EXHIBIT
10.01


 


 


Global Futures and Options Department


Deutsche
Bank Securities Inc.


31
West 52nd Street


New
York, New York 10019


Telephone
(212) 469-2034


Telefax
(212) 469-2165


 


 


FUTURES AND OPTIONS AGREEMENT


FOR INSTITUTIONAL CUSTOMERS


 


 


In consideration of the
acceptance by Deutsche Bank Securities Inc. (which, together with its
affiliates (“Affiliates”) is referred to as “DBSI” unless otherwise specified
herein) of one or more accounts for the undersigned (“Customer”) (all accounts
of the Customer with DBSI being collectively referred to as the “Account”),
Customer agrees that this Agreement shall govern all dealings between Customer
and DBSI relating to transactions that DBSI may execute, clear and/or carry on
Customer’s behalf for the purchase or sale of futures contracts (“Futures
Contracts”) or options thereon (“Option Contracts”; Futures Contracts and
Option Contracts collectively being “Contracts”).


 


1.     Relevant Law.


 


The Account and every Contract executed and/or cleared
by DBSI on Customer’s behalf shall be subject to (a) this Agreement; (b) the
Commodity Exchange Act, as amended (“CEA”) and all rules, regulations and
interpretations of the Commodity Futures Trading Commission (the “Commission”);
(c) all rules, regulations and interpretations of the National Futures
Association (“NFA”); and (d) the constitution, by-laws, rules, interpretations
and customs of each applicable exchange and clearing organization (each
exchange and clearing house being collectively an “Exchange”) ((b) through (d)
collectively being “Relevant Law”).


 


2.     Margin.


 


(a)   Customer agrees that it will deposit and maintain cash, acceptable
securities or other assets (as defined in Section 2(d)), in order to satisfy
initial and variation margin requirements and make any premium payments in
connection with each Contract, in the amount, at the times and in the manner
required by DBSI or Relevant Law. DBSI has no obligation to set uniform margin
requirements, commissions or other charges and DBSI’s margin requirements may
exceed Exchange requirements. After providing Customer with reasonable prior
notice, DBSI, exercising reasonable discretion, may change the margin
requirements for any Account or Contract.


 


(b)   DBSI will comply with all
applicable provisions of the CEA and Commission regulations relating to the
segregation and handling of customer property with respect to property
deposited by Customer. Without limitation of the foregoing, DBSI will not
pledge, rephypothecate, loan or invest any such property except in connection
with the margining of Contracts entered into by Customer.  Any property deposited by Customer may be
transferred or pledged by DBSI to any Exchange or clearing broker to satisfy
obligations of customers of DBSI.


 


(c)   DBSI agrees that it will pay
Customer interest on cash margin deposited by Customer at rates mutually agreed
to from time to time.  Customer will
receive all interest or other distributions or income on securities Customer
has deposited with DBSI.


 


(d)   For purposes of this Section,
acceptable securities or other assets means securities or other assets
acceptable (i) under the rules of the relevant Exchange and (ii) to DBSI in its
reasonable discretion. The value of acceptable securities or other assets
deposited in Customer’s Accounts will be determined by DBSI in its reasonable
judgment.


 


(e)   Customer will be entitled to
or responsible for any profit, loss or risk, and any related costs, arising
from currency conversions or exposures incidental to Customer’s trading of
Contracts (including those related to the margining of Contracts denominated in
currencies other than those deposited by Customer).


 

















 


Any
currency conversions will be made at DBSI’s then current rates of exchange.


 


3.     Other  Payments To DBSI.


 


Customer agrees to pay (i) commissions and brokerage charges for each
Contract and Account as mutually agreed by Customer and DBSI from time to time;
(ii) all fees, charges, taxes, fines and penalties incurred by DBSI or imposed
by any regulatory or self-regulatory organization (including any Exchange) with
respect to such Contracts or Accounts; (iii) any and all losses, debit balances
or deficiencies in any Account; and (iv) any interest on any deficiencies or
debit balance in such Account and on any funds advanced to or provided on
behalf of Customer at a rate to be agreed upon by Customer and DBSI. Such
interest rate shall be confirmed to Customer in writing.


