EXHIBIT 10.5
CUSTOMER AGREEMENT
This Customer Agreement ("Agreement") between UBS Securities LLC ("UBS-S
LLC") and [NAME OF TRADING VEHICLE] ("Customer") shall govern the purchase and
sale by UBS-S LLC of certain futures contracts, options thereon and options
contracts for the account and risk of Customer through one or more accounts
carried by UBS-S LLC on behalf and in the name of Customer (collectively, the
"Account"), as more fully described below.
1. UBS-S LLC'S AUTHORIZATION TO ACT AS BROKER
Customer authorizes UBS-S LLC, acting through employees and agents
selected by it in its sole discretion, to purchase and sell for the Account
contracts for future delivery of financial instruments, foreign currency or
precious metals and any other instruments and commodities and for option
contracts for which UBS-S LLC has notified Customer that UBS-S LLC is prepared
to execute transactions (collectively, "Contracts") within or outside the
United States of America in accordance with Customer's instructions.
2. CUSTOMER'S REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties. Customer represents and warrants as
follows:
(i) Authority. Customer has full right, power and authority to enter
into this Agreement, and the person executing this Agreement on
behalf of Customer is authorized to do so. This Agreement is binding
on Customer and enforceable against Customer in accordance with its
terms;
(ii) Lawful Agreement. Customer may lawfully establish and open the
Account for the purpose of effecting purchases and sales of
Contracts through UBS-S LLC. Transactions entered into pursuant to
this Agreement will not violate any "Applicable Law" (as defined
below) to which Customer is subject or any agreement to which
Customer is subject or a party and the execution, delivery and
performance of this Agreement by Customer require no action by or in
respect of or filing with any governmental body, agency or official;
(iii) Customer's Statements. The statements made to UBS-S LLC by
Customer regarding Customer's futures trading (including any
financial statements submitted therewith) are true and correct to
the best of Customer's knowledge;
(iv) Interest or Control of Account. If any person or entity has, or
during the term of this Agreement will have, any interest in the
Account other than Customer, Customer hereby agrees to so notify
UBS-S LLC immediately (and no later than within one business day);
and
(v) Designation. If Customer is not a citizen or resident of the
United States, Customer has been informed by UBS-S LLC of Commodity
Futures Trading Commission ("CFTC") Regulations concerning the
designation of a futures
commission merchant as the agent of foreign brokers, customers of a
foreign broker and foreign traders for certain purposes as set forth
in CFTC Regulation ss. 15.05 and concerning special calls for
information from futures commission merchants, foreign brokers and
members of contract markets as set forth in CFTC Regulation ss.
21.03.
(b) Notice of Change. Customer shall immediately (and no later than
within one business day) notify UBS-S LLC in writing if any of the
representations contained herein materially change or cease to be true and
correct.
3. APPLICABLE LAW
The Account and all transactions and agreements in respect of the Account
shall be subject to the regulations of all applicable Federal, state and
self-regulatory agencies or authorities, including but not limited to: (a) the
provisions of the Commodity Exchange Act, as amended, and any rules,
regulations, orders and interpretations promulgated thereunder by the CFTC;
(b) the constitution, by-laws, rules, regulations, orders and interpretations
of the contract market (and its clearing house, if any) on which such
transactions are executed and cleared, and any relevant registered futures
association, including, without limitation, the National Futures Association
("NFA"); and (c) custom and usage of the trade. All such provisions, rules,
regulations, orders, interpretations, constitution, by-laws, custom and usage
are hereinafter collectively referred to as "Applicable Law."
4. RELIANCE ON INSTRUCTIONS
UBS-S LLC shall be entitled to rely on any instructions, notices and
communications, whether oral or in writing, that it believes to be that of an
individual authorized to act on behalf of Customer, including, but not limited
to, any individual identified in writing by Customer as authorized to act on
its behalf, and Customer shall be bound thereby. Customer hereby waives any
defense that any such instruction was not in writing as may be required by the
Statute of Frauds or any other similar law, rule or regulation.
5. ACCEPTANCE OF ORDERS; POSITION LIMITS
(a) Acceptance of Orders. UBS-S LLC shall have the right to limit the
size of open positions (net or gross) of Customer with respect to the Account
at any time and to refuse acceptance of orders to establish new positions
(whether such refusal or limitation is required by, and whether such refusal
is based on position limits imposed under, Applicable Law). UBS-S LLC shall
immediately notify Customer of its rejection of any order. Unless specified by
Customer, UBS-S LLC may designate the exchange or other markets (including,
without limitation, GLOBEX) on which it will attempt to execute orders.
(b) Position Limits. Customer shall not, either alone or in combination
with others, violate any position or exercise limit established by or under
Applicable Law. If Customer intends at any time to exceed such position
limits, Customer shall cause to be filed an application with the CFTC or the
relevant contract market requesting authorization for Customer to exceed such
position limits and shall provide UBS-S LLC with a copy of such application
and such other information as UBS-S LLC may reasonably request with respect to
such application.
