EXHIBIT 10.02
COMMODITY FUTURES CUSTOMER AGREEMENT
This Commodity Futures Customer Agreement ("Agreement"), dated as of
___________, 1999, between Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx")
and Xxxxxx Xxxxxxx Xxxx Xxxxxx Spectrum Commodity L.P. (formerly Xxxxxx Xxxxxxx
Tangible Asset Fund L.P.) (the "Customer"), and acknowledged and agreed to by
Xxxx Xxxxxx Xxxxxxxx Inc. ("DWR"), shall govern the purchase and sale by Xxxxxx
Xxxxxxx of commodity futures contracts and options thereon (collectively,
"Contracts") for the account and risk of Customer through one or more accounts
carried by Xxxxxx Xxxxxxx on behalf and in the name of Customer (collectively,
the "Account").
1. Applicable Law. The Account and all transactions and agreements in
respect of the Account shall be subject to all applicable Federal, state,
exchange, clearinghouse and self-regulatory agency rules, regulations and
interpretations and custom and usage of the trade. All such rules, regulations,
interpretations, custom and usage are hereinafter collectively referred to as
"Applicable Law."
2. Customer's Representations and Warranties. Customer represents and
warrants that: (a) Customer has full right, power and authority to enter into
this Agreement, and the person executing this Agreement on behalf of Customer is
authorized to do so; (b) this Agreement is binding on Customer and enforceable
against Customer in accordance with its terms; (c) Customer may lawfully
establish and open the Account for the purpose of effecting purchases and sales
of Contracts through Xxxxxx Xxxxxxx; (d) transactions entered into pursuant to
this Agreement will not violate any applicable law (including any Applicable
Law) to which Customer is subject or any agreement to which Customer is subject
or a party; and (e) all information provided by Customer in the Account
Application preceding this Agreement (which Application and the information
contained therein hereby is incorporated into this Agreement) is true and
correct and Customer shall immediately (and in no event later than within one
business day) notify Xxxxxx Xxxxxxx of any change in such information.
3. Payment & Interest Obligations.
(a) Compensation of Xxxxxx Xxxxxxx. In compensation of Xxxxxx
Xxxxxxx'x services pursuant to this Agreement, DWR shall pay to Xxxxxx
Xxxxxxx such fees and costs as DWR and Xxxxxx Xxxxxxx shall agree from
time to time, and the Customer shall pay Xxxxxx Xxxxxxx all floor
brokerage fees, exchange fees, clearinghouse fees, NFA fees, "give-up"
fees, any taxes (other than income taxes), any third party clearing costs
incurred by Xxxxxx Xxxxxxx, costs associated with taking delivery of
futures interests and the brokerage commissions and costs of Xxxxxx
Xxxxxxx & Co. International Limited ("MSIL") with respect to Customer's
account with MSIL that are paid by Xxxxxx Xxxxxxx (in the aggregate,
"Transaction Costs"). DWR shall reimburse the Customer at each month-end
for all Transaction Costs incurred by the Customer. The Customer shall
have no obligation to reimburse DWR for any payments made by DWR to Xxxxxx
Xxxxxxx.
(b) Interest on Customer Funds. The Customer's assets deposited with
Xxxxxx Xxxxxxx will be segregated or secured in accordance with the
Commodity Exchange Act and regulations of the Commodity Futures Trading
Commission. All of such funds will be available for margin for the
Customer's trading. Xxxxxx Xxxxxxx shall pay to DWR such interest income
on the Customer's assets held by Xxxxxx Xxxxxxx as Xxxxxx Xxxxxxx and DWR
shall agree from time to time. The Customer understands that it will not
receive any interest income on its
assets held by Xxxxxx Xxxxxxx other than that paid by DWR pursuant to
Customer's DWR Customer Agreement.
