Exhibit 10.01(e)
FOREIGN EXCHANGE MASTER AGREEMENT
This FOREIGN EXCHANGE MASTER AGREEMENT sets forth the terms and
conditions that will govern foreign currency trading between Bear Xxxxxxx Forex
Inc. ("BSF") and (CUSTOMER NAME) (an investment fund organized under Luxembourg
law, which hereinafter shall be referred to as the "Counterparty"). This
Agreement shall not require the Parties to enter into any Forex or Option
Contracts but shall govern any Forex or Option Contracts which are currently
outstanding or hereafter entered into. All transactions are entered into in
reliance on the fact that this Master Agreement and all confirmations form a
single agreement between the Parties, and the parties would not otherwise enter
into any transactions. Each Party hereto represents and warrants that it is
fully authorized under its charter and/or by-laws and under local and United
States ("U.S.") law and regulations and an appropriate and suitable "person" to
enter into this Agreement and into the type of transactions described herein. An
advisor ("Advisor") may be appointed to act as Counterparty's advisor and agent
for any and all purposes under this Agreement; said appointment will be by
investment management agreement between Counterparty and Advisor and may also be
documented on a power of attorney.
1. DEFINITIONS
As used in this Foreign Exchange Master Agreement, the following terms
shall have the following meanings unless the context clearly indicates
otherwise:
(a) "Account" means the account maintained by BSSC as agent for
BSF in the name of Counterparty.
(b) "Advisor" means one or more entities appointed pursuant to
Section 12(k) and the Schedule, Part I., of this Agreement.
(c) "Affiliate" means parent company or affiliate of BSF,
including but not limited to BSSC.
(d) "Agreement" means this Master Foreign Exchange Agreement,
including the Schedule hereto, together with all Forex or Option Contracts
entered into hereunder.
(e) "American Style Option" means an Option which may be exercised
on any Business Day up to and including the Expiration Time.
(f) "Broker's Call Rate" means the broker's call rate quoted daily
by BSSC at its main office in New York. Factors affecting the determination of
BSSC's broker's call rate are the broker's call rates posted by various money
center banks that BSSC selects, other representative broker's call rates, such
as the "call money" rate published by the Wall Street Journal and the New York
Times, and the rate that BSSC is charged when borrowing money.
(g) "BSSC" means Bear, Xxxxxxx Securities Corp.
(h) "Business Day" means any day, excluding Saturday or Sunday, on
which commercial banks in New York City are open for business, provided however,
that for purposes of settlement under a Forex or Option Contract, a Business Day
must also be a day on which banks are open for business in the principal
financial center of each of the countries whose currencies are covered by that
Forex or Option Contract.
(i) "Buyer" means the owner of an Option.
(j) "Call" means an option entitling, but not obligating, the
Buyer to purchase from the Seller, at the Strike Price, a specified quantity of
the Call Currency.
(k) "Call Currency" means the currency agreed as such at the time
an Option is entered into.
(l) "Contract Value" shall mean the U.S. Dollar value of the
Currency subject to such Forex or Option Contract, at the contract price.
BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
(m) "Currency Pair" means the two currencies which may be
potentially exchanged upon the exercise of an Option, one of which shall be the
Put Currency and the other the Call Currency.
(n) "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.
(o) "Exercise Date" means the Business Day on which a Notice of
Exercise received by the Seller becomes effective.
(p) "Expiration Date" means the date specified as such in a
Confirmation.
(q) "Expiration Time" means the latest time on the Expiration Date
on which the Seller must accept a Notice of Exercise as specified in a
Confirmation.
(r) "Forex Contract" means a Forward Contract or Spot Contract;
"Forward Contract" means any contract between the Parties for the purchase or
sale of currency having a maturity date of more than two Business Days after the
date on which such contract is entered into, provided, however, that for
purposes of Section 4 of this Agreement, Forward Contract shall be any contract
having a maturity date more than two days after the date on which such contract
is entered into; and "Spot Contract" means any contract between the Parties for
the purchase or sale of currency having a maturity date of two Business Days or
less after the date on which such contract is entered into.
(s) "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.
(t) "Market Value" of any currency at any time means (i) for U.S.
Dollars, the amount of U.S. Dollars, and (ii) for any other currency, the amount
of U.S. Dollars that could be purchased at that time in exchange for that amount
of currency, based on then current exchange rates in the New York foreign
exchange market for delivery of such currency on the relevant Settlement Date,
as determined by BSF in any commercially reasonable manner.
(u) "Maturity Date" shall mean the date such Forex Contract or
Option is to be performed between the parties to that Contract.
(v) "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.
(w) "Offsetting Forward Contracts" mean any two or more
outstanding Forward Contracts having the same Settlement Date where under one or
more of such Forward Contracts BSF has agreed to receive one currency in
exchange for a second currency, and under the other of such Forward Contracts,
BSF has agreed to receive such second currency in exchange for such first
currency.
(x) "Option" means a Put or a Call on a Forex Contract, as the
case may be, including any unexpired Put or Call previously entered into by the
Parties, which shall become subject to the Agreement unless otherwise noted.
(y) "Parties" means the parties to this Agreement including their
successors and permitted assigns (but without prejudice to the application of
clause 4.(a)(vii)); and the term "Party" shall mean whichever of the Parties is
appropriate in the context in which such expression may be used.
(z) "Person" means an appropriate person or entity to engage in
Forex or Option Contracts, both under applicable laws and under any internal
documents authority.
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FOREIGN EXCHANGE AGREEMENT
(aa) "Premium" means the purchase price of the Option as agreed
upon by the Parties, and payable by the Buyer to the Seller thereof.
(ab) "Premium Payment Date" means unless otherwise agreed by the
parties hereto the date specified at the time of the execution of the option
unless otherwise provided for in the Confirmation.
(ac) "Put" means an option entitling, but not obligating, the Buyer
to sell to the Seller at the Strike Price a specified quantity of the Put
Currency.
(ad) "Put Currency" means the currency agreed as such at the time
an Option is entered into.
(ae) "Seller" means the Party granting an Option.
(af) "Settlement Date" means the Business Day specified for
delivery of the currencies bought and sold under a Forex or Option Contract, or
the date such Forex Contract or Option is to be performed between the Parties.
(ag) "Spot Date" means the spot delivery day for the relevant
Currency Pair as generally used by the foreign exchange market;
(ah) "Spot Price" means the price 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 by the Seller
and/or BSF;
(ai) "Strike Price" means the price specified in a Confirmation at
which the Currency Pair may be exchanged.
