Exhibit 10.16
COMMODITY FUTURES CUSTOMER AGREEMENT
BETWEEN
XXXXXX XXXXXXX XXXX XXXXXX SPECTRUM GLOBAL BALANCED L.P.
AND
XXXXXX XXXXXXX & CO. INCORPORATED
This Commodity Futures Customer Agreement ("Agreement"), dated as of
June 6, 2000 between Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"),
Xxxxxx Xxxxxxx Xxxx Xxxxxx Spectrum Global Balanced 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").
1. 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."
2. CUSTOMER'S REPRESENTATIONS AND WARRANTIES. Customer represents and
warrants that (a) Customer has full right, power and authority to enter into
this Agreement, and the person executing this Agreement on behalf of Customer is
authorized to do so; (b) this Agreement is binding on Customer and enforceable
against Customer in accordance with its terms; (c) Customer may lawfully
establish and open the Account for the purpose of effecting purchases and sales
of Contracts through Xxxxxx Xxxxxxx; (d) transactions entered into pursuant to
this Agreement will not violate any applicable law (including any Applicable
Law) to which Customer is subject or any agreement to which Customer is subject
or a party; and (e) all information provided by Customer in the Account
Application preceding this Agreement (which Application and the information
contained therein hereby is incorporated into this Agreement) is true and
correct and Customer shall immediately (and in no event later than within one
business day) notify Xxxxxx Xxxxxxx of any change in such information.
3. PAYMENT AND INTEREST OBLIGATIONS.
(a) 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.
(b) 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.
(c) 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.
4. CUSTOMER'S EVENTS OF DEFAULT; XXXXXX XXXXXXX'X REMEDIES.
(a) EVENTS OF DEFAULT. As used herein, each of the following
shall be deemed an "Event of Default": (i) the commencement of a case under any
Federal or state bankruptcy, 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.
(b) REMEDIES. Upon the occurrence of an Event of Default or
in the event Xxxxxx Xxxxxxx, in its sole and absolute discretion, considers it
necessary for its protection, Xxxxxx Xxxxxxx shall have the right, in addition
to any other remedy available to Xxxxxx Xxxxxxx at law or in equity, and in
addition to any other action Xxxxxx Xxxxxxx may xxxx appropriate under the
circumstances, to liquidate any or all open Contracts held in or for the
Account, sell any or all of the securities or other property of Customer held by
Xxxxxx Xxxxxxx and to apply the proceeds thereof to any amounts owed by Customer
to Xxxxxx Xxxxxxx, borrow or buy any options, securities, Contracts or other
property for the Account and cancel any unfilled orders for the purchase or sale
of Contracts for the Account, or take such other or further actions Xxxxxx
Xxxxxxx, in its reasonable discretion, deems necessary or appropriate for its
protection, all without demand for margin and without notice or advertisement.
Any such action may be made at the discretion of Xxxxxx Xxxxxxx in any
commercially reasonable manner. In the event Xxxxxx Xxxxxxx'x position would not
be jeopardized thereby, Xxxxxx Xxxxxxx will make reasonable efforts under the
circumstances to notify Customer prior to taking any such action. A prior demand
or margin call of any kind from Xxxxxx Xxxxxxx or prior notice from Xxxxxx
Xxxxxxx shall not be considered a waiver of Xxxxxx Xxxxxxx'x right to take any
action without notice or demand. In the event Xxxxxx Xxxxxxx exercises any
remedies available to it under this Agreement, Customer shall reimburse,
compensate and indemnify Xxxxxx Xxxxxxx for any and all costs, losses,
penalties, fines, taxes and damages that Xxxxxx Xxxxxxx may incur, including
reasonable attorneys' fees incurred in connection with the exercise of its
remedies and the recovery of any such costs, losses, penalties, fines, taxes and
damages.
5. STANDARD OF LIABILITY AND INDEMNIFICATION.
(a) STANDARD OF LIABILITY. Xxxxxx Xxxxxxx and its affiliates
(as defined below) shall not be liable to Customer, the general partner or the
limited 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
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Customer pursuant to this Agreement which Xxxxxx Xxxxxxx determines, in
good faith, to be in the best interest of the Customer, unless such act,
omission, conduct, or activity by Xxxxxx Xxxxxxx or its affiliates constituted
misconduct or negligence. Without limiting the foregoing, Xxxxxx Xxxxxxx shall
have no responsibility or liability to Customer hereunder (i) in connection with
the performance or non-performance by 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.