 


4.     Option
Exercise; Delivery.


 


(a)   Customer is required to give
DBSI notice of any intention to make or take delivery under any Futures
Contract or to exercise any Option Contract, in accordance with DBSI’s
instructions, and to satisfy any payment or delivery requirements in connection
with its performance under such Futures or Option Contracts.


 


(b)   Customer understands that
certain Option Contracts are subject to exercise at any time. Upon the receipt
of an exercise notice for this type of Option Contract, DBSI will allocate the
notices in accordance with Relevant Law to customers who have open short
positions in the Option Contract (including Customer). The assignment of any
exercise notice to Customer by DBSI will be final and binding upon Customer.
DBSI will use reasonable efforts to notify Customer of any assignment of an
exercise notice to Customer.


 


(c)   If Customer does not furnish
DBSI with instructions regarding the disposition of a Contract within the time
specified by DBSI, DBSI will be entitled to take or refrain from taking any
action it deems appropriate and will have no liability to Customer.  These actions might include the exercise of,
or failure to exercise, an Option Contract or the liquidation of any Contract
on any Exchange (including those Exchanges whose rules provide for automatic
exercise).


 


5.     Position
Limits.


 


(a)   Customer agrees to comply
with the position limits established by Relevant Law, to notify DBSI promptly
if it is required to file any position report and, upon request, promptly to
provide copies of any such reports to DBSI.


 


(b)   Upon reasonable notice to
Customer, DBSI may limit the size and number of open Contracts (net or gross)
that Customer may execute, clear and/or carry with it. DBSI’s position limits
may be more restrictive than the limits imposed under Relevant Law. Customer
agrees that it will not place any order, which, if filled, would cause Customer
to exceed these limits. Further, DBSI may require Customer to liquidate any
open positions carried in Customer’s Account, and may refuse to accept any
order of Customer establishing a new position in order to comply with such
limits.


 


6.     Advice; No
Warranty as to Information, Etc.


 


(a)   Customer acknowledges and
agrees that: (i) Customer and any advisor of Customer have sole responsibility
for all decisions for the Account; (ii) DBSI is not an advisor or
fiduciary with respect to Customer, any Account or any action of Customer in
connection with an Account or Contract and DBSI assumes no responsi­bility for
compliance with any law or regulation governing the conduct of any such
fiduciary or advisor or for Customer’s compliance with any law or regulation
governing or affecting Customer; (iii) DBSI makes no represen­tation, warranty
or guarantee as to, and will not be liable or responsible for, the accuracy,
completeness or reliability of any advice or recommendation, or any market
information, furnished to Customer; (iv) recommendations to Customer as to any
particular transaction at any given time may differ among DBSI’s personnel and
may vary from any recommendations made to others; and (v) any advice provided
by DBSI with respect to a Contract or Account is incidental to DBSI’s business
as a futures commission merchant and will not serve as the primary basis for
any decision by or on behalf of Customer.


 


(b)   Customer agrees that DBSI,
its officers, directors, stockholders, representatives or associated persons
may have certain conflicts of interest in connection with the services
contemplated hereby, including but not limited to conflicts arising from
positions established for their proprietary accounts in Contracts that are the
subject of market recommendations furnished to Customer. Such positions or
other actions of such persons may not be consistent with any recommendations
furnished to Customer by DBSI.


