EXHIBIT 10.02
COMMODITY FUTURES CUSTOMER AGREEMENT
BETWEEN
XXXX XXXXXX DIVERSIFIED FUTURES FUND II L.P.
AND
XXXXXX XXXXXXX & CO. INCORPORATED
This Commodity Futures Customer Agreement ("Agreement"), dated as of May 1, 2000
between Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"), Xxxx Xxxxxx
Diversified Futures Fund II L.P.("Customer"), and acknowledged and agreed to
Xxxx Xxxxxx Xxxxxxxx Inc., the non-clearing commodity broker for the Customer
("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").
Applicable Law. The Account and all transactions and agreements in respect of
the Account shall be subject to all applicable Federal, state, exchange,
clearing house 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."
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.
Payment and Interest Obligations.
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Compensation Payments to Xxxxxx Xxxxxxx. Customer shall pay Xxxxxx Xxxxxxx upon
demand (a) all floor brokerage charges, give-up fees, contract market, clearing
house, National Futures Association ("NFA") or clearing member fees or charges;
(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; and (e) any other amounts owed by Customer to Xxxxxx
Xxxxxxx with respect to the Account or any transactions therein. DWR shall pay
Xxxxxx Xxxxxxx such charges with respect to the execution and clearing of trades
for Customer as DWR and Xxxxxx Xxxxxxx shall agree from time to time.
Payment of Interest. The Customer's assets deposited with Xxxxxx Xxxxxxx will be
segregated or secured in accordance with the Commodity Exchange Act and
regulations of the Commodity Futures Trading Commission ("CFTC") and will be
invested in accord with Xxxxxx Xxxxxxx'x customary practice for investment of
its futures customer funds. All of Customer's funds will be available for margin
for the Customer's trading. Xxxxxx Xxxxxxx shall pay to DWR at each month-end
interest on Customer's funds in its possession as agreed between Xxxxxx Xxxxxxx
and DWR from time to time. The Customer understands that it will not receive any
interest income on its assets held by Xxxxxx Xxxxxxx other than that paid by DWR
pursuant to the Customer's DWR Customer Agreement. DWR shall pay Xxxxxx Xxxxxxx
interest on any debit balances in the Account at such rates as Xxxxxx Xxxxxxx
and DWR shall agree from time to time.
Netting. The parties agree that all payment obligations of Customer to Xxxxxx
Xxxxxxx under this Agreement and all payment obligations of Xxxxxx Xxxxxxx to
Customer under this Agreement will be netted against each other to result in one
net payment amount.
Customer's Events of Default; Xxxxxx Xxxxxxx'x Remedies.
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Events of Default. As used herein, each of the following shall be deemed an
"Event of Default": (i) the commencement of a case under any Federal or state
bankruptcy, insolvency or reorganization law, or the filing of a petition for
the appointment of a receiver by or against Customer, an assignment made by
Customer for the benefit of creditors, an admission in writing by Customer that
it is insolvent or is unable to pay its debts when they mature, or the
suspension by 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 a governmental agency or body, or the
receipt of a notice of intent to terminate Customer from a governmental agency
or body, or the inability of Customer to pay benefits under the relevant
employment 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 3 hereof; (v) the failure by Customer to perform, in any material
respect, its obligations hereunder.
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 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.
Standard of Liability and Indemnification.
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Standard of Liability. Xxxxxx Xxxxxxx and its affiliates (as defined below)
shall not be liable to Customer, its partners, or any of its or their respective
successors or assigns, for any act, omission, conduct, or activity undertaken by
or on behalf of the Customer pursuant to this Agreement which Xxxxxx Xxxxxxx
determines, in good faith, to be in the best interests of the Customer except
that Xxxxxx Xxxxxxx shall be liable to the Customer and its partners, and its or
their successors and assigns for any loss, liability, damage, cost, and expense
(including attorneys' and accountants' fees) to which any of them may become
subject arising out of or based upon, an act, omission, conduct, or activity by
Xxxxxx Xxxxxxx or its affiliates in respect of the Customer which shall be found
by a court of competent jurisdiction upon entry of a final judgment (or, if no
final judgment shall be entered) by a written opinion rendered to the Customer
by independent legal counsel, who shall be other than counsel to the Customer,
Xxxxxx Xxxxxxx or any affiliate thereof) to have constituted bad faith,
misconduct, or negligence and such act, omission, activity, or conduct was not
done in good faith and in the reasonable belief that it was in the best
interests of the Customer. 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 any contract market, clearing house,
clearing firm or other third party (including floor brokers not selected by
Xxxxxx Xxxxxxx and banks) to Xxxxxx Xxxxxxx of its obligations in respect of any
Contract or other property of Customer; (ii) as a result of any prediction,
recommendation or advice made or given by a representative of Xxxxxx Xxxxxxx
whether or not made or given at the request of Customer; (iii) as a result of
Xxxxxx Xxxxxxx'x reliance on any instructions, notices and communications that
it believes to be that of an individual authorized to act on behalf of Customer;
(iv) as a result of any delay in the performance or non-performance of any of
Xxxxxx Xxxxxxx'x obligations hereunder directly or indirectly caused by the
occurrence of any contingency beyond the control of Xxxxxx Xxxxxxx including,
but not limited to, the unscheduled closure of an exchange or contract market or
delays in the transmission of orders due to breakdowns or failures of
transmission or communication facilities, execution, and/or trading facilities
or other systems (including, without limitation, GLOBEX, ACCESS, or other
electronic trading systems, facilities or services), it being understood that
Xxxxxx Xxxxxxx shall be excused from performance of its obligations hereunder
for such period of time as is reasonably necessary after such occurrence to
remedy the effects therefrom; (v) as a result of any action taken by Xxxxxx
Xxxxxxx or its floor brokers to comply with Applicable Law; or (vi) for any acts
or omissions of those neither employed nor supervised by Xxxxxx Xxxxxxx. In no
event xxxx Xxxxxx Xxxxxxx be liable to Customer for consequential, incidental or
special damages hereunder.
