EXHIBIT 10.03
CUSTOMER AGREEMENT
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THIS CUSTOMER AGREEMENT (this "Agreement") made as of the 31st day
of December, 1997, by and among XXXXXX XXXXXXX TANGIBLE ASSET FUND L.P., a
Delaware limited partnership (the "Customer"), XXXXXX XXXXXXX & CO.
INTERNATIONAL LIMITED ("MSIL") and XXXXXX XXXXXXX & CO. INCORPORATED ("MS &
Co.");
W I T N E S S E T H:
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WHEREAS, Customer, MSIL and MS & Co. wish to enter into this
Agreement to set forth the terms and conditions upon which MSIL will perform
brokerage services with respect to Client Contracts, Contracts and Transactions
for Customer through an account carried by MSIL on behalf and in the name of
Customer (the "Account").
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Incorporation by Reference. The Non-Private Customer Agreement
annexed hereto is hereby incorporated by reference herein and made a part hereof
to the same extent as if such document were set forth in full herein. If any
provision of this Agreement is or at any time becomes inconsistent with the
annexed document, the terms of this Agreement shall control.
2. Charges. Notwithstanding any provision in the Non-Private
Customer Agreement to the contrary, Customer shall not be responsible to MSIL
for any commission or xxxx-up or xxxx-down or fee payable for the relevant
Transaction and/or any such other amounts with respect to the Account, but
rather all of MSIL's commissions, fees xxxx-ups, xxxx-xxxxx and charges shall be
paid by MS & Co. and not by Customer.
3. Standard of Liability and Indemnity.
(a) Standard of Liability. MSIL and its affiliates (as defined
below) shall not be liable to Customer, the limited partners of Customer
("Limited Partners"), or any of its or their respective successors or assigns,
for any act, omission, conduct, or activity undertaken by MSIL on behalf of
Customer which MSIL determines, in good faith, to be in the best interests of
Customer, unless such act, omission, conduct, or activity constituted misconduct
or negligence. Without limiting the foregoing, MSIL shall have no responsibility
or liability to Customer hereunder (i) in connection with the performance or
non-performance by any Exchange, Clearing House and/or Broker to MSIL of its
obligations in respect of any Contract or Transaction or property of Customer;
(ii) as a result of any prediction, recommendation or advice made or given by a
representative of MSIL whether or not made or given at the request of Customer;
(iii) as a result of MSIL's reliance on any instructions, notices and
communications that it believes to be that of an individual authorized to act on
behalf of Customer; (iv) as a result of any delay in the performance or
non-performance of any of MSIL's obligations hereunder directly or indirectly
caused by the occurrence of any contingency beyond the control of MSIL
including, but not limited to, the unscheduled closure of an Exchange or
Clearing House 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, it being understood that MSIL shall be excused from
performance of its obligations hereunder for such period of time as is
reasonably necessary after such occurrence to remedy the effects therefrom; (v)
as a result of any action taken by MSIL to comply with Market Requirements or
Applicable Law; or (vi) for any acts or omissions of those neither employed nor
supervised by MSIL. In no event will MSIL be liable to Customer for
consequential, incidental or special damages hereunder.
(b) Indemnification by Customer. Customer shall indemnify, defend
and hold harmless MSIL and its affiliates from and against any loss, liability,
damage, cost or expense (including attorneys' and accountants' fees and expenses
incurred in the defense of any demands, claims, or lawsuits) actually and
reasonably incurred arising from any act, omission, conduct, or activity
undertaken by MSIL on behalf of Customer, including, without limitation, any
demands, claims or lawsuits initiated by a limited partner (or assignee
thereof); provided that (i) MSIL has determined, in good faith, that the act,
omission, conduct, or activity giving rise to the claim for indemnification was
in the best interests of Customer, and (ii) the act, omission, conduct or
activity that was the basis for such loss, liability, damage, cost or expense
was not the result of misconduct or negligence. Notwithstanding the foregoing,
no indemnification of MSIL or its affiliates by Customer shall be permitted for
any losses, liabilities or expenses arising from or out of an alleged violation
of federal or state securities laws unless (i) there has been a successful
adjudication on the merits of each count involving alleged securities law
violations as to the particular indemnitee, or (ii) such claims have been
dismissed with prejudice on the merits by a court of competent jurisdiction as
to the particular indemnitee, or (iii) a court of competent jurisdiction
approves a settlement of the claims against the particular indemnitee and finds
that indemnification of the settlement and related costs should be made,
provided, with regard to such court approval, the indemnitee must apprise the
court of the position of the SEC and the positions of the respective securities
administrators of Massachusetts, Missouri, Tennessee and/or those other states
and jurisdictions in which the plaintiffs claim that they were offered or sold
Units, with respect to indemnification for securities laws violations before
seeking court approval for indemnification. Furthermore, in any action or
proceeding brought by a limited partner in the right of Customer to which MSIL
or any affiliate thereof is a party defendant, any such person shall be
indemnified only to the extent and subject to the conditions specified in the
Delaware Revised Uniform Limited Partnership Act, as amended, and this Section
3. Customer shall make advances to MSIL or its affiliates hereunder only if: (i)
the demand, claim, lawsuit or legal action relates to the performance of duties
or services by such persons to Customer; (ii) such demand, claim, lawsuit or
legal action is not initiated by a Limited Partner; and (iii) such advances are
repaid, with interest at the legal rate under Delaware law, if the person
receiving such advance is ultimately found not to be entitled to indemnification
hereunder.
(c) Indemnification by MSIL. MSIL shall indemnify, defend and hold
harmless Customer and its successors or assigns from and against any losses,
liabilities, damages, costs and expenses (including in connection with the
defense or settlement of claims; provided MSIL has approved such settlement)
incurred as a direct result of the activities of MSIL or its affiliates,
provided that the act, omission, conduct, or activity giving rise to the claim
for indemnification was the result of bad faith, misconduct or negligence.
(d) Limitation on Indemnities. The indemnities provided in this
Section 3 by Customer to MSIL and its affiliates shall be inapplicable in the
event of any losses, liabilities, damages, costs or expenses arising out of, or
based upon, any material breach of any agreement of MSIL contained in this
Agreement to the extent caused by such event. Likewise, the indemnities provided
in this Section 3 by MSIL to Customer and any of its successors and assigns
shall be inapplicable in the event of any losses, liabilities, damages, costs or
expenses arising out of, or based upon, any material breach of any
representation, warranty or agreement of Customer contained in this Agreement to
the extent caused by such event.
(e) Definition of "Affiliate." As used in this Section 3, the term
"affiliate" of MSIL shall mean: (i) any natural person, partnership,
corporation, association, or other legal entity directly or indirectly owning,
controlling, or holding with power to vote 10% or more of the outstanding voting
securities of MSIL; (ii) any partnership, corporation, association, or other
legal entity 10% or more of whose outstanding voting securities are directly or
indirectly owned, controlled, or held with power to vote by MSIL; (iii) any
natural person, partnership, corporation, association, or other legal entity
directly or indirectly controlling, controlled by, or under common control with,
MSIL; or (iv) any officer or director of MSIL. Notwithstanding the foregoing,
"affiliates" for purposes of this Section 3 shall include only those persons
acting on behalf of MSIL and performing services for Customer within the scope
of the authority of MSIL, as set forth in this Agreement.
4. Termination. This Agreement may be terminated at any time by any
party upon ten (10) days' prior written notice to the other parties hereto. 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
broker.
5. Complete Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the matters referred to herein, and
no other agreement, verbal or otherwise, shall be binding as among the parties
with respect to such matters unless in writing and signed by the party against
whom enforcement is sought.
6. Assignment. This Agreement may not be assigned by any party
without the express written consent of the other parties.
7. Amendment. This Agreement may not be amended except by the
written consent of the parties and provided such amendment is consistent with
Customer's Limited Partnership Agreement. 8. Notices. All notices required or
desired to be delivered under this Agreement shall be sent to the following
addresses:
8. Notices. All notices required or desired to be delivered under
this Agreement shall be sent to the following addressess:
if to the Partnership:
XXXXXX XXXXXXX TANGIBLE ASSET FUND L.P.
c/o Demeter Management Corporation
Two World Trade Center, 62nd Floor
New York, New York 10048
Attention: Xxxx X. Xxxxxx
if to MS & Co.:
XXXXXX XXXXXXX & CO. INCORPORATED
Xxx Xxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Commodity Operations Manager
if to MSIL:
as set forth in the Non-Private Customer Agreement.
9. Survival. The provisions of this Agreement shall survive the
termination of this Agreement with respect to any matter arising while this
Agreement was in effect.
10. Headings. Headings of Sections herein are for the convenience of
the parties only and are not intended to be a part of or to affect the meaning
or interpretation of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed for and on
behalf of the undersigned as of the day and year first above written.
XXXXXX XXXXXXX TANGIBLE ASSET FUND L.P.
By: Demeter Management Corporation
General Partner
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Principal
NON-PRIVATE CUSTOMER DOCUMENTS
(EXCHANGE-TRADED DERIVATIVES)
TABLE OF CONTENTS
Please read the contents of Part One before signing the Customer Signatures
pages in Part Three.
