XXXX FUTURES INC.
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
INTERNATIONAL FOREIGN EXCHANGE MASTER AGREEMENT
MASTER AGREEMENT dated as of August 1, 1997, by and
between XXXX FUTURES INC., a Delaware corporation and XXXX XXXXXX
DIVERSIFIED FUTURES FUND III 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), (vii) 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"):
(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
one (1) Business Day has elapsed after the Non-
Defaulting Party has given the Defaulting Party
written notice thereof;
(ix) the Defaulting Party consolidates or
amalgamates with or merges into or transfers all
or substantially all its assets to another entity
and (A) the creditworthiness of the resulting,
surviving or transferee entity is materially
weaker than that of the Defaulting Party prior to
such action, or (B) at the time of such
consolidation, amalgamation, merger or transfer
the resulting, surviving or transferee entity
fails to assume all the obligations of the
Defaulting Party under the Agreement by operation
of law or pursuant to an agreement satisfactory to
the Non-Defaulting Party;
(x)by reason of any default, or event of default or
other similar condition or event, any Specified
Indebtedness (being Specified Indebtedness of an
amount which, when expressed in the Currency of
the Threshold Amount, is in aggregate equal to or
in excess of the Threshold Amount) of the
Defaulting Party or any Credit Support Provider in
relation to it: (A) is not paid on the due date
therefor and remains unpaid after any applicable
grace period has elapsed, or (B) becomes, or
becomes capable at any time of being declared, due
and payable under agreements or instruments
evidencing such Specified Indebtedness before it
would otherwise have been due and payable;
(xi) the Defaulting Party is in breach of or
default under any Specified Transaction and any
applicable grace period has elapsed, and there
occurs any liquidation or early termination of, or
acceleration of obligations under, that Specified
Transaction or the Defaulting Party (or any
Custodian on its behalf) disaffirms, disclaims or
repudiates the whole or any part of a Specified
Transaction;
(xii) (A) any Credit Support Provider of the
Defaulting Party or the Defaulting Party itself
fails to comply with or perform any agreement or
obligation to be complied with or performed by it
in accordance with the applicable Credit Support
Document and such failure is continuing after any
applicable grace period has elapsed; (B) any
Credit Support Document relating to the Defaulting
Party expires or ceases to be in full force and
effect prior to the satisfaction of all
obligations of the Defaulting Party under the
Agreement, unless otherwise agreed in writing by
the Non-Defaulting Party; (C) the Defaulting Party
or any Credit Support Provider of the Defaulting
Party (or, in either case, any Custodian acting on
its behalf) disaffirms, disclaims or repudiates,
in whole or in part, or challenges the validity
of, any Credit Support Document; (D) any
representation or warranty made or given or deemed
made or given by any Credit Support Provider of
the Defaulting Party pursuant to any Credit
Support Document shall prove to have been false or
misleading in any material respect as at the time
it was made or given or deemed made or given and
one (1) Business Day has elapsed after the Non-
Defaulting Party has given the Defaulting Party
written notice thereof; or (E) any event set out
in (ii) to (vii) or (ix) to (xi) above occurs in
respect of any Credit Support Provider of the
Defaulting Party; or
(xiii) any other condition or event specified in
Part IX of the Schedule or in Section 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 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.
"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.
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.
3.4General.
(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.
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
(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);
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
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
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 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.
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 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 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 /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxxx
Title: Executive Vice President
XXXX XXXXXX DIVERSIFIED FUTURES FUND III
L.P.
By Demeter Management Corporation
General Partner
By /s/ Xxxx X. Xxxxxx
Name: Xxxx Xxxxxx
Title: President
SCHEDULE
Schedule to the International Foreign Exchange Master Agreement
dated as of August 1, 1997
between Xxxx Xxxxxx Diversified Futures Fund III 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.: (212) 392-
7404
Facsimile No.: (212) 392-
2804
Party B:
Xxxx Futures Inc.
Xxx Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telephone No.: (212) 453-
6365
Facsimile No.: (212) 453-
6361
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 Party B
Citibank, X.X. Xxxxxx Trust & Savings Bank,
Chicago
ABA: 021-000089 ABA: 071.000.288
Account Name: Xxxx Xxxxxx For the Account of Xxxx
Futures Inc.,
Xxxxxxxx, Inc. Chicago Customer Segregated
Account No. 00000000 Account No. 000-000-0
FFC: Xxxx Xxxxxx Diversified FFC: Xxxx Xxxxxx
Diversified
Futures Fund III L.P., Futures Fund III L.P.,
Account # (As Party B is notified Account # (As Party
A is notified
from time to time) from
time to time)
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.
.
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 Threshold Amount
VIII.
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.
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 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.
Part Consent to Jurisdiction
XIII.
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).
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.
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.
