CUSTOMER AGREEMENT
Exhibit 10.02
This Customer Agreement (“Agreement”) between UBS Securities LLC (“UBS-S LLC”) and
Xxxxxxxx Strategic Allocation Fund L.P. (“Customer”) shall govern the purchase and sale by
UBS-S LLC of certain futures contracts, options thereon and options contracts for the account and
risk of Customer through one or more accounts carried by UBS-S LLC on behalf and in the name of
Customer (collectively, the “Account”), as more fully described below.
| 1. | UBS-S LLC’S AUTHORIZATION TO ACT AS BROKER |
Customer authorizes UBS-S LLC, acting through employees and agents selected by it in its sole
discretion, to purchase and sell for the Account contracts for certain futures contracts, options
thereon and options contracts for which UBS-S LLC has notified Customer that UBS-S LLC is prepared
to execute transactions (collectively, “Contracts”) within or outside the United States of America
in accordance with Customer’s instructions.
| 2. | CUSTOMER’S REPRESENTATIONS AND WARRANTIES |
(a) Representations and Warranties. Customer represents and warrants as follows:
(i) Authority. Customer has full right, power and authority to enter into this
Agreement and the Contracts, and the person executing this Agreement on behalf of Customer
is authorized to do so. This Agreement is binding on Customer and enforceable against
Customer in accordance with its terms;
(ii) Lawful Agreement. Customer may lawfully establish and open the Account for the
purpose of effecting purchases and sales of Contracts through UBS-S LLC. Transactions
entered into pursuant to this Agreement will not violate any “Applicable Law” (as defined
below) to which Customer is subject or any agreement to which Customer is subject or a
party and the execution, delivery and performance of this Agreement by Customer require no
action by or in respect of or filing with any governmental body, agency or official;
(iii) Customer’s Statements. The statements made to UBS-S LLC by Customer regarding
Customer’s futures trading (including any financial statements submitted therewith) are
true and correct to the best of Customer’s knowledge;
(iv) Interest or Control of Account. If any person or entity has, or during the term
of this Agreement will have, any interest in the Account other than Customer, Customer
hereby agrees to so notify UBS-S LLC immediately (and no later than within one business
day); and
(v) Designation. If Customer is not a citizen or resident of the United States,
Customer has been informed by UBS-S LLC of Commodity Futures Trading Commission (“CFTC”)
Regulations concerning the designation of a futures commission merchant as the agent of
foreign brokers, customers of a foreign broker and foreign traders for certain purposes as
set forth in CFTC Regulation §15.05 and concerning
special calls for information from futures commission merchants, foreign brokers and
members of contract markets as set forth in CFTC Regulation §21.03.
(b) Notice of Change. Customer shall immediately (and no later than within one business day)
notify UBS-S LLC in writing if any of the representations contained herein materially change or
cease to be true and correct.
| 3. | APPLICABLE LAW |
The Account and all transactions and agreements in respect of the Account shall be subject to
the regulations of all applicable Federal, state and self-regulatory agencies or authorities,
including but not limited to: (a) the provisions of the Commodity Exchange Act, as amended, and any
rules, regulations, orders and interpretations promulgated thereunder by the CFTC; (b) the
constitution, by-laws, rules, regulations, orders and interpretations of the relevant board of
trade, trading facility, market, or exchange and its clearing house, if any (each, an “exchange”)
on or subject to the rules of which such transactions are executed and/or cleared, and any relevant
registered futures association, including, without limitation, the National Futures Association
(“NFA”); and (c) custom and usage of the trade. All such provisions, rules, regulations, orders,
interpretations, constitution, by-laws, custom and usage, as in effect from time to time, are
hereinafter collectively referred to as “Applicable Law.”
| 4. | RELIANCE ON INSTRUCTIONS |
UBS-S LLC shall be entitled to rely on any instructions, notices and communications, whether
oral or in writing, that it reasonably believes to be that of an individual authorized to act on
behalf of Customer, including, but not limited to, any individual 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 Statute
of Frauds or any other similar law, rule or regulation.
| 5. | ACCEPTANCE OF ORDERS; POSITION LIMITS |
(a) Acceptance of Orders. UBS-S LLC 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 any orders (whether such refusal or limitation is required by, and whether such
refusal is based on position limits imposed under, Applicable Law). UBS-S LLC shall
immediately notify Customer of its rejection of any order. Unless specified by Customer, UBS-S
LLC may designate the exchange or trading system on which it will attempt to execute orders.
