FOREIGN EXCHANGE AND OPTIONS
MASTER AGREEMENT
(FEOMA)
MASTER AGREEMENT dated as of April 30, 2000 by and
between Xxxxxx Xxxxxxx & Co. Incorporated, a Delaware corporation,
Xxxx Xxxxxx Global Perspective Portfolio L.P., a Delaware Limited
Partnership.
SECTION 1. DEFINITIONS
Unless otherwise required by the context, the following terms
shall have the following meanings in the Agreement:
"Agreement" has the meaning given to it in Section 2.2.
"American Style Option" means an Option which may be
exercised on any Business Day up to and including the Expiration Time.
"Base Currency", as to a Party, means the Currency agreed to as
such in relation to it in Part VII of the Schedule.
"Business Day" means for purposes of: (i) Section 3.2, a day
which is a Local Banking Day for the applicable Designated Office of the
Buyer; (ii) Section 5.1 and the definition of American Style Option, a day
which is a Local Banking Day for the applicable Designated Office of the
Seller; (iii) clauses (i), (viii) and (xii) of the definition
of Event of Default,
a day which is a Local Banking Day for the Non-Defaulting Party; (iv)
solely in relation to delivery of a Currency, a day which is a Local Banking
Day in relation to that Currency; and (v) any other provision of the
Agreement, a day which is a Local Banking Day for the applicable
Designated Offices of both Parties; provided, however, that neither
Saturday nor Sunday shall be considered a Business Day for any purpose.
"Buyer" means the owner of an Option.
"Call" means an Option entitling, but not obligating (except upon
exercise), the Buyer to purchase from the Seller at the Strike Price a
specified quantity of the Call Currency.
"Call Currency" means the Currency agreed to as such at the time
an Option is entered into, as evidenced in a Confirmation.
"Close-Out Amount" has the meaning given to it in Section 8.1.
"Close-Out Date" means a day on which, pursuant to the
provisions of Section 8.1, the Non-Defaulting Party closes out Currency
Obligations and/or Options or such close-out occurs automatically.
"Closing Gain", as to the Non-Defaulting Party, means the
difference described as such in relation to a particular Value Date under
the provisions of Section 8.1.
"Closing Loss", as to the Non-Defaulting Party, means the
difference described as such in relation to a particular Value Date under
the provisions of Section 8.1.
"Confirmation" means a writing (including telex, facsimile or
other electronic means from which it is possible to produce a hard copy)
evidencing an FX Transaction or an Option, and specifying:
(A) in the case of an FX Transaction, the following information:
(i) the Parties thereto and the Designated Offices
through which they are respectively acting,
(ii) the amounts of the Currencies being bought or
sold and by which Party,
(iii) the Value Date, and
(iv) any other term generally included in such a
writing in accordance with the practice of the relevant foreign exchange
market; and
(B) in the case of an Option, the following information:
(i) the Parties thereto and the Designated Offices
through which they are respectively acting,
(ii) whether the Option is a Call or a Put,
(iii) the Call Currency and the Put Currency that
are the subject of the Option and their respective quantities,
(iv) which Party is the Seller and which is the
Buyer,
(v) the Strike Price,
(vi) the Premium and the Premium Payment Date,
(vii) the Expiration Date,
(viii) the Expiration Time,
(ix) whether the Option is an American Style
Option or a European Style Option, and
(x) such other matters, if any, as the Parties may
agree.
"Credit Support" has the meaning given to it in Section 8.2.
"Credit Support Document", as to a Party (the "first Party"),
means a guaranty, hypothecation agreement, margin or security agreement
or document, or any other document containing an obligation of a third
party ("Credit Support Provider") or of the first Party in favor of the other
Party supporting any obligations of the first Party under the Agreement.
"Credit Support Provider" has the meaning given to it in the
definition of Credit Support Document.
"Currency" means money denominated in the lawful currency of
any country or the Ecu.
"Currency Obligation" means any obligation of a Party to deliver a
Currency pursuant to an FX Transaction, the application of Section 6.3(a)
or (b), or an exercised Option (except, for the purposes of Section 8.1 only,
one that is to be settled at its In-the-Money Amount under Section 5.5).
"Currency Pair" means the two Currencies which potentially may
be exchanged in connection with an FX Transaction or upon the exercise
of an Option, one of which shall be the Put Currency and the other the Call
Currency.
"Custodian" has the meaning given to it in the definition of
Insolvency Proceeding.
"Defaulting Party" has the meaning given to it in the definition of
Event of Default.
"Designated Office(s)", as to a Party, means the office or offices
specified in Part II of the Schedule.
"Effective Date" means the date of this Master Agreement.
"European Style Option" means an Option for which Notice of
Exercise may be given only on the Option's Expiration Date up to and
including the Expiration Time, unless otherwise agreed.
"Event of Default" means the occurrence of any of the following
with respect to a Party (the "Defaulting Party", the other Party being the
"Non-Defaulting Party"):
(i) the Defaulting Party shall (A) default in any payment when due
under the Agreement (including, but not limited to, a Premium payment) to
the Non-Defaulting Party with respect to any Currency Obligation or
Option and such failure shall continue for two (2) Business Days after the
Non-Defaulting Party has given the Defaulting Party written notice of non-
payment, or (B) fail to perform or comply with any other obligation
assumed by it under the Agreement and such failure is continuing thirty
(30) days after the Non-Defaulting Party has given the Defaulting Party
written notice thereof;
(ii) the Defaulting Party shall commence a voluntary Insolvency
Proceeding or shall take any corporate action to authorize any such
Insolvency Proceeding;
(iii) a governmental authority or self-regulatory organization
having jurisdiction over either the Defaulting Party or its assets in the
country of its organization or principal office (A) shall commence an
Insolvency Proceeding with respect to the Defaulting Party or its assets or
(B) shall take any action under any bankruptcy, insolvency or other similar
law or any banking, insurance or similar law or regulation governing the
operation of the Defaulting Party which may prevent the Defaulting Party
from performing its obligations under the Agreement as and when due;
(iv) an involuntary Insolvency Proceeding shall be commenced
with respect to the Defaulting Party or its assets by a person other than a
governmental authority or self-regulatory organization having jurisdiction
over either the Defaulting Party or its assets in the country of its
organization or principal office and such Insolvency Proceeding (A)
results in the appointment of a Custodian or a judgment of insolvency or
bankruptcy or the entry of an order for winding-up, liquidation,
reorganization or other similar relief, or (B) is not dismissed within five
(5) days of its institution or presentation;
(v) the Defaulting Party is bankrupt or insolvent, as defined under
any bankruptcy or insolvency law applicable to it;
(vi) the Defaulting Party fails, or shall otherwise be unable, to pay
its debts as they become due;
(vii) the Defaulting Party or any Custodian acting on behalf of the
Defaulting Party shall disaffirm, disclaim or repudiate any Currency
Obligation or Option;
(viii) any representation or warranty made or given or deemed
made or given by the Defaulting Party pursuant to the Agreement or any
Credit Support Document shall prove to have been false or misleading in
any material respect as at the time it was made or given or deemed made or
given and one (1) Business Day has elapsed after the Non-Defaulting Party
has given the Defaulting Party written notice thereof;
(ix) the Defaulting Party consolidates or amalgamates with or
merges into or transfers all or substantially all its assets to another entity
and (A) the creditworthiness of the resulting, surviving or transferee entity
is materially weaker than that of the Defaulting Party prior to such action,
or (B) at the time of such consolidation, amalgamation, merger or transfer
the resulting, surviving or transferee entity fails to assume all the
obligations of the Defaulting Party under the Agreement by operation of
law or pursuant to an agreement satisfactory to the Non-Defaulting Party;
(x) by reason of any default, or event of default or other similar
condition or event, any Specified Indebtedness (being Specified
Indebtedness of an amount which, when expressed in the Currency of the
Threshold Amount, is in aggregate equal to or in excess of the Threshold
Amount) of the Defaulting Party or any Credit Support Provider in relation
to it: (A) is not paid on the due date therefor and remains unpaid after any
applicable grace period has elapsed, or (B) becomes, or becomes capable
at any time of being declared, due and payable under agreements or
instruments evidencing such Specified Indebtedness before it would
otherwise have been due and payable;
(xi) the Defaulting Party is in breach of or default under any
Specified Transaction and any applicable grace period has elapsed, and
there occurs any liquidation or early termination of, or acceleration of
obligations under, that Specified Transaction or the Defaulting Party (or
any Custodian on its behalf) disaffirms, disclaims or repudiates the whole
or any part of a Specified Transaction;
(xii) (A) any Credit Support Provider of the Defaulting Party or
the Defaulting Party itself fails to comply with or perform any agreement
or obligation to be complied with or performed by it in accordance with
the applicable Credit Support Document and such failure is continuing
after any applicable grace period has elapsed; (B) any Credit Support
Document relating to the Defaulting Party expires or ceases to be in full
force and effect prior to the satisfaction of all obligations of the Defaulting
Party under the Agreement, unless otherwise agreed in writing by the Non-
Defaulting Party; (C) the Defaulting Party or any Credit Support Provider
of the Defaulting Party (or, in either case, any Custodian acting on its
behalf) disaffirms, disclaims or repudiates, in whole or in part, or
challenges the validity of, any Credit Support Document; (D) any
representation or warranty made or given or deemed made or given by any
Credit Support Provider of the Defaulting Party pursuant to any Credit
Support Document shall prove to have been false or misleading in any
material respect as at the time it was made or given or deemed made or
given and one (1) Business Day has elapsed after the Non-Defaulting Party
has given the Defaulting Party written notice thereof; or (E) any event set
out in (ii) to (vii) or (ix) to (xi) above occurs in respect of any Credit
Support Provider of the Defaulting Party; or
(xiii) any other condition or event specified in Part IX of the
Schedule or in Section 11.14 if made applicable to the Agreement in Part
XI of the Schedule.
"Exercise Date", in respect of any Option, means the day on which
a Notice of Exercise received by the applicable Designated Office of the
Seller becomes effective pursuant to Section 5.1.
"Expiration Date", in respect of any Option, means the date agreed
to as such at the time the Option is entered into, as evidenced in a
Confirmation.
"Expiration Time", in respect of any Option, means the latest time
on the Expiration Date on which the Seller must accept a Notice of
Exercise as agreed to at the time the Option is entered into, as evidenced in
a Confirmation.
