Exhibit 10.04
AMENDED AND RESTATED CUSTOMER AGREEMENT
THIS AMENDED AND RESTATED CUSTOMER AGREEMENT (this "Agreement"), made as of
the 1st day of December, 1997, by and between XXXX XXXXXX CORNERSTONE FUND II, a
New York limited partnership (the "Customer"), and XXXX XXXXXX XXXXXXXX INC., a
Delaware corporation ("DWR");
W I T N E S S E T H:
WHEREAS, the Customer was organized pursuant to a Certificate of Limited
Partnership filed in the office of the County Clerk of New York on December 7,
1983, as amended, and a Limited Partnership Agreement dated as of December 7,
1983, as amended, between Demeter Management Corporation, a Delaware corporation
("Demeter"), acting as general partner (in such capacity, the "General
Partner"), and the limited partners of the Customer to trade, buy, sell, or
otherwise acquire, hold, or dispose of commodities (including, but not limited,
to foreign currencies, mortgage-backed securities, money market instruments, and
any other securities or items which are, or may become, the subject of futures
contract trading), commodity futures contracts, commodity forward contracts,
commodity options, and any rights pertaining thereto (hereinafter referred to
collectively as "commodity interests");
WHEREAS, the Customer (which is a commodity pool) and the General Partner
(which is a registered commodity pool operator) have entered into management
agreements (the "Management Agreements") with certain trading managers (each, a
"Trading Manager" and collectively, the "Trading Managers"), which provide that
the Trading Managers have authority and responsibility, except in certain
limited situations, to direct the investment and reinvestment of the assets of
the Customer in commodity interests under the terms set forth in the Management
Agreements;
WHEREAS, the Customer and DWR entered into that certain Amended and
Restated Customer Agreement, dated as of September 1, 1996 (the "Customer
Agreement"), whereby DWR agreed to perform commodity interests brokerage and
certain other services for the Customer; and
WHEREAS, the Customer and DWR wish to amend and restate the Customer
Agreement to set forth the terms and conditions upon which DWR will continue to
perform certain non-clearing commodity interests brokerage and certain other
services for the Customer;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms not defined herein shall have the
meaning given to them in the Customer's most recent prospectus as filed with the
Securities and Exchange Commission (the "Prospectus") relating to the offering
of units of limited partnership interest of the Customer (the "Units") and in
any amendment or supplement to the Prospectus.
2. Duties of DWR. DWR agrees to act as a non-clearing commodity broker for
the Customer and introduce the Customer's account to Xxxx Futures, Inc. ("CFI")
for execution and clearing of commodity interests transactions on behalf of the
Customer in accordance with instructions provided by the Trading Managers, and
the Customer agrees to retain DWR as a non-clearing commodity broker for the
term of this Agreement.
DWR agrees to furnish to the Customer as soon as practicable all of the
information from time to time in its possession which Demeter, as the general
partner of the Customer, is required to furnish to the Limited Partners pursuant
to the Limited Partnership Agreement as from time to time in effect and as
required by applicable law, rules, or regulations and to perform such other
services for the Customer as are set forth herein and in the Prospectus.
3. Obligations and Expenses. Except as otherwise set forth herein and in
the Prospectus, the Customer, and not DWR, shall be responsible for all taxes,
management and incentive fees to the Trading Managers, brokerage fees to DWR,
fees and expenses specified in the Exchange Agreement among the Customer, Xxxx
Xxxxxx Cornerstone Fund III, Xxxx Xxxxxx Cornerstone Fund IV and the General
Partner, dated as of May 31, 1984, and as amended, and all extraordinary
expenses incurred by it. In addition, the Customer, and not DWR, shall pay the
charges of CFI for executing and clearing its commodity interests trades (as
described in paragraph 5(b) below).
4. Agreement Nonexclusive. DWR shall be free to render services of the
nature to be rendered to the Customer hereunder to other persons or entities in
addition to the Customer, and the parties acknowledge that DWR may render such
services to additional entities similar in nature to the Customer, including
other partnerships organized with Demeter as their general partner. It is
expressly understood and agreed that this Agreement is nonexclusive and that the
Customer has no obligation to execute any or all of its trades for commodity
interests through DWR. The parties acknowledge that the Customer may utilize
such other broker or brokers as Demeter may direct from time to time. The
Customer's utilization of an additional commodity broker shall neither terminate
this Agreement nor modify in any regard the respective rights and obligations of
the Customer and DWR hereunder.
5. (a) Compensation of DWR. The Customer will pay brokerage commissions to
DWR at a roundturn rate (but charged on a half-turn basis) of 80% of DWR's
published non-member rates for speculative accounts (which covers both the
taking and liquidation of a position), and substantially equivalent rates for
currency forward contract transactions in the forward contract and interbank
markets.
The Customer will pay DWR brokerage commissions for currency forward
contract transactions at rates established with reference to the brokerage
commission rate charged on exchange-traded currency futures contracts. DWR may
from time to time adjust the United States dollar size of currency forward
contracts so that the brokerage commission rate charged on such contracts will
approximate the rate charged on exchange-traded currency futures contracts of
similar United States dollar value. DWR shall also charge the Partnership
brokerage commissions for rollovers of forward contract positions.
(b) Compensation of CFI. The Customer will pay certain charges of CFI
for executing and clearing trades for the Customer pursuant to that certain
Customer Agreement dated as of December 1, 1997, among the Customer, CFI and
DWR. In addition, DWR shall pay CFI certain charges with respect to the
execution and clearance of trades for the Customer as agreed from time to time
between DWR and CFI.