(b) Position Limits. Customer shall not, either alone or in combination with others,
violate any position or exercise limit established by or under Applicable Law. If Customer
intends at any time to exceed such position limits, Customer shall cause to be filed an
application with the CFTC or the relevant exchange requesting authorization for Customer to exceed such
position limits and shall provide UBS-S LLC with a copy of such application and such other
information as UBS-S LLC may reasonably request with respect to such application.
| 6. | ORIGINAL AND VARIATION MARGIN; PREMIUMS; OTHER CONTRACT OBLIGATIONS |
With respect to every Contract purchased, sold or cleared for the Account, Customer shall
make, or cause to be made, all applicable original margin, variation 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 UBS-S LLC in its sole and absolute
discretion. Requests for margin deposits and/or premium payments may, at UBS-S LLC’s election, be
communicated to Customer orally, telephonically or in writing. Margin requirements established by
UBS-S LLC may exceed the margin requirements set by any exchange on which transactions are executed
or cleared or caused to be executed or cleared by UBS-S LLC or any agent thereof for Customer and
may be changed by UBS-S LLC without prior notice to Customer. Except as otherwise provided herein,
all such margin and premium payments shall be in the form, as UBS-S LLC permits, of cash in U.S.
dollars, securities of the U.S. Government, or a combination thereof. If at any time Customer fails
timely to deposit or maintain required margin, or Customer fails timely to make any premium
payments, UBS-S LLC may at any time, without further notice to Customer, close out Customer’s open
position in whole or in part and take any action it deems appropriate.
| 7. | SECURITY INTEREST AND RIGHTS RESPECTING COLLATERAL |
All Contracts, cash, securities, and/or other property of Customer, including all proceeds of
all such property such as profits from Account transactions (collectively, the “Collateral”) now
or at any future time in the Account or otherwise held by UBS-S LLC or its affiliates, any
exchange through which trades of the Account are executed and/or positions are held, or any other
entity authorized to act as an agent of UBS-S LLC or Customer, hereby are pledged to UBS-S LLC and
shall be subject to a first priority lien and security interest in UBS-S LLC’s favor to secure any
indebtedness or other amounts at any time owing from Customer to UBS-S LLC, and to secure any and
all other obligations and liabilities of Customer to UBS-S LLC (collectively, the “Customer’s
Liabilities”). Customer hereby grants UBS-S LLC the right to borrow, pledge, repledge,
hypothecate, rehypothecate, loan or invest any of the Collateral 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. UBS-S LLC shall be under no obligation to deliver to Customer the
identical Collateral in the Account, but shall only be under an obligation to deliver to Customer
Collateral of like or equivalent kind and amount. The rights of UBS-S LLC set forth above shall be
qualified by any applicable requirements for segregation of customer’s property under Applicable
Law.
| 8. | PAYMENT OBLIGATIONS OF CUSTOMER |
(a) Charges to the Account. With respect to every Contract purchased, sold or cleared for the
Account, Customer shall pay UBS-S LLC upon demand and UBS-S LLC hereby is authorized to charge
Customer’s Account for: (i) all brokerage charges, give-up fees, commissions and service fees as
UBS-S LLC may from time to time charge; (ii) all exchange, clearing member, NFA or CFTC fees or
charges, fines or penalties; (iii) any tax imposed on such transactions by any competent taxing
authority; (iv) the amount of any trading losses in the Account; (v) any debit balance or
deficiency in the Account; (vi) interest and service charges on
any debit balances or deficiencies in the Account, any advances or any loan (including interest on
the amount of variation margin calls, until satisfaction of such calls, when the Customer posts
U.S. Treasury Bills for original margin purposes), at the rate customarily charged by UBS-S LLC
(which may be at the prevailing and/or allowable rates according to the laws of the State of
Illinois) from the day any such deficit was incurred to (but not including) the day of payment
(calculated on the basis of a 360 day year and for the actual number of days elapsed for all
deficits, except for those denominated in foreign currencies for which generally accepted
accounting principles require that the interest rate shall be calculated otherwise), together with
costs and reasonable attorneys’ fees incurred in collecting any such deficit; (vii) all storage and
delivery service fees; and (viii) any other amounts owed by Customer to UBS-S LLC with respect to
the Account or any transactions therein.
(b) Payment in U.S. Dollars. Any and all payment obligations of Customer, if not
deducted from Customer’s Account as permitted hereunder, shall be made upon demand in
immediately available U.S. dollars to UBS-S LLC or at such other place and at such time and in
such manner as UBS-S LLC notifies Customer. The obligation of Customer to make all
payments due hereunder shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment, which is expressed in or converted into any other currency other
than
U.S. dollars, except to the extent that such tender or recovery shall result in the actual
receipt by
UBS-S LLC of the full amount of such U.S. dollars expressed to be payable in respect of such
amounts. Customer agrees that its obligations to make payment in U.S. dollars as aforesaid
shall
be enforceable as an alternative or additional cause of action for the purpose of recovery of
the
amount (if any) by which such actual receipt shall fall short of the full amount of U.S.
dollars
expressed to be payable in respect of such amount due hereunder, and shall not be affected by
judgment being obtained for other sums due hereunder.