"FX Transaction" means any transaction between the Parties for
the purchase by one Party of an agreed amount in one Currency against the
sale by it to the other of an agreed amount in another Currency, both such
amounts either being deliverable on the same Value Date or, if the Parties
have so agreed in Part VI of the Schedule, being cash-settled in a single
Currency, which is or shall become subject to the Agreement and in
respect of which transaction the Parties have agreed (whether orally,
electronically or in writing): the Currencies involved, the amounts of such
Currencies to be purchased and sold, which Party will purchase which
Currency and the Value Date.
"In-the-Money Amount" means (i) in the case of a Call, the excess
of the Spot Price over the Strike Price, multiplied by the aggregate amount
of the Call Currency to be purchased under the Call, where both prices are
quoted in terms of the amount of the Put Currency to be paid for one unit
of the Call Currency; and (ii) in the case of a Put, the excess of the Strike
Price over the Spot Price, multiplied by the aggregate amount of the Put
Currency to be sold under the Put, where both prices are quoted in terms of
the amount of the Call Currency to be paid for one unit of the Put
Currency.
"Insolvency Proceeding" means a case or proceeding seeking a
judgment of or arrangement for insolvency, bankruptcy, composition,
rehabilitation, reorganization, administration, winding-up, liquidation or
other similar relief with respect to the Defaulting Party or its debts or
assets, or seeking the appointment of a trustee, receiver, liquidator,
conservator, administrator, custodian or other similar official (each, a
"Custodian") of the Defaulting Party or any substantial part of its assets,
under any bankruptcy, insolvency or other similar law or any banking,
insurance or similar law governing the operation of the Defaulting Party.
"LIBOR", with respect to any Currency and date, means the
average rate at which deposits in the Currency for the relevant amount and
time period are offered by major banks in the London interbank market as
of 11:00 a.m. (London time) on such date, or, if major banks do not offer
deposits in such Currency in the London interbank market on such date,
the average rate at which deposits in the Currency for the relevant amount
and time period are offered by major banks in the relevant foreign
exchange market at such time on such date as may be determined by the
Party making the determination.
"Local Banking Day" means (i) for any Currency, a day on which
commercial banks effect deliveries of that Currency in accordance with the
market practice of the relevant foreign exchange market, and (ii) for any
Party, a day in the location of the applicable Designated Office of such
Party on which commercial banks in that location are not authorized or
required by law to close.
"Master Agreement" means the terms and conditions set forth in
this Master Agreement, including the Schedule.
"Matched Pair Novation Netting Office(s)", in respect of a Party,
means the Designated Office(s) specified in Part V of the Schedule.
"Non-Defaulting Party" has the meaning given to it in the
definition of Event of Default.
"Notice of Exercise" means telex, telephonic or other electronic
notification (excluding facsimile transmission) providing assurance of
receipt, given by the Buyer prior to or at the Expiration Time, of the
exercise of an Option, which notification shall be irrevocable.
"Novation Netting Office(s)", in respect of a Party, means the
Designated Office(s) specified in Part V of the Schedule.
"Option" means a currency option which is or shall become
subject to the Agreement.
"Parties" means the parties to the Agreement, including their
successors and permitted assigns (but without prejudice to the application
of clause (ix) of the definition of Event of Default); and the term "Party"
shall mean whichever of the Parties is appropriate in the context in which
such expression may be used.
"Premium", in respect of any Option, means the purchase price of
the Option as agreed upon by the Parties, and payable by the Buyer to the
Seller thereof.
"Premium Payment Date", in respect of any Option, means the
date on which the Premium is due and payable, as agreed to at the time the
Option is entered into, as evidenced in a Confirmation.
"Proceedings" means any suit, action or other proceedings relating
to the Agreement, any FX Transaction or any Option.
"Put" means an Option entitling, but not obligating (except upon
exercise), the Buyer to sell to the Seller at the Strike Price a specified
quantity of the Put Currency.
"Put Currency" means the Currency agreed to as such at the time
an Option is entered into, as evidenced in a Confirmation.
"Schedule" means the Schedule attached to and part of this Master
Agreement, as it may be amended from time to time by agreement of the
Parties.
"Seller" means the Party granting an Option.
"Settlement Date" means, in respect of: (i) an American Style
Option, the Spot Date of the Currency Pair on the Exercise Date of such
Option, and (ii) a European Style Option, the Spot Date of the Currency
Pair on the Expiration Date of such Option; and, where market practice in
the relevant foreign exchange market in relation to the two Currencies
involved provides for delivery of one Currency on one date which is a
Local Banking Day in relation to that Currency but not to the other
Currency and for delivery of the other Currency on the next Local Banking
Day in relation to that other Currency, "Settlement Date" means such two
(2) Local Banking Days.
"Settlement Netting Office(s)", in respect of a Party, means the
Designated Office(s) specified in Part V of the Schedule.
"Specified Indebtedness" means any obligation (whether present
or future, contingent or otherwise, as principal or surety or otherwise) in
respect of borrowed money, other than in respect of deposits received.
"Specified Transaction" means any transaction (including an
agreement with respect thereto) between one Party to the Agreement (or
any Credit Support Provider of such Party) and the other Party to the
Agreement (or any Credit Support Provider of such Party) which is a rate
swap transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity linked swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect to any of these
transactions) or any combination of any of the foregoing.
"Spot Date" means the spot delivery day for the relevant Currency
Pair as generally used by the relevant foreign exchange market.
"Spot Price" means the rate of exchange at the time at which such
price is to be determined for foreign exchange transactions in the relevant
Currency Pair for value on the Spot Date, as determined in good faith: (i)
by the Seller, for purposes of Section 5, and (ii) by the Non-Defaulting
Party, for purposes of Section 8.
"Strike Price", in respect of any Option, means the price at which
the Currency Pair may be exchanged, as agreed to at the time the Option is
entered into, as evidenced in a Confirmation.
"Threshold Amount" means the amount specified as such for each
Party in Part VIII of the Schedule.
"Value Date" means, with respect to any FX Transaction, the
Business Day (or where market practice in the relevant foreign exchange
market in relation to the two Currencies involved provides for delivery of
one Currency on one date which is a Local Banking Day in relation to that
Currency but not to the other Currency and for delivery of the other
Currency on the next Local Banking Day in relation to that other Currency
("Split Settlement") the two (2) Local Banking Days in accordance with
that market practice) agreed by the Parties for delivery of the Currencies to
be purchased and sold pursuant to such FX Transaction, and, with respect
to any Currency Obligation, the Business Day (or, in the case of Split
Settlement, Local Banking Day) upon which the obligation to deliver
Currency pursuant to such Currency Obligation is to be performed.
SECTION 2. FX TRANSACTIONS AND OPTIONS
2.1 Scope of the Agreement. The Parties (through their
respective Designated Offices) may enter into (i) FX Transactions, for
such quantities of such Currencies, as may be agreed subject to the terms
of the Agreement, and (ii) Options, for such Premiums, with such
Expiration Dates, at such Strike Prices and for the purchase or sale of such
quantities of such Currencies, as may be agreed subject to the terms of the
Agreement; provided that neither Party shall be required to enter into any
FX Transaction or Option with the other Party (other than in connection
with an exercised Option). Unless otherwise agreed in writing by the
Parties, each FX Transaction and Option entered into between Designated
Offices of the Parties on or after the Effective Date shall be governed by
the Agreement. Each FX Transaction and Option between any two
Designated Offices of the Parties outstanding on the Effective Date which
is identified in Part I of the Schedule shall also be governed by the
Agreement.
2.2 Single Agreement. This Master Agreement, the terms
agreed between the Parties with respect to each FX Transaction and
Option (and, to the extent recorded in a Confirmation, each such
Confirmation), and all amendments to any of such items shall together
form the agreement between the Parties (the "Agreement") and shall
together constitute a single agreement between the Parties. The Parties
acknowledge that all FX Transactions and Options are entered into in
reliance upon such fact, it being understood that the Parties would not
otherwise enter into any FX Transaction or Option.
2.3 Confirmations. FX Transactions and Options shall be
promptly confirmed by the Parties by Confirmations exchanged by mail,
telex, facsimile or other electronic means from which it is possible to
produce a hard copy. The failure by a Party to issue a Confirmation shall
not prejudice or invalidate the terms of any FX Transaction or Option.
2.4 Inconsistencies. In the event of any inconsistency
between the provisions of the Schedule and the other provisions of the
Agreement, the Schedule will prevail. In the event of any inconsistency
between the terms of a Confirmation and the other provisions of the
Agreement, (i) in the case of an FX Transaction, the other provisions of
the Agreement shall prevail, and the Confirmation shall not modify the
other terms of the Agreement and (ii) in the case of an Option, the terms of
the Confirmation shall prevail, and the other terms of the Agreement shall
be deemed modified with respect to such Option, except for the manner of
confirmation under Section 2.3 and, if applicable, discharge of Options
under Section 4.
SECTION 3. OPTION PREMIUM
3.1 Payment of Premium. Unless otherwise agreed in writing
by the Parties, the Buyer shall be obligated to pay the Premium related to
an Option no later than its Premium Payment Date.
3.2 Late Payment or Non-Payment of Premium. If any
Premium is not received on or before the Premium Payment Date, the
Seller may elect: (i) to accept a late payment of such Premium; (ii) to give
written notice of such non-payment and, if such payment shall not be
received within two (2) Business Days of such notice, treat the related
Option as void; or (iii) to give written notice of such non-payment and, if
such payment shall not be received within two (2) Business Days of such
notice, treat such non-payment as an Event of Default under clause (i) of
the definition of Event of Default. If the Seller elects to act under either
clause (i) or (ii) of the preceding sentence, the Buyer shall pay all out-of-
pocket costs and actual damages incurred in connection with such unpaid
or late Premium or void Option, including, without limitation, interest on
such Premium from and including the Premium Payment Date to but
excluding the late payment date in the same Currency as such Premium at
overnight LIBOR and any other losses, costs or expenses incurred by the
Seller in connection with such terminated Option, for the loss of its
bargain, its cost of funding, or the loss incurred as a result of terminating,
liquidating, obtaining or re-establishing a delta hedge or related trading
position with respect to such Option.
