**EXHIBIT10.01**

 

 

Global Futures and Options Department

DeutscheBank Securities Inc.

31West 52nd Street

NewYork, New York 10019

Telephone(212) 469-2034

Telefax(212) 469-2165

 

 

**FUTURES AND OPTIONS AGREEMENT**

**FOR INSTITUTIONAL CUSTOMERS**

 

 

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

 

**1.     Relevant Law.**

 

The Account and every Contract executed and/or clearedby DBSI on Customer’s behalf shall be subject to (a) this Agreement; (b) theCommodity Exchange Act, as amended (“CEA”) and all rules, regulations andinterpretations of the Commodity Futures Trading Commission (the “Commission”);(c) all rules, regulations and interpretations of the National FuturesAssociation (“NFA”); and (d) the constitution, by-laws, rules, interpretationsand customs of each applicable exchange and clearing organization (eachexchange 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, acceptablesecurities or other assets (as defined in Section 2(d)), in order to satisfyinitial and variation margin requirements and make any premium payments inconnection with each Contract, in the amount, at the times and in the mannerrequired by DBSI or Relevant Law. DBSI has no obligation to set uniform marginrequirements, commissions or other charges and DBSI’s margin requirements mayexceed Exchange requirements. After providing Customer with reasonable priornotice, DBSI, exercising reasonable discretion, may change the marginrequirements for any Account or Contract.

 

(b)   DBSI will comply with allapplicable provisions of the CEA and Commission regulations relating to thesegregation and handling of customer property with respect to propertydeposited by Customer. Without limitation of the foregoing, DBSI will notpledge, rephypothecate, loan or invest any such property except in connectionwith the margining of Contracts entered into by Customer.  Any property deposited by Customer may betransferred or pledged by DBSI to any Exchange or clearing broker to satisfyobligations of customers of DBSI.

 

(c)   DBSI agrees that it will payCustomer interest on cash margin deposited by Customer at rates mutually agreedto from time to time.  Customer willreceive all interest or other distributions or income on securities Customerhas deposited with DBSI.

 

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

 

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

 

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Anycurrency 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 eachContract 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 imposedby any regulatory or self-regulatory organization (including any Exchange) withrespect to such Contracts or Accounts; (iii) any and all losses, debit balancesor deficiencies in any Account; and (iv) any interest on any deficiencies ordebit balance in such Account and on any funds advanced to or provided onbehalf of Customer at a rate to be agreed upon by Customer and DBSI. Suchinterest rate shall be confirmed to Customer in writing.

 

**4.     OptionExercise; Delivery.**

 

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

 

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

 

(c)   If Customer does not furnishDBSI with instructions regarding the disposition of a Contract within the timespecified by DBSI, DBSI will be entitled to take or refrain from taking anyaction 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 Contracton any Exchange (including those Exchanges whose rules provide for automaticexercise).

 

**5.     PositionLimits.**

 

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

 

(b)   Upon reasonable notice toCustomer, 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 limitsmay be more restrictive than the limits imposed under Relevant Law. Customeragrees that it will not place any order, which, if filled, would cause Customerto exceed these limits. Further, DBSI may require Customer to liquidate anyopen positions carried in Customer’s Account, and may refuse to accept anyorder of Customer establishing a new position in order to comply with suchlimits.

 

**6.     Advice; NoWarranty as to Information, Etc**.

 

(a)   Customer acknowledges andagrees that: (i) Customer and any advisor of Customer have sole responsibilityfor all decisions for the Account; (ii) DBSI is not an advisor orfiduciary with respect to Customer, any Account or any action of Customer inconnection with an Account or Contract and DBSI assumes no responsi­bility forcompliance with any law or regulation governing the conduct of any suchfiduciary or advisor or for Customer’s compliance with any law or regulationgoverning or affecting Customer; (iii) DBSI makes no represen­tation, warrantyor guarantee as to, and will not be liable or responsible for, the accuracy,completeness or reliability of any advice or recommendation, or any marketinformation, furnished to Customer; (iv) recommendations to Customer as to anyparticular transaction at any given time may differ among DBSI’s personnel andmay vary from any recommendations made to others; and (v) any advice providedby DBSI with respect to a Contract or Account is incidental to DBSI’s businessas a futures commission merchant and will not serve as the primary basis forany decision by or on behalf of Customer.

