Exhibit 10.01(b)
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 __________________, by and between XXXX
FUTURES INC., a Delaware corporation and XXXX XXXXXX SPECTRUM 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.
"BASE CURRENCY RATE" means as to a Party and any amount the cost
(expressed as a percentage rate per annum) at which that Party
would be able to fund that amount from such sources and for such
periods as it in its reasonable discretion from time to time
decide, as determined in good faith by it.
"BUSINESS DAY" means (i) a day which is a Local Banking day for
the applicable Designated Office of both Parties, or (ii) solely
in relation to delivery of a Currency, a day which is a Local
Banking Day in relation to that Currency.
"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 and
liquidates Currency Obligations or such a close-out and
liquidation occurs automatically.
"CLOSING GAIN" means, as to the Non-Defaulting Party, the
difference described as such in relation to a particular Value
Date under the provisions of Section 5.1.
"CLOSING LOSS" means, as to the Non-Defaulting Party, 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 governed by the Agreement
which shall specify (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 DOCUMENT" means, as to a Party (the "first
Party") 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 hereunder.
"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 governed by the
Agreement, or pursuant to the application of Sections 3.3(a) or
3.3(b).
"CUSTODIAN" has the meaning given to it in the definition of
Event of Default.
"DEFAULTING PARTY" has the meaning given to it in the definition
of Event of Default.
"DESIGNATED OFFICE(S)" means, as to a Party, the office(s)
specified in Part II of the Schedule hereto, as such Schedule may
be modified from time to time by agreement of the Parties.
"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 default in any payment under
the Agreement to the Non-Defaulting Party with respect to
any sum when due under any Currency Obligation or
pursuant to the Agreement and such failure shall continue
for two (2) Business Days after written notice of
non-payment given by the Non-Defaulting Party to the
Defaulting Party;
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(ii) the Defaulting Party shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or
other similar relief with respect to itself or to its
debts under any bankruptcy, insolvency or similar law, or
seeking the appointment of a trustee, receiver,
liquidator, conservator, administrator, custodian or
other similar official (each, a "Custodian") of it or any
substantial part of its assets; or shall take any
corporate action to authorize any of the foregoing;
(iii) an involuntary case or other proceeding shall be
commenced against the Defaulting Party seeking
liquidation, reorganization or other similar relief with
respect to it or its debts under any bankruptcy,
insolvency or similar law or seeking the appointment of a
Custodian of it or any substantial part of its assets,
and such involuntary case or other proceeding is not
dismissed within five (5) days of its institution or
presentation;
(iv) the Defaulting Party is bankrupt or insolvent, as defined
under any bankruptcy or insolvency law applicable to such
party;
(v) the Defaulting Party shall otherwise be unable to pay its
debts as they become due;
(vi) the Defaulting Party or any Custodian acting on behalf of
the Defaulting Party shall disaffirm, disclaim or
repudiate any Currency Obligation;
(vii) (a) any representation or warranty made or deemed made by
the Defaulting Party pursuant to the Agreement or
pursuant to any Credit Support Documents shall prove to
have been false or misleading in any material respect as
at the time it was made or given and one (1) Business Day
has elapsed after the Non-Defaulting Party has given the
Defaulting Party written notice thereof, or (b) the
Defaulting Party fails to perform or comply with any
obligation assumed by it under the Agreement (other than
an obligation to make payment of the kind referred to in
clause (i) of this definition of Event of Default), and
such failure is continuing thirty (30) days after the
Non-Defaulting Party has given the Defaulting Party
written notice thereof;
(viii) 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;
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(ix) 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.
(x) 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; or
(xi) (a) any Credit Support Provider in relation to 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 its Credit Support Provider
(or, in either case, any Custodian acting on its behalf)
disaffirms, disclaims or repudiates, in whole or in part,
or challenges the validity of, the Credit Support
Document; (d) any representation or warranty made or
deemed made by any Credit Support Provider 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 (vi) or
(viii) to (x) above occurs in respect of the Credit
Support Provider.
"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 being deliverable on the same
Value Date, 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.
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"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.
"MATCHED PAIR NOVATION NETTING OFFICE(S)" means in respect of a
Party the Designated Office(s) specified in Part V of the
Schedule, as such Schedule may be modified from time to time by
agreement of the Parties.