PAGE
PART ONE: NON-PRIVATE CUSTOMER AGREEMENT 3
(EXCHANGE-TRADED DERIVATIVES)
Chapter I Introduction 3
II Terms Applicable to Dealings 6
III Margin 8
IV Material Interests 9
V Powers and Exclusions of Liability 10
VI Authorisation 12
VII General 13
PART TWO: SCHEDULE 16
PART THREE: CUSTOMER SIGNATURE PAGES 19
Non-Private Customer Documents
Customers Domiciled in Luxembourg
Third Party Trading Authorisation
Certificates of Authority to Deal
Certificate of Trustees
PART ONE
NON-PRIVATE CUSTOMER AGREEMENT
(EXCHANGE-TRADED DERIVATIVES)
Made in compliance with the Rules of The Securities and Future Authority Limited
("SFA")
THIS AGREEMENT is made as of the date specified on the first customer signature
page below
BETWEEN:
(A) You, as the client named on the customer signature page; and
(B) XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED ("MSIL") AND/OR XXXXXX
XXXXXXX SECURITIES LIMITED ("MSSL") both of 00 Xxxxx Xxxxxx, Xxxxxx
Xxxxx, Xxxxxx X00 0XX. MSIL is regulated by SFA, and MSSL is regulated
by SFA and a member of the London Stock Exchange.
IT IS HEREBY AGREED AS FOLLOWS:
We will treat you as a NON-PRIVATE CUSTOMER regarding all investment business
regulated by the SFA which we carry on for or with you pursuant to this
Agreement other than for any business referred to below under "Market
Counterparties".
All investment business mentioned in Clause 2 below which we carry out with you
or on your behalf as a Non-Private Customer will be carried under the terms
and conditions set out below (as amended or supplemented from time to time)
and the Customer Documents.
MARKET COUNTERPARTS
Theterms of this Agreement and the Customer Documents will also apply to
investment business which we carry out with you or on your behalf if, in
respect of such business, you are a market counterparty.
CHAPTER 1 - INTRODUCTION
1. INTERPRETATION
In the Customer Documents, the words and phrases below have the following
meanings:-
"acting in due capacity" in relation to you means as beneficial owner or, where
some other person is beneficial owner, as trustee or agent for and (in
either case) with all requisite authorities from that other person;
"Applicable Law" includes without limitation
(a) Market requirements, and
(b) the rules, regulations, orders, directives, announcements,
decisions, procedures, terms, other requirements and/or customs
made, given or issued by, or published under the authority of any
Regulatory Body, all as amended, supplemented or replaced from time
to time;
"Approved Custodian" means such bank, financial institution or company approved
by us, or any nominee company or trust corporation which is a subsidiary
thereof;
"Asset" means currencies, Securities (including futures or option contracts),
deposits or physical assets;
"Associated Firm" means any company in the Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover
& Co. group of companies and, as the context requires, any other person
connected with us.
"Broker" means such member of an Exchange and/or Clearing House as is instructed
by us to enter, clear or settle any transaction on an Exchange;
"Charged Securities" means such Securities as
(a) with our agreement, you (or any person for your account) by way
of security have deposited with or transferred to or may
hereafter deposit with or transfer to us or our agents or
nominees (or with or to our or their order, account, direction or
control), wholly or partly in satisfaction of a demand for
Margin. We shall have sole discretion to determine the type,
amount and quality of the Securities that you may deposit or
transfer as Charged Securities;
(b) are or may at any time hereafter be held (in a clearance system or
otherwise)
(i) to our order by or for the account of an Approved Custodian
or
(ii) by, or to the order or, for the account of or under the
control or direction of us (or our agents or nominees) and in
either case which have, with our agreement, by way of security
been made subject to the terms of the charge in Clause 19.2;
"Clearing House" means any clearing house providing settlement or
clearing or similar services for, or as part of, an Exchange;
"Client Contract" means a futures or option contract between us and you
which is matched by an identical Contract;
"Client Money" means all initial and variation cash Margin, option
premiums and all other sums received from or due to you pursuant to the
Customer Documents which is "Client Money" within the meaning of the
Client Money Regulations;
"Client Money Regulations" means The Financial Services (Dedesignation)
Rules and Regulations (1994), The Financial Services (Client Money)
(Amendment) Regulations 1996 and the related client money rules in Chapter
4 of the rules of SFA;
"close out" means the entering into of a Contract equal and opposite to a
Contract previously entered into (and each matching a Client Contract) to
create a level position in relation to the Assets underlying the
Contracts, or in relation to the Contracts themselves, and fix the amount
of profit or loss arising from such Contracts and the corresponding Client
Contracts;
"Contract" means a futures or option contract entered into by us on an
Exchange or with or through a Broker pursuant to Clause 3.2;
"Customer Documents" means this Agreement, any notice (including but not
limited to any "Notice of treatment as a Non-Private Customer" or "Notice
of treatment as a Market Counterparty") and any Further Schedules
(including, without limitation, confirmations, contract notes and
statements) and additional documents relating directly to or indirectly to
the services provided under Clause 2 below and accompanying this Agreement
whether or not expressly incorporated in this Agreement and each as
amended and/or supplemented from time to time;
"Exchange" means any exchange, market or association of dealers in any
part of the world on or through which investments or currencies or assets
underlying, derived from or otherwise related directly or indirectly to
investments or currencies are bought and sold and includes, without
limitation, any automated trading system administered by an Exchange;
"FSA" means the Financial Services Xxx 0000 of the United Kingdom;
"Further Schedule" means any further schedule or notice issued by us to
you after the date of this Agreement;
"a futures or option contract" means a contract, for future delivery
and/or settlement, to (a) buy or sell an Asset and/or (b) pay or receive a
sum of money by reference to an index or formula (including without
limitation the price or value of any Assets);
"LCH" means the London Clearing House Limited;
"LIFFE" means the London International Financial Futures and Options
Exchange and/or, as the context requires, LIFFE Administration and
Management;
"Margin" means the amount of cash (including premiums) as may from time to
time be demanded by us from you to protect us against any loss or risk of
loss on present, future or contemplated Contracts and/or Client Contracts;
"Margin Account" means a client bank account with such approved bank or
banks as we may from time to time determine which (in the case of any such
account in which Client Money is held) is a margined transaction bank
account within the meaning of the Client Money Regulations;
"Market Requirements" means
(a) the constitution, bye-laws, rules, regulations, orders,
directives, announcements, decisions, procedures, standard terms
and customs made, issued by, or published under the authority of
any Exchange, Clearing House, self-regulating organisation or
market of which we or any relevant Associated Firm or any Broker
is a member, or to whose authority we are or any of them is
subject, directly or indirectly, or where the relevant
transaction is executed and/or cleared, and
(b) any other requirements of the relevant Exchange, Clearing House or
Broker (including without limitations any and all agreements and
deeds entered into by us or any relevant Associated Firm or Broker
with or in favour of the relevant Broker, Exchange or Clearing
House,
all as amended, supplemented or replaced from time to time;
"Open Contract" means a Contract which has not been closed out and which
has not yet matured;
"Regulatory Body" means any Exchange, Clearing House, governmental,
quasi-governmental or other department, agency or self-regulating
organisation of which we are a member which has direct or indirect
regulatory or enforcement authority or responsibility over us (or to any
relevant Associated Firm or Broker), or any investment business conducted
by us or such relevant Associated Firm or Broker for or with you;
"Rules" means the SIB Statements of Principle, the rules of SFA, the
Client Money Regulations and the Common Unsolicited Calls Regulations;
"Securities" means securities, investments and financial instruments;
"SIB" means the Securities and Investments Board, the central
regulatory authority for United Kingdom investment business;
"Taxes" means taxes, duties, imposts and fiscal and regulatory charges of
any nature, wherever and whenever imposed, including without limitation
value added taxes, stamp and other documentary taxes and Exchanges and
Clearing House and investment industry levies; and
"Transaction" means the entering into of a Contract, closing out or
effecting delivery and/or settlement of a Contract (which terms shall
include exercise or allocation of an option Contract) pursuant to the
Customer Documents.
References herein to "we" or "us" shall mean MSIL and/or MSSL and/or each
or any of our Associated Firms or members of a relevant Exchange to whom
we have delegated pursuant to Clause 3 and/or (in Clause 9, 21 and 22) any
associate of MSIL and/or MSSL, and references to "our" shall be construed
accordingly.
Any words or expressions to which a meaning is given in the Rules, shall,
except where the context indicates otherwise, have the same meaning in the
Customer Documents.
Words importing the singular shall, where the context permits, include the
plural and vice versa. The expression "person" shall include any firm,
partnership, association of persons and body corporate and any such
persons acting jointly and the personal representatives or successors in
title of any such person. Where the Customer comprises two or more persons
the liabilities and obligations under the Customer Documents shall be
jointly and several. References to "writing" shall include telex,
facsimile transmission or transmission of text by any other electronic
means. References to statutory provisions, rules and regulations shall
include any modification or re-enactment re-making thereof.
All headings are for convenience only and shall not affect the
interpretation of the Customer Documents.
2. SERVICES TO BE PROVIDED
2.1 The services which we may provide to you are general investment and
dealing services in financial commodity options, futures and contracts for
differences traded on an Exchange, together with related research, advice,
clearing and settlement facilities and any other services agreed between
us. The agreement does not cover any investment business which is
regulated by the Bank of England, provided that, other than clauses
4.2(b), 16, 28 and 39.1, this Agreement shall apply to such business
subject to The London Code of Conduct (as amended from time to time by the
Bank of England).
2.2 We shall not undertake discretionary transactions for you unless you have
signed and returned to us a Discretionary Trading Authorisation.
3. DELEGATION
3.1 We may arrange for any of our Associated Firms or any other member of a
relevant Exchange to carry out the services which we agree to provide you
pursuant to this Agreement.
3.2 We may designate a Broker to execute, clear and/or settle any transaction
subject to the Rules and to such conditions as we may impose.
4. INTRODUCTION OF BUSINESS
4.1 We may introduce you to any Associated Firm outside the United Kingdom and
you hereby authorise us on any such Associated Firm's behalf to expressly
invite it to call you with a view to entering into investment transactions
from time to time with or for you. If such Associated Firm agrees to do
so:
(a) you shall have a direct relationship solely with such Associated
Firm and, in any dispute between, or claim against, you and/or any
such Associated Firm, you shall have no recourse to us; and
(b) you may place orders with us for the Associated Firm to execute,
subject to its terms. In any of these transactions, we will act as
agent for the Associated Firm, and nothing we do in connection with
such transactions will make us your agent.
