Newedge
Exhibit
10.2
Newedge
Aspect
Global Diversified Fund L. P.
Thank you
for your interest in opening a futures trading account with Newedge Financial
Inc.
This
package includes the agreements and forms necessary to establish a futures
trading account as well as certain documentation which may, at your discretion,
be completed by you to allow specific types of trading activities. Included is a
set of Disclosure Statements required by different exchanges and regulators for
certain types of activities. You should review these statements to understand
some of the risks of trading and be aware of how your rights in certain markets
might be limited. These Statements should be kept by you and copies should be
distributed to the relevant parties within your organization.
In
addition to the attached documents, specific legal and financial information may
be required from you prior to approving a new account.
Employees
of banks and brokerage firms will be asked to submit an Employee Consent
Letter.
If your
account will be traded by a party other than yourself under a Power of Attorney,
additional documentation will be required prior to the start of
trading.
Hedge
clients must be sure to complete the Hedge Election section on page 15 of the
Futures Account Agreement.
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Newedge
Financial Inc. Disclosure Documents
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NEWEDGE
FINANCIAL INC.
In
consideration of the acceptance by Newedge Financial Inc. (“Newedge”) of one or
more accounts of the undersigned (“Customer”) (if more than one account is at
any time opened or reopened with Newedge, all are covered by this Agreement and
are referred to individually and collectively as the “Account”), and Newedge’s
agreement to act as broker, directly or indirectly, or as dealer, for the
execution, clearance and/or carrying of transactions for the purchase and sale
of commodity interests, including commodities, spot and forward contracts,
commodity futures contracts, options on commodity futures contracts, security
futures product contracts, and transactions involving the exchange of futures
for cash commodities or the exchange of futures in connection with cash
commodity transactions, Newedge and Customer agree as follows:
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1.
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APPLICABLE
RULES AND REGULATIONS
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The
Account and each transaction therein shall be subject to the terms of this
Agreement and to (a) all applicable laws and the regulations, rules and orders
(collectively “regulations”) of all regulatory and self-regulatory organizations
having jurisdiction and (b) the constitution, by-laws, rules, regulations,
orders, resolutions, interpretations and customs and usages (collectively
“rules”) of the market and any associated clearing organization or clearing
house (each an “exchange”) on or subject to the rules of which such transaction
is executed and/or cleared. The reference in the preceding sentence to exchange
rules is solely for Newedge’s protection and Newedge’s failure to comply
therewith shall not constitute a breach of this Agreement or relieve Customer of
any obligation or responsibility under this Agreement. Newedge shall not be
liable to Customer as a result of any action or omission by Newedge, its
officers, directors, employees or agents to comply with any exchange
rule.
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2.
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PAYMENTS
TO NEWEDGE
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Customer
agrees to pay to Newedge immediately on request (a) commissions, give-up
charges, fees and service charges as are in effect from time to time for the
Customer, together with all applicable regulatory and self-regulatory
organization and exchange fees, charges, including all such fees, charges or
costs assessed against Newedge with respect to any equity securities of Customer
deposited for margin obligations, and taxes; (b) the amount of any debit balance
or any other liability that may result from transactions executed for the
Account; and (c) interest on such debit balance or liability at the prevailing
rate charged by Newedge at the time such debit balance or liability arises and
service charges on any such debit balance or liability together with any
reasonable attorneys’ fees and costs incurred in collecting any such debit
balance or liability. Customer understands that most of the payment obligations
enumerated in subsection (a) above are automatically charged against its Account
after each transaction. Customer acknowledges that Newedge may charge
commissions at other rates to other customers.
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3.
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CUSTOMER’S
DUTY TO MAINTAIN ADEQUATE MARGIN
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Customer
shall at all times maintain adequate margin (also known as “performance bond”)
in the Account so as continually to meet the original and maintenance margin
requirements established by Newedge for Customer. Newedge may change such
requirements from time to time at Newedge’s discretion upon notice to Customer.
Such margin requirements may exceed the margin requirements set by any exchange
or other regulatory authority and may vary from Newedge’s requirements for other
customers.
Customer
agrees, when so requested, orally or by written notice, on the business day it
is received, unless sooner required by Newedge for an intraday requirement, to
wire transfer (by the Fed wire system to the account of Newedge) margin funds,
and to furnish Newedge with names of bank officers for immediate verification of
such transfers. Customer acknowledges and agrees that Newedge may receive and
retain as its own any interest, increment, profit, gain or benefit, directly or
indirectly, accruing from any of the funds Newedge receives from
Customer.
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4.
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DELIVERY;
OPTION EXERCISE, ASSIGNMENT AND
EXPIRATION
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A.
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Delivery. If
Customer desires to make or take delivery under a commodity interest
contract, Customer agrees to give Newedge timely notice of such intent for
open positions maturing in a current delivery month according to
applicable rules and regulations of the exchange or
clearing
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house and Newedge’s instructions. Sufficient funds to take
delivery or the necessary delivery documents must be delivered by Customer to
Newedge according to Newedge’s instructions. If funds, documents or Customer’s
intentions with respect to delivery are not received, Newedge may, without
notice, either liquidate Customer’s position or make or receive delivery on
behalf of Customer upon such terms and by such methods as Newedge reasonably
determines. Customer understands that Newedge may, upon prior notice to
Customer, establish cut-off times for timely notification that may be earlier
than the times established by the applicable rules and regulations of the
exchanges or clearing houses to ensure that Newedge complies with such rules and
regulations. If Customer desires to make or take delivery of a security futures
product, Customer agrees to open a securities account pursuant to Newedge’s
Securities and Options Account Agreement to effect such delivery.
