COMMODITY FUTURES CUSTOMER AGREEMENT
BETWEEN
▇▇▇▇ ▇▇▇▇▇▇ DIVERSIFIED FUTURES FUND LIMITED PARTNERSHIP
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
This Commodity Futures Customer Agreement ("Agreement"),
dated as of May 1, 2000 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇▇ Diversified Futures Fund Limited
Partnership ("Customer"), and acknowledged and agreed to ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., the non-clearing commodity broker for the
Customer ("DWR"), shall govern the purchase and sale by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ of commodity futures contracts and options thereon
(collectively, "Contracts") for the account and risk of Customer
through one or more accounts carried by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇; (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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of any change in such
information.
3. Payment and Interest Obligations.
(a) Compensation Payments to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
Customer shall pay ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇ with respect to the Account or any transactions therein.
DWR shall pay ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ such charges with respect to the
execution and clearing of trades for Customer as DWR and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ shall agree from time to time.
(b) Payment of Interest. The Customer's assets deposited with
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ customary practice for investment of
its futures customer funds. All of Customer's funds will be
available for margin for the Customer's trading. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
shall pay to DWR at each month-end interest on Customer's funds
in its possession as agreed between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and DWR from
time to time. The Customer understands that it will not receive
any interest income on its assets held by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ other
than that paid by DWR pursuant to the Customer's DWR Customer
Agreement. DWR shall pay ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ interest on any debit
balances in the Account at such rates as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and DWR
shall agree from time to time.
(c) Netting. The parties agree that all payment
obligations of Customer to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under this Agreement
and all payment obligations of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Customer under
this Agreement will be netted against each other to result in one
net payment amount.
4. Customer's Events Of Default; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in its sole and absolute
discretion, considers it necessary for its protection, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ shall have the right, in addition to any other remedy
available to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at law or in equity, and in addition
to any other action ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may ▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and to apply the
proceeds thereof to any amounts owed by Customer to ▇▇▇▇▇▇
▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in any commercially reasonable manner. In the
event ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ position would not be jeopardized thereby,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or
prior notice from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall not be considered a waiver
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ right to take any action without notice or
demand. In the event ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ exercises any remedies
available to it under this Agreement, Customer shall reimburse,
compensate and indemnify ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for any and all costs,
losses, penalties, fines, taxes and damages that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and its
affiliates (as defined below) shall not be liable to Customer,
the general partner of the Customer, or the limited partners of
the Customer "Limited Partners"), or any of its or their
respective successors or assigns, for any act, omission, conduct,
or activity undertaken or on behalf of the Customer pursuant to
this Agreement which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ determines, in good faith, to
be in the best interest of the Customer, unless such act,
omission, conduct, or activity by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or its
affiliates constituted misconduct or negligence. Without limiting
the foregoing, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and banks) to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
whether or not made or given at the request of Customer; (iii) as
a result of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ obligations hereunder directly or indirectly
caused by the occurrence of any contingency beyond the control of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or its floor brokers to comply
with Applicable Law; or (vi) for any acts or omissions of those
neither employed nor supervised by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In no event
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ be liable to Customer for consequential,
incidental or special damages hereunder.
(b) Indemnification by Customer. Customer shall
indemnify, defend and hold harmless ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of
Customer, including, without limitation, any demands, claims or
lawsuits initiated by a Limited Partner (or assignee thereof);
provided that (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
(c) Indemnification by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
has approved such settlement) incurred as a direct result of the
activities of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or its affiliates.
(d) Limitation on Indemnities. The indemnities
provided in this Section 5 by Customer to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
contained in this Agreement to the extent caused by such event.
Likewise, the indemnities provided in this Section 5 by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; (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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; (iii)
any natural person, partnership, corporation, association, or
other legal entity directly or indirectly controlling, controlled
by, or under common control with, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; or (iv) any
officer or director of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. Notwithstanding the
foregoing, "affiliates" for purposes of this Section 5 shall
include only those persons acting on behalf of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
performing services for Customer within the scope of the
authority of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as set forth in this Agreement.
