FUTURES AND OPTIONS ACCOUNT AGREEMENT
Exhibit 10.07
Xxxxxxx, Xxxxx & Co. | 00 Xxxxx Xxxxxx | Xxx Xxxx, Xxx Xxxx 00000 | Xxxxxxx | |||
Sachs | ||||||
FUTURES AND OPTIONS ACCOUNT AGREEMENT
XXXXXXX, XXXXX & CO.
00 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
00 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
ATTENTION: FUTURES SERVICES DEPARTMENT
The undersigned customer (“Customer”) agrees that all transactions that Xxxxxxx, Sachs &
Co. or any of its affiliates (collectively, “Goldman”, unless otherwise specified) may execute,
clear and/or carry on Customer’s behalf for the purchase or sale of futures contracts (“Futures
Contracts”) or options on Futures Contracts (“Option Contracts”), and any customer accounts
carried by Goldman in connection therewith (each, an “Account”), shall be subject to the terms and
conditions set forth in this agreement (the “Agreement”). Futures Contracts and Option Contracts
are referred to collectively in this Agreement as “Contracts”.
1. Applicable Law.
Each Account and Contract shall be subject to (i) the Commodity Exchange Act, as amended (the
“CEA”), and all rules and interpretations of the Commodity Futures Trading Commission (the “CFTC”)
and the National Futures Association (“NFA”); (ii) the constitution, by-laws, rules,
interpretations and customs of any applicable exchange or clearing organization (each of which is
referred to as an “Exchange”); and (iii) any other laws or rules applicable to Customer’s trading
of Contracts (collectively, “Applicable Law”). Neither Goldman nor any of its partners, officers,
employees or agents shall be liable as a result of any action taken by Goldman, or any clearing
brokers or floor brokers, to comply with Applicable Law.
2. General Agreements.
Customer acknowledges and agrees that:
(a) Xxxxxxx’x Responsibility. Goldman is responsible solely for the execution, clearing and/or
carrying of Contracts in each Account in accordance with the terms of this Agreement. Customer and
Customer’s advisor (“Advisor”), if any, are solely responsible for all investment and trading
decisions for the Account. Goldman is not acting as a fiduciary or advisor with respect
to Customer or any Contract or Account and Goldman shall have no responsibility for compliance
with any law or regulation governing the conduct of any such fiduciary or advisor or for
Customer’s compliance with any law or regulation governing or affecting Customer’s trading
hereunder.
(b) Advice and Positions. Any advice provided by Goldman with respect to any Account or
Contract is incidental to its business as a futures commission merchant (“FCM”) and such advice
shall not serve as a primary basis for any decision by or on behalf of Customer in respect of any
Contract or Account. Goldman makes no representation as to the
reliability, accuracy or completeness of such advice or any information on which it is based.
Goldman and its partners, officers, employees and agents may take or hold positions in, or advise
other customers with respect to, Contracts that are the subject of advice furnished by Goldman to
Customer, and such positions or advice may be inconsistent with any advice to Customer.
(c) Conclusiveness of Reports. All written and oral reports related to the Accounts, including
but not limited to confirmations, purchase and sale statements and monthly statements, given to
Customer shall be conclusive and binding on Customer unless Customer notifies Goldman of any
objection as follows: (i) in the case of any oral communication, at the time such report
is given to
Customer, and (ii) in the case of any written communication, before the opening of trading on
the business day following the day on which Customer received such written communication.
(d) Reliance on Instructions. Goldman shall be entitled to rely on any instruction, notice
or communication that it reasonably believes to have originated from Customer or Customer’s duly
authorized agent (including Customer’s Advisor, if any) and Customer shall be bound thereby.
(e) Financial and Other Information. Customer shall provide to Goldman such financial
and other information regarding Customer as Goldman may from time to time reasonably request.
Customer shall notify Goldman promptly of any material adverse changes to the financial condition
of Customer, regardless of whether Customer has previously furnished financial information to
Goldman.
(f) Floor Brokers and Clearing Brokers. Goldman, for and on behalf of Customer, is authorized
in its sole discretion to select floor brokers and, on Exchanges where Goldman is not a clearing
member, unaffiliated clearing brokers, which will act as brokers and agents in connection with
transactions in Contracts for the Accounts.
(g) Give-Ups. Absent a separate written agreement with Customer with respect to give-ups,
Goldman, in its sole discretion, may, but shall not be obligated to, accept from other brokers
Contracts executed by such brokers and to be given up to Goldman for clearance or carrying in any
Account.
(h) Limitation of Liability. Goldman shall not be liable for any loss, liability, expense,
fine or tax caused directly or indirectly by any events beyond Xxxxxxx’x control, including
without limitation any (i) governmental, judicial, Exchange or other self-regulatory organization
action or order, (ii) suspension or termination of trading, (iii) breakdown or failure of
transmission or communication facilities, or (iv) failure or delay by any Exchange to enforce its
rules or to pay or return any amounts owed to Goldman with respect to any Contracts executed
and/or cleared for Customer’s Accounts. In no event shall Goldman be liable for consequential,
incidental or special damages.
(i) Foreign Exchange Risk. Customer
acknowledges and agrees that, if Customer enters into a transaction in any Contract that is
denominated in a currency (the “Contract Currency”) other than the currency of Customer’s
jurisdiction, any profit or loss on such Contract arising from changes in the exchange rate between
the Contract Currency and the currency of Customer’s jurisdiction shall be for Customer’s Account
and risk.
