XXXXXX XXXXXXX
COMMODITY CUSTOMER'S AGREEMENT
Gentlemen:
In consideration of the acceptance by Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx") of one or more accounts of the undersigned (the "Customer"), whether
designated by name, number or otherwise, for the purchase or sale of
commodities, commodity futures, option or forward contracts or any other
commodity-related instrument, the Customer agrees as follows:
A. REPRESENTATIONS OF THE CUSTOMER.
1. RISKS OF COMMODITY TRADING. In entering into this Agreement with Xxxxxx
Xxxxxxx, the Customer understands that commodity trading is a ighly
speculative activity; that prices arc subject to sharp upward and downward
movements; that price fluctuations may result in losses which may
substantially exceed the capital in the Customer's account; and that on
trading days on which a commodity reaches its permissible exchange price
limit, trading may cease, which could lock the Customer into positions
resulting in substantial losses. The Customer further understands that in
commodity transactions executed on an exchange on which foreign currency is
used, any profit or loss resulting from such transactions may be affected by
fluctuations in the exchange rate for such currency, and that any profit or
loss arising as a result of fluctuations in the exchange rate for such
currency will be entirely for the account and risk of the Customer. The
Customer is willing and able, financially and otherwise, to assume the risks
of commodity trading. The Customer recognizes that guarantees of profit or
freedom from loss are impossible of performance in commodity trading,
acknowledges that he has received no such guarantees from Xxxxxx Xxxxxxx or
from any of its representatives, and has not entered into this Agreement and
will place to orders hereunder in consideration of or in reliance upon any
such guarantees or similar representations. The Customer shall not hold
Xxxxxx Xxxxxxx responsible for any losses sustained by the Customer as a
result of any prediction, recommendation or advice made or given by a
representative of Xxxxxx Xxxxxxx, whether or not made or given at the request
of the Customer. The Customer understands that Xxxxxx Xxxxxxx may, without
notice to the Customer, exercise various remedies, including liquidation of
positions in the Customer's accounts, pursuant to Section D of this Agreement
upon the Customer's failure to maintain adequate margin or upon the
occurrence of any other Event of Default as described in paragraph 4 of
Section D of this Agreement.
2. AUTHORITY OF CUSTOMER. Except as disclosed in writing to Xxxxxx Xxxxxxx prior
to delivery hereof, the Customer is not: (a) a general partner, officer,
director, owner of more than ten percent of the equity interest, associated
person or employee of a futures commission merchant or an introducing broker,
or a relative or spouse of any of the foregoing persons, or any relative of
such spouse, who shares the same home as any of the foregoing persons; nor
(b) a member of any exchange or an employee of any exchange or clearing
house, company in which an exchange owns a majority of the capital stock,
bank- trust company, insurance company, or any person, Firm or entity engaged
in the business of dealing, either as broker or principal, in commodity
futures, physicals, forward or option contracts, documents of title relating
to commodities, securities, bills of exchange, acceptances or other forms of
commercial paper, or the spouse of such a member or employee, nor is the
Customer individually so engaged. In the event that the Customer (or the
Customer's spouse) becomes so employed or engaged the Customer will promptly
notify Xxxxxx Xxxxxxx in writing of such employment or engagement. If the
Customer is a corporation or a partnership, it is duly organized and in good
standing under the laws of the jurisdiction in which it was formed. If the
Customer is a corporation, partnership or other entity, the Customer
represents and warrants that it has full power and authority to enter into
this Agreement and to engage in the transactions contemplated hereby, and
that such transactions do not and will not violate any rules or regulations
of any regulatory body to which the Customer is subject. The address at the
foot of this Agreement is the actual address of the Customer and the Customer
will promptly notify Xxxxxx Xxxxxxx by registered mail of any change in that
address.
3. CUSTOMER IS PRINCIPAL. Except as disclosed in writing to Xxxxxx Xxxxxxx prior
to or accompanying delivery hereof, the Customer is acting as principal and
not as agent for any parry, and no person, firm or entity other than the
Customer has any interest in the commodity accounts of the Customer with
Xxxxxx Xxxxxxx. The Customer will give written notice to Xxxxxx Xxxxxxx
before granting to any person. firm or entity any interest in any commodity
account of the Customer with Xxxxxx Xxxxxxx or undertaking to act as agent
for any other parry with respect to such accounts.
4. DELIVERY OF ACTUAL COMMODITY INTENDED. All orders for the purchase or sale of
any commodity for immediate or deterred delivery are given and executed with
the understanding that the Customer intends, in the case of purchases. to
receive delivery of and pay for the physical commodity and, in the case of
sales, to deliver and receive payment for the physical commodity.
B. DEFINITIONS.
1. AFFILIATE. "Affiliate" includes any corporation, partnership or venture
which, directly or indirectly, controls, is controlled by, or is under
common control with Xxxxxx Xxxxxxx or any of the foregoing corporations.
partnerships or ventures.
