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Terms and Conditions
DEFINITIONS AND INTERPRETATIONS
Access Code means the combination of a password and an Account Number to gain access to JMB’s Electronic Trading Services in respect of the relevant Account.
Account has the meaning ascribed to it in Clause 5.8
Account Number means, in respect of the Account, a serial number assigned by JMB as the single and unique number associated with such Account, as applicable.
Account Opening Form means the account opening form which has been executed by each Party.
Act of Insolvency has the meaning ascribed to it in Clause 12.3.
Automatic Exchange of Financial Account Information (AEOI) means one or more of the following, as the context requires:
- FATCA;
- the OECD Standard for Automatic Exchange of Financial Account Information in Tax Matters – the Common Reporting Standard and any associated guidance;
- any inter-governmental agreement, treaty, regulation, guidance, standard or any other arrangement between any other jurisdiction (including between any government bodies in each relevant jurisdiction), entered into to facilitate, implement, comply with or supplement the legislation, regulations, guidance or standards described in (i) and (ii) above;
- any legislation, regulations or guidance implemented in the country to give effect to the matters outlined above.
AEOI Exempt Party has the meaning ascribed to it in Clause 19.2 (Provision of Information).
Affiliate means, in relation to JMB, any entity controlled, directly or indirectly, by JMB, any entity that controls, directly or indirectly, JMB or any entity directly or indirectly under common control with JMB. For this purpose, "control" of any entity or person means ownership of a majority of the voting power of the entity or person.
Authorised Representative has the meaning specified in Clause 5.8 (The Account).
Business Day means a day on which commercial banks are open for general business (including dealings in FX and foreign currency deposits) in the country , provided that, for the purpose of Clause 13.1 (Offset and Rollover) only, "Business Day" shall include any Saturday on which commercial banks are open for general business (including dealings in FX and foreign currency deposits) in the country .
Affiliate means, in relation to JMB, any entity controlled, directly or indirectly, by JMB, any entity that controls, directly or indirectly, JMB or any entity directly or indirectly under common control with JMB. For this purpose, "control" of any entity or person means ownership of a majority of the voting power of the entity or person.
Authorised Representative has the meaning specified in Clause 5.8 (The Account)
Business Day means a day on which commercial banks are open for general business (including dealings in FX and foreign currency deposits) in the country , provided that, for the purpose of Clause 13.1 (Offset and Rollover) only, "Business Day" shall include any Saturday on which commercial banks are open for general business (including dealings in FX and foreign currency deposits) in the country .
Close-out Amount means, with respect to one or more Terminated FX Transactions, the amount of JMB’s losses or costs (expressed as a positive number) or gains (expressed as a negative number) that are or would be incurred or realized by JMB under then prevailing circumstances to replace, or to provide the economic equivalent of the material terms of the Terminated FX Transactions that remain to be performed, including payments, provided that:
a. Any Close-out Amount will be determined by JMB in good faith using commercially reasonable procedures to produce a commercially reasonable result. Each Close-out Amount will be determined by JMB as of the Early Termination Date, or as of the date(s) following the Early Termination Date as would, in JMB’s sole opinion, be commercially reasonable.
b. In determining a Close-out Amount, JMB may consider any relevant information including quotations (firm or indicative) for replacement transactions supplied by third parties regularly engaged in similar transactions, market data or internal information. JMB may include, without duplication, costs of funding, and any reasonable loss or cost incurred in connection with JMB’s terminating or re-establishing any hedge related to the Terminated FX Transaction(s) (or any resulting gain);
c. Commercially reasonable procedures may include application of pricing or other valuation models used for transactions with unrelated parties, and application of different valuation methods to Terminated FX Transaction(s) depending on the type, size, complexity or number of such transactions; and
d. Unpaid Amounts and expenses referred to in Clause 23 (Fees and Expenses) will be excluded in determinations of Close-out Amounts.
a. Any Close-out Amount will be determined by JMB in good faith using commercially reasonable procedures to produce a commercially reasonable result. Each Close-out Amount will be determined by JMB as of the Early Termination Date, or as of the date(s) following the Early Termination Date as would, in JMB’s sole opinion, be commercially reasonable.
b. In determining a Close-out Amount, JMB may consider any relevant information including quotations (firm or indicative) for replacement transactions supplied by third parties regularly engaged in similar transactions, market data or internal information. JMB may include, without duplication, costs of funding, and any reasonable loss or cost incurred in connection with JMB’s terminating or re-establishing any hedge related to the Terminated FX Transaction(s) (or any resulting gain);
c. Commercially reasonable procedures may include application of pricing or other valuation models used for transactions with unrelated parties, and application of different valuation methods to Terminated FX Transaction(s) depending on the type, size, complexity or number of such transactions; and
d. Unpaid Amounts and expenses referred to in Clause 23 (Fees and Expenses) will be excluded in determinations of Close-out Amounts.
