EX-10.2 FORM OF CUSTOMER AGREEMENT



 





EXHIBIT 10.2




CUSTOMER AGREEMENT



In consideration of the acceptance by Fimat USA, LLC (“FIMAT”) of one or more accounts (the
“Account(s)”) of the undersigned (“Customer”), and of FIMAT acting as broker for Customer, the
Customer agrees as follows:





	I.	 	RISKS AND AUTHORITY






	 	A.	 	Risks of Commodity Trading. In addition to the Commodity Futures Trading
Commission (“CFTC”) mandated Risk Disclosure Statement attached hereto, Customer
understands that (i) Customer may be trading in commodity futures contracts, options
on commodity futures contracts, foreign futures contracts and options on foreign
futures contracts (collectively, “Commodity Futures Contracts”), securities and
securities options (collectively, “Securities”), derivative instruments, spot and
forward contracts, physical commodities, cash and other properties and options thereon
(collectively, “Other Account Instruments”) and/or currencies and foreign exchange
contracts and options thereon (“Forex,“and together with Commodity Futures Contracts,
Securities, Other Account Instruments and Forex being herein collectively defined as
“Commodities”), and such trading is highly speculative, (ii) prices are subject to
sharp upward and downward movements, (iii) price fluctuations may result in losses
which substantially exceed the capital in Customer’s Account(s), (iv) on trading days
on which the subject of Customer’s trading reaches its permissible exchange price
limit, trading may cease, as a result of which Customer may be locked into substantial
losses, and (v) in transactions on exchanges on which foreign currency is used, any
profit or loss may be affected by exchange rate fluctuations. Customer is willing and
able, financially and otherwise, to assume the risks of such trading. Customer
recognizes that assurance of profit or freedom from loss is impossible to guaranty.
Customer has received no assurance and will place no orders in reliance on any such
assurance or similar representations. Customer understands that FIMAT may without
notice to Customer exercise any of the remedies listed in Sections III.O and IV hereof
if Customer fails to maintain adequate margin or if any other event of default occurs.
Customer agrees to review carefully each confirmation statement FIMAT sends Customer
and notify FIMAT immediately in accordance with Section III.F hereof.
	 
	 	B.	 	FIMAT’s Authority and Responsibility. Customer authorizes FIMAT to purchase
and sell Commodities, as agent for Customer’s Account(s) in accordance with the oral
or written instructions of Customer or persons authorized in writing to act, or
persons reasonably believed by FIMAT to be acting, on Customer’s behalf. Unless
Customer specifies to the contrary, FIMAT is authorized to execute all orders on any
exchange or other market where such business is conducted which may be deemed by
FIMAT, in its sole discretion, to be appropriate. Customer hereby waives any defense
that any such instruction was not in writing, as may be required by any law, rule or
regulation. FIMAT agrees to provide the services contemplated hereunder in any
commercially reasonable manner.
	 
	 	 	 	Customer authorizes FIMAT or its agents to investigate Customer’s credit standing
and in connection therewith to contact such banks (including, without limitation,
any of FIMAT’s Affiliates, such as Societe Generale), financial institutions and
credit agencies, as FIMAT shall deem appropriate to verify information regarding
Customer. Customer authorizes FIMAT, in its sole discretion, to provide and/or
exchange any financial information with respect to Customer with any of FIMAT’s
Affiliates.
	 
	 	C.	 	Introduced Accounts (Only if applicable). Customer understands that
Customer’s Account(s) with FIMAT was introduced to FIMAT by an Intermediary (as
defined in Section II.F below), and that, except for companies which are members of
the FIMAT Group, the Intermediary is an independent business entity which is not in
any way affiliated with or an agent of FIMAT. Customer hereby authorizes FIMAT to
accept all orders and instructions from its Intermediary and hereby ratifies all
orders and instructions, which




 









 






	 	 	 	FIMAT believes in good faith to have been transmitted by its Intermediary on
Customer’s behalf, which FIMAT is authorized to act upon. If Customer is dealing
with an Intermediary, make all checks payable to, and wire all funds directly to
“Fimat USA, LLC”. FIMAT INTERMEDIARIES DO NOT HANDLE CUSTOMER FUNDS, EXCEPT TO
FORWARD TO FIMAT CHECKS MADE OUT TO FIMAT.






	 	D.	 	Customer Representations and Warranties. Except as disclosed in writing to
FIMAT prior to execution and delivery of this Agreement or in a subsequent written
notice from Customer to FIMAT, Customer represents and warrants as follows: (1)
Customer is not (a) a general partner, officer, director, more than ten percent owner,
correspondent, agent (or person associated with an agent), associated person, or
employee of a futures commission merchant, commodity trading advisor, commodity pool
operator, or an introducing broker, (b) a relative, spouse, or relative of a spouse of
any of the foregoing persons who shares the same home with any such person, (c) a
member of an exchange or a director or employee of an exchange, bank, trust company,
insurance company, or regulatory or self-regulatory organization, or (d) engaged
individually or as an employee in the business of dealing, as broker or principal, in
Commodities other items, documents of title relating to Commodities, bills of
exchange, acceptances, or other forms of commercial paper, and if Customer becomes so
employed or engaged Customer will promptly notify FIMAT in writing; (2) Customer, if
applicable, (a) is duly organized and in good standing under the laws of the
jurisdiction in which it was organized and in all jurisdictions where it is qualified
to do business; (b) has the requisite capacity, power and authority to execute,
deliver and perform its obligations under this Agreement and such Other Agreement,
including without limitation, the granting of any security interests in the Collateral
as contemplated hereby and thereby; (c) none of the execution, delivery or performance
by Customer of its obligations under this Agreement or such Other Agreement conflict
with the provisions of any material contract, agreement or instrument binding upon you
or your properties, or the provisions of any law, statute, rule, regulation or decree,
order or determination of any court of law applicable to Customer; and (d) no consent,
authorization, permit or filing is required in connection with the execution, delivery
and performance by Customer of this Agreement or such Other Agreement, except those
that have been obtained or made and filings necessary to create, perfect and retain
any security interest in, or lien upon, any Collateral for any of Customer’s
obligations to FIMAT; (3) Customer, if an individual, is of sound mind, legal age and
legal competence; (4) no person other than Customer has or will have an interest in
Customer’s Account(s) except as otherwise disclosed in writing to FIMAT; and (5) all
the information provided in the Customer Application is true, correct and complete as
of the date hereof and that Customer will promptly notify FIMAT of any material
changes in such information.
	 
	 	E.	 	Customer is Principal. Unless Customer has advised FIMAT in writing
otherwise prior to execution and delivery of this Agreement, Customer is acting for
Customer’s Account(s) as principal and not as agent in transactions under this
Agreement. Customer will give written notice to FIMAT before granting any person or
entity any interest in Customer’s Account(s) or undertaking to act as agent for any
party with respect to Customer’s Account(s).






	II.	 	DEFINITIONS (As used in the singular or plural)






	 	A.	 	Affiliate. “Affiliate” includes Societe Generale, Fimat International
Banque, SA, Fimat Americas SAS and SG Tandem, Inc. and any of their affiliates or
subsidiaries.
	 
	 	B.	 	Agreed by FIMAT. “Agreed by FIMAT” means an agreement in writing under the
hand of a person whose name and signature at the material time appear on a list of
authorized signatories maintained by FIMAT at its offices. A copy of the list is
available for inspection upon reasonable notice at FIMAT’s offices during usual
business hours.




 









 












	 	C.	 	Applicable Law. “Applicable Law” shall have the meaning set forth in Section
III.A.3 below.
	 
	 	D.	 	Collateral. “Collateral” means all of Customer’s right, title and interest
in and to all goods and other property, including without limitation, Commodities, the
Account(s), inventory, documents, accounts, general intangibles, chattel paper and all
proceeds of such property including but not limited to interest on or profits from the
Account(s). Any property en route to or allocated by any third party to FIMAT and/or
any Affiliate shall be deemed “Collateral” for purposes of this Agreement.
	 
	 	E.	 	Commodity Exchange. “Commodity Exchange” means any exchange, association,
contract market or clearing association, whether incorporated or unincorporated, or
persons who are engaged in the business of buying or selling any commodity or
receiving the same for sale on consignment.
	 
	 	F.	 	Intermediary. “Intermediary” includes an introducing broker, fully disclosed
futures commission merchant, foreign broker, or any other person or entity acting in a
similar capacity.
	 
	 	G.	 	Liability. “Liability” means all Customer’s obligations direct or indirect
to FIMAT or its Affiliates of whatever form and however arising, including any
indebtedness now or hereafter existing under this Agreement or any Other Agreement or
any debit balances in the Account(s).
	 
	 	H.	 	Other Agreement. “Other Agreement” means any and all agreements, documents
and instruments (including, without limitation, promissory note(s), security
agreement(s), pledge agreement(s) and guaranty(s)) executed by or on behalf of
Customer in favor of FIMAT and/or an Affiliate, as such agreements, documents and
instruments may be amended, supplemented or otherwise modified from time to time in
accordance with their respective terms.






	III.	 	TERMS OF TRANSACTIONS






	 	A.	 	Applicable Rules and Terms. The Account(s) and all transactions and
agreements in respect of the Account(s) shall be subject to:






	 	1.	 	the terms of this Agreement and any other terms Agreed by
FIMAT and Customer;
	 
	 	2.	 	FIMAT’s terms from time to time in effect with respect to the
specific type of transaction and the terms of FIMAT’s confirmation of the
transaction, except to the extent specifically inconsistent with Subsection
III.A.1 above;
	 
	 	3.	 	the regulations of all applicable Federal, state and
self-regulatory agencies or authorities, including but not limited to: (i)
the provisions of the Commodity Exchange Act, as amended, and any rules,
regulations, orders and interpretations promulgated thereunder by the CFTC;
and (ii) the constitution, by-laws, rules, regulations, orders and
interpretations of the Commodity Exchange (and its clearing house, if any) on
which such transactions are executed and cleared, and any relevant registered
futures association, including, without limitation, the National Futures
Association (“NFA”), except to the extent Subsections III.A.1 or




 









 






	 	 	 	III.A.2 above provide more specific restrictions. All such provisions,
rules, regulations, orders, interpretations, constitution, by-laws, custom
and usage are hereinafter collectively referred to as “Applicable Law;”
and






	 	4.	 	customary practice in the trade, except to the extent
specifically inconsistent with Subsections III.A.1, III.A.2, or III.A.3 above.