4.2 For any transaction or other investment services provided to you by such
Associated Firms, only the following provisions of this Agreement will
apply as between us and you, as the context may require and each as
amended from time to time;
(a) Clauses 1, 2, 4, 5.2, 8, 9, 21, 22, 26, 29-31, Chapters VI and VII
and Schedule 1; and
(b) in the case of the latest Notice of Treatment sent by us to you as a
non-private customer or market counterparty, paragraphs 1 and 2 of
that Notice.
5. DEALINGS AND RULES, REGULATIONS AND RESTRICTIONS
5.1 All Client Contract and Transactions shall be subject to applicable Market
Requirements and Applicable Law.
(a) if there is a conflict between (i) the Customer Documents and (ii)
any such requirements and/or law, the latter will prevail;
(b) we are entitled to take or omit to take any action we consider fit
or appropriate to ensure compliance with such laws and requirements;
all actions we take will be binding on you.
5.2 We are authorised by you at any time to do any thing or disclose any
matters concerning you or your dealings (whether or not pursuant to the
Customer Documents) if required by any Applicable Law, or which we are
requested to do or disclose by any Regulatory Body.
CHAPTER II - TERMS APPLICABLE TO DEALINGS
6. CONTRACTS AND CLIENT CONTRACTS
6.1 If we carry out a Transaction on your request or pursuant to Clause 24
below:
(a) a corresponding Client Contract shall come into existence on the
purchase or sale of a Contract or, as the case may be exercise and
allocation of an option Contract in respect of which the underlying
Asset is a futures Contract. The Client Contract will terminate when
the Contract is closed out, settled or delivered; and
(b) you will have the obligations in relation to the Transaction and the
Client Contract that are mentioned in this Agreement and the
Customer Documents.
6.2 For each Client Contract, we will have made or placed an equivalent
Contract on the floor of the relevant market (by open outcry on the floor
of, or on an automated trading system administered by, a futures and
options Exchange or the futures or options market of any other Exchange)
or will have entered into an equivalent Contract with or through a Broker
pursuant to Clause 3.2 and we shall thus have an interest in the
Transaction.
6.3 Any Contract which we acquire as a result of your instructions will,
unless the position has been closed out, result in you becoming liable to
us in relation to the corresponding Client Contract for actual delivery of
its underlying Asset or payment of the relevant price, under and subject
to Market Requirements.
7. ACCEPTANCE AND EXECUTION OF ORDERS
7.1 Every order which we may take is accepted and executed, and every Client
Contract shall be entered into, on the basis that we contract with you
only as a principal and not as an agent for you unless otherwise required
by Market Requirements.
7.2 If we have to carry out a Transaction as agent on an Exchange where we
would not deal as principal then, for that Transaction, you agree to be
bound by all Market Requirements of that Exchange and you undertake to
sign and deliver to us any further Customer Documents as we may require.
Unless we otherwise require, Market Requirements of that Exchange will be
incorporated herein.
8. AGGREGATION OF ORDERS
We may aggregate your orders with our own (in-house) orders, orders of our
associates, connected customers and/or other customers. This aggregation
may operate on some occasions to your advantage and on others to your
disadvantage.
9. RESEARCH RECOMMENDATIONS
9.1 We are under no obligation to provide research reports and recommendations
to you and, where provided, you may not receive them at the same time as
our other customers.
9.2 Our employees, officers and directors may receive, know about, act upon or
use such research reports and recommendations before they are received by
our customers. We are under no obligation to take account of these reports
or recommendations when we deal with or for you.
10. CLIENT ACTIONS
10.1 You will take any action and give us in relation to the corresponding
Client Contract any information that we ask for in relation to the
delivery, settlement, and, if a purchased Option Contract, the exercise or
allocation, of any Contract which has not been closed out.
10.2 Notwithstanding Clause 10.1 above and regardless of any right of equity,
set-off or counterclaim which you may have or allege against us, any of
our Associated Firms or any person connected with us, you will promptly
take all action necessary (including the supply of information) to enable
us to settle or deliver any Contract which you have instructed us to open
and which has not been closed out at the time such Contract is to be
performed.
11. CLOSING OUT
11.1 Subject in particular to Clauses 3 to 8 and 33.3, Market Requirements and
any further requirements we notify you of, you may at any time before the
date for performance of a Client Contract request to us to close out the
matching Contract or, if a purchased option Contract, exercise that
Contract in accordance with its terms. If the closing out or exercise
results in a sum of money being due to us, the relevant Exchange, Clearing
House and/or Broker, we shall notify you of that amount, which will be
payable by you immediately.
11.2 Unless we in our absolute discretion determine otherwise or we accept
instructions from you to do otherwise, equal and opposite Contracts and
Client Contracts (closing out being determined on a "first in, first out"
basis) will automatically fix the amount of profit or loss in relation
thereto.
12. ALLOCATION
If the relevant Clearing House and/or Broker does not allocate long Open
Contracts at maturity direct to a specific account of ours or to short
Client Contracts (or vice versa) we may allocate those Contracts at random
or in a way which seems to us to be most equitable as between clients. If
dealings on our own account are involved at the same time, allocation will
be to all clients first, and we will receive no allocation until all
relevant Client Contracts have been satisfied.
13. DELIVERY TO YOU
When we receive any amounts and/or Assets (including documents of title),
pursuant to a Transaction, provided that you have fulfilled all your
obligations under this Agreement and subject to Clause 15, 18.3, 22.2 and
24.2, we will deliver such amounts and/or Assets to you in respect of the
corresponding Client Contract, after deduction of any Charges and Taxes.
14. OPTION PREMIUMS
In respect of an option Contract matching a Client Contract:-
(a) if you are a buyer, you will pay to us on demand any premium payable
under the rules of the relevant Exchange and/or Clearing House ("the
premium"); and
(b) if you are a seller, when we receive premium from the relevant
Exchange, Clearing House and/or Broker we will pay it into the
Margin Account as Margin for your account. You may be required to
pay further margin in respect of the relevant Contract and
corresponding Client Contract.
15. ALTERATION OF CONTRACTS
If the relevant Exchange, Clearing House or Broker requires any terms or
conditions of any Contract matching a Client Contract (including the
Assets subject to it) to be altered, we may take all actions as may, in
our absolute discretion, be necessary, desirable or expedient to comply
with such requirements or to avoid or mitigate loss resulting from any
alteration. All actions taken by us will be binding on you, and any
alteration will be deemed incorporated into the corresponding Client
Contract. We shall notify you of any alteration (in advance, where
reasonably practicable).
16. CHARGES
16.1 Our charges will either be a commission or a xxxx-up or xxxx-down on the
fee payable by us to any Exchange, Clearing House and/or Broker for the
relevant Transaction and/or such other amounts as may be agreed from time
to time. Our charges vary according to the transaction and customer, so
the charges you pay for any particular transaction may differ from those
another customer may pay in a similar transaction.
16.2 We may share charges with our Associated Firms or other third parties or
receive remuneration from them for transactions carried out with or for
you. Details of any such arrangements will be made available to you on
your written request.
17. INTEREST
17.1 We will not pay interest to you on any Client Money or other money which
we receive from you or hold on your behalf unless we separately agree to
do so.
17.2 Interest will accrue on the amount that you have not paid us when due
until payment (as well after as before judgement). Such interest will be
calculated at the rate not to exceed 2 per cent annum above the base rate
or prime rate (or local equivalent thereof) of the bank (or if there is
more than one bank, the one determined by us in our absolute discretion)
at which we maintain our principal securities settlement or other relevant
account in the relevant currency. If such rate cannot be ascertained for
any reason or is insufficient in our sole judgement to compensate us for
our loss or expense, such interest shall be calculated at the rate per
annum conclusively determined by us to be equal to the loss of interest we
suffer or, as applicable, our cost of funding at prevailing markets rates
the amount you owe from such sources and for such periods as we may
decide.
CHAPTER III - MARGIN
18. MARGIN PAYMENT AND CLIENT MONEY
18.1 You will pay to us upon demand such sums as we may in our absolute
discretion require from time to time as Margin in respect of all present,
future or contemplated Contracts and Client Contracts.
18.2 As soon as practicable we will pay or credit all Client Money or other
Margin to a Margin Account at an approved bank (which may be any of our
Associated Firms that we select. The currency of the Margin you pay to us
shall be the currency of the relevant underlying Contract or, if agreed by
us and you, another currency. Settlement of all transactions (including
Margin Payments thereon) will be made in the currency of the relevant
underlying Contract and you bear all risk and cost in respect of any
conversion of currency in a Margin Account. Any such conversion will be
made by us at such reasonable market rate or rates as we will determine.
18.3 You agree that we will hold your interest under the trust declared under
the Client Money Regulations and all other Client Money which is in a
Margin Account on trust in the following order of priority:
(a) for ourselves to the extent of all amounts which are or may become
due to us or payable by us on your behalf under or pursuant to the
Customer Documents; and, thereafter
(b) for you to the extent of any surplus which is due to you after the
payment of all amounts due to or payable by us under paragraph (a)
above.
18.4 We may withdraw Client Money and/or any other money held in a Margin
Account to pay to any Broker, Clearing house, Exchange or other parties
all margins, premiums and other sums on futures and options contracts
demanded or due from us in respect of our clients, and for any other
purposes allowed under the Client Money Regulations.
18.5 Subject to the terms of the Client Money Regulations, any loss incurred or
default by any Exchange, Clearing House or Broker in respect of Margin
paid by us shall be borne by all of our clients at the date of such loss
pari passu, in proportion to their respective entitlement to monies in the
relevant Margin Account at that time.