Close-out Notice has the meaning ascribed to it in Clause 9.1 (Early Termination)
Confirmation has the meaning ascribed to it in Clause 2.3
Currency means money denominated in the lawful currency of any country or territory.
Deposit means the amount standing to the credit of each Account from time to time.
Default Rate means a rate per annum equal to the cost (without proof or evidence of any actual cost) to JMB (as certified by it) if it were to fund or of funding the relevant amount plus 8% per annum.
Early Termination Amount has the meaning specified in Clause 10.2(ii) (Payments on Early Termination).
Early Termination Date means the Partial Termination Date and the Full Termination Date, as applicable.
Electronic Trading Service or ETS means the software, systems and other facilities, including, but not limited to, any JMB trading platform, telephone, facsimile, electronic mail and other devices provided by JMB under the Agreement, which enables the Client to give electronic Instructions to buy or sell certain foreign Currencies and to obtain information services provided by JMB.
Event of Default has the meaning specified in Clause 12 (Events of Default).
Exchangemeans the Stock Exchange of the country .
Full Terminated Transactions has the meaning ascribed to it in Clause 9.2 (No Further Payments).
Full Termination Date means the date as specified by JMB in the Close-out Notice to be the date on which all outstanding FX Transactions shall be terminated in accordance with Clause 9 (Total Close-out).
FX Transaction has the meaning ascribed to it in Clause 2.1.
JMB Group means JMB and its Affiliates.
Initial Margin means the minimum amount required to be deposited by the Client into the Account prior to its entry into any FX Transaction, as calculated by JMB in its sole discretion.
Insolvency Official means a trustee, receiver, liquidator, conservator, administrator, judicial manager, custodian or other similar official.
Instruction has the meaning ascribed to it in Clause 5.8 (The Account).
Leveraged FX Transaction means each FX Transaction identified by JMB as a leveraged FX transaction for the purpose of this Agreement.
Liabilities means all of the Client's debts, liabilities and obligations, whether present or future, actual or contingent (in each case whether alone or jointly, or jointly and severally, with another person, and whether as principal debtor, guarantor, surety or otherwise, or, where the Clients are more than one natural person, then only debts, liabilities and obligations due, owing or incurred by all of the Clients jointly), to JMB or any other member of the JMB Group, plus any costs and expenses (including legal fees) which JMB or such member(s) of the JMB Group may incur in enforcing or maintaining any of their rights, whether under the Agreement or in relation to any FX Transaction, transaction, agreement or otherwise including, without limitation:
a. Any debit balance on any one or more Accounts (including but not limited to debit balances arising from a failure to settle any FX Transaction); and
b. All costs, charges and expenses incurred by JMB in perfecting or enforcing or attempting to enforce its rights under the Agreement.
a. Any debit balance on any one or more Accounts (including but not limited to debit balances arising from a failure to settle any FX Transaction); and
b. All costs, charges and expenses incurred by JMB in perfecting or enforcing or attempting to enforce its rights under the Agreement.
Margin means the Initial Margin and any further margin requested by JMB and deposited by the Client into the Account from time to time in accordance with Clause 6 (Margin).
Margin Notice means each request or notice given by JMB to the Client requiring such Client to provide Margin in accordance with Clause 6 (Margin).
NDF Transaction means a transaction between the Parties for the payment of an amount calculated by reference to the difference between the contracted forward rate and the prevailing spot rate determined on an agreed future date, with such amount being cash-settled in the relevant Transaction Currency.
Nominees means the persons whose names and addresses are supplied to the JMB for Association
Partial Close-out Notice has the meaning ascribed to it in Clause 8.1 (Partial Close-out Notice).
Partial Terminated Transaction has the meaning ascribed to it in Clause 8.1 (Partial Close-out Notice).
Partial Termination Date means the date specified by JMB in a Partial Close-out Notice to be the date on which the relevant outstanding FX Transaction(s) shall be terminated in accordance with Clause 8 (Partial Close-out).
Party means each of JMB or the Client, as applicable.
PIN means in respect of an Account, the personal identification number used by the Client to access such Account, as a security measure, to identify and verify the identity of an authorised individual(s) giving Instructions.
Potential Event of Default means any event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
Security has the meaning ascribed to it in Clause 14.2 (Ranking).
Security Margin has the meaning ascribed to it in Clause 14.1 (First Fixed Charge).
SFC means the Securities and Futures Commission.
SFO means the Securities and Futures Ordinance (Cap 571).
Tax includes any present or future tax, levy, duty or assessment of any nature (including interest and penalties) imposed by any taxing authority other than stamp, registration, documentation or similar tax.
Terminated FX Transaction means each of the Partial Terminated Transactions and Full Terminated Transactions, as applicable, subject to an early termination in accordance with Clause 8.1 (Partial Close-out Notice) or Clause 9.1 (Early Termination).
Termination Currency means United States dollars or another freely transferable Currency specified by JMB.
