pm - iapps.courts.state.ny.us
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Message
From: Jason Silverstein [[email protected]]
Sent: 6/8/2017 9:13:41 PM
To: Stuart Hoegner [[email protected]]; ; John Betts
CC: 'Philip G.Potter'
[[email protected]]; 'GiancarloBitfinex'
; Michelle Weber [[email protected]]
Subject: RE: Bitfinex Pool Agreement
Thank you Stuart. Are both Bifinex and able to sign via Docusign?
From: Stuart Hoegner [mailto:[email protected]]
Sent: Thursday, June 8, 2017 4:00 PM
To: ; John Betts <[email protected]>
Cc: Jason Silverstein <[email protected]>; 'Philip G.Potter'
<[email protected]>; 'GiancarloBitfinex'
; Michelle Weber
Subject: RE: Bitfinex Pool Agreement
Bitfinex is fine with this.
BITFINEXStuart Hoegnce
General Counsel
T +1 416 545 0001
W ww3yAitfinexcon1
From:
Sent: Thursday, .June 08, 2017 12:33 PM
To: John Betts
Cc: Jason Silverstein; Philip G. Potter; Giancarlo Bitfinex; Stuart Hoegner; ; ;
Michelle Weber
Subject: RE: Bitfinex Pool Agreement
All,
Attached find the two agreements with revisions. Most material is reducing the IMAC from $1M to $0.
Thanks,
FOlL CONFIDENTIAL TREATMENT REQUESTED BFX-THR_NYAG0036324
FILED: NEW YORK COUNTY CLERK 07/08/2019 08:39 PM INDEX NO. 450545/2019
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/08/2019
From: John Betts [mailto:[email protected]: Thursday, June 08, 2017 11:02 AMTo:
Cc: Jason Silverstein <[email protected]>; Philip G. Potter <[email protected]>; Giancarlo Bitfinex
<[email protected]>; Stuart Hoegner <[email protected]>; ;
; ; Michelle Weber
Subject: Re: Bitfinex Pool Agreement
Correct - as in this instance it is just one, one-way transaction.
You can change this on demand on a per transaction basis, e.g. "Please reserve $1m for Y qualityXBT"
then
"Please settle $1m for YXBT"
after the XBT was delivered.
Best regards,JB
On Jun 8, 2017, at 10:00 AM, wrote:
All,
I am going through the agreements and making revisions. However, off the top, it is
understanding that it will not maintain a balance in the Collateral Account. Therefore, the
IMAC should be $0, as it is for Bitfinex.
ls this the shared understanding of Noble & Bitfinex'?
Thanks,
<.image002.png>
New York. NY 10011
From: Jason Silverstein [nlaij.to.;jason sijverstejn r oblegrp.com]Sent: Thursday, June 08, 2017 8:54 AMTo: 'Philip
POTTER'<[email protected]>; 'Giancarlo Bitfinex'
<[email protected]>; Stuart Hoegner
<s);[email protected];>m> ;
Cc: John Betts <johr noblegrp com>; Michelle Weber <rnjche e [email protected]>
Subject: Bitfinex Pool Agreement
FOlL CONFIDENTIAL TREATMENT REQUESTED BFX-THR_NYAG0036325
FILED: NEW YORK COUNTY CLERK 07/08/2019 08:39 PM INDEX NO. 450545/2019
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/08/2019
All - Attached please find the draft Bitfinex Pool Agreement and Annex for your review. Please
do not hesitate to reach out with any questions.
Jason Silverstein
Noble <image001.jpg> | [email protected] | c: (201) 248-1273
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or you. This message is not a solicitation
for an order, and there is not enough information contained in this message in which to make an
investment decision and any information contained herein should not be used as a basis for this purpose.
does not produce in
house research, make recommendations to purchase or sell specific securities, provide investment advisory service
s, or conduct a general retail business.
This message is intended only for the addressee. Please notify sender by e mail if you are not the
intended recipient. If you are not the intended recipient, you may not copy, disclose, or distribute this
message or its contents to any other person and any such actions may be unlawful.
Inc. (Member FINRA/SIPC, MSRB Registered) does
not accept time sensitive, action oriented messages or transaction orders,
including orders to purchase or sell securities, via e-mail.
reserves the right to monitor and review the content of all messages sent to or from this e-
mail address. Messages sent to or from this e mail address may be stored on the
mail system and archived in accordance with FINRA and SEC regulations.
