EXHIBIT 10.07
FOREIGN EXCHANGE AND OPTIONS
MASTER AGREEMENT
(FEOMA)
MASTER AGREEMENT dated as of June 15, 2007, by and between Xxxxxx
Xxxxxxx Capital Group Inc., a Delaware corporation and Xxxxxx Xxxxxxx
Portfolio Strategy Fund L.P., a commodity pool limited partnership formed
under the laws of the State of Delaware.
SECTION 1. DEFINITIONS
Unless otherwise required by the context, the following terms shall have
the following meanings in the Agreement:
"Agreement" has the meaning given to it in Section 2.2.
"American Style Option" means an Option which may be exercised on any
Business Day up to and including the Expiration Time.
"Base Currency", as to a Party, means the Currency agreed to as such in
relation to it in Part VII of the Schedule.
"Business Day" means for purposes of: (i) Section 3.2, a day which is a
Local Banking Day for the applicable Designated Office of the Buyer; (ii)
Section 5.1 and the definition of American Style Option, a day which is a Local
Banking Day for the applicable Designated Office of the Seller; (iii) clauses
(i), (viii) and (xii) of the definition of Event of Default, a day which is a
Local Banking Day for the Non-Defaulting Party; (iv) solely in relation to
delivery of a Currency, a day which is a Local Banking Day in relation to that
Currency; and (v) any other provision of the Agreement, a day which is a Local
Banking Day for the applicable Designated Offices of both Parties; provided,
however, that neither Saturday nor Sunday shall be considered a Business Day for
any purpose.
"Buyer" means the owner of an Option.
"Call" means an Option entitling, but not obligating (except upon
exercise), the Buyer to purchase from the Seller at the Strike Price a specified
quantity of the Call Currency.
"Call Currency" means the Currency agreed to as such at the time an Option
is entered into, as evidenced in a Confirmation.
"Close-Out Amount" has the meaning given to it in Section 8.1.
"Close-Out Date" means a day on which, pursuant to the provisions of
Section 8.1, the Non-Defaulting Party closes out Currency Obligations and/or
Options or such close-out occurs automatically.
"Closing Gain", as to the Non-Defaulting Party, means the difference
described as such in relation to a particular Value Date under the provisions of
Section 8.1.
"Closing Loss", as to the Non-Defaulting Party, means the difference
described as such in relation to a particular Value Date under the provisions of
Section 8.1.
"Confirmation" means a writing (including telex, facsimile or other
electronic means from which it is possible to produce a hard copy) evidencing an
FX Transaction or an Option, and specifying:
(A) in the case of an FX Transaction, the following information:
(i) the Parties thereto and the Designated Offices through
which they are respectively acting,
(ii) the amounts of the Currencies being bought or sold and by
which Party,
(iii) the Value Date, and
(iv) any other term generally included in such a writing in
accordance with the practice of the relevant foreign
exchange market; and
(B) in the case of an Option, the following information:
(i) the Parties thereto and the Designated Offices
through which they are respectively acting,
(ii) whether the Option is a Call or a Put,
(iii) the Call Currency and the Put Currency that are
the subject of the Option and their respective
quantities,
(iv) which Party is the Seller and which is the Buyer,
(v) the Strike Price,
(vi) the Premium and the Premium Payment Date,
(vii) the Expiration Date,
(viii) the Expiration Time,
(ix) whether the Option is an American Style Option
or a European Style Option, and
(x) such other matters, if any, as the Parties may agree.
"Credit Support" has the meaning given to it in Section 8.2.
"Credit Support Document", as to a Party (the "first Party"), means a
guaranty, hypothecation agreement, margin or security agreement or document, or
any other document containing an obligation of a third party ("Credit Support
Provider") or of the first Party in favor of the other Party supporting any
obligations of the first Party under the Agreement.
"Credit Support Provider" has the meaning given to it in the definition of
Credit Support Document.
"Currency" means money denominated in the lawful currency of any country
or the Ecu.
"Currency Obligation" means any obligation of a Party to deliver a
Currency pursuant to an FX Transaction, the application of Section 6.3(a) or
(b), or an exercised Option (except, for the purposes of Section 8.1 only, one
that is to be settled at its In-the-Money Amount under Section 5.5).
"Currency Pair" means the two Currencies which potentially may be
exchanged in connection with an FX Transaction or upon the exercise of an
Option, one of which shall be the Put Currency and the other the Call Currency.
"Custodian" has the meaning given to it in the definition of Insolvency
Proceeding.
"Defaulting Party" has the meaning given to it in the definition of Event
of Default.
"Designated Office(s)", as to a Party, means the office or offices
specified in Part II of the Schedule.
"Effective Date" means the date of this Master Agreement.
"European Style Option" means an Option for which Notice of Exercise may
be given only on the Option's Expiration Date up to and including the Expiration
Time, unless otherwise agreed.
"Event of Default" means the occurrence of any of the following with
respect to a Party (the "Defaulting Party", the other Party being the
"Non-Defaulting Party"):
(i) the Defaulting Party shall (A) default in any payment when due under
the Agreement (including, but not limited to, a Premium payment) to the
Non-Defaulting Party with respect to any Currency Obligation or Option and such
failure shall continue for two (2) Business Days after the Non-Defaulting Party
has given the Defaulting Party written notice of non-payment, or (B) fail to
perform or comply with any other obligation assumed by it under the Agreement
and such failure is continuing thirty (30) days after the Non-Defaulting Party
has given the Defaulting Party written notice thereof;
(ii) the Defaulting Party shall commence a voluntary Insolvency Proceeding
or shall take any corporate action to authorize any such Insolvency Proceeding;
(iii) a governmental authority or self-regulatory organization having
jurisdiction over either the Defaulting Party or its assets in the country of
its organization or principal office (A) shall commence an Insolvency Proceeding
with respect to the Defaulting Party or its assets or (B) shall take any action
under any bankruptcy, insolvency or other similar law or any banking, insurance
or similar law or regulation governing the operation of the Defaulting Party
which may prevent the Defaulting Party from performing its obligations under the
Agreement as and when due;
(iv) an involuntary Insolvency Proceeding shall be commenced with respect
to the Defaulting Party or its assets by a person other than a governmental
authority or self-regulatory organization having jurisdiction over either the
Defaulting Party or its assets in the country of its organization or principal
office and such Insolvency Proceeding (A) results in the appointment of a
Custodian or a judgment of insolvency or bankruptcy or the entry of an order for
winding-up, liquidation, reorganization or other similar relief, or (B) is not
dismissed within five (5) days of its institution or presentation;
(v) the Defaulting Party is bankrupt or insolvent, as defined under any
bankruptcy or insolvency law applicable to it;
(vi) the Defaulting Party fails, or shall otherwise be unable, to pay its
debts as they become due;
(vii) the Defaulting Party or any Custodian acting on behalf of the
Defaulting Party shall disaffirm, disclaim or repudiate any Currency Obligation
or Option;
(viii) any representation or warranty made or given or deemed made or
given by the Defaulting Party pursuant to the Agreement or any Credit Support
Document shall prove to have been false or misleading in any material respect as
at the time it was made or given or deemed made or given and one (1) Business
Day has elapsed after the Non-Defaulting Party has given the Defaulting Party
written notice thereof;
(ix) the Defaulting Party consolidates or amalgamates with or merges into
or transfers all or substantially all its assets to another entity and (A) the
creditworthiness of the resulting, surviving or transferee entity is materially
weaker than that of the Defaulting Party prior to such action, or (B) at the
time of such consolidation, amalgamation, merger or transfer the resulting,
surviving or transferee entity fails to assume all the obligations of the
Defaulting Party under the Agreement by operation of law or pursuant to an
agreement satisfactory to the Non-Defaulting Party;
(x) by reason of any default, or event of default or other similar
condition or event, any Specified Indebtedness (being Specified Indebtedness of
an amount which, when expressed in the Currency of the Threshold Amount, is in
aggregate equal to or in excess of the Threshold Amount) of the Defaulting Party
or any Credit Support Provider in relation to it: (A) is not paid on the due
date therefor and remains unpaid after any applicable grace period has elapsed,
or (B) becomes, or becomes capable at any time of being declared, due and
payable under agreements or instruments evidencing such Specified Indebtedness
before it would otherwise have been due and payable;
(xi) the Defaulting Party is in breach of or default under any Specified
Transaction and any applicable grace period has elapsed, and there occurs any
liquidation or early termination of, or acceleration of obligations under, that
Specified Transaction or the Defaulting Party (or any Custodian on its behalf)
disaffirms, disclaims or repudiates the whole or any part of a Specified
Transaction;
(xii) (A) any Credit Support Provider of the Defaulting Party or the
Defaulting Party itself fails to comply with or perform any agreement or
obligation to be complied with or performed by it in accordance with the
applicable Credit Support Document and such failure is continuing after any
applicable grace period has elapsed; (B) any Credit Support Document relating to
the Defaulting Party expires or ceases to be in full force and effect prior to
the satisfaction of all obligations of the Defaulting Party under the Agreement,
unless otherwise agreed in writing by the Non-Defaulting Party; (C) the
Defaulting Party or any Credit Support Provider of the Defaulting Party (or, in
either case, any Custodian acting on its behalf) disaffirms, disclaims or
repudiates, in whole or in part, or challenges the validity of, any Credit
Support Document; (D) any representation or warranty made or given or deemed
made or given by any Credit Support Provider of the Defaulting Party pursuant to
any Credit Support Document shall prove to have been false or misleading in any
material respect as at the time it was made or given or deemed made or given and
one (1) Business Day has elapsed after the Non-Defaulting Party has given the
Defaulting Party written notice thereof; or (E) any event set out in (ii) to
(vii) or (ix) to (xi) above occurs in respect of any Credit Support Provider of
the Defaulting Party; or
(xiii) any other condition or event specified in Part IX of the Schedule
or in Section 11.14 if made applicable to the Agreement in Part XI of the
Schedule.