(c) Notwithstanding the foregoing, brokerage commissions, together
with transaction fees and costs including those paid by the Customer to CFI,
with respect to each Trading Manager's allocated Net Assets will be capped at
13/20 of 1% per month (in the case of Trading Managers that employ multiple
trading systems in trading on behalf of the Customer, the foregoing cap is
applied on a per trading system basis) of the Customer's Net Assets allocated to
such Trading Manager or trading system as of the last day of each month (a
maximum 7.8% annual rate). In addition, the aggregate of (i) brokerage
commissions and transaction fees and costs payable by the Customer, and (ii) net
excess interest and compensating balance benefits to DWR (after crediting the
Customer with interest) shall not exceed 14% annually of the Customer's average
month-end Net Assets during each calendar year.
(d) From time to time, DWR may increase or decrease brokerage fees to
be charged to the Customer; provided, however, that: (i) notice of such increase
is mailed to each Limited Partner at least five business days prior to the last
date on which a "Request for Redemption" must be received by the General Partner
with respect to the applicable Redemption Date; and (ii) such notice shall
describe the redemption and voting rights of Limited Partners.
6. Investment Discretion. The parties recognize that DWR shall have no
authority to direct the commodity interests investments to be made for the
Customer's account. However, the parties agree that DWR, and not the Trading
Managers, shall have the authority and responsibility with regard to the
investment, maintenance, and management of the Customer's assets that are held
in segregated or secured accounts, as provided in Section 7 hereof.
7. Investment of Customer Funds. The Customer shall deposit its assets in
accounts with DWR. The Customer's assets deposited with DWR will be segregated
or secured in accordance with the Commodity Exchange Act and CFTC regulations.
The Customer's assets deposited with DWR will be held in non-interest bearing
accounts or invested in securities approved for investment by the CFTC for
investment of customer funds. In any event, DWR will credit the Customer with
interest income at month-end in an amount equal to 80% of the Customer's average
daily Net Assets at a rate equal to the average yield on 13-week U.S. Treasury
Bills issued during such month. All of such funds will be available for margin
for the Customer's trading. The Customer understands that it will not receive
any other interest income on its assets and that DWR will receive interest
income from CFI, as agreed from time to time by DWR and CFI, on the Customer's
assets deposited as margin with CFI. The Customer's assets held by DWR may be
used solely as margin for the Customer's trading.
Ownership of the right to receive interest on the Customer's assets
pursuant to the preceding paragraph shall be reflected and maintained and may be
transferred only on the books and records of DWR. Any purported transfer of such
ownership shall not be effective or recognized until such transfer shall have
been recorded on the books and records of DWR.
8. Standard of Liability and Indemnity. DWR and its stockholder, directors,
officers, employees, and its or their respective successors or assigns shall not
be liable to the Customer, the General Partner or the Limited Partners, or any
of its or their respective successors or assigns, except by reason of acts, or
omissions due to, bad faith, misconduct, or negligence, or for not having acted
in good faith in the reasonable belief that such acts or omissions were in, or
not opposed to, the best interests of the Customer, or by reason of any material
breach of this Agreement.
The Customer shall indemnify and hold harmless DWR and its stockholder,
directors, officers, employees, and its or their respective successors or
assigns from and against any loss, liability, damage, cost or expense (including
attorneys' and accountants' fees and expenses incurred in the defense of any
demands, claims, or lawsuits) actually and reasonably incurred arising from any
act, omission or conduct undertaken by DWR on behalf of the Customer pursuant to
this Agreement, including, without limitation, any demands, claims or lawsuits
initiated by a Limited Partner (or assignee thereof), provided that a court of
competent jurisdiction upon entry of final judgment shall find (or, if no final
judgment is entered, an opinion is rendered to the Customer by independent
counsel who shall be other than counsel to the Customer, the General Partner or
DWR) to the effect that the conduct that was the basis for such liability was
not the result of bad faith, misconduct, or negligence, and was done in a good
faith belief that it was in, or not opposed to, the best interests of the
Customer. Furthermore, in any action or proceeding brought by a Limited Partner
in the right of the Customer to which DWR is a party defendant, DWR shall be
indemnified only to the extent and subject to the conditions specified in the
New York Uniform Limited Partnership Act, as amended and in effect on the date
of the formation of the Customer.
DWR shall indemnify and hold harmless the Customer, the General Partner
and the Limited Partners, and its or their respective successors or assigns from
and against any loss, liability, damage, cost or expense (including attorneys'
and accountants' fees and expenses incurred in the defense of any demands,
claims, or lawsuits) actually and reasonably incurred arising from any act,
omission or conduct undertaken by DWR on behalf of the Customer pursuant to this
Agreement, provided that a court of competent jurisdiction upon entry of final
judgment shall find (or, if no final judgment is entered, by an opinion rendered
to the Customer by independent counsel who shall be other than counsel to the
Customer, the General Partner or DWR) to the effect that the conduct that was
the basis for such liability was the result of bad faith, misconduct, or
negligence, or was not done in a good faith belief that it was in, or not
opposed to, the best interests of the Customer, or was by reason of any material
breach of this Agreement by DWR.
The indemnities provided in this Section 8 by the Customer to DWR and its
stockholder, directors, officers, employees, and its or their respective
successors and assigns shall be inapplicable in the event of any liability
arising out of, or based upon, any material breach of any warranty, covenant, or
agreement of DWR contained in this Agreement to the extent caused by such event.