(c) Setoff. Any Collateral may at any time or from time to time without notice or
compliance with any condition precedent (which notice hereby is expressly waived) be setoff,
appropriated and applied by UBS-S LLC against any and all payment obligations of Customer
hereunder including, but not limited to, any deficit balance or margin deficiency in the
Account
(or any sub-account within the Account), in such manner as UBS-S LLC in its discretion may
determine.
(d) Netting. UBS-S LLC may at any time or from time to time without notice or
compliance with any condition precedent (which notice hereby is expressly waived) net (i) any
Collateral held in or on behalf of the Account (or any sub-account within the Account) or
liabilities or payment obligations of UBS-S LLC to Customer or the Account (or any sub-account within the Account) against (ii) any liabilities or payment obligations of Customer
thereunder, including, but not limited to any deficit balance or margin deficiency in the
Account
(or any sub-account within the Account), paying to Customer only the amount by which the
aggregate amount of (i) above exceeds the aggregate amount of (ii) above.
(e) Gross-Up. All payments made by Customer to UBS-S LLC hereunder will be
made without setoff or counterclaim free and clear and without deduction or withholding for,
any
present or future taxes, levies, assessments or other charges of whatever nature, now or
hereinafter imposed by any jurisdiction or by any agency, state or other political subdivision
or taxing authority thereof or therein, and all interest, penalties, or similar liabilities with
respect
thereto (collectively, “Taxes”). If any Taxes are so levied or imposed, Customer agrees to pay the
full amount of such Taxes, and such additional amounts as may be necessary so that every net
payment of all amounts due hereunder, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein. Customer will furnish to UBS-S LLC,
within thirty days after the date the payment of any Taxes is due pursuant to Applicable Law,
certified copies of tax receipts evidencing such payment by Customer.
| 9. | DELIVERY PROCEDURES; OPTIONS ALLOCATION PROCEDURE |
(a) Instructions. Customer will provide UBS-S LLC 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 UBS-S LLC. UBS-S LLC shall have no responsibility to take any action on behalf
of Customer, including, without limitation, exercising option Contracts, unless and until
UBS-S
LLC receives oral or written instructions reasonably acceptable to UBS-S LLC indicating the
action UBS-S LLC is to take. Any instructions, if given orally to UBS-S LLC, shall immediately
be confirmed in writing by Customer. Funds sufficient to take delivery pursuant to such
Contract or deliverable grade commodities to make delivery pursuant to such Contract must be
delivered to UBS-S LLC at such time and location as UBS-S LLC may require in connection
with any delivery.
(b) Allocation Procedures. Short option Contracts may be subject to exercise at any
time. Exercise notices received by UBS-S LLC 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. Such notices may be
allocated to Customer after the close of trading on the day on which such notices have been
allocated to UBS-S LLC by the applicable exchange. In the event of any allocation to Customer,
unless UBS-S LLC has previously received instructions from Customer, UBS-S LLC’s sole
responsibility shall be to use commercially reasonable efforts to notify Customer by telephone
of
such allocation at any time before trading commences on the first day on which such option
Contracts are traded on the applicable exchange following the day on which the applicable
contract market has allocated such notices to UBS-S LLC.
(c) Failure to Provide Instructions. If Customer fails to comply with any of the
foregoing obligations, UBS-S LLC 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 UBS-S LLC, in its sole and
absolute discretion, deems necessary or appropriate. Any such action taken shall be in the
sole
and absolute discretion of UBS-S LLC and Customer shall remain fully liable for all costs,
losses, expenses, liabilities and damages (including special, indirect and consequential
damages,
penalties and fines) which UBS-S LLC may be required to pay or which it has sustained in
connection with such transactions and for any remaining debit balance in the Account.
10. EVENTS OF DEFAULT; UBS-S LLC’S 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 bankruptcy, insolvency or
reorganization law or similar law effecting creditors’ rights of any jurisdiction, 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 the 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) if Customer is an employee benefit
plan, the termination of Customer or the filing by Customer of a notice of intent to terminate with
the Pension Benefit Guaranty Corporation (or other similar governmental agency or body of any
jurisdiction), or the receipt of a notice of the Pension Benefit Guaranty Corporation’s (or other
similar governmental agency’s or body’s) intent to terminate Customer, or the inability of Customer
to pay benefits under the relevant employee benefit plan when due; (iv) the failure by Customer to
deposit or maintain margins, to pay required premiums, or to make payments required by Section 8
hereof; (v) UBS-S LLC in its sole and absolute discretion determines that the Collateral in
Customer’s Account, regardless of current market quotations, is inadequate to secure the Account
and Customer’s obligations to UBS-S LLC hereunder; (vi) the Account shall incur a deficit balance;
(vii) the failure by Customer to perform, in any material respect, its obligations respecting
delivery, exercise or a notice of allocation of exercise, payment for delivery, or settlement under
Contracts held in the Account (it being understood that any failure to comply with any Applicable
Law shall be deemed material); or (viii) the failure by Customer, in any material respect, to
perform any of its other obligations hereunder (it being understood that any failure to comply with
any Applicable Law shall be deemed material).