This message is intended for those with an in
depth understanding of the high risk and illiquid nature of alternative assets and these assets may not be suit
able for you. This message is not a solicitation
for an order, and there is not enough information contained in this message in which to make an
investment decision and any information contained herein should not be used as a basis for this
purpose. does not produce in
house research, make recommendations to purchase or sell specific securities, provide investment advisory se
rvices, or conduct a general retail business.
FOIL CONFIDENTIAL TREATMENT REQUESTED BFX-THR_NYAG0036326
FILED: NEW YORK COUNTY CLERK 07/08/2019 08:39 PM INDEX NO. 450545/2019
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/08/2019
FILED: NEW YORK COUNTY CLERK 07/08/2019 08:39 PM INDEX NO. 450545/2019
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 07/08/2019
2NOBLENoble FX Sponsored Pool Agreement
Name of Pool: Noble Bitfinex Trade Finance Pool
Version: 1.0
Last Modified: June 7 , 2017
Sponsor: Noble Bank International
CRYPOTCURRENCY SPONSORED POOL AGREEMENT made as of June 7, 2017 (this
"Agreement"), by Noble Bank International LLC("Noble"
or, the "Sponsor") and Participants subscribing
to this agreement (each, a "Counterparty"). The Counterparties are
and BFXNA Inc. d/b/a Bitfinex.com ("Bitfinex"). Capitalized terms used and not defined
herein shall have the same meaning as set forth in the Terms of Service and Noble FX Service Agreement
(as defined below).
WHEREAS, each of the Sponsor and the Counterparty (as a Client) have entered into the Noble
Terms of Service (the "Terrns of Service") and Noble FX Service Agreement (the "Service Agreement")
with Nobie and any supplements, appendices and addendums thereto, whereby the Sponsor will utilize
Noble's electronic platform that provides Services to Counterparties that have executed spot foreign
exchange transactions (the "Services"); and
WHEREAS, the Counterparties wish to use the Service for purposes of the settlement of the US
Dollar side of cryptocurrency transactions conducted by with Bitfinex (the "Purpose").
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound, the Sponsor, and the Counterparty
(together, the "parties") hereby agree as follows:
1. The Parties agree that each Counterparty's Noble FX Service Agreement shall apply to and be
used for the Purpose, mutatis mutandis.
2. Pool Name
The Pool Name is Noble Bitfinex Trade Finance Pool (the "Sponsored Pool").
3. Amendments
Sponsor reserves the right to make changes or modifications to this Agreement, from time to time, in its
sole discretion. If Sponsor makes changes to this Agreement, Sponsor shall provide Counterparty with 5
businessdays'
prior notice of such changes by providing the amended Agreement to the Counterparty.
Such changes will become effective and binding on Counterparty at the completion of such period. An
amendment may be made effective immediately if Noble has a good-faith belief that the amendment is
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FOIL CONFIDENTIAL TREATMENT REQUESTED BFX-THR_NYAG0036313
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required in order to comply with the requirements of applicable laws and regulations, or in the event of
unforeseen or emergency circumstances. If Counterparty does not agree to the Agreement, it must
discontinue its participation in the Sponsored Pool.
4. Pool Eligibility
The Sponsor will not admit new counterparties to the Sponsored Pool absent the prior written consent
of and Bitfinex.
Any new Counterparties will sign the annex attached hereto accepting the Sponsored Pool terms prior
to joining the Sponsored Pool.
The Sponsor may remove a Counterparty from the Sponsored Pool at any time for the next value date
session. In order to remove a Counterparty from the Sponsored Pool, the Sponsor must notify the
Counterparty electronically.
5. Pool Terms for Transactions
Where purchases cryptocurrency from Bitfinex, is the "BuyingParty"
and Bitfinex is the
"Selling Party".
Where sells cryptocurrency to Bitfinex, Bitfinex is the "BuyingParty"
and is the "Selling
Party".
6. Settlement-Trade Finance Workflow
All settlements will be executed on a bilateral basis between the Counterparties of the Pool.
Settlernents of the cash side of the transactions will be made in United States Dollars ("USD") and will
occur via the Noble Service. Settlement of cryptocurrency side of the transactions will occur via the
standard Bitfinex processes.
6.1 Trade Finance Workflow (TBD)
Counterparties will establish sufficient Collateral in their Sponsored Pool Collateral Account to cover
their potential obligations for each bi-lateral Settlement Obligation performed under this agreement.
Counterparties will agree, on a bilateral basis, the amount of Collateral required by each Counterparty
to cover Settlement (if Buying Party) and Settlement Default (if Selling Party). The initial minimum
amount of Collateral (the "IMAC") to be posted by each Counterparty shall be agreed by the
Counterparties and communicated to Noble. The IMAC may be changed by the Counterparties at any
time, upon joint written agreement and notice to Noble.
