UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] Quarterly report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarterly period ended March 31, 2000 or
[ ] Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from to
Commission File No. 0-17446
DEAN WITTER DIVERSIFIED FUTURES FUND II
L.P.
(Exact name of registrant as specified in its charter)
Delaware 13-3490286
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification
No.)
c/o Demeter Management Corporation
Two World Trade Center, 62 Fl., New York, NY 10048
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 392-5454
.
(Former name, former address, and former fiscal year, if changed
since last report)
Indicate by check-mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
<PAGE>
<TABLE>
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
INDEX TO QUARTERLY REPORT ON FORM 10-Q
March 31, 2000
<CAPTION>
PART I. FINANCIAL INFORMATION
<S> <C>
Item 1. Financial Statements
Statements of Financial Condition March 31, 2000
(Unaudited) and December 31, 1999 2
Statements of Operations for the Quarters Ended
March 31, 2000 and 1999 (Unaudited) 3
Statements of Changes in Partners' Capital for the
Quarters Ended March 31, 2000 and 1999
(Unaudited) 4
Statements of Cash Flows for the Quarters Ended
March 31, 2000 and 1999 (Unaudited) 5
Notes to Financial Statements (Unaudited) 6-11
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 12-19
Item 3. Quantitative and Qualitative Disclosures about
Market Risk 19-31
Part II. OTHER INFORMATION
Item 1. Legal Proceedings 32
Item 5. Other Information 32
Item 6. Exhibits and Reports on Form 8-K 33
</TABLE>
<PAGE>
<TABLE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
STATEMENTS OF FINANCIAL CONDITION
<CAPTION>
March 31, December 31,
2000 1999
$ $
(Unaudited)
ASSETS
<S> <C> <C>
Equity in futures interests trading accounts:
Cash 7,653,168 8,042,490
Net unrealized gain on open contracts 667,702 293,674
Total Trading Equity 8,320,870 8,336,164
Interest receivable (DWR) 31,375 29,570
Total Assets 8,352,245 8,365,734
LIABILITIES AND PARTNERS' CAPITAL
Liabilities
Redemptions payable 451,569 291,006
Accrued management fee (DWFCM) 20,881 20,914
Total Liabilities 472,450 311,920
Partners' Capital
Limited Partners (2,875.870 and
3,046.638 Units, respectively) 7,604,783 7,787,964
General Partner (104 Units) 275,012 265,850
Total Partners' Capital 7,879,795 8,053,814
Total Liabilities and Partners' Capital 8,352,245 8,365,734
NET ASSET VALUE PER UNIT 2,644.34 2,556.25
<FN>
The accompanying notes are an integral part
of these financial statements.
</TABLE>
<PAGE>
<TABLE>
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
STATEMENTS OF OPERATIONS
(Unaudited)
<CAPTION>
For the Quarters Ended March 31,
2000
1999
$ $
<S> <C> <C>
REVENUES
Trading profit (loss):
Realized 19,031 (594,590)
Net change in unrealized 374,028 93,977
Total Trading Results 393,059 (500,613)
Interest Income (DWR) 87,305 89,289
Total Revenues 480,364 (411,324)
EXPENSES
Brokerage commissions (DWR) 131,933 149,931
Management fees (DWFCM) 60,992 75,808
Transaction fees and costs 9,889 11,868
Incentive fees (DWFCM)
- - (7,040)
Total Expenses 202,814 230,567
NET INCOME (LOSS) 277,550 (641,891)
NET INCOME (LOSS) ALLOCATION
Limited Partners 268,388 (624,061)
General Partner
9,162 (17,830)
NET INCOME (LOSS) PER UNIT
Limited Partners 88.09 (171.44)
General Partner 88.09 (171.44)
<FN>
The accompanying notes are an integral part
of these financial statements.
</TABLE>
<PAGE>
<TABLE>-
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
STATEMENTS OF CHANGES IN PARTNERS' CAPITAL
For the Quarters Ended March 31, 2000 and 1999
(Unaudited)
<CAPTION>
Units of
Partnership Limited General
Interest Partners Partner Total
<S> <C> <C> <C>
<C>
Partners' Capital,
December 31, 1998
3,744.082 $10,281,223 $293,743$10,574,966
Net Loss
- - (624,061) (17,830)
(641,891)
Redemptions
(186.932) (495,934) - (495,934)
Partners' Capital,
March 31, 1999
3,557.150 $ 9,161,228 $275,913 $ 9,437,141
Partners' Capital,
December 31, 1999
3,150.638 $ 7,787,964 $265,850$ 8,053,814
Net Income
- - 268,388 9,162 277,
550
Redemptions
(170.768) (451,569) - (451,569)
Partners' Capital,
March 31, 2000
2,979.870 $ 7,604,783 $275,012 $ 7,879,795
<FN>
The accompanying notes are an integral part
of these financial statements.
</TABLE>
<PAGE>
<TABLE>
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
STATEMENTS OF CASH FLOWS
(Unaudited)
<CAPTION>
For the Quarters Ended March 31,
2000
1999
$ $
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) 277,550 (641,891)
Noncash item included in net income (loss)
Net change in unrealized (374,028) (93,977)
(Increase) decrease in operating assets:
Interest receivable (DWR) (1,805) 1,753
Due from DWR - (14,624)
Decrease in operating liabilities:
Accrued management fee (DWFCM) (33) (5,551)
Accrued incentive fee (DWFCM) - (3,871)
Net cash used for operating activities (98,316)
(758,161)
CASH FLOWS FROM FINANCING ACTIVITIES
Increase in redemptions payable 160,563 256,229
Redemptions of Units
(451,569) (495,934)
Net cash used for financing activities (291,006)
(239,705)
Net decrease in cash (389,322) (997,866)
Balance at beginning of period 8,042,490 10,606,680
Balance at end of period 7,653,168 9,608,814
<FN>
The accompanying notes are an integral part
of these financial statements.
</TABLE>
<PAGE>
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
The financial statements include, in the opinion of management,
all adjustments necessary for a fair presentation of the results
of operations and financial condition of Dean Witter Diversified
Futures Fund II L.P. (the "Partnership"). The financial
statements and condensed notes herein should be read in
conjunction with the Partnership's December 31, 1999 Annual
Report on Form 10-K.
1. Organization
Dean Witter Diversified Futures Fund II L.P. is a Delaware
limited partnership organized to engage primarily in the
speculative trading of commodity futures and forward contracts,
physical commodities, and other commodity interests
(collectively, "futures interests").
The general partner for the Partnership is Demeter Management
Corporation ("Demeter"). The non-clearing commodity broker is
Dean Witter Reynolds Inc. ("DWR") and an unaffiliated clearing
commodity broker, Carr Futures Inc. ("Carr"), provides clearing
and execution services. The trading manager is Dean Witter
Futures & Currency Management Inc. ("DWFCM" or the
"Trading
<PAGE>
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
NOTES TO FINANCIAL STATEMENTS - (CONTINUED)
Manager"). Demeter, DWR and DWFCM are wholly-owned subsidiaries
of Morgan Stanley Dean Witter & Co.
2. Related Party Transactions
The Partnership's cash is on deposit with DWR and Carr in futures
interests trading accounts to meet margin requirements as needed.
DWR pays interest on these funds based on current 13-week U.S.
Treasury bills. The Partnership pays brokerage commissions to
DWR. Management fees and incentive fees (if any) incurred by the
Partnership are paid to DWFCM.
3. Financial Instruments
The Partnership trades commodity futures and forward contracts,
physical commodities, and other commodity interests. Futures and
forwards represent contracts for delayed delivery of an
instrument at a specified date and price. Risk arises from
changes in the value of these contracts and the potential
inability of counterparties to perform under the terms of the
contracts. There are numerous factors which may significantly
influence the market value of these contracts, including interest
rate volatility.
<PAGE>
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
NOTES TO FINANCIAL STATEMENTS - (CONTINUED)
In June 1998, the Financial Accounting Standards Board ("FASB")
issued Statement of Financial Accounting Standard ("SFAS") No.
133, "Accounting for Derivative Instruments and Hedging
Activities" effective for fiscal years beginning after June 15,
1999. In June 1999, the FASB issued SFAS No. 137, "Accounting
for Derivative Instruments and Hedging Activities - Deferral of
the Effective Date of SFAS No. 133," which defers the required
implementation of SFAS No. 133 until fiscal years beginning after
June 15, 2000. However, the Partnership had previously elected
to adopt the provisions of SFAS No. 133 beginning with the fiscal
year ended December 31, 1998. SFAS No. 133 supersedes SFAS No.
119 and No. 105, which required the disclosure of average
aggregate fair values and contract/notional values, respectively,
of derivative financial instruments for an entity which carries
its assets at fair value. The application of SFAS No. 133 does
not have a significant effect on the Partnership's financial
statements.
The net unrealized gain on open contracts are reported as a
component of "Equity in futures interests trading accounts" on
the statements of financial condition and totaled $667,702 and
$293,674 at March 31, 2000 and December 1999, respectively.
<PAGE>
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
NOTES TO FINANCIAL STATEMENTS - (CONTINUED)
Of the $667,702 net unrealized gain on open contracts at March
31, 2000, $586,932 related to exchange-traded futures contracts
and $80,770 related to off-exchange-traded forward currency
contracts.
Of the $293,674 net unrealized gain on open contracts at December
31, 1999, $262,869 related to exchange-traded futures contracts
and $30,805 related to off-exchange-traded forward currency
contracts.
Exchange-traded futures contracts held by the Partnership at
March 31, 2000 and December 31, 1999 mature through June 2000 and
September 2000, respectively. Off-exchange-traded forward
currency contracts held by the Partnership at March 31, 2000 and
December 31, 1999 mature through July 2000 and March 2000,
respectively.
The Partnership has credit risk associated with counterparty non-
performance. The credit risk associated with the instruments in
which the Partnership is involved is limited to the amounts
reflected in the Partnership's statements of financial condition.
The Partnership also has credit risk because DWR and Carr act as
the futures commission merchants or the counterparties, with
respect to most of the Partnership's assets. Exchange-traded
futures contracts are marked to market on a daily basis,
with
<PAGE>
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
NOTES TO FINANCIAL STATEMENTS - (CONTINUED)
variations in value settled on a daily basis. Each of DWR and
Carr, as a futures commission merchant for the Partnership's
exchange-traded futures contracts, are required, pursuant to
regulations of the Commodity Futures Trading Commission ("CFTC"),
to segregate from their own assets, and for the sole benefit of
their commodity customers, all funds held by them with respect to
exchange-traded futures contracts, including an amount equal to
the net unrealized gain on all open futures contracts, which
funds, in the aggregate, totaled $8,240,100 and $8,305,359 at
March 31, 2000 and December 31, 1999, respectively. With respect
to the Partnership's off-exchange-traded forward currency
contracts, there are no daily settlements of variations in value
nor is there any requirement that an amount equal to the net
unrealized gain on open forward contracts be segregated. With
respect to those off-exchange-traded forward currency contracts,
the Partnership is at risk to the ability of Carr, the sole
counterparty on all of such contracts, to perform. The
Partnership has a netting agreement with Carr. This agreement,
which seeks to reduce both the Partnership's and Carr's exposure
on off-exchange-traded forward currency contracts, should
materially decrease the Partnership's credit risk in the event of
Carr's bankruptcy or insolvency. Carr's parent, Credit Agricole
Indosuez, has guaranteed to the Partnership payment of the
net
<PAGE>
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
NOTES TO FINANCIAL STATEMENTS - (CONCLUDED)
liquidating value of the transactions in the Partnership's
account with Carr (including foreign currency contracts).
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Liquidity - The Partnership deposits its assets with DWR as non-
clearing broker and Carr as clearing broker in separate futures
trading accounts established for the Trading Manager, which
assets are used as margin to engage in trading. The assets are
held in either non-interest bearing bank accounts or in
securities and instruments permitted by the CFTC for investment
of customer segregated or secured funds. The Partnership's
assets held by the commodity brokers may be used as margin solely
for the Partnership's trading. Since the Partnership's sole
purpose is to trade in futures and forwards, it is expected that
the Partnership will continue to own such liquid assets for
margin purposes.
The Partnership's investment in futures and forwards may, from
time to time, be illiquid. Most U.S. futures exchanges limit
fluctuations in prices during a single day by regulations
referred to as "daily price fluctuations limits" or "daily
limits". Trades may not be executed at prices beyond the daily
limit. If the price for a particular futures contract has
increased or decreased by an amount equal to the daily limit,
positions in that futures contract can neither be taken nor
liquidated unless traders are willing to effect trades at or
within the limit. Futures prices have occasionally moved the
daily limit for several consecutive days with little or no
trading. These market conditions could prevent the Partnership
from promptly liquidating its futures
<PAGE>
contracts and result in restrictions on redemptions.
There is no limitation on daily price moves in trading forward
contracts on foreign currency. The markets for some world
currencies have low trading volume and are illiquid, which may
prevent the Partnership from trading in potentially profitable
markets or prevent the Partnership from promptly liquidating
unfavorable positions in such markets and subjecting it to
substantial losses. Either of these market conditions could
result in restrictions on redemptions.
The Partnership has never had illiquidity affect a material
portion of its assets.
Capital Resources. The Partnership does not have, or expect to
have, any capital assets. Redemptions of additional units of
limited partnership interest ("Unit(s)") in the future will
affect the amount of funds available for investments in futures
interests in subsequent periods. It is not possible to estimate
the amount and therefore, the impact of future redemptions of
Units.
Results of Operations
General. The Partnership's results depend on its Trading Manager
and the ability of the Trading Manager's trading programs to take
advantage of price movements or other profit opportunities in the
futures and forwards markets. The following presents a
summary
<PAGE>
of the Partnership's operations for the three months ended March
31, 2000 and 1999 and a general discussion of its trading
activities during each period. It is important to note, however,
that the Trading Manager trades in various markets at different
times and that prior activity in a particular market does not
mean that such market will be actively traded by the Trading
Manager or will be profitable in the future. Consequently, the
results of operations of the Partnership are difficult to discuss
other than in the context of its Trading Manager's trading
activities on behalf of the Partnership as a whole and how the
Partnership has performed in the past.
For the Quarter Ended March 31, 2000
For the quarter ended March 31, 2000, the Partnership recorded
total trading revenues, including interest income, of $480,364
and posted an increase in Net Asset Value per Unit. The most
significant gains of approximately 5.2% were recorded in the
energy markets primarily during February from long positions in
crude oil futures as prices rose to nine-year highs. This price
increase was due to a combination of cold weather, declining
inventories and increasing demand, as well as concerns about
future output levels from the world's leading producer countries.
Despite a dramatic move lower in the price of crude oil during
March, the Partnership profited from long positions liquidated
early in the month. In the currency markets, gains of
<PAGE>
approximately 2.4% were recorded primarily during January from
short positions in the Swedish krona, the euro and the Swiss
franc as the value of these European currencies weakened relative
to the U.S. dollar, hurt by skepticism about Europe's economic
outlook and lack of support from European officials. During
March, gains were recorded from short euro positions as
expectations for continued interest rate hikes from the European
Central Bank diminished. These gains were partially offset by
losses of approximately 1.4% recorded in the metals markets
primarily from long positions in base metal futures as the
previous upward price trend reversed sharply lower during
February in response to interest rate hikes across the globe.
Additional losses were recorded from short gold futures positions
as prices spiked sharply higher early in February following an
announcement by a major producer that it was suspending gold
hedging activities. Newly established long gold futures
positions resulted in additional losses as gold prices fell later
in February from weakness in the Australian dollar and gold sales
by the Dutch central bank. In the global stock index futures
markets, losses of approximately 1.3% were recorded throughout a
majority of the quarter from long positions in S&P 500 Index
futures as domestic stock prices declined due to volatility in
the technology sector and as economic data raised fears that the
Federal Reserve will be forced to take aggressive action to slow
the economy. In the global interest rate futures markets, losses
of approximately 1.2% were incurred primarily during February
<PAGE>
from long positions in Japanese government bond futures as prices
decreased in response to the yen's weakness, a higher Nikkei
average and the perception in Japan that, despite a zero interest
rate policy, 10-year interest rates are too low. In soft
commodities, losses of approximately 0.8% were recorded primarily
during March from long cocoa futures positions as cocoa prices
dropped against the backdrop of world overproduction. Total
expenses for the three months ended March 31, 2000 were $202,814,
resulting in net income of $277,550. The value of a Unit
increased from $2,556.25 at December 31, 1999 to $2,644.34 at
March 31, 2000.
For the Quarter Ended March 31, 1999
For the quarter ended March 31, 1999, the Partnership recorded
total trading losses net of interest income of $411,324 and
posted a decrease in Net Asset Value per Unit. The most
significant losses of approximately 4.0% were recorded in the
currency markets throughout a majority of the quarter largely
from long Australian dollar positions as its value dropped
significantly relative to the U.S. dollar on speculation
regarding potential currency devaluations in the Asian region.
Losses recorded from short British pound positions in March
offset profits recorded in February as its value strengthened
versus the U.S. dollar as the market scaled back the chances of a
British interest rate cut following an announcement of a budget
that was more generous than expected. In the global interest
rate futures markets, losses of
<PAGE>
approximately 3.8% were experienced throughout a majority of the
quarter primarily from short Japanese government bond futures
positions as prices increased amid growing speculation that the
Bank of Japan may underwrite Japanese government bonds. Fears
that a rise in Japanese bond yields would lead many Japanese
money managers to repatriate assets from foreign investments to
yen-denominated debt also pushed prices higher. Additional
losses were recorded during February and March from short German
government bond futures positions as prices increased on reports
that Germany's industrial production showed a sharp increase,
creating hopes that Europe's biggest economy could be
strengthening. In the metals markets, losses of approximately
0.8% were experienced during March mainly from long silver
futures positions as prices retreated after Berkshire Hathaway's
annual report failed to provide any new information on the
company's silver positions. In soft commodities, losses of
approximately 0.6% were recorded during March mostly from short
positions in coffee futures as prices in this market surged late
in the month as options-related buying triggered waves of buy-
stops at several key resistance levels, attracting fund short-
covering. In the global stock index futures markets, losses of
approximately 0.1% were experienced during February from long S&P
500 Index futures positions as domestic equity prices moved lower
on concerns that the Federal Reserve may raise interest rates in
an effort to control inflation. These losses were partially
offset by gains of approximately 2.3% recorded in the energy
<PAGE>
markets during March mainly from long positions in crude and
heating oil futures as prices moved significantly higher which
was largely attributed to the news that both OPEC and non-OPEC
countries had reached an agreement to cut total output by
approximately two million barrels a day beginning April 1, 1999.
In the agricultural markets, gains of approximately 0.7% were
recorded during January and February primarily from short futures
positions in soybeans and soybean products as prices declined to
23-year lows in reaction to a healthy South American crop
outlook, weak world demand and fears that Brazil will flood the
market in an effort to support their ailing economy. Total
expenses for the three months ended March 31, 1999 were $230,567,
resulting in a net loss of $641,891. The value of a Unit
decreased from $2,824.45 at December 31, 1998 to $2,653.01 at
March 31, 1999.
Risks Associated With the Euro. On January 1, 1999, eleven
countries in the European Union established fixed conversion
rates on their existing sovereign currencies and converted to a
common single currency (the euro). During a three-year transition
period, the sovereign currencies will continue to exist but only
as a fixed denomination of the euro. Conversion to the euro
prevents the Trading Manager from trading those sovereign
currencies and thereby limits its ability to take advantage of
potential market opportunities that might otherwise have existed
<PAGE>
had separate currencies been available to trade. This could
adversely affect the performance results of the Partnership.
Item 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK
Introduction
The Partnership is a commodity pool involved in the speculative
trading of futures interests. The market-sensitive instruments
held by the Partnership are acquired for speculative trading
purposes only and, as a result, all or substantially all of the
Partnership's assets are at risk of trading loss. Unlike an
operating company, the risk of market-sensitive instruments is
central, not incidental, to the Partnership's main business
activities.
The futures interests traded by the Partnership involve varying
degrees of market risk. Market risk is often dependent upon
changes in the level or volatility of interest rates, exchange
rates, and prices of financial instruments and commodities.
Fluctuations in market risk based upon these factors result in
frequent changes in the fair value of the Partnership's open
positions, and, consequently, in its earnings and cash flow.
The Partnership's total market risk is influenced by a wide
variety of factors, including the diversification among the
Partnership's open positions, the volatility present within the
<PAGE>
markets, and the liquidity of the markets. At different times,
each of these factors may act to increase or decrease the market
risk associated with the Partnership.
The Partnership's past performance is not necessarily indicative
of its future results. Any attempt to numerically quantify the
Partnership's market risk is limited by the uncertainty of its
speculative trading. The Partnership's speculative trading may
cause future losses and volatility (i.e. "risk of ruin") that far
exceed the Partnership's experiences to date or any reasonable
expectations based upon historical changes in market value.
Quantifying the Partnership's Trading Value at Risk
The following quantitative disclosures regarding the
Partnership's market risk exposures contain "forward-looking
statements" within the meaning of the safe harbor from civil
liability provided for such statements by the Private Securities
Litigation Reform Act of 1995 (set forth in Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange
Act of 1934). All quantitative disclosures in this section are
deemed to be forward-looking statements for purposes of the safe
harbor, except for statements of historical fact.
The Partnership accounts for open positions using mark-to-market
accounting principles. Any loss in the market value of
the
<PAGE>
Partnership's open positions is directly reflected in the
Partnership's earnings, whether realized or unrealized, and its
cash flow. Profits and losses on open positions of exchange-
traded futures interests are settled daily through variation
margin.
The Partnership's risk exposure in the market sectors traded by
the Trading Manager is estimated below in terms of Value at Risk
("VaR"). The VaR model used by the Partnership includes many
variables that could change the market value of the Partnership's
trading portfolio. The Partnership estimates VaR using a model
based upon historical simulation with a confidence level of 99%.
Historical simulation involves constructing a distribution of
hypothetical daily changes in the value of a trading portfolio.
The VaR model takes into account linear exposures to price and
interest rate risk. Market risks that are incorporated in the
VaR model include equity and commodity prices, interest rates,
foreign exchange rates, and correlation among these variables.
The hypothetical changes in portfolio value are based on daily
percentage changes observed in key market indices or other market
factors ("market risk factors") to which the portfolio is
sensitive. The historical observation period of the Partner-
ship's VaR is approximately four years. The one-day 99%
confidence level of the Partnership's VaR corresponds to the
negative change in portfolio value that, based on observed market
<PAGE>
risk factors, would have been exceeded once in 100 trading days.
VaR models, including the Partnership's, are continuously
evolving as trading portfolios become more diverse and modeling
techniques and systems capabilities improve. Please note that
the VaR model is used to numerically quantify market risk for
historic reporting purposes only and is not utilized by either
Demeter or the Trading Manager in their daily risk management
activities.
The Partnership's Value at Risk in Different Market Sectors
The following tables indicate the VaR associated with the
Partnership's open positions as a percentage of total Net Assets
by primary market risk category as of March 31, 2000 and 1999.