(b) Remedies. Upon the occurrence of an Event of Default or in the event UBS-S LLC, in its
sole and absolute discretion, considers it necessary for its protection, UBS-S LLC shall have the
right, in addition to any other remedy available to UBS-S LLC at law or in equity, and in addition
to any other action UBS-S LLC may deem appropriate under the circumstances, to liquidate, spread
or roll-forward 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 UBS-S LLC and its affiliates and to apply the
proceeds thereof to any amounts owed by Customer to UBS-S LLC, 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 as UBS-S LLC,
in its reasonable discretion, deems necessary or appropriate for its protection, all without
demand for margin and without notice or advertisement. In the event UBS-S LLC’s position would not
be jeopardized thereby, UBS-S LLC will make reasonable efforts under the circumstances to notify
Customer prior to taking any such action. Any such liquidation, sale, purchase, borrowing or
cancellation shall be made at the discretion of UBS-S LLC on, through or subject to the rules of
an exchange, on other markets, at public auction or by private transaction, including, without
limitation, by an exchange for physical transaction or similar transaction wherein UBS-S LLC may
act as agent and/or as principal in such transaction. Customer acknowledges and agrees that a
prior demand or margin call of any kind from UBS-S LLC or prior notice from UBS-S LLC shall not be
considered a waiver of UBS-S LLC’s right to take any action without notice or demand. In any
transaction described above, UBS-S LLC may sell any Collateral to itself or its affiliates or buy
any Collateral from itself or its affiliates. UBS-S LLC may, to the extent permitted by law,
purchase the whole or any part thereof free from any right of redemption. In all cases, Customer
shall remain liable for and shall pay to UBS-S LLC on demand the amount of any deficiency in its
Account resulting from any such transaction, and Customer shall reimburse, compensate and
indemnify UBS-S LLC for any and all costs, losses,
penalties, fines, taxes and damages which UBS-S LLC 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.
| 11. | EXCULPATION AND INDEMNIFICATION |
(a) Exculpation. Neither UBS-S LLC nor any of its managing directors, officers,
employees or affiliates shall be liable for any costs, losses, penalties, fines, Taxes and
damages
sustained or incurred by Customer other than as a result of UBS-S LLC’s gross negligence or
reckless or intentional misconduct. In no event will UBS-S LLC be liable to Customer for
consequential, incidental or special damages. Without limiting the generality of the
foregoing,
neither UBS-S LLC nor any of its managing directors, officers, employees or affiliates shall
have
any responsibility or liability to Customer hereunder for any costs, losses, penalties, fines,
Taxes
and damages, including consequential, incidental or special damages, sustained or incurred by
Customer, (i) in connection with the performance or non-performance by any exchange, clearing
firm or other third party (including other exchange members, banks and floor brokers) to UBS-S
LLC 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 UBS-S LLC
whether or not made or given at the request of Customer; (iii) as a result of any delay in the
performance or non-performance of any of UBS-S LLC’s obligations hereunder to the extent that
losses arising therefrom are, directly or indirectly, caused by the occurrence of any
contingency
beyond the control of UBS-S LLC 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; (iv) as a result of any action taken by UBS-S LLC, its managing directors, officers,
employees, agents (including other clearing firms through which transactions are effected on
behalf of Customer) or floor brokers, to comply with Applicable Law; or (v) for any acts or
omissions of those neither employed nor supervised by UBS-S LLC. Moreover, UBS-S LLC
shall have no responsibility for compliance by Customer with any law or regulation governing
Customer’s conduct as a fiduciary, if applicable.
(b) Force Majeure and Acts of State. In the event that UBS-S LLC’s performance
of any of its obligations and undertakings hereunder shall be interrupted or delayed by any
occurrence not occasioned by the conduct of either party hereto, whether such occurrence shall
be an act of God or the common enemy or the result of war, riot, fire, flood, civil commotion,
acts of terrorism, sovereign conduct or other acts of State, or the act or conduct of any
person or
persons not party or privy hereto, then UBS-S LLC shall be excused from performance for such
period of time as is reasonably necessary after such occurrence to remedy the effects thereof
and
neither UBS-S LLC nor any of its managing directors, officers, employees or affiliates shall
be
directly or indirectly responsible for losses occasioned thereby.