18.6 Where you agree to effect transactions, or if you give instructions to us
to effect transactions in a jurisdiction outside the United Kingdom, then
we may need to appoint an intermediate broker to undertake those
transactions. In order to meet the margin obligations to the relevant
Exchange or Clearing House, we may need to pass your money to an
intermediate broker as if it were held in a client bank account in the
United Kingdom. You should note that in the event of a shortfall arising
on the money available to meet the claims of segregated clients, your
claim will be restricted to the money held in our client bank accounts in
respect of transactions carried on through that intermediate broker and to
any money received from the intermediate broker relating to those
transactions.
19. MARGIN SECURITIES
19.1 Amounts you owe to us by way of Margin under Clause 18 may, in our
absolute discretion, be satisfied by way of deposit or transfer of Charged
Securities as security. We may, in our discretion, permit you to deliver
by way of Margin Charged Securities other than those accepted by the
relevant Exchange or Clearing House as Margin. Our charges for providing
this facility to you will be separately agreed with you. This Clause 19
will apply to all Securities delivered by way of Margin. Charged
Securities will not (unless we agree otherwise) be registered in your
name.
19.2 As continuing security for all your liabilities and obligations under the
Customer Documents, you acting in due capacity (and with the intent that
the security so constituted shall be a security in our favour extending to
all beneficial interests in the assets hereby charged and to any proceeds
of sale or other realisation thereof, including any redemption monies paid
or payable in respect thereof) hereby assign, charge and pledge to us,
free of all adverse interests whatsoever by way of first fixed charge, all
Charged Securities. Each Approved Custodian will hold to our order all
Charged Securities held by it for its account.
19.3 You will forthwith execute on request all transfers, assignments,
mortgages, charges and other documents, give notices and directions and do
any other acts and things as we may specify, to enable us or our nominee
to be registered as the owner of or otherwise obtain legal title to any
Charged Securities, to perfect our rights with respect to the security
referred to in this Clause 19, to secure further your liabilities and
obligations, to facilitate the exercise of our rights hereunder, or to
satisfy any Market Requirements.
19.4 You will not, without our prior written consent, at any time during the
term of this Agreement, grant or agree to grant any option over, sell,
assign or transfer, or agree to attempt to sell, assign or transfer, or
create, agree or attempt to create, or allow to exist any charge, lien, or
other encumbrance on or over any or all of the Charged Securities, except
for the charge set out above.
19.5 We will hold all Charged Securities for the purposes of satisfying any and
all of your obligations and liabilities under the Customer Documents. We
may, without prior notice, free of any interest therein of yours, any
client of yours or any other person for whom you are trustee or agent:
(a) deposit, charge, pledge or otherwise create security over the
Charged Securities with, to the order of or in favour of any
Exchange, Clearing House or Broker
(i) on such terms as such Exchange or Clearing House may
prescribe, and
(ii) on terms that, subject to the Rules, the Broker may deal with
the Charged Securities in accordance with Market Requirements
and any agreement made with us;
The relevant Exchange, Clearing House or Broker may enforce and
retain such deposit, charge, pledge or other security to satisfy any
obligations of yours or ours to the Exchange, Clearing House or
Broker; and
(b) register, sell, realise, charge or otherwise deal with the Charged
Securities on such terms (including as to the consideration received
therefore) as we may in our absolute discretion think fit (without
any prior reference to you where practicable, but in any case with
subsequent notice to you, and without being responsible for any loss
or diminution in price). Any consideration received will be credited
to the Margin Account.
If Charged Securities are denominated in a different currency from that in
which any relevant cost, damages, loss, liability or expense is
denominated, we may convert any amount realised at such rate as we
determine at the time.
19.6 Where we deposit, pledge or charge Charged Securities under Clause
19.5(a), the part of the proceeds of any sale of those securities which
exceeds your margin requirements to us will be subject, in the event of
our default, to the pooling rules under the Client Money Regulations. This
means that money held in our Client Money bank accounts is pooled and
distributed pari passu to meet the claims of all customers who are
entitled to protection under the Client Money Regulations. If there is a
shortfall in an overseas Client Money bank account, a separate pool may be
formed for all customers whose money was held in that account.
19.7 When we are satisfied that all costs, damages, losses, liabilities and
expenses incurred under the Customer Documents have been satisfied,
discharged or otherwise released, we may re-transfer or, re-deliver any
certificates or documents of title relating to you upon request.
19.8 You agree that if we re-transfer or re-deliver fungible Securities
(whether Charged Securities or otherwise) to you, these need not be the
identical Securities originally deposited, charged, or transferred to us,
and you will accept Securities of the same class and denomination or other
Securities which then represent the same.
19.9 Pending the re-transfer or re-delivery we will credit any income received
in respect of Charged Securities, net of any Taxes payable by us (whether
by withholding or otherwise) on the income, to the Margin Account. You may
direct us as to the exercise of any voting or other rights attached to or
conferred on any Charged Securities.
19.10 Unless the context otherwise requires, references in this Clause 19 to
"we" or "us" includes references to any person holding any of the
Securities or in whose name any of them may be registered.
20. LENDING/BORROWING
Subject to Clauses 19 and 24 and the Rules we are not authorised to:
(a) borrow money on your behalf against the security of Securities; or
(b) lend any documents of title or certificates evidencing title to any
third party unless we have first entered into a written agreement
with you giving us such authorisation.
CHAPTER IV - MATERIAL INTERESTS
21.1 The relationship between you and us is as described in the Customer
Documents. Neither that relationship nor the services we provide nor any
other matter will give rise to any fiduciary or equitable duties on our
part which would prevent or hinder us from doing business for or with you
(whether acting as principal or agent), doing business with associates,
connected customers, and other investors and generally acting as provided
in the Customer Documents.
We may give advice or make recommendations to you, enter into Transactions
for or with you or act as your agents or provide any other service
pursuant to Clause 2 notwithstanding that we may have a relationship,
arrangement or interest that is material in relation to the Transaction,
advice or recommendation concerned and/or the Asset underlying any
Contract or Client Contract, including (but not limited to) the following
circumstances were:-
(a) we have acted, are acting or are seeking to act as a financial
adviser or lending banker to the issuer (or any of its affiliated
companies) of the Assets the subject of a Transaction or have
advised or are advising any person in connection with a merger,
acquisition or take-over by or for such issuer (or any of its
affiliated companies);
(b) we have sponsored or underwritten or otherwise participated in, or
are sponsoring or underwriting or otherwise participating in the
Assets the subject of a Transaction;
(c) we have a holding, dealing, or market-making position or may
otherwise be trading or dealing in the assets the subject of a
Transaction or in investments (including without limitation any
futures or option contracts) or assets of any kind underlying,
derived from or otherwise directly or indirectly related to such
investments;
(d) we have received or are receiving payments or other benefits for
giving business to the firm with which your order is placed;
(e) we have been or are an associate of the issuer (or any of its
affiliated companies) of the Assets the subject of a Transaction;
(f) we are matching your transaction with that of any other client
(including without limitation us, any Associated Firm, connected
customer or other customer of us) either by acting on behalf of such
person as well as on behalf of you ("agency cross") or by executing
matching transactions at or about the same time with you and such
persons ("back-to-back principal trade").
21.2 No further disclosure to you is required of any relationship, arrangement
or interest which falls within one of the circumstances referred to in
Clause 21.1 above, and we will be entitled to retain any profit or benefit
arising as if no such relationship, arrangement or interest existed.
21.3 We will not be obligated to disclose to you any matter, fact or thing,
whether or not such disclosure would or might be a breach of any duty
owned by us to any other person, and we shall not be obliged to disclose
to you any matter, fact or thing which comes to the notice of any of our
employees, officers or directors if the employee, officer or director who
is dealing for or with you is unaware of such matter, fact or thing.
21.4 We may in our absolute discretion decline to carry out a Transaction for
or with you or to give advice or make a recommendation to you where we may
have an interest in respect thereof which will or may conflict with your
interests.
CHAPTER V - POWERS AND EXCLUSIONS OF LIABILITY
22. EXCLUSION AND RESTRICTION OF LIABILITY
22.1 Nothing in the Customer Documents shall exclude or restrict any liability
which we have, under the Rules, the FSA or the regulatory system
established by the FSA, and which may not be excluded or restricted
thereunder.
22.2 We shall not be liable to you in respect of any relevant Client Contract,
any matching Contract or otherwise if and to the extent that the relevant
Exchange, Clearing House and/or Broker has ceased for any reason
(including netting-off our positions with it) to recognise the existence
of any Contract or fails to perform or close out any Contract or defaults
in respect of margin or collateral. This will not affect your obligations
and liabilities hereunder in respect of Contracts which you have
instructed us to open and which have not been closed out.
22.3 Neither we nor any of our employees, officers or directors will be liable
for any loss resulting from any act or omission made under or in relation
to or in connection with the Customer Documents, except where such loss
results from any bad faith, wilful default, fraud or negligence of us or
any of our employees, officers or directors.
22.4 Neither we nor our employees, officers or directors will be liable for any
consequential or special damages howsoever arising.
22.5 We will not be liable for the solvency, acts or omissions of:-
(i) any nominee, custodian or other third party by whom any Charged
Securities (or other investments) pursuant to Clause 19 above; or
(ii) any bank with which we maintain any client bank account; or
(iii) any other third party with whom we deal or transact business or who
is appointed by us in good faith on your behalf unless such nominee,
custodian, bank or other third party is an Associated Firm, but we
will make available to you, when and to the extent reasonably so
requested, any rights that we may have against such person,
provided, that we have selected any nominee, custodian or other
third party in good faith and with due care.
22.6 If any claim is made by or against us or any of our employees, officers or
directors against or by any third party in connection with this Agreement,
any Contract acquired or transaction effected on your instructions or a
corresponding Client Contract or arising out of any act or omission by us
or our employees , officers or directors, you hereby agree to provide us
or our employees, officers or directors you will provide us with any
assistance which may be reasonably asked to give.