Termination Currency Equivalent means, in respect of an amount denominated in the Termination Currency, such Termination Currency amount and, in respect of an amount denominated in another Currency ("Other Currency"), the amount in the Termination Currency required (as determined by JMB) to purchase such amount of such Other Currency on the relevant date at JMB’s spot exchange rate (as determined by JMB in its sole and absolute discretion) for the purchase of such Other Currency with the Termination Currency.
Trading Hour means such trading hour(s) as notified by JMB to the Client from time to time, as determined by JMB in its sole and absolute discretion.
Transaction Currency has the meaning ascribed to it in Clause 5.7 (Payment Currency).
Unpaid Amounts owing to a Party means, with respect to an Early Termination Date, as determined by JMB in a commercially reasonable manner, the aggregate of (i) in respect of all relevant Terminated FX Transactions, the amounts that became payable (or would have become payable but for the non-fulfilment of conditions precedent set out in Clause 5.1 (Conditions Precedent)) to such Party on or prior to such Early Termination Date and which remain unpaid as at such Early Termination Date; and (ii) without double counting, any Early Termination Amount due pursuant to a Partial Close-out Notice but unpaid, in each case together with interest from (and including) the original due date to (but excluding) such Early Termination Date
INTERPRETATIONS
The headings are for reference only and do not affect the interpretation of this Clien Agreement. Unless the context otherwise requires, "including" is not a word of limitation; "person" includes bodies corporate or unincorporated; one gender includes all genders; and words importing the singular include the plural and vice versa.
References to "Client" shall mean
a. if only one Client's name is set out on the signature page of the Account Opening Form, such Client, and
b. if two or more Clients' names are set out on the signature page of the Account Opening Form, each of such Clients, acting severally for himself and on behalf of each other Client signing such Account Opening Form, and references to the "Client" in this case shall include each of such Clients, unless otherwise specified in this Client Agreement.
c. Each Event of Default shall, upon its occurrence, be deemed continuing unless and until otherwise waived by JMB.
a. if only one Client's name is set out on the signature page of the Account Opening Form, such Client, and
b. if two or more Clients' names are set out on the signature page of the Account Opening Form, each of such Clients, acting severally for himself and on behalf of each other Client signing such Account Opening Form, and references to the "Client" in this case shall include each of such Clients, unless otherwise specified in this Client Agreement.
c. Each Event of Default shall, upon its occurrence, be deemed continuing unless and until otherwise waived by JMB.
PURPOSE AND STRUCTURE
JMB is licensed to carry on a business in Type 3 (leveraged foreign exchange trading). This Client Agreement sets out the terms and conditions applicable to all FX transactions which are Leveraged FX Transactions, spots, forwards, swaps or NDF Transactions, in each case linked to one or more Currencies, between JMB and the Client (each an "FX Transaction" and together, the "FX Transactions").
JMB is entering into this Agreement, including each FX Transaction, as principal and not as agent of any person or entity.
An FX Transaction is a transaction agreed between JMB and the Client, in any form, including orally. Upon agreement to an FX Transaction, the Parties shall be irrevocably and legally bound by the FX Transaction and JMB will issue a confirmation or daily statement specifying and evidencing the specific terms of the FX Transaction (the "Confirmation"), and will send such Confirmation to the Client in accordance with Clause 24 (Communication). A failure by JMB to issue a Confirmation shall not prejudice or invalidate the terms of any FX Transaction. To the extent that any FX Transactions involve derivative products, JMB shall upon request provide product specifications and any prospectus or offering documents covering such derivative products.
The Client shall promptly review each Confirmation sent by JMB and, if the Client is of the view that any particular Confirmation does not reflect the Client's understanding of the relevant FX Transaction, the Client shall notify JMB immediately in writing upon receipt of the Confirmation and in any event no later than one Business Day after the date on which the Client receives the Confirmation. If the Client does not receive a Confirmation within two Business Days after the date on which the FX Transaction has been entered into, the Client must promptly notify JMB. If JMB does not receive any such notification within these time limits, the Confirmation, absent manifest error, shall be binding on both JMB and the Client.
In the event of inconsistency or discrepancy, the terms of a Confirmation for the purpose of the relevant FX Transaction will prevail over the terms of this Client Agreement, unless otherwise specified in such Confirmation.
Where two or more Clients' names are set out on the signature page of the Account Opening Form, each Client shall be a joint tenant with right of survivorship. Each Client’s liabilities and obligations shall be joint and several. In the event of death of either or any Client, the entire interest in any account opened on the Client’s behalf shall be vested in the survivor or survivors on the same terms and conditions. Each Client shall have authority without notice to the other(s) to exercise all his rights, powers and discretions hereunder and generally to deal with JMB as if each of them alone were the holder of the relevant Account. JMB may follow the Instruction of any of them concerning each Account and shall not be obliged to inquire into or see the application of any monies as between the joint accountholders.