If, at
any time, Customer fails to deliver to Newedge any property previously sold by
Newedge on Customer’s behalf in compliance with commodity interest contracts, or
Newedge shall deem it necessary (whether by reason of the requirements of any
exchange, clearing house or otherwise) to replace any securities, commodity
interest contracts, financial instruments, or other property previously
delivered by Newedge for the Account of Customer with other property of like or
equivalent kind or amount, Customer hereby authorizes Newedge to borrow or to
buy any property necessary to make delivery thereof, or to replace any such
property previously delivered, or to deliver the same to such other party or to
whom delivery is to be made. Newedge may subsequently repay any borrowing or
purchase thereof with property purchased or otherwise acquired for the Account
of Customer. Customer shall pay Newedge for any actual costs, losses and damages
from the foregoing, including, but not limited to, consequential damages,
penalties and fines that Newedge may incur or that Newedge may sustain from its
inability to borrow or buy any such property.
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B.
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Option Exercise, Assignment and
Expiration. Customer agrees to give Newedge timely notice if
Customer intends to exercise or abandon an option contract according to
the rules and regulations of the exchanges or clearing houses. Customer
understands that most exchanges and clearing houses have established
cut-off times for the tender of exercise or abandonment instructions, and
that an option will become worthless if instructions are not delivered
before such expiration time. Customer also understands that certain
exchanges and clearing houses will automatically exercise some
“in-the-money” options unless instructed otherwise. Customer acknowledges
full responsibility for taking action either to exercise or to prevent the
exercise of an option contract, as the case may be, and Newedge is not
required to take any action with respect to an option contract, including
without limitation any action to exercise an option prior to its
expiration date, or to prevent the automatic exercise of an option, except
upon Customer’s express instructions. Customer further understands that
Newedge may, upon prior notice to Customer, establish exercise instruction
cut-off times that may be earlier than the times established by the
applicable rules and regulations of the exchanges and clearing houses to
ensure that Newedge complies with such rules and
regulations.
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Customer
understands that (a) all short option positions are subject to assignment at any
time, including positions established on the same day that exercises are
assigned, and (b) exercised assignment notices are allocated in a manner that
has been approved by the applicable exchange or clearing house from among all
Newedge customers’ short options positions that are subject to
assignment.
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5.
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FOREIGN
CURRENCY
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If
Newedge enters into any transaction for Customer effected in a currency other
than U.S. dollars: (a) any profit or loss caused by changes in the rate of
exchange for such currency shall be for Customer’s Account and risk and (b)
unless another currency is designated in Newedge’s confirmation of such
transaction, all margin for such transaction and the profit or loss on the
liquidation of such transaction shall be in U.S. dollars at a rate of exchange
determined by Newedge on the basis of then prevailing market rates of exchange
for such foreign currency.
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6.
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NEWEDGE
MAY LIMIT POSITIONS HELD
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Customer
agrees that Newedge, upon notice to Customer, may limit the number of open
positions (net or gross) that Customer may execute, clear and/or carry with or
acquire through it. Customer agrees (a) not to make any trade that would have
the effect of exceeding such limits, (b) that Newedge may require Customer to
reduce open positions carried with Newedge and (c) that Newedge may refuse to
accept orders to establish new positions. Newedge may impose and enforce such
limits, reduction or refusal whether or not they are required by applicable law,
regulations or rules. Customer shall comply with all position limits established
by any regulatory or self-regulatory organization or any exchange. In addition,
Customer agrees to notify Newedge promptly if Customer is required to file
position reports with any regulatory or self-regulatory organization or with any
exchange.
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7.
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NO
WARRANTY AS TO INFORMATION OR
RECOMMENDATION
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Customer
acknowledges that:
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(a)
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Any
market recommendations and information Newedge may communicate to
Customer, although based upon information obtained from sources believed
by Newedge to be reliable, may be incomplete and not subject to
verification;
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(b)
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Newedge
makes no representation, warranty or guarantee as to, and shall not be
responsible for, the accuracy or completeness of any information or
trading recommendation furnished to
customer;
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(c)
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Recommendations
to Customer as to any particular transaction at any given time may differ
among Newedge’s personnel due to diversity in analysis of fundamental and
technical factors and may vary from any standard recommendation made by
Newedge in its research reports or otherwise;
and
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(d)
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Newedge
has no obligation or responsibility to update any market recommendations,
research or information it communicates to
Customer.
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Customer
understands that Newedge and its officers, directors, affiliates, stockholders,
representatives or associated persons may have positions in and may intend to
buy or sell commodity interests that are the subject of market recommendations
furnished to Customer, and that the market positions of Newedge or any such
officer, director, affiliate, stockholder, representative or associated person
may or may not be consistent with the recommendations furnished to Customer by
Newedge.
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8.
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LIMITS
ON NEWEDGE DUTIES; LIABILITY
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Customer
agrees:
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(a)
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That
Newedge has no duty to apprise Customer of news or of the value of any
commodity interests or collateral pledged or in any way to advise Customer
with respect to the market;
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(b)
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That
the commissions, which Newedge receives, are consideration solely for the
execution, clearing, carrying and reporting of Customer’s
trades;
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(c)
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If
there is an Account Manager, an Account Manager’s Agreement for the
Account Manager will be provided to Newedge. The Account Manager specified
therein is authorized to exercise discretion and to act on behalf of
Customer with respect to the
Account.