2. ENTRY INTO FOREX CONTRACTS AND OPTIONS
The Parties shall be legally bound by the terms of each Forex Contract
or Option (hereinafter Forex Contracts and Options may be collectively referred
to as "FX Transaction(s)") from the moment they agree to those terms (whether
orally or otherwise). BSF shall issue a confirmation ("Confirmation") or shall
procure that BSSC does so as soon as practicable after an FX Transaction is
entered into. Absent manifest error, unless the Counterparty objects to the
terms contained in any Confirmation within one (1) Business Day of receipt (as
such term is defined in Section 12 (c)) thereof (the "Applicable Period"), the
terms of such Confirmation shall be deemed correct. However, if a corrected
Confirmation is issued by BSF or an Affiliate of BSF within the Applicable
Period, it shall supersede the previous Confirmation and be deemed correct,
unless the Counterparty objects to the terms contained in such corrected
Confirmation within the subsequent Applicable Period, as measured from the
receipt (as such term is defined in Section 12 (c)) of the corrected
Confirmation. The failure by BSF or its Affiliates to issue a Confirmation shall
not prejudice or invalidate the terms of any FX Transactions governed by the
Agreement. Should Counterparty request suppression of Confirmations, that lack
of a Confirmation shall not prejudice or invalidate the terms of any FX
Transaction governed by this Agreement.
3. NETTING
(a) If at the time the Parties enter into a Forward Contract, one
or more other Forward Contracts are outstanding, which, when taken together with
such new Forward Contract, constitute Offsetting Forward Contracts, then (unless
the Parties otherwise specifically agree in writing or by exchange of telexes
evidencing mutual agreement with respect to one or more such Forward Contracts)
all such Offsetting Forward Contracts will automatically be canceled and
discharged and simultaneously replaced through novation by a new Forward
Contract which provides as follows: with respect to each currency, the amount to
be delivered by each Party under such Offsetting Forward Contracts shall be
compared and the Party having the greater obligation with respect to such
currency shall deliver to the other Party on the Settlement Date of such
Offsetting Forward Contracts an amount of such currency equal to the difference
between the amounts originally required to be delivered by the Parties pursuant
to such Offsetting Forward Contracts. Such new Forward Contract should be
considered a "Forward Contract" under this Agreement.
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BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
(b) If each Party has sold a Call Option to the other Party, or if
each Party has sold a Put Option to the other Party, then such pair of Call
Options or such pair of Put Options shall be terminated and discharged
automatically upon the payment in full of the last Premium payable in respect of
such Options; provided that such termination and discharge may only occur in
respect of Options:
(i) each being with respect to the same Currency Pair;
(ii) each having a Put Currency amount equal to the Put
Currency amount of the other and a Call Currency
amount equal to the Call Currency amount of the
other;
(iii) each having the same Expiration Date and Expiration
Time;
(iv) each being of the same style, i.e., either both being
American Style Options or both being European Style
Options;
(v) each having the same Strike Price;
(vi) neither of which shall have been exercised by
delivery of a Notice of Exercise; and
(vii) that are otherwise identical in terms that are
material for purposes of set-off and discharge.
In the case of a pair of Options meeting all the conditions for
termination and discharge except condition (ii) above, the Option having the
smaller Put Currency amount and Call Currency amount shall be automatically
terminated and discharged in its entirety upon payment in full of the last
premium payable in respect of such Options; and the Put Currency and Call
Currency amounts of the surviving Option shall be reduced by the respective Put
Currency and Call Currency amount of the Option discharged. The surviving
Option, with Put Currency and Call Currency amounts reduced as aforesaid, shall
continue to be an Option for all purposes of this Agreement, including this
Section 3. Upon the occurrence of termination and discharge under this Section
3., neither Party shall have any further obligation to the other party in
respect of Options discharged.
Any Forward Contract and Option resulting from netting as provided for
in this Section 3 remains a "Forward Contract" and "Option", respectively,
hereunder.
4. LIQUIDATION OF CONTRACTS
(a) A "default" shall occur with respect to any Party if: (i) the
defaulting Party shall fail to pay or perform any obligation under this
Agreement or any FX Transaction; (ii) the defaulting Party shall commence a case
or proceeding under any bankruptcy or insolvency law or have any such case or
proceeding commenced against it; (iii) otherwise become bankrupt or insolvent
(however evidenced) or be unable to pay its debts as they become due; (iv) the
defaulting Party shall have a trustee, receiver, liquidator, conservator,
administrator, custodian or other similar official appointed with respect to
itself or any substantial part of its assets under the laws of any jurisdiction
application to it or to all or part of its assets, and in each such case such
event is not cured after notice from BSF; (v) the defaulting Party shall
disaffirm, disclaim or repudiate any obligation; (vi) any representation or
warranty of the defaulting Party shall prove to have been false or misleading in
any material respect when made or repeated or when deemed to be made or
repeated; (vii) the defaulting Party consolidates or amalgamates with, or merges
into, or transfers all or substantially all its assets to, another entity and
the creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of the defaulting Party immediately prior to such
action; (viii) Counterparty fails to give adequate assurance of its ability
and/or its eligibility to perform its obligations under this Agreement after a
written notice requesting it to do so when BSF or any Affiliate has reasonable
grounds for insecurity; (ix) Counterparty is in default under any other
agreement with any Bear Xxxxxxx Entity; or (x) Counterparty fails to provide to
BSF a copy of payment instructions from their paying bank by 3:00 p.m. New York
time after a request by BSF on any day that a payment is due.
(b) Notwithstanding any other provision of this or any other
agreement between the Counterparty and BSF, immediately upon the occurrence of a
default, BSF shall have the right, in its sole and absolute discretion, to
cancel, terminate and liquidate any or all Forward Contracts then outstanding at
any time or from time to time by:
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BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
(i) closing out each such Forward Contract at a price
equal to the difference between the respective Market
Values of the currencies that are the subject of that
Forward Contract at the time of liquidation, so that
such Forward Contract is canceled and a settlement
payment in an amount equal to the difference between
such Market Values is due to the Party owed the
currency having the greater Market Value;
(ii) discounting each amount then due, where applicable,
under clause (i) to present value as at the time of
liquidation (to take account of the period between
the date of liquidation and the Settlement Date of
the relevant Forward Contract) or in the case of
Forward Contracts where the Settlement Date has
occurred adding interest to the amount owing by the
Defaulting Party at a rate equal to Broker's Call
Rate plus a spread to be determined by BSF in a
commercially reasonable manner; and
(iii) closing out each such Option at the time of
liquidation so that each such Option is canceled.