JMB may act upon any Instruction it reasonably believes to be from the Client or one of the Client's Authorised Representatives, and shall not be under any obligation to verify the authenticity of such person or such Instruction. JMB may decline to act on any Instruction if JMB doubts the authenticity of the Instruction or JMB reasonably believes it to be ambiguous or conflicting. JMB shall not be liable for any loss that may be incurred by any Client as a result of JMB declining to act on any such Instruction or JMB acting on any unauthorised Instruction which JMB reasonably believes to be genuine. Each Client shall indemnify and reimburse JMB for all costs, claims, damages, losses and expenses of reasonable amount which JMB may reasonably incur as a result of JMB declining to act or acting on any Instruction.
Each of the Client's Authorised Representatives shall severally have full authority to act for the Client in all respects, including entering into any FX Transactions on the Client's behalf, making or receiving payments, and giving any Instructions (written and oral) on the Client's behalf to JMB , unless and until JMB has received a notice in writing that such authorisation has been revoked or ceased to have effect.
If JMB solicits the sale of or recommends any financial product to the Client the financial product must be reasonably suitable for the Client, having regard to the Client's financial situation, investment experience and investment objectives. No other provision of this Client Agreement or any other document JMB may ask the Client to sign and no statement JMB may ask the Client to make derogates from this Clause. "Financial product" means any securities, futures contracts or FX contracts as defined under the SFO
Order Cancellations: The Client may amend or cancel the Client's Instructions that have been previously transmitted. The Client agrees that JMB is not obligated to accept such amendment or cancellation. Instructions may only be amended or cancelled prior to the execution. The Client shall accept full responsibilities for the transactions, partial or full, executed prior to the processing of the Client's amendment and/or cancellation request.
No Guarantee of Executions: The Client acknowledges the fact that extraordinary events/technical difficulties may prevent or otherwise hinder the execution of the Client's Instructions. The Client agrees that JMB will not be liable for any loss, actual or projected, resulted, directly or indirectly, from government actions, price variations, exchange/market restrictions, equipment, communication and systems failure and breakdowns, unauthorised access or trade Instructions, and other physical and technical restraints and conditions beyond JMB's control. JMB shall not be liable for losses arising from the default of any agent or any other party used by JMB under this Agreement.
Quoting Errors: Should quoting and/or execution errors occur, which may include, but are not limited to, a dealer's mistype of a quote, a quote or trade which is not representative of fair market prices, an erroneous price quote from a trader, such as but not limited to an erroneous quote due to failure of hardware, software or communication lines or systems and/or inaccurate external data feeds provided by third-party vendors, JMB will not be liable for the resulting errors in account balances. In addition, orders must be placed allowing sufficient time to execute, as well as, sufficient time for the system to calculate necessary margin requirements. The execution of orders placed too close to prices, which would trigger other orders (regardless of order type) or a margin call, cannot be guaranteed. JMB will not be liable for the resulting margin call, resulting balance, and/or positions in the account due to the system not having been allowed sufficient time to execute and/or calculate accordingly. The foregoing list is not meant to be exhaustive and in the event of a quoting or execution error, JMB reserves the right to make the necessary corrections or adjustments on the account involved. Any dispute arising from such quoting or execution errors will be resolved by JMB in its sole and absolute discretion. The Client agrees to indemnify and hold JMB harmless from all damages or liability as a result of the foregoing.
SCOPE
On the coming into effect of this Client Agreement, all FX Transactions then outstanding, or which may be entered into thereafter, between the Parties, are deemed to be FX Transactions governed by this Client Agreement and any confirmation or other confirming evidence of an FX Transaction (including, without limitation, by way of SWIFT) is deemed to be a Confirmation under and forming part of the Agreement (as defined below).
SINGLE AGREEMENT
All FX Transactions are entered into on the condition that this Client Agreement, together with all Confirmations, documents and other confirming evidence form one single agreement between the Parties (collectively referred to as the "Agreement"). The Parties acknowledge that all FX Transactions are entered into in reliance upon such fact, it being understood that the Parties would not otherwise enter into any FX Transaction.
PAYMENT
Conditions Precedent
Unless otherwise waived by JMB, JMB's obligations under Clause 5.2 (Manner) below are subject to the condition precedent that:
a. No Event of Default or Potential Event of Default with respect to the Client has occurred and is continuing;
b. No Early Termination Date has been effectively designated by JMB in respect of one or more FX Transactions; and
c. any other condition as may be specified in the Agreement to be a condition precedent for the purposes of this Clause 5.1 (Conditions Precedent)
Unless otherwise waived by JMB, JMB's obligations under Clause 5.2 (Manner) below are subject to the condition precedent that:
a. No Event of Default or Potential Event of Default with respect to the Client has occurred and is continuing;
b. No Early Termination Date has been effectively designated by JMB in respect of one or more FX Transactions; and
c. any other condition as may be specified in the Agreement to be a condition precedent for the purposes of this Clause 5.1 (Conditions Precedent)
Manner
a. Each Party will make each payment specified in each Confirmation to be made by it, subject to the provisions of the Agreement.