(j) Transmission of Orders. If Customer has been approved by Goldman for the transmission of
orders directly to affiliates of Goldman located outside the United States (the “Affiliates”), for
execution and clearance on non-U.S. exchanges, Customer acknowledges and agrees that (i) it will
transmit orders directly to Affiliates identified by Goldman only in accordance with any conditions
or instructions furnished by Goldman and solely for Customer’s own Account, (ii) any orders
transmitted by Customer to an Affiliate will be executed and cleared through omnibus accounts
maintained by the appropriate Affiliate in the name of Goldman and not for an account of Customer
with the Affiliate, and (iii) notwithstanding its transmission of orders to the Affiliates,
Customer will continue to be a customer of Goldman and will not be a customer of the Affiliate. For
purposes of this Section 2(j), the term “Goldman” shall mean Xxxxxxx, Sachs & Co.
3. Margin and Other Obligations.
(a) Customer agrees to deposit and to maintain initial and variation margin and to make any
premium payments with respect to each Contract, in such form and in such amounts as may be required
from time to time by Applicable Law or by Goldman in its sole discretion. Customer acknowledges and
agrees that Goldman has no obligation to establish uniform margin, commission or fee requirements
and that margin requirements imposed by Goldman may exceed those of the applicable Exchange.
Customer further acknowledges and agrees that Goldman shall have the right, in accordance with
Applicable Law, to transfer or pledge margin deposited by Customer to any Exchange, or to transfer
or pledge other property to any Exchange in substitution for such margin, in order to satisfy
obligations incurred by Goldman on behalf of its customers, and that any such transfer,
pledge or substitution shall not diminish Customer’s obligations pursuant to Section 3(b) of this
Agreement.
(b) Customer also agrees to pay (i) all brokerage charges and commissions relating to each
Contract executed, cleared and/or carried by Goldman on Customer’s behalf or to any Account
maintained by Customer with Goldman, in each case in such manner and at such rates as may be agreed
upon by Customer and Goldman from time to time; (ii) all regulatory, Exchange and other self-regulatory fees, fines, penalties and charges, and any taxes, incurred or imposed with respect to
each Contract or Account; (iii) the amount of any trading loss, debit balance or deficiency in any
Account; (iv) the amount of any losses sustained by Goldman in connection with its execution and/or
clearing of Contracts for Customer’s Accounts hereunder, provided that such losses are not due to
the
negligence or willful misconduct of Goldman; and (v) interest on any debit balances or
deficiencies in any Account and on any monies advanced to Customer at the rates charged from time
to time to Xxxxxxx’x securities margin account customers.
(c) Customer acknowledges and agrees that Goldman may (but shall not be obligated to)
accept from Customer margin deposits in the form of cash or securities denominated in a currency
other than the Contract Currency (the “Base Currency”). In that event, Goldman shall determine
Customer’s margin requirements in the Base Currency on any day in a commercially reasonable manner
based on current exchange rates between the Base Currency and the Contract Currency.
Furthermore, Customer shall pay Xxxxxxx’x fees as in effect from time to time for Xxxxxxx’x deposit
of margin in the Contract Currency with the applicable Exchange.
(d) Customer hereby grants to Goldman the right to pledge, hypothecate, loan, invest or
substitute any margin delivered to Goldman from time to time without notice to Customer (i) in
accordance with Section 3(a) of this Agreement, and (ii) otherwise, to the extent permitted by
Applicable Law.
4. Exercises and Delivery.
(a) Customer agrees to give Goldman notice, not later than the time specified by Goldman and
in any event at least two days before the close of trading in the Contract in question, if Customer
intends to make or take delivery under any Futures Contract or to exercise any Option Contract.
Customer shall furnish Goldman with sufficient funds to take delivery pursuant to, or to exercise
and provide initial margin for, any such Contract and/or deliver to Goldman any property required
to be delivered by Customer under any such Contract at such time and in such manner as may be
required by Goldman.
(b) Certain Option Contracts sold by Customer are subject to exercise at any time. Exercise
notices received by Goldman from the applicable Exchange with respect to any Option Contract sold
by Xxxxxxx’x customers will be allocated among such customers (including Customer) pursuant to a
random allocation procedure and Customer shall be bound by any allocation made to it pursuant to
such procedure. Such notices may be allocated to Customer after the close of trading on the
day on which such notices have been allocated to Goldman by the applicable Exchange. Goldman shall
use reasonable efforts to contact Customer promptly upon its allocation of an exercise notice to
Customer.
(c) Goldman shall have no responsibility for any action that it takes or fails to take with
respect to any
Option Contracts (and, without limiting the foregoing, shall have no responsibility to
exercise any Option Contract purchased by Customer) unless and until Goldman receives acceptable
and timely instructions from Customer indicating the action to be taken.
5. Position Limits.
Goldman shall have the right, whenever in its discretion it deems it necessary, to limit the
size and number of open Contracts (net or gross) that Goldman will at any time execute, clear
and/or carry for Customer, to require Customer to reduce open positions carried with Goldman, and
to refuse acceptance of orders to establish new positions. Customer shall comply with all position
limit rules imposed by Applicable Law. Customer shall promptly notify Goldman if Customer is
required to file any position report with any regulatory or self-regulatory authority and shall
promptly file and provide Goldman with copies of any such report.
