Exhibit 10.1
Institutional
Futures Client
Account Agreement
[COMPANY LOGO] [GRAPHIC OMITTED]
Merrill Lynch, Pierce, Fenner & Smith, Inc
One South Wacker Drive, Suite 300, Chicago, Illinois 60606
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Tel: 312-442-5453
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Risk Disclosure Statement For Futures and Options
This brief statement does not disclose all of the risks and other significant
aspects of trading in futures and options. In light of the risks, you should
undertake such transactions only if you understand the nature of the contracts
(and contractual relationships) into which you are entering and the extent of
your exposure to risk. Trading in futures and options is not suitable for many
members of the public. You should carefully consider whether trading is
appropriate for you in light of your experience, objectives, financial resources
and other relevant circumstances.
Futures
1. Effect of 'Leverage' or 'Gearing'
Transactions in futures carry a high degree of risk. The amount of initial
margin is small relative to the value of the futures contract so that
transactions are 'leveraged' or 'geared'. A relatively small market movement
will have a proportionately larger impact on the funds you have deposited or
will have to deposit: this may work against you as well as for you. You may
sustain a total loss of initial margin funds and any additional funds deposited
with the firm to maintain your position. If the market moves against your
position or margin levels are increased, you may be called upon to pay
substantial additional funds on short notice to maintain your position. If you
fail to comply with a request for additional funds within the time prescribed,
your position may be liquidated at a loss and you will be liable for any
resulting deficit.
2. Risk-reducing orders or strategies
The placing of certain orders (e.g. 'stop-loss' orders, where permitted under
local law, or 'stop-limit' orders) which are intended to limit losses to certain
amounts may not be effective because market conditions may make it impossible to
execute such orders. Strategies using combinations of positions, such as
'spread' and 'straddle' positions may be as risky as taking simple 'long' or
'short' positions.
Options
3. Variable degree of risk.
Transactions in options carry a high degree of risk. Purchasers and sellers of
options should familiarize themselves with the type of option (i.e. put or call)
which they contemplate trading and the associated risks. You should calculate
the extent to which the value of the options must increase for your position to
become profitable, taking into account the premium and all transaction costs.
The purchaser of options may offset or exercise the options or allow the options
to expire. The exercise of an option results either in a cash settlement or in
the purchaser acquiring or delivering the underlying interest. If the option is
on a future, the purchaser will acquire a futures position with associated
liabilities for margin (see the section on Futures above). If the purchased
options expire worthless, you will suffer a total loss of your investment which
will consist of the option premium plus transaction costs. If you are
contemplating purchasing deep-out-of-the-money options, you should be aware that
the chance of such options becoming profitable ordinarily is remote.
Selling ('writing' or 'granting') an option generally entails considerably
greater risk than purchasing options. Although the premium received by the
seller is fixed, the seller may sustain a loss well in excess of that amount.
The seller will be liable for additional margin to maintain the position if the
market moves unfavorably. The seller will also be exposed to the risk of the
purchaser exercising the option and the seller will be obligated to either
settle the option in cash or to acquire or deliver the underlying interest. If
the option is on a future, the seller will acquire a position in a future with
associated liabilities for margin (see the section on Futures above). If the
option is 'covered' by the seller holding a corresponding position in the
underlying interest or a future or another option, the risk may be reduced. If
the option is not covered, the risk of loss can be unlimited.
Certain exchanges in some jurisdictions permit deferred payment of the option
premium, exposing the
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purchaser to liability for margin payments not exceeding the amount of the
premium. The purchaser is still subject to the risk of losing the premium and
transaction costs. When the option is exercised or expires, the purchaser is
responsible for any unpaid premium outstanding at that time. Additional risks
common to futures and options
4. Terms and conditions of contracts
You should ask the firm with which you deal about the terms and conditions of
the specific futures or options which you are trading and associated obligations
(e.g. the circumstances under which you may become obligated to make or take
delivery of the underlying interest of a futures contract and, in respect of
options, expiration dates and restrictions on the time for exercise). Under
certain circumstances the specifications of outstanding contracts (including the
exercise price of an option) may be modified by the exchange or clearing house
to reflect changes in the underlying interest.
5. Suspension or restriction of trading and pricing relationships
Market conditions (e.g. illiquidity) and/or the operation of the rules of
certain markets (e.g. the suspension of trading in any contract or contract
month because of price limits or 'circuit breakers') may increase the risk of
loss by making it difficult or impossible to effect transactions or
liquidate/offset positions. If you have sold options, this may increase the risk
of loss.