4. Customer's Events Of Default; Xxxxxx Xxxxxxx'x Remedies.
(a) Events of Default. As used herein, each of the following shall
be deemed an "Event of Default": (i) the commencement of a case under any
Federal or state bankruptcy, insolvency or reorganization law, or the
filing of a petition for the appointment of a receiver by or against
Customer, an assignment made by Customer for the benefit of creditors, an
admission in writing by Customer that it is insolvent or is unable to pay
its debts when they mature, or the suspension by Customer of its usual
business or any material portion thereof; (ii) the issuance of any warrant
or order of attachment against the Account or the levy of a judgment
against the Account; (iii) the failure by Customer to deposit or maintain
margins, to pay required premiums, or to make payments required by Section
3 hereof; and (iv) the failure by Customer to perform, in any material
respect, its obligations hereunder.
(b) Remedies. Upon the occurrence of an Event of Default or in the
event Xxxxxx Xxxxxxx, in its sole and absolute discretion, considers it
necessary for its protection, Xxxxxx Xxxxxxx shall have the right, in
addition to any other remedy available to Xxxxxx Xxxxxxx at law or in
equity, and in addition to any other action Xxxxxx Xxxxxxx may xxxx
appropriate under the circumstances, to liquidate any or all open
Contracts held in or for the Account, sell any or all of the securities or
other property of Customer held by Xxxxxx Xxxxxxx, and to apply the
proceeds thereof to any amounts owed by Customer to Xxxxxx Xxxxxxx, borrow
or buy any options, securities, Contracts or other property for the
Account, and cancel any unfilled orders for the purchase or sale of
Contracts for the Account, or take such other or further actions which
Xxxxxx Xxxxxxx, in its reasonable discretion, deems necessary or
appropriate for its protection, all without demand for margin and without
notice or advertisement. Any such action may be made at the discretion of
Xxxxxx Xxxxxxx in any commercially reasonable manner. In the event Xxxxxx
Xxxxxxx'x position would not be jeopardized thereby, Xxxxxx Xxxxxxx will
make reasonable efforts under the circumstances to notify Customer prior
to taking any such action. A prior demand or margin call of any kind from
Xxxxxx Xxxxxxx or prior notice from Xxxxxx Xxxxxxx shall not be considered
a waiver of Xxxxxx Xxxxxxx'x right to take any action without notice or
demand. In the event Xxxxxx Xxxxxxx exercises any remedies available to it
under this Agreement, Customer shall reimburse, compensate and indemnify
Xxxxxx Xxxxxxx for any and all costs, losses, penalties, fines, taxes and
damages that Xxxxxx Xxxxxxx may incur, including reasonable attorneys'
fees incurred in connection with the exercise of its remedies and the
recovery of any such costs, losses, penalties, fines, taxes and damages.
5. Standard of Liability and Indemnity.
(a) Standard of Liability. Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx on behalf of Customer which Xxxxxx Xxxxxxx
determines, in good faith, to be in the best interests of Customer, unless
such act, omission, conduct, or activity by Xxxxxx Xxxxxxx or its
affiliates constituted misconduct or negligence. Without limiting the
foregoing, Xxxxxx Xxxxxxx shall have no responsibility or liability to
Customer hereunder (i) in connection with the performance or
non-performance by an contract market,
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clearing house, clearing firm or other third party (including floor
brokers and banks) to Xxxxxx Xxxxxxx of its obligations in respect of any
Contract or other property of Customer; (ii) as a result of any
prediction, recommendation or advice made or given by a representative of
Xxxxxx Xxxxxxx whether or not made or given at the request of Customer;
(iii) as a result of Xxxxxx Xxxxxxx'x 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 Xxxxxx Xxxxxxx'x obligations
hereunder directly or indirectly caused by the occurrence of any
contingency beyond the control of Xxxxxx Xxxxxxx including, but not
limited to, the unscheduled closure of an exchange or contract market or
delays in the transmission of orders due to breakdowns or failures of
transmission or communication facilities, execution, and/or trading
facilities or other systems (including, without limitation, GLOBEX,
ACCESS, or other electronic trading systems, facilities or services), it
being understood that Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx or its floor brokers to
comply with Applicable Law; or (vi) for any acts or omissions of those
neither employed nor supervised by Xxxxxx Xxxxxxx. In no event xxxx Xxxxxx
Xxxxxxx be liable to Customer for consequential, incidental or special
damages hereunder.