SECTION 4. DISCHARGE AND TERMINATION OF OPTIONS;
NETTING OF OPTION PREMIUMS
4.1 Discharge and Termination. If agreed in Part V of the
Schedule, any Call or any Put written by a Party will automatically be
discharged and terminated, in whole or in part, as applicable, against a Call
or a Put, respectively, written by the other Party, such discharge and
termination to occur automatically upon the payment in full of the last
Premium payable in respect of such Options; provided that such discharge
and termination may only occur in respect of Options:
(i) each being with respect to the same Put Currency and the
same Call Currency;
(ii) each having the same Expiration Date and Expiration
Time;
(iii) each being of the same style, i.e. either both being
American Style Options or both being European Style Options;
(iv) each having the same Strike Price;
(v) each being transacted by the same pair of Designated
Offices of Buyer and Seller; and
(vi) neither of which shall have been exercised by delivery of
a Notice of Exercise;
and, upon the occurrence of such discharge and termination, neither Party
shall have any further obligation to the other Party in respect of the
relevant Options or, as the case may be, parts thereof so discharged and
terminated. Such discharge and termination shall be effective
notwithstanding that either Party may fail to record such discharge and
termination in its books. In the case of a partial discharge and termination
(i.e., where the relevant Options are for different amounts of the Currency
Pair), the remaining portion of the Option which is partially discharged
and terminated shall continue to be an Option for all purposes of the
Agreement, including this Section 4.1.
4.2 Netting of Option Premiums. If agreed in Part V of the
Schedule and if, on any date, Premiums would otherwise be payable under
the Agreement in the same Currency between the same respective
Designated Offices of the Parties, then, on such date, each Party's
obligation to make payment of any such Premium will be automatically
satisfied and discharged and, if the aggregate Premium(s) that would
otherwise have been payable by such Designated Office of one Party
exceeds the aggregate Premium(s) that would otherwise have been payable
by such Designated Office of the other Party, replaced by an obligation
upon the Party by whom the larger aggregate Premium(s) would have been
payable to pay the other Party the excess of the larger aggregate
Premium(s) over the smaller aggregate Premium(s) and, if the aggregate
Premiums are equal, no payment shall be made.
SECTION 5. EXERCISE AND SETTLEMENT OF OPTIONS
5.1 Exercise of Options. The Buyer may exercise an Option
by delivery to the Seller of a Notice of Exercise. Subject to Section 5.3, if
a Notice of Exercise with respect to an Option has not been received by
the Seller prior to or at the Expiration Time, the Option shall expire and
become void and of no effect. Any Notice of Exercise shall (unless
otherwise agreed):
(i) in respect of an American Style Option, (A) if received at or
prior to 3:00 p.m. on a Business Day, be effective upon receipt thereof by
the Seller, and (B) if received after 3:00 p.m. on a Business Day, be
effective only as of the opening of business of the Seller on the first
Business Day subsequent to its receipt; and
(ii) in respect of a European Style Option, if received on or, if the
parties have so agreed, before the Expiration Date, prior to or at the
Expiration Time, be effective upon receipt thereof by the Seller.
5.2 No Partial Exercise. Unless otherwise agreed by the
Parties, an Option may be exercised only in whole.
5.3 Automatic Exercise. Unless otherwise agreed in Part VI
of the Schedule or unless the Seller is otherwise instructed by the Buyer, if
an Option has an In-the-Money Amount at its Expiration Time that equals
or exceeds the product of (x) 1% of the Strike Price (or such other
percentage or amount as may have been agreed by the Parties) and (y) the
amount of the Call Currency or Put Currency, as appropriate, then the
Option shall be deemed automatically exercised. In such case, the Seller
may elect to settle such Option either in accordance with Section 5.4 or by
payment to the Buyer on the Settlement Date for such Option of the In-the-
Money Amount, as determined at the Expiration Time or as soon
thereafter as practicable. In the latter case, the sole obligations of the
Parties with respect to settlement of such Option shall be to deliver or
receive the In-the-Money Amount of such Option on the Settlement Date.
The Seller shall notify the Buyer of its election of the method of settlement
of an automatically exercised Option as soon as practicable after the
Expiration Time.
5.4 Settlement of Exercised Options. An exercised Option
shall settle on its Settlement Date. Subject to Section 5.3 and 5.5, on the
Settlement Date, the Buyer shall pay the Put Currency to the Seller for
value on the Settlement Date and the Seller shall pay the Call Currency to
the Buyer for value on the Settlement Date. An exercised Option shall be
treated as an FX Transaction and a Currency Obligation (except, for the
purposes of Section 8.1 only, if it is to be settled at its In-the-Money
Amount), and for this purpose the relevant Settlement Date shall be treated
as the Value Date of the FX Transaction.
5.5 Settlement at In-the-Money Amount. An Option shall be
settled at its In-the-Money Amount if so agreed by the Parties at the time
such Option is entered into. In such case, the In-the-Money Amount shall
be determined based upon the Spot Price at the time of exercise or as soon
thereafter as practicable. The sole obligations of the Parties with respect
to settlement of such Option shall be to deliver or receive the In-the-
Money Amount of such Option on the Settlement Date.
SECTION 6. SETTLEMENT AND NETTING OF FX
TRANSACTIONS
6.1 Settlement of FX Transactions. Subject to Sections 6.2
and 6.3, each Party shall deliver to the other Party the amount of the
Currency to be delivered by it under each Currency Obligation on the
Value Date for such Currency Obligation.
6.2 Settlement Netting. If, on any date, more than one
delivery of a particular Currency under Currency Obligations is to be made
between a pair of Settlement Netting Offices, then each Party shall
aggregate the amounts of such Currency deliverable by it and only the
difference between these aggregate amounts shall be delivered by the Party
owing the larger aggregate amount to the other Party, and, if the aggregate
amounts are equal, no delivery of the Currency shall be made.
6.3 Novation Netting. (a) By Currency. If the Parties enter
into an FX Transaction through a pair of Novation Netting Offices giving
rise to a Currency Obligation for the same Value Date and in the same
Currency as a then existing Currency Obligation between the same pair of
Novation Netting Offices, then immediately upon entering into such FX
Transaction, each such Currency Obligation shall automatically and
without further action be individually canceled and simultaneously
replaced by a new Currency Obligation for such Value Date determined as
follows: the amounts of such Currency that would otherwise have been
deliverable by each Party on such Value Date shall be aggregated and the
Party with the larger aggregate amount shall have a new Currency
Obligation to deliver to the other Party the amount of such Currency by
which its aggregate amount exceeds the other Party's aggregate amount,
provided that if the aggregate amounts are equal, no new Currency
Obligation shall arise. This Section 6.3 shall not affect any other Currency
Obligation of a Party to deliver any different Currency on the same Value
Date.
(b) By Matched Pair. If the Parties enter into an FX
Transaction between a pair of Matched Pair Novation Netting Offices then
the provisions of Section 6.3(a) shall apply only in respect of Currency
Obligations arising by virtue of FX Transactions entered into between
such pair of Matched Pair Novation Netting Offices and involving the
same pair of Currencies and the same Value Date.
6.4 General (a) Inapplicability of Sections 6.2 and 6.3. The
provisions of Sections 6.2 and 6.3 shall not apply if a Close-Out Date has
occurred or a voluntary or involuntary Insolvency Proceeding or action of
the kind described in clause (ii), (iii) or (iv) of the definition of Event of
Default has occurred without being dismissed in relation to either Party.
(b) Failure to Record. The provisions of Section 6.3 shall
apply notwithstanding that either Party may fail to record the new
Currency Obligation in its books.
(c) Cut-off Date and Time. The provisions of Section 6.3 are
subject to any cut-off date and cut-off time agreed between the applicable
Novation Netting Offices and Matched Pair Novation Netting Offices of
the Parties.
SECTION 7. REPRESENTATIONS, WARRANTIES AND
COVENANTS
7.1 Representations and Warranties. Each Party represents
and warrants to the other Party as of the Effective Date and as of the date
of each FX Transaction and each Option that: (i) it has authority to enter
into the Agreement (including such FX Transaction or Option, as the case
may be); (ii) the persons entering into the Agreement (including such FX
Transaction or Option, as the case may be) on its behalf have been duly
authorized to do so; (iii) the Agreement (including such FX Transaction or
Option, as the case may be) is binding upon it and enforceable against it in
accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting creditors'
rights generally and applicable principles of equity) and does not and will
not violate the terms of any agreements to which such Party is bound; (iv)
no Event of Default, or event which, with notice or lapse of time or both,
would constitute an Event of Default, has occurred and is continuing with
respect to it; (v) it acts as principal in entering into each FX Transaction
and Option and exercising each and every Option; and (vi) if the Parties
have so specified in Part XV of the Schedule, it makes the representations
and warranties set forth in such Part XV.
7.2 Covenants. Each Party covenants to the other Party that:
(i) it will at all times obtain and comply with the terms of and do all that is
necessary to maintain in full force and effect all authorizations, approvals,
licenses and consents required to enable it lawfully to perform its
obligations under the Agreement; (ii) it will promptly notify the other
Party of the occurrence of any Event of Default with respect to itself or
any Credit Support Provider in relation to it; and
(iii) if the Parties have set
forth additional covenants in Part XVI of the Schedule, it makes the
covenants set forth in such Part XVI.
SECTION 8. CLOSE-OUT AND LIQUIDATION
8.1 Manner of Close-Out and Liquidation. (a) Close-Out. If
an Event of Default has occurred and is continuing, then the Non-
Defaulting Party shall have the right to close out all, but not less than all,
outstanding Currency Obligations (including any Currency Obligation
which has not been performed and in respect of which the Value Date is
on or precedes the Close-Out Date) and Options, except to the extent that
in the good faith opinion of the Non-Defaulting Party certain of such
Currency Obligations or Options may not be closed out under applicable
law. Such close-out shall be effective upon receipt by the Defaulting Party
of notice that the Non-Defaulting Party is terminating such Currency
Obligations and Options. Notwithstanding the foregoing, unless otherwise
agreed by the Parties in Part X of the Schedule, in the case of an Event of
Default in clause (ii), (iii) or (iv) of the definition
thereof with respect to a
Party and, if agreed by the Parties in Part IX of the Schedule, in the case of
any other Event of Default specified and so agreed in Part IX with respect
to a Party, close-out shall be automatic as to all outstanding Currency
Obligations and Options, as of the time immediately preceding the
institution of the relevant Insolvency Proceeding or action. The Non-
Defaulting Party shall have the right to liquidate such closed-out Currency
Obligations and Options as provided below.