 

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

 

**7.     CustomerRepresentations, Warranties and Agreements**.

 

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

 

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(a)   (i) Customer is dulyorganized under the laws of the applicable jurisdiction and the execution,delivery and performance of this Agreement by Customer have been authorized byall necessary corporate or other action; (ii) Customer has full power andauthority to enter into this Agreement and to perform its obligations underthis Agreement; (iii) this Agreement is valid and binding on Customer, isenforceable against it in accordance with its terms and neither this Agreementnor the trading of Contracts violate Relevant Law or any other law or regulationgoverning or affecting Customer’s activities under this Agreement or any orderor agreement applicable to Customer or Customer’s property; (iv) Customer hasand will maintain in full force and effect any and all necessary governmentalor other approvals or authorizations to execute and deliver this Agreement,perform its obligations hereunder; (v) Customer, and any other person involvedin the management of Customer or its Account, are in compliance with allRelevant Law and any other law or regulation governing or affecting Customer’sactivities under this Agreement, including but not limited to all applicableregistration requirements; and (vi) Customer is acting solely as principal andno person other than Customer has any interest in or any control over anyAccount of Customer.

 

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

 

(c)   If Customer is subject to theFinancial Institution Reform, Recovery and Enforcement Act of 1989, thecertified resolutions set forth following this Agreement have been caused to bereflected in the minutes of Customer’s Board of Directors (or other comparablegoverning body) and this Agreement is and shall be, continuously from the datehereof, an official record of Customer.

 

(d)   If Customer is an insureddepository subject to the Federal Deposit Insurance Act, Customer has taken allaction and maintained such records required to be taken or maintained by it toeffect and maintain the enforceability of this Agreement pursuant to theFederal Deposit Insurance Act, and the person executing this Agreement onbehalf of Customer is an authorized person with at least the rank of vicepresident.

 

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

 

**8.     Indemnification; Limitation of Liability**.

 

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

 

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

 

(c)   DBSI shall not be liable forthe 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 whateverreason, (iii) failure or malfunction of transmission or communicationfacilities, (iv) delay or failure by any Exchange to enforce its rules orpay or return any amount owed with respect to any Contracts executed and/orcleared for Customer’s Accounts or (v) actions or omissions of third partybrokers.

 

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**9.     CommunicationBetween the Parties; Confirmations Conclusive**.

 

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

 

(b)   DBSI may rely on any orderfor the purchase or sale of Contracts, or any notice or other communicationsthat are given by Customer or that DBSI reasonably believes to have originatedfrom Customer or from Customer’s duly authorized agent and Customer shall bebound by any such order, notice or communication and any action taken or nottaken by DBSI in reliance thereon.

 

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

 

(d)   DBSI shall transmit allcommunications to Customer at Customer’s address, telex, telefax or telephonenumber 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 andshall be deemed received only when actually received by DBSI.

 

**10.  SecurityInterest.**

 

All money, credit balances, Contracts and other property in whichCustomer has any ownership interest, now or at any future time held inCustomer’s Account or otherwise held by DBSI for Customer or any affiliate ofCustomer and any amount due to DBSI for Customer’s Account from any Exchange orclearing 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 anyindebtedness of Customer to DBSI pursuant to this Agreement or any transactionsin Contracts hereunder.

 

**11.  DBSI’s Right to Liquidate Customer Positions.**

 

(a)   In addition to all otherrights of DBSI set forth in this Agreement, DBSI has the right, upon theoccurrence of any of the events specified in (i) through (viii) below, to takeany 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-regulatoryorganization or Exchange having jurisdiction over DBSI or the Account;

 

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

 

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

 

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

 

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

 

(vi)     if a voluntary or involuntary case or other proceeding iscommenced by or against Customer seeking liquidation, reorganization or otherrelief 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 ofit or any substantial part of its assets, or if Customer enters into orproposes 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 anyagreement, order, judgment or decree that provides for Customer’s merger, consolidation,dissolution, winding-up, liquidation, reorganization or appointment of atrustee, receiver, liquidator, conservator, custodian or similar officer forCustomer or for Customer’s property, or if Customer takes any corporate actionto authorize any of the foregoing;

 

(vii)    if the Account, or any other account maintained by Customer or anaffiliate 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 assurancesacceptable to DBSI within a reasonable time period, DBSI reasonably determinessuch action is necessary for its protection.

 

(b)   In each such instance, DBSI may (1) satisfy any obligations due DBSI out ofany of Customer’s property in DBSI’s custody or control, (2) liquidate any orall of Customer’s Contracts, (3) decline to execute any or all ofCustomer’s outstanding orders, (4) make Customer’s obligations to DBSIimmediately 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 offand apply any such property or the proceeds of the sale of such property tosatisfy any amounts owed by Customer to DBSI, (6) set off any obligations ofDBSI under this Agreement against the obligations of Customer to DBSIhereunder, (7) set off any cash, Contracts or property held for Customer byDBSI against amounts owed to DBSI by Customer hereunder, (8) purchase or borrowany securities or other property required to settle any outstandingtransactions or positions for the Account, and (9) required to settle anyoutstanding transactions or positions for the Account.

