EXHITBIT 10.01
BELLWETHER PARTNERS LLC
AMENDED AND RESTATED
CUSTOMER FOREIGN EXCHANGE AGREEMENT
In consideration of the agreement of BELLWETHER PARTNERS LLC ("BPL")
to act as intermediary for and/or principal with the undersigned customer (the
"CUSTOMER") in the purchase and/or sale of foreign exchange spot and forward
contracts ("forex contracts") in the interbank market, CUSTOMER hereby agrees,
with respect to all forex contracts that the CUSTOMER now has, or at any future
time may have, with BPL, its successors or assigns, as follows:
1. Prior Agreement. This Agreement supersedes in its entirety the
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Customer Foreign Exchange Agreement previously entered into between BPL and
CUSTOMER.
2. Relationship Between the Parties. (a) BPL, on behalf of CUSTOMER,
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shall act as intermediary in executing CUSTOMER's orders for forex contracts in
the interbank foreign currency market. BPL, as principal, shall enter into
forex contracts with CUSTOMER, from time to time, upon such terms and conditions
as are agreed upon by BPL and CUSTOMER. Notwithstanding any other provision of
this Agreement, the parties hereto agree that BPL shall not be obligated to
enter into any forex contract as intermediary for, and/or principal with,
CUSTOMER. BPL may also act as intermediary for, and principal to, CUSTOMER in
the purchase and sale of other commodity interests (including, without
limitation, precious metals), from time to time, upon such terms and conditions
as are agreed upon by BPL and CUSTOMER.
(b) BPL may also act as an intermediary, in an agency capacity, for
CUSTOMER in connection with over-the-counter currency option transactions and
currency transactions required to settle CUSTOMER=S transactions in non-United
States dollar markets. Unless
otherwise agreed by CUSTOMER, BPL will not charge a fee for acting as
intermediary in connection with the transactions described in this paragraph
(b).
(c) Any actions taken by BPL under this Agreement may be taken
directly by BPL or through duly authorized arrangers acting on its behalf.
3. Back-to-Back Forex Contracts. BPL shall enter into back-to-back
purchase and sale and sale and purchase forex contracts with respect to every
forex contract effected as intermediary for and principal to CUSTOMER. BPL
shall enter into such back-to-back forex contracts with one or more recognized
participants in the interbank market. CUSTOMER understands that the prices at
which forex contracts are purchased or sold for it by BPL may reflect a mark-up
or spread charged by BPL.
4. Collateral. CUSTOMER shall promptly upon demand deposit
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collateral in an account designated by BPL in such amounts and in such form as
BPL in its absolute discretion may require from time to time (the "Collateral");
provided, however, that BPL shall not require as Collateral at any time a sum
exceeding twenty percent (20%) of CUSTOMER's net assets as the same shall be
reported to BPL.
5. Use of Collateral. CUSTOMER hereby grants to BPL the right to
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borrow, pledge, repledge, hypothecate, rehypothecate, loan, use, encumber, or
invest any of the Collateral without notice to CUSTOMER, and without any
obligation to pay or account to CUSTOMER for any interest, income or benefit
that may be derived therefrom, except as provided in paragraph 6 of this
Agreement.
6. Interest. BPL shall pay interest on a monthly basis to CUSTOMER
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on any cash Collateral based upon the monthly average of the weekly 90-day
United States Treasury bill rate. Upon request, BPL shall furnish to CUSTOMER
such information as is necessary for CUSTOMER to verify all calculations.
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7. Indemnification. CUSTOMER will indemnify and hold BPL, its
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principals, officers, employees, agents and affiliates and any duly authorized
arranger acting on its behalf harmless from, and will pay BPL promptly upon
demand, any and all claims, damages, losses, costs, expenses, indebtedness and
other liabilities, including debit balances, arising from or relating to the
purchase and/or sale of forex contracts by BPL as intermediary for and principal
to CUSTOMER, other than as a result of BPL's gross negligence, willful
misconduct, or bad faith. CUSTOMER hereby ratifies and confirms any and all
transactions involving forex contracts heretofore made by BPL (or authorized
arrangers as contemplated by paragraph 2(c) of this Agreement) on CUSTOMER=S
behalf.
