CUSTOMER AGREEMENT
In consideration of the acceptance by FIMAT USA, Inc. ("FIMAT") of one or more
accounts (the "Account(s)") of the undersigned ("Customer") and of FIMAT acting
as broker for customer, the Customer agrees as follows:
I. RISKS AND AUTHORITY
A. Risks of Commodity Trading. In addition to the Commodity Futures
Trading Commission ("CFTC") mandated Risk Disclosure Statement
attached hereto, Customer understands that (i) Customer may be trading
in commodity futures contracts, options on commodity futures
contracts, foreign futures contracts and options on foreign futures
contacts (collectively, "Commodity Futures Contracts") securities and
securities options (collectively "Securities"), derivative
instruments, spot and forward contracts, physical commodities, cash
and other properties and options thereon (collectively, "Other Account
Instruments") and/or currencies and foreign exchange contacts and
options: thereon, ("Forex," and together- with Commodity Futures
Contracts, Securities, Other Account Instruments and Forex being
herein collectively defined as "Commodities"), and such trading is
highly speculative; (ii) prices are subject to sharps toward and
downward movements; (iii) price fluctuations may result in losses
which substantially exceed the capital in Customer's Account(s), (iv)
on trading days on which the subject of Customer's trading reaches its
permissible exchange price limit, trading may cease, as a result of
which Customer may be locked into substantial losses, and (v) in
transactions on exchanges on which foreign currency is used, any
profit or loss may be affected by exchange rate fluctuations. Customer
is willing and able, financially and otherwise, to assume the risks of
such trading. Customer recognizes that assurance of profit or freedom
from loss is impossible to guaranty. Customer has received no
assurance and will place no orders in reliance on any such assurance
or similar representations. Customer understands that FIMAT may
without notice to Customer exercise any of the remedies listed in
Sections 111.0 and IV hereof if Customer fails to maintain adequate
margin or if any other event of default occurs. Customer agrees to
review carefully each confirmation statement FIMAT sends Xxxxxxxx and
notify FIMAT immediately in accordance with Section III.F hereof.
B. FIMAT's Authority and Responsibility. Customer authorizes FIMAT to
purchase and sell Commodities, as agent for Customer's Account(s) in
accordance with tire oral or written instructions of Customer or
persons authorized in writing to act, or persons reasonably believed
by FIMAT to be acting, on Customer's behalf. Unless Customer specifies
to the contrary, FIMAT is authorized to execute all orders on any
exchange or other market where such business is conducted which may be
deemed by FIMAT, in its sole discretion, to be appropriate. Customer
hereby waives any defense that any such instruction was not in
writing, as may be required by any law, rule or regulation. XXXXX
agrees to provide the services contemplated hereunder in any
commercially reasonable.
Customer authorizes FIMAT or its agents to investigate Customer's
credit standing and in connection therewith to contact such banks
(including, without limitation, any of FIMAT's Affiliates,. such as
Societe Generale), financial institutions and credit agencies, as
FIMAT shall deem appropriate to verify information regarding Customer.
Customer authorizes FIMAT, in its sole discretion, to provide and/or
exchange any financial information with respect to Customer with any
of FIMAT's Affiliates.
C. Introduced Accounts (Only if applicable). Customer understands that
Customer's Account(s) with FIMAT was introduced to FIMAT by an
intermediary (as defined in Section II.F below), and that, except for
companies which are members of the FIMAT Group, the Intermediary is an
independent business entity which is not in any way affiliated with or
an agent of FIMAT. Customer hereby authorizes FIMAT to accept all
orders and instructions from its Intermediary and hereby ratifies all
orders and instructions which FIMAT believes in good faith to have
been transmitted by its Intermediary on Customer's behalf, which FIMAT
is authorized to act upon. If Customer is dealing with an
Intermediary; make all checks payable to, and wire all funds directly
to "FIMAT USA, Inc.". FIMAT INTERMEDIARIES DO NOT HANDLE CUSTOMER
FUNDS, EXCEPT TO FORWARD TO FIMAT CHECKS MADE OUT TO FIMAT.
D. Customer Representations and Warranties. Except as disclosed in
writing to FIMAT prior to execution and delivery of this Agreement or
in a subsequent written notice from Customer to FIMAT, Customer
represents and warrants as follows: (1) Customer is not (a) a general
partner, officer; director; more than ten percent owner,
correspondent, agent (or person associated with as agent), associated
person, or employee of a futures mission merchant, commodity trading
advisor, commodity pool operator, or an introducing broker, (b) a
relative, spouse, or relative of a spouse of any of the foregoing
persons who shares the same home with any such person; (c) a member of
an exchange or a director or employee of an exchange, bank, trust
company, insurance company, or regulatory or self-regulatory
organization, or (d) engaged individually or as an employee in the
business of dealing, as broker or principal, in Commodities other
items, documents of title relating to Commodities, bills of exchange,
acceptances, or other forms of commercial paper, and if Customer
becomes so employed or engaged Customer will promptly notify FIMAT in
writing; (2) Customer, if applicable, (a) is duly organized and in
good standing under the laws of the jurisdiction in which it was
organized and in all jurisdiction where it is qualified to do
business; (b) has the requisite capacity power and authority to
execute, deliver and perform its obligations under this Agreement and
such Other Agreement, including without limitation, the granting of
any security interests in the Collateral as contemplated hereby and
thereby; (c) none of the execution delivery or performance by Customer
of its obligations under this Agreement or such Other Agreement
conflict with the provisions of any material contract; agreement or
instrument binding upon you or your properties, or the provisions of
any law, statute, rule, regulation or decree, order or determination
of any court of law applicable to Customer; and (d) no consent
authorization, permit or filing is required in connection with the
execution, deliver, add performance by Customer of this Agreement or
such Other Agreement, except those that have been obtained or made and
filings necessary to ornate, perfect and retain any security interest
in, or lien upon, any Collateral for any of Customer's obligations to
FIMAT; (3) Customer, if an individual, is of sound mind, legal age and
legal competence; (4) no person other than Customer has or will have
an interest in Customer's Account(s) except a otherwise disclosed in
writing to FIMAT; and (5) all the information provided in the Customer
Application is true correct and complete as of the date hereof and
that Customer will promptly notify FIMAT of any material change in
such information:
E. Customer is Principal. Unless Customer has advised FIMAT in writing
otherwise prior to execution and delivery of this Agreement, Customer
is acting for Customer's Account(s) as principal and not as agent in
transactions under this Agreement. Customer will give written notice
to FIMAT before granting any person or entity any interest in
Customer's Account(s) or undertaking to act as agent for any party
with respect to Customer's Account(s).