2. COLLATERAL. "Collateral" means ail funds, commodities, securities and any
other property of the Customer at any time held in any account or otherwise
by or for Xxxxxx Xxxxxxx or any Affiliate and all proceeds thereof. Any
property in transit to or set apart for Xxxxxx Xxxxxxx or any Affiliate is
deemed held by Xxxxxx Xxxxxxx or such Affiliate for the purposes hereof.
3. LIABILITY. "Liability" includes all now existing or hereafter arising
obligations of any kind whatsoever of the Customer or any entity for the
obligations of which the Customer is liable, to Xxxxxx Xxxxxxx or any
Affiliate or to others to the extent of the interest of Xxxxxx Xxxxxxx or
any Affiliate therein, whether absolute, contingent, joint and/or several,
secured or unsecured, due or not due, contractual or tortious, arising by
operation of law or otherwise-, liquidated, unliquidated, direct or
indirect.
C. TERMS OF TRANSACTIONS.
1. APPLICABLE RULES AND TERMS. Transactions with or on behalf of a Customer
are subject to:
(a) the terms hereof, the terms and conditions of Xxxxxx Xxxxxxx'x
confirmation thereof and any other terms and conditions agreed to in
writing by the Customer and Xxxxxx Xxxxxxx;
(b) any applicable laws. rules, regulations or orders of any authority of
the United States government, any political subdivision thereof, and
any other governmental authority having jurisdiction over a
transaction, except to the extent that die provisions thereof have
been waived by (a);
(c) the rules, orders, resolutions, regulations and interpretations of any
organized commodity exchange on which a transaction is executed (and
of its clearing house, if any), in respect of such transaction, except
to the extent that the provisions thereof have been waived by (a) or
are inconsistent with (b);
(d) the rules, orders, resolutions and regulations of any registered
futures association having jurisdiction over a transaction, in respect
of such transaction, except to the extent that the provisions thereof
have been waived by (a) or are inconsistent with (b) or (c); and
(e) customary practice in the trade, except to the extent inconsistent
with (a), (b), (c) or (d).
Xxxxxx Xxxxxxx, its officers, directors, employees and agents shall not be
liable to the Customer as a result of any action taken by Xxxxxx Xxxxxxx, its
officers, directors, employees and agents which is necessary to comply with any
such law, rule, regulation, order, resolution or customary practice.
2. MARGIN. The Customer shall provide to and maintain with Xxxxxx Xxxxxxx
margin in such amounts and form as Xxxxxx Xxxxxxx, in its sole discretion,
may from time to time require. Margin requirements may be changed from time
to time for open as well as for new positions. The margin required of the
Customer by Xxxxxx Xxxxxxx in respect of a particular position may exceed
the margin required of Xxxxxx Xxxxxxx by the commodity exchange on which
that position is to be or has been established or by such exchange's
clearing house, if any. If Xxxxxx Xxxxxxx determines that additional margin
is required, the Customer agrees to transfer such additional margin,
immediately upon demand, to such bank account as Xxxxxx Xxxxxxx may
designate; provided, however, that Xxxxxx Xxxxxxx shall have no obligation
to notify the Customer of any insufficiency of margin in any of the
Customer's accounts prior to exercising the rights provided to Xxxxxx
Xxxxxxx under Section D of this Agreement. Xxxxxx Xxxxxxx shall have the
right but not the obligation to lend funds to the Customer (and credit such
funds to the Customer's account) in an amount sufficient to satisfy margin
requirements without prior notice to the Customer.
3. FEES AND COMMISSIONS. The Customer shall pay such fees and commissions for
Xxxxxx Xxxxxxx'x services as Xxxxxx Xxxxxxx may from time to time charge.
Xxxxxx Xxxxxxx may share fees or commissions received by it with persons
that introduce or refer the Customer to Xxxxxx Xxxxxxx.
4. INTEREST ON ADVANCES. Xxxxxx Xxxxxxx may charge the Customer interest on
amounts which have been advanced hereunder to the Customer by Xxxxxx
Xxxxxxx, but which are not yet due, at the rate determined by Xxxxxx
Xxxxxxx. Interest rates may be changed from time to time in respect of
amounts theretofore advanced as well as in respect of amounts newly
advanced.
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5. NO STANDARD REQUIREMENT. Xxxxxx Xxxxxxx shall have no obligation to publish
fee and commission schedules, nor to impose margin requirements or charge
fees. commissions or interest rates of uniform applicability among its
customers. nor to justify to the Customer the considerations or the basis
on which margin requirements, fees, commissions and interest rates arc
determined by it.
6. CONFIRMATIONS AND STATEMENTS. The Customer shall be conclusively bound by
confirmations of the execution of orders and statements of the accounts of
the Customer if not objected to in writing by the Customer before the
earlier of ten days following transmission to, or one day following actual
receipt by the Customer. Xxxxxx Xxxxxxx shall not be bound by prices or
transactions reported in error.