Further, normal pricing relationships between the underlying interest and the
future, and the underlying interest and the option may not exist. This can occur
when, for example, the futures contract underlying the option is subject to
price limits while the option is not. The absence of an underlying reference
price may make it difficult to judge 'fair' value.
6. Deposited cash and property
You should familiarize yourself with the protections accorded money or other
property you deposit for domestic and foreign transactions, particularly in the
event of a firm insolvency or bankruptcy. The extent to which you may recover
your money or property may be governed by specific legislation or local rules.
In some jurisdictions, property which had been specifically identifiable as your
own will be pro-rated in the same manner as cash for purposes of distribution in
the event of a shortfall.
7. Commission and other charges
Before you begin to trade, you should obtain a clear explanation of all
commissions, fees and other charges for which you will be liable. These charges
will affect your net profit (if any) or increase your loss.
8. Transactions in other jurisdictions
Transactions on markets in other jurisdictions, including markets formally
linked to a domestic market, may expose you to additional risk. Such markets may
be subject to regulation which may offer different or diminished investor
protection. Before you trade you should inquire about any rules relevant to your
particular transactions. Your local regulatory authority will be unable to
compel the enforcement of the rules of regulatory authorities or markets in
other jurisdictions where your transactions have been effected. You should ask
the firm with which you deal for details about the types of redress available in
both your home jurisdiction and other relevant jurisdictions before you start to
trade.
9. Currency risks
The profit or loss in transactions in foreign currency-denominated contracts
(whether they are traded in your own or another jurisdiction) will be affected
by fluctuations in currency rates where there is a need to convert from the
currency denomination of the contract to another currency.
10. Trading facilities
Most open-outcry and electronic trading facilities are supported by
computer-based component systems for the order-routing, execution, matching,
registration or clearing of trades. As with all facilities and systems, they are
vulnerable to temporary disruption or failure. Your ability to recover certain
losses may be subject to limits on liability imposed by the system provider, the
market, the clearing house and/or member firms.
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Such limits may vary: you should ask the firm with which you deal for details in
this respect.
11. Electronic trading
Trading on an electronic trading system may differ not only from trading in an
open-outcry market but also from trading on other electronic trading systems. If
you undertake transactions on an electronic trading system, you will be exposed
to risks associated with the system including the failure of hardware and
software. The result of any system failure may be that your order is either not
executed according to your instructions or is not executed at all.
12. Off-exchange transactions
In some jurisdictions, and only then in restricted circumstances, firms are
permitted to effect off-exchange transactions. The firm with which you deal may
be acting as your counterparty to the transaction. It may be difficult or
impossible to liquidate an existing position, to assess the value, to determine
a fair price or to assess the exposure to risk. For these reasons, these
transactions may involve increased risks. Off-exchange transactions may be less
regulated or subject to a separate regulatory regime. Before you undertake such
transactions, you should familiarize yourself with applicable rules and
attendant risks.
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Institutional Futures Client Account Agreement
Merrill Lynch, Pierce, Fenner & Smith Incorporated, with an office at 1 South
Wacker Drive, Suite 300, Chicago, Illinois, 60606, ("Merrill Lynch") agrees to
carry one or more account(s) ("Account") for the undersigned ("Client") and
provide services to Client in connection with the purchase and sale of cash
commodities (including financial instruments), options on cash commodities,
commodity futures contracts, options on futures contracts, security futures
products, forward or leverage contracts, exchange of futures for physicals, and
any similar instruments which may be purchased or sold by or through Merrill
Lynch for Client's Account (collectively referred to as "Futures Contracts"). In
consideration thereof, Client and Merrill Lynch agree as follows:
1. AUTHORIZATIONS AND ACKNOWLEDGMENTS
Merrill Lynch is authorized to purchase or sell Futures Contracts for Client's
Account(s) in accordance with Client's oral or written instructions. Client
hereby waives any defense that any such instructions were not in writing as may
be required by any law, rule or regulation. In any such transaction, Merrill
Lynch may act as agent or principal and may charge a mark-up or commission, as
may be limited by law, rule or regulation. All contracts and transactions
entered into after the close of any applicable futures exchange's normal
business hours may be considered next business day activity. Merrill Lynch is
not acting as a fiduciary, commodity trading advisor, investments advisor or
commodity pool operator with respect to Client or any Futures Contracts or
Account(s) and Merrill Lynch shall have no responsibility for compliance with
any law or regulation governing the conduct of any such fiduciary or advisor
selected by Client or Client's conduct as a fiduciary, if applicable.