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(1)
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Account
Manager is duly organized, empowered and authorized to make the
representations set forth in Section 17 hereof as if the Account Manager
were substituted for the term Customer
therein.
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(2)
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Account
Manager shall direct Customer to take such action in respect of the
Account as is required of Customer under this Agreement or under the rules
and regulations.
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(3)
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Customer
agrees that (1) Account Manager is authorized to act on Customer’s behalf
with respect to the Account, including the authority to select and
authorize the payment of executing brokers, and to receive and give
communications, instructions and authorizations; and (2) any right of
Newedge arising in connection with this Agreement is enforceable against
all of Customer’s assets, notwithstanding that Account Manager may
exercise discretion over less than all of the assets of
Customer.
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(4)
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Account
Manager represents that it has provided to Customer and Customer
represents it has received: (1) a disclosure document concerning such
Account Manager’s trading advice, including, in the event the Account
Manager will trade options, the options strategies to be utilized, or (2)
a written statement explaining why Account Manager is not required under
applicable law to provide such a disclosure document to Customer;
and
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(5)
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Customer
acknowledges, understands and agrees that (1) any communication, notice,
report, statement, advice or information given to Account Manager by
Newedge or received from Account Manager by Newedge in respect of the
Account shall be deemed to have been given to, or received from, Customer
as the case may be; (2) any decision, instruction or action of, or
authorization by, Account Manager in respect of the Account shall be
deemed to constitute the decision, instruction, action or authorization of
Customer; (3) Customer has carefully examined the provision of the
documents by which it has given trading authority or control over the
Account to the Account Manager and understands fully the obligations which
it has assumed by executing such document; (4) Newedge is in no way
responsible for any loss to Customer occasioned by the actions of the
Account Manager and Newedge does not by implication or otherwise endorse
the operating methods or trading strategies or programs of the Account
Manager; and (5) Customer gives the Account Manager authority to exercise
Customer’s rights over the Account, and does so at its own
risk.
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(d)
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That
Newedge or its shareholders, directors, officers, employees, agents,
affiliates and controlling persons shall have no liability for damages,
claims, losses or expenses caused by any errors, omissions or delays: (a)
of sub-agents employed by Newedge, provided that Newedge has used
reasonable care in their selection; or (b) of Newedge itself, except those
caused by Newedge’s gross negligence or willful
misconduct.
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9.
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EXTRAORDINARY
EVENTS
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Customer
agrees that Newedge shall have no liability for damages, claims, losses or
expenses caused by any errors, omissions or delays resulting from an act,
condition or cause beyond the reasonable control of Newedge, including, but not
limited to: war; insurrection; riot; strike; act of God; fire; flood;
extraordinary weather conditions; accident; action of government authority;
action of exchange, clearing house or clearing organization; communications or
power failure; equipment or software malfunction (including any electronic order
routing or direct execution trading system or facility); error, omission or
delay in the report of transactions; prices, exchange rates or other market or
transaction information; or the insolvency, bankruptcy, receivership,
liquidation or other financial difficulty of any bank, clearing broker,
exchange, market, clearing house or clearing organization.
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10.
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INDEMNIFICATION
OF NEWEDGE, CONTRIBUTION AND
REIMBURSEMENT
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(a)
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To
the extent permitted by law, Customer agrees to indemnify and hold
harmless Newedge and its shareholders, directors, officers, employees,
agents, affiliates and controlling persons against any liability for
damages, claims, losses or expenses which they may incur as a result,
directly or indirectly of: (x) Customer’s violation of federal or state
laws or regulations, or of rules of any exchange or self-regulatory
organization; (y) any other breach of this Agreement by Customer; or (z)
Customer’s failure to timely deliver any security, commodity or other
property previously sold by Newedge on Customer’s behalf. Such damages,
claims, losses or expenses shall include reasonable legal fees and all
expenses, costs of settling claims, interest, and fines or penalties
imposed by the exchanges, self regulatory organization or governmental
authority.
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(b)
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Customer
agrees to reimburse Newedge and its shareholders, directors, officers,
employees, agents, affiliates and controlling persons on demand for any
costs incurred in collecting any sums Customer owes under this Agreement
and any costs of successfully defending against claims asserted against
them by Customer.
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11.
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NOTICES;
TRANSMITTALS
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Newedge
shall transmit all communications to Customer at Customer’s address, facsimile
or telephone number set forth below or to such other address as Customer may
hereafter direct in writing. Customer shall transmit all communications to
Newedge regarding this Agreement (except routine inquiries concerning the
Account) to 000 Xxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000-0000;
facsimile, (000) 000-0000, Attention: Legal Department. All payments and
deliveries to Newedge shall be made as instructed by Newedge from time to time
and shall be deemed received only when actually received by
Newedge.
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12.
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CONFIRMATION
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All
confirmations, correction notices and account statements (collectively,
“Statements”) shall be submitted to Customer and shall be deemed to be accurate
unless the Customer notifies Newedge 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 Newedge of
any objection thereto within three business days after receipt of such monthly
Statement, provided the objection could not have been raised at the time the
prior Statement, e.g. confirmations and correction notices, was received by the
Customer as provided for above. Any such notice of objection, if given orally,
shall be confirmed promptly in writing by the Customer. Neither Customer nor
Newedge shall be bound by any transaction or price reported in
error.
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13.