(b) INDEMNIFICATION BY CUSTOMER. Customer shall indemnify,
defend and hold harmless Xxxxxx Xxxxxxx and its affiliates from and against any
loss, liability, damage, cost or expense (including attorneys' and accountants'
fees and expenses incurred in the defense of any demands, claims or lawsuits)
actually and reasonably incurred arising from any act, omission, conduct, or
activity undertaken by Xxxxxx Xxxxxxx on behalf of Customer, including, without
limitation, any demands, claims or lawsuits initiated by a limited partner (or
assignee thereof); PROVIDED that (i) Xxxxxx Xxxxxxx has determined, in good
faith, that the act, omission, conduct, or activity giving rise to the claim for
indemnification was in the best interests of the Customer, and (ii) the act,
omission, conduct or activity that was the basis for such loss, liability,
damage, cost or expense was not the result of misconduct or negligence.
Notwithstanding the foregoing, no indemnification of Xxxxxx Xxxxxxx or its
affiliates by Customer shall be permitted for any losses, liabilities or
expenses arising from or out of any alleged violation of federal or state
securities laws unless (i) there has been a successful adjudication on the
merits of each count involving alleged securities law violations as to the
particular indemnitee, or (ii) such claims have been dismissed with prejudice on
the merits by a court of competent jurisdiction as to the particular indemnitee,
or (iii) a court of competent jurisdiction approves a settlement of the claims
against the particular indemnitee and finds that indemnification of the
settlement and related costs should be made, PROVIDED with regard to such court
approval, the indemnitee must apprise the court of the position of the SEC and
the positions of the respective securities administrators of Massachusetts,
Missouri, Tennessee and/or those other states and jurisdictions in which the
plaintiffs claim that they were offered or sold Units, with respect to
indemnification for securities laws violations before seeking court approval for
indemnification. Furthermore, in any action or proceeding brought by a limited
partner in the right of Customer to which Xxxxxx Xxxxxxx or any affiliate
thereof is a party defendant, any such person shall be indemnified only to the
extent and subject to the conditions specified in the Delaware Revised Uniform
Limited Partnership Act, as amended, and this Section 5. The Customer shall make
advances to Xxxxxx Xxxxxxx or its affiliates hereunder only if: (i) the demand,
claim lawsuit or legal action relates to the performance of duties or services
by such persons to Customer; (ii) such demand, claim lawsuit or legal action is
not initiated by a limited partner; and (iii) such advances are
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repaid, with interest at the legal rate under Delaware law, if the person
receiving such advance is ultimately found not to be entitled to indemnification
hereunder.
(c) INDEMNIFICATION BY XXXXXX XXXXXXX. Xxxxxx Xxxxxxx shall
indemnify, defend and hold harmless Customer and its successors or assigns from
and against any losses, liabilities, damages, costs or expenses (including in
connection with the defense or settlement of claims; PROVIDED Xxxxxx Xxxxxxx has
approved such settlement) incurred as a direct result of the activities of
Xxxxxx Xxxxxxx or its affiliates, PROVIDED, FURTHER, that the act, omission,
conduct or activity giving rise to the claim for indemnification was the result
of bad faith, misconduct or negligence of Xxxxxx Xxxxxxx or its affiliates.
(d) LIMITATION ON INDEMNITIES. The indemnities provided in
this Section 5 by Customer to Xxxxxx Xxxxxxx and its affiliates shall be
inapplicable in the event of any losses, liabilities, damages, costs or expenses
arising out of, or based upon, any material breach of any agreement of Xxxxxx
Xxxxxxx contained in this Agreement to the extent caused by such event.
Likewise, the indemnities provided in this Section 5 by Xxxxxx Xxxxxxx to
Customer and 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.