As of March 31, 2000 and 1999, the Partnership's total
capitalization was approximately $8 million and $9 million,
respectively.
Primary Market March 31, 2000 March 31, 1999
Risk Category Value at Risk Value at Risk
Currency (1.63)% (1.94)%
Commodity (1.99) (1.12)
Interest Rate (1.55) (0.80)
Equity (1.16) (0.74)
Aggregate Value at Risk (3.27)% (2.31)%
Aggregate Value at Risk represents the aggregate VaR of all the
Partnership's open positions and ot the sum of the VaR of the
<PAGE>
individual Market Categories listed above. Aggregate VaR will be
lower as it takes into account correlation among different
positions and categories.
The table above represents the VaR of the Partnership's open
positions at March 31, 2000 and 1999 only and is not necessarily
representative of either the historic or future risk of an
investment in the Partnership. Because the Partnership's only
business is the speculative trading of futures interests, the
composition of its trading portfolio can change significantly
over any given time period, or even within a single trading day.
Any changes in open positions could positively or negatively
materially impact market risk as measured by VaR.
The table below supplements the quarter-end VaR by presenting the
Partnership's high, low and average VaR, as a percentage of total
Net Assets for the four quarterly reporting periods from April 1,
1999 through March 31, 2000.
Primary Market Risk Category High Low Average
Currency (1.94)% (1.63)% (1.81)%
Commodity (1.99) (0.93) (1.37)
Interest Rate (1.93) (0.80) (1.29)
Equity (1.16) (0.17) (0.64)
Aggregate Value at Risk (3.27)% (2.31) (2.78)%
<PAGE>
Limitations on Value at Risk as an Assessment of Market Risk
The face value of the market sector instruments held by the
Partnership is typically many times the applicable margin
requirements. Margin requirements generally range between 2% and
15% of contract face value. Additionally, the use of leverage
causes the face value of the market sector instruments held by
the Partnership to typically be many times the total
capitalization of the Partnership. The value of the
Partnership's open positions thus creates a "risk of ruin" not
typically found in other investments. The relative size of the
positions held may cause the Partnership to incur losses greatly
in excess of VaR within a short period of time, given the effects
of the leverage employed and market volatility. The VaR tables
above, as well as the past performance of the Partnership, gives
no indication of such "risk of ruin". In addition, VaR risk
measures should be viewed in light of the methodology's
limitations, which include the following:
past changes in market risk factors will not always result
in accurate predictions of the distributions and correlations of
future market movements;
changes in portfolio value in response to market movements
may differ from those of the VaR model;
VaR results reflect past trading positions while future risk
depends on future positions;
<PAGE>
VaR using a one-day time horizon does not fully capture the
market risk of positions that cannot be liquidated or hedged
within one day; and
the historical market risk factor data used for VaR
estimation may provide only limited insight into losses that
could be incurred under certain unusual market movements.
The VaR tables above present the results of the Partnership's VaR
for each of the Partnership's market risk exposures and on an
aggregate basis at March 31, 2000 and for the end of the four
quarterly reporting periods from April 1, 1999 through March 31,
2000. Since VaR is based on historical data, VaR should not be
viewed as predictive of the Partnership's future financial
performance or its ability to manage or monitor risk. There can
be no assurance that the Partnership's actual losses on a
particular day will not exceed the VaR amounts indicated above or
that such losses will not occur more than 1 in 100 trading days.
Non-Trading Risk
The Partnership has non-trading market risk on its foreign cash
balances not needed for margin. These balances and any market
risk they may represent are immaterial. The Partnership also
maintains a substantial portion (approximately 81%) of its
available assets in cash at DWR. A decline in short-term
interest rates will result in a decline in the
Partnership's cash
<PAGE>
management income. This cash flow risk is not considered
material.
Materiality, as used throughout this section, is based on an
assessment of reasonably possible market movements and any
associated potential losses, taking into account the leverage,
optionality and multiplier features of the Partnership's market
sensitive instruments.
Qualitative Disclosures Regarding Primary Trading Risk Exposures
The following qualitative disclosures regarding the Partnership's
market risk exposures - except for (A) those disclosures that are
statements of historical fact and (B) the descriptions of how the
Partnership manages its primary market risk exposures -
constitute forward-looking statements within the meaning of
Section 27A of the Securities Act and Section 21E of the
Securities Exchange Act.
The Partnership's primary market risk exposures as well as the
strategies used and to be used by Demeter and the Trading Manager
for managing such exposures are subject to numerous
uncertainties, contingencies and risks, any one of which could
cause the actual results of the Partnership's risk controls to
differ materially from the objectives of such strategies.
Government interventions, defaults and expropriations, illiquid
markets, the emergence of dominant fundamental factors, political
upheavals, changes in historical price relationships, an
influx of new market
<PAGE>
participants, increased regulation and many other factors could
result in material losses as well as in material changes to the
risk exposures and the risk management strategies of the
Partnership. Investors must be prepared to lose all or
substantially all of their investment in the Partnership.
The following were the primary trading risk exposures of the
Partnership as of March 31, 2000, by market sector. It may be
anticipated however, that these market exposures will vary
materially over time.
Currency - The most significant exposure in the Partnership at
March 31, 2000 was in the currency complex. The Partnership's
currency exposure is to exchange rate fluctuations, primarily
fluctuations that disrupt the historical pricing relationships
between different currencies and currency pairs. Interest rate
changes as well as political and general economic conditions
influence these fluctuations. The Partnership trades in a large
number of currencies, including cross-rates i.e., positions
between two currencies other than the U.S. dollar. For the first
quarter of 2000, the Partnership's foreign exchange exposure was
in the euro currency crosses and outright US dollar positions.
Outright positions consist of the U.S. dollar vs. other
currencies. The currency trading VaR figure includes foreign
margin amounts converted into U.S. dollars with an incremental
<PAGE>
adjustment to reflect the exchange rate risk inherent to the
dollar-based Partnership in expressing VaR in a functional
currency other than dollars.
Commodity
Metals - The Partnership's metals market exposure in the first
quarter of 2000 was to fluctuations in the prices of base metals,
as well as exposure in the gold market. A significant amount of
exposure was evident in the base metals as the Partnership held
sizeable positions in aluminum and copper as determined by the
parameters of the proprietary system.
The Partnership aims to equally weight market exposure in the
metals as much as possible, however base metals, during periods
of volatility, will affect performance more dramatically than the
precious metals markets. Demeter anticipates that base metals
will remain the primary metals market exposure of the
Partnership.
Energy - On March 31, 2000, the Partnership's energy exposure was
in natural gas futures contracts. Price movement in this market
results from supply/demand data, weather patterns, and other
economic fundamentals. A position in natural gas will impact the
portfolio as it is a significant portion of the portfolio.
<PAGE>
Soft Commodities and Agriculturals - The Partnership had moderate
exposure in the markets that comprise these sectors. Most of the
exposure was in the corn and coffee markets. Supply and demand
inequalities, severe weather disruptions and market expectations
affect price movements in these markets.
Interest Rates - Significant exposure at March 31, 2000 was also
experienced in the interest rate sector. Exposure was spread
across the U.S., Swiss, Australian, and euro-zone interest rate
sectors. Interest rate movements directly affect the price of
the sovereign bond positions held by the Partnership and
indirectly affect the value of its stock index and currency
positions. Interest rate movements in one country as well as
relative interest rate movements between countries materially
impact the Partnership's profitability. The Partnership's
primary interest rate exposure is generally to interest rate
fluctuations in the G-7 countries and Australia. The G-7
countries consist of the U.S., Britain, Canada, Germany, France,
Italy and Japan. Demeter anticipates that G-7 and Australian
interest rates will remain the primary interest rate exposure of
the Partnership for the foreseeable future. The changes in
interest rates which have the most effect on the Partnership are
changes in long-term and medium-term instruments. Consequently,
even a material change in short-term rates would have little
effect on the Partnership, were the medium to long term rates to
remain steady.
<PAGE>
Equity. The Partnership's equity exposure on March 31, 2000 to
price risk in the S&P 500 futures index was noteworthy. The
stock index futures traded by the Partnership are by law limited
to futures on broadly based indices. Demeter anticipates little,
if any, trading in non G-7 stock indices. The Partnership is
primarily exposed to the risk of adverse price trends or static
markets in the U.S. and Japanese indices. (Static markets would
not cause major market changes but would make it difficult for
the Partnership to avoid being "whipsawed" into numerous small
losses.)
Qualitative Disclosures Regarding Non-Trading Risk Exposure
The following were the only non-trading risk exposures of the
Partnership as of March 31, 2000:
Foreign Currency Balances - The Partnership's foreign currency
balances are in Japanese yen, British pounds, euros, Swiss francs
and Australian dollars. The Partnership controls the non-trading
risk of these balances by regularly converting these balances
back into dollars upon liquidation of the respective position.
Qualitative Disclosures Regarding Means of Managing Risk Exposure
The Partnership and the Trading Manager, separately, attempt to
manage the risk of the Partnership's open positions in essentially
the same manner in all market categories traded. Demeter attempts
to manage market exposure by diversifying the Partnership's
assets
<PAGE>
among different market sectors and trading approaches, and
monitoring the performance of the Trading Manager daily. In
addition, the Trading Manager establishes diversification
guidelines, often set in terms of the maximum margin to be
committed to positions in any one market sector or market-sensitive
instrument.
Demeter monitors and controls the risk of the Partnership's non-
trading instrument, cash. Cash is the only Partnership investment
directed by Demeter, rather than the Trading Manager.
<PAGE>
PART II. OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
On March 3, 2000, the plaintiffs in the New York action filed an
appeal of the order dismissing the consolidated complaint.
(Please refer to Legal Proceedings previously disclosed in the
Partnership's Form 10-K for the year ended December 31, 1999 for
a more detailed discussion.)
Item 5. OTHER INFORMATION
Effective January 31, 2000, Mark J. Hawley resigned as Chairman
of the Board and a Director of Demeter and DWFCM and Robert E.
Murray replaced him as Chairman of the Board of Demeter and
DWFCM.
Demeter has determined, commencing in May 2000, to transfer the
Partnership's futures and options clearing from Carr to Morgan
Stanley & Co. Incorporated ("MS & Co."), an affiliate of Demeter,
while trades on the London Metal Exchange will be cleared by
Morgan Stanley & Co. International Limited ("MSIL"), also an
affiliate of Demeter. In addition, MS & Co. and MSIL, rather
than Carr, will act as the counterparty on all of the
Partnership's foreign currency forward trades. Dean Witter
Reynolds Inc. will continue to act as the non-clearing commodity
broker for the Partnership.
<PAGE>
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) Exhibits
10.03 Amended and Restated Customer Agreement dated as of
December 1, 1997, between the Partnership and Dean Witter
Reynolds Inc. is filed herewith.
10.04 Customer Agreement dated as of December 1, 1997,
between the Partnership, Carr Futures, Inc., and Dean Witter
Reynolds Inc. is filed herewith.
10.05 International Foreign Exchange Master Agreement dated
as of August 1, 1997, between the Partnership and Carr
Futures, Inc. is filed herewith.
(B) Reports on Form 8-K. - None.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Dean Witter Diversified Futures
Fund II L.P. (Registrant)
By: Demeter Management Corporation
(General Partner)
May 12, 2000 By: /s/ Lewis A. Raibley, III
Lewis A. Raibley, III
Director and Chief Financial
Officer
The General Partner which signed the above is the only party
authorized to act for the Registrant. The Registrant has no
principal executive officer, principal financial officer,
controller, or principal accounting officer and has no Board of
Directors.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The schedule contains summary financial informtion extracted from
Dean Witter Diversified Futures Fund II L.P. and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
<CASH> 7,653,168
<SECURITIES> 0
<RECEIVABLES> 31,375<F1>
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 8,352,245<F2>
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 8,352,245<F3>
<SALES> 0
<TOTAL-REVENUES> 480,364<F4>
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 202,814
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 277,550
<INCOME-TAX> 0
<INCOME-CONTINUING> 277,550
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 277,550
<EPS-BASIC> 0
<EPS-DILUTED> 0
<FN>
<F1>Receivables include interest receivable of $31,375.
<F2>In addition to cash and receivables, total assets include net
unrealized gain on open contracts of $667,702.
<F3>Liabilities include redemptions payable of $451,569 and accrued
management fee of $20,881.
<F4>Total revenues include realized trading revenue of $19,031,
net change in unrealized of $374,028, and interest income of
$87,305.
</FN>
</TABLE>
<PAGE>
AMENDED AND RESTATED CUSTOMER AGREEMENT
THIS AMENDED AND RESTATED CUSTOMER AGREEMENT (this
"Agreement"), made as of the 1st day of December, 1997, by and
between DEAN WITTER DIVERSIFIED FUTURES FUND II L.P., a Delaware
limited partnership (the "Customer"), and DEAN WITTER REYNOLDS
INC., a Delaware corporation ("DWR");
W I T N E S S E T H :
WHEREAS, the Customer was organized pursuant to a
Certificate of Limited Partnership filed in the office of the
Secretary of State of the State of Delaware on September 6, 1988,
and a Limited Partnership Agreement dated as of
September 6, 1988, between Demeter Management Corporation, a
Delaware corporation ("Demeter"), acting as general partner (in
such capacity, the "General Partner"), and the limited partners
of the Customer to trade, buy, sell, spread or otherwise acquire,
hold, or dispose of commodities (including foreign currencies,
mortgage-backed securities, money market instruments, and any
other securities or items which are, or may become, the subject
of futures contract trading), commodity futures contracts,
commodity forward contracts, foreign exchange commitments,
options on physical commodities and on futures contracts, spot
(cash) commodities and currencies, and any rights pertaining
thereto (hereinafter referred to collectively as "futures
interests") and securities (such as United States Treasury bills)
approved by the Commodity Futures Trading Commission (the "CFTC")
for investment of customer funds;
WHEREAS, the Customer (which is a commodity pool) and
the General Partner (which is a registered commodity pool
operator) have entered into a management agreement (the
"Management Agreement") with a certain trading advisor (the
"Trading Advisor"), which provides that the Trading Advisor has
authority and responsibility, except in certain limited
situations, to direct the investment and reinvestment of the
assets of the Customer in futures interests under the terms set
forth in the Management Agreement;
WHEREAS, the Customer and DWR entered into that certain
Amended and Restated Customer Agreement dated as of September 1,
1996 (the "Customer Agreement"), whereby DWR agreed to perform
futures interests brokerage and certain other services for the
Customer; and
WHEREAS, the Customer and DWR wish to amend and restate
the Customer Agreement to set forth the terms and conditions upon
which DWR will continue to perform certain non-clearing futures
interests brokerage and certain other services for the Customer;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not defined
herein shall have the meaning given to them in the Customer's
most recent prospectus as filed with the Securities and Exchange
Commission (the "Prospectus") relating to the offering of units
of limited partnership interest of the Customer (the "Units") and
in any amendment or supplement to the Prospectus.
<PAGE>
2. Duties of DWR. DWR agrees to act as a non-
clearing commodity broker for the Customer and introduce the
Customer's account to Carr Futures, Inc. ("CFI") for execution
and clearing of futures interests transactions on behalf of the
Customer in accordance with instructions provided by the Trading
Advisor, and the Customer agrees to retain DWR as a non-clearing
commodity broker for the term of this Agreement.
DWR agrees to furnish to the Customer as soon as
practicable all of the information from time to time in its
possession which Demeter, as the general partner of the Customer,
is required to furnish to the Limited Partners pursuant to the
Limited Partnership Agreement as from time to time in effect and
as required by applicable law, rules, or regulations and to
perform such other services for the Customer as are set forth
herein and in the Prospectus.
3. Obligations and Expenses.
(a) Except as otherwise set forth herein, the
Customer, and not DWR, shall be responsible for all taxes,
management and incentive fees to the Trading Advisor, brokerage
commissions to DWR, and all extraordinary expenses incurred by
it. In addition, the Customer, and not DWR, shall pay the
charges of CFI for executing and clearing the Customer's futures
interests trades (as described in paragraph 5(b) below).
(b) DWR shall pay and not be reimbursed for the
Customer's ordinary administrative expenses, including expenses
for services provided by third parties selected by the General
Partner and reimbursement of all out-of-pocket expenses incurred
by such persons and by the General Partner and its affiliates in
providing services to the Customer. Such expenses shall include
legal, accounting and auditing expenses (including expenses
incurred in preparing reports and tax information to Limited
Partners and regulatory authorities and expenses for specialized
administrative services), printing and duplication expenses,
mailing expenses, and filing fees.
4. Agreement Nonexclusive. DWR shall be free to
render services of the nature to be rendered to the Customer
hereunder to other persons or entities in addition to the
Customer, and the parties acknowledge that DWR may render such
services to additional entities similar in nature to the
Customer, including other partnerships organized with Demeter as
their general partner. It is expressly understood and agreed
that this Agreement is nonexclusive and that the Customer has no
obligation to execute any or all of its trades for futures
interests through DWR. The parties acknowledge that the Customer
may utilize such other broker or brokers as Demeter may direct
from time to time. The Customer's utilization of an additional
commodity broker shall neither terminate this Agreement nor
modify in any regard the respective rights and obligations of the
Customer and DWR hereunder.
5. (a) Compensation of DWR. The Customer will pay
brokerage commissions to DWR at a roundturn rate (but charged on
a half-turn basis) of 80% of DWR's published non-member rates for
speculative accounts (which covers both the taking and
liquidation of a position), and substantially equivalent rates
for currency forward contract transactions in the forward
contract and interbank markets.
The Customer will pay DWR brokerage commissions for
currency forward contract transactions at rates established with
reference to the brokerage commission rate charged on exchange-
traded currency futures contracts. DWR may from time to time
adjust the United States dollar size of currency forward
contracts so that the brokerage commission rate charged on such
contracts will approximate the rate charged on exchange-traded
currency futures contracts of similar United States dollar value.
DWR shall also charge the Partnership brokerage commissions for
rollovers of forward contract positions.
<PAGE>
(b) Compensation of CFI. The Customer will pay
certain charges of CFI for executing and clearing trades for the
Customer pursuant to that certain Customer Agreement dated as of
December 1, 1997, among the Customer, CFI and DWR. In addition,
DWR shall pay CFI certain charges with respect to the execution
and clearance of trades for the Customer as agreed from time to
time between DWR and CFI.
(c) Notwithstanding the foregoing, brokerage
commissions, together with transaction fees and costs including
those paid by the Customer to CFI, with respect to the Trading
Advisor's allocated Net Assets will be capped at 13/20 of 1% per
month (in the event the Trading Advisor employs multiple trading
systems in trading on behalf of the Customer, the foregoing cap
is applied on a per trading system basis) of the Customer's Net
Assets allocated to the Trading Advisor or trading system as of
the last day of each month (a maximum 7.8% annual rate). In
addition, the aggregate of (i) brokerage commissions and
transaction fees and costs payable by the Customer, and (ii) net
excess interest and compensating balance benefits to DWR (after
crediting the Customer with interest) shall not exceed 14%
annually of the Customer's average month-end Net Assets during
each calendar year.
(d) Any brokerage commissions, and transaction
fees and costs in excess of such caps shall be borne or paid by
DWR or an affiliate and shall not be reimbursed by the Customer.
The foregoing caps may not be increased except as permitted in
the Customer's Limited Partnership Agreement, as amended from
time to time.
6. Investment Discretion. The parties recognize that
DWR shall have no authority to direct the futures interests
investments to be made for the Customer's account. However, the
parties agree that DWR, and not the Trading Advisor, shall have
the authority and responsibility with regard to the investment,
maintenance, and management of the Customer's assets that are
held in segregated or secured accounts, as provided in Section 7
hereof.
7. Investment of Customer Funds. The Customer shall
deposit its assets in accounts with DWR. The Customer's assets
deposited with DWR will be segregated or secured in accordance
with the Commodity Exchange Act and CFTC regulations. DWR will
credit the Customer with interest income at month-end in an
amount equal to 80% of the Customer' average daily Net Assets for
the month at a rate equal to the average yield on the 13-week
U.S. Treasury Bills issued during such month. All of such funds
will be available for margin for the Customer's trading. For the
purpose of such interest payments, Net Assets will not include
monies due to the Customer on or with respect to forward
contracts and other futures interests but not actually received
by it from banks, brokers, dealers and other persons. The
Customer understands that it will not receive any other interest
income on its assets and that DWR will receive interest income
from CFI, as agreed from time to time by DWR and CFI, on the
Customer's assets deposited as margin with CFI. The Customer's
funds will either be invested along with other customer
segregated and secured funds of DWR or held in non-interest
bearing bank accounts. The Customer's assets held by DWR may be
used solely as margin for the Customer's trading.
Ownership of the right to receive interest on the
Customer's assets pursuant to the preceding paragraph shall be
reflected and maintained and may be transferred only on the books
and records of DWR. Any purported transfer of such ownership
shall not be effective or recognized until such transfer shall
have been recorded on the books and records of DWR.
<PAGE>
8. Standard of Liability and Indemnity. Subject to
Section 2 hereof, DWR and its affiliates (as defined below) shall
not be liable to the Customer, the General Partner or Limited
Partners, or any of its or their respective successors or
assigns, for any act, omission, conduct, or activity undertaken
by or on behalf of the Customer pursuant to this Agreement which
DWR determines, in good faith, to be in the best interests of the
Customer, except that DWR shall be liable to the Customer, the
General Partner, the Limited Partners, and its or their
successors and assigns for, and shall indemnify and defend them
and hold them harmless from and against, any loss, liability,
damage, cost, and expense (including attorneys' and accountants'
fees) to which any of them may become subject arising out of, or
based upon, an act, omission, conduct, or activity by DWR or its
affiliates in respect of the Customer which shall be found by a
court of competent jurisdiction upon entry of a final judgment
(or, if no final judgment shall be entered, by a written opinion
rendered to the Customer by independent legal counsel, who shall
be other than counsel to the Customer, DWR or any affiliate
thereof) to have constituted bad faith, misconduct, or negligence
and such act, omission, activity, or conduct was not done in good
faith and in the reasonable belief that it was in the best
interests of the Customer.