(c) Electronic Trading Systems Waiver. In consideration of UBS-S LLC making
electronic trading systems or services available, in whole or in part, directly or indirectly,
Customer agrees that neither UBS-S LLC, the electronic trading systems or services provided,
exchanges whose products may be traded on or through such electronic trading systems or
services, nor any other entities controlling, controlled by or under common control with such
entities, nor their respective directors, officers, or employees, shall be liable for any
losses,
damages, costs or expenses (including, but not limited to, loss of profits, loss of use,
incidental or consequential damages), regardless of the cause, arising from any fault, delay,
omission, inaccuracy or termination of the electronic trading systems or services, or the
inability to enter or cancel orders, or any other cause in connection with the furnishing,
performance, maintenance, or use of or inability to use all or any part of the electronic trading
systems or services. The foregoing shall apply regardless of whether a claim arises in contract,
tort, negligence, strict liability or otherwise.
(d) Indemnification of UBS-S LLC. Customer agrees to indemnify and hold UBS-S LLC and its
managing directors, officers, employees and affiliates harmless from and against any and all costs
(including reasonable attorneys’ fees), losses, penalties, fines, taxes and damages incurred by
UBS-S LLC as a result of any action taken or not taken by UBS-S LLC in reliance upon any
instructions, notices and communications which UBS-S LLC reasonably believes to be that of an
individual authorized to act on behalf of Customer, or in connection with UBS-S LLC’s recovery of
any such costs, losses, penalties, fines, taxes and damages.
| 12. | TERMINATION |
This Agreement may be terminated at any time by Customer or UBS-S LLC by written notice to the
other; provided, however, that any such termination shall not relieve either party of any
obligations in connection with any debit or credit balance in the Account or other liability or
obligation arising or accruing prior to such termination. 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, UBS-S LLC 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.
| 13. | OFFSET OF OFFSETTING POSITIONS |
UBS-S LLC shall offset any Contract for which an offsetting order is entered by Customer,
unless Customer instructs UBS-S LLC not to offset such Contract and to maintain the offsetting
Contracts as open positions; provided, that UBS-S LLC shall not be obligated to comply with any
such instructions given by Customer if Customer fails to provide UBS-S LLC with any
representations, documentation or information reasonably requested by UBS-S LLC or if, in UBS-S
LLC’s reasonable judgment, any failure to liquidate such offsetting Contracts against each other
would result in a violation of Applicable Law.
| 14. | REPORTS AND OBJECTIONS |
(a) All confirmations, purchase and sale notices, correction notices and account statements
(collectively, “Reports”) shall be submitted to Customer and shall be conclusive and binding on
Customer unless Customer notifies UBS-S LLC 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 Report; provided, that with respect to monthly statements,
Customer may notify UBS-S LLC 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 Report was received by Customer as provided for above. Any such
notice of objection, if given orally to UBS-S LLC, shall immediately (and in no event later than
within one business day) be confirmed in writing by Customer.
(b) Customer consents to the electronic delivery of Reports via facsimile, electronic mail,
computer networks (e.g., local area networks, commercial on-line services and SwisKey, Abacus or
any similar online statement delivery system) or other electronic means agreed upon by Customer
and UBS-S LLC. Customer may revoke its consent at any time upon reasonable notice to UBS-S LLC.
15. FOREIGN CURRENCY TRANSACTIONS
In the event that the Customer directs UBS-S LLC to enter into any Contract on an exchange on
which such transactions are effected in a currency other than the U.S. dollar, any profit or loss
arising as a result of a fluctuation in the exchange rate affecting such currency will be entirely
for the account and risk of the Customer. All initial and subsequent deposits for margin purposes,
and the return to the Customer of any funds, are expected to be made in the currency of contract
settlement. Should the Customer elect to deposits funds other than the currency of settlement or
instruct UBS-S LLC to convert funds which are already on deposit in another currency, UBS-S LLC
shall debit or credit the Account of Customer at a rate of exchange determined by UBS-S LLC in its
sole discretion on the basis of the then prevailing market rate of exchange for such foreign
currency. Customer authorizes UBS-S LLC to deposit Customer funds in depositories located outside
of the United States consistent with the requirements of Applicable Law.
16. UBS-S LLC’S RESPONSIBILITY
UBS-S LLC 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 and
UBS-S LLC 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.