	 	B.	 	Margin. Customer will pay to FIMAT (and only to FIMAT) all amounts FIMAT
requires as margin or to satisfy any other of Customer’s obligations under this
Agreement in U.S. Dollars in immediately available funds, unless otherwise agreed, as
FIMAT requires. FIMAT at any time may change the margin requirements with respect to
Customer’s Account(s) for existing positions as well as for new positions. The
required margin may exceed the margin required by the Commodity Exchange (and its
clearing house, if any) on which trades are cleared on behalf of Customer.
	 
	 	 	 	FIMAT has no obligation to notify Customer of any insufficiency of margin in
Customer’s Account(s) prior to exercising rights and remedies under Section IV of
this Agreement.
	 
	 	C.	 	Fees and Commissions. Customer will pay the fees and commissions FIMAT
charges from time to time. FIMAT may share its fees, commissions and amounts accruing
on Customer’s Account(s) with persons that introduce Customer to FIMAT or provide
other services to FIMAT.
	 
	 	D.	 	Interest. If Customer fails to pay FIMAT in immediately available funds any
sum when due, then unless otherwise provided in any Other Agreement, Customer will pay
interest to FIMAT on the unpaid sum, while outstanding, at the lesser of (i) the
maximum legal rate or (ii) 150% of the publicly announced prime lending rate of
Societe Generale New York Branch as in effect from time to time while the unpaid sum
is outstanding, compounded monthly. Customer acknowledges that FIMAT may receive and
retain as its own any increment or interest accruing from any of the funds FIMAT
receives from Customer.
	 
	 	E.	 	No Standard Requirement. FIMAT has no obligation to impose uniform margin
requirements, to publish details of fees or commissions, or to charge uniform fees,
commissions or interest rates.
	 
	 	F.	 	Confirmations and Statements. FIMAT will promptly confirm in writing all
transactions undertaken for Customer’s Account(s). Customer shall timely review all
confirmations received from FIMAT to check that the description of the transactions is
accurate and that no transaction is omitted. Customer is conclusively bound by
FIMAT’s confirmations and statements of Customer’s Account(s) if Customer does not
object in writing before the earlier of ten days following transmission to Customer or
by market opening on the day following Customer’s actual receipt of such confirmation
statements. With respect to transactions, which Customer authorizes but for which no
confirmation is received, Customer shall be deemed to have waived all objections
unless FIMAT has received Customer’s written request for a copy of the confirmation
within five days of the transaction date. Customer understands that Customer should
direct inquiries to FIMAT at 630 Fifth Avenue, Suite 500, New York, New York 10111,
Attention: Compliance Department, or such other address as FIMAT may hereafter
provide Customer. For the reporting of any alleged unauthorized trades or other trade
improprieties, FIMAT authorizes and will accept “collect” telephone calls to the
Compliance Department at (212) 504-7446. FIMAT is not bound by prices or transactions
reported in error on confirmations and statements of Customer’s Account(s).
	 
	 	 	 	Customer hereby authorizes FIMAT to transmit to it all confirmation and other
statements of account activity, funds and positions by facsimile transmission or
through




 









 






	 	 	 	the Internet to such address as Customer designates on the Customer Application, or
as Customer designates from time in a writing addressed to the Compliance
Department, as set forth in this paragraph. FIMAT reserves the right to assess its
standard charge from time to time in effect for confirmation and other statements
of account activity, funds and positions provided to customer through any other
medium, as well as for duplicate statements of any kind. This authorization shall
be perpetual, unless revoked in writing by Customer in a writing addressed to the
Compliance Department, as set forth in this paragraph.






	 	G.	 	Capacity of FIMAT; Floor Brokers and Others; Indemnification. FIMAT will
execute Customer’s transactions solely as agent of Customer. In executing
transactions on a Commodity Exchange, FIMAT may utilize floor brokers (who may be
employees or other agents of FIMAT), and will be responsible for reasonable care in
the selection of such brokers, but will not be responsible to Customer for negligence
or misconduct of an independent floor broker if, at the time the floor broker was
selected, the floor broker was authorized to act as such under the rules of the
relevant Commodity Exchange and the appropriate regulatory agency. FIMAT will not be
responsible to Customer in the event of error, failure, negligence, or misconduct on
the part of any Intermediary, commodity trading advisor, or other person acting on
Customer’s behalf and, without limiting the foregoing, FIMAT has no obligation to
investigate the facts surrounding any transaction in Customer’s Account(s) which is
introduced by such Intermediary, commodity trading advisor, or other person. Customer
will indemnify FIMAT and hold it harmless from and against any and all liabilities,
penalties, losses, and expenses, including legal expenses, incurred by FIMAT as a
result of any error, failure, negligence, or misconduct on the part of any such
Intermediary, commodity trading advisor, or other person acting on Customer’s behalf.
FIMAT shall not be responsible for any loss or damage caused, directly or indirectly,
from any delays or inaccuracies in the transmission of orders, including but not
limited to our automated order routing systems, or other information due to a
breakdown in or failure of any transmission or communication facilities for any reason
including those reasons described in Section V.D. hereof. FIMAT shall only be liable
for actions or inactions by FIMAT which amount to gross negligence or fraud. Customer
also agrees that FIMAT shall not be liable to Customer for any losses, costs,
expenses, or other damages sustained by Customer in the event of any failure or delay
by any exchange, market, clearing house, bank or other depository institution where
any of Customer’s funds or other assets are maintained, or a failure or delay by any
member, bank or agent of any of the foregoing, or a failure or delay by any of the
foregoing to enforce its rules, to fulfill its obligations, or to make any payment,
for any reason whatsoever. Customer waives any claim, cause of action or right as
against FIMAT, its employees or agents which may arise or occur as a result thereof.
	 
	 	H.	 	Transaction Limits; Acceptance of Orders. FIMAT, solely for its own benefit
and the benefit of other customers, may limit the number of transactions FIMAT
executes, and the open positions FIMAT maintains or acquires, for Customer. Customer,
acting alone or in concert with others, will not make any trade through FIMAT which
would have the effect of exceeding the lower of limits imposed by FIMAT, the Commodity
Exchange on which the transactions are executed, or any regulatory agency. If
Customer exceeds its limit, FIMAT may require the transfer of Customer’s positions to
another firm, or FIMAT may liquidate some or all of the Customer’s positions as FIMAT
elects in its sole discretion. Customer agrees to promptly advise FIMAT if Customer
is required to file reports of its positions to the CFTC or any Commodity Exchange.
	 
	 	I.	 	Liquidation of Offsetting Positions. FIMAT shall liquidate any contract for
which an offsetting order is entered by Customer on a first in, first out (“FIFO”)
basis, unless Customer instructs FIMAT not to liquidate such contract and to maintain
the offsetting contracts as open positions; provided, that FIMAT shall not be
obligated to comply with any such instructions given by Customer if Customer fails to
provide FIMAT with any




 









 






	 	 	 	representations, documentation or information reasonably requested by FIMAT or if
in FIMAT’s reasonable judgment, any failure to liquidate such offsetting contracts
against each other on a FIFO basis would result in a violation of Applicable Law.






	 	J.	 	Separate Accounts. Pursuant to CFTC Rule 1.46(e)(1), if FIMAT maintains or
directs the trading for more than one account for Customer then, if held open,
offsetting long and short positions in the separate accounts may result in the
charging of additional fees and commissions and the payment of additional margin,
although offsetting positions will result in no additional market gain or loss.
	 
	 	K.	 	Failure of Delivery. At least five business days prior to the earlier of
first notice or last trading day of the delivery month, Customer must advise FIMAT
whether Customer intends to take or make delivery, as the case may be, of items
purchased and sold by FIMAT at Customer’s direction, and, if delivery is intended,
Customer must demonstrate to FIMAT’s satisfaction Customer’s ability to perform
Customer’s delivery obligations, in any manner required by FIMAT including, without
limitation, by depositing with FIMAT the funds or documents necessary for delivery.
If Customer fails to so advise FIMAT or to demonstrate satisfactorily Customer’s
ability to perform, then without notice or demand to Customer, FIMAT may, but shall
have no duty to, liquidate such positions on terms FIMAT deems reasonable, or take any
other action FIMAT deems reasonable, including taking or making delivery as the case
may be. If Customer fails to supply FIMAT, in a timely manner, with any item FIMAT
has sold at Customer’s direction, FIMAT may borrow or purchase the item from any
party, including an Affiliate, to make the delivery. FIMAT has no duty to borrow or
purchase the item. Customer shall comply fully with Applicable Law relating to taking
or making any delivery, and shall, if taking delivery, take all steps as provided
thereunder to ensure that all items to be delivered are in compliance with Applicable
Law. Customer will hold harmless and indemnify FIMAT for all liabilities, penalties,
losses, and expenses, including any legal expenses and any penalties imposed by any
Commodity Exchange, FIMAT incurs or reasonably anticipates incurring if Customer fails
timely (1) to take good delivery of any item FIMAT has purchased at Customer’s
direction, (2) to supply FIMAT with or otherwise make good delivery of any item FIMAT
has sold at Customer’s direction, or otherwise, in connection with a delivery, or (3)
to comply with Applicable Law, and FIMAT may in the event of any such failure,
apparent failure, or otherwise withhold from Customer’s Account(s) with FIMAT or any
Affiliates the amount (however denominated) estimated by FIMAT as sufficient to
satisfy the above indemnity, for application as FIMAT deems appropriate.
	 
