Exhibit 10.01b
XXXX FUTURES INC.
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
INTERNATIONAL FOREIGN EXCHANGE MASTER AGREEMENT
MASTER AGREEMENT dated as of __________________, by and between XXXX
FUTURES INC., a Delaware corporation and XXXX XXXXXX SPECTRUM L.P.
SECTION 1. DEFINITIONS
Unless otherwise required by the context, the following terms shall have
the following meanings in the Agreement:
"Agreement" has the meaning given to it in Section 2.2.
"Base Currency" means as to a Party the Currency agreed as such in
relation to it in Part VIII of the: Schedule hereto.
"Base Currency Rate" means as to a Party and any amount the cost
(expressed as a percentage rate per annum) at which that Party would be
able to fund that amount from such sources and for such periods as it in
its reasonable discretion from time to time decide, as determined in good
faith by it.
"Business Day" means (i) a day which is a Local Banking day for the
applicable Designated Office of both Parties, or (ii) solely in relation
to delivery of a Currency, a day which is a Local Banking Day in relation
to that Currency.
"Close-Out Amount" has the meaning given to it in Section 5.1.
"Close-Out Date" means a day on which, pursuant to the provisions of
Section 5.1, the Non-Defaulting Party closes out and liquidates Currency
Obligations or such a close-out and liquidation occurs automatically.
"Closing Gain" means, as to the Non-Defaulting Party, the difference
described as such in relation to a particular Value Date under the
provisions of Section 5.1.
"Closing Loss" means, as to the Non-Defaulting Party, the difference
described as such in relation to a particular Value Date under the
provisions of Section 5.1.
"Confirmation" means a writing (including telex, facsimile, or other
electronic means from which it is possible to produce a hard copy)
evidencing an FX Transaction governed by the Agreement which shall specify
(i) the Parties thereto and their Designated Offices through which they
are respectively acting, (ii) the amounts of the Currencies being bought
or sold and by which Party, (iii) the Value Date, and (iv) any other term
generally included in such a writing in accordance with the practice of
the relevant foreign exchange market.
"Credit Support Document" means, as to a Party (the "first Party") a
guaranty, hypothecation agreement, margin or security agreement or
document, or any other document containing an obligation of a third party
("Credit Support Provider") or of the first Party in favor of the other
Party supporting any obligations of the first Party hereunder.
"Credit Support Provider" has the meaning given to it in the definition of
Credit Support Document.
"Currency" means money denominated in the lawful currency of any country
or the Ecu.
"Currency Obligation" means any obligation of a Party to deliver a
Currency pursuant to an FX Transaction governed by the Agreement, or
pursuant to the application of Sections 3.3(a) or 3.3(b).
"Custodian" has the meaning given to it in the definition of Event of
Default.
"Defaulting Party" has the meaning given to it in the definition of Event
of Default.
"Designated Office(s)" means, as to a Party, the office(s) specified in
Part II of the Schedule hereto, as such Schedule may be modified from time
to time by agreement of the Parties.
"Effective Date" means the date of this Master agreement.