"Exercise Date", in respect of any Option, means the day on which a Notice
of Exercise received by the applicable Designated Office of the Seller becomes
effective pursuant to Section 5.1.
"Expiration Date", in respect of any Option, means the date agreed to as
such at the time the Option is entered into, as evidenced in a Confirmation.
"Expiration Time", in respect of any Option, means the latest time on the
Expiration Date on which the Seller must accept a Notice of Exercise as agreed
to at the time the Option is entered into, as evidenced in a Confirmation.
"FX Transaction" means any transaction between the Parties for the
purchase by one Party of an agreed amount in one Currency against the sale by it
to the other of an agreed amount in another Currency, both such amounts either
being deliverable on the same Value Date or, if the Parties have so agreed in
Part VI of the Schedule, being cash-settled in a single Currency, which is or
shall become subject to the Agreement and in respect of which transaction the
Parties have agreed (whether orally, electronically or in writing): the
Currencies involved, the amounts of such Currencies to be purchased and sold,
which Party will purchase which Currency and the Value Date.
"In-the-Money Amount" means (i) in the case of a Call, the excess of the
Spot Price over the Strike Price, multiplied by the aggregate amount of the Call
Currency to be purchased under the Call, where both prices are quoted in terms
of the amount of the Put Currency to be paid for one unit of the Call Currency;
and (ii) in the case of a Put, the excess of the Strike Price over the Spot
Price, multiplied by the aggregate amount of the Put Currency to be sold under
the Put, where both prices are quoted in terms of the amount of the Call
Currency to be paid for one unit of the Put Currency.
"Insolvency Proceeding" means a case or proceeding seeking a judgment of
or arrangement for insolvency, bankruptcy, composition, rehabilitation,
reorganization, administration, winding-up, liquidation or other similar relief
with respect to the Defaulting Party or its debts or assets, or seeking the
appointment of a trustee, receiver, liquidator, conservator, administrator,
custodian or other similar official (each, a "Custodian") of the Defaulting
Party or any substantial part of its assets, under any bankruptcy, insolvency or
other similar law or any banking, insurance or similar law governing the
operation of the Defaulting Party.
"LIBOR", with respect to any Currency and date, means the average rate at
which deposits in the Currency for the relevant amount and time period are
offered by major banks in the London interbank market as of 11:00 a.m. (London
time) on such date, or, if major banks do not offer deposits in such Currency in
the London interbank market on such date, the average rate at which deposits in
the Currency for the relevant amount and time period are offered by major banks
in the relevant foreign exchange market at such time on such date as may be
determined by the Party making the determination.
"Local Banking Day" means (i) for any Currency, a day on which commercial
banks effect deliveries of that Currency in accordance with the market practice
of the relevant foreign exchange market, and (ii) for any Party, a day in the
location of the applicable Designated Office of such Party on which commercial
banks in that location are not authorized or required by law to close.
"Master Agreement" means the terms and conditions set forth in this Master
Agreement, including the Schedule.
"Matched Pair Novation Netting Office(s)", in respect of a Party, means
the Designated Office(s) specified in Part V of the Schedule.
"Non-Defaulting Party" has the meaning given to it in the definition of
Event of Default.
"Notice of Exercise" means telex, telephonic or other electronic
notification (excluding facsimile transmission) providing assurance of receipt,
given by the Buyer prior to or at the Expiration Time, of the exercise of an
Option, which notification shall be irrevocable.
"Novation Netting Office(s)", in respect of a Party, means the Designated
Office(s) specified in Part V of the Schedule.
"Option" means a currency option which is or shall become subject to the
Agreement.
"Parties" means the parties to the Agreement, including their successors
and permitted assigns (but without prejudice to the application of clause (ix)
of the definition of Event of Default); and the term "Party" shall mean
whichever of the Parties is appropriate in the context in which such expression
may be used.
"Premium", in respect of any Option, means the purchase price of the
Option as agreed upon by the Parties, and payable by the Buyer to the Seller
thereof.
"Premium Payment Date", in respect of any Option, means the date on which
the Premium is due and payable, as agreed to at the time the Option is entered
into, as evidenced in a Confirmation.
"Proceedings" means any suit, action or other proceedings relating to the
Agreement, any FX Transaction or any Option.
"Put" means an Option entitling, but not obligating (except upon
exercise), the Buyer to sell to the Seller at the Strike Price a specified
quantity of the Put Currency.
"Put Currency" means the Currency agreed to as such at the time an Option
is entered into, as evidenced in a Confirmation.
"Schedule" means the Schedule attached to and part of this Master
Agreement, as it may be amended from time to time by agreement of the Parties.
"Seller" means the Party granting an Option.
"Settlement Date" means, in respect of: (i) an American Style Option, the
Spot Date of the Currency Pair on the Exercise Date of such Option, and (ii) a
European Style Option, the Spot Date of the Currency Pair on the Expiration Date
of such Option; and, where market practice in the relevant foreign exchange
market in relation to the two Currencies involved provides for delivery of one
Currency on one date which is a Local Banking Day in relation to that Currency
but not to the other Currency and for delivery of the other Currency on the next
Local Banking Day in relation to that other Currency, "Settlement Date" means
such two (2) Local Banking Days.
"Settlement Netting Office(s)", in respect of a Party, means the
Designated Office(s) specified in Part V of the Schedule.
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect of
borrowed money, other than in respect of deposits received.
"Specified Transaction" means any transaction (including an agreement with
respect thereto) between one Party to the Agreement (or any Credit Support
Provider of such Party) and the other Party to the Agreement (or any Credit
Support Provider of such Party) which is a rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity
linked swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option with
respect to any of these transactions) or any combination of any of the
foregoing.
"Spot Date" means the spot delivery day for the relevant Currency Pair as
generally used by the relevant foreign exchange market.
"Spot Price" means the rate of exchange at the time at which such price is
to be determined for foreign exchange transactions in the relevant Currency Pair
for value on the Spot Date, as determined in good faith: (i) by the Seller, for
purposes of Section 5, and (ii) by the Non-Defaulting Party, for purposes of
Section 8.
"Strike Price", in respect of any Option, means the price at which the
Currency Pair may be exchanged, as agreed to at the time the Option is entered
into, as evidenced in a Confirmation.
"Threshold Amount" means the amount specified as such for each Party in
Part VIII of the Schedule.
"Value Date" means, with respect to any FX Transaction, the Business Day
(or where market practice in the relevant foreign exchange market in relation to
the two Currencies involved provides for delivery of one Currency on one date
which is a Local Banking Day in relation to that Currency but not to the other
Currency and for delivery of the other Currency on the next Local Banking Day in
relation to that other Currency ("Split Settlement") the two (2) Local Banking
Days in accordance with that market practice) agreed by the Parties for delivery
of the Currencies to be purchased and sold pursuant to such FX Transaction, and,
with respect to any Currency Obligation, the Business Day (or, in the case of
Split Settlement, Local Banking Day) upon which the obligation to deliver
Currency pursuant to such Currency Obligation is to be performed.
SECTION 2. FX TRANSACTIONS AND OPTIONS
2.1 Scope of the Agreement. The Parties (through their respective
Designated Offices) may enter into (i) FX Transactions, for such quantities of
such Currencies, as may be agreed subject to the terms of the Agreement, and
(ii) Options, for such Premiums, with such Expiration Dates, at such Strike
Prices and for the purchase or sale of such quantities of such Currencies, as
may be agreed subject to the terms of the Agreement; provided that neither Party
shall be required to enter into any FX Transaction or Option with the other
Party (other than in connection with an exercised Option). Unless otherwise
agreed in writing by the Parties, each FX Transaction and Option entered into
between Designated Offices of the Parties on or after the Effective Date shall
be governed by the Agreement. Each FX Transaction and Option between any two
Designated Offices of the Parties outstanding on the Effective Date which is
identified in Part I of the Schedule shall also be governed by the Agreement.
2.2 Single Agreement. This Master Agreement, the terms agreed between the
Parties with respect to each FX Transaction and Option (and, to the extent
recorded in a Confirmation, each such Confirmation), and all amendments to any
of such items shall together form the agreement between the Parties (the
"Agreement") and shall together constitute a single agreement between the
Parties. The Parties acknowledge that all FX Transactions and Options are
entered into in reliance upon such fact, it being understood that the Parties
would not otherwise enter into any FX Transaction or Option.
2.3 Confirmations. FX Transactions and Options shall be promptly confirmed
by the Parties by Confirmations exchanged by mail, telex, facsimile or other
electronic means from which it is possible to produce a hard copy. The failure
by a Party to issue a Confirmation shall not prejudice or invalidate the terms
of any FX Transaction or Option.
2.4 Inconsistencies. In the event of any inconsistency between the
provisions of the Schedule and the other provisions of the Agreement, the
Schedule will prevail. In the event of any inconsistency between the terms of a
Confirmation and the other provisions of the Agreement, (i) in the case of an FX
Transaction, the other provisions of the Agreement shall prevail, and the
Confirmation shall not modify the other terms of the Agreement and (ii) in the
case of an Option, the terms of the Confirmation shall prevail, and the other
terms of the Agreement shall be deemed modified with respect to such Option,
except for the manner of confirmation under Section 2.3 and, if applicable,
discharge of Options under Section 4.
SECTION 3. OPTION PREMIUM
3.1 Payment of Premium. Unless otherwise agreed in writing by the Parties,
the Buyer shall be obligated to pay the Premium related to an Option no later
than its Premium Payment Date.