Market damages shall be calculated in U.S. Dollars
for each party such that they are equal to the
aggregate of (a) with respect to each Option
purchased by a party, the current market value for
such Option, (b) with respect to each Option sold by
a party, any unpaid Premium, and, to the extent
permitted by applicable law, interest on any unpaid
Premium in the same currency as such Premium at the
then prevailing market rate, and (c) with respect to
any exercised Option, any unpaid amount due in
settlement of such Option and, to the extent
permitted by applicable law, interest thereon from
the applicable Settlement Date to the day of
close-out; and (d) any costs and expenses incurred by
the non-defaulting Party in covering its obligations
(including a delta hedge) with respect to such
Option, all as determined in good faith by the
non-defaulting Party; and
(iv) setting-off against each other or aggregating, as
appropriate, all such discounted amounts owing by one
Party to the other and, at the election of BSF any or
all Margin (as defined below) then held by BSF, and
any or all other amounts owing by one Party to the
other which relate to this Agreement or any Forward
Contract (whether or not then due), so that all such
amounts are netted to a single net amount due to one
Party. The net amount due after liquidation shall be
paid within one Business Day.
(c) After a default by Counterparty, BSF or an Affiliate may at
any time and from time to time, liquidate any or all non-cash Margin (as defined
in Section 11) without notice to Counterparty. BSF or an Affiliate may, at its
option, include the proceeds of any such liquidation in any set off under
Section 4(b)(iv) and/or Section 4(e).
(d) The rate of interest to be used for purposes of calculating
present value under Section 4 (b) (ii) and Section 4 (e) shall be as determined
by BSF in any commercially reasonable manner.
(e) BSF's rights under this Section 4 shall be in addition to, and
not in limitation or exclusion of, any other rights which BSF or any of its
Affiliates may have (whether by agreement, operation of law or otherwise), and
BSF and its Affiliates shall have a general right of set-off with respect to all
amounts owed by Counterparty to BSF or to any of BSF's Affiliates whether due or
not due (provided that any amount not due at the time of such set-off shall be
discounted to present value). In addition to, and without limiting any of BSF's
rights under Section 4 (b), after a default, BSF may, in its sole and absolute
discretion, liquidate any or all outstanding such Spot Contracts in a manner
comparable to that set forth in Section 4 (b) (i) and (if BSF so elects)
including any settlement payments resulting from that close out in any set-off
pursuant to Section 4 (b) (iv) and/or this Section 4 (e).
(f) BSF's parent, subsidiaries and affiliates have the right to
liquidate any other positions which Counterparty may have in any other accounts
with BSF, its parent, subsidiaries, and affiliates, and to set-off the proceeds
therefrom against any amounts owing by Counterparty to BSF and/or to any of its
affiliates and subsidiaries. Any property of Counterparty in accounts of
Counterparty at BSF, its parent, subsidiaries or Affiliates (collectively and
individually "Bear Xxxxxxx Entity" or "Bear Xxxxxxx") is subject to a first
security interest and lien by said Bear Xxxxxxx
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BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
Entity. Each Bear Xxxxxxx entity is an intended third-party beneficiary of this
Agreement and BSF is entering into this Agreement upon reliance of said fact.
(g) BSF and its Affiliates shall have a general right of set-off
with respect to all amounts owed by Counterparty to BSF or to any of BSF's
Affiliates or by BSF or any of its Affiliates to Counterparty, whether due or
not due (provided that any amount not due at the time of such set-off shall be
discounted to present value).
(h) To the extent any margin posted by Counterparty pursuant to
this Agreement is held in another Bear Xxxxxxx Entity (parent, subsidiary, or
affiliate of BSF), said Bear Xxxxxxx Entity has all the rights which BSF has
under this Agreement and under any agreement between Counterparty and such
Affiliate, including but not limited to the rights of liquidation and set-off.
(i) In addition to each Party's obligations noted in this Section
4, each Party shall be liable to the other Party (and in the case of BSF, this
means BSF and its Affiliates) for any remaining deficiency, loss, costs or
expenses sustained by the other Party and pay to such other Party all
out-of-pocket expenses incurred (including fees and disbursements of counsel) in
connection with any reasonable collection or other enforcement proceedings
related to any required payments.
(j) In the event of default, the Bear Xxxxxxx Entity reserves the
right to sell, without prior notice to Counterparty, any and all property in
which Counterparty has an interest held by or through a Bear Xxxxxxx Entity, to
buy any or all property which may have been sold short, to cancel any or all
outstanding transactions and/or to purchase or sell any other securities or
property to offset market risk, and to offset any indebtedness it may have,
after which the Counterparty shall be liable to the Bear Xxxxxxx Entity for any
remaining deficiency, loss, costs or expenses sustained by the Bear Xxxxxxx
Entity in connection therewith. Such purchases and/or sales may be effected
publicly or privately without notice or advertisement in such manner as the Bear
Xxxxxxx Entity may in its sole reasonable discretion determine. At any such sale
or purchase, the Bear Xxxxxxx Entity may purchase or sell the property free of
any right of redemption.
5. OPTIONS PREMIUMS
(a) The Premium related to an Option shall be paid on its Premium
Payment Date in the currency specified by the parties and in immediately
available funds.
(b) If any Premium is not received on the Premium Payment Date,
BSF may elect either: (i) to accept a late payment of such Premium; or (ii) to
give written notice of such non-payment and treat the related Option as void
and/or treat such non-payment as an Event of Default under clause (i) of the
definition of Event of Default. Counterparty shall pay all out-of-pocket costs
and actual damages incurred in connection with any unpaid or late Premium or
void Option, including, without limitation, interest on any 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 Option.
6. EXERCISE OF OPTIONS
(a) The Buyer may exercise an Option by delivery to the Seller of
a Notice of Exercise. If an Option has not been exercised prior to or at the
Expiration Time, it shall expire and become void and of no effect. Any Notice of
Exercise shall: (i) if received prior to 3:00 p.m. on a Business Day, be
effective upon receipt thereof by the Seller; and (ii) 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, or if the Expiration
Date occurs before such Business Day, at the Expiration Time on the Expiration
Date. Any Notice of Exercise relating to a European Style Option, if received
prior to or at the Expiration Time on the Expiration Date, or at any time prior
to the Expiration Date, shall be effective at the Expiration Time on the
Expiration Date.