"Event of Default" means the occurrence of any of the following with
respect to a Party (the "Defaulting Party", the other Party being the
"Non-Defaulting Party"):
(i) the Defaulting Party shall default in any payment under the
Agreement to the Non-Defaulting Party with respect to any sum when
due under any Currency Obligation or pursuant to the Agreement and
such failure shall continue for two (2) Business Days after written
notice of non-payment given by the Non-Defaulting Party to the
Defaulting Party;
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(ii) the Defaulting Party shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other similar
relief with respect to itself or to its debts under any bankruptcy,
insolvency or similar law, or seeking the appointment of a trustee,
receiver, liquidator, conservator, administrator, custodian or other
similar official (each, a "Custodian") of it or any substantial part
of its assets; or shall take any corporate action to authorize any
of the foregoing;
(iii) an involuntary case or other proceeding shall be commenced against
the Defaulting Party seeking liquidation, reorganization or other
similar relief with respect to it or its debts under any bankruptcy,
insolvency or similar law or seeking the appointment of a Custodian
of it or any substantial part of its assets, and such involuntary
case or other proceeding is not dismissed within five (5) days of
its institution or presentation;
(iv) the Defaulting Party is bankrupt or insolvent, as defined under any
bankruptcy or insolvency law applicable to such party;
(v) the Defaulting Party shall otherwise be unable to pay its debts as
they become due;
(vi) the Defaulting Party or any Custodian acting on behalf of the
Defaulting Party shall disaffirm, disclaim or repudiate any Currency
Obligation;
(vii) (a) any representation or warranty made or deemed made by the
Defaulting Party pursuant to the Agreement or pursuant to any Credit
Support Documents shall prove to have been false or misleading in
any material respect as at the time it was made or given and one (1)
Business Day has elapsed after the Non-Defaulting Party has given
the Defaulting Party written notice thereof, or (b) the Defaulting
Party fails to perform or comply with any obligation assumed by it
under the Agreement (other than an obligation to make payment of the
kind referred to in clause (i) of this definition of Event of
Default), and such failure is continuing thirty (30) days after the
Non-Defaulting Party has given the Defaulting Party written notice
thereof;
(viii) the Defaulting Party consolidates or amalgamates with or merges
into or transfers all or substantially all its assets to another
entity and (a) the creditworthiness of the resulting, surviving or
transferee entity is materially weaker than that of the Defaulting
Party prior to such action, or (b) at the time of such
consolidation, amalgamation, merger or transfer the resulting,
surviving or transferee entity fails to assume all the obligations
of the Defaulting Party under the Agreement by operation of law or
pursuant to an agreement satisfactory to the Non-Defaulting Party;
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(ix) by reason of any default, or event of default or other similar
condition or event, any Specified Indebtedness (being Specified
Indebtedness of an amount which, when expressed in the Currency of
the Threshold Amount, is in aggregate equal to or in excess of the
Threshold amount) of the Defaulting Party or any Credit Support
Provider in relation to it; (a) is not paid on the due date therefor
and remains unpaid after any applicable grace period has elapsed, or
(b) becomes, or becomes capable at any time of being declared, due
and payable under agreements or instruments evidencing such
Specified Indebtedness before it would otherwise have been due and
payable.
(x) the Defaulting Party is in breach of or default under any Specified
Transaction and any applicable grace period has elapsed, and there
occurs any liquidation or early termination of, or acceleration of
obligations under that Specified Transaction or the Defaulting Party
(or any Custodian on its behalf) disaffirms, disclaims or repudiates
the whole or any part of a Specified Transaction; or
(xi) (a) any Credit Support Provider in relation to the Defaulting Party
or the Defaulting Party itself fails to comply with or perform any
agreement or obligation to be complied with or performed by it in
accordance with the applicable Credit Support Document and such
failure is continuing after any applicable grace period has elapsed;
(b) any Credit Support Document relating to the Defaulting Party
expires or ceases to be in full force and effect prior to the
satisfaction of all obligations of the Defaulting Party under the
Agreement, unless otherwise agreed in writing by the Non-Defaulting
Party; (c) the Defaulting Party or its Credit Support Provider (or,
in either case, any Custodian acting on its behalf) disaffirms,
disclaims or repudiates, in whole or in part, or challenges the
validity of, the Credit Support Document; (d) any representation or
warranty made or deemed made by any Credit Support Provider pursuant
to any Credit Support Document shall prove to have been false or
misleading in any material respect as at the time it was made or
given or deemed made or given and one (1) Business Day has elapsed
after the Non-Defaulting Party has given the Defaulting Party
written notice thereof; or (e) any event set out in (ii) to (vi) or
(viii) to (x) above occurs in respect of the Credit Support
Provider.
"FX Transaction" means any transaction between the Parties for the
purchase by one Party of an agreed amount in one Currency against the sale
by it to the other of an agreed amount in another Currency both such
amounts being deliverable on the same Value Date, and in respect of which
transaction the Parties have agreed (whether orally, electronically or in
writing): the Currencies involved, the amounts of such Currencies to be
purchased and sold, which Party will purchase which Currency and the Value
Date.
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"Local Banking Day" means (i) for any Currency a day on which commercial
banks effect deliveries of that Currency in accordance with the market
practice of the relevant foreign exchange market, and (ii) for any Party,
a day in the location of the applicable Designated Office of such Party on
which commercial banks in that location are not authorized or required by
law to close.
