Exhibit 10.05
XXXX FUTURES INC.
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
FORM OF
INTERNATIONAL FOREIGN EXCHANGE MASTER AGREEMENT
MASTER AGREEMENT dated as of _________________, by and between XXXX
FUTURES INC., a Delaware corporation and XXXXXX XXXXXXX XXXX XXXXXX SPECTRUM
CURRENCY L.P.
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.
"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) 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; (ii) solely in relation to
delivery of a Currency, a day which is a Local Banking Day in
relation to that Currency; and (iii) 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.
"Close-Out Amount" has the meaning given to it in Section 5.1.
"Close-Out Date" means a day on which, pursuant to the provisions of
Section 5.1, the Non-Defaulting Party closes out Currency
Obligations or such a 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 5.1.
"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 5.1.
"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, and specifying:
(i) the Parties thereto and their 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.
"Credit Support" has the meaning given to it in Section 5.2.
"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 or the application of Section
3.3(a) or (b).
"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.
"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"):
-2-
(i) the Defaulting Party shall (A) default in any payment when
due under the Agreement to the Non-Defaulting Party with
respect to any Currency Obligation 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;
(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
-3-
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
-4-
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 8.14 if made applicable to the
Agreement in Part XI of the Schedule.
"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.
"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
-5-
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.
"Novation Netting Office(s)", in respect of a Party, means the
Designated Office(s) specified in Part V of the Schedule.
"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 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.
"Proceedings" means any suit, action or other proceedings relating
to the Agreement or any FX Transaction.
"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.
"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
transactions.
-6-
"Spot Date" means the spot delivery day for the relevant pair of
Currencies as generally used by the relevant foreign exchange
market.
"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
2.1 Scope of the Agreement. The Parties (through their respective
Designated Offices) may enter into FX Transactions, for 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 with the other Party. Unless otherwise
agreed in writing by the Parties, each FX Transaction entered into
between Designated Offices of the Parties on or after the Effective
Date shall be governed by the Agreement. Each FX Transaction 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, 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 are entered into in reliance upon such fact, it
being understood that the Parties would not otherwise enter into any
FX Transaction.
2.3 Confirmations. FX Transactions 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.
-7-
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, the other provisions of the Agreement
shall prevail, and the Confirmation shall not modify the other terms
of the Agreement.
SECTION 3. SETTLEMENT AND NETTING
3.1 Settlement. Subject to Sections 3.2 and 3.3, 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.
3.2 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.
3.3 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 3.3 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 3.3(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.
-8-
3.4 General.
(a) Inapplicability of Sections 3.2 and 3.3. The provisions of
Sections 3.2 and 3.3 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 3.3 shall apply
notwithstanding that either Party may fail to record the new
Currency Obligations in its books.
(c) Cutoff Date and Time. The provisions of Section 3.3 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 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 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 that: (i) it has authority to enter into
the Agreement (including such FX Transaction); (ii) the persons
entering into the Agreement (including such FX Transaction) on its
behalf have been duly authorized to do so; (iii) the Agreement
(including such FX Transaction) 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 and Event of Default, has occurred and is continuing with
respect to it; and (v) it acts as principal in entering into each FX
Transaction; 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.
4.2 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.
-9-
SECTION 5 CLOSE-OUT AND LIQUIDATION
5.1 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) except to the extent that in
the good faith opinion of the Non-Defaulting Party certain of such
Currency Obligations 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. 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, 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 as provided below.
(b) Liquidation. 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
-10-
(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 5.1(b)(ii)) (which for the
purposes of this aggregation shall be a positive figure);
-11-
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 5.1(b)(ii)) (which for the
purposes of the aggregation shall be a negative figure).
(iv) Settlement Payment. If the resulting net amount is positive,
it shall be payable by the Defaulting Party to the
Non-Defaulting Party, and if it is negative, then the absolute
value of such amount shall be payable by the Non-Defaulting
Party to the Defaulting Party.
5.2 Set-Off Against Credit Support. Where close-out and liquidation
occurs in accordance with Section 5.1, the Non-Defaulting Party
shall also be entitled (i) to set off the net payment calculated in
accordance with Section 5.1(b)(iv) 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
5.1(b)(iv) 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 spot price determined by the Non-Defaulting
Party at which, at the time of 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.
5.3 Other Foreign Exchange Transactions. Where close-out and
liquidation occurs in accordance with Section 5.1, 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 entered into between the Parties which
is then outstanding in accordance with provisions of Section 5.1,
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 under the Agreement.
5.4 Payment and Late Interest. The net amount payable by one Party
to the other Party pursuant to the provisions of Sections 5.1 and
5.3 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
-12-
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 5 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
5 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.
5.5 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 5, 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.
5.6 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.
5.7 Reasonable Pre-Estimate. The Parties agree that the amounts
recoverable under this Section 5 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.
5.8 No Limitation of Other Rights; Set-Off. The Non-Defaulting
Party's rights under this Section 5 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
-13-
Party). The Non-Defaulting Party's rights under this Section 5.8 are
subject to Section 5.7.