6. General Lien.
Customer agrees that all funds, securities, credit balances, Contracts and other property of
Customer (owned either individually or jointly with others or in which Customer has any interest),
and the proceeds thereof, that may from time to time be held by or on behalf of Goldman, or which
are, or may become, due to Customer or to Goldman for Customer’s Account (including amounts from
any Exchange or clearing broker in respect of any Contracts) and all rights Customer may have
against Goldman (collectively, “Collateral”) are hereby pledged to Goldman and shall be subject to
a general lien, security interest and right of set-off for the discharge of all Customer’s
obligations to Goldman. Customer further agrees that Goldman may, in exercising its rights
hereunder, deduct any amounts from Customer’s account and apply or transfer any of Customer’s
securities and other property interchangeably between any of Customer’s accounts, each of which
unreservedly guarantees all obligations of Customer. Customer acknowledges that Xxxxxxx, Xxxxx &
Co. and each of its affiliates act as agents for each other in respect of the rights subject the
lien as described above.
7. Customer Representations.
(a) Customer represents and warrants as of the date hereof and on the date of each
transaction executed hereunder that:
(i) Lawful Agreement.
Customer is duly authorized and empowered to execute and deliver this Agreement and to effect
purchases and sales of
Contracts through Goldman. Such transactions and this Agreement do not and will not violate
any Applicable Law, any judgment, order or agreement to which Customer or its property is subject
or by which it or its property is bound or any documents or instruments governing the investment
and trading activities of Customer. This Agreement is a valid and binding agreement of Customer,
enforceable against Customer in accordance with its terms. Customer has made and will make any
disclosures regarding its trading of Contracts which are required under Applicable Law.
(ii) Interest in or Control of Accounts. No person or entity other than Customer has, nor
during the term of this Agreement will have, any ownership interest of ten percent or more in any
Account, and no person other than Customer and Advisor, if any, has or will have any control over
any Account, except as otherwise disclosed to Goldman in writing.
(iii) CEA Registration Requirements. Customer has reviewed the registration requirements of
the CEA and the NFA pertinent to commodity pool operators and commodity trading advisors and has
determined that it and any person that has trading authority or control over any or all of its
Accounts are in compliance with such requirements.
(iv) Financial Information. Any financial or other information provided to Goldman by
Customer in connection with this Agreement is and will be accurate and complete in every material
respect.
(v) Employees of FCMs, Self-Regulatory Organizations or the CFTC. If Customer is an
individual, Customer is not a partner, officer, director, employee or owner of more than ten
percent of the equity interest of an FCM, an introducing broker or any self-regulatory
organization, or an employee of the CFTC, except as otherwise disclosed to Goldman in writing.
(vi) Compliance with the Federal Deposit Insurance Act. If Customer is an insured depository
institution subject to the Federal Deposit Insurance Act, Customer has taken all action and
maintained all such records required to be taken or maintained by it to effect and maintain the
enforceability of this Agreement pursuant to the Federal Deposit Insurance Act.
(b) Customer agrees to promptly notify Goldman in writing if any representation or warranty
made by Customer ceases to be accurate and complete in any material respect.
8. Customer Default.
(a) In the event that: (i) Customer defaults on any obligations to Goldman hereunder or
otherwise in respect of any transaction or agreement; (ii) Customer fails to deposit or maintain
required margin, fails to pay required premiums or fails to make any other payments required
hereunder or otherwise in respect of any Contract; (iii) any representation made by Customer or
Advisor (if any) is not or ceases to be accurate and complete in any material respect; (iv) a case
in bankruptcy is commenced or a proceeding under any insolvency or other law for the protection of
creditors or for the appointment of a receiver, trustee or similar officer is filed by or against
Customer or Customer makes or proposes to make any arrangement or composition for the benefit of
its creditors, or Customer or any of its property is subject to any agreement, order or judgment
providing for Customer’s dissolution, liquidation or reorganization, or for the appointment of a
receiver, trustee or similar officer of Customer or such property; (v) any warrant or order of
attachment is issued against any Account or a judgment is levied against any Account; or (vi)
Goldman, after notifying Customer and offering Customer the opportunity to provide adequate
assurances acceptable to Goldman within a reasonable period of time under the circumstances,
reasonably considers it necessary for its protection; then Goldman shall have the right, without
limitation, to (A) close out any or all of Customer’s open Contracts; (B) cancel any or all of
Customer’s outstanding orders; (C) treat any or all of Customer’s obligations due Goldman as
immediately due and payable; (D) set off any obligations of Goldman to Customer against any
obligations of Customer to Goldman; (E) sell any Collateral and/or set off and apply any Collateral
or the proceeds of the sale of any Collateral to satisfy any obligations of Customer to Goldman;
(F) borrow or buy any options, securities, Contracts or other property for any Account; and/or (G)
terminate any or all of Xxxxxxx’x obligations for future performance to Customer.
(b) So long as Xxxxxxx’x rights or position would not be jeopardized thereby, Goldman shall
make a good faith effort to notify Customer of its intention to take any of the actions specified
in (A) through (G) of Section 8(a) above before taking any such action, provided that Goldman
shall not be deemed to have breached any obligation to Customer if no such notice is given. Any
sale or purchase hereunder may be made in any manner determined by Goldman to be commercially
reasonable. It is understood that, in all cases, a prior demand or notice shall not be considered a
waiver of Xxxxxxx’x right to take any action provided for herein and that Customer shall be liable
for the payment of any deficiency remaining in each Account after any such action is taken,
together with interest thereon and all costs relating to liquidation and collection (including
reasonable attorneys’ fees).
9. Compensation for Losses.
Customer hereby agrees to compensate Goldman
and its partners, officers, employees and agents for any and all loss, liability or
cost penalty or tax incurred by Goldman as a result,
directly or indirectly, of Customer’s failure to comply with
any provision of, or to perform any obligation under, this
Agreement.
10. Communications.
(a) Unless otherwise specified in this Agreement, all reports, instructions and other
communications by any party to another under this Agreement may be oral or written. All
oral communications shall promptly be confirmed in writing.
