EXHIBIT 10.01
COMMODITY FUTURES CUSTOMER AGREEMENT
This Commodity Futures Customer Agreement ("Agreement"), dated as of
___________, 1997, between Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx")
and 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) BROKERAGE FEE. Customer will pay to Xxxxxx Xxxxxxx upon demand
(a) a monthly flat-rate fee of 1/12 of 3.65% of Customer's Net Assets (an
3.65% annual rate) as of the first day of each month; (b) any tax imposed
on such transactions by any competent taxing authority; (c) the amount of
any trading losses in the Account; (d) any debit balance or deficiency in
the Account; (e) interest on any debit balances or deficiencies in the
Account, at the overnight rate customarily charged by Xxxxxx Xxxxxxx,
together with costs and reasonable attorneys' fees incurred in collecting
any such debit balance or deficiency; and (f) any other amounts owed by
Customer to Xxxxxx Xxxxxxx with respect to the Account or any transactions
therein. Xxxxxx Xxxxxxx will pay, from the brokerage fees received by it,
all costs of executing trades by Customer, including floor brokerage fees,
exchange fees, clearinghouse fees, NFA fees, "give up" or transfer fees,
any costs associated with taking delivery on Contracts.
(b) PAYMENT TO DWR. In connection with the sale to investors by DWR
of units of limited partnership interest ("Units") in Customer and the
obligation of DWR and its employees to provide certain continuing services
to those investors, Xxxxxx Xxxxxxx shall pay to DWR each month, from the
brokerage fee that Xxxxxx Xxxxxxx receives from Customer, an amount equal
to 1/4 of 1% (a 3.0% annual rate) of Customer's Net Assets as of the first
day of each month.
(c) PAYMENT OF INTEREST. Xxxxxx Xxxxxxx will credit Customer at
each month-end with interest income as if 80% of Customer's average daily
Net Assets for the month were invested at a rate based on U. S. Treasury
Bills. All of such funds will be available for margin for Customer's
trading. For the purpose of such interest payments, Net Assets do not
include monies due to Customer on or with respect to Contracts but not
actually received by it from banks, brokers or dealers. Customer's funds
will either be invested together with other Customer segregated funds or
will be held in non-interest-bearing bank accounts. In either case,
Customer will be credited with interest at the most recent 3-month U.S.
Treasury Xxxx auction rate as of the first closing for the sale of Units
and as of every 13 weeks thereafter (as if 80% of Customer's assets were
invested in U.S. Treasury Bills at such rate); Xxxxxx Xxxxxxx will retain
and pay to DWR any interest earned in excess of the interest paid to
Customer. To the extent that the assets of Customer are held in
non-interest-bearing bank accounts, Xxxxxx Xxxxxxx, DWR or their affiliates
will benefit from compensating balance treatment in connection with Xxxxxx
Xxxxxxx'x designation of a bank or banks in which Customer's assets are
deposited, I.E., Xxxxxx Xxxxxxx, DWR or their affiliates will receive
favorable loan rates from such bank or banks by reason of such deposits.
To the extent that such benefits to Xxxxxx Xxxxxxx, DWR or their affiliates
exceed the interest Xxxxxx Xxxxxxx is obligated to credit to Customer, they
will not be shared with Customer, but will be retained by Xxxxxx Xxxxxxx,
DWR or their affiliates and shared among them as they shall agree from time
to time. Ownership of the right by Customer to receive interest on
Customer's assets pursuant to this paragraph shall be reflected and
maintained, and may be transferred only, on the books and records of Xxxxxx
Xxxxxxx. Any purported transfer of such ownership shall not be effective
or recognized until such transfer shall have been recorded on the books and
records of Xxxxxx Xxxxxxx.
(d) CAPS ON BROKERAGE AND INTEREST. Notwithstanding the foregoing,
the aggregate of (i) brokerage fees payable by Customer, and (ii) the net
excess interest and compensating balance benefits to Xxxxxx Xxxxxxx, DWR or
their affiliates (after crediting Customer with interest as described
above) cannot exceed 14% annually of Customer's average month-end Net
Assets during each calendar year; provided, however, that Xxxxxx Xxxxxxx
will not be responsible for monitoring such limitation.
(e) In connection with DWR's receipt of any fees, interest or other
payments as required above, DWR represents and warrants that such payments
will not violate any Applicable Law to which DWR is subject or any
agreement to which DWR is subject or a party. Xxxxxx Xxxxxxx will not be
responsible for any errors or omissions in the calculation of the above
referenced fees, interest and other payment resulting from inaccurate
information or data provided to it by Customer, DWR, or any of their
respective officers, employees or agents for use in making such
calculations.
(f) DEFINITION OF CUSTOMER'S "NET ASSETS." As used in this Section
3, Customer's "Net Assets" shall be determined in accordance with Section
7(d)(1) of Customer's Limited Partnership 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,
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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, 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
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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 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
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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.
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
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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
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
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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.
(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.
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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. 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 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
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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.
(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.
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(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):
/ / 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)
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 Section 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 INITIAL, 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 TANGIBLE ASSET FUND L.P.
By: Demeter Management Corporation, General
Partner
By:_______________________________________
Xxxx X. Xxxxxx, President
XXXXXX XXXXXXX & CO. INCORPORATED
By:_______________________________________
Name:
Title:
Acknowledged and Agreed
(as to Section 3(b), (c) and (d))
XXXX XXXXXX XXXXXXXX INC.
By: __________________________
Xxxx X. Xxxxxx
Executive Vice President
REMINDER: PLEASE BE SURE TO INITIAL THE APPROPRIATE BOXES IN SECTIONS 8(K) (I)
AND (II) ABOVE.
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