17. ADVICE
All advice communicated by UBS-S LLC with respect to any Account opened by Customer hereunder
is incidental to the conduct of UBS-S LLC’s business as a futures commission merchant, does not
constitute an offer to sell or the solicitation of an offer to buy any Contract, and such advice
will not serve as the primary basis for any decision by or on behalf of Customer. UBS-S LLC shall
have no discretionary authority, power or control over any decisions made by or on behalf of
Customer in respect of the Account, regardless of whether Customer relies on the advice of UBS-S
LLC in making any such decision. Any such advice, although based upon information from sources
UBS-S LLC believes to be reliable, may be incomplete or inaccurate, may not be verified and may be
changed without notice to Customer. UBS-S LLC makes no representation as to the accuracy,
completeness, reliability or prudence of any such advice or information or as to the tax
consequences of Customer’s futures or options
trading. UBS-S LLC is a separate and independent corporate entity, distinct from its affiliates and
it shall be free to purchase and sell Contracts for any affiliates without limitation or
restriction. The relationship between UBS-S LLC and Customer as described herein shall not affect
any provisions of credit to Customer by UBS AG or any other subsidiary of UBS AG. Moreover,
Customer acknowledges that UBS-S LLC and its managing directors, officers, employees and affiliates
may take or hold positions in, or advise other customers concerning, contracts which are the
subject of advice from UBS-S LLC to Customer. The positions and advice of UBS-S LLC and its
managing directors, officers, employees and affiliates may be inconsistent with or contrary to
positions of, and the advice given by, UBS-S LLC to Customer.
| 18. | FINANCIAL AND OTHER INFORMATION |
Customer agrees to furnish appropriate financial statements to UBS-S LLC and to inform UBS-S
LLC of any material changes in the financial position of Customer and to furnish promptly such
other information concerning Customer as UBS-S LLC reasonably requests. UBS-S LLC is authorized
from time to time to contact banks, financial institutions and credit agencies for verification of
the financial condition of Customer. Customer agrees that UBS-S LLC may, from time to time, share
with its branches, agencies and affiliates, certain non-public information concerning Customer.
| 19. | RECORDING |
UBS-S LLC, in its sole and absolute discretion, may record, on tape or otherwise, any
telephone conversation between UBS-S LLC and Customer involving their respective officers, agents
and employees. Customer hereby agrees and consents to such recording, with or without the use of
an automatic tone warning device, and waives any right Customer may have to object to the use or
admissibility into evidence of such recording in any legal proceeding between Customer and UBS-S
LLC or in any other proceeding to which UBS-S LLC is a party or in which UBS-S LLC’s records are
subpoenaed. Customer acknowledges that UBS-S LLC may erase such recordings after a reasonable
period of time.
| 20. | ACCOUNTS INTRODUCED BY OTHER BROKERS |
If UBS-S LLC is carrying the Account of Customer as executing or clearing broker by
arrangement with another broker through whose courtesy the Account has been introduced to UBS-S
LLC, then, until receipt from Customer of written notice to the contrary, UBS-S LLC may accept
from such other broker, without inquiry or investigation by UBS-S LLC, (i) orders for the purchase
or sale in the Account of Contracts, and (ii) any other instructions concerning the Account. UBS-S
LLC shall not be responsible or liable for any acts or omissions of such other broker or its
employees.
| 21. | SEVERABILITY |
If any provision of this Agreement is, or at any time becomes, inconsistent with any present
or future Applicable Law, 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.
| 22. | BINDING EFFECT |
This Agreement shall be binding on and inure to the benefit of the parties and their
successors. In accordance with CFTC regulations, UBS-S LLC may assign Customer’s Account(s) and
this Agreement to another registered Futures Commission Merchant (“FCM”) by notifying Customer of
the date and name of the intended assignee FCM. Unless Customer objects to the assignment prior to
the scheduled date for the assignment, the assignment will be binding on Customer. Customer may not
assign this Agreement without UBS-S LLC’s prior consent.
| 23. | 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.
| 24. | INSTRUCTIONS, NOTICES OR COMMUNICATIONS |
(a) 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 UBS-S LLC: | ||
| UBS Securities LLC Xxx Xxxxx Xxxxxx Xxxxx Xxxxxxx, XX 00000 Attn: ETD Legal Department, 31st Floor |
| (ii) | if to Customer at the address as indicated on the New Account Information Form. |
(b) All instructions, notices or other communications sent, whether by mail, telex,
facsimile transmission or otherwise, shall be deemed given when deposited in the mail, or sent
by telex or facsimile transmission or other electronic means acceptable to the recipient
thereof,
and deemed delivered to Customer personally, whether actually received by Customer or not.
All instructions, notices or other communications to UBS-S LLC shall be directed to UBS-S
LLC’s office at the address listed above or such other addresses as UBS-S LLC may hereafter
direct to Customer in writing.
| 25. | 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.
| 26. | NO WAIVER |
No
failure on the part of UBS-S LLC to exercise, and no delay in exercising, any contractual
right will operate as a waiver thereof, nor will any single or partial exercise by UBS-S LLC of
any right preclude any other or future exercise thereof or the exercise of any other partial
right.
| 27. | 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.
| 28. | CONSENT TO JURISDICTION |
The parties agree that any litigation between UBS-S LLC and Customer relating to this
Agreement or transactions hereunder may take place in the Courts of the State of New York and the
United States District Court located in the Borough of Manhattan in New York City and the parties
agree to submit to such non-exclusive jurisdiction. 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 UBS-S LLC, such service to be effective ten days after
mailing.