	 	L.	 	Forwarding and Storage of Material. If FIMAT on Customer’s behalf arranges
for packaging, shipping, storage, or insurance, FIMAT’s only liability will be for
gross negligence or willful misconduct in the making of the arrangements.
	 
	 	M.	 	Reimbursement for Taxes, Etc. Customer will indemnify FIMAT for all taxes,
levies, imposts, duties, charges, and fees (including legal expenses) incurred in
connection with any sale, purchase, forwarding or storage.
	 
	 	N.	 	Payment. Customer’s payments must be in freely transferable and immediately
available funds to FIMAT’s account at a bank designated by FIMAT and without deduction
for any taxes, imposts, duties, charges, or fees and free and clear of any
withholding, restrictions, or conditions of any nature when received by FIMAT.
Payments may not be effected by the delivery of bank notes or other legal tender
unless Agreed by FIMAT. FIMAT may withhold any delivery until it receives payment in
the foregoing manner.
	 
	 	O.	 	Closeout. Whenever FIMAT, in its sole discretion, considers it necessary for
Customer’s protection or for FIMAT’s protection, FIMAT may, but is not obligated to,
refuse to accept new positions and/or close out or otherwise liquidate Customer’s
positions, and Customer will be liable for any deficiency in Customer’s Account(s)
that may result therefrom.




 









 












	 	P.	 	Options Exercise. Customer agrees that if Customer has a commodity option
position with FIMAT and does not provide timely instructions regarding the exercise of
a commodity option on the last day of trading in that option, FIMAT, in its sole
discretion and without prior notice to Customer, is authorized to exercise or abandon
(i.e., let expire) the option. Customer further agrees that any exercise or
abandonment of an option by FIMAT pursuant to this Agreement shall be for Customer’s
sole account and risk and FIMAT shall have no liability with respect thereto, and
FIMAT shall have no duty to exercise such authority. Customer further agrees that,
without FIMAT’s written consent, Customer may not, on any day, exercise more than 20
options contracts with FIMAT unless Customer has margin with FIMAT in excess of the
amount of margin FIMAT requires for the futures contracts Customer would be assigned
as a result of such exercise.
	 
	 	 	 	Customer acknowledges that FIMAT’s confirmation of purchase and sale statements
will reflect option expiration dates that FIMAT obtains from sources generally
believed to be reliable, and FIMAT will be responsible only for gross negligence,
willful misconduct or fraud in connection therewith. If Customer holds options
with a Friday expiration date, it is possible that, if a grantor, Customer could be
assigned a futures position after the expiration of the option on Friday, and on
some exchanges, as late as Saturday morning.
	 
	 	Q.	 	Adjustments. On rare occasion FIMAT may, in error, not fill Customer’s order
or fill Customer’s order at a price which is less favorable than the price which could
have been obtained if the error had not occurred. In these circumstances, FIMAT will
give Customer the filled order and cash adjust Customer’s Account(s) so as to reflect
the price at which the order could have been executed had the error not occurred.
Customer agrees however that, if when correcting its error, FIMAT obtains a position
at a better price than Customer’s order could have been filled at, Customer will only
receive the fill Customer could have obtained if Customer’s orders had been executed
without error (and FIMAT will receive any difference).
	 
	 	R.	 	Exchange of Physical for Futures Transaction. Customer agrees to create,
retain, and produce, upon request of a Commodity Exchange, the CFTC, or the United
States Department of Justice, documentation of cash transactions underlying exchanges
of futures for cash commodities or exchanges of futures in connection with cash
commodity transactions in accordance with Applicable Law. Documentation means those
documents customarily generated in accordance with cash market practices and/or
required by the relevant Commodity Exchange or regulatory authority which demonstrate
the existence and nature of the underlying cash transactions, including, but not
limited to, contracts, confirmation statements, telex printouts, invoices, and
warehouse receipts or other documents of title.
	 
	 	S.	 	Direct Order Transmittal Client Disclosure. On occasion, when FIMAT’s
offices are closed, Customer may request that FIMAT grant it authority to place orders
directly with one or more of FIMAT’s non-U.S. Affiliates for execution on non-U.S.
exchanges, or for transactions on U.S. exchanges to be executed on GLOBEX, NYMEX
ACCESS or other electronic trading systems. If FIMAT grants Customer such authority,
the following conditions shall apply: (1) the order(s) Customer places with FIMAT’s
non-U.S. Affiliate will be for FIMAT’s omnibus account maintained directly or
indirectly with FIMAT’s non-U.S. Affiliate; (2) Customer will be a client of FIMAT and
not of the non-U.S. Affiliate; (3) all monies, securities and property of Customer
will be maintained by FIMAT; and (4) unless Customer objects within five days after
receipt of this Agreement, FIMAT may assume Customer consents to these conditions.






	IV.	 	SECURITY AGREEMENT AND DEFAULT PROVISIONS




 









 












	 	A.	 	Security Interest. Customer hereby grants FIMAT a security interest in the
Collateral and proceeds thereof, as security for the prompt payment and performance of
any and all Liabilities.
	 
	 	B.	 	FIMAT’s Rights Respecting Collateral. Customer will sign and deliver all
agreements, instruments, certificates and documents FIMAT requests to create, perfect,
preserve and protect the security interest in any of the Collateral, accompanied by
such instruments of assignment and transfer and in such form as FIMAT shall reasonably
request. Customer appoints FIMAT as Customer’s agent to sign, deliver, complete and
file any such agreements, instruments, certificates and documents on Customer’s
behalf. FIMAT has no obligation to return an identical item of Collateral, but only
to replace the item with property of like kind and substantially similar quantity,
subject to adjustment for quantity variations at then prevailing market prices. FIMAT
may, at any time and without limitations except those imposed by law, pledge,
re-pledge, hypothecate, loan or invest any Collateral without notice to Customer or
the obligation to account to Customer for any interest, income, or other benefit from
any of the Collateral. Customer agrees to permit FIMAT and/or its agents and
representatives at any time to inspect any of the Collateral and make abstracts or
copies from any of Customer’s books and records pertaining to the Collateral. The
right is expressly granted to FIMAT, in its sole discretion, to notify warehousemen,
consignees, bailees or any other persons in possession of Collateral of FIMAT’s
security interest therein. Unless Agreed by FIMAT, the undersigned will not file or
authorize or permit to be filed in any jurisdiction any such financing or like
statement in which FIMAT is not named as the sole secured party. Upon the request of
FIMAT, Customer shall, at Customer’s expense, keep insured all Collateral which is
tangible property for full value, with such coverage as FIMAT may approve, and the
policies shall be duly endorsed in FIMAT’s favor and delivered to FIMAT.
	 
	 	C.	 	Events of Default. In addition to any “Event of Default” which may be
defined in any Other Agreement, and not by way of limitation of any right FIMAT
otherwise has to demand payment at any time of any of the Liabilities, the following
events shall constitute an “Event of Default”: (1) Customer breaches, repudiates, or
defaults in any way on any agreement with FIMAT or any Affiliate (including Customer’s
agreement to provide margin) or with any third party; or (2) FIMAT, in its sole
discretion, determines that it has sufficient grounds for insecurity with respect to
Customer’s performance of any obligation to any person and Customer fails to provide
assurance of performance of the obligation satisfactory to FIMAT; or (3) any
proceeding is commenced by or against Customer under any bankruptcy, insolvency,
relief of debtor, or similar law, or Customer makes an assignment for the benefit of
creditors, a receiver, trustee, conservator, liquidator or similar officer is
appointed for Customer or any of Customer’s property; or (4) Customer’s Account(s) are
attached or levied against; or (5) any of Customer’s representations to FIMAT or any
Affiliate, whenever or wherever made, were misleading when made or deemed made or
later becomes untrue; or (6) Customer dies, is disabled or becomes legally
incompetent; or (7) Customer or any organization of which Customer is a member
suspends or threatens to suspend the transaction of its usual business, or any
proceeding is commenced with respect to any of Customer’s property or any such
organization; or (8) Customer is a party to any merger, consolidation or sale of all
or substantially all of its assets unless Agreed by FIMAT prior thereto; or (9) FIMAT
has reason to believe that any of the foregoing is likely to occur imminently.
	 
	 	D.	 	FIMAT’s Remedies Upon Default.






	 	1.	 	Customer absolutely and unconditionally agrees that upon the
occurrence of an Event of Default, FIMAT, on behalf of itself and as agent for
any Affiliate, may exercise any one or more of the following remedies (except
that, upon the occurrence of any Event of Default set forth in Section
IV.C.(3) above, the remedies specified in subparagraphs a, b, c, and g below
shall thereupon be




 









 






	 	 	 	deemed for all purposes to have been exercised, immediately and without
action by FIMAT), with only such notice as is required by Applicable Law
and cannot be waived, without prejudice to any other remedies:






	 	a.	 	FIMAT, on its own behalf and/or on behalf
of any of its Affiliates, may terminate any or all of FIMAT’s and/or
any Affiliates obligations to Customer for future performance;
	 
	 	b.	 	FIMAT, on its own behalf and/or on behalf
of any of its Affiliates, may treat any or all of Customer’s
Liabilities and/or Customer’s obligations to any Affiliates,
including credit or debit balances, as immediately due, and may treat
all limits, margin facilities and call tolerance facilities in place
as revoked;
	 
	 	c.	 	FIMAT, on its own behalf and/or on behalf
of any of its Affiliates, may consolidate Customer’s Account(s) or
any of them at FIMAT and/or any Affiliates;
	 
	 	d.	 	FIMAT, on its own behalf and/or on behalf
of any of its Affiliates, may sell any or all non-cash Collateral
held long by FIMAT and/or any Affiliates;
	 
	 	e.	 	FIMAT, on its own behalf and/or on behalf
of any of its Affiliates, may close out or hedge for Customer’s
Account(s) any or all open positions in Customer’s Account(s) at
FIMAT and/or any Affiliates pursuant to Section III.O above or
otherwise, in any manner it deems reasonable under the circumstances;
	 
	 	f.	 	FIMAT, on its own behalf and/or on behalf
of any of its Affiliates, may borrow, lend, sell or buy from any
party, including itself and/or any Affiliates, any property necessary
to cover or hedge any or all positions in Customer’s Account(s) at
FIMAT and/or any Affiliates; and
	 
	 	g.	 	FIMAT, on its own behalf and/or on behalf
of any of its Affiliates, may offset the proceeds of the sale of
non-cash Collateral, cash Collateral, and sums owing Customer by
FIMAT and/or Affiliates (including any sums arising from the
operation of this Section D), against Customer’s Liabilities and
Customer’s obligations to any Affiliates, without prejudice to
FIMAT’s right to recover the balance of Customer’s Liabilities and
any Affiliates’ right to recover the balance of Customer’s
obligations to them.