(b) Liquidation of Currency Obligations. Liquidation of
Currency Obligations terminated by close-out shall be effected as follows:
(i) Calculating Closing Gain or Loss. The Non-Defaulting
Party shall calculate in good faith, with respect to each such terminated
Currency Obligation, except to the extent that in the good faith opinion of
the Non-Defaulting Party certain of such Currency Obligations may not be
liquidated as provided herein under applicable law, as of the Close-Out
Date or as soon thereafter as reasonably practicable, the Closing Gain, or,
as appropriate, the Closing Loss, as follows:
(A) for each Currency Obligation calculate a "Close-
Out Amount" as follows:
(1) in the case of a Currency Obligation whose
Value Date is the same as or is later than the Close-Out Date, the amount
of such Currency Obligation; or
(2) in the case of a Currency Obligation whose
Value Date precedes the Close-Out Date, the amount of such Currency
Obligation increased, to the extent permitted by applicable law, by adding
interest thereto from and including the Value Date to but excluding the
Close-Out Date at overnight LIBOR; and
(3) for each such amount in a Currency other
than the Non-Defaulting Party's Base Currency, convert such amount into
the Non-Defaulting Party's Base Currency at the rate of exchange at
which, at the time of the calculation, the Non-Defaulting Party can buy
such Base Currency with or against the Currency of the relevant Currency
Obligation for delivery (x) if the Value Date of such Currency Obligation
is on or after the Spot Date as of such time of calculation for the Base
Currency, on the Value Date of that Currency Obligation or (y) if such
Value Date precedes such Spot Date, for delivery on such Spot Date (or, in
either case, if such rate of exchange is not available, conversion shall be
accomplished by the Non-Defaulting Party using any commercially
reasonable method); and
(B) determine in relation to each Value Date: (1) the
sum of all Close-Out Amounts relating to Currency Obligations under
which the Non-Defaulting Party would otherwise have been entitled to
receive the relevant amount on that Value Date; and (2) the sum of all
Close-Out Amounts relating to Currency Obligations under which the
Non-Defaulting Party would otherwise have been obliged to deliver the
relevant amount to the Defaulting Party on that Value Date; and
(C) if the sum determined under (B)(1) is greater than
the sum determined under (B)(2), the difference shall be the Closing Gain
for such Value Date; if the sum determined under (B)(1) is less than the
sum determined under (B)(2), the difference shall be the Closing Loss for
such Value Date.
(ii) Determining Present Value. To the extent permitted by
applicable law, the Non-Defaulting Party shall adjust the Closing Gain or
Closing Loss for each Value Date falling after the Close-Out Date to
present value by discounting the Closing Gain or Closing Loss from and
including the Value Date to but excluding the Close-Out Date, at LIBOR
with respect to the Non-Defaulting Party's Base Currency as at the Close-
Out Date or at such other rate as may be prescribed by applicable law.
(iii) Netting. The Non-Defaulting Party shall aggregate the
following amounts so that all such amounts are netted into a single
liquidated amount payable to or by the Non-Defaulting Party: (x) the sum
of the Closing Gains for all Value Dates (discounted to present value,
where appropriate, in accordance with the provisions of Section 8.1(b)(ii))
(which for the purposes of the aggregation shall be a positive figure); and
(y) the sum of the Closing Losses for all Value Dates (discounted to
present value, where appropriate, in accordance with the provisions of
Section 8.1(b)(ii)) (which for the purposes of the aggregation shall be a
negative figure).
(c) Liquidation of Options. To liquidate unexercised Options
and exercised Options to be settled at their In-the-Money Amounts that
have been terminated by close-out, the Non-Defaulting Party shall:
(i) Calculating Settlement Amount. Calculate in good faith
with respect to each such terminated Option, except to the extent that in
the good faith opinion of the Non-Defaulting Party certain of such Options
may not be liquidated as provided herein under applicable law, as of the
Close-Out Date or as soon as reasonably practicable thereafter a settlement
amount for each Party equal to the aggregate of:
(A) with respect to each Option purchased by such
Party, and which the other Party has not elected to treat as void pursuant to
Section 3.2(ii) for lack of payment of the Premium, the current market
premium for such Option;
(B) with respect to each Option sold by such Party
and which such Party has not elected to treat as void pursuant to Section
3.2(ii) for lack of payment of the Premium, any unpaid Premium, provided
that, if the Close-Out Date occurs before the Premium Payment Date, such
amount shall be discounted from and including the Premium Payment Date
to but excluding the Close-Out Date at a rate equal to LIBOR on the
Close-Out Date and, if the Close-Out Date occurs after the Premium
Payment Date, to the extent permitted by applicable law, the settlement
amount shall include interest on any unpaid Premium from and including
the Premium Payment Date to but excluding the Close-Out Date in the
same Currency as such Premium at overnight LIBOR;
(C) with respect to any exercised Option to be settled
at its In-the-Money Amount (whether or not the Close-Out Date occurs
before the Settlement Date for such Option), any unpaid amount due to
such Party in settlement of such Option and, if the Close-Out Date occurs
after the Settlement Date for such Option, to the extent permitted by
applicable law, interest thereon from and including the applicable
Settlement Date to but excluding the Close-Out Date at overnight LIBOR;
and
(D) without duplication, the amount that the Non-
Defaulting Party reasonably determines in good faith, as of the Close-Out
Date or as of the earliest date thereafter that is reasonably practicable, to
be its additional losses, costs and expenses in connection with such
terminated Option, for the loss of its bargain, its cost of funding, or the
loss incurred as a result of terminating, liquidating, obtaining or re-
establishing a delta hedge or related trading position with respect to such
Option;
(ii) Converting to Base Currency. Convert any settlement
amount calculated in accordance with clause (i) above in a Currency other
than the Non-Defaulting Party's Base Currency into such Base Currency at
the Spot Price at which, at the time of the calculation, the Non-Defaulting
Party could enter into a contract in the foreign exchange market to buy the
Non-Defaulting Party's Base Currency in exchange for such Currency (or,
if such Spot Price is not available, conversion shall be accomplished by the
Non-Defaulting Party using any commercially reasonable method); and
(iii) Netting. Net such settlement amounts with respect to
each Party so that all such amounts are netted to a single liquidated amount
payable by one Party to the other Party.
(d) Final Netting. The Non-Defaulting Party shall net (or, if
both are payable by one Party, add) the liquidated amounts payable under
Sections 8.1(b) and 8.1(c) with respect to each Party so that such amounts
are netted (or added) to a single liquidated amount payable by one Party to
the other Party as a settlement payment.
8.2 Set-Off Against Credit Support. Where close-out and
liquidation occurs in accordance with Section 8.1, the Non-Defaulting
Party shall also be entitled (i) to set off the net payment calculated in
accordance with Section 8.1(d) which the Non-Defaulting Party owes to
the Defaulting Party, if any, against any credit support or other collateral
("Credit Support") held by the Defaulting Party pursuant to a Credit
Support Document or otherwise (including the liquidated value of any
non-cash Credit Support) in respect of the Non-Defaulting Party's
obligations under the Agreement or (ii) to set off the net payment
calculated in accordance with Section 8.1(d) which the Defaulting Party
owes to the Non-Defaulting Party, if any, against any Credit Support held
by the Non-Defaulting Party (including the liquidated value of any non-
cash Credit Support) in respect of the Defaulting Party's obligations under
the Agreement; provided that, for purposes of either such set-off, any
Credit Support denominated in a Currency other than the Non-Defaulting
Party's Base Currency shall be converted into such Base Currency at the
rate specified in Section 8.1(c)(ii).
8.3 Other Foreign Exchange Transactions and Currency
Options. Where close-out and liquidation occurs in accordance with
Section 8.1, the Non-Defaulting Party shall also be entitled to close-out
and liquidate, to the extent permitted by applicable law, any other foreign
exchange transaction or currency option entered into between the Parties
which is then outstanding in accordance with the provisions of Section 8.1,
with each obligation of a Party to deliver a Currency under such a foreign
exchange transaction being treated as if it were a Currency Obligation
(including exercised options, provided that cash-settled options shall be
treated analogously to Options to be settled at their In-the-Money Amount)
and each unexercised option being treated as if it were an Option under the
Agreement.
8.4 Payment and Late Interest. The net amount payable by
one Party to the other Party pursuant to the provisions of Sections 8.1 and
8.3 above shall be paid by the close of business on the Business Day
following the receipt by the Defaulting Party of notice of the Non-
Defaulting Party's settlement calculation, with interest at overnight LIBOR
from and including the Close-Out Date to but excluding such Business
Day (and converted as required by applicable law into any other Currency,
any costs of conversion to be borne by, and deducted from any payment to,
the Defaulting Party). To the extent permitted by applicable law, any
amounts owed but not paid when due under this Section 8 shall bear
interest at overnight LIBOR (or, if conversion is required by applicable
law into some other Currency, either overnight LIBOR with respect to
such other Currency or such other rate as may be prescribed by such
applicable law) for each day for which such amount remains unpaid. Any
addition of interest or discounting required under this Section 8 shall be
calculated on the basis of a year of such number of days as is customary
for transactions involving the relevant Currency in the relevant foreign
exchange market.
8.5 Suspension of Obligations. Without prejudice to the
foregoing, so long as a Party shall be in default in payment or performance
to the other Party under the Agreement and the other Party has not
exercised its rights under this Section 8, or, if "Adequate Assurances" is
specified as applying to the Agreement in Part XI of the Schedule, during
the pendency of a reasonable request to a Party for adequate assurances of
its ability to perform its obligations under the Agreement, the other Party
may, at its election and without penalty, suspend its obligation to perform
under the Agreement.
8.6 Expenses. The Defaulting Party shall reimburse the Non-
Defaulting Party in respect of all out-of-pocket expenses incurred by the
Non-Defaulting Party (including fees and disbursements of counsel,
including attorneys who may be employees of the Non-Defaulting Party)
in connection with any reasonable collection or other enforcement
proceedings related to the payments required under the Agreement.
8.7 Reasonable Pre-Estimate. The Parties agree that the
amounts recoverable under this Section 8 are a reasonable pre-estimate of
loss and not a penalty. Such amounts are payable for the loss of bargain
and the loss of protection against future risks and, except as otherwise
provided in the Agreement, neither Party will be entitled to recover any
additional damages as a consequence of such losses.
8.8 No Limitation of Other Rights; Set-Off. The Non-
Defaulting Party's rights under this Section 8 shall be in addition to, and
not in limitation or exclusion of, any other rights which the Non-
Defaulting Party may have (whether by agreement, operation of law or
otherwise), and, to the extent not prohibited by law, the Non-Defaulting
Party shall have a general right of set-off with respect to all amounts owed
by each Party to the other Party, whether due and payable or not due and
payable (provided that any amount not due and payable at the time of such
set-off shall, if appropriate, be discounted to present value in a
commercially reasonable manner by the Non-Defaulting Party). The Non-
Defaulting Party's rights under this Section 8.8 are subject to Section 8.7.