2. APPLICABLE LAW
All transactions under this Agreement shall be subject to the Commodity Exchange
Act and the constitution, rules, regulations, customs, usages, rulings and
interpretations of the Commodity Futures Trading Commission ("CFTC"), domestic
or foreign exchange markets, and their clearing houses, if any, where the
transactions are executed by Merrill Lynch or Merrill Lynch's agents
("Applicable Law"). Merrill Lynch is hereby authorized, in its discretion, to
employ affiliated and nonaffiliated clearing members, carrying brokers and floor
brokers as Merrill Lynch's agents or to engage in pre-execution discussions if
entering orders electronically, in connection with the execution, carrying,
clearance, delivery and settlement of any such transactions as permitted by
Applicable Law. Client agrees to provide Merrill Lynch any information necessary
for Merrill Lynch to respond to any inquiry from any exchange or other
regulatory agency pursuant to Applicable Law.
Absent a separate written agreement with Client with respect to give-ups,
Merrill Lynch, in its discretion, may, but shall not be obligated to, accept
from other brokers selected by Client, Futures Contracts executed by such
brokers which are given up to Merrill Lynch for clearing in any Account(s). If
Client has executed with other brokers and Merrill Lynch is required to pay such
executing brokers give up fees, Client agrees that Merrill Lynch may withhold
such fees from Client's account in anticipation of such payment coming due.
3. MERRILL LYNCH REPRESENTATIONS
Merrill Lynch and its managing directors, officers, employees and affiliates may
take or hold positions in or advise other clients concerning contracts which are
the subject of advice from Merrill Lynch to the Client, which positions and
advice may be consistent with or contrary to positions which are the subject of
advice to the Client. In addition, Merrill Lynch, its directors, officers,
employees, parent companies and affiliates may act on the other side of your
order by the purchase or sale for an account in which Merrill Lynch or any
person affiliated with Merrill Lynch has a direct or indirect interest, subject
to compliance with and the limitations and conditions of Applicable Law.
4. CLIENT REPRESENTATIONS
Client represents and warrants that (a) the individual(s) whose signatures are
stated below is/are duly authorized and empowered to execute and deliver this
Agreement and to effect purchases and sales of Futures Contracts through Merrill
Lynch in one or more Accounts until such time as Merrill Lynch is notified
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by Client to the contrary; (b) regardless of any subsequent determination to the
contrary, Client is a sophisticated user of the futures markets and is aware of
the risks and obligations of Futures Contracts and is fully prepared to assume
such risks and obligations; (c) trading in Futures Contracts is within the power
of Client and such activity will in no manner contravene the provisions of any
corporate resolutions, by-laws, statutes, rules, regulations, operating
agreement, partnership agreements, plan documents, trust agreements or any
judgments, orders or other agreements to which Client is bound; (d) Client is
duly organized and in good standing under the laws of the jurisdiction in which
it was organized and in all jurisdictions where it is qualified to do business;
(e) Client is acting as principal and not as agent in transactions under this
Agreement and no person other than Client has or will have an interest in
Client's Account(s) except as otherwise disclosed to Merrill Lynch herein; and
(f) Merrill Lynch is authorized to follow the instructions of the undersigned in
every respect concerning this Account, including, but not limited to, payment of
monies. With respect to activity in the Account(s), Merrill Lynch may rely upon
the instructions of the above referenced individuals or any individuals
subsequently authorized by Client until Client notifies Merrill Lynch to the
contrary.
If Client engages in exchange of futures for physical ("EFP") transactions,
Client acknowledges and agrees that, in connection with any EFP that (a) if the
Client is the seller of the cash contract(s) then the Client is the buyer of the
futures contract(s) being exchanged in the EFP, and the Client has an ownership
interest in the contract(s) sufficient to allow the delivery in satisfaction of
the Client's obligations resulting from the execution of the EFP; and (b) if the
Client is the buyer of the cash contract(s) then the Client is the seller of the
futures contract(s) being exchanged in the EFP. Upon request by Merrill Lynch,
Client agrees to provide documentation sufficient to verify its purchase or sale
of the cash contract.