"NON-DEFAULTING PARTY" has the meaning given to it in the
definition of Event of Default.
"NOVATION NETTING OFFICE(S)" means in respect of a Party the
Designated Office(s) specified in Part IV of the Schedule, as
such Schedule may be modified from time to time by agreement of
the Parties.
"PARTIES" means the parties to the Agreement and shall include
their successors and permitted assigns (but without prejudice to
the application of Clause (viii) 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.
"SETTLEMENT NETTING OFFICE(S)" means, in respect of a Party, the
Designated Office(s) specified in Part III of the Schedule, as
such Schedule may be modified from time to time by agreement of
the Parties.
"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,
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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.
"SPLIT SETTLEMENT" has the meaning given to it in the definition
of Value Date.
"THRESHOLD AMOUNT" means the amount specified as such for each
Party in Part IX 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 Local Banking Days in accordance with that
market practice) agreed by the Parties for delivery of the
Currencies to be purchased and sole 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. (a) Unless otherwise agreed in
writing by the Parties, each FX Transaction entered into between
two Designated Offices of the Parties on or after the Effective
Date shall be governed by the Agreement. (b) All FX Transaction
between any two Designated Offices of the Parties outstanding on
the Effective Date which are identified in Part I of the Schedule
shall be FX Transactions governed by the Agreement and every
obligation of the Parties thereunder to deliver a Currency shall
be a Currency Obligation under the Agreement.
2.2 SINGLE AGREEMENT. This Master Agreement, the particular
terms agreed between the Parties in relation to each and every FX
Transaction governed by this Master Agreement (and, insofar as
such terms are recorded in a Confirmation, each such
Confirmation), the Schedule to this Master Agreement 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 governed by the Agreement
are entered into in reliance upon the fact that all items
constitute a single agreement between the Parties.
2.3 CONFIRMATIONS. FX Transactions governed by the Agreement
shall be promptly confirmed by the Parties by Confirmations
exchanged by mail, telex, facsimile or other electronic means.
The failure by a Party to issue a
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Confirmation shall not prejudice or invalidate the terms of any
FX Transaction governed by the Agreement.
SECTION 3. SETTLEMENT AND NETTING
3.1 SETTLEMENT. Subject to Section 3.2, 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 NET SETTLEMENT/PAYMENT NETTING. If on any Value Date more
than one delivery of a particular Currency 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
governed by the Agreement 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 Clause (a) 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 governed by the Agreement 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 governed
by the Agreement entered into between such pair of
Matched Pair Novation Netting Offices and involving the
same pair of Currencies and the same Value Date.
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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 an involuntary case or other
proceeding of the kind described in Clause (iii) 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 date of the Agreement and
as of the date of each FX Transaction governed by the Agreement
that: (i) it has authority to enter into the Agreement and such
FX Transaction; (ii) the persons executing the Agreement and
entering into such FX Transaction have been duly authorized to do
so; (iii) the Agreement and the Currency Obligations created
under the Agreement are binding upon it and enforceable against
it in accordance with their terms (subject to applicable
principals of equity) and do not and will not violate the terms
of any agreements to which such Party is bound; (iv) no Event of
Default has occurred and is continuing with respect to it; and
(v) it acts as principal in entering into each and every FX
Transaction governed by the Agreement.
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
authorization, approvals, licenses and consents required to
enable it to lawfully perform its obligations under the
Agreement; and (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.