The Customer shall indemnify, defend, and hold harmless
DWR and its affiliates from and against any loss, liability,
damage, cost, or expense (including attorneys' and accountants'
fees and expenses incurred in defense of any demands, claims, or
lawsuits) actually and reasonably incurred arising from actions
or omissions concerning the business or activities undertaken by
or on behalf of the Customer, including, without limitation, any
demands, claims, or lawsuits initiated by a Limited Partner (or
assignee thereof), provided that (1) DWR has determined, in good
faith, that the act, omission, conduct, or activity giving rise
to the claim for indemnification was in the best interests of the
Customer, and (2) a court of competent jurisdiction upon entry of
a final judgment shall find (or, if no final judgment is entered,
an opinion is rendered to the Customer by independent legal
counsel, who shall be other than counsel to the Customer, DWR or
any affiliate thereof) to the effect that the act, omission,
activity, or conduct that was the basis for such loss, liability,
damage, cost, or expense was not the result of bad faith,
misconduct, or negligence and was done in good faith and in the
reasonable belief that it was in the best interests of the
Customer. Notwithstanding the foregoing, no indemnification of
DWR or its affiliates by the Customer shall be permitted for
losses resulting from liability incurred for violation of federal
or state securities laws. DWR and such affiliates shall be
indemnified for settlements and related expenses of lawsuits
alleging securities law violations, and for expenses incurred in
successfully defending such lawsuits, provided that a court
either (1) approves the settlement and finds that indemnification
of the settlement and related costs should be made, or (2)
approves indemnification of litigation costs if a successful
defense is made; provided, however, that DWR or such affiliate,
as the case may be, must apprise the court of the position of the
SEC (and, as long as any Limited Partner is a resident of
Massachusetts or Tennessee, the positions of the respective
securities administrators of such states), and, where violations
of the securities laws or rules of any state or other
jurisdiction have been alleged, the position (if any) of the
securities administrator of each such state or other jurisdiction
whose laws or rules have allegedly been violated, with respect to
indemnification for securities laws violations before seeking
court approval for indemnification. Furthermore, in any action
or proceeding brought by a Limited Partner in the right of the
Customer to which DWR or any affiliate thereof is a party
defendant, any such person shall be <PAGE>indemnified only to the
extent and subject to the conditions specified in the Delaware
Revised Uniform Limited Partnership Act, as amended, or this
Section 8. The Customer shall make advances to DWR or its
affiliates hereunder only if: (1) the demand, claim, or lawsuit
relates to the performance of duties or services by such persons
to the Customer; (2) such demand, claim, or lawsuit is not
initiated by a Limited Partner; and (3) such advances are repaid
if the person receiving such advance is ultimately found not to
be entitled to indemnification hereunder.
The indemnities provided in this Section 8 by the
Customer to DWR and its affiliates shall be inapplicable in the
event of any losses, liabilities, damages, costs, or expenses
arising out of, or based upon, any material breach of any
warranty, covenant, or agreement of DWR contained in this
Agreement to the extent caused by such breach. Likewise, the
indemnities provided in this Section 8 by DWR to the Customer and
any of its successors and assigns shall be inapplicable in the
event of any losses, liabilities, damages, costs, or expenses
arising out of, or based upon, any material breach of any
warranty, covenant, or agreement of the Customer contained in
this Agreement to the extent caused by such breach.
As used in this Section 8, the term "affiliate" of DWR
shall mean: (i) any natural person, partnership, corporation,
association, or other legal entity directly or indirectly owning,
controlling, or holding with power to vote 10% or more of the
outstanding voting securities of DWR; (ii) any partnership,
corporation, association, or other legal entity 10% or more of
whose outstanding voting securities are directly or indirectly
owned, controlled, or held with power to vote by DWR; (iii) any
natural person, partnership, corporation, association, or other
legal entity directly or indirectly controlling, controlled by,
or under common control with, DWR; or (iv) any officer or
director of DWR. Notwithstanding the foregoing, "affiliates" for
purposes of this Section 8 shall include only those persons
acting on behalf of DWR within the scope of the authority of DWR,
as set forth in this Agreement.
9. Term. This Agreement shall continue in effect
until terminated by either party giving not less than 60 days'
prior written notice of termination to the other party. Any such
termination by either party shall be without penalty.
10. Complete Agreement. This Agreement constitutes
the entire agreement between the parties with respect to the
matters referred to herein, and no other agreement, verbal or
otherwise, shall be binding as between the parties unless in
writing and signed by the party against whom enforcement is
sought.
11. Assignment. This Agreement may not be assigned by
either party without the express written consent of the other
party.
12. Amendment. This Agreement may not be amended
except by the written consent of the parties and provided such
amendment is consistent with the Limited Partnership Agreement.
13. Notices. All notices required or desired to be
delivered under this Agreement shall be in writing and shall be
effective when delivered personally on the day delivered, or when
given by registered or certified mail, postage prepaid, return
receipt requested, on the day of receipt, addressed as follows
(or to such other address as the party entitled to notice shall
hereafter designate in accordance with the terms hereof):
<PAGE>if to the Customer:
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
c/o Demeter Management Corporation
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Mark J. Hawley
President
if to DWR:
DEAN WITTER REYNOLDS INC.
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Mark J. Hawley
Executive Vice President
14. Survival. The provisions of this Agreement shall
survive the termination of this Agreement with respect to any
matter arising while this Agreement was in effect.
15. Headings. Headings of Sections herein are for the
convenience of the parties only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
16. Incorporation by Reference. The Futures Customer
Agreement annexed hereto is hereby incorporated by reference
herein and made a part hereof to the same extent as if such
document were set forth in full herein. If any provision of this
Agreement is or at any time becomes inconsistent with the annexed
document, the terms of this Agreement shall control.
IN WITNESS WHEREOF, this Agreement has been executed
for and on behalf of the undersigned as of the day and year first
above written.
DEAN WITTER DIVERSIFIED FUTURES
FUND II L.P.
By: Demeter Management Corporation,
General Partner
By: /s/ Mark J. Hawley
Mark J. Hawley
President
DEAN WITTER REYNOLDS INC.
By: /s/ Mark J. Hawley
Mark J. Hawley
Executive Vice President
<PAGE>
Futures Customer Agreement
In consideration of the acceptance by Dean Witter Reynolds Inc.
("DWR") of one or more accounts of the undersigned ("Customer")
(if more than one account is carried by DWR, all are covered by
this Agreement and are referred to collectively as the "Account")
and DWR's agreement to act as Customer's broker for the
execution, clearance and/or carrying of transactions for the
purchase and sale of commodity interests, including commodities,
commodity futures contracts and commodity options, Customer
agrees as follows:
1. APPLICABLE RULES AND REGULATIONS - The Account and each
transaction therein shall be subject to the terms of this
Agreement and to (a) all applicable laws and the
regulations, rules and orders (collectively "regulations")
of all regulatory and self-regulatory organizations having
jurisdiction and (b) the constitution, by-laws, rules,
regulations, orders, resolutions, interpretations and
customs and usages (collectively "rules") of the market and
any associated clearing organization (each an "exchange") on
or subject to the rules of which such transaction is
executed and/or cleared. The reference in the preceding
sentence to exchange rules is solely for DWR's protection
and DWR's failure to comply therewith shall not constitute a
breach of this Agreement or relieve Customer of any
obligation or responsibility under this Agreement. DWR
shall not be liable to Customer as a result of any action by
DWR, its officers, directors, employees or agents to comply
with any rule or regulation.
2. PAYMENTS TO DWR - Customer agrees to pay to DWR immediately
on request (a) commissions, fees and service charges as are
in effect from time to time together with all applicable
regulatory and self-regulatory organization and exchange
fees, charges and taxes; (b) the amount of any debit balance
or any other liability that may result from transactions
executed for the account; and (c) interest on such debit
balance or liability at the prevailing rate charged by DWR
at the time such debit balance or liability arises and
service charges on any such debit balance or liability
together with any reasonable costs and attorney's fees
incurred in collecting any such debit balance or liability.
Customer acknowledges that DWR may charge commissions at
other rates to other customers.
3. CUSTOMER'S DUTY TO MAINTAIN ADEQUATE MARGIN - Customer shall
at all times and without prior notice or demand from DWR
maintain adequate margins in the account so as continually
to meet the original and maintenance margin requirements
established by DWR for Customer. DWR may change such
requirements from time to time at DWR's discretion. Such
margin requirements may exceed the margin requirements set
by any exchange or other regulatory authority and may vary
from DWR's requirements for other customers. Customer
agrees, when so requested, immediately to wire transfer
margin funds and to furnish DWR with names of bank officers
for immediate verification of such transfers. Customer
acknowledges and agrees that DWR may receive and retain as
its own any interest, increment, profit, gain or
<PAGE>
benefit directly or indirectly, accruing from any of the
funds DWR receives from Customer.
4. DELIVERY; OPTION EXERCISE
(a) Customer acknowledges that the making or accepting of
delivery pursuant to a futures contract may involve a
much higher degree of risk than liquidating a position
by offset. DWR has no control over and makes no
warranty with respect to grade, quality or tolerances
of any commodity delivered in fulfillment of a
contract.
(b) Customer agrees to give DWR timely notice and
immediately on request to inform DWR if Customer
intends to make or take delivery under a futures
contract or to exercise an option contract. If so
requested, Customer shall provide DWR with satisfactory
assurances that Customer can fulfill Customer's
obligation to make or take delivery under any contract.
Customer shall furnish DWR with property deliverable by
it under any contract in accordance with DWR's
instructions.
(c) DWR shall not have any obligation to exercise any long
option contract unless Customer has furnished DWR with
timely exercise instructions and sufficient initial
margin with respect to each underlying futures
contract.
5. FOREIGN CURRENCY - If DWR enters into any transaction for
Customer effected in a currency other than U.S. dollars:
(a) any profit or loss caused by changes in the rate of
exchange for such currency shall be for Customer's account
and risk and (b) unless another currency is designated in
DWR's confirmation of such transaction, all margin for such
transaction and the profit or loss on the liquidation of
such transaction shall be in U.S. dollars at a rate of
exchange determined by DWR in its discretion on the basis of
then prevailing market rates of exchange for such foreign
currency.
6. DWR MAY LIMIT POSITIONS HELD - Customer agrees that DWR, at
its discretion, may limit the number of open positions (net
or gross) which Customer may execute, clear and/or carry
with or acquire through it. Customer agrees (a) not to make
any trade which would have the effect of exceeding such
limits, (b) that DWR may require Customer to reduce open
positions carried with DWR and (c) that DWR may refuse to
accept orders to establish new positions. DWR may impose
and enforce such limits, reduction or refusal whether or not
they are required by applicable law, regulations or rules.
Customer shall comply with all position limits established
by any regulatory or self-regulatory organization or any
exchange. In addition, Customer agrees to notify DWR
promptly if customer is required to file position reports
with any regulatory or self-regulatory organization or with
any exchange.
7. NO WARRANTY AS TO INFORMATION OR RECOMMENDATION - Customer
acknowledges that:
<PAGE>
(a) Any market recommendations and information DWR may
communicate to Customer, although based upon
information obtained from sources believed by DWR to be
reliable, may be incomplete and not subject to
verification;
(b) DWR makes no representation, warranty or guarantee as
to, and shall not be responsible for, the accuracy or
completeness of any information or trading
recommendation furnished to Customer;
(c) recommendations to Customer as to any particular
transaction at any given time may differ among DWR's
personnel due to diversity in analysis of fundamental
and technical factors and may vary from any standard
recommendation made by DWR in its market letters or
otherwise; and
(d) DWR has no obligation or responsibility to update any
market recommendations or information it communicates
to Customer.
Customer understands that DWR and its officers,
directors, affiliates, stockholders, representatives or
associated persons may have positions in and may intend to buy or
sell commodity interests which are the subject of market
recommendations furnished to Customer, and that the market
positions of DWR or any such officer, director, affiliate,
stockholder, representative or associated person may or may not
be consistent with the recommendations furnished to Customer by
DWR.
8. LIMITS ON DWR DUTIES; LIABILITY - Customer agrees:
(a) that DWR has no duty to apprise Customer of news or of
the value of any commodity interests or collateral
pledged or in any way to advise Customer with respect
to the market;
(b) that the commissions which DWR receives are
consideration solely for the execution, reporting and
carrying of Customer's trades;
(c) that if Customer has authorized any third party or parties
to place orders or effect transactions on behalf of Customer in
any Account, each such party has been selected by Customer based
on its own evaluation and assessment of such party and that such
party is solely the agent of Customer, and if any such party
allocates commodity interests among its customers, Customer has
reviewed each such party's commodity interest allocation system,
has satisfied itself that such allocation system is fair and will
seek recovery solely from such party to recover any damages
sustained by Customer as the result of any allocation made by
such party; and
<PAGE>
(d) to waive any and all claims, rights or causes of action
which Customer has or may have against DWR or its
officers, employees and agents (i) arising in whole or
in part, directly or indirectly, out of any act or
omission of any person, whether or not legally deemed
an agent of DWR, who refers or introduces Customer to
DWR or places orders for Customer and (ii) for any
punitive damages and to limit any claims arising out of
this Agreement or the Account to Customer's direct out-
of-pocket damages.
9. EXTRAORDINARY EVENTS - Customer shall have no claim against
DWR for any loss, damage, liability, cost, charge, expense,
penalty, fine or tax caused directly or indirectly by
(a) governmental, court, exchange, regulatory or self-
regulatory organization restrictions, regulations, rules,
decisions or orders, (b) suspension or termination of
trading, (c) war or civil or labor disturbance, (d) delay or
inaccuracy in the transmission or reporting of orders due to
a breakdown or failure of computer services, transmission or
communication facilities, (e) the failure or delay by any
exchange to enforce its rules or to pay to DWR any margin
due in respect of Customer's Account, (f) the failure or
delay by any bank, trust company, clearing organization or
other person which, pursuant to applicable exchange rules,
is holding Customer funds, securities or other property to
pay or deliver the same to DWR or (g) any other cause or
causes beyond DWR's control.
10. INDEMNIFICATION OF DWR - Customer agrees to indemnify,
defend and hold harmless DWR and its officers, employees and
agents from and against any loss, cost, claim, damage
(including any consequential cost, loss or damage),
liability or expense (including reasonable attorneys' fees)
and any fine, sanction or penalty made or imposed by any
regulatory or self-regulatory authority or any exchange as
the result, directly or indirectly, of:
(a) Customer's failure or refusal to comply with any
provision of this Agreement or perform any obligation
on its part to be performed pursuant to this Agreement;
and
(b) Customer's failure to timely deliver any security,
commodity or other property previously sold by DWR on
Customer's behalf.
11 NOTICES; TRANSMITTALS - DWR shall transmit all
communications to Customer at Customer's address, telefax or
telephone number set forth in the accompanying Futures
Account Application or to such other address as Customer may
hereafter direct in writing. Customer shall transmit all
communications to DWR (except routine inquiries concerning
the Account) to 130 Liberty Street, New York, NY 10006,
Attention: Futures Compliance Officer. All payments and
deliveries to DWR shall be made as instructed by DWR from
time to time and shall be deemed received only when actually
received by DWR.
<PAGE>
12. CONFIRMATION CONCLUSIVE - Confirmation of trades and any
other notices sent to Customer shall be conclusive and
binding on Customer unless Customer or Customer's agent
notifies DWR to the contrary (a) in the case of an oral
report, orally at the time received by Customer or its agent
or (b) in the case of a written report or notice, in writing
prior to opening of trading on the business day next
following receipt of the report. In addition, if Customer
has not received a written confirmation that a commodity
interest transaction has been executed within three business
days after Customer has placed an order with DWR to effect
such transaction, and has been informed or believes that
such order has been or should have been executed, then
Customer immediately shall notify DWR thereof. Absent such
notice, Customer conclusively shall be deemed estopped to
object and to have waived any such objection to the failure
to execute or cause to be executed such transaction.
Anything in this Section 12 withstanding, neither Customer
nor DWR shall be bound by any transaction or price reported
in error.
13. SECURITY INTEREST - All money and property ("collateral")
now or at any future time held in Customer's Account, or
otherwise held by DWR for Customer, is subject to a security
interest in DWR's favor to secure any indebtedness at any
time owing to it by Customer. DWR, in its discretion, may
liquidate any collateral to satisfy any margin or Account
deficiencies or to transfer the collateral to the general
ledger account of DWR.
14. TRANSFER OF FUNDS - At any time and from time to time and
without prior notice to Customer, DWR may transfer from one
account to another account in which Customer has any
interest, such excess funds, equities, securities or other
property as in DWR's judgment may be required for margin, or
to reduce any debit balance or to reduce or satisfy any
deficits in such other accounts except that no such transfer
may be made from a segregated account subject to the
Commodity Exchange Act to another account maintained by
Customer unless either Customer has authorized such transfer
in writing or DWR is effecting such transfer to enforce
DWR's security interest pursuant to Section 13. DWR
promptly shall confirm all transfers of funds made pursuant
hereto to Customer in writing.
15. DWR'S RIGHT TO LIQUIDATE CUSTOMER POSITIONS - In addition to
all other rights of DWR set forth in this Agreement:
(a) when directed or required by a regulatory or self-
regulatory organization or exchange having jurisdiction
over DWR or the Account;
(b) whenever, in its discretion, DWR considers it necessary
for its protection because of margin requirements or
otherwise;
(c) if Customer or any affiliate of Customer repudiates,
violates, breaches or fails to perform on a timely
basis any term, covenant or condition on its part to be
performed under this Agreement or another agreement
with DWR;
<PAGE>
(d) if a case in bankruptcy is commenced or if a proceeding
under any insolvency or other law for the protection of
creditors or for the appointment of a receiver,
liquidator, trustee, conservator, custodian or similar
officer is filed by or against Customer or any
affiliate of Customer, or if Customer or any affiliate
of Customer makes or proposes to make any arrangement
or composition for the benefit of its creditors, or if
Customer (or any such affiliate) or any or all of its
property is subject to any agreement, order, judgment
or decree providing for Customer's dissolution, winding-
up, liquidation, merger, consolidation, reorganization
or for the appointment of a receiver, liquidator,
trustee, conservator, custodian or similar officer of
Customer, such affiliate or such property;
(e) DWR is informed of Customer's death or mental
incapacity; or
(f) if an attachment or similar order is levied against the
Account or any other account maintained by Customer or
any affiliate of Customer with DWR;
DWR shall have the right to (i) satisfy any obligations due
DWR out of any Customer's property in DWR's custody or
control, (ii) liquidate any or all of Customer's commodity
interest positions, (iii) cancel any or all of Customer's
outstanding orders, (iv) treat any or all of Customer's
obligations due DWR as immediately due and payable, (v) sell
any or all of Customer's property in DWR's custody or
control in such manner as DWR determines to be commercially
reasonable, and/or (vi) terminate any or all of DWR's
obligations for future performance to Customer, all without
any notice to or demand on Customer. Any sale hereunder may
be made in any commercially reasonable manner. Customer
agrees that a prior demand, call or notice shall not be
considered a waiver of DWR's right to act without demand or
notice as herein provided, that Customer shall at all times
be liable for the payment of any debit balance owing in each
account upon demand whether occurring upon a liquidation as
provided under this Section 15 or otherwise under this
Agreement, and that in all cases Customer shall be liable
for any deficiency remaining in each Account in the event of
liquidation thereof in whole or in part together with
interest thereon and all costs relating to liquidation and
collection (including reasonable attorneys' fees).
16. CUSTOMER REPRESENTATIONS, WARRANTIES AND AGREEMENTS -
Customer represents and warrants to and agrees with DWR
that:
(a) Customer has full power and authority to enter into
this Agreement and to engage in the transactions and
perform its obligations hereunder and contemplated
hereby and (i) if a corporation or a limited liability
company, is duly organized under the laws of the
jurisdiction set forth in the accompanying Futures
Account Application, or (ii) if a partnership, is duly
organized pursuant to a written partnership agreement
and the general partner executing this Agreement is
duly authorized to do so under the partnership
agreement;
<PAGE>
(b) Neither Customer nor any partner, director, officer,
member, manager or employee of Customer nor any
affiliate of Customer is a partner, director, officer,
member, manager or employee of a futures commission
merchant introducing broker, exchange or self-
regulatory organization or an employee or commissioner
of the Commodity Futures Trading Commission (the
"CFTC"), except as previously disclosed in writing to
DWR;
(c) The accompanying Futures Account Application and
Personal Financial Statements, if applicable,
(including any financial statements furnished in
connection therewith) are true, correct and complete.
Except as disclosed on the accompanying Futures Account
Application or otherwise provided in writing,
(i) Customer is not a commodity pool or is exempt from
registration under the rules of the Commission, and
(ii) Customer is acting solely as principal and no one
other than Customer has any interest in any Account of
Customer. Customer hereby authorizes DWR to contact
such banks, financial institutions and credit agencies
as DWR shall deem appropriate for verification of the
information contained herein.
(d) Customer has determined that trading in commodity
interests is appropriate for Customer, is prudent in
all respects and does not and will not violate
Customer's charter or by-laws (or other comparable
governing document) or any law, rule, regulation,
judgment, decree, order or agreement to which Customer
or its property is subject or bound;
(e) As required by CFTC regulations, Customer shall create,
retain and produce upon request of the applicable
contract market, the CFTC or the United States
Department of Justice documents (such as contracts,
confirmations, telex printouts, invoices and documents
of title) with respect to cash transactions underlying
exchanges of futures for cash commodities or exchange
of futures in connection with cash commodity
transactions;
(f) Customer consents to the electronic recording, at DWR's
discretion, of any or all telephone conversations with
DWR (without automatic tone warning device), the use of
same as evidence by either party in any action or
proceeding arising out of the Agreement and in DWR's
erasure, at its discretion, of any recording as part of
its regular procedure for handling of recordings;
(g) Absent a separate written agreement between Customer
and DWR with respect to give-ups, DWR, in its
discretion, may, but shall have no obligation to,
accept from other brokers commodity interest
transactions executed by such brokers on an exchange
for Customer and proposed to be "given-up" to DWR for
clearance and/or carrying in the Account;
<PAGE>
(h) DWR, for and on behalf of Customer, is authorized and
empowered to place orders for commodity interest
transactions through one or more electronic or
automated trading systems maintained or operated by or
under the auspices of an exchange, that DWR shall not
be liable or obligated to Customer for any loss,
damage, liability, cost or expense (including but not
limited to loss of profits, loss of use, incidental or
consequential damages) incurred or sustained by
Customer and arising in whole or in part, directly or
indirectly, from any fault, delay, omission, inaccuracy
or termination of a system or DWR's inability to enter,
cancel or modify an order on behalf of Customer on or
through a system. The provisions of this Section 16(h)
shall apply regardless of whether any customer claim
arises in contract, negligence, tort, strict liability,
breach of fiduciary obligations or otherwise; and
(i) If Customer is subject to the Financial Institution
Reform, Recovery and Enforcement Act of 1989, the
certified resolutions set forth following this
Agreement have been caused to be reflected in the
minutes of Customer's Board of Directors (or other
comparable governing body) and this Agreement is and
shall be, continuously from the date hereof, an
official record of Customer.
Customer agrees to promptly notify DWR in writing if any of
the warranties and representations contained in this
Section 16 becomes inaccurate or in any way ceases to be
true, complete and correct.
17. SUCCESSORS AND ASSIGNS - This Agreement shall inure to the
benefit of DWR, its successors and assigns, and shall be
binding upon Customer and Customer's executors, trustees,
administrators, successors and assigns, provided, however,
that this Agreement is not assignable by Customer without
the prior written consent of DWR.