22.7 Neither we nor any of our directors, officers or employees will have any
responsibility or liability whatsoever for:-
(a) any advice or opinion which may be given to you concerning the
Customer Documents; or
(b) any expense, loss or damage suffered by you as a result of (i) our
carrying out your instructions, if we acted in accordance with such
instructions or otherwise acted reasonably, or (ii) properly
carrying out or failing to carry out any actions
which we are permitted but not required to carry out under the Customer
Documents.
23. INDEMNITY
You will fully indemnify us, our Associated Firms and any of our or their
employees, offices or directors (each an "Indemnified Person") against all
costs, expenses, damages, liabilities and losses which any such
Indemnified Person may suffer or incur directly or indirectly as a result
of, or in connection with, or arising out of the Customer Documents or any
Transaction effected on your instructions or arising out of any act or
omission by such Indemnified Person or by any other person permitted under
the Customer Documents, and against any claims which may be made against
any such Indemnified Person in the performance of the powers or duties of
any such Indemnified Person (including in any such case any cost of
enforcing the same). The indemnity will not extend to any Indemnified
Person if such costs, expenses, damages, liabilities and losses result
primarily from the bad faith, wilful default, fraud or negligence of such
Indemnified Person.
24. XXXXXX XXXXXXX'X XXXXXX
24.1 If we have determined, on our absolute discretion, that you have not
performed (or may not be able or willing in the future to perform) any of
your obligations to us under or pursuant to the Customer Documents, we may
(with prior notice only if reasonably practicable) take such steps as we
consider necessary or desirable to comply with, perform, cancel or satisfy
any of our obligations to the relevant Exchange, Clearing House or Broker
in respect of any Contract or Contracts acquired on your instructions, or
otherwise to protect our position, including closing out and/or performing
any or all such Open Contracts. For such purpose, we may:
(a) buy or sell the Asset underlying any Open contract in any manner
including to or from ourselves or any Connected Company;
(b) buy or sell futures or options contracts;
(c) open new long or short positions in order to establish a spread or
straddle;
(d) borrow, buy or sell any currency;
(e) apply any Margin;
(f) cancel, terminate or otherwise liquidate any Transaction between you
and us; and/or
(g) set off any obligation to you against any of your obligations to
us;
in each case so that all amounts spent by us in connection with any such
actions that are in excess of the amount held in the Margin Account for
you shall be paid by you to us on demand.
24.2 On the exercise of our rights under Clause 24.1 above:
(a) we are not obliged to deliver to you in respect of any corresponding
Client Contract the underlying Asset or any money received or
receivable on closing out until all of your liabilities to us are
satisfied or discharged to our satisfaction, and all amounts you owe
us are paid, and:
(i) any such underlying Asset may be registered in our name or
that of our nominee (which may be an Associated Firm), and we
or such nominee may be the custodian of the documents of title
or certificates evidencing title to such Asset;
(ii) if such amounts are not paid and/or liabilities to us are not
satisfied or discharged to our satisfaction, we may sell or
realise the underlying Asset upon terms (including the
consideration received therefore) as we in our absolute
discretion think fit, without being responsible for any loss
or diminution in price; any consideration received therefore
shall be credited to the Margin Account; and
(iii) any income in respect of such Asset paid to us, net of any
Taxes payable by us (whether by withholding or otherwise) in
respect of such income, shall be credited to the Margin
Account; and
(b) all amounts owing to us hereunder will become immediately payable.
24.3 We do not have to close out Contracts or take any other action in respect
of Open Contracts acquired on your instruction. In particular (subject to
Clause 24.1 above), no failure by you to pay Margin when demanded will
require us to close out any relevant Contract to which such Margin is
attributable.
24.4 We may convert any funds realised pursuant to this Clause 24 at such rate
and into such currencies as we may reasonably consider appropriate at the
relevant time.
25. CERTIFICATES CONCLUSIVE
Our certificate that any of our rights under the Customer Documents have
been exercisable, or as to any amount payable or due under the Customer
Documents, will be conclusive and binding on you, absent manifest error.
No purchaser, pledgee or transferee of Charged Securities will need to
enquire whether any such power has become enforceable, or to establish the
proper application of any money paid.
26. TIME OF THE ESSENCE
Time shall be of the essence in relation to all matters arising under or
pursuant to the Customer Documents in respect of Transactions or Client
Contracts or otherwise in respect of your dealing in futures or options.
27. RETENTION OF TITLE
Title to Securities purchased by you (whether upon exercise of an option
Client Contract or otherwise) will pass only when you pay the amount due
for such purchase.
28. LIEN AND SET-OFF
As further security for all of your obligations hereunder (but subject to
the Rules) we shall have the right to retain (and apply as set out below)
all of your property which we or any of our Associated Firms hold for any
purpose, including but not limited to, property held in any other of your
accounts with us or any of our Associated Firms, whether or not we have
made any advances in connection with such property. From time to time we
may, without notice, transfer and re-transfer any money or other property
between any such accounts. You shall execute such documents and take such
other action as we shall reasonably request in order to perfect our rights
with respect to any security referred to in this Clause 28.
29. FORCE MAJEURE
We shall not be liable to you for the non-performance of any of our
obligations under this Agreement due to any cause beyond our reasonable
control, including without limitation any breakdown or failure of
transmission or communication or computer facilities, postal or other
strikes or similar industrial action, or the failure of any relevant
Exchange, Clearing House or Broker to perform its obligations for any
reason.
30. TAXES
30.1 All amounts which you must pay under the customer Documents do not include
any applicable Taxes. You must pay any Taxes to us at the same time as the
amounts to which those Taxes relate.
30.2 You are fully responsible for paying all other Taxes due and the making of
all claims in relation thereto whether for exemption from withholding
taxes or otherwise, for filing any and all tax returns, and for providing
any relevant tax authorities with all necessary information in relation to
any investment business we carry on for or with you or any investments
which we hold on your behalf.
30.3 We will use all reasonable endeavours to send you any tax documents which
we receive relating to you or to any monies or investments we hold under
the Customer Documents.
31. ADVICE
You rely on your own judgement when you give orders or instructions to us.
We do not provide any legal or tax advice. Accordingly, if you consider it
necessary you should consult your own legal or tax advisers.
CHAPTER VI - AUTHORISATION
32. DUE AUTHORISATION
32.1 You represent, warrant and undertake to us that:-
(a) in any investment business we carry on for or with you under this
Agreement, you are and will be acting either as principal or as
agent;
(b) you have and will have full power and capacity and have taken all
necessary corporate and other action, and in the case of a
trustee of a particular trust you have and will have full power
and capacity under the relevant trust deeds, to enter into and
perform your obligations under this Agreement (including without
limitation the powers and capacity to grant us the charge and any
other security herein provided for) and to confer on us the
rights and powers contained in or given pursuant to this
Agreement. Without limitation:
(i) your execution, delivery and performance of this Agreement
will not violate or conflict with any Applicable Law or your
constitution or any charge, trust deed, contract or other
instrument to which you are a party or which is binding upon
you or your assets; and
(ii) the terms and conditions contained in this Agreement will be
your legal, valid and binding obligations;
(c) you are (or some other person for whom you are trustee or agent
and from whom you hold and will at all times hold all requisite
authorities is) and will at all times during the continuance of
this Agreement be the sole beneficial owner of all Charged
Securities. In each case such Charged Securities are and shall
be fully paid and free from all mortgages, charges, liens and
other encumbrances other than those which may arise in our
favour. No other person has or will have any rights or interests
therein and you are lawfully entitled to create in our favour the
security evidenced or intended to be evidenced hereby;
(d) when further Securities become Charged Securities or otherwise
subject to the charge in Clause 19.2 above you shall be deemed to
have made a further and separate representation and warranty in the
terms of paragraph (c) above;
(e) you and any person designated by you have and shall have, due
authorisation to act in all respects in relation to this
Agreement and each Transaction, Contract and Client Contract and,
in relation thereto, you have obtained, shall obtain and shall
maintain in effect all necessary authorisations, consents or
approvals (including without limitation any required by any
Regulatory Body) and shall comply with the terms of the same and
with all Applicable Law, and shall provide us with copies or
other evidence of such consents or approvals and such evidence of
compliance with such law as we may reasonably require.
32.2 You agree that, in all investment business which we carry on for or with
you where you are acting as agent, only you will be our customer and we
shall have no responsibility to any principal of yours as our customer.
32.3 If you are acting as agent for, or on behalf of another in relation to any
Contract and/or Client Contract carried out under this Agreement then:
(a) you have and will have full power and capacity to enter into this
Agreement and to perform all obligations pursuant hereto to be
performed by your principal under this Agreement;
(b) you are expressly authorised by your principal to instruct us in
relation to such Contract and/or Client Contract in accordance with
the terms and conditions of this Agreement; and
(c) you will be, and you will procure that your principal will be,
jointly and severally liable, each as if a principal, to us in
respect of all obligations and liabilities to be performed by you
pursuant to and in respect of any such Contract and/or Client
Contract.
32.4 You agree to supply us with such financial information about yourself (or
any immediate, intermediate or ultimate holding company) as we may
reasonably request.
33. AUTHORISED INSTRUCTIONS
33.1 You may from time to time notify us in writing of the names of those
persons who are authorised to give instructions on your behalf. Until we
receive notice in writing to the contrary, we shall be entitled to assume
that any of those persons have full and unrestricted power to give us
instructions on your behalf.