Likewise, the indemnities provided in this Section 8 by DWR to the Customer, the
General Partner and the Limited Partners, and any of its or their respective
successors and assigns shall be inapplicable in the event of any liability
arising out of, or based upon, any material breach of any warranty, covenant, or
agreement of the Customer contained in this Agreement to the extent caused by
such event.
9. Term. This Agreement shall continue in effect until terminated by either
party giving not less than 60 days' prior written notice of termination to the
other party. Any such termination by either party shall be without penalty.
10. Complete Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the matters referred to herein, and no other
agreement, verbal or otherwise, shall be binding as between the parties unless
in writing and signed by the party against whom enforcement is sought.
11. Assignment. This Agreement may not be assigned by either party without
the express written consent of the other party.
12. Amendment. This Agreement may not be amended except by the written
consent of the parties.
13. Notices. All notices required or desired to be delivered under this
Agreement shall be in writing and shall be effective when delivered personally
on the day delivered, or when given by registered or certified mail, postage
prepaid, return receipt requested, on the day of receipt, addressed as follows
(or to such other address as the party entitled to notice shall hereafter
designate in accordance with the terms hereof):
if to the Customer:
XXXX XXXXXX CORNERSTONE FUND II
c/o Demeter Management Corporation
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Xxxx X. Xxxxxx
President
if to DWR:
XXXX XXXXXX XXXXXXXX INC.
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx
Executive Vice President
14. Survival. The provisions of this Agreement shall survive the
termination of this Agreement with respect to any matter arising while this
Agreement was in effect.
15. Headings. Headings of Sections herein are for the convenience of the
parties only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
16. Incorporation by Reference. The Futures Customer Agreement annexed
hereto is hereby incorporated by reference herein and made a part hereof to the
same extent as if such document were set forth in full herein. If any provision
of this Agreement is or at any time becomes inconsistent with the annexed
document, the terms of this Agreement shall control.
IN WITNESS WHEREOF, this Agreement has been executed for and on behalf of
the undersigned as of the day and year first above written.
XXXX XXXXXX CORNERSTONE FUND II
By: Demeter Management Corporation,
General Partner
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Xxxx X. Xxxxxx
President
XXXX XXXXXX XXXXXXXX INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Xxxx X. Xxxxxx
Executive Vice President
FUTURES CUSTOMER AGREEMENT
In consideration of the acceptance by Xxxx Xxxxxx Xxxxxxxx Inc. ("DWR") of one
or more accounts of the undersigned ("Customer") (if more than one account is
carried by DWR, all are covered by this Agreement and are referred to
collectively as the "Account") and DWR's agreement to act as Customer's broker
for the execution, clearance and/or carrying of transactions for the purchase
and sale of commodity interests, including commodities, commodity futures
contracts and commodity options, Customer agrees as follows:
1. APPLICABLE RULES AND REGULATIONS - The Account and each transaction therein
shall be subject to the terms of this Agreement and to (a) all applicable
laws and the regulations, rules and orders (collectively "regulations") of
all regulatory and self-regulatory organizations having jurisdiction and
(b) the constitution, by-laws, rules, regulations, orders, resolutions,
interpretations and customs and usages (collectively "rules") of the market
and any associated clearing organization (each an "exchange") on or subject
to the rules of which such transaction is executed and/or cleared. The
reference in the preceding sentence to exchange rules is solely for DWR's
protection and DWR's failure to comply therewith shall not constitute a
breach of this Agreement or relieve Customer of any obligation or
responsibility under this Agreement. DWR shall not be liable to Customer as
a result of any action by DWR, its officers, directors, employees or agents
to comply with any rule or regulation.
2. PAYMENTS TO DWR - Customer agrees to pay to DWR immediately on request (a)
commissions, fees and service charges as are in effect from time to time
together with all applicable regulatory and self-regulatory organization
and exchange fees, charges and taxes; (b) the amount of any debit balance
or any other liability that may result from transactions executed for the
account; and (c) interest on such debit balance or liability at the
prevailing rate charged by DWR at the time such debit balance or liability
arises and service charges on any such debit balance or liability together
with any reasonable costs and attorney's fees incurred in collecting any
such debit balance or liability. Customer acknowledges that DWR may charge
commissions at other rates to other customers.
3. CUSTOMER'S DUTY TO MAINTAIN ADEQUATE MARGIN - Customer shall at all times
and without prior notice or demand from DWR maintain adequate margins in
the account so as continually to meet the original and maintenance margin
requirements established by DWR for Customer. DWR may change such
requirements from time to time at DWR's discretion. Such margin
requirements may exceed the margin requirements set by any exchange or
other regulatory authority and may vary from DWR's requirements for other
customers. Customer agrees, when so requested, immediately to wire transfer
margin funds and to furnish DWR with names of bank officers for immediate
verification of such transfers. Customer acknowledges and agrees that DWR
may receive and retain as its own any interest, increment, profit, gain or
benefit directly or indirectly, accruing from any of the funds DWR receives
from Customer.
4. DELIVERY; OPTION EXERCISE
(a) Customer acknowledges that the making or accepting of delivery
pursuant to a futures contract may involve a much higher degree of
risk than liquidating a position by offset. DWR has no control over
and makes no warranty with respect to grade, quality or tolerances of
any commodity delivered in fulfillment of a contract.