18. MODIFICATION OF AGREEMENT BY DWR; NON-WAIVER PROVISION -
This Agreement may only be altered, modified or amended by
mutual written consent of the parties, except that if DWR
notifies Customer of a change in this Agreement and Customer
thereafter effects a commodity interest transaction in an
account, Customer agrees that such action by Customer will
constitute consent by Customer to such change. No employee
of DWR other than DWR's General Counsel or his or her
designee, has any authority to alter, modify, amend or waive
in any respect any of the terms of this Agreement. The
rights and remedies conferred upon DWR shall be cumulative,
and its forbearance to take any remedial action available to
it under this Agreement shall not waive its right at any
time or from time to time thereafter to take such action.
19. SEVERABILITY - If any term or provision hereof or the
application thereof to any persons or circumstances shall to
any extent be contrary to any exchange, government or self-
regulatory regulation or contrary to any federal, state or
local law or otherwise be invalid or unenforceable, the
remainder of this Agreement or the application of such term
or provision to persons or circumstances other than those as
to which it is contrary, invalid or unenforceable, shall not
be affected thereby.
<PAGE>
20. CAPTIONS - All captions used herein are for convenience
only, are not a part of this Agreement, and are not to be
used in construing or interpreting any aspect of this
Agreement.
21. TERMINATION - This Agreement shall continue in force until
written notice of termination is given by Customer or DWR.
Termination shall not relieve either party of any liability
or obligation incurred prior to such notice. Upon giving or
receiving notice of termination, Customer will promptly take
all action necessary to transfer all open positions in each
account to another futures commission merchant.
22. ENTIRE AGREEMENT - This Agreement constitutes the entire
agreement between Customer and DWR with respect to the
subject matter hereof and supersedes any prior agreements
between the parties with respect to such subject matter.
23. GOVERNING LAW; CONSENT TO JURISDICTION -
(a) In case of a dispute between Customer and DWR arising
out of or relating to the making or performance of this
Agreement or any transaction pursuant to this Agreement
(i) this Agreement and its enforcement shall be
governed by the laws of the State of New York without
regard to principles of conflicts of laws, and
(ii) Customer will bring any legal proceeding against
DWR in, and Customer hereby consents in any legal
proceeding by DWR to the jurisdiction of, any state or
federal court located within the State and City of New
York in connection with all legal proceedings arising
directly, indirectly or otherwise in connection with,
out of, related to or from Customer's Account,
transactions contemplated by this Agreement or the
breach thereof. Customer hereby waives all objections
Customer, at any time, may have as to the propriety of
the court in which any such legal proceedings may be
commenced. Customer also agrees that any service of
process mailed to Customer at any address specified to
DWR shall be deemed a proper service of process on the
undersigned.
(b) Notwithstanding the provisions of Section 23 (a)(ii),
Customer may elect at this time to have all disputes
described in this Section resolved by arbitration. To
make such election, Customer must sign the Arbitration
Agreement set forth in Section 24. Notwithstanding
such election, any question relating to whether
Customer or DWR has commenced an arbitration proceeding
in a timely manner, whether a dispute is within the
scope of the Arbitration Agreement or whether a party
(other than Customer or DWR) has consented to
arbitration and all proceedings to compel arbitration
shall be determined by a court as specified in
Section 23 (a)(ii).
<PAGE>
24. ARBITRATION AGREEMENT (OPTIONAL) - Every dispute between
Customer and DWR arising out of or relating to the making or
performance of this Agreement or any transaction pursuant to
this Agreement, shall be settled by arbitration in
accordance with the rules, then in effect, of the National
Futures Association, the contract market upon which the
transaction giving rise to the claim was executed, or the
National Association of Securities Dealers as Customer may
elect. If Customer does not make such election by
registered mail addressed to DWR at 130 Liberty Street, 29th
Floor, New York, NY 10006; Attention: Deputy General
Counsel, within 45 days after demand by DWR that the
Customer make such election, then DWR may make such
election. DWR agrees to pay any incremental fees which may
be assessed by a qualified forum for making available a
"mixed panel" of arbitrators, unless the arbitrators
determine that Customer has acted in bad faith in initiating
or conducting the proceedings. Judgment upon any award
rendered by the arbitrators may be entered in any court
having jurisdiction thereof.
IN ADDITION TO FOREIGN FORUMS, THREE FORUMS EXIST FOR THE
RESOLUTION OF COMMODITY DISPUTES: CIVIL COURT LITIGATION,
REPARATIONS AT THE COMMODITY FUTURES TRADING COMMISSION
("CFTC") AND ARBITRATION CONDUCTED BY A SELF-REGULATORY OR
OTHER PRIVATE ORGANIZATION.
THE CFTC RECOGNIZES THAT THE OPPORTUNITY TO SETTLE DISPUTES
BY ARBITRATION MAY IN SOME CASES PROVIDE MANY BENEFITS TO
CUSTOMERS, INCLUDING THE ABILITY TO OBTAIN AN EXPEDITIOUS
AND FINAL RESOLUTION OF DISPUTES WITHOUT INCURRING
SUBSTANTIAL COSTS. THE CFTC REQUIRES, HOWEVER, THAT EACH
CUSTOMER INDIVIDUALLY EXAMINE THE RELATIVE MERITS OF
ARBITRATION AND THAT YOUR CONSENT TO THIS ARBITRATION
AGREEMENT BE VOLUNTARY.
BY SIGNING THIS AGREEMENT, YOU (1) MAY BE WAIVING YOUR RIGHT
TO SUE IN A COURT OF LAW AND (2) ARE AGREEING TO BE BOUND BY
ARBITRATION OF ANY CLAIMS OR COUNTERCLAIMS WHICH YOU OR DWR
MAY SUBMIT TO ARBITRATION UNDER THIS AGREEMENT. YOU ARE
NOT, HOWEVER, WAIVING YOUR RIGHT TO ELECT INSTEAD TO
PETITION THE CFTC TO INSTITUTE REPARATIONS PROCEEDINGS UNDER
SECTION 14 OF THE COMMODITY EXCHANGE ACT WITH RESPECT TO ANY
DISPUTE WHICH MAY BE ARBITRATED PURSUANT TO THIS AGREEMENT.
IN THE EVENT A DISPUTE ARISES, YOU WILL BE NOTIFIED IF DWR
INTENDS TO SUBMIT THE DISPUTE TO ARBITRATION. IF YOU
BELIEVE A VIOLATION OF THE COMMODITY EXCHANGE ACT IS
INVOLVED AND IF YOU PREFER TO REQUEST A SECTION 14
"REPARATIONS" PROCEEDINGS BEFORE THE CFTC, YOU WILL HAVE 45
DAYS FROM THE DATE OF SUCH NOTICE IN WHICH TO MAKE THAT
ELECTION.
<PAGE>
YOU NEED NOT AGREE TO THIS ARBITRATION AGREEMENT TO OPEN AN
ACCOUNT WITH DWR. See 17 CFR 180.1-180.5. ACCEPTANCE OF
THIS ARBITRATION AGREEMENT REQUIRES A SEPARATE SIGNATURE ON
PAGE 8.
25. CONSENT TO TAKE THE OTHER SIDE OF ORDERS (OPTIONAL) -
Without its prior notice, Customer agrees that when DWR
executes sell or buy orders on Customer's behalf, DWR, its
directors, officers, employees, agents, affiliates, and any
floor broker may take the other side of Customer's
transaction through any account of such person subject to
its being executed at prevailing prices in accordance with
and subject to the limitations and conditions, if any,
contained in applicable rules and regulations.
26. AUTHORIZATION TO TRANSFER FUNDS (OPTIONAL) - Without
limiting other provisions herein, DWR is authorized to
transfer from any segregated account subject to the
Commodity Exchange Act carried by DWR for the Customer to
any other account carried by DWR for the Customer such
amount of excess funds as in DWR's judgment may be necessary
at any time to avoid a margin call or to reduce a debit
balance in said account. It is understood that DWR will
confirm in writing each such transfer of funds made pursuant
to this authorization within a reasonable time after such
transfer.
27. SUBORDINATION AGREEMENT (Applies only to Accounts with funds
held in foreign countries) - Funds of customers trading on
United States contract markets may be held in accounts
denominated in a foreign currency with depositories located
outside the United States or its territories if the customer
is domiciled in a foreign country or if the funds are held
in connection with contracts priced and settled in a foreign
currency. Such accounts are subject to the risk that events
could occur which hinder or prevent the availability of
these funds for distribution to customers. Such accounts
also may be subject to foreign currency exchange rate risks.
If authorized below, Customer authorizes the deposit of
funds into such foreign depositories. For customers
domiciled in the United States, this authorization permits
the holding of funds in regulated accounts offshore only if
such funds are used to margin, guarantee, or secure
positions in such contracts or accrue as a result of such
positions. In order to avoid the possible dilution of other
customer funds, a customer who has funds held outside the
United States agrees by accepting this subordination
agreement that his claims based on such funds will be
subordinated as described below in the unlikely event both
of the following conditions are met: (1) DWR is placed in
receivership or bankruptcy, and (2) there are insufficient
funds available for distribution denominated in the foreign
currency as to which the customer has a claim to satisfy all
claims against those funds.
<PAGE>
By initialing the Subordination Agreement below, Customer
agrees that if both of the conditions listed above occur,
its claim against DWR's assets attributable to funds held
overseas in a particular foreign currency may be satisfied
out of segregated customer funds held in accounts
denominated in dollars or other foreign currencies only
after each customer whose funds are held in dollars or in
such other foreign currencies receives its pro-rata portion
of such funds. It is further agreed that in no event may a
customer whose funds are held overseas receive more than its
pro-rata share of the aggregate pool consisting of funds
held in dollars, funds held in the particular foreign
currency, and non-segregated assets of DWR.
<PAGE>
OPTIONAL ELECTIONS
The following provisions, which are set forth in this agreement,
need not be entered into to open the Account. Customer agrees
that its optional elections are as follows:
Signature required
for each election
ARBITRATION AGREEMENT:
(Agreement Paragraph 24)
CONSENT TO TAKE THE OTHER SIDE OF ORDERS:
(Agreement Paragraph 25) X /s/ Mark J. Hawley
AUTHORIZATION TO TRANSFER FUNDS:
(Agreement Paragraph 26) X /s/ Mark J. Hawley
ACKNOWLEDGEMENT TO SUBORDINATION AGREEMENT
(Agreement Paragraph 27) X /s/ Mark J. Hawley
(Required for accounts
holding non-U.S. currency)
HEDGE ELECTION
Customer confirms that all transactions in the Account will
represent bona fide hedging transactions, as defined by the
Commodity Futures Trading Commission, unless DWR is notified
otherwise not later than the time an order is placed for the
Account [check box if applicable]:
Pursuant to CFTC Regulation 190.06(d), Customer specifies and
agrees, with respect to hedging transactions in the Account, that
in the unlikely event of DWR's bankruptcy, it prefers that the
bankruptcy trustee [check appropriate box]:
A. Liquidate all open contracts without first seeking instructions
either from or on behalf of Customer.
B. Attempt to obtain instructions with respect to the disposition
of all open contracts.
(If neither box is checked, Customer shall be deemed to
elect A)
ACKNOWLEDGEMENT OF RECEIPT OF RISK DISCLOSURE STATEMENTS
The undersigned each hereby acknowledges its separate receipt
from DWR, and its understanding of each of the following
documents prior to the opening of the account:
Risk Disclosure Statement for Project ATM Customer
Futures and Options (in the form Information Statement
prescribed by CFTC
Regulation 1.55(c))
LME Risk Warning Notice Questions & Answers on Flexible
Options Trading at the CBOT
Dean Witter Order Presumption CME Average Pricing System
for After Hours Electronic Markets Disclosure Statement
<PAGE> Special Notice to Foreign
NYMEX ACCESSSM Risk Disclosure Brokers and Foreign Traders
Statement
Globexr Customer Information
and Risk Disclosure Statement
REQUIRED SIGNATURES
The undersigned has received, read, understands and agrees to all
the provisions of this Agreement and the separate risk disclosure
statements enumerated above and agrees to promptly notify DWR in
writing if any of the warranties and representations contained
herein become inaccurate or in any way cease to be true, complete
and correct.
DEAN WITTER PRINCIPAL PLUS FUND MANAGEMENT L.P.
CUSTOMER NAME(S)
By: DEMETER MANAGEMENT CORPORATION
By: /s/ Mark J. Hawley December 1, 1997
AUTHORIZED SIGNATURE(S) DATE
Mark J. Hawley, President
(If applicable, print name and title
of signatory)
<PAGE>
CUSTOMER AGREEMENT
THIS CUSTOMER AGREEMENT (this "Agreement"), made as of
the 1st day of December, 1997, by and among DEAN WITTER
DIVERSIFIED FUTURES FUND II L.P., a Delaware limited partnership
(the "Customer"), CARR FUTURES INC., a Delaware corporation
("CFI"), and DEAN WITTER REYNOLDS INC., a Delaware corporation
("DWR");
W I T N E S S E T H :
WHEREAS, the Customer was organized pursuant to a
Certificate of Limited Partnership filed in the office of the
Secretary of State of the State of Delaware on September 6, 1988,
and a Limited Partnership Agreement dated as of September 6,
1988, between Demeter Management Corporation, a Delaware
corporation ("Demeter"), acting as general partner (in such
capacity, the "General Partner"), and the limited partners of the
Customer, to trade, buy, sell, spread, or otherwise acquire,
hold, or dispose of commodities (including foreign currencies,
mortgage-backed securities, money market instruments, and any
other securities or items which are, or may become, the subject
of futures contract trading), commodity futures contracts,
commodity forward contracts, foreign exchange commitments,
options on physical commodities and on futures contracts, spot
(cash) commodities and currencies, and any rights pertaining
thereto (hereinafter referred to collectively as "futures
interests"), and securities (such as United States Treasury
bills) approved by the Commodity Futures Trading Commission (the
"CFTC") for investment of customer funds;
WHEREAS, the Customer (which is a commodity pool) and
the General Partner (which is a registered commodity pool
operator) have entered into a management agreement (the
"Management Agreement") with a certain trading advisor (the
"Trading Advisor"), which provides that the Trading Advisor has
authority and responsibility, except in certain limited
situations, to direct the investment and reinvestment of the
assets of the Customer in futures interests under the terms set
forth in the Management Agreement;
WHEREAS, the Customer and DWR have entered into that
certain Amended and Restated Customer Agreement, dated as of
December 1, 1997 (the "DWR Customer Agreement"), whereby DWR
agreed to perform certain non-clearing futures interests
brokerage and other services for the Customer; and
WHEREAS, the Customer, DWR and CFI wish to enter into
this Agreement to set forth the terms and conditions upon which
CFI will perform futures interests execution and clearing
services for the Customer;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
<PAGE>
1. Duties of CFI. CFI agrees to execute and clear
all futures interests brokerage transactions on behalf of the
Customer in accordance with instructions provided by DWR, Demeter
or the Trading Advisor, and the Customer agrees to retain CFI as
its clearing broker for the term of this Agreement. CFI agrees
to maintain such number of subaccounts for the Customer as DWR
reasonably shall request. The execution and clearing services of
CFI provided hereunder shall be in accordance with applicable
exchange rules.
CFI agrees to furnish to the Customer as soon as
practicable all of the information from time to time in its
possession which Demeter, as the general partner of the Customer,
is required to furnish to the Limited Partners pursuant to the
Limited Partnership Agreement as from time to time in effect and
as required by applicable law, rules, or regulations. CFI shall
disclose such information (including, without limitation,
financial statements) regarding itself and its affiliates as may
be required by the Customer for SEC, CFTC and state blue sky
disclosure purposes.
CFI agrees to notify the applicable Trading Advisor and
DWR immediately upon discovery of any error committed by CFI or
any of its agents with respect to a trade executed or cleared by
CFI on behalf of the Customer and to notify DWR promptly of any
order or trade for the Customer's account which CFI believes was
not executed or cleared in accordance with proper instructions
given by DWR, Demeter or any Trading Advisor or other agent for
the Customer's account. Notwithstanding any provision of this
Agreement to the contrary, CFI shall assume financial
responsibility for any errors committed or caused by it in
executing or clearing orders for the purchase or sale of futures
interests for the Customer's account and shall credit the
Customer's account with any profit resulting from an error of
CFI. Errors made by floor brokers appointed or selected by CFI
shall constitute errors made by CFI. However, CFI shall not be
responsible for errors committed by the Trading Advisor.
CFI acknowledges that other partnerships of which the
General Partner is the general partner are not affiliates of the
Customer.
2. Margins. The futures and futures option trades
for the Customer's account shall be margined at the applicable
exchange or clearinghouse minimum rates for speculative accounts;
all subaccounts shall be combined for determining such margin
requirements. All margin calls for the Customer's account shall
be made to DWR by CFI, and each such call for margin shall be met
by Customer within three hours after DWR has received such call.
CFI shall accept as margin for the Customer's account any
instrument deemed acceptable under exchange or clearinghouse
rules pertaining to such account. Upon oral or written request
by DWR, CFI shall, within three hours after receipt of any such
request, wire transfer (by federal bank wire system) to DWR for
Customer's account any funds in the Customer's account with CFI
in excess of the margin requirements for such account.
3. Obligations and Expenses. Except as otherwise set
forth herein, the Customer, and not CFI, shall be responsible for
all taxes, management and incentive fees to the Trading Advisor,
the brokerage commissions to DWR pursuant to the DWR Customer
Agreement, and all extraordinary expenses incurred by it.
<PAGE>
4. Agreement Nonexclusive. CFI shall be free to
render services of the nature to be rendered to the Customer
hereunder to other persons or entities in addition to the
Customer, and the parties acknowledge that CFI may render such
services to additional entities similar in nature to the
Customer, including other partnerships organized with Demeter as
their general partner. It is expressly understood and agreed
that this Agreement is nonexclusive and that the Customer has no
obligation to execute any or all of its trades for futures
interests through CFI. The parties acknowledge that the Customer
may execute and clear trades for futures interests through such
other broker or brokers as Demeter may direct from time to time.
The Customer's utilization of an additional commodity broker
shall neither terminate this Agreement nor modify in any regard
the respective rights and obligations of the Customer and CFI
hereunder.
5. Compensation of CFI. In compensation of CFI's
services pursuant to this Agreement, the Customer shall pay CFI
all NFA fees, clearinghouse fees, exchange fees or other
regulatory fees, taxes (other than income taxes), floor brokerage
fees, third-party clearing fees and give-up fees. DWR shall pay
to CFI such charges with respect to the execution and clearance
of trades for the Customer as DWR and CFI shall agree from time
to time. Subject to the brokerage commission and transaction
fees and costs caps set forth in the DWR Customer Agreement, DWR
shall have no obligation to reimburse the Customer for any
payments made by the Customer to CFI. The Customer shall have no
obligation to reimburse DWR for any payments made by DWR to CFI.
6. Investment Discretion. The parties recognize that
CFI shall have no authority to direct the futures interests
investments to be made for the Customer's account, but shall
execute only such orders for the Customer's account as DWR,
Demeter or the Trading Advisor may direct from time to time.
However, the parties agree that CFI, and not the Trading Advisor,
shall have the authority and responsibility with regard to the
investment, maintenance, and management of the Customer's assets
that are held in segregated or secured accounts, as provided in
Section 7 hereof.
7. Interest on Customer Funds. The Customer's assets
deposited with CFI will be segregated or secured in accordance
with the Commodity Exchange Act and CFTC regulations. All of
such funds will be available for margin for the Customer's
trading. CFI shall pay to DWR such interest income on the
Customer's assets held by CFI as CFI and DWR shall agree from
time to time. The Customer understands that it will not receive
any interest income on its assets held by CFI other than that
paid by DWR pursuant to the DWR Customer Agreement. The
Customer's assets held by CFI may be used solely as margin for
the Customer's trading.
8. Recording Conversations. CFI consents to the
electronic recording, at the discretion of the Customer,
Customer's agents or DWR, of any or all telephone conversations
with CFI (without automatic tone warning device), the use of same
as evidence by either party in any action or proceeding arising
out of this Agreement, and in the Customer's, Customer's agents'
or DWR's erasure, at its discretion, of any recording as a part
of its regular procedure for handling of recordings.
9. Delivery; Option Exercise.
(a) The Customer acknowledges that the making or
accepting of delivery pursuant to a futures contract may involve
a much higher degree of risk than liquidating a position by
offset. CFI has no control over and makes no warranty with
respect to grade, quality or tolerances of any commodity
delivered in fulfillment of a contract.
<PAGE>
(b) The Customer agrees to give CFI timely notice and
immediately on request to inform CFI if the Customer intends to
make or take delivery under a futures contract or to exercise an
option contract. If so requested, the Customer shall provide CFI
with satisfactory assurances that the Customer can fulfill the
Customer's obligation to make or take delivery under any
contract. The Customer shall furnish CFI with property
deliverable by it under any contract in accordance with CFI's
instructions.
(c) CFI shall not have any obligation to exercise any
long option contract unless the Customer has furnished CFI with
timely exercise instructions and sufficient initial margin with
respect to each underlying futures contract.
10. Standard of Liability and Indemnity. Subject to
Section 1 hereof, CFI and its affiliates (as defined below) shall
not be liable to the Customer, the General Partner or Limited
Partners, or any of its or their respective successors or
assigns, for any act, omission, conduct, or activity undertaken
by or on behalf of the Customer pursuant to this Agreement which
CFI determines, in good faith, to be in the best interests of the
Customer, unless such act, omission, conduct, or activity by CFI
or its affiliates constituted misconduct or negligence.
The Customer shall indemnify, defend and hold harmless
CFI and its affiliates from and against any loss, liability,
damage, cost or expense (including attorneys' and accountants'
fees and expenses incurred in the defense of any demands, claims,
or lawsuits) actually and reasonably incurred arising from any
act, omission, conduct, or activity undertaken by CFI on behalf
of the Customer pursuant to this Agreement, including, without
limitation, any demands, claims or lawsuits initiated by a
Limited Partner (or assignee thereof), provided that (i) CFI has
determined, in good faith, that the act, omission, conduct, or
activity giving rise to the claim for indemnification was in the
best interests of the Customer, and (ii) the act, omission,
conduct, or activity that was the basis for such loss, liability,
damage, cost, or expense was not the result of misconduct or
negligence. Notwithstanding anything to the contrary contained
in the foregoing, neither CFI nor any of its affiliates shall be
indemnified by the Customer for any losses, liabilities, or
expenses arising from or out of an alleged violation of federal
or state securities laws unless (a) there has been a successful
adjudication on the merits of each count involving alleged
securities law violations as to the particular indemnitee, or (b)
such claims have been dismissed with prejudice on the merits by a
court of competent jurisdiction as to the particular indemnitee,
or (c) a court of competent jurisdiction approves a settlement of
the claims against the particular indemnitee and finds that
indemnification of the settlement and related costs should be
made, provided, with regard to such court approval, the
indemnitee must apprise the court of the position of the SEC, and
the positions of the respective securities administrators of
Massachusetts, Missouri, Tennessee and/or those other states and
jurisdictions in which the plaintiffs claim they were offered or
sold Units, with respect to indemnification for securities laws
violations before seeking court approval for indemnification.