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SECURITY
INTEREST
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Customer
hereby grants to Newedge a first lien upon and a security interest in any and
all cash, securities, whether certificated or uncertificated, security
entitlements, investment property, financial assets, foreign currencies,
commodity interests, commodity accounts, commodity contracts and other property
(including securities and options) and the proceeds of all of the foregoing
(together the “Collateral”) belonging to Customer or in which Customer may have
an interest, now or in the future, and held by Newedge or in Newedge’s control
or carried in any of Customer’s Accounts, or in Customer’s accounts carried
under other agreements with Newedge or its affiliates. Such security interest is
granted as security for the performance by Customer of its obligations hereunder
and for the payment of all loans and other liabilities which Customer has or may
in the future have to Newedge, whether under this Agreement or any other
agreement between the parties hereto. Customer agrees to execute such further
instruments, documents, filings and agreements as may be requested at any time
by Newedge in order to perfect and maintain perfected the foregoing lien and
security interest. Newedge, in its discretion, may liquidate any Collateral to
satisfy any margin or Account deficiencies or to transfer the Collateral to the
general ledger account of Newedge. Terms defined in the Uniform Commercial Code,
as enacted in the State of New York, shall for purposes of this paragraph have
the meanings set forth therein.
In the
event that the provisions of Section 13, which relate to Collateral in any
account carried by Newedge for Customer other than an Account established
hereunder, conflict with the agreement under which such other account was
established, such other agreement between Newedge and Customer shall take
precedence over the provisions of this Section 13.
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14.
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TRANSFER
OF FUNDS
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At any
time and from time to time, Newedge may transfer from one account to another
account in which Customer has any interest, such excess funds, equities,
securities or other property as in Newedge’s judgment may be required for
margin, or to reduce any debit balance or to reduce or satisfy any deficits in
such other accounts except that no such transfer may be made from a segregated
account subject to the Commodity Exchange Act to another account maintained by
Customer unless either Customer has authorized such transfer in writing or
Newedge is effecting such transfer to enforce Newedge’s security interest
pursuant to Section 13. Newedge promptly shall confirm all transfers of funds
made pursuant hereto to Customer in writing.
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15.
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NEWEDGE’S
RIGHT TO LIQUIDATE CUSTOMER
POSITIONS
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In
addition to all other rights of Newedge set forth in this
Agreement:
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(a)
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When
directed or required by a regulatory or self-regulatory organization or
exchange having jurisdiction over Newedge or the
Account;
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(b)
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Whenever,
in its discretion, Newedge considers it necessary for its protection
because of margin requirements or
otherwise;
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(c)
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If
Customer or any affiliate of Customer repudiates, violates, breaches or
fails to perform on a timely basis any term, covenant or condition on its
part to be performed under this Agreement or another agreement with
Newedge or an affiliate of Newedge; and such repudiation, violation,
breach, or failure continues for (3) business days after notice thereof
from Newedge or an affiliate of Newedge, except that such grace period
shall not be applied to a term, covenant, or condition that relates to any
financial obligations on Customer’s part, including, but not limited to,
the payment of margin or any delivery
requirements;
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(d)
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If
a case of bankruptcy is commenced or if a proceeding under any insolvency
or other law for the protection of creditors or for the appointment of a
receiver, liquidator, trustee, conservator, custodian or similar officer
is filed by or against Customer or any affiliate of Customer or if
Customer or any affiliate of Customer makes or proposes to make any
arrangement or composition for the benefit of its creditors, or if
Customer or (any such affiliate) or any or all of its property is subject
to any agreement, order, judgment or decree providing for Customer’s
dissolution, winding-up, liquidation, merger, consolidation,
reorganization or for the appointment of a receiver, liquidator, trustee,
conservator, custodian or similar officer of Customer, such affiliate or
such property;
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(e)
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In
the case of a natural person, Newedge is informed of Xxxxxxxx’s death or
mental incapacity; or
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(f)
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If
an attachment or similar order is levied against the Account or any other
account maintained by a Customer or any affiliate of Customer with Newedge
or an affiliate of Newedge;
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Newedge
shall have the right to (i) satisfy any obligations due Newedge out of any
Customer’s property (also referred to as “Collateral”) in Newedge’s custody or
control, (ii) liquidate any or all of Customer’s commodity interest positions,
such liquidation shall include transactions involving the exchange of futures
for cash commodities or the exchange of futures in connection with cash
commodity transactions (iii) cancel any or all of Customer’s outstanding orders,
(iv) treat any or all of Customer’s obligations due Newedge as immediately due
and payable, (v) sell any or all of Customer’s property in Newedge’s custody or
control in such manner as Newedge determines to be commercially reasonable,
and/or (vi) terminate any or all of Newedge’s obligations for future performance
to Customer, all without any notice to or demand on Customer, if deemed
necessary by Newedge. Any action hereunder may be made in any commercially
reasonable manner. Customer agrees that a prior demand, call or notice shall not
be considered a waiver of Newedge’s right to act without demand or notice as
herein provided, that Customer shall at all times be liable for the payment of
any debit balance owing in each Account upon demand whether occurring upon a
liquidation as provided under this Section 15 or otherwise under this Agreement,
and that in all cases Customer shall be liable for any deficiency remaining in
each Account in the event of liquidation thereof in whole or in part together
with interest thereon and all costs relating to liquidation and collection
(including reasonable attorneys’ fees). In the event that the provisions of
Section 15, which relate to Collateral in any account carried by Newedge for
Customer other than an Account instituted hereunder, conflict with the agreement
under which such other account was instituted, such other agreement between
Newedge and Customer shall take precedence over the provisions of this Section
15.
