Effective April 30, 2012
TERMS OF AGREEMENT
IT IS AGREED BY CUSTOMER AND CREDIT SUISSE SECURITIES (USA) LLC (CSSU) THAT THE TRANSACTIONS, AS DESCRIBED HEREIN, ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1. This confirmation hereby incorporates and all transactions hereunder are subject to (a) the provisions of any Customer Agreement and any other written agreement between Customer and CSSU, (b) the Uniform Practices for the Clearance and Settlement of Mortgage-Backed Securities, and (c) the constitution, by-laws, rules, regulations, interpretations and usages of the exchange or market (and its clearing house, if any) where executed and of the Financial Industry Regulatory Authority (FINRA), the Securities and Exchange Commission (SEC) and the Board of Governors of The Federal Reserve System, in all cases where applicable. Provisions contained in and remedies provided by this confirmation which are additional to or more or less extensive than any provision contained in or remedies provided by any agreement with Customer (including, without limitation, provisions or remedies that cover the same subject matter) shall not be deemed to be in conflict with each other, and all such provisions and remedies shall be applicable and available.
2. If our capacity in this transaction was as ”agent”, we acted as your broker (or, if indicated, as broker both for yourself and the party(s) on the other side) and not for our own account. If our capacity was as “principal”, we bought from or sold to you as dealer for our own account (or, if indicated, for our joint account with another firm or for the account of an underwriting syndicate of which we are a member). Your capacity was for your own account unless you expressly specified otherwise to us in writing and gave us sufficient information (including, without limitation, all financial information requested by us) in writing prior to the transaction for us to identify and rely upon the credit of another party or your credit in another capacity. Time of execution will be furnished upon written request. For average price transactions, individual execution prices will be furnished upon request.
3. If we acted as your agent in this transaction, the amount of any commission or remuneration to be paid to us by you is stated on the face hereof and the name of the person from whom the security was purchased, or to whom it was sold, will be furnished upon written request. If we (also) acted as agent for another person, upon written request we will furnish the name of that person, any remuneration received from that person, and such further information as may be required by the rules and regulations of the SEC and any other body having jurisdiction over the transaction. Commission rates are subject to negotiation, and any commission charged Customer in this transaction may be more or less than the commission charged to or by others in similar transactions.
4. Until paid for in full by you, securities sold to you or bought for you may be hypothecated under circumstances which will permit the commingling thereof with securities carried for the account of other customers. We may pledge or repledge on such terms as we deem appropriate in our sole discretion any securities pledged to us by you.
5. If this transaction is a purchase by you and sufficient funds are not already in your account with us, it is agreed that you will make the payment for the securities described on the face hereof promptly in accordance with the terms of this confirmation, that we shall not be deemed to have transferred or be required to transfer such securities to you until we have received such full payment therefor, and that you shall not sell such securities prior to making such payment. All confirmations and book entries purporting to evidence or effect such transfer to you of such securities shall be deemed to be provisional and without effect until such full payment therefore has been received. If this transaction is a sale by you and the securities described on the face hereof are not already held in your account with us and it is not marked short, we are acting upon your representation that you or your principal own such securities, and it is agreed that you will promptly deliver such securities to us. If full payment for securities sold to or bought for you in this transaction is not received by us on or before the settlement date, or if securities bought from or sold (except short sales) for you in this transaction are not delivered to us promptly, and in proper form, you shall be deemed to be in default in respect of this transaction.