(b) Customer agrees to give DWR timely notice and immediately on request
to inform DWR if Customer intends to make or take delivery under a
futures contract or to exercise an option contract. If so requested,
Customer shall provide DWR with satisfactory assurances that Customer
can fulfill Customer's obligation to make or take delivery under any
contract. Customer shall furnish DWR with property deliverable by it
under any contract in accordance with DWR's instructions.
(c) DWR shall not have any obligation to exercise any long option contract
unless Customer has furnished DWR with timely exercise instructions
and sufficient initial margin with respect to each underlying futures
contract.
5. FOREIGN CURRENCY - If DWR enters into any transaction for Customer effected
in a currency other than U.S. dollars: (a) any profit or loss caused by
changes in the rate of exchange for such currency shall be for Customer's
account and risk and (b) unless another currency is designated in DWR's
confirmation of such transaction, all margin for such transaction and the
profit or loss on the liquidation of such transaction shall be in U.S.
dollars at a rate of exchange determined by DWR in its discretion on the
basis of then prevailing market rates of exchange for such foreign
currency.
6. DWR MAY LIMIT POSITIONS HELD - Customer agrees that DWR, at its discretion,
may limit the number of open positions (net or gross) which Customer may
execute, clear and/or carry with or acquire through it. Customer agrees (a)
not to make any trade which would have the effect of exceeding such limits,
(b) that DWR may require Customer to reduce open positions carried with DWR
and (c) that DWR may refuse to accept orders to establish new positions.
DWR may impose and enforce such limits, reduction or refusal whether or not
they are required by applicable law, regulations or rules. Customer shall
comply with all position limits established by any regulatory or
self-regulatory organization or any exchange. In addition, Customer agrees
to notify DWR promptly if customer is required to file position reports
with any regulatory or self-regulatory organization or with any exchange.
7. NO WARRANTY AS TO INFORMATION OR RECOMMENDATION - Customer acknowledges
that:
(a) Any market recommendations and information DWR may communicate to
Customer, although based upon information obtained from sources
believed by DWR to be reliable, may be incomplete and not subject to
verification;
(b) DWR makes no representation, warranty or guarantee as to, and shall
not be responsible for, the accuracy or completeness of any
information or trading recommendation furnished to Customer;
(c) recommendations to Customer as to any particular transaction at any
given time may differ among DWR's personnel due to diversity in
analysis of fundamental and technical factors and may vary from any
standard recommendation made by DWR in its market letters or
otherwise; and
(d) DWR has no obligation or responsibility to update any market
recommendations or information it communicates to Customer.
Customer understands that DWR and its officers, directors, affiliates,
stockholders, representatives or associated persons may have positions in and
may intend to buy or sell commodity interests which are the subject of market
recommendations furnished to Customer, and that the market positions of DWR or
any such officer, director, affiliate, stockholder, representative or associated
person may or may not be consistent with the recommendations furnished to
Customer by DWR.
8. LIMITS ON DWR DUTIES; LIABILITY - Customer agrees:
(a) that DWR has no duty to apprise Customer of news or of the value of
any commodity interests or collateral pledged or in any way to advise
Customer with respect to the market;
(b) that the commissions which DWR receives are consideration solely for
the execution, reporting and carrying of Customer's trades;
(c) that if Customer has authorized any third party or parties to place
orders or effect transactions on behalf of Customer in any Account,
each such party has been selected by Customer based on its own
evaluation and assessment of such party and that such party is solely
the agent of Customer, and if any such party allocates commodity
interests among its customers, Customer has reviewed each such party's
commodity interest allocation system, has satisfied itself that such
allocation system is fair and will seek recovery solely from such
party to recover any damages sustained by Customer as the result of
any allocation made by such party; and
(d) to waive any and all claims, rights or causes of action which Customer
has or may have against DWR or its officers, employees and agents (i)
arising in whole or in part, directly or indirectly, out of any act or
omission of any person, whether or not legally deemed an agent of DWR,
who refers or introduces Customer to DWR or places orders for Customer
and (ii) for any punitive damages and to limit any claims arising out
of this Agreement or the Account to Customer's direct out-of-pocket
damages.
9. EXTRAORDINARY EVENTS - Customer shall have no claim against DWR for any
loss, damage, liability, cost, charge, expense, penalty, fine or tax caused
directly or indirectly by (a) governmental, court, exchange, regulatory or
self-regulatory organization restrictions, regulations, rules, decisions or
orders, (b) suspension or termination of trading, (c) war or civil or labor
disturbance, (d) delay or inaccuracy in the transmission or reporting of
orders due to a breakdown or failure of computer services, transmission or
communication facilities, (e) the failure or delay by any exchange to
enforce its rules or to pay to DWR any margin due in respect of Customer's
Account, (f) the failure or delay by any bank, trust company, clearing
organization or other person which, pursuant to applicable exchange rules,
is holding Customer funds, securities or other property to pay or deliver
the same to DWR or (g) any other cause or causes beyond DWR's control.
10. INDEMNIFICATION OF DWR - Customer agrees to indemnify, defend and hold
harmless DWR and its officers, employees and agents from and against any
loss, cost, claim, damage (including any consequential cost, loss or
damage), liability or expense (including reasonable attorneys' fees) and
any fine, sanction or penalty made or imposed by any regulatory or
self-regulatory authority or any exchange as the result, directly or
indirectly, of:
(a) Customer's failure or refusal to comply with any provision of this
Agreement or perform any obligation on its part to be performed
pursuant to this Agreement; and
(b) Customer's failure to timely deliver any security, commodity or other
property previously sold by DWR on Customer's behalf.