 

(c)   Before exercising any rightsunder Section 11(b), DBSI will send a notice to customer of the action that itintends to take *provided that* DBSI will be entitled to take any such actionregardless of whether such notice is received by Customer. Any prior demand ornotice by DBSI shall not be a waiver of any right of DBSI to take any actionauthorized by this Agreement or Relevant Law.

 

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

 

**12.  Payment Netting and Setoff.**

 

Customer acknowledges and agrees that DBSI has the right to setoff andapply any amounts, fees or charges due to it hereunder against amounts held inany Accounts of Customer subject to this Agreement *provided that* any Accountsubject 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 partywith written notice of termination sent by certified mail specifying theeffective date of such termination. Any termination under this Section will notaffect any transactions entered into prior to the effective date of suchtermination or any liability or obligation incurred prior to such date. Upontermination under this Section, DBSI will either transfer all open positions inCustomer’s Account to another futures commis­sion merchant of Customer’schoice, if so instructed by Customer, or liquidate all such positions. DBSIwill not transfer any of Customer’s property or Contracts held or controlled byit until Customer satisfies all obligations to DBSI arising under thisAgreement, including the payment of any fees for the transfer of Contracts toanother futures commission merchant upon termination of this Agreement.

 

**14.**  **Governing Law;****Consent****to Jurisdiction.**

 

(a)   In case of a dispute betweenCustomer and DBSI arising out of or related to this Agreement or anytransaction hereunder, (i) the construction, validity, performance and enforcementof this Agreement will be governed by the laws of the State of New York in allrespects (without giving effect to principles of conflict of laws), and (ii)Customer and DBSI each agrees to bring any legal proceeding against the otherparty in, and each such party consents in any legal proceeding brought by theother 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 eachexpressly waives (i) all objections it may at any time have as to thejurisdiction of the court in which any such legal proceedings may be commencedand (ii) any defense of sovereign immunity or other immunity from suit orenforcement, whether before or after judgment. Customer and DBSI each alsoagrees that any service of process mailed to it at any address provided by thereceiving party shall be deemed a proper service.

 

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**15. Miscellaneous.**

 

(a)*   Available Funds*. Customer agreesthat all payments of cash by it to DBSI shall be made in immediately availablefunds in such currency and to such bank account as DBSI may from time to timespecify. 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 anamount equal to the full amount which would have been received had no suchdeduction or withholding been required.

 

(b)*   Consent to Recording*. Customer andDBSI each consents to the electronic recording of any or all telephoneconversations with the other party (without automatic tone warning device), theuse of same as evidence by either party in any action or proceeding arising outof the Agreement and the recording party’s erasure, at its sole discretion, ofany 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 businessinformation it has obtained concerning Customer to any Affiliate of DBSI, andauthorizes any such Affiliate to disclose like information to DBSI, in eithercase solely for the purpose of permitting DBSI to perform its obligations, orenforce its rights, under this Agreement. Any such information will be keptconfidential according to the internal policies of DBSI and its Affiliates.

 

(d)*   Modification*. This Agreement mayonly be modified or amended by mutual written consent of DBSI and Customer. Anymodifica­tion, amendment, alteration or waiver of this Agreement will notaffect any outstanding orders or transactions or any legal rights orobligations that may have already arisen between DBSI and Customer.

 

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

 

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

 

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

 

(h)*   Counterparts*. This Agreement maybe executed in any number of counterparts, each of which when so executed anddelivered shall be an original, but all of which shall together constitute oneand 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 thesubject matter hereof and supersedes any prior agreements between the partieswith respect to such subject matter.

 

(j)*    Multiple Customers*. If thesignatory of this Agreement has the authority to enter into the Agreement onbehalf of more than one Customer (each such Customer being identified on theattached Schedule I), the execution of the Agreement by such signatoryshall be sufficient to bind each such Customer to the terms of the Agreement tothe same extent and with the same force and effect as if each Customer hadexecuted a separate Agreement.

 

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[**16.  Acknowledgment of Receipt of DisclosureStatements; Hedging Election.**

 

(a)   Customer acknowledges andagrees that it has received from DBSI and has read and understood the followingdocument:

 

**o**RiskDisclosure 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 therelated bankruptcy election).

 

(Please check box to so acknowledge)

 

(b)   Pursuant to CFTC Regulation190.06(d), Customer specifies and agrees, with respect to hedging transactionsin the Account, that, in the unlikely event of DBSI’s bankruptcy, it prefersthat the bankruptcy trustee (check appropriate box):

 

**o**ElectionA - Liquidate all open contracts without first seeking instructions either fromor on behalf of Customer.

 

**o**ElectionB - Attempt to obtain instructions with respect to the disposition of all opencontracts.

 

(Ifneither box is checked, Customer shall be deemed to have elected A.)

 

Theundersigned has read, understands and agrees to all of the provisions of thisAgreement.]

 
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Schedule I–Independent Customers Deemed to Have Entered Into SeparateAgreements Hereunder

 

 

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