(b) Indemnification by Customer. Customer shall indemnify, defend
and hold harmless Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx on behalf
of Customer, including, without limitation, any demands, claims or
lawsuits initiated by a Limited Partner (or assignee thereof); provided
that (i) Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx 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 5. The Customer shall make advances to Xxxxxx Xxxxxxx 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
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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 Xxxxxx Xxxxxxx. Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx has approved such settlement) incurred as a direct
result of the activities of Xxxxxx Xxxxxxx 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 5 by Customer to Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx contained in this Agreement to the extent
caused by such event. Likewise, the indemnities provided in this Section 5
by Xxxxxx Xxxxxxx 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 5, the term
"affiliate" of Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx; (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 Xxxxxx Xxxxxxx; (iii) any
natural person, partnership, corporation, association, or other legal
entity directly or indirectly controlling, controlled by, or under common
control with, Xxxxxx Xxxxxxx; or (iv) any officer or director of Xxxxxx
Xxxxxxx. Notwithstanding the foregoing, "affiliates" for purposes of this
Section 5 shall include only those persons acting on behalf of Xxxxxx
Xxxxxxx and performing services for Customer within the scope of the
authority of Xxxxxx Xxxxxxx, as set forth in this Agreement.
6. General Agreements. The parties agree that:
(a) Xxxxxx Xxxxxxx'x Responsibility. Xxxxxx Xxxxxxx is not acting as
a fiduciary, foundation manager, commodity pool operator, commodity
trading advisor or investment adviser in respect of any Account opened by
Customer. Xxxxxx Xxxxxxx 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.
(b) Advice. All advice communicated by Xxxxxx Xxxxxxx with respect
to any Account opened by Customer hereunder is incidental to the conduct
of Xxxxxx Xxxxxxx'x business as a futures commission merchant and such
advice will not serve as the primary basis for any decision made by or on
behalf of Customer in respect of the Account, regardless of whether
Customer relies on the advice of Xxxxxx Xxxxxxx in making any such
decision.
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Customer acknowledges that Xxxxxx Xxxxxxx and its managing directors,
officers, employees and affiliates may take or hold positions in, or
advise other Customers concerning, contracts that are the subject of
advice from Xxxxxx Xxxxxxx to Customer. The positions and advice of Xxxxxx
Xxxxxxx and its managing directors, officers, employees and affiliates may
be inconsistent with or contrary to positions of, and the advice given by,
Xxxxxx Xxxxxxx to Customer.
(c) Recording. Xxxxxx Xxxxxxx, in its sole and absolute discretion,
may record, on tape or otherwise, any telephone conversation between
Xxxxxx Xxxxxxx and Customer involving their respective officers, agents
and employees, and Customer hereby agrees and consents thereto.
(d) Acceptance of Orders; Position Limits.
(i) Xxxxxx Xxxxxxx shall have the right to limit the size of
open positions (net or gross) of Customer with respect to the
Account at any time and to refuse acceptance of orders to establish
new positions, whether such refusal or limitation is required by, or
based on position limits imposed under, Applicable Law. Xxxxxx
Xxxxxxx shall immediately notify Customer of its rejection of any
order. Unless specified by Customer, Xxxxxx Xxxxxxx may designate
the exchange or other markets (including, without limitation, GLOBEX
or ACCESS) on which it will attempt to execute orders.
(ii) Customer shall file or cause to be filed all applications
or reports required under Applicable Law with the CFTC or the
relevant contract market or clearinghouse, and shall provide Xxxxxx
Xxxxxxx with a copy of such applications or reports and such other
information as Xxxxxx Xxxxxxx may reasonably request in connection
therewith.
(e) Original and Variation Margin; Premiums; Other Contract
Obligations. Customer shall make, or cause to be made, all applicable
original margin, intra-day margin and premium payments, and perform all
other obligations attendant to transactions or positions in such
Contracts, as may be required by Applicable Law or by Xxxxxx Xxxxxxx.