11. NOTICES; TRANSMITTALS - DWR shall transmit all communications to Customer
at Customer's address, telefax or telephone number set forth in the
accompanying Futures Account Application or to such other address as
Customer may hereafter direct in writing. Customer shall transmit all
communications to DWR (except routine inquiries concerning the Account) to
000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Futures Compliance
Officer. All payments and deliveries to DWR shall be made as instructed by
DWR from time to time and shall be deemed received only when actually
received by DWR.
12. CONFIRMATION CONCLUSIVE - Confirmation of trades and any other notices sent
to Customer shall be conclusive and binding on Customer unless Customer or
Customer's agent notifies DWR to the contrary (a) in the case of an oral
report, orally at the time received by Customer or its agent or (b) in the
case of a written report or notice, in writing prior to opening of trading
on the business day next following receipt of the report. In addition, if
Customer has not received a written confirmation that a commodity interest
transaction has been executed within three business days after Customer has
placed an order with DWR to effect such transaction, and has been informed
or believes that such order has been or should have been executed, then
Customer immediately shall notify DWR thereof. Absent such notice, Customer
conclusively shall be deemed estopped to object and to have waived any such
objection to the failure to execute or cause to be executed such
transaction. Anything in this Section 12 withstanding, neither Customer nor
DWR shall be bound by any transaction or price reported in error.
13. SECURITY INTEREST - All money and property ("collateral") now or at any
future time held in Customer's Account, or otherwise held by DWR for
Customer, is subject to a security interest in DWR's favor to secure any
indebtedness at any time owing to it by Customer. DWR, in its discretion,
may liquidate any collateral to satisfy any margin or Account deficiencies
or to transfer the collateral to the general ledger account of DWR.
14. TRANSFER OF FUNDS - At any time and from time to time and without prior
notice to Customer, DWR may transfer from one account to another account in
which Customer has any interest, such excess funds, equities, securities or
other property as in DWR's judgment may be required for margin, or to
reduce any debit balance or to reduce or satisfy any deficits in such other
accounts except that no such transfer may be made from a segregated account
subject to the Commodity Exchange Act to another account maintained by
Customer unless either Customer has authorized such transfer in writing or
DWR is effecting such transfer to enforce DWR's security interest pursuant
to Section 13. DWR promptly shall confirm all transfers of funds made
pursuant hereto to Customer in writing.
15. DWR'S RIGHT TO LIQUIDATE CUSTOMER POSITIONS - In addition to all other
rights of DWR set forth in this Agreement:
(a) when directed or required by a regulatory or self-regulatory
organization or exchange having jurisdiction over DWR or the Account;
(b) whenever, in its discretion, DWR considers it necessary for its
protection because of margin requirements or otherwise;
(c) if Customer or any affiliate of Customer repudiates, violates,
breaches or fails to perform on a timely basis any term, covenant or
condition on its part to be performed under this Agreement or another
agreement with DWR;
(d) if a case in bankruptcy is commenced or if a proceeding under any
insolvency or other law for the protection of creditors or for the
appointment of a receiver, liquidator, trustee, conservator, custodian
or similar officer is filed by or against Customer or any affiliate of
Customer, or if Customer or any affiliate of Customer makes or
proposes to make any arrangement or composition for the benefit of its
creditors, or if Customer (or any such affiliate) or any or all of its
property is subject to any agreement, order, judgment or decree
providing for Customer's dissolution, winding-up, liquidation, merger,
consolidation, reorganization or for the appointment of a receiver,
liquidator, trustee, conservator, custodian or similar officer of
Customer, such affiliate or such property;
(e) DWR is informed of Customer's death or mental incapacity; or
(f) if an attachment or similar order is levied against the Account or any
other account maintained by Customer or any affiliate of Customer with
DWR;
DWR shall have the right to (i) satisfy any obligations due DWR out of any
Customer's property in DWR's custody or control, (ii) liquidate any or all
of Customer's commodity interest positions, (iii) cancel any or all of
Customer's outstanding orders, (iv) treat any or all of Customer's
obligations due DWR as immediately due and payable, (v) sell any or all of
Customer's property in DWR's custody or control in such manner as DWR
determines to be commercially reasonable, and/or (vi) terminate any or all
of DWR's obligations for future performance to Customer, all without any
notice to or demand on Customer. Any sale hereunder may be made in any
commercially reasonable manner. Customer agrees that a prior demand, call
or notice shall not be considered a waiver of DWR's right to act without
demand or notice as herein provided, that Customer shall at all times be
liable for the payment of any debit balance owing in each account upon
demand whether occurring upon a liquidation as provided under this Section
15 or otherwise under this Agreement, and that in all cases Customer shall
be liable for any deficiency remaining in each Account in the event of
liquidation thereof in whole or in part together with interest thereon and
all costs relating to liquidation and collection (including reasonable
attorneys' fees).
16. CUSTOMER REPRESENTATIONS, WARRANTIES AND AGREEMENTS - Customer represents
and warrants to and agrees with DWR that:
(a) Customer has full power and authority to enter into this Agreement and
to engage in the transactions and perform its obligations hereunder
and contemplated hereby and (i) if a corporation or a limited
liability company, is duly organized under the laws of the
jurisdiction set forth in the accompanying Futures Account
Application, or (ii) if a partnership, is duly organized pursuant to a
written partnership agreement and the general partner executing this
Agreement is duly authorized to do so under the partnership agreement;
(b) Neither Customer nor any partner, director, officer, member, manager
or employee of Customer nor any affiliate of Customer is a partner,
director, officer, member, manager or employee of a futures commission
merchant introducing broker, exchange or self-regulatory organization
or an employee or commissioner of the Commodity Futures Trading
Commission (the "CFTC"), except as previously disclosed in writing to
DWR;
(c) The accompanying Futures Account Application and Personal Financial
Statements, if applicable, (including any financial statements
furnished in connection therewith) are true, correct and complete.