 


7.     Customer
Representations, Warranties and Agreements.


 


Customer represents and warrants
to DBSI that as of the date of this Agreement and on the date each transaction
relating to a Contract or Account is entered into under this Agreement:


 


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(a)   (i) Customer is duly
organized under the laws of the applicable jurisdiction and the execution,
delivery and performance of this Agreement by Customer have been authorized by
all necessary corporate or other action; (ii) Customer has full power and
authority to enter into this Agreement and to perform its obligations under
this Agreement; (iii) this Agreement is valid and binding on Customer, is
enforceable against it in accordance with its terms and neither this Agreement
nor the trading of Contracts violate Relevant Law or any other law or regulation
governing or affecting Customer’s activities under this Agreement or any order
or agreement applicable to Customer or Customer’s property; (iv) Customer has
and will maintain in full force and effect any and all necessary governmental
or other approvals or authorizations to execute and deliver this Agreement,
perform its obligations hereunder; (v) Customer, and any other person involved
in the management of Customer or its Account, are in compliance with all
Relevant Law and any other law or regulation governing or affecting Customer’s
activities under this Agreement, including but not limited to all applicable
registration requirements; and (vi) Customer is acting solely as principal and
no person other than Customer has any interest in or any control over any
Account of Customer.


 


(b)   Customer is not an employee,
partner, officer, director or owner of more than ten percent of the equity
interest of a futures commission merchant, an introducing broker, Exchange or
any self-regulatory organization nor is Customer an employee or commissioner of
the Commission, except as previously disclosed in writing to DBSI.


 


(c)   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.


 


(d)   If Customer is an insured
depository subject to the Federal Deposit Insurance Act, Customer has taken all
action and maintained such records required to be taken or maintained by it to
effect and maintain the enforceability of this Agreement pursuant to the
Federal Deposit Insurance Act, and the person executing this Agreement on
behalf of Customer is an authorized person with at least the rank of vice
president.


 


(e)   Customer agrees promptly to
notify DBSI in writing if any of the warranties or representations contained in
this Section 7 becomes inaccurate or incomplete in any respect and to provide
financial and other information to DBSI at any time upon its reasonable
request, and represents that any such information will be accurate and complete
in every material respect. Customer shall also notify DBSI promptly of any
material adverse change in the financial condition of Customer, regardless of
whether Customer has previously furnished financial information to DBSI.


 


8.     Indemnification; Limitation of Liability.


 


(a)   Customer shall indemnify DBSI
and its officers, employees and agents for any fine, penalty, tax, loss,
liability or cost, including reasonable attorneys’ fees, incurred by DBSI that
was caused, directly or indirectly, by Customer’s refusal or failure (i) to
comply with Relevant Law or any other law or regulation governing or affecting
Customer’s activities under this Agreement or any provision of this Agreement
or (ii) to perform any obligation required under this Agreement. In addition,
Customer agrees to pay any attorneys’ fees and expenses incurred by DBSI in
collecting any amount due by Customer under this Agreement or in defending
against any claim brought by Customer in any suit, arbitration or reparations
proceeding in which DBSI is the prevailing party.


 


(b)   Customer acknowledges that
DBSI does not guarantee the performance by any Exchange or other third party,
including any third party clearing or intermediate broker, with respect to any
Contract and, accordingly, Customer agrees that DBSI has no responsibility or
liability to Customer for any loss or cost sustained or incurred by Customer
due to Customer’s, an Exchange’s or any other third party’s actions or
omissions in connection with any Contract unless caused solely by DBSI’s gross
negligence or willful breach of this Agreement.


 


(c)   DBSI shall not be liable for
the non-performance of any obligation, or any fine, sanction, penalty, expense,
tax, loss, liability or cost, caused by any events outside the control of DBSI,
including but not limited to any (i) action or order of any government,
judicial institution, Exchange or other self regulatory organization, (ii)
temporary or permanent suspension or termination of trading for whatever
reason, (iii) failure or malfunction of transmission or communication
facilities, (iv) delay or failure by any Exchange to enforce its rules or
pay or return any amount owed with respect to any Contracts executed and/or
cleared for Customer’s Accounts or (v) actions or omissions of third party
brokers.


 


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9.     Communication
Between the Parties; Confirmations Conclusive.


 


(a)   Customer must specify in a
written notice to DBSI the persons authorized to place orders or give DBSI
instructions on Customer’s behalf. Any additions or amendments to this notice
must be communicated to DBSI and any oral communication of such an addition or
amendment must be promptly confirmed by Customer in writing. DBSI will not be
bound by such amendments or additions until written confirmation is received.