6. General Agreements. The parties agree that:
(a) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ Responsibility. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ agrees to notify the
applicable trading advisor for the Customer (each a "Trading
Advisor") immediately upon discovery of any error committed by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any of its agents with respect to a trade for
the Customer's account which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall constitute errors made by ▇▇▇▇▇▇
▇▇▇▇▇▇▇. However, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall not be responsible for
errors committed by the Trading Advisors.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ agrees to report to DWR its own
errors and the errors of any Trading Advisor for the Account
which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ liability for its own errors beyond
that otherwise expressly set forth in this Agreement, nor does it
make ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in any way responsible for errors committed
by the Trading Advisors.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇ with respect to any Account opened by Customer hereunder
is incidental to the conduct of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in making any such decision.
Customer acknowledges that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Customer.
The positions and advice of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and its managing
directors, officers, employees and affiliates may be inconsistent
with or contrary to positions of, and the advice given by, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ to Customer.
(c) Recording. Each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the
Customer or DWR with respect to the Account and transactions
therein and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the Customer and DWR hereby
agrees and consents thereto.
(d) Acceptance of Orders; Position Limits.
(i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall
immediately notify Customer of its rejection of any order.
Unless specified by Customer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ with a copy of such
applications or reports and such other information as ▇▇▇▇▇▇
▇▇▇▇▇▇▇ may reasonably request in connection therewith.
(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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. Requests for margin
deposits and/or premium payments may, at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇
election, be communicated to Customer orally, telephonically or
in writing. Customer margin deposits and/or premium payments
shall be made by wire transfer to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ Customer
Segregated Account and shall be in U.S. dollars unless ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or its affiliates, or carried
by others for the Account, hereby are pledged to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and shall be subject to a general lien and security interest in
▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ favor to secure any indebtedness or other
amounts, obligations and/or liabilities at any time owing from
Customer to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (collectively, the "Customer's
Liabilities"). Customer hereby grants ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ the right
to borrow, pledge, repledge, hypothecate, rehypothecate, loan or
invest any of the Collateral held by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ set forth above shall be
qualified by any applicable requirements for segregation of
customers' property under Applicable Law. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ commits
to Customer that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will not issue a Notice of
Exclusive Control under the Control Agreement between ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and DWR unless ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have no responsibility
to take any action on behalf of Customer or positions in the
Account unless and until ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ receives oral or
written instructions reasonably acceptable to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
indicating the action ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at such
time as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may require in connection with any
delivery.
(ii) Short option Contracts may be subject to
exercise at any time. Exercise notices received by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ has previously received instructions from
Customer, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
in its sole and absolute discretion, deems necessary or
appropriate, and Customer shall indemnify and hold ▇▇▇▇▇▇
▇▇▇▇▇▇▇ harmless as a result of any action taken or not
taken by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in connection therewith or pursuant
to Customer's instructions.
(i) Financial and Other Information. Customer shall
provide to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ such financial information regarding
Customer as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may from time to time reasonably
request. Customer shall notify ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇. 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is required by a
regulatory authority to transfer the account to another futures
commission merchant or in the event that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ abandons
the Futures Commission Merchant ("FCM") business, then ▇▇▇▇▇▇
▇▇▇▇▇▇▇ shall have the right to terminate this Agreement by
written notice effective the date contained therein, provided
that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
(b) Binding Effect. This Agreement shall be binding
on and inure to the benefit of the parties and their successors.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇ to exercise, and no delay in exercising, any contractual
right will operate as a waiver thereof, nor will any single or
partial exercise by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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.
(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):
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 190.06 permits
you to specify whether, in the unlikely event of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇
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.
▇▇▇▇ ▇▇▇▇▇▇ Diversified Futures Fund Limited Partnership
("Customer")
By: Demeter Management Corporation, General Partner
(Signature) (Date)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and Chairman
(Name & Title - Please Print)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
(Signature) (Date)
W. ▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director
(Name & Title - Please Print)
Acknowledged and Agreed (as to Section 3(a) and (b))
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
(Signature) (Date)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
(Name & Title - Please Print)