Such Collateral may be used only to satisfy the relevant Counterparty's obligations hereunder (including
to pay Noble's fees). Noble shall provide each Counterparty with real-time view-only access to the other
Counterparty's Collateral balance. Absent the prior written consent of the non-withdrawing
Counterparty, neither Counterparty may withdraw Collateral without Noble having given the other
Counterparty at least one businessdays'
prior written notice of the amount of Collateral requested to
be withdrawn.
Even once a withdrawal notice has been given, Noble will reserve Collateral from the Buying Party in
favor of the Selling Party that will be held until the Settlement Obligations have been paid, or agreed in
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FOlL CONFIDENTIAL TREATMENT REQUESTED BFX-THR_NYAG0036314
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writing to be released by both parties, including for any transaction notified to Noble by the Selling Party
that has not been confirmed by the Buying Party.
Once both Counterparties have provided evidence of external settlement of the cryptocurrency side of
the transaction to Noble, both Counterparties have agreed to this evidence, and the evidence has been
deemed acceptable by Noble (the foregoing being the "Confirmed External Settlement"), Noble will
transfer the Collateral from the Buying Party to the Selling Party. Evidence can include a settlement
confirmation or invoice. It is Noble's practice to transfer Collateral for same-day settlement so long as
the underlying transaction is confirmed by 5:00 p.m. Eastern time.
For long sales of cryptocurrencies, the external settlement shall be deemed to occur upon the
blockchain having been updated to reflect the transfer of the cryptocurrency in question. For short
sales of cryptocurrencies, the external settlement shall be deemed to occur upon delivery by the selling
party of the cryptocurrency to cover the short sale or short sales and the blockchain having been
updated to reflect the transfer of such cryptocurrency.
In the event of the Selling Party failing to deliver the externally settled transaction, the Buying Party will
be entitled to the Fail To Deliver Value. The Fail To Deliver Value shall be the termination and
replacement value (that is, the cost of actually covering the failure to deliver in the market) as agreed by
the Counterparties.
6.2 First Funding Requirements
Collateral in the Counterparty's Collateral Account entitled for the Sponsored Pool will be the source of
funding for the Settlement Obligation. If the Counterparty's Collateral Account entitled for the
Sponsored Pool does not fully satisfy the Settlement Obligation, the Counterparty will be in an Event of
Default.
6.2.1 Third Party FundingIn the case of a credit arrangement with a Third Party, the letter of credit or Loan designated by the
Third Party to the Counterparty's Collateral Account will be an additional source of funds to satisfy the
remaining Settlement Obligation, per the credit terms established between the Third Party and
Counterparty.
6.2.2 Event of Default Charges
Counterparty will be charged interest for the duration of the Assets owed to Counterparty until 9:30 AMEST the following day. After 9:30 AM EST, additional fees will incur until 9:30 AM EST on the second day.
If the Settlement Obligation is still not satisfied, the Counterparty will be considered in default, and
Counterparty will separately address the default without the involvement of Noble. Any remainingCollateral in a Collateral Account will be held by Noble until the Settlement Obligation is satisfied.
Once the Settlement Obligation is satisfied, both parties will confirm to Noble that the debt has been
paid in full and Noble will adjust the designated Collateral Account of the Counterparty and the
Counterparty Account of the Counterparty to reflect that the Settlement Obligation has been satisfied.
63 Use of Assets
As indicated above, Assets held in the Counterparty's Collateral Account entitled for the Sponsored Pool
may be used only in connection with Transactions that are included in the Sponsored Pool. For all
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Confirmed External Settlements during the same trading day, the cash payment obligations of one
Counterparty to the other Counterparty and vice versa shall be netted against each other and only the
net cash settlement amount in favor of one Counterparty or the other shall be moved. Assets in excess
of the IMAC may be used for purposes of securing or settling Transactions outside of the Sponsored Pool
if there is excess Collateral available in a Counterparty's Collateral Account entitled for the Sponsored
Pool. The Counterparties may agree to amend the IMAC in writing from time to time.
7. Risk Management
7.1 Settlement Default
Counterparties must maintain sufficient Collateral in their respective Sponsored Pool Accounts to cover
transactions performed under this agreement.
7.2 Currency Pairs
[INTENTIONALLY DELETED]
7.3 Sponsored Pool Account Requir=ents
[INTENTIONALLY DELETED]
7.4 Risk Management Alerts
In addition to providing each Counterparty with real-time view-only access to the other Counterparty's
Collateral, the Sponsor and the Counterparties will be notified electronically when risk management
events occur. Risk Managernent Events include, but are not limited to, the ratio of Settlement
Obligations to Collateral increasing above a specified threshold, to be determined by Sponsor and
Counterparties from time to time. The Sponsor and the Counterparties can request electronically Alert
thresholds to be communicated electronically.