8. Default. In the event that CUSTOMER: (a) fails for any reason
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whatsoever to perform its obligations under this Agreement, any forex contract,
or any other agreement between the parties; or (b) files a petition to take
advantage of any bankruptcy, reorganization, moratorium, insolvency or similar
law of any relevant jurisdiction or makes or proposes to make any arrangement or
composition for the benefit of any of its creditors; or (c) is the subject of
any order, judgment or decree entered by any court or issued by any governmental
entity providing for the winding up, reorganization, or liquidation or the
appointment of a liquidator, trustee or receiver of such party or a substantial
part of its business or assets; or (d) is unable to pay its debts as they fall
due; or (e) breaches any representation or warranty made by it herein; or (f) is
unable to provide adequate assurance of its ability to perform its obligations
under this Agreement following written request therefor; then, in any such
event: (i) BPL shall have the right, without notice to CUSTOMER, to liquidate
and close out any or all of CUSTOMER's then outstanding forex contracts and the
amount of CUSTOMER's net loss (if any) resulting therefrom, as determined by
BPL, shall be immediately due and payable by CUSTOMER; (ii) BPL shall be
entitled to set-off any obligation of CUSTOMER to make payments to BPL in
connection with any forex contract, against any obligations of BPL to make
payments to CUSTOMER in connection with any forex contract; (iii) CUSTOMER shall
promptly pay, in settlement and satisfaction of its obligations in connection
with then outstanding forex contracts,
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the net amount (if any) by which CUSTOMER's obligations to make payments
hereunder exceed BPL's obligations after giving effect to the set-off under
clause (ii) above; (iv) CUSTOMER shall be liable to BPL for all losses, costs
and expenses (including without limitation the loss of its bargain and the loss
of its protection against future risks determined at their net present value as
of the date of the event of default) that BPL may incur or suffer as a result of
the occurrence of any event of default or the exercise of any remedies
hereunder, and a written statement specifying in reasonable detail such losses,
costs and expenses shall be conclusive as to the amount thereof absent manifest
error; (v) BPL shall be relieved from such of its obligations as shall exist
after giving effect to the set-off under clause (ii) above until such time as
CUSTOMER shall have complied with its obligations under clauses (iii) and (iv)
above; (vi) BPL may charge, set-off and otherwise apply any or all of the
Collateral held by or for BPL hereunder against any payment obligations of
CUSTOMER arising in connection with any forex contract entered into pursuant to
this Agreement, and in connection with the exercise of the foregoing rights, BPL
may sell, in any commercially reasonable manner, any of the non-cash Collateral
held by or for it hereunder; and (vii) without limiting any rights which it may
have under this paragraph or otherwise, BPL may set-off amounts that CUSTOMER
owes to it (whether under this Agreement or otherwise and whether or not then
due) against amounts which it owes to CUSTOMER (whether under this Agreement or
otherwise and whether or not then due).
BPL's rights, powers and remedies hereunder are cumulative and not
exclusive of any other rights, powers or remedies BPL may have at law or in
equity.
9. Intent. In respect of this Agreement and each transaction entered
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into from time to time hereunder, each party acknowledges and confirms that:
(i) BPL's right to cancel and liquidate forex contracts and
exercise any other remedies upon the occurrence of an event
of default under paragraph 8 constitutes a "contractual
right" to liquidate as described in Section 556 of the U.S.
Bankruptcy Code;
(ii) Each forex transaction is a "forward contract" and BPL is
a "forward contract merchant," as those terms are defined in
the U.S. Bankruptcy Code;
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Bankruptcy Code;
(iii) All Collateral shall constitute "margin payments," as
that term is defined in the U.S. Bankruptcy Code; and
(iv) All payments, deliveries, and other transfers in
connection with this Agreement and the transactions
hereunder constitute "settlement payments" as that term is
defined in the U.S.
10. Commissions. CUSTOMER hereby agrees to pay BPL a roundturn
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commission of $9.00 per IMM contract equivalent for the purchase or sale of any
forex contract and the offsetting sale or purchase, or such other amount as the
parties hereto may mutually agree upon from time to time.
11. Enforceability. BPL shall endeavor to fill all orders for forex
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contracts received from CUSTOMER unless and until written notice of cancellation
is received by BPL, provided that, such cancellation shall not affect any forex
contract entered into prior to actual receipt of cancellation.
12. Representations and Warranties. CUSTOMER hereby represents and
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warrants continually throughout the term of this Agreement that: (a) it is duly
organized and validly existing and in good standing under the laws of its
jurisdiction of organization and it is authorized to enter into this Agreement
and perform all its obligations hereunder; (b) this Agreement is binding on
CUSTOMER and enforceable against CUSTOMER in accordance with its terms; (c) it
will engage in transactions hereunder solely as principal for its own account;
(d) any person executing this Agreement and entering into transactions hereunder
on its behalf has been duly authorized by it to do so; (e) CUSTOMER is fully
familiar with the speculative nature of forex contracts, that their high degree
of risk makes them suitable only for those that can sustain substantial losses
and that CUSTOMER is sophisticated in their purchase and sale; and (f) CUSTOMER
is willing and able, financially and otherwise, to assume the risks of trading
forex contracts with and through BPL and to bear whatever financial losses might
occur as a result thereof.
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13. Payment. All amounts payable under this Agreement or any
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transaction hereunder shall be made in U.S. dollars, when due, by wire transfer
of immediately available funds to the bank account designated by the party
receiving payment. If payment is due to be made by each of the parties on the
same date, such payments shall be netted so that if the aggregate amount that
would otherwise have been payable by one party exceeds the aggregate amount that
would otherwise have been payable by the other party, the obligation of the
party whose aggregate total is less than the other party shall be discharged
from its obligation to make payment and the party obligated to make payment of
the larger aggregate total shall satisfy its obligation by paying to the first
party the difference between the aggregate totals. Any amount not paid when due
shall bear interest thereon from the date originally due until paid in full at a
rate based upon then prevailing interest rates for overnight deposits as
determined in good faith by the party to whom payment is due (which amount shall
be sufficient to place such party in the same position as if such payment had
been timely made).
