AMENDED AND RESTATED COMMODITY FUTURES CUSTOMER AGREEMENT

Applicable Law.  The Account and all Contracts, transactions and agreements in respect of the Account shall be subject to the Commodity Exchange Act (“CEA”) and the rules, regulations, rulings, advisories and interpretations of the Commodity Futures Trading Commission (“CFTC”), the National Futures Association (“NFA”), exchanges, contract markets and clearing organizations where any transaction in the Account is executed and/or cleared by Morgan Stanley or Morgan Stanley’s designated agents hereunder.  All such laws, rules, regulations, rulings, advisories and interpretations, as in effect from time to time, are hereinafter collectively referred to as “Applicable Law.”

Customer’s Representations and Warranties.  At the time of entering into this Agreement and again upon the entry into any Contracts or transactions under this Agreement, Customer represents, warrants and covenants 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 Morgan Stanley; (d) performance of this Agreement and of transactions entered into pursuant to this Agreement will not violate any Applicable Law to which Customer is subject or any agreement to which Customer is subject or a party, except to the extent such violation does not cause a material adverse effect to the Customer’s business; (e) performance of this Agreement and of transactions entered into pursuant to this Agreement will comply with Customer’s Constitutive Documents, except to the extent such failure to comply does not cause a material adverse effect to the Customer’s business; (f) all of Customer’s information in the Account Application preceding this Agreement (which Application and the information contained therein is hereby incorporated into this Agreement) is true and correct in all material respects and Customer shall promptly notify Morgan Stanley of any material change in such information; (g) if Customer is domiciled or resident in any Province of Canada, Customer is (i) a company or person, other than an individual, that is an “accredited investor” as defined in section 1.1 of National Instrument 45-106 — Prospectus and Registration Exemptions; or (ii) a person or company deemed to be a “designated institution” under subsection 204(1) of Ontario Regulation 1015 — General Regulation made under the Securities Act (Ontario); (h) if Customer is domiciled or resident in the Province of Québec, Canada, Customer is an “accredited counterparty” under Section 3 of the Québec Derivatives Act; (i) to the extent required under Applicable Law as a regulatory prerequisite to the execution or clearing of any Contract for its Account, Customer is an “eligible contract participant” as defined under Section 1a(18) of the CEA and (j) if Customer enters into any OTC agricultural swap transaction for the purpose of clearing such transaction in the Account, Customer is and will remain during the term of any such transaction an eligible swap participant within the meaning of Rule 35.1(b)(2) of the rules of the CFTC (“CFTC Rules”).  “Constitutive Documents” means any (i) incorporating documents, including any articles of incorporation or unanimous shareholders’ agreement, (ii) partnership agreement, (iii) trust deed, agreement or declaration, (iv) by-laws, (v) plan documents, including any statement of investment policies and procedures, in the case of an employee benefit plan, pension plan or master trust in which the assets of a pension plan are invested, and (vi) prospectus or offering memorandum and annual information form, all as applicable, and as amended, replaced, or supplemented from time to time, together with any attachments, schedules, exhibits and documents incorporated by reference.

Payment Obligations Of Customer.  Customer shall pay Morgan Stanley upon demand (a) all brokerage charges, give-up fees, commissions and service fees as Morgan Stanley and Customer may from time to time agree; (b) all exchange, clearing house, NFA or other regulatory fees or charges; (c) any tax imposed on Customer’s transactions hereunder by any competent taxing authority; (d) any debit balance or deficiency in the Account, including margin obligations in respect of the Account arising under Section 6(e) hereof; (e) interest on any debit balances or deficiencies in the Account, at rates agreed from time to time between the parties; and (f) any other amounts owed by Customer to Morgan Stanley with respect to the Account or any transactions therein.

 

Customer’s Events Of Default; Morgan Stanley’s Remedies.

 

Events of Default.   As used herein, any of the following is an “Event of Default”:

 

(i)

the commencement of a proceeding under any bankruptcy, insolvency, arrangement or reorganization regime existing under Applicable Law or the institution of any other relief under bankruptcy or insolvency law or other similar law affecting creditors’ rights, or the filing or presentation of a petition for the appointment of a receiver by or against Customer or for the Customer’s winding up or liquidation, an assignment, arrangement or composition made by Customer with or for the benefit of creditors, Customer becomes insolvent or is unable to pay its debts or fails or makes an admission in writing that it is insolvent or is unable to pay its debts when they mature, or the suspension by Customer of its usual business or any material portion thereof, provided that a proceeding seeking a judgment of insolvency or bankruptcy against Customer that is instituted by a person other than Customer or an affiliate of Customer or a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over the Customer shall constitute an Event of Default hereunder only if, and at such time as, such proceeding results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation or is not dismissed or withdrawn within 30 calendar days of being instituted;