(e) DEFINITION OF "AFFILIATE." As used in this Section 5, the
term "affiliate" of Xxxxxx Xxxxxxx shall mean: (i) any natural person,
partnership, corporation, association, or other legal entity directly or
indirectly owning, controlling, or holding with power to vote 10% or more of the
outstanding voting securities of Xxxxxx Xxxxxxx; (ii) any partnership,
corporation, association, or other legal entity 10% or more of whose outstanding
voting securities are directly or indirectly owned, controlled, or held with
power to vote by Xxxxxx Xxxxxxx; (iii) any natural person, partnership,
corporation, association, or other legal entity directly or indirectly
controlling, controlled by, or under common control with, Xxxxxx Xxxxxxx; or
(iv) any officer or director of Xxxxxx Xxxxxxx. Notwithstanding the foregoing,
"affiliates" for purposes of this Section 5 shall include only those persons
acting on behalf of Xxxxxx Xxxxxxx and performing services for Customer within
the scope of the authority of Xxxxxx Xxxxxxx, as set forth in this Agreement.
6. GENERAL AGREEMENTS. The parties agree that:
(a) XXXXXX XXXXXXX'X RESPONSIBILITY. Xxxxxx Xxxxxxx is not
acting as a fiduciary, foundation manager, commodity pool operator, commodity
trading advisor or investment adviser in respect of any Account opened by
Customer. Xxxxxx Xxxxxxx shall have no responsibility hereunder for compliance
with any law or regulation governing the conduct of fiduciaries, foundation
managers, commodity pool operators, commodity trading advisors or investment
advisers.
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
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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.
(b) ADVICE. All advice communicated by Xxxxxx Xxxxxxx with
respect to any Account opened by Customer hereunder is incidental to the conduct
of Xxxxxx Xxxxxxx'x business as a futures commission merchant and such advice
will not serve as the primary basis for any decision made by or on behalf of
Customer in respect of the Account, regardless of whether Customer relies on the
advice of Xxxxxx Xxxxxxx in making any such decision. Customer acknowledges that
Xxxxxx Xxxxxxx and its managing directors, officers, employees and affiliates
may take or hold positions in, or advise other customers concerning, Contracts
that are the subject of advice from Xxxxxx Xxxxxxx to Customer. The positions
and advice of Xxxxxx Xxxxxxx and its managing directors, officers, employees and
affiliates may be inconsistent with or contrary to positions of, and the advice
given by, Xxxxxx Xxxxxxx to Customer.
(c) RECORDING. 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.
(d) ACCEPTANCE OF ORDERS; POSITION LIMITS.
(i) Xxxxxx Xxxxxxx shall have the right to limit the size of
open positions (net or gross) of Customer with respect to the Account at any
time and to refuse acceptance of orders to establish new positions, whether such
refusal or limitation is required by, or based on position limits imposed under,
Applicable Law. Xxxxxx Xxxxxxx shall immediately notify Customer of its
rejection of any order. Unless specified by Customer, Xxxxxx Xxxxxxx may
designate the exchange or other markets (including, without limitation, GLOBEX
or ACCESS) on which it will attempt to execute orders.
(ii) Customer shall file or cause to be filed all
applications or reports required under Applicable Law with the CFTC or the
relevant contract market or 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.
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(e) ORIGINAL AND VARIATION MARGIN; PREMIUMS; OTHER CONTRACT
OBLIGATIONS. Customer shall make, or cause to be made, all applicable original
margin, intra-day margin and premium payments, and perform all other obligations
attendant to transactions or positions in such Contracts, as may be required by
Applicable Law or by Xxxxxx Xxxxxxx. Requests for margin deposits and/or premium
payments may, at Xxxxxx Xxxxxxx'x election, be communicated to Customer orally,
telephonically or in writing. Customer margin deposits and/or premium payments
shall be made by wire transfer to Xxxxxx Xxxxxxx'x Customer Segregated Account
and shall be in U.S. dollars unless Xxxxxx Xxxxxxx 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.
(f) SECURITY INTEREST AND RIGHTS RESPECTING COLLATERAL.
Except to the extent proscribed by Applicable Law not subject to waiver, all
Contracts, cash, securities, and/or any other property of Customer whatsoever
(collectively, the "Collateral") at any time held by Xxxxxx Xxxxxxx or its
affiliates, or carried by others for the Account, hereby are pledged to Xxxxxx
Xxxxxxx and shall be subject to a general lien and security interest in Xxxxxx
Xxxxxxx'x favor to secure any indebtedness or other amounts, obligations and/or
liabilities at any time owing from Customer to Xxxxxx Xxxxxxx (collectively, the
"Customer's Liabilities"). Customer hereby grants Xxxxxx Xxxxxxx the right to
borrow, pledge, repledge, hypothecate, rehypothecate, loan or invest any of the
Collateral 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.