5. MODIFICATION AND TERMINATION
Whenever any statute shall be enacted which shall affect in any manner or be
inconsistent with any of the provisions hereof, or whenever any rule or
regulation shall be prescribed or promulgated by the CFTC, various commodity
exchanges, or other agency or body having jurisdiction, which shall affect in
any manner or be inconsistent with any of the provisions hereof, the provisions
of this Agreement so affected shall be deemed modified or superseded, as the
case may be, by such statute, rule or regulation, and all other provisions of
the Agreement and the provisions as modified or superseded, shall in all
respects continue to be in full force and effect. Merrill Lynch shall use its
best efforts to give notice to the Client of any material change in conduct
under this Agreement required by any such statute, rule or regulation.
Either party may terminate this Agreement at any time by notice to the other.
However, such termination by Client shall not affect any transaction entered
into by Client prior to receipt of such notice by Merrill Lynch, or any open
commodity positions or any liability held by or owed to Merrill Lynch by Client
at the time of such termination. If Client has outstanding give-up bills owed to
other brokers at the time of its termination of this Agreement, Merrill Lynch
may withhold the amount of such fees in order to make such payments.
Other than as set forth in the first paragraph above, no provision of this
Agreement shall in any respects be waived, altered, modified or amended unless
such waiver, alteration, modification or amendment is in writing and signed by
one Merrill Lynch's authorized officers and by one of Client's authorized
officers. Client attests that if Client has downloaded this Agreement from the
internet or any electronic message, Client has printed it directly from the PDF
or other electronic file provided by Merrill Lynch without modification.
6. ADVICE
All advice with respect to Futures Contracts transmitted by Merrill Lynch with
respect to the Account is solely incidental to the conduct of Merrill Lynch's
business as a futures commission merchant and such advice will not serve as the
primary basis for any decision by the Client. Merrill Lynch shall have no
discretionary authority, power or control over any decision made by Client with
respect to the Account, whether or not Merrill Lynch's advice is utilized in
such decision.
7. POSITION LIMITS
Client acknowledges Merrill Lynch's right to limit the number of open positions
which Client may maintain or
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acquire through Merrill Lynch at any time. In addition, Client agrees it will
not exceed contract market position limits without appropriate prior approval
from the relevant contract market. Client agrees that it shall not agree with
any exchange or contract market to act as a market maker using Merrill Lynch's
execution or clearing capabilities without the prior written approval of Merrill
Lynch.
8. EXTRAORDINARY EVENTS AND THIRD PARTY ACTIONS
Merrill Lynch shall not be liable for breakdown or failure of transmission of
communication facilities, systems or software, government restrictions, war or
acts of terrorism, exchange failures or market rulings or natural disasters.
Merrill Lynch shall not be liable to Client for any loss, cost, expense or
damage to the Client with respect thereto, except as a result of Merrill Lynch's
gross negligence, willful misconduct or bad faith.
Under no circumstances shall Merrill Lynch have any responsibility, liability or
obligation regarding any conduct, act, omission or representation of any
introducing firm, commodity trading advisor, investment adviser or third party
vendor selected by Client to give Client research or advice, to electronically
route orders to Merrill Lynch or to provide like services to Client.
9. SECURITY AND LENDING
All monies, securities, Futures Contracts or other property which Merrill Lynch
may at any time be carrying for the Client or which may at any time be in
Merrill Lynch's possession, including safekeeping, shall be subject to a general
lien, security interest and right of set-off and recoupment in Merrill Lynch's
favor to discharge all obligations of the Client to Merrill Lynch, irrespective
of whether or not Merrill Lynch may have made advances in connection with such
securities, Futures Contracts or other property, and irrespective of the number
of Accounts the Client may have with Merrill Lynch. Merrill Lynch may apply or
transfer such funds or other property of Client between any of Client's accounts
for the purposes of margin or reduction or satisfaction of any net debit
balance. Client will not cause or allow any of the collateral held in the
Account, whether now owned or hereafter acquired, to be or become subject to any
liens, security interests or encumbrances of any nature without the prior
written consent of Merrill Lynch, and in no event shall the collateral held in
Client's Account be subject to a lien or security interest superior to that of
Merrill Lynch.