(b) 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 1% of the Strike Price and the amount of the Call or Put
Currency, as appropriate, then the Option shall be deemed automatically
exercised.
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FOREIGN EXCHANGE AGREEMENT
7. PAYMENT NETTING; MANNER OF PAYMENT
(a) Prior to the Settlement Date of each Forex Contract, such
Forex Contract shall, by mutual agreement, be offset or rolled forward;
provided, however, that if, such Forex Contract has not been offset or rolled
forward by mutual agreement, the Parties agree that BSF shall have the right but
not the obligation in its sole discretion to (i) close out such Forex Contract
(the "Old Contract") at a price equal to the difference between the respective
Market Values of the currencies that are the subject of the Old Contract at the
time of such close out, so that such Old Contract is canceled and a settlement
payment in an amount equal to the difference between such Market Values is due
to the Party owed the currency having the greater Market Value, which settlement
payment shall be due and payable on the Settlement Date of such Old Contract,
and (ii) establish a new Forex Contract between the Parties for the purchase and
sale of the same currencies for delivery on a Settlement Date (the "New
Settlement Date") that is the first Business Day following the Settlement Date
of the Old Contract at a price based on then current exchange rates in the New
York foreign exchange market for delivery of such currencies on the New
Settlement Date, as determined by BSF in any commercially reasonable manner.
(b) If, at any time, BSF, in its sole discretion, allows
Counterparty to settle rather than roll a contract, then: if, on any date, any
amounts would otherwise be payable hereunder by each Party to the other in the
same currency, then (subject to any right to liquidate under Section 4) each
Party's obligation to make payment of any such amount in that currency will be
automatically satisfied and discharged on such date and, if the aggregate amount
that would otherwise have been payable by one Party exceeds the aggregate amount
that would otherwise have been payable by the other Party, replaced by an
obligation upon the Party by whom the larger aggregate amount would have been
payable to pay the other Party the excess of the larger aggregate amount over
the smaller aggregate amount.
(c) All payments under this Agreement or any Forex or Option
Contract (i) if of U.S. Dollars, shall be made by wire transfer of immediately
available funds to the bank account in a major U.S. financial center designated
by the Party receiving payment, and (ii) if of any other currency, shall be made
by wire transfer of immediately available funds to the bank account in a major
financial center in the country in which that currency is legal tender
designated by the Party receiving payment, provided that each such bank
designated hereunder must be reasonably acceptable to the other Party.
(d) If, at any time, BSF, in its sole discretion, allows
Counterparty to take or make delivery, then payment shall be per paragraph 7(c)
above and with a written record.
(e) Regarding the netting of Options, if on any date, Premiums
would otherwise be payable hereunder, in the same currencies, between 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 one Party exceeds the
aggregate Premium(s) that would otherwise have been payable the other Party,
replaced by an obligation upon the Party by whom the larger aggregate Premium(s)
would have been payable to the other Party the excess of the larger aggregate
Premium(s) over the smaller aggregate Premium(s). The netting and settlement of
Premiums shall be separate from the netting and settlement of Forex Contracts.
(f) Any obligation of BSF (whether or not matured) to pay any sums
to Counterparty under this Agreement shall be conditional upon all obligations
(whether or not matured) owed by the Counterparty to BSF hereunder having been
fully and effectively discharged (or if not matured, provided for in a manner
acceptable to BSF.)
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FOREIGN EXCHANGE AGREEMENT
8. TERMINATION
This Agreement may be terminated by either Party on five (5) days prior
written notice, but such termination shall not affect any rights of any Party
which have arisen prior to such termination including, but not limited to any
Forex or Option Contract outstanding at the time such termination is effective,
which shall remain subject to the terms and conditions of this Agreement until
all outstanding obligations are performed or liquidated. Nothing herein shall be
construed to limit BSF or any of its Affiliates' right to refuse to engage in
any Forex or Option Contract with Counterparty or to limit open positions in
accordance with any agreement between the Parties. The provisions of Section 4
(h) and 12 (n) shall survive the termination of this Agreement.
9. ILLEGALITY, IMPOSSIBILITY AND FORCE MAJEURE
If either Party is prevented from or hindered or delayed by reason of
force majeure or act of State in the delivery or payment of any currency under a
Forex or Option Contract, or if it becomes unlawful or impossible for either
Party to make or receive any such payment, 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 such
notified Party may, by written notice to the Counterparty, require the close-out
of each affected Forex or Option Contract in accordance with the provisions of
Section 4.
10. CREDIT INFORMATION
Counterparty shall give BSF such credit information concerning
Counterparty as BSF may reasonably request from time to time including, without
limitation, annual financial statements for Counterparty in certified or audited
form commencing with the most recent such report issued when this Agreement is
entered into and thereafter for each fiscal year as soon as available.
Counterparty agrees to promptly advise BSF in writing should there be any
material change in Counterparty's financial condition, business, or prospects.
BSF may obtain this information as a credit review process to protect firm
exposure, but not to determine status or suitability to engage in FX
Transactions. Since such a credit check is not a suitability test, and you
should not engage in any FX Transactions simply because you are deemed credit
eligible.
11. MARGIN/XXXX-TO-MARKET
Initial Margin (as defined below) and Variation Margin (as defined
below) shall be paid and returned as provided for in this Section 11. (Initial
Margin and Variation Margin are referred to collectively as "Margin".)
(a) At the time of entry into each Forex Contract, Counterparty
shall provide BSF, or an Affiliate, as initial margin ("Initial Margin"), a
percentage of that Contract's Contract Value (as defined below), as BSF elects
from time to time in BSF's sole discretion. After a Forex Contract ceases to be
outstanding, BSF shall return to Counterparty any Initial Margin that BSF holds
with respect to such Forex Contract. The "Contract Value" of a Forex Contract is
the amount of U.S. Dollars to be delivered on the Settlement Date of that
Contract. But, if the U.S. Dollar is not one of the currencies covered by that
Forex Contract, then the "Contract Value" is the amount of U.S. Dollars that
could be purchased on the date such Forex Contract is entered into, in exchange
for the amount of currency to be purchased by BSF under that Contract, based on
the then current exchange rate in the New York foreign exchange market on such
date for delivery of such currency on the relevant Settlement Date, as
determined by BSF in any commercially reasonable manner.