14. Confirmations; Reports. Each transaction entered into hereunder
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shall be promptly confirmed in writing by a confirmation ("Confirmation") sent
by BPL to the CUSTOMER by telex, facsimile, electronic transmittal or other
similar means. Unless the CUSTOMER objects to the terms contained in any
Confirmation within one business day following receipt of such Confirmation, the
terms of such Confirmation shall be deemed to be correct and binding on the
parties thereto, absent manifest error or the sending by BPL of a corrected
Confirmation prior to the expiration of the aforementioned time period.
BPL will use its best efforts to provide CUSTOMER promptly with daily
and monthly account statements detailing realized and unrealized profits and
losses, equity balances, and information with respect to Collateral on deposit
with BPL. In addition, BPL will annually furnish CUSTOMER with its audited
financial statements and an auditor's opinion relating thereto as of the close
of the prior year.
15. Master Agreement. Each transaction between BPL and CUSTOMER
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shall
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be governed by the provisions of this Agreement in effect on the date of
such transaction, as it may be amended from time to time, and the terms and
conditions set forth in the relevant Confirmation. Each Confirmation
constitutes a supplement to and forms part of this Agreement and shall be read
and construed as one with this Agreement, so that this Agreement and all
Confirmations constitute a single agreement between BPL and CUSTOMER. In the
event of any inconsistency between a Confirmation and this Agreement, this
Agreement shall prevail. This Agreement and all Confirmations form a single
agreement between BPL and CUSTOMER, it being understood that neither party would
otherwise enter into any transaction hereunder.
16. Liability. BPL shall not be liable for any loss, damage, or
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other consequence with respect to this Agreement or any forex contract entered
into or sought hereunder, which is caused by circumstances beyond the control of
BPL, including, but not limited to, losses, damages or consequences arising from
nationalization, expropriation, currency restrictions or other governmental
controls, acts of war or terrorism, civil commotion, insurrection, revolution,
nuclear event, or acts of God.
17. Recording. The parties hereto agree that each may electronically
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record telephonic conversations between them and that any such tape recordings
between the persons who enter into any forex contract or any transaction under
this Agreement may be submitted in evidence to any court or in any legal
proceeding, including arbitration proceedings, relating thereto.
18. Authority. Each party hereto may rely on instructions given
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orally or in writing by any person having actual or apparent authority to act on
behalf of the other party.
19. Effectiveness. This Agreement shall become effective only after
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it shall have been signed by both parties. This Agreement is a continuing one
and shall remain in full force and effect until terminated by written notice of
either party to the other party.
20. Notices. All notices to either party shall be in writing to the
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address shown
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herein. Either party from time to time may designate in writing any other
address to which notices, bills and communications to such party may be sent.
21. No Assignment. Neither party hereto may assign its rights or
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delegate its obligations under this Agreement or any interest herein without the
prior express written consent of the other party.
22. Entire Agreement. This Agreement constitutes the entire
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agreement between the parties with respect to the matters referred to herein,
and no other agreement, verbal or otherwise, shall be binding as between the
parties, unless it is in writing and signed by both parties.
23. Amendments; Waivers. No provision of this Agreement may be
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amended or waived, unless such amendment or waiver is in writing and signed by
the parties. No amendment or waiver of any provision of this Agreement may be
implied from any course of dealing between the parties or from the failure of
either party to assert its rights under this Agreement on any occasion or series
of occasions.
24. Severability. If any provision of this Agreement is, or at any
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time shall become, inconsistent with any present or future law, rule,
regulation, or ruling of any jurisdiction, court, or regulatory body, exchange
or board having jurisdiction, such provision shall be deemed rescinded or
modified to conform to such law, rule, regulation, or ruling and the remaining
provisions of this Agreement shall not be affected thereby and shall remain in
full force and effect.
25. Governing Law. This Agreement shall be deemed to have been made
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under, and shall be governed by and construed and enforced in accordance with,
the substantive law of the State of New York, U.S.A. (excluding the law thereof
which requires the application of or reference to the law of any other
jurisdiction).
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26. Disputes. Any dispute involving monetary damages between the
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parties shall be resolved in New York City, U.S.A., by arbitration before the
American Arbitration Association.
27. Non-Exclusive Agreement. The terms and conditions of this
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Agreement, including those relating to commissions, markups or spreads,
interest, and Collateral requirements,v.c. have been individually agreed upon by
BPL and CUSTOMER. CUSTOMER acknowledges and agrees that BPL shall be free to
render services of the nature to be rendered to CUSTOMER hereunder to other
persons or entities on terms which vary in one or more respects from those set
forth herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
26th day of March, 1997
BELLWETHER PARTNERS LLC
600 Steamboat Road
Greenwich, CT 06830
By: ____________________________
Name: Mark Pickard
Title: Vice President
CUSTOMER:
TUDOR FUND FOR EMPLOYEES L.P.
c/o Tudor Investment Corporation
600 Steamboat Road
Greenwich, CT 06830
By: Second Management LLC,
General Partner
By: ____________________________
Name:
Title:
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