AMENDED AND RESTATED CUSTOMER AGREEMENT
XXXXXXX XXXXX XXXXXX ORION FUTURES FUND L.P.
This Amended and Restated Customer Agreement is made and entered into as of
the 1st day of April, 2001, between XXXXXXX XXXXX BARNEY ORION FUTURES FUND
L.P., a New York limited partnership (the "Partnership") and XXXXXXX XXXXX
XXXXXX INC., a Delaware corporation ("SSB").
W I T N E S S E T H :
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WHEREAS, the Partnership, formed on March 22, 1999, has been organized to
engage in the speculative trading of commodity interests, including, but not
limited to, futures contracts, options, spot and forward contracts; and
WHEREAS, Xxxxx Xxxxxx Futures Management LLC ("SBFM" or the "General
Partner") has been elected general partner of the Partnership and SFG Global
Investments, Inc. ("SFG") has withdrawn as general partner of the Partnership
effective as of the date hereof; and
WHEREAS, the Trading Manager Agreement dated as of March 31, 1999, among
Xxxxx Xxxxxx Futures Management Inc., a predecessor of SBFM, the Partnership and
SFG has been terminated as of April 1, 2001; and
WHEREAS, the Partnership, SSB and a predecessor of SBFM entered into a
Customer Agreement dated March 31,1999; and
WHEREAS, the Partnership and SSB wish to enter into this Amended and
Restated Customer Agreement setting forth the terms and conditions upon which
SSB will continue to perform brokerage and other services for the Partnership
NOW, THEREFORE, in consideration of the promises and the mutual covenants
contained herein, it is agreed as follows:
1. Appointment of Broker/Dealer and Opening of Account. The Partnership hereby
appoints SSB as its commodity broker/dealer through whom the Partnership will
execute trades in commodity interests including futures contracts, options,
spot, and forward contracts. The Partnership shall deposit or cause to be
deposited the partners' capital contributions in a commodity brokerage account
with SSB, and will maintain all of its assets, as they from time to time exist,
in such account except for such amounts as may be necessary or desirable to be
maintained in a bank account or with a broker to facilitate trading in interbank
forward foreign currency transactions and the payment of Partnership expenses,
redemptions or distributions. The Partnership shall execute such other documents
as shall be necessary or appropriate to permit SSB to perform its services
hereunder.
2. Services of SSB. SSB agrees to use its best efforts to effect transactions
for the Partnership's account. SSB agrees to assist the Partnership in
performing various functions. These include, but are not limited to: (a)
calculating the Partnership's Net Assets and Net Asset Value (as such terms are
defined in the Partnership's Limited Partnership Agreement) at such times as may
be required, (b) calculating any fees due the Partnership's trading advisors
(the "Advisors") or the General Partner, (c) preparing and confirming financial
information for annual or interim audits and reports and (d) establishing
procedures for effecting redemptions, cash distributions and the liquidation of
the Partnership upon termination. SSB further agrees to furnish clerical and
bookkeeping support for the administration of the Partnership.
3. Brokerage and Other Fees. The Partnership shall pay to SSB a brokerage
commission equal to $18.00 per round turn (or foreign exchange equivalent
transaction) for each futures transaction and $9.00 per side for each option on
futures transaction, inclusive of floor brokerage fees. In addition, the
Partnership will pay SSB fees which are payable on a per transaction basis
including exchange, give-up, clearing, user and NFA fees, or shall reimburse SSB
for all such fees previously paid by SSB on behalf of the Partnership. SSB's fee
may be increased or decreased at any time at SSB's discretion upon notice to the
Partnership.
4. Payment of Interest. All of the assets of the Partnership which are deposited
in the Partnership's accounts at SSB will be deposited and maintained in cash.
During the term of this Agreement, SSB will, within ten (10) days following the
end of each calendar month, credit the Partnership's brokerage accounts with a
sum representing interest on one hundred percent (100%) of the average daily
equity maintained in cash in such accounts during each month (i.e., the sum of
the daily cash balances in such accounts divided by the total number of calendar
days in that month) at a 30-day Treasury xxxx rate determined weekly by SSB
based on the average non-competitive yield on 3-month U.S. Treasury bills
maturing in 30 days (or on the closest maturity date thereto) from the date on
which such weekly rate is determined. The equity maintained in cash in the
account on Saturdays, Sundays and holidays shall be the equity maintained in
cash in the account as of the close of business on the immediately preceding
business day.
5. Trading Authorization and Management Agreement. The General Partner has
entered into individual Management Agreements with AAA Capital Management
Corporation, Beacon Management Corporation (USA) and Willowbridge Associates
Inc. as the Partnership's Advisors. Pursuant to the Management Agreements, the
Partnership's Advisors shall have discretion to order purchases and sales of
commodity interests including futures contracts, options, spot, and forward
contracts. AAA Capital Management, Inc. may also trade swap contracts with the
consent of the General Partner. SBFM, as the Partnership's general partner, may
allocate or reallocate all or a portion of the Partnership's assets among
trading programs operated by the Partnership's Advisors or select or appoint
additional or replacement trading advisors. SSB is hereby authorized to execute
all orders placed by the Partnership's Advisors for the account of the
Partnership until notified by SBFM to the contrary, and shall have no obligation
to inquire into the reason for or method of determining such orders, nor any
obligation to monitor such orders in relation to the Partnership's trading
policies. The provisions of this Paragraph 5 shall apply with equal force and
effect to any other commodity trading advisor designated in the future by SBFM.
6. Terms of the Account. The following terms and conditions shall be applicable
to the Partnership's account:
(a) The word "property" is used herein to mean securities of all kinds,
monies, options, commodities and contracts for the future delivery of, or
otherwise relating to, commodities or securities and all property usually and
customarily dealt in by brokerage firms.