(b) At the time of sale of an Option Contract by Counterparty, it
shall provide BSF as initial margin a percentage of that Option Contract value
(as defined below). The "Option Contract Value" of an Option Contract is (i) the
amount of U.S. Dollars to be delivered on the Settlement Date if that contract
is exercised or (ii) if the U.S. Dollar is not one of the currencies covered by
such Option, the amount of U.S. Dollars that could be purchased on the date such
Option is entered into, in exchange for the currency to be delivered by the
Seller under such Option, based on the then current exchange rate in the New
York foreign exchange market for delivery of such currency on the Expiration
Date of such Option, as determined by BSF in any commercially reasonable manner.
Page 8 of 18
BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
(c) As of the close of business on each Business Day, the net
aggregate unrealized gain on all Forex Contracts and the market value of Option
Contracts then outstanding shall be calculated by BSF by:
(i) first determining for each such Forex Contract the
difference between the respective Market Values of
each of the Currencies that is the subject of that
Forex Contract, it being understood that the party
owed the Currency with the larger Market Value has an
unrealized gain equal to such difference,
(ii) then determining the sum of each party's unrealized
gains under all such Forex Contracts, and
(iii) plus the Market Value of long options positions, less
the Market Value of short options positions.
If the aggregate unrealized gain of BSF, adjusted for the Market Value of Forex
Options, exceeds that of the Counterparty, BSF shall have a "Market Exposure" in
an amount equal to such excess.
(d) If on any Business Day, the Market Exposure of BSF exceeds a
percentage (as determined by BSF in its sole discretion from time to time) of
the aggregate amount of Initial Margin then held by BSF with respect to all
Forex and Option Contracts then outstanding, Counterparty shall provide BSF with
additional Margin ("Variation Margin") in an amount equal to such Market
Exposure.
(e) If, on any Business Day, the aggregate amount of Variation
Margin held by BSF with respect to all Forex or Option Contracts then
outstanding exceeds BSF's Market Exposure, BSF shall return the Variation Margin
to Counterparty in an amount equal to such excess.
(f) Each payment or return of Variation Margin shall be made on
the day demanded if notified by 1:00 p.m. New York time and otherwise within the
Business Day after notification. Margin shall be provided in the form of: (i)
cash; (ii) U.S. Treasury Bills maturing not more than 180 days from the date of
delivery from Counterparty to BSF (provided that for purposes of determining the
amount of Margin held by BSF at any time, U.S. Treasury Bills shall be valued at
90% of their then current market value for sale in the ordinary course in the
government securities market, as determined by BSF in any commercially
reasonable manner) or (iii) such other collateral as BSF, in its sole
discretion, shall deem acceptable with such "haircut" applied thereto as BSF, in
its sole discretion, shall deem appropriate. Non-cash Margin shall be delivered
to BSF in accordance with its instructions.
(g) Counterparty hereby grants to each Bear Xxxxxxx Entity a valid
and first priority, perfected, continuing security interest in and assign (a)
all property now or hereafter held or carried by any Bear Xxxxxxx Entity in any
of your accounts, in all property in which you now have or hereafter acquire an
interest, which is now or hereafter held by or through any Bear Xxxxxxx Entity
and all property or otherwise held or subject to the control of any Bear Xxxxxxx
Entity or agent thereof, including (without limitation) all margin, securities,
monies, investment property (including without limitation all financial assets
and instruments), (b) all rights you have in any Obligation (as defined below)
of any Bear Xxxxxxx Entity, and (c) any and all rights, claims or causes of
actions you may now or hereafter have against any Bear Xxxxxxx Entity (including
without limitation all rights you have in any repurchase agreement to which any
Bear Xxxxxxx Entity is a party) and, (d) all proceeds of or distributions on any
of the foregoing (collectively (a) through (d), "Collateral"), as security for
the payment and performance of any and all of your Obligations to each Bear
Xxxxxxx Entity. The description of any property that is collateral under any
activity, including, but not limited to, collateral described in any
confirmation, account statement, or activity report, is hereby incorporated into
this Agreement as if fully set forth herein and constitutes collateral
hereunder. You hereby acknowledge and agree that all such property of yours held
by or through any Bear Xxxxxxx Entity is held as Collateral by such Bear Xxxxxxx
Entity as agent and bailee for itself and all other Bear Xxxxxxx entities. Each
Bear Xxxxxxx Entity agrees to act as agent and bailee of and for each other Bear
Xxxxxxx Entity in respect of the Collateral and shall hold any Collateral both
secured party and as agent and bailee of and for each other Bear Xxxxxxx Entity.
Each Bear Xxxxxxx Entity shall, and hereby agrees to, comply without your
further consent with any orders or instructions of each other Bear Xxxxxxx
Entity with respect to the Collateral, including (without limitation), (i) any
entitlement orders, including without limitation, all notifications it receives
directing it to transfer or redeem any Collateral and (ii), if the Bear Xxxxxxx
Entity is a commodity intermediary, any instructions to
Page 9 of 18
BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
Xxxxxxx Entity to apply any value distributed on account of a commodity contract
as directed by each other Bear Xxxxxxx Entity. Each Bear Xxxxxxx Entity has the
right, in its sole discretion, to not comply with (i) any entitlement order
originated by you or a third party that would require a Bear Xxxxxxx Entity to
make a delivery of Collateral to you or any other person and (ii) any
instruction from you to apply any value on account of any commodity contract
(whether such value is distributable or not), to the extent that such Collateral
is necessary to satisfy any Obligation (including, without limitation, any
requirement for margin or other security) to another Bear Xxxxxxx Entity if such
other Bear Xxxxxxx Entity requests (orally or in writing) that such entitlement
order or instruction not be complied with. Each activity has been entered into
in consideration of each other and your performance of each and every one of
your Obligations is a condition precedent to Bear Xxxxxxx' performance of its
Obligations; provided however, that Activities shall not be merged. In
furtherance of the foregoing, any Bear Xxxxxxx Entity may, at any time and
without prior notice to you, use, credit, apply or transfer any such Collateral
between your accounts (or other arrangements) at any Bear Xxxxxxx Entity to
satisfy or secure any of your Obligations. Collateral pledged by you in
connection with a particular Activity shall secure first your Obligations under
that Activity and second, your Obligations under all Activities.