	 	 	 	Customer appoints FIMAT as Customer’s agent to sign, complete, and deliver
any and all documents necessary or desirable to carry out the foregoing.
None of FIMAT nor any of its Affiliates, nor any of its agents or
representatives will be responsible for losses or lost profits, accrued or
anticipated, resulting from any position or transaction entered to enforce
the foregoing remedies. Customer waives the right of set off in any action
brought by FIMAT to collect amounts owned by Customer to FIMAT.
	 
	 	 	 	Customer will indemnify and hold harmless FIMAT and its Affiliates, and
their respective agents and representatives from any liabilities,
penalties, losses, costs and expenses, including but not limited to
reasonable attorney fees (whether the reasonable fees and charges of
external legal counsel and/or the costs and charges, if any, allocated by
internal legal department), which FIMAT and/or any Affiliates incur in
connection with (i) the exercise of any remedy hereunder or under any
Other Agreement, (ii) the care or custody of the Collateral and defending
or




 









 






	 	 	 	asserting the rights and claims of FIMAT and/or any Affiliates in respect
thereof, and (iii) meeting any obligation of FIMAT and/or any Affiliates
which would otherwise fail to be performed by reason of an Event of
Default.






	V.	 	MISCELLANEOUS






	 	A.	 	Governing Law and Submission to Jurisdiction.
	 
	 	 	 	All disputes between FIMAT and Customer including, but not limited to, disputes
arising directly or indirectly as a result of, or the relationship established as a
result of, this Agreement, shall be governed by the substantive laws of the State
of New York, without regard to principles of choice of law. Notwithstanding any
provision of Applicable Law, Customer agrees to commence all actions of any kind
against FIMAT within one year of the event giving rise to any dispute. Customer
irrevocably submits to the jurisdiction of the courts of New York and of the
Federal Courts of the Southern District of New York with respect to litigation
relating to all such disputes, including, but not limited to, disputes arising
directly or indirectly as a result of or the relationship established as a result
of this Agreement and transactions subject to this Agreement, agrees to commence
actions and proceedings and assert claims for relief involving them only in such
courts (unless Customer has otherwise agreed to arbitrate all disputes against
FIMAT, in which case such arbitration shall be held only in New York City), and
consents to service of process by the mailing of copies to Customer by certified
mail to Customer’s address as it appears on the books of FIMAT. Such service shall
be effective ten days after mailing.
	 
	 	B.	 	Waiver of Jury Trial. CUSTOMER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO, BUT NOT LIMITED TO, DISPUTES ARISING
DIRECTLY OR INDIRECTLY AS A RESULT OF, OR THE RELATIONSHIP ESTABLISHED AS A RESULT OF,
THIS AGREEMENT OR ANY TRANSACTION IN CONNECTION THEREWITH. CUSTOMER’S WAIVER OF TRIAL
BY JURY IS A PREREQUISITE TO, AND INDUCEMENT OF FIMAT TO OFFER, THE OPENING OF
CUSTOMER’S ACCOUNT(S).
	 
	 	C.	 	Applicable Law and Notes for German Clients. Contrary to German Law, the
substantive law of New York does not distinguish between binding and non-binding
terminal (futures) transactions (see paragraph 53 of the German Börsengesetz). All
trades under this Agreement are therefore binding market transactions. Customer
acknowledges that under German Law futures trading gives rise to an imperfect
obligation (as provided in paragraphs 762 and 764 of the Burgerliches Gesetzbuch
(“BGB”) and paragraph 58 of the German Börsengesetz). Customer also acknowledges that
under paragraph 814 of the BGB disclosure of this fact removes any and all rights
Customer might otherwise have as a result of the “Differenzeinwand” (paragraph 812 of
the BGB). Customer credit balance held by FIMAT will be applied to fulfill, discharge
and perform the transaction(s) and as an advance performance or down payment to cover
any transaction(s) trading costs.
	 
	 	D.	 	Force Majeure; Warranty and Disclaimer of Warranties. FIMAT shall not be
liable for any delay in performance or for non-performance of its obligations caused
by any event beyond the reasonable control of FIMAT. FIMAT may, without liability,
cancel this Agreement or any particular transaction contemplated hereunder if its
performance is delayed or rendered impossible due to any such event. FIMAT’s sole
warranty is that any commodity delivered by it will conform to the description on any
confirmation prepared and delivered by FIMAT with respect thereto. FIMAT EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
	 
	 	E.	 	Non-Waiver; Non-Assignment; Time of the Essence. This Agreement and the
Other Agreements, if any, constitute the entire Agreement between FIMAT and Customer
with




 









 






	 	 	 	respect to the subject matter hereof and supersede all other understandings,
agreements, or communications concerning such subject matter. Any oral
representations, warranties, inducements, or agreements made by any representative
of FIMAT inconsistent with the provisions of this Agreement are excluded and will
not bind FIMAT. FIMAT will be bound by waivers and modifications of any of the
terms of this Agreement, any other written agreement, or any transaction, or any
attempted assignment by Customer of any right or interest in this Agreement, any
other agreement, or any transaction, only if Agreed by FIMAT (as defined). Such
agreement will bind FIMAT only in relation to the waiver, modification, or
assignment, to which FIMAT has consented in writing. Customer hereby waives the
right to claim estoppel or forbearance unless Agreed by FIMAT. Any agreement by
FIMAT to forbear liquidation, pursuant to any of its rights and remedies hereunder,
may be revoked by FIMAT upon 24 hours notice to Customer (unless a shorter time is
commercially reasonable under the circumstances), which notice Customer hereby
deems reasonable. FIMAT’s failure to exercise any right or remedy is not a waiver
of the right or remedy not exercised or any other right or remedy. Time is of the
essence in the performance of Customer’s obligations.






	 	F.	 	Binding Effect. This Agreement covers all of Customer’s Account(s) with
FIMAT, is binding on Customer and Customer’s estate, legal representatives, successors
and assigns and inures to the benefit of FIMAT and its successors and assigns.
	 
	 	G.	 	Communications. Communications may be sent to Customer by mail, telex,
telegraph, facsimile transmission, messenger, or other reasonable means at its current
address shown on FIMAT’s records, and are deemed received when Customer actually
receives them or 24 hours after they are sent, whichever first occurs. FIMAT, in its
sole discretion, may record, on tape or otherwise, any telephone conversation between
FIMAT and Customer involving their respective officers, agents and employees.
Customer hereby agrees and consents to such recording, with or without the use of an
automatic tone warning device, and waives any right Customer may have to object to the
use or admissibility into evidence of such recording in any legal proceeding between
Customer and FIMAT or in any other proceeding to which FIMAT is a party or in which
FIMAT’s records are subpoenaed. Customer acknowledges that FIMAT may erase such
recordings after a reasonable period of time. FIMAT shall be entitled to rely on any
instructions, notices and communications, whether oral or in writing, that it believes
to be that of an individual authorized to act on behalf of Customer as authorized to
act on its behalf, and Customer shall be bound thereby. Customer hereby waives any
defense that any such instruction was not in writing as may be required by the Statute
of Frauds or any other similar law, rule or regulation. Customer will indemnify FIMAT
and hold FIMAT harmless from and against all liabilities, penalties, losses, and
expenses, including legal expenses, incurred by FIMAT as a result of FIMAT’s acting
upon such instructions.
	 
	 	H.	 	Non-Execution. Any failure by Customer to duly sign this Agreement is not a
waiver by FIMAT of any rights it otherwise has against Customer.
	 
	 	I.	 	FIMAT Has No Responsibility for Advice. FIMAT is not acting as fiduciary,
foundation manager, commodity pool operator, commodity trading advisor or investment
adviser in respect of any Account(s) opened by Customer and FIMAT shall have no
responsibility hereunder for compliance with any law or regulation governing the
conduct of fiduciaries, foundation managers, commodity pool operators, commodity
trading advisors or investment advisers. Customer will not enter into any transaction
with FIMAT, and will not hold FIMAT responsible for losses, as a result of any
prediction, recommendation, or representation made by any representative of FIMAT.
Any information or advice communicated by FIMAT, although based upon information from
sources FIMAT believes to be reliable, may be incomplete or inaccurate, may not be
verified, and may be changed without notice to Customer. FIMAT makes no
representation as to the accuracy,




 









 






	 	 	 	completeness, reliability or prudence of any such information or advice or as to
the tax consequences of Customer’s futures or options trading.






