MASTER FX GIVE-UP AGREEMENT
MASTER FX GIVE-UPAGREEMENTpublished as of 31 December 2004by The Foreign Exchange Committeein association with The British Bankers’ Association, The Canadian Foreign Exchange Committee,Publishedas Bankersof April6, 2005, by the Foreign Exchange Committeeand The JapaneseAssociation
Master FX Give-upAgreementAgreement.1Schedule .6Notice.9To obtain further information on documentation and initiatives, visit the following websites:The Foreign Exchange Committeewww.newyorkfed.org/fxcThe Financial Markets Lawyers Groupwww.newyorkfed.org/fmlg
Master FX Give-Up AgreementAgreementMASTER FX GIVE-UP AGREEMENT (“Agreement”) dated as of ,by and between (“Prime Broker”)and (“Dealer”).1.Construction and Definitions.This Agreement includes the Schedule hereto.In the event of any inconsistency between theprovisions of the Schedule and the other provisions of Sections 1 through 9 of thisAgreement, the Schedule will prevail. In theevent of any inconsistency between a Give-UpAgreement Notice (a “Notice”) and the otherprovisions of this Agreement, the Notice willprevail. In addition to terms defined elsewherein this Agreement, as amended from time totime, and the applicable Notice, the followingterms shall have the meanings specified below.All capitalized terms used herein without definition shall have the meanings set forth in theMaster Agreement and the 1998 FX and CurrencyOption Definitions (published by the International Swaps and Derivatives Association, Inc.,EMTA, Inc. (formerly known as the EmergingMarkets Traders Association) and The ForeignExchange Committee).“Accepted Transaction” has the meaning setforth in Part 5 of the Schedule.“Counterparty Transactions” has the meaningset forth in Section 2.“Counterparty FX Transactions” means Counterparty Transactions that are FX Transactions.“Counterparty Option Transactions” meansCounterparty Transactions that are CurrencyOption Transactions.“Dealer Notice” has the meaning set forth inSection 4(b).“Designated Party” means each entity designatedas such in a Notice.“Designated Party Notice” means the notice ofthe relevant Counterparty Transaction received byPrime Broker from the relevant Designated Party.“Dollar Value” means, with respect to anamount of currency at any time (i) if such currency is U.S. Dollars, such amount and (ii) in allother cases, the amount of U.S. dollars thatcould be purchased at the market rate prevailingat such time against delivery of such amount ofcurrency on a specified Settlement Date. Suchrate shall be determined by Prime Broker (ingood faith and in a commercially reasonablemanner) to be the midmarket rate available toPrime Broker at such time in the foreignexchange market reasonably selected by PrimeBroker. If Prime Broker is unable to obtain amarket rate pursuant to the preceding sentence,Prime Broker will determine the rate in goodfaith and in a commercially reasonable manner.“Master Agreement” has the meaning set forthin the applicable Schedule.“Material Terms” means (i) for Counterparty FXTransactions: Settlement Date, amounts of eachcurrency to be delivered by each party, and anyother terms considered material in the market;and (ii) for Counterparty Option Transactions:the amounts of each currency, the type ofCurrency Option Transaction (e.g., American orEuropean), the Strike Price, Premium, ExpirationDate, and any other terms considered materialin the market.www.newyorkfed.org/fmlg1
“Net Daily Settlement Amount” means, withrespect to Counterparty Transactions executedby a Designated Party for any Settlement Date,the sum of the Dollar Value for each currency forwhich the aggregate Dollar Value results in anet amount owed to Prime Broker by Dealerwith respect to such Counterparty Transactions,excluding any option premia that may be owedto Prime Broker and assuming (i) in respect ofCounterparty Option Transactions, the exercisethereof on the Expiration Date and (ii) inrespect of Counterparty FX Transactions that areNon-Deliverable, the actual exchange of theamounts of the relevant currencies.“Net Open Position” means the aggregateamount owed by Dealer to Prime Broker withrespect to Counterparty Transactions executedby a Designated Party, calculated as follows:(A) for each Counterparty FX Transaction(assuming, in respect of Counterparty FXTransactions that are Non-Deliverable, theactual exchange of the amounts of the relevant currencies), determine the Dollar Valuefor each currency (including U.S. dollars)owed by Dealer to Prime Broker or owed byPrime Broker to Dealer under suchCounterparty FX Transaction;(B) for each currency (including U.S. Dollars),determine the net Dollar Value amountowed by Dealer to Prime Broker or owed byPrime Broker to Dealer by summing theDollar Values of all long and short positionsin such currency as determined in clause(A) above;(C) for each Counterparty Option Transactionpurchased or sold by Dealer in aCounterparty Transaction executed by suchDesignated Party, determine the DollarValue of such Counterparty OptionTransaction pursuant to the applicablemethodology specified in the Schedule;and(D) aggregate (i) the Dollar Value amountsdetermined pursuant to clause (B) and(ii) the Dollar Value amount or amountsdetermined pursuant to clause (C) abovepursuant to the applicable methodologyspecified in the Schedule.