Exhibit 10.01(f)
BARCLAYS CAPITAL INC.
FUTURES AND OPTIONS CUSTOMER ACCOUNT AGREEMENT
This Futures and Options Customer Account Agreement ("Agreement")
between BARCLAYS CAPITAL INC., a registered futures commission merchant ("FCM")
and broker/dealer, and the undersigned ("Customer") shall govern all
transactions that Barclays Capital Inc. or any of its affiliates or agents
(collectively, "Barclays," unless otherwise specified) may execute, clear and/or
carry on Customer's behalf for the purchase or sale of commodities, commodity
futures, security futures, option and forward contracts thereon and interests
therein (including exchange-for-physical ("EFPs"), exchange-for-swap ("EFSs"),
and exchange-for-risk ("EFRs") transactions) (collectively, "Contracts") and any
accounts, including reactivated accounts, carried by Barclays on behalf and in
the name of Customer (each, an "Account").
1. APPLICABLE LAW.
Each Account and all Contracts, transactions and agreements in respect
of each Account shall be subject to (i) the Commodity Exchange Act ("CEA") and
all rules and interpretations of the Commodity Futures Trading Commission
("CFTC") and the National Futures Association ("NFA"); (ii) the constitution,
by-laws, rules, regulations, policies, procedures, interpretations and customs
of any applicable U.S. or non-U.S. board of trade, exchange, contract market,
trading facility or execution facility, including, without limitation, an
electronic trading system, facility or service, or clearing organization (each,
a "Transaction Facility") or of any clearing firm or self-regulatory agency or
organization; and (iii) any other laws, rules, interpretations, customs or usage
of the trade applicable to Customer's trading of Contracts. All such laws,
rules, regulations, policies, procedures, interpretations, customs and usage, as
in force from time to time, are hereinafter collectively referred to as
"Applicable Law".
2. GENERAL AGREEMENTS. Customer acknowledges and agrees that:
(a) Barclays' Responsibility. Barclays is responsible solely for
the execution, carrying and/or clearing of Contracts in each Account in
accordance with the terms of this Agreement. Neither Barclays nor any managing
director, officer or employee of Barclays is acting as a fiduciary or advisor in
respect of Customer or any Contract or Account. Barclays shall have no
responsibility for compliance with any law or regulation governing the conduct
of any fiduciary or advisor. Barclays shall have no responsibility for
Customer's compliance with any law or regulation governing or affecting
Customer's trading hereunder.
(b) Information and Positions. Any information on the market or on
matters incidental to the operation of any of your Accounts or the nature of any
of the Contracts provided by Barclays is solely incidental to the conduct of
Barclays' business as an FCM. Barclays makes no representation as to the
accuracy, completeness or reliability of any such information. Barclays and its
managing directors, officers and employees may take, hold or liquidate positions
in, or provide such information to other customers with respect to, Contracts
that are the subject of such information furnished by Barclays to Customer, and
such other positions and/or information may be inconsistent with the positions
held by or information given to Customer.
(c) Limitation of Barclays' Liability. Barclays shall not be
liable to Customer (i) in connection with the performance or non-performance by
any Transaction Facility or by any other third party where the use of such third
party was not required by Barclays (including, without limitation, floor
brokers, executing agents, banks, clearing firms and other depositories) in
respect of any Contract or other
property of Customer; (ii) as a result of any prediction or information made or
given by a representative of Barclays, whether or not made or given at the
request of Customer; (iii) as a result of any delay in the performance or
non-performance of any of Barclays' obligations hereunder directly or indirectly
caused by the occurrence of any contingency beyond the control of Barclays
including, but not limited to, the unscheduled closure of a Transaction
Facility, clearing firm or other depository or delays in the transmission of
orders due to breakdowns or failures of transmission or communication
facilities, Transaction Facilities or other systems, it being understood that
Barclays shall be excused from performance of its obligations hereunder for such
period of time as is reasonably necessary after such occurrence to remedy the
effects therefrom; (iv) as a result of any action taken by or on behalf of
Barclays or its floor brokers and agents to comply with Applicable Law; or (v)
for any acts or omissions of those neither employed nor supervised by Barclays.
Neither Barclays nor its managing directors, officers or employees shall be
responsible for any loss, liability, damage or expense except to the extent that
such loss, liability, damage or expense arises from its gross negligence or
willful misconduct. In no event will Barclays, its managing directors, officers
or employees be liable to Customer for consequential, incidental or special
damages under or relating to this Agreement.