"Obligations" means each and every obligation or liability (including
payment and delivery obligations, any "debt" as defined in the United States
Bankruptcy Code, any obligation arising under a guarantee that you have provided
to a Bear Xxxxxxx Entity and every obligation or requirement you have under any
activity to maintain or deliver margin or other collateral with respect to such
other activity) between Bear Xxxxxxx and you in connection with a guarantee, or
an activity or its acceleration, cancellation, termination or liquidation,
whether arising hereunder, heretofore, or hereafter.
(h) BSF shall have the free and unrestricted right to use and
dispose of any Margin provided to it hereunder, subject only to its obligation
to return Margin (or, in the case of Treasury Bills, comparable Treasury Bills)
when and if so provided in this Agreement.
(i) Cash held by BSF as Margin shall bear interest calculated on a
daily basis at the Broker's Call Rate as in effect, as advised by BSF, minus a
spread to be determined by BSF from time to time, with the amount of interest
accrued and paid monthly.
(j) Notwithstanding any other provision of this Section 11, BSF
may from time to time make intra-day Margin calls and/or change Margin
provisions contained in this Section 11 (including, without limitation, by
increasing and/or decreasing any of the percentages or amounts set forth in this
Section 11), effective immediately, on notice actually received by the
Counterparty. Each such change in Margin provisions shall apply to Forex or
Option Contracts outstanding at the time such revised provisions become
effective, as well as to Forex or Option Contracts entered into thereafter.
(k) The parties acknowledge and agree that the security interest
granted hereunder shall be an automatically perfected security interest of first
priority (i) granted by an "entitlement holder" (as defined in Section
8-102(a)(7) of the Uniform Commercial Code as in effect in the State of New York
(the "UCC")) in favor of a "securities intermediary" (as defined in Section
8-102(a)(14) of the UCC) and (ii) granted by a "commodity customer" (as defined
in Section 9-115(1)(c) of the UCC) in favor of a "commodity intermediary" (as
defined is Section 9-115(1)(d) of the UCC). The Parties acknowledge and agree
that New York shall be the security intermediary's jurisdiction, pursuant to
Section 8-110 of the UCC, and the commodity intermediary's jurisdiction,
pursuant to Section 9-103(6) of the UCC.
12. MISCELLANEOUS
(a) This Agreement is solely for the benefit of the Parties and
their respective successors and permitted assigns. Neither Party may assign any
of its rights or obligations under this Agreement without the prior written
consent of the other Party. This Agreement may not be amended except by a
writing signed by both Parties. The Section headings in this Agreement are for
convenience of reference only and shall not affect the construction or
interpretation of any provision of this Agreement.
(b) Any rights granted to BSF under this Agreement may be
exercised by any of BSF's Affiliates, its successors or assigns.
Page 10 of 18
BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
(c) All notices, requests and other communications shall be
delivered by hand, registered mail (return receipt requested), telex, facsimile
or by electronic mail if the Counterparty has been approved by Bear Xxxxxxx to
trade electronically and there is confirmation that the e-mail was delivered to
the proper e-mail address, or telephone when a section hereof so allows, and
shall be deemed to have been received on the date received if delivered by hand;
on the date stated in the return mail receipt if sent to the respective Party's
address set forth in the Schedule; when transmitted to the telex number of the
respective Party set forth in the Schedule (if confirmed by the respective
answerback set forth in the Schedule); when received at the facsimile number set
forth in the Schedule; when delivered by e-mail; or when spoken when delivered
telephonically to the telephone number set forth in the Schedule. These
addresses, telex numbers, facsimile numbers and answerbacks may be changed by
written notice, which shall only be effective upon receipt; it is each Party's
obligation to keep the other Party appraised of such updates.
(d) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflicts of law, and any dispute arising hereunder
shall be resolved by binding and final arbitration between BSF and Counterparty
at the facilities and before an all securities panel, to the maximum extent
allowed by law or arbitration law, of the National Association of Securities
Dealers, Inc. (NASD) or of the New York Stock Exchange, Inc. By entering into
this arbitration clause BSF and Counterparty waive any and all rights to trial
and rights to trial by jury they would otherwise have. Any arbitration which
occurs hereunder shall be at a situs in New York, New York. The United Nations
Convention on Contracts for the International Sale of Goods shall not apply to
this Agreement.
(e) Each Party hereby 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.
(f) Counterparty agrees to file whatever documents and notices are
required of it under its own local law, with copies to BSF, in order to allow it
to carry out each provision of this Agreement. In addition, Counterparty agrees
to execute such documents and to take all steps necessary to make the terms of
this Agreement effective. To the extent the filing of any such documents and
notices may violate your local jurisdiction laws on secrecy; you waive any
rights to such secrecy provision.
(g) Counterparty agrees to irrevocably appoint a process agent as
indicated in Part II of the Schedule to this Agreement if Counterparty is not
domiciled in the United States.
(h) No waiver of any breach or condition of this Agreement shall
be deemed a waiver of any other breach or condition, whether of a like or
different nature. This Agreement represents the entire agreement with respect to
transactions described herein and supersedes any prior or contemporaneous oral
or written agreements between the Parties. In the event that any provision of
this Agreement is declared to be illegal, invalid or otherwise unenforceable by
a court of competent jurisdiction, the remainder of this Agreement shall not be
affected except to the extent necessary to delete such illegal, invalid or
unenforceable provision, unless the deletion of such provision shall
substantially impair the benefits of the remaining provisions of this Agreement.
(i) The Parties agree that each may electronically record all
telephonic conversations between or among them and their respective employees
and that any such recordings may be submitted in evidence to any court or in any
Proceeding for the purpose of establishing any matters pertinent to this
Agreement.
(j) Should Counterparty appoint an advisor, Counterparty hereby
appoints the Advisor that is listed in Part I of the Schedule to this Agreement.
(k) Counterparty hereby makes the following representations and
warranties which are deemed to be repeated at the time of entry into any FX
Transaction:
Page 11 of 18
BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
(i) None of the assets of Counterparty are "plan assets"
within the meaning of 29 C.F.R. Section 2510.3-101;
(ii) Counterparty is not subject to the fiduciary
responsibilities of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"); and
(iii) Counterparty's entry into Forex or Option Contracts
under this Agreement will not give rise to any
prohibited transaction under Title I of ERISA or
Section 4975 of the Internal Revenue Code.
(iv) Counterparty is an "eligible swap participant" within
the meaning of Commodity Futures Trading Commission
Rule 35.1 (codified at 17 C.F.R. Section. 35.1).