(b) All transactions for the Partnership's account shall be subject to the
regulations of all applicable federal, state and self-regulatory agencies
including, but not limited to, the various commodity exchanges and the
constitutions, rules and customs, as the same may be constituted from time to
time, of the exchange or market (and its clearing house, if any) where executed.
Actual deliveries are intended on all transactions. The Partnership also agrees
not to exceed the speculative position limits for its own account, acting alone
or in concert with others, and promptly to advise SSB if it is required to file
reports of its commodity positions with the Commodity Futures Trading
Commission.
(c) Any and all property belonging to the Partnership, or in which it may
have an interest, held by SSB or carried in the Partnership's account (either
individually or jointly with others) shall be subject to a general lien for the
discharge of the Partnership's obligations to SSB, wherever or however arising
and without regard to whether or not SSB has made advances with respect to such
property, and SSB is hereby authorized to sell and/or purchase any and all
property in the Partnership's account without notice to satisfy such general
lien.
(d) The Partnership agrees to maintain such collateral and/or margin as SSB
may, in its discretion, require from time to time and will pay on demand any
amount owing with respect to its account. Against a "short" position in any
commodity contract, prior to the maturity thereof, the Partnership will give SSB
instructions to cover, or furnish SSB with all necessary delivery documents, and
in default thereof, SSB may, without demand or notice, cover the contracts, or
if an order to buy in such contracts cannot be executed under prevailing
conditions, SSB may procure the actual commodity and make delivery thereof upon
any terms and by any method which may be feasible. It is further agreed that if
the Partnership fails to receive sufficient funds to pay for any commodities and
commodity futures contracts and/or to satisfy any demands for original and/or
variation margin, SSB may, without prior demand and notice, sell any property
held by it in the Partnership's account and any loss resulting therefrom will be
charged to the Partnership's account.
(e) SSB may, whenever in its discretion it considers it necessary for its
protection, sell any or all property held in the Partnership's account, cancel
any open orders for the purchase or sale of any property with or without notice
to the Partnership, and SSB may borrow or buy in any property required to make
delivery against any sales, including a short sale, effected for the
Partnership. Such sale or purchase may be public or private and may be made
without advertising or notice to the Partnership and in such manner as SSB may,
in its discretion, determine, and no demands, calls, tenders or notices which
SSB may make or give in any one or more instances shall invalidate the aforesaid
waiver on the Partnership's part. At any such sale SSB may purchase the property
free of any right of redemption and the Partnership shall be liable for any
deficiency in its account.
(f) SSB and the Partnership agree that the parties shall have the right to
offset any unrealized gains and losses on the Partnership's open positions and
to net any open orders for the purchase or sale of any property of the
Partnership.
(g) The Partnership agrees to pay service fees and/or interest charges upon
its account monthly at the prevailing and/or allowable rates according to the
laws of the State of New York, as determined by SSB at the time of the
acceptance of this Agreement in its New York office and thereafter.
(h) If any provisions herein are or should become inconsistent with any
present or future law, rule or regulation of any sovereign government or a
regulatory body having jurisdiction over the subject matter of this Agreement,
such provision shall be deemed to be rescinded or modified in accordance with
any such law, rule or regulation. In all other respects, this Agreement shall
continue and remain in full force and effect.
7. Indemnification.
(a) In any action, suit, or proceeding to which SSB was or is a party or is
threatened to be made a party by reason of the fact that it is or was the
commodity broker for the Partnership (other than an action by or in the right of
the Partnership), the Partnership shall indemnify and hold harmless SSB, subject
to subparagraph (c), against any loss, liability, damage, cost, expense
(including attorneys' fees and accountants' fees), judgments and amounts paid in
settlement actually and reasonably incurred by it in connection with such
action, suit or proceeding if SSB acted in good faith and in a manner it
reasonably believed to be in the best interests of the Partnership, except that
no indemnification shall be made in respect of any claim, issue or matter which
as to SSB constituted negligence, misconduct or breach of its fiduciary
obligations to the Partnership, unless, and only to the extent that, the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all circumstances of the
case, SSB is fairly and reasonably entitled to indemnification for such expenses
which such court shall deem proper; and further provided that no indemnification
shall be available from the Partnership if such indemnification is prohibited by
Section 16 of the Partnership's Limited Partnership Agreement. The termination
of any action, suit or proceeding by judgment, order or settlement shall not, of
itself, create a presumption that SSB did not act in good faith, and in a manner
which it reasonably believed to be in or not opposed to the best interests of
the Partnership.
(b) To the extent that SSB has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in subparagraph (a)
above, or in defense of any claim, issue or matter therein, the Partnership
shall indemnify it against the expenses, including attorneys' fees, actually and
reasonably incurred by it in connection therewith.
(c) Any indemnification under subparagraph (a) above, unless ordered by a
court, shall be made by the Partnership only as authorized in the specific case
and only upon a determination by independent legal counsel in a written opinion
that indemnification is proper in the circumstances because SSB has met the
applicable standard of conduct set forth in subparagraph (a) above.
(d) The term SSB as used in this Paragraph 7 shall include SSB, its
officers, directors, stockholders, employees and affiliates.
8. Termination. This Agreement may be terminated at any time by either party
hereto upon notice to the other, in which event the brokerage accounts shall be
closed and all positions open at such time shall be liquidated or shall be
transferred to another broker as directed by the Partnership.
9. Miscellaneous. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. This
Agreement shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year first above written.
XXXXXXX XXXXX XXXXXX ORION FUTURES FUND L.P.
By: Xxxxx Xxxxxx Futures Management LLC
(General Partner)
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President
XXXXXXX XXXXX XXXXXX INC.
(Commodity Broker/Dealer)
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Executive Vice President