WAIVER OF JURY TRIAL
Customer hereby waives trial by jury in any action or proceeding arising out of or relating
to this Agreement or any transaction in connection herewith.
| 29. | ACCEPTANCE OF AGREEMENT |
This Agreement shall not be deemed to be accepted by UBS-S LLC or become a binding contract
between Customer and UBS-S LLC until approved by a duly authorized officer of UBS-S LLC in
writing.
| 31. | CUSTOMER ACKNOWLEDGEMENTS (please check box below with an “x”): |
þ (a) FUTURES AND OPTIONS DISCLOSURE DOCUMENTS
CUSTOMER HEREBY ACKNOWLEDGES THAT IT HAS RECEIVED, UNDERSTANDS AND CONSENTS TO THE FUTURES AND OPTIONS DISCLOSURE DOCUMENTS FURNISHED HEREWITH INCLUDING DISCLOSURES REGARDING: |
Risk Disclosure Statement for Futures and Options
Notice Regarding Average Pricing
Questions and Answers to Address Key Features of CME Rule 553 — Average Pricing System
Electronic Trading and Order Routing Systems Disclosure Statement
UBS-S LLC Special Disclosure Statement
Cross Trade Consent
Non-US Futures and Options Direct Order Transmittal Customer Disclosure
Statement
LME Guidelines (applicable to customers trading LME contracts)
Hong Kong Position Limit Notice (applicable to customers trading on Hong Kong Exchanges)
Non US Trader Disclosure Statement
Uniform Notification regarding access to Market Data
CME Disclosure on Payment for Order Flow
Third Party Vendor Disclosure Statement
| o (b) CONSENT TO TRANSFER FUNDS |
The undersigned acknowledges that UBS-S LLC may, until it receives a written notice of
revocation with respect thereto, in its sole and absolute discretion and without prior
notice to the undersigned, transfer any funds, securities, commodities, Contracts or other
property from any account (segregated, secured or non-regulated) maintained by the
undersigned to any other account (segregated, secured or non-regulated) of the undersigned
maintained by UBS-S LLC or any of its affiliates. UBS-S LLC will promptly confirm in
writing each transfer of funds, securities, commodities, Contracts or
other property pursuant hereto. UBS-S LLC shall not be liable for making or failing to make
any transfer authorized hereby.
32. HEDGING REPRESENTATION (The following must be completed by Customers who will engage in
transactions for bona fide hedging purposes only.) Customer has indicated on the New Account
Information Form that the Account is for hedging purposes. Customer represents that it is familiar
with CFTC and exchange rules, regulations, and advisories concerning hedging. Unless Customer
specifically notifies UBS-S LLC to the contrary in writing with respect to any transaction, all
transactions effected for the Account will be bona fide hedging transactions as described in
Section 4a of the Commodity Exchange Act, as amended, and Rule 1.3(z) promulgated thereunder (a
copy of which may be obtained from UBS-S LLC upon request). As such, in accordance with CFTC Rule
190.06, Customer may specify whether, in the unlikely event of UBS-S LLC’s bankruptcy, Customer
prefers that the trustee liquidate open commodity contracts in the Account without seeking
Customer’s instructions. Accordingly, in the event of UBS-S LLC’s bankruptcy, the trustee should
(check one of the following):
| o Attempt to contact Customer for instructions regarding the disposition of open contracts in the Account. |
| o Liquidate open commodity contracts without seeking Customer’s instructions. |
| This instruction may be changed at any time by written notice sent to UBS-S LLC. |
Specify Commodities to be Hedged:
*****
(signature page on next page)
IN WITNESS WHEREOF, Customer has executed this Agreement on the date indicated below.
Xxxxxxxx Strategic Allocation Fund L.P.
(“Customer”)
(“Customer”)
| Xxxxxx X. Xxxxx | ||||||||
| General Counsel | ||||||||
By:
|
Xxxxxxxx & Company, Inc. | /s/ Xxxxxx X. Xxxxx | 4.10.07 | |||||
| Print Name and Title General Partner | Signature | Date | ||||||
By:
|
D. Xxxxx Xxxxxxxx Chairman, Xxxxxxxx & Co., Inc. |
/s/ D. Xxxxx Xxxxxxxx | 4.10.07 |
|||||
| Print Name and Title General Partner | Signature | Date | ||||||
| ACCEPTED BY UBS SECURITIES LLC | ||||||||
By:
|
Xxxxx XxXxxxxx | /s/ Xxxxx XxXxxxxx | 4.12.07 | |||||
| Print Name and Title | Signature | Date | ||||||
| Xxxx X. Xxxxxx | ||||||||
| Associate Director | ||||||||
By:
|
Legal Department | /s/ Xxxx X. Xxxxxx | 4.12.07 | |||||
| Print Name and Title | Signature | Date | ||||||
POWER OF ATTORNEY LIMITED TO PURCHASES AND SALES
OF FUTURES CONTRACTS
OF FUTURES CONTRACTS
The undersigned hereby authorizes _Campbell & Company. Inc._ (the “Advisor”) as his/her
agent and attorney to buy, sell and trade in commodities and/or futures contracts and options
thereon, whether domestic or foreign, in accordance with UBS SECURITIES LLC (“UBS-S LLC”) terms and
conditions for the undersigned’s account and risk and in the undersigned’s name through UBS-S LLC
as brokers. The undersigned hereby agrees to indemnify and hold UBS-S LLC harmless from and to pay
UBS-S LLC promptly on demand any and all losses arising therefrom or debit balance due thereon. The
undersigned confirms it has received a copy of Advisor’s Disclosure Document. If not, the
undersigned has attached a written explanation of the reason(s) therefor.