Requests for margin deposits and/or premium payments may, at Xxxxxx
Xxxxxxx'x election, be communicated to Customer orally, telephonically or
in writing. Customer margin deposits and/or premium payments shall be made
by wire transfer to Xxxxxx Xxxxxxx'x Customer Segregated Account and shall
be in U.S. dollars unless Xxxxxx Xxxxxxx specifically requests otherwise.
(f) Security Interest and Rights Respecting Collateral. Except to
the extent proscribed by Applicable Law not subject to waiver, all
Contracts, cash, securities, and/or any other property of Customer
whatsoever (collectively, the "Collateral") at any time held by Xxxxxx
Xxxxxxx or its affiliates, or carried by others for the Account, hereby
are pledged to Xxxxxx Xxxxxxx and shall be subject to a general lien and
security interest in Xxxxxx Xxxxxxx'x favor to secure any indebtedness or
other amounts, obligations and/or liabilities at any time owing from
Customer to Xxxxxx Xxxxxxx (collectively, the "Customer's Liabilities").
Customer hereby grants Xxxxxx Xxxxxxx the right to borrow, pledge,
repledge, hypothecate, rehypothecate, loan or invest any of the
Collateral, including utilizing the Collateral to purchase United States
Government Treasury obligations pursuant to repurchase agreements or
reverse
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repurchase agreements with any party, in each case without notice to
Customer and without any obligation to pay or to account to Customer for
any interest, income or benefit that may be derived therefrom, except to
the extent set forth in Section 3 hereof. The rights of Xxxxxx Xxxxxxx set
forth above shall be qualified by any applicable requirements for
segregation of Customers' property under Applicable Law.
(g) Reports and Objections. All confirmations, purchase and sale
notices, correction notices and account statements (collectively,
"Statements") shall be submitted to Customer and shall be conclusive and
binding on Customer unless Customer notifies Xxxxxx Xxxxxxx of any
objection thereto prior to the opening of trading on the contract market
on which such transaction occurred on the business day following the day
on which Customer receives such Statement; provided that, with respect to
monthly Statements, Customer may notify Xxxxxx Xxxxxxx of any objection
thereto within five business days after receipt of such monthly Statement,
provided the objection could not have been raised at the time any prior
Statement was received by Customer as provided for above. Any such notice
of objection, if given orally to Xxxxxx Xxxxxxx, shall immediately (and no
later than within one business day) be confirmed in writing by Customer.
(h) Delivery Procedures; Options Allocation Procedure.
(i) Customer will provide Xxxxxx Xxxxxxx with instructions
either to liquidate Contracts previously established by Customer,
make or take delivery under any such Contracts, or exercise options
entered into by Customer, within such time limits as may be
specified by Xxxxxx Xxxxxxx. Xxxxxx Xxxxxxx shall have no
responsibility to take any action on behalf of Customer or positions
in the Account unless and until Xxxxxx Xxxxxxx receives oral or
written instructions reasonably acceptable to Xxxxxx Xxxxxxx
indicating the action Xxxxxx Xxxxxxx is to take. Funds sufficient to
take delivery pursuant to such Contract or deliverable grade
commodities to make delivery pursuant to such Contract must be
delivered to Xxxxxx Xxxxxxx at such time as Xxxxxx Xxxxxxx may
require in connection with any delivery.
(ii) Short option Contracts may be subject to exercise at any
time. Exercise notices received by Xxxxxx Xxxxxxx from the
applicable contract market with respect to option Contracts sold by
Customer may be allocated to Customer pursuant to a random
allocation procedure, and Customer shall be bound by any such
allocation of exercise notices. In the event of any allocation to
Customer, unless Xxxxxx Xxxxxxx has previously received instructions
from Customer, Xxxxxx Xxxxxxx'x sole responsibility shall be to use
its best efforts to notify Customer of such allocation.
(iii) If Customer fails to comply with any of the foregoing
obligations, Xxxxxx Xxxxxxx may, in its sole and absolute
discretion, liquidate any open positions, make or receive delivery
of any commodities or instruments, or exercise or allow the
expiration of any options, in such manner and on such terms as
Xxxxxx Xxxxxxx, in its sole and absolute discretion, deems necessary
or appropriate, and Customer shall indemnify and hold Xxxxxx Xxxxxxx
harmless as a result of any action taken or not taken by Xxxxxx
Xxxxxxx in connection therewith or pursuant to Customer's
instructions.