“Netted Option” means a Counterparty OptionTransaction sold by Prime Broker and owned by2www.newyorkfed.org/fxcDealer which shall, for the purposes of determining the Net Daily Settlement Amount andNet Open Position, be discharged and terminatedtogether with a Counterparty OptionTransaction sold by Dealer and owned by PrimeBroker upon satisfying the following criteria:(i)each Counterparty Option Transactionbeing with respect to the same PutCurrency and Call Currency;(ii)each having the same Expiration Date andExpiration Time;(iii) each being of the same style, i.e., eitherboth being American Style Options or bothbeing European Style Options;(iv) each having the same Strike Price;(v)each being transacted by the same pair ofOffices of Dealer and Prime Broker;(vi) neither of which shall have been exercisedby delivery of a Notice of Exercise;(vii) each having the same other MaterialTerms, except that the currency amountsneed not be the same in the case of apartial discharge and termination; and(viii) each having been executed by the sameDesignated Party.In the case of a partial discharge and termination(i.e., where the relevant Counterparty OptionTransactions are for different amounts of theCurrency Pair), only the portion discharged andterminated shall be considered a Netted Option.“Notice” has the meaning set forth above inthis Section.“Notice of Barrier Event” means telex, telephonic,or other electronic notification (excludingfacsimile transmission) given by the calculationagent with respect to a Counterparty OptionTransaction immediately following a BarrierEvent, as agreed to at the time suchCounterparty Option Transaction is entered into,as evidenced in a confirmation.“Proceedings” means any suit, action, or otherproceedings relating to this Agreement.
MASTER FX GIVE-UP AGREEMENT2.Prime Broker has authorized each party designated as a Designated Party in a Notice to enterinto foreign exchange transactions (“Counterparty Transactions”) on its behalf with Dealer.Such Counterparty Transactions shall be limitedto the types, maximum tenors, currencies, andSpecified Offices of Dealer and Prime Broker, asspecified in such Notice. No Designated Partymay make or receive deliveries of currencies onbehalf of Prime Broker, or give any directions inrespect of deliveries of currencies, in connectionwith any Counterparty Transaction.Notices shall be substantially in the form ofExhibit 1 hereto. Each Notice shall supplement,be governed by, and form a part of thisAgreement. Any Counterparty Transactionsentered into under this Agreement shall besubject to the Master Agreement.3.Party Notice setting forth Material Terms thatmatch those in such Dealer Notice.Authorization.(b)Dealer shall promptly communicate theMaterial Terms of each CounterpartyTransaction by notifying Prime Broker via Reutersor any other systems as the parties may mutuallyagree (or via telephonic communication in theevent Reuters or any agreed alternativemethod is nonoperational) (“Dealer Notice”).(c)The trade acceptance provisions selected inPart 5 of the Schedule shall be applicable. Inaddition, Prime Broker shall comply with theapplicable notification requirements, if any, setforth in Part 6 of the Schedule.5.Exercise of Options.(a)Notwithstanding any terms of a confirmationthat may be to the contrary, if Dealer hasentered into an Accepted Transaction in which itis the seller of a Counterparty Option Transaction,such Counterparty Option Transaction may beexercised by delivery of a Notice of Exercise bythe Designated Party that executed suchTransaction to Dealer, which shall constituteexercise by Prime Broker.(b)Notwithstanding any terms of a confirmation orMaster Agreement that may be to the contrary,if Dealer has entered into an AcceptedTransaction in which it is the owner of aCounterparty Option Transaction, such Counterparty Option Transaction may only be exercisedby contemporaneous delivery of a Notice ofExercise by Dealer to each of Prime Broker andthe Designated Party that executed suchAccepted Transaction.(c)Where a Counterparty Option Transaction hasknock-in and/or knock-out features, if Dealer isthe calculation agent with respect to suchTransaction, Dealer is required to notify promptlythe Designated Party and Prime Broker of aknock-in or knock-out strike event by deliveryof a Notice of Barrier Event.