7. CAPACITY OF XXXXXX XXXXXXX; FLOOR BROKERS. Xxxxxx Xxxxxxx shall execute
commodity futures and exchange-traded commodity option transactions for the
Customer solely in the capacity of agent. Other commodities transactions
may be executed by Xxxxxx Xxxxxxx, in its sole discretion and without prior
or subsequent notice to the Customer, in the capacity of principal, agent
for the Customer and/or agent for any third party. In executing
transactions on an organized commodity exchange, Xxxxxx Xxxxxxx shall have
sole discretion to select floor brokers and clearing brokers (who may
include employees or other agents of Xxxxxx Xxxxxxx or its Affiliates) to
execute or carry the Customer's transactions and shall not be responsible
to the Customer for any losses caused by any error, failure to execute
orders, negligence or misconduct of any floor broker or clearing broker
selected by it if, -at the time such floor broker or clearing broker was
selected, Xxxxxx Xxxxxxx had a reasonable basis to believe that such Poor
broke, or clearing broker was duly registered and authorized to act as such
under the then prevailing rules of such exchange and/or any regulatory
agency having jurisdiction over such floor broker or clearing broker. The
Customer agrees that Xxxxxx Xxxxxxx shall not be responsible to the
Customer in the event of any error, failure, negligence or misconduct on
the part of any futures commission merchant, introducing broker or other
person introducing the Customer to Xxxxxx Xxxxxxx or on the part of any
commodity trading advisor or other person handling the Customer's accounts,
and that Xxxxxx Xxxxxxx shall have no duty to supervise the activities of
any such futures commission merchant, introducing broker, commodity trading
advisor. or other person. The Customer will indemnify Xxxxxx Xxxxxxx and
hold Xxxxxx Xxxxxxx harmless from and against any and all liabilities,
losses, costs, damages and expenses, including legal expenses, incurred by
Xxxxxx Xxxxxxx as a result of any error failure, negligence or misconduct
on the part of any such futures commission merchant, introducing broker,
commodity trading advisor or other person.
8. TRANSACTION LIMITS. The Customer acknowledges Xxxxxx Xxxxxxx'x right to
limit retroactively or prospectively the number of futures, physicals,
forward or options positions maintained or acquired through Xxxxxx Xxxxxxx
at any time. The Customer agrees not to make any trade through Xxxxxx
Xxxxxxx which would have the effect of exceeding the position limits
imposed on the Customer by Xxxxxx Xxxxxxx, the exchange on which the trade
is to be made or any regulatory agency having jurisdiction over the trade
and agrees to liquidate promptly any positions carried by Xxxxxx Xxxxxxx
for the Customer which exceed any such position limits.
9. FAILURE OF DELIVERY BY CUSTOMER. In the case of the sale of any commodity
by Xxxxxx Xxxxxxx at the direction of the Customer, including any sale
pursuant to a futures, physicals, forward or options contract, and Xxxxxx
Xxxxxxx'x inability to make delivery on such sale, by reason of the
Customer's failure to supply Xxxxxx Xxxxxxx with such commodity, then
Xxxxxx Xxxxxxx may borrow or purchase from any parry (including any
Affiliate), any commodity necessary to make the delivery, and the Customer
shall be responsible for all losses and expenses, including legal expenses,
that Xxxxxx Xxxxxxx sustains as a result of the Customer's failure to
deliver. The Customer acknowledges that Xxxxxx Xxxxxxx has no duty to
borrow or purchase any such commodity or to attempt to do so.
10. REMEDY FOR NON-CONFORMING PURCHASES. If any commodity purchased from the
Customer by Xxxxxx Xxxxxxx hereunder shall fail to meet customary and usual
standards for merchantability, Xxxxxx Xxxxxxx, without prior notice to the
Customer, may sell such commodity back to the Customer at the higher of the
market price of the commodity prevailing at the time of resale or the
original sale price, and the amount of such price shall be paid forthwith
by the Customer to Xxxxxx Xxxxxxx. The Customer shall be liable for all
costs and expenses, including legal expenses, that Xxxxxx Xxxxxxx sustains
as a result of the Customer's failure to deliver the conforming commodity.
11. DELIVERY AND STORAGE OF COMMODITY. If Xxxxxx Xxxxxxx agrees, Xxxxxx
Xxxxxxx, on behalf of the Customer and for a reasonable charge, will make
arrangements for packaging, shipping, storing or insuring any commodity
sold hereunder. Xxxxxx Xxxxxxx'x only liability in respect of such
arrangements will be in the event of its gross negligence or willful
misconduct.
12. REIMBURSEMENT FOR TAXES, ETC. The Customer shall reimburse Xxxxxx Xxxxxxx
for all taxes, levies, imposts, duties, charges and fees incurred in
connection with the purchase, sale, delivery or storage of any commodity
hereunder.