"Master Agreement" means the terms and conditions set forth in this master
agreement.
"Matched Pair Novation Netting Office(s)" means in respect of a Party the
Designated Office(s) specified in Part V of the Schedule, as such Schedule
may be modified from time to time by agreement of the Parties.
"Non-Defaulting Party" has the meaning given to it in the definition of
Event of Default.
"Novation Netting Office(s)" means in respect of a Party the Designated
Office(s) specified in Part IV of the Schedule, as such Schedule may be
modified from time to time by agreement of the Parties.
"Parties" means the parties to the Agreement and shall include their
successors and permitted assigns (but without prejudice to the application
of Clause (viii) of the definition Event of Default); and the term "Party"
shall mean whichever of the Parties is appropriate in the context in which
such expression may be used.
"Proceedings" means any suit, action or other proceedings relating to the
Agreement.
"Settlement Netting Office(s)" means, in respect of a Party, the
Designated Office(s) specified in Part III of the Schedule, as such
Schedule may be modified from time to time by agreement of the Parties.
"Specified Indebtedness" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) in respect
of borrowed money, other than in respect of deposits received.
"Specified Transaction" means any transaction (including an agreement with
respect thereto) between one Party to the Agreement (or any Credit Support
Provider of such Party) and the other Party to the Agreement (or any
Credit Support Provider of such Party) which is a rate swap transaction,
basis swap, forward rate transaction, commodity swap, commodity option,
equity or equity linked swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency
rate swap transaction,
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currency option or any other similar transaction (including any option
with respect to any of these transactions) or any combination of any of
the foregoing transactions.
"Split Settlement" has the meaning given to it in the definition of Value
Date.
"Threshold Amount" means the amount specified as such for each Party in
Part IX of the Schedule.
"Value Date" means, with respect to any FX Transaction, the Business Day
(or where market practice in the relevant foreign exchange market in
relation to the two Currencies involved provides for delivery of one
Currency on one date which is a Local Banking Day in relation to that
Currency but not to the other Currency and for delivery of the other
Currency on the next Local Banking Day in relation to that other Currency
("Split Settlement") the two Local Banking Days in accordance with that
market practice) agreed by the Parties for delivery of the Currencies to
be purchased and sole pursuant to such FX Transaction, and, with respect
to any Currency Obligation, the Business Day (or, in the case of Split
Settlement, Local Banking Day) upon which the obligation to deliver
Currency pursuant to such Currency Obligation is to be performed.
SECTION 2. FX TRANSACTIONS
2.1 Scope of the Agreement. (a) Unless otherwise agreed in writing by the
Parties, each FX Transaction entered into between two Designated Offices
of the Parties on or after the Effective Date shall be governed by the
Agreement. (b) All FX Transaction between any two Designated Offices of
the Parties outstanding on the Effective Date which are identified in Part
I of the Schedule shall be FX Transactions governed by the Agreement and
every obligation of the Parties thereunder to deliver a Currency shall be
a Currency Obligation under the Agreement.
2.2 Single Agreement. This Master Agreement, the particular terms agreed
between the Parties in relation to each and every FX Transaction governed
by this Master Agreement (and, insofar as such terms are recorded in a
Confirmation, each such Confirmation), the Schedule to this Master
Agreement and all amendments to any of such items shall together form the
agreement between the Parties (the "Agreement") and shall together
constitute a single agreement between the Parties. The Parties acknowledge
that all FX Transactions governed by the Agreement are entered into in
reliance upon the fact that all items constitute a single agreement
between the Parties.
2.3 Confirmations. FX Transactions governed by the Agreement shall be
promptly confirmed by the Parties by Confirmations exchanged by mail,
telex, facsimile or other electronic means. The failure by a Party to
issue a
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Confirmation shall not prejudice or invalidate the terms of any FX
Transaction governed by the Agreement.
SECTION 3. SETTLEMENT AND NETTING
3.1 Settlement. Subject to Section 3.2, each Party shall deliver to the
other Party the amount of the Currency to be delivered by it under each
Currency Obligation on the Value Date for such Currency Obligation.