Furthermore, in any action or proceeding brought by a Limited
Partner in the right of the Customer to which CFI or any
affiliate thereof is a party defendant, any such person shall be
indemnified only to the extent and subject to the conditions
specified in the Delaware Revised Uniform Limited Partnership
Act, as amended, and this Section 10. The Customer shall make
advances to CFI or its affiliates hereunder only if: (i) the
demand, claim, lawsuit, or legal action relates to the
performance of duties or services by such persons to the
Customer; (ii) such demand, claim, lawsuit, or legal action is
not initiated by a Limited Partner; and (iii) such advances are
repaid, with interest at the legal rate under Delaware law, if
the person receiving such advance is ultimately found not to be
entitled to indemnification hereunder.
<PAGE>
CFI shall indemnify, defend and hold harmless the
Customer and its successors or assigns from and against any
losses, liabilities, damages, costs or expenses (including in
connection with the defense or settlement of claims; provided CFI
has approved such settlement) incurred as a result of the
activities of CFI or its affiliates, provided, further, that the
act, omission, conduct, or activity giving rise to the claim for
indemnification was the result of bad faith, misconduct or
negligence.
The indemnities provided in this Section 10 by the
Customer to CFI and its affiliates shall be inapplicable in the
event of any losses, liabilities, damages, costs, or expenses
arising out of, or based upon, any material breach of any
warranty, covenant, or agreement of CFI contained in this
Agreement to the extent caused by such breach. Likewise, the
indemnities provided in this Section 10 by CFI to the Customer
and any of its successors and assigns shall be inapplicable in
the event of any losses, liabilities, damages, costs, or expenses
arising out of, or based upon, any material breach of any
warranty, covenant, or agreement of the Customer contained in
this Agreement to the extent caused by such breach.
As used in this Section 10, the term "affiliate" of CFI
shall mean: (i) any natural person, partnership, corporation,
association, or other legal entity directly or indirectly owning,
controlling, or holding with power to vote 10% or more of the
outstanding voting securities of CFI; (ii) any partnership,
corporation, association, or other legal entity 10% or more of
whose outstanding voting securities are directly or indirectly
owned, controlled, or held with power to vote by CFI; (iii) any
natural person, partnership, corporation, association, or other
legal entity directly or indirectly controlling, controlled by,
or under common control with, CFI; or (iv) any officer or
director of CFI. Notwithstanding the foregoing, "affiliates" for
purposes of this Section 10 shall include only those persons
acting on behalf of CFI within the scope of the authority of CFI,
as set forth in this Agreement.
11. Term. This Agreement shall continue in effect
until terminated by any party giving not less than 60 days' prior
written notice of termination to the other parties. The Customer
shall have the right to terminate this Agreement
(i) at any time, effective upon thirty (30) days'
prior written notice to CFI, in the event that:
(A) CFI announces plans to discontinue the
provision of execution and clearing
services with respect to futures
contracts, options on futures contracts
or acting as a dealer counterparty for
foreign exchange cash and forward
contracts; or
(B) CFI merges or consolidates with or into
or acquires or is acquired by, another
entity or entities acting in concert
(excluding any intergroup
reorganizations with any affiliates of
CFI or any capital contributions by, or
sale of CFI stock to any affiliates of
CFI, provided that the guarantee
agreement between DWR and Credit
Agricole Indosuez S.A. dated as of July
31, 1997 remains in place or a
comparable guaranty is substituted by a
bank with a net worth and credit rating
equal to Credit Agricole Indosuez S.A.)
in a transaction involving the purchase
or sale of stock or substantially all of
the assets of the acquired entity or
which involves a capital contribution to
or by such entity
<PAGE>
or entities (in an amount representing
fifty percent (50%) or more of the book
value of CFI's or such entity's (or
their respective affiliate's) net
worth), or the purchase or sale of stock
representing fifty percent (50%) or more
of CFI's or such entity's (or their
respective affiliate's) outstanding
equity securities; and
(ii) at any time effective immediately upon
written notice to CFI in the event:
(A) CFI ceases to be registered or conduct
business as a futures commission
merchant or discontinues its membership
or clearing membership on any major
futures interest exchange in the United
States (or any affiliated clearing
corporation) or in the NFA; or
(B) a receiver, liquidator or trustee of CFI
is appointed by court order and such
order remains in effect for more than
thirty (30) days; or CFI is adjudicated
bankrupt or insolvent; or any of CFI's
property is sequestered by court order
and such order remains in effect for
more than thirty (30) days; or a
petition is filed against CFI under any
bankruptcy, reorganization, arrangement,
insolvency, readjustment or debt,
dissolution or liquidation law of any
jurisdiction, whether now or hereafter
in effect, and is not dismissed within
thirty (30) days after such filing; or
CFI files a petition in voluntary
bankruptcy or seeking relief under any
provision of any bankruptcy,
reorganization, arrangement, insolvency,
readjustment of debt, dissolution or
liquidation law of any jurisdiction,
whether now or hereafter in effect, or
consents to the filing of any petition
against it under any such law; or
(C) CFI, DWR or the Customer is ordered or
otherwise directed to terminate this
Agreement by any governmental,
regulatory, or self-regulatory
authority.
Any such termination by any party shall be without penalty.
12. Complete Agreement. This Agreement constitutes
the entire agreement among the parties with respect to the
matters referred to herein, and no other agreement, verbal or
otherwise, shall be binding as among the parties unless in
writing and signed by the party against whom enforcement is
sought.
13. Assignment. This Agreement may not be assigned by
any party without the express written consent of the other
parties.
14. Amendment. This Agreement may not be amended except by the
written consent of the parties.
<PAGE>
15. Notices. All notices required or desired to be
delivered under this Agreement shall be in writing and shall be
effective when delivered personally on the day delivered, or when
given by registered or certified mail, postage prepaid, return
receipt requested, on the day of receipt, addressed as follows
(or to such other address as the party entitled to notice shall
hereafter designate in accordance with the terms hereof):
if to the Customer:
DEAN WITTER DIVERSIFIED FUTURES FUND II L.P.
c/o Demeter Management Corporation
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Mark J. Hawley
President
if to DWR:
DEAN WITTER REYNOLDS INC.
Two World Trade Center, 62nd Floor
New York, New York 10048
Attn: Mark J. Hawley
Executive Vice President
if to CFI:
CARR FUTURES INC
10 South Wacker Drive, Suite 1125
Chicago, Illinois 60606
Attn: Legal/Compliance Department
16. Survival. The provisions of this Agreement shall
survive the termination of this Agreement with respect to any
matter arising while this Agreement was in effect.
17. Headings. Headings of Sections herein are for the
convenience of the parties only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
18. Incorporation by Reference. The Futures Account
Agreement annexed hereto is hereby incorporated by reference
herein and made a part hereof to the same extent as if such
document were set forth in full herein. If any provision of this
Agreement is or at any time becomes inconsistent with the annexed
document, the terms of this Agreement shall control.
19. Governing Law; Venue. This Agreement shall be
governed by, and construed in accordance with, the law of the
State of New York (without regard to its choice of law
principles). If any action or proceeding shall be brought by a
party to this Agreement or to enforce any right or remedy under
this Agreement, each party hereto hereby consents and will submit
to the jurisdiction of the courts of the State of New York or any
federal court sitting in the County, City and State of New York.
Any action or proceeding brought by any party to this Agreement
to enforce any right, assert any claim, or obtain any relief
whatsoever in connection with this Agreement shall be brought by
such party exclusively in the courts of the State of New York or
any federal court sitting in the County, City and State of New
York.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed
for and on behalf of the undersigned as of the day and year first
above written.
DEAN WITTER DIVERSIFIED FUTURES
FUND II L.P.
By: Demeter Management Corporation,
General Partner
By: /s/ Mark J. Hawley
Mark J. Hawley
President
DEAN WITTER REYNOLDS INC.
By: /s/ Mark J. Hawley
Mark J. Hawley
Executive Vice President
CARR FUTURES INC.
By: /s/ Lawrence P. Anderson
Name: Lawrence P. Anderson
Title: Executive Vice President
<PAGE>
CARR FUTURES INC.
FUTURES ACCOUNT AGREEMENT
In consideration of the acceptance by Carr Futures Inc. ("Carr")
of one or more accounts of the undersigned ("Customer") (if more
than one account is at any time opened or reopened with Carr, all
are covered by this Agreement and are referred to individually
and collectively as the "Account"), and Carr's agreement to act
as broker, directly or indirectly, or as dealer, for the
execution, clearance and/or carrying of transactions for the
purchase and sale of commodity interests, including commodities,
forward contracts, commodity futures contracts, options on
commodity futures contracts and transaction involving the
exchange of futures for cash commodities or the exchange of
futures in connection with cash commodity transactions, Customer
agrees as follows:
1. APPLICABLE RULES AND REGULATIONS
The Account and each transaction therein shall be subject to
the terms of this Agreement and to (a) all applicable laws
and the regulations, rules and orders (collectively
"regulations") of all regulatory and self-regulatory
organizations having jurisdiction and (b) the constitution,
by-laws, rules, regulations, orders, resolutions,
interpretations and customs and usages (collectively
"rules") of the market and any associated clearing
organization (each an "exchange") on or subject to the rules
of which such transaction is executed and/or cleared. The
reference in the preceding sentence to exchange rules is
solely for Carr's protection and Carr's failure to comply
therewith shall not constitute a breach of this Agreement or
relieve Customer of any obligation or responsibility under
this Agreement. Carr shall not be liable to Customer as a
result of any action by Carr, its officers, directors,
employees or agents to comply with any rule or regulation.
2. PAYMENTS TO CARR
Customer agrees to pay to Carr immediately on request (a)
commissions, give-up charges, fees and service charges as
are in effect from time to time, together with all
applicable regulatory and self-regulatory organization and
exchange fees, charges and taxes; (b) the amount of any
debit balance or any other liability that may result from
transactions executed for the Account; and (c) interest on
such debit balance or liability at the prevailing rate
charged by Carr at the time such debit balance or liability
arises and service charges on any such debit balance or
liability together with any reasonable costs and attorneys'
fees incurred in collecting any such debit balance or
liability. Customer acknowledges that Carr may charge
commissions at other rates to other customers.
3. CUSTOMER'S DUTY TO MAINTAIN ADEQUATE MARGIN
Customer shall at all times, and without prior notice or
demand from Carr, maintain adequate margin (also known as
"performance bond") in the Account so as to continually to
meet the original and maintenance margin requirements
established by Carr for Customer. Carr may change such
requirements from time to time at Carr's discretion. Such
margin requirements may exceed the margin requirements set
by any exchange or
<PAGE>
other regulatory authority and may vary from Carr's
requirements for other customers. Customer agrees, when so
requested, orally or by written notice, immediately (in no
less than one hour) to wire transfer (by federal bank wire
system to the account of Carr) margin funds, and to furnish
Carr with names of bank officers for immediate verification
of such transfers. Customer acknowledges and agrees that
Carr may receive and retain as its own any interest,
increment, profit, gain or benefit, directly or indirectly,
accruing from any of the funds Carr receives from Customer.
4. DELIVERY; OPTION EXERCISE
Liquidating instructions on open positions maturing in a
current delivery month must be given to Carr at least five
business days prior to the first notice day in the case of
long positions, and at least five business days prior to the
last trading day in the case of short positions.
Alternatively, sufficient funds to take delivery or the
necessary delivery documents must be delivered to Carr
within the same period described above. If funds, documents
or instructions are not received, Carr may, without notice,
either liquidate Customer's position or make or receive
delivery on behalf of Customer upon such terms and by such
methods as Carr, in its sole discretion, determines.
If, at any time, Customer fails to deliver to Carr any
property previously sold by Carr on Customer's behalf in
compliance with commodity interest contracts, or Carr shall
deem it necessary (whether by reason of the requirements of
any exchange, clearing house or otherwise) to replace any
securities, commodity interest contracts, financial
instruments, or other property previously delivered by Carr
for the Account of Customer with other property of like or
equivalent kind or amount, Customer hereby authorizes Carr,
in its sole judgment, to borrow or to buy any property
necessary to make delivery thereof, or to replace any such
property previously delivered, or to deliver the same to
such other party or to whom delivery is to be made. Carr
may subsequently repay any borrowing or purchase thereof
with property purchased or otherwise acquired for the amount
of Customer. Customer shall pay Carr for any cost, loss and
damages from the foregoing, including, but not limited to,
consequential damages, penalties and fines which Carr may
incur or which Carr may sustain from its inability to borrow
or buy any such property.
Customer understands that some exchanges and clearing houses
have established cut-off times for the tender of exercise
instructions, and that an option will become worthless if
instructions are not delivered before such expiration time.
Customer also understands that certain exchanges and
clearing houses automatically will exercise some "in-the-
money" options unless instructed otherwise. Customer
acknowledges full responsibility for taking action either to
exercise or to prevent the exercise of an option contract,
as the case may be, and Carr is not required to take any
action with respect to an option contract, including without
limitations any action to exercise an option prior to its
expiration date, or to prevent the automatic exercise of an
option, except upon Customer's express instructions.
Customer further understands that Carr may establish
exercise cut-off times which may be different from the times
established by exchanges and clearing houses.
<PAGE>
Customer understands that (a) all short option positions are
subject to assignment at any time, including positions
established on the same day that exercises are assigned, and
(b) exercised assignment notices are allocated randomly from
among all Carr customer's short options positions which are
subject to exercise. A more detailed description of Carr's
allocation procedures is available upon request.
5. FOREIGN CURRENCY
If Carr enters into any transaction for Customer effected in
a currency other than U.S. dollars: (a) any profit or loss
caused by changes in the rate of exchange for such currency
shall be for Customer's Account and risk and (b) unless
another currency is designated in Carr's confirmation of
such transaction, all margin for such transaction and the
profit or loss on the liquidation of such transaction shall
be in U.S. dollars at a rate of exchange determined by Carr
in its discretion on the basis of then prevailing market
rates of exchange for such foreign currency.
6. CARR MAY LIMIT POSITIONS HELD
Customer agrees that Carr, at its discretion, may limit the
number of open positions (net or gross) which Customer may
execute, clear and/or carry with or acquire through it.
Customer agrees (a) not to make any trade which would have
the effect or exceeding such limits, (b) that Carr may
require Customer to reduce open positions carried with Carr
and (c) that Carr may refuse to accept orders to establish
new positions. Carr may impose and enforce such limits,
reduction or refusal whether or not they are required by
applicable law, regulations or rules. Customer shall comply
with all position limits established by any regulatory or
self-regulatory organization or any exchange. In addition,
Customer agrees to notify Carr promptly if Customer is
required to file position reports with any regulatory or
self-regulatory organization or with any exchange.
7. NO WARRANTY AS TO INFORMATION OR RECOMMENDATION
Customer acknowledges that:
(a) Any market recommendations and information Carr may
communicate to Customer, although based upon information obtained
from sources believed by Carr to be reliable, may be incomplete
and not subject to verification;
(b) Carr makes no representation, warranty or guarantee as to,
and shall not be responsible for, the accuracy or completeness of
any information or trading recommendation furnished to Customer;
(c) Recommendations to Customer as to any particular transaction
at any given time may differ among Carr's personnel due to
diversity in analysis of fundamental and technical factors and
may vary from any standard recommendation made by Carr in its
research reports or otherwise; and
<PAGE>
(d) Carr has no obligation or responsibility to update any
market recommendations, research or information it communicates
to Customer.
Customer understands that Carr and its officers, directors,
affiliates, stockholders, representatives or associated
persons may have positions in and may intend to buy or sell
commodity interests that are the subject of market
recommendations furnished to Customer, and that the market
positions of Carr or any such officer, director, affiliate,
stockholder, representative or associated person may or may
not be consistent with the recommendations furnished to
Customer by Carr.
8. LIMITS ON CARR DUTIES; LIABILITY
Customer agrees:
(a) That Carr has no duty to apprise Customer of news or of the
value of any commodity interests or collateral pledged or in any
way to advise Customer with respect to the market;
(b) That the commissions which Carr receives are consideration
solely for the execution, reporting and carrying of Customer's
trades;
(c) If there is an Account Manager, an Account Manager's
Agreement for the Account Manager will be provided to Carr.
Customer represents it has received: (1) a disclosure document
concerning such Account Manager's trading advice, including, in
the event the Account Manager will trade options, the options
strategies to be utilized, or (2) a written statement explaining
why Account Manager is not required under applicable law to
provide such a disclosure document to Customer; and
(d) Customer acknowledges, understands and agrees that Carr is
in no way responsible for any loss to Customer occasioned by the
actions of the Account Manager and Carr does not by implication
or otherwise endorse the operating methods or trading strategies
or programs of the Account Manager.
9. EXTRAORDINARY EVENTS
Customer agrees that Carr shall have no liability for
damages, claims, losses or expenses caused by any errors,
omissions or delays resulting from an act, condition or
cause beyond the reasonable control of Carr, including, but
not limited to: war; insurrection; riot; strike; act of
God; fire; flood; extraordinary weather conditions;
accident; action of government authority; action of
exchange, clearinghouse or clearing organization;
communications or power failure; equipment or software
malfunction; error, omission or delay in the report of
transactions; prices, exchange rates or other market or
transaction information; or the insolvency, bankruptcy,
receivership, liquidation or other financial difficulty of
any bank, clearing broker, exchange, market, clearinghouse
or clearing organization.
<PAGE>
10. INDEMNIFICATION OF CARR, CONTRIBUTION AND REIMBURSEMENT
(a) To the extent permitted by law, Customer agrees to indemnify
and hold harmless Carr and its shareholders, directors, officers,
employees, agents, affiliates and controlling persons against any
liability for damages, claims, losses or expenses which they may
incur as the result of: (x) Customer's violation of federal or
state laws or regulations, or of rules of any exchange or self-
regulatory organization; (y) any other breach of this Agreement
by Customer; or (z) any breach by Carr of federal or state laws
or regulations, or of the charter provisions, by-laws, rules,
margin or other requirements, of the exchanges or self-regulatory
organizations, provided that such violation was caused by Carr's
acting in good faith on Customer's behalf. Such damages, claims,
losses or expenses shall include legal fees and expenses, costs
of settling claims, interest, and fines or penalties imposed by
the exchanges, self-regulatory organization or governmental
authority.
(b) Customer agrees that if the indemnification provided in
paragraph (a) above is held to be unavailable to Carr, the
parties hereto shall share in and contribute to such damages,
claims, losses or expenses in proportion to their relative
benefits from the transactions involved and their relative degree
of fault in causing the liability.
(c) Customer agrees to reimburse Carr and its shareholders,
directors, officers, employees, agents, affiliates and
controlling persons on demand for any costs incurred in
collecting any sums Customer owes under this Agreement and any
costs of successfully defending against claims asserted against
them by Customer.
11. NOTICES; TRANSMITTALS
Carr shall transmit all communications to Customer at
Customer's address, facsimile or telephone number set forth
below or to such other address as Customer may hereafter
direct in writing. Customer shall transmit all
communications to Carr regarding this Agreement (except
routine inquiries concerning the Account) to 10 South Wacker
Drive, Suite 1100, Chicago, Illinois 60606; facsimile, (312)
441-4201, Attention: Legal/Compliance Department. All
payments and deliveries to Carr shall be made as instructed
by Carr from time to time and shall be deemed received only
when actually received by Carr.
12. CONFIRMATION CONCLUSIVE
Confirmation of trades and any other notices sent to
Customer shall be conclusive and binding on Customer unless
customer or Customer's agent notifies Carr to the contrary
(a) in the case of an oral report, orally at the time
received by Customer or its agent; or (b) in the case of a
written report or notice, in writing prior to opening of
trading on the business day next following receipt of the
report. In addition, if Customer has not received a written
confirmation that a commodity interest transaction has been
executed within three business days after Customer has
placed an order with Carr to effect such
<PAGE>
transaction, and has been informed or believes that such
order has been or should have been executed, then Customer
immediately shall notify Carr thereof. Absent such notice,
Customer conclusively shall be deemed estopped to object and
to have waived any such objection to the failure to execute
or cause to be executed such transaction. Anything in this
Section 12 notwithstanding, neither Customer nor Carr shall
be bound by any transaction or price reported in error.
13. SECURITY INTEREST
Customer hereby grants to Carr a first lien upon and a
security interest in any and all cash, securities, whether
certificated or uncertificated, security entitlements,
investment property, financial assets, foreign currencies,
commodity interests and other property (including securities
and options) and the proceeds of all of the foregoing
(together the "Collateral") belonging to Customer or in
which Customer may have an interest, now or in the future,
and held by Carr or in Carr's control or carried in any of
Customer's Accounts, or in Customer's accounts carried under
other agreements with Carr or its affiliates. Such security
interest is granted as security for the performance by
Customer of its obligations hereunder and for the payment of
all loans and other liabilities which Customer has or may in
the future have to Carr, whether under this Agreement or any
other agreement between the parties hereto. Customer agrees
to execute such further instruments, documents, filings and
agreements as may be requested at any time by Carr in order
to perfect and maintain perfected the foregoing lien and
security interest. Carr, in its discretion, may liquidate
any Collateral to satisfy any margin or Account deficiencies
or to transfer the Collateral to the general ledger account
of Carr.
In the event that the provisions of Section 13, which relate
to Collateral in any account carried by Carr for Customer
other than an Account instituted hereunder, conflict with
the agreement under which such other account was instituted,
such other agreement between Carr and Customer shall take
precedence over the provisions of this Section 13.
14. TRANSFER OF FUNDS
At any time and from time to time and without prior notice
to Customer, Carr may transfer from one Account to another
Account in which Customer has any interest, such excess
funds, equities, securities or other property as in Carr's
judgment may be required for margin, or to reduce any debit
balance or to reduce or satisfy any deficits in such other
Accounts except that no such transfer may be made from a
segregated Account subject to the Commodity Exchange Act to
another Account maintained by Customer unless either
Customer has authorized such transfer in writing or Carr is
effecting such transfer to enforce Carr's security interest
pursuant to Section 13. Carr promptly shall confirm all
transfers of funds made pursuant hereto to Customer in
writing.