6. This transaction and all other transactions with us and our affiliates have been entered into in consideration of each other. If Customer or any of its affiliates (collectively, the “Customer Parties”) (a) default in respect of this or any other transaction with CSSU or any of its affiliates (collectively the “CSSU Parties”), (b) state that any Customer Party will not perform any obligation to any CSSU Party, or (c) apply for, consent to or be the subject of any application or petition for the appointment of or the taking possession by, a receiver, custodian, trustee, liquidator or similar person of itself or of all or a substantial part of its property, admit in writing its inability, or become generally unable to pay its debts as such debts become due, make a general assignment for the benefit of its creditors, file or be the subject of the filing or entry of a petition or order for relief under Title 11 of the U.S. Code or any similar law of any jurisdiction regarding reorganization, liquidation, dissolution, insolvency, or relief of debtors or of an application for a protective decree under Section 5 of the Securities Investor Protection Act of 1970, or, if any CSSU Party believes that it may not be able to apply without delay, property that it or any other CSSU Party is holding or expects to receive from any Customer Party against any obligations to such first CSSU Party, each CSSU Party may (a) cancel or otherwise liquidate this and any other transaction between it and you without prior notice to you, (b) set off any obligation owing by it to you against any of your obligations or any of your subsidiaries’ obligations owing to it or any other CSSU Party, and (c) realize upon any property securing any obligations to it or any other CSSU Party. Any grace or notice period required by agreement or custom prior to exercise of such remedies may be shortened or eliminated by any CSSU Party if, in its discretion, it is reasonable to do so under the circumstances. Customer shall be liable to each CSSU Party for all costs and expenses, including attorneys’ fees and expenses, incurred in connection with the enforcement or collection by such CSSU Party of its rights or claims hereunder against any Customer Party.
7. Customer hereby grants to each CSSU Party a security interest in all securities, moneys or other property, and all proceeds of any of the foregoing, now or hereafter held or carried by any CSSU Party in Customer’s account(s) with any CSSU Party or otherwise as collateral security for the payment of any and all obligations and liabilities of Customer and its subsidiaries to any CSSU Party, now existing or arising hereafter. Customer hereby irrevocably constitutes and appoints each CSSU Party its true and lawful agent and attorney in fact, with full power to act in the name of Customer and on its behalf, with respect to the execution of all instruments and the taking of all action necessary or desirable to effectuate the rights and remedies provided hereunder and by applicable law to any CSSU Party.
8. At the time this transaction was executed or subsequent thereto, we (or others acting for our account) may have effected transactions which stabilize or maintain the market price of the securities described on the face hereof (or other securities of the same issuer), at a level above that which might otherwise prevail in the open market. Such transactions may have been effected on any market where these securities are traded. Such stabilization, if commenced, may be discontinued at any time. CSSU may have made and may continue to make purchases and sales of securities of the same issue involved in this transaction (or other securities of the same issuer) for its own account or for the accounts of others, and such transactions, if made, may be discontinued at any time. There may not have been and there may not be in the future any market in such securities other than that made by CSSU.
9. We (or others acting for our account) reserve the right to offer for sale and/or to sell from time to time as principal or agent an amount of the securities described on the face hereof in excess of the amount owned by us (or the Seller for whom we act as agent)at the time such offers and/or sales are made. Such offers or sales (sometimes known as “short sales” or ”over allotments”) may or may not be made in conjunction with stabilizing transactions described above.
10. Customer agrees that within 24 hours after CSSU’s request, Customer will deliver to CSSU a sufficient amount of the securities subject to this agreement, or otherwise provide collateral of a type and in form acceptable to CSSU, so that the then current market value of the securities and other collateral then held by CSSU with respect to this transaction (a) in the case of a reverse repurchase agreement, resale or other transaction with respect to which Customer was required to provide CSSU collateral at the outset of the transaction, bears the same ratio to the then outstanding amount of Customer’s obligations under such transaction (taking into account, accrued interest on the collateral and on the transaction) as the market value of such required collateral on the date of this confirmation bears to the outstanding amount of Customer’s obligations under the transaction on the date hereof, and (b) in all other cases, equals at least the amount by which the price Customer is to pay for securities as set forth on the face of this confirmation exceeds the then current market value of such securities or by which the then current market value of securities that Customer is to sell exceeds the amount Customer is to be paid therefore as set forth on the face hereof, as the case may be.
11. If this transaction relates to a debt security, call features may exist which could result in such security being redeemed in whole or in part before maturity and which could affect the yield thereof. Further information pertaining to the yield on debt securities is available upon written request.
12. If this transaction is described on the face hereof as “When-Issued” or “When-Distributed” contract, then this contract shall be subject to the special requirements for such contracts, if any, of the market where executed. This contract shall be settled and payment therefore made only at such time and place, in such manner, and by delivery of such securities and/or other property received by us as such market may require or shall be cancelled if the proposal pursuant to which the securities were to be issued or distributed has been abandoned or materially changed or if the securities which are the subject to the contract have been materially changed.