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16.
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NEWEDGE’S
RIGHT TO SET-OFF
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Any
amount payable to Newedge by the Customer in the case where an event under
Section 15 has occurred, will, at the option of Newedge, be reduced by its
set-off against any amounts payable by Newedge or any affiliate of Newedge to
Customer under this Agreement or any other agreement between
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Newedge
or any affiliate of Newedge and Customer, or instrument or undertaking in favor
of Newedge or an affiliate of Newedge (the “Newedge payable amount”). The
Newedge payable amount will be discharged promptly and in all respects to the
extent it is so set-off. Newedge will give notice to Customer of any set-off
effected under this Section 16. If a Customer’s obligation to Newedge or an
affiliate is unascertained, Newedge may, in good faith, estimate that obligation
and set off any amount owing by Newedge or any affiliate to Customer on any
account in respect of the estimate, which amount will be revised when the
obligation is ascertained. This Section and Section 15 shall be without
prejudice and in addition to any right of set-off, combination of accounts, lien
or other right to which Newedge is at any time otherwise entitled whether by
operation of law, contract or otherwise. For purposes of this Section and
Section 15, an “affiliate” of Newedge shall mean: Newedge Group, its direct or
indirect parent company(ies) and all other companies owned materially or
controlled in substantial part by or affiliated with Newedge Group and which
bear the “Newedge” name, or their successors or assigns.
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17.
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CUSTOMER
REPRESENTATIONS, WARRANTIES AND
AGREEMENTS
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Customer
represents and warrants to and agrees with Newedge that:
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(a)
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Customer
has full power and authority to enter into this Agreement and to engage in
the transactions and perform its obligations hereunder and contemplated
hereby, and:
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(1)
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If
Customer is a corporation or partnership, Customer represents and warrants
that (a) it is duly organized and in good standing under the laws of the
jurisdiction in which it is established and in every state in which it
does business; (b) is empowered to enter into and perform this Agreement
and to effectuate transactions in commodity interests, financial
instruments and foreign currency as contemplated hereby; and (c) no person
or entity has any interest in or control of the Account to which this
Agreement pertains except as disclosed by Customer to Newedge in
writing.
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(2)
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If
Customer is a trust, Customer represents and warrants that (a) it is a
duly formed and existing trust under the laws of the state of its
formation or such other laws as are applicable, including ERISA or similar
state law, and the party or parties designated as trustee or trustees by
Customer to Newedge in writing submitted herewith constitute the only or
all of the proper trustees thereof; (b) the trustee or trustees are
empowered to enter into and perform this Agreement and to effectuate
transactions in commodity interests, financial instruments, and foreign
currency as contemplated hereby; (c) the trustee or trustees make the
representations set forth in Section 17 hereof as if the term trustee(s)
were substituted for the term Customer therein; and (d) no person or
entity has any interest in or control of the Account to which this
Agreement pertains except as disclosed by Customer to Newedge in
writing.
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(b)
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To
the best of its knowledge, neither Customer nor any partner, director,
officer, member, manager or employee of Customer nor any affiliate of
Customer is a partner, director, officer, member, manager or employee of a
futures commission merchant, introducing broker, bank, broker-dealer,
exchange or self-regulatory organization or an employee or commissioner of
the Commodity Futures Trading Commission (the “CFTC”), except as
previously disclosed in writing to
Newedge;
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(c)
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To
help the government fight the funding of terrorism and money-laundering
activities, U.S. Federal law requires Newedge to obtain, verify and record
information that identifies each and every person for which an account is
opened by Newedge, whether that person is an individual, association,
partnership, corporation, trust or other
entity.
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Customer
will furnish information and documentation as requested by Newedge so that
Newedge can verify Customer’s identity as required by U.S. Federal law. Any
financial statements or information, or identifying information and
documentation furnished to Newedge are true, correct and complete. Customer
hereby authorizes Newedge to contact such banks, financial institutions and
credit agencies as Newedge shall deem appropriate for verification of such
financial
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statements
or other information. Upon the Customer’s request, Newedge will inform the
Customer whether it has obtained credit reports, and if so, Newedge will inform
the Customer of the name and address of the reporting agency that furnished
those reports.
Except as
disclosed in writing, (i) Customer is not a commodity pool or is exempt from
registration under the rules of the CFTC, and (ii) Customer is acting solely as
principal and no one other than Customer has any interest in any Account of
Customer. Newedge acknowledges that it has been informed that the Customer is a
commodity pool.