 


(b)   DBSI may rely on any order
for the purchase or sale of Contracts, or any notice or other communications
that are given by Customer or that DBSI reasonably believes to have originated
from Customer or from Customer’s duly authorized agent and Customer shall be
bound by any such order, notice or communication and any action taken or not
taken by DBSI in reliance thereon.


 


(c)   Confirmations of trades and
any other similar notices, including but not limited to purchase and sale
statements, sent to Customer shall be conclusive and binding unless Customer or
Customer’s agent notifies DBSI to the contrary, (i) where a report is made
orally, orally at the time received by Customer or its agent, or (ii) where a
report or notice is in writing, in writing prior to the opening of trading on
the next day following receipt of the report on which the relevant Exchange is
open for business. Monthly statements of the Account shall be conclusive and
binding unless Customer or Customer’s agent notifies DBSI to the contrary
within five business days of Customer’s receipt thereof.


 


(d)   DBSI shall transmit all
communications to Customer at Customer’s address, telex, telefax or telephone
number or to such other address as Customer may hereafter direct in writing.
Customer shall transmit all communications to DBSI to the address, telex,
telefax or telephone number at the beginning of this Agreement, Attention:
Futures Administrator. All payments and deliveries to DBSI shall be wired,
mailed or otherwise transmitted to DBSI pursuant to DBSI’s instructions and
shall be deemed received only when actually received by DBSI.


 


10.  Security
Interest.


 


All money, credit balances, Contracts and other property in which
Customer has any ownership interest, now or at any future time held in
Customer’s Account or otherwise held by DBSI for Customer or any affiliate of
Customer and any amount due to DBSI for Customer’s Account from any Exchange or
clearing broker in connection with any Contracts, and all proceeds thereof,
shall be subject to a lien and security interest in DBSI’s favor to secure any
indebtedness of Customer to DBSI pursuant to this Agreement or any transactions
in Contracts hereunder.


 


11.  DBSI’s Right to Liquidate Customer Positions.


 


(a)   In addition to all other
rights of DBSI set forth in this Agreement, DBSI has the right, upon the
occurrence of any of the events specified in (i) through (viii) below, to take
any or all of the actions specified in subdivision (b) of this Section:


 


(i)       if DBSI is so directed or required by a regulatory or self-regulatory
organization or Exchange having jurisdiction over DBSI or the Account;


 


(ii)      if Customer repudiates, violates, breaches or fails to perform
on a timely basis any obligation, term, covenant or condition required to be performed
by Customer under this Agreement;


 


(iii)     if Customer fails to post the initial or variation margin
required by this Agreement, or fails to pay any required premium or make any
other payments required under this Agreement or in connection with any Contract;


 


(iv)     if Customer is in material breach of or in material default
under any contract or agreement to which it is a party or by which it or any of
its assets are bound;


 


(v)      if any representation made by Customer or by Customer’s
Advisor, if any, is not accurate or complete, or ceases to be accurate or
complete in any material respect;


 


(vi)     if a voluntary or involuntary case or other proceeding is
commenced by or against Customer seeking liquidation, reorganization or other
relief with respect to itself or any of its debts under any bankruptcy,
insolvency or similar law, or seeking the appoint­ment of a trustee, receiver,
liquidator, conservator, administrator, custodian or other similar official of
it or any substantial part of its assets, or if Customer enters into or
proposes to enter into any arrangement for the benefit of any of its creditors,
or if Customer or any or all of its property is or becomes subject to any
agreement, order, judgment or decree that provides for Customer’s merger, consolidation,
dissolution, winding-up, liquidation, reorganization or appointment of a
trustee, receiver, liquidator, conservator, custodian or similar officer for
Customer or for Customer’s property, or if Customer takes any corporate action
to authorize any of the foregoing;


 


(vii)    if the Account, or any other account maintained by Customer or an
affiliate of Customer


 


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with DBSI becomes subject to any warrant, attachment or similar order;
or


 


(viii)   if, after allowing Customer an opportunity to provide assurances
acceptable to DBSI within a reasonable time period, DBSI reasonably determines
such action is necessary for its protection.