II. DEFINITIONS (As used in the singular or plural)
A. Affiliate. "Affiliate" includes Societe Generale, FIMAT International
Banque and any of their affiliates or subsidiaries.
B. Agreed by FIMAT. "Agreed by FIMAT" means an agreement in writing under
the hand of a person whose name and signature at the material time
appear an a list of authorized signatories maintained by FIMAT at its
offices. A copy of the list is available for inspection upon
reasonable notice at FIMAT's offices during usual business hours.
C. Applicable Law. "Applicable Law" shall have the meaning set forth in
Section III.A.3 below.
D. Collateral. "Collateral" means all of Customer's right, title and
interest in and to all goods and other property, including without
limitation, Commodities, the Account(s), inventory, documents,
accounts, general intangibles, chattel paper and all proceeds of such
property including but not limited m interest on or profits from the
Account(s). Any property en route to or allocated by any third party
to FIMAT and/or any Affiliate shall be deemed "Collateral" for
purposes of this Agreement.
E. Commodity Exchange. "Commodity Exchange" means any exchange,
association, contract market or clearing association, whether
incorporated or unincorporated or persons who are engaged in the
business of buying or selling any commodity or receiving the same for
sale on consignment.
F. Intermediary. "Intermediary" includes an introducing broker, fully
disclosed futures commission merchant, foreign broker, or any other
person or entity acting in a similar capacity.
G. Liability. "Liability" means all Customer's obligations direct or
indirect to FIMAT or its Affiliates of whatever form and however
arising, including any indebtedness now or hereafter existing under
this Agreement or any Other Agreement or any debit balances in the
Account(s).
H. Other Agreement. "Other Agreement" means any and all agreements,
documents and instruments (including without limitation, promissory
note(s), security agreement(s), pledge agreement(s) and guaranty(s))
executed by or on behalf of Customer in favor of FIMAT and/or an
Affiliate, as such agreements, documents and instrument; may lie
amended, supplemented or otherwise modified from time to time is
accordance with their respective terms.
III. TERMS OF TRANSACTIONS
A. Applicable Rules and Terms. The Account(s) and all transactions and
agreements in respect of the Account(s) shall be subject to:
1. the terms of this Agreement and any other turns Agreed by FIMAT
and Customer;
2. FIMAT's terms from time. to time in effect with respect to the
specific type of transaction and the terms of FIMAT's
confirmation of the transaction, except to the extent
specifically inconsistent with Subsection III.A.1 above;
3. the regulations of all applicable Federal, state and
self-regulatory agencies or authorities, including but not
limited to: (i) the provisions of the Commodity Exchange Act; as
amended, and any rules, regulations, order and interpretations
promulgated thereunder by the CFTC; and (ii) the constitution,
bylaws, rules, regulations, orders and interpretations of the
Commodity Exchange (and its clearing house, if any) on which such
transactions are executed and cleared, and any relevant
registered futures association, including, without limitation,
the National Futures Association ("NFA"), except to the extent
Subsections III.A.1 or III.A.2 above provide more specific
restrictions. All such provisions, rules, regulations, orders,
interpretations; constitution, by-laws, custom and usage are
hereinafter collectively referred to as "Applicable Law;" and
4. customary practice in the trade, except to the extent
specifically inconsistent with Subsections III.A.1, IIIA.2, or
III.A.3 above.
X. Xxxxxx. Customer will pay to FIMAT (and only to FIMAT) all amounts
FIMAT requires as margin or to satisfy any other of Customer's
obligations under this Agreement in U.S. Dollars in immediately
available funds, unless otherwise agreed, as FIMAT requires. FIMAT at
any time may change the margin requirements with respect to Customer's
Account(s) for existing positions as well as for new positions. -The
required margin may exceed the margin required by the Commodity
Exchange (and its clearing house, if any) cm which trades are cleared
on behalf of Customer.
FIMAT has no obligation to notify Customer of any insufficiency of
margin in Customer's Account(s) prior to exercising rights and
remedies under Section IV of this Agreement.
C. Fees and Commissions. Customer will pay the fees and commissions FIMAT
charges from time to time. FIMAT may share its fees, commissions and
amounts accruing on Customer's Account(s) with persons that introduce
Customer to FIMAT or provide other services to FIMAT.