Except as disclosed on the accompanying Futures Account Application or
otherwise provided in writing, (i) Customer is not a commodity pool or
is exempt from registration under the rules of the Commission, and
(ii) Customer is acting solely as principal and no one other than
Customer has any interest in any Account of Customer. Customer hereby
authorizes DWR to contact such banks, financial institutions and
credit agencies as DWR shall deem appropriate for verification of the
information contained herein.
(d) Customer has determined that trading in commodity interests is
appropriate for Customer, is prudent in all respects and does not and
will not violate Customer's charter or by-laws (or other comparable
governing document) or any law, rule, regulation, judgment, decree,
order or agreement to which Customer or its property is subject or
bound;
(e) As required by CFTC regulations, Customer shall create, retain and
produce upon request of the applicable contract market, the CFTC or
the United States Department of Justice documents (such as contracts,
confirmations, telex printouts, invoices and documents of title) with
respect to cash transactions underlying exchanges of futures for cash
commodities or exchange of futures in connection with cash commodity
transactions;
(f) Customer consents to the electronic recording, at DWR's discretion, of
any or all telephone conversations with DWR (without automatic tone
warning device), the use of same as evidence by either party in any
action or proceeding arising out of the Agreement and in DWR's
erasure, at its discretion, of any recording as part of its regular
procedure for handling of recordings;
(g) Absent a separate written agreement between Customer and DWR with
respect to give-ups, DWR, in its discretion, may, but shall have no
obligation to, accept from other brokers commodity interest
transactions executed by such brokers on an exchange for Customer and
proposed to be "given-up" to DWR for clearance and/or carrying in the
Account;
(h) DWR, for and on behalf of Customer, is authorized and empowered to
place orders for commodity interest transactions through one or more
electronic or automated trading systems maintained or operated by or
under the auspices of an exchange, that DWR shall not be liable or
obligated to Customer for any loss, damage, liability, cost or expense
(including but not limited to loss of profits, loss of use, incidental
or consequential damages) incurred or sustained by Customer and
arising in whole or in part, directly or indirectly, from any fault,
delay, omission, inaccuracy or termination of a system or DWR's
inability to enter, cancel or modify an order on behalf of Customer on
or through a system. The provisions of this Section 16(h) shall apply
regardless of whether any customer claim arises in contract,
negligence, tort, strict liability, breach of fiduciary obligations or
otherwise; and
(i) If Customer is subject to the Financial Institution Reform, Recovery
and Enforcement Act of 1989, the certified resolutions set forth
following this Agreement have been caused to be reflected in the
minutes of Customer's Board of Directors (or other comparable
governing body) and this Agreement is and shall be, continuously from
the date hereof, an official record of Customer.
Customer agrees to promptly notify DWR in writing if any of the warranties
and representations contained in this Section 16 becomes inaccurate or in
any way ceases to be true, complete and correct.
17. SUCCESSORS AND ASSIGNS - This Agreement shall inure to the benefit of DWR,
its successors and assigns, and shall be binding upon Customer and
Customer's executors, trustees, administrators, successors and assigns,
provided, however, that this Agreement is not assignable by Customer
without the prior written consent of DWR.
18. MODIFICATION OF AGREEMENT BY DWR; NON-WAIVER PROVISION - This Agreement may
only be altered, modified or amended by mutual written consent of the
parties, except that if DWR notifies Customer of a change in this Agreement
and Customer thereafter effects a commodity interest transaction in an
account, Customer agrees that such action by Customer will constitute
consent by Customer to such change. No employee of DWR other than DWR's
General Counsel or his or her designee, has any authority to alter, modify,
amend or waive in any respect any of the terms of this Agreement. The
rights and remedies conferred upon DWR shall be cumulative, and its
forbearance to take any remedial action available to it under this
Agreement shall not waive its right at any time or from time to time
thereafter to take such action.
19. SEVERABILITY - If any term or provision hereof or the application thereof
to any persons or circumstances shall to any extent be contrary to any
exchange, government or self-regulatory regulation or contrary to any
federal, state or local law or otherwise be invalid or unenforceable, the
remainder of this Agreement or the application of such term or provision to
persons or circumstances other than those as to which it is contrary,
invalid or unenforceable, shall not be affected thereby.
20. CAPTIONS - All captions used herein are for convenience only, are not a
part of this Agreement, and are not to be used in construing or
interpreting any aspect of this Agreement.
21. TERMINATION - This Agreement shall continue in force until written notice
of termination is given by Customer or DWR. Termination shall not relieve
either party of any liability or obligation incurred prior to such notice.
Upon giving or receiving notice of termination, Customer will promptly take
all action necessary to transfer all open positions in each account to
another futures commission merchant.
22. ENTIRE AGREEMENT - This Agreement constitutes the entire agreement between
Customer and DWR with respect to the subject matter hereof and supersedes
any prior agreements between the parties with respect to such subject
matter.