33.2 We are entitled to rely and act without further enquiry on any
instruction, notice, demand, request or information (by whatever means
transmitted and whether or not in writing) which purports or appears to
come and which we reasonably believe in good faith to come from you or
from any person who is or appears to us to be a person designated in the
attached Certificate (if any) or otherwise authorised by you for the
purpose of the Customers Documents or from someone acting on your behalf,
and we shall not be liable for any actions taken or omitted to be taken in
good faith pursuant thereto nor shall we be under any obligation to
confirm instructions before they are executed or the accuracy or
completeness of any such information before it is acted or otherwise
relied upon.
33.3 We are not under any obligation to execute or otherwise enter into any
particular Transaction, or to accept and act in accordance with any order
or instructions, nor shall we be obliged to give any reasons for declining
to do so.
33.4 If we decline to carry out a Transaction we will promptly notify you. We
will have no liability for any expense, loss or damage incurred by you by
reason of any omission so to notify you, otherwise than as a result of our
bad faith, wilful default or negligence; in no event will be have any
liability for any consequential or special damage.
CHAPTER VII - GENERAL
34. INFORMATION
34.1 You warrant, represent and undertake that:
(a) you will notify us promptly in writing of any significant change in
your financial position (including changes in assets, net assets or
called-up share capital); and
(b) in entering into this Agreement, we have not made and you are not
relying upon any statements, representations, promises or
undertakings whatsoever that are not contained in this Agreement;
34.2 You will:
(a) provide us on request all information in your agent's possession or
control of you or your agents as may be required to be filed or
disclosed pursuant to Applicable Law, in each case regarding us,
you, the Customer Documents or any Contract, Client Contract;
(b) file (within any applicable time periods) such reports, letters and
other communications as may be required from time to time by any
Regulatory Body relating to you or us, you, the Customer Documents,
or any Contract Client Contract; and
(c) send a copy of all such reports referred to in paragraph (b) above
to us promptly upon such filing, and we may send a copy of the same
to any relevant Exchange, Clearing House member or Broker.
35. CONFIRMATION AND STATEMENTS
As soon as practicable after we have carried out a Transaction we shall
confirm details of that Transaction to you. We will provide to you at
agreed intervals a statement of your overall trading (and Margin)
positions with us at the then available current market price.
36. TELEPHONE RECORDING
We may use voice record orders, instructions or conversations we receive
by telephone. Our voice records shall be prima facie evidence of the order
instructions or conversations recorded, and you agree that such records
shall be admissible as such evidence in any Proceedings (as defined in
Clause 42.2).
37. NOTICES
37.1 Any instructions or requests you give, or demands or confirmations by us
may be given in writing or, where permitted under the Rules, orally. Any
notice in writing (including without limitation any contract note,
confirmation or demand) may be given by posting or delivering it or by
sending it by telex, facsimile transmission or any other electronic
transmission.
37.2 Any notice of demand given by post will be sent first class, or where
appropriate, by air mail and will, subject to Clauses 37.3 and 37.4 below,
be deemed given seven business days after posting and any notice given by
delivery or by telex, facsimile transmission or any other electronic
transmission will be deemed given upon delivery or transmission (as the
case may be), and in proving service of notice it shall be sufficient to
prove, in the case of delivery by post, that the letter was correctly
addressed and was posted first class or, where appropriate, air mail or,
in the case of delivery otherwise than by post, that it was delivered to
the correct address or, in the case of transmission by facsimile or telex,
that it was transmitted to the correct number and (in the case of telex)
received the proper answer back.
37.3 Any contract note, confirmation or account statement which we give in
writing shall be deemed correct, conclusive and binding on you if not
objected to in writing within the earlier of five business days of
despatch by us or one business day of your receipt thereof.
37.4 Communications from you under Clause 33.1, 33.2 and 40.1 and any objection
pursuant to Clauses 37.3 and 39.2 shall be deemed received only if
actually delivered.
38. CORRECT ADDRESSES AND NUMBERS
Our address for serving notices is shown at the front of this document,
and our facsimile and telex numbers are:
Fax No: 0000 000 0000/0000 000 0000
Telex No: 8812564MORSTAN
We may change any of these details by written notice to you. Unless you
tell us otherwise we will assume that your correct address and facsimile
and telex numbers are those shown on any communication we receive which we
reasonably believe to come from you.
39. ENTIRE AGREEMENT AND AMENDMENTS
39.1 This Agreement, together with all other Customer Documents, represent the
entire terms on which we will undertake for or with your investment
business in Exchange-traded futures and options contracts which is
regulated by SFA. Any alteration to the Customer Documents must be agreed
by us in writing.
39.2 We may amend or supplement our arrangements with you by sending you
Further Schedules or a revised Agreement or by written agreement with you.
Any amendment or supplement will, unless we have received your written
objection, take effect twenty-one days after despatch to you or on such
later date as we may specify, and will apply in respect of any commitment
or transaction entered into by us after that date. Any amendment or
supplement that elates to or results from a change of Applicable Law may
take effect immediately or otherwise as we may specify.
40. TERMINATION
40.1 Either party can terminate this Agreement without penalty by giving notice
in writing, which will take effect seven days after the notice is given or
after any other period specified in the notice.
40.2 Termination of this Agreement will not affect the rights or liabilities of
either party in respect of Contracts and any corresponding Client
Contracts for which you have already given an instruction which we have
accepted, or in respect of which there is an outstanding liability with
us. Any termination will be without prejudice to our rights to all Margin
and amounts in the Margin Account. The Customer Documents will apply to
these liabilities until all Contracts have been closed out, settled or
delivery effected and all liabilities discharged.
40.3 Termination of this Agreement will not affect any provision of the
Customer Documents which is intended to survive termination.
41. ASSIGNMENT AND TRANSFER
41.1 The Customer Documents shall be binding upon, and inure to the benefit of,
MSIL and its successors and assigns.
41.2 MSIL may at any time cause all or any part of its rights, benefits and/or
obligations under the Customer Documents to be novated to any subsidiary
or holding company (as defined in section 736 of the Companies Act 1985)
of MSIL or a subsidiary of any such holding company or any company
otherwise affiliated with MSIL (any such company being a "Connected
Company") by delivering to you a written substitution notice. Upon
delivery of a substitution notice to you:
(a) to the extent that in the substitution notice MSIL seeks to cause
its rights and/or its obligations hereunder to be novated, you and
MSIL shall be released from further obligations to each other
hereunder and their respective rights against each other shall be
cancelled;
(b) you and the Connected Company shall acquire the same rights and
assume the same obligations between themselves as they would have
acquired or assumed by it as a result of such novation.
41.3 You may not assign any of your rights under the Customer Documents, any
Contract or Client Contract without our prior written consent. Any
purported assignment of your rights will be invalid.
42. MISCELLANEOUS
42.1 If any term or part of the Customer Documents is void, voidable or
unenforceable, the rest of the Customer Documents will not be affected.
42.2 Our rights, remedies, powers and privileges in this Agreement are
cumulative and not exclusive of any rights or remedies provided by law.
Our failure to exercise, or delay in exercising, any of our rights,
remedies, powers or privileges will not operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof.
43. GOVERNING LAW
43.1 The Customer documents and all Transactions thereunder, shall be governed
by and construed in accordance with English Law.
43.2 Any suit action, claim or proceeding (together in this Clause referred to
as "Proceedings") arising out of or in connection with the Customer
Documents or any Transaction thereunder may be brought in the English
courts. Any objection that you or we may have now or in the future to the
laying of the venue of any Proceedings in any English court, and any claim
that any Proceedings have been brought in an inconvenient forum, is
waived.
43.3 If you are entitled in any jurisdiction to claim immunity for yourself or
for your property or assets from service of process, jurisdiction, suit,
judgement, execution, attachment (whether before judgement, in aid of
execution or otherwise) or legal process in respect of your obligations
under this Agreement, or to the extent that in any jurisdiction there may
be attributed to you or your property or assets such immunity (whether or
not claimed), you waive such immunity to the fullest extent under the laws
of such jurisdiction.
43.4 You irrevocably and generally consent in respect of any legal action or
Proceedings arising out of or in connection with the Customer Documents or
any Transaction to the giving of any relief or the issue of any process in
connection with such action or Proceedings, including, without limitation,
the making, enforcement or execution against any property, asset, or
revenues whatsoever (irrespective of their use or intended use) of any
order or judgement which may be made or given in such action or
Proceedings.
IN WITNESS WHEREOF, this Agreement has been entered into on the date written in
Section A of the Customer Signature pages below.
Signed on behalf of
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
-and-
XXXXXX XXXXXXX SECURITIES LIMITED
By:
Name: X.X. Xxxxxxxxx
Title: Company Secretary
PART TWO
SCHEDULE
ADDITIONAL PROVISIONS FOR LIFFE
The provisions of this Schedule apply where the Contract is a futures or options
contract subject to the Rules of LIFFE.
1. GENERAL PROVISIONS
1.1 Xxxxxx Xxxxxxx & Co. International Limited is an individual clearing
member of LIFFE. Xxxxxx Xxxxxxx Securities Limited is a non-clearing
member of LIFFE.
1.2 You accept that in relation to LIFFE:
(a) any allocation pursuant to Clause 12 of this Agreement shall be made
as follows. We shall allocate as between clients, first, on the
basis of a first in first out (FIFO) basis and, secondly, pro rata
in respect of Open Contracts for which there is a corresponding
Client Contract;
(b) any dispute arising from or relating to this Agreement, insofar as
it relates to Contracts or Clients Contracts subject to the rules of
LIFFE, and any dispute arising from or relating to any such Contract
or Client Contract as aforesaid and made hereunder shall, unless
resolved between us, be referred to the arbitration rules of LIFFE,
or to such other organisation as LIFFE may direct before either of
us resorts to the jurisdiction of the courts (other than to obtain
an injunction or an order for security for a claim). Clause 43 of
this Agreement shall be subject to the agreement contained in this
sub-paragraph; and
(c) subject to the arbitration clause in sub-paragraph (b) above,
disputes arising from this Agreement or from Contracts or Client
Contracts made under or pursuant to this Agreement shall (for our
benefit) be subject to the exclusive jurisdiction of the English
courts to which both parties hereby irrevocably submit.