D. Interest. If Customer fails to pay FIMAT in immediately available
funds any sum when due, then unless otherwise provided in any Other
Agreement, Customer will pay interest to FIMAT on the unpaid sum,
while outstanding; at the lesser of (i) the maximum legal rate or (ii)
150% of the publicly announced prime lending rate of Societe Generale
New York Branch as in effect from time to time while the unpaid sum is
outstanding, compounded monthly. Customer acknowledges that FIMAT may
receive and retain as its own any increment or interest accruing from
any of the funds FIMAT receives from Customer.
E. No Standard Requirement. FIMAT has no obligation to impose uniform
margin requirements, to publish details of fees or commissions, or to
charge uniform fees, commissions or interest rates.
F. Confirmations and Statements. FIMAT will promptly confirm in writing
all transactions undertaken for Customer's Account(s). Customer shall
timely review all confirmations received from FIMAT to check that the
description. of the transactions is accurate and mat no transaction is
omitted Customer is conclusively bound by FIMATs confirmations and
statements of Customer's Account(s) if Customer does not object in
writing before the earlier of ten days following transmission to
Customer or by market opening on the day following Customer's actual
receipt of such confirmation statements. We respect to transactions
which Customer authorizes but for which no confirmation is received,
Customer shall be deemed to have waived all objections unless FIMAT
has received Customer's written request for a copy of the confirmation
within five days of the transaction date. Customer understands that
Customer should direct inquiries to FIMAT at Four World Trade center,
Fifth Floor, New York, New York 10048; Attention: Compliance
Department, or such other address as FIMAT may hereafter provide
customer. For the reporting of any alleged unauthorized trades or
other trade improprieties, FIMAT authorizes and will accept "collect"
telephone calls to the Compliance Department at (000) 000-0000. FIMAT
is not bound by prices or transactions reported in error on
confirmations and statements of Customer's Account(s).
G. Capacity of FIMAT, Floor Brokers and Others; Indemnification. FIMAT
will execute Xxxxxxxx's transactions solely as agent of Customer. 1n
executing transactions on a Commodity Exchange, FIMAT may utilize
floor brokers (who may be employees or other agents of FIMAT), and
will be responsible for reasonable care in the selection' of such
brokers, but will not be responsible to Customer for negligence or
misconduct of an independent floor broker if, at the time the floor
broker was selected, the floor broker was authorized to act as such
under the rules of the relevant Commodity Exchange and the appropriate
regulatory agency. FIMAT will not be responsible to Customer. in the
event of error, failure, negligence, or misconduct on the part of any
Intermediary, commodity trading advisor, or other person acting on
Customer's behalf and, without limiting the foregoing; FIMAT has no
obligation to investigate the facts surrounding any transaction in
Customer's Account(s) which is introduced by such Intermediary,
commodity trading advisor, or other person. Customer will indemnify
FIMAT and hold it harmless from and against any and all liabilities,
penalties, losses, and expenses, including legal expenses, incurred by
FIMAT as a result of any error, failure, negligence, or misconduct on
the part of any such Intermediary, commodity trading advisor, or other
person acting on Customer's behalf. FIMAT shall not be responsible for
any loss or damage caused, directly or indirectly, from any delays
inaccuracies in the transmission of orders' or other information due
to a breakdown in or failure of any transmission or communication
facilities for any reason including those reasons described in Section
V.D. hereof. FIMAT shall only be liable for actions or inns by FIMAT
which amount to gross negligence or fraud. Customer also agrees that
FIMAT shall not be liable to Customer for any losses, costs, expenses,
or other damages sustained by Customer in the event of any failure or
delay by any exchange, market, clearing house, bank or other
depository institution where any of Customer's fiends or other assets
are maintained, or a failure or delay by any member, bank or agent of
any of the foregoing, or a failure or delay by any of the foregoing to
enforce its rules, to fulfill its obligations, or to make any payment,
for any reason whatsoever. Customer waives any claim, cause of action
or right as against FIMAT, its employees or agents which may arise or
occur as a result thereof.
H. Transaction Limits; Acceptance of Orders. FIMAT, solely for its own
benefit and the benefit of other customers, may limit the number of
transactions FIMAT executes, and the open positions FIMAT maintains or
acquires; for Customer. Customer, acting alone or in concert with
others, will not make any trade through FIMAT which would have the
effect of exceeding the lower of limits imposed by FIMAT, the
Commodity Exchange on which the transactions ace executed, or any
regulatory agcy. If Customer exceeds its limit, FIMAT may require the
transfer of Customer's positions to another firm; or FIMAT may
liquidate some or all of the Customer's positions as FIMAT elects err
its sole discretion. Customer agrees to promptly advise FIMAT if
Customer is required to file reports of its positions to the CFTC or
any Commodity Exchange.
I. Liquidation of Offsetting Positions. FIMAT shall liquidate any
contract for which an offsetting order is entered by Customer on a
first in, first out ("FIFO") basis, unless Customer instructs FIMAT
not to liquidate such contract and to maintain the offsetting
contracts as open positions; provided that FIMAT shall not be
obligated to comply with any such instructions given by Customer if
Customer fails to provide FIMAT with any representations,
documentation or information reasonably requested by FIMAT or if in
FIMAT's reasonable judgment, any failure to liquidate such offsetting
contracts against each other on. a FIFO basis would result in a
violation of Applicable.
J. Separate Accounts. Pursuant to CFTC Rule 1.46(e)(1), if FIMAT
maintains or directs the trading for more than one account for
Customer then, if held open, offsetting long and short positions in
the. separate accounts may result in the charging of additional fees
and commissions and the payment of additional margin, although
offsetting positions will result in no additional market gain or loss.
