Foreign Currency Forward Master Contract

Transcription

1 Foreign Currency Forward Master Contract Foreign Currency Forward Master Agreement ( Agreement ), dated as of, 20 between the client ( Client ) and Tempus, Inc. ( Tempus ). BACKGROUND 1. Forward Contract. The parties agree to enter into a Forward Contract or multiple Forward Contracts for the exchange of currencies at a specified Forward Exchange Rate ( Forward Exchange Rate defined in the Appendix) to be Settled ( Settled or Settlement defined in the Appendix) on an agreed upon date or dates subject to the terms and conditions of this Agreement. 2. Forward Contract Portfolio. Should the parties enter into multiple Forward Contracts, these Forward Contracts will collectively comprise a Forward Contract Portfolio ( Portfolio ) for the Client. Accordingly, the parties agree as follows: Agreement. This Agreement provides for the parties desire to enter into a Forward Contract for the exchange of currencies to be Settled on one or several later date(s) agreed upon by the parties at a specified Forward Exchange Rate. 1.Payment All Forward Contracts payments will involve Settlement and Collateral. Settlement and Collateral are subject to the following terms and conditions: 1.1 Settlement Settlement. Client agrees to provide payment (Settle) in the agreed currency on the balance due for all Forward Contracts in accordance with the Settlement Time Table the parties agreed to in Schedule A. The full amount must be received by Tempus, subject to Section before currency can be released or Delivered ( Delivery or Delivered defined in the Appendix and Section 1.1.2) on the Delivery Date(s) ( Delivery Date defined in the Appendix and Section 1.1.2) to the Client s recipient or Beneficiary ( Beneficiary ). The Client is obligated on the full notional amount of the Forward Contract by the end of the window period subject to the specific time frames in Schedule A Delivery. After Tempus receives Settlement from the Client, Tempus will Deliver the currency to the Beneficiary on the Delivery Date or dates Delivery Options. Client has the option to take Delivery in a window time frame as agreed upon in each Forward Contract. The Client will pick a day or days for Delivery within a window of time in accordance with the Settlement Time Table in Schedule A. Should the Client choose multiple Delivery dates, the Client must Settle with Tempus for the amount of each respective Delivery before currency can be released to the Beneficiary. The Client is obligated 1 Please Initial Here

2 on the full notional amount of the Forward Contract by the end of the window period subject to the specific time frames in Schedule A Delivery Instructions. Client agrees to provide instructions for Delivery of each Forward Contract at least two (2) business days prior to the Delivery date. The date on which the funds are to be Delivered must be a Business Day ( Business Day defined in the Appendix) in both countries of the currencies associated with the Forward Contract Failure to Provide Instructions. In the event that the Client either fails to provide Delivery instructions within the specified time frame, or provides incomplete Delivery instructions, Tempus will hold the Forward Contract funds at the Client s disposal, pending receipt of instructions. Upon receipt of the Client s instructions, provided full payment has been received, Tempus will Deliver the Forward Contract funds in accordance with the Client s instructions. 1.2 Collateral Collateral Collection. Collateral ( Collateral defined in the Appendix) will be collected for each Forward Contract in accordance with the provisions set forth in Schedule A. Tempus can collect Collateral in the following instances: For all initial Forward Contracts For any additional Forward Contracts In the instance of a Margin Call ( Margin Call defined in the Appendix and discussed in Section & 1.2.5) Collateral can be collected in those currencies that Tempus and the Client agree upon in Schedule A. All initial or additional Collateral will be due within two (2) business days from the instance that gave rise to it including, but not limited to, a new Forward Contract or a Margin Call Collateral Base Amount. The initial amount of Collateral collected for each Forward Contract will be determined as a percentage of the Nominal ( Nominal or Nominal Amount as defined in the Appendix) U.S. dollar value or U.S. dollar equivalent of the respective Forward Contract or Portfolio as marked to market on the respective Trade Date ( Trade Date as defined in the Appendix). This amount will be the Collateral Base Amount ( Collateral Base Amount ) Collateral Required Amount. Collateral Required Amount ( Collateral Required Amount defined in the Appendix) is the total amount of Collateral that Tempus will require from the Client at any given time. This amount will be determined as the sum of the Collateral Base Amount and the corresponding Forward Contract or Portfolio Mark to Market Valuation ( Mark to Market Valuation defined in the Appendix). The Collateral Required Amount will be updated at least daily with any valuation loss or gain from Mark to Market Valuation of the Forward Contract or Portfolio. The Client can request a valuation report of the Portfolio from Tempus on any given date. 2 Please Initial Here