SECTION 9. FORCE MAJEURE, ACT OF STATE, ILLEGALITY
AND IMPOSSIBILITY
9.1 Force Majeure, Act of State, Illegality and Impossibility.
If either Party is prevented from or hindered or delayed by reason of force
majeure or act of state in the delivery or receipt of any Currency in respect
of a Currency Obligation or Option or if it becomes or, in the good faith
judgment of one of the Parties, may become unlawful or impossible for
either Party to make or receive any payment in respect of a Currency
Obligation or Option, then the Party for whom such performance has been
prevented, hindered or delayed or has become illegal or impossible shall
promptly give notice thereof to the other Party and either Party may, by
notice to the other Party, require the close-out and liquidation of each
affected Currency Obligation and Option in accordance with the
provisions of Section 8.1 and, for such purposes, the Party unaffected by
such force majeure, act of state, illegality or impossibility (or, if both
Parties are so affected, whichever Party gave the relevant notice) shall
perform the calculation required under Section 8.1 as if it were the Non-
Defaulting Party. Nothing in this Section 9.1 shall be taken as indicating
that the Party treated as the Defaulting Party for the purpose of
calculations required by Section 8.1 has committed any breach or default.
9.2 Transfer to Avoid Force Majeure, Act of State, Illegality
or Impossibility. If Section 9.1 becomes applicable, unless prohibited by
law, the Party which has been prevented, hindered or delayed from
performing shall, as a condition to its right to designate a close-out and
liquidation of any affected Currency Obligation or Option, use all
reasonable efforts (which will not require such Party to incur a loss,
excluding immaterial, incidental expenses) to transfer as soon as
practicable, and in any event before the earlier to occur of the expiration
date of the affected Options or twenty (20) days after it gives notice under
Section 9.1, all its rights and obligations under the Agreement in respect of
the affected Currency Obligations and Options to another of its Designated
Offices so that such force majeure, act of state, illegality or impossibility
ceases to exist. Any such transfer will be subject to the prior written
consent of the other Party, which consent will not be withheld if such other
Party's policies in effect at such time would permit it to enter into
transactions with the transferee Designated Office on the terms proposed,
unless such transfer would cause the other Party to incur a material tax or
other cost.
SECTION 10. PARTIES TO RELY ON THEIR OWN EXPERTISE
Each Party will be deemed to represent to the other Party on the
date on which it enters into an FX Transaction or Option that (absent a
written agreement between the Parties that expressly imposes affirmative
obligations to the contrary for that FX Transaction or Option): (i)(A) it is
acting for its own account, and it has made its own independent decisions
to enter into that FX Transaction or Option and as to whether that FX
Transaction or Option is appropriate or proper for it based upon its own
judgment and upon advice from such advisors as it has deemed necessary;
(B) it is not relying on any communication (written or oral) of the other
Party as investment advice or as a recommendation to enter into that FX
Transaction or Option, it being understood that information and
explanations related to the terms and conditions of an FX Transaction or
Option shall not be considered investment advice or a recommendation to
enter into that FX Transaction or Option; and (C) it has not received from
the other Party any assurance or guarantee as to the expected results of that
FX Transaction or Option; (ii) it is capable of evaluating and
understanding (on its own behalf or through independent professional
advice), and understands and accepts, the terms, conditions and risks of
that FX Transaction or Option; and (iii) the other Party is not acting as a
fiduciary or an advisor for it in respect of that FX Transaction or Option.
SECTION 11. MISCELLANEOUS
11.1 Currency Indemnity. The receipt or recovery by either
Party (the "first Party") of any amount in respect of an obligation of the
other Party (the "second Party") in a Currency other than that in which
such amount was due, whether pursuant to a judgment of any court or
pursuant to Section 8 or 9, shall discharge such obligation only to the
extent that, on the first day on which the first Party is open for business
immediately following such receipt or recovery, the first Party shall be
able, in accordance with normal banking practice, to purchase the
Currency in which such amount was due with the Currency received or
recovered. If the amount so purchasable shall be less than the original
amount of the Currency in which such amount was due, the second Party
shall, as a separate obligation and notwithstanding any judgment of any
court, indemnify the first Party against any loss sustained by it. The second
Party shall in any event indemnify the first Party against any costs incurred
by it in making any such purchase of Currency.
11.2 Assignment. Neither Party may assign, transfer or charge
or purport to assign, transfer or charge its rights or obligations under the
Agreement to a third party without the prior written consent of the other
Party and any purported assignment, transfer or charge in violation of this
Section 11.2 shall be void.
11.3 Telephonic Recording. The Parties agree that each may
electronically record all telephonic conversations between them and that
any such recordings may be submitted in evidence to any court or in any
Proceedings for the purpose of establishing any matters pertinent to the
Agreement.
11.4 Notices. Unless otherwise agreed, all notices, instructions
and other communications to be given to a Party under the Agreement
shall be given to the address, telex (if confirmed by the appropriate
answerback), facsimile (confirmed if requested) or telephone number and
to the individual or department specified by such Party in Part III of the
Schedule. Unless otherwise specified, any notice, instruction or other
communication given in accordance with this Section 11.4 shall be
effective upon receipt.
11.5 Termination. Each of the Parties may terminate the
Agreement at any time by seven (7) days' prior written notice to the other
Party delivered as prescribed in Section 11.4, and termination shall be
effective at the end of such seventh day; provided, however, that any such
termination shall not affect any outstanding Currency Obligations or
Options, and the provisions of the Agreement shall continue to apply until
all the obligations of each Party to the other under the Agreement have
been fully performed.
11.6 Severability. In the event any one or more of the
provisions contained in the Agreement should be held invalid, illegal or
unenforceable in any respect under the law of any jurisdiction, the validity,
legality and enforceability of the remaining provisions contained in the
Agreement under the law of such jurisdiction, and the validity, legality and
enforceability of such and any other provisions under the law of any other
jurisdiction shall not in any way be affected or impaired thereby. The
Parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
11.7 No Waiver. No indulgence or concession granted by a
Party and no omission or delay on the part of a Party in exercising any
right, power or privilege under the Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
11.8 Master Agreement. Where one of the Parties to the
Agreement is domiciled in the United States, the Parties intend that the
Agreement shall be a master agreement, as referred to in 11 U.S.C. Section
101(53B)(C) and 12 U.S.C. Section 1821(e)(8)(D)(vii).
11.9 Time of Essence, Etc. Time shall be of the essence in the
Agreement. Unless otherwise agreed, the times referred to in the
Agreement with respect to Options shall in each case refer to the local time
of the relevant Designated Office of the Seller of the relevant Option.
11.10 Headings. Headings in the Agreement are for ease of
reference only.
11.11 Payments Generally. All payments to be made under the
Agreement shall be made in same day (or immediately available) and
freely transferable funds and, unless otherwise specified, shall be delivered
to such office of such bank, and in favor of such account as shall be
specified by the Party entitled to receive such payment in Part IV of the
Schedule or in a notice given in accordance with Section 11.4.
11.12 Amendments. No amendment, modification or waiver of
the Agreement will be effective unless in writing executed by each of the
Parties; provided that the Parties may agree in a Confirmation that
complies with Section 2.3 to amend the Agreement solely with respect to
the Option that is the subject of the Confirmation.
11.13 Credit Support. A Credit Support Document between the
Parties may apply to obligations governed by the Agreement. If the Parties
have executed a Credit Support Document, such Credit Support Document
shall be subject to the terms of the Agreement and is hereby incorporated
by reference in the Agreement. In the event of any conflict between a
Credit Support Document and the Agreement, the Agreement shall prevail,
except for any provision in such Credit Support Document in respect of
governing law.
11.14 Adequate Assurances. If the Parties have so agreed in
Part XI of the Schedule, the failure by a Party to give adequate assurances
of its ability to perform any of its obligations under the Agreement within
two (2) Business Days of a written request to do so when the other Party
has reasonable grounds for insecurity shall be an Event of Default under
the Agreement.
11.15 Correction of Confirmations. Unless either Party objects
to the terms contained in any Confirmation sent by the other Party or sends
a corrected Confirmation within three (3) Business Days of receipt of such
Confirmation, or such shorter time as may be appropriate given the Value
Date of an FX Transaction, the terms of such Confirmation shall be
deemed correct and accepted absent manifest error. If the Party receiving
a Confirmation sends a corrected Confirmation within such three (3)
Business Days, or shorter period, as appropriate, then the Party receiving
such corrected Confirmation shall have three (3) Business Days, or shorter
period, as appropriate, after receipt thereof to object to the terms contained
in such corrected Confirmation.
SECTION 12. LAW AND JURISDICTION
12.1 Governing Law. The Agreement shall be governed by,
and construed in accordance with, the laws of the jurisdiction set forth in
Part XII of the Schedule without giving effect to conflict of laws
principles.
12.2 Consent to Jurisdiction. (a) With respect to any
Proceedings, each Party irrevocably (i) submits to the non-exclusive
jurisdiction of the courts of the jurisdiction set forth in Part XIII of the
Schedule and (ii) waives any objection which it may have at any time to
the laying of venue of any Proceedings brought in any such court, waives
any claim that such Proceedings have been brought in an inconvenient
forum and further waives the right to object, with respect to such
Proceedings, that such court does not have jurisdiction over such Party.
Nothing in the Agreement precludes either Party from bringing
Proceedings in any other jurisdiction nor will the bringing of Proceedings
in any one or more jurisdictions preclude the bringing of Proceedings in
any other jurisdiction.
(b) Each Party irrevocably appoints the agent for service of
process (if any) specified with respect to it in Part XIV of the Schedule. If
for any reason any Party's process agent is unable to act as such, such Party
will promptly notify the other Party and within thirty (30) days will
appoint a substitute process agent acceptable to the other Party.
12.3 Waiver of Jury Trial. Each Party irrevocably waives any
and all right to trial by jury in any Proceedings.
12.4 Waiver of Immunities. Each Party irrevocably waives, to
the fullest extent permitted by applicable law, with respect to itself and its
revenues and assets (irrespective of their use or intended use), all
immunity on the grounds of sovereignty or other similar grounds from (i)
suit, (ii) jurisdiction of any court, (iii) relief by
way of injunction, order for
specific performance or for recovery of property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution or enforcement
of any judgment to which it or its revenues or assets might otherwise be
entitled in any Proceedings in the courts of any jurisdiction and
irrevocably agrees, to the extent permitted by applicable law, that it will
not claim any such immunity in any Proceedings.