b. Payments under the Agreement will be made on the due date for value on that date in the place of the account specified in the relevant Confirmation or otherwise pursuant to the Agreement. Payments will be made in freely transferable and cleared funds and in the manner customary for payments in the relevant Currency and, in case of payments by the Client to JMB, in accordance with JMB's instructions.
a. Each Party will make each payment specified in each Confirmation to be made by it, subject to the provisions of the Agreement.
b. Payments under the Agreement will be made on the due date for value on that date in the place of the account specified in the relevant Confirmation or otherwise pursuant to the Agreement. Payments will be made in freely transferable and cleared funds and in the manner customary for payments in the relevant Currency and, in case of payments by the Client to JMB, in accordance with JMB's instructions.
Withholding and Gross-Up
All payments by the Client in respect of any FX Transaction under the Agreement will be made without deduction or withholding for or on account of any Tax unless required by applicable law. If the Client is required to deduct or withhold, the Client will:
a. Promptly notify JMB;
b. Promptly pay to the relevant authority the full amount required to be deducted or withheld upon determining that such deduction or withholding is required and send JMB an official receipt (or a certified true copy) and all such other documentation reasonably accepted by JMB as evidence of such payment; and;
Pay to JMB, in addition to the payment to which JMB is otherwise entitled under the Agreement, an additional amount to ensure that the net amount actually received by JMB (free and clear of Taxes) equals the full amount JMB would have received had no deduction or withholding been required.
All payments by the Client in respect of any FX Transaction under the Agreement will be made without deduction or withholding for or on account of any Tax unless required by applicable law. If the Client is required to deduct or withhold, the Client will:
a. Promptly notify JMB;
b. Promptly pay to the relevant authority the full amount required to be deducted or withheld upon determining that such deduction or withholding is required and send JMB an official receipt (or a certified true copy) and all such other documentation reasonably accepted by JMB as evidence of such payment; and;
Pay to JMB, in addition to the payment to which JMB is otherwise entitled under the Agreement, an additional amount to ensure that the net amount actually received by JMB (free and clear of Taxes) equals the full amount JMB would have received had no deduction or withholding been required.
If JMB is required, pursuant to the AEOI or otherwise by law, to withhold or deduct any AEOI withholding taxes (including any penalties or interest payable in connection with any failure to pay or any delay in paying any such taxes) on any payments to the Client, JMB may deduct such taxes and JMB will not be required to increase any payment in respect of which JMB makes such withholding. The Client shall be treated for all purposes of the Agreement as if the Client had received the full amount of the payment, without any deduction or withholding. The Client shall provide JMB with additional documentation reasonably requested by JMB to determine the amount to deduct and withhold from such payment. If the Client fails to provide JMB with such documentation in accordance with JMB's request, JMB may determine the amount to be deducted or withheld in its reasonable discretion and shall not be liable for any loss incurred to the Client as a result of such determination.
Payment Netting
If on any date amounts in respect of one or more FX Transactions would otherwise be payable in the same Currency by one Party to the other, then, on such date, each Party’s obligation to make payment of any such amount will be automatically satisfied and discharged and, 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, replaced by an obligation upon the Party by which the larger aggregate amount would have been payable to pay to the other Party the excess of the larger aggregate amount over the smaller aggregate amount.
If on any date amounts in respect of one or more FX Transactions would otherwise be payable in the same Currency by one Party to the other, then, on such date, each Party’s obligation to make payment of any such amount will be automatically satisfied and discharged and, 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, replaced by an obligation upon the Party by which the larger aggregate amount would have been payable to pay to the other Party the excess of the larger aggregate amount over the smaller aggregate amount.
Set-off
a. Unless expressly provided otherwise in the Agreement, all sums payable by the Client under the Agreement shall be paid in full without set-off or counterclaim or any restriction or condition.
b. The Client irrevocably and unconditionally authorises JMB to apply any amounts (in whatever Currency) standing to the credit of the Account and/or any other account(s) in the Client's name with JMB or with any of JMB's Affiliates in reduction of any amounts (whether matured or contingent) payable by the Client under the Agreement
c. In addition to any right of set-off, offset, combination of accounts, lien, right of retention or withholding or similar right JMB may have under the Agreement or by law, JMB may, without prior notice to the Client or any other person, set off any sum or obligation (whether or not arising under the Agreement, whether matured or contingent and irrespective of the Currency, place of payment or booking office of the sum or obligation) owed by the Client to JMB or any Affiliate of JMB against any sum or obligation (whether or not arising under the Agreement, whether matured or contingent and irrespective of the Currency, place of payment or booking office of the sum or obligation) owed by JMB or any Affiliate of JMB to the Client.