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Customer shall immediately (and no later than within one business day) notify
UBS-S LLC of any positions for which Customer is required to file reports
under Applicable Law, including any large trader reports filed with the CFTC
or any contract market. Customer shall indemnify and hold UBS-S LLC harmless
from and against all claims, damages, fines or assessments of any kind
whatsoever, including reasonable attorneys' fees in connection with the
defense thereof, made and incurred in connection with any violation by
Customer of its obligations under this Section 5(b).
6. ORIGINAL AND VARIATION MARGIN; PREMIUMS; OTHER CONTRACT OBLIGATIONS
With respect to every Contract purchased, sold or cleared for the
Account, Customer shall make, or cause to be made, all applicable original
margin, variation margin, intra-day margin and premium payments, and perform
all other obligations attendant to transactions or positions in such
Contracts, as may be required by Applicable Law or by UBS-S LLC in its sole
and absolute discretion. Requests for margin deposits and/or premium payments
may, at UBS-S LLC's election, be communicated to Customer orally,
telephonically or in writing. Margin requirements established by UBS-S LLC may
exceed the margin requirements set by any contract market or clearing
organization on which transactions are executed or cleared or caused to be
executed or cleared by UBS-S LLC or any agent thereof for Customer and may be
changed by UBS-S LLC without prior notice to Customer. Except as otherwise
provided herein, all such margin and premium payments shall be in the form, as
UBS-S LLC permits, of cash in U.S. dollars, securities of the U.S. Government,
or a combination thereof. If at any time Customer fails timely to deposit or
maintain required margin, or Customer fails timely to make any premium
payments, UBS-S LLC may at any time, without further notice to Customer, close
out Customer's open position in whole or in part and take any action it deems
appropriate.
7. SECURITY INTEREST AND RIGHTS RESPECTING COLLATERAL
All Contracts, cash, securities, and/or other property of Customer,
including all proceeds of all such property such as profits from Account
transactions (collectively, the "Collateral") now or at any future time in the
Account or otherwise held by UBS-S LLC or its affiliates, any clearing house
through which trades of the Account are executed and/or positions are held, or
any other entity authorized to act as an agent of UBS-S LLC or Customer,
hereby are pledged to UBS-S LLC and shall be subject to a general lien and
security interest in UBS-S LLC's favor to secure any indebtedness or other
amounts at any time owing from Customer to UBS-S LLC, and to secure any and
all other obligations and liabilities of Customer to UBS-S LLC (collectively,
the "Customer's Liabilities"). Customer hereby grants UBS-S LLC the right to
borrow, pledge, repledge, hypothecate, rehypothecate, loan or invest any of
the Collateral without notice to Customer, and without any obligation to pay
or to account to Customer for any interest, income or benefit that may be
derived therefrom. UBS-S LLC shall be under no obligation to deliver to
Customer the identical Collateral in the Account, but shall only be under an
obligation to deliver to Customer Collateral of like or equivalent kind and
amount. The rights of UBS-S LLC set forth above shall be qualified by any
applicable requirements for segregation of customer's property under
Applicable Law.
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8. PAYMENT OBLIGATIONS OF CUSTOMER
(a) Charges to the Account. With respect to every Contract purchased,
sold or cleared for the Account, Customer shall pay UBS-S LLC upon demand and
UBS-S LLC hereby is authorized to charge Customer's Account for: (i) all
brokerage charges, give-up fees, commissions and service fees as UBS-S LLC may
from time to time charge; (ii) all contract market, clearing house, clearing
member, NFA or CFTC fees or charges, fines or penalties; (iii) any tax imposed
on such transactions by any competent taxing authority; (iv) the amount of any
trading losses in the Account; (v) any debit balance or deficiency in the
Account; (vi) interest and service charges on any debit balances or
deficiencies in the Account, any advances or any loan (including interest on
the amount of variation margin calls, until satisfaction of such calls, when
the Customer posts U.S. Treasury Bills for original margin purposes), at the
rate customarily charged by UBS-S LLC (which may be at the prevailing and/or
allowable rates according to the laws of the State of Illinois) from the day
any such deficit was incurred to (but not including) the day of payment
(calculated on the basis of a 360 day year and for the actual number of days
elapsed for all deficits, except for those denominated in foreign currencies
for which generally accepted accounting principles require that the interest
rate shall be calculated otherwise), together with costs and reasonable
attorneys' fees incurred in collecting any such deficit; (vii) all storage and
delivery service fees; and (viii) any other amounts owed by Customer to UBS-S
LLC with respect to the Account or any transactions therein.
(b) Payment in U.S. Dollars. Any and all payment obligations of Customer,
if not deducted from Customer's Account as permitted hereunder, shall be made
upon demand in immediately available U.S. dollars to UBS-S LLC or at such
other place and at such time and in such manner as UBS-S LLC notifies
Customer. The obligation of Customer to make all payments due hereunder shall
not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment, which is expressed in or converted into any other currency other
that U.S. dollars, except to the extent that such tender or recovery shall
result in the actual receipt by UBS-S LLC of the full amount of such U.S.
dollars expressed to be payable in respect of such amounts. Customer agrees
that its obligations to make payment in U.S. dollars as aforesaid shall be
enforceable as an alternative or additional cause of action for the purpose of
recovery of the amount (if any) by which such actual receipt shall fall short
of the full amount of U.S. dollars expressed to be payable in respect of such
amount due hereunder, and shall not be affected by judgment being obtained for
other sums due hereunder.