 

(ii)

the issuance of any warrant or order of attachment against the Account or the levy of a judgment against the Account;

 

(iii)

Customer (a) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (b) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); (c) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or similar official for it or for all or substantially all of its assets; (d) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; (e) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (i), (ii) or (iii) above or (f) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts;

 

(iv)

if Customer is an employee benefit plan or other pension fund (or administrator or trustee of such a plan, fund or master trust in which the fund assets are invested), (A) any step is taken by Customer, any governmental authority or body or regulator, or other person to terminate, wind-up or liquidate Customer, the fund or the plan, in whole or in part; (B) any event or condition occurs or exists that would entitle any court or regulator to require the termination, wind-up or liquidation of Customer, the fund or the plan, in whole or in part, or the termination or close-out of any Contract; (C) Customer is unable to pay benefits under the relevant employment or pension benefit plan when due; (D) Customer or any other person does anything or takes any action or step to merge, consolidate or combine the fund with any other pension fund or its assets, whereby assets are transferred from the fund or are to become available for the payment of any liabilities of the other fund without the consent of Morgan Stanley;

 

(v)

if Customer is a trust or investment fund, (A) any step is taken by Customer or any governmental authority to terminate, wind-up or liquidate Customer or the fund; or (B) any event or condition occurs or exists that would entitle any court or regulator to require the termination, wind-up or liquidation of Customer or the fund or to issue a cease trade order in respect of Customer, in whole or in part, or the termination or close-out of any Contract;

 

(vi)

the failure by Customer to deposit or maintain margin or to pay required premiums in accordance with Section 6(e) hereof, or otherwise to make payments required by Section 3 hereof;

 

(vii)

Customer is in default, or an event of default exists, with respect to any material obligation or liability (including the failure to make a payment on demand or to satisfy margin requirements) arising under any agreement styled as Customer Documents (Eligible Counterparty / Professional Client) (Including Exchange – Traded Derivatives) between Morgan Stanley & Co. International plc and Customer (for the avoidance of doubt, the term “Customer” as used herein shall refer to an individual investment vehicle alone and no affiliates of such vehicle);

 

(viii)

Customer is suspended from membership of, or participation in, any exchange, clearing house or self-regulatory organization, or suspended from dealings in Contracts by any government agency or self-regulatory organization, or by act of any judicial authority;

 

(ix)

Morgan Stanley determines in good faith and a commercially reasonable manner that any material representation or warranty or covenant made by Customer to Morgan Stanley is untrue or inaccurate in any material respect, and following Morgan Stanley providing notice to Customer regarding such representation and Customer failing to cure such matter within three Business Days following such notice; and

 

(x)

the failure by Customer to perform, in any material respect, its other obligations hereunder and following Morgan Stanley providing notice to Customer regarding such performance and Customer failing to cure such matter within three Business Days following such notice.

Remedies.  Upon the occurrence of an Event of Default, Morgan Stanley shall have the right, in addition to any other remedy available to Morgan Stanley at law or equity, to (i) buy, sell or otherwise liquidate any or all open Contracts held in or for the Account (including without limitation through the making or taking of delivery, the use of exchange-for-physical, exchange-for-swap, exchange-for-risk, exchange-for-options or exchange-for-related-positions transactions, block trades, any associated cash transactions as broker or principal, or any other means); (ii) set off or apply any or all cash margin held in or for the Account to any amount owed by Customer to Morgan Stanley; (iii) sell any or all of the securities or other property of Customer held in or for the Account and to apply the proceeds thereof to any amounts owed by Customer to Morgan Stanley; (iv) borrow or buy any options, securities, Contracts or other property for the Account; or (v) cancel any unfilled orders for the purchase or sale of Contracts for the Account, all without demand for margin and without notice or advertisement and to the full extent permitted under Applicable Law.  In exercising its remedies hereunder, Morgan Stanley may in its sole discretion and without prior notice to Customer (A) straddle or spread open positions in the Account; (B) switch positions to another month, commodity or exchange; (C) close out positions in whole or in part, or limit and/or terminate the right of Customer to trade in the Account, other than for liquidation; (D) sell Contracts to itself or its affiliates or buy Contracts from itself or its affiliates in arms-length transactions; (E) purchase the whole or any part of open positions in the Account free from any right of redemption, and, in each case, Customer shall remain liable for any resulting deficiency.  In the event Morgan Stanley’s position would not be jeopardized thereby, Morgan Stanley 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 Morgan Stanley or prior notice from Morgan Stanley shall not be considered a waiver of Morgan Stanley’s right to take any action without notice or demand.