3.2 Net Settlement/Payment Netting. If on any Value Date more than one
delivery of a particular Currency is to be made between a pair of
Settlement Netting Offices, then each Party shall aggregate the amounts of
such Currency deliverable by it and only the difference between these
aggregate amounts shall be delivered by the Party owing the larger
aggregate amount to the other Party, and, if the aggregate amounts are
equal, no delivery of the Currency shall be made.
3.3 Novation Netting.
(a) By Currency. If the Parties enter into an FX Transaction governed by
the Agreement through a pair of Novation Netting Offices giving rise
to a Currency Obligation for the same Value Date and in the same
Currency as a then existing Currency Obligation between the same
pair of Novation Netting Offices, then immediately upon entering
into such FX Transaction, each such Currency Obligation shall
automatically and without further action be individually canceled
and simultaneously replaced by a new Currency Obligation for such
Value Date determined as follows: the amounts of such Currency that
would otherwise have been deliverable by each Party on such Value
Date shall be aggregated and the Party with the larger aggregate
amount shall have a new Currency Obligation to deliver to the other
Party the amount of such Currency by which its aggregate amount
exceeds the other Party's aggregate amount, provided that if the
aggregate amounts are equal, no new Currency Obligation shall arise.
This Clause (a) shall not affect any other Currency Obligation of a
Party to deliver any different Currency on the same Value Date.
(b) By Matched Pair. If the Parties enter into an FX Transaction
governed by the Agreement between a pair of Matched Pair Novation
Netting Offices then the provisions of Section 3.3(a) shall apply
only in respect of Currency Obligations arising by virtue of FX
Transactions governed by the Agreement entered into between such
pair of Matched Pair Novation Netting Offices and involving the same
pair of Currencies and the same Value Date.
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3.4 General.
(a) Inapplicability of Sections 3.2 and 3.3. The provisions of Sections
3.2 and 3.3 shall not apply if a Close-Out Date has occurred or an
involuntary case or other proceeding of the kind described in Clause
(iii) of the definition of Event of Default has occurred without
being dismissed in relation to either Party.
(b) Failure to Record. The provisions of Section 3.3 shall apply
notwithstanding that either Party may fail to record the new
Currency Obligations in its books.
(c) Cutoff Date and Time. The provisions of Section 3.3 are subject to
any cut-off date and cut-off time agreed between the applicable
Novation Netting Offices and Matched Pair Novation Netting Offices
of the Parties.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Representations and Warranties. Each Party represents and warrants to
the other Party as of the date of the Agreement and as of the date of each
FX Transaction governed by the Agreement that: (i) it has authority to
enter into the Agreement and such FX Transaction; (ii) the persons
executing the Agreement and entering into such FX Transaction have been
duly authorized to do so; (iii) the Agreement and the Currency Obligations
created under the Agreement are binding upon it and enforceable against it
in accordance with their terms (subject to applicable principals of
equity) and do not and will not violate the terms of any agreements to
which such Party is bound; (iv) no Event of Default has occurred and is
continuing with respect to it; and (v) it acts as principal in entering
into each and every FX Transaction governed by the Agreement.
4.2 Covenants. Each Party covenants to the other Party that: (i) it will
at all times obtain and comply with the terms of and do all that is
necessary to maintain in full force and effect all authorization,
approvals, licenses and consents required to enable it to lawfully perform
its obligations under the Agreement; and (ii) it will promptly notify the
other Party of the occurrence of any Event of Default with respect to
itself or any Credit Support Provider in relation to it.