13. PAYMENT. Unless otherwise agreed by Xxxxxx Xxxxxxx, any payment by the
Customer to Xxxxxx Xxxxxxx shall be in immediately available funds to
Xxxxxx Xxxxxxx'x account at the bank designated by Xxxxxx Xxxxxxx.
14. LIQUIDATING INSTRUCTIONS. At least five business days prior to the first
notice day in the case of long positions in open futures contracts, and at
least five business days prior to the last trading day in the case of short
positions in open futures contracts and long or short
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positions in open commodity option contracts, the Customer will either give
Xxxxxx Xxxxxxx instructions to liquidate such contracts, or will deliver to
Xxxxxx Xxxxxxx sufficient funds and/or any documents necessary to make or
take delivery. If such instructions, Or such funds and/or documents, are
not received by Xxxxxx Xxxxxxx by the time specified above, Xxxxxx Xxxxxxx
may, in its discretion and without notice to the Customer, either liquidate
the positions of the Customer or make or receive delivery on behalf of the
Customer, upon such terms and by such methods as Xxxxxx Xxxxxxx may
determine in its sole and absolute discretion.
15. CURRENCY EXCHANGE RATES. In the event that any transaction is effected in a
foreign currency, any profit or loss arising as a result of a fluctuation
in the exchange rate for such currency will be entirely for the account and
risk of the Customer Initial and subsequent deposits for margin purposes
shall be made by the Customer in United States currency. When any such
position is liquidated Xxxxxx Xxxxxxx shall debit or credit the account of
the Customer in United States currency at the rate of exchange determined
by Xxxxxx Xxxxxxx in its sole and absolute discretion on the basis of the
then prevailing money market exchange rates for such foreign currency.
D. SECURITY AGREEMENT CONCERNING THE CUSTOMER'S OBLIGATIONS TO XXXXXX XXXXXXX.
1. SECURITY INTEREST. The Customer grants to Xxxxxx Xxxxxxx, for itself and as
agent for its Affiliates, the senior security the Collateral, as security
for the payment of any and all Liabilities.
2. XXXXXX XXXXXXX'X RIGHTS RESPECTING COLLATERAL. Xxxxxx Xxxxxxx may, in its
sole discretion, transfer to or register in the name of itself, its
Affiliates or the nominee of any of them, any of the Collateral, and take
any action required by die laws of any jurisdiction to perfect its and/or
its Affiliates' security interest in the Collateral, without notice or
liability to the Customer except to account for property actually received
by it. The Customer agrees to do all such acts and things and to execute
and deliver all such documents and instruments as Xxxxxx Xxxxxxx may
request from time to time in order to perfect and preserve such security
interest. The Customer appoints Xxxxxx Xxxxxxx as its agent and
attorney-in-fact, with power of substitution, for doing all such acts and
things and executing and delivering all such documents and instruments on
its behalf. Xxxxxx Xxxxxxx has no obligation to return to the Customer the
identical item of Collateral, but only to replace such item with property
of like kind and substantially similar quantity, subject to adjustments for
quantity and quality variations at then prevailing market prices. As at the
date hereof there exists no, and without the prior written consent of
Xxxxxx Xxxxxxx, Customer will not create, grant or permit to exist any,
security interest in any of the Collateral. The Customer hereby grants
Xxxxxx Xxxxxxx and its Affiliates the right to borrow, pledge, repledge,
hypothecate, rehypothecate, loan or invest any of the Collateral without
notice to the Customer, or to account to the Customer for, any interest,
income or benefit that may be derived therefrom. The rights of Xxxxxx
Xxxxxxx and its Affiliates set forth above shall be qualified, by any
applicable requirements for segregation of customers' property under the
Commodity Exchange Act, as amended, and the rules and regulations
promulgated thereunder.
3. ACTIONS OR SETTLEMENTS RESPECTING COLLATERAL. Xxxxxx Xxxxxxx in its sole
discretion may, in its name, the name of any Affiliate, or in the name of
the Customer or otherwise, demand, xxx for, collect or receive any money or
property at any time payable or receivable on account of or in exchange
for, or make any compromise or settlement deemed desirable with respect to,
any of the Collateral, but shall be under no obligation to do so. Xxxxxx
Xxxxxxx may extend the time of payment or otherwise modify the terms of, or
release any of the Collateral, without thereby incurring responsibility to,
or discharging or otherwise affecting any Liability of the Customer. Xxxxxx
Xxxxxxx shall not be required to Like steps necessary to preserve any
rights against prior parties to any of the Collateral.