SECTION 6. FORCE MAJEURE, ACT OF STATE, ILLEGALITY OR IMPOSSIBILITY
6.1 Force Majeure, Act of State, Illegality or 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 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, 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 in accordance with the provisions of Sections 5.1 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 5.1 as if it were the
Non-Defaulting Party. Nothing in this Section 6.1 shall be taken as
indicating that the Party treated as the Defaulting Party for the
purpose of calculations required by Section 5.1 has committed any
breach or default.
6.2 Transfer to Avoid Force Majeure, Act of State, Illegality or
Impossibility. If Section 6.1 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, 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 twenty (20) days after it
gives notice under Section 6.1, all its rights and obligations under
the Agreement in respect of the affected Currency Obligations 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 7. 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 that (absent a
written agreement between the Parties that expressly imposes
affirmative obligations to the contrary for that
-14-
FX Transaction): (i)(A) it is acting for its own account, and it has
made its own independent decisions to enter into that FX Transaction
and as to whether that FX Transaction 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, it being
understood that information and explanations related to the terms
and conditions of an FX Transaction shall not be considered
investment advice or a recommendation to enter into that FX
Transaction; and (C) it has not received from the other Party any
assurance or guarantee as to the expected results of that FX
Transaction; (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; and (iii) the other Party is not acting as a fiduciary
or an advisor for it in respect of that FX Transaction.
SECTION 8. MISCELLANEOUS
8.1 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 5 or 6, 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.
8.2 Assignment. Neither Party may assign, transfer or charge or
purport to assign, transfer or charge its rights or its 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 8.2 shall be void.
8.3 Telephonic Recording. The Parties agree that each Party and its
agents 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.
-15-
8.4 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 8.4 shall be effective upon receipt.
8.5 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 8.4, 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, 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.
8.6 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.
8.7 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.
8.8 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).
8.9 Time of Essence. Time shall be of the essence in the Agreement.
8.10 Headings. Headings in the Agreement are for ease of reference
only.
8.11 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
-16-
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 8.4.
8.12 Amendments. No amendment, modification or waiver of the
Agreement will be effective unless in writing executed by each of
the Parties.
8.13 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.
8.14 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.
8.15 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 the 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 9. LAW AND JURISDICTION
9.1 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 without giving effect to conflict of laws
principles.
9.2 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
-17-
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.
9.3 Waiver of Jury Trial. Each Party irrevocably waives any and all
right to trial by jury in any Proceedings.
9.4 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 courts, (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.
IN WITNESS WHEREOF, the Parties have caused the Agreement to be duly
executed by their respective authorized officers as of the date first written
above.
XXXX FUTURES INC.
By
--------------------------------
Name:
Title:
XXXXXX XXXXXXX XXXX XXXXXX SPECTRUM
CURRENCY L.P.
By Demeter Management Corporation
General Partner
By
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
-18-
SCHEDULE
Schedule to the International Foreign Exchange Master Agreement
dated as of August 1, 1997
between Xxxx Xxxxxx Spectrum Select L.P. ("Party A") and Xxxx Futures Inc.
("Party B").
Part I. Scope of Agreement
The Agreement shall apply to all foreign exchange transactions
outstanding between any two Designated Offices of the Parties on the
Effective Date.
It shall be understood that Party A shall typically be conducting
its foreign exchange transactions under the Agreement through its
Trading Advisors who shall be disclosed by Party A to Party B from
time to time by notice. The Trading Advisors will act as Party A's
agents for all purposes hereunder until further notice.
Part II. Designated Offices
Each of the following shall be a Designated Office:
Party A:
c/o Demeter Management Corporation
Two Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Party B:
Xxxx Futures Inc.
Xxx Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
-19-
Part III. Notices:
If sent to Party A:
Address: c/o Demeter Management Corporation
Two World Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Name of Individual or Department to whom Notices are to be sent:
Xxxxxx X. Xxxxxx
With copies to Party A's designated Trading Advisors.
If sent to Party B:
Address: Xxxx Futures Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Name of Individual or Department to whom Notices are to be sent:
Xxxxx Xxxxxxx
Part IV. Payment Instructions
Name of Bank and Office, Account Number and Reference with respect
to relevant Currencies:
Party A
Citibank, N.A.
Chicago
ABA: 021-000089
Account Name: Xxxx Xxxxxx Inc.,
Xxxxxxxx, Inc.
Account No. 00000000
FFC: Xxxxxx Xxxxxxx Xxxx Xxxxxx Spectrum Currency L.P.,
Account # (As Party B is notified from time to time)
Party B
Xxxxxx Trust & Savings Bank,
ABA: 071.000.288
For the Account of Xxxx Futures
Chicago Customer Segregated
Account No. 203-908-9
FFC: Xxxxxx Xxxxxxx Xxxx Xxxxxx Spectrum Currency L.P.,
Account # (As Party A is notified from time to time)
-20-
Part V. Netting
A. Settlement Netting Offices
Each of the following shall be a Settlement Netting Office:
Party A: Same as in Part II.
Party B: Same as in Part II.
B. Novation Netting Offices
Each of the following shall be a Novation Netting Office:
Party A: Same as in Part V-A.