(d) Security Interest. Except to the extent proscribed by
Applicable Law not subject to waiver, all Contracts, funds, margin, performance
bond, premium, currencies, securities, credit balances and other property from
time to time held by, to the order of or on behalf of Barclays or held for the
benefit of the Customer by Barclays including, without limitation, by any
Transaction Facility or clearing firm through which transactions are executed,
carried and/or cleared and/or positions are held by Barclays, on behalf of the
Customer, and all proceeds thereof (collectively, "Collateral") are hereby
pledged to Barclays, and shall be subject to a general lien and a continuing,
perfected first security interest in Barclays' favor to secure any and all of
Customer's indebtedness or other obligations and/or liabilities owed to
Barclays. Customer agrees to execute any documents reasonably required by
Barclays for the perfection or negotiation of such general lien or security
interest. Customer hereby grants Barclays the right, in accordance with
Applicable Law, to borrow, pledge, repledge, transfer, hypothecate,
rehypothecate, loan or invest any of the Collateral, including without
limitation, utilizing the Collateral to purchase or sell securities pursuant to
repurchase agreements or reverse repurchase agreements with any party, in each
case without notice to Customer. Unless mutually agreed otherwise, Barclays
shall pay to Customer the interest or income earned from the investment or
utilization of such Collateral at a rate not to exceed the Fed Funds rate minus
0.75%.
(e) Conclusiveness of Reports and Objections. All written and oral
reports or communications related to transactions in the Accounts, including but
not limited to confirmations, purchase and sale statements, monthly statements
and correction notices (collectively, "Reports"), shall be conclusive and
binding on Customer unless Customer notifies Barclays of any objection as
follows: (i) in the case of any written Reports, prior to the opening of trading
on the Transaction Facility on or through which such transaction occurred on the
business day following the day on which Customer receives such Report, and (ii)
in the case of any oral Report, at the time such Report is given to Customer.
Nothing herein, however, shall prevent Barclays upon discovery of any error or
omission, from correcting a Report.
(f) Delivery and Exercise Instructions. If Customer intends to
make or take delivery under any futures Contract or to exercise any option
Contract, Customer agrees to notify Barclays not later than the time specified
by Barclays and in any event at least (i) with respect to long positions, two
(2) business days prior to first notice day of the applicable Transaction
Facility, and (ii) with respect to short positions, two (2) business days prior
to the last trading day for the Contract in question (such time periods are
referred to herein as the "Notice Periods"). Notwithstanding the foregoing,
Customer agrees that Customer will not make or take delivery through Barclays
with respect to any Contract that provides for the physical delivery of an
underlying commodity that is not an energy, metal, financial, currency,
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equity or interest rate product (a "Non-Deliverable Contract") except with the
prior consent of an officer or director of Barclays. Customer further agrees
that, absent such consent to delivery, Customer shall liquidate all of
Customer's open positions in Non-Deliverable Contracts no later than the end of
the applicable Notice Period. With respect to any deliverable Contract, Customer
shall ensure Barclays holds sufficient funds in Customer's Account to fulfill
Customer's obligations to make or take delivery and shall furnish Barclays with
property deliverable by Customer under any Contract in accordance with Barclays'
directions. If Customer fails to comply with any of the foregoing obligations,
Barclays may, at its discretion and upon Barclays' good faith effort to notify
Customer, liquidate and/or roll forward to a later delivery month any open
Contracts, make or receive delivery of any commodities or instruments, or
exercise or allow the expiration of any options, for Customer's Account and
risk, and in such manner and on such terms as Barclays in its discretion deems
necessary or appropriate. Customer shall remain fully liable for, and Customer's
Account will be debited for, any loss, costs, expenses and liabilities incurred
by Barclays in connection with such transactions and for any remaining debit
balance in Customer's Account.
(g) Options Exercise and Allocation Procedure. Customer
understands and acknowledges that certain option Contracts sold by Customer may
be subject to exercise at any time. Exercise notices received by Barclays with
respect to option Contracts sold by Barclays customers shall be allocated among
customers (including Customer) pursuant to a random allocation procedure, and
Customer shall be bound by any such allocation made to it. Information regarding
Barclays' random allocation procedure is available upon request. Such notices
may be allocated to Customer after the close of trading on the day on which such
notices have been allocated to Barclays by the applicable Transaction Facility.
