercise, such
Transaction shall be deemed immediately canceled). The nondefaulting party
shall (except upon the occurrence of an Act of Insolvency) give notice to the
defaulting party of the exercise of such option as promptly as practicable.


 


(b)   In all
Transactions in which the defaulting party is acting as Seller, if the nondefaulting
party exercises or is deemed to have exercised the option referred to in
subparagraph (a) of this Paragraph, (i) the defaulting party’s
obligations in such Transactions to repurchase all Purchased Securities, at the
Repurchase Price therefor on the Repurchase Date determined in accordance with
subparagraph (a) of this Paragraph, shall thereupon become immediately due
and payable, (ii) all Income paid after such exercise or deemed exercise
shall be retained by the nondefaulting party and applied to the aggregate
unpaid Repurchase Prices and any other amounts owing by the defaulting party
hereunder, and (iii) the defaulting party shall immediately deliver to the
nondefaulting party any Purchased Securities subject to such Transactions then
in the defaulting party’s possession or control.


 


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(c)   In all
Transactions in which the defaulting party is acting as Buyer, upon tender by
the nondefaulting party of payment of the aggregate Repurchase Prices for all such
Transactions, all right, title and interest in and entitlement to all Purchased
Securities subject to such Transactions shall be deemed transferred to the
nondefaulting party, and the defaulting party shall deliver all such Purchased
Securities to the nondefaulting party.


 


(d)   If the
nondefaulting party exercises or is deemed to have exercised the option
referred to in subparagraph (a) of this Paragraph, the nondefaulting
party, without prior notice to the defaulting party, may:


 


(i)    as to
Transactions in which the defaulting party is acting as Seller, (A) immediately
sell, in a recognized market (or otherwise in a commercially reasonable manner)
at such price or prices as the nondefaulting party may reasonably deem
satisfactory, any or all Purchased Securities subject to such Transactions and
apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any
other amounts owing by the defaulting party hereunder or (B) in its sole
discretion elect, in lieu of selling all or a portion of such Purchased
Securities, to give the defaulting party credit for such Purchased Securities
in an amount equal to the price therefor on such date, obtained from a
generally recognized source or the most recent closing bid quotation from such
a source, against the aggregate unpaid Repurchase Prices and any other amounts
owing by the defaulting party hereunder; and


 


(ii)   as to
Transactions in which the defaulting party is acting as Buyer, (A) immediately
purchase, in a recognized market (or otherwise in a commercially reasonable
manner) at such price or prices as the nondefaulting party may reasonably deem
satisfactory, securities (“Replacement Securities”) of the same class and
amount as any Purchased Securities that are not delivered by the defaulting
party to the nondefaulting party as required hereunder or (B) in its sole
discretion elect, in lieu of purchasing Replacement Securities, to be deemed to
have purchased Replacement Securities at the price therefor on such date,
obtained from a generally recognized source or the most recent closing offer
quotation from such a source.


 


Unless otherwise provided in Annex I, the parties acknowledge and agree
that (1) the Securities subject to any Transaction hereunder are
instruments traded in a recognized market, (2) in the absence of a
generally recognized source for prices or bid or offer quotations for any
Security, the nondefaulting party may establish the source therefor in its sole
discretion and (3) all prices, bids and offers shall be determined
together with accrued Income (except to the extent contrary to market practice
with respect to the relevant Securities).


 


(e)   As to
Transactions in which the defaulting party is acting as Buyer, the defaulting
party shall be liable to the nondefaulting party for any excess of the price
paid (or deemed paid) by the nondefaulting party for Replacement Securities
over the Repurchase Price for the Purchased Securities replaced thereby and for
any amounts payable by the defaulting party under Paragraph 5 hereof or
otherwise hereunder.


 


(f)    For
purposes of this Paragraph 11, the Repurchase Price for each Transaction
hereunder in respect of which the defaulting party is acting as Buyer shall not
increase above the


 


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amount of such Repurchase Price for such Transaction determined as of
the date of the exercise or deemed exercise by the nondefaulting party of the
option referred to in subparagraph (a) of this Paragraph.