(d)No provision of this Section 5 overrides anyprovision in the applicable Master Agreementconcerning Automatic Exercise as such term isused in the Master Agreement.6.Representations/Warranties.Limits.With respect to Counterparty Transactions, theauthority set forth in Section 2, in respect ofany particular Designated Party, is expresslylimited to a Net Daily Settlement Amount not toexceed the Settlement Limit and a Net OpenPosition not to exceed the Net Open PositionLimit, as set forth in the applicable Notice. SuchSettlement Limit and Net Open Position Limitshall apply only to Counterparty Transactionsentered into between Prime Broker and Dealer.4.Accepted Transactions.(a)Dealer acknowledges and agrees that PrimeBroker shall not be liable for any CounterpartyTransaction unless (i) such Counterparty Transaction is a Counterparty Transaction as set forthin the Notice with respect to the DesignatedParty executing such Counterparty Transaction;(ii) giving effect to such CounterpartyTransaction does not cause the Net DailySettlement Amount to exceed or further exceedthe applicable Settlement Limit or the Net OpenPosition to exceed or further exceed theapplicable Net Open Position Limit (withoutthe prior written consent of Prime Broker);(iii) Dealer and such Designated Party shallhave committed to the Material Terms of suchCounterparty Transaction; (iv) such Counterparty Transaction has been entered into byDealer acting through a Specified Office;(v) Prime Broker has received from Dealer aDealer Notice; and, if specified as applicable inPart 4 of the Schedule, (vi) Prime Broker hasreceived from Designated Party a DesignatedPrime Broker and Dealer each represents, warrants,and agrees as of the date of this Agreement andas of the date of each Counterparty Transactionwww.newyorkfed.org/fmlg3
entered into pursuant to this Agreement that(a) it has authority to enter into this Agreementand each Counterparty Transaction; (b) the persons executing this Agreement and enteringinto such Counterparty Transaction have beenduly authorized to do so; (c) this Agreement isbinding upon it and enforceable against it inaccordance with its terms (subject to applicablebankruptcy, reorganization, insolvency, moratorium, or similar laws affecting creditors’ rightsgenerally and subject, as to enforceability, toequitable principles of general application(regardless of whether enforcement is sought ina proceeding in equity or at law)) and does notand will not violate the terms of any agreementsto which such party is bound; and (d) it will berelying on this Agreement in entering intoAccepted Transactions in accordance with theinstructions of the Designated Party.7.Termination/Change.(a)This Agreement shall remain in effect unlessand until terminated by Prime Broker or Dealer.Such termination shall be communicated inwriting in accordance with Section 8 hereto.Termination of this Agreement shall have no effectupon any Counterparty Transaction executed inaccordance with the provisions hereof prior tothe effectiveness of such termination.(b)Prime Broker may amend the Notice, in whole orin part, at any time in writing in accordancewith Section 8 hereto.(c)Any notification of termination pursuant toSection 7(a) or any notification of amendmentto the Notice pursuant to Section 7(b) shall beeffective one hour after receipt. Any such notification, if delivered to the recipient at a timewhen the recipient is not open for business,shall be effective one hour after the recipientopens for business.8.Notices/Communications.(a)Unless otherwise provided in this Agreement orotherwise agreed, all notices, instructions, andother communications to be given to a partyunder this Agreement may be given in writing orby facsimile transmission, electronic messagingsystem, e-mail, or telephone and shall be givento the address, facsimile number, or telephonenumber and to the individual or department andduring the hours specified by such party inaccordance with the Schedule. Unless otherwisespecified, any notice, instruction, or other communication given in accordance with this4www.newyorkfed.org/fxcAgreement shall be effective upon receipt.Notices required hereunder to be in writing maybe given by facsimile transmission or e-mail if afacsimile number or e-mail address, respectively,is specified for the intended recipient in theSchedule. A party may change its notice detailsby notice given to the other party pursuant tothe provisions of this Section 8.(b)The parties agree that each party may electronically record all telephonic conversations betweenthem relating to the subject matter of thisAgreement and that any such tape recordingsmay be submitted in evidence in any Proceedings.9.Miscellaneous.(a)In the event any one or more of the provisionscontained in this Agreement is held invalid,illegal, or unenforceable in any respect underthe law of any jurisdiction, the validity, legality,and enforceability of the remaining provisionsunder the law of such jurisdiction and the validity,legality, and enforceability of such and anyother provisions under the law of any otherjurisdiction shall not in any way be affected orimpaired thereby.