 


(b)   In each such instance, DBSI may (1) satisfy any obligations due DBSI out of
any of Customer’s property in DBSI’s custody or control, (2) liquidate any or
all of Customer’s Contracts, (3) decline to execute any or all of
Customer’s outstanding orders, (4) make Customer’s obligations to DBSI
immediately due and payable, (5) acting in a commercially reasonable manner,
sell any or all of Customer’s property in DBSI’s custody or control and set off
and apply any such property or the proceeds of the sale of such property to
satisfy any amounts owed by Customer to DBSI, (6) set off any obligations of
DBSI under this Agreement against the obligations of Customer to DBSI
hereunder, (7) set off any cash, Contracts or property held for Customer by
DBSI against amounts owed to DBSI by Customer hereunder, (8) purchase or borrow
any securities or other property required to settle any outstanding
transactions or positions for the Account, and (9) required to settle any
outstanding transactions or positions for the Account.


 


(c)   Before exercising any rights
under Section 11(b), DBSI will send a notice to customer of the action that it
intends to take provided that DBSI will be entitled to take any such action
regardless of whether such notice is received by Customer. Any prior demand or
notice by DBSI shall not be a waiver of any right of DBSI to take any action
authorized by this Agreement or Relevant Law.


 


(d)   At all times, Customer will
be liable for the payment of any debit balance or deficiency in the Account,
together with interest on such amounts and all costs relating to any
liquidation or collection, including reasonable attorneys’ fees.


 


12.  Payment Netting and Setoff.


 


Customer acknowledges and agrees that DBSI has the right to setoff and
apply any amounts, fees or charges due to it hereunder against amounts held in
any Accounts of Customer subject to this Agreement provided that any Account
subject to setoff under this Section is owned solely by the same Customer.


 


13.  Termination.


 


A party wishing to terminate this Agreement must provide the other party
with written notice of termination sent by certified mail specifying the
effective date of such termination. Any termination under this Section will not
affect any transactions entered into prior to the effective date of such
termination or any liability or obligation incurred prior to such date. Upon
termination under this Section, DBSI will either transfer all open positions in
Customer’s Account to another futures commis­sion merchant of Customer’s
choice, if so instructed by Customer, or liquidate all such positions. DBSI
will not transfer any of Customer’s property or Contracts held or controlled by
it until Customer satisfies all obligations to DBSI arising under this
Agreement, including the payment of any fees for the transfer of Contracts to
another futures commission merchant upon termination of this Agreement.


 


14.  Governing Law; Consent to Jurisdiction.


 


(a)   In case of a dispute between
Customer and DBSI arising out of or related to this Agreement or any
transaction hereunder, (i) the construction, validity, performance and enforcement
of this Agreement will be governed by the laws of the State of New York in all
respects (without giving effect to principles of conflict of laws), and (ii)
Customer and DBSI each agrees to bring any legal proceeding against the other
party in, and each such party consents in any legal proceeding brought by the
other party in connection with or related to this Agreement or breach thereof,
the Account or any transactions entered into hereunder to the jurisdiction of,
any state or federal court located within the City of New York.


 


(b)   Customer and DBSI each
expressly waives (i) all objections it may at any time have as to the
jurisdiction of the court in which any such legal proceedings may be commenced
and (ii) any defense of sovereign immunity or other immunity from suit or
enforcement, whether before or after judgment. Customer and DBSI each also
agrees that any service of process mailed to it at any address provided by the
receiving party shall be deemed a proper service.


 


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15. 
Miscellaneous.


 


(a)   Available Funds. Customer agrees
that all payments of cash by it to DBSI shall be made in immediately available
funds in such currency and to such bank account as DBSI may from time to time
specify. If Customer is required by law to make any deduction or withholding,
Customer will pay such amount to DBSI as will result in DBSI’s receiving an
amount equal to the full amount which would have been received had no such
deduction or withholding been required.