4. EVENTS OF DEFAULT. An Event of Default hereunder shall occur (i) if the
Customer repudiates or defaults in the performance of any obligation
hereunder or under any other agreement with Xxxxxx Xxxxxxx or any
Affiliate, including but not limited to, the failure of the Customer to pay
any of the Liabilities when due; or (ii) if Xxxxxx Xxxxxxx or any Affiliate
determines that it has reasonable grounds for insecurity with respect to
performance by the Customer of any obligation and, within twenty-four hours
after demand, the Customer fails to provide adequate assurance of
performance thereof, or (iii) if any proceedings are commenced by or
against the Customer under any laws relating to bankruptcy, insolvency or
the relief of debtors; or (iv) if the Customer makes an assignment for the
benefit of creditors, or (v) if a receiver, trustee, conservator,
liquidator or similar officer is appointed for the Customer or any or all
of its property; or (vi) if the Customer (if a corporation) takes any
corporate action in respect of (iii), (iv), or (v); or (vii) if any of the
representations of the Customer contained in, made pursuant to, or made in
connection with the opening or trading of an account under this Agreement
shall have been false or misleading when made; or (viii) if the Customer
dies; or (ix) if the Customer or any partnership of which the Customer is a
member suspends the transaction of his or its usual business, or any
proceeding or remedy in enforcement is resorted to or commenced with
respect to any of the property of the Customer or any such partnership; or
(x) if the Customer, if a corporation, shall be or be a party to any merger
or consolidation without prior written notice to, and consent of, Xxxxxx
Xxxxxxx; or (xi) if the Customer, if a partnership terminates its existence
by reason of the death of a partner or dissolution.
5. XXXXXX XXXXXXX'X REMEDIES UPON DEFAULT. (a) Upon or at anytime after the
occurrence of an Event of Default Xxxxxx Xxxxxxx may exercise any or all of
the following remedies, without prejudice to any other remedies:
(i) terminate any or all of Xxxxxx Xxxxxxx'x obligations for future
performance to the Customer;
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(ii) treat any and all of the Customer's Liabilities as immediately due
and payable;
(iii) consolidate any of the Customer's accounts with Xxxxxx Xxxxxxx;
(iv) offset sums owing by Xxxxxx Xxxxxxx to the Customer (including any
sums arising from the operation of this Section 5) against the
Customer's Liabilities;
(v) offset cash Collateral against the Customer's Liabilities;
(vi) sell any or all of the non-cash Collateral in such marine, as Xxxxxx
Xxxxxxx determines to be commercially reasonable, including the sale
of such Collateral at such prices as Xxxxxx Xxxxxxx sees fit, with
only such notice as is required by applicable law and cannot be
waived, and the sale of Rich Collateral to Xxxxxx Xxxxxxx or any of
its Affiliates, who shall thereafter hold such collateral free from
any claim or right of any kind, including any equity of redemption
of die Customer, any such right and equity being hereby expressly
waived and released;
(vii) close out any contract with the Customer in whole or in part from
time to time, as Xxxxxx Xxxxxxx elect, by matching contracts with
the Customer for amounts of material equal to the amounts closed
Oct, at market prices therefor as determined by Xxxxxx Xxxxxxx. If
the contract closed-out is a contract to sell to the Customer, a
matching contract is a contract to buy from the Customer, or, if the
contract closed-out is a contract to buy from the Customer, a
matching contract is a contract to sell to the Customer, for
delivery and payment at the time or times provided in the contract
closed-out. Upon any close-out Xxxxxx Xxxxxxx or the Customer as the
case may be, shall forthwith pay to the other the net amount due
under the contract closed-out and the matching contract discounted
from the time for payment to present value;
(viii) execute offsetting transactions (which need not be for the same
delivery month or on the same market) on commodity exchanges or in
the cash markets as to each open position in the Customer's
accounts, such transactions to be for the Customer's account and
risk. Xxxxxx Xxxxxxx shall not be-responsible for any losses or lost
profits resulting from the timing of such transactions in relation
to market conditions at the time of the execution thereof or at any
earlier or later time.
(b) Notwithstanding the foregoing, upon the occurrences of any of the Events of
Default set forth in Section D.4 (iii) through (vi) inclusive, immediately
and without further action by Xxxxxx Xxxxxxx, to the extent the same may be
lawful:
(i) all of Xxxxxx Xxxxxxx'x obligations for future performance to the
Customer shall terminate;
(ii) all of the Customer's Liabilities shall (iii)be immediately due and
payable;
(iii) the Customer's accounts with Xxxxxx Xxxxxxx shall be consolidated;
(iv) all sums owing by Xxxxxx Xxxxxxx to the Customer (including any sums
arising from the operation of this Section 5) shall be offset
against the Customer's Liabilities; and
(v) all cash Collateral shall be offset against the Customer's
Liabilities.