	 	J.	 	Appointment of Agent. Customer’s appointment of an agent on the “Trading and
Fee Payment Authorization Limited to Purchases and Sales of Commodities” form
(“Trading Authorization”), if applicable, is notice to FIMAT that the person so
designated (the “Agent”) is Customer’s agent in respect of Customer’s Account(s) with
FIMAT, with complete authority on Customer’s behalf to place orders for purchases and
sales, including short sales, for cash or on margin, of Commodities other items in
respect of which Customer may from time to time enter into transactions in one or more
of Customer’s Account(s) with FIMAT, for immediate or future delivery, to effect
delivery and performance of the orders and of the obligations undertaken in connection
with the orders, to borrow funds from FIMAT to finance any of the transactions, to
lend or pledge Customer’s properties with FIMAT and otherwise to secure Customer’s
Liabilities, withdraw or direct the payment of monies, securities, commodities, or
other property from Customer’s Account(s) with FIMAT, including to compensate Agent
for its services, to settle Customer disputes with FIMAT or between Customer or any
other party with whom FIMAT deals for Customer or with whom Customer deals through
FIMAT as broker for the third party, and to sign and deliver on Customer’s behalf
notices and other documents and to take all other actions necessary or desirable to
carry out the terms of this Agreement. Customer agrees to notify FIMAT promptly in
writing of the revocation or modification of the Agent’s authority. Customer will
indemnify FIMAT and hold FIMAT harmless from and against all liabilities, penalties,
losses, and expenses, including legal expenses, incurred by FIMAT in acting as
instructed by the Agent and in continuing to act in reliance on the Trading
Authorization after revocation or modification but prior to FIMAT’s receipt of written
notice thereof.
	 
	 	K.	 	Termination. Customer may terminate this Agreement, at any time when
Customer has no Liabilities and no open positions which could give rise to subsequent
Liabilities, upon the actual receipt by FIMAT of written notice of termination. FIMAT
may terminate this Agreement at any time upon mailing or delivery of written notice of
termination to Customer, provided that any such termination will not affect any
transactions theretofore entered into and will not relieve either party of any
obligations in connection with any debt or credit balance or other liability or
obligation incurred prior to the termination.
	 
	 	L.	 	Multiple Parties. If any Account(s) established pursuant to this Agreement
is on behalf of more than one person:






	 	1.	 	each signing person is jointly and severally liable for the
full and timely performance of all the obligations of all signing persons in
connection with this Agreement and any account established and any transaction
effected under this Agreement; and the terms hereof shall survive the legal
incompetence or death of any or all signing persons;
	 
	 	2.	 	in connection with any Account(s) established under this
Agreement, FIMAT may act upon any order, request or instruction from any one
signing person without the necessity of confirmation from any other;
	 
	 	3.	 	the delivery of any report, statement, notice or other
communication to any one signing person is deemed to have been to all of the
signing persons;
	 
	 	4.	 	FIMAT may deliver any Collateral of any of the signing
persons to any one or more of the signing persons, and make payments from any
Account(s) established pursuant to this Agreement to or upon the order or
direction of any one of them, and FIMAT is under no obligation to inquire into
the purpose of any request for




 









 






	 	 	 	the delivery of any such Collateral or the making of any such payment, or
to see to the disposition or application thereof; and






	 	5.	 	unless FIMAT is advised otherwise in writing, the interest of
the signing persons in any Account(s) established under this Agreement shall
be deemed to be a joint tenancy with rights of survivorship and not a tenancy
in common.






	 	M.	 	Severability. If any provision of this Agreement, or the application of such
provision to any person or circumstances, is held invalid, the remainder of this
Agreement, and the application of such provision to persons or circumstances other
than those as to which it is held invalid, shall not be affected thereby.
	 
	 	N.	 	Captions. Captions used in this Agreement are used for convenience and
neither form an integral part of this Agreement nor limit the applicability or affect
the meaning of any of the Agreement’s provisions.






	VI.	 	ELECTRONIC TRADING SYSTEMS
	 
	 	 	FIMAT may make available to Customer the ability to trade, directly
or indirectly (in whole or in part), through electronic trading
systems (ETS) such as GLOBEX or ACCESS or other electronic systems.
The sponsoring organizations or such systems may make certain
information available and in some cases require special disclosures
for these systems. To the extent these disclosures are required and
other information is available, it has been set forth in the
accompanying booklet entitled “Exchange Disclosures and Notices,”
which Customer acknowledges receiving by signing below.








	VII.	 	ACCEPTANCE OF AGREEMENT
	 
	 	 	This Agreement shall not be deemed to be accepted by FIMAT or become
a binding contract between Customer and FIMAT until approved by a
duly authorized officer of FIMAT in writing in accordance with its
internal procedures. Customer represents, unless Customer has
executed the Joint Tenants Agreement; the Partnership Authorization;
the Certificate of Corporate Resolution; or the Trust Authorization,
that this is an individual account and no one else has an interest
in this account and Customer has authority and capacity to enter
into this Agreement.









	VIII.	 	OTHER AGREEMENTS AMONG THE PARTIES; CONFLICTS
	 
	 	 	Customer acknowledges that in addition to this Agreement, FIMAT may
request that Customer and/or any Affiliate of Customer to execute
and deliver such agreement(s), instrument(s) and document(s) as
FIMAT may prescribe, which agreement(s), instrument(s) and documents
upon their execution, shall become an Other Agreement. In the event
of a conflict between the provisions of this Agreement and the
provisions of any Other Agreement, the provisions of this Agreement
shall govern to the extent the underlying transactions relate to
futures contracts or options thereon.










 










 






	IX.	 	FOR HEDGE CUSTOMERS ONLY
	 
	 	 	CUSTOMER WARRANTS, BY INITIALLING IN A BOX BELOW, THAT IT WILL
ENGAGE IN BONA FIDE HEDGING TRANSACTIONS PURSUANT TO CFTC
REGULATION 1.3(z). IN THE EVENT OF BANKRUPTCY, CUSTOMER PREFERS
THAT THE TRUSTEE (PLEASE INITIAL CHOICE)








	 	 	 	 	 	 	 	 	 	 	 
	LIQUIDATE
	 	  	 	 
LIQUIDATE
 	 	  	 	NOT	 	 
	 

	 	 
	 	 	 	 	 	 	 	 






OPEN COMMODITY CONTRACTS IN CUSTOMER’S HEDGE ACCOUNT WITHOUT SEEKING ITS INSTRUCTIONS.


PLEASE ACKNOWLEDGE YOUR AGREEMENT AND CONSENT TO THIS CUSTOMER AGREEMENT BY SIGNING BELOW.



BY SIGNING BELOW, CUSTOMER ALSO ACKNOWLEDGES THAT CUSTOMER HAS RECEIVED AND UNDERSTANDS THE
FOLLOWING ATTACHED DISCLOSURE STATEMENT PRESCRIBED BY THE CFTC:



Please initial if received and understood:




	 	 	 	 	 	 	 
	 	 	 	 	Risk Disclosure Statement

for Futures and Options

Attached at pg. 1





ACCOUNT NAME: _____________________________




	 	 	 	 	 	 	 
	BY:

	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 

	 	Authorized Signature
	 	Date
	 	Name (Please Print)
	 
	 	 	 	 	 	 
	BY:

	 	 
	 	 
	 	 
	 

	 	 
	 	 
	 	 
	 

	 	Authorized Signature
	 	Date
	 	Name (Please Print)

















 










Merrill Lynch, Pierce, Fenner & Smith, Inc

One South Wacker Drive, Suite 300, Chicago, Illinois 60606




 





Tel: 312-442-5448



 









 







RISK DISCLOSURE STATEMENT FOR FUTURES AND OPTIONS




     This brief statement does not disclose all of the risks and other significant aspects of
trading in futures and options. In light of the risks, you should undertake such transactions only
if you understand the nature of the contracts (and contractual relationships) into which you are
entering and the extent of your exposure to risk. Trading in futures and options is not suitable
for many members of the public. You should carefully consider whether trading is appropriate for
you in light of your experience, objectives, financial resources and other relevant circumstances.



Futures




1. Effect of ‘Leverage’ or ‘Gearing’




     Transactions in futures carry a high degree of risk. The amount of initial margin is small
relative to the value of the futures contract so that transactions are ‘leveraged’ or ‘geared.’ A
relatively small market movement will have a proportionately larger impact on the funds you have
deposited or will have to deposit: this may work against you as well as for you. You may sustain a
total loss of initial margin funds and any additional funds deposited with the firm to maintain
your position. If the market moves against your position or margin levels are increased, you may be
called upon to pay substantial additional funds on short notice to maintain your position. If you
fail to comply with a request for additional funds within the time prescribed, your position may be
liquidated at a loss and you will be liable for any resulting deficit.



2. Risk-reducing orders or strategies




     The placing of certain orders (e.g., ‘stop-loss’ orders, where permitted under local law, or
‘stop-limit’ orders) which are intended to limit losses to certain amounts may not be effective
because market conditions may make it impossible to execute such orders. Strategies using
combinations of positions, such as ‘spread’ and ‘straddle’ positions, may be as risky as taking
simple ‘long’ or ‘short’ positions.



Options




3. Variable degree of risk




     Transactions in options carry a high degree of risk. Purchasers and sellers of options should
familiarize themselves with the type of option (i.e., put or call) which they contemplate trading
and the associated risks. You should calculate the extent to which the value of the options must
increase for your position to become profitable, taking into account the premium and all
transaction costs.



     The purchaser of options may offset or exercise the options or allow the options to expire.
The exercise of an option results either in a cash settlement or in the purchaser acquiring or
delivering the underlying interest. If the option is on a future, the purchaser will acquire a
futures position with associated liabilities for margin (see the section on Futures above). If the
purchased options expire worthless, you will suffer a total loss of your investment, which will
consist of the option premium plus transaction costs. If you are contemplating purchasing
deep-out-of-the-money options, you should be aware that the chance of such options becoming
profitable ordinarily is remote.



 









 





     Selling (‘writing’ or ‘granting’) an option generally entails considerably greater risk than
purchasing options. Although the premium received by the seller is fixed, the seller may sustain a
loss well in excess of that amount. The seller will be liable for additional margin to maintain the
position if the market moves unfavorably. The seller will also be exposed to the risk of the
purchaser exercising the option and the seller will be obligated to either settle the option in
cash or to acquire or deliver the underlying interest. If the option is on a future, the seller
will acquire a position in a future with associated liabilities for margin (see the section on
Futures above). If the position is ‘covered’ by the seller holding a corresponding position in the
underlying interest or a future or another option, the risk may be reduced. If the option is not
covered, the risk of loss can be unlimited.