In the event of the allocation of an exercise notice(s) to Customer, Barclays
shall use reasonable efforts to notify Customer promptly. Barclays shall have no
responsibility for any action it takes or fails to take with respect to any
option Contract (and, without limiting the foregoing, shall have no
responsibility to exercise any option Contract purchased by Customer) unless and
until Barclays receives acceptable and timely instructions from Customer
indicating the action to be taken.
(h) Acceptance of Orders; Position Limits. Barclays shall have the
right, whenever in its discretion it deems it appropriate, to limit the number
of open Contracts (net or gross) that Barclays will at any time execute, clear
and/or carry for Customer, to require Customer to reduce open positions carried
with Barclays, and to refuse the acceptance of orders to establish new
positions. Barclays shall immediately notify Customer of its rejection of any
order. Unless specified by Customer, Barclays may designate the Transaction
Facilities (including, without limitation, any electronic trading systems or
facilities) on or through which it will attempt to execute orders. Customer
shall comply at all times, including throughout the trading day, with all
position limit rules imposed by Applicable Law.
(i) Liquidation of Offsetting Positions. Barclays shall liquidate
any Contract for which an offsetting order is entered by Customer, unless
Customer instructs Barclays not to liquidate such Contract and to maintain the
offsetting Contracts as open positions, provided, however, that Barclays shall
not be obligated to comply with any such instructions given by Customer if
Customer fails to provide Barclays with any representations, documentation or
information reasonably requested by Barclays or if, in Barclays' reasonable
judgment, any failure to liquidate such offsetting Contracts against each other
would result in a violation of Applicable Law.
(j) Reliance on Instructions. Barclays and its managing directors,
officers and employees shall be entitled to rely, and shall not be liable for
any reliance, on any instruction, notice or communication that it reasonably
believes to have originated from Customer or Customer's duly authorized agent
(including a third-party advisor, if any), and Customer shall be bound thereby.
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(k) Use of Clearing Brokers. Customer authorizes Barclays in its
discretion to select for and on behalf of Customer floor brokers and execution
agents and, on Transaction Facilities where Barclays is not a clearing member,
unaffiliated clearing brokers, which will act as brokers and agents of Customer
in connection with transactions in Contracts for the Account(s). Such
transactions may be cleared through accounts maintained by Barclays in its own
name with one or more clearing brokers.
(l) Give-Ups. Absent a separate written agreement with Customer
with respect to give-ups, Barclays, in its discretion, may, but shall not be
obligated to, accept from other brokers Contracts executed by such brokers for
Customer and to be given up to Barclays for clearance or carrying in an Account.
(m) Financial and Other Information. Customer shall provide to
Barclays such financial and other information regarding Customer as Barclays may
from time to time reasonably request. Customer authorizes Barclays to contact
such banks, financial institutions and credit agencies as Barclays shall deem
appropriate from time to time for verification of such information. Customer
shall notify Barclays promptly of any material adverse change to its condition,
financial or otherwise. Customer acknowledges and agrees that Barclays may
provide financial and other information regarding Customer to any Transaction
Facility, clearing firm or self-regulatory agency or organization upon the
request of any such entity and as permitted by Applicable Law.
(n) Currency Exchange Risk. Customer shall bear all risk and cost
in respect of the conversion of currencies incident to transactions effected on
behalf of Customer pursuant hereto. Unless otherwise specified in the Reports
sent to Customer with respect to its Contracts and Accounts, all margin deposits
in connection with any Contracts, and any debits or credits to Customer's
Account(s), shall be stated in U.S. Dollars. By placing an order in a Contract
settled in a particular currency (the "Contract Currency"), Customer agrees to
convert to the Contract Currency funds sufficient to meet the applicable margin
requirement. Any conversions of currency shall be at a rate of exchange
reasonably determined by Barclays based on prevailing money market rates of
exchange for such currencies.
(o) Recording of Telephone Conversations. Customer acknowledges,
authorizes and consents to the recording of any telephone conversation between
Customer and Barclays, on tape or otherwise, with or without the use of an
automatic tone warning device. Customer hereby waives any and all objections to
the admissibility into evidence of any such tape recording in any legal
proceedings between the parties hereto.