In accordance with the terms and limitations of the Commodity Exchange Act
regarding investment and pledging of Client assets, the Client grants to Merrill
Lynch the right to carry in its general loans, and to pledge, re-pledge,
hypothecate, re-hypothecate, invest or loan, either separately or with the
property of other clients, to either itself as broker or to others, any
securities or other property held by Merrill Lynch on margin for the Account(s)
of the Client or as collateral therefore.
10. FEES AND COMMISSIONS
Client shall be charged exchange and regulatory fees as determined by the
relevant exchange and/or regulator. If Client is a member of any U.S. exchange,
Client must advise Merrill Lynch accordingly if Client may avail itself of any
reduced fee at such exchange. In addition, Client must notify Merrill Lynch if
it ceases to be a member of any such exchange. Client shall be liable for all
fees (including any fines) owed to the exchange if Client fails to give such
notice to Merrill Lynch. Merrill Lynch may pay interest to Client on any
available margin excess as agreed to from time to time between Merrill Lynch and
Client. Merrill Lynch may charge interest upon Clients Account(s) in accordance
with Merrill Lynch's customary charges, as determined by Merrill Lynch, at the
time of the acceptance of this Agreement and thereafter. Client agrees to pay
all such commissions as agreed to from time to time between Merrill Lynch and
Client.
11. LIQUIDATION
If any of the following events shall occur, Merrill Lynch may proceed in
accordance with the following paragraph: (a) Client shall be dissolved or in any
other way terminated other than a bona fide restructuring (with prior notice to
Merrill Lynch) that results in a successor entity with no lesser credit quality
than the original entity; (b) Client shall fail to timely deposit or maintain
initial or original margin, or make timely payment of additional or variation
margin; (c) Client shall fail to pay the premium on any option purchased by
Client; (d) a proceeding under any applicable bankruptcy or insolvency law, an
assignment for the benefit
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of creditors or an application for a receiver, custodian, conservator,
administrator, liquidator or trustee shall be filed or applied for, by or
against Client (or if Client is a trust, its trustee), or an order shall be made
or a resolution shall be passed for the winding up, liquidation or
administration of Client (or, if Client is a trust, its trustee); (e) the
property deposited in Client's Account shall be determined by Merrill Lynch, in
its commercially reasonable discretion, to be inadequate to secure the Account
or Client has suffered a material change in its financial condition and is
unable to provide Merrill Lynch with adequate assurances of its financial
stability; (f) Client's Account shall incur a deficit balance; (g) Merrill Lynch
shall determine that any material representation or warranty made by Client to
Merrill Lynch is untrue or inaccurate and Client is unable to prove otherwise;
(h) if Client is an investment company, commodity pool or other form of
collective investment vehicle, proceedings for the revocation or suspension of
any registration of any public offering of interests in Client or of any person
or entity required to be registered in connection with Client's activities have
been instituted or are pending or threatened by any governmental agency or
self-regulatory organization.
In each event specified above, Merrill Lynch may liquidate Client's open
positions in whole or in part, sell or otherwise dispose of, realize, set off or
apply any or all of the property represented by an entity on or standing to the
credit of Client's Account or held by, to the order or under the direction or
control of Merrill Lynch or any exchange or clearing organization through which
transactions on Client's behalf are executed or cleared, buy any property for
Client's Account, and/or cancel any outstanding orders and commitments made by
Merrill Lynch on Client's behalf. Without prejudice to the foregoing, Merrill
Lynch shall have (to the greatest extent permitted by applicable law) all of the
rights of a secured party with respect to the property referred to above, and
any rights, powers and remedies provided herein shall operate as a variation and
extension of any statutory power of sale, application or realization available
to Merrill Lynch as a secured party.
Any such liquidation, sale, purchase and/or cancellation may be made at Merrill
Lynch's discretion on any exchange or other market or through any clearing
organization where such business is transacted, at public auction or at private
sale, upon prior notice to Client if reasonable under the circumstances, without
advertising the same and without prior tender, demand or call upon Client. No
prior tender, demand or call from Merrill Lynch of the time and place of such
liquidation, sale, purchase and/or cancellation shall be deemed to be a waiver
of Merrill Lynch's right to liquidate, sell, purchase and/or cancel as provided
herein.