(c) The Customer shall pay Xxxxxx Xxxxxxx for all losses and expenses including
legal expenses incurred by Xxxxxx Xxxxxxx in connection with (A) the
exercise of any remedy, (B) the care of the Collateral and defining or
asserting the rights and claims of Xxxxxx Xxxxxxx in respect thereof,
including insurance, and (C) meeting any of Xxxxxx Xxxxxxx'x obligations
which would otherwise be defaulted, unless and except to the extent Xxxxxx
Xxxxxxx waives any or all of the foregoing in whole or in part. Xxxxxx
Xxxxxxx shall be entitled to void all or any part of such waiver at any
time so long as the Event of Default continues.
6. TRANSFER OF COLLATERAL. Xxxxxx Xxxxxxx may assign or transfer any of the
Liabilities. Xxxxxx Xxxxxxx may assign to any transferee of any of the
Liabilities all or any part of the Collateral and thereafter shall be fully
discharged from all responsibility with respect to the Collateral so
assigned.
7. DEFICIENCY INTEREST. In the event of any failure by the Customer timely to
pay any sum due hereunder, Xxxxxx Xxxxxxx, prior to its exercise of any
remedies under this Section D, may charge the Customer interest on the
unpaid sum, while outstanding, at a rate per annum equal to the lesser of
the maximum rate permitted by law or 115 percent of the brokers' call money
rate as determined by Xxxxxx Xxxxxxx.
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Upon and following any such exercise of remedy the Customer shall pay
interest to Xxxxxx Xxxxxxx on any unpaid sum, including any deficiency
amount in an account of the Customer, at a rate per annum equal to [he
lesser of the maximum rate permitted by law or 115 percent of the brokers'
call money rate as determined by Xxxxxx Xxxxxxx.
E. MISCELLANEOUS PROVISIONS.
1. GOVERNING LAW AND SUBMISSION TO JURISDICTION. This Agreement shall be
governed by the substantive laws of the State of New York. The Customer
submits to the jurisdiction of the courts of New York and of the Federal
Courts in the Southern District of New York with respect to any litigation
with Xxxxxx Xxxxxxx relating to this Agreement, and consents to the service
or process by the mailing to the Customer of copies thereof by certified
mail to the address of the Customer as it appears on the books and records
of Xxxxxx Xxxxxxx such service to be effective two days after mailing. The
Customer hereby waives irrevocably any immunity to which it might otherwise
be entitled in any arbitration, action at law, suit in equity other or any
other proceedings arising out of or based on this Agreement or any
transaction in connection herewith.
2. INDEMNIFICATION. If any representation of the Customer made in, or pursuant
to, this Agreement shall be false or misleading, the Customer snail
indemnify and hold Xxxxxx Xxxxxxx harmless from and against all claims,
losses, damages and expenses, including legal expenses, resulting
therefrom.
3. FORCE MAJEURE; WARRANTY AND DISCLAIMER OF WARRANTIES. Xxxxxx Xxxxxxx shall
not be liable for any delay in performance, for non-performance of any of
its obligations hereunder or in any transaction between Xxxxxx Xxxxxxx and
the Customer or for any losses caused by the occurrence of any contingency
beyond the reasonable control of Xxxxxx Xxxxxxx including, but not limited
to, breakdown or failure of transmission of communications facilities, the
suspension or termination of trading or delivery an any commodity exchange
or market, the imposition of a cash settlement by an exchange, clearing
organization, government agency or other entity in lieu of delivery on a
commodity contract or for any other reason, the bankruptcy, insolvency or
liquidation of a clearing organization, clearing broker or bank, war
(whether an actual declaration thereof is made or not), sabotage,
insurrection, riot or other act of civil disobedience, act of a public
enemy, failure or delay in transportation, act of any government or any
agency or subdivision thereof, judicial action, labor dispute, accident,
fire, explosion, flood, storm or other natural cause, a shortage of labor,
fuel, raw material or machinery, or technical failure. Xxxxxx Xxxxxxx may,
in its sole discretion and without liability to the Customer, cancel this
Agreement or the particular transaction involved if its performance is
delayed or rendered impossible due to the occurrence of any such
contingency. Xxxxxx Xxxxxxx'x sole warranty is that any commodity delivered
by it hereunder will conform to the description thereof on any confirmation
delivered by Xxxxxx Xxxxxxx with respect thereto. XXXXXX XXXXXXX HEREBY
EXPRESSLY DISCLAIMS ALI OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY
WARRANTY AS TO THE COMPLIANCE WITH THE LAWS OF ANY GOVERNMENTAL AUTHORITY
IN RESPECT OF THE OWNERSHIP, POSSESSION STORAGE, FINANCING OR
TRANSPORTATION OF ANY COMMODITY WHICH IS THE SUBJECT MATTER OF ANY
TRANSACTION PURSUANT TO THIS AGREEMENT.