Set-off Rights.  Upon the occurrence of an Event of Default, in addition to and not in limitation of any other right or remedy (including any right to set-off, counterclaim, or otherwise withholding of payment) under any agreement or Applicable Law, Morgan Stanley will at its option have the right, at any time and from time to time, without prior notice to Customer, to set-off any sum or obligation (whether or not vested or contingent and whether or not such sum or obligation is then due and payable) owed by Customer to Morgan Stanley against any sum or obligation (whether or not vested or contingent and whether or not such sum or obligation is then due and payable) owed by Morgan Stanley or any affiliate of Morgan Stanley (the “Original Obligation”) to Customer and, for this purpose, may convert one currency into another at the commercially reasonable rates of exchange as determined by Morgan Stanley for the purchase of such other currency from time to time. Any such set-off will automatically satisfy and discharge the Original Obligation to Customer and, if the Original Obligation exceeds the sum or obligation to be set-off against, the Original Obligation will be novated and replaced by an obligation to pay Customer only the excess of the Original Obligation over such sum or obligation.  Customer authorizes Morgan Stanley and its affiliates, on behalf of and in the name of Customer, to do all such acts and to execute all such documents as may be required to effect such application.

Limitation Of Liability.  Except as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, “Electronic Trading Services”), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanley’s commercially reasonable reliance on any instruction, notice or communication 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 Morgan Stanley’s obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or 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, any Electronic Trading Services), it being understood that Morgan Stanley 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 reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets.

 

Morgan Stanley’s Responsibility.  Morgan Stanley 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.  Customer is acting for its own account and has made its own independent decisions to effect transactions in Contracts and as to whether each transaction is prudent or appropriate for it based on Customer’s own judgment and upon advice from such advisors as it has deemed necessary.  Customer is solely responsible for any trading decisions including order-routing decisions made by Customer.  Morgan Stanley does not make any recommendation as to where such orders should be executed and does not undertake to notify Customer of price improvement opportunities or more advantageous execution quality at particular exchange venues.  Morgan Stanley 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.

 

Advice.  All advice communicated by Morgan Stanley with respect to the Account or transactions effected by Customer hereunder is incidental to the conduct of Morgan Stanley’s business as an FCM and such advice shall not serve as the primary basis for any decision made by or on behalf of Customer.  Morgan Stanley shall have no discretionary authority, power or control over any decisions made by or on behalf of Customer in respect of the Account, regardless of whether Customer relies on the advice of Morgan Stanley in making any such decision.  Customer acknowledges that Morgan Stanley and its managing directors, officers, employees and affiliates may take or hold positions in, or advise other customers concerning, contracts that are from time to time the subject of advice from Morgan Stanley to Customer.  The positions and advice of Morgan Stanley and its managing directors, officers, employees and affiliates may be inconsistent with or contrary to positions of, and the advice given by, Morgan Stanley to Customer.  Customer acknowledges and agrees that Morgan Stanley is not acting hereunder as a municipal advisor within the meaning of Section 975 of the Dodd-Frank Wall Street Reform & Consumer Protection Act.

 

Recording.   Each party may record, on tape or otherwise, any telephone conversation between Morgan Stanley and Customer involving their respective officers, agents and employees, and each party hereby agrees and consents thereto.

 

(i)

Morgan Stanley 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, without regard to whether such refusal or limitation is required by, or based on position limits imposed under, Applicable Law.  Morgan Stanley shall make commercially reasonable efforts to provide Customer with a list of any position limits it intends to apply to the Account. Morgan Stanley shall promptly notify Customer of its rejection of any order.  To the extent permitted by Applicable Law, Morgan Stanley is authorized to combine orders for Customer’s Account with orders for other customers.  Unless specified by Customer, Morgan Stanley may designate the exchange or other markets (including, without limitation, an exchange’s electronic trading platform) on or through 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 Morgan Stanley with a copy of such applications or reports and such other information as Morgan Stanley may reasonably request in connection therewith and in connection with Morgan Stanley’s own regulatory reporting obligations.