K. Failure of Delivery. At least five business days prior to the earlier
of first notice or last trading day of the delivery month, Customer
must advise FIMAT whether Customer intends to take or make delivery,
as the case may be, of items purchased and sold by FIMAT at Customer's
direction, and, if delivery is intended, Customer must demonstrate to
FIMAT's satisfaction Customer's ability to perform Customer's delivery
obligations, in any manner required by FIMAT including, without
limitation, .by depositing with FIMAT the funds -or documents
necessary for delivery. If Customer failsso advise FIMAT or to
demonstrate satisfactorily Customer's ability to perform, then without
notice-or demand.Customer, FIMAT may, but shall have no duty to,
liquidate such positions on terms FIMAT deems reasonable, or take any
other action FIMAT deems reasonable, including taking or making
delivery as the case may be. If Customer fails to supply FIMAT, in a
timely manner, with any item FIMAT has sold at Customer's direction,
FIMAT may borrow or purchase the item from any party, including an
Affiliate, to make the delivery. FIMAT has no duty to borrow or
purchase the item. Customer shall comply fully with Applicable Law
relating to taking or making any delivery, and shall, if taking
delivery, take all steps as provided thereunder to ensure that all
items to be delivered are in compliance with Applicable Law. Customer
will hold harmless and indemnify FIMAT for all liabilities, penalties;
losses; and expenses, including any legal expenses and any penalties
imposed by any Commodity Exchange, FIMAT incurs or reasonably
anticipates incurring if Customer fails timely (1) to take good
delivery of any item FIMAT has purchased at Customer's direction, (2)
to supply FIMAT with or otherwise make good delivery of any item FIMAT
has sold at Customer's direction, or otherwise, in connection with a
delivery, or (3) to comply with Applicable Law, and FIMAT may in the
event of any such failure, apparent failure, or otherwise withhold
from Customer's Account(s) with FIMAT or any Affiliates the amount
(however denominated) estimated by F04AT as sufficient to satisfy the
above indemnity, for application as FIMAT deems appropriate.
L. Forwarding and Storage of Material. If FIMAT on Customer's behalf
arranges for packaging, shipping, storage, or insurance, FIMATs only
liability will be for gross negligence or willful misconduct in the
making of the arrangements.
M. Reimbursement for Taxes, Etc. Customer will indemnify FIMAT for all
taxes, levies, imposts, duties, charges, and fees (including legal
expenses) incurred in connection with any sale, purchase, forwarding
or storage.
N. Payment. Customer's payments must be in freely transferable and
immediately available funds to FIMATs account at a bank designated by
FIMAT and without deduction for any taxes, imposts, duties, charges,
or fees and free and clear of any withholding, restrictions, or
conditions of any nature when received by FIMAT. Payments may not be
effected by the delivery of bank notes or other legal tender unless
Agreed by FIMAT. FIMAT may withhold any delivery until it receives
payment in the foregoing manner.
O. Closeout. Whenever FIMAT, in its sole discretion, considers it
necessary for Customer's protection or for FIMATs protection, FIMAT
may, but is not obligated to, refuse to accept new positions and/or
close out or otherwise liquidate Customer's positions, and Customer
will be liable for any deficiency in Customer's Account(s) that may
result therefrom.
P. Options Exercise. Customer agrees that if Customer has a commodity
option position with FIMAT and does not provide timely instructions
regarding the exercise of a commodity option on the last day of
trading in that option, FIMAT, in its sole discretion and without
prior notice to Customer; is authorized to exercise or abandon (i.e.,
let expire) the option. Customer further agrees that any exercise or
abandonment of an option by FIMAT pursuant to this Agreement shall be
for Customer's sole account and risk and FIMAT shall have no liability
with respect thereto, and FIMAT shall have no duty to exercise such
authority. Customer further agrees that, without FIMAT's written
consent, Customer may not, on any day, exercise more than 20 options
contracts with FIMAT unless Customer has margin with FIMAT in excess
of the amount of margin FIMAT requires for the futures contracts
Customer would be assigned as a result of such exercise.
Customer acknowledges that FIMAT's confirmation of purchase and sale
statements will reflect option expiration dates that FIMAT obtains
from sources generally believed to be reliable, and FIMAT will be
responsible only for gross negligence, willful misconduct or fraud in
connection therewith. If Customer holds options with a Friday
expiration date, it is possible that, if a grantor, Customer could be
assigned a futures position after the expiration of the option on
Friday, and on some exchanges, as late as Saturday morning.
Q. Adjustments. On rare occasion FIMAT may, in error, not fill Customer's
order or fill Customer's order at a price which is less favorable than
the price which could have been obtained if the error had not
occurred. In these circumstances, FIMAT will give Customer the filled
order and cash adjust Customer's Account(s) so as to reflect the price
at which the order could have been executed had. the error not
occurred Customer agrees however that, if when correcting its error,
FIMAT obtains a position at a better price than Customer's order could
have been filled at; Customer will only receive the fill Customer
could have obtained if Customer's orders had been executed without
error (and FIMAT will receive any difference).