(b) Any report, instruction or other communication transmitted pursuant to this Agreement
shall be transmitted to Customer at the address or telecopier or telephone number provided to
Goldman in writing or to Goldman at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Administrator, Futures Services Department, by telecopier at the number provided to Customer
or by telephone at (000) 000-0000 or at such other address or number as either party hereto
notifies each other party hereto in writing.
11. Severability.
If any provision of this Agreement is or at any time becomes inconsistent with or
invalid under any present or future Applicable Law, such inconsistent or invalid provision
shall be deemed to be superseded or modified to conform to such Applicable Law, but in all
other respects this Agreement shall continue in full force and effect.
12. Entire Agreement.
This Agreement constitutes the entire agreement between Customer, Advisor, if any, and
Goldman with respect to the subject matter hereof and supersedes any prior agreements between
the parties with respect to such subject matter. For purposes of this Section 12, the term
“Goldman” shall mean Xxxxxxx, Xxxxx & Co.
13. Termination.
This Agreement shall continue in force until written notice of termination is given in
accordance with Section 10 of this Agreement by Customer or Goldman. Termination of this
Agreement shall not affect any transaction entered into before receipt of notice of such
termination and shall not relieve any party hereto of any
obligations incurred before such receipt. Customer, upon giving or receiving notice of
termination, shall promptly take all action necessary either to close out all open positions in
any Account or to transfer all such positions to another FCM. Upon satisfaction by Customer of all
obligations to Goldman arising hereunder (including payment obligations with respect to the
transfer of Contracts to another FCM), Goldman shall transfer to the FCM specified by Customer all
Contracts, cash, securities and other property, then held for any Account, whereupon this
Agreement shall terminate.
14. Amendments or Waiver.
No provision of this Agreement shall in any respect be waived or modified unless such waiver
or modification is in writing and signed by authorized representatives of each of Goldman and
Customer. The rights and remedies of Goldman and Customer under this Agreement are cumulative and
no waiver or modification of this Agreement or of any such right or remedy may be inferred from
any failure by Goldman or Customer to exercise any right or remedy under this Agreement.
15. Successors; Binding Effect.
(a) This Agreement shall inure to the benefit of, and be binding upon, each of the parties and
their respective successors and assigns.
(b) This Agreement and the obligations of Customer hereunder may not be assigned or
delegated by Customer without the prior written consent of Goldman, and any purported assignment or
delegation without such consent shall be void. Goldman may not assign its rights nor delegate its
obligations under this Agreement, in whole or part, without the prior written consent of Customer,
and any purported assignment or delegation without such consent shall be void, except for an
assignment and delegation of all of Xxxxxxx’x rights and obligations hereunder in whatever form
Goldman determines may be appropriate to a partnership, corporation, trust or other organization in
whatever form that succeeds to all or substantially all of Xxxxxxx’x assets and business and that
assumes such obligations by contract, operation of law or otherwise. Upon any such assignment and
delegation of obligations, Goldman shall be relieved of and fully discharged from all obligations
hereunder, whether such obligations arose before or after such assignment and delegation.
16. Governing Law.
The construction, validity, performance and enforcement of this Agreement shall be governed
by the
laws of the State of New York (without giving effect to conflicts of law principles).
17. Consent to Jurisdiction.
Customer submits to the non-exclusive jurisdiction of the courts of the State of New York and
of the Federal courts in the Southern District of New York with respect to any proceeding arising
out of or relating to this Agreement or any transaction in connection herewith, and consents to the
service of process by the mailing to Customer of copies thereof by certified mail to the address of
Customer as it appears on the books and records of Goldman, such service
to be effective ten days after mailing. Customer hereby waives irrevocably (i) any objection to
the jurisdiction of any such court which it might otherwise be entitled to assert in any
proceeding arising out of or relating to this Agreement or any transaction in connection herewith;
and (ii) any defense of sovereign immunity or other immunity from suit or enforcement, whether
before or after judgment.
18. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
Acknowledgements. Customer hereby expressly acknowledges and agrees that Customer has
received, read and understood, and has retained a copy of, the “Risk Disclosure Statement for
Futures and Options”, which includes the disclosures required by CFTC Rules 1.55, 30.6, 33.7 and
190.10(c), together with a disclosure pursuant to CFTC Rule 1.46(e)(l) (and the related bankruptcy
election included in the attached hedging designation). (CUSTOMER MUST CHECK THE INDICATED SPACE
OR MAKE ANOTHER INDICATION.)
þ
Date: 1/25/06
|
||||
Name of Customer:
|
XXXXXXXX STRATEGIC ALLOCATION FUND, L.P. | |||
By/Signature:
|
/s/ Xxxxxxx X. Xxxxx | |||
Name:
|
||||
Title:
|
Chief Financial Officer | |||
Xxxxxxxx & Company, Inc., G.P. | ||||
By/Signature:
|
/s/ Xxxxxx X. Xxxxx | |||
Name:
|
Xxxxxx X. Xxxxx | |||
Title
|
General Counsel | |||
Xxxxxxxx & Company, Inc., G.P. |
APPENDIX I
(To be Completed by Employee Benefit Plan Customers)
(To be Completed by Employee Benefit Plan Customers)
If Customer is an employee benefit plan, Customer agrees that the following terms shall be
applicable to and shall constitute a part of the Futures and Options Account Agreement to which
this Appendix I is attached (the “Agreement”), and all capitalized terms used but not defined in
this Appendix I shall have the respective meanings assigned to such terms in the Agreement:
1. Additional Representations, Warranties and Agreements of Customer.
Customer makes the following representations and warranties in addition to those contained in
the text of the Agreement:
(a) Customer is a duly organized and validly existing employee benefit plan, as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and
either is subject to the requirements of Title I of ERISA or is a governmental plan, as
defined in Section 3(32) of ERISA.