 

Original and Variation Margin; Premiums; Other Contract Obligations.  Customer shall perform all obligations attendant to transactions in Contracts for the Account and shall make, or cause to be made, all applicable original margin, variation margin, intra-day margin and premium payments, in such amount, form and subject to such valuation mechanics, as may be required by Applicable Law or by Morgan Stanley.  Requests for margin deposits and/or premium payments shall be communicated to Customer in writing (including electronic mail); provided that Morgan Stanley reserves the right, in the event that Customer cannot be contacted by electronic means (after a commercially reasonable attempt to contact Customer by electronic means), to communicate such requests orally or telephonically.  For the avoidance of doubt, a statement of margin or premium due set forth on Customer’s daily confirmation of trading activity shall constitute a demand for such margin or premium for the purposes of this Section 6(e).  Customer margin deposits and/or premium payments shall be made by wire transfer in accordance with Morgan Stanley’s instructions to Customer segregated account, secured amount account, sequestered account or cleared swap account, as required under Applicable Law, and shall be in U.S. dollars unless Morgan Stanley agrees otherwise in writing.

 

 

(i)

Customer hereby assigns, pledges and transfers to Morgan Stanley and grants to Morgan Stanley a security interest in and continuing first priority lien on all of Customer’s right, title and interest in the Account and any and all securities entitlements, securities, funds and other property from time to time credited to the Account, held by Morgan Stanley or any of its affiliates, or carried by others for the Account, whether now owned or existing or hereafter acquired and wherever located and all proceeds of any of the foregoing (collectively, the “Collateral”).  The foregoing grant of security secures, to the extent permissible by Applicable Law, all obligations of Customer now or hereafter owing to Morgan Stanley pursuant this Agreement, including, without limitation, all Losses incurred by Morgan Stanley in connection with the enforcement of this Agreement and the security interest created hereunder.  Upon the occurrence of an Event of Default, Morgan Stanley shall have and may exercise in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it pursuant to Applicable Law, at law or in equity, all the rights and remedies of a secured party upon default under Applicable Law, including but not limited to the Uniform Commercial Code (“UCC”), whether or not the UCC applies to the affected Collateral, to the fullest extent permitted under Applicable Law.  Customer agrees to execute any documents reasonably required by Morgan Stanley for the perfection or negotiation of such general lien or security interest.  Customer and Morgan Stanley agree that Morgan Stanley’s use of the Collateral shall at all times be subject to and in accordance with Applicable Law.

 

(ii)

If Customer is resident of or domiciled in, or if any of the Collateral is subject to Applicable Law of, any jurisdiction in which a security interest in the Collateral cannot be created solely by means of Customer’s pledge of such Collateral to Morgan Stanley (or any jurisdiction in which the security interest arising under such a pledge would require local registration in order to be perfected), then the parties agree that, with respect to such a jurisdiction, all right, title and interest in and to the Collateral shall vest via transfer of title in Morgan Stanley free and clear of any liens, claims, charges or encumbrances or any other interest of Customer or of any third party (other than a lien routinely imposed on all securities in a relevant clearance system).

 

Québec Charge. This section applies only with respect to security interests if their validity is governed by the laws of the Province of Québec.  Customer hereby hypothecates and grants a general lien and a continuing first priority security interest in all Collateral to Morgan Stanley for the amount of USD 1,000,000,000.00, with interest from the date of this Agreement.  Morgan Stanley may sell or take the Collateral in payment without giving prior notice or observing any time limits prescribed in respect of such taking in payment or such sales in the Civil Code of Québec.  The said stated amount of the hypothec, lien and security interest is inserted to comply with the requirements of the Civil Code of Québec and represents the maximum amount for which the Collateral is hypothecated and granted.  It does not represent the amount of the indebtedness of Customer secured by the hypothecation, lien and security interest from time to time nor the amount of any credit available to Customer.

 

Reports and Objections.  Daily confirmations of transactions in Contracts for the Account shall be submitted to Customer and absent manifest error shall be conclusive and binding on Customer unless Customer notifies Morgan Stanley of any objection thereto prior to the opening of trading on the contract market or trading facility on which such transaction occurred on the second Business Day following the day on which Customer receives such Statement; provided that, with respect to monthly statements, Customer may notify Morgan Stanley of any objection thereto within five Business Days after receipt of such monthly Statement.  Any such notice of objection, if given orally to Morgan Stanley, shall be promptly confirmed in writing by Customer.

 

(i)

Customer shall provide Morgan Stanley with instructions to liquidate Contracts previously established by Customer; to make or take delivery under any such Contracts; or to exercise options entered into by Customer, within such time limits as may be reasonably specified by Morgan Stanley.  Morgan Stanley shall have no responsibility to take any action on behalf of Customer or positions in the Account unless and until Morgan Stanley receives oral or written instructions reasonably acceptable to Morgan Stanley.  Funds sufficient to take delivery pursuant to any such Contract or deliverable grade commodities eligible under Applicable Law for the purpose of effecting delivery pursuant to such Contract must be delivered to Morgan Stanley at such time and in accordance with such procedures as Morgan Stanley may reasonably require in connection with any such delivery.