(p) Inactive Accounts. Customer acknowledges that Barclays may
from time to time place accounts in which there is no trading on inactive status
and Customer agrees to provide whatever reasonably requested information
Barclays may require upon Customer's request to reactivate any such inactive
Account.
3. CUSTOMER REPRESENTATIONS.
Customer represents, warrants and agrees as of the date hereof and on
the date of each transaction executed hereunder that:
(a) Customer has full right, power and authority to enter into
this Agreement, and the person executing this Agreement on behalf of Customer is
authorized to do so;
(b) this Agreement is binding on Customer and enforceable against
Customer in accordance with its terms;
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(c) Customer is an "eligible contract participant," as such term
is defined in Section 1a(12) of the CEA;
(d) Customer may lawfully establish and open the Account for the
purpose of effecting purchases and sales of Contracts through Barclays;
(e) transactions entered into pursuant to this Agreement will not
violate any applicable law (including any Applicable Law), judgment, order or
agreement to which Customer or its property is subject or by which it or its
property is bound;
(f) all information provided by Customer in the Futures and
Options Account Application (which application and the information contained
therein hereby is incorporated into this Agreement) is true, correct, complete
and accurate;
(g) it will not rely on any communication (written or oral) of
Barclays as investment advice or as a recommendation to enter into any
transaction, and no such communication (written or oral) received from Barclays
shall be deemed to be an assurance or guarantee as to the expected results of
the transaction;
(h) Customer is acting for its own Account, is capable of
assessing the merits of, understanding (on its own behalf or through independent
professional advice) and assuming, and understands, accepts and assumes, the
terms, conditions and risks of each transaction, and will make its own
independent decisions to enter into Contracts and as to whether each Contract is
appropriate or proper for it based on Customer's own judgment and upon advice
from such advisors as it has deemed necessary;
(i) Barclays shall have no discretionary authority, power or
control over any decisions made by or on behalf of Customer in respect of the
Account, regardless of whether Customer relies on the information provided by
Barclays in making any such decisions;
(j) except as disclosed in writing to Barclays, Customer is acting
solely as principal and not as agent for any other party and no other customer
has any interest in the Account;
(k) Customer has reviewed the registration requirements of the
CEA, CFTC and NFA relating to commodity pool operators and commodity trading
advisors and has determined that it and any person that has trading authority or
control over its Account are in compliance with such requirements.
(l) Customer has made no changes to this form of Agreement, or any
other form of agreement, authorization, tax form or other document relating to
this Agreement or the Account(s), provided by Barclays;
(m) Barclays is relying on the representations and warranties of
Customer contained herein in entering into this Agreement and opening the
Account and Customer will immediately notify Barclays of any changes to the
accuracy thereof;
(n) Customer expressly agrees to waive any and all claims, rights
or causes of action which Customer has or may have against Barclays, its
managing directors, officers and/or employees arising in whole or in part,
directly or indirectly, out of any act or omission of a party who refers or
introduces Customer to Barclays or who places orders on behalf of Customer; and
5 March 2003
(o) No person or entity other than Customer has, nor during the
term of this Agreement will have, any ownership interest of ten percent or more
in any Account, and no person other than Customer and Advisor, if any, has or
will have any control over any Account, except as otherwise disclosed to
Barclays in writing.
4. PAYMENT OBLIGATIONS OF CUSTOMER. With respect to every
Contract purchased, sold or cleared for the Account, Customer shall pay Barclays
upon demand (which demand may be written or oral):
(a) all brokerage charges, give-up fees, commissions and service
fees as Barclays may from time to time charge;
(b) all Transaction Facility, clearing firm or NFA fees or
charges, or any other transaction fees, regulatory fees and service charges
incurred with respect to each transaction;
(c) any tax imposed on such transactions by any competent taxing
authority;
(d) any debit balance or deficiency in the Account;
(e) interest on any debit balances remaining in the Account at a
rate equal to the Fed Funds rate plus 0.75%, or at such other rate as may be
mutually agreed upon from time to time, together with Barclays' costs and
reasonable attorneys' fees incurred in collecting any such debit balance; and
(f) any other amounts owed by Customer to Barclays with respect to
the Account, any Contracts carried therein or transactions undertaken in
connection therewith.