(b) Customer is fully familiar with the requirements of ERISA, or the requirements of any
applicable state or other laws, as they relate to Customer and has determined that the purchase and
sale of Contracts by Customer is and will be in full compliance with the requirements (to the
extent applicable) of Section 404 of ERISA, including without limitation the “prudence”
and “diversification” requirements of Sections 404(a)(l)(B) and (C) of ERISA, or any similar
state or other law.
(c) The plan sponsor of Customer (if any) has not terminated the plan nor filed with the
Pension Benefit Guaranty Corporation (“PBGC”) a notice of intent to terminate the plan nor has a
reportable event within the meaning of Section 4043(b) of ERISA, or any similar event under any
applicable state or other law, occurred within the three-year period immediately preceding the date
of the Agreement.
2. Representations, Warranties and Agreements of Authorized Signatory.
The trustee (or, if more than one, each trustee of Customer) or, if there is no trustee, the
person authorized to execute the Agreement on behalf of Customer (each, an “Authorized Signatory”),
hereby represents and warrants to, and agrees in its individual capacity with, Goldman as follows:
(a) It is authorized and empowered to execute and deliver this Agreement on behalf of
Customer and this Agreement is a valid and binding agreement of Customer in accordance with its
terms.
(b) It
shall cause Customer to perform all of the agreements on Customer’s part to be
performed under the Agreement including, without limitation, its obligation to pay margin, fees,
commissions or other amounts when and as required by the Agreement, provided, however, that if
either a named fiduciary as defined in Section 402(a)(2) of ERISA with respect to Customer (a
“Named Fiduciary”) or an Advisor is separately identified as having been authorized by
Customer to manage the assets in the Account(s), Authorized Signatory shall perform all of
Customer’s agreements under the Agreement in accordance with and subject to the authorized and
lawful directions of such Named Fiduciary or Advisor.
(c) It has determined that the purchase and sale of Contracts by Customer does not and will
not violate any Applicable Law to which Customer or Customer’s property is subject or by which
Customer or Customer’s property is bound or any agreements, instruments or other documents
governing the investment and trading activities of Customer.
3. Representations, Warranties and Agreements of Named Fiduciary.
Named Fiduciary, if any, hereby represents and warrants to, and agrees with,
Goldman that:
(a) It is fully familiar with the requirements of ERISA (if applicable) as they relate to
Customer and to itself, or with the requirements of any applicable state or other laws, and it has
determined that the purchase and sale of Contracts by Customer is and will be in full compliance
with the requirements thereof, including but not limited to (to the extent applicable) the
“prudence” requirements of Section 404(a)(l)(B) of ERISA.
(b) It has been authorized and empowered to exercise discretion with respect to, and to act on
behalf of, Customer to effect the purchase and sale of Contracts through Goldman.
(c) It is either: (i) a commodity trading advisor registered as such pursuant to the CEA
and a member of the NFA and it either has furnished Customer with a copy of its commodity trading
advisor disclosure document, which disclosure document fully complies with the
requirements of CFTC Regulation 4.31 or it is exempt from being required to deliver such a
disclosure document to
Customer pursuant to CFTC Regulation 4.7; or (ii) not required to be registered as a
commodity-trading advisor.
4. Additional Customer Defaults.
The following events, in addition to those specified in clauses (i) through (vi) of Section
8(a) of the Agreement, shall constitute Customer defaults giving rise to all of the rights and
remedies of Goldman specified in Section 8 in
respect of the events specified in such clauses (i) through (vi) of Section 8(a):
(a) (i) Customer’s plan is terminated, or (ii) a notice of intent to terminate Customer’s plan
is filed with the PBGC, or (iii) a notice of the PBGC’s intent to terminate such plan is received
pursuant to Section 4042 of ERISA, or (iv) a reportable event within the meaning of Section
4043(c)(5) or 4043(c)(6) of ERISA, or (v) any similar event under any applicable state or other
laws has occurred.
(b) any of the events set forth in Section 8(a)(iv) of the Agreement occurs with respect to
any settlor of Customer or any plan sponsor of Customer.
Date:
Name of Customer: |
||
By/Signature: |
||
Title: |
Name of Named Fiduciary (if applicable): |
||
By/Signature: |
||
Title |
PLEASE SUPPLY COPIES OF ANY AND ALL DOCUMENTS REFLECTING CUSTOMER’S AUTHORITY TO TRADE FUTURES
CONTRACTS AND OPTION CONTRACTS, INCLUDING, AS APPLICABLE, COPIES OF CUSTOMER’S (I) TRUST AGREEMENT
OR SIMILAR INSTRUMENT OR (II) GOVERNING DOCUMENTS AND/OR GOVERNING LAW.
APPENDIX II
(To be Completed by Advisors to Employee Benefit Plan Customers)
(To be Completed by Advisors to Employee Benefit Plan Customers)
If Customer is an employee benefit plan and has appointed an Advisor in relation to the
Accounts, Advisor makes the representations and warranties set forth below, which are applicable
to, and for all purposes shall constitute a part of, the Futures and Options Account Agreement to
which this Appendix II is attached (the “Agreement”), and all capitalized terms used but not
defined in this Appendix II shall have the respective meanings assigned to such terms in the
Agreement:
(a) Advisor has been duly and properly authorized to exercise any of Customer’s
rights with respect to its Account, including but not limited to the right to provide trading
instructions for Contracts to be executed, cleared and/or carried for Customer’s Account and to
provide and receive notices and other communications with respect to such Account.