3.2 Late Payment or Non-Payment of Premium. If any Premium is not received
on or before the Premium Payment Date, the Seller may elect: (i) to accept a
late payment of such Premium; (ii) to give written notice of such non-payment
and, if such payment shall not be received within two (2) Business Days of such
notice, treat the related Option as void; or (iii) to give written notice of
such non-payment and, if such payment shall not be received within two (2)
Business Days of such notice, treat such non-payment as an Event of Default
under clause (i) of the definition of Event of Default. If the Seller elects to
act under either clause (i) or (ii) of the preceding sentence, the Buyer shall
pay all out-of-pocket costs and actual damages incurred in connection with such
unpaid or late Premium or void Option, including, without limitation, interest
on such Premium from and including the Premium Payment Date to but excluding the
late payment date in the same Currency as such Premium at overnight LIBOR and
any other losses, costs or expenses incurred by the Seller in connection with
such terminated Option, for the loss of its bargain, its cost of funding, or the
loss incurred as a result of terminating, liquidating, obtaining or
re-establishing a delta hedge or related trading position with respect to such
Option.
SECTION 4. DISCHARGE AND TERMINATION OF OPTIONS; NETTING OF OPTION PREMIUMS
4.1 Discharge and Termination. If agreed in Part V of the Schedule, any
Call or any Put written by a Party will automatically be discharged and
terminated, in whole or in part, as applicable, against a Call or a Put,
respectively, written by the other Party, such discharge and termination to
occur automatically upon the payment in full of the last Premium payable in
respect of such Options; provided that such discharge and termination may only
occur in respect of Options:
(i) each being with respect to the same Put Currency and the same Call
Currency;
(ii) each having the same Expiration Date and Expiration Time; (iii) each
being of the same style, i.e. either both being American Style
Options or both being European Style Options;
(iv) each having the same Strike Price;
(v) each being transacted by the same pair of Designated Offices of
Buyer and Seller; and
(vi) neither of which shall have been exercised by delivery of a Notice
of Exercise;
and, upon the occurrence of such discharge and termination, neither Party shall
have any further obligation to the other Party in respect of the relevant
Options or, as the case may be, parts thereof so discharged and terminated. Such
discharge and termination shall be effective notwithstanding that either Party
may fail to record such discharge and termination in its books. In the case of a
partial discharge and termination (i.e., where the relevant Options are for
different amounts of the Currency Pair), the remaining portion of the Option
which is partially discharged and terminated shall continue to be an Option for
all purposes of the Agreement, including this Section 4.1.
4.2 Netting of Option Premiums. If agreed in Part V of the Schedule and
if, on any date, Premiums would otherwise be payable under the Agreement in the
same Currency between the same respective Designated Offices of the Parties,
then, on such date, each Party's obligation to make payment of any such Premium
will be automatically satisfied and discharged and, if the aggregate Premium(s)
that would otherwise have been payable by such Designated Office of one Party
exceeds the aggregate Premium(s) that would otherwise have been payable by such
Designated Office of the other Party, replaced by an obligation upon the Party
by whom the larger aggregate Premium(s) would have been payable to pay the other
Party the excess of the larger aggregate Premium(s) over the smaller aggregate
Premium(s) and, if the aggregate Premiums are equal, no payment shall be made.
SECTION 5. EXERCISE AND SETTLEMENT OF OPTIONS
5.1 Exercise of Options. The Buyer may exercise an Option by delivery to
the Seller of a Notice of Exercise. Subject to Section 5.3, if a Notice of
Exercise with respect to an Option has not been received by the Seller prior to
or at the Expiration Time, the Option shall expire and become void and of no
effect. Any Notice of Exercise shall (unless otherwise agreed):
(i) in respect of an American Style Option, (A) if received at or prior to
3:00 p.m. on a Business Day, be effective upon receipt thereof by the Seller,
and (B) if received after 3:00 p.m. on a Business Day, be effective only as of
the opening of business of the Seller on the first Business Day subsequent to
its receipt; and
(ii) in respect of a European Style Option, if received on or, if the
parties have so agreed, before the Expiration Date, prior to or at the
Expiration Time, be effective upon receipt thereof by the Seller.
5.2 No Partial Exercise. Unless otherwise agreed by the Parties, an
Option may be exercised only in whole.
5.3 Automatic Exercise. Unless otherwise agreed in Part VI of the Schedule
or unless the Seller is otherwise instructed by the Buyer, if an Option has an
In-the-Money Amount at its Expiration Time that equals or exceeds the product of
(x) 1% of the Strike Price (or such other percentage or amount as may have been
agreed by the Parties) and (y) the amount of the Call Currency or Put Currency,
as appropriate, then the Option shall be deemed automatically exercised. In such
case, the Seller may elect to settle such Option either in accordance with
Section 5.4 or by payment to the Buyer on the Settlement Date for such Option of
the In-the-Money Amount, as determined at the Expiration Time or as soon
thereafter as practicable. In the latter case, the sole obligations of the
Parties with respect to settlement of such Option shall be to deliver or receive
the In-the-Money Amount of such Option on the Settlement Date. The Seller shall
notify the Buyer of its election of the method of settlement of an automatically
exercised Option as soon as practicable after the Expiration Time.
5.4 Settlement of Exercised Options. An exercised Option shall settle on
its Settlement Date. Subject to Section 5.3 and 5.5, on the Settlement Date, the
Buyer shall pay the Put Currency to the Seller for value on the Settlement Date
and the Seller shall pay the Call Currency to the Buyer for value on the
Settlement Date. An exercised Option shall be treated as an FX Transaction and a
Currency Obligation (except, for the purposes of Section 8.1 only, if it is to
be settled at its In-the-Money Amount), and for this purpose the relevant
Settlement Date shall be treated as the Value Date of the FX Transaction.
5.5 Settlement at In-the-Money Amount. An Option shall be settled at its
In-the-Money Amount if so agreed by the Parties at the time such Option is
entered into. In such case, the In-the-Money Amount shall be determined based
upon the Spot Price at the time of exercise or as soon thereafter as
practicable. The sole obligations of the Parties with respect to settlement of
such Option shall be to deliver or receive the In-the-Money Amount of such
Option on the Settlement Date.
SECTION 6. SETTLEMENT AND NETTING OF FX TRANSACTIONS
6.1 Settlement of FX Transactions. Subject to Sections 6.2 and 6.3, each
Party shall deliver to the other Party the amount of the Currency to be
delivered by it under each Currency Obligation on the Value Date for such
Currency Obligation.
6.2 Settlement Netting. If, on any date, more than one delivery of a
particular Currency under Currency Obligations is to be made between a pair of
Settlement Netting Offices, then each Party shall aggregate the amounts of such
Currency deliverable by it and only the difference between these aggregate
amounts shall be delivered by the Party owing the larger aggregate amount to the
other Party, and, if the aggregate amounts are equal, no delivery of the
Currency shall be made.
6.3 Novation Netting. (a) By Currency. If the Parties enter into an FX
Transaction through a pair of Novation Netting Offices giving rise to a Currency
Obligation for the same Value Date and in the same Currency as a then existing
Currency Obligation between the same pair of Novation Netting Offices, then
immediately upon entering into such FX Transaction, each such Currency
Obligation shall automatically and without further action be individually
canceled and simultaneously replaced by a new Currency Obligation for such Value
Date determined as follows: the amounts of such Currency that would otherwise
have been deliverable by each Party on such Value Date shall be aggregated and
the Party with the larger aggregate amount shall have a new Currency Obligation
to deliver to the other Party the amount of such Currency by which its aggregate
amount exceeds the other Party's aggregate amount, provided that if the
aggregate amounts are equal, no new Currency Obligation shall arise. This
Section 6.3 shall not affect any other Currency Obligation of a Party to deliver
any different Currency on the same Value Date.
(b) By Matched Pair. If the Parties enter into an FX Transaction between a
pair of Matched Pair Novation Netting Offices then the provisions of Section
6.3(a) shall apply only in respect of Currency Obligations arising by virtue of
FX Transactions entered into between such pair of Matched Pair Novation Netting
Offices and involving the same pair of Currencies and the same Value Date.
6.4 General (a) Inapplicability of Sections 6.2 and 6.3. The provisions of
Sections 6.2 and 6.3 shall not apply if a Close-Out Date has occurred or a
voluntary or involuntary Insolvency Proceeding or action of the kind described
in clause (ii), (iii) or (iv) of the definition of Event of Default has occurred
without being dismissed in relation to either Party.
(b) Failure to Record. The provisions of Section 6.3 shall apply
notwithstanding that either Party may fail to record the new Currency Obligation
in its books.
(c) Cut-off Date and Time. The provisions of Section 6.3 are subject to
any cut-off date and cut-off time agreed between the applicable Novation Netting
Offices and Matched Pair Novation Netting Offices of the Parties.
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 Representations and Warranties. Each Party represents and warrants to
the other Party as of the Effective Date and as of the date of each FX
Transaction and each Option that: (i) it has authority to enter into the
Agreement (including such FX Transaction or Option, as the case may be); (ii)
the persons entering into the Agreement (including such FX Transaction or
Option, as the case may be) on its behalf have been duly authorized to do so;
(iii) the Agreement (including such FX Transaction or Option, as the case may
be) is binding upon it and enforceable against it in accordance with its terms
(subject to applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors' rights generally and applicable principles of
equity) and does not and will not violate the terms of any agreements to which
such Party is bound; (iv) no Event of Default, or event which, with notice or
lapse of time or both, would constitute an Event of Default, has occurred and is
continuing with respect to it; (v) it acts as principal in entering into each FX
Transaction and Option and exercising each and every Option; and (vi) if the
Parties have so specified in Part XV of the Schedule, it makes the
representations and warranties set forth in such Part XV.
7.2 Covenants. Each Party covenants to the other Party that: (i) it will
at all times obtain and comply with the terms of and do all that is necessary to
maintain in full force and effect all authorizations, approvals, licenses and
consents required to enable it lawfully to perform its obligations under the
Agreement; (ii) it will promptly notify the other Party of the occurrence of any
Event of Default with respect to itself or any Credit Support Provider in
relation to it; and (iii) if the Parties have set forth additional covenants in
Part XVI of the Schedule, it makes the covenants set forth in such Part XVI.
