Exhibit 10.01(b)
XXXX FUTURES INC.
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
INTERNATIONAL FOREIGN EXCHANGE MASTER AGREEMENT
MASTER AGREEMENT dated as of __________________, by and between XXXX
FUTURES INC., a Delaware corporation and XXXX XXXXXX SPECTRUM L.P.
SECTION 1. DEFINITIONS
Unless otherwise required by the context, the following terms shall
have the following meanings in the Agreement:
"Agreement" has the meaning given to it in Section 2.2.
"Base Currency" 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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