(b) Advisor is registered with the CFTC as a commodity trading advisor or is not
required to be so registered.
(c) Advisor has provided Customer with a copy of Advisor’s current disclosure document
or a written statement that Advisor is exempt from the requirement to provide such disclosure
document.
(d) Advisor has provided and will continue to provide Customer with an explanation of the
nature and risks of the strategies to be used in connection with transactions to be executed for
any Account.
(e) Advisor shall cause Customer to take such action in respect of any Account as is required
of Customer under this Agreement.
(f) Advisor is fully familiar with the requirements of ERISA (if applicable) as they relate to
Customer and to itself, or with the requirements of any applicable state or other laws, and it has
determined that the purchase and
sale of Contracts by Customer is and will be in full compliance with the requirements
thereof, including but not limited to (to the extent applicable) the “prudence” requirement of
Section 404(a)(l)(B) of ERISA.
(g) If Customer is subject to the requirements of Title I of ERISA, Advisor represents and
warrants that it is an investment manager as defined in Section 3(38) of ERISA (if applicable)
with respect to Customer.
(h) If Customer is subject to the requirements of Title I of ERISA, Advisor represents and
warrants that it is a qualified professional asset manager, as defined in Prohibited Transaction
Class Exemption 84-14, as amended (“PTCE 84-14”), issued by the Department of Labor pursuant to
ERISA and, with respect to each transaction that it directs Goldman to take on behalf of Customer:
(i) it is not related to Xxxxxxx and Xxxxxxx does not have (and has not during the year immediately
preceding such transaction exercised) the power to appoint it as investment manager for Customer or
terminate such relationship or negotiate the terms of the management agreement between the Customer
and it; (ii) neither it nor any of its related persons has been convicted of a crime enumerated in
Section I(g) of PTCE 84-14 within the prior ten years; and (iii) the assets of Customer under its
management when combined with assets of other plans established or maintained by the same employer
and managed by it do not represent more than 20% of the total client assets under its management.
Date: |
||
Name of Customer: |
||
(Customer must be identified, but need not sign this Appendix) | ||
Name of Advisor: |
||
By/Signature: |
||
Name: | ||
Title: | ||
Address:
|
Telephone: | |||||||
Telecopier: | ||||||||
APPENDIX III
(To be completed by Advisors to non-Employee Benefit Plan Customers)
(To be completed by Advisors to non-Employee Benefit Plan Customers)
If Customer has appointed an Advisor in relation to the Accounts, Advisor makes the
representations and warranties set forth below, which are applicable to, and for all purposes
shall constitute a part of, the Futures and Options Account Agreement to which this Appendix
III is attached (the “Agreement”), and all capitalized terms used but not defined in this
Appendix III shall have the respective meanings assigned to such terms in the Agreement:
(a) Advisor has been duly and properly authorized to exercise any of Customer’s rights
with respect to its Account, including but not limited to the right to provide trading instructions
for Contracts to be executed, cleared and/or carried for Customer’s Account and to provide and
receive notices and other communications with respect to such Account.
(b) Advisor is registered with the CFTC as a commodity trading advisor or is not
required to be so registered.
(c) Advisor has provided Customer with a copy of Advisor’s current disclosure document or a
written
statement that Advisor is exempt from the requirement to provide such disclosure document.
(d) Advisor has provided and will continue to provide Customer with an explanation of the
nature and risks of the strategies to be used in connection with transactions to be executed for
any Account.
(e) Advisor shall cause Customer to take such action in respect of any Account as is required
of Customer under this Agreement.
Date: 1/25/06
Name of Customer: XXXXXXXX STRATEGIC ALLOCATION FUND, L.P.
|
||
(Customer must be identified, but need not sign this Appendix) | ||
Name
of Advisor: XXXXXXXX & COMPANY, INC.
|
By/Signature: | /s/ Xxxxxxx X. Xxxxx | |||||
Name: | Xxxxxxx X. Xxxxx | |||||
Title: | Chief Financial Officer | |||||
Xxxxxxxx & Company, Inc. | ||||||
By/Signature: | /s/ Xxxxxx X. Xxxxx | |||||
Name: | Xxxxxx X. Xxxxx | |||||
Title: | General Counsel | |||||
Xxxxxxxx & Company, Inc. |
Address:
|
000 X. XXXXXXXXXXXX XXXXXX XXXXX 000 XXXXXX, XX 00000 |
Telephone: Telecopier: |
410.296.3301 410.296.3311 |
Xxxxxxx, Sachs & Co. | 00 Xxxxx Xxxxxx | Xxx Xxxx, Xxx Xxxx 00000 | Goldman | |||
Tel: 000-000-0000 | Sachs | |||||
FULL TRADING AUTHORIZATION
ATTENTION: FUTURES SERVICES DEPARTMENT
This full trading authorization relates to the Futures and Options Account Agreement
(the “Customer Agreement”) entered into between Xxxxxxx, Xxxxx & Co. (“Goldman”) and the
customer identified below (“Customer”).
Customer hereby authorizes the advisor identified below (“Advisor”) as its agent and
attorney in fact to purchase and sell futures contracts and/or options on futures contracts
traded on exchanges (collectively, “Contracts”), to transfer or arrange for the transfer of
money, securities or other property to or from any and all accounts carried by you on behalf
of Customer (the “Accounts”) and to make or receive delivery of the commodities underlying the
Contracts traded by Advisor on Customer’s behalf, all in accordance with your terms and
conditions as set forth in the Customer Agreement, for Customer’s account and risk and in
Customer’s name. You are authorized and instructed to follow the instructions of the Advisor
in every respect concerning the Accounts, as set forth in the Customer Agreement and to act or
refrain from acting in accordance with such instructions to the same extent and with the same
force and effect as if such instructions were given by Customer directly.
