EXHIBIT 10.49
Xxxx-To-Market Agreement [LOGO OF PRUDENTIAL SECURITIES]
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In consideration of Prudential Securities Incorporated ("PSI") entering into
transactions and agreements with the undersigned and its affiliates
(collectively the "undersigned") including without limitation purchases or sales
of securities or whole loans, repurchase and reverse repurchase transactions,
dollar rolls, forward and when issued transactions, over-the-counter option
transactions (collectively "Transactions") the undersigned hereby agrees as
follows:
1) In the event the undersigned enters into forward or when issued
transactions, dollar rolls, over-the-counter options transactions with PSI
and the contract or commitment value reflects a loss or deficit to the
undersigned, at PSI's request, the undersigned agrees to deposit with PSI,
if demand is made on or before 10:00 a.m. New York City time, by 5:00 p.m.
New York City time on the day so made or, if demand is made after 10:00
a.m. New York City time, by 1:00 p.m New York City time on the next
business day, collateral in the form of cash, U.S. government or agency
securities or a letter of credit issued by a bank acceptable to PSI at
least equal to an amount sufficient to cover the deficit ("xxxx-to-market
payments").
2) In the event:
i) the undersigned fails to make a xxxx-to-market payment or any portion
thereof,
ii) the undersigned (or any receiver, trustee, conservator, or similar
official appointed for the undersigned or any of its property)
defaults under, or breaches, disaffirms or repudiates any agreement
or any transaction with PSI,
iii) the undersigned becomes insolvent or a debtor or files an application
under any bankruptcy, reorganization or similar law or regulations,
or
iv) a receiver, trustee, conservator or similar official is appointed for
the undersigned or any of its property
then PSI shall have, in addition to the rights and remedies as may be
provided by law, regulation or agreement, the right, with notice to the
undersigned, which may be given orally, to:
v) accelerate the maturity of any obligation or liability of the
undersigned to PSI and to immediately cancel, liquidate or terminate
any transaction and agreement between the undersigned and PSI,
vi) set off, net out and apply: (a) any account of, amount payable to,
property of or owing to or other claim of the undersigned against
PSI; against (b) any account of, amount payable to, property of or
owing to or other claim of PSI against the undersigned,
vii) realize upon all securities, monies or other property, and all
distributions thereon and proceeds thereof, whenever the same is held
or carried by or for PSI, including property held or carried in
accounts maintained by PSI (collectively the "Collateral").
3) This Xxxx-To-Market Agreement and the transactions referenced herein shall
be governed by and construed in accordance with the laws of the State of
New York without giving effect to the conflict of law principles thereof.
4) The undersigned represents and warrants to PSI that: (i) it is duly
authorized to execute and deliver this Agreement and to enter into the
transactions referenced herein, (ii) the person signing this Agreement on
behalf of the undersigned is authorized to do so, (iii) this Agreement
constitutes a legal, valid and binding agreement of the undersigned,
enforceable in accordance with its terms, (iv) it has obtained all
authorizations of any governmental body required in connection with this
Agreement and the transactions referenced herein and such authorizations
are in full force and effect and (v) the execution, delivery and
performance of this Agreement and the transactions referenced herein will
not violate any law, ordinance, charter, by-law or rule applicable to it
or any agreement by which it is bound or by which any of its assets are
affected.
5) The rights granted hereby to PSI are in addition to any rights, and
supersede any limitations on such rights that are inconsistent herewith,
that it may have under any existing or future agreements with the
undersigned. Without limiting the generality of the foregoing, nothing
herein shall be construed as a requirement that PSI cause collateral held
on account of a particular transaction to be attributed (in whole or in
part) to any other transaction in determining whether PSI is entitled to
make demand upon the undersigned for additional securities, monies or
other property under any such other transaction nor will PSI's failure to
demand xxxx-to-market payments constitute a waiver of PSI's right to do
so at a later date.
6) This Agreement may not be amended or modified except in a written
instrument executed by PSI and the undersigned. The rights and obligations
of the undersigned under this Agreement and under any transaction or
agreement (including any transaction between the parties) may not be
assigned without the prior written consent of PSI. Subject to the
foregoing, this Agreement shall be binding on the undersigned's direct and
indirect successors and assigns.
7) The National Association of Securities Dealers, Inc. Rules of Fair
Practice require the inclusion of the following language where a
predispute arbitration clause appears:
. Arbitration is final and binding on the parties.
. The parties are waiving their right to seek remedies in court,
including the right to jury trial.
. Pre-arbitration discovery is generally more limited than and
different from court proceedings.
. The arbitrators' award is not required to include factual findings or
legal reasoning and any party's right to appeal or to seek
modification or rulings by the arbitrators is strictly limited.
. The panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities industry.
Any controversy arising out of or relating to this Agreement, Transactions
thereunder, or the breach thereof, and whether executed or to be executed
within or outside of the United States, shall be settled by arbitration
before either the New York Stock Exchange, Inc. or the National
Association of Securities Dealers, Inc. or any other self-regulatory
organization of which PSI is a member, as the undersigned may elect and
under the then existing arbitration procedures of the forum the
undersigned has elected. If the undersigned does not make such election by
registered mail addressed to PSI at its main office within five (5) days
after demand by PSI that the undersigned make such election, then PSI may
make such election. Notice preliminary to, in conjunction with, or
incident to such arbitration proceeding, may be sent to the undersigned by
mail and personal service is hereby waived. Judgment upon any award
rendered by the arbitrators may be entered in any court having
jurisdiction thereof, without notice to the undersigned. No person shall
bring a putative or certified class action to arbitration, nor seek to
enforce any pre-dispute arbitration agreement against any person who has
initiated in court a putative class action; or who is a member of a
putative class who has not opted out of the class with respect to any
claims encompassed by the putative class action until: (i) the class
certification is denied; or (ii) the class is decertified; or (iii) the
customer is excluded from the class by the court. Such forbearance to
enforce an agreement to arbitrate shall not constitute a waiver of any
rights under this agreement except to the extent stated herein.
By signing this Agreement, the undersigned acknowledges receipt of a copy
of this Agreement. This Agreement contains a pre-dispute arbitration
clause at page 2 paragraph 7.
ACCEPTED AND AGREED TO:
Date: April 20, 1995
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Company Name (print): Xxxxxx Mortgage Corporation
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Authorized Signature: ____________________________________
Name (print): Xxxxxx Xxxxx
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Title (print): President
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