4. NON-WAIVER; NON-ASSIGNMENT; TIME OF THE ESSENCE. A waiver or modification
of any provision hereof, or any attempted assignment by the Customer of any
right or interest herein, shall not bind Xxxxxx Xxxxxxx unless in writing
and signed by a duly authorized officer of Xxxxxx Xxxxxxx, and shall riot
entitle the Customer to any further assignment or to that waiver or
modification on any subsequent occasion. No waiver or modification of this
Agreement may be implied from any course of dealing between the parties or
from any failure of Xxxxxx Xxxxxxx to exercise any right or remedy under
this Agreement on any occasion or series of occasions. Time is of the
essence in the performance of the Customer's obligations hereunder.
5. BINDING EFFECT. This Agreement shall cover all commodities accounts,
commodity futures, options and forward contract accounts and all other
commodity-related accounts of the Customer with Xxxxxx Xxxxxxx shall be
binding upon the Customer, and the estate, legal representatives,
successors and assigns of the Customer and shall inure to the benefit of
Xxxxxx Xxxxxxx, its successors and assigns. The Customer hereby ratifies
all prior transactions effected with or through Xxxxxx Xxxxxxx of the sort
provided for by this Agreement and agrees that such transactions and all
transactions effected hereafter with Xxxxxx Xxxxxxx in commodity futures,
commodity options, any other commodity-related instruments, or in
commodities for immediate or deferred delivery shall be governed by the
terms hereof.
6. COMMUNICATIONS. Communications may be sent to the Customer by mail, telex,
telegraph. messenger or other reasonable means, to the address shown on the
books and records of Xxxxxx Xxxxxxx, and shall be deemed given to the
Customer personally upon, receipt or twenty-four hours after transmission,
whichever first occurs. Xxxxxx Xxxxxxx may from time to time, but shall not
be obligated to, monitor and record communications between its employees
and customers. The Customer hereby waives any and ail rights to object to
the admission to evidence of such recordings in any legal proceeding
between the Customer and Xxxxxx Xxxxxxx. Xxxxxx Xxxxxxx may take any action
pursuant to this Agreement on the basis of unconfirmed telephone
instructions which it in good faith believes originated from the Customer
or the Customer's duly authorized agent and the Customer will indemnify
Xxxxxx Xxxxxxx and hold it harmless from and against all liabilities,
losses, Costs and expense, including legal expenses, incurred by Xxxxxx
Xxxxxxx as a result of acting upon such instructions.
-6-
7. NON-EXECUTION. Any failure by the Customer to duly execute this Agreement
shall not constitute a waiver by Xxxxxx Xxxxxxx of any rights it may
otherwise possess against the Customer.
8. XXXXXX XXXXXXX HAS NO RESPONSIBILITY FOR RECOMMENDATIONS. The Customer
acknowledges that (A) any trading recommendation or market information
communicated by Xxxxxx Xxxxxxx to the Customer or the Customer's duly
authorized agent does not constitute an offer to sell or the solicitation
of any offer to buy any commodity; (B) such recommendations and information
although based upon information obtained from sources believed by Xxxxxx
Xxxxxxx to be reliable, may be incomplete and unverified; and (C) Xxxxxx
Xxxxxxx makes no representation, warranty. or guaranty as to, and shall not
be responsible for, the accuracy or completeness of any market information
or trading recommendation furnished to the Customer. The Customer
represents that the Customer will not hold Xxxxxx Xxxxxxx responsible for
losses sustained by the Customer as a result of any prediction or
recommendation made by any representative of Xxxxxx Xxxxxxx, whether or not
made or given at the request of the Customer. The Customer understands that
Xxxxxx Xxxxxxx and/ or its officers, directors, Affiliates, stockholders,
or representatives may have a position in and may intend to buy or sell
commodities which are the subject of trading recommendations furnished to
the Customer and that the market position or intention to buy or sell of
Xxxxxx Xxxxxxx or any such officer, director, Affiliate, stockholder, or
representative may or may not be consistent with the recommendations
furnished to the Customer by Xxxxxx Xxxxxxx.
9. LIMITATION UPON REMEDIES. In the event any commodity delivered by Xxxxxx
Xxxxxxx while acting as principal is not in conformity with the description
thereof on any confirmation delivered by Xxxxxx Xxxxxxx with respect
thereto, the sole remedy of the Customer and all others claiming with or
trough die Customer is that the Customer may, at the Customer's expense,
return such material to Xxxxxx Xxxxxxx, and Xxxxxx Xxxxxxx shall, at Xxxxxx
Xxxxxxx'x expense, replace the material so returned. In no event shall
Xxxxxx Xxxxxxx be liable for any special or consequential damages or
otherwise than as stated in the preceding sentence Xxxxxx Xxxxxxx shall
have no liability hereunder unless written notice specifying any alleged
defect is received by Xxxxxx Xxxxxxx within twenty days after delivery of
the commodity sold pursuant hereto. Failure so to notify Xxxxxx Xxxxxxx
shall constitute a waiver of any and all claims with respect to such
commodity.