SECTION 8. CLOSE-OUT AND LIQUIDATION
8.1 Manner of Close-Out and Liquidation. (a) Close-Out. If an Event of
Default has occurred and is continuing, then the Non-Defaulting Party shall have
the right to close out all, but not less than all, outstanding Currency
Obligations (including any Currency Obligation which has not been performed and
in respect of which the Value Date is on or precedes the Close-Out Date) and
Options, except to the extent that in the good faith opinion of the
Non-Defaulting Party certain of such Currency Obligations or Options may not be
closed out under applicable law. Such close-out shall be effective upon receipt
by the Defaulting Party of notice that the Non-Defaulting Party is terminating
such Currency Obligations and Options. Notwithstanding the foregoing, unless
otherwise agreed by the Parties in Part X of the Schedule, in the case of an
Event of Default in clause (ii), (iii) or (iv) of the definition thereof with
respect to a Party and, if agreed by the Parties in Part IX of the Schedule, in
the case of any other Event of Default specified and so agreed in Part IX with
respect to a Party, close-out shall be automatic as to all outstanding Currency
Obligations and Options, as of the time immediately preceding the institution of
the relevant Insolvency Proceeding or action. The Non-Defaulting Party shall
have the right to liquidate such closed-out Currency Obligations and Options as
provided below.
(b) Liquidation of Currency Obligations. Liquidation of Currency
Obligations terminated by close-out shall be effected as follows:
(i) Calculating Closing Gain or Loss. The Non-Defaulting Party shall
calculate in good faith, with respect to each such terminated Currency
Obligation, except to the extent that in the good faith opinion of the
Non-Defaulting Party certain of such Currency Obligations may not be liquidated
as provided herein under applicable law, as of the Close-Out Date or as soon
thereafter as reasonably practicable, the Closing Gain, or, as appropriate, the
Closing Loss, as follows:
(A) for each Currency Obligation calculate a "Close-Out Amount" as
follows:
(1) in the case of a Currency Obligation whose Value Date is
the same as or is later than the Close-Out Date, the amount of such Currency
Obligation; or
(2) in the case of a Currency Obligation whose Value Date
precedes the Close-Out Date, the amount of such Currency Obligation increased,
to the extent permitted by applicable law, by adding interest thereto from and
including the Value Date to but excluding the Close-Out Date at overnight LIBOR;
and
(3) for each such amount in a Currency other than the
Non-Defaulting Party's Base Currency, convert such amount into the
Non-Defaulting Party's Base Currency at the rate of exchange at which, at the
time of the calculation, the Non-Defaulting Party can buy such Base Currency
with or against the Currency of the relevant Currency Obligation for delivery
(x) if the Value Date of such Currency Obligation is on or after the Spot Date
as of such time of calculation for the Base Currency, on the Value Date of that
Currency Obligation or (y) if such Value Date precedes such Spot Date, for
delivery on such Spot Date (or, in either case, if such rate of exchange is not
available, conversion shall be accomplished by the Non-Defaulting Party using
any commercially reasonable method); and
(B) determine in relation to each Value Date: (1) the sum of all
Close-Out Amounts relating to Currency Obligations under which the
Non-Defaulting Party would otherwise have been entitled to receive the relevant
amount on that Value Date; and (2) the sum of all Close-Out Amounts relating to
Currency Obligations under which the Non-Defaulting Party would otherwise have
been obliged to deliver the relevant amount to the Defaulting Party on that
Value Date; and
(C) if the sum determined under (B)(1) is greater than the sum
determined under (B)(2), the difference shall be the Closing Gain for such Value
Date; if the sum determined under (B)(1) is less than the sum determined under
(B)(2), the difference shall be the Closing Loss for such Value Date.
(ii) Determining Present Value. To the extent permitted by applicable law,
the Non-Defaulting Party shall adjust the Closing Gain or Closing Loss for each
Value Date falling after the Close-Out Date to present value by discounting the
Closing Gain or Closing Loss from and including the Value Date to but excluding
the Close-Out Date, at LIBOR with respect to the Non-Defaulting Party's Base
Currency as at the Close-Out Date or at such other rate as may be prescribed by
applicable law.
(iii) Netting. The Non-Defaulting Party shall aggregate the following
amounts so that all such amounts are netted into a single liquidated amount
payable to or by the Non-Defaulting Party: (x) the sum of the Closing Gains for
all Value Dates (discounted to present value, where appropriate, in accordance
with the provisions of Section 8.1(b)(ii)) (which for the purposes of the
aggregation shall be a positive figure); and (y) the sum of the Closing Losses
for all Value Dates (discounted to present value, where appropriate, in
accordance with the provisions of Section 8.1(b)(ii)) (which for the purposes of
the aggregation shall be a negative figure).
(c) Liquidation of Options. To liquidate unexercised Options and exercised
Options to be settled at their In-the-Money Amounts that have been terminated by
close-out, the Non-Defaulting Party shall:
(i) Calculating Settlement Amount. Calculate in good faith with respect to
each such terminated Option, except to the extent that in the good faith opinion
of the Non-Defaulting Party certain of such Options may not be liquidated as
provided herein under applicable law, as of the Close-Out Date or as soon as
reasonably practicable thereafter a settlement amount for each Party equal to
the aggregate of:
(A) with respect to each Option purchased by such Party, and which
the other Party has not elected to treat as void pursuant to Section 3.2(ii) for
lack of payment of the Premium, the current market premium for such Option;
(B) with respect to each Option sold by such Party and which such
Party has not elected to treat as void pursuant to Section 3.2(ii) for lack of
payment of the Premium, any unpaid Premium, provided that, if the Close-Out Date
occurs before the Premium Payment Date, such amount shall be discounted from and
including the Premium Payment Date to but excluding the Close-Out Date at a rate
equal to LIBOR on the Close-Out Date and, if the Close-Out Date occurs after the
Premium Payment Date, to the extent permitted by applicable law, the settlement
amount shall include interest on any unpaid Premium from and including the
Premium Payment Date to but excluding the Close-Out Date in the same Currency as
such Premium at overnight LIBOR;
(C) with respect to any exercised Option to be settled at its
In-the-Money Amount (whether or not the Close-Out Date occurs before the
Settlement Date for such Option), any unpaid amount due to such Party in
settlement of such Option and, if the Close-Out Date occurs after the Settlement
Date for such Option, to the extent permitted by applicable law, interest
thereon from and including the applicable Settlement Date to but excluding the
Close-Out Date at overnight LIBOR; and
(D) without duplication, the amount that the Non-Defaulting Party
reasonably determines in good faith, as of the Close-Out Date or as of the
earliest date thereafter that is reasonably practicable, to be its additional
losses, costs and expenses in connection with such terminated Option, for the
loss of its bargain, its cost of funding, or the loss incurred as a result of
terminating, liquidating, obtaining or re-establishing a delta hedge or related
trading position with respect to such Option;
(ii) Converting to Base Currency. Convert any settlement amount calculated
in accordance with clause (i) above in a Currency other than the Non-Defaulting
Party's Base Currency into such Base Currency at the Spot Price at which, at the
time of the calculation, the Non-Defaulting Party could enter into a contract in
the foreign exchange market to buy the Non-Defaulting Party's Base Currency in
exchange for such Currency (or, if such Spot Price is not available, conversion
shall be accomplished by the Non-Defaulting Party using any commercially
reasonable method); and
(iii) Netting. Net such settlement amounts with respect to each Party so
that all such amounts are netted to a single liquidated amount payable by one
Party to the other Party.
(d) Final Netting. The Non-Defaulting Party shall net (or, if both are
payable by one Party, add) the liquidated amounts payable under Sections 8.1(b)
and 8.1(c) with respect to each Party so that such amounts are netted (or added)
to a single liquidated amount payable by one Party to the other Party as a
settlement payment.
8.2 Set-Off Against Credit Support. Where close-out and liquidation occurs
in accordance with Section 8.1, the Non-Defaulting Party shall also be entitled
(i) to set off the net payment calculated in accordance with Section 8.1(d)
which the Non-Defaulting Party owes to the Defaulting Party, if any, against any
credit support or other collateral ("Credit Support") held by the Defaulting
Party pursuant to a Credit Support Document or otherwise (including the
liquidated value of any non-cash Credit Support) in respect of the
Non-Defaulting Party's obligations under the Agreement or (ii) to set off the
net payment calculated in accordance with Section 8.1(d) which the Defaulting
Party owes to the Non-Defaulting Party, if any, against any Credit Support held
by the Non-Defaulting Party (including the liquidated value of any non-cash
Credit Support) in respect of the Defaulting Party's obligations under the
Agreement; provided that, for purposes of either such set-off, any Credit
Support denominated in a Currency other than the Non-Defaulting Party's Base
Currency shall be converted into such Base Currency at the rate specified in
Section 8.1(c)(ii).
8.3 Other Foreign Exchange Transactions and Currency Options. Where
close-out and liquidation occurs in accordance with Section 8.1, the
Non-Defaulting Party shall also be entitled to close-out and liquidate, to the
extent permitted by applicable law, any other foreign exchange transaction or
currency option entered into between the Parties which is then outstanding in
accordance with the provisions of Section 8.1, with each obligation of a Party
to deliver a Currency under such a foreign exchange transaction being treated as
if it were a Currency Obligation (including exercised options, provided that
cash-settled options shall be treated analogously to Options to be settled at
their In-the-Money Amount) and each unexercised option being treated as if it
were an Option under the Agreement.