Customer hereby ratifies and confirms any and all transactions with you heretofore or
hereafter made by Advisor for the Accounts.
Customer acknowledges that: (i) Customer has given Advisor the authority to exercise any
of Customer’s rights over its Accounts at Customer’s risk, and Goldman is authorized to act,
or omit to act, upon any communication or instruction of Advisor as though given by Customer;
(ii) any communication or notice given to Advisor by Goldman or received from Advisor by
Goldman shall be deemed to have been given to, or received from, Customer, as the case may
be, and any instruction or action of Advisor shall be deemed to constitute the instruction or
action of Customer; and (iii) it has received and read a copy of Advisor’s current disclosure
document or a written statement from Advisor that Advisor is exempt from the requirement to
provide such a disclosure document.
This authorization (a) shall be continuing and shall remain in full force and effect
until your receipt of written notice of Customer’s revocation thereof (provided, however,
that such revocation shall not be effective with respect to open positions or outstanding
orders submitted by the Advisor but not yet executed); (b) shall inure to the benefit of you
and your successors; (c) shall be binding upon Customer, its successors and legal
representatives; and (d) is in addition to (and in no way limits or restricts) any rights
which you may have under the Customer Agreement or any other agreement or agreements between
Customer and you.
XXXXXXXX & COMPANY, INC.
|
XXXXXXXX STRATEGIC ALLOCATION FUND, L.P, | |
Advisor Name:
|
Customer Name: |
By:
|
/s/ Xxxxxx X. Xxxxx | By: | /s/ Xxxxxxx X. Xxxxx | |||||
Name:
|
Xxxxxx X. Xxxxx | Name: | Xxxxxxx X. Xxxxx | |||||
Title:
|
General Counsel | Title: | Chief Financial Officer | |||||
Xxxxxxxx & Company, Inc. | Xxxxxxxx & Company, Inc., G.P. | |||||||
By:
|
/s/ Xxxxxxx X. Xxxxx | By: | /s/ Xxxxxx X. Xxxxx | |||||
Name:
|
Xxxxxxx X. Xxxxx | Name: | Xxxxxx X. Xxxxx | |||||
Title:
|
Chief Financial Officer | Title: | General Counsel | |||||
Xxxxxxxx & Company, Inc. | Xxxxxxxx & Company, Inc., G.P. | |||||||
1/25/06 | 1/25/06 | |||||||
Date: | Date: |
Xxxxxxx, Sachs & Co. | 00 Xxxxx Xxxxxx | Xxx Xxxx, Xxx Xxxx 00000 | Xxxxxxx | |||
Sachs | ||||||
HEDGING ACCOUNT DESIGNATION
ATTENTION: FUTURES SERVICES DEPARTMENT
This hedging account designation relates to the Futures and Options Account Agreement
(the “Customer Agreement”) entered into between Xxxxxxx, Xxxxx & Co. (“Goldman”) and the customer
identified below (“Customer”).
Each order by Customer to buy or sell any Futures Contracts or Option Contracts in the
Account(s) or sub-accounts(s), unless otherwise designated in writing to Goldman, will be a
hedging, arbitrage, spreading or risk management transaction not subject to speculative position
limit rules and speculative margin requirements under applicable exchange rules.
If Customer gives Goldman an order to buy or sell a Futures Contract or Option Contract that
does not constitute a transaction described above, Customer shall so advise Goldman in advance.
CFTC regulations require Goldman to provide each hedge customer the opportunity to issue
instructions to liquidate or transfer to another futures commission merchant all hedging positions
in the unlikely event that Goldman
becomes bankrupt. Please check the appropriate box to indicate if Customer prefers liquidation /___
/ or
transfer /___/ of all Customer’s hedging positions in the event of Xxxxxxx’x bankruptcy. Customer
acknowledges that
no assurance can be given that any hedging positions will be transferred even if Customer
has given such instruction. If neither box is checked, Customer will be deemed to have chosen to
have all Customer’s hedging positions liquidated.
Date: | Customer Name: | |||||
By: | ||||||
Title: |
Xxxxxxx, Xxxxx & Co. | 00 Xxxxx Xxxxxx | Xxx Xxxx, Xxx Xxxx 00000 | Xxxxxxx | |||
Sachs | ||||||
AUTHORIZATION TO TRANSFER FUNDS
ATTENTION: FUTURES SERVICES DEPARTMENT
This authorization to transfer funds relates to the Futures and Options Account
Agreement (the “Customer Agreement”) entered into between Xxxxxxx, Xxxxx & Co.
(“Goldman”) and the customer identified below (“Customer”).
Customer should sign below if Customer (i) maintains one or more other accounts
(such as a securities, cash or margin account) at Goldman and (ii) wants to permit
Goldman to transfer funds to any of those other accounts without obtaining specific
instructions in each case.
Without limiting or modifying the general provisions of the Customer Agreement,
Customer hereby specifically authorizes Goldman, until further notice in writing, to
transfer from Customer’s regulated commodity account (whether a segregated account or
a secured account) to any other account Customer may maintain with Goldman or its
affiliates such amount of excess funds as in Xxxxxxx’x judgment may be necessary at
any time to avoid a margin call or to reduce the debit balance in said other account,
or to satisfy any other obligations of Customer to Goldman or its affiliates. Goldman
will notify customer of any transfer of funds made pursuant to this authorization
within a reasonable time after each transfer.