23. GOVERNING LAW; CONSENT TO JURISDICTION -
(a) In case of a dispute between Customer and DWR arising out of or
relating to the making or performance of this Agreement or any
transaction pursuant to this Agreement (i) this Agreement and its
enforcement shall be governed by the laws of the State of New York
without regard to principles of conflicts of laws, and (ii) Customer
will bring any legal proceeding against DWR in, and Customer hereby
consents in any legal proceeding by DWR to the jurisdiction of, any
state or federal court located within the State and City of New York
in connection with all legal proceedings arising directly, indirectly
or otherwise in connection with, out of, related to or from Customer's
Account, transactions contemplated by this Agreement or the breach
thereof. Customer hereby waives all objections Customer, at any time,
may have as to the propriety of the court in which any such legal
proceedings may be commenced. Customer also agrees that any service of
process mailed to Customer at any address specified to DWR shall be
deemed a proper service of process on the undersigned.
(b) Notwithstanding the provisions of Section 23 (a)(ii), Customer may
elect at this time to have all disputes described in this Section
resolved by arbitration. To make such election, Customer must sign the
Arbitration Agreement set forth in Section 24. Notwithstanding such
election, any question relating to whether Customer or DWR has
commenced an arbitration proceeding in a timely manner, whether a
dispute is within the scope of the Arbitration Agreement or whether a
party (other than Customer or DWR) has consented to arbitration and
all proceedings to compel arbitration shall be determined by a court
as specified in Section 23 (a)(ii).
24. ARBITRATION AGREEMENT (OPTIONAL) - Every dispute between Customer and DWR
arising out of or relating to the making or performance of this Agreement
or any transaction pursuant to this Agreement, shall be settled by
arbitration in accordance with the rules, then in effect, of the National
Futures Association, the contract market upon which the transaction giving
rise to the claim was executed, or the National Association of Securities
Dealers as Customer may elect. If Customer does not make such election by
registered mail addressed to DWR at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000; Attention: Deputy General Counsel, within 45 days after
demand by DWR that the Customer make such election, then DWR may make such
election. DWR agrees to pay any incremental fees which may be assessed by a
qualified forum for making available a "mixed panel" of arbitrators, unless
the arbitrators determine that Customer has acted in bad faith in
initiating or conducting the proceedings. Judgment upon any award rendered
by the arbitrators may be entered in any court having jurisdiction thereof.
IN ADDITION TO FOREIGN FORUMS, THREE FORUMS EXIST FOR THE RESOLUTION OF
COMMODITY DISPUTES: CIVIL COURT LITIGATION, REPARATIONS AT THE COMMODITY
FUTURES TRADING COMMISSION ("CFTC") AND ARBITRATION CONDUCTED BY A
SELF-REGULATORY OR OTHER PRIVATE ORGANIZATION.
THE CFTC RECOGNIZES THAT THE OPPORTUNITY TO SETTLE DISPUTES BY ARBITRATION
MAY IN SOME CASES PROVIDE MANY BENEFITS TO CUSTOMERS, INCLUDING THE ABILITY
TO OBTAIN AN EXPEDITIOUS AND FINAL RESOLUTION OF DISPUTES WITHOUT INCURRING
SUBSTANTIAL COSTS. THE CFTC REQUIRES, HOWEVER, THAT EACH CUSTOMER
INDIVIDUALLY EXAMINE THE RELATIVE MERITS OF ARBITRATION AND THAT YOUR
CONSENT TO THIS ARBITRATION AGREEMENT BE VOLUNTARY.
BY SIGNING THIS AGREEMENT, YOU (1) MAY BE WAIVING YOUR RIGHT TO XXX IN A
COURT OF LAW AND (2) ARE AGREEING TO BE BOUND BY ARBITRATION OF ANY CLAIMS
OR COUNTERCLAIMS WHICH YOU OR DWR MAY SUBMIT TO ARBITRATION UNDER THIS
AGREEMENT. YOU ARE NOT, HOWEVER, WAIVING YOUR RIGHT TO ELECT INSTEAD TO
PETITION THE CFTC TO INSTITUTE REPARATIONS PROCEEDINGS UNDER SECTION 14 OF
THE COMMODITY EXCHANGE ACT WITH RESPECT TO ANY DISPUTE WHICH MAY BE
ARBITRATED PURSUANT TO THIS AGREEMENT. IN THE EVENT A DISPUTE ARISES, YOU
WILL BE NOTIFIED IF DWR INTENDS TO SUBMIT THE DISPUTE TO ARBITRATION. IF
YOU BELIEVE A VIOLATION OF THE COMMODITY EXCHANGE ACT IS INVOLVED AND IF
YOU PREFER TO REQUEST A SECTION 14 "REPARATIONS" PROCEEDINGS BEFORE THE
CFTC, YOU WILL HAVE 45 DAYS FROM THE DATE OF SUCH NOTICE IN WHICH TO MAKE
THAT ELECTION.
YOU NEED NOT AGREE TO THIS ARBITRATION AGREEMENT TO OPEN AN ACCOUNT WITH
DWR. See 17 CFR 180.1-180.5. ACCEPTANCE OF THIS ARBITRATION AGREEMENT
REQUIRES A SEPARATE SIGNATURE ON PAGE 8.
25. CONSENT TO TAKE THE OTHER SIDE OF ORDERS (OPTIONAL) - Without its prior
notice, Customer agrees that when DWR executes sell or buy orders on
Customer's behalf, DWR, its directors, officers, employees, agents,
affiliates, and any floor broker may take the other side of Customer's
transaction through any account of such person subject to its being
executed at prevailing prices in accordance with and subject to the
limitations and conditions, if any, contained in applicable rules and
regulations.