3 In NO INSTANCE can the Collateral Required Amount be less than the Collateral Base Amount of any Forward Contract or Portfolio Margin Account. All Collateral from the Client s Portfolio will be collectively grouped into a Margin Account ( Margin Account defined in the Appendix) for the Client and will be used as Collateral for any Forward Contract within the Client s Portfolio. During the duration of the Forward Contract, if the Collateral Required Amount is greater than 50% or more of the Margin Account balance as a result of the Mark to Market Valuations, a Margin Call will be triggered. This can occur in either one day or over a series of days and not necessarily consecutively Margin Call. In the event that a Margin Call is triggered, the Client will provide additional Collateral to meet the Collateral Required Amount. This additional Collateral will be due within two (2) business days of the Margin Call Additional Collateral. Additional Collateral above the Collateral Required Amount collected during the life of the Forward Contract will remain in the Margin Account against the balance of a Forward Contract or Forward Contracts within the Portfolio. These additional funds can be applied as payment to the balance due on a Forward Contract on the Settlement Date or dates. Alternatively the Client can pay the Forward Contract in full on the Settlement Date and keep the balance of the Margin Account unchanged. The Client understands that under no circumstances will additional Collateral be refunded. 3.0 Term 3.1 Term. This Agreement s term begins on the date the Parties execute and deliver this Agreement and continues until Terminated (refer to Section 6) in accordance with the provisions of this Agreement. 4.0 Representations and Warranties The parties represent and warrant the following as of the date of this Agreement: 4.1 Organization; Good Standing. It is duly organized and validly existing and in good standing under the laws of the state of its incorporation with all requisite corporate power and authority to own, operate, and lease its properties, and to carry on its business as now being conducted. 4.2 Powers. It has the power to execute this Agreement and any other documentation relating to this Agreement. It can deliver and perform its obligations under this Agreement and can provide any other documentation relating to this Agreement that is required by this Agreement. It has taken all necessary action to authorize such execution, delivery and performance under this Agreement. 4.3 No Violation or Conflict. The parties execution, delivery and performance of this Agreement do not violate or conflict with any law applicable to it, any provision of its 3 Please Initial Here

4 constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets. 4.3 Consents. It has obtained all governmental and other consents that are required to have been obtained by it with respect to this Agreement and are in full force and effect and all conditions of any such consents have been complied with. 4.5 Obligations Binding. Its obligations under this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)). 4.6 Absence of Certain Events. It has no Event of Default or Potential Event of Default under any material agreement. In addition, to its knowledge, no Termination Event with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement. 4.7 Absence of Litigation. It has no pending or, to its knowledge, threatened against it or any of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or its ability to perform its obligations under this Agreement. 4.8 Accuracy of Specified Information. All applicable information that is furnished in writing by or on behalf of it to the other party is, as of the date of the information, true, accurate and complete in every material respect. 4.9 Tax Returns and Payments. It has duly filed all federal, state, and local tax returns and reports required to be filed and each of them has duly paid or established adequate reserves for the proper payment of all taxes and other governmental charges upon it or its properties, assets, income, franchises, licenses, or sales. 5.0 Conditions 5.1 Approval. Each Forward Contract is subject to pre-approval from Tempus. Client agrees to provide the information that Tempus may require for approval purposes as listed in Schedule A. 5.2 Binding Acceptance. Each Forward Contract instruction from the Client, which Tempus reasonably believes to have been issued by the Client, constitutes a binding oral agreement when orally accepted by Tempus. In addition, any Electronic ( Electronic defined in the Appendix) response of acceptance from Tempus will constitute a binding agreement. 4 Please Initial Here

5 5.3 Confirmation. Each time Tempus and Client enter into a Forward Contract, Tempus shall promptly send a written confirmation to Client reflecting the details of the transaction. Upon Client s receipt of each such confirmation, Client shall promptly review each for accuracy and advise Tempus of any error or discrepancy within the confirmation. If Tempus makes a bona fide effort to send the confirmation and Client does not receive the confirmation and/or Client fails to respond to the confirmation for any reason within 2 business days, the Forward Contract will be considered binding. 5.4 Forward Contract Amount Restrictions. Tempus reserves the right to set a minimum Nominal Amount for each Forward Contract, as well as a minimum Settlement amount when different from the entire Nominal Amount as agreed upon in Schedule A. 5.5 Counterparts. This Agreement may be executed in one or more counterparts, each of which is an original, and all of which constitute only one agreement between the parties. 5.6 Other Documents. The Client shall, at any time in the future, upon demand by Tempus, execute any and all other documents as Tempus may reasonably require in connection with the implementation of this Master Contract. 5.7 Internal References. Unless otherwise stated, references to Sections, subsections, Schedules, and Terms are to Sections, subsections, Schedules, and Terms of this Agreement. 5.8 Entire Agreement. This Master Contract and all of the documentation concurrently executed in connection with it, including any and all confirmations and Schedules, constitutes the entire agreement between the parties with respect to the matters contained in this document. 6.0 Termination 6.1 Termination. Either party may Terminate ( Terminate or Termination defined in the Appendix) this Agreement if the other party: or - Breaches any covenant in this Agreement, but only if, o As a result of that breach, the non-breaching party cannot substantially realize the benefits that it would have realized from this Agreement absent that breach - A Termination Event ( Termination Event defined below) occurs o If any event under the Termination section or Events of Default section occurs, it will constitute a Termination Event. If a Termination Event occurs, Tempus or the Client will, promptly upon becoming aware of it, notify the other party, specifying the nature of that event and each affected transaction. The notifying party will also provide any information related to the Termination Event as reasonably required by the other party. 5 Please Initial Here