 


(b)   Consent to Recording. Customer and
DBSI each consents to the electronic recording of any or all telephone
conversations with the other party (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 the recording party’s erasure, at its sole discretion, of
any recording as part of its regular procedure for handling of recordings.


 


(c)   Authority to Disclose Information.
Customer hereby authorizes DBSI to disclose any financial, credit or business
information it has obtained concerning Customer to any Affiliate of DBSI, and
authorizes any such Affiliate to disclose like information to DBSI, in either
case solely for the purpose of permitting DBSI to perform its obligations, or
enforce its rights, under this Agreement. Any such information will be kept
confidential according to the internal policies of DBSI and its Affiliates.


 


(d)   Modification. This Agreement may
only be modified or amended by mutual written consent of DBSI and Customer. Any
modifica­tion, amendment, alteration or waiver of this Agreement will not
affect any outstanding orders or transactions or any legal rights or
obligations that may have already arisen between DBSI and Customer.


 


(e)   Cumulative Rights; No Waiver. The
rights and remedies conferred upon DBSI will be cumulative, and its forbearance
to exercise any right or remedy under this Agreement will not waive its right
to take such action at any later time, nor shall such forbearance constitute a
modification of this Agreement.


 


(f)    Successors and Assigns. This
Agreement will inure to the benefit of DBSI, its permitted successors and
assigns, and will be binding upon Customer and Customer’s successors and
assigns, provided,
however, that this Agreement may not be assigned or delegated by either party
without the prior written consent of the other party hereto and any purported
assignment or delegation without such consent shall be void.


 


(g)   Severability. If any term or
provision of this Agreement or the application thereof to any persons or
circumstances is found to be inconsistent with any Relevant Law or otherwise to
be invalid or unenforceable, such inconsistent, invalid or unenforceable
provision will be deemed to be superseded or modified to conform to such
Relevant Law, but the remainder of this Agreement and/or the application of
such term or provision to persons or circumstances other than those as to which
it is contrary, invalid or unenforceable, will not be affected thereby.


 


(h)   Counterparts. This Agreement may
be executed in any number of counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one
and the same instrument.


 


(i)    Entire Agreement. This Agreement,
together with any Annexes hereto entered into between DBSI and Customer,
constitutes the entire agreement between Customer and DBSI with respect to the
subject matter hereof and supersedes any prior agreements between the parties
with respect to such subject matter.


 


(j)    Multiple Customers. If the
signatory of this Agreement has the authority to enter into the Agreement on
behalf of more than one Customer (each such Customer being identified on the
attached Schedule I), the execution of the Agreement by such signatory
shall be sufficient to bind each such Customer to the terms of the Agreement to
the same extent and with the same force and effect as if each Customer had
executed a separate Agreement.


 


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[16.  Acknowledgment of Receipt of Disclosure
Statements; Hedging Election.


 


(a)   Customer acknowledges and
agrees that it has received from DBSI and has read and understood the following
document:


 


o  Risk
Disclosure Statement For Futures and Options pursuant to CFTC Regulations 1.55,
30.6, 33.7, 190.10 and disclosure pursuant to CFTC Rule 1.46(e)(1) (and the
related bankruptcy election).


 


(Please check box to so acknowledge)


 


(b)   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 DBSI’s bankruptcy, it prefers
that the bankruptcy trustee (check appropriate box):


 


o  Election
A - Liquidate all open contracts without first seeking instructions either from
or on behalf of Customer.


 


o  Election
B - Attempt to obtain instructions with respect to the disposition of all open
contracts.


 


(If
neither box is checked, Customer shall be deemed to have elected A.)


 


The
undersigned has read, understands and agrees to all of the provisions of this
Agreement.]


 


	
   

  	
   

  	
   

  
	
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Schedule I–Independent Customers Deemed to Have Entered Into Separate
Agreements Hereunder


 


 


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