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[E D & F MAN CAPITAL LOGO] EXHIBIT 10.1
Corporation and Partnership
Customer Agreement
E D & F MAN CAPITAL INC
E D & MAN CAPITAL INC Account
Two World Financial Center, 00xx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000 ------------------------
TERMS AND CONDITIONS
These standard following terms and conditions (hereinafter called "Terms") shall
apply to all transaction between E D & F Man Capital Inc (hereinafter called
"FMC") and the undersigned ("the client") in spot, forward, and option
contract ("contracts").
For purposes of these Terms, "transaction" shall mean any purchase of, sale of,
entering into, trading of, marking or taking delivery under or otherwise
dealing in or with contracts. For the purposes of these Terms "contracts" shall
include without limitation forward, spot and option contracts for precious
metals, currencies, and any other commodity and financial instrument including
foreign exchange.
FMC shall open one or more accounts for the purpose of the client engaging in
transactions through the facilities of FMC.
FMC shall not be obliged to quote a price to the client in respect of any
transaction. Any price which FMC may quote shall, upon acceptance by the
client, be binding upon the client save for manifest error.
The client warrants to and undertakes with FMC that the client has full power
and authority to enter into and perform its obligations hereunder.
The word "property" in these Terms means securities of all kinds, monies,
options, commodities and contracts for the future delivery of, or otherwise
relating to commodities or securities and all property, including, but not
limited to, property customarily dealt in by brokerage firms, including
warehouse receipts and warrants.
The client agrees that any property belonging to the client or in which the
client has an interest held by FMC or any of FMC's subsidiaries or affiliates
("affiliates") or carried in any account with any of them shall be subject to a
first priority lien and security interest for the discharge of client's
obligations to FMC and/or any of FMC's affiliates, wherever or however arising
and without regard to whether or not FMC or any of the affiliates has made
advances with respect to such property. FMC and all or any of the affiliates
are hereby authorized to sell and/or purchase any and all such property without
notice to satisfy such lien and security interest. The client hereby irrevocably
appoints FMC as the client's attorney-in-fact with power of substitution to
execute any documents for the perfection or registration of such security
interest and lien.
The client agrees to maintain with FMC such property as FMC may from time to
time in its discretion require and to pay immediately on demand any amount
owing with respect to any of the client's accounts. In the event that: (a) the
client is in breach of any provision hereof (including but not limited to the
failure to maintain required property margin, and/or to make or take delivery,
and/or to pay promptly any amount owned to FMC or its affiliates); (b) the
client dies, becomes bankrupt, or commits an act of bankruptcy or insolvency,
or if a company, it goes into liquidation, whether voluntary or otherwise; (c)
the client ceases to carry on its business, disposes or threatens to dispose of
a substantial portion of its assets, becomes unable or fails to pay its debts
as they become due; (d) FMC is reasonably of the opinion that the obligations
of the client may not be fulfilled; or (e) FMC reasonably considers it
necessary or desirable for its own protection: then FMC may liquidate the
positions in all or any of the client's accounts, hedge and/or offset those
positions at the client's sole risk, sell any property belonging to the client,
or in which the client has an interest, cancel any open orders for the purchase
and sale of any property, and FMC may borrow or buy any property required to
make delivery against any sales. Such sale or purchase may be public or private
and without advertising, and no demands, tenders or notices which FMC may make
or give shall invalidate the client's aforesaid waiver. At any such sale FMC
may purchase the property free of any right of redemption and the client agrees
not to make any claim against FMC concerning the manner or sale or timing
thereof. The proceeds of such transactions are to be applied to reduce any
indebtedness owing to FMC or any affiliate. FMC may take any of the actions in
this paragraph without notice to or demand of the client. Notwithstanding this,
FMC will attempt to notify the client before taking any such action.
The client shall be liable for all losses and/or debts in the client's
account(s) whether or not such account(s) are liquidated and this shall
include debts resulting from a liquidation of an account or accounts.
The client agrees to pay storage, insurance, taxes, delivery charges and
service fees, if any, charged to its account(s). The client also agrees to pay
interest charges upon any monies owed to FMC in connection with its account(s)
at either 2% per annum over the prime lending rate for US Dollars are charged
by Chemical Bank New York or, for other currencies, 2% per annum over the
overnight London Interbank Offered Rate (LIBOR), as charged by Chemical Bank
London. The client acknowledges that interest will not be paid to the client on
any cash balances, securities or other property in the client's account(s)
unless specifically agreed to by FMC in writing, provided, however, that if
either of the above rates are unavailable from Chemical Bank, then, another
money center bank's rates may be used.
The client understands that FMC charges commissions for the execution of
certain transactions at rates agreed to by the parties and that for certain
transactions the price charged to the client includes a charge made by FMC on
the transaction.
Confirmation of transactions may be sent by telex and/or by facsimile
transmission and/or by mail. Telex and facsimile confirmation shall be
conclusive upon receipt unless objected to within one business day. Receipt by
telex will be evidenced by telex answerback on the telex confirmation. Receipt
by facsimile will be evidenced by the receipt log generated by the transmitting
machine. In the event that no telex or facsimile confirmation is sent,
confirmation by mail shall be conclusive if not objected to in writing within
the earlier of seven days after mailing by FMC or one business day after
receipt. In the event that the client fails to receive a confirmation within
five days from the date of the dealing, the client agrees to notify FMC
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immediately in writing.