Party B: Same as in Part V-A.
C. Matched Pair Novation Netting Offices
Each of the following shall be a Matched Pair Novation Netting
Office:
Party A: Not Applicable.
Party B: Not Applicable.
-21-
Part VI. 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 3.1 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 5.1(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
determined by the Non-Defaulting Party in good faith and in a
commercially reasonable manner.
Part VII. Base Currency
Party A's Base Currency is the United States dollar.
Party B's Base Currency is the United States dollar.
Part VIII. Threshold Amount
For purposes of clause (x) of the definition of Event of Default:
Party A's Threshold Amount is 3% of Party A's equity capital as
evidenced by Party A's latest financial statements.
Party B's Threshold Amount is 3% of Party B's equity capital as
evidenced by Party B's latest financial statements.
-22-
Part IX. Additional Events of Default
The following provisions which are checked shall constitute Events
of Default:
None.
|_| (a) occurrence of garnishment or provisional garnishment against
a claim against the Defaulting Party acquired by the
Non-Defaulting Party. The automatic termination provisions
of Section 5.1 [shall] [shall not] apply to either Party
that is a Defaulting Party in respect of this Event of
Default.
|_| (b) suspension of payment by the Defaulting Party or any Credit
Support provider in accordance with the Bankruptcy Law or
the Corporate Reorganization Law in Japan. The automatic
termination provision of Section 5.1 [shall] [shall not]
apply to either Party that is a Defaulting Party in respect
of this Event of Default.
|_| (c) disqualification of the Defaulting Party or any Credit
Support Provider by any relevant xxxx clearing house located
in Japan. The automatic termination provision of Section 5.2
[shall][shall not] apply to either Party that Part IX. is a
Defaulting Party in respect of this Event of Default.
Part X. Automatic Termination
The automatic termination provision of Section 5.1 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 5.1 shall not apply
to Party B as Defaulting Party in respect of clause (ii), (iii) or
(iv) of the definition of Event of Default.
Part XI. Adequate Assurances
Adequate Assurances under Section 8.14 shall apply to the Agreement.
Part XII. Governing Law
In accordance with Section 9.1 of the Agreement, the Agreement shall
be governed by the laws of the State of New York.
-23-
Part XIII. Consent to Jurisdiction
In accordance with Section 9.2 of the Agreement, each Party
irrevocably submits to the non-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.
Part XIV. Agent for Service of Process
Not applicable.
Part XV. Certain Regulatory Representations
A. The following FDICIA representation shall not 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;
|_| "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).
-24-
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 represents and warrants that it is neither (i) an
"employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974 which is subject to Part 4 of
Subtitle B of Title I of such Act; (ii) a "plan" as defined in
Section 4975(e)(1) of the Internal Revenue Code of 1986; nor (iii)
an entity the assets of which are deemed to be assets of any such
"employee benefit plan" or "plan" by reason of the U.S. Department
of Labor's plan asset regulation, 29 C.F.R. Section 2510.3-101.
-25-
C. The following CFTC eligible swap participant representation shall
apply:
Each Party represents and warrants that it is an "eligible swap
participant" under, and as defined in, 17 C.F.R. Section 35.1.
Part XVI. Additional Covenants
The following covenant[s] shall apply to the Agreement:
A. Party B covenants and agrees that when Party A or an agent for Party
A requests Party B to an FX Transaction, Party B will do a
back-to-back principal trade and the price of the FX Transaction to
Party A will be the same price at which Party B effects its
back-to-back trade with its counterparty, and Party B will not
profit from any xxxx-up or spread on the FX Transaction.
B. With respect to each FX Transaction, Party A shall pay to Party B a
round-turn fee as follows. For FX Transactions not having a Party
B-imposed forward date, the fee shall be $4.30 per round-turn ($2.15
per side) for each $85,000 equivalent of the Currency in the FX
Transaction. For FX Transactions with a Party B-imposed forward date
restriction, the fee shall be $5.00 per round-turn ($2.50 per side)
for each $135,000 equivalent of the Currency in the FX Transaction.
C. Party A shall post margin with Party B with respect to all FX
Transactions in an amount equal to 3.0% of the value of such FX
Transactions on major currencies and 5.0% of the value of such FX
Transactions on minor currencies. All calls for margin shall be made
by Party B orally or by written notice to Xxxx Xxxxxx Xxxxxxxx, and
each such call for margin shall be met by Party A within three hours
after Xxxx Xxxxxx Xxxxxxxx has received such call by wire transfer
(by federal bank wire system) to the account of Party B. Party B
shall accept as margin any instrument deemed acceptable as margin
under the rules of the Chicago Mercantile Exchange. Upon oral or
written request by Xxxx Xxxxxx Xxxxxxxx, Party B shall, within three
hours after receipt of any such request, wire transfer (by federal
bank wire system) to Xxxx Xxxxxx Xxxxxxxx for Party A's account any
margin funds held by Party B in excess of the margin requirements
specified hereby. Notwithstanding Part VI above, all payments,
unless otherwise agreed to, shall be paid in U.S. dollars.
-26-