2. EXCLUSION OF LIABILITY
2.1 As a member of LIFFE and pursuant to the Rules of LIFFE, we are required
to include a provision dealing with exclusion of liability in our
agreement with you. The following provisions and paragraph 3.1 shall apply
without prejudice to the generality of Clauses 22, 23, 27 and 28 of this
Agreement with you.
2.2 LIFFE Administration and Management (the "Exchange") is obliged under the
FSA to ensure that business conducted by means of its market facilities is
conducted in an orderly manner and so as to afford proper protection to
investors. We and the Exchange wish to draw to your attention that, inter
alia, business on the market may from time to time be suspended or
restricted, or the market may from time to time be closed for a temporary
period or for such longer period as may be determined in accordance with
LIFFE's rules on the occurrence of one or more events which require such
action to be taken in the interests of, inter alia, maintaining a fair and
orderly market. Any such action may result in our being unable, and
through us you and your clients (if any) may from time to time be
prevented from or hindered in entering into contracts in accordance with
LIFFE's rules as a result of a failure of some or all market facilities.
We and the Exchange wish to draw the following exclusion of liability to
your attention and to the attention of your clients (if any). Unless
otherwise expressly provided in LIFFE's rules or in any other agreement to
which LIFFE is party, we and LIFFE shall not be liable to you or any
client of yours for loss (including any indirect or consequential loss
including, without limitation, loss of profit), damage, injury or delay,
whether direct or indirect, arising from any of the circumstances or
occurrences referred to above, or from any act or omission of the
Exchange, its officers, employees, agents or representatives, under
LIFFE's rules or pursuant to the Exchange's obligations under statute, or
from any breach of contract by or any negligence howsoever arising of the
Exchange, its officers, employees, agents or representatives.
2.3 Paragraphs 2.1 and 2.2 of this Schedule shall be construed as applying to,
and having the same effect in relation to, business which we transact, or
which we would transact, but for one of the events referred to in this
Paragraph occurring, on other futures and options markets.
3. LINKED CONTRACTS
DEFINITIONS
"LCH" means The London Clearing House
Limited;
"LIFFE" means LIFFE Administration and
Management;
"LIFFE Contract" means an Exchange Contract to
which a Linked Participating
Exchange Contract is linked;
"Linked LIFFE Contract" means an Exchange Contract made
available for trading on the
market pursuant to a Link, which
is specified as such in a General
Notice published from time to time
by the Exchange and is linked to a
Participating Exchange Contract;
"Linked Participant Exchange means a Participating Exchange
Contract" Contract specified as such in a
General Notice published from time
to time by the Exchange and is
linked to an Exchange Contract;
"Participating Exchange" means an exchange which has
concluded one or more agreements
in relation to a Link with the
Exchange and/or LCH pursuant to
which:
(i) contracts in the terms of one
or more Linked LIFFE Contracts
are to be transferred to, for
clearing by, such exchange or
its clearing house; or
(ii) contracts in the terms of a
Linked Participating Exchange
Contract are to be transferred
to, for clearing by, LCH. The
term
"Participating Exchange" shall include any clearing house
which from time to time provides
clearing services to such exchange;
"Participating Exchange Contract" in respect of a
Participating Exchange, means a
class of contract permitted to be
made by Participating Exchange
Members under Participating Exchange
rules.
GENERAL PROVISIONS
3.1 EXCLUSION OF LIABILITY
We and LIFFE Administration and Management ("LIFFE") wish to draw to your
attention that LIFFE shall have no liability whatsoever to any member or
client in contract, tort (including, without limitation, negligence),
trust, as fiduciary or under any other cause of action (except in respect
of gross negligence, wilful default or fraud on its part), in respect of
any damage, loss, cost or expense of whatsoever nature suffered or
incurred by any member or client, as the case may be, as a result of: any
suspension, restriction or closure of the market administered by either a
Participating Exchange or LIFFE, whether for a temporary period or
otherwise, or as a result of a decision taken on the occurrence of a
market emergency; any failure by a Participating Exchange, LIFFE or LCH to
supply each other with data or information in accordance with arrangements
from time to time established between all or any of them; the failure of
communications facilities or technology supplied, operated or used by
either a Participating Exchange, LIFFE or LCH for the purposes of the
Link; any event which is outside its or their control; any act or omission
of either a Participating Exchange (where a Participating Exchange is
acting otherwise than in connection with its clearing function) or LIFFE
in connection with any Participating Exchange Contract, Linked LIFFE
Contract or Linked Participating Exchange Contract or any act or omission
of a Participating Exchange, LIFFE, or LCH (as the case may be) in
connection with the operation of the Link or the arrangements for the
transfer of contracts.
3.2 GOVERNING LAW
This agreement and all contracts in the terms of LIFFE Contracts made
under this agreement shall be subject to and construed in accordance with
English Law.
3.3 MARGIN AND CLIENT MONEY/ASSETS
Following the transfer of a contract in the terms of a Linked LIFFE
Contract and the creation of a contract in the terms of a Participating
Exchange Contract or prior to the transfer of a contract in the terms of a
Linked Participating Exchange Contract and the creation of a contract in
the terms of a LIFFE Contract (as the case may be), margin requirements
will be determined in accordance with the rules of the Participating
Exchange rather than LIFFE Rules. Any money or assets held in any country
other than the UK may be subject to the applicable law of that country
rather than UK client money and other assets rules, and you should satisfy
yourself that this is acceptable to you before instructing us to transact
any such business.
PROVISIONS RELATING TO OUTWARD TRANSFERS OF LINKED LIFFE CONTRACTS
3.4 RULES OF LIFFE
All contracts in the terms of a Linked LIFFE Contract made on LIFFE shall
be subject to the Rules of LIFFE as from time to time in force.
3.5 TRANSFER
We shall endeavour to secure the transfer through the relevant Link of
each contract in the terms of a Linked LIFFE Contract made between us
which is intended for transfer. Upon confirmation by the relevant
Participating Exchange of receipt of trade/position details from LCH,
rights and obligations under such contract, save for outstanding
obligations with respect to fees and margin and those rights and
obligations referred to in the Rules of LIFFE and the Regulations of LCH,
shall be discharged and there shall arise simultaneously a contract in the
terms of a Participating Exchange Contract between us. The contract in
terms of a Participating Exchange Contract shall be subject to the rules
of the relevant Participating Exchange and shall not be subject to the
provisions of this agreement.
3.6 DELAYED TRANSFER
In the event that, on any LIFFE trading day, LCH is unable for whatever
reason to transmit details of all contracts in the terms of a Linked LIFFE
Contract, or the relevant Participating Exchange is unable to receive or
acknowledge receipt of all such details, any such contract made between us
on that day shall remain as an undischarged contract in the terms of a
Linked LIFFE Contract (but without prejudice to any default provisions
agreed between us which may be operated to discharge such contract),
subject to the Rules of LIFFE and the General Regulations and Default
Rules of LCH as from time to time in force, until such time as transfer
can be achieved.
3.7 IMPOSSIBILITY OF TRANSFER
If it is not possible for whatever reason for details of contracts in the
terms of the Linked LIFFE Contract to be transmitted by LCH, or for the
relevant Participating Exchange to receive or acknowledge receipt of all
such details, so that transfer of such contracts cannot occur on any
particular day, and any circumstances preventing such transfer continues
so that the Link is suspended or terminated, any such contract made
between us during any such period shall remain as an undischarged contract
in the terms of a Linked LIFFE Contract, subject to the Rules of LIFFE and
the Regulations of LCH as from time to time in force, and shall be
performed in accordance with its terms or may be closed out or otherwise
discharged, in accordance with the Rules and any agreement reached between
us.
PROVISIONS RELATING TO INWARD TRANSFERS OF LINKED PARTICIPATING EXCHANGE
CONTRACTS
3.8 TRANSFER
In respect of each contract in the terms of a Linked Participating
Exchange Contract made between us which is intended for transfer through
the relevant Link, rights and obligations under such contract, save for
outstanding obligations with respect to fees or margin and any other
rights or obligations referred to in the Rules of the Participating
Exchange, shall be discharged upon confirmation by LCH of receipt of
trade/position details from the Participating Exchange and there shall
arise simultaneously a contract in the terms of a LIFFE Contract between
us. The LIFFE Contract shall be subject to the Rules of LIFFE and the
General Regulations and Default Rules of LCH.
3.9 DELAYED TRANSFER
In the event that, on any Participating Exchange trading day, the relevant
Participating Exchange is unable for whatever reason to transmit details
of all contracts in the terms of a Linked Participating Exchange Contract,
or LCH is unable to receive or acknowledge receipt of all such details,
any such contract made between us on that Participating Exchange on that
day shall remain an undischarged contract in the terms of a Linked
Participating Exchange Contract (but without prejudice to any default
provisions agreed between us which might be operated to discharge such
contract), subject to the rules of the Participating Exchange as from time
to time in force, until such time as transfer can be achieved.
3.10 IMPOSSIBILITY OF TRANSFER
If it is not possible for whatever reason for details of contracts in the
terms of a Linked Participating Exchange Contract to be transmitted by the
relevant Participating Exchange, or for LCH to receive or acknowledge
receipt of all such details, so that transfer of such contracts cannot
occur on any particular day, and any circumstance preventing such transfer
continues so that the Link is suspended or terminated, any such contract
made between us on that Participating Exchange during that period shall
remain as an undischarged contract in the terms of a Linked Participating
Exchange Contract, subject to the rules of the Participating Exchange as
from time to time in force and shall be performed in accordance with its
terms or may be closed out or otherwise discharged in accordance with the
Rules and any agreement reached between us.