In any legal action which arises out of these Terms, or any transaction
hereunder, the client agrees that: (i) service of process may be made upon the
client by first class or certified mail to the address as shown on FMC's
records and the client hereby waives any objection to such service; (ii) the
courts of the State of New Jersey and United States courts sitting in the State
of New York shall have jurisdiction over the client, and the client hereby
waives any objection to such jurisdiction; (iii) the venue of any such action
shall be New York County or the Southern District of New York; and (iv) the
client will pay FMC's reasonable disbursements including the costs of
collection, attorney's fees and sheriff's poundage fees, if any.
Notwithstanding the agreements in (ii) and (iii) above, the client agrees that
FMC may in its sole discretion, initiate proceedings in the courts of any other
jurisdiction in which the client is resident or in which its assets are
situated.
FMC is not responsible for any losses that it reasonably determines result
directly or indirectly from any government restriction, exchange ruling,
suspension of trading, war, strike, natural disaster or wire malfunction, delay
in mails, or any other delay or inaccuracy in other information or orders or in
the transmission of such other information or orders because of a breakdown or
failure of communication facilities, or for any other act not within FMC's
control. Commodity information, price quotations and/or trade reports given to
the client are also subject to change and to errors as well as to delays in
reporting, and the client acknowledges that reliance upon such information
shall be at the client's own risk.
If a provision of these Terms is or shall become inconsistent with any law or
regulation of any government or regulatory body having jurisdiction, such
provision shall be deemed to be rescinded or modified in accordance with any
such law or regulation. In all other respects, these Terms shall continue and
remain in full force and effect.
FMC's failure to insist at any time and for any period of time upon strict
compliance with these Terms shall not constitute or be a waiver by FMC of any
of its rights. These Terms may be translated by FMC into a language other than
English as convenience to the client but the client agrees that FMC is not
responsible for the accuracy of such transaction and that only the English
version will be binding.
It is understood that obligation arising out of transactions denominated and/or
paid for in currencies other than US Dollars may be converted to US Dollars at
the discretion of FMC, at an exchange rate determined by FMC in its discretion
based on prevailing market rates (where applicable), and that the client will
then be required to pay FMC in US Dollars.
These Terms are governed by the laws of the State of New York without reference
to conflict of laws principles. FMC may amend these Terms by written notice
to the client and any such amendment will be effective on a date specified in
the notice. Any modification of the Terms must be in writing and accepted by
FMC in writing. No employee of FMC is authorized to make any representations
contrary to these Terms.
CUSTOMER NAME: The Xxxxxx Fund Limited Partnership
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SIGNATURE: /s/ Xxxxxx X. XxXxxxx
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Xxxxxx X. XxXxxxx
PRINT NAME & TITLE: Senior Vice President of Kenmar Advisory Corp. G.P.
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CUSTOMER ADDRESS: Two American Lane
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X.X. Xxx 0000
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Xxxxxxxxx, XX 00000-0000
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TELEPHONE: (000) 000-0000
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FAX#: (000) 000-0000
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DATE: 8/27/96
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CORPORATION CERTIFICATE
Gentlemen:
I am the Secretary of _____________________________________, a corporation
organized under the laws of _______________________ (the "Corporation"). I
hereby certify that the following resolutions were duly adopted by the Board of
Directors of the Corporation on ____________________ and are now in full force
and effect:
RESOLVED THAT:
1. The Customer Agreement and related applications, declarations,
certificates, questionnaires and other account documents (collectively, the
"Account Agreements") of _____________________________________________________
(FMC), in the form presented at this meeting, be and hereby are approved,
subject, however, to such changes therein as may be approved by the President
or any Vice President of the Corporation, acting singly, such approval to be
evidenced by the execution of the Account Agreements by any one of said
officers; that each such officer of the Corporation, acting singly, be and
hereby is authorized, empowered and directed to execute and deliver the
definitive Account Agreements, in the name and on behalf of the Corporation,
and to take all such actions and to execute and deliver all such other
agreements, instruments, or documents FMC, in its discretion, may require in
connection with this Corporation's request to open one or more accounts with
FMC and any transactions involving any such account.