(g) REPORTS AND OBJECTIONS. All confirmations, purchase and
sale notices, correction notices and account statements (collectively,
"Statements") shall be submitted to Customer and shall be conclusive and binding
on Customer unless Customer notifies Xxxxxx Xxxxxxx of any objection thereto
prior to the opening of trading on the contract market on which such transaction
occurred on the business day following the day on which Customer receives such
Statement; PROVIDED that, with respect to monthly Statements, Customer may
notify Xxxxxx Xxxxxxx of any objection thereto within five business days after
receipt of such monthly Statement, provided the objection could not have been
raised at the time any prior Statement was received by Customer as provided for
above. Any such notice of objection, if given orally to Xxxxxx Xxxxxxx, shall
immediately (and no later than within one business day) be confirmed in writing
by Customer.
(h) DELIVERY PROCEDURES; OPTIONS ALLOCATION PROCEDURE.
(i) Customer will provide Xxxxxx Xxxxxxx with instructions
either to liquidate Contracts previously established by Customer, make or
take delivery under any such Contracts, or exercise options entered into by
Customer, within such time limits as may be specified by Xxxxxx Xxxxxxx.
Xxxxxx Xxxxxxx shall have no responsibility to take any action on behalf of
Customer or positions in the Account unless and until Xxxxxx Xxxxxxx
receives oral or written instructions reasonably acceptable to Xxxxxx
Xxxxxxx indicating the action Xxxxxx Xxxxxxx is to take. Funds sufficient
to take delivery pursuant to such Contract or deliverable grade commodities
to make delivery pursuant to such Contract must be delivered to Xxxxxx
Xxxxxxx at such time as Xxxxxx Xxxxxxx may require in connection with any
delivery.
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(ii) Short option Contracts may be subject to exercise at any
time. Exercise notices received by Xxxxxx Xxxxxxx from the applicable
contract market with respect to option Contracts sold by Customer may be
allocated to Customer pursuant to a random allocation procedure, and
Customer shall be bound by any such allocation of exercise notices. In the
event of any allocation to Customer, unless Xxxxxx Xxxxxxx has previously
received instructions from Customer, Xxxxxx Xxxxxxx'x sole responsibility
shall be to use its best efforts to notify Customer of such allocation.
(iii) If Customer fails to comply with any of the foregoing
obligations, Xxxxxx Xxxxxxx may, in its sole and absolute discretion,
liquidate any open positions, make or receive delivery of any commodities
or instruments, or exercise or allow the expiration of any options, in such
manner and on such terms as Xxxxxx Xxxxxxx, in its sole and absolute
discretion, deems necessary or appropriate, and Customer shall indemnify
and hold Xxxxxx Xxxxxxx harmless as a result of any action taken or not
taken by Xxxxxx Xxxxxxx in connection therewith or pursuant to Customer's
instructions.
(i) FINANCIAL AND OTHER INFORMATION. Customer shall provide
to Xxxxxx Xxxxxxx such financial information regarding Customer as Xxxxxx
Xxxxxxx may from time to time reasonably request. Customer shall notify Xxxxxx
Xxxxxxx immediately (and no later than within one business day) if the financial
condition of Customer changes materially and adversely from that shown in the
most recent financial information theretofore provided to Xxxxxx Xxxxxxx. An
investigation may be conducted pertaining to Customer's credit standing and
business.
(j) CURRENCY EXCHANGE RISK. Customer shall bear all risk and
cost in respect of the conversion of currencies incident to transactions
effected on behalf of Customer pursuant hereto.
7. 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.
8. MISCELLANEOUS.
(a) SEVERABILITY. If any provision of this Agreement is, or at any time
becomes, inconsistent with any present or future law, rule or regulation of any
exchange or other market, sovereign government or regulatory body thereof, and
if any of these authorities have jurisdiction over the subject matter of this
Agreement, the inconsistent provision shall be deemed superseded or modified to
conform with such law, rule or regulation but in all other respects, this
Agreement shall continue and remain in full force and effect.