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(i) Financial and Other Information. Customer shall provide to
Xxxxxx Xxxxxxx such financial information regarding Customer as Xxxxxx
Xxxxxxx may from time to time reasonably request. Customer shall notify
Xxxxxx Xxxxxxx immediately (and no later than within one business day) if
the financial condition of Customer changes materially and adversely from
that shown in the most recent financial information theretofore provided
to Xxxxxx Xxxxxxx. An investigation may be conducted pertaining to
Customer's credit standing and business.
(j) Currency Exchange Risk. Customer shall bear all risk and cost in
respect of the conversion of currencies incident to transactions effected
on behalf of Customer pursuant hereto.
7. Termination. This Agreement may be terminated at any time by Customer
or Xxxxxx Xxxxxxx upon ten (10) days' prior written notice to the other. In the
event of such notice, Customer shall either close out open positions in the
Account or arrange for such open positions to be transferred to another futures
commission merchant. Upon satisfaction by Customer of all of Customer's
Liabilities, Xxxxxx Xxxxxxx shall transfer to another futures commission
merchant all Contracts, if any, then held for the Account, and shall transfer to
Customer or to another futures commission merchant, as Customer may instruct,
all cash, securities and other property held in the Account, whereupon this
Agreement shall terminate.
8. Miscellaneous.
(a) Severability. If any provision of this Agreement is, or at any
time becomes, inconsistent with any present or future law, rule or
regulation of any exchange or other market, sovereign government or
regulatory body thereof, and if any of these authorities have jurisdiction
over the subject matter of this Agreement, the inconsistent provision
shall be deemed superseded or modified to conform with such law, rule or
regulation but in all other respects, this Agreement shall continue and
remain in full force and effect.
(b) Binding Effect. This Agreement shall be binding on and inure to
the benefit of the parties and their successors. Xxxxxx Xxxxxxx shall have
the right to transfer or assign this Agreement (and thereby the Account)
to any successor entity or to another properly registered futures
commission merchant only upon obtaining the prior consent of Customer.
(c) Entire Agreement. This Agreement contains the entire agreement
between the parties and supersedes any prior agreements between the
parties as to the subject matter hereof, including the agreement dated
December 31, 1997, which shall be deemed terminated as of the date of this
Agreement. No provision of this Agreement shall in any respect be waived,
altered, modified, or amended unless such waiver, alteration,
modification, or amendment is signed by the party against whom such
waiver, alteration, modification, or amendment is to be enforced.
(d) Currency Denomination. Unless another currency is designated in
the confirmations reporting transactions entered into by Customer, all
margin deposits in connection with such transactions, and a debit or
credit in the Account, shall be stated in United States dollars, and
margin requirements, debits or credits expressed in another currency shall
be converted into United States dollars at a rate of exchange determined
by Xxxxxx Xxxxxxx, in its
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sole and absolute discretion, on the basis of the then prevailing money
market rates of exchange for such foreign currency.
(e) Instructions, Notices or Communications. Except as specifically
otherwise provided in this Agreement, all instructions, notices or other
communications may be oral or written. All oral instructions, unless
custom and usage of trade dictate otherwise, shall be promptly confirmed
in writing. All written instructions, notices or other communications
shall be addressed as follows:
(i) if to Xxxxxx Xxxxxxx:
Xxxxxx Xxxxxxx & Co. Incorporated
Xxx Xxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Commodity Operations Manager
(ii) if to Customer, at the address as indicated on the
Commodity Account Application.
(f) Rights and Remedies Cumulative. All rights and remedies arising
under this Agreement as amended and modified from time to time are
cumulative and not exclusive of any rights or remedies which may be
available at law or otherwise.
(g) No Waiver. No failure on the part of Xxxxxx Xxxxxxx to exercise,
and no delay in exercising, any contractual right will operate as a waiver
thereof, nor will any single or partial exercise by Xxxxxx Xxxxxxx of any
right preclude any other or future exercise thereof or the exercise of any
other partial right.