d. For the purpose of paragraph (iii) above, any relevant sum or obligation may be converted by JMB into the Currency in which another is denominated at the rate of exchange determined by JMB.
e. If an obligation is contingent or unascertained, JMB may in good faith estimate the amount of that obligation and set-off in respect of such estimated amount.
f.This Clause 5.5 (Set-off) shall not constitute or create a charge or other security interest.
a. Unless expressly provided otherwise in the Agreement, all sums payable by the Client under the Agreement shall be paid in full without set-off or counterclaim or any restriction or condition.
b. The Client irrevocably and unconditionally authorises JMB to apply any amounts (in whatever Currency) standing to the credit of the Account and/or any other account(s) in the Client's name with JMB or with any of JMB's Affiliates in reduction of any amounts (whether matured or contingent) payable by the Client under the Agreement
c. In addition to any right of set-off, offset, combination of accounts, lien, right of retention or withholding or similar right JMB may have under the Agreement or by law, JMB may, without prior notice to the Client or any other person, set off any sum or obligation (whether or not arising under the Agreement, whether matured or contingent and irrespective of the Currency, place of payment or booking office of the sum or obligation) owed by the Client to JMB or any Affiliate of JMB against any sum or obligation (whether or not arising under the Agreement, whether matured or contingent and irrespective of the Currency, place of payment or booking office of the sum or obligation) owed by JMB or any Affiliate of JMB to the Client.
d. For the purpose of paragraph (iii) above, any relevant sum or obligation may be converted by JMB into the Currency in which another is denominated at the rate of exchange determined by JMB.
e. If an obligation is contingent or unascertained, JMB may in good faith estimate the amount of that obligation and set-off in respect of such estimated amount.
f.This Clause 5.5 (Set-off) shall not constitute or create a charge or other security interest.
Interest and Compensation
a. If the Client fails to make any payment under the Agreement when due, the Client will, to the fullest extent permitted by law, pay to JMB interest (before and after judgment) on such unpaid amount, from (and including) the due date to (but excluding) the date of actual payment, at the Default Rate, as determined by JMB.
b. Interest under this Clause 5.6 (Interest and Compensation) will be calculated by JMB on the basis of daily compounding and the actual number of days elapsed.
a. If the Client fails to make any payment under the Agreement when due, the Client will, to the fullest extent permitted by law, pay to JMB interest (before and after judgment) on such unpaid amount, from (and including) the due date to (but excluding) the date of actual payment, at the Default Rate, as determined by JMB.
b. Interest under this Clause 5.6 (Interest and Compensation) will be calculated by JMB on the basis of daily compounding and the actual number of days elapsed.
Payment Currency
Each payment under the Agreement or any FX Transaction by the Client to JMB will be made in the Currency in which such payment is to be made as specified by JMB (the "Transaction Currency"). If for any reason the amount received by JMB (converted to the Transaction Currency at a rate determined by JMB in a commercially reasonable manner) falls short of the amount in the Transaction Currency payable to JMB, the Client will, to the extent permitted by applicable law, immediately pay such additional amount in the Transaction Currency (calculated by JMB) necessary to make good the shortfall, to the satisfaction of JMB.
To the extent permitted by applicable law, if any judgment or order expressed in a Currency other than the Currency of liability is rendered in JMB's favour (i) for the payment of any amount owing under the Agreement or (ii) for the payment of any amount relating to any early termination of any FX Transaction in accordance with the Agreement or (iii) in respect of a judgment or order of another court for the payment of any amount described in section (i) and/or (ii) above, JMB shall, after recovery in full of the aggregate amount to which JMB is entitled pursuant to the judgment or order, be entitled to receive immediately from the Client the amount of any shortfall of the Currency of liability converted into the Currency of the judgment or order for the purposes of such judgment or order at the rate of exchange determined by JMB. The term "rate of exchange" includes, without limitation, any premiums and costs of exchange payable in connection with the purchase of or conversion into the relevant Currency.
Each payment under the Agreement or any FX Transaction by the Client to JMB will be made in the Currency in which such payment is to be made as specified by JMB (the "Transaction Currency"). If for any reason the amount received by JMB (converted to the Transaction Currency at a rate determined by JMB in a commercially reasonable manner) falls short of the amount in the Transaction Currency payable to JMB, the Client will, to the extent permitted by applicable law, immediately pay such additional amount in the Transaction Currency (calculated by JMB) necessary to make good the shortfall, to the satisfaction of JMB.
To the extent permitted by applicable law, if any judgment or order expressed in a Currency other than the Currency of liability is rendered in JMB's favour (i) for the payment of any amount owing under the Agreement or (ii) for the payment of any amount relating to any early termination of any FX Transaction in accordance with the Agreement or (iii) in respect of a judgment or order of another court for the payment of any amount described in section (i) and/or (ii) above, JMB shall, after recovery in full of the aggregate amount to which JMB is entitled pursuant to the judgment or order, be entitled to receive immediately from the Client the amount of any shortfall of the Currency of liability converted into the Currency of the judgment or order for the purposes of such judgment or order at the rate of exchange determined by JMB. The term "rate of exchange" includes, without limitation, any premiums and costs of exchange payable in connection with the purchase of or conversion into the relevant Currency.