Any and all payments required to be made by Customer hereunder shall be
made by wire transfer, in immediately available funds, to an account designated
by Barclays, unless otherwise agreed by Barclays.
5. MARGIN AND OTHER CONTRACT OBLIGATIONS. With respect to every
Contract purchased, sold or cleared for the Account, Customer shall make, or
cause to be made, all applicable initial margin, variation margin, intra-day
margin and premium payments, and perform all other obligations attendant to
Contracts or positions in such Contracts, as such payments or performance may be
required by Barclays consistent with Applicable Law or as such payments or
performance may be required of Barclays by any member of any Transaction
Facility clearing such Contract on Barclays' behalf. Customer acknowledges and
agrees that Barclays has no obligation to establish uniform margin requirements
among products or customers and margins required by Barclays may exceed the
minimum margin requirements of the applicable Transaction Facility and be
increased or decreased from time to time at the discretion of Barclays, without
advance notice to Customer.
Requests for margin deposits and/or premium payments may, at Barclays'
election, be communicated to Customer orally, telephonically, electronically, or
in writing. Customer margin deposits and/or premium payments shall be made to
such omnibus customer account(s) as directed by Barclays, and shall be in such
form as Barclays deems appropriate.
6 March 2003
6. CUSTOMER DEFAULT AND BARCLAYS' REMEDIES.
(a) Each of the following events shall be a default ("Default") by
Customer under this Agreement:
(i) Customer breaches or fails to timely and fully
perform any of its obligations hereunder or otherwise in respect of any
Contract;
(ii) Customer fails to deposit or maintain required
margin, fails to pay required premiums or fails to make any other
payments required hereunder or otherwise in respect of any Contract;
(iii) if Customer is an employee benefit plan, the
termination of Customer or the filing by Customer of a notice of intent
to terminate with a governmental agency or body, or the receipt of a
notice of intent to terminate Customer from a governmental agency or
body, or the inability of Customer to pay benefits under the relevant
employee benefit plan when due;
(iv) any representation made by Customer or Advisor (if
any) is not or ceases to be accurate and complete in any material
respect;
(v) a case in bankruptcy is commenced or a proceeding
under any insolvency or other law for the protection of creditors or
for the appointment of a receiver, trustee or similar officer is filed
by or against Customer;
(vi) Customer makes or proposes to make any arrangement or
composition for the benefit of its creditors, or Customer or any of its
property is subject to any agreement, order or judgment providing for
Customer's dissolution, liquidation or reorganization, or for the
appointment of a receiver, trustee or similar officer for Customer or
its property;
(vii) Customer makes an admission in writing that it is
insolvent or is unable to pay its debts when they mature or the
suspension by Customer of its usual business or any material portion
thereof; and
(viii) any warrant or order of attachment is issued against
any Account or a judgment is levied against any Account.
(b) Upon the occurrence of a Default, or if Barclays reasonably
considers it necessary for its protection to exercise any of the following
remedies, then Barclays shall have the right, in addition to any other remedy
available at law or equity to Barclays, all without demand for margin and
without notice or advertisement (except as provided in Section 6(c) below):
(i) close out any or all of Customer's open Contracts,
including, without limitation, through EFPs, EFSs or EFRs. For the
purposes of this provision, Customer expressly authorizes Barclays to
act as broker for Customer or as principal opposite Customer with
respect to such EFP, EFS or EFR transactions and to execute such
physical commodity, swap or over-the-counter transactions and documents
on behalf of Customer as may be necessary to effect such EFP, EFS or
EFR transactions. Customer recognizes that such EFP, EFS or EFR
transactions are not competitively executed by open outcry on a
Transaction Facility but will be executed at the market price then
available to Barclays;
(ii) cancel any or all of Customer's outstanding orders;
7 March 2003
(iii) treat any or all of Customer's obligations due
Barclays as immediately due and payable;
(iv) set off any obligations of Barclays to Customer
against any obligations of Customer to Barclays;
(v) sell any Collateral and/or set off and apply any
Collateral or the proceeds of the sale of any Collateral to satisfy any
obligations of Customer to Barclays;
(vi) borrow or buy any Contracts, options, securities or
other property for any Account;
(vii) terminate any or all of Barclays' obligations for
future performance to Customer; and/or
(viii) take such other or further action as Barclays in its
discretion reasonably considers necessary or appropriate for its
protection.