R. Exchange of Physical for Futures Transaction. Customer agrees to
create, retain, and produce, upon request of a Commodity Exchange, the
CFTC, or the United States Department of Justice, documentation of
cash transactions underlying exchanges of futures for cash commodities
or exchanges of futures in connection with cash commodity transactions
in accordance with Applicable Law. Documentation means those documents
customarily generated in accordance with cash market practices and/or
required by the relevant Commodity Exchange or regulatory authority
which demonstrate the existence and nature of the underlying cash
transactions, including, but not limited to; contacts, confirmation
its, telex printouts, invoices, and warehouse receipts or other
documents of title.
S. Direct Order Transmittal Client Disclosure. On occasion, when FIMAT's
owes are closed, Customer may request that FIMAT grant it authority to
place orders directly with one or more of FIMAT's non-U.S. Affiliates
for execution on non-U.S. exchanges, or for transactions on US.
exchanges to be executed on GLOBEX, NYMEX ACCESS or other electronic
trading systems. If FIMAT grants Customer such authority, the
following conditions shall apply: (1) the orders) Customer places with
FIMAT's non-U.S. Affiliate will be for FIMATs omnibus account
maintained directly or indirectly with FIMAT's non-U.S. Affiliate; (2)
Customer will be a client of FIMAT and not of the non-U.S. Affiliate;
(3) all monies, securities and property of Customer will be maintained
by FIMAT; and (4) unless Customer objects within five days after
receipt of this Agreement, FIMAT may assume Customer consents to these
conditions.
IV. SECURITY AGREEMENT AND DEFAULT PROVISIONS
A. Security Interest. Customer hereby grants FIMAT a security interest in
the Collateral and proceeds thereof; as security for the prompt
payment and performance of any and all Liabilities.
B. FIMAT's Rights Respecting Collateral. Customer will sign and deliver
ell agreements, instruments, certificates and documents FIMAT requests
to create, perfect preserve and protect the security interest in any
of the Collateral, accompanied by such instruments of assignment and
transfer -and in such form as FIMAT shall reasonably request. Customer
appoints FIMAT as Customs agent to sign, deliver, complete and file
any such agreements, instruments, certificates and documents on
Customer's behalf. FIMAT has no obligation to return an identical item
of Collateral, but only to replace the item with property of like kind
and substantially similar quantity, subject to adjustment for quantity
variations at then prevailing market prices. FIMAT may, at any time
and without limitations except those imposed by law, pledge;
re-pledge; hypothecate, loan or invest any Collateral without notice
to Customer or the obligation to. account to Customer for any
interest, income, a other benefit from any of the Collateral. Customer
agrees to permit FIMAT and/or its agents end representatives at any
time to inspect any of the Collateral and make abstracts or copies
from any of Customer's books and records pertaining to the Collateral.
The right is expressly granted to FIMAT, in its sole discretion, to
notify warehousemen, consignees, bailees or any other persons in
possession of Collateral of FIMAT's sees interest therein. Unless
Agreed by FIMAT, the undersigned will not file or authorize or permit
to be filed in any jurisdiction any such financing or like statement
in which FIMAT is not named as the sole secured party. Upon the
request of FIMAT, Customer shall, at Customer's expense, keep insured
ail Collateral which is tangible property for fail value, with such
coverage as FIMAT may approve, and the policies shall be duly endorsed
in FIMATs favor and delivered to FIMAT.
C. Events of Default. In addition to any "Event of Default" which may be
defined in any Other Agreement, and not by way of limitation of any
right FIMAT otherwise has to demand payment at any time of any of the
Liabilities, the following events shall constitute an "Event of
Default": (1) Customer breaches, repudiates, or defaults in any way on
any agreement with FIMAT or any Affiliate (including Customers
agreement to provide margin) or with any third party; or (2) FIMAT, in
its sole discretion, determines that it has sufficient grounds for
insecurity with respect to Customer's performance of any obligation to
any person and Customer fails to provide assurance of performance of
the obligation satisfactory to FIMAT; or (3) any proceeding is
commenced by or against Customer under any bankruptcy, insolvency,
relief of debtor, or similar law, or Customer makes an assignment for
the benefit of creditors, a receiver, trustee, conservator, liquidator
or similar officer is appointed for Customer or any of Customer's
property; a (4) Customer's Account(s) are attached m levied against;
or (5) any of Customer's representations to FIMAT or any Affiliate,
whenever or wherever made, were misleading when made or deemed made or
later becomes untrue; or (6) Customer dies, is disabled or becomes
legally incompetent; or (7) Customer or any organization of which
Customer is a member suspends or threatens to suspend the transaction
of its usual business, or any proceeding is commenced with respect to
any of Customer's property or any such organization; or (8) Customer
is a party to any merger, consolidation or sale of all or
substantially all of its assets unless Agreed by FIMAT prior thereto;
or (9) FIMAT has reason to believe that any of the foregoing is likely
to occur imminently.