In all such purchases, sales or trades UBS-S LLC is authorized to follow the instructions of the
Advisor in every respect concerning the undersigned’s account with UBS-S LLC; and the Advisor is
authorized to act for the undersigned and on the undersigned’s behalf in the same manner and with
the same force and effect as the undersigned might or could do with respect to such purchases,
sales or trades as well as with respect to all other things necessary or incidental to the
furtherance or conduct of such purchases, sales or trades. The undersigned understands that UBS-S
LLC is in no way responsible for any loss to the undersigned occasioned by the actions of the
Advisor and that UBS-S LLC does not, by implication or otherwise, endorse the operating methods of
the Advisor. The undersigned hereby ratifies and confirms any and all transactions with UBS-S LLC
heretofore or hereafter made by the Advisor for the undersigned’s account.
This authorization and indemnity is in addition to (and in no way limits or restricts) any rights
which UBS-S LLC may have under any other agreement or agreements between the undersigned and UBS-S
LLC. This authorization and indemnity is a continuing one and shall remain in full force and
effect until revoked by the undersigned by a written notice addressed to UBS-S LLC but such
revocation shall not affect any liability in any resulting transaction initiated prior to such
revocation. This authorization and indemnity shall inure to the benefit of UBS-S LLC and any
successors or assigns.
Xxxxxxxx Strategic Allocation Fund L.P |
Signature: | /s/ Xxxxxx X. Xxxxx | Signature: | /s/ D. Xxxxx Xxxxxxxx | ||||
(Name of Customer — Please Print) |
Date: | 4.10.07 |
Date: | 4.10.07 |
||||
| Name and Title — Please Print | ||||||||
| Xxxxxx X. Xxxxx | X. Xxxxx Xxxxxxxx | |||||||
| General Counsel | Chairman | |||||||
| Xxxxxxxx & Company, Inc., General Partner | Xxxxxxxx & Co. Inc., General Partner | |||||||
ACKNOWLEDGEMENT OF RECEIPT
OF
COMMODITY TRADING ADVISOR
DISCLOSURE DOCUMENT
OF
COMMODITY TRADING ADVISOR
DISCLOSURE DOCUMENT
(To be completed by Customer if Customer has received a copy of the Advisor’s
Disclosure Document, otherwise Advisor must complete the exemption statement below)
Disclosure Document, otherwise Advisor must complete the exemption statement below)
This is to
acknowledge that I have received and read a copy of the August 30,
2006 Disclosure Document of Xxxxxxxx & Company, Inc. describing the trading program pursuant to which
Xxxxxxxx & Company, Inc. will direct my account.
READ AND ACKNOWLEDGED BY: |
||
/s/
Xxxxxx X. Xxxxx and D. Xxxxx Xxxxxxxx |
4.10.07 | |
Customer’s Signature
|
Date | |
Xxxxxx
X. Xxxxx General Counsel Xxxxxxxx & Comany, Inc., General Partner |
D. Xxxxx Xxxxxxxx Chairman Xxxxxxxx & Co. Inc., General Partner |
|
Customer’s Name |
COMMODITY TRADING ADVISOR REGISTRATION EXEMPTION
(To be completed by Advisor if Advisor has not provided Customer with a disclosure statement.
Please provide copy of all exemption letters as appropriate.)
Please provide copy of all exemption letters as appropriate.)
I am not required to provide a disclosure document pursuant to CFTC Regulation 4.31
because (indicate which applies):
| (a) | I am not required to register as a commodity trading advisor pursuant to Section 4 of the Commodity Exchange Act because: |
| (i) | o during the preceding 12 months I have not furnished commodity trading advice to more than 15 persons and I do not hold myself out generally to the public as a commodity trading advisor; or | ||
| (ii) | o I am otherwise exempt from registration as a commodity trading advisor pursuant to CFTC Regulation 4.14 |
or
| (b) | o I am registered as a commodity trading advisor but am exempt from providing a disclosure document pursuant to CFTC Regulation 4.7. |