In any transaction described above, Merrill Lynch may sell any property to
itself or its affiliates or buy any property from itself or its affiliates in an
arms-length transaction. Merrill Lynch may, to the extent permitted by law,
purchase the whole or any part thereof free from any right of redemption. In all
cases, Client shall remain liable for, and shall pay to Merrill Lynch the amount
of, any deficiency in Client's Accounts with Merrill Lynch resulting from any
transaction described herein above.
12. MARGIN
The Client will at all times maintain such margins or collateral for said
Accounts, as are reasonably required by Merrill Lynch or an exchange, and will
at any time upon Merrill Lynch's demand, discharge margin obligations of the
Client to Merrill Lynch. It is further agreed that if Merrill Lynch fails to
receive sufficient funds to pay for any Futures Contracts and/or initial or
variation margin in a timely manner, Client shall be deemed in breach of this
Agreement and Merrill Lynch may take the actions set forth in the Liquidation
provisions stated above.
13. CURRENCY FLUCTUATION RISK/PAYMENT OBLIGATIONS
All initial and subsequent deposits for margin purposes shall be made in U.S.
Dollars unless otherwise agreed by Merrill Lynch and Client. By placing an order
for a Futures Contract that settles in a currency other than U.S. dollars,
Client agrees that Merrill Lynch may convert to the appropriate currency funds
sufficient to meet the applicable margin requirement. Client understands and
agrees that if Client trades in such Futures Contracts, the margin for and
accruals from such trading may be held in the applicable currency outside of the
U.S., a money center country or the country of origin of such currency and that
accounts held outside of the U.S. may not be afforded the bankruptcy protections
of the U.S. bankruptcy
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code.
Client shall bear all risk and cost in respect to the conversion of currencies
incurred relative to transactions effected on behalf of Client pursuant hereto.
In no event shall Merrill Lynch be required to effect or be responsible for the
conversion of funds in anticipation of changes in prevailing rates of exchange.
With respect to all securities, Futures Contracts and other property purchased
or sold for Client's Account(s), Client agrees to pay Merrill Lynch upon demand:
(a) any tax imposed on such transactions by any competent authority; (b) the
amount of any trading losses in Client's Account(s) and (c) any debit balance or
deficiency remaining in Client's Account(s).
14. DELIVERY INSTRUCTIONS FOR PHYSICAL SETTLEMENT/OPTIONS EXERCISE
The Client understands that, if Client maintains an account for speculation,
liquidating instructions on open futures positions maturing in a current month
must be given to Merrill Lynch at least three (3) business days prior to the
first notice day or last trading day, whichever is earlier. If Client maintains
an Account for hedging, Client understands that liquidating instructions on open
futures positions maturing in a current month must be given to Merrill Lynch at
least one (1) business days prior to the first notice day in the case of long
positions and, in the case of short positions, at least one (1) business days
prior to the last trading day. Alternatively, sufficient funds to take delivery
or necessary delivery documents to make delivery must be delivered to Merrill
Lynch within the same period(s) described above, as applicable. Client
understands and acknowledges that option positions may be subject to automatic
exercise procedures. Merrill Lynch will exercise all in-the-money option
positions that are subject to automatic exercise unless Client advises Merrill
Lynch to the contrary. If Client fails to comply with any of the foregoing
obligations, Merrill Lynch may, at its discretion and in any commercially
reasonable manner, liquidate any open positions, make or receive delivery of any
securities, commodities or instruments, or exercise or allow the expiration of
any option. Client shall remain fully liable for all costs, expenses and
liabilities incurred by Merrill Lynch in connection with such transactions and
for any remaining debit balance.
In the event Merrill Lynch has requested from Client instructions, funds or
documents and none are received by Merrill Lynch within the applicable time
frame above, Merrill Lynch without any further notice or requests, may either
liquidate the Client's positions, or make or receive delivery on the Client's
behalf upon such terms and by such methods which Merrill Lynch deems to be
feasible. In all cases, if any exchange or self-regulatory organization requests
delivery intention instructions from Merrill Lynch, Client shall provide such
instructions promptly without regard to the above time frames.
In the case of Merrill Lynch's inability to deliver any security, commodity or
other property to the purchaser by reason of failure of the Client to supply
Merrill Lynch therewith, then and in such event, the Client authorizes Merrill
Lynch to borrow any security, commodity or other property necessary to make
delivery thereof. Client agrees to be responsible for any premiums which Merrill
Lynch may be required to pay thereon or any cost which Merrill Lynch may sustain
by reason of Merrill Lynch's inability to borrow the security, commodity or
other property sold.