SECTION 5. CLOSE-OUT AND LIQUIDATION
5.1 Circumstances of Close-Out and Liquidation. If an Event of Default has
occurred and is continuing then the Non-Defaulting Party shall have the
right to close-out and liquidate in the manner described below all, but
not less than all, outstanding Currency Obligations (except to the extent
that in the good
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faith opinion of the Non-Defaulting Party certain of such Currency
Obligations may not be closed-out and liquidated under applicable law), by
notice to the Defaulting Party. If "Automatic Termination" is specified as
applying to a Party in Part VI of the Schedule, then, in the case of an
Event of Default specified in Clauses (ii) or (iii) of the definition
thereof with respect to such Party, such close-out and liquidation shall
be automatic as to all outstanding Currency Obligations. Where such
close-out and liquidation is to be effected, it shall be effected by:
(i) closing out each outstanding Currency Obligation (including any
Currency Obligation which has not been performed and in respect of
which the Value Date is on or precedes the Close-Out Date) so that
each such Currency Obligation is canceled and the Non-Defaulting
Party shall calculate in good faith with respect to each such
canceled Currency Obligation, the Closing Gain or, as appropriate,
the Closing Loss, as follows:
(x) for each Currency Obligation in a Currency other than the
Non-Defaulting Party's Base Currency calculate a "Close-Out Amount"
by converting:
(A) in the case of a Currency Obligation whose Value Date is the
same as or is later than the Close-Out Date, the amount of
such Currency Obligation; or
(B) in the case of a Currency Obligation whose Value Date precedes
the Close-Out Date, the amount of such Currency Obligation
increased, to the extent permitted by applicable law, by
adding interest thereto from the Value Date to the Close-Out
Date at the rate representing the cost (expressed as a
percentage rate per annum) at which the Non-Defaulting Party
would have been able, on such Value Date, to fund the amount
of such Currency Obligation for the period from the Value Date
to the Close-Out Date
into such Base Currency at the rate of exchange at which the
Non-Defaulting Party can buy or sell, as appropriate, such Base
Currency with or against the Currency of such Currency Obligation
for delivery on the Value Date of that Currency Obligation, or if
such Value Date precedes the Close-Out Date, for delivery on the
Close-Out Date; and
(y) determine in relation to each Value Date: (A) the sum of all
Close-Out Amounts relating to Currency Obligations under which, and
of all Currency Obligations in the Non-Defaulting Party's Base
Currency under which, the Non-Defaulting Party would otherwise have
been obliged to deliver the relevant amount to the Defaulting Party
on that Value Date, adding (to the extent permitted by applicable
law), in the
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case of a Currency Obligation in the Non-Defaulting Party's Base
Currency whose Value Date precedes the Close-Out Date, interest for
the period from the Value Date to the Close-Out Date at the
Non-Defaulting Party's Base Currency Rate as at such Value Date for
such period; and (B) the sum of all Close-Out Amounts relating to
Currency Obligations under which, and of all Currency Obligations in
the Non-Defaulting Party's Base Currency under which, the
Non-Defaulting Party would otherwise have been entitled to receive
the relevant amount on that Value Date, adding (to extent permitted
by applicable law), in the case of a Currency Obligation in the
Non-Defaulting Party's Base Currency whose Value Date precedes the
Close-Out Date, interest for the period from the Value Date to the
Close-Out Date at the Non-Defaulting Party's Base Currency Rate as
at such Value Date for such period;
(z) if the sum determined under (y)(A) is greater than the sum
determined under (y)(B), the differences shall be the Closing Loss
for such Value Date; if the sum determined under (y)(A) is less than
the sum under (y)(B), the difference shall be the Closing Gain for
such Value Date;
(ii) to the extent permitted by applicable law, adjusting the Closing
Gain or Closing Loss for each Value Date falling after the Close-Out
Date to present value by discounting the Closing Gain or Closing
Loss from the Value Date to the Close-Out Date, at the
Non-Defaulting Party's Base Currency Rate, or at such other rate as
may be prescribed by applicable law;
(iii) aggregating the following amounts so that all such amounts are
netted into a single liquidated amount payable by or to the
Non-Defaulting Party: (x) the sum of the Closing Gains for all Value
Dates (discounted to present value, where appropriate, in accordance
with the provisions of Clause (ii) of this Section 5.1) which for
the purposes of this aggregation shall be a positive figure) and (y)
the sum of the Closing Losses for all Value Dates (discounted to
present value, where appropriate, in accordance with the provision
of Clause (ii) of the Section 5.1) (which for the purposes of the
aggregation shall be negative figure); and
(iv) if the resulting net amount is positive, it shall be payable by the
Defaulting Party to the Non-Defaulting Party, and if it is negative,
then the absolute value of such amount shall be payable by the
Non-Defaulting Party to the Defaulting Party.