8.4 Payment and Late Interest. The net amount payable by one Party to the
other Party pursuant to the provisions of Sections 8.1 and 8.3 above shall be
paid by the close of business on the Business Day following the receipt by the
Defaulting Party of notice of the Non-Defaulting Party's settlement calculation,
with interest at overnight LIBOR from and including the Close-Out Date to but
excluding such Business Day (and converted as required by applicable law into
any other Currency, any costs of conversion to be borne by, and deducted from
any payment to, the Defaulting Party). To the extent permitted by applicable
law, any amounts owed but not paid when due under this Section 8 shall bear
interest at overnight LIBOR (or, if conversion is required by applicable law
into some other Currency, either overnight LIBOR with respect to such other
Currency or such other rate as may be prescribed by such applicable law) for
each day for which such amount remains unpaid. Any addition of interest or
discounting required under this Section 8 shall be calculated on the basis of a
year of such number of days as is customary for transactions involving the
relevant Currency in the relevant foreign exchange market.
8.5 Suspension of Obligations. Without prejudice to the foregoing, so long
as a Party shall be in default in payment or performance to the other Party
under the Agreement and the other Party has not exercised its rights under this
Section 8, or, if "Adequate Assurances" is specified as applying to the
Agreement in Part XI of the Schedule, during the pendency of a reasonable
request to a Party for adequate assurances of its ability to perform its
obligations under the Agreement, the other Party may, at its election and
without penalty, suspend its obligation to perform under the Agreement.
8.6 Expenses. The Defaulting Party shall reimburse the Non-Defaulting
Party in respect of all out-of-pocket expenses incurred by the Non-Defaulting
Party (including fees and disbursements of counsel, including attorneys who may
be employees of the Non-Defaulting Party) in connection with any reasonable
collection or other enforcement proceedings related to the payments required
under the Agreement.
8.7 Reasonable Pre-Estimate. The Parties agree that the amounts
recoverable under this Section 8 are a reasonable pre-estimate of loss and not a
penalty. Such amounts are payable for the loss of bargain and the loss of
protection against future risks and, except as otherwise provided in the
Agreement, neither Party will be entitled to recover any additional damages as a
consequence of such losses.
8.8 No Limitation of Other Rights; Set-Off. The Non-Defaulting Party's
rights under this Section 8 shall be in addition to, and not in limitation or
exclusion of, any other rights which the Non-Defaulting Party may have (whether
by agreement, operation of law or otherwise), and, to the extent not prohibited
by law, the Non-Defaulting Party shall have a general right of set-off with
respect to all amounts owed by each Party to the other Party, whether due and
payable or not due and payable (provided that any amount not due and payable at
the time of such set-off shall, if appropriate, be discounted to present value
in a commercially reasonable manner by the Non-Defaulting Party). The
Non-Defaulting Party's rights under this Section 8.8 are subject to Section 8.7.
SECTION 9. FORCE MAJEURE, ACT OF STATE, ILLEGALITY AND IMPOSSIBILITY
9.1 Force Majeure, Act of State, Illegality and Impossibility. If either
Party is prevented from or hindered or delayed by reason of force majeure or act
of state in the delivery or receipt of any Currency in respect of a Currency
Obligation or Option or if it becomes or, in the good faith judgment of one of
the Parties, may become unlawful or impossible for either Party to make or
receive any payment in respect of a Currency Obligation or Option, then the
Party for whom such performance has been prevented, hindered or delayed or has
become illegal or impossible shall promptly give notice thereof to the other
Party and either Party may, by notice to the other Party, require the close-out
and liquidation of each affected Currency Obligation and Option in accordance
with the provisions of Section 8.1 and, for such purposes, the Party unaffected
by such force majeure, act of state, illegality or impossibility (or, if both
Parties are so affected, whichever Party gave the relevant notice) shall perform
the calculation required under Section 8.1 as if it were the Non-Defaulting
Party. Nothing in this Section 9.1 shall be taken as indicating that the Party
treated as the Defaulting Party for the purpose of calculations required by
Section 8.1 has committed any breach or default.
9.2 Transfer to Avoid Force Majeure, Act of State, Illegality or
Impossibility. If Section 9.1 becomes applicable, unless prohibited by law, the
Party which has been prevented, hindered or delayed from performing shall, as a
condition to its right to designate a close-out and liquidation of any affected
Currency Obligation or Option, use all reasonable efforts (which will not
require such Party to incur a loss, excluding immaterial, incidental expenses)
to transfer as soon as practicable, and in any event before the earlier to occur
of the expiration date of the affected Options or twenty (20) days after it
gives notice under Section 9.1, all its rights and obligations under the
Agreement in respect of the affected Currency Obligations and Options to another
of its Designated Offices so that such force majeure, act of state, illegality
or impossibility ceases to exist. Any such transfer will be subject to the prior
written consent of the other Party, which consent will not be withheld if such
other Party's policies in effect at such time would permit it to enter into
transactions with the transferee Designated Office on the terms proposed, unless
such transfer would cause the other Party to incur a material tax or other cost.
SECTION 10. PARTIES TO RELY ON THEIR OWN EXPERTISE
Each Party will be deemed to represent to the other Party on the date on
which it enters into an FX Transaction or Option that (absent a written
agreement between the Parties that expressly imposes affirmative obligations to
the contrary for that FX Transaction or Option): (i)(A) it is acting for its own
account, and it has made its own independent decisions to enter into that FX
Transaction or Option and as to whether that FX Transaction or Option is
appropriate or proper for it based upon its own judgment and upon advice from
such advisors as it has deemed necessary; (B) it is not relying on any
communication (written or oral) of the other Party as investment advice or as a
recommendation to enter into that FX Transaction or Option, it being understood
that information and explanations related to the terms and conditions of an FX
Transaction or Option shall not be considered investment advice or a
recommendation to enter into that FX Transaction or Option; and (C) it has not
received from the other Party any assurance or guarantee as to the expected
results of that FX Transaction or Option; (ii) it is capable of evaluating and
understanding (on its own behalf or through independent professional advice),
and understands and accepts, the terms, conditions and risks of that FX
Transaction or Option; and (iii) the other Party is not acting as a fiduciary or
an advisor for it in respect of that FX Transaction or Option.
SECTION 11. MISCELLANEOUS
11.1 Currency Indemnity. The receipt or recovery by either Party (the
"first Party") of any amount in respect of an obligation of the other Party (the
"second Party") in a Currency other than that in which such amount was due,
whether pursuant to a judgment of any court or pursuant to Section 8 or 9, shall
discharge such obligation only to the extent that, on the first day on which the
first Party is open for business immediately following such receipt or recovery,
the first Party shall be able, in accordance with normal banking practice, to
purchase the Currency in which such amount was due with the Currency received or
recovered. If the amount so purchasable shall be less than the original amount
of the Currency in which such amount was due, the second Party shall, as a
separate obligation and notwithstanding any judgment of any court, indemnify the
first Party against any loss sustained by it. The second Party shall in any
event indemnify the first Party against any costs incurred by it in making any
such purchase of Currency.
11.2 Assignment. Neither Party may assign, transfer or charge or purport
to assign, transfer or charge its rights or obligations under the Agreement to a
third party without the prior written consent of the other Party and any
purported assignment, transfer or charge in violation of this Section 11.2 shall
be void.
11.3 Telephonic Recording. The Parties agree that each may electronically
record all telephonic conversations between them and that any such recordings
may be submitted in evidence to any court or in any Proceedings for the purpose
of establishing any matters pertinent to the Agreement.
11.4 Notices. Unless otherwise agreed, all notices, instructions and other
communications to be given to a Party under the Agreement shall be given to the
address, telex (if confirmed by the appropriate answerback), facsimile
(confirmed if requested) or telephone number and to the individual or department
specified by such Party in Part III of the Schedule. Unless otherwise specified,
any notice, instruction or other communication given in accordance with this
Section 11.4 shall be effective upon receipt.
11.5 Termination. Each of the Parties may terminate the Agreement at any
time by seven (7) days' prior written notice to the other Party delivered as
prescribed in Section 11.4, and termination shall be effective at the end of
such seventh day; provided, however, that any such termination shall not affect
any outstanding Currency Obligations or Options, and the provisions of the
Agreement shall continue to apply until all the obligations of each Party to the
other under the Agreement have been fully performed.
11.6 Severability. In the event any one or more of the provisions
contained in the Agreement should be held invalid, illegal or unenforceable in
any respect under the law of any jurisdiction, the validity, legality and
enforceability of the remaining provisions contained in the Agreement under the
law of such jurisdiction, and the validity, legality and enforceability of such
and any other provisions under the law of any other jurisdiction shall not in
any way be affected or impaired thereby. The Parties shall endeavor in good
faith negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
11.7 No Waiver. No indulgence or concession granted by a Party and no
omission or delay on the part of a Party in exercising any right, power or
privilege under the Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
11.8 Master Agreement. Where one of the Parties to the Agreement is
domiciled in the United States, the Parties intend that the Agreement shall be a
master agreement, as referred to in 11 U.S.C. Section 101(53B)(C) and 12 U.S.C.
Section 1821(e)(8)(D)(vii).
11.9 Time of Essence, Etc. Time shall be of the essence in the Agreement.
Unless otherwise agreed, the times referred to in the Agreement with respect to
Options shall in each case refer to the local time of the relevant Designated
Office of the Seller of the relevant Option.
11.10 Headings. Headings in the Agreement are for ease of reference only.
11.11 Payments Generally. All payments to be made under the Agreement
shall be made in same day (or immediately available) and freely transferable
funds and, unless otherwise specified, shall be delivered to such office of such
bank, and in favor of such account as shall be specified by the Party entitled
to receive such payment in Part IV of the Schedule or in a notice given in
accordance with Section 11.4.
11.12 Amendments. No amendment, modification or waiver of the Agreement
will be effective unless in writing executed by each of the Parties; provided
that the Parties may agree in a Confirmation that complies with Section 2.3 to
amend the Agreement solely with respect to the Option that is the subject of the
Confirmation.