26. AUTHORIZATION TO TRANSFER FUNDS (OPTIONAL) - Without limiting other
provisions herein, DWR is authorized to transfer from any segregated
account subject to the Commodity Exchange Act carried by DWR for the
Customer to any other account carried by DWR for the Customer such amount
of excess funds as in DWR's judgment may be necessary at any time to avoid
a margin call or to reduce a debit balance in said account. It is
understood that DWR will confirm in writing each such transfer of funds
made pursuant to this authorization within a reasonable time after such
transfer.
27. SUBORDINATION AGREEMENT (Applies only to Accounts with funds held in
foreign countries) - Funds of customers trading on United States contract
markets may be held in accounts denominated in a foreign currency with
depositories located outside the United States or its territories if the
customer is domiciled in a foreign country or if the funds are held in
connection with contracts priced and settled in a foreign currency. Such
accounts are subject to the risk that events could occur which hinder or
prevent the availability of these funds for distribution to customers. Such
accounts also may be subject to foreign currency exchange rate risks.
If authorized below, Customer authorizes the deposit of funds into such
foreign depositories. For customers domiciled in the United States, this
authorization permits the holding of funds in regulated accounts offshore
only if such funds are used to margin, guarantee, or secure positions in
such contracts or accrue as a result of such positions. In order to avoid
the possible dilution of other customer funds, a customer who has funds
held outside the United States agrees by accepting this subordination
agreement that his claims based on such funds will be subordinated as
described below in the unlikely event both of the following conditions are
met: (1) DWR is placed in receivership or bankruptcy, and (2) there are
insufficient funds available for distribution denominated in the foreign
currency as to which the customer has a claim to satisfy all claims against
those funds.
By initialing the Subordination Agreement below, Customer agrees that if
both of the conditions listed above occur, its claim against DWR's assets
attributable to funds held overseas in a particular foreign currency may be
satisfied out of segregated customer funds held in accounts denominated in
dollars or other foreign currencies only after each customer whose funds
are held in dollars or in such other foreign currencies receives its
pro-rata portion of such funds. It is further agreed that in no event may a
customer whose funds are held overseas receive more than its pro-rata share
of the aggregate pool consisting of funds held in dollars, funds held in
the particular foreign currency, and non-segregated assets of DWR.
OPTIONAL ELECTIONS
The following provisions, which are set forth in this agreement, need not be
entered into to open the Account. Customer agrees that its optional elections
are as follows:
Signature required for each election
ARBITRATION AGREEMENT:
(Agreement Paragraph 24)
-------------------------------------
CONSENT TO TAKE THE OTHER SIDE OF ORDERS:
(Agreement Paragraph 25) X /s/ Xxxx X. Xxxxxx
-------------------------------------
AUTHORIZATION TO TRANSFER FUNDS:
(Agreement Paragraph 26)
-------------------------------------
ACKNOWLEDGEMENT TO SUBORDINATION AGREEMENT
(Agreement Paragraph 27) X /s/ Xxxx X. Xxxxxx
-------------------------------------
(Required for accounts holding
non-U.S. currency)
--------------------------------------------------------------------------------
HEDGE ELECTION
Customer confirms that all transactions in the Account will / /
represent bona fide hedging transactions, as defined by the
Commodity Futures Trading Commission, unless DWR is notified
otherwise not later than the time an order is placed for the
Account [check box if applicable]:
Pursuant to CFTC Regulation 190.06(d), Customer specifies and agrees, with
respect to hedging transactions in the Account, that in the unlikely event of
DWR's bankruptcy, it prefers that the bankruptcy trustee [check appropriate
box]:
A. Liquidate all open contracts without first seeking / /
instructions either from or on behalf of Customer.
B. Attempt to obtain instructions with respect to the / /
disposition of all open contracts. (If neither box is
checked, Customer shall be deemed to elect A)
--------------------------------------------------------------------------------
ACKNOWLEDGEMENT OF RECEIPT OF RISK DISCLOSURE STATEMENTS
The undersigned each hereby acknowledges its separate receipt from DWR, and its
understanding of each of the following documents prior to the opening of the
account:
o Risk Disclosure Statement for Futures and Options (in the form prescribed
by CFTC Regulation 1.55(c))
o LME Risk Warning Notice
o Xxxx Xxxxxx Order Presumption for After Hours Electronic Markets
o NYMEX ACCESS(Service Xxxx) Risk Disclosure Statement
o Globex(Registered) Customer Information and Risk Disclosure Statement
o Project A(Trademark) Customer Information Statement
o Questions & Answers on Flexible Options Trading at the CBOT
o CME Average Pricing System Disclosure Statement
o Special Notice to Foreign Brokers and Foreign Traders
--------------------------------------------------------------------------------
REQUIRED SIGNATURES
The undersigned has received, read, understands and agrees to all the provisions
of this Agreement and the separate risk disclosure statements enumerated above
and agrees to promptly notify DWR in writing if any of the warranties and
representations contained herein become inaccurate or in any way cease to be
true, complete and correct.
XXXX XXXXXX CORNERSTONE FUND II
--------------------------------------------------------------------------------
CUSTOMER NAME(S)
By: DEMETER MANAGEMENT CORPORATION
By: /s/ Xxxx X. Xxxxxx December 1, 1997
----------------------------------------- -----------------------------
AUTHORIZED SIGNATURE(S) DATE
Xxxx X. Xxxxxx, President
--------------------------------------------------------------------------------
(If applicable, print name and title of signatory)