(b)No indulgence or concession granted by a partyand no omission or delay on the part of a party inexercising any right, power, or privilege underthis Agreement shall operate as a waiver thereof,nor shall any single or partial exercise of anysuch right, power, or privilege preclude anyother or further exercise thereof or the exerciseof any other right, power, or privilege.(c)No amendment, modification, or waiver of thisAgreement will be effective unless in writing,executed by each of the parties. This Agreement(and each amendment, modification, and waiverin respect of it) may be executed and deliveredin counterparts (including by facsimile transmission), each of which will be deemed an original.(d)This Agreement shall be governed by, andconstrued in accordance with, the laws of theState of New York without giving effect to conflict of laws provisions. With respect to anyProceedings, each party irrevocably (i) submitsto the nonexclusive jurisdiction of the courts ofthe State of New York and the United StatesDistrict Court located in the Borough ofManhattan in New York City and (ii) waives anyobjection that it may have at any time to thelaying of venue of any Proceedings brought inany such court, waives any claim that such
MASTER FX GIVE-UP AGREEMENTProceedings have been brought in an inconvenient forum and further waives the right toobject, with respect to such Proceedings, thatsuch court does not have jurisdiction over suchparty. Nothing in this Agreement precludes aparty from bringing Proceedings in any otherjurisdiction nor will the bringing of Proceedingsin any one or more jurisdictions preclude thebringing of Proceedings in any other jurisdiction.(e)Each party hereby irrevocably waives any and allright to trial by jury in any Proceedings.IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below with effect fromthe date specified on the first page of this document.PRIME BROKERDEALER(Name of party):(Name of ewyorkfed.org/fmlg5
Master FX Give-Up AgreementScheduleDated as of betweenandPA R T 1 .Calculation of Dollar Value.For purposes of the calculation of Dollar Value, PrimeBroker shall use [choose one]: spot rate. forward rate.PA R T 2 .Calculation with respect to CounterpartyOption Transactions.For purposes of the calculation of Net Open Position ofCounterparty Option Transactions, the followingmethodology shall be used [choose one]: 6With respect to any Counterparty OptionTransactions that are not Netted Options, perform the following calculations: (a) determinethe delta equivalent for each such CounterpartyOption Transaction and (b) multiply the deltaequivalent obtained in (a) by the Dollar Value ofthe currency that would be received by PrimeBroker under the Counterparty Option Transaction if such Counterparty Option Transactionwere exercised. Determine the Dollar Value ofCounterparty Option Transactions by adding theamounts obtained in (b) above. Determine theNet Open Position by adding (i) the Dollar Valueamount determined pursuant to clause (B) ofthe definition of Net Open Position for eachcurrency with respect to which Dealer owes a netaggregate amount to Prime Broker and (ii) theDollar Value of Counterparty Option Transactionsdetermined pursuant to this paragraph.www.newyorkfed.org/fxcWith respect to any Counterparty Option Transactions that are not Netted Options, performthe following calculations: (a) Determine thedelta equivalent of each leg of each CurrencyPair with respect to each such CounterpartyOption Transaction. (b) For each currency,aggregate and net the delta equivalent ofamounts in such currency deliverable (assumingoption exercise) to Prime Broker and payable(assuming option exercise) by Prime Broker.(c) Add the net delta equivalent for each currencyto the currency amounts that may be owed to,or payable by, Prime Broker under theCounterparty FX Transactions and then determine for each currency the Dollar Value of thisnet amount. (d) The Dollar Values of each netcurrency amount owed to Prime Broker shall beaggregated and this aggregate amount shall bethe Net Open Position.PA R T 3 .Master Agreement.The [ISDA][IFEMA][ICOM][FEOMA][IFXCO] MasterAgreement between Prime Broker and Dealer dated asof ,as amended from time to time (as so amended, the“Master Agreement”).PA R T 4 .Conditions.Clause 4(a)(vi) shall be [choose one]: applicable. not applicable.
MASTER FX GIVE-UP AGREEMENTPA R T 5 .PA R T 6 .Trade Acceptance.Notification by Prime Broker.The applicable trade acceptance methodology for purposes of Section 4(c) of the Agreement shall be[choose one]:The provisions of this Part 6 shall be [choose one]: applicable. not applicable. Upon satisfaction of the applica
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