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(d)
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Customer
has determined that trading in commodity interests is appropriate for
Customer, is prudent in all respects and does not and will not violate
Customer’s charter or by-laws (or other comparable governing document) or
any law, rule, regulation, judgment, decree, order or agreement to which
Customer or its property is subject or
bound;
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(e)
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As
required by CFTC regulations, Customer shall create, retain and produce
upon request of the applicable contract market, the CFTC or other
regulatory authority documents (such as contracts, confirmations, telex
printouts, invoices and documents of title) with respect to cash
transactions underlying exchanges of futures for cash commodities or
exchange of futures in connection with cash commodity
transactions;
|
|
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(f)
|
Customer
consents to the electronic recording, at Newedge’s discretion, of any or
all telephone conversations with Newedge (without automatic tone warning
device), the use of same as evidenced by either party in any action or
proceeding arising out of the Agreement and in Newedge’s erasure, at its
discretion, of any recording as part of its regular procedure for handling
of recordings;
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|
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(g)
|
Absent
a separate written agreement between Customer and Newedge with respect to
give-ups, Newedge, in its discretion, may, but shall have no obligation
to, accept from other brokers commodity interest transactions executed by
such brokers on an exchange for Customer and proposed to be “given-up” to
Newedge for clearance and/or carrying in the
Account;
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|
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(h)
|
Newedge,
for and on behalf of Customer, is authorized and empowered to place orders
for commodity interest transactions through one or more electronic or
automated trading or order routing systems maintained or operated by or
under the auspices of an exchange or by Newedge, or any third party
vendors, that Newedge shall not be liable or obligated to Customer for any
losses, claims, damages, liabilities, costs or expenses (including but not
limited to loss of profits, loss of use, direct or indirect incidental or
consequential damages) incurred or sustained by Customer and arising in
whole or in part, directly or indirectly, from any error, fault, failure,
inadequate performance or nonperformance, delay, omission, malfunction,
inaccuracy or termination of an electronic trading system or order routing
system or Newedge’s inability to enter, cancel or modify an order on
behalf of Customer on or through an electronic trading system or order
routing system. The provisions of this Section 17(h) shall apply
regardless of whether any customer claim arises in contract, negligence,
tort, strict liability, breach of fiduciary obligations or otherwise;
and
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|
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(i)
|
Newedge
shall be entitled to rely on any instructions, notices and communications,
whether oral or in writing, that it reasonably believes to be from an
individual authorized to act on behalf of Customer, including, but not
limited to, any individual(s) identified in writing by 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 be required by the relevant statutes or any other similar
law, rule or regulation.
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(j)
|
If
Customer is subject to the Financial Institution Reform, Recovery and
Enforcement Act of 1989, the certified resolutions set forth following
this Agreement have been caused to be reflected in the minutes of
Customer’s Board of Directors (or other comparable governing body) and
this Agreement is and shall be, continuously from the date hereof, an
official record of Customer.
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8
|
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(k)
|
Customer
is aware of and agrees to be bound by the rules of FINRA applicable to the
trading of security futures product
contracts.
|
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(l)
|
Customer
is aware of and agrees not to violate applicable security futures product
position limits.
|
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(m)
|
Customer
acknowledges that Newedge has furnished it with a copy of the current
Security Futures Risk
Disclosure Statement.
|
Customer
agrees to promptly notify Newedge in writing if any of the warranties and
representations contained in this Section 17 become inaccurate or in any way
cease to be true, complete and correct.
|
18.
|
NEWEDGE’S
REPRESENTATIONS AND WARRANTIES
|
Newedge
represents and warrants that:
|
|
(a)
|
Newedge
is registered as a futures commission merchant with the CFTC and is a
member of the National Futures
Association.
|
|
|
(b)
|
Newedge
has all requisite authority, whether arising under applicable federal or
state laws and rules and regulations, or the rules and regulations of any
contract market or other self-regulatory organization to which Newedge is
subject, to enter into this
Agreement.
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|
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(c)
|
This
Agreement does not violate any applicable law, any judgment, order or
agreement to which Newedge or any of its property is subject or by which
it or its property is bound.
|
|
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(d)
|
This
Agreement is a valid and binding agreement of Newedge enforceable against
Newedge in accordance with its terms and the person signing and delivering
the Agreement is duly authorized to do so on behalf of
Newedge.
|
|
19.
|
SUCCESSORS
AND ASSIGNS
|
This
Agreement shall inure to the benefit of Newedge, its successors and assigns, and
shall be binding upon Customer and Customer’s executors, trustees,
administrators, successors and assigns, provided, however, that this Agreement
is not assignable by Customer without the prior written consent of Newedge,
which consent shall not be unreasonably withheld if such assignment is approved
in accordance with Newedge’s credit policies and procedures.
|
20.
|
MODIFICATION
OF AGREEMENT; NON-WAIVER PROVISION
|
This
Agreement may only be altered, modified or amended by mutual written consent of
the parties. The rights and remedies conferred upon the parties shall be
cumulative, and its forbearance to take any remedial action available to it
under this Agreement shall not waive its right at any time or from time to time
thereafter to take such action.
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21.
|
SEVERABILITY
|
If any
term or provision hereof or the application thereto to any persons or
circumstances shall to any extent be contrary to any exchange, government or
self-regulatory regulation or contrary to any federal, state or local law or
otherwise be invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to persons or circumstances other than
those as to which it is contrary, invalid or unenforceable, shall not be
affected thereby.
|
22.
|
CAPTIONS
|
All
captions used herein are for convenience only, are not a part of this Agreement,
and are not to be used in construing or interpreting any aspect of this
Agreement.
|
23.
|
TERMINATION
|
This
Agreement shall continue in force until written notice of termination is given
by Customer or Newedge. Termination shall not relieve either party of any
liability or obligation incurred prior to such
9
notice.