6 6.2 Failure to Pay Collateral. Tempus reserves the right to Terminate the Forward Contract and any and/or all other Forward Contracts in the Client s Portfolio if Collateral is not received within the specified time frame. The Client will be liable for any and all Losses ( Loss or Losses defined in the Appendix) and/or expenses that may result from this Termination. This applies for the Collateral required upon initial formation of a Forward Contract and also in the instance of a Margin Call. 6.3 Failure to Settle. If Client fails to Settle before the specified time frame for a Delivery date, Tempus reserves the right to Terminate the Forward Contract and any and/or all other Forward Contracts in the Client s Portfolio. Tempus will have no liability for Losses and/or expenses incurred by the Client in connection with this Termination. 6.4 Interest. If the Client fails to pay the balance due, fees and interest will be charged to the client. Interest will be assessed at the prime rate as announced by Bank of America, N.A., plus (250) basis points on the balance due on the Forward Contract, which may be deducted from any balance in the Margin Account held by Tempus. 7.0 Events of Default 7.1 Breach of Agreement. If a party fails to comply with or perform any obligation in accordance with this Agreement they will be in Breach of the Agreement. 7.2 Misrepresentation. If a representation made or repeated or deemed to have been made or repeated by the party proves to have been incorrect or misleading in any material respect, that party will have made a misrepresentation. 7.3 Bankruptcy. The party is dissolved (other than pursuant to a consolidation, amalgamation or merger) when it: a) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; b) makes a general assignment, arrangement or composition with or for the benefit of its creditors; c) institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition i. results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; ii. is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation of that proceeding or petition; d) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); e) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all of its assets; 6 Please Initial Here

7 f) has a secured party take possession of all or substantially all of its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all of its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days after the fact. 7.4 Merger Without Assumption. The party consolidates or amalgamates with, or merges with, or transfers all or substantially all its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer: a) the resulting, surviving or transferee entity fails to assume all the obligations of the party under this Agreement to which it or its predecessor was a party by operation of law or pursuant to an agreement reasonably satisfactory to the other party to this Agreement 8.0 Remedies 8.1 Remedies. If a Termination Event occurs, Tempus will return any remaining balance in the Client s Margin Account to the Client after deduction of Losses and/or expenses sustained by Tempus due to the Client s default or breach. Should there be an insufficient balance in the Client s Margin Account to offset Losses and/or expenses sustained by Tempus as a result of the Termination of the Forward Contract, Tempus reserves the right to collect any deficient balances through legal or other means, including the liquidation and capture of any currency balances and/or the netting out of positive balance forward contracts. 9.0 Dispute Resolution 9.1 Loss. Client understands and acknowledges that Forward Contract transactions may incur Losses in short periods of time if there is an adverse movement of exchange rates. Client understands and agrees that Client will remain responsible for any and all decisions made by Client relative to Client s transactions. Client agrees to release Tempus and to hold Tempus free and harmless from any and all decisions made by Client relative to Client s transactions. 9.2 Force majeure. Tempus shall not be liable or responsible for any Loss or consequence caused by circumstances beyond its control, including, but not limited to Acts of God, riots, civil commotions, insurrection, wars, strikes, lockouts, irregularities or break down of public communications or circumstances arising out of laws and regulations imposed by domestic or foreign authorities or governments. 9.3 Litigation Costs. In the event that any dispute between Tempus and Client arising under this Master Contract should result in litigation, the party substantially prevailing may be entitled to recover its costs and expenses incurred in relation to the litigation including, without limitation, reasonable attorneys fees. 9.4 Severability. If any provision of this Agreement is illegal or unenforceable, that provision is severed from this Agreement and the other provisions remain in force. 7 Please Initial Here