Notwithstanding the foregoing, any time that Client fails to make or take
delivery, Client agrees that it shall be responsible for any debit, loss,
exchange or clearing corporation fine or other assessment or penalty levied
against Merrill Lynch as a result of Client's failed delivery.
15. VERIFICATION OF INFORMATION
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each Client who opens an account and, therefore, in
order to open an account, Merrill Lynch will request Client's name, address and,
for individuals, date of birth, as well as other information necessary to verify
identity. Further, Client understands that an investigation may be conducted at
banks, financial institutions and credit agencies pertaining to Client's
identity, credit standing and its business. The Client agrees to notify Merrill
Lynch if the financial information provided to Merrill Lynch by Client changes
in any material respect.
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If more than one person or entity owns an interest in the Account, all such
persons and entities shall execute this Agreement and each shall be deemed to be
the Client.
16. CONFIRMATIONS AND STATEMENTS
Reports of the execution of orders, purchase and sale notices, correction
notices and statements of the Client's Accounts shall be conclusive if not
objected to promptly by oral notification upon receipt of such notice or
statement and in writing in no event later than one (1) business day after
receipt of such notice or statement by Client. Communications will be sent to
the Client via mail, electronic transmission or facsimile at Client's request,
at the address of record on the Account application submitted by Client or at
such other address as the Client may hereafter give Merrill Lynch in writing.
Client must notify Merrill Lynch if it is not receiving its statements in a
timely manner.
All oral objections should be directed to Merrill Lynch's Futures Operations
Division at 312.442.5555. All subsequent written notices to Merrill Lynch shall
be delivered to Merrill Lynch, Pierce, Fenner & Smith, Futures Compliance
Department, World Financial Center, North Tower, 12th Floor, New York, NY,
10080, facsimile number 212.738.2788.
17. GOVERNING LAW, JURISDICTION, SUCCESSORS AND BINDING EFFECT
This Agreement and its enforcement shall be governed by the laws of the State of
New York without regard to conflicts of law principles. Client submits to the
non-exclusive jurisdiction of the courts of the State of New York and of the
Federal Courts in the Southern District of New York with respect to any claim
arising out of or involving this Agreement. Client agrees that any claim, action
or proceeding arising under or in any way relating to this Agreement must be
brought, if at all, within one year of the date of the event(s) giving rise
thereto. Client and Merrill Lynch hereby waive a trial by jury in any action
arising out of or relating to this Agreement or any transaction in connection
therewith.
All provisions shall be continuous, and shall cover the Account(s) which the
Client opens with Merrill Lynch, and shall inure to the benefit of Merrill
Lynch's parent firm or any successor organization, and shall be binding upon the
Client, its successors and assigns.
In accordance with CFTC Regulation 1.65, Merrill Lynch may assign the Client's
Account(s) and this Agreement to another registered Futures Commission Merchant
("FCM") by notifying the Client of the date and name of the intended assignee
FCM, which notice shall be provided to Client at least ten business days prior
to the date of the intended assignment. Unless Client objects to the assignment
prior to the scheduled date for the assignment, the assignment will be binding
on the Client. Client may not assign this Agreement without Merrill Lynch's
prior consent, which shall not be unreasonably withheld.
18. HEDGE ACCOUNT DESIGNATION
If this Account(s) is a hedge Account(s), all orders which the Client gives for
the purchase or sale of futures or options contracts for the Client's Account(s)
will represent bona fide hedges in accordance with accepted definitions of hedge
transactions as that term is defined in Regulation 1.3(z) under the Commodity
Exchange Act, if applicable, and any amendments or interpretations thereto which
may be made in the future by the Commodity Futures Trading Commission. Client
acknowledges that it is required to complete the Hedge Agreement in the Client
Account Application, Risk Disclosure and Statements Booklet and notify Merrill
Lynch if any transactions in Futures Contracts should no longer be designated as
hedged Futures Contracts.