(c) So long as Barclays' rights or position would not be
jeopardized thereby, Barclays shall make a good faith effort to notify Customer
of its intention to take any of the actions specified in (i) through (viii) of
Section 6(b) above before taking any such action. Barclays shall not be deemed
to have breached any obligation to Customer if no such notice is given. Any sale
or purchase hereunder may be made in any manner determined by Barclays to be
commercially reasonable. In all cases a prior demand, margin call or notice of
any kind shall not be considered a waiver of Barclays' right to take any action
provided for herein. Customer shall be liable for the payment of any deficiency
remaining in each Account after any such action is taken, together with interest
thereon.
7. TERMINATION.
(a) This Agreement may be terminated by Customer or Barclays by
written notice to the other. Such termination shall be effective when received
by the addressee thereof and shall be of no effect in relation to any orders
placed or transactions executed prior to such notice. In the event of such
notice, Customer shall either close out open positions in the Account or arrange
for such open positions to be transferred to another FCM.
(b) Upon satisfaction by Customer of all liabilities to Barclays
arising hereunder (including payment obligations with respect to the transfer of
Contracts to another FCM), Barclays shall transfer to the FCM specified by
Customer all Contracts, cash, securities and other property then held for any
Account, whereupon this Agreement shall terminate. The representations,
warranties and indemnities contained in this Agreement shall survive any
termination of this Agreement.
8. INDEMNIFICATION. Customer hereby agrees to pay, indemnify and
hold Barclays, its managing directors, officers and employees harmless from and
against any and all loss, liability, damage, cost, penalty, fine, tax or expense
(including, without limitation, reasonable attorneys' fees, costs of collection
and any cost incurred in successfully defending against any claim asserted by
Customer) (collectively, "Losses") incurred by Barclays or such other persons in
connection with the Account and/or any transactions or positions established or
maintained therein. Such indemnification shall include, without limitation,
Losses with respect to (i) any action taken or not taken by Barclays and its
managing directors, officers or employees in reliance upon any instruction,
notice or communication that it reasonably believes to have originated from
Customer or Customer's duly authorized agent (including a
8 March 2003
third-party advisor, if any), and (ii) the exercise of Barclays' default
remedies under Section 6 of this Agreement.
9. GOVERNING LAW, JURISDICTION AND WAIVER OF JURY TRIAL.
(a) THE CONSTRUCTION, VALIDITY, PERFORMANCE AND ENFORCEMENT OF
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES).
(b) TO THE EXTENT NOT OTHERWISE REQUIRED UNDER APPLICABLE LAW, ANY
DISPUTES ARISING UNDER THIS AGREEMENT OR ANY TRANSACTION IN CONNECTION HEREWITH
SHALL BE RESOLVED IN A COURT OF LAW LOCATED IN THE STATE OF NEW YORK, BOROUGH OF
MANHATTAN OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK. THE PARTIES TO THIS AGREEMENT HEREBY SUBMIT TO THE JURISDICTION OF
SUCH COURTS AND AGREE THAT VENUE BEFORE SUCH COURTS IS PROPER. CUSTOMER CONSENTS
TO THE SERVICE OF PROCESS BY THE MAILING TO CUSTOMER OF COPIES OF THE
APPROPRIATE COURT FILING BY CERTIFIED MAIL TO THE ADDRESS OF CUSTOMER AS IT
APPEARS ON THE BOOKS AND RECORDS OF BARCLAYS, SUCH SERVICE TO BE EFFECTIVE THREE
DAYS AFTER MAILING. CUSTOMER HEREBY WAIVES IRREVOCABLY ANY IMMUNITY TO WHICH IT
MIGHT OTHERWISE BE ENTITLED IN ANY ARBITRATION, ACTION AT LAW, SUIT IN EQUITY OR
ANY OTHER PROCEEDING ARISING OUT OF OR BASED ON THIS AGREEMENT OR ANY
TRANSACTION IN CONNECTION HEREWITH.
(c) CUSTOMER HEREBY WAIVES A TRIAL BY JURY IN ANY ACTION ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION IN CONNECTION THEREWITH.
10. MISCELLANEOUS.
(a) Severability. If any provision of this Agreement is or at any
time becomes inconsistent with or invalid under any present or future Applicable
Law, such inconsistent or invalid provision shall be deemed to be superseded or
modified to conform to such Applicable Law, but in all other respects this
Agreement shall continue in full force and effect.