Upon giving or receiving notice of termination, Customer will promptly take all
action necessary to transfer all open positions in each Account to another
futures commission merchant.
|
24.
|
ENTIRE
AGREEMENT
|
This
Agreement constitutes the entire agreement between Customer and Newedge with
respect to the subject matter hereof and supersedes any prior agreements between
the parties with respect to such subject matter.
|
25.
|
GOVERNING
LAW; CONSENT TO JURISDICTION
|
|
|
(a)
|
In
case of a dispute between Customer and Newedge arising out of or relating
to the making or performance of this Agreement or any transaction pursuant
to this Agreement (i) this Agreement and its enforcement shall be governed
by the laws of the State of New York without regard to principles of
conflicts of laws, and (ii) Customer will bring any legal proceeding
against Newedge in, and Customer hereby consents in any legal proceeding
by Newedge to the jurisdiction of, any state or federal court located
within the Borough of Manhattan in New York City in connection with all
legal proceedings arising directly, indirectly or otherwise in connection
with, out of, related to or from Customer’s Account, transactions
contemplated by this Agreement or the breach thereof. Customer hereby
waives all objections Customer, at any time, may have as to the propriety
of the court in which any such legal proceedings may be commenced.
Customer also agrees that any service of process mailed to Customer at any
address specified to Newedge shall be deemed a proper service of process
on the undersigned. Customer agrees that venue of all proceedings shall be
in the Borough of Manhattan in New York
City.
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|
|
(b)
|
Notwithstanding
the provisions of Section 25(a)(ii), Customer may elect at this time to
have all disputes described in this Section resolved by arbitration. To
make such election, Customer must sign the Arbitration Agreement set forth
in Section 26. Notwithstanding such election, any question relating to
whether Customer or Newedge has commenced an arbitration proceeding in a
timely manner, whether a dispute is within the scope of the Arbitration
Agreement or whether a party (other than Customer or Newedge) has
consented to arbitration and all proceedings to compel arbitration shall
be determined by a court as specified in Section
25(a)(ii).
|
|
26.
|
ARBITRATION
AGREEMENT (OPTIONAL)
|
Every
dispute between Customer and Newedge arising out of or relating to the making or
performance of this Agreement or any transaction pursuant to this Agreement,
shall be settled by arbitration in accordance with the rules, then in effect, of
the National Futures Association, the contract market upon which the transaction
giving rise to the claim was executed, or the National Association of Securities
Dealers as Customer may elect. If Customer does not make such election by
registered mail addressed to Newedge Financial Inc. at 000 Xxxx Xxxxxxx Xxxx.,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Legal Department, within 45
days after demand by Newedge that the Customer make such election, then Newedge
may make such election. Newedge agrees to pay any incremental fees which may be
assessed by a qualified forum for making available a “mixed panel” of
arbitrators, unless the arbitrators determine that Customer has acted in bad
faith in initiating or conducting the proceedings. Judgment upon any award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
THREE
FORUMS EXIST FOR THE RESOLUTION OF COMMODITY DISPUTES: CIVIL COURT LITIGATION,
REPARATIONS AT THE COMMODITY FUTURES TRADING COMMISSION (“CFTC”) AND ARBITRATION
CONDUCTED BY A SELF-REGULATORY OR OTHER PRIVATE ORGANIZATION.
THE
CFTC RECOGNIZES THAT THE OPPORTUNITY TO SETTLE DISPUTES BY ARBITRATION MAY IN
SOME CASES PROVIDE MANY BENEFITS TO CUSTOMERS, INCLUDING THE ABILITY TO OBTAIN
AN EXPEDITIOUS AND FINAL RESOLUTION OF DISPUTES WITHOUT INCURRING SUBSTANTIAL
COSTS. THE CFTC REQUIRES, HOWEVER, THAT EACH CUSTOMER INDIVIDUALLY EXAMINE THE
RELATIVE MERITS OF ARBITRATION AND THAT YOUR CONSENT TO THIS ARBITRATION
AGREEMENT BE VOLUNTARY.
10
BY
SIGNING THIS AGREEMENT, YOU (1) MAY BE WAIVING YOUR RIGHT TO SUE IN A COURT OF
LAW AND (2) ARE AGREEING TO BE BOUND BY ARBITRATION OF ANY CLAIMS OR
COUNTERCLAIMS WHICH YOU OR NEWEDGE MAY SUBMIT TO ARBITRATION UNDER THIS
AGREEMENT. YOU ARE NOT, HOWEVER, WAIVING YOUR RIGHT TO ELECT INSTEAD TO PETITION
THE CFTC TO INSTITUTE REPARATIONS PROCEEDINGS UNDER SECTION 14 OF THE COMMODITY
EXCHANGE ACT WITH RESPECT TO ANY DISPUTE WHICH MAY BE ARBITRATED PURSUANT TO
THIS AGREEMENT. IN THE EVENT A DISPUTE ARISES, YOU WILL BE NOTIFIED IF NEWEDGE
INTENDS TO SUBMIT THE DISPUTE TO ARBITRATION. IF YOU BELIEVE A VIOLATION OF THE
COMMODITY EXCHANGE ACT IS INVOLVED AND IF YOU PREFER TO REQUEST A SECTION 14
“REPARATIONS” PROCEEDINGS BEFORE THE CFTC, YOU WILL HAVE 45 DAYS FROM THE DATE
OF SUCH NOTICE IN WHICH TO MAKE THAT ELECTION.
YOU
NEED NOT AGREE TO THIS ARBITRATION AGREEMENT TO OPEN AN ACCOUNT WITH
NEWEDGE.
See 17
CFR 166.5.