XXXXXX XXXXXXX
& CO. INCORPORATED
By /s/Xxx Xxxx
Name: Xxx Xxxx
Title: Managing
Director
XXXX XXXXXX
GLOBAL
PERSPECTIVE
PORTFOLIO L.P.
By: Demeter Management Corporation
/s/Xxxxxx X.
Xxxxxx
Name: Xxxxxx X.
Xxxxxx
Title: President and
Chairman
SCHEDULE
Schedule to the International Foreign Exchange and Options
Master Agreement
dated as of April 30, 2000 (the "Agreement")
between Xxxxxx Xxxxxxx & Co. Incorporated ("Party A")
and
Xxxx Xxxxxx Global Perspective Portfolio L.P.
("Party B").
Part I. Scope of the Agreement
The Agreement shall apply to all FX Transactions
outstanding between any two Designated Offices of the Parties on the
Effective Date.
The Agreement shall apply to all Currency Options
outstanding between any two Designated Offices of the Parties on the
Effective Date.
Part II. Designated Offices
Each of the following shall be a Designated Office:
Party A: New York
Party A is not a multibranch party.
Party B: New York
Party B is not a multibranch party.
Each Party (the "first Party") that enters into an FX
Transaction or Option through an agency, branch, or office other than its
head or home office represents to the other Party (the "second Party")
that, notwithstanding the place of booking office or jurisdiction of
incorporation or organization of the first Party, the obligations of the
first Party are the same as if it had entered into the FX Transaction or
Option through its head or home office. This representation will be
deemed to be repeated by the first Party on each date on which it enters
into an FX Transaction or Option.
Part III. Notices
If sent to Party A:
Address:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone Number:
(000) 000-0000
Telex Number:
6801048 (Answerback: FXMS)
Facsimile Number:
(000) 000-0000
SWIFT Number:
XXXXXX00
Name of Individual or Department to whom Notices
are to be sent: Foreign Exchange Trading
Department
If sent to Party B:
Address:
Party B c/o
Morgan Xxxxxxx Xxxx Xxxxxx & Co.
0 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone Number:
000-000-0000
Telex Number:
Facsimile Number:
000-000-0000
SWIFT Number:
Name of Individual or Department to whom Notices
are to be sent: Managed Futures
Part IV. Payment Instructions
[X] Name of Bank and Office, Account Number and
Reference with respect to relevant Currencies:
In the case of Party A, U.S. dollar payments shall be
made to the following account:
Bank of New York, New
York
ABA#: 000000000
For: Xxxxxx Xxxxxxx & Co.,
New York
Acct. #: 8900010932
Ref: Chips UID 23-65-84
In the case of Party B, U.S. dollar payments shall be
made to the following account:
Citibank N.A.
ABA#: 021-000089
For: Xxxx Xxxxxx Xxxxxxxx
Inc.
Acct.#: 40611164
For Further Credit to
Managed Futures Fund
Margin Transfer 779-000999-
4
[X] With respect to each Party, as may be set forth
in such Standard Settlement Instructions as may be specified by such
Party in a notice given in accordance with Section 11.4.
Part V. Netting
A. Discharge of Options
Section 4.1 shall apply to Options other than Barrier
Options.
B. Netting of Premiums
Section 4.2 shall apply to Premium payments for
Options other than Barrier Options.
C. Settlement Netting Offices
Each of the following shall be a Settlement Netting
Office:
Party A: Same as Part II.
Party B: Same as Part II
Party A and Party B agree that, notwithstanding
Section 6.2 of the Agreement, obligations to make payments pursuant to
FX Transactions shall only be netted, satisfied and discharged against
obligations to make payments arising out of the same or other FX
Transactions between a pair of Settlement Netting Offices and
obligations to make payments pursuant to Options (including exercised
Options) shall only be netted, satisfied and discharged against
obligations to make payments arising out of the same or other Options
(including exercised Options) between a pair of Settlement Netting
Offices.
D. Novation Netting Offices
Each of the following shall be a Novation Netting
Office:
Party A: Same as Part II.
Party B: Same as Part II.
E. Matched Pair Novation Netting Offices
Each of the following shall be a Matched Pair
Novation Netting Office:
Not applicable.
Part VI. Automatic Exercise of Options; Cash Settlement of
FX Transactions
A. Automatic Exercise of Options
Automatic Exercise of certain In-the-money Options
pursuant to Section 5.3 shall apply to Party A as Buyer.
Automatic Exercise of certain In-the-money Options
pursuant to Section 5.3 shall apply to Party B as Buyer.
B. Cash Settlement of FX Transactions
The following provision shall apply:
The definition of FX Transaction in Section 1 shall
include foreign exchange transactions for the purchase and sale of one
Currency against another but which shall be settled by the delivery of
only one Currency based on the difference between exchange rates as
agreed by the Parties as evidenced in a Confirmation. Section 6.1 is
modified so that only one Currency shall be delivered for any such FX
Transaction in accordance with the formula agreed by the Parties.
Section 8.1(b)(i)(A) is modified so that the Close-Out Amount for any
such FX Transaction for which the cash settlement amount has been
fixed on or before the Close-Out Date pursuant to the terms of such FX
Transaction shall be equal to the Currency Obligation arising therefrom
(increased by adding interest in the manner provided in clause (A)(2) if
the Value Date precedes the Close-Out Date) and for any such FX
Transaction for which the cash settlement amount has not yet been fixed
on the Close-Out Date pursuant to the terms of such FX Transaction, the
Close-Out Amount shall be as reasonably determined by Party A in
accordance with market practice.
Part VII. Base Currency
Party A's Base Currency is U.S. Dollars.
Party B's Base Currency is U.S. Dollars.
Part VIII. Threshold Amount
For purposes of clause (x) of the definition of Event
of Default:
Party A's Threshold Amount is U.S.D.
$10,000,000.
Party B's Threshold Amount is U.S.D. $10,000,000.
Part IX. Additional Events of Default
Clause (x) of the definition of Event of Default shall be
modified by deleting the words ", or becomes capable at any time of
being declared," after the words "and remains unpaid after any
applicable grace period has elapsed, or (B) becomes".
The following provisions which are checked shall
constitute Events of Default:
[X] (a) occurrence of garnishment or provisional
garnishment against a claim against the Defaulting Party acquired by the
Non-Defaulting Party. The automatic termination provision of
Section 8.1 shall not apply to either Party that is a Defaulting Party in
respect of this Event of Default.
[X] (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 8.1 shall not apply to either Party that is
a Defaulting Party in respect of this Event of Default.
[X] (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 8.1 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 8.1
shall not apply to Party A as Defaulting Party in respect of clause (ii),
(iii) or (iv) of the definition of Event of Default.
The Automatic Termination provision of Section 8.1
shall not apply to Party B as Defaulting Party in respect of clause (ii),
(iii) or (iv) of the definition of Event of Default.
Part XI. Adequate Assurances
Adequate Assurances under Section 11.14 shall not
apply to the Agreement.
Part XII. Governing Law
In accordance with Section 12.1 of the Agreement, the
Agreement shall be governed by the laws of:
[X] the State of New York.
[ ] England and Wales.
[ ] Japan.
Part XIII. Consent to Jurisdiction
In accordance with Section 12.2 of the Agreement, each
Party irrevocably submits to the non-exclusive jurisdiction of:
[X] the courts of the State of New York and the
United States District Court located in the Borough of Manhattan in
New York City.
[ ] the courts of England.
[ ] the Tokyo District Court.
Part XIV. Agent for Service of Process
Party A appoints the following as its agent for service of
process in any Proceedings in the State of New York: Not applicable.
Party B appoints the following as its agent for service of
process in any Proceedings in the State of New York: Not applicable.
Part XV. Certain Regulatory Representations
A. The following FDICIA representation shall apply:
1. Party A represents and warrants that it qualifies as a
"financial institution" within the meaning of the Federal Deposit
Insurance Corporation Improvement Act of 1991 ("FDICIA") by virtue
of being a:
[X] broker or dealer within the meaning of FDICIA;
[ ] depository institution within the meaning of
FDICIA;
[X] 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 not (i) a
plan subject to the fiduciary responsibility part of the Employee
Retirement Income Security Act of 1974, as amended, or subject to
Section 4975 of the Internal Revenue Code of 1986, as amended; (ii) a
person acting on behalf of any such plan; or (iii) a person the assets of
whom constitute assets of any such plan.
C. The following CFTC trade option representation
shall not apply:
Each Party represents and warrants that it is a
commercial user of or a merchant handling the Currencies subject to
each Option and was offered or entered into each Option solely for
purposes related to its business as such.
D. 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. Representations and Warranties
In addition to the representations and warranties set
forth in Section 7.1 and Part XV of this Schedule, each Party hereby
represents and warrants to the other Party on the date hereof and on the
date of each FX Transaction or Option, as the case may be, that: (a) it is
a sophisticated investor able to evaluate and assume the risks associated
with transactions in currencies as contemplated by the Agreement; (b) it
is not relying upon any representations (whether written or oral) of the
other Party other than the representations expressly set forth in the
Agreement, this Schedule, any Credit Support Document or in any
Confirmation; (c) its execution and delivery of the Agreement, and its
performance of its obligations hereunder, do not and will not conflict
with any law or regulation of the jurisdiction of its organization or other
law or regulation applicable to it, and do not and will not violate,
constitute a default under, or result in the creation or imposition of any
lien or encumbrance on any of its property or assets under any agreement
or instrument to which it is a party or by which its assets are bound;
(d) no consent, authorization or approval (including exchange control
approval) or other action by, and no notice to or filing with, any person
or entity, including any governmental authority or regulatory body, other
than any already obtained, made or filed and remaining in full force and
effect, and the conditions of which have been duly complied with, is
required in connection with the performance of its obligations under the
Agreement; and (e) there are no actions, proceedings or claims pending
or, to the best of its knowledge, threatened, the adverse determination of
which might have a materially adverse effect on its ability to perform its
obligations under, or affect the validity or enforceability of, the
Agreement.
Part XVII. Agreement Superseding
A new Section 11.16 shall be added to the Agreement
which shall read as follows: "The Agreement shall supersede any other
agreement between the Parties with respect to the subject matter hereof."
Part XVIII. Barrier Options
In connection with any Barrier Options between the
Parties, Party B acknowledges that:
a) As part of its business, Party A regularly trades in the
foreign exchange spot, forward, futures and options markets for its own
account and for the accounts of other customers. Such trading may
affect spot prices in the Currency Pair.
b) Party A generally xxxxxx its Barrier Option positions
by buying or selling a quantity of the relevant currency, and may adjust
(increase or decrease) its hedge as market conditions change during the
life of the Options and it believes that it is more or less likely that a
Barrier will be breached. Such hedging and de-hedging activity may
affect spot prices and may thus affect the probability of a Barrier being
breached.