Counterparty agrees to notify BSF promptly if, at any
time, it no longer is an "eligible swap participant."
(v) (a) Counterparty understands that the foreign
exchange spot, forward, and options markets are
subject to complex risks which may arise without
warning and may at times be volatile and that losses
may occur quickly and in unanticipated magnitude,
(b) Counterparty is a sophisticated investor able to
evaluate the risks of FX Transactions,
(c) Counterparty is prepared to bear and is capable
of bearing (financially and otherwise) all risks
associated with FX Transactions, and
(d) Counterparty is entering into FX Transactions
based upon the advice of its Advisor and its traders,
and is not relying upon advice of Bear Xxxxxxx.
(vi) Counterparty understands that whether or not an
affiliate of BSF has acted as agent for other
transactions, for these FX Transactions, BSF and its
affiliates will be acting as principal, neither in an
agency capacity nor as broker nor as advisor.
(vii) Counterparty understands that BSF may have or take
positions similar or opposite to those of
Counterparty, and further that the price of each FX
Transaction will be as mutually agreed upon by the
Parties, and in this instance, Counterparty may by
verbal instruction give time and price discretion to
BSF.
(viii) Counterparty understands that BSF is dealing on a
principal basis and that the prices of FX
Transactions quoted by BSF may not be the best prices
available in the market and are subject to a xxxx-up.
(l) BSF represents and warrants that it is a financial institution
under the provisions of Section IV of The Federal Deposit Insurance Corporation
Improvement Act of 1991 as amended by regulation EE in January 1994 ("FDICIA").
This Agreement shall be a Netting Contract, as defined in FDICIA, and each
receipt or payment for delivery obligation hereunder shall be a covered
contractual payment entitlement or covered contractual payment obligation,
respectively as defined in FDICIA.
(m) 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 a court or pursuant to Section 4 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, 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. 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 such purchase of Currency.
Page 12 of 18
BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
(n) Each Party shall enter into each FX Transaction governed by
the Agreement in reliance only upon its own judgment. Neither Party holds itself
out as advising, or any of its employees or agents as having the authority to
advise, the other Party as to whether or not it should enter into any such Forex
or Option Contract as to any subsequent actions relating thereto or on any other
commercial matters concerned with any Forex or Option Contract governed by the
Agreement. Neither Party shall have any responsibility or liability whatsoever
in respect of any advice of this nature given, or views expressed, by it or any
of such persons to the other Party, whether or not such advice is given or such
views are expressed at the request of the Party. To the extent Counterparty may
communicate with BSF traders or other personnel or receive information from or
on behalf of BSF, Counterparty acknowledges and agrees that any such information
and/or recommendation may be incomplete, may not be verified, and may be changed
without notice to Counterparty.
(o) This Agreement, the particular terms agreed between the
Parties in relation to each and every FX Transaction governed by this Agreement
(and, insofar as such terms are recorded in a Confirmation, each such
Confirmation), the Schedule to this Agreement and all amendments to any of such
items shall together form the agreement among the Parties and shall together
constitute a single agreement among the Parties. The Parties acknowledge that
all FX Transactions governed by the Agreement are entered into in reliance upon
the fact that all items constitute a single Agreement among the Parties.
(p) For FX Forward and Spot transactions, BSSC carries the
Counterparty's account(s) as clearing broker for Counterparty. For FX Options,
BSF carries the accounts and BSSC solely provides an operational reporting
service. Unless BSSC receives from Counterparty prior written notice to the
contrary, BSF, BSSC or their affiliates may accept from Counterparty without any
inquiry or investigation: (a) orders for the purchase or sale of securities,
futures, foreign exchange and other property in the Counterparty's account(s) on
margin or otherwise; (b) any positions executed in FX Transactions, and (c) any
other instructions concerning the Counterparty's account(s) or the property
therein.
(q) Counterparty hereby acknowledges, consents and agrees that, in
accordance with Bear Xxxxxxx and industry policies, practices and procedures,
Bear Xxxxxxx and its affiliates and branches may transmit any and all
information relating to you, this Agreement, and the transactions undertaken
hereunder to such affiliates and branches for efficient processing, database
maintenance, record keeping or other use in accordance with such practices,
policies and procedures, and that Bear Xxxxxxx and such affiliates may disclose
the same as Bear Xxxxxxx determines in good faith to be appropriate to auditors,
counsel, regulators and self-regulatory organizations. In addition Bear Xxxxxxx
may disclose such information to the extent that it determines in good faith to
be required by applicable law, rule, regulation or order.
(r) This Agreement may be executed in counterparts, each of which
when executed shall be deemed an original.
Page 13 of 18
BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
SCHEDULE
Part I. APPOINTMENT OF ADVISOR
Should Counterparty appoint an advisor, Counterparty hereby appoints
QUADRIGA ASSET MANAGEMENT INC. ("Advisor") as its agent and attorney-in-fact for
any and all purposes under this Agreement. Advisor shall act through its
officers, employees and agents. The powers of Advisor shall include, without
limitation, the right to enter into or liquidate Forex or Option Contracts on
behalf of Counterparty in such amounts, at such times and on such other terms as
Advisor shall determine, the right to give and receive notices hereunder on
behalf of Counterparty, and the right to agree to amendments to this Agreement
on behalf of Counterparty. All acts or omissions of Advisor under or in
connection with this Agreement shall have the same force and effect as if taken
by a duly authorized employee of Counterparty. BSF is hereby authorized and
directed to follow the instructions of Advisor in every respect concerning this
Agreement and all matters related thereto. Counterparty hereby ratifies and
confirms any and all Forex or Option Contracts and instructions made or given by
Advisor. Counterparty's appointment of Advisor is coupled with an interest and
is irrevocable. Neither BSF nor BSSC, nor its employees, officers, or directors
have any duty to supervise or review the acts or advice of the Advisor, nor
shall Bear Xxxxxxx, its officers, directors or employees be liable for any
damage which arise from Advisor's acts or omissions.
Part II. APPOINTMENT OF AGENT FOR SERVICE OF PROCESS FOR NON-U.S.
ENTITIES
Counterparty agrees to irrevocably appoint as process agent ("Process
Agent") to receive, for it and on its behalf, service of process in any
proceeding. If for any reason Counterparty's Process Agent is unable to act as
such, Counterparty will promptly notify the other party and within 10 days
appoint a substitute process agent acceptable to the other party. Counterparty
irrevocably consents to service of process in the manner provided for in this
Agreement. Nothing in this Agreement will affect the right of BSF to serve
process in any other manner permitted by law.