D. FIMAT's Remedies Upon Default.
1. Customer absolutely and unconditionally agrees that upon the
occurrence of an Event of Default, FIMAT, on behalf of itself
and as agent for any Affiliate, may exercise any one or more of
the following: remedies (except that, upon the occurrence of
any Event of Default set forth in Section IV.C.(3) above, the
remedies specified in subparagraphs a, b, c, and g below shall
thereupon be deemed for all purposes to have been excised,
immediately and without action by FIMAT with only such notice
as is required by Applicable law and cannot be waived, without
prejudice to any other remedies:
a. FIMAT, on its own behalf and/or on behalf of any of its
Affiliates, may terminate any or all of FIMAT's and/or
any Affiliates obligations to Customer for future
performance;
b. FIMAT, on its own behalf and/or on behalf of any of its
Affiliates, may treat any or all of Customer's
Liabilities and/or Customer's obligations to any
Affiliates, including credit or debit balances; as
immediately due, and may treat all limits, margin
facilities and call tolerance facilities in place as
revoked;
c. FIMAT, on its own behalf and/or on behalf of any of its
Affiliates, may consolidate Customer's Accounts) or any
of them at FIMAT and/or any Affiliates;
d. FIMAT, on its own behalf and/or on behalf of any of its
Affiliates; may sell any or all non-cash Collateral
field long by FIMAT and/or any Affiliates;
e. FIMAT, on its own behalf and/or on behalf of any of its
Affiliates,' may close out or hedge for Customers
Account(s) any or all open positions in Customer's
Account(s) at FIMAT and/or any Affiliates pursuant to
Section 111.0 above or otherwise; in any manner it
deems reasonable under the circumstances;
f. FIMAT on its own behalf and/or on behalf of any of ins
Affiliates, may borrow, lend, sell or buy from any
party, including itself and/or any Affiliates, any
property necessary to cover or hedge airy or all.
positions in Customer's Accounts) at FIMAT and/or any
Affiliates; and
g. FIMAT, on its own behalf and/or on behalf of any of ins
Affiliates; may offset the proceeds of the sale of
non-cash Collateral, cash Collateral, and sums owing
Customer by FIMAT and/or Affiliates (including any sums
arising from the operation of this Section-t against
Customer's Liabilities and Customer's obligations to
any Affiliates; without prejudice to FIMAT's right to
recover the balance of Customer's Liabilities and any
Affiliates' right to recover the balance of Customer's
obligations to them.
Customer appoints FIMAT as Customer's agent to sign,
complete, and deliver any and all documents necessary
or desirable to catty out the foregoing. None of FIMAT
nor any of its Affiliates, nor any of its agents or
representatives will be responsible for losses or lost
profits, accrued or anticipated, resulting from airy
position or transaction entered to enforce the
foregoing remedies. Customer waives the right of set
off in any action brought by FIMAT to collect amounts
owned by Customer to FIMAT.
Customer will indemnify and hold harmless FIMAT and its
Affiliates, and their respective agents and representatives from
any liabilities, penalties, losses; costs and expenses;
including but not limited to reasonable attorney fees (whether
the reasonable fees and charges of external legal counsel and/or
the costs and charges, if any, allocated by internal legal
department), which FIMAT and/or any Affiliates incur in
connection with (i) the exercise of any remedy hereunder or
under any Other Agreement, (ii) the care or custody of the
Collateral and defending: or asserting the rights and claims of
FIMAT and/or any Affiliates in respect thereof, arid (iii)
mating any obligation of FIMAT and/or any Affiliates which would
otherwise fail to be performed by reason of an Event of Default.
V. MISCELLANEOUS
A. Governing Law and Submission to Jurisdiction. All disputes between
FIMAT and Customer including; but not limited to, disputes arising
directly or indirectly as a result of, or the relationship established
as a result of, this Agreement, shall be governed by the substantive
laws of the State of New York, without regard to principles of choice
of law. Notwithstanding any provision of Applicable Law, Xxxxxxxx
agrees to commence all actions of any kind against FIMAT within one
year of thevent giving rise to any dispute. Customer irrevocably
submits to the jurisdiction of the courts of New York and of the
Federal Courts of the Southern District of New York with respect to.
litigation relating to all such disputes, including, but not limited
to, disputes arising directly or indirectly as a result of or the
relationship established as a result of this Agreement and
transactions subject to this Agreement, agrees to commence actions and
proceedings and assert claims for relief involving them only m such
courts (unless Customer has otherwise agreed to arbitrate all disputes
against FIMAT, in which case such arbitration shall be held only in
New York City), and consents to service of process by the mailing of
copies to Customer by certified mail to Customer's address as it
appears on the books of FIMAT. Such service shall be effective ten
days after mailing.
X. Xxxxxx of Jury Trial. CUSTOMER HEREBY WAIVES TRIAL BY JURY IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO, BUT NOT LIMITED
TO, DISPUTES ARISING DIRECTLY OR INDIRECTLY AS A RESULT OF, OR THE
RELATIONSHIP ESTABLISHED AS A RESULT OF, THIS AGREEMENT OR ANY
TRANSACTION IN CONNECTION THEREWITH. CUSTOMER'S WAIVER OF TRIAL BY
JURY IS A PREREQUISITE TO, AND INDUCEMENT OF FIMAT TO OFFER, THE
OPENING OF CUSTOMER'S ACCOUNT(S).
C. Applicable Law and Notes for German Clients. Contrary to German Law,
the substantive law of New York does not distinguish between binding
and non binding terminal (futures) transactions (see paragraph 53 of
the German Borsengesetz). All trades under this Agreement are
therefore binding market transactions. Customer acknowledges that
under German Law futures trading gives rise to an imperfect obligation
(as provided in paragraphs 762 Customer also acknowledges that under
paragraph 814 of the BGB disclosure of this fact removes any and all
rights Customer might otherwise have as a result of the
"Differenzeinwand" (paragraph 812 of the BGB). Credit balance held by
FIMAT will be applied to fulfill, discharge and perform tire
transactions) and as an advance performance or down payment to cover
any transaction(s) trading costs.