<PAGE>
15. CARR'S RIGHT TO LIQUIDATE CUSTOMER POSITIONS
In addition to all other rights of Carr set forth in this
Agreement:
(a) When directed or required by a regulatory or self-regulatory
organization or exchange having jurisdiction over Carr or the
Account;
(b) Whenever Carr reasonably considers it necessary for its
protection because of margin requirements or otherwise;
(c) If Customer or any affiliate of Customer repudiates,
violates, breaches or fails to perform on a timely basis any
term, covenant or condition on its part to be performed under
this Agreement or another agreement with Carr;
(d) If a case in bankruptcy is commenced or if a proceeding
under any insolvency or other law for the protection of creditors
or for the appointment of a receiver, liquidator, trustee,
conservator, custodian or similar officer is filed by or against
Customer or any affiliate of Customer, or if Customer or any
affiliate of Customer makes or proposes to make any arrangement
or composition for the benefit of its creditors, or if Customer
(or any such affiliate) or any or all of its property is subject
to any agreement, order, judgment or decree providing for
Customer's dissolution, winding-up, liquidation, merger,
consolidation, reorganization or for the appointment of a
receiver, liquidator, trustee, conservator, custodian or similar
officer of Customer, such affiliate or such property;
(e) Carr is informed of Customer's death or mental incapacity;
or
(f) If an attachment or similar order is levied against the
Account or any other account maintained by a Customer or any
affiliate of Customer with Carr;
Carr shall have the right to (i) satisfy any obligations due
Carr out of any Customer's property (also referred to as
"Collateral") in Carr's custody or control, (ii) liquidate
any or all of Customer's commodity interest positions, such
liquidation shall include transactions involving the
exchange of futures for cash commodities or the exchange of
futures in connection with cash commodity transactions,
(iii) cancel any or all of Customer's outstanding orders,
(iv) treat any or all of Customer's obligations due Carr as
immediately due and payable, (v) sell any or all of
Customer's property in Carr's custody or control in such
manner as Carr determines to be commercially reasonable,
and/or (vi) terminate any or all of Carr's obligations for
future performance to Customer, all without any notice to or
demand on Customer if deemed necessary by Carr. Any sale
hereunder may be made in any commercially reasonable manner.
Customer agrees that a prior demand, call or notice shall
not be considered a waiver of Carr's right to act without
demand or notice as herein provided, that Customer shall at
all times be liable for the payment of any debit balance
owing in each Account upon demand whether occurring upon a
liquidation as provided under this Section 15 or otherwise
under this Agreement, and that in all cases Customer shall
be liable for any deficiency remaining in each
<PAGE>
Account in the event of liquidation thereof in whole or in
part together with interest thereon and all costs relating
to liquidation and collection (including reasonable
attorneys' fees). In the event that the provisions of
Section 15, which relate to Collateral in any account
carried by Carr for Customer other than an Account
instituted hereunder, conflict with the agreement under
which such other account was instituted, such other
agreement between Carr and Customer shall take precedence
over the provisions of this Section 15.
16. CUSTOMER REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Customer represents and warrants to and agrees with Carr
that:
(a) Customer has full power and authority to enter into this
Agreement and to engage in the transactions and perform its
obligations hereunder and contemplated hereby, and:
(1) If Customer is a corporation or partnership, Customer
represents and warrants that (a) it is duly organize and in good
standing under the laws of the jurisdiction in which it is
established and in every state in which it does business; (b) is
empowered to enter into and perform this Agreement and to
effectuate transactions in commodity interests, financial
instruments and foreign currency as contemplated hereby; (c) that
Customer has determined that trading in commodity interests is
appropriate for Customer, is prudent in all respects and does not
and will not violate any statute, rule, regulation, judgment or
decree to which Customer is subject or bound; (d) that Customer
has had a least one year's prior experience in effectuating
transactions in commodity interests, financial instruments, and
foreign currency as contemplated hereby; and (e) no person or
entity has any interest in or control of the Account to which
this Agreement pertains except as disclosed by Customer to Carr
in writing.
(2) If Customer is a trust, Customer represents and warrants
that (a) it is a duly formed and existing trust under the laws of
the state of its formation or such other laws as are applicable,
including ERISA or similar state law, and the party or parties
designated as trustee or trustees by Customer to Carr in writing
submitted herewith constitute the only or all of the proper
trustees thereof; (b) the trustee or trustees are empowered to
enter into and perform this Agreement and to effectuate
transactions in commodity interests, financial instruments, and
foreign currency as contemplated hereby; (c) the trustee or
trustees make the representations set forth in Section 1 hereof
as if the term trustee(s) were substituted for the term Customer
therein; and (d) no person or entity has any interest in or
control of the Account to which this Agreement pertains except as
disclosed by Customer to Carr in writing.
<PAGE>
(b) Neither Customer nor any partner, director, officer, member,
manager or employee of Customer nor any affiliate of Customer is
a partner, director, officer, member, manager or employee of a
futures commission merchant, introducing broker, bank, broker-
dealer, exchange or self-regulatory organization or an employee
or commissioner of the Commodity Futures Trading Commission (the
"CFTC"), except as previously disclosed in writing to Carr;
(c) Any financial statements or other information furnished in
connection therewith are true, correct and complete. Except as
disclosed in writing, (i) Customer is not a commodity pool or is
exempt from registration under the rules of the CFTC, and (ii)
Customer is acting solely as principal and no one other than
Customer has any interest in any Account of Customer. Customer
hereby authorizes Carr to contact such banks, financial
institutions and credit agencies as Carr shall deem appropriate
for verification of the information contained herein;
(d) Customer has determined that trading in commodity interests
is appropriate for Customer, is prudent in all respects and does
not and will not violate Customer's charter or by-laws (or other
comparable governing document) or any law, rule, regulation,
judgment, decree, order or agreement to which Customer or its
property is subject or bound;
(e) As required by CFTC regulations, Customer shall create,
retain and produce upon request of the applicable contract
market, the CFTC or other regulatory authority documents (such as
contracts, confirmations, telex printouts, invoices an documents
of title) with respect to cash transactions underlying exchanges
of futures for cash commodities or exchange of futures in
connection with cash commodity transactions;
(f) Customer consents to the electronic recording, at Carr's
discretion, of any or all telephone conversations with Carr
(without automatic tone warning device); the use of same as
evidence by either party in any action or proceeding arising out
of the Agreement and in Carr's erasure, at its discretion, of any
recording as part of its regular procedure for handling of
recordings;
(g) Absent a separate written agreement between Customer and
Carr with respect to give-ups, Carr, in its discretion, may, but
shall have no obligation to, accept from other brokers commodity
interest transactions executed by such brokers on an exchange for
Customer and proposed to be "given-up" to Carr for clearance
and/or carrying in the Account;
<PAGE>
(h) Carr, for an on behalf of Customer, is authorized and
empowered to place orders for commodity interest transactions
through one or more electronic or automated trading systems
maintained or operated by or under the auspices of an exchange,
that Carr shall not be liable or obligated to Customer for any
loss, damage, liability, cost or expense (including but not
limited to loss of profits, loss of use, incidental or
consequential damages) incurred or sustained by Customer and
arising in whole or in part, directly or indirectly, from any
fault, delay, omission, inaccuracy or termination of a system or
Carr's inability to enter, cancel or modify an order on behalf of
Customer on or through a system. The provisions of this Section
16(h) shall apply regardless of whether any customer claim arises
in contract, negligence, tort, strict liability, breach or
fiduciary obligations or otherwise; and
(i) If Customer is subject to the Financial Institution Reform,
Recovery and Enforcement Act of 1989, the certified resolutions
set forth following this Agreement have been caused to be
reflected in the minutes of Customer's Board of Directors (or
other comparable governing body) and this Agreement is and shall
be, continuously from the date hereof, an official record of
Customer.
Customer agrees to promptly notify Carr in writing if any of
the warranties and representations contained in this Section
16 become inaccurate or in any way cease to be true,
complete and correct.
17. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of the parties
hereto, their successors and assigns, and shall be binding
upon the parties hereto, their successors and assigns,
provided, however, that this Agreement is not assignable by
any party without the prior written consent of the other
parties..
18. MODIFICATION OF AGREEMENT BY CARR; NON-WAIVER PROVISION
This Agreement may only be altered, modified or amended by
mutual written consent of the parties. The rights and
remedies conferred upon Carr shall be cumulative, and its
forbearance to take any remedial action available to it
under this Agreement shall not waive its right at any time
or from time to time thereafter to take such action.
19. SEVERABILITY
If any term or provision hereof or the application thereof
to any persons or circumstances shall to any extent be
contrary to any exchange, government or self-regulatory
regulation or contrary to any federal, state or local law or
otherwise be invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision to
persons or circumstances other than those as to which it is
contrary, invalid or unenforceable, shall not be affected
thereby.
<PAGE>
20. CAPTIONS
All captions used herein are for convenience only, are not a
part of this Agreement, and are not to be used in construing
or interpreting any aspect of this Agreement.
21. TERMINATION
This Agreement shall continue in force until written notice
of termination is given by Customer or Carr. Termination
shall not relieve either party of any liability or
obligation incurred prior to such notice. Upon giving or
receiving notice of termination, Customer will promptly take
all action necessary to transfer all open positions in each
Account to another futures commission merchant.
22. ENTIRE AGREEMENT
This Agreement (as amended by the attached Customer
Agreement dated the date hereof into which this Agreement is
incorporated by reference) constitutes the entire agreement
between Customer and Carr with respect to the subject matter
hereof and supersedes any prior agreements between the
parties with respect to such subject matter.
23. GOVERNING LAW; CONSENT TO JURISDICTION
(a) In case of a dispute between Customer and Carr arising out
of or relating to the making or performance of this Agreement or
any transaction pursuant to this Agreement (i) this Agreement and
its enforcement shall be governed by the laws of the State of
Illinois without regard to principles of conflicts of laws, and
(ii) Customer will bring any legal proceeding against Carr in,
and Customer hereby consents in any legal proceeding by Carr to
the jurisdiction of, any state or federal court located within
Chicago, Illinois, in connection with all legal proceedings
arising directly, indirectly or otherwise in connection with, out
of, related to or from Customer's Account, transactions
contemplated by this Agreement or the breach thereof. Customer
hereby waives all objections Customer, at any time, may have as
to the propriety of the court in which any such legal proceedings
may be commenced. Customer also agrees that any service of
process mailed to Customer at any address specified to Carr shall
be deemed a proper service of process on the undersigned.
Customer agrees that venue of all proceedings shall be in
Chicago, Illinois.
<PAGE>
(b) Notwithstanding the provisions of Section 23(a)(ii),
Customer may elect at this time to have all disputes described in
this Section resolved by arbitration. To make such election,
Customer must sign the Arbitration Agreement set forth in Section
24. Notwithstanding such election, any question relating to
whether Customer or Carr has commenced an arbitration proceeding
in a timely manner, whether a dispute is within the scope of the
Arbitration Agreement or whether a party (other than Customer or
Carr) has consented to arbitration and all proceedings to compel
arbitration shall be determined by a court as specified in
Section 23(a)(ii).
24. ARBITRATION AGREEMENT (OPTIONAL)
Every dispute between Customer and Carr arising out of or
relating to the making or performance of this Agreement or
any transaction pursuant to this Agreement, shall be settled
by arbitration in accordance with the rules, then in effect,
of the National Futures Association, the contract market
upon which the transacting giving rise to the claim was
executed, or the National Association of Securities Dealers
as Customer may elect. If Customer does not make such
election by registered mail addressed to Carr at 10 South
Wacker Drive, Suite 1100, Chicago, Illinois 60606,
Attention: Legal/Compliance Department, within 45 days
after demand by Carr that the Customer make such election,
then Carr may make such election. Carr agrees to pay any
incremental fees which may be assessed by a qualified forum
for making available a "mixed panel" of arbitrators, unless
the arbitrators determine that Customer has acted in bad
faith in initiating or conducting the proceedings. Judgment
upon any aware rendered by the arbitrators may be entered in
any court having jurisdiction thereof.
THREE FORUMS EXIST FOR THE RESOLUTION OF COMMODITY DISPUTES:
CIVIL COURT LITIGATION, REPARATIONS AT THE COMMODITY FUTURES
TRADING COMMISSION("CFTC") AND ARBITRATION CONDUCTED BY A
SELF-REGULATORY OR OTHER PRIVATE ORGANIZATION.
THE CFTC RECOGNIZES THAT THE OPPORTUNITY TO SETTLE DISPUTES
BY ARBITRATION MAY IN SOME CASES PROVIDE MANY BENEFITS TO
CUSTOMERS, INCLUDING THE ABILITY TO OBTAIN AN EXPEDITIOUS
AND FINAL RESOLUTION OF DISPUTES WITHOUT INCURRING
SUBSTANTIAL COSTS. THE CFTC REQUIRES, HOWEVER, THAT EACH
CUSTOMER INDIVIDUALLY EXAMINE THE RELATIVE MERITS OF
ARBITRATION AND THAT YOUR CONSENT OT THIS ARBITRATION
AGREEMENT BE VOLUNTARY.
BY SIGNING THIS AGREEMENT, YOU (1) MAY BE WAIVING YOUR RIGHT
TO SUE IN A COURT OF LAW AND (2) ARE AGREEING TO BE BOUND BY
ARBITRATION OF ANY CLAIMS OR COUNTERCLAIMS WHICH YOU OR CARR
MAY SUBMIT TO ARBITRATION UNDER THIS AGREEMENT. YOU
<PAGE>
ARE NOT HOWEVER, WAIVING YOUR RIGHT TO ELECT INSTEAD TO
PETITION THE CFTC TO INSTITUTE REPARATIONS PROCEEDINGS UNDER
SECTION 14 OF THE COMMODITY EXCHANGE ACT WITH RESPECT TO ANY
DISPUTE WHICH MAY BE ARBITRATED PURSUANT TO THIS AGREEMENT.
IN THE EVENT A DISPUTE ARISES, YOU WILL BE NOTIFIED IF CARR
INTENDS TO SUBMIT THE DISPUTE TO ARBITRATION. IF YOU
BELIEVE A VIOLATION OF THE COMMODITY EXCHANGE ACT IS
INVOLVED AND IF YOU PREFER TO REQUEST A SECTION 14
"REPARATIONS" PROCEEDINGS BEFORE THE CFTC, YOU WILL HAVE 45
DAYS FROM THE DATE OF SUCH NOTICE IN WHICH TO MAKE THAT
ELECTION.
YOU NEED NOT AGREE TO THIS ARBITRATION AGREEMENT TO OPEN AN
ACCOUNT WITH CARR.
See 17 CFR 1890.1-180.5.
Acceptance of this arbitration agreement requires a separate
signature on page 15.
25. CONSENT TO TAKE THE OTHER SIDE OF ORDERS (OPTIONAL)
Without its prior notice, Customer agrees that when Carr
executes sell or buy orders on Customer's behalf, Carr, its
directors, officers, employees, agents, affiliates, and any
floor broker may take the other side of customer's
transaction through any Account of such person subject to
its being executed a prevailing prices in accordance with
and subject to the limitations and conditions, if any,
contained in applicable rules and regulations.
26. AUTHORIZATION TO TRANSFER FUNDS (OPTIONAL)
Without limiting other provisions herein, Carr is authorized
to transfer from any segregated Account subject to the
Commodity Exchange Act carried by Carr for the Customer to
any other Account carried by Carr for the Customer such
amount of excess funds as in Carr's judgment may be
necessary at any time to avoid a margin call or to reduce a
debit balance in said Account. It is understood that Carr
will confirm in writing each such transfer of funds made
pursuant to this authorization within a reasonable time
after such transfer.
27. ELECTRONIC TRANSMISSION OF STATEMENTS (OPTIONAL)
Customer elects and consents to receive transmission of
statements of transactions and statements of account solely
by electronic means, including without limitation, by
electronic mail or facsimile. Customer shall not incur any
costs or fees in connection with the receipt of such
statements by electronic transmission. Customer shall
receive such statements by electronic transmission until
such time as it revokes its consent in writing to Carr.
<PAGE>
28. SUBORDINATION AGREEMENT
(Applies only to Accounts with funds held in foreign
currencies)
Funds of customers trading on United States contract markets
may be held in accounts denominated in a foreign currency
with depositories located outside or inside the United
States or its territories if the customer is domiciled in a
foreign country or if the funds are held in connection with
contracts priced and settled in a foreign currency. Such
accounts are subject to the risk that events could occur
which hinder or prevent the availability of these funds for
distribution to customers. Such accounts also may be
subject to foreign currency exchange rate risks.
If authorized below, Customer authorizes the deposit of
funds into such depositories. For customer domiciled in the
United States, this authorization permits the holding of
funds in regulated accounts 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 agrees
by accepting this subordination agreement that his claims
based on such funds will be subordinated as described below
in the unlikely event both of the following conditions are
met: (1) Carr is placed in receivership or bankruptcy, and
(2) there are insufficient funds available for distribution
denominated in the foreign currency as to which the customer
has a claim to satisfy all claims against those funds.
By initialing the Subordination Agreement below, Customer
agrees that if both of the conditions listed above occur,
its claim against Carr'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 so held 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 Carr.
<PAGE>OPTIONAL ELECTIONS/ACKNOWLEDGMENT
The following provisions, which are set forth in this Agreement,
need not be entered into to open the Account. Customer agrees
that its optional elections are as follows:
Signature required for each election
ARBITRATION AGREEMENT
(Agreement Paragraph 24) (Date)
CONSENT TO TAKE THE OTHER SIDE X /s/ Mark J. Hawley
OF ORDERS (Agreement Paragraph 12-1-97
25) (Date)
AUTHORIZATION TO TRANSFER FUNDS
(Agreement Paragraph 26) (Date)
CONSENT TO RECEIVE STATEMENTS
BY ELECTRONIC TRANSMISSION X /s/ Mark J. Hawley
(Agreement Paragraph 27) 12-1-97
(Date)
ACKNOWLEDGMENT OF SUBORDINATION
AGREEMENT (Agreement Paragraph
28) (Required for accounts X /s/ Mark J. Hawley
holding non-U.S. currency) 12-1-97
(Date)
HEDGE ELECTION
Customer confirms that all transactions in the Account will
represent bona fide hedging transactions, as defined by the
Commodity Futures Trading Commission, unless Carr is
notified otherwise not later than the time an order is
placed for the Account:
Pursuant to CFTC Regulation 190.06(d), Customer specifies and
agrees, with respect to hedging transactions in the Account, that
in the unlikely event of Carr's bankruptcy, it prefers that the
bankruptcy trustee [check appropriate box]:
A) Liquidate all open contracts without first seeking
instructions either from or on behalf of Customer.
B) Attempt to obtain instructions with respect to the
disposition of all open contracts.
(If neither box is checks, Customer shall be deemed to elect A).)
<PAGE>ACKNOWLEDGMENT OF RECEIPT OF RISK DISCLOSURE STATEMENTS
The undersigned hereby acknowledges its separate receipt from
Carr, and its understanding of each of the following documents
prior to opening of the Account:
Risk Disclosure Statement for Futures and Options
LME Risk Warning Notice
NYMEX ACCESSSM Risk Disclosure Statement
Globex Customer Information and Risk Disclosure Statement
Project A Customer Information Statement
Questions & Answers on Flexible Options Trading at the CBOT
CME Average Pricing System Disclosure Statement
Special Notice to Foreign Brokers and Foreign Traders
REQUIRED SIGNATURES
CUSTOMER
The undersigned has received, read, understands and agrees to all
the provisions of this Agreement and the separate risk disclosure
statements enumerated above and agrees to promptly notify Carr in
writing if any of the warranties and representations contained
herein become inaccurate or in any way cease to be true, complete
and correct.
DEAN WITTER PRINCIPAL PLUS FUND MANAGEMENT L.P.
Customer name(s)
By: Demeter Management Corporation
By:_ /s/ Mark J. Hawley ______________________________
December 1, 1997
Authorized signature(s) Date
Mark J. Hawley, President
[If applicable, print name and title of signatory]
CARR FUTURES INC.
Accepted and Agreed:
Carr Futures Inc.
By: By:
_______________________________ _______________________________
__ __
Title: Title:
_______________________________ _______________________________
_ _
Date: December 1, 1997 Date:
_______________________________
_
<PAGE>
CARR FUTURES INC.
10 South Wacker Drive, Suite 1100
Chicago, IL 60606
Facsimile (312) 441-4201
INTERNATIONAL FOREIGN EXCHANGE MASTER AGREEMENT
MASTER AGREEMENT dated as of August 1, 1997, by and
between CARR FUTURES INC., a Delaware corporation and DEAN WITTER
DIVERSIFIED FUTURES FUND II L.P.
SECTION 1. DEFINITIONS
Unless otherwise required by the context, the
following terms shall have the following meanings in
the Agreement:
"Agreement" has the meaning given to it in Section
2.2.
"Base Currency", as to a Party, means the Currency
agreed to as such in relation to it in Part VII of
the Schedule.
"Business Day" means for purposes of: (i)
clauses (i), (viii) and (xii) of the definition of
Event of Default, a day which is a Local Banking Day
for the Non-Defaulting Party; (ii) solely in relation
to delivery of a Currency, a day which is a Local
Banking Day in relation to that Currency; and (iii)
any other provision of the Agreement, a day which is
a Local Banking Day for the applicable Designated
Offices of both Parties; provided, however, that
neither Saturday nor Sunday shall be considered a
Business Day for any purpose.
"Close-Out Amount" has the meaning given to it in
Section 5.1.
"Close-Out Date" means a day on which, pursuant to
the provisions of Section 5.1, the Non-Defaulting
Party closes out Currency Obligations or such a close-
out occurs automatically.
"Closing Gain", as to the Non-Defaulting Party, means
the difference described as such in relation to a
particular Value Date under the provisions of Section
5.1.
"Closing Loss", as to the Non-Defaulting Party, means
the difference described as such in relation to a
particular Value Date under the provisions of Section
5.1.
<PAGE>
"Confirmation" means a writing (including telex,
facsimile, or other electronic means from which it is
possible to produce a hard copy) evidencing an FX
Transaction, and specifying:
(i) the Parties thereto and their Designated Offices
through which they are respectively acting,
(ii) the amounts of the Currencies being bought or
sold and by which Party,
(iii) the Value Date, and
(iv) any other term generally included in such a
writing in accordance with the practice of the
relevant foreign exchange market.
"Credit Support" has the meaning given to it in
Section 5.2.
"Credit Support Document", as to a Party (the "first
Party"), means a guaranty, hypothecation
agreement, margin or security agreement or
document, or any other document containing an
obligation of a third party ("Credit Support
Provider") or of the first Party in favor of the
other Party supporting any obligations of the
first Party under the Agreement.
"Credit Support Provider" has the meaning given to it
in the definition of Credit Support Document.
"Currency" means money denominated in the lawful
currency of any country or the Ecu.
"Currency Obligation" means any obligation of a Party
to deliver a Currency pursuant to an FX Transaction
or the application of Section 3.3(a) or (b).
"Custodian" has the meaning given to it in the
definition of Insolvency Proceeding.
"Defaulting Party" has the meaning given to it in the
definition of Event of Default.
"Designated Office(s)", as to a Party, means the
office or offices specified in Part II of the
Schedule.
"Effective Date" means the date of this Master
Agreement.