The Client will open and maintain with JMB a multi-currency account (the "Account") which will serve as the trading account for the trading and settlement of the FX Transactions. The Account is non-interest bearing, provided that if in respect of any day, the interest rate applicable to a Currency (such Currency, a "Negative Rate Currency") of the Account in respect of such day (as determined by JMB in its sole and absolute discretion) is a negative figure, the Client shall pay the absolute value of the interest amount (the "Client Interest Amount") equal to the product of (i) the interest rate; and (ii) the amount denominated in such Negative Rate Currency and deposited in the Account in respect of such day, in each case, as determined by JMB in its sole and absolute discretion. Without prejudice to any other provisions, the Client irrevocably and unconditionally authorises JMB to apply, on each day on which the interest rate is negative, any amounts (in whatever Currency and converted into the Negative Rate Currency at JMB's spot exchange rate determined by JMB in its sole and absolute discretion) standing to the credit of the Account and/or any other account(s) in the Client's name with JMB or with any of JMB's Affiliates in reduction of the relevant Client Interest Amount payable by the Client under the Agreement.
The authorised signatories of the Account will be the Client and the Client's authorised representatives (each an "Authorised Representative"). In this regard, the Client shall deliver to JMB:
a. where the Client is a company, a certified true extract of its directors' resolutions in writing or minutes of the meeting of the board of directors of the Client; and
b. where the Client is an individual, a valid power of attorney, an accurate and truthful identification of and personal information about any designated Authorised Representative, together with any other document and information (including without limitation the name and address of the Authorised Representative) that JMB may reasonably require, which, in each case, authorises and appoints such person to give Instructions by telephone, fax or email or any other method as may be agreed by the Parties (each an "Instruction") and to execute any other document on behalf of the Client as JMB may request from time to time in order to facilitate JMB carrying out the Instructions of the Client. For the avoidance of doubt, no employee or representative of JMB may accept appointment as such Authorised Representative.
a. where the Client is a company, a certified true extract of its directors' resolutions in writing or minutes of the meeting of the board of directors of the Client; and
b. where the Client is an individual, a valid power of attorney, an accurate and truthful identification of and personal information about any designated Authorised Representative, together with any other document and information (including without limitation the name and address of the Authorised Representative) that JMB may reasonably require, which, in each case, authorises and appoints such person to give Instructions by telephone, fax or email or any other method as may be agreed by the Parties (each an "Instruction") and to execute any other document on behalf of the Client as JMB may request from time to time in order to facilitate JMB carrying out the Instructions of the Client. For the avoidance of doubt, no employee or representative of JMB may accept appointment as such Authorised Representative.
The Client agrees and acknowledges that, all cash amounts (including, without limitation, any cash amount provided by the Client for trading and settlement purposes in accordance with this Clause 5.8 or as Margin in accordance with Clause 6 (Margin) below) standing to the credit of the Account (the "Client Amount"), together with any other cash amounts (together with the Client Amount, the "Custody Amount") provided by other clients of JMB (together with the Client, the "Beneficiary Clients"), will be deposited in an omnibus account opened by JMB as trustee for the Beneficiary Clients with an account bank selected by JMB in its sole and absolute discretion (the "Custodian Bank"). The Client agrees and acknowledges that, if the Custodian Bank becomes insolvent or is unable to pay its debts or admits in writing its inability generally to pay its debts as they become due and JMB is unable to recover the Custody Amount (or any part thereof) from the Custodian Bank, JMB shall not be liable to make up any such shortfall to the Client and shall not be liable for any loss, cost or expenses whatsoever of the Client in the event that the Custodian Bank fails to repay any Custody Amount in full to JMB . The Client acknowledges and understands that in this case, the Client will only recover from the amount (if any) actually received by JMB from the Custodian Bank on a pro rata basis with all other Beneficiary Clients and such amount recovered may be substantially less than what the Client has provided to JMB in accordance with this Agreement and may be zero.
Safeguard of Password, PIN and Account Number
For the protection of the integrity of the Account, the Client shall create a password and a PIN in order to have access to each Account. The Client acknowledges, represents and warrants that the Client is the sole and exclusive owner and authorised user of such password and PIN. The Client accepts full responsibility for monitoring and safeguarding the integrity and security of the Client’s password, PIN and the Account Number. The Client shall immediately notify JMB in writing if the Client becomes aware of any loss, theft or unauthorised use of the Client’s password, PIN or the Account. JMB shall not be liable for any loss or damage (consequential or otherwise) in connection with such loss, theft or unauthorised use whatsoever.