5.2 Calculation of Interest. Any addition of interest or discounting
required under Clause (i) or (ii) or Section 5.1 shall be calculated on
the basis of the actual number of days elapsed and of a year of such
number of days as is
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customary for transactions involving the relevant Currency in the relevant
foreign exchange market.
5.3 Other FX Transactions. Where close-out and liquidation occurs in
accordance with Section 5.1, the Non-Defaulting Party shall also be
entitled to close-out and liquidate, to the extent permitted by applicable
law, any other FX Transactions entered into between the Parties which are
then outstanding in accordance with provisions of Section 5.1, as if each
obligation of a Party to deliver a Currency thereunder were a Currency
Obligation.
5.4 Payment and Late Interest. The amount payable by one Party to the
other Party pursuant to the provisions of Sections 5.1 and 5.3 shall be
paid by the close of business on the Business Day following such close-out
and liquidation (converted as required by applicable law into any other
Currency, any costs of such conversion to be borne by, and deducted from
any payment to, the Defaulting Party). To the extent permitted by
applicable law, any amount required to be paid under Sections 5.1 or 5.3
and not paid on the due date therefor, shall bear interest at the
Non-Defaulting Party's Base Currency Rate plus 1% per annum (or, if
conversion is required by applicable law into some other Currency, either
(x) the average rate at which overnight deposits in such other Currency
are offered by major banks in the London interbank market as of 11:00 a.m.
(London time) plus 1% per annum or (y) such other rate as may be
prescribed by such applicable law) for each day for which such amount
remains unpaid.
5.5 Suspension of Obligations. Without prejudice to the foregoing, so long
as a Party shall be, in default in payment or performance to the
Non-Defaulting Party under the Agreement and so long as the Non-Defaulting
Party has not exercised its rights under Section 5.1, the Non-Defaulting
Party may, at its election and without penalty, suspend its obligation to
perform under the Agreement.
5.6 Expenses. The Defaulting Party shall reimburse the Non-Defaulting
Party in respect of all out-of-pocket expenses incurred by the
Non-Defaulting Party (including fees and disbursements of counsel,
including attorneys who may be employees of the Non-Defaulting Party) in
connection with any reasonable collection or other enforcement proceedings
related to the payments required under this Section 5.
5.7 Reasonable Pre-Estimate. The Parties agree that the amounts
recoverable under this Section 5 are a reasonable preestimate of loss and
not a penalty. Such amounts are payable for the loss of bargain and the
loss of protection against future risks and, except as otherwise provided
in the Agreement, neither Party will be entitled to recover any additional
damages as a consequence of such losses.
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5.8 No Limitation of Other Rights; Set-Off. The Non-Defaulting Party's
rights under this Section 5 shall be in addition to, and not in limitation
or exclusion of, any other rights which the Non-Defaulting Party may have
(whether by agreement, operation of law or otherwise). To the extent not
prohibited by applicable law, the Non-Defaulting Party shall have a
general right of set-off with respect to all amounts owed by each Party to
the other Party, whether due and payable or not due and payable (provided
that any amount not due and payable at the time of such set-off shall, if
appropriate, be discounted to present value in a commercially reasonable
manner by the Non-Defaulting Party). The Non-Defaulting Party's rights
under this Section 5.8 are subject to Section 5.7.
SECTION 6. ILLEGALITY, IMPOSSIBILITY AND FORCE MAJEURE
If either Party is prevented from or hindered or delayed by reason of
force majeure or act of State in the delivery or receipt of any Currency
in respect of a Currency Obligation or if it becomes or, in the good faith
judgment of one of the Parties, may become unlawful or impossible for
either Party to deliver or receive any Currency which is the subject of a
Currency Obligation, then either Party may, by notice to the other Party,
require the close-out and liquidation of each affected Currency Obligation
in accordance with the provisions of Sections 5.1, 5.2 and 5.4 and, for
the purposes of enabling the calculations prescribed by Sections 5.1, 5.2
and 5.4 to be effected, the Party unaffected by such force majeure, act of
State, illegality or impossibility (or if both Parties are so affected,
whichever Party gave the relevant notice) shall effect the relevant
calculations as if it were the Non-Defaulting Party. Nothing in this
Section 6 shall be taken as indicating that the Party treated as the
Defaulting Party for the purposes of calculations required hereby has
committed any breach or default.