13. If a security underlying any transaction hereunder is or becomes subject to a notice of adverse claim received by this issuer of such security (or its agent) from or on behalf of the registered holder of such security, then upon the request of the transferee and simultaneously with the transfer by the transferee to the transferor of such a disputed security (or any right to receive such a disputed security from the issuer or its agent if such disputed security is in the possession of issuer or its agent), the transferor shall pay to the transferee an amount equal to the amount theretofore paid by the transferee to the transferor for such disputed security. All transfers and payments pursuant to this Section 13 shall be effected in the same manner as the transfer and payment in the transaction in which such disputed security was transferred by the transferor to the transferee.
14. CSSU may receive compensation for directing order flow in securities. The source and nature of any compensation received in connection with this transaction is available upon written request.
15. This Agreement shall inure to the benefit of CSSU, its affiliates, and its and their successors. The parties acknowledge that this transaction is a “securities contract” within the meaning of 11 U.S.C. Section 741(7).
16. This confirmation shall be deemed to have been accepted and signed by Customer if not objected to in writing by Customer to CSSU within 10 days of receipt hereof. The Terms of Agreement set forth on the first confirmation of this form delivered to Customer shall be deemed to have been accepted and signed by Customer with respect to each and every transaction in respect of which this form of confirmation is delivered, unless Customer shall have objected in writing to CSSU within 10 days of receipt of such first confirmation.
17. In the event any one or more provisions contained in this confirmation shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this confirmation shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
18. In connection with any claim arising out of or relating to this transaction or any other transaction between Customer and any CSSU Party or between CSSU and any affiliate of Customer, Customer and CSSU each irrevocably (a) submits to the nonexclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, (b) waives any objection to the laying of venue in such court, (c) waives any claim that any suit, action or proceeding in such court has been brought in an inconvenient forum, (d) waives the right to object that such court does not have jurisdiction over Customer or CSSU, as the case may be (e) waives the right to trial by jury in any suit, action or proceeding brought in respect of any such transaction, and (f) designates the Secretary of State of the State of New York as its agent for the service of process (provided that Customer and CSSU may, by written notice to the other, change its designation of agent to a specified person located in the Borough of Manhattan). This confirmation and all transactions hereunder shall be governed by and construed in accordance with the laws of the State of New York (excluding choice or conflict of law doctrine) and all applicable federal laws and regulations. Any arbitration hereunder shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction.
19. If this transaction involves an asset-backed security which represents an interest in or is secured by a pool of receivables or other financial assets that are subject continuously to prepayment, then the actual yield of such security may vary according to the rate at which the underlying receivables or other financial assets are prepaid. Information concerning the factors that affect yield (including at a minimum estimated yield, weighted average life, and the pre-payment assumptions of underlying yield) will be furnished upon your written request.
20. If you have made arrangements to clear transactions directly with a foreign affiliate of CSSU, please be aware that the foreign affiliate is not a member of SIPC.
CREDIT SUISSE SECURITIES (USA) LLC
EXPLANATION OF CAPACITY
1. Credit Suisse acted as Principal on this transaction
2. Credit Suisse acted as Agent on this transaction
3. Credit Suisse acted as Principal and Agent on this transaction
4. Credit Suisse acted as Agent and Agent for another on this transaction
5. Credit Suisse acted as Principal, Agent and Agent for another in this transaction
Please note the following websites offering material can be located.
1. Federal Farm Credit Banks Funding Corporation: www.farmcredit-ffcb.com
2. The Federal Home Loan Banks Office of Finance (FHLB): http://www.fhlb-of.com/
3. The Federal Home Loan Mortgage Corporation (Freddie Mac)
4. The Federal National Mortgage Association (FNMA)
- Debt securities: www.fanniemae.com/markets/debt/index.jhtml?p=Debt+Securities
- MBS securities: www.fanniemae.com/mbs/index.jhtml?p=Mortgage-Backed+Securities
* Unrated by a NRSRO used by CSSU. Please contact your CSSU representative for additional information.