Part III. TRADING AUTHORIZATION FOR FX TRANSACTIONS
The following individuals are authorized to engage in FX Transactions:
Name Title
---- -----
___________________________ ___________________________
___________________________ ___________________________
___________________________ ___________________________
___________________________ ___________________________
___________________________ ___________________________
___________________________ ___________________________
Page 14 of 18
BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
Trade confirmation should be addressed as follows:
Original Interested Party
-------- ----------------
Name: Name:
___________________________ ___________________________
Address: Address:
___________________________ ___________________________
___________________________ ___________________________
___________________________ ___________________________
Attention: Attention:
___________________________ ___________________________
As changes in trading personnel or address occur we will forward a
revised Schedule. Bear Xxxxxxx Forex Inc. may rely upon this authorization as
continuing in full force and effect until Bear Xxxxxxx receives a revised
Schedule changing the above information or notice of termination. In either
event, however, it is understood that no change or termination will effect our
obligations to you with respect to any transaction arising prior to your receipt
of such written notice.
Part IV. ADDRESS FOR NOTICES
Address for notices or communications to Counterparty:
Address: ___________________________
___________________________
Attention: ___________________________
Telephone: ___________________________
Facsimile: ___________________________
Address for notices or communications to Bear Xxxxxxx Forex Inc.:
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Foreign Exchange - 7th Floor
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Page 15 of 18
BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective authorized officers as of the ______ day of
_______________, 2003.
BEAR XXXXXXX FOREX INC.
Attention: Xxxxx Xxxxxxxxxx By: ______________________________
Address: 000 Xxxxxxx Xxxxxx President & Director
Xxx Xxxx, XX 00000
(CUSTOMER NAME)
Attention: ______________________________ By: ______________________________
Address: ______________________________ Title:
QUADRIGA ASSET MANAGEMENT INC.
Attention: ______________________________ By: ______________________________
Address: ______________________________ Title:
Page 16 of 18
BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
PRECIOUS METALS SUPPLEMENT
to the
Foreign Exchange Master Agreement (the "Agreement") annexed hereto,
between Bear Xxxxxxx Forex Inc. ("BSF") and (CUSTOMER NAME). This Precious
Metals Supplement sets forth the additional terms and conditions that will
govern precious metals trading and precious metal options trading between BSF
and (CUSTOMER NAME) ("Counterparty"). This Precious Metals Supplement shall not
require the Parties to enter into any Precious Metals Transactions (as defined
below), but shall govern any such Transactions which are currently outstanding
or hereafter entered into. Each Party hereto represents and warrants that it is
fully authorized to enter into this Agreement and into the type of transactions
described herein and is a commercial user of or a merchant handling precious
metals with the capacity to make or take delivery of precious metals.
1. Definitions
(a) "Precious Metal" means Gold, Silver, Platinum and
Palladium in each case in the form and having the minimum fineness
required for good delivery at the agreed delivery location.
(b) "Precious Metals Contract" means a Forward Contract
or Spot Contract for Precious Metals; "Forward Contract" shall also
mean any contract between the Parties for the purchase and sale of a
type of Precious Metal having a settlement date of more than two
Business Days after the date on which such contract is entered into;
provided, however, that for purposes of Section 4 of the Agreement,
Forward Contract shall be any such contract having a settlement date
more than two days after the date on which such contract is entered
into; and "Spot Contract" shall also mean any contract between the
Parties for the purchase and sale of a type of Precious Metal having a
settlement date of two Business Days or less after the date on which
such contract is entered into. "FX Transactions" shall also include any
Precious Metals Contracts or options thereupon.
All terms used herein and not defined shall have the meanings
ascribed thereto in the Agreement.
2. Delivery And Purchase Price
(a) On the settlement Date of each Transaction, Seller
shall deliver the agreed quantity of the agreed type of Precious Metals
(a) if delivery is to be in London, by transfer to Buyer's unallocated
account at a member of the London Bullion Market for that type of
Precious Metal or another London bullion dealer or bank designated by
Buyer which is reasonably acceptable to Seller, (b) if delivery is in
New York, to a Comex depository, and (c) if delivery is in a different
city, to a mutually agreed depository. Each Party acknowledges that (i)
unallocated gold represents only the right to receive Precious Metal
from the dealer or bank (collectively, "Depository") it selects and
(ii) it bears responsibility for the selection of the Depository at
which it maintains unallocated Precious Metal and for any credit or
operational rules at that Depository. The Buyer shall pay the agreed
price for that Precious Metal on the Settlement Date.
3. Title And Risk Of Loss
(a) Title to and all risk of loss or damage of or to any
and all Precious Metals delivered hereunder shall pass to Buyer on
delivery.
4. Warranty
(a) Seller represents and warrants that (a) title to
Precious Metals delivered hereunder will pass to Buyer on delivery free
and clear of all liens, encumbrances and claims; (b) it has the right
to sell such Precious Metal hereunder; and (c) such Precious Metals
meet the requirements specified in the definition of that term herein.
THERE ARE, HOWEVER, NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR
MERCHANTABILITY.
Page 17 of 18
BEAR XXXXXXX FOREX INC.
FOREIGN EXCHANGE AGREEMENT
5. Taxes
(a) When laws, ordinances and regulations permit,
Counterpart shall assume liability for and pay, in addition to the
purchase price of the precious metal, all federal, state, municipal and
foreign taxes (including Value Added Taxes), excises, charges and other
fees now or hereinafter imposed, levied or assessed by any governmental
authority or agency that may be applicable to the sale and/or delivery
of precious metals hereunder (but excluding net income, excess profits,
or corporate franchise taxes).
(b) In those cases in which the laws, regulations or
ordinances impose upon the Seller the obligation to collect or pay such
taxes, excises, charges, or other fees, Buyer shall pay to Seller an
amount equivalent to such governmental execution for which Seller shall
be liable. If Buyer is entitled to purchase precious metals free of any
tax, fee or charge, Buyer shall furnish to Seller proper exemption
certificates to cover such purchase or purchases. In addition, Buyer
acknowledges receipt of the disclosure statement from Seller (as set
forth in Section 4101 of Internal Revenue Code of 1986) or is
knowledgeable of the contents thereof.
Page 18 of 18