11.13 Credit Support. A Credit Support Document between the Parties may
apply to obligations governed by the Agreement. If the Parties have executed a
Credit Support Document, such Credit Support Document shall be subject to the
terms of the Agreement and is hereby incorporated by reference in the Agreement.
In the event of any conflict between a Credit Support Document and the
Agreement, the Agreement shall prevail, except for any provision in such Credit
Support Document in respect of governing law.
11.14 Adequate Assurances. If the Parties have so agreed in Part XI of the
Schedule, the failure by a Party to give adequate assurances of its ability to
perform any of its obligations under the Agreement within two (2) Business Days
of a written request to do so when the other Party has reasonable grounds for
insecurity shall be an Event of Default under the Agreement.
11.15 Correction of Confirmations. Unless either Party objects to the
terms contained in any Confirmation sent by the other Party or sends a corrected
Confirmation within three (3) Business Days of receipt of such Confirmation, or
such shorter time as may be appropriate given the Value Date of an FX
Transaction, the terms of such Confirmation shall be deemed correct and accepted
absent manifest error. If the Party receiving a Confirmation sends a corrected
Confirmation within such three (3) Business Days, or shorter period, as
appropriate, then the Party receiving such corrected Confirmation shall have
three (3) Business Days, or shorter period, as appropriate, after receipt
thereof to object to the terms contained in such corrected Confirmation.
SECTION 12. LAW AND JURISDICTION
12.1 Governing Law. The Agreement shall be governed by, and construed
in accordance with, the laws of the jurisdiction set forth in Part XII of the
Schedule.
12.2 Consent to Jurisdiction. (a) With respect to any Proceedings, each
Party irrevocably (i) submits to the non-exclusive jurisdiction of the courts of
the jurisdiction set forth in Part XIII of the Schedule and (ii) waives any
objection which it may have at any time to the laying of venue of any
Proceedings brought in any such court, waives any claim that such Proceedings
have been brought in an inconvenient forum and further waives the right to
object, with respect to such Proceedings, that such court does not have
jurisdiction over such Party. Nothing in the Agreement precludes either Party
from bringing Proceedings in any other jurisdiction nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(b) Each Party irrevocably appoints the agent for service of process (if
any) specified with respect to it in Part XIV of the Schedule. If for any reason
any Party's process agent is unable to act as such, such Party will promptly
notify the other Party and within thirty (30) days will appoint a substitute
process agent acceptable to the other Party.
12.3 Waiver of Jury Trial. Each Party irrevocably waives any and all right
to trial by jury in any Proceedings.
12.4 Waiver of Immunities. Each Party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the grounds
of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
XXXXXX XXXXXXX CAPITAL GROUP INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
XXXXXX XXXXXXX PORTFOLIO STRATEGY FUND L.P.
By: Demeter Management Corporation
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: President
SCHEDULE
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Schedule to the International Foreign Exchange and Options Master Agreement
dated as of June 15, 2007 (the "Agreement")
between Xxxxxx Xxxxxxx Capital Group Inc. ("Party A")
and Xxxxxx Xxxxxxx Portfolio Strategy Fund L.P. ("Party B").
Part I. Scope of the Agreement
The Agreement shall apply to all FX Transactions outstanding between
any two Designated Offices of the Parties on the Effective Date.
The Agreement shall apply to all Options outstanding between any two
Designated Offices of the Parties on the Effective Date.
Part II. Designated Offices
Each of the following shall be a Designated Office:
Party A: New York
Party B: New York
Part III. Notices
If sent to Party A:
Address: Xxxxxx Xxxxxxx Capital Group Inc.
0000 Xxxxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
SWIFT Number: XXXXXX00
Name of Individual or Department
to whom Notices are to be sent: Foreign Exchange Trading Department
If sent to Party B:
Xxxxxx Xxxxxxx Portfolio Strategy Fund L.P.
[please provide]
Part IV. Payment Instructions
[X] Name of Bank and Office, Account Number and Reference with
respect to relevant Currencies: As specified in the relevant
Confirmation or as otherwise advised.
[X] With respect to each Party, as may be set forth in such Standard
Settlement Instructions as may be specified by such Party in a
notice given in accordance with Section 11.4.
Part V. Netting
A. Discharge of Options
Section 4.1 shall apply to Options other than barrier options.
B. Netting of Premiums
Section 4.2 shall apply to Premium payments for Options other than
barrier options.
C. Settlement Netting Offices
Each of the following shall be a Settlement Netting Office:
Party A: Same as Part II.
Party B: Same as Part II.
Party A and Party B agree that, notwithstanding Section 6.2 of the
Agreement, obligations to make payments pursuant to FX Transactions
shall only be netted, satisfied and discharged against obligations
to make payments arising out of the same or other FX Transactions
between a pair of Settlement Netting Offices and obligations to make
payments pursuant to Options (including exercised Options) shall
only be netted, satisfied and discharged against obligations to make
payments arising out of the same or other Options (including
exercised Options) between a pair of Settlement Netting Offices.
D. Novation Netting Offices
Each of the following shall be a Novation Netting Office:
Not applicable.
E. Matched Pair Novation Netting Offices
Each of the following shall be a Matched Pair Novation Netting
Office:
Not applicable.
Part VI. Automatic Exercise of Options; Cash Settlement of FX Transactions
A. Automatic Exercise of Options
Automatic Exercise of certain In-the-money Options pursuant to
Section 5.3 shall apply to Party A as Buyer.
Automatic Exercise of certain In-the-money Options pursuant to
Section 5.3 shall apply to Party B as Buyer.
B. Cash Settlement of FX Transactions
The following provision shall apply:
The definition of FX Transaction in Section 1 shall include foreign
exchange transactions for the purchase and sale of one Currency
against another but which shall be settled by the delivery of only
one Currency based on the difference between exchange rates as
agreed by the Parties as evidenced in a Confirmation. Section 6.1 is
modified so that only one Currency shall be delivered for any such
FX Transaction in accordance with the formula agreed by the Parties.
Section 8.1(b)(i)(A) is modified so that the Close-Out Amount for
any such FX Transaction for which the cash settlement amount has
been fixed on or before the Close-Out Date pursuant to the terms of
such FX Transaction shall be equal to the Currency Obligation
arising therefrom (increased by adding interest in the manner
provided in clause (A)(2) if the Value Date precedes the Close-Out
Date) and for any such FX Transaction for which the cash settlement
amount has not yet been fixed on the Close-Out Date pursuant to the
terms of such FX Transaction, the Close-Out Amount shall be as
reasonably determined by Party A in accordance with market practice.
Part VII. Base Currency
Party A's Base Currency is U.S. Dollars.
Party B's Base Currency is U.S. Dollars.
Part VIII. Threshold Amount
For purposes of clause (x) of the definition of Event of Default:
Party A's Threshold Amount is U.S.D. $10,000,000.
Party B's Threshold Amount is U.S.D. $10,000,000.
Part IX. Additional Events of Default
Not applicable.
Part X. Automatic Termination
The automatic termination provision of Section 8.1 shall not apply
to Party A as Defaulting Party in respect of clause (ii), (iii) or
(iv) of the definition of Event of Default.
The automatic termination provision of Section 8.1 shall not apply
to Party B as Defaulting Party in respect of clause (ii), (iii) or
(iv) of the definition of Event of Default; provided, however where
the Event of Default specified in clause (ii), (iii), or (iv) is
governed by a system of law which does not permit termination to
take place upon or after the occurrence of the relevant Event of
Default in accordance with the terms of the Agreement, then the
automatic termination provisions of Section 8.1 will apply to
Party B.
In addition to, and notwithstanding anything to the contrary in the
preceding sentence, if an Event of Default occurs as a result of
automatic termination, the Defaulting Party hereby agrees to
indemnify the Non-Defaulting Party on demand against all loss or
damage that the Non-Defaulting Party may sustain or incur in respect
of the Agreement and each Currency Obligation (including in relation
to terminating, liquidating, obtaining or reestablishing any hedge
or related position to the extent not already taken into account, in
the calculations performed) as a result of movements in relevant
rates, prices, yields, yield curves, volatilities, spreads or other
relevant market data between the Close-Out Date and the Business Day
upon which the Non-Defaulting Party first becomes aware that the
Event of Default has occurred, provided however, that if the
Non-Defaulting Party determines that any such movements have
actually resulted in a net, after tax, gain for the Non-Defaulting
Party then the Non-Defaulting Party agrees to pay to the Defaulting
Party the sum of such gain, subject to any rights the Non-Defaulting
Party may have under the Agreement or otherwise.
Part XI. Adequate Assurances
Adequate Assurances under Section 11.14 shall -apply to Party B.
Part XII. Governing Law
In accordance with Section 12.1 of the Agreement, the Agreement
shall be governed by the laws of the State of New York.
Part XIII. Consent to Jurisdiction
Section 12.2 of the Agreement is amended by (i) replacing clause (a)
with: "submits to the exclusive jurisdiction of the courts of the
State of New York and the United States District Court located in
the Borough of Manhattan in New York City and", and (ii) deleting
the last sentence thereof.
Part XIV. Agent for Service of Process
Party A appoints the following as its agent for service of process
in any Proceedings in the State of New York: Not applicable.
Party B appoints the following as its agent for service of process
in any Proceedings in State of New York: Not applicable.
Part XV. Certain Regulatory Representations
A. The following FDICIA representation shall apply:
1. Party A represents and warrants that it qualifies as a "financial
institution" within the meaning of the Federal Deposit Insurance
Corporation Improvement Act of 1991 ("FDICIA") by virtue of being a:
[ ] broker or dealer within the meaning of FDICIA;
[ ] depository institution within the meaning of FDICIA;
[ ] futures commission merchant within the meaning of FDICIA;
[X] "financial institution" within the meaning of Regulation EE (see
below)
2. Party B hereby represents and warrants that it qualifies as a
"financial institution" by virtue of being a:
[ ] broker or dealer within the meaning of FDICIA;
[ ] depository institution within the meaning of FDICIA;
[ ] futures commission merchant within the meaning of FDICIA;
[ ] "financial institution" within the meaning of Regulation EE (see
below).