19. INDEMNIFICATION
Client agrees to indemnify and hold Merrill Lynch, its affiliates, employees,
agents, successors and assigns, harmless from and against any and all
liabilities, losses, damages, costs and expenses, including reasonable
attorney's fees, incurred by Merrill Lynch and arising out of Client's breach or
default of this Agreement, failure to fully and timely perform Client's duties
under this Agreement herein, any actions of any third party selected by Client
which affect the Account, or should any of the representations and
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warranties fail to be true and correct in any material respect. Client also
agrees to pay promptly to Merrill Lynch all reasonable attorney's fees, incurred
by Merrill Lynch in the enforcement of any of the provisions of this Agreement
or in any action, claim or demand filed by Client arising out of this Agreement
and any other Agreements between Merrill Lynch and Client where Merrill Lynch is
found not to be liable or responsible. Merrill Lynch shall be liable to Client
for any breach of this Agreement by Merrill Lynch and the conduct of its
employees and agents which constitutes negligence or willful misconduct.
If Client is a trust, then specifically, without limiting the generality of the
prior paragraph, the Client agrees to hold harmless and indemnify Merrill Lynch,
its affiliates, agents, employees, successors and assigns, from and against any
and all claims, losses, damages, costs, and expenses, including reasonable
attorneys' fees, incurred by Merrill Lynch arising out of any claim by the Trust
against Merrill Lynch as a result of Merrill Lynch's compliance with Trustee's
instructions.
20. RECORDING
Each party understands that the other party, in its discretion, may record on
tape or otherwise, any telephone conversation between the parties, although
neither party assumes responsibility to do such or to retain such recordings.
Each party hereby agrees and consents to such recording and waives any right it
may have to object to the admissibility into evidence of such recording in any
legal proceeding between them or in any other proceeding in which the other
party is involved or in which its records are subpoenaed.
21. ELIGIBLE CONTRACT PARTICIPANT
Client agrees that it qualifies as an eligible contract participant ("ECP") as
that term is defined in Section 1(a)(12) of the Commodity Exchange Act as Client
is one of the following types of entities: (a) bank; (b) insurance company; (c)
corporation, partnership, trust or limited liability company with total assets
in excess of 10 million dollars or net worth of 1 million dollars; (d)
government entity which owns and invests assets in excess of 25 million dollars;
(e) broker/dealer; (f) futures commission merchant; (g) a regulated commodity
pool, hedge fund, mutual fund or other collective investment vehicle with
greater than 5 million dollars in assets, (h) employee benefit plan with assets
greater than 5 million dollars of (i) a natural person with total assets
exceeding 10 million dollars. NOTE: ECP clients are permitted to engage in
certain activities pursuant to the Commodity Exchange Act. If Client is not one
of the above entities, please strike this paragraph in its entirety.
22. RECEIPT OF CLIENT ACKNOWLEDGMENTS
By checking the boxes below, Client hereby expressly acknowledges and agrees
that Client has received, read and understood and has retained a copy of the
"Risk Disclosure Statement for Futures and Options" which includes the
disclosures required by CFTC Rules 1.55, 30.6, 33.7 and 190.10(c), the specific
disclosure statements below and other disclosure and risk statements applicable
to Client's account as set forth in this Agreement and the "Client Account
Application, Disclosure Statements and Notices". Please check all boxes.
|_| Risk Disclosure Statement for Futures and Options
|_| Authorization to Transfer Client Funds
|_| Singapore Risk Disclosure Statement
Client hereby acknowledges that Client has read and understands all the
disclosures provided and agrees to be bound by all of the terms contained in
this Agreement. Client agrees to immediately notify Merrill Lynch of any
material changes to the information contained herein. Merrill Lynch and Client
agree that this Agreement may be executed in counterparts.
PLEASE NOTE: If this Agreement is executed on behalf of a corporation, a
corporate resolution authorizing the signature(s) below must be attached. If
this Agreement is executed on behalf of a partnership, then the signature(s)
below is/are that of all of the General Partners and the partnership agreement
must be attached. If this Agreement is executed on behalf of a Trust, the
Trustee signature block below must be signed and the trust agreement provided.
If this
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Agreement is executed on behalf of a limited liability company or a non-US
limited company, the operating agreement or a resolution authorizing the
signature(s) below must be attached. Persons signing this Agreement must provide
proof of identity. Additional documentation may be requested in accordance with
applicable anti-money laundering policies.
Please indicate your understanding and agreement of these terms by signing
below.
- --------------------------------------------------------------------------------
Account Name
By: __________________________________ __________________________________
Authorized Signature Date
__________________________________ __________________________________
Print Name Title
By: __________________________________ __________________________________
Authorized Signature Date
__________________________________ __________________________________
Print Name Title
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