"Event of Default" means the occurrence of any of the
following with respect to a Party (the "Defaulting
Party", the other Party being the "Non-Defaulting
Party"):
<PAGE>
(i)the Defaulting Party shall (A) default in any
payment when due under the Agreement to the Non-
Defaulting Party with respect to any Currency
Obligation and such failure shall continue for two
(2) Business Days after the Non-Defaulting Party
has given the Defaulting Party written notice of
non-payment, or (B) fail to perform or comply with
any other obligation assumed by it under the
Agreement and such failure is continuing thirty
(30) days after the Non-Defaulting Party has given
the Defaulting Party written notice thereof;
(ii) the Defaulting Party shall commence a
voluntary Insolvency Proceeding or shall take any
corporate action to authorize any such Insolvency
Proceeding;
(iii) a governmental authority or self-regulatory
organization having jurisdiction over either the
Defaulting Party or its assets in the country of
its organization or principal office (A) shall
commence an Insolvency Proceeding with respect to
the Defaulting Party or its assets or (B) shall
take any action under any bankruptcy, insolvency
or other similar law or any banking, insurance or
similar law or regulation governing the operation
of the Defaulting Party which may prevent the
Defaulting Party from performing its obligations
under the Agreement as and when due;
(iv) an involuntary Insolvency Proceeding shall be
commenced with respect to the Defaulting Party or
its assets by a person other than a governmental
authority or self-regulatory organization having
jurisdiction over either the Defaulting Party or
its assets in the country of its organization or
principal office and such Insolvency Proceeding
(A) results in the appointment of a Custodian or a
judgment of insolvency or bankruptcy or the entry
of an order for winding-up, liquidation,
reorganization or other similar relief, or (B) is
not dismissed within five (5) days of its
institution or presentation;
(v)the Defaulting Party is bankrupt or insolvent, as
defined under any bankruptcy or insolvency law
applicable to it;
(vi) the Defaulting Party fails, or shall
otherwise be unable, to pay its debts as they
become due;
(vii) the Defaulting Party or any Custodian acting
on behalf of the Defaulting Party shall disaffirm,
disclaim or repudiate any Currency Obligation;
<PAGE>
(viii) any representation or warranty made or given
or deemed made or given by the Defaulting Party
pursuant to the Agreement or any Credit Support
Document shall prove to have been false or
misleading in any material respect as at the time
it was made or given or deemed made or given and
one (1) Business Day has elapsed after the Non-
Defaulting Party has given the Defaulting Party
written notice thereof;
(ix) the Defaulting Party consolidates or
amalgamates with or merges into or transfers all
or substantially all its assets to another entity
and (A) the creditworthiness of the resulting,
surviving or transferee entity is materially
weaker than that of the Defaulting Party prior to
such action, or (B) at the time of such
consolidation, amalgamation, merger or transfer
the resulting, surviving or transferee entity
fails to assume all the obligations of the
Defaulting Party under the Agreement by operation
of law or pursuant to an agreement satisfactory to
the Non-Defaulting Party;
(x)by reason of any default, or event of default or
other similar condition or event, any Specified
Indebtedness (being Specified Indebtedness of an
amount which, when expressed in the Currency of
the Threshold Amount, is in aggregate equal to or
in excess of the Threshold Amount) of the
Defaulting Party or any Credit Support Provider in
relation to it: (A) is not paid on the due date
therefor and remains unpaid after any applicable
grace period has elapsed, or (B) becomes, or
becomes capable at any time of being declared, due
and payable under agreements or instruments
evidencing such Specified Indebtedness before it
would otherwise have been due and payable;
(xi) the Defaulting Party is in breach of or
default under any Specified Transaction and any
applicable grace period has elapsed, and there
occurs any liquidation or early termination of, or
acceleration of obligations under, that Specified
Transaction or the Defaulting Party (or any
Custodian on its behalf) disaffirms, disclaims or
repudiates the whole or any part of a Specified
Transaction;
(xii) (A) any Credit Support Provider of the
Defaulting Party or the Defaulting Party itself
fails to comply with or perform any agreement or
obligation to be complied with or performed by it
in accordance with the applicable Credit Support
Document and such failure is continuing after any
applicable grace period has elapsed; (B) any
Credit Support Document relating to the Defaulting
Party expires or ceases to be in full force and
effect prior to the satisfaction of all
obligations of the Defaulting Party under the
Agreement, unless otherwise agreed in writing by
the Non-Defaulting Party; (C) the Defaulting Party
or any Credit Support Provider of the Defaulting
Party (or, in either case, any Custodian acting on
its
<PAGE>
behalf) disaffirms, disclaims or repudiates, in
whole or in part, or challenges the validity of,
any Credit Support Document; (D) any
representation or warranty made or given or deemed
made or given by any Credit Support Provider of
the Defaulting Party pursuant to any Credit
Support Document shall prove to have been false or
misleading in any material respect as at the time
it was made or given or deemed made or given and
one (1) Business Day has elapsed after the Non-
Defaulting Party has given the Defaulting Party
written notice thereof; or (E) any event set out
in (ii) to (vii) or (ix) to (xi) above occurs in
respect of any Credit Support Provider of the
Defaulting Party; or
(xiii) any other condition or event specified in
Part IX of the Schedule or in Section 8.14 if made
applicable to the Agreement in Part XI of the
Schedule.
"FX Transaction" means any transaction between the
Parties for the purchase by one Party of an agreed
amount in one Currency against the sale by it to the
other of an agreed amount in another Currency, both
such amounts either being deliverable on the same
Value Date or, if the Parties have so agreed in
Part VI of the Schedule, being cash-settled in a
single Currency, which is or shall become subject to
the Agreement and in respect of which transaction the
Parties have agreed (whether orally, electronically
or in writing): the Currencies involved, the amounts
of such Currencies to be purchased and sold, which
Party will purchase which Currency and the Value
Date.
"Insolvency Proceeding" means a case or proceeding
seeking a judgment of or arrangement for insolvency,
bankruptcy, composition, rehabilitation,
reorganization, administration, winding-up,
liquidation or other similar relief with respect to
the Defaulting Party or its debts or assets, or
seeking the appointment of a trustee, receiver,
liquidator, conservator, administrator, custodian or
other similar official (each, a "Custodian") of the
Defaulting Party or any substantial part of its
assets, under any bankruptcy, insolvency or other
similar law or any banking, insurance or similar law
governing the operation of the Defaulting Party.
"LIBOR", with respect to any Currency and date, means
the average rate at which deposits in the Currency
for the relevant amount and time period are offered
by major banks in the London interbank market as of
11:00 a.m. (London time) on such date, or, if major
banks do not offer deposits in such Currency in the
London interbank market on such date, the average
rate at which deposits in the Currency for the
relevant amount and time period are offered by major
banks in the relevant foreign exchange market at such
time on such date as may be determined by the Party
making the determination.
<PAGE>
"Local Banking Day" means (i) for any Currency, a day
on which commercial banks effect deliveries of that
Currency in accordance with the market practice of
the relevant foreign exchange market, and (ii) for
any Party, a day in the location of the applicable
Designated Office of such Party on which commercial
banks in that location are not authorized or required
by law to close.
"Master Agreement" means the terms and conditions set
forth in this Master Agreement, including the
Schedule.
"Matched Pair Novation Netting Office(s)", in respect
of a Party, means the Designated Office(s) specified
in Part V of the Schedule.
"Non-Defaulting Party" has the meaning given to it in
the definition of Event of Default.
"Novation Netting Office(s)", in respect of a Party,
means the Designated Office(s) specified in Part V of
the Schedule.
"Parties" means the parties to the Agreement,
including their successors and permitted assigns (but
without prejudice to the application of clause (ix)
of the definition Event of Default); and the term
"Party" shall mean whichever of the Parties is
appropriate in the context in which such expression
may be used.
"Proceedings" means any suit, action or other
proceedings relating to the Agreement or any FX
Transaction.
"Schedule" means the Schedule attached to and part of
this Master Agreement, as it may be amended from time
to time by agreement of the Parties.
"Settlement Netting Office(s)", in respect of a
Party, means the Designated Office(s) specified in
Part V of the Schedule.
"Specified Indebtedness" means any obligation
(whether present or future, contingent or otherwise,
as principal or surety or otherwise) in respect of
borrowed money, other than in respect of deposits
received.
"Specified Transaction" means any transaction
(including an agreement with respect thereto) between
one Party to the Agreement (or any Credit Support
Provider of such Party) and the other Party to the
Agreement (or any Credit Support Provider of such
Party) which is a rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity
option, equity or equity linked swap, equity or
equity index option, bond option, interest rate
option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar
transaction (including any option with
<PAGE>
respect to any of these transactions) or any
combination of any of the foregoing transactions.
"Spot Date" means the spot delivery day for the
relevant pair of Currencies as generally used by the
relevant foreign exchange market.
"Threshold Amount" means the amount specified as such
for each Party in Part VIII of the Schedule.
"Value Date" means, with respect to any FX
Transaction, the Business Day (or where market
practice in the relevant foreign exchange market in
relation to the two Currencies involved provides for
delivery of one Currency on one date which is a Local
Banking Day in relation to that Currency but not to
the other Currency and for delivery of the other
Currency on the next Local Banking Day in relation to
that other Currency ("Split Settlement") the two (2)
Local Banking Days in accordance with that market
practice) agreed by the Parties for delivery of the
Currencies to be purchased and sold pursuant to such
FX Transaction, and, with respect to any Currency
Obligation, the Business Day (or, in the case of
Split Settlement, Local Banking Day) upon which the
obligation to deliver Currency pursuant to such
Currency Obligation is to be performed.
SECTION 2. FX TRANSACTIONS
2.1 Scope of the Agreement. The Parties (through
their respective Designated Offices) may enter into
FX Transactions, for such quantities of such
Currencies, as may be agreed subject to the terms of
the Agreement; provided that neither Party shall be
required to enter into any FX Transaction with the
other Party. Unless otherwise agreed in writing by
the Parties, each FX Transaction entered into between
Designated Offices of the Parties on or after the
Effective Date shall be governed by the Agreement.
Each FX Transaction between any two Designated
Offices of the Parties outstanding on the Effective
Date which is identified in Part I of the Schedule
shall also be governed by the Agreement.
2.2 Single Agreement. This Master Agreement, the terms agreed
between the Parties with respect to each FX Transaction (and, to
the extent recorded in a Confirmation, each such Confirmation),
and all amendments to any of such items shall together form the
agreement between the Parties (the "Agreement") and shall
together constitute a single agreement between the Parties. The
Parties acknowledge that all FX Transactions are entered into in
reliance upon such fact, it being understood that the Parties
would not otherwise enter into any FX Transaction.
<PAGE>
2.3Confirmations. FX Transactions shall be promptly
confirmed by the Parties by Confirmations
exchanged by mail, telex, facsimile or other
electronic means from which it is possible to
produce a hard copy. The failure by a Party to
issue a Confirmation shall not prejudice or
invalidate the terms of any FX Transaction.
2.4Inconsistencies. In the event of any
inconsistency between the provisions of the
Schedule and the other provisions of the
Agreement, the Schedule will prevail. In the
event of any inconsistency between the terms of a
Confirmation and the other provisions of the
Agreement, the other provisions of the Agreement
shall prevail, and the Confirmation shall not
modify the other terms of the Agreement.
SECTION 3. SETTLEMENT AND NETTING
3.1Settlement. Subject to Sections 3.2 and 3.3, each
Party shall deliver to the other Party the amount
of the Currency to be delivered by it under each
Currency Obligation on the Value Date for such
Currency Obligation.
3.2Settlement Netting. If, on any date, more than
one delivery of a particular Currency under
Currency Obligations is to be made between a pair
of Settlement Netting Offices, then each Party
shall aggregate the amounts of such Currency
deliverable by it and only the difference between
these aggregate amounts shall be delivered by the
Party owing the larger aggregate amount to the
other Party, and, if the aggregate amounts are
equal, no delivery of the Currency shall be made.
3.3 Novation Netting.
(a)By Currency. If the Parties enter into an FX
Transaction through a pair of Novation Netting
Offices giving rise to a Currency Obligation for
the same Value Date and in the same Currency as a
then existing Currency Obligation between the same
pair of Novation Netting Offices, then immediately
upon entering into such FX Transaction, each such
Currency Obligation shall automatically and
without further action be individually canceled
and simultaneously replaced by a new Currency
Obligation for such Value Date determined as
follows: the amounts of such Currency that would
otherwise have been deliverable by each Party on
such Value Date shall be aggregated and the Party
with the larger aggregate amount shall have a new
Currency Obligation to deliver to the other Party
the amount of such Currency by which its aggregate
amount exceeds the other Party's aggregate amount,
provided that if the aggregate amounts are equal,
no new Currency Obligation shall arise. This
Section 3.3 shall not
<PAGE>
affect any other Currency Obligation of a Party to
deliver any different Currency on the same Value
Date.
(b)By Matched Pair. If the Parties enter into an FX
Transaction between a pair of Matched Pair
Novation Netting Offices then the provisions of
Section 3.3(a) shall apply only in respect of
Currency Obligations arising by virtue of FX
Transactions entered into between such pair of
Matched Pair Novation Netting Offices and
involving the same pair of Currencies and the same
Value Date.
3.4General.
(a)Inapplicability of Sections 3.2 and 3.3. The
provisions of Sections 3.2 and 3.3 shall not apply
if a Close-Out Date has occurred or a voluntary or
involuntary Insolvency Proceeding or action of the
kind described in clause (ii), (iii) or (iv) of
the definition of Event of Default has occurred
without being dismissed in relation to either
Party.
(b)Failure to Record. The provisions of Section 3.3
shall apply notwithstanding that either Party may
fail to record the new Currency Obligations in its
books.
(c)Cutoff Date and Time. The provisions of Section
3.3 are subject to any cut-off date and cut-off
time agreed between the applicable Novation
Netting Offices and Matched Pair Novation Netting
Offices of the Parties.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Representations and Warranties. Each Party
represents and warrants to the other Party as of the
Effective Date and as of the date of each FX
Transaction that: (i) it has authority to enter into
the Agreement (including such FX Transaction); (ii)
the persons entering into the Agreement (including
such FX Transaction) on its behalf have been duly
authorized to do so; (iii) the Agreement (including
such FX Transaction) is binding upon it and
enforceable against it in accordance with its terms
(subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting
creditors' rights generally and applicable principles
of equity) and does not and will not violate the
terms of any agreements to which such Party is bound;
(iv) no Event of Default, or event which, with notice
or lapse of time or both, would constitute and Event
of Default, has occurred and is continuing with
respect to it; and (v) it acts as principal in
entering into each FX Transaction; and (vi) if the
Parties have so specified in Part XV of the Schedule,
it makes the representations and warranties set forth
in such Part XV.
<PAGE>
4.2 Covenants. Each Party covenants to the other
Party that: (i) it will at all times obtain and
comply with the terms of and do all that is necessary
to maintain in full force and effect all
authorizations, approvals, licenses and consents
required to enable it lawfully to perform its
obligations under the Agreement; (ii) it will
promptly notify the other Party of the occurrence of
any Event of Default with respect to itself or any
Credit Support Provider in relation to it; and (iii)
if the Parties have set forth additional covenants in
Part XVI of the Schedule, it makes the covenants set
forth in such Part XVI.
SECTION 5 CLOSE-OUT AND LIQUIDATION
5.1 Manner of Close-Out and Liquidation. (a) Close-
Out. If an Event of Default has occurred and is
continuing, then the Non-Defaulting Party shall have
the right to close-out all, but not less than all,
outstanding Currency Obligations (including any
Currency Obligation which has not been performed and
in respect of which the Value Date is on or precedes
the Close-Out Date) except to the extent that in the
good faith opinion of the Non-Defaulting Party
certain of such Currency Obligations may not be
closed-out under applicable law. Such close-out
shall be effective upon receipt by the Defaulting
Party of notice that the Non-Defaulting Party is
terminating such Currency Obligations.
Notwithstanding the foregoing, unless otherwise
agreed by the Parties in Part X of the Schedule, in
the case of an Event of Default in clause (ii), (iii)
or (iv) of the definition thereof with respect to a
Party and, if agreed by the Parties in Part IX of the
Schedule, in the case of any other Event of Default
specified and so agreed in Part IX with respect to a
Party, close-out shall be automatic as to all
outstanding Currency Obligations, as of the time
immediately preceding the institution of the relevant
Insolvency Proceeding or action. The Non-Defaulting
Party shall have the right to liquidate such closed-
out Currency Obligations as provided below.
(b) Liquidation. Liquidation of Currency
Obligations terminated by close-out shall be effected
as follows:
(i) Calculating Closing Gain or Loss. The Non-
Defaulting Party shall calculate in good faith,
with respect to each such terminated Currency
Obligation, except to the extent that in the
good faith opinion of the Non-Defaulting Party
certain of such Currency Obligations may not be
liquidated as provided herein under applicable
law, as of the Close-Out Date or as soon
thereafter as reasonably practicable, the
Closing Gain, or, as appropriate, the Closing
Loss, as follows:
(A)for each Currency Obligation calculate a
"Close-Out Amount" as follows:
<PAGE>
(1)in the case of a Currency Obligation
whose Value Date is the same as or is
later than the Close-Out Date, the
amount of such Currency Obligation; or
(2)in the case of a Currency Obligation
whose Value Date precedes the Close-Out
Date, the amount of such Currency
Obligation increased, to the extent
permitted by applicable law, by adding
interest thereto from and including the
Value Date to but excluding the Close-
Out Date at overnight LIBOR; and
(3)for each such amount in a Currency other
than the Non-Defaulting Party's Base
Currency, convert such amount into the
Non-Defaulting Party's Base Currency at
the rate of exchange at which, at the
time of the calculation, the Non-
Defaulting Party can buy such Base
Currency with or against the Currency of
the relevant Currency Obligation for
delivery (x) if the Value Date of such
Currency Obligation is on or after the
Spot Date as of such time of calculation
for the Base Currency, on the Value Date
of that Currency Obligation or (y) if
such Value Date precedes such Spot Date,
for delivery on such Spot Date (or, in
either case, if such rate of exchange is
not available, conversion shall be
accomplished by the Non-Defaulting Party
using any commercially reasonable
method); and
(B)determine in relation to each Value Date:
(1) the sum of all Close-Out Amounts relating
to Currency Obligations under which the Non-
Defaulting Party would otherwise have been
entitled to receive the relevant amount on
that Value Date; and (2) the sum of all Close-
Out Amounts relating to Currency Obligations
under which the Non-Defaulting Party would
otherwise have been obliged to deliver the
relevant amount to the Defaulting Party on
that Value Date; and
(C) if the sum determined under (B)(1) is greater than the sum
determined under (B)(2), the difference shall be the
Closing Gin for such Value Date; if the sum determined under
(B)(1) is less than the sum determined under (B)(2),
the difference shall be the Closing Loss for such Value
Date.
<PAGE>
(ii) Determining Present Value. To the extent
permitted by applicable law, the Non-Defaulting
Party shall adjust the Closing Gain or Closing
Loss for each Value Date falling after the Close-
Out Date to present value by discounting the
Closing Gain or Closing Loss from and including
the Value Date to but excluding the Close-Out
Date, at LIBOR with respect to the Non-
Defaulting Party's Base Currency as at the Close-
Out Date or at such other rate as may be
prescribed by applicable law.
(iii) Netting. The Non-Defaulting Party shall
aggregate the following amounts so that all such
amounts are netted into a single liquidated
amount payable to or by the Non-Defaulting
Party: (x) the sum of the Closing Gains for all
Value Dates (discounted to present value, where
appropriate, in accordance with the provisions
of Section 5.1(b)(ii)) (which for the purposes
of this aggregation shall be a positive figure);
and (y) the sum of the Closing Losses for all
Value Dates (discounted to present value, where
appropriate, in accordance with the provisions
of Section 5.1(b)(ii)) (which for the purposes
of the aggregation shall be a negative figure).
(iv) Settlement Payment. If the resulting net amount
is positive, it shall be payable by the
Defaulting Party to the Non-Defaulting Party,
and if it is negative, then the absolute value
of such amount shall be payable by the Non-
Defaulting Party to the Defaulting Party.
5.2 Set-Off Against Credit Support. Where close-out
and liquidation occurs in accordance with
Section 5.1, the Non-Defaulting Party shall also be
entitled (i) to set off the net payment calculated in
accordance with Section 5.1(b)(iv) which the Non-
Defaulting Party owes to the Defaulting Party, if
any, against any credit support or other collateral
("Credit Support") held by the Defaulting Party
pursuant to a Credit Support Document or otherwise
(including the liquidated value of any non-cash
Credit Support) in respect of the Non-Defaulting
Party's obligations under the Agreement or (ii) to
set off the net payment calculated in accordance with
Section 5.1(b)(iv) which the Defaulting Party owes to
the Non-Defaulting Party, if any, against any Credit
Support held by the Non-Defaulting Party (including
the liquidated value of any non-cash Credit Support)
in respect of the Defaulting Party's obligations
under the Agreement; provided that, for purposes of
either such set-off, any Credit Support denominated
in a Currency other than the Non-Defaulting Party's
Base Currency shall be converted into such Base
Currency at the spot price determined by the Non-
Defaulting Party at which, at the time of
calculation, the Non-Defaulting Party could enter
into a contract in the foreign exchange market to buy
the Non-Defaulting Party's Base Currency in exchange
for such Currency.
<PAGE>
5.3 Other Foreign Exchange Transactions. Where
close-out and liquidation occurs in accordance with
Section 5.1, the Non-Defaulting Party shall also be
entitled to close-out and liquidate, to the extent
permitted by applicable law, any other foreign
exchange transaction entered into between the Parties
which is then outstanding in accordance with
provisions of Section 5.1, with each obligation of a
Party to deliver a Currency under such a foreign
exchange transaction being treated as if it were a
Currency Obligation under the Agreement.
5.4 Payment and Late Interest. The net amount
payable by one Party to the other Party pursuant to
the provisions of Sections 5.1 and 5.3 above shall be
paid by the close of business on the Business Day
following the receipt by the Defaulting Party of
notice of the Non-Defaulting Party's settlement
calculation, with interest at overnight LIBOR from
and including the Close-Out Date to but excluding
such Business Day (and converted as required by
applicable law into any other Currency, any costs of
conversion to be borne by, and deducted from any
payment to, the Defaulting Party). To the extent
permitted by applicable law, any amounts owed but not
paid when due under this Section 5 shall bear
interest at overnight LIBOR (or, if conversion is
required by applicable law into some other Currency,
either overnight LIBOR with respect to such other
Currency or such other rate as may be prescribed by
such applicable law) for each day for which such
amount remains unpaid. Any addition of interest or
discounting required under this Section 5 shall be
calculated on the basis of a year of such number of
days as is customary for transactions involving the
relevant Currency in the relevant foreign exchange
market.
5.5 Suspension of Obligations. Without prejudice to
the foregoing, so long as a Party shall be in default
in payment or performance to the other Party under
the Agreement and the other Party has not exercised
its rights under this Section 5, or, if "Adequate
Assurances" is specified as applying to the Agreement
in Part XI of the Schedule, during the pendency of a
reasonable request to a Party for adequate assurances
of its ability to perform its obligations under the
Agreement, the other Party may, at its election and
without penalty, suspend its obligation to perform
under the Agreement.