SECTION 5 CLOSE-OUT AND LIQUIDATION
5.1 CIRCUMSTANCES OF CLOSE-OUT AND LIQUIDATION. If an Event of
Default has occurred and is continuing then the Non-Defaulting
Party shall have the right to close-out and liquidate in the
manner described below all, but not less than all, outstanding
Currency Obligations (except to the extent that in the good
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faith opinion of the Non-Defaulting Party certain of such
Currency Obligations may not be closed-out and liquidated under
applicable law), by notice to the Defaulting Party. If "Automatic
Termination" is specified as applying to a Party in Part VI of
the Schedule, then, in the case of an Event of Default specified
in Clauses (ii) or (iii) of the definition thereof with respect
to such Party, such close-out and liquidation shall be automatic
as to all outstanding Currency Obligations. Where such close-out
and liquidation is to be effected, it shall be effected by:
(i) closing out each outstanding Currency Obligation
(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) so that each such Currency
Obligation is canceled and the Non-Defaulting Party shall
calculate in good faith with respect to each such
canceled Currency Obligation, the Closing Gain or, as
appropriate, the Closing Loss, as follows:
(x) for each Currency Obligation in a Currency other than the
Non-Defaulting Party's Base Currency calculate a
"Close-Out Amount" by converting:
(A) 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
(B) 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 the Value Date to the Close-Out Date
at the rate representing the cost (expressed as a
percentage rate per annum) at which the
Non-Defaulting Party would have been able, on such
Value Date, to fund the amount of such Currency
Obligation for the period from the Value Date to
the Close-Out Date
into such Base Currency at the rate of exchange at which
the Non-Defaulting Party can buy or sell, as appropriate,
such Base Currency with or against the Currency of such
Currency Obligation for delivery on the Value Date of
that Currency Obligation, or if such Value Date precedes
the Close-Out Date, for delivery on the Close-Out Date;
and
(y) determine in relation to each Value Date: (A) the sum of
all Close-Out Amounts relating to Currency Obligations
under which, and of all Currency Obligations in the
Non-Defaulting Party's Base Currency under which, the
Non-Defaulting Party would otherwise have been obliged to
deliver the relevant amount to the Defaulting Party on
that Value Date, adding (to the extent permitted by
applicable law), in the
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case of a Currency Obligation in the Non-Defaulting
Party's Base Currency whose Value Date precedes the
Close-Out Date, interest for the period from the Value
Date to the Close-Out Date at the Non-Defaulting Party's
Base Currency Rate as at such Value Date for such period;
and (B) the sum of all Close-Out Amounts relating to
Currency Obligations under which, and of all Currency
Obligations in the Non-Defaulting Party's Base Currency
under which, the Non-Defaulting Party would otherwise
have been entitled to receive the relevant amount on that
Value Date, adding (to extent permitted by applicable
law), in the case of a Currency Obligation in the
Non-Defaulting Party's Base Currency whose Value Date
precedes the Close-Out Date, interest for the period from
the Value Date to the Close-Out Date at the
Non-Defaulting Party's Base Currency Rate as at such
Value Date for such period;
(z) if the sum determined under (y)(A) is greater than the
sum determined under (y)(B), the differences shall be the
Closing Loss for such Value Date; if the sum determined
under (y)(A) is less than the sum under (y)(B), the
difference shall be the Closing Gain for such Value Date;
(ii) to the extent permitted by applicable law, adjusting 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 the Value Date to
the Close-Out Date, at the Non-Defaulting Party's Base
Currency Rate, or at such other rate as may be prescribed
by applicable law;
(iii) aggregating the following amounts so that all such
amounts are netted into a single liquidated amount
payable by or to 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 Clause (ii) of this Section 5.1) 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 provision of Clause
(ii) of the Section 5.1) (which for the purposes of the
aggregation shall be negative figure); and
(iv) 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 CALCULATION OF INTEREST. Any addition of interest or
discounting required under Clause (i) or (ii) or Section 5.1
shall be calculated on the basis of the actual number of days
elapsed and of a year of such number of days as is
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customary for transactions involving the relevant Currency in the
relevant foreign exchange market.
5.3 OTHER FX 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 FX Transactions entered
into between the Parties which are then outstanding in accordance
with provisions of Section 5.1, as if each obligation of a Party
to deliver a Currency thereunder were a Currency Obligation.
5.4 PAYMENT AND LATE INTEREST. The amount payable by one Party
to the other Party pursuant to the provisions of Sections 5.1 and
5.3 shall be paid by the close of business on the Business Day
following such close-out and liquidation (converted as required
by applicable law into any other Currency, any costs of such
conversion to be borne by, and deducted from any payment to, the
Defaulting Party). To the extent permitted by applicable law,
any amount required to be paid under Sections 5.1 or 5.3 and not
paid on the due date therefor, shall bear interest at the
Non-Defaulting Party's Base Currency Rate plus 1% per annum (or,
if conversion is required by applicable law into some other
Currency, either (x) the average rate at which overnight deposits
in such other Currency are offered by major banks in the London
interbank market as of 11:00 a.m. (London time) plus 1% per annum
or (y) such other rate as may be prescribed by such applicable
law) for each day for which such amount remains unpaid.