(c) Setoff. Any Collateral may at any time or from time to time without
notice or compliance with any condition precedent (which notice hereby is
expressly waived) be setoff, appropriated and applied by UBS-S LLC against any
and all payment obligation of Customer hereunder including, but not limited
to, any deficit balance in the Account, in such manner as UBS-S LLC in its
discretion may determine.
(d) Gross-Up. All payments made by Customer to UBS-S LLC hereunder will
be made without setoff or counterclaim free and clear and without deduction or
withholding for, any present or future taxes, levies, assessments or other
charges of whatever nature, now or hereinafter imposed by any jurisdiction or
by any agency, state or other political subdivision or taxing authority
thereof or therein, and all interest, penalties, or similar liabilities with
respect thereto (collectively, "Taxes"). If any Taxes are so levied or
imposed, Customer agrees to pay
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the full amount of such Taxes, and such additional amounts as may be necessary
so that every net payment of all amounts due hereunder, after withholding or
deduction for or on account of any Taxes, will not be less than the amount
provided for herein. Customer will furnish to UBS-S LLC within thirty days
after the date the payment of any Taxes is due pursuant to Applicable Law
certified copies of tax receipts evidencing such payment by Customer.
9. DELIVERY PROCEDURES; OPTIONS ALLOCATION PROCEDURE
(a) Instructions. Customer will provide UBS-S LLC with instructions
either to liquidate Contracts previously established by Customer, make or take
delivery under any such Contracts, or exercise options entered into by
Customer, within such time limits as may be specified by UBS-S LLC. UBS-S LLC
shall have no responsibility to take any action on behalf of Customer,
including, without limitation, exercising option Contracts, unless and until
UBS-S LLC receives oral or written instructions reasonably acceptable to UBS-S
LLC indicating the action UBS-S LLC is to take. Any instructions, if given
orally to UBS-S LLC, shall immediately be confirmed in writing by Customer.
Funds sufficient to take delivery pursuant to such Contract or deliverable
grade commodities to make delivery pursuant to such Contract must be delivered
to UBS-S LLC at such time as UBS-S LLC may require in connection with any
delivery.
(b) Allocation Procedures. Short option Contracts may be subject to
exercise at any time. Exercise notices received by UBS-S LLC with respect to
option Contracts sold by Customer may be allocated to Customer pursuant to a
random allocation procedure, and Customer shall be bound by any such
allocation of exercise notices. Such notices may be allocated to Customer
after the close of trading on the day on which such notices have been
allocated to UBS-S LLC by the applicable contract market. In the event of any
allocation to Customer, unless UBS-S LLC has previously received instructions
from Customer, UBS-S LLC's sole responsibility shall be to use its best
efforts to notify Customer by telephone of such allocation at any time before
trading commences on the first day on which such option Contracts are traded
on the applicable contract market following the day on which the applicable
contract market has allocated such notices to UBS-S LLC.
(c) Failure to Provide Instructions. If Customer fails to comply with any
of the foregoing obligations, UBS-S LLC may, in its sole and absolute
discretion, liquidate any open positions, make or receive delivery of any
commodities or instruments, or exercise or allow the expiration of any
options, in such manner and on such terms as UBS-S LLC, in its sole and
absolute discretion, deems necessary or appropriate. Any such action taken
shall be in the sole and absolute discretion of UBS-S LLC and Customer shall
remain fully liable for all costs, losses, expenses, liabilities and damages
(including special, indirect and consequential damages, penalties and fines)
which UBS-S LLC may be required to pay or which it has sustained in connection
with such transactions and for any remaining debit balance in the Account.