1/25/06
|
XXXXXXXX STRATEGIC ALLOCATION FUND, L.P. | |||
Date:
|
Customer Name: |
By: | /s/ Xxxxxxx X. Xxxxx | |||||
Name: | Xxxxxxx X. Xxxxx | |||||
Title: | Chief Financial Officer | |||||
Xxxxxxxx & Company, Inc., G.P. | ||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: | Xxxxxx X. Xxxxx | |||||
Title: | General Counsel | |||||
Xxxxxxxx & Company, Inc., G.P. |
AUTHORIZATION TO TAKE OTHER SIDE OF TRANSACTIONS
Customer authorizes Xxxxxxx, Xxxxx & Co. and each of its partners,
directors, officers, employees, agents, and any floor broker acting on Customer’s
behalf in any transaction, without prior notice to Customer, to 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 the Commodity Exchange Act and the
rules and regulations promulgated thereunder, and applicable Exchange rules.
1/25/06
|
XXXXXXXX STRATEGIC ALLOCATION FUND, L.P. | |
Date:
|
Customer Name: | |
By: | /s/ Xxxxxxx X. Xxxxx | |||||
Name: | Xxxxxxx X. Xxxxx | |||||
Title: | Chief Financial Officer | |||||
Xxxxxxxx & Company, Inc., G.P. | ||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: | Xxxxxx X. Xxxxx | |||||
Title: | General Counsel | |||||
Xxxxxxxx & Company, Inc., G.P. |
CERTIFIED RESOLUTIONS
AUTHORIZING THE EXECUTION AND DELIVERY
OF A FUTURES AND OPTIONS ACCOUNT AGREEMENT
AUTHORIZING THE EXECUTION AND DELIVERY
OF A FUTURES AND OPTIONS ACCOUNT AGREEMENT
The
undersigned being [the] [an] [Assistant] Secretary* of , a corporation duly
organized and existing under the laws of (the “Corporation”), does hereby certify to Xxxxxxx,
Xxxxx & Co. as follows:
1. | That at a meeting of the Board of Directors of the Corporation duly held on the___day of , 19 ___, at which a quorum was present and acting throughout, the following resolutions were duly adopted and are still in full force and effect: | |
RESOLVED, that it is in the best interests of this Corporation to enter to a Futures and Options Account Agreement (the “Customer Agreement”) with Xxxxxxx, Sachs & Co. (“Goldman”) with respect to the purchase and sale of futures contracts and options on futures contract (collectively “Contracts”) in the form presented at this meeting; | ||
FURTHER RESOLVED, that each of the officers of the Corporation listed below be and each hereby is authorized and empowered to execute and deliver on behalf of this Corporation the Customer Agreement, together with any and all other agreements or documents which are required by Goldman in connection therewith: | ||
Name: Title: |
; | ||
; | ||
; | ||
; | ||
FURTHER RESOLVED, that said officers be and each hereby is authorized and empowered to
authorize persons to act on behalf of this Corporation in connection with the purchase and sale
of Contracts and otherwise to act on behalf of this Corporation pursuant to the Customer
Agreement and to execute any agreements, acknowledgements, documents and instruments as may be
necessary or appropriate to implement these resolutions;
FURTHER RESOLVED, that the Secretary or an Assistant Secretary of this Corporation be and each
hereby is authorized, empowered and directed to certify to Goldman a true copy of these
resolutions, a certificate (which, if required by Goldman, shall be accompanied by an opinion of
counsel for this Corporation) that this Corporation is duly organized and existing, that it is
empowered to enter into transactions of the types contemplated by the Customer Agreement, and
that these resolutions are not in conflict with this Corporation’s certificate of incorporation
or by-laws or of any statute, rule, regulation, judgment, order, decree, agreement or
undertaking to which this Corporation is subject or by which it is bound.
2. | That the signature or signatures of any of the officers listed above on the Customer Agreement are their genuine signatures. |
3. | That the undersigned has been duly authorized to make and deliver this certificate on behalf of the Corporation. |
IN WITNESS WHEREOF, I have executed this certificate this___ day of___ , 19___. |
Name: | ||||||
[Seal]
|
Title: |
* | Please note that the person who certifies these resolutions may not be one of the individuals identified as persons authorized to sign the Customer Agreement or to give instructions under the Customer Agreement. |
Xxxxxxx, Xxxxx & Co. | 00 Xxxxx Xxxxxx | Xxx Xxxx, Xxx Xxxx 00000 | Xxxxxxx | |||
Sachs |
SUBORDINATION AGREEMENT
(To be executed only by Customers Providing Currencies other than U.S. Dollars for
Trading on United States Exchanges)
(To be executed only by Customers Providing Currencies other than U.S. Dollars for
Trading on United States Exchanges)
ATTENTION: FUTURES SERVICES DEPARTMENT
This Subordination Agreement relates to the Futures and Options Account Agreement entered
into between Xxxxxxx, Xxxxx & Co. (“Goldman”) and the customer identified below (“Customer”).
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 would hinder or prevent the availability of these funds for
distribution to customers. Such accounts also may be subject to foreign currency exchange rate
risks.
By signing the acknowledgement 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 must further agree that his claims based on such funds will be
subordinated as described below in the unlikely event both of the following conditions are met:
(l)the customer’s futures commission merchant 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 signing the acknowledgement below, Customer agrees that if both of the conditions listed
above occur, Customer’s claim against the futures commission merchant’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 the futures commission
merchant.
ACKNOWLEDGED AND AGREED: | ||||||
Date:
|
Customer Name: | |||||
By: | ||||||
Title: |