 

(ii)

Short option Contracts may be subject to exercise at any time.  Exercise notices received by Morgan Stanley 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 Morgan Stanley has received prior, timely instructions from Customer, Morgan Stanley’s 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 in this section 6(i), Morgan Stanley may 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 Morgan Stanley deems necessary or appropriate, and Customer shall indemnify and hold Morgan Stanley harmless as a result of any action taken or not taken by Morgan Stanley in connection therewith or pursuant to Customer’s instructions.

 

Financial and Other Information.   Customer shall provide to Morgan Stanley such financial information regarding Customer as Morgan Stanley may from time to time reasonably request.  Customer shall notify Morgan Stanley promptly if the financial condition of Customer changes materially and adversely from that shown in the most recent financial information theretofore provided to Morgan Stanley.  An investigation may be conducted pertaining to Customer’s credit standing and business.  If Customer engages in exchange-for-physical, exchange-for-swap, exchange-for-risk, exchange-for-options or exchange-for-related-positions transactions, Customer agrees to provide Morgan Stanley, upon request, with documentation of the underlying cash, physical or swap transaction.

 

Currency Exchange Risk.  Customer shall bear all risk and cost in respect of the conversion of currencies incident to transactions in Contracts effected on behalf of Customer.  Should Customer elect to deposit funds with Morgan Stanley other than the currency of settlement or instruct Morgan Stanley to convert funds which are already on deposit in another currency, Morgan Stanley shall debit or credit the Account of Customer at a rate of exchange determined by Morgan Stanley in its sole discretion on the basis of the then prevailing market rate of exchange for such foreign currency.  Customer authorizes Morgan Stanley to deposit Customer funds in depositories located outside of the United States, subject to and consistent with the requirements of Applicable Law.  Customer agrees that the conversion of currencies under this Agreement shall be for the sole purpose of effecting transactions in Contracts hereunder and under no circumstances for the purpose of effecting spot, forward or other over-the-counter foreign currency transactions.

 

Inactive Accounts. Customer acknowledges that Morgan Stanley may deactivate accounts showing no trading activity and agrees to provide Morgan Stanley with any information and documents reasonably requested by Morgan Stanley in connection with Customer’s request to reactivate a closed account.

 

Cross-Trade Consent.  Customer hereby acknowledges and agrees that Morgan Stanley and its affiliates, officers, employees, successors, assigns, or agents, including floor brokers acting on Morgan Stanley’s behalf, may in connection with any transaction in Contracts for the Account take the other side of such transaction, subject to the transaction being executed at the prevailing price and in accordance with Applicable Law.

 

Authorization to Transfer Funds.  Customer hereby expressly agrees that Morgan Stanley may, in its sole and absolute discretion and without prior notice to Customer (provided that Morgan Stanley shall provide prior notice to Customer to the extent practicable), transfer any funds, securities, commodities or other property between and among Customer’s segregated, secured amount and sequestered or cleared swap accounts, consistent with and to the extent permitted under Applicable Law and for the sole purpose of executing, clearing and settling transactions in respect of Contracts.  Morgan Stanley shall promptly (and no later than within one Business Day) confirm in writing each transfer of funds, securities, commodities or other property pursuant hereto.  Other than as provided for under this authorization, Morgan Stanley shall not be permitted to transfer any funds, securities, commodities or other property to other accounts without the express written consent of Ceres.  For the avoidance of doubt, funds, securities or other property shall not be transferred among the accounts of different Customers.

 

Give Up Transactions.  Absent a separate written agreement with Customer with respect to give-up transactions, Morgan Stanley, 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 Morgan Stanley for clearance or carrying in any Account.

 

Offset/Netting Rights.  Morgan Stanley and Customer agree that the parties shall have the right to offset any unrealized gains and losses on the Customer’s open positions and to net any open orders for the purchase or sale of any property of Customer.

 

Termination.  This Agreement may be terminated at any time by Customer upon written notice to Morgan Stanley, or Morgan Stanley upon 60 calendar days written notice to Customer.  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 FCM.  Upon satisfaction by Customer of all of Customer’s liabilities, Morgan Stanley shall transfer to another FCM all Contracts, if any, then held for the Account, and shall transfer to Customer or to another FCM, as Customer may instruct, all cash, securities and other property held in the Account, whereupon this Agreement shall terminate.  Termination of this Agreement shall not release any party from any liability or obligation incurred or arising from activities prior to such termination.