10. EVENTS OF DEFAULT; UBS-S LLC'S REMEDIES
(a) Events of Default. As used herein, each of the following shall be
deemed an "Event of Default": (i) the commencement of a case under any
bankruptcy, insolvency or reorganization law or similar law effecting
creditors' rights of any jurisdiction, or the filing of a petition for the
appointment of a receiver by or against Customer, an assignment made by
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Customer for the benefit of creditors, an admission in writing by Customer
that it is insolvent or is unable to pay its debts when they mature, or the
suspension by the Customer of its usual business or any material portion
thereof; (ii) the issuance of any warrant or order of attachment against the
Account or the levy of a judgment against the Account; (iii) if Customer is an
employee benefit plan, the termination of Customer or the filing by Customer
of a notice of intent to terminate with the Pension Benefit Guaranty
Corporation (or other similar governmental agency or body of any
jurisdiction), or the receipt of a notice of the Pension Benefit Guaranty
Corporation's (or other similar governmental agency's or body's) intent to
terminate Customer, or the inability of Customer to pay benefits under the
relevant employee benefit plan when due; (iv) the failure by Customer to
deposit or maintain margins, to pay required premiums, or to make payments
required by Section 8 hereof and such failure is not cured within one business
day of Customer's receipt of notice of such failure from UBS-S LLC; (v) UBS-S
LLC acting in good faith in a commercially reasonable manner determines that
the Collateral in Customer's Account, regardless of current marked quotations,
is inadequate to secure the Account and Customer's obligations to UBS-S LLC
hereunder; (vi) the Account shall incur a deficit balance and such deficit
balance is not cured within one business day of customer's receipt of notice
of such deficit from UBS-S LLC; (vii) the failure by Customer to perform, in
any material respect, its obligations respecting delivery, exercise or a
notice of allocation of exercise, payment for delivery, or settlement under
Contracts held in the Account (it being understood that any failure to comply
with any Applicable Law shall be deemed material); or (viii) the failure by
Customer, in any material respect, to perform any of its other obligations
hereunder (it being understood that any failure to comply with any Applicable
Law shall be deemed material) and such material failure is not cured within
one business day of Customer's receipt of notice of such material failure from
UBS-S LLC.
(b) Remedies. Upon the occurrence of an Event of Default, UBS-S LLC shall
have the right, in addition to any other remedy available to UBS-S LLC at law
or in equity, and in addition to any other action UBS-S LLC may deem
appropriate under the circumstances, to liquidate any or all open Contracts
held in or for the Account, sell any or all of the securities or other
property of Customer held by UBS-S LLC and to apply the proceeds thereof to
any amounts owed by Customer to UBS-S LLC, borrow or buy any options,
securities, Contracts or other property for the Account and cancel any
unfilled orders for the purchase or sale of Contracts for the Account, or take
such other or further actions as UBS-S LLC, in its reasonable discretion,
deems necessary or appropriate for its protection, all without demand for
margin and without notice or advertisement. In the event UBS-S LLC's position
would not be jeopardized thereby, UBS-S LLC will make reasonable efforts under
the circumstances to notify Customer prior to taking any such action. Any such
liquidation, sale, purchase, borrowing or cancellation shall be made at the
discretion of UBS-S LLC acting in good faith in a commercially reasonable
manner on a contract market, through a clearing house, on other markets, at
public auction or by private transaction. Customer acknowledges and agrees
that a prior demand or margin call of any kind from UBS-S LLC or prior notice
from UBS-S LLC shall not be considered a waiver of UBS-S LLC's right to take
any action without notice or demand. In any transaction described above, UBS-S
LLC may sell any Collateral to itself or its affiliates or buy any Collateral
from itself or its affiliates. UBS-S LLC may, to the extent permitted by law,
purchase the whole or any part thereof free from any right of redemption. In
all cases, Customer shall remain liable for and shall pay to UBS-S LLC on
demand the amount of any deficiency in its Account resulting from any such
transaction, and Customer shall reimburse, compensate and indemnify UBS-S LLC
for
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any and all costs, losses, penalties, fines, taxes and damages which UBS-S LLC
may incur, including reasonable attorneys' fees incurred in connection with
the exercise of its remedies and the recovery of any such costs, losses,
penalties, fines, taxes and damages.
11. EXCULPATION AND INDEMNIFICATION
(a) Exculpation. Neither UBS-S LLC nor any of its managing directors,
officers, employees or affiliates shall be liable for any costs, losses,
penalties, fines, Taxes and damages sustained or incurred by Customer other
than as a result of UBS-S LLC's negligence or reckless or intentional
misconduct or breach of this Agreement. Without limiting the generality of the
foregoing, neither UBS-S LLC nor any of its managing directors, officers,
employees or affiliates shall have any responsibility or liability to Customer
hereunder for any costs, losses, penalties, fines, Taxes and damages,
including consequential, incidental or special damages, sustained or incurred
by Customer, (i) in connection with the performance or non-performance by any
contract market, clearing house, clearing firm or other third party (including
other exchange members, banks and floor brokers) to UBS-S LLC of its
obligations in respect of any Contract or other property of Customer; (ii) as
a result of any prediction, recommendation or advice made or given by a
representative of UBS-S LLC whether or not made or given at the request of
Customer; (iii) as a result of any delay in the performance or non-performance
of any of UBS-S LLC's obligations hereunder to the extent that losses arising
therefrom are, directly or indirectly, caused by the occurrence of any
contingency beyond the control of UBS-S LLC including, but not limited to, the
unscheduled closure of an exchange or contract market or delays in the
transmission of orders due to breakdowns or failures of transmission or
communication facilities, execution, and/or trading facilities or other
systems; (iv) as a result of any action taken by UBS-S LLC, its managing
directors, officers, employees, agents (including other clearing firms through
which transactions are effected on behalf of Customer) or floor brokers, to
comply with Applicable Law; or (v) for any acts or omissions of those neither
employed nor supervised by UBS-S LLC. Moreover, UBS-S LLC shall have no
responsibility for compliance by Customer with any law or regulation governing
Customer's conduct as a fiduciary, if applicable.