The Counterparties will have the opportunity to increase their Collateral in the Sponsored Pool Account
intra-day if risk management levels are, or are anticipated to be, exceeded. The Counterparty mayincrease the amount of available Collateral, which would allow the resumption of normal transaction
reporting. The Counterparty may also enter into risk-reducing transactions to release Collateral, which
would also allow resumption of normal transaction reporting.
7.5 Defaults
The Sponsor and Counterparty are solely responsible for any determination regarding the occurrence of
an Event of Default and any resulting termination and close-out of transactions on the Noble System.
Noble will determine the amount of the Settlement Obligations owed by or owed to the Sponsor
(regardless of whether the Sponsor is the defaulting or non-defaulting party) with respect to each
Counterparty. Aside from the determination of the Settlernent Obligation and Transfers of Collateral,Noble will not be involved in the substantive resolution of an Event of Default.
In the event of any conflict between the Service Agreement and any executed agreement between the
Sponsor and the Counterparty governing the actions to be taken upon the occurrence of an Event of
Default, the Service Agreement shall control and govern.
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FOlL CONFIDENTIAL TREATMENT REQUESTED BFX-THR_NYAG0036316
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8. Complaints, Disputes or Appeals
8.1 Noble Contact Details
All complaints and disputes should be directed to the Head of Transaction Operations at
+1-877-373-4402 or [email protected].
All complaints, disputes or appeals will be resolved by Noble within 24 hours and wilt be treated as final,
subject to either Counterparty's right thereafter to resolve the dispute in a court of competent
jurisdiction.
9. Choice of Law and Jurisdiction
This Agreement is governed by and shall be interpreted in accordance with the laws of the
Commonwealth of Puerto Rico, notwithstanding any Puerto Rico or other choice-of-law rule to the
contrary. But, for the convenience of the parties, any and all disputes hereunder shall be resolved
exclusively in state or federal courts within the State of New York in the Borough of Manhattan and the
parties hereby accept the existence of personal jurisdiction over them in such jurisdiction and agree not
to assert that any such court in the Borough of Manhattan is an inconvenient forum.
10. Entire Agreement
This Agreement constitutes the entire agreement and understanding of the parties. Each of the parties
acknowledges and agrees that in entering into this Agreement it does not rely on any pre-contractual
representation and/or statement whether in writing or in words.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be
an original, but all such separate counterparts shall together constitute one and the same instrument.
11. NOTICES.
11.1 Any notices to be given to Noble, will be sent to [email protected]. Copies of
notices may also be sent to Noble at: 270 Luis Munoz Rivera
11.2 Any notices to be given to will be sent t - a}.
Copies of notices may also be sent to at:
Not H ght
Formatted: Superscript, Not Highlight11.3 Any notices to be given to Bitfinex, will be sent to [email protected]. Copies of
Formatted: Not Highlightnotices may also be sent to Bitfinex at:
13/F, 1308 Bank of America Tower, 12 Harcourt Road, Central, Hong Kong
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Any written notice must be sent via email if a valid email address has been provided for
notices (any party may update its email and physical address for notices via the provision of
written notice). Any such notice will be treated as given on receipt if properly addressed and
no automated notice of non-delivery is received within one hours.
12. Conflict
To the extent that any provision of this Agreement conflicts or is inconsistent with the terms of the
Service Agreement or the Terms of Service, this Agreement shall control and govern.
[Signature pages follow]
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FOlL CONFIDENTIAL TREATMENT REQUESTED BFX-THR_NYAG0036318
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IN WITNESS WHEREOF the parties hereto have signed this Agreement as of the date first written
above.
SIGNED by
Pool Authorization
By NOBLE BANK INTERNATIONAL LLC:
By:
Authorized Signer: John Betts
Title: Chief Executive officer
Venuon20 Mi2ni2017
FOlL CONFIDENTIAL TREATMENT REQUESTED BFX-THR_NYAG0036319
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IN WITNESS WHEREOF the parties hereto have signed this Agreement as of the date first writtenabove.
SIGNED by
By:
Name of Authorized Signer:
Title:
BFXNA INC.
Name of Authorized Signer:
Title:
Vemon2G Mi2ni2017
FOlL CONFIDENTIAL TREATMENT REQUESTED BFX-THR_NYAG0036320
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