Acceptance
of this arbitration agreement requires a separate signature on page
15.
|
27.
|
CONSENT
TO TAKE THE OTHER SIDE OF ORDERS
(OPTIONAL)
|
Without
its prior notice, Customer agrees that when Newedge executes sell or buy orders
on Customer’s behalf, Newedge, its directors, officers, employees, agents,
affiliates, and any floor broker may take the other side of Customer’s
transaction through any Account of such person subject to its being executed at
prevailing prices in accordance with and subject to the limitations and
conditions, if any, contained in applicable rules and regulations.
|
28.
|
AUTHORIZATION
TO TRANSFER FUNDS (OPTIONAL)
|
Without
limiting other provisions herein, Newedge is authorized to transfer from any
segregated account subject to the Commodity Exchange Act carried by Newedge for
the Customer to any other account carried by Newedge for the Customer such
amount of excess funds as in Newedge’s judgment may be necessary at any time to
avoid a margin call or to reduce a debit balance in said account. It is
understood that Newedge will confirm in writing each such transfer of funds made
pursuant to this authorization within a reasonable time after such
transfer.
|
29.
|
TRANSMISSION
OF STATEMENTS (CUSTOMER TO ELECT)
|
Customer
may elect and consent until further notice to receive statements solely by
electronic means, including without limitation, by electronic mail or facsimile,
and not by mail. Customer shall not incur any costs or fees in connection with
the receipt of such statements by electronic transmission.
By
subscribing to electronic document delivery, the Customer understands and agrees
to the following:
|
|
(a)
|
Customer
has the right to receive daily and monthly statements by mail or
electronically or a combination
thereof.
|
|
|
(b)
|
The
Customer has the right to request and receive a written confirmation of a
specific trade and/or monthly statement, even if the Customer chooses to
receive daily and monthly statements only by electronic
means.
|
|
|
(c)
|
The
Customer will not receive any other notice regarding the delivery of
electronic documents, and the Customer takes sole responsibility for
promptly notifying Newedge in the event that documents fail to be properly
delivered electronically.
|
|
|
(d)
|
The
Customer may terminate the option to receive electronic document delivery
at any time by notifying Newedge in
writing.
|
11
OPTIONAL
ELECTIONS/ACKNOWLEDGMENTS
The
following provisions, which are set forth in this Agreement, need not be entered
into to open the Account. Customer agrees that by its signature or checking the
box (IEI) after each such election below its optional elections are as
follows:
|
A)
|
ARBITRATION
AGREEMENT: (Agreement Paragraph
26)
|
(must
sign and date)
|
B)
|
CONSENT
TO TAKE THE OTHER SIDE OF ORDERS: (Agreement Paragraph 27) x
|
|
C)
|
AUTHORIZATION
TO TRANSFER FUNDS: (Agreement Paragraph 28) x
|
|
D)
|
INSTRUCTIONS
TO RECEIVE STATEMENTS: (Agreement Paragraph
29)
|
Customer must complete the following:
Customer,
until further notice, elects delivery by electronic or facsimile or mail
transmission for each category or a combination thereof (check the appropriate
box(es)):
|
Electronic
|
Facsimile
|
Mail
|
|||
|
Daily
Statements
|
x
|
o
|
o
|
||
|
(including
confirmations and purchase and sale statements)
|
|||||
|
Monthly
Statements
|
x
|
o
|
x
|
||
|
E)
|
HEDGE
ELECTION
|
I) Customer
confirms that all transactions in the Account will represent bona fide hedging
transactions, as defined by the Commodity Futures Trading Commission, unless
Newedge is notified otherwise not later than the time an order is placed for the
Account: o
II) Pursuant
to CFTC Regulation 190.06(d), Customer specifies and agrees, with respect to
hedging transactions in the Account, that in the unlikely event of Newedge’s
bankruptcy, it prefers that the bankruptcy trustee [check appropriate
box]:
|
|
A)
|
Liquidate
all open contracts without first seeking instructions either from or on
behalf of Customer o
|
|
|
B)
|
Attempt
to obtain instructions with respect to the disposition of all open
contracts. o
|
|
|
(If
neither box is checked, Customer shall be deemed to elect A).
|
12
REQUIRED
DISCLOSURE/ACKNOWLEDGMENT
The
undersigned hereby acknowledges (by checking the box below x) its separate receipt
from Newedge of the following documents, and its understanding of the following
required document prior to the opening of the Account:
|
|
DISCLOSURE
DOCUMENTS FOR FUTURES TRADING
|
|
|
• Risk
Disclosure Statement for Futures and
Options x
|
|
|
• General
Disclosures
|
REQUIRED
CUSTOMER SIGNATURES
The
undersigned has received, read, understands and agrees to all the provisions of
this Agreement, and by checking the applicable boxes or signing above
acknowledges that it has received and understood each such disclosure statement
and/or made such consents or elections, and agrees to promptly notify Newedge in
writing if any of the warranties and representations contained herein become
inaccurate or in any way cease to be true, complete and correct.
ASPECT GLOBAL DIVERSIFIED
FUND L.P.
Customer
Name(s)
Authorized
Signature(s) (Date)
[If
applicable, print name and title of signatory]
NEWEDGE
FINANCIAL INC.
Accepted
and Agreed:
By:
Name:
Title:
Date:
13
Chicago
Newedge
Financial Inc.
550 Xxxx
Xxxxxxx Xxxx.
Suite
500
Chicago,
Illinois 00000-0000
PHONE:
0-000-000-0000
FAX: 0-000-000-0000
Newedge
Financial Inc.
660 Xxxxx
Xxxxxx
14th
Floor
PHONE:
0-000-000-0000
FAX: 0-000-000-0000
14