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(b) BINDING EFFECT. This Agreement shall be binding on and inure to the
benefit of the parties and their successors. Xxxxxx Xxxxxxx shall have the right
to transfer or assign this Agreement (and thereby the Account) to any successor
entity in its sole and absolute discretion and without obtaining the consent of
Customer.
(c) ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties and supersedes any prior agreements between the parties as
to the subject matter hereof. No provision of this Agreement shall in any
respect be waived, altered, modified, or amended unless such waiver, alteration,
modification or amendment is signed by the party against whom such waiver,
alteration, modification or amendment is to be enforced.
(d) CURRENCY DENOMINATION. Unless another currency is designated in the
confirmations reporting transactions entered into by Customer, all margin
deposits in connection with such transactions, and a debit or credit in the
Account, shall be stated in United States dollars, and margin requirements,
debits or credits expressed in another currency shall be converted into United
States dollars at a rate of exchange determined by Xxxxxx Xxxxxxx, in its sole
and absolute discretion, on the basis of the then prevailing money market rates
of exchange for such foreign currency.
(e) INSTRUCTIONS, NOTICES OR COMMUNICATIONS. Except as specifically
otherwise provided in this Agreement, all instructions, notices or other
communications may be oral or written. All oral instructions, unless custom and
usage of trade dictate otherwise, shall be promptly confirmed in writing. All
written instructions, notices or other communications shall be addressed as
follows:
(i) if to Xxxxxx Xxxxxxx:
Xxxxxx Xxxxxxx & Co. Incorporated
Xxx Xxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Commodity Operations Manager
(ii) if to Customer, at the address as indicated
on the Commodity Account Application.
(f) RIGHTS AND REMEDIES CUMULATIVE. All rights and remedies arising
under this Agreement as amended and modified from time to time are cumulative
and not exclusive of any rights or remedies which may be available at law or
otherwise.
(g) NO WAIVER. No failure on the part of Xxxxxx Xxxxxxx to exercise,
and no delay in exercising, any contractual right will operate as a waiver
thereof, nor will any single or partial exercise by Xxxxxx Xxxxxxx of any right
preclude any other or future exercise thereof or the exercise of any other
partial right.
(h) GOVERNING LAW. THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT
AND THE RIGHTS, OBLIGATIONS AND REMEDIES OF THE PARTIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CHOICE OF LAW.
(i) CONSENT TO JURISDICTION. ANY LITIGATION BETWEEN XXXXXX XXXXXXX AND
CUSTOMER RELATING TO THIS AGREEMENT OR TRANSACTIONS
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HEREUNDER SHALL TAKE PLACE IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE
BOROUGH OF MANHATTAN OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. CUSTOMER CONSENTS TO THE SERVICE OF PROCESS BY THE MAILING
TO CUSTOMER OF COPIES OF SUCH COURT FILING BY CERTIFIED MAIL TO THE ADDRESS OF
CUSTOMER AS IT APPEARS ON THE BOOKS AND RECORDS OF XXXXXX XXXXXXX, SUCH SERVICE
TO BE EFFECTIVE TEN DAYS AFTER MAILING. CUSTOMER HEREBY WAIVES IRREVOCABLY ANY
IMMUNITY TO WHICH IT MIGHT OTHERWISE BE ENTITLED IN ANY ARBITRATION, ACTION AT
LAW, SUIT IN EQUITY OR ANY OTHER PROCEEDING ARISING OUT OF OR BASED ON THIS
AGREEMENT OR ANY TRANSACTION IN CONNECTION HEREWITH.
(j) WAIVER OF JURY TRIAL. Customer hereby waives a trial by jury in any
action arising out of or relating to this Agreement or any transaction in
connection therewith.
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(k) CUSTOMER ACKNOWLEDGEMENTS.
(i) CUSTOMER HEREBY ACKNOWLEDGES THAT IT HAS RECEIVED AND
UNDERSTANDS THE FOLLOWING DISCLOSURE STATEMENT PRESCRIBED BY THE CFTC AND
FURNISHED HEREWITH (PLEASE INITIAL):
|x| 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)
(ii) 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.
XXXXXX XXXXXXX XXXX XXXXXX SPECTRUM GLOBAL BALANCED 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 6/6/00
---------------------------------------------------------------------
(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)
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