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 attorney's 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 pursuant to this Agreement,
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) a court of competent jurisdiction upon entry of a final judgment shall find
(or, if no final judgment is entered, an opinion is rendered to the Customer by
independent legal counsel, who shall be other than counsel to the Customer,
Xxxxxx Xxxxxxx or any affiliate thereof) to the effect that the act, omission,
activity, or conduct that was the basis for such loss, liability, damage, cost
or expense was not the result of bad faith, misconduct or negligence and was
done in the good faith and in the reasonable belief that it was in the best
interests of the Customer. Notwithstanding the foregoing, no indemnification of
Xxxxxx Xxxxxxx or its affiliates by the Customer shall be permitted for losses
resulting from liability incurred for violation of federal or state securities
laws. Xxxxxx Xxxxxxx and its affiliates shall be indemnified for settlements and
related expenses of lawsuits alleging securities law violations, and for
expenses incurred in successfully defending such lawsuits, provided that a court
either (i) approves the settlement and finds that indemnification of the
settlement and related costs should be made, or (ii) approves indemnification of
litigation costs if a successful defense is made; provided, however, that Xxxxxx
Xxxxxxx or its affiliate, as the case may be, must apprise the court of the
position of the SEC (and, as long as any limited partner is a resident of
Massachusetts or Tennessee, the positions of the respective securities
administrators of such states) and, where violations of the securities laws or
rules of any state or other jurisdiction had been alleged, the position (if any)
of the securities administrator of each such state or other jurisdiction whose
laws or rules have allegedly been violated, 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.
Indemnification by Xxxxxx Xxxxxxx. Xxxxxx Xxxxxxx shall indemnify, defend and
hold harmless Customer and its partners and its or their successors or assigns
from and against any losses, liabilities, damages, costs or expenses (including
attorneys' and accountants' fees) to which any of them may become subject
arising out of, or based upon, an act, omission, conduct, or activity by Xxxxxx
Xxxxxxx or its affiliates in respect of the Customer which shall be found by a
court of competent jurisdiction upon entry of a final judgment (or, if no final
judgment shall be entered, by a written opinion rendered to the Customer by
independent legal counsel, who shall be other than counsel to the Customer,
Xxxxxx Xxxxxxx or any affiliate thereof) to have constituted bad faith,
misconduct, or negligence and such act, omission, activity or conduct was not
done in good faith and in the reasonable belief that it was in the best
interests of the Customer.
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 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 breach.
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.
General Agreements. The parties agree that:
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.
Xxxxxx Xxxxxxx agrees to furnish to the Customer as soon as practicable all of
the information from time to time in its possession which Customer may be
required to furnish to its limited partners pursuant to its limited partnership
agreement and as otherwise required by Applicable Law. Xxxxxx Xxxxxxx shall
disclose such information regarding itself and its affiliates (including,
without limitation, financial statements) as may be required by the Customer for
SEC, CFTC and state blue sky disclosure purposes. Xxxxxx Xxxxxxx agrees to
notify the applicable trading advisor for the Customer (each, a "Trading
Advisor") immediately upon discovery of any error committed by Xxxxxx Xxxxxxx or
any of its agents with respect to a trade for the Customer's account which
Xxxxxx Xxxxxxx believes was not executed or cleared in accordance with proper
instructions given by the Customer, its Trading Advisors or any other authorized
agent of Customer. Errors made by floor brokers appointed or selected by Xxxxxx
Xxxxxxx shall constitute errors made by Xxxxxx Xxxxxxx. However, Xxxxxx Xxxxxxx
shall not be responsible for errors committed by the Trading Advisors.