(h) Governing Law. THE INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT AND THE RIGHTS, OBLIGATIONS AND REMEDIES OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CHOICE OF LAW.
(i) Consent to Jurisdiction. ANY LITIGATION BETWEEN XXXXXX XXXXXXX
AND CUSTOMER RELATING TO THIS AGREEMENT OR TRANSACTIONS HEREUNDER SHALL
TAKE PLACE IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE BOROUGH
OF MANHATTAN OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. CUSTOMER CONSENTS TO THE SERVICE OF PROCESS BY THE
MAILING TO CUSTOMER OF COPIES OF SUCH COURT FILING BY CERTIFIED MAIL TO
THE ADDRESS OF CUSTOMER AS IT APPEARS ON THE BOOKS AND RECORDS OF XXXXXX
XXXXXXX, SUCH SERVICE TO BE EFFECTIVE TEN DAYS AFTER MAILING. CUSTOMER
HEREBY WAIVES IRREVOCABLY ANY IMMUNITY TO WHICH IT MIGHT OTHERWISE BE
ENTITLED IN ANY ARBITRATION, ACTION AT LAW, SUIT IN EQUITY OR ANY OTHER
PROCEEDING ARISING OUT OF OR BASED ON THIS AGREEMENT OR ANY TRANSACTION IN
CONNECTION HEREWITH.
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(j) Waiver of Jury Trial. Customer hereby waives a trial by jury in
any action arising out of or relating to this Agreement or any transaction
in connection therewith.
(k) Agreement Non-exclusive. Xxxxxx Xxxxxxx shall be free to render
services of the nature to be rendered to Customer hereunder to other
persons or entities in addition to Customer, and the parties acknowledge
that Xxxxxx Xxxxxxx may render such services to additional entities
similar in nature to Customer. It is expressly understood and agreed that
this Agreement is non-exclusive and that Customer has no obligation to
execute any or all of its trades for futures interests through Xxxxxx
Xxxxxxx. The parties acknowledge that Customer may execute and clear
trades for futures interests through such other broker or brokers as
Customer may direct from time to time. Customer's utilization of one or
more additional commodity brokers shall neither terminate this Agreement
nor modify in any regard the respective rights and obligations of Customer
and Xxxxxx Xxxxxxx.
(l) Customer Acknowledgments.
(i) CUSTOMER HEREBY ACKNOWLEDGES THAT IT HAS RECEIVED AND
UNDERSTANDS THE FOLLOWING DISCLOSURE STATEMENT PRESCRIBED BY THE
CFTC AND FURNISHED HEREWITH (please initial):
|X| Risk Disclosure Statement
for Futures Options
(Appendix A to CFTC Rule 1.55(c) transcribed in full
on pages 1-3 of Booklet 2 -- Risk Disclosure
Statements)
(ii) If Customer has indicated on the Commodity Futures
Account Application that orders placed for the Account represent
bona fide hedging transactions, please complete the following. You
should note that CFTC Regulation ss.190.06 permits you to specify
whether, in the unlikely event of Xxxxxx Xxxxxxx'x bankruptcy, you
prefer the bankruptcy trustee to liquidate all positions in the
Account. Accordingly, Customer hereby elects as follows: (please
initial):
|_| Liquidate |_| Not Liquidate
If neither alternative is initialed, Customer will be deemed to have
elected to have all positions liquidated. This election may be changed at any
time by written notice.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first indicated above.
XXXXXX XXXXXXX XXXX XXXXXX
SPECTRUM COMMODITY L.P.
By: Demeter Management Corporation,
General Partner
By: _____________________________________
Xxxxxx X. Xxxxxx, President
XXXXXX XXXXXXX & CO. INCORPORATED
By: _____________________________________
Name:
Title:
Acknowledged and Agreed
(as to Section 3(a) and (b))
XXXX XXXXXX XXXXXXXX INC.
By: ___________________________
Xxxxxx X. Xxxxxx
Senior Vice President
Reminder: Please be sure to initial the appropriate boxes in Sections
8(k)(1)(i) above.
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