3. A Party representing that it is a "financial institution" as that
term is defined in 12 C.F.R. Section 231.3 of Regulation EE issued
by the Board of Governors of the Federal Reserve System ("Regulation
EE") represents that:
(a) it is willing to enter into "financial contracts" as a
counterparty "on both sides of one or more financial markets"
as those terms are used in Section 231.3 of Regulation EE; and
(b) during the 15-month period immediately preceding the date it
makes or is deemed to make this representation, it has had on
at least one (1) day during such period, with counterparties
that are not its affiliates (as defined in Section 231.2(b) of
Regulation EE) either:
(i) one or more financial contracts of a total gross
notional principal amount of $1 billion outstanding; or
(ii) total xxxxx xxxx-to-market positions (aggregated across
counterparties) of $100 million; and
(c) agrees that it will notify the other Party if it no longer
meets the requirements for status as a financial institution
under Regulation EE.
4. If both Parties are financial institutions in accordance with the
above, the Parties agree that the Agreement shall be a netting
contract, as defined in 12 U.S.C. Section 4402(14), and each receipt
or payment or delivery obligation under the Agreement shall be a
covered contractual payment entitlement or covered contractual
payment obligation, respectively, as defined in FDICIA.
B. The following ERISA representation shall apply:
Each Party continuously represents that it is not (i) an employee
benefit plan (hereinafter an "ERISA Plan"), as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), subject to Title I of ERISA or a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended, or
subject to any other statute, regulation, procedure or restriction
that is materially similar to Section 406 of ERISA or Section 4975
of the Code (together with ERISA Plans, "Plans"), (ii) a person
acting on behalf of a Plan or (iii) a person any of the assets of
whom constitute assets of a Plan. Each Party will provide notice to
the other Party in the event that it is aware that it is in breach
of any aspect of this representation or is aware that with the
passing of time, giving of notice or expiry of any applicable grace
period it will breach this representation.
C. The following Commodity Exchange Act representation shall apply:
Each Party represents and warrants that it is an "eligible contract
participant" under, and as defined in, Section 1(a)(12) of the
Commodity Exchange Act, and was not formed solely for the purposes
of constituting an "eligible contract participant."
Part XVI. Representations and Warranties:
In addition to the representations and warranties set forth in
Section 7.1 of this Agreement, each Party hereby represents and
warrants to the other Party on the date hereof and on the date of
each FX Transaction or Option, as the case may be, that: (a) it is a
sophisticated investor able to evaluate and assume the risks
associated with transactions in currencies as contemplated by the
Agreement; (b) it is not relying upon any representations (whether
written or oral) of the other Party other than the representations
expressly set forth in the Agreement, this Schedule, any Credit
Support Document or in any Confirmation; (c) its execution and
delivery of the Agreement, and its performance of its obligations
hereunder, do not and will not conflict with any law or regulation
of the jurisdiction of its organization or other law or regulation
applicable to it, and do not and will not violate, constitute a
default under, or result in the creation or imposition of any lien
or encumbrance on any of its property or assets under any agreement
or instrument to which it is a party or by which its assets are
bound; (d) no consent, authorization or approval (including exchange
control approval) or other action by, and no notice to or filing
with, any person or entity, including any governmental authority or
regulatory body, other than any already obtained, made or filed and
remaining in full force and effect, and the conditions of which have
been duly complied with, is required in connection with the
performance of its obligations under the Agreement; and (e) there
are no actions, proceedings or claims pending or, to the best of its
knowledge, threatened, the adverse determination of which might have
a materially adverse effect on its ability to perform its
obligations under, or affect the validity or enforceability of, the
Agreement.
Part XVII. Agreement Superseding
A new Section 11.16 shall be added to the Agreement which shall read
as follows: "The Agreement shall supersede any other agreement
between the Parties with respect to the subject matter hereof."
Part XVIII. 1998 FX and Currency Option Definitions.
The 1998 FX and Currency Option Definitions as published by ISDA,
EMTA and The Foreign Exchange Committee (the "Definitions") shall be
applicable to each FX Transaction and Option under the Agreement,
including any FX Transaction or Option outstanding on the date
hereof, subject to the following:
A. Definitions
1. The term "Agreement" in Section 2.2 of the Agreement shall include
the Agreement as modified and supplemented by this Part.
2. The term "FX Transaction" and "Currency Option Transaction" in the
Definitions or in a Confirmation shall in all cases be considered
references to an "FX Transaction" and "Option" under the Agreement.
3. Section 3.4 of the Definitions is hereby amended by adding the
following new subparagraph at the end thereof:
(c) Payment of Premiums. If any Premium is not received on the
applicable Premium Payment Date, the Seller may elect either:
(i) to accept a late payment of such Premium; (ii) to give
written notice of such non-payment and, if such payment shall
not be received within two (2) Local Business Days of such
notice, treat the related Currency Option Transaction as void;
or (iii) to give written notice of such non-payment and, if
such payment shall not be received within two (2) Local
Business Days of such notice, treat such non-payment as an
Event of Default under the Master Agreement. If the Seller
elects to act under either clause (i) or (ii) of the preceding
sentence, the Buyer shall pay all out-of-pocket costs and
actual damages incurred in connection with such unpaid or late
Premium or void Currency Option Transaction, including,
without limitation, interest on such Premium in the same
currency as such Premium at the then-prevailing market rate
and any other costs or expenses incurred by the Seller in
covering its obligations (including, without limitation, a
delta hedge) with respect to such Currency Option Transaction.
4. The Definitions are hereby amended by adding the following new
Section 3.9:
Section 3.9. Discharge and Termination of Currency Option
Transactions. Unless otherwise agreed, any Call or Put written
by a party will automatically be terminated and discharged, in
whole or in part, as applicable, against a Call or a Put,
respectively, written by the other party, such termination and
discharge to occur automatically upon the payment in full of
the last Premium payable in respect of such Currency Option
Transactions; provided that, such termination and discharge
may only occur in respect of Currency Option Transactions:
(a) each being with respect to the same Put Currency and the
same Call Currency;
(b) each having the same Expiration Date and Expiration Time;
(c) each being of the same style (i.e., both being American
Style Options, both being European Style Options or both being
Bermuda or Mid-Atlantic Style Options);
(d) each having the same Strike Price;
(e) neither of which shall have been exercised by delivery of
a Notice of Exercise;
and, upon the occurrence of such termination and discharge,
neither party shall have any further obligation to the other
party in respect of the relevant Currency Option Transactions
or, as the case may be, parts thereof so terminated and
discharged. Such termination and discharge shall be effective
notwithstanding that either party (i) may fail to send out a
Confirmation, (ii) may fail to record such termination and
discharge in its books, or (iii) may send out a Confirmation
that is inconsistent with such termination and discharge. In
the case of a partial termination and discharge (i.e., where
the relevant Currency Option Transactions are for different
amounts of the Currency Pair), the remaining portion of the
Currency Option Transaction which is partially terminated and
discharged shall continue to be a Currency Option Transaction
for all purposes hereunder.
5. All terms in this Part shall have the meanings given them above or
in the Definitions, unless not defined above or in the Definitions,
in which case the term shall have the meaning given in the
Agreement.
B. Scope
1. Notwithstanding the absence of any reference to the Definitions in a
Confirmation, this Part and the Definitions shall be applicable to
any FX Transaction or Currency Option Transaction covered by the
Agreement; provided that the Parties may agree otherwise for any
Transaction as evidenced by a Confirmation that complies with
Section 2.3 of the Agreement.
2. In the event of any inconsistency between the Definitions and a
Confirmation, the terms of the Confirmation shall govern for the
purpose of the relevant Transaction. In the event of any
inconsistency between the Definitions and the Agreement, the
Definitions shall prevail.
C. Confirmations
Notwithstanding Sections 2.4 and 11.12 of the Agreement, in the
event of any inconsistency between the terms of a Confirmation for
an FX Transaction or Currency Option Transaction and the Agreement,
the terms of the Confirmation shall prevail.
D. Disruption Events
With respect to any Disruption Event that is applicable to an FX
Transaction or Currency Option Transaction pursuant to the
Definitions or as otherwise agreed by the Parties as evidenced by a
Confirmation, Section 9 of the Agreement shall not be applicable in
respect of such FX Transaction or Currency Option Transaction, and
the Parties shall be subject to the Disruption Fallbacks (including
but not limited to No Fault Termination) specified as applicable
pursuant to the Definitions or such Confirmation.
E. Miscellaneous
The provisions of Part VI.B of this Schedule relating to cash
settlement of FX Transactions shall apply to Non-Deliverable FX
Transactions.
Part XIX. Force Majeure, Act of State, Illegality and Impossibility
Section 9 of the Agreement is hereby amended by deleting it in its
entirety and inserting in its place the following replacement
Section:
"9.1 Liquidation Rights. If a Force Majeure Event occurs and
is still in effect, then (but subject to Section 9.2) either Party
may, by notice to the other Party on any day or days after the
Waiting Period expires, require the close-out and liquidation of the
Currency Obligations under any or all of the Affected Transactions
in accordance with the provisions of Section 8.1 and, for such
purposes, the Party unaffected by such Force Majeure Event shall
perform the calculation required under Section 8.1 as if it were the
Non-Defaulting Party (or, if both Parties are Affected Parties, but
Parties shall so calculate in respect of all Affected Transactions
which either Party determines to liquidate and the average of the
amounts so determined shall be the relevant amount in respect of
each Affected Transaction, except that if a Party fails to so
determine an amount, the amount determined by the other Party shall
govern). If a Party elects to so liquidate less than all Affected
Transactions, it may liquidate additional Affected Transactions on a
later day or days if the relevant Force Majeure Event is still in
effect.