PART THREE
NON-PRIVATE CUSTOMER DOCUMENTS
(EXCHANGE-TRADED DERIVATIVES)
CUSTOMER SIGNATURES
To: Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxx Xxxxxxx Securities Limited
The undersigned agrees to the terms of the Non-Private Customer Agreement
(Exchange-traded Derivatives) including without limitation, the indemnities,
exclusions and restrictions of duties and liabilities in your favour therein and
any additional enclosures, all of which we have read and understood.
Date:
---------------------- ----------------------
Signed:
---------------------- ----------------------
Name(s):
---------------------- ----------------------
Print
Authorised Signatory(ies)
for and on behalf of
---------------------- ----------------------
Print Name of Client (Non-Private Customer)
All notices or other documents pursuant to this booklet shall be served at the
following address:
Address:
For the attention of:
Telex and Answerback:
Fax:
Corporate Registered Office
(if different from above)
CUSTOMERS DOMICILED IN LUXEMBOURG ONLY
I/We confirm that I/we specifically and expressly consent to Clause 9, 21, 22,
23, 32, 33, 34, 39, 40 and 42 of the above Agreement for the purposes of Article
1135-1 of the Civil Code and Article 1 of the Protocol annexed to the Convention
on Jurisdiction and the Enforcement of Judgements in Civil and Commercial
Matters signed in Brussels on 27th September 1968.
Signed:
THIRD PARTY TRADING AUTHORISATION
THIS DOCUMENT SHOULD BE COMPLETED ONLY BY CUSTOMERS WHO HAVE SIGNED THE
CUSTOMER SIGNATURE PAGES BUT WHO WISH TO DELEGATE AUTHORITY TO AN INVESTMENT
ADVISOR, INVESTMENT MANAGER OR OTHER THIRD PARTY.
To: Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxx Xxxxxxx Securities Limited
Dear Sirs
I/We refer to the Non-Private Customer Agreement (Exchange-traded Derivatives)
set out on the preceding pages of this booklet which is supplemented hereby.
Terms used herein have the same meanings as ascribed to them in the Agreement
and any customer documents referred to therein.
I/We hereby authorise the individual or organisation named as agent (in the
"Agent's Details" section below) and hereinafter referred to as the "Agent" as
my/our agent to purchase, sell and trade generally in, exercise, and otherwise
enter into and carry out transactions and give other instructions relating to
financial and commodity futures, options and contracts for differences (and any
related transactions including without limitation, foreign exchange transactions
to facilitate any of the foregoing), on margin or otherwise, for my/our account
and risk and in my/our name or number on your books, including trades which will
or may result in me/us having short position in any such investment. I/We
authorise you to accept and act on:
(a) any and all orders and instructions received in connection with
such transactions; and
(b) any other instructions of the Agent in any respect concerning my/our
account(s) with you (including, without limitation, delivering or
otherwise as the Agent may order or direct, and whether or not any
such delivery or other transfer is to be made against payment, or
any such payment is to be made against delivery or other transfer).
In all matters or things mentioned above or otherwise concerning or incidental
to any of my/our account(s) with you, the Agent is authorised to act for me/us
and in my/our behalf in the same manner and with the same effect as I/we
myself/ourselves might or could do. The Agent may from time to time appoint (in
writing, effective upon receipt thereof by you) individuals to sign documents
and give instructions pursuant to this authorisation.
I/We acknowledge that any Transaction entered into by the Agent pursuant to the
above authority will be governed by the customer documents and that I/we shall
have all the rights and obligations in respect thereof as are contained in the
customer and, without prejudice to the generality of the foregoing, I/we shall
indemnify you and hold you harmless from, and pay you promptly on demand, any
and all losses, costs, expenses, damages and liabilities whatsoever (including
consequential and special damage) arising directly or indirectly from any such
Transaction or debt balances due thereon.
This authorisation and indemnity is in addition to, and in no way limits or
restricts, any rights which may have under the customer documents and any other
agreement or agreements entered between us.
I/We acknowledge that neither you nor any of your associates nor any of your or
their directors, offices or employees will be liable for any loss howsoever
suffered by me/us pursuant to this authorisation unless loss arises from your
negligence, bad faith, wilful default, or fraud. I/We have carefully examined
the provisions of the documents by which I/we have given trading authority or
control over my/our account(s) to the Agent and understand fully the obligations
which I/we have assumed by executing that document. I/We understand that neither
you nor any of your associates are in any way responsible for any loss to me/us
occasioned by the actions of the Agent, and you do not, by implication or
otherwise, endorse the operating methods of the Agent. We further understand
that to the extent that we now or hereafter give to the Agent authority to
exercise any of my/our account(s) I/we do so at my/our own risk.
This authorisation may be terminated by me/us at any time with effect from
actual receipt by you of written notice of termination. Termination of this
authorisation shall not affect any liability resulting from transactions
initiated prior to such termination. This authorisation and indemnity shall
inure to your benefit and that of your successors and assigns.
Yours faithfully
Signed:
---------------------- ----------------------
AGENT'S DETAILS (PLEASE PRINT)
Name of Agent: ----------------------------
Address of Agent: ----------------------------
Telephone: ----------------------------
Telex and Answerback: ----------------------------
Fax: ----------------------------
CERTIFICATES OF AUTHORITY TO DEAL
FOR USE BY COMPANIES AND PARTNERSHIPS
Certificate of Company Secretary/Authorised Partner*
Extracts from the Minutes of the Meeting of the Board of
Directors/Partners/Management Comimttee* of ___________________ (the
"Company/Partnership") held at ______________ on _______________ 19___
IT WAS RESOLVED THAT:
(1) the Company/Partnership* is by its Memorandum and Articles of
Association/Partnership Agreement/constitutional documents* empowered to
trade in financial and commodity futures, options and contracts for
differences ("investments") and to enter into and perform the Non-Private
Customer Agreement between the Company and Xxxxxx Xxxxxxx & Co.
International Limited and Xxxxxx Xxxxxxx Securities Limited concerning
investment and dealing and related services (including such transactions
in such investments);
(2)+ trading or dealing in financial and commodity futures, options and
contracts for differences and/or other investments pursuant to the
Non-Private Customer Agreement would be carrying on the ordinary business
of the Partnership;
(2/3*) any one/two* of the undermentioned designated persons be hereby
authorised, on behalf of the Company/Partnership*
(a) to accept and sign the Non-Private Customer Agreement;
(b) to sign all documents in connection with, and give all instructions
relating to, trading in investments and otherwise howsoever under
the pursuant to the Non-Private Customer Agreement; and
(c) to delegate authority to one or more persons to sign any documents,
give any instructions and do anything else permitted to be signed,
given or done by such designated person.
DESIGNATED PERSONS
Name Position Signature
I certify that the above is a true extract from the Minutes of a duly convened
and held meeting of the Board of Directors/Partners/Management Committee* of the
Company/Partnership*
Signed:
Name:
Title: Secretary/Director/Authorised Partner*
Date:
-----------------------
* Delete as appropriate
+ Partnerships
Note: Companies incorporated outside the UK, British Dependent Territories and
Commonwealth may, instead of extract minutes comprising a director's
resolution, provide a certificate signed by a duly authorised officer of
the Company (and showing the officer's name and title) and comprising both
paragraphs (1) and (2) as applicable to companies but preceded by the
words "This is to certify that".
Corporate general partners of a limited partnership should provide a
certificate as a company but including appropriate additional references
to the partnership (including paragraph 2 for partnerships).
CERTIFICATE OF TRUSTEES
(FOR USE BY TRUSTEES)
Extracts from the Minutes of a Meeting of the trustees of
-----------------------------------------------
(the "Trust") held at ___________________ on _________________ 19___
IT WAS RESOLVED THAT all the Trustees accept and authorise the signature on
behalf of each of them of the Non-Private Customer Agreement between the
Trustees and Xxxxxx Xxxxxxx & Co. International Limited and Xxxxxx Xxxxxxx
Securities Limited concerning transactions in financial and commodity futures,
options and contracts for difference and that, in connection therewith:
(1) The Trustees, after taking legal advice, were satisfied that they were
empowered by the Trust Deed(s) constituting the Trust to enter into and
perform the Non-Private Customer Agreement and all liabilities and
obligations attaching to the "Private Customer" (as defined) thereunder;
(2) The exercise of all rights and privileges of the "Non-Private Customer"
(as so defined) under the Non-Private Customer Agreement would be carried
out only in accordance with the said powers contained in the Trust Deed(s)
constituting the Trust and in particular after obtaining all proper and
requisite investment advice;
(3) The Trustees were satisfied that they were empowered by the said Trust
Deed(s) to delegate the requisite powers and pursuant to that power any
one/two* of the undermentioned persons be hereby authorised, on behalf of
the Trustees:
(a) to sign the Non-Private Customer Agreement and all documents in
connection with, and give all instructions relating to, the
Non-Private Customer Agreement; and
(b) to delegate authority to one or more persons to sign any documents,
give any instructions and do anything else permitted to be signed,
given or done by such designated person;
DESIGNATED PERSONS
Name Position Signature
(4) The Trustees would give to Xxxxxx Xxxxxxx & Co. International Limited and
Xxxxxx Xxxxxxx Securities Limited written notice in the terms of
sub-paragraph (3) above each time there was an alteration in the persons
authorised as referred to in such sub-paragraph.
I certify that the above is a true extract from the Minutes of a duly convened
and held meeting of all the Trustees of the Trust.
Signed: ------------------------ ------------------------
Name: ------------------------ ------------------------
Title: Chairman of the Trustees/Authorised Trustee*
------------------------ ------------------------
Date: ------------------------ ------------------------
-------------------
* Delete as appropriate