8 9.5 Jurisdiction. Without regard to its conflict of laws principles, the laws of the District of Columbia govern all matters with respect to this Agreement Notices 10.1 Effectiveness. Any notice in respect to this Agreement must be effective only upon its receipt and may be given in any manner presented below to the address, number, or provided (see Schedule A): a) if in writing and delivered in person or by courier, on the date it is delivered; b) if sent by fax, on the date that transmission is received by a responsible employee of the recipient in legible form (it being agreed that the burden of proving receipt will be on the sender and will not be met by a transmission report generated by the sender s fax machine); c) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested), on the date that mail is delivered or its delivery is attempted; or d) if sent by , on the date that electronic message is received, unless the date of that delivery (or attempted delivery) or that receipt as applicable, is not a Local Business Day or that communication is delivered (or attempted) or received, as applicable, after the close of business on a Local Business Day, in which case that communication shall be deemed given and effective on the first following day that is a Local Business Day Change of Address. In the event that either party changes their respective address, written notification will be given to all parties within 2 (two) weeks Amendments 11.1 Client Modifications. Client may not amend or modify this Foreign Currency Forward Master Contract without the authorized signature of a Tempus representative Tempus Modifications. The terms and conditions associated with this Master Contract may be modified and/or amended by Tempus upon written notice to Client Schedule Modifications. Tempus may update any Schedule associated with this Master Contract at any time upon written notice to Client. 8 Please Initial Here

9 To evidence the parties agreement to this Agreement, they have executed and delivered it on the date set forth in the preamble. CLIENT TEMPUS, INC. Client Signature Tempus Signature Client Printed Name Printed Name Title Title Date Date Client Signature Client Printed Name Title Date APPENDIX The following definitions are applicable to the Foreign Currency Forward Master Contract: Agreement the Foreign Currency Forward Master Contract between the Client and Tempus. Business Day - means a day on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits). 9 Please Initial Here

10 Collateral the amount of money collected to cover any fluctuations in the exchange rate of the currencies for each initial Forward Contract, margin call, and any additional Forward Contracts depending on the Client s Portfolio. Collateral Base Amount the initial Collateral collected determined as a percentage of the Nominal Amount of the Forward Contract or Portfolio Marked to Market on the Trade Date. Collateral Required Amount the amount of Collateral required at any given time (sum of the Collateral Base Amount and corresponding Mark to Market Valuations) and will be updated at least daily with any valuation loss or gain from Mark to Market Valuations of the Forward Contract or Portfolio. Tempus will utilize prices from available market price service providers such as those provided by Bloomberg, Xignite or similar renown and utilized services within the financial industry. Delivery or Delivered when the specified amount given by the Client is sent by Tempus to the Client s recipient or Beneficiary ( Beneficiary ). Delivery Date - the date or dates on which a payment is delivered or sent to the Client s designated Beneficiary for a transaction. Electronic any form of communication using electronic technology including but not limited to mobile phones, , or fax. Forward Contract an agreement between the Client and Tempus to exchange a specified amount of one currency for another currency at a specified Forward Foreign Exchange Rate. This currency is then sent to a recipient or Beneficiary on one or several future Delivery dates. Forward Exchange Rate the rate at which one currency will be exchanged for another that is quoted and traded today but for delivery and payment on a specific future date. Loss means in connection with this Agreement on one or more Terminated transactions: a) the USD equivalent of an amount that party reasonably determines in good faith to be its total losses and costs (or gain, in which case expressed as a negative number). b) any loss of bargain, cost of funding or loss or cost incurred as a result of that party Terminating, liquidating, obtaining or reestablishing any hedge or related trading position (or any gain resulting from any of them). c) Loss does not include a party s legal fees. A party will determine its Loss as of the date of a Termination Event or as of the earliest reasonable date after that. d) A party may (but need not) determine its Loss by reference to quotations of relevant rates or prices from one or more leading dealers in the relevant markets. Margin Account the collective amount of Collateral collected for the Client s Portfolio. 10 Please Initial Here

11 Margin Call when the Collateral Required Amount is greater by fifty percent (50%) or more than the Margin Account Balance, a Margin Call will be triggered and notification will be sent to the Client requiring additional Collateral to meet the Collateral Required Amount. Mark to Market Valuation - the rational and unbiased estimate of the potential market price of an asset or liability based on the current market price. Nominal Amount the USD or USD equivalent amount of the Forward Contract as of the Trade Date. Settled or Settlement when the Client pays Tempus for the balance of each Delivery amount or pays for the entire balance of the Forward Contract if there is only one Delivery Date. Settlement Date the date on which the Client pays Tempus the entire balance of the amount to be Delivered to the Client s Beneficiary. Terminate or Termination a party s duty to perform its obligations under this Agreement come to an end. Trade Date Is the date on which the Client and Tempus agree on entering a Forward Contract and is documented in Schedule A and the Preamble of the Agreement. 11 Please Initial Here