(b) Force Majeure and Acts of State. In the event that UBS-S LLC's
performance of any of its obligations and undertakings hereunder shall be
interrupted or delayed by any occurrence not occasioned by the conduct of
either party hereto, whether such occurrence shall be an act of God or the
common enemy or the result of war, riot, civil commotion, sovereign conduct or
other acts of State, or the act or conduct of any person or persons not party
or privy hereto, then UBS-S LLC shall be excused from performance for such
period of time as is reasonably necessary after such occurrence to remedy the
effects thereof and neither UBS-S LLC nor any of its managing directors,
officers, employees or affiliates shall be directly or indirectly responsible
for losses occasioned thereby.
(c) Indemnification. Customer agrees to indemnify and hold UBS-S LLC
harmless from and against any and all costs (including reasonable attorneys'
fees), losses, penalties, fines, taxes and damages ("Losses") incurred by
UBS-S LLC as a result of any action taken or not taken by UBS-S LLC in
reliance upon any instructions, notices and communications which UBS-S LLC
believes to be that of an individual authorized to act on behalf of Customer,
or in connection with UBS-S LLC's recovery of any such Losses, except for such
Losses which arise
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out, are based upon or related to UBS-S LLC' negligence, reckless or
intentional misconduct or breach of this Agreement. UBS-S LLC agrees to
indemnify and hold harmless Customer from and against any and all Losses which
arise out, are based upon or related to UBS-S LLC' negligence, reckless or
intentional misconduct or breach of this Agreement.
12. TERMINATION
This Agreement may be terminated at any time by Customer or UBS-S LLC by
written notice to the other; provided, however, that any such termination
shall not relieve either party of any obligations in connection with any debit
or credit balance in the Account or other liability or obligation arising or
accruing prior to such termination. In the event of such notice, Customer
shall either close out open positions in the Account or arrange for such open
positions to be transferred to another futures commission merchant. Upon
satisfaction by Customer of all of Customer's Liabilities, UBS-S LLC shall
transfer to another futures commission merchant all Contracts, if any, then
held for the Account, and shall transfer to Customer or to another futures
commission merchant, as Customer may instruct, all cash, securities and other
property held in the Account, whereupon this Agreement shall terminate.
13. LIQUIDATION OF OFFSETTING POSITIONS
UBS-S LLC shall liquidate any Contract for which an offsetting order is
entered by Customer, unless Customer instructs UBS-S LLC not to liquidate such
Contract and to maintain the offsetting Contracts as open positions; provided,
that UBS-S LLC shall not be obligated to comply with any such instructions
given by Customer if Customer fails to provide UBS-S LLC with any
representations, documentation or information reasonably requested by UBS-S
LLC or if, in UBS-S LLC's reasonable judgment, any failure to liquidate such
offsetting Contracts against each other would result in a violation of
Applicable Law.
14. REPORTS AND OBJECTIONS
(a) All confirmations, purchase and sale notices, correction notices and
account statements (collectively, "Reports") shall be submitted to Customer
and shall be conclusive and binding on Customer unless Customer notifies UBS-S
LLC of any objection thereto prior to the opening of trading on the contract
market on which such transaction occurred on the business day following the
day on which Customer receives such Report; provided, that with respect to
monthly statements, Customer may notify UBS-S LLC of any objection thereto
within five business days after receipt of such monthly statement, provided
the objection could not have been raised at the time any prior Report was
received by Customer as provided for above. Any such notice of objection, if
given orally to UBS-S LLC, shall immediately (and in no event later than
within one business day) be confirmed in writing by Customer.
(b) Customer consents to the electronic delivery of Reports via
facsimile, electronic mail, computer networks (e.g., local area networks,
commercial on-line services and SwisKey) or other electronic means agreed upon
by Customer and UBS-S LLC. Customer may revoke its consent at any time upon
reasonable notice to UBS-S LLC.
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15. FOREIGN CURRENCY TRANSACTIONS
In the event that the Customer directs UBS-S LLC to enter into any
Contract on an exchange on which such transactions are effected in a currency
other than the U.S. dollar, any profit or loss arising as a result of a
fluctuation in the exchange rate affecting such currency will be entirely for
the account and risk of the Customer. All initial and subsequent deposits for
margin purposes, and the return to the Customer of any funds, are expected to
be made in the currency of contract settlement. Should the Customer elect to
deposits funds other than the currency of settlement or instruct UBS-S LLC to
convert funds which are already on deposit in another currency, UBS-S LLC
shall debit or credit the Account of Customer at a rate of exchange determined
by UBS-S LLC in its sole discretion on the basis of the then prevailing market
rate of exchange for such foreign currency.
16. UBS-S LLC'S RESPONSIBILITY
UBS-S LLC is not acting as a fiduciary, foundation manager, commodity
pool operator, commodity trading advisor or investment adviser in respect of
any Account opened by Customer and UBS-S LLC shall have no responsibility
hereunder for compliance with any law or regulation governing the conduct of
fiduciaries, foundation managers, commodity pool operators, commodity trading
advisors or investment advisers.