     Certain exchanges in some jurisdictions permit deferred payment of the option premium,
exposing the purchaser to liability for margin payments not exceeding the amount of the premium.
The purchaser is still subject to the risk of losing the premium and transaction costs. When the
option is exercised or expires, the purchaser is responsible for any unpaid premium outstanding at
that time.



Additional risks common to futures and options




4. Terms and conditions of contracts




     You should ask the firm with which you deal about the terms and conditions of the specific
futures or options which you are trading and associated obligations (e.g., the circumstances under
which you may become obligated to make or take delivery of the underlying interest of a futures
contract and, in respect of options, expiration dates and restrictions on the time for exercise).
Under certain circumstances the specifications of outstanding contracts (including the exercise
price of an option) may be modified by the exchange or clearing house to reflect changes in the
underlying interest.



5. Suspension or restriction of trading and pricing relationships




     Market conditions (e.g., illiquidity) and/or the operation of the rules of certain markets
(e.g., the suspension of trading in any contract or contract month because of price limits or
‘circuit breakers’) may increase the risk of loss by making it difficult or impossible to effect
transactions or liquidate/offset positions. If you have sold options, this may increase the risk of
loss.



     Further, normal pricing relationships between the underlying interest and the future, and the
underlying interest and the option may not exist. This can occur when, for example, the futures
contract underlying the option is subject to price limits while the option is not. The absence of
an underlying reference price may make it difficult to judge ‘fair’ value.



6. Deposited cash and property




     You should familiarize yourself with the protections accorded money or other property you
deposit for domestic and foreign transactions, particularly in the event of a firm insolvency or
bankruptcy. The extent to which you may recover your money or property may be governed by specified
legislation or local rules. In some jurisdictions, property which had been specifically
identifiable as your own will be pro-rated in the same manner as cash for purposes of distribution
in the event of a shortfall.



 









 





7. Commission and other charges




     Before you begin to trade, you should obtain a clear explanation of all commissions, fees and
other charges for which you will be liable. These charges will affect your net profit (if any) or
increase your loss.



8. Transactions in other jurisdictions




     Transactions on markets in other jurisdictions, including markets formally linked to a
domestic market, may expose you to additional risk. Such markets may be subject to regulation which
may offer different or diminished investor protection. Before you trade, you should inquire about
any rules relevant to your particular transactions. Your local regulatory authority will be unable
to compel the enforcement of the rules of regulatory authorities or markets in other jurisdictions
where your transactions have been effected. You should ask the firm with which you deal for details
about the types of redress available in both your home jurisdiction and other relevant
jurisdictions before you start to trade.



9. Currency risks




     The profit or loss in transactions in foreign currency-denominated contracts (whether they are
traded in your own or another jurisdiction) will be affected by fluctuations in currency rates
where there is a need to convert from the currency denomination of the contract to another
currency.



10. Trading facilities




     Most open-outcry and electronic trading facilities are supported by computer-based component
systems for the order-routing, execution, matching, registration or clearing of trades. As with all
facilities and systems, they are vulnerable to temporary disruption or failure. Your ability to
recover certain losses may be subject to limits on liability imposed by the system provider, the
market, the clearing house and/or member firms. Such limits may vary; you should ask the firm with
which you deal for details in this respect.



11. Electronic trading




     Trading on an electronic trading system may differ not only from trading in an open-outcry
market but also from trading on other electronic trading systems. If you undertake transactions on
an electronic trading system, you will be exposed to risk associated with the system, including the
failure of hardware and software. The result of any system failure may be that your order is either
not executed according to your instructions or is not executed at all.



12. Off-exchange transactions




     In some jurisdictions, and only then in restricted circumstances, firms are permitted to
effect off-exchange transactions. The firm with which you deal may be acting as your counterparty
to the transaction. It may be difficult or impossible to liquidate an existing position, to assess
the value, to determine a fair price or to assess the exposure to risk. For these reasons, these
transactions may involve increased risks. Off-exchange transactions may be less regulated or
subject to a separate regulatory regime. Before you undertake such transactions, you should
familiarize yourself with applicable rules and attendant risks.



 









 





 INSTITUTIONAL FUTURES CLIENT ACCOUNT AGREEMENT



Merrill Lynch, Pierce, Fenner & Smith Incorporated, with an office at 1 South Wacker Drive,
Suite 300, Chicago, Illinois, 60606, (“Merrill Lynch”) agrees to carry one or more account(s)
(“Account”) for the undersigned (“Client”) and provide services to Client in connection with the
purchase and sale of cash commodities (including financial instruments), options on cash
commodities, commodity futures contracts, options on futures contracts, security futures products,
forward or leverage contracts, exchange of futures for physicals, and any similar instruments which
may be purchased or sold by or through Merrill Lynch for Client’s Account (collectively referred to
as “Futures Contracts”). In consideration thereof, Client and Merrill Lynch agree as follows:



1. AUTHORIZATIONS AND ACKNOWLEDGMENTS

Client authorizes Merrill Lynch to purchase or sell Futures Contracts for Client’s Account(s) in
accordance with Client’s oral or written instructions. Client hereby waives any defense that any
such instructions were not in writing as may be required by any law, rule or regulation. In any
such transaction, Merrill Lynch may act as agent or principal and may charge a mark-up or
commission, as may be limited by law, rule or regulation. All contracts and transactions entered
into after the close of any applicable futures exchange’s normal business hours may be considered
next business day activity. Merrill Lynch is not acting as a fiduciary, commodity trading advisor,
investments advisor or commodity pool operator with respect to Client or any Futures Contracts or
Account(s) and Merrill Lynch shall have no responsibility for compliance with any law or regulation
governing the conduct of any such fiduciary or advisor selected by Client or Client’s conduct as a
fiduciary, if applicable.



2. APPLICABLE LAW

All transactions under this Agreement shall be subject to the Commodity Exchange Act and the
constitution, rules, regulations, customs, usages, rulings and interpretations of the Commodity
Futures Trading Commission (“CFTC”), the National Futures Association (“NFA”), domestic or foreign
exchange markets, and their clearing houses, if any, where the transactions are executed by Merrill
Lynch or Merrill Lynch’s agents (“Applicable Law”). Merrill Lynch is hereby authorized, in its
discretion, to employ affiliated and nonaffiliated clearing members, carrying brokers and floor
brokers as Merrill Lynch’s agents or to engage in pre-execution discussions, in connection with the
execution, carrying, clearance, delivery and settlement of any such transactions as permitted by
Applicable Law. Client agrees to provide Merrill Lynch any information necessary for Merrill Lynch
to respond to any inquiry from any exchange, contract market or other regulatory agency pursuant to
Applicable Law.



Absent a separate written agreement with Client with respect to give-ups, Merrill Lynch, in its
discretion, may, but shall not be obligated to, accept from other brokers selected by Client,
Futures Contracts executed by such brokers which are given up to Merrill Lynch for clearing in any
Account(s). If Client has executed with other brokers and Merrill Lynch is required to pay such
executing brokers give up fees, Client agrees that Merrill Lynch may withhold such fees from
Client’s account in anticipation of such payment coming due.



3. MERRILL LYNCH REPRESENTATIONS

Merrill Lynch and its managing directors, officers, employees and affiliates may take or hold
positions in or advise other clients concerning contracts which are the subject of advice from
Merrill Lynch to the Client, which positions and advice may be consistent with or contrary to
positions which are the subject of advice to the Client. In addition, Merrill Lynch, its directors,
officers, employees, parent companies and affiliates may act on the other side of your order by the
purchase or sale for an account in which Merrill Lynch or any person affiliated with Merrill Lynch
has a direct or indirect interest, subject to such order being executed in accordance with and
subject to the limitations and conditions of exchange rules or other Applicable Law.



4. CLIENT REPRESENTATIONS

Client represents and warrants that (a) the individual(s) whose signatures are stated below is/are
duly authorized and empowered to execute and deliver this Agreement and to effect purchases and
sales of Futures Contracts through Merrill Lynch in one or more Accounts until such time as Merrill
Lynch is notified by Client to the contrary; (b) regardless of any subsequent determination to the
contrary, Client is a sophisticated user of the futures markets and is aware of the risks and
obligations of Futures Contracts and


 









 






is fully prepared to assume such risks and obligations; (c)
trading in Futures Contracts is within the power of Client and such activity will in no manner
contravene the provisions of any corporate resolutions, by-laws, statutes, rules, regulations,
operating agreement, partnership agreements, plan documents, trust agreements or any judgments,
orders or other agreements to which Client is bound; (d) Client is duly organized and in good
standing under the laws of the jurisdiction in which it was organized and in all jurisdictions
where it is qualified to do business; (e) Client is acting as principal and not as agent in
transactions under this Agreement and no person other than Client has or will have an interest in
Client’s Account(s) except as otherwise disclosed to Merrill Lynch herein; (f) Client agrees to
provide any information regarding its transactions in Futures Contracts in the Account if requested
of Merrill Lynch by any regulatory authority and (g) Merrill Lynch is authorized to follow the
instructions of the undersigned in every respect concerning this Account, including, but not
limited to, payment of monies. With respect to activity in the Account(s), Merrill Lynch may rely
upon the instructions of the above referenced individuals or any individuals subsequently
authorized by Client until Client notifies Merrill Lynch to the contrary.



If Client engages in exchange of futures for physical (“EFP”) transactions or exchange of futures
for swap transactions (“EFS”), Client acknowledges and agrees that, in connection with any EFP or
EFS that (a) if the Client is the seller of the cash contract(s) or swap, then the Client is the
buyer of the futures contract(s) being exchanged in the EFP or EFS respectively; and (b) if the
Client is the buyer of the cash contract(s) or swap then the Client is the seller of the futures
contract(s) being exchanged in the EFP or EFS, respectively. Upon request by Merrill Lynch, Client
agrees to provide documentation sufficient to verify its purchase or sale of the cash contract or
swap contract.