Acknowledgements re Securities Transfer Act. For purposes of the Securities Transfer Act as implemented under the laws of an applicable Canadian province, the Personal Property Security Act of an applicable province, Article 9 of the New York Uniform Commercial Code and any similar legislation in any other applicable jurisdiction (a) the jurisdiction of Morgan Stanley as securities intermediary or commodity intermediary with respect to the Account and the Contracts is New York, (b) the Account is a “securities account,” a “futures account” and a “commodity account” and (c) any property of any nature whatsoever credited to the Account is a “financial asset” or “investment property”.

 

Eligible Financial Contract. This Agreement, including the security interest granted by this Agreement, and any Contract, are “eligible financial contracts” within the meaning of the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada) and the  Payment Clearing and Settlement Act (Canada).  Customer represents that it is a “financial institution” for the purposes of the Payment Clearing and Settlement Act (Canada).

 

Miscellaneous.

 

Severability.  If any provision of this Agreement is, or at any time becomes, inconsistent with any present or future requirement of Applicable Law, the inconsistent provision shall be deemed superseded or modified to conform with the relevant law, rule or regulation but in all other respects, this Agreement shall continue and remain in full force and effect.

 

Binding Effect.  This Agreement shall be binding on and inure to the benefit of the parties and their successors.  In the event that Morgan Stanley (i) merges with another entity, or (ii) ceases to be a FCM or (iii) is required by Applicable Law to transfer its Customer accounts to another FCM, Morgan Stanley shall have the right to transfer or assign this Agreement (and thereby the Account) to any successor entity or to another properly registered FCM, to the extent consistent with and at all times subject to Applicable Law.

 

Independent Adviser.  Customer hereby appoints Advisor as Customer’s agent for the purpose of receiving all communications, notices and requests for instructions related to this Agreement and the transactions effectuated pursuant to this Agreement, including, without limitation, margin calls and any trading information or advice (subject to Section 6(b) hereof).  Advisor is authorized to access and use electronic services, facilities and information provided electronically, including but not limited to Electronic Trading Services (as defined herein), and on behalf of Customer, to agree to the terms and conditions regarding such use and to enter into agreements relating to Electronic Trading Services.  Customer hereby agrees to indemnify and hold Morgan Stanley harmless from and to pay Morgan Stanley promptly on demand any and all Losses arising from Morgan Stanley’s reliance on any communication, notice or instruction of the Advisor until Morgan Stanley receives written notice of Customer’s revocation thereof; and termination of the appointment of the Advisor shall not affect any liability in any way resulting from transactions initiated prior to such termination.  This indemnity is in addition to (and in no way limits or restricts) any rights which Morgan Stanley may have under this Agreement and any other agreement or agreements between Morgan Stanley and Customer.  Nothing in this Section 10(c) shall relieve Customer of any of its obligations under this Agreement.

 

Entire Agreement.  This Agreement contains the entire agreement between the parties and supersedes any prior oral and written agreements between the parties as to the subject matter hereof.  No provision of this Agreement shall in any respect be waived, altered, modified, or amended unless such waiver, alteration, modification or amendment is signed by the party against whom such waiver, alteration, modification or amendment is to be enforced.

 

Currency Denomination.  Unless another currency is designated in the confirmations reporting transactions entered into by Customer, all margin deposits in connection with such transactions, and a debit or credit in the Account, shall be stated in United States dollars.  By placing an order in a Contract settled in a particular currency (the “Contract Currency”), Customer agrees to convert to the Contract Currency funds sufficient to meet the applicable margin requirement.  Customer understands and acknowledges that accruals from trades in Contracts that are priced and settled in non-United States dollars will be held in Customer’s account in such non-United States dollar Contract Currency and, except upon an Event of Default, will not be converted to United States dollars except upon Customer’s specific instructions to do so.  Any conversions of currency shall be at a rate of exchange determined by Morgan Stanley on the basis of the then prevailing rates of exchange for such currencies.

 

Instructions, Notices or Communications.   Except as specifically otherwise provided in this Agreement, all instructions, notices or other communications may be oral or written (and for the avoidance of doubt, notification by facsimile or email to a fax number or email address provided by either party to the other for such purpose shall be deemed written notice).  Customer hereby waives any defense that such instruction, notice, or communication was not in writing.  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:

 

One New York Plaza, 7th Floor

 

New York, New York  10004

 

Attention:  Listed Derivatives Operations Manager

 

(ii)

if to Customer, at the address (including email addresses) as indicated on the Commodity Futures Account Application.

 

Rights and Remedies Cumulative.  All rights and remedies arising under this Agreement as amended and modified from time to time are cumulative and not exclusive of any rights or remedies which may be available at law or otherwise.