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 Non-Defaulting Party under the Agreement and
so long as the Non-Defaulting Party has not exercised its rights
under Section 5.1, the Non-Defaulting 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 this Section 5.
5.7 REASONABLE PRE-ESTIMATE. The Parties agree that the amounts
recoverable under this Section 5 are a reasonable preestimate 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.
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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). To the extent not prohibited by applicable
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. ILLEGALITY, IMPOSSIBILITY AND FORCE MAJEURE
If either Party is prevented from or hindered or delayed by
reason of force majeure or act of State in the delivery or
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 deliver or
receive any Currency which is the subject of a Currency
Obligation, then 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, 5.2
and 5.4 and, for the purposes of enabling the calculations
prescribed by Sections 5.1, 5.2 and 5.4 to be effected, 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 effect the relevant
calculations as if it were the Non-Defaulting Party. Nothing in
this Section 6 shall be taken as indicating that the Party
treated as the Defaulting Party for the purposes of calculations
required hereby has committed any breach or default.
SECTION 7. PARTIES TO RELY ON THEIR OWN EXPERTISE
Each Party shall enter into each FX Transaction governed by the
Agreement in reliance only upon its own judgment. Neither Party
holds itself out as advising, or any of its employees or agents
as having the authority to advise, the other Party as to whether
or not it should enter into any such FX Transaction or as to any
subsequent actions relating thereto or on any other commercial
matters concerned with any FX Transaction governed by the
Agreement, and neither Party shall have any responsibility or
liability whatsoever in respect of any advice of this nature
given, or views expressed, by it or any of such persons to the
other Party, whether or not such advice is given or such views
are expressed at the request of the other Party.
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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, the first Party shall be able, in accordance with normal
banking practice, to purchase the Currency in which such amount
was due with the Currency received. If the amount so purchasable
shall be less than the original amount of the Currency in which
such amount was due, the second party shall, as a separate
obligation and notwithstanding any judgment of any court,
indemnify the first Party against any loss sustained by it. The
second Party shall in any event indemnify the first Party against
any costs incurred by it in making any such purchase of Currency.
8.2 ASSIGNMENTS. Neither Party may assign, transfer or charge,
or purport to assign, transfer or charge, its rights or its
obligations under the Agreement or any interest therein 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 may
electronically record all telephonic conversations between them
and that any such tape recordings may be submitted in evidence in
any Proceedings relating to the Agreement. In the event of any
dispute between the Parties as to the terms of an FX Transaction
governed by the Agreement or the Currency Obligations thereby
created, the Parties may use electronic recordings between the
persons who entered into such FX Transaction as the preferred
evidence of the terms of such FX Transaction, notwithstanding the
existence of any writing to the contrary.
8.4 NO OBLIGATION. Neither Party to this Agreement shall be
required to enter into any FX Transaction with the other.
8.5 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 VII of the Schedule attached hereto.
Unless otherwise specified, any notice, instruction or other
communication given in accordance with this Section 8.5 shall be
effective upon receipt.
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8.6 TERMINATION. Each of the Parties hereto may terminate this
Agreement at any time by seven days' prior written notice to the
other Party delivered as prescribed above, 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.
8.7 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 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.
8.8 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.
8.9 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 defined in 11 U.S. C.
Section 101(55) (C) and 12 U.S.C Section 1821(e) (8) (D) (vii).
8.10 TIME OF ESSENCE. Time shall be of the essence in the
Agreement.
8.11 HEADINGS. Headings in the Agreement are for ease of
reference only.
8.12 WIRE TRANSFERS. Every payment or delivery of Currency to
be made by a Party under the Agreement shall be made by wire
transfer, or its equivalent, of same day (or immediately
available) and freely transferable funds to the bank account
designated by the other Party for such purpose.
8.13 ADEQUATE ASSURANCES. If the Parties have so agreed in Part
X of the Schedule, the failure by a Party ("first 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 ("second Party")
has reasonable grounds for insecurity shall be an Event of
Default under the Agreement, in which case during the pendency of
a reasonable request by the second party to the first Party for
adequate assurances of the first Party's ability to perform its
obligations under the Agreement, the second Party may, at its
election and without penalty, suspend its obligations under the
Agreement.