 


(g)   The
defaulting party shall be liable to the nondefaulting party for (i) the
amount of all reasonable legal or other expenses incurred by the nondefaulting
party in connection with or as a result of an Event of Default, (ii) damages
in an amount equal to the cost (including all fees, expenses and commissions)
of entering into replacement transactions and entering into or terminating
hedge transactions in connection with or as a result of an Event of Default,
and (iii) any other loss, damage, cost or expense directly arising or
resulting from the occurrence of an Event of Default in respect of a
Transaction.


 


(h)   To the
extent permitted by applicable law, the defaulting party shall be liable to the
nondefaulting party for interest on any amounts owing by the defaulting party
hereunder, from the date the defaulting party becomes liable for such amounts
hereunder until such amounts are (i) paid in full by the defaulting party
or (ii) satisfied in full by the exercise of the nondefaulting party’s
rights hereunder. Interest on any sum payable by the defaulting party to the
nondefaulting party under this Paragraph 11(h) shall be at a rate equal to
the greater of the Pricing Rate for the relevant Transaction or the Prime Rate.


 


(i)    The
nondefaulting party shall have, in addition to its rights hereunder, any rights
otherwise available to it under any other agreement or applicable law.


 


12.  Single Agreement


 


Buyer
and Seller acknowledge that, and have entered hereinto and will enter into each
Transaction hereunder in consideration of and in reliance upon the fact that,
all Transactions hereunder constitute a single business and contractual
relationship and have been made in consideration of each other. Accordingly,
each of Buyer and Seller agrees (i) to perform all of its obligations in
respect of each Transaction hereunder, and that a default in the performance of
any such obligations shall constitute a default by it in respect of all
Transactions hereunder, (ii) that each of them shall be entitled to set
off claims and apply property held by them in respect of any Transaction
against obligations owing to them in respect of any other Transactions
hereunder and (iii) that payments, deliveries and other transfers made by
either of them in respect of any Transaction shall be deemed to have been made
in consideration of payments, deliveries and other transfers in respect of any
other Transactions hereunder, and the obligations to make any such payments,
deliveries and other transfers may be applied against each other and netted.


 


13.  Notices and Other Communications


 


Any and all notices, statements, demands or other communications
hereunder may be given by a party to the other by mail, facsimile, telegraph,
messenger or otherwise to the address specified in Annex II hereto, or so sent
to such party at any other place specified in a notice of change of address
hereafter received by the other. All notices, demands and requests hereunder
may be made orally, to be confirmed promptly in writing, or by other
communication as specified in the preceding sentence.


 


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14.  Entire Agreement; Severability


 


This
Agreement shall supersede any existing agreements between the parties
containing general terms and conditions for repurchase transactions. Each
provision and agreement herein shall be treated as separate and independent
from any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.


 


15.  Non-assignability; Termination


 


(a)   The rights
and obligations of the parties under this Agreement and under any Transaction
shall not be assigned by either party without the prior written consent of the
other party, and any such assignment without the prior written consent of the
other party shall be null and void. Subject to the foregoing, this Agreement
and any Transactions shall be binding upon and shall inure to the benefit of
the parties and their respective successors and assigns. This Agreement may be
terminated by either party upon giving written notice to the other, except that
this Agreement shall, notwithstanding such notice, remain applicable to any
Transactions then outstanding.


 


(b)   Subparagraph
(a) of this Paragraph 15 shall not preclude a party from assigning,
charging or otherwise dealing with all or any part of its interest in any sum
payable to it under Paragraph 11 hereof.


 


16.  Governing Law


 


This
Agreement shall be governed by the laws of the State of New York without giving
effect to the conflict of law principles thereof.


 


17.  No Waivers, Etc.


 


No
express or implied waiver of any Event of Default by either party shall
constitute a waiver of any other Event of Default and no exercise of any remedy
hereunder by any party shall constitute a waiver of its right to exercise any
other remedy hereunder. No modification or waiver of any provision of this
Agreement and no consent by any party to a departure here-from shall be
effective unless and until such shall be in writing and duly executed by both
of the parties hereto. Without limitation on any of the foregoing, the failure
to give a notice pursuant to Paragraph 4(a) or 4(b) hereof will not
constitute a waiver of any right to do so at a later date.