5. MODIFICATION AND TERMINATION

Whenever any statute shall be enacted which shall affect in any manner or be inconsistent with any
of the provisions hereof, or whenever any rule or regulation shall be prescribed or promulgated by
the CFTC, various commodity exchanges, or other agency or body having jurisdiction, which shall
affect in any manner or be inconsistent with any of the provisions hereof, the provisions of this
Agreement so affected shall be deemed modified or superseded, as the case may be, by such statute,
rule or regulation, and all other provisions of the Agreement and the provisions as modified or
superseded, shall in all respects continue to be in full force and effect. Merrill Lynch shall use
commercially reasonable efforts to give notice to the Client of any material change in conduct
under this Agreement required by any such statute, rule or regulation.



Either party may terminate this Agreement at any time by notice to the other. However, such
termination by Client shall not affect any transaction entered into by Client prior to receipt of
such notice by Merrill Lynch, or any open commodity positions or any liability held by or owed to
Merrill Lynch by Client at the time of such termination. If Client has outstanding give-up bills
owed to other brokers at the time of its termination of this Agreement, Merrill Lynch may withhold
the amount of such fees in order to make such payments.



Other than as set forth in the first paragraph above, no provision of this Agreement shall in any
respects be waived, altered, modified or amended unless such waiver, alteration, modification or
amendment is in writing and signed by one Merrill Lynch’s authorized officers and by one of
Client’s authorized officers. Client attests that if Client has downloaded this Agreement from the
internet or any electronic message, Client has printed it directly from the PDF or other electronic
file provided by Merrill Lynch without additional modification.



6. ADVICE

All advice with respect to Futures Contracts transmitted by Merrill Lynch with respect to the
Account is solely incidental to the conduct of Merrill Lynch’s business as a futures commission
merchant and such advice will not serve as the primary basis for any decision by the Client.
Merrill Lynch shall have no discretionary authority, power or control over any decision made by
Client with respect to the Account, whether or not Merrill Lynch’s advice is utilized in such
decision.



7. POSITION LIMITS

Client acknowledges Merrill Lynch’s right to limit the number of open positions which Client may
maintain or acquire through Merrill Lynch at any time upon notice to Client. In addition, Client
agrees it will not exceed contract market position limits without appropriate prior approval from
the relevant contract market. Client


 









 






agrees that it shall not agree with any exchange or contract
market to act as a market maker using Merrill Lynch’s execution or clearing capabilities without
the prior written approval of Merrill Lynch.



8. EXTRAORDINARY EVENTS AND THIRD PARTY ACTIONS

Merrill Lynch shall not be liable for breakdown or failure of transmission of communication
facilities, systems or software, government restrictions, war or acts of terrorism, exchange
failures or market rulings or natural disasters. Merrill Lynch shall not be liable to Client for
any loss, cost, expense or damage to the Client with respect thereto, except as a result of Merrill
Lynch’s gross negligence, willful misconduct or bad faith.



Under no circumstances shall Merrill Lynch have any responsibility, liability or obligation
regarding any conduct, act, omission or representation of any introducing firm, commodity trading
advisor, investment adviser or third party vendor selected by Client to give Client research or
advice, to electronically route orders to Merrill Lynch or to provide like services to Client. For
the avoidance of doubt, Merrill Lynch shall not be responsible for monitoring any trading
limitations Client may have provided to such third party.



9. SECURITY AND LENDING

All monies, securities, Futures Contracts or other property which Merrill Lynch may at any time be
carrying for the Client or which may at any time be in Merrill Lynch’s possession, including
safekeeping, shall be subject to a general lien, security interest and right of set-off and
recoupment in Merrill Lynch’s favor to discharge all obligations of the Client to Merrill Lynch,
irrespective of whether or not Merrill Lynch may have made advances in connection with such
securities, Futures Contracts or other property, and irrespective of the number of accounts the
Client may have with Merrill Lynch. Merrill Lynch may apply or transfer such funds or other
property of Client between any of Client’s accounts for the purposes of margin or reduction or
satisfaction of any net debit balance. Client will not cause or allow any of the collateral held in
the Account, whether now owned or hereafter acquired, to be or become subject to any liens,
security interests or encumbrances of any nature without the prior written consent of Merrill
Lynch, and in no event shall the collateral held in Client’s Account be subject to a lien or
security interest superior to that of Merrill Lynch.



In accordance with the terms and limitations of the Commodity Exchange Act regarding investment and
pledging of Client assets, the Client grants to Merrill Lynch the right to carry in its general
loans, and to pledge, re-pledge, hypothecate, re-hypothecate, invest or loan, either separately or
with the property of other clients, to either itself as broker or to others, any securities or
other property held by Merrill Lynch on margin for the Account(s) of the Client or as collateral
therefore.



10. FEES AND COMMISSIONS

Client shall be charged exchange and regulatory fees as determined by the relevant exchange and/or
regulator. If Client is a member of any U.S. exchange, Client must advise Merrill Lynch accordingly
if Client may avail itself of any reduced fee at such exchange. In addition, Client must notify
Merrill Lynch if it ceases to be a member of any such exchange. Client shall be liable for all
fees (including any fines) owed to the exchange if Client fails to give such notice to Merrill
Lynch. Merrill Lynch may pay interest to Client on any available margin excess as agreed to from
time to time between Merrill Lynch and Client. Merrill Lynch may charge interest upon Clients
Account(s) in accordance with Merrill Lynch’s customary charges, as determined by Merrill Lynch, at
the time of the acceptance of this Agreement and thereafter. Client agrees to pay all such
commissions as agreed to from time to time between Merrill Lynch and Client.



11. MARGIN

The Client will at all times maintain such margins or collateral for said Accounts, as are
reasonably required by Merrill Lynch or an exchange, contract market or clearing house, and will at
any time upon Merrill Lynch’s demand, discharge margin obligations of the Client to Merrill Lynch.



12. LIQUIDATION

If any of the following events shall occur, Merrill Lynch may proceed in accordance with the
following paragraph: (a) Client shall be dissolved or in any other way terminated other than a
bona fide restructuring (with prior notice to Merrill Lynch) that results in a successor entity
with no lesser credit quality than the original entity; (b) Client shall fail to timely deposit or
maintain initial or original margin, or make timely payment of additional or variation margin; (c)
Client shall fail to pay the premium on any option purchased


 









 






by Client; (d) a proceeding under any
applicable bankruptcy or insolvency law, an assignment for the benefit of creditors or an
application for a receiver, custodian, conservator, administrator, liquidator or trustee shall be
filed or applied for, by Client (or if Client is a trust, its trustee), or an order for relief
shall be issued by a court for the winding up, liquidation or administration of Client (or, if
Client is a trust, its trustee); (e) Client has suffered a material change in its financial
condition and is unable to provide Merrill Lynch with adequate assurances of its financial
stability; (f) Client’s Account shall incur a deficit balance; (g) Merrill Lynch shall determine
that any material representation or warranty made by Client to Merrill Lynch is untrue or
inaccurate and Client is unable to prove otherwise; (h) if Client is an investment company,
commodity pool or other form of collective investment vehicle, proceedings for the revocation or
suspension of any registration of any public offering of interests in Client or of any person or
entity required to be registered in connection with Client’s activities have been instituted or are
pending or threatened by any governmental agency or self-regulatory organization.



In each event specified above, Merrill Lynch may liquidate Client’s open positions in whole or in
part, sell or otherwise dispose of, realize, set off or apply any or all of the property
represented by an entry on or standing to the credit of Client’s Account or held by, to the order
or under the direction or control of Merrill Lynch or any exchange or clearing organization through
which transactions on Client’s behalf are executed or cleared, buy any property for Client’s
Account, and/or cancel any outstanding orders and commitments made by Merrill Lynch on Client’s
behalf. Without prejudice to the foregoing, Merrill Lynch shall have (to the greatest extent
permitted by applicable law) all of the rights of a secured party with respect to the property
referred to above, and any rights, powers and remedies provided herein shall operate as a variation
and extension of any statutory power of sale, application or realization available to Merrill Lynch
as a secured party.



Any such liquidation, sale, purchase and/or cancellation may be made at Merrill Lynch’s discretion
on any exchange or other market or through any clearing organization where such business is
transacted, at public auction or at private sale, upon prior notice to Client if reasonable under
the circumstances, without advertising the same and without prior tender, demand or call upon
Client. No prior tender, demand or call from Merrill Lynch of the time and place of such
liquidation, sale, purchase and/or cancellation shall be deemed to be a waiver of Merrill Lynch’s
right to liquidate, sell, purchase and/or cancel as provided herein.



In any transaction described above, Merrill Lynch may sell any property to itself or its affiliates
or buy any property from itself or its affiliates in an arms-length transaction. Merrill Lynch may,
to the extent permitted by law, purchase the whole or any part thereof free from any right of
redemption. In all cases, Client shall remain liable for, and shall pay to Merrill Lynch the
amount of, any deficiency in Client’s Accounts with Merrill Lynch resulting from any transaction
described herein above. So long as Merrill Lynch’s rights or position would not be jeopardized
thereby, Merrill Lynch shall make a good faith effort to notify Client of its intention to take any
of the actions specified in this paragraph before taking any such action, provided that Merrill
Lynch shall not be deemed to have breached any obligation to Client if no such notice is given.



13. CURRENCY FLUCTUATION RISK/PAYMENT OBLIGATIONS

All initial and subsequent deposits for margin purposes shall be made in U.S. Dollars unless
otherwise agreed by Merrill Lynch and Client. By placing an order for a Futures Contract that
settles in a currency other than U.S. dollars, Client agrees that Merrill Lynch may convert to the
appropriate currency funds sufficient to meet the applicable margin requirement. Client understands
and agrees that if Client trades in such Futures Contracts, the margin for and accruals from such
trading may be held in the applicable currency outside of the U.S., a money center country or the
country of origin of such currency and that accounts held outside of the U.S. may not be afforded
the bankruptcy protections of the U.S. bankruptcy code.