2. Each of the following officers of the Corporation, acting alone,
be and hereby is authorized, in the name and on behalf of this Corporation, to
take all such actions as may be necessary or appropriate in connection with any
transaction involving any account of this Corporation with FMC, including
without limitation:
(A) To give orders to buy, sell, trade and otherwise deal in
contracts as defined in the Customer Agreement for immediate delivery or for
delivery under the terms of spot, forward, or option contracts, on margin or
otherwise;
(B) To deposit with or withdraw from any such account any Property,
as defined in the Customer Agreement;
(C) To pay all commissions, fees or other charges of FMC and to
deposit any margins or premiums required by FMC;
(D) To receive and acquiesce in the correctness of notices,
confirmations, requests, demands, and communications of every kind;
(E) To settle, compromise, adjust, and give releases with respect to
any and all claims, demands, disputes and controversies;
(F) To make agreements and take any other action relating to any of
the foregoing matters;
and FMC shall be entitled to act in accordance with any instructions, whether
oral or written, that may be given by any one of such officers with respect to
any account or transaction of this Corporation:
The President, any Vice President, and _____________________________
____________________________________________________________________
3. The Secretary be and hereby is authorized, empowered and
directed, in the name and on behalf of this Corporation, to certify to FMC the
names and signatures of the officers referred to in the preceding resolution
and to certify to FMC that these resolutions have been duly adopted, are in
full force and effect and are in accordance with the provisions of the charter,
certificate of incorporation, by-laws, resolutions and other organizational
documents of this Corporation and all laws, rules, regulations, court or
government rulings and orders, contracts and agreements which are or may be
binding on this Corporation.
I further certify that the following are the names and signatures of the
officers referred to in the preceding resolutions, which officers have been
duly elected and qualified and now hold the respective offices set forth
opposite their names below:
President _____________________________ _____________________________
Full Name Signature
Vice President _____________________________ _____________________________
Full Name Signature
__________________ _____________________________ _____________________________
Full Name Signature
__________________ _____________________________ _____________________________
Full Name Signature
__________________ _____________________________ _____________________________
Full Name Signature
I further certify that the resolutions set forth above are in accordance with
the charter, certificate of incorporation, by-laws, resolutions and other
organizational documents of the Corporation and all laws, rules, regulations,
court or governmental rulings and orders, contracts and agreements which are or
may be binding on the Corporation.
Very truly yours,
(CORPORATE SEAL) ____________________________________
Secretary
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TRADING AUTHORIZATION
Gentlemen:
The undersigned Customer, hereby authorizes XXXXXX TRADING GROUP, INC.
whose signature appears below, as its agent and attorney-in-fact (the "Agent"),
to purchase, sell (including short sales) and trade for it in contracts as
defined in the Customer Agreement, on margin or otherwise, in accordance with
your rules, terms and conditions, for the account and risk of the Customer, and
in the name or number of the Customer on your books.
In connection with such purchases, sales and trades, you are directed to
follow the instructions of the Agent concerning the Customer's account with you.
The Agent is hereby authorized to act on the Customer's behalf with the same
force and effect as it might or could do with respect to such purchases, sales
and trades.
The Customer hereby ratifies and confirms any and all transactions with you
heretofore or hereafter made by the Agent for the account of the Customer.
The provisions of this Authorization are in addition to, and do not
restrict or otherwise limit, any rights that you may have pursuant to any other
agreement between you and the Customer, including any Customer Agreement.
This Authorization may be terminated by the Customer at any time as of the
receipt by you of written notice of termination, which is mailed by registered
mail to you. Termination of this Agreement shall not affect any obligations of
the Customer to you under any other agreement between you and the Customer
(including any Customer Agreement), or in connection with any outstanding
amounts, including debit balances and other costs and expenses.
KENMAR ADVISORY CORP., G.P.
Customer: THE XXXXXX FUND LIMITED PARTNERSHIP By: Xxxxxx X. XxXxxxx
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Title: SENIOR VICE PRESIDENT
SIGNATURE OF AGENT
Dated: 8/27/96
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PARTNERSHIP CERTIFICATE
Gentlemen:
The undersigned general partners of THE XXXXXX FUND LIMITED PARTNERSHIP, a
partnership organized under the laws of CONNECTICUT (the "Partnership"), hereby
certify and agree that:
1. The persons listed in Exhibit A are all of the general partners of the
Partnership and the document annexed as Exhibit B is a true and correct copy of
the partnership agreement of the Partnership.
2. Each of the following partners, acting alone, is authorized, in the
name and on behalf of the Partnership and its partners, to take all such actions
as may be necessary or appropriate in connection with any transaction involving
any account of the Partnership with you, including without limitation:
(a) To give orders to buy, sell, trade and otherwise deal in contracts as
defined in the Customer Agreement for immediate delivery or for delivery under
the terms of spot, forward, or option contracts, on margin or otherwise;
(b) To deposit with or withdraw from any such account any Property, as
defined in the Customer Agreement;
(c) To pay all commissions, fees or other charges of FMC and to deposit any
margins or premiums required by FMC;
(d) To receive and acquiesce in the correctness of notices, confirmations,
requests, demands, and communications of every kind;
(e) To settle, compromise, adjust, and give releases with respect to any
and all claims, demands, disputes and controversies;
(f) To make agreements and take any other action relating to any of the
foregoing matters;
and you shall be entitled to act in accordance with instructions, whether oral
or written, that may be given by any one of the following partners with respect
to any account or transaction of the Partnership.
3. In the event of the death or withdrawal of any general partners, the
remaining partners will immediately notify you of such fact.
Very truly yours,
General Partner Xxxxxx X. XxXxxxx
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General Partner
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General Partner
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General Partner
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General Partner
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