5.6 Expenses. The Defaulting Party shall reimburse
the Non-Defaulting Party in respect of all out-of-
pocket expenses incurred by the Non-Defaulting Party
(including fees and disbursements of counsel,
including attorneys who may be employees of the Non-
Defaulting Party) in connection with any reasonable
collection or other enforcement proceedings related
to the payments required under the Agreement.
<PAGE>
5.7 Reasonable Pre-Estimate. The Parties agree that
the amounts recoverable under this Section 5 are a
reasonable pre-estimate of loss and not a penalty.
Such amounts are payable for the loss of bargain and
the loss of protection against future risks and,
except as otherwise provided in the Agreement,
neither Party will be entitled to recover any
additional damages as a consequence of such losses.
5.8 No Limitation of Other Rights; Set-Off. The Non-
Defaulting Party's rights under this Section 5 shall
be in addition to, and not in limitation or exclusion
of, any other rights which the Non-Defaulting Party
may have (whether by agreement, operation of law or
otherwise), and, to the extent not prohibited by law,
the Non-Defaulting Party shall have a general right
of set-off with respect to all amounts owed by each
Party to the other Party, whether due and payable or
not due and payable (provided that any amount not due
and payable at the time of such set-off shall, if
appropriate, be discounted to present value in a
commercially reasonable manner by the Non-Defaulting
Party). The Non-Defaulting Party's rights under this
Section 5.8 are subject to Section 5.7.
SECTION 6. FORCE MAJEURE, ACT OF STATE, ILLEGALITY OR
IMPOSSIBILITY
6.1 Force Majeure, Act of State, Illegality or
Impossibility. If either Party is prevented from or
hindered or delayed by reason of force majeure or act
of state in the delivery or receipt of any Currency
in respect of a Currency Obligation or if it becomes
or, in the good faith judgment of one of the Parties,
may become unlawful or impossible for either Party to
make or receive any payment in respect of a Currency
Obligation, then the Party for whom such performance
has been prevented, hindered or delayed or has become
illegal or impossible shall promptly give notice
thereof to the other Party and either Party may, by
notice to the other Party, require the close-out and
liquidation of each affected Currency Obligation in
accordance with the provisions of Sections 5.1 and,
for such purposes, the Party unaffected by such force
majeure, act of state, illegality or impossibility
(or, if both Parties are so affected, whichever Party
gave the relevant notice) shall perform the
calculation required under Section 5.1 as if it were
the Non-Defaulting Party. Nothing in this Section
6.1 shall be taken as indicating that the Party
treated as the Defaulting Party for the purpose of
calculations required by Section 5.1 has committed
any breach or default.
6.2 Transfer to Avoid Force Majeure, Act of State,
Illegality or Impossibility. If Section 6.1 becomes
applicable, unless prohibited by law, the Party which
has been prevented, hindered or delayed from
performing shall, as a condition to its right to
designate a close-out and liquidation of any affected
Currency Obligation, use all reasonable efforts
(which will not require such Party to incur a loss,
excluding immaterial, incidental expenses) to
transfer as soon as practicable, and in any event
before twenty (20) days after it gives notice under
<PAGE>
Section 6.1, all its rights and obligations under the
Agreement in respect of the affected Currency
Obligations to another of its Designated Offices so
that such force majeure, act of state, illegality or
impossibility ceases to exist. Any such transfer
will be subject to the prior written consent of the
other Party, which consent will not be withheld if
such other Party's policies in effect at such time
would permit it to enter into transactions with the
transferee Designated Office on the terms proposed,
unless such transfer would cause the other Party to
incur a material tax or other cost.
SECTION 7. PARTIES TO RELY ON THEIR OWN EXPERTISE
Each Party will be deemed to represent to the other
Party on the date on which it enters into an FX
Transaction that (absent a written agreement between
the Parties that expressly imposes affirmative
obligations to the contrary for that FX Transaction):
(i)(A) it is acting for its own account, and it has
made its own independent decisions to enter into that
FX Transaction and as to whether that FX Transaction
is appropriate or proper for it based upon its own
judgment and upon advice from such advisors as it has
deemed necessary; (B) it is not relying on any
communication (written or oral) of the other Party as
investment advice or as a recommendation to enter
into that FX Transaction, it being understood that
information and explanations related to the terms and
conditions of an FX Transaction shall not be
considered investment advice or a recommendation to
enter into that FX Transaction; and (C) it has not
received from the other Party any assurance or
guarantee as to the expected results of that FX
Transaction; (ii) it is capable of evaluating and
understanding (on its own behalf or through
independent professional advice), and understands and
accepts, the terms, conditions and risks of that FX
Transaction; and (iii) the other Party is not acting
as a fiduciary or an advisor for it in respect of
that FX Transaction.
SECTION 8. MISCELLANEOUS
8.1 Currency Indemnity. The receipt or recovery by
either Party (the "first Party") of any amount in
respect of an obligation of the other Party (the
"second Party") in a Currency other than that in
which such amount was due, whether pursuant to a
judgment of any court or pursuant to Section 5 or 6,
shall discharge such obligation only to the extent
that, on the first day on which the first Party is
open for business immediately following such receipt
or recovery, the first Party shall be able, in
accordance with normal banking practice, to purchase
the Currency in which such amount was due with the
Currency received or recovered. If the amount so
purchasable shall be less than the original amount of
the Currency in which such amount was due, the second
Party shall, as a separate obligation and
notwithstanding any judgment of any court, indemnify
the first Party against any loss sustained by it.
The second Party shall in any event indemnify the
first Party against any costs incurred by it
<PAGE>
in making any such purchase of Currency.
8.2 Assignment. Neither Party may assign, transfer
or charge or purport to assign, transfer or charge
its rights or its obligations under the Agreement to
a third party without the prior written consent of
the other Party and any purported assignment,
transfer or charge in violation of this Section 8.2
shall be void.
8.3 Telephonic Recording. The Parties agree that
each Party and its agents may electronically record
all telephonic conversations between them and that
any such recordings may be submitted in evidence to
any court or in any Proceedings for the purpose of
establishing any matters pertinent to the Agreement.
8.4 Notices. Unless otherwise agreed, all notices,
instructions and other communications to be given to
a Party under the Agreement shall be given to the
address, telex (if confirmed by the appropriate
answerback), facsimile (confirmed if requested) or
telephone number and to the individual or department
specified by such Party in Part III of the Schedule.
Unless otherwise specified, any notice, instruction
or other communication given in accordance with this
Section 8.4 shall be effective upon receipt.
8.5 Termination. Each of the Parties may terminate
the Agreement at any time by seven (7) days' prior
written notice to the other Party delivered as
prescribed in Section 8.4, and termination shall be
effective at the end of such seventh day; provided,
however, that any such termination shall not affect
any outstanding Currency Obligations, and the
provisions of the Agreement shall continue to apply
until all the obligations of each Party to the other
under the Agreement have been fully performed.
8.6 Severability. In the event any one or more of the
provisions contained in the Agreement should be held invalid,
illegal or unenforceable in any respect under the law of any
jurisdiction, the validity, legality and enforceability of the
remaining provisions contained in the Agreement under the law of
such jurisdiction, and the validity, legality and enforceability
of such and any other provisions under the law of any other
jurisdiction shall not in any way be affected or impaired
thereby. The Parties shall endeavor in good faith negotiations
to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable
provisions.
<PAGE>
8.7 No Waiver. No indulgence or concession granted
by a Party and no omission or delay on the part of a
Party in exercising any right, power or privilege
under the Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude any other
or further exercise thereof or the exercise of any
other right, power or privilege.
8.8 Master Agreement. Where one of the Parties to
the Agreement is domiciled in the United States, the
Parties intend that the Agreement shall be a master
agreement, as referred to in 11 U.S.C. Section
101(53B)(C) and 12 U.S.C. Section 1821(e)(8)(D)(vii).
8.9 Time of Essence. Time shall be of the essence
in the Agreement.
8.10 Headings. Headings in the Agreement are for
ease of reference only.
8.11 Payments Generally. All payments to be made
under the Agreement shall be made in same day (or
immediately available) and freely transferable funds
and, unless otherwise specified, shall be delivered
to such office of such bank, and in favor of such
account as shall be specified by the Party entitled
to receive such payment in Part IV of the Schedule or
in a notice given in accordance with Section 8.4.
8.12 Amendments. No amendment, modification or
waiver of the Agreement will be effective unless in
writing executed by each of the Parties.
8.13 Credit Support. A Credit Support Document
between the Parties may apply to obligations governed
by the Agreement. If the Parties have executed a
Credit Support Document, such Credit Support Document
shall be subject to the terms of the Agreement and is
hereby incorporated by reference in the Agreement.
In the event of any conflict between a Credit Support
Document and the Agreement, the Agreement shall
prevail, except for any provision in such Credit
Support Document in respect of governing law.
8.14 Adequate Assurances. If the Parties have so
agreed in Part XI of the Schedule, the failure by a
Party to give adequate assurances of its ability to
perform any of its obligations under the Agreement
within two (2) Business Days of a written request to
do so when the other Party has reasonable grounds for
insecurity shall be an Event of Default under the
Agreement.
8.15 Correction of Confirmations. Unless either
Party objects to the terms contained in any
Confirmation sent by the other Party or sends a
corrected Confirmation within three (3) Business Days
of receipt of such Confirmation, or such shorter time
as may be appropriate given the Value Date of the FX
Transaction, the terms of such Confirmation shall be
deemed correct and accepted absent manifest error.
If the Party receiving a Confirmation sends a
<PAGE>
corrected Confirmation within such three (3) Business
Days, or shorter period, as appropriate, then the
Party receiving such corrected Confirmation shall
have three (3) Business Days, or shorter period, as
appropriate, after receipt thereof to object to the
terms contained in such corrected Confirmation.
SECTION 9. LAW AND JURISDICTION
9.1 Governing Law. The Agreement shall be governed
by, and construed in accordance with the laws of the
jurisdiction set forth in Part XII of the Schedule
without giving effect to conflict of laws principles.
9.2 Consent to Jurisdiction. (a) With respect to
any Proceedings, each Party irrevocably (i) submits
to the non-exclusive jurisdiction of the courts of
the jurisdiction set forth in Part XIII of the
Schedule and (ii) waives any objection which it may
have at any time to the laying of venue of any
Proceedings brought in any such court, waives any
claim that such Proceedings have been brought in an
inconvenient forum and further waives the right to
object, with respect to such Proceedings, that such
court does not have jurisdiction over such Party.
Nothing in the Agreement precludes either Party from
bringing Proceedings in any other jurisdiction nor
will the bringing of Proceedings in any one or more
jurisdictions preclude the bringing of Proceedings in
any other jurisdiction.
(b) Each Party irrevocably appoints the agent for
service of process (if any) specified with respect to
it in Part XIV of the Schedule. If for any reason
any Party's process agent is unable to act as such,
such Party will promptly notify the other Party and
within thirty (30) days will appoint a substitute
process agent acceptable to the other Party.
9.3 Waiver of Jury Trial. Each Party irrevocably
waives any and all right to trial by jury in any
Proceedings.
9.4 Waiver of Immunities. Each Party irrevocably waives, to the
fullest extent permitted by applicable law, with respect to
itself and its revenues and assets (irrespective of their use or
intended use), all immunity on the grounds of sovereignty or
other similar grounds from (i) suit, (ii) jurisdiction of any
courts, (iii) relief by way of injunction, order for specific
performance or for recovery of property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution or
enforcement of any judgment to which it or its revenues or assets
might otherwise be entitled in any Proceedings in the courts of
any jurisdiction and irrevocably agrees, to the extent permitted
by applicable law, that it will not claim any such immunity in
any Proceedings.
<PAGE>
IN WITNESS WHEREOF, the Parties have caused the
Agreement to be duly executed by their respective authorized
officers as of the date first written above.
CARR FUTURES INC.
By _/s/ Lawrence P. Anderson
Name: Lawrence P. Anderson
Title: President
DEAN WITTER DIVERSIFIED FUTURES FUND II
L.P.
By Demeter Management Corporation
General Partner
By_/s/ Mark J. Hawley ___________
Name: Mark Hawley
Title: President
<PAGE>
SCHEDULE
Schedule to the International Foreign Exchange Master Agreement
dated as of August 1, 1997
between Dean Witter Diversified Futures Fund II L.P. ("Party A")
and Carr Futures Inc. ("Party B").
Part I. Scope of Agreement
The Agreement shall apply to all foreign exchange
transactions outstanding between any two Designated
Offices of the Parties on the Effective Date.
It shall be understood that Party A shall typically be
conducting its foreign exchange transactions under the
Agreement through its Trading Advisors who shall be
disclosed by Party A to Party B from time to time by
notice. The Trading Advisors will act as Party A's
agents for all purposes hereunder until further
notice.
Part II. Designated Offices
Each of the following shall be a Designated Office:
Party A:
c/o Demeter Management
Corporation
Two World Trade Center
62nd Floor
New York, NY 10048
Attn: Robert E. Murray
Telephone No.: (212) 392-
7404
Facsimile No.: (212) 392-
2804
Party B:
Carr Futures Inc.
One World Trade Center
92nd Floor
New York, NY 10048
Attn: David Mangold
Telephone No.: (212) 453-
6365
Facsimile No.: (212) 453-
6361
<PAGE>
Part III. Notices:
If sent to Party A:
Address: c/o Demeter Management Corporation
Two World Trade Center, 62nd Floor
New York, New York 10048
Telephone Number: (212) 392-7404
Facsimile Number: (212) 392-2804
Name of Individual or Department to whom Notices are
to be sent: Robert E. Murray
With copies to Party A's designated Trading Advisors.
If sent to Party B:
Address: Carr Futures Inc.
One World Trade Center
New York, New York 10048
Telephone Number: (212) 453-6365
Facsimile Number: (212) 453-6361
Name of Individual or Department to whom Notices are
to be sent: David Mangold
Part IV. Payment Instructions
Name of Bank and Office, Account Number and Reference
with respect to relevant Currencies:
Party A Party B
Citibank, N.A. Harris Trust & Savings Bank,
Chicago
ABA: 021-000089 ABA: 071.000.288
Account Name: Dean Witter For the Account of Carr
Futures Inc.,
Reynolds, Inc. Chicago Customer Segregated
Account No. 40611164 Account No. 203-908-9
FFC: Dean Witter Diversified FFC: Dean Witter
Diversified
Futures Fund II L.P., Futures Fund II L.P.,
Account # (As Party B is notified Account # (As Party
A is notified
from time to time) from
time to time)
<PAGE>
Part V. Netting
A. Settlement Netting Offices
Each of the following shall be a Settlement Netting
Office:
Party A: Same as in Part II.
Party B: Same as in Part II.
B. Novation Netting Offices
Each of the following shall be a Novation Netting
Office:
Party A: Same as in Part V-A.
Party B: Same as in Part V-A.
.
C. Matched Pair Novation Netting Offices
Each of the following shall be a Matched Pair Novation
Netting Office:
Party A: Not Applicable.
Party B: Not Applicable.
.
<PAGE>
Part VI. Cash Settlement of FX Transactions
The following provision shall apply:
The definition of FX Transaction in Section 1 shall
include foreign exchange transactions for the purchase
and sale of one Currency against another but which
shall be settled by the delivery of only one Currency
based on the difference between exchange rates as
agreed by the Parties as evidenced in a Confirmation.
Section 3.1 is modified so that only one Currency
shall be delivered for any such FX Transaction in
accordance with the formula agreed by the Parties.
Section 5.1(b)(i)(A) is modified so that the Close-Out
Amount for any such FX Transaction for which the cash
settlement amount has been fixed on or before the
Close-Out Date pursuant to the terms of such FX
Transaction shall be equal to the Currency Obligation
arising therefrom (increased by adding interest in the
manner provided in clause (A)(2) if the Value Date
precedes the Close-Out Date) and for any such FX
Transaction for which the cash settlement amount has
not yet been fixed on the Close-Out Date pursuant to
the terms of such FX Transaction, the Close-Out Amount
shall be as determined by the Non-Defaulting Party in
good faith and in a commercially reasonable manner.
Part VII. Base Currency
Party A's Base Currency is the United States dollar.
Party B's Base Currency is the United States dollar.
Part Threshold Amount
VIII.
For purposes of clause (x) of the definition of Event
of Default:
Party A's Threshold Amount is 3% of Party A's equity
capital as evidenced by Party A's latest financial
statements.
Party B's Threshold Amount is 3% of Party B's equity
capital as evidenced by Party B's latest financial
statements.
<PAGE>
Part IX. Additional Events of Default
The following provisions which are checked shall
constitute Events of Default:
None.
[ ] (a) occurrence of garnishment or provisional
garnishment against a claim against the
Defaulting Party acquired by the Non-Defaulting
Party. The automatic termination provisions of
Section 5.1 [shall] [shall not] apply to either
Party that is a Defaulting Party in respect of
this Event of Default.
[ ] (b) suspension of payment by the Defaulting
Party or any Credit Support provider in
accordance with the Bankruptcy Law or the
Corporate Reorganization Law in Japan. The
automatic termination provision of Section 5.1
[shall] [shall not] apply to either Party that is
a Defaulting Party in respect of this Event of
Default.
[ ] (c) disqualification of the Defaulting Party or
any Credit Support Provider by any relevant bill
clearing house located in Japan. The automatic
termination provision of Section 5.2
[shall][shall not] apply to either Party that is
a Defaulting Party in respect of this Event of
Default.
Part X. Automatic Termination
The automatic termination provision of Section 5.1
shall not apply to Party A as Defaulting Party in
respect of clause (ii), (iii) or (iv) of the
definition of Event of Default.
The automatic termination provision of Section 5.1
shall not apply to Party B as Defaulting Party in
respect of clause (ii), (iii) or (iv) of the
definition of Event of Default.
Part XI. Adequate Assurances
Adequate Assurances under Section 8.14 shall apply to
the Agreement.
Part XII. Governing Law
In accordance with Section 9.1 of the Agreement, the
Agreement shall be governed by the laws of the State
of New York.
<PAGE>
Part Consent to Jurisdiction
XIII.
In accordance with Section 9.2 of the Agreement, each
Party irrevocably submits to the non-exclusive
jurisdiction of the courts of the State of New York
and the United States District Court located in the
Borough of Manhattan in New York City.
Part XIV. Agent for Service of Process
Not applicable.
Part XV. Certain Regulatory Representations
A. The following FDICIA representation shall not apply:
1. Party A represents and warrants that it qualifies
as a "financial institution" within the meaning of
the Federal Deposit Insurance Corporation
Improvement Act of 1991 ("FDICIA") by virtue of
being a:
[ ] broker or dealer within the meaning of
FDICIA;
[ ] depository institution within the meaning of
FDICIA;
[ ] futures commission merchant within the
meaning of FDICIA;
[ ] "financial institution" within the meaning
of Regulation EE (see below).
2. Party B hereby represents and warrants that it
qualifies as a "financial institution" by virtue of
being a:
[ ] broker or dealer within the meaning of
FDICIA;
[ ] depository institution within the meaning of
FDICIA;
[ ] futures commission merchant within the
meaning of FDICIA;
[ ] "financial institution" within the meaning
of Regulation EE (see
below).
<PAGE>
3. A Party representing that it is a "financial
institution" as that term is defined in 12 C.F.R.
Section 231.3 of Regulation EE issued by the Board
of Governors of the Federal Reserve System
("Regulation EE") represents that:
(a) it is willing to enter into financial
contracts" as a counterparty "on both sides of
one or more financial markets" as those terms
are used in Section 231.3 of Regulation EE;
and
(b) during the 15-month period immediately
preceding the date it makes or is deemed to
make this representation, it has had on at
least one (1) day during such period, with
counterparties that are not its affiliates (as
defined in Section 231.2(b) of Regulation EE)
either:
(i) one or more financial contracts of a
total gross notional principal amount of
$1 billion outstanding; or
(ii) total gross mark-to-market positions
(aggregated
across counterparties) of $100 million; and
(c) agrees that it will notify the other Party
if it no longer meets the requirements for
status as a financial institution under
Regulation EE.
4. If both Parties are financial institutions in
accordance with the above, the Parties agree that
the Agreement shall be a netting contract, as
defined in 12 U.S.C. Section 4402(14), and each
receipt or payment or delivery obligation under the
Agreement shall be a covered contractual payment
entitlement or covered contractual payment
obligation, respectively, as defined in FDICIA.
B. The following ERISA representation shall apply:
Each Party represents and warrants that it is neither
(i) an "employee benefit plan" as defined in Section
3(3) of the Employee Retirement Income Security Act of
1974 which is subject to Part 4 of Subtitle B of Title
I of such Act; (ii) a "plan" as defined in Section
4975(e)(1) of the Internal Revenue Code of 1986; nor
(iii) an entity the assets of which are deemed to be
assets of any such "employee benefit plan" or "plan"
by reason of the U.S. Department of Labor's plan asset
regulation, 29 C.F.R. Section 2510.3-101.
<PAGE>
C. The following CFTC eligible swap participant
representation shall apply:
Each Party represents and warrants that it is an
"eligible swap participant" under, and as defined in,
17 C.F.R. Section 35.1.
Part XVI. Additional Covenants
The following covenant[s] shall apply to the
Agreement:
A. Party B covenants and agrees that when Party A or an
agent for Party A requests Party B to an FX
Transaction, Party B will do a back-to-back principal
trade and the price of the FX Transaction to Party A
will be the same price at which Party B effects its
back-to-back trade with its counterparty, and Party B
will not profit from any mark-up or spread on the FX
Transaction.
B. With respect to each FX Transaction, Party A shall pay
to Party B a round-turn fee as follows. For FX
Transactions not having a Party B-imposed forward
date, the fee shall be $4.30 per round-turn ($2.15 per
side) for each $85,000 equivalent of the Currency in
the FX Transaction. For FX Transactions with a Party
B-imposed forward date restriction, the fee shall be
$5.00 per round-turn ($2.50 per side) for each
$135,000 equivalent of the Currency in the FX
Transaction.
C. Party A shall post margin with Party B with respect to
all FX Transactions in an amount equal to 3.0% of the
value of such FX Transactions on major currencies and
5.0% of the value of such FX Transactions on minor
currencies. All calls for margin shall be made by
Party B orally or by written notice to Dean Witter
Reynolds, and each such call for margin shall be met
by Party A within three hours after Dean Witter
Reynolds has received such call by wire transfer (by
federal bank wire system) to the account of Party B.
Party B shall accept as margin any instrument deemed
acceptable as margin under the rules of the Chicago
Mercantile Exchange. Upon oral or written request by
Dean Witter Reynolds, Party B shall, within three
hours after receipt of any such request, wire transfer
(by federal bank wire system) to Dean Witter Reynolds
for Party A's account any margin funds held by Party B
in excess of the margin requirements specified hereby.
Notwithstanding Part VI above, all payments, unless
otherwise agreed to, shall be paid in U.S. dollars.