Part XIX. 1998 FX and Currency Option Definitions.
The 1998 FX and Currency Option Definitions as
published by ISDA, EMTA and the Foreign Exchange Committee (the
"Definitions") shall be applicable to each FX Transaction and Option
under the Agreement, including any FX Transaction or Option
outstanding on the date hereof, subject to the following:
A. Definitions:
1. The term "Agreement" in Section 2.2 of the
Agreement shall include the Agreement as
modified and supplemented by this Part.
2. The term "FX Transaction" and "Currency
Option Transaction" in the Definitions or in a
Confirmation shall in all cases by considered
references to an "FX Transaction" and "Option"
under the Agreement.
3. All terms in this Part shall have the meanings
given them above or in the Definitions, unless
not defined above or in the Definitions, in which
case the term shall have the meaning given in
the Agreement.
B. Scope.
1. Notwithstanding the absence of any reference to
the Definitions in a Confirmation, this Part and
the Definitions shall be applicable to any FX
Transaction or Currency Option Transaction
covered by the Agreement; provided that the
Parties may agree otherwise for any Transaction
as evidenced by a Confirmation that complies
with Section 2.3 of the Agreement.
2. In the event of any inconsistency between the
Definitions and a Confirmation, the terms of the
Confirmation shall govern for the purpose of the
relevant Transaction. In the event of any
inconsistency between the Definitions and the
Agreement, the Definitions shall prevail.
C. Confirmations.
Notwithstanding Sections 2.4 and 11.12 of the
Agreement, in the event of any inconsistency between the terms of a
Confirmation for an FX Transaction or Currency Option Transaction and
the Agreement, the terms of the Confirmation shall prevail.
D. Disruption Events.
With respect to any Disruption Event that is applicable
to an FX Transaction or Currency Option Transaction pursuant to the
Definitions or as otherwise agreed by the Parties as evidenced by a
Confirmation, Section 9 of the Agreement shall not be applicable in
respect of such FX Transaction or Currency Option Transaction, and the
Parties shall be subject to the Disruption Fallbacks (including but not
limited to No Fault Termination) specified as applicable pursuant to the
Definitions or such Confirmation.
E. Miscellaneous.
The provisions of Part VI.B of this Schedule relating to
cash settlement of FX Transactions shall apply to Non-Deliverable FX
Transactions.
Part XX. Margin and Security
(a) Party B shall at all times maintain with Xxxx Xxxxxx
Xxxxxxxx Inc. (the "Custodian") for and on behalf of Party A cash and
securities acceptable to Party A (together, the "Margin") in order to
secure the obligations of Party B under all open FX Transactions and
Options entered into under the Agreement. The amount of Margin
which Party B shall maintain with Party A shall be determined by Party
A in its reasonable judgment (which determination shall be conclusive in
the absence of manifest error), on a risk adjusted basis, taking into
account historical volatility, imputed volatility and/or such other factors
as Party A reasonably deems relevant to this determination (the
"Aggregate Margin Requirement"). On or prior to the date of the
Agreement, Party B shall have established a special pledge account with
the Custodian (the "Account") for the purpose of holding custody of the
Margin for and on behalf of Party A in accordance with the provisions of
the Custodian Account Addendum, dated the date hereof, and the
Agreement. Party B's failure to deposit Margin or to establish the
Account as required herein shall be an Event of Default for all purposes
under the Agreement (it being understood that there shall be no grace
period with respect to obligations of Party B pursuant to this Part XX).
(b) Whenever such Aggregate Margin Requirement shall
exceed the market value of Margin on deposit with the Custodian in the
Account as determined by Party A at such time in its reasonable
judgment and which determination shall be conclusive in the absence of
manifest error (the "Margin Balance", and the difference between such
Aggregate Margin Requirement and the Margin Balance being the
"Shortfall"), then Party B shall deposit immediately upon Party A's
request, additional Margin in an amount at least equal to such Shortfall.
(c) In furtherance of the foregoing, as security for the
prompt and complete payment when due and the performance by Party B
of all of its obligations to Party A under the Agreement, Party B hereby
grants to Party A a continuing first priority security interest in and to all
of Party B's right, title and interest in and to the Margin, the Account, all
financial assets, investment property and other property and assets which
are deposited from time to time in, or credited from time to time to, the
Account, all security entitlements in respect thereof, all income and
profits thereon, all interest, dividends and other payments and
distributions with respect thereto, and all proceeds of any of the
foregoing (the "Margin Collateral"). As additional security for the
prompt and complete payment when due and the performance by Party B
of all of its obligations to Party A under the Agreement, Party B hereby
grants to Party A and its affiliates a first priority security interest in and
to any property of Party B at any time held by or for the benefit of Party
A or any affiliate of Party A for any purpose, including, without
limitation, any property of Party B held in any account with Party A, any
affiliate of Party A or with the Custodian, any financial assets,
investment property and other property and assets which are deposited
from time to time in, or credited from time to time to, any such account,
all security entitlements in respect thereof, all income and profits
thereon, all interest, dividends and other payments and distributions with
respect thereto, and all proceeds of any of the foregoing (the
"Collateral"), to secure all obligations of Party B to Party A. If
Collateral was delivered in connection with a particular agreement
between Party B and Party A or any of its affiliates, then such Collateral
shall secure first the obligations of Party B with respect to such
agreement and second all other obligations of Party B to Party A or any
of its affiliates (in such order as Party A shall determine in its sole
discretion). Party A, its affiliates and the Custodian and Party B hereby
each acknowledge and agree that (a) each of Party A and its affiliates
which holds Collateral holds such Collateral for itself and also as agent
and bailee for all other of Party A and its affiliates which are secured
parties hereunder or under any agreement between Party B and Party A
or any of its affiliates and (b) the Custodian which holds Collateral for
and on behalf of Party A holds such Collateral as agent and bailee for
Party A and its affiliates which are secured parties hereunder and under
any agreement between Party B and Party A or any of its affiliates. If an
Event of Default hereunder shall occur, then each of Party A and its
affiliates shall be entitled to retain or sell all Collateral as security for
Party B's obligations, even if otherwise required pursuant to the terms of
an agreement or otherwise to deliver any Collateral to Party B or Party
B's order. The parties agree that Party A and its affiliates shall have the
rights and remedies of a secured creditor under the New York Uniform
Commercial Code (the "UCC") and under any other applicable law or
agreement to exercise any right with respect to the Margin Collateral and
the Collateral subject to the security interest granted under the
Agreement. Notwithstanding Section 9-207 of the UCC,
each of Party A or any of its affiliates shall have free and unrestricted
use of any Margin Collateral and/or Collateral which it holds hereunder
or with the Custodian, including, without limitation, the right, from time
to time and without notice to Party B, to sell, pledge, repledge,
hypothecate, rehypothecate, assign, invest, use, commingle or otherwise
dispose of, or otherwise use in its business any Margin Collateral and/or
Collateral separately or in common with other securities, commodities or
other property, for the sum due to any of Party A or any of its affiliates
or for a greater sum on terms which may otherwise impair the right of
Party B to redeem such Margin Collateral and/or Collateral, and free
from any other right of claim of any nature whatsoever of Party B, and
without retaining possession and control for delivery a like amount of
similar securities, commodities, or other property.
(d) Party B represents and warrants that it owns the
Margin Collateral and the Collateral to be pledged and assigned to each
of Party A and its affiliates hereunder and under any other agreement
between Party B and Party A or any of its affiliates, free and clear of any
liens, equities, claims (including, without limitation, participation
interests) and transfer restrictions. Party B covenants and agrees that it
will not sell, assign, transfer, exchange or otherwise dispose of, or grant
any option with respect to, any of the Margin Collateral or the
Collateral, nor will it create, incur or permit to exist any lien on or with
respect to any of the Margin Collateral or the Collateral, any interest
therein, or any proceeds thereof, except for the security interests created
under this Agreement or otherwise under any agreement between Party
B and Party A or any of its affiliates. Any purported sale, assignment,
transfer, exchange, disposition, grant or lien of the Margin Collateral or
the Collateral by Party B that is not permitted under the foregoing
sentence shall be null and void and shall constitute an Event of Default
hereunder and under any agreement between Party B and Party A or any
of its affiliates immediately prior to the taking of any such action, if
Party A so deems (it being understood that there shall be no grace period
with respect to obligations of Party B pursuant to this Part XX).
(e) Party B shall, at its sole expense and as Party A in its
sole discretion may deem necessary or advisable from time to time,
undertake all such action as is necessary, (i) to create, preserve, protect
and perfect the security interests granted under the Agreement, (ii) to
enable Party A to exercise and enforce its rights with respect to such
security interests, and (iii) execute and deliver all documents and
instruments in such manner and form as Party A may require, including
without limitation UCC financing statements and continuation
statements. Party B hereby appoints Party A as its true and lawful
attorney-in-fact, including without limitation, to sign and file such
documents and instruments on Party B's behalf and without Party B's
signature; such appointment, being coupled with an interest, shall be
irrevocable. Without limitation on the foregoing, Party B agrees to take
such action as Party A in its sole discretion may deem necessary or
advisable in the event of any change in applicable law, including,
without limitation, Article 8 of the UCC and the Regulations of the
Department of the Treasury governing transfers of interests in U.S.
marketable treasury securities in book-entry form.
(f) The parties hereto agree that each of the Account and
any account in which any Collateral is held or to which any Collateral is
credited (a "Collateral Account") is a "securities account" within the
meaning of Article 8 of the UCC and that all property and assets
(including, without limitation, cash) held in or credited to (i) the
Account or (ii) any Collateral Account shall be treated as a "financial
asset" for purposes of Article 8 of the UCC.
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxx Xxxx
Name: Xxx Xxxx
Title: Managing Director
XXXX XXXXXX GLOBAL PERSPECTIVE PORTFOLIO L.P.
By: Demeter Management Corporation
Name: /s/ Xxxxxx X. Xxxxxx
Title: Xxxxxx X. Xxxxxx
President & Chairman
CUSTODIAN ACCOUNT ADDENDUM
This Addendum supplements, forms part of, and is subject in all
respects to, the Foreign Exchange and Options Master Agreement
(FEOMA) including the Schedule thereto (the "Schedule") dated as
of April 30, 2000 by and between Xxxxxx Xxxxxxx & Co.