 

No Waiver.  Neither party’s failure to exercise, delay in exercising, or partial exercise of any contractual right under this or any other agreement, for Contracts or any other product, on any occasion or series of occasions is or implies waiver of any contractual right under any course of dealing theory or otherwise, and does not preclude any other future exercise, delayed exercise or partial exercise of any contractual right hereunder.

 

Governing Law.  THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE RIGHTS, OBLIGATIONS AND REMEDIES OF THE PARTIES WITH RESPECT TO CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT 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 (OTHER THAN SECTION 5-1401 OF NEW YORK GENERAL OBLIGATIONS LAW).

 

Consent to Jurisdiction.   EACH OF THE PARTIES HEREBY CONSENTS TO THE JURISDICTION OF A STATE OR FEDERAL COURT SITUATED IN NEW YORK, NEW YORK IN CONNECTION WITH ANY DISPUTE ARISING HEREUNDER.  TO THE EXTENT THAT IN ANY JURISDICTION ANY PARTY MAY NOW OR HEREAFTER BE ENTITLED TO CLAIM, FOR ITSELF OR ITS ASSETS, IMMUNITY FROM SUIT, EXECUTION, ATTACHMENT (BEFORE OR AFTER JUDGMENT) OR OTHER LEGAL PROCESS, EACH PARTY HERETO IRREVOCABLY AGREES NOT TO CLAIM, AND IT HEREBY WAIVES, SUCH IMMUNITY.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION ON THE GROUND OF VENUE, FORUM NON CONVENIENS OR ANY SIMILAR GROUNDS.

 

Waiver of Jury Trial.   CUSTOMER AND MORGAN STANLEY EACH HEREBY WAIVES A TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION IN CONNECTION THEREWITH.

 

Equivalency Clause.  For purposes of disclosure pursuant to the Interest Act (Canada), the annual rate of interest which is equivalent to any rate of interest provided for in this Agreement which is to be calculated on any basis other than a full calendar year may be determined by multiplying such rate of interest (expressed as a percentage) by a fraction, the numerator of which is the number of days in the calendar year and the denominator of which is the number of days comprising such other basis.

 

Language of Documentation. The parties hereto have required that this Agreement, and all documents and notices related thereto and/or resulting therefrom be drawn up in English.  Les parties aux présentes ont exigé que la présente convention ainsi que tous les documents et avis qui s’y rattachent et/ou en découlent soient redigés en langue anglaise.

 

Business Day.  For purposes of this Agreement, “Business Day” shall mean any day on which, in respect of any transaction in Contracts for the Account, exchanges, trading facilities or clearing houses in the United States are open for such transactions.

Consent to Delivery of Electronic Statements.  The CFTC permits a customer to receive daily confirmations and monthly statements for the Account by electronic media, subject to obtaining customer consent.  Morgan Stanley maintains proprietary internet-based systems that deliver confirmations, statements and other reports to Customer in lieu of delivery by ordinary mail.  Customer should be aware of the following: (i) Customer’s consent, if given, will be effective upon execution of this Agreement and shall remain effective thereafter until revoked; (ii) Customer may revoke its consent at any time by written notice of revocation to Morgan Stanley which will be effective upon receipt by Morgan Stanley; and (iii) any electronic confirmation or statement is accessible on the internet-based system for a limited time following its initial posting.

 

If Customer is domiciled in the Province of Ontario, Canada, Customer hereby acknowledges that (1) Morgan Stanley may execute Contracts on behalf of Customer exclusively on futures exchanges located outside Canada, unless such Contracts are routed through an agent that is a dealer registered in Ontario under the Ontario Commodity Futures Act and the regulations thereunder (the “Ontario Act”); (2) there may be difficulty in enforcing any legal rights against Morgan Stanley, its directors, officers or employees because they are resident outside of Ontario and all or substantially all of Morgan Stanley’s assets are situated outside of Ontario; and (3) Morgan Stanley is not registered under the Ontario Act and, accordingly, the protection available to clients of a dealer registered under the Ontario Act may not be available to Customer.

 

If Customer is domiciled in either the Province of British Columbia, Canada or the Province of Alberta, Canada, Customer hereby acknowledges that (1) there may be difficulty in enforcing any legal rights against Morgan Stanley or any of its directors, officers, employees or agents, because it is resident outside of British Columbia or Alberta (the “Passport Jurisdictions”) and all or substantially all of its assets are situated outside of the Passport Jurisdictions; (2) Morgan Stanley is not registered under the securities legislation of the Passport Jurisdictions and, accordingly, the protection available to clients of a dealer registered under such legislation will not be available to Customer; and (3) Morgan Stanley shall provide to Customer in a separate writing that is hereby incorporated by reference the name and address of an agent for service in the Passport Jurisdiction in which Customer is located.