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8.14 FDICIA REPRESENTATION. If the Parties have so agreed in
Part XI of the Schedule, each Party represents and warrants to
the other Party that it is a financial institution under the
provisions of Title IV of the Federal Deposit Insurance
Corporation Improvement Act of 1991 ("FDICIA"), and the Parties
agree that this Agreement shall be a netting contract, as defined
in FDICIA, 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 and subject to FDICIA.
8.15 CONFIRMATION PROCEDURES. In relation to Confirmations,
unless either Party objects to the terms contained in any
Confirmation within three (3) Business Days of receipt thereof,
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, unless a
corrected Confirmation is sent by a Party within such three
Business Days, or shorter period, as appropriate, in which case
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. In the event of any conflict between the
terms of a Confirmation and this Master Agreement, the terms of
this Master Agreement shall prevail and the Confirmation shall
not modify the terms of this Master Agreement.
8.16 AMENDMENTS. No amendment, modification or waiver of the
Agreement will be effective unless in writing executed by each of
the Parties.
SECTION 9. LAW AND JURISDICTION
9.1 GOVERNING LAW. The Agreement shall be governed by, and
construed in accordance with the laws of the State of New York
without giving effect to conflict of laws provisions.
9.2 CONSENT TO JURISDICTION. With respect to any Proceedings,
each Party irrevocably (i) submits to the non-exclusive
jurisdiction or the courts of the State of New York and the
United States District Court located in the Borough of Manhattan
in New York City, and (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 court does not have
jurisdiction over such Party. Nothing in the Agreement precludes
either Party from bringing Proceedings in any other jurisdiction.
9.3 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
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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.
Each Party consents generally in respect of any Proceedings to
the giving of any relief or the issue of any process in
connection with such Proceedings, including, without limitation,
the making, enforcement or execution against any property
whatsoever of any order or judgment which may be made or given in
such Proceedings.
9.4 WAIVER OF JURY TRIAL. Each Party hereby irrevocably waives
any and all right to trial by jury 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:
XXXX XXXXXX SPECTRUM ___ L.P.
By
------------------------------
Name:
Title:
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SCHEDULE
--------
Part I: SCOPE OF AGREEMENT
The Agreement shall apply to all FX Transactions outstanding between
any two Designated Offices of the Parties on the Effective Date.
Part II: DESIGNATED OFFICES
Each of the following shall be Designated Office:
PARTY A PART B
_________________________ X.X. Xxxx Futures Inc.
c/o Demeter Management Corporation ______________________________
Two World Trade Center ______________________________
62nd Floor ______________________________
Xxx Xxxx, XX 00000 ______________________________
Attn: __________________________ Telephone No: (___)___________
Telephone No.: (212) _____________ Facsimile No: (___)___________
Facsimile No.: (212) _____________
Part III: SETTLEMENT NETTING OFFICES
Net settlement provisions of Section 3.2 shall apply to the following
Settlement Netting Offices:
PARTY A PART B
------- ------
Same as above. Same as above.
Part IV: NOVATION NETTING OFFICES
Netting by novation provisions of Section 3.3(a) shall apply to the
following Novation Netting Offices and shall apply to all FX
Transactions:
PARTY A PART B
Same as Part III Same as Part III
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Part V: MATCHED PAIR NOVATION NETTING OFFICES
Not applicable
Part VI: AUTOMATIC TERMINATION
The "Automatic Termination" provision in Section 5.1 shall not apply
to _____________ and shall not apply to Xxxx Xxxxxx Xxxxxxxx Inc.
Part VII: NOTICES
Address specified in the Confirmation or otherwise by the Designated
Office sending the same; provided that any notice sent to
_____________________ under Section 1 ("Event of Default"), 5,6,8.6 or
9.2 shall be copied to:
Xxxx Xxxxxx Xxxxxxxx Inc., Two World Trade Center, 65th Floor, New
York, New York 10048, Attn: Deputy General Counsel
PARTY A PART B
Same as in Part II Same as in Part II
Provided that any notice sent to Party B under Section 1 ("Event of
Default"), 5, 6, 8..6, or 9.2 shall be copied to: Xxxx Futures Inc.,
___________________ ________________________________ Attn:
__________________________
Part VIII: BASE CURRENCY
PARTY A PART B
U.S. Dollars U.S Dollars
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