SECTION 7. PARTIES TO RELY ON THEIR OWN EXPERTISE
Each Party shall enter into each FX Transaction governed by the Agreement
in reliance only upon its own judgment. Neither Party holds itself out as
advising, or any of its employees or agents as having the authority to
advise, the other Party as to whether or not it should enter into any such
FX Transaction or as to any subsequent actions relating thereto or on any
other commercial matters concerned with any FX Transaction governed by the
Agreement, and neither Party shall have any responsibility or liability
whatsoever in respect of any advice of this nature given, or views
expressed, by it or any of such persons to the other Party, whether or not
such advice is given or such views are expressed at the request of the
other Party.
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SECTION 8. MISCELLANEOUS
8.1 Currency Indemnity. The receipt or recovery by either Party (the
"first Party") of any amount in respect of an obligation of the other
Party (the "second Party") in a Currency other than that in which such
amount was due, whether pursuant to a judgment of any court or pursuant to
Section 5 or 6, shall discharge such obligation only to the extent that on
the first day on which the first Party is open for business immediately
following such receipt, the first Party shall be able, in accordance with
normal banking practice, to purchase the Currency in which such amount was
due with the Currency received. If the amount so purchasable shall be less
than the original amount of the Currency in which such amount was due, the
second party shall, as a separate obligation and notwithstanding any
judgment of any court, indemnify the first Party against any loss
sustained by it. The second Party shall in any event indemnify the first
Party against any costs incurred by it in making any such purchase of
Currency.
8.2 Assignments. Neither Party may assign, transfer or charge, or purport
to assign, transfer or charge, its rights or its obligations under the
Agreement or any interest therein without the prior written consent of the
other Party, and any purported assignment, transfer or charge in violation
of this Section 8.2 shall be void.
8.3 Telephonic Recording. The Parties agree that each may electronically
record all telephonic conversations between them and that any such tape
recordings may be submitted in evidence in any Proceedings relating to the
Agreement. In the event of any dispute between the Parties as to the terms
of an FX Transaction governed by the Agreement or the Currency Obligations
thereby created, the Parties may use electronic recordings between the
persons who entered into such FX Transaction as the preferred evidence of
the terms of such FX Transaction, notwithstanding the existence of any
writing to the contrary.
8.4 No Obligation. Neither Party to this Agreement shall be required to
enter into any FX Transaction with the other.
8.5 Notices. Unless otherwise agreed, all notices, instructions and other
communications to be given to a Party under the Agreement shall be given
to the address, telex (if confirmed by the appropriate answerback),
facsimile (confirmed if requested) or telephone number and to the
individual or department specified by such Party in Part VII of the
Schedule attached hereto. Unless otherwise specified, any notice,
instruction or other communication given in accordance with this Section
8.5 shall be effective upon receipt.
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8.6 Termination. Each of the Parties hereto may terminate this Agreement
at any time by seven days' prior written notice to the other Party
delivered as prescribed above, and termination shall be effective at the
end of such seventh day; provided, however, that any such termination
shall not affect any outstanding Currency Obligations, and the provisions
of the Agreement shall continue to apply until all the obligations of each
Party to the other under the Agreement have been fully performed.
8.7 Severability. In the event any one or more of the provisions contained
in the Agreement should be held invalid, illegal or unenforceable in any
respect under the law of any jurisdiction, the validity, legality and
enforceability of the remaining provisions under the law of such
jurisdiction, and the validity, legality and enforceability of such and
any other provisions under the law of any other jurisdiction, shall not in
any way be affected or impaired thereby.
8.8 Waiver. No indulgence or concession granted by a Party and no omission
or delay on the part of a Party in exercising any right, power or
privilege under the Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
8.9 Master Agreement. Where one of the Parties to the Agreement is
domiciled in the United States, the Parties intend that the Agreement
shall be a master agreement as defined in 11 U.S. C. Section 101(55)(C)
and 12 U.S.C Section 1821(e)(8)(D)(vii).
8.10 Time of Essence. Time shall be of the essence in the Agreement.
8.11 Headings. Headings in the Agreement are for ease of reference only.
8.12 Wire Transfers. Every payment or delivery of Currency to be made by a
Party under the Agreement shall be made by wire transfer, or its
equivalent, of same day (or immediately available) and freely transferable
funds to the bank account designated by the other Party for such purpose.