Xxxxxx Xxxxxxx agrees to report to DWR its own errors and the errors of any
Trading Advisor for the Account which Xxxxxx Xxxxxxx becomes aware of, provided
that such reporting may be via telephone. Notwithstanding the foregoing, the
failure to comply with such reporting obligation does not increase Xxxxxx
Xxxxxxx'x liability for its own errors beyond that otherwise expressly set forth
in this Agreement, nor does it make Xxxxxx Xxxxxxx in any way responsible for
errors committed by the Trading Advisors.
Xxxxxx Xxxxxxx acknowledges that the other partnerships of which Demeter
Management Corporation (the general partner of Customer) is the general partner,
do not constitute affiliates of the Customer.
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.
Recording. Each of Xxxxxx Xxxxxxx, the Customer, DWR and their respective
officers, agents and employees, in their sole and absolute discretion, may
record, on tape or otherwise, any telephone conversation between or among Xxxxxx
Xxxxxxx, the Customer or DWR with respect to the Account and transactions
therein and each of Xxxxxx Xxxxxxx, the Customer and DWR hereby agrees and
consents thereto.
Acceptance of Orders; Position Limits.
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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.
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 clearing
house, 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.
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 and the Customer specifically
agree otherwise. All Contracts for the Account shall be margined at the
applicable exchange or clearing house minimum rates for speculative accounts.
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 held by Xxxxxx Xxxxxxx, 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. The rights of
Xxxxxx Xxxxxxx set forth above shall be qualified by any applicable requirements
for segregation of customers' property under Applicable Law. Xxxxxx Xxxxxxx
commits to Customer that Xxxxxx Xxxxxxx will not issue a Notice of Exclusive
Control under the Control Agreement between Xxxxxx Xxxxxxx and DWR unless Xxxxxx
Xxxxxxx determines there is a default under this Agreement.
Reports and Objections. All confirmations, purchase and sale notices, correction
notices and account statements (collectively, "Statements") shall be submitted
to Customer and shall be conclusive and binding on Customer unless Customer
notifies Xxxxxx Xxxxxxx of any objection thereto prior to the opening of trading
on the contract market on which such transaction occurred on the business day
following the day on which Customer receives such Statement; provided that, with
respect to monthly Statements, Customer may notify Xxxxxx Xxxxxxx of any
objection thereto within five business days after receipt of such monthly
Statement, provided the objection could not have been raised at the time any
prior Statement was received by Customer as provided for above. Any such notice
of objection, if given orally to Xxxxxx Xxxxxxx, shall immediately (and no later
than within one business day) be confirmed in writing by Customer.
Delivery Procedures; Options Allocation Procedure.
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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.
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.
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.
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.
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.
Termination. This Agreement may be terminated at any time by Customer or Xxxxxx
Xxxxxxx upon thirty (30) days by 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.
Notwithstanding the foregoing, in the event Xxxxxx Xxxxxxx is required by a
regulatory authority to transfer the account to another futures commission
merchant or in the event that Xxxxxx Xxxxxxx abandons the Futures Commission
Merchant ("FCM") business, then Xxxxxx Xxxxxxx shall have the right to terminate
this Agreement by written notice effective the date contained therein, provided
that Xxxxxx Xxxxxxx cooperates in the transfer of open positions to another FCM
and that the termination of the Agreement is not made effective earlier than the
completion of the transfer.
Miscellaneous.
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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.
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 in its sole and absolute discretion and without obtaining the consent of
Customer.
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.
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.
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:
if to Xxxxxx Xxxxxxx:
Xxxxxx Xxxxxxx & Co. Incorporated
Xxx Xxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Commodity Operations Manager
if to Customer, at the address as indicated on the Commodity Account
Application.
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.
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.
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.
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.
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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Customer Acknowledgements.
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 ss.190.06 permits
you to specify whether, in the unlikely event of Xxxxxx Xxxxxxx'x bankruptcy,
you prefer the bankruptcy trustee to liquidate all positions in the Account.
Accordingly, Customer hereby elects as follows (please initial):
[_] Liquidate [_] Not Liquidate
If neither alternative is initialed, Customer will be deemed to have
elected to have all positions liquidated. This election may be changed at
any time by written notice.
IN WITNESS WHEREOF, Customer has executed this Agreement on the date indicated
below.
Xxxx Xxxxxx Diversified Futures Fund II L.P.
("Customer")
By: Demeter Management Corporation,
General Partner
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
(Signature) (Date)
Xxxxxx X. Xxxxxx, President and Chairman
----------------------------------------
(Name & Title - Please Print)
Xxxxxx Xxxxxxx & Co. Incorporated
/s/ W. Xxxxxx Xxxxx
----------------------------------------
(Signature) (Date)
W. Xxxxxx Xxxxx, Managing Director
----------------------------------------
(Name & Title - Please Print)
Acknowledged and Agreed (as to Section 3(a) and (b))
Xxxx Xxxxxx Xxxxxxxx Inc.
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
(Signature) (Date)
Xxxxxx X. Xxxxxx, Senior Vice President
----------------------------------------
(Name & Title - Please Print)