17. ADVICE
All advice communicated by UBS-S LLC with respect to any Account opened
by Customer hereunder is incidental to the conduct of UBS-S LLC's business as
a futures commission merchant, does not constitute an offer to sell or the
solicitation of an offer to buy any Contract, and such advice will not serve
as the primary basis for any decision by or on behalf of Customer. UBS-S LLC
shall have no discretionary authority, power or control over any decisions
made by or on behalf of Customer in respect of the Account, regardless of
whether Customer relies on the advice of UBS-S LLC in making any such
decision. Any such advice, although based upon information from sources UBS-S
LLC believes to be reliable, may be incomplete or inaccurate, may not be
verified and may be changed without notice to Customer. UBS-S LLC makes no
representation as to the accuracy, completeness, reliability or prudence of
any such advice or information or as to the tax consequences of Customer's
futures or options trading. UBS-S LLC is a separate and independent corporate
entity, distinct from its affiliates and it shall be free to purchase and sell
Contracts for any affiliates without limitation or restriction. The
relationship between UBS-S LLC and Customer as described herein shall not
affect any provisions of credit to Customer by UBS AG or any other subsidiary
of UBS AG. Moreover, Customer acknowledges that UBS-S LLC and its managing
directors, officers, employees and affiliates may take or hold positions in,
or advise other customers concerning, contracts which are the subject of
advice from UBS-S LLC to Customer. The positions and advice of UBS-S LLC and
its managing directors, officers, employees and affiliates may be inconsistent
with or contrary to positions of, and the advice given by, UBS-S LLC to
Customer.
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18. FINANCIAL AND OTHER INFORMATION
Customer agrees to furnish appropriate financial statements to UBS-S LLC
and to inform UBS-S LLC of any material changes in the financial position of
Customer and to furnish promptly such other information concerning Customer as
UBS-S LLC reasonably requests. UBS-S LLC is authorized from time to time to
contact banks, financial institutions and credit agencies for verification of
the financial condition of Customer. Customer agrees that UBS-S LLC may, from
time to time, share with its branches, agencies and affiliates, certain
non-public information concerning Customer.
19. RECORDING
UBS-S LLC, in its sole and absolute discretion, may record, on tape or
otherwise, any telephone conversation between UBS-S LLC and Customer involving
their respective officers, agents and employees. Customer hereby agrees and
consents to such recording, with or without the use of an automatic tone
warning device, and waives any right Customer may have to object to the use or
admissibility into evidence of such recording in any legal proceeding between
Customer and UBS-S LLC or in any other proceeding to which UBS-S LLC is a
party or in which UBS -S LLC's records are subpoenaed. Customer acknowledges
that UBS-S LLC may erase such recordings after a reasonable period of time.
20. ACCOUNTS INTRODUCED BY OTHER BROKERS
If UBS-S LLC is carrying the Account of Customer as executing or clearing
broker by arrangement with another broker through whose courtesy the Account
has been introduced to UBS-S LLC, then, until receipt from Customer of written
notice to the contrary, UBS-S LLC may accept from such other broker, without
inquiry or investigation by UBS-S LLC, (i) orders for the purchase or sale in
the Account of Contracts, and (ii) any other instructions concerning the
Account. UBS-S LLC shall not be responsible or liable for any acts or
omissions of such other broker or its employees.
21. SEVERABILITY
If any provision of this Agreement is, or at any time becomes,
inconsistent with any present or future Applicable Law, and if any of these
authorities have jurisdiction over the subject matter of this Agreement, the
inconsistent provision shall be deemed superseded or modified to conform with
such law, rule or regulation but in all other respects, this Agreement shall
continue and remain in full force and effect.
22. BINDING EFFECT
This Agreement shall be binding on and inure to the benefit of the
parties and their successors. UBS-S LLC shall have the right to transfer or
assign this Agreement (and thereby the Account) to any successor entity or to
another properly registered futures commission merchant in its sole and
absolute discretion and without then obtaining the consent of Customer.
Customer hereby expressly consents to any such transfer and assignment.
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23. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties and
supersedes any prior agreements between the parties as to the subject matter
hereof. No provision of this Agreement shall in any respect be waived,
altered, modified, or amended unless such waiver, alteration, modification or
amendment is signed by the party against whom such waiver, alteration,
modification or amendment is to be enforced.
24. INSTRUCTIONS, NOTICES OR COMMUNICATIONS
(a) Except as specifically otherwise provided in this Agreement, all
instructions, notices or other communications may be oral or written. All oral
instructions, unless custom and usage of trade dictate otherwise, shall be
promptly confirmed in writing. All written instructions, notices or other
communications shall be addressed as follows:
(i) if to UBS-S LLC:
UBS Securities LLC
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Client Services Representative
(ii) if to Customer at the address as indicated on the New Account
Information Form.