For the protection of the integrity of the Account, the Client shall create a password and a PIN in order to have access to each Account. The Client acknowledges, represents and warrants that the Client is the sole and exclusive owner and authorised user of such password and PIN. The Client accepts full responsibility for monitoring and safeguarding the integrity and security of the Client’s password, PIN and the Account Number. The Client shall immediately notify JMB in writing if the Client becomes aware of any loss, theft or unauthorised use of the Client’s password, PIN or the Account. JMB shall not be liable for any loss or damage (consequential or otherwise) in connection with such loss, theft or unauthorised use whatsoever.
MARGIN
The Client agrees that all amounts standing to the credit of the Account shall be deemed Margin provided by the Client for the purpose of performing its obligations under the Agreement and shall be provided in accordance with this Clause 6 (Margin) and other terms and conditions signed or accepted by or on behalf of the Client that apply to or govern the credit / margin requirements, interest charges, margin calls and the circumstances under which the Client's positions may be closed without the Client's consent.
JMB shall provide the Client with a statement in accordance with relevant requirements under the Securities and Futures (Contract Notes, Statements of Account and Receipts) Rules, specifying, amongst other things, its calculation of the marked-to-market value of all outstanding FX Transactions as of the immediately preceding Business Day, and any additional Margin that the Client is required to pay to JMB in accordance with Clause 6.3 (Undertaking to Pay Margin) below. The calculation of the marked-to-market value of any FX Transaction shall be calculated by JMB in accordance with the reference prices provided by liquidity providers of JMB or as determined by JMB in a commercially reasonable manner.
Undertaking to Pay Margin
In respect of each FX Transaction under which the Client may incur a Liability to JMB :
a. the Client shall deposit an amount equal to the Initial Margin prior to entering into any FX Transaction with JMB ; and
b. the Client shall deposit additional cash in specified Currency into the Account as Margin in accordance with each Margin Notice received from JMB , the amount of which shall be calculated in whatever manner JMB may determine in its absolute discretion.
In respect of each FX Transaction under which the Client may incur a Liability to JMB :
a. the Client shall deposit an amount equal to the Initial Margin prior to entering into any FX Transaction with JMB ; and
b. the Client shall deposit additional cash in specified Currency into the Account as Margin in accordance with each Margin Notice received from JMB , the amount of which shall be calculated in whatever manner JMB may determine in its absolute discretion.
Holding of Margin: Subject to the Securities and Futures (Client Money) Rules, JMB will hold all Margin on trust for the following beneficiaries in the following order of priority:
a. for JMB to the extent of all sums due or which may become due to JMB under or pursuant to the Agreement; and
b. for the Client to the extent of any surplus which remains following payment of all those sums due from the Client to JMB under the Agreement, subject to any right of set- off (or any other similar rights) in accordance with Clause 5.5 (Set-off)
a. for JMB to the extent of all sums due or which may become due to JMB under or pursuant to the Agreement; and
b. for the Client to the extent of any surplus which remains following payment of all those sums due from the Client to JMB under the Agreement, subject to any right of set- off (or any other similar rights) in accordance with Clause 5.5 (Set-off)
Failure to Meet Margin Calls: Margin will be due for payment by the time and date specified in the Margin Notice and may require payment by close of business on the same day. If the Client fails to meet any margin calls when due, such failure will constitute an Event of Default and JMB will be entitled to exercise any of its rights set out in the Agreement.
POWERS TO CLOSE OUT
Upon the occurrence of an Event of Default, without prejudice to any other rights under the Agreement or under any FX Transaction, contract or law, JMB may, without prior reference to the Client, take any and all actions that JMB considers to be necessary or desirable in the circumstances, including, but not limited to the following:
a. to terminate one or more FX Transactions pursuant to Clause 8 (Partial Close-out); or;
b. to terminate all FX Transactions pursuant to Clause 9 (Total Close-out); and/or;
c. to close out, replace or reverse any FX Transaction, buy, sell, borrow or lend, or enter into any other transaction or take, or refrain from 7.3 to close out, replace or reverse any FX Transaction, buy, sell, borrow or lend, or enter into any other transaction or take, or refrain from taking, such other action as JMB , in its absolute discretion, considers necessary or appropriate to cover, reduce or eliminate any loss or liability it may suffer or incur as a result of such Event of Default.
a. to terminate one or more FX Transactions pursuant to Clause 8 (Partial Close-out); or;
b. to terminate all FX Transactions pursuant to Clause 9 (Total Close-out); and/or;
c. to close out, replace or reverse any FX Transaction, buy, sell, borrow or lend, or enter into any other transaction or take, or refrain from 7.3 to close out, replace or reverse any FX Transaction, buy, sell, borrow or lend, or enter into any other transaction or take, or refrain from taking, such other action as JMB , in its absolute discretion, considers necessary or appropriate to cover, reduce or eliminate any loss or liability it may suffer or incur as a result of such Event of Default.
JMB Group means JMB and its Affiliates.
JMB Group means JMB and its Affiliates.