D. Force Majeure; Warranty and Disclaimer of Warranties. FIMAT shall not
be liable for any delay in performance or for non-performance of its
obligations caused by any event beyond the reasonable control of
FIMAT. FIMAT may, without liability, cancel this Agreement or any
particular transaction contemplated hereunder if its performance is
delayed or rendered impossible due to any such event. FIMATs sole
warranty is that any commodity delivered by it will conform to the
description on any confirmation prepared and delivered by FIMAT with
respect thereto. FIMAT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED.
E. Non-Waiver; Non-Assignment; Time of the Essence. This Agreement and
tire Other Agreements, if any, constitute the entire Agreement
.between FIMAT and Customer with respect to the subject matter hereof
and supersede all other understandings, agreements, or communications
concerning such subject matter. Any oral representations, warranties,
inducements, or agreements made by any representative of FIMAT
inconsistent with the provisions of this Agreement are excluded and
will not bind FIMAT. FIMAT will be bound by waivers and modifications
of any of the terms of this Agreement, any outer written agreement, or
any transaction, or any attempted assignment by Customer of any right
or interest in this Agreement, any other agreement, or any
transaction, only if Agreed by FIMAT (as defined). Such agreement will
bind FIMAT only in relation to the waiver, modification, or,
assignment, to which FIMAT has consented in writing. Customer hereby
waives the right to claim estoppel or forbearance unless Agreed by
FIMAT. Any agreement by FIMAT to forbear liquidation, pursuant to any
of its rights and remedies. hereunder, may be revoked by FIMAT upon 24
hours notice to Customer (unless a shorter time is commercially
reasonable under the circumstances), which notice Customer hereby
deems reasonable. FIMAT's failure to exercise any right or remedy is
not a waiver of the right or remedy not exercised or any other right
or remedy. Time is of the essence in the performance of Customer's
obligations.
F. Binding Effect. This Agreement covers all of Customer's Accounts) with
FIMAT, is binding on Customer and Customer's estate, legal
representatives, successors and assigns and inures to the benefit of
FIMAT and its successors and assigns.
G. Communications. Communications may be sent to Customer by mail, telex,
telegraph, facsimile transmission, messenger, or other reasonable
means at its current address shown on FIMAT's records, and are deemed
received when Customer actually receives them or 24 hours after they
are sent, whichever first occurs. FIMAT, in its sole discretion, may
record, on tape or otherwise, any telephone conversation between FIMAT
and Customer involving their respective officers, agents and
employees. Customer hereby agrees and consents to such recording, with
or without the use of an automatic tone warning device, and waives any
right Customer may have to object to the use or admissibility into
evidence of such recording in any legal proceeding between Customer
and FIMAT or in say other proceeding to which FIMAT is a party or in
which FIMAT's records are subpoenaed. Customer acknowledges that FIMAT
may erase such recordings after a reasonable period of time. FIMAT
shall be entitled to rely on any instructions, notices and
communications, whether oral or in writing, that it believes to be
that of an individual authorized to act on behalf of Customer as
authorized to act on its behalf, and Customer shall be bound thereby.
Customer hereby waives any defense that any such instruction was not
in writing as may by the Statute of Frauds or any other similar law,
rule or regulation. Customer will indemnify FIMAT and hold FIMAT
harmless from and against all liabilities, penalties, losses, and
expenses, including legal expenses, incurred by FIMAT as a result of
FIMATs upon such instructions.
H. Non-Execution. Any failure by Customer to duly sign this Agreement is
not a waiver by FIMAT of any rights it otherwise has against Customer.
I. FIMAT Has No Responsibility for Advice. FIMAT is not acting as
fiduciary, foundation manager, commodity pool operator, commodity
trading advisor or investment adviser in respect of any Account(s)
opened by Customer and FIMAT shall have no responsibility hereunder
for compliance with any, law or regulation governing the conduct of
fiduciaries, foundation managers, commodity pool operators, commodity
trading advisors or investment advisers. Customer. will not crater
into nay transaction. with FIMAT, and-will not hold FIMAT responsible
for losses, as a result of any prediction, recommendation, or
representation made by any representative of FIMAT Any information or
advice communicated by FIMAT, although based upon information from
sources FIMAT believes to be reliable, may be incomplete or
inaccurate, may not be verified, and may be changed without notice to
Customer. FIMAT makes no representation as to the accuracy,
completeness, reliability or prudence of any such information or
advice or as to the tax consequences of Customer's futures or options
trading.
J. Appointment of Agent. Customer's appointment of an agent on the
"Trading and Fee Payment Authorization Limited to Purchases and Sales
of Commodities" form ("Trading Authorization"), if applicable, is
notice to FIMAT that the person so designated (the "Agent") is
Customer's agent is respect of Customer's Account(s) with FIMAT; with
complete authority on Customer's behalf to place orders .for purchases
arid sales, including short sales; for cash or 'on margin,. of
Commodities other :items in respect of which Customer may from time to
time enter into transactions in one or more of Customer's Account(s)
with FIMAT, for immediate or future delivery, to effect delivery and
performance of the orders and of the obligations undertaken m
connection with the orders, to borrow funds from FIMAT to finance any
of the transactions; to lend or pledge Customer's properties with
FIMAT and otherwise to secure Customers Liabilities, withdraw or
direct the payment of monies, securities, commodities, or other
property from Customer's Account(s) with FIMAT, including- to-
compensate Agent for its services; to settle Customer disputes with
FIMAT or between Customer or any other party with whom FIMAT deals-for
Customer or with whom Customer deals through FIMAT as broker. for the
third party, and to sign and deliver on Xxxxxxxx's behalf notices and
other documents and to take all other actions necessary or desirable
to carry out the terms of this Agreement. Customer agrees to notify
FIMAT promptly in writing of the revocation or modification of the
Agent's authority. Customer will indemnify FIMAT and hold FIMAT
harmless from and against all liabilities, penalties, losses, and
expenses, including legal expenses, incurred by FIMAT in acting as
instructed by the Agent and is continuing to act in reliance on the
Trading Authorization after revocation or modification but prior to
FIMAT's receipt of written notice thereof.