(b) Successors; Binding Effect. This Agreement shall be binding on
and inure to the benefit of each of the parties and their respective successors
and assigns. This Agreement and the obligations of Customer hereunder may not be
assigned or delegated without the prior written consent of Barclays. Customer
agrees that Barclays shall have the right to transfer or assign this Agreement
(and the Account) to any successor entity or to another properly registered FCM
in its discretion without obtaining the consent of Customer provided that
Barclays provides Customer with prior written notice if required under
Applicable Law.
(c) Entire Agreement. This Agreement and the attached appendices,
consents, certifications and authorizations constitute the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
prior agreements between the parties as to the subject matter hereof.
(d) Amendments or Waiver. No provision of this Agreement shall in
any respect be waived, hereto modified or amended unless such waiver,
modification or amendment is in writing and signed by authorized representatives
of each party hereto.
9 March 2003
(e) Notice. Except as otherwise expressly provided in this
Agreement, all instructions, notices or other communications shall be given
orally, unless requested to be in writing. All oral or written instructions,
notices or other communications shall be directed as follows:
(i) if to Barclays:
Barclays Capital Inc.
222 Broadway, 7th Floor
New York, New York 10038
Attention: Futures Operations Manager
telephone: 212-412-2580
facsimile: 212-412-6913
Any customer complaints or legal notices shall be
directed to "Attention: Futures Compliance Officer."
(ii) if to Customer, at the address, telephone or
facsimile number as indicated on the Futures and Options Account
Application.
(iii) if to an Advisor, at the address, telephone or
facsimile number indicated on the Futures and Options Account
Application.
Written notices shall be deemed to have been given by a party hereto if
(a) personally delivered to the other party, (b) sent by certified mail, return
receipt requested, postage prepaid, or (c) sent by confirmed facsimile
transmission. A notice sent by certified mail shall be deemed given on the third
business day after the mailing date.
(f) No Waiver. No failure on the part of Barclays or Customer to
exercise and no delay in exercising, any contractual right will operate as a
waiver or modification thereof, nor will any single or partial exercise by
Barclays or Customer of any right preclude any other or future exercise thereof.
(g) Rights and Remedies Cumulative. All rights and remedies under
this Agreement as amended and modified from time to time are cumulative and not
exclusive of any rights or remedies which may be available at law or otherwise.
10 March 2003
11. CUSTOMER ACKNOWLEDGMENTS. (PLEASE INITIAL APPROPRIATE CLAUSES
BELOW.)
(a) CUSTOMER HEREBY ACKNOWLEDGES THAT IT HAS RECEIVED AND
UNDERSTANDS THE FOLLOWING DISCLOSURE STATEMENT PRESCRIBED BY THE CFTC AND
FURNISHED HEREWITH:
RISK DISCLOSURE STATEMENT FOR FUTURES AND OPTIONS
INITIAL (Appendix A to CFTC Rule 1.55(c) transcribed in full
on pages 1-3 of Booklet 2 - Risk Disclosure
Statements)
(b) If Customer (i) maintains one or more other accounts (such as
a securities, commodities, cash or margin account) at Barclays and (ii) wants to
permit Barclays to transfer funds from such accounts without obtaining specific
instructions in each case, Customer should initial the following section:
Customer hereby specifically authorizes Barclays,
INITIAL until further notice in writing, to transfer any
excess funds from/to Customer's regulated commodity
account, whether a segregated account or a secured
account, (i) to/from any other account that Customer
maintains with Barclays, if in Barclays' judgment
such transfer is necessary to avoid or reduce a
margin call or to reduce a debit balance in such
other account, or (ii) to Barclays in order to
satisfy any obligation of Customer to Barclays.
Barclays will notify Customer in writing of any
transfer of funds made pursuant to this authorization
within a reasonable time after each transfer.
IN WITNESS WHEREOF, the Customer has executed this Agreement as of the date set
forth below.
CUSTOMER
Account Name:_____________________ By:________________________________
Date:_____________________________ Print Name:________________________
Title:_____________________________
PLEASE BE CERTAIN YOU HAVE INITIALED OR CHECKED ALL APPROPRIATE ELECTIONS ABOVE
AND THAT YOU HAVE FULLY COMPLETED THE ABOVE SIGNATURE BLOCK.
11 March 2003