 


18.  Use of Employee Plan Assets


 


(a)   If assets of
an employee benefit plan subject to any provision of the Employee Retirement
Income Security Act of 1974 (“ERISA”) are intended to be used by either party
hereto (the “Plan Party”) in a Transaction, the Plan Party shall so notify the
other party prior to the Transaction. The Plan Party shall represent in writing
to the other party that the Transaction does not constitute a prohibited
transaction under ERISA or is otherwise exempt therefrom, and the other party
may proceed in reliance thereon but shall not be required so to proceed.


 


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(b)   Subject to
the last sentence of subparagraph (a) of this Paragraph, any such
Transaction shall proceed only if Seller furnishes or has furnished to Buyer
its most recent available audited statement of its financial condition and its
most recent subsequent unaudited statement of its financial condition.


 


(c)   By entering
into a Transaction pursuant to this Paragraph, Seller shall be deemed (i) to
represent to Buyer that since the date of Seller’s latest such financial
statements, there has been no material adverse change in Seller’s financial
condition which Seller has not disclosed to Buyer, and (ii) to agree to
provide Buyer with future audited and unaudited statements of its financial
condition as they are issued, so long as it is a Seller in any outstanding
Transaction involving a Plan Party.


 


19.  Intent


 


(a)   The parties
recognize that each Transaction is a “repurchase agreement” as that term is
defined in Section 101 of Title 11 of the United States Code, as amended
(except insofar as the type of Securities subject to such Transaction or the
term of such Transaction would render such definition inapplicable), and a “securities
contract” as that term is defined in Section 741 of Title 11 of the United
States Code, as amended (except insofar as the type of assets subject to such
Transaction would render such definition inapplicable).


 


(b)   It is
understood that either party’s right to liquidate Securities delivered to it in
connection with Transactions hereunder or to exercise any other remedies pursuant
to Paragraph 11 hereof is a contractual right to liquidate such Transaction as
described in Sections 555 and 559 of Title 11 of the United States Code, as
amended.


 


(c)   The parties
agree and acknowledge that if a party hereto is an “insured depository institution,”
as such term is defined in the Federal Deposit Insurance Act, as amended (“FDIA”),
then each Transaction hereunder is a “qualified financial contract,” as that
term is defined in FDIA and any rules, orders or policy statements thereunder
(except insofar as the type of assets subject to such Transaction would render
such definition inapplicable).


 


(d)   It is
understood that this Agreement constitutes a “netting contract” as defined in
and subject to Title IV of the Federal Deposit Insurance Corporation
Improvement Act of 1991 (“FDICIA”) and each payment entitlement and payment
obligation under any Transaction hereunder shall constitute a “covered
contractual payment entitlement” or “covered contractual payment obligation”,
respectively, as defined in and subject to FDICIA (except insofar as one or
both of the parties is not a “financial institution” as that term is defined in
FDICIA).


 


20.  Disclosure Relating to Certain Federal Protections


 


The
parties acknowledge that they have been advised that:


 


(a)   in the case
of Transactions in which one of the parties is a broker or dealer registered
with the Securities and Exchange Commission (“SEC”) under Section 15 of
the Securities Exchange Act of 1934 (“1934 Act”), the Securities Investor
Protection Corporation has 


 


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taken the position that the provisions of the Securities Investor
Protection Act of 1970 (“SIPA”) do not protect the other party with respect to
any Transaction hereunder;


 


(b)   in the case
of Transactions in which one of the parties is a government securities broker
or a government securities dealer registered with the SEC under Section 15C
of the 1934 Act, SIPA will not provide protection to the other party with
respect to any Transaction hereunder; and


 


(c)   in the case
of Transactions in which one of the parties is a financial institution, funds
held by the financial institution pursuant to a Transaction hereunder are not a
deposit and therefore are not insured by the Federal Deposit Insurance
Corporation or the National Credit Union Share Insurance Fund, as applicable.


 


 


	
  FSA Capital Management
  Services LLC

  	
   

  	
  FSA Capital markets
  Services LLC

  
	
   

  	
   

  	
   

  
	
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  FSA Asset Management LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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Intercompany Repurchase
Master


 


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