K. Termination. Customer may terminate this Agreement; at any time when
Customer has no Liabilities and noopen positions which could give rise
to subsequent Liabilities; upon the actual receipt by FIMAT of written
notice of termination. FIMAT may terminate this Agreement at any time
upon mailing or delivery of written notice of termination to Customer,
provided that any such termination will not affect any transactions
theretofore entered into and will not relieve either party of any
obligations in connection with any debt or credit balance or other
liability or obligation incurred prior to the termination.
L. Multiple Parties. If any Account(s) established pursuant to this
Agreement is on behalf of more than one person:
1. each signing person is jointly and severally liable for the full
and timely performance of all the obligations of all signing
persons in connection with this Agreement and any account
established and any transaction effected under this Agreement;
and the terms. hereof shall survive the legal incompetence or
death of any or all signing persons;
2. in connection with any Accounts) established under this
Agreement, FIMAT may act upon any order, request or instruction
from any one signing person without the necessity of confirmation
from any other;
3. the delivery of any report statement, notice or other
communication to any one signing person is deemed to have been to
all of the signing persons;
4. FIMAT may deliver any Collateral of any of the signing persons to
any me or more of the signing persons, and make payments from any
Account(s) established pursuant to this Agreement to or upon the
order or direction of any one of them, and FIMAT is under no
obligation to inquire into the purpose of any request for the
delivery of any such Collateral or the making of any such
payment, or to see to the disposition or application thereof, and
5. unless FIMAT is advised otherwise in writing, the interest of the
signing persons in airy Account(s) established under this
Agreement shall be deemed to be a joint tenancy with rights of
survivorship and not a tenancy in common.
M. Severabitity. If any provision of this Agreement, or the application
of such provision to any person or circumstances, is held invalid, the
remainder of this Agreement and the application of such provision to
persons or circumstances other than those as to which ft is, held
invalid, shall not be affected thereby.
N. Captions. Captions used in this Agreement are used for convenience and
neither form as integral part of this Agreement nor limit the
applicability or affect the meaning of any of the Agreement's
provisions.
VI. ELECTRONIC TRADING SYSTEMS
FIMAT may make available to Customer the ability to .trade; directly
or indirectly (in whole or in part), through electronic trading
systems (ETS) such as GLOBEX m ACCESS or other electronic systems. The
sponsoring organizations or such systems may make certain information
available and in some cases require special disclosures for these
systems. To ire extent these disclosures are required and other
information is available, it has been set forth in the accompanying
booklet entitled "Exchange Disclosures and Notices," which Customer
acknowledges receiving by signing below.
VII. ACCEPTANCE OF AGREEMENT
This Agreement shall not be deemed to be accepted by FIMAT or become a
binding contract between Customer and FIMAT until approved by a duly
authorized officer of FIMAT (R) writing in accordance with its
internal procedures.
Customer represents, unless Customer has executed the Joint Tenants
Agreement; the Partnership Authorization; the Certificate of Corporate
Resolution or the Trust Authorization, that this is an individual
account and no one else has an interest in this account and Customer
has authority and capacity to enter into this Agreement
VIII. OTHER AGREEMENTS AMONG THE PARTIES; CONFLICTS
Customer acknowledges that in addition to this Agreement FIMAT may
request that Customer and/or any Affiliate of Customer to execute and
deliver such agreement(s), instrument(s) and documents) as FIMAT may
prescribe, which agreement(s) instrument(s) and documents upon their
execution, shall become an Other Agreement. in the event of a conflict
between the provisions of this Agreement and the provisions of any
Other Agreement, the provisions of such Other Agreement shall govern.
IX. For Hedge Customers Only
CUSTOMER WARRANTS, BY INITIALLING BELOW, THAT IT WILL ENGAGE IN BONA
FIDE HEDGING TRANSACTIONS PURSUANT TO CFTC REGULATION 1.3(z). IN THE
EVENT OF BANKRUPTCY, CUSTOMER PREFERS THAT THE TRUSTEE (PLEASE INITIAL
CHOICE)
[ ] LIQUIDATE [ ] NOT LIQUIDATE
OPEN COMMODITY CONTRACTS IN CUSTOMER'S HEDGE ACCOUNT WITHOUT SEEKING
ITS INSTRUCTIONS.
PLEASE ACKNOWLEDGE YOUR AGREEMENT AND CONSENT TO THIS CUSTOMER
AGREEMENT BY SIGNING BELOW.
BY SIGNING BELOW, CUSTOMER ALSO ACKNOWLEDGES THAT CUSTOMER HAS
RECEIVED AND UNDERSTANDS THE FOLLOWING ATTACHED DISCLOSURE STATEMENT
PRESCRIBED BY THE CFTC.
Please initial if received and understood.
[ ] Risk Disclosure Statement
For Futures and Options
Attached at pg. 1
Account name _______________________________________________
By___________________________________________________________________
(Authorized signature) (Date) Name (Please print)
By___________________________________________________________________
(Authorized signature) (Date) Name (Please print)