 

If Customer has indicated on the Commodity Futures Account Application that orders placed for the Account will normally represent bona fide hedging transactions, please complete the following.  You should note that CFTC Rule §190.06 permits you to specify whether, in the unlikely event of Morgan Stanley’s bankruptcy, you prefer the bankruptcy trustee to liquidate all positions in the Account.  Accordingly, Customer hereby elects as follows:  (please initial):

 

CUSTOMER HEREBY ACKNOWLEDGES THAT IT HAS RECEIVED AND UNDERSTANDS THE FOLLOWING DISCLOSURE STATEMENT PRESCRIBED BY THE CFTC AND FURNISHED HEREWITH.

 

Morgan Stanley Smith Barney Spectrum Select L.P.

 

Morgan Stanley Smith Barney Spectrum Technical L.P.

 

Morgan Stanley Smith Barney Spectrum Global Balanced L.P.

 

Morgan Stanley Smith Barney Spectrum Currency and Commodity L.P. (formerly Morgan Stanley Smith Barney Spectrum Currency L.P.)

 

Morgan Stanley Smith Barney Charter Campbell L.P.

 

Morgan Stanley Smith Barney Charter Graham L.P.

 

Morgan Stanley Smith Barney Charter WNT L.P.

 

Morgan Stanley Smith Barney Charter Aspect L.P.

 

Morgan Stanley Smith Barney Altis I, LLC

 

Morgan Stanley Smith Barney Aspect I, LLC

 

Morgan Stanley Smith Barney Augustus I, LLC

 

Morgan Stanley Smith Barney BHM I, LLC

 

Morgan Stanley Smith Barney Campbell I, LLC

 

Morgan Stanley Smith Barney Chesapeake Diversified I, LLC

 

Morgan Stanley Smith Barney Boronia I, LLC

 

Morgan Stanley Smith Barney Kaiser I, LLC

 

Morgan Stanley Smith Barney AHL I, LLC

 

Morgan Stanley Smith Barney Rotella I, LLC

 

Morgan Stanley Smith Barney TT II, LLC

 

Morgan Stanley Smith Barney WNT I, LLC

 

Managed Futures Premier Altis L.P.

 

Managed Futures Premier Rotterdam L.P.

 

Managed Futures Premier Man-AHL L.P.

 

BHM Discretionary Futures Fund L.P.

 

Polaris Futures Fund L.P.

LV Futures Fund L.P.

 

Meritage Futures Fund L.P.

 

Morgan Stanley Smith Barney Spectrum Strategic L.P.

 

Managed Futures Strategic Alternatives L.P.

 

Cambridge Master Fund L.P.

 

Waypoint Master Fund L.P.

 

Rabar Master Fund L.P.

 

CMF Drury Capital Master Fund, L.P.

 

CMF Graham Capital Master Fund L.P.

 

CMF Campbell Master Fund, L.P.

 

CMF Aspect Master Fund L.P.

 

CMF Winton Master L.P.

 

Morgan Stanley Managed Futures Custom Solution Fund LP

 

Potomac Futures Fund LP

 

Westport Futures Fund LP

 

Managed Futures Premier Warrington LP

 

Fairfield Futures Fund L.P. II

 

Fairfield Futures Fund L.P.

 

CMF Willowbridge Master Fund L.P.

 

PGR Master Fund L.P.

 

KR Master Fund L.P.

 

CMF Altis Partners Master Fund L.P.

 

MB Master Fund L.P.

 

SECOR Master Fund L.P.

 

Diversified 2000 Futures Fund L.P.

 

Diversified Multi-Advisor Futures Fund L.P.

 

Diversified Multi-Advisor Futures Fund L.P. II

 

Tactical Diversified Futures Fund L.P.

 

Tidewater Futures Fund L.P.

 

Institutional Futures Portfolio L.P.

 

Global Diversified Futures Fund L.P.

 

CMF Winton Feeder I L.P.

 

Managed Futures Premier Abingdon L.P.

 

Emerging CTA Portfolio L.P.

 

Commodity Advisors Fund L.P.

 

Managed Futures Premier Aventis II L.P.

 

AAA Master Fund LLC

 

Principle Master Fund L.P.

 

300 North Capital Master Fund L.P.

 

Blackwater Master Fund L.P.

 

CMF Eckhardt Master Fund L.P.

 

JEM Master Fund L.P.