10. TERMINATION. This Agreement shall continue in effect until terminated and
may be terminated by the Customer at any time when the Customer has no
Liabilities and no oven positions which could give rise to subsequent
Liabilities to Xxxxxx Xxxxxxx or any Affiliate upon the actual receipt by
Xxxxxx Xxxxxxx of written notice of termination, or at any time whatsoever
by Xxxxxx Xxxxxxx upon the mailing or delivery of written notice of
termination to the Customer provided, however, that any such termination
shall not affect any transactions theretofore entered into and shall not
relieve either party of any obligations in connection with any debit
balance or credit balance or other Liability or obligation incurred prior
to such termination.
11. MULTIPLE PARTIES. If more than one Customer shall execute this Agreement:
(a) the word "Customer" wherever it appears in this Agreement, other than
in this paragraph, shall be deemed to refer to each such Customer, and
to ail such Customers, unless the following provisions of this
paragraph otherwise require;
(b) each Customer shall be jointly and severally liable for the full and
timely performance of all of the obligations of the Customers under or
in connection with this Agreement and any account established and any
transaction effected under this Agreement;
(c) in connection with any account established under this Agreement,
Xxxxxx Xxxxxxx may act upon any order, request or instruction from any
one Customer without the necessity of confirmation from any other
Customer;
(d) the delivery of any report, statement, notice or other communication
to my one Customer shall be deemed to have been to all of the
Customers;
(e) Xxxxxx Xxxxxxx may deliver any Collateral of any of the Customers held
by it to any one or more of the Customers, and make payments from any
account established pursuant to this Agreement to or upon the order or
direction of any one of :he Customers, even if such delivery and/or
payment shall be made to one or more of the Customers personally, and
Xxxxxx Xxxxxxx shall be under no obligation to inquire into the
purpose of any request for the delivery of any such Collateral or the
making of any such payment, or to see to the disposition or
application thereof; and
(f) unless Xxxxxx Xxxxxxx is advised other-wise in writing by completing
Xxxxxx Xxxxxxx'x form of Declaration of Tenancy in Common, the
interest of the Customers in any account or accounts established under
this Agreement shall be deemed to be a joint tenancy with rights of
survivorship and not a tenancy in common.
12. SEVERABILITY. If any provision of this Agreement, or the application of
such provision to any person or circumstances, shall be held invalid, the
remainder of this Agreement, and the application of such provision to
persons or circumstances ocher than chose as to which it is held invalid,
shall not be affected thereby.
-7-
13. CAPTIONS. Section and paragraph captions are used for convenience of
reference and neither form an integral part of this Agreement, nor limit
the applicability or affect the meaning of any of its provisions.
13. CROSS TRADE CONSENT. The Customer hereby confirms that the Customer has no
objection to Xxxxxx Xxxxxxx or any Affiliate, or officers or directors of
Xxxxxx Xxxxxxx or any Affiliate, acting as buyers with respect to orders
given by the Customer to Xxxxxx Xxxxxxx to sell for the account of the
Customer, or acting as sellers with respect to orders given by the Customer
to Xxxxxx Xxxxxxx to buy for the account of the Customer on any commodity
futures exchange. The Customer hereby further confirms that the Customer
has no objection to floor brokers on any commodity futures exchange acting
as buyers with respect to orders giver by the Customer to Xxxxxx Xxxxxxx
and by Xxxxxx Xxxxxxx to such floor brokers to sell for the account of the
Customer, or acting as sellers with respect to orders given by the Customer
to Xxxxxx Xxxxxxx and by Xxxxxx Xxxxxxx to such floor brokers to buy for
the account of the Customer. Xxxxxx Xxxxxxx is further authorized, on
behalf of the Customer, to give consent to such actions to floor brokers.
The consents; and authorization form herein are subject to any applicable
provisions of the Commodity Exchange Act, as amended, the regulations
thereunder and the by-laws and rules of the exchanges on which such
transactions occur, and may be revoked at any time on written notice to
Xxxxxx Xxxxxxx. By placing its initials in the space set forth at the foot
of this paragraph, the Customer accepts and agrees to the provisions of
this paragraph.
ACCEPTED AND AGREED:
MMI 22 October 1987
(Customer's Initials) (Date)
XXX XXX FUNDS/WORLD INCOME FUND
(Name of Customer - Please Print)
22-Oct-87 /s/ Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx - Portfolio Manager
(Date) (Signature) (Name & Title - Please Print)
000 Xxxx 00/xx/ Xxxxxx
(Xxxxxxx)
Xxx Xxxx, XX 00000
22-Oct-87 /s/ Xxxxxxx Xxxx Xxxxxxx Xxxx - Futures/Options Strategist
000 Xxxx 00/xx/ Xxxxxx
(Xxxxxxx)
Xxx Xxxx, XX 00000
-8-