(b) All instructions, notices or other communications sent, whether by
mail, telex, facsimile transmission or otherwise, shall be deemed given when
deposited in the mail, or sent by telex or facsimile transmission or other
electronic means acceptable to the recipient thereof, and deemed delivered to
Customer personally, whether actually received by Customer or not. All
instructions, notices or other communications to UBS-S LLC shall be directed
to UBS-S LLC's office at the address listed above or such other addresses as
UBS-S LLC may hereafter direct to Customer in writing.
25. RIGHTS AND REMEDIES CUMULATIVE
All rights and remedies arising under this Agreement as amended and
modified from time to time are cumulative and not exclusive of any rights or
remedies which may be available at law or otherwise.
26. NO WAIVER
No failure on the part of UBS-S LLC to exercise, and no delay in
exercising, any contractual right will operate as a waiver thereof, nor will
any single or partial exercise by UBS-S LLC of any right preclude any other or
future exercise thereof or the exercise of any other partial right.
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27. GOVERNING LAW
THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE RIGHTS,
OBLIGATIONS AND REMEDIES OF THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
PRINCIPLES OF CHOICE OF LAW.
28. CONSENT TO JURISDICTION
Any litigation between UBS-S LLC and Customer relating to this Agreement
or transactions hereunder shall take place in the Courts of the State of
Illinois located in Xxxx County or in the United States District Court for the
Northern District of Illinois, and the parties agree to submit to such
exclusive jurisdiction. Customer consents to the service of process by the
mailing to Customer of copies of such court filing by certified mail to the
address of Customer as it appears on the books and records of UBS-S LLC, such
service to be effective ten days after mailing. Customer hereby waives
irrevocably any immunity to which it might otherwise be entitled in any
arbitration, action at law, suit in equity or any other proceeding arising out
of or based on this Agreement or any transaction in connection herewith.
29. WAIVER OF JURY TRIAL
Customer hereby waives trial by jury in any action or proceeding arising
out of or relating to this Agreement or any transaction in connection
herewith.
30. ACCEPTANCE OF AGREEMENT
This Agreement shall not be deemed to be accepted by UBS-S LLC or become
a binding contract between Customer and UBS-S LLC until approved by a duly
authorized officer of UBS-S LLC in writing.
31. CUSTOMER ACKNOWLEDGEMENTS
(a) CUSTOMER HEREBY ACKNOWLEDGES THAT IT HAS RECEIVED AND UNDERSTANDS THE
FOLLOWING DISCLOSURE STATEMENTS FURNISHED HEREWITH (check where applicable):
( ) Risk Disclosure Statement for Futures and Options
(b) (The following must be completed by Customers who will engage in
transactions for hedging purposes only.) Customer has indicated on the New
Account Information Form that the Account is for hedging purposes. Customer
represents that it is familiar with CFTC and exchange laws, rules,
regulations, and advisories concerning hedging. Unless Customer specifically
notifies UBS-S LLC to the contrary in writing with respect to any transaction,
all transactions effected for the Account will be bona fide hedging
transactions as described in Section 4a of the Commodity Exchange Act, as
amended, and Rule 1.3(z) promulgated thereunder (a copy of which may be
obtained from UBS-S LLC upon request). As such, in accordance with CFTC Rule
190.06, Customer may specify whether, in the unlikely event of UBS-S LLC's
bankruptcy, Customer prefers that the trustee liquidate open commodity
contracts
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in the Account without seeking Customer's instructions. Accordingly, in the
event of UBS-S LLC's bankruptcy, the trustee should (check one of the
following):
( ) Attempt to contact Customer for instructions regarding the disposition
of open contracts in the Account.
( ) Liquidate open commodity contracts without seeking Customer's
instructions.
This instruction may be changed at any time by written notice sent to UBS-S
LLC.
32. SERIES DISCLAIMER.
The parties hereto acknowledge and agree that the Customer is a Delaware
limited liability company and is a separate series of World Monitor Trust III,
a Delaware statutory trust (the " Trust"), and that the Trust is organized in
series pursuant to Sections 3804(a) and 3806(b)(2) of the Delaware Statutory
Trust Act. As such, the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to each series of the Trust
shall be enforceable against the assets of such series of the Trust only, and
not against the assets of the Trust generally or the assets of any other
series of the Trust or against the Trustee of the Trust. There may be several
series of the Trust created pursuant to the Declaration of Trust and Trust
Agreement of the Trust.
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IN WITNESS WHEREOF, Customer has executed this Agreement on the date
indicated below.
[NAME OF TRADING VEHICLE]
By: Preferred Investment Solutions Corp., its sole managing owner
By:________________________________
Xxxxxx X. Xxxxxxx
Chief Operating Officer and Senior
Executive Vice President
("Customer")
ACCEPTED BY UBS SECURITIES LLC
By:_____________________ ______________________ _____________________
Print Name and Title Signature Date
By:_____________________ ______________________ _____________________
Print Name and Title Signature Date
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CONSENT TO TRANSFER FUNDS
The undersigned acknowledges that UBS-S LLC may, until it receives a
written notice of revocation with respect thereto, in its sole and absolute
discretion and without prior notice to the undersigned, transfer any funds,
securities, commodities, Contracts or other property from any account
maintained by the undersigned to any other account of the undersigned
maintained by UBS-S LLC or any of its affiliates. UBS-S LLC will promptly
confirm in writing each transfer of funds, securities, commodities, Contracts
or other property pursuant hereto. UBS-S LLC shall not be liable for making or
failing to make any transfer authorized hereby.