9.2 Waiting Period. If the Value Date of an FX Transaction, or
the Settlement Date of an Option, which is an Affected Transaction,
under Section 9.1 falls during the Waiting Period of the relevant
Force Majeure Event, then such Value Date or Settlement Date (as
applicable) will be deferred to the first Business Day (or the first
day which, but for such event, would have been a Business Day) after
the end of that Waiting Period (or, in the case of Split Settlement,
the first Local Banking Day or the first day which, but for such
event, would have been a Local Banking Day, after the end of the
Waiting Period). Compensation for this deferral shall be at then
current market rates as determined in a commercially reasonable
manner by the calculating Party or Parties under Section 9.
9.3 Notice by Affected Party. If a Force Majeure Event has
occurred, an Affected Party shall promptly give notice thereof to
the other Party.
9.4 Force Majeure Event and Event of Default. Nothing in this
Section 9 shall be taken as indicating that the Party treated as the
Defaulting Party for the purpose of calculations required by Section
8.1 has committed any breach or default. If an event occurs that
would otherwise constitute both a Force Majeure Event and an Event
of Default, that event will be treated as a Force Majeure Event and
will not constitute an Event of Default."
In addition, the following definitions shall be added to Section 1
of the Agreement:
""Force Majeure Event", on any day determined as if such day
were a Value Date of an FX Transaction or the Settlement Date of an
Option (even if it is not), means (i) either Party, by reason of
force majeure or act of state, is prevented from or hindered or
delayed in delivering or receiving, or it is impossible to deliver
or receive, any Currency in respect of a Currency Obligation or
Option, and which event is beyond the control of such Party and
which such Party, with reasonable diligence, cannot overcome, or
(ii) it is unlawful for either Party to deliver or receive a payment
of any Currency in respect of a Currency Obligation or Option. A
Party whose delivery or receipt of Currency has been or would be so
prevented, hindered or delayed or made unlawful or impossible is an
"Affected Party", and an FX Transaction or Option under which
performance has been or would be so prevented, hindered or delayed
or made unlawful or impossible is an "Affected Transaction", unless
the Parties have expressly agreed in an Agreement, another writing
or in regard to a particular FX Transaction or Option that other
disruption events or disruption fallbacks will apply to that FX
Transaction or Option; in such event, that FX Transaction or Option
will be subject to such disruption events or disruption fallbacks as
the Parties have otherwise agreed.
"Waiting Period", in respect of a Force Majeure Event, means
that first three days after such event occurs which are Business
Days or which, but for such event, would have been Business Days."
Part XX. Margin and Security
A. Party B shall at all times maintain with Party A cash and securities
acceptable to Party A (together, the "Margin") in order to secure the
obligations of Party B under all open FX Transactions and Options entered
into under the Agreement. The amount of Margin which Party B shall
maintain with Party A shall be determined by Party A in its reasonable
judgment (which determination shall be conclusive in the absence of
manifest error), on a risk adjusted basis, taking into account historical
volatility, imputed volatility and/or such other factors as Party A
reasonably deems relevant to this determination (the "Aggregate Margin
Requirement"). On or prior to the date of the Agreement, Party B shall
have established a pledge account with Party A (the "Account") for the
purpose of holding custody of the Margin in accordance with the provisions
of the Agreement. Party B's failure to deposit Margin or to establish the
Account as required herein shall be an Event of Default for all purposes
under the Agreement (it being understood that there shall be no grace
period with respect to obligations of Party B pursuant to this Part XX.
Party A shall settle all FX Transactions and Options with Party B on a
secured basis only, such that Party A's payment obligations to Party B
shall be made (a) prior to receipt of Party B's counterpayment thereunder,
only to the extent that the amount by which Margin in the Account exceeds
the Aggregate Margin Requirement is greater than such counterpayment or
the U.S. Dollar equivalent thereof, or (b) after Party A has confirmed
receipt of Party B's counterpayment thereunder.
B. Whenever such Aggregate Margin Requirement shall exceed the market value
of Margin on deposit with Party A in the Account as determined by Party A
at such time in its reasonable judgment and which determination shall be
conclusive in the absence of manifest error (the "Margin Balance", and the
difference between such Aggregate Margin Requirement and the Margin
Balance being the "Shortfall"), then Party B shall deposit immediately
upon Party A's request, additional Margin in an amount at least equal to
such Shortfall.
C. In furtherance of the foregoing, as security for the prompt and complete
payment when due and the performance by Party B of all of its obligations
to Party A under the Agreement, Party B hereby grants to Party A a
continuing first priority security interest in and to all of Party B's
right, title and interest in and to the Margin, the Account, all financial
assets, investment property and other property and assets which are
deposited from time to time in, or credited from time to time to, the
Account, all security entitlements in respect thereof, all income and
profits thereon, all interest, dividends and other payments and
distributions with respect thereto, and all proceeds of any of the
foregoing (the "Margin Collateral"). In addition, Party B hereby grants to
Party A and its affiliates a first priority security interest in and to
any property of Party B at any time held by Party A or any affiliate of
Party A for any purpose, including, without limitation, any property of
Party B held in any account with Party A or any affiliate of Party A, any
financial assets, investment property and other property and assets which
are deposited from time to time in, or credited from time to time to, any
such account, all security entitlements in respect thereof, all income and
profits thereon, all interest, dividends and other payments and
distributions with respect thereto, and all proceeds of any of the
foregoing (the "Collateral"), to secure all obligations of Party B to
Party A. If Collateral was delivered in connection with a particular
agreement between Party B and Party A or any of its affiliates, then such
Collateral shall secure first the obligations of Party B with respect to
such agreement and second all other obligations of Party B to Party A or
any of its affiliates (in such order as Party A shall determine in its
sole discretion). Party A and its affiliates and Party B hereby each
acknowledge and agree that each of Party A and its affiliates which holds
Collateral holds such Collateral for itself and also as agent and bailee
for all other of Party A and its affiliates which are secured parties
hereunder or under any agreement between Party B and Party A or any of its
affiliates. If an Event of Default hereunder shall occur, then each of
Party A and its affiliates shall be entitled to retain or sell all
Collateral as security for Party B's obligations, even if otherwise
required pursuant to the terms of an agreement or otherwise to deliver any
Collateral to Party B or Party B's order. The parties agree that Party A
and its affiliates shall have the rights and remedies of a secured
creditor under the New York Uniform Commercial Code (the "UCC") and under
any other applicable law or agreement to exercise any right with respect
to the Margin Collateral and the Collateral subject to the security
interest granted under the Agreement. Each of Party A or any of its
affiliates shall have free and unrestricted use of any Margin Collateral
and/or Collateral which it holds hereunder, including, without limitation,
the right, from time to time and without notice to Party B, to sell,
pledge, repledge, hypothecate, rehypothecate, assign, invest, use,
commingle or otherwise dispose of, or otherwise use in its business any
Margin Collateral and/or Collateral separately or in common with other
securities, commodities or other property, for the sum due to any of Party
A or any of its affiliates or for a greater sum on terms which may
otherwise impair the right of Party B to redeem such Margin Collateral
and/or Collateral, and free from any other right of claim of any nature
whatsoever of Party B, and without retaining possession and control for
delivery a like amount of similar securities, commodities, or other
property.
D. Party B represents and warrants that it owns the Margin Collateral and the
Collateral to be pledged and assigned to each of Party A and its
affiliates hereunder and under any other agreement between Party B and
Party A or any of its affiliates, free and clear of any liens, equities,
claims (including, without limitation, participation interests) and
transfer restrictions. Party B covenants and agrees that it will not sell,
assign, transfer, exchange or otherwise dispose of, or grant any option
with respect to, any of the Margin Collateral or the Collateral, nor will
it create, incur or permit to exist any lien on or with respect to any of
the Margin Collateral or the Collateral, any interest therein, or any
proceeds thereof, except for the security interests created under this
Agreement or otherwise under any agreement between Party B and Party A or
any of its affiliates. Any purported sale, assignment, transfer, exchange,
disposition, grant or lien of the Margin Collateral or the Collateral by
Party B that is not permitted under the foregoing sentence shall be null
and void and shall constitute an Event of Default hereunder and under any
agreement between Party B and Party A or any of its affiliates immediately
prior to the taking of any such action, if Party A so deems (it being
understood that there shall be no grace period with respect to obligations
of Party B pursuant to this Part XX.
E. Party B shall, in its sole expense and as Party A in its sole discretion
may deem necessary or advisable from time to time, (i) to create,
preserve, protect and perfect the security interests granted under the
Agreement and (ii) to enable Party A to exercise and enforce its rights
with respect to such security interests, do all acts and things and
execute and deliver all documents and instruments in such manner and form
as Party A may require, including without limitation UCC financing
statements and continuation statements. Party B hereby appoints Party A as
its true and lawful attorney-in-fact, including without limitation, to
sign and file such documents and instruments on Party B's behalf and
without Party B's signature; such appointment, being coupled with an
interest, shall be irrevocable. Without limitation on the foregoing, Party
B agrees to take such action as Party A in its sole discretion may deem
necessary or advisable in the event of any change in applicable law,
including, without limitation, Articles 8 and 9 of the UCC and the
Regulations of the Department of the Treasury and other governmental
bodies governing transfers of interests in U.S. marketable treasury
securities in book-entry form.
F. The parties hereto agree that each of the Account and any account in which
any Collateral is held or to which any Collateral is credited (a
"Collateral Account") is a "securities account" within the meaning of
Article 8 of the UCC and that all property and assets (including, without
limitation, cash) held in or credited to (i) the Account or (ii) any
Collateral Account shall be treated as a "financial asset" for purposes of
Article 8 of the UCC.
XXXXXX XXXXXXX CAPITAL GROUP INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
XXXXXX XXXXXXX PORTFOLIO STRATEGY FUND L.P.
By: Demeter Management Corporation
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: President