Incorporated and Demeter Management Corporation on behalf of
Xxxx Xxxxxx Global Perspective Portfolio L.P. (collectively, the
"Agreement"), and is a part of the Schedule with respect to each
party; provided, however, as used herein, "Pledgor" means Party B
and "Secured Party" means Party A (as defined in the Agreement).
Other capitalized terms used herein, unless otherwise defined,
have the meanings specified in the Agreement. With respect to the
rights or obligations of the Secured Party or the Pledgor, in the
event of any inconsistencies between this Addendum and the
Agreement, the Agreement will prevail.
Having appointed Xxxx Xxxxxx Xxxxxxxx Inc. (the "Custodian") to
hold Margin for and on behalf of the Secured Party, the Secured
Party, the Pledgor and the Custodian (solely to the extent of the
duties it has agreed to undertake and perform hereunder) agree as
follows:
1. In all respects, the rights of the Secured Party under the
Schedule with respect to Margin shall not be affected by the
appointment of a Custodian hereunder. The provisions of this
Addendum in no way diminish or otherwise affect the rights of the
Secured Party under the Agreement.
2. The Secured Party, by written notice to the Custodian, may
exercise all powers, and exercise any and all rights and remedies
permitted under the Schedule as though the Secured Party was
taking such action directly, and the Custodian will comply with,
and be entitled to rely on, all such instructions (including, without
limitation, entitlement orders) as if such instructions were provided
by the parties jointly.
3. As used herein, the following terms have the following
meaning:
"Advice from the Secured Party" or "Advice" means a written
notice sent to the Pledgor and/or the Custodian or transmitted by a
facsimile sending device by any of those individuals designated by
the Secured Party, except that for any of the following purposes it
shall mean notice by telephone to a person designated by the
Pledgor in writing as authorized to receive such advice or, in the
event that no such person is available, to any officer of the Pledgor
and confirmed promptly in writing thereafter: (i) for initial or
additional Margin; (ii) that the Secured Party has issued a Notice of
Exercise with respect to an Option ; or (iii) that the Pledgor has
failed to give notice of intent to make payment of amounts or
deliveries as required under Paragraph 5 of this Addendum. With
respect to any covering purchase transaction, the Advice from the
Secured Party shall mean a Confirmation in use by the Secured
Party and sent or transmitted to the Pledgor and/or the Custodian.
When used herein the term "Advise" means the act of sending an
Advice from the Secured Party.
4. The Custodian shall open an account on its books entitled
"Special Custody Account for Xxxxxx Xxxxxxx & Co. Incorporated
as Pledgee of Xxxxxx Xxxxxxx Xxxx Xxxxxx Strategic Alternatives,
L.L.C (referred to herein as the "Special Custody Account").
The parties hereto agree that all property and assets held in or
credited to the Special Custody Account will be treated as financial
assets under Article 8 of the Uniform Commercial Code as in
effect in the State of New York (the "UCC"). The parties hereto
further agree that the securities intermediary's jurisdiction, within
the meaning of Section 8-110(e) of the UCC, in respect of the
Special Custody Account and the Margin is the State of New York
and agree that none of them has or will enter into any agreement to
the contrary.
Anything in this Addendum notwithstanding, the Custodian hereby
agrees to comply with entitlement orders and other instructions of
the Secured Party with respect to the Special Custody Account and
any Margin without further consent of the Pledgor. The Pledgor
hereby consents to such agreement.
The Custodian represents and warrants that it has not, and agrees
that it will not, agree to comply with entitlement orders concerning
the Special Custody Account or any Margin that are originated by
any person other than the Secured Party.
The Pledgor agrees to inform the Custodian in writing that cash
and securities specified by the Pledgor as qualifying as Margin and
equal in value to the Aggregate Margin Requirement are to be
identified on the Custodian's books and records as pledged to the
Secured Party. The Custodian will hold the Margin in, and credit
the Margin to, the Special Custody Account, separate and apart
from any other property of the Pledgor that may be held by the
Custodian, subject to the interest therein of the Secured Party as the
Pledgee thereof in accordance with the terms of the Agreement.
The Custodian continuously represents that Margin will not be
subject to any other lien, charge, security interest or other right or
claim of the Custodian or any person claiming through the
Custodian. The Custodian will confirm in writing to the Secured
Party and the Pledgor all pledges, releases, substitutions or
distributions of Margin permitted under the Agreement, and will
inform the Secured Party upon request of the kind and amount of
Margin pledged to the Secured Party.
5. In the event that (i) the Secured Party advises the Pledgor in
an Advice from the Secured Party that the Secured Party has
exercised an Option sold by the Pledgor and the Pledgor does not
promptly notify the Secured Party by telephone of the Pledgor's
intention to comply with the Notice of Exercise by making
payment or delivery, as the case may be, as required under the
terms of such Option plus payment of applicable commissions or
other charges; or (ii) the Pledgor, having received such Notice of
Exercise, fails to make such payment or delivery, or cause such
payment or delivery to be made, then the Secured Party will
immediately notify the Pledgor in an Advice from the Secured
Party of such failure to give telephone notice or failure to make
payment or delivery, as applicable, and may, after transmittal of an
Advice from the Secured Party of its intention to do so and only if
the Pledgor does not promptly make payment or delivery to the
Secured Party, direct the Custodian to take any action necessary to
fully satisfy Pledgor's obligations to the Secured Party, including
any of the Secured Party's rights and remedies under Part XX of
the Schedule.
6. With respect to any losses or liabilities, the Custodian shall
be protected in acting pursuant to any instructions from the Pledgor
or Advices from the Secured Party believed by the Custodian in
good faith to be genuine and authorized. The Pledgor agrees to
indemnify the Custodian for, and hold it harmless against, any loss,
liability or expense incurred by the Custodian, without negligence
or bad faith on the part of the Custodian, arising out of this
Addendum.
7. The Secured Party shall not be liable for any losses, costs,
damages, liabilities or expenses suffered or incurred by the Pledgor
as a result of any actions taken under this Addendum, or any other
action taken or not taken by the Secured Party hereunder for the
Pledgor's account at the Pledgor's direction or otherwise, except to
the extent that such loss, cost, damage, liability or expense is the
result of the Secured Party's own recklessness, willful misconduct
or bad faith.
8. The Pledgor continuously represents and warrants to the
Secured Party that securities included at any time in the Margin
shall be in good deliverable form (or Custodian shall have the
unrestricted power to put such securities into good deliverable
form) in accordance with the requirements of such exchanges as
may be the primary market or markets for such securities. Each of
the Pledgor, the Secured Party and the Custodian continuously
represents and warrants that:
(a) it has duly executed and delivered this Addendum,
and has all requisite power, authority and approvals
to enter into and perform its obligations hereunder;
and
(b) this Addendum is its valid and legally binding
obligation, enforceable against it in accordance with
its terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally and to general equitable principles.
The Secured Party and the Pledgor hereby acknowledge that the
Custodian holds securities and cash as custodian for its customers
through sub-custodians, depositaries and deposit-taking banks
which maintain omnibus accounts on behalf of customers of the
Custodian. Securities held in the Special Custody Account may be
held at the Depository Trust Company or other book-entry
depository systems in the account of the Custodian, save that
Margin denominated in currencies other than US Dollars may be
held by a sub-custodian for the Custodian other than in book-entry
form. U.S. Treasury securities shall be held in a Treasury/Reserve
Automated Debt Entry System ("TRADES") Participant's
securities account of the Custodian or of the Custodian's sub-
custodian for the account of the Custodian at the Federal Reserve
Bank.
9. A monthly statement will be provided by the Custodian to
the Secured Party and the Pledgor listing all Margin held in the
Special Custody Account. The Custodian will also advise the
Secured Party upon request, at any time, of the kind and amount of
Margin pledged to the Secured Party. It is agreed that,
notwithstanding any language to the contrary in Custodian's form
of confirmation, the Custodian holds the Margin as agent of the
Secured Party as pledgee hereunder, not as escrow agent. The
Custodian makes no representations as to the existence, perfection
or enforceability of any security interest, charge, lien or other rights
of the Pledgor in or to the Margin.
10. The Pledgor shall pay the Custodian as compensation for its
services pursuant to this Addendum such compensation as may
from time to time be agreed upon in writing between the Pledgor
and the Custodian.
11. No amendment to this Addendum shall be effective unless
in writing and signed by an authorized officer of each of the
Secured Party, the Pledgor, and the Custodian.
12. This Addendum may be executed in one or more
counterparts, all of which together shall constitute but one and the
same instrument.
13. Any of the parties hereto may terminate the custodial
relationship by notice, given at least 10 business days prior to the
date of such intended termination, in writing to the other parties
hereto; provided, however, that should the Custodian or the
Pledgor seek to terminate, then the Pledgor must designate a
replacement Custodian, which the Secured Party has, in the
exercise of its sole discretion, approved. Custodian agrees to
remain as the Custodian until such time as a replacement
Custodian has been approved and such replacement Custodian has
agreed to the terms of its service hereunder and under the
Agreement.
Written communications hereunder shall be sent in the manner
specified in the Agreement addressed:
(a) If to Custodian, to:
Xxxx Xxxxxx Xxxxxxxx Inc.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx -
Managed Futures Department
Phone: 000-000-0000
Fax: 000-000-0000
(b) If to the Pledgor, to:
Demeter Management Corporation
Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co.
2 World Trade Center
62nd Floor
New York, New York 10048
Attention: Managed Futures
Department
Phone: 000-000-0000
Fax: 000-000-0000
(c) If to the Secured Party, to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Foreign Exchange Trading
Desk
Phone: (000) 000-0000
Fax: (000) 000-0000
14. This Addendum will be governed by the laws of the State
of New York applicable to transactions entered into and to be
performed wholly within the State of New York.
DEMETER
MANAGEMENT
CORPORATION
on behalf of Xxxx
Xxxxxx Global
Perspective
Portfolio L.P.
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx X.
Xxxxxx
Title: President &
Chairman
XXXXXX
XXXXXXX & CO.
INCORPORATE
D
By: /s/ Xxx Xxxx
Name: Xxx Xxxx
Title: Managing
Director
XXXX XXXXXX
XXXXXXXX
INC. (for purposes
of this
Addendum)
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx X.
Xxxxxx
Title: Senior Vice
President
35
3
641920 FEOMA for Global Perspective Portfolio, L.P. 4.30.00.doc
C:\MSDW\641920 FEOMA for Global Perspective Portfolio, L.P. 4.30.00.doc