Signature: _________________________ Signature:
Date: ______________________________ Date:
Name & Title - Please Print ________ Name & Title - Please Print
____________________________________
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CROSS TRADE CONSENT
The undersigned consents to transactions whereby UBS-S LLC, its officers,
directors, employees or subsidiaries or other customers of UBS-S LLC or of the
servicing floor broker may be from time to time on the opposite side of orders
for physicals or for purchase or sale of futures contracts and option
contracts placed for the undersigned's Account in conformity with regulations
of the Commodity Futures Trading Commission and the by-laws, rules and
regulations of the contract market (and its clearing house, if any) on which
such order is executed.
Signature: _________________________ Signature:
Date: ______________________________ Date:
Name & Title - Please Print ________ Name & Title - Please Print
____________________________________
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POWER OF ATTORNEY LIMITED TO PURCHASES AND SALES OF FUTURES CONTRACTS
The undersigned hereby authorizes [NAME OF ADVISOR], L.P. (the "Advisor") as
his/her agent and attorney to buy, sell and trade in commodities and/or
futures contracts and options thereon, in accordance with UBS SECURITIES LLC
("UBS-S LLC") terms and conditions for the undersigned's account and risk and
in the undersigned's name through UBS-S LLC as brokers. The undersigned hereby
agrees to indemnify and hold UBS-S LLC harmless from and to pay UBS-S LLC
promptly on demand any and all losses arising therefrom or debit balance due
thereon. The undersigned confirms it has received a copy of Advisor's
Disclosure Document. If not, the undersigned has attached a written
explanation of the reason(s) therefor.
In all such purchases, sales or trades UBS-S LLC is authorized to follow the
instructions of the Advisor in every respect concerning the undersigned's
account with UBS-S LLC; and the Advisor is authorized to act for the
undersigned and on the undersigned's behalf in the same manner and with the
same force and effect as the undersigned might or could do with respect to
such purchases, sales or trades as well as with respect to all other things
necessary or incidental to the furtherance or conduct of such purchases, sales
or trades. The undersigned understands that UBS-S LLC is in no way responsible
for any loss to the undersigned occasioned by the actions of the Advisor and
that UBS-S LLC does not, by implication or otherwise, endorse the operating
methods of the Advisor. The undersigned hereby ratifies and confirms any and
all transactions with UBS-S LLC heretofore or hereafter made by the Advisor
for the undersigned's account.
This authorization and indemnity is in addition to (and in no way limits or
restricts) any rights which UBS-S LLC may have under any other agreement or
agreements between the undersigned and UBS-S LLC. This authorization and
indemnity is a continuing one and shall remain in full force and effect until
revoked by the undersigned by a written notice addressed to UBS-S LLC but such
revocation shall not affect any liability in any resulting transaction
initiated prior to such revocation. This authorization and indemnity shall
inure to the benefit of UBS-S LLC and any successors or assigns.
[NAME OF TRADING VEHICLE]
By: Preferred Investment Solutions Corp, as sole managing owner
By:___________________________
Xxxxxx X. Xxxxxxx
Chief Operating Officer and Senior
Executive Vice President
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____________________________________
____________________________________
____________________________________
____________________________________
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ACCOUNT TRANSFER FORM
____________________________
Date
____________________________________
Current Broker Name
____________________________________
Address
____________________________________
City, State Zip Code
Attn: Account Transfers
Dear Sir:
Please be advised that I (we) wish to transfer all open positions and/or
equity in account number(s) _______________________________________________
maintained at your firm to UBS SECURITIES LLC, 000 Xxxxxxxxxx Xxxx, Xxxxxxxx,
XX 00000 effective on the close of business on ___________________________ .
You are hereby directed to immediately transfer all open positions in the
account(s) and to issue a check representing the net available cash to UBS
SECURITIES LLC In addition, all securities, certificates, warehouse receipts,
etc. are to be transferred immediately.
Please contact UBS SECURITIES LLC's account transfer department at (203)
719-5178 with any questions.
INDIVIDUAL OR JOINT ACCOUNTS PARTNERSHIP ACCOUNTS
____________________________________ ________________________________________
Signature of Customer Signature of General Partner
____________________________________ ________________________________________
Printed Name Printed Name
____________________________________ ________________________________________
Signature of Customer Signature of General Partner
____________________________________ ________________________________________
Printed Name Printed Name
____________________________________ ________________________________________
CORPORATE ACCOUNTS TRUST ACCOUNTS
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____________________________________ ________________________________________
Account Name Account Name
____________________________________ ________________________________________
Signature of Authorized Officer Signature of Trustee
____________________________________ ________________________________________
Printed Name Printed Name
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