8.13 Adequate Assurances. If the Parties have so agreed in Part X of the
Schedule, the failure by a Party ("first Party") to give adequate
assurances of its ability to perform any of its obligations under the
Agreement within two (2) Business Days of a written request to do so when
the other Party ("second Party") has reasonable grounds for insecurity
shall be an Event of Default under the Agreement, in which case during the
pendency of a reasonable request by the second party to the first Party
for adequate assurances of the first Party's ability to perform its
obligations under the Agreement, the second Party may, at its election and
without penalty, suspend its obligations under the Agreement.
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8.14 FDICIA Representation. If the Parties have so agreed in Part XI of
the Schedule, each Party represents and warrants to the other Party that
it is a financial institution under the provisions of Title IV of the
Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA"),
and the Parties agree that this Agreement shall be a netting contract, as
defined in FDICIA, and each receipt or payment or delivery obligation
under the Agreement shall be a covered contractual payment entitlement or
covered contractual payment obligation, respectively, as defined in and
subject to FDICIA.
8.15 Confirmation Procedures. In relation to Confirmations, unless either
Party objects to the terms contained in any Confirmation within three (3)
Business Days of receipt thereof, or such shorter time as may be
appropriate given the Value Date of the FX Transaction, the terms of such
Confirmation shall be deemed correct and accepted absent manifest error,
unless a corrected Confirmation is sent by a Party within such three
Business Days, or shorter period, as appropriate, in which case the Party
receiving such corrected Confirmation shall have three (3) Business Days,
or shorter period, as appropriate, after receipt thereof to object to the
terms contained in such corrected Confirmation. In the event of any
conflict between the terms of a Confirmation and this Master Agreement,
the terms of this Master Agreement shall prevail and the Confirmation
shall not modify the terms of this Master Agreement.
8.16 Amendments. No amendment, modification or waiver of the Agreement
will be effective unless in writing executed by each of the Parties.
SECTION 9. LAW AND JURISDICTION
9.1 Governing Law. The Agreement shall be governed by, and construed in
accordance with the laws of the State of New York without giving effect to
conflict of laws provisions.
9.2 Consent to Jurisdiction. With respect to any Proceedings, each Party
irrevocably (i) submits to the non-exclusive jurisdiction or the courts of
the State of New York and the United States District Court located in the
Borough of Manhattan in New York City, and (ii) waives any objection which
it may have at any time to the laying of venue of any Proceedings brought
in any such court, waives any claim that such court does not have
jurisdiction over such Party. Nothing in the Agreement precludes either
Party from bringing Proceedings in any other jurisdiction.
9.3 Waiver of Immunities. Each Party irrevocably waives to the fullest
extent permitted by applicable law, with respect to itself and its
revenues and assets (irrespective of their use or intended use) all
immunity on the grounds of sovereignty or other similar grounds from (i)
suit, (ii) jurisdiction of any courts, (iii) relief by way of injunction,
order for specific performance or for
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recovery of property, (iv) attachment of its assets (whether before or
after judgment) and (v) execution or enforcement of any judgment to which
it or its revenues or assets might otherwise be entitled in any
Proceedings in the courts of any jurisdiction, and irrevocably agrees to
the extent permitted by applicable law that it will not claim any such
immunity in any Proceedings. Each Party consents generally in respect of
any Proceedings to the giving of any relief or the issue of any process in
connection with such Proceedings, including, without limitation, the
making, enforcement or execution against any property whatsoever of any
order or judgment which may be made or given in such Proceedings.
9.4 Waiver of Jury Trial. Each Party hereby irrevocably waives any and all
right to trial by jury in any Proceedings.
IN WITNESS WHEREOF, the Parties have caused the Agreement to be duly
executed by their respective authorized officers as of the date first written
above.
XXXX FUTURES INC.
By
-----------------------------------------
Name:
Title:
XXXX XXXXXX SPECTRUM ________________ L.P.
By
-----------------------------------------
Name: Xxxx Xxxxxx
Title: President and Director of
Demeter Management Corporation
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