Client shall bear all risk and cost in respect to the conversion of currencies incurred relative to
transactions effected on behalf of Client pursuant hereto. In no event shall Merrill Lynch be
required to effect or be responsible for the conversion of funds in anticipation of changes in
prevailing rates of exchange.



With respect to all securities, Futures Contracts and other property purchased or sold for Client’s


 









 






Account(s), Client agrees to pay Merrill Lynch upon demand: (a) any tax imposed on such
transactions by any competent authority; (b) the amount of any trading losses in Client’s
Account(s) and (c) any debit balance or deficiency remaining in Client’s Account(s).



14. DELIVERY INSTRUCTIONS FOR PHYSICAL SETTLEMENT/OPTIONS EXERCISE

The Client understands that, if Client maintains an account for speculation, liquidating
instructions on open futures positions maturing in a current month must be given to Merrill Lynch
at least three (3) business days prior to the first notice day or last trading day, whichever is
earlier. If Client maintains an Account for hedging, Client understands that liquidating
instructions on open futures positions maturing in a current month must be given to Merrill Lynch
at least one (1) business days prior to the first notice day in the case of long positions and, in
the case of short positions, at least one (1) business days prior to the last trading day.
Alternatively, sufficient funds to take delivery or necessary delivery documents to make delivery
must be delivered to Merrill Lynch within the same period(s) described above, as applicable. Client
understands and acknowledges that option positions may be subject to automatic exercise procedures.
Merrill Lynch will exercise all in-the-money option positions that are subject to automatic
exercise unless Client advises Merrill Lynch to the contrary. If Client fails to comply with any of
the foregoing obligations, Merrill Lynch may, at its discretion and in any commercially reasonable
manner, liquidate any open positions, make or receive delivery of any securities, commodities or
instruments, or exercise or allow the expiration of any option. Client shall remain fully liable
for all costs, expenses and liabilities incurred by Merrill Lynch in connection with such
transactions and for any remaining debit balance.



In the event Merrill Lynch has requested from Client instructions, funds or documents and none are
received by Merrill Lynch within the applicable time frame above, Merrill Lynch without any further
notice or requests, may either liquidate the Client’s positions, or make or receive delivery on the
Client’s behalf upon such terms and by such methods which Merrill Lynch deems to be feasible. In
all cases, if any exchange or self-regulatory organization requests delivery intention instructions
from Merrill Lynch, Client shall provide such instructions promptly without regard to the above
time frames.



In the case of Merrill Lynch’s inability to deliver any security, commodity or other property to
the purchaser by reason of failure of the Client to supply Merrill Lynch therewith, then and in
such event, the Client authorizes Merrill Lynch to borrow any security, commodity or other property
necessary to make delivery thereof. Client agrees to be responsible for any premiums which Merrill
Lynch may be required to pay thereon or any cost which Merrill Lynch may sustain by reason of
Merrill Lynch’s inability to borrow the security, commodity or other property sold.



Notwithstanding the foregoing, any time that Client fails to make or take delivery, Client agrees
that it shall be responsible for any debit, loss, exchange or clearing corporation fine or other
assessment or penalty levied against Merrill Lynch as a result of Client’s failed delivery.



15. VERIFICATION OF INFORMATION

Federal law requires all financial institutions to obtain, verify, and record information that
identifies each Client who opens an account and, therefore, in order to open an account, Merrill
Lynch may request Client’s name, formation documents, licenses, as well as other information
necessary to verify identity (including date of birth for individuals). Further, Client
understands that an investigation may be conducted at banks, financial institutions and credit
agencies pertaining to Client’s identity, credit standing and its business. The Client agrees to
notify Merrill Lynch if the financial information provided to Merrill Lynch by Client changes in
any material respect.



If more than one person or entity owns an interest in the Account, all such persons and entities
shall execute this Agreement and each shall be deemed to be the Client.



16. CONCLUSIVENESS OF REPORTS

All written and oral reports related to the Accounts, including but not limited to confirmations,
purchase and sale statements and monthly statements, given to Client shall be conclusive and
binding on Client unless Client notifies Merrill Lynch of any objection as follows: (i) in the case
of any oral communication, at the time such report is given to Customer, and (ii) in the case of
any written communication, before the


 









 






opening of trading on the business day following the day on
which Client received such written communication, provided however, that with respect to monthly
statements, Client will notify Merrill Lynch of any objection within two (2) business days after
receipt.



Communications will be sent to the Client via mail, electronic transmission or facsimile at
Client’s request, at the address of record on the Account Application submitted by Client or at
such other address as the Client may hereafter give Merrill Lynch in writing. Client must notify
Merrill Lynch if it is not receiving its statements in a timely manner.



All objections should be directed to Client’s futures client service representative or to Merrill
Lynch’s Futures Operations Division at 312.442.5450. If any error is not corrected timely or if
Client has any other compliant, Client must send a written notice to Merrill Lynch at Merrill
Lynch, Pierce, Fenner & Smith, Futures Compliance Department, World Financial Center, North Tower,
12th Floor, New York, NY, 10080, facsimile number 212.738.2788.



17. GOVERNING LAW, JURISDICTION, SUCCESSORS AND BINDING EFFECT

This Agreement and its enforcement shall be governed by the laws of the State of New York without
regard to conflicts of law principles. Client submits to the non-exclusive jurisdiction of the
courts of the State of New York and of the Federal Courts in the Southern District of New York with
respect to any claim arising out of or involving this Agreement. Client agrees that any claim,
action or proceeding arising under or in any way relating to this Agreement must be brought, if at
all, within one year of the date of the event(s) giving rise thereto. Client and Merrill Lynch
hereby waive a trial by jury in any action arising out of or relating to this Agreement or any
transaction in connection therewith.



All provisions shall be continuous, and shall cover the Account(s) which the Client opens with
Merrill Lynch, and shall inure to the benefit of Merrill Lynch’s parent firm or any successor
organization, and shall be binding upon the Client, its successors and assigns. If any part of
this Agreement is found by a court of competent jurisdiction to be void, unlawful or unenforceable,
the remainder of this Agreement shall continue in full force and effect.



In accordance with CFTC Regulation 1.65, Merrill Lynch may assign the Client’s Account(s) and this
Agreement to another registered Futures Commission Merchant (“FCM”) by notifying the Client of the
date and name of the intended assignee FCM, which notice shall be provided to Client at least ten
business days prior to the date of the intended assignment. Unless Client objects to the assignment
prior to the scheduled date for the assignment, the assignment will be binding on the Client.
Client may not assign this Agreement without Merrill Lynch’s prior consent, which shall not be
unreasonably withheld.



18. COMPENSATION FOR LOSSES AND EXPENSES

Client agrees to compensate Merrill Lynch, its parent, affiliates, employees and agents for any and
all loss, liability or cost (including reasonable attorneys’ fees), penalty or tax incurred by
Merrill Lynch as a result of Client’s failure to comply with any provision of, or to perform any
obligation under, this Agreement.



If Client is a trust, then specifically, without limiting the generality of the prior paragraph,
Client agrees that Merrill Lynch shall not be responsible for its compliance with the Trustee’s
instructions. Merrill Lynch shall be responsible to Client for any breach of this Agreement by
Merrill Lynch and the conduct of its employees and agents which constitutes negligence or willful
misconduct.



19. RECORDING

Each party understands that the other party, in its discretion, may record on tape or otherwise,
any telephone conversation between the parties, although neither party assumes responsibility to do
such or to retain such recordings. The parties acknowledge, authorize and consent to the
electronic recording of telephone conversations between Client, Merrill Lynch or any of their
respective employees, agents or associated persons, on tape or otherwise, with or without the use
of an automatic tone warning device. The parties further agree that they have notified or will
notify their respective employees of such recording and to obtain any necessary consent of such
employees through policy manuals or otherwise. Each


 









 






party agrees that such recordings may be
submitted in evidence in any proceeding or action relating to this Agreement, provided,
however, the parties agree not to object to admission of such evidence based on the fact that
the recording may not be a “writing” and may not be “signed.”



20. ERISA CLIENTS

If Client is subject to the Employee Retirement Income Security Act of 1974 (“ERISA”), Client or
its advisor, if applicable, has considered the obligations and requirements of ERISA, including
prudence and diversification, with respect to trading Futures Contracts and the other transactions
anticipated under this Agreement. Client’s represents that the opening of the Account will not
result in or constitute a “prohibited transaction” under Section 406 of ERISA or Section 4975 of
the Code or any similar provision of applicable law, for which an exemption is not available, and
the undersigned will not enter into any transaction using assets of the Account that will result in
or constitute a “prohibited transaction” under Section 406 of ERISA or Section 4975 of the Code or
any similar provision of applicable law, for which an exemption is not available. Client agrees
that Merrill Lynch has no discretionary authority over this Account and is not a fiduciary with
respect to Client.



21. HEDGE ACCOUNT DESIGNATION (Please strike Paragraphs 21 & 22 if Client’s Account is
speculative)

If this Account(s) is a hedge Account(s), all orders which the Client gives for the purchase
or sale of futures or options contracts for the Client’s Account(s) will represent bona fide hedges
in accordance with accepted definitions of hedge transactions as that term is defined in Regulation
1.3(z) under the Commodity Exchange Act, if applicable, and any amendments or interpretations
thereto which may be made in the future by the Commodity Futures Trading Commission. Client
acknowledges that it is required to complete the Required Hedge Account Instructions in Paragraph
22 below and notify Merrill Lynch if any transactions in Futures Contracts should no longer be
designated as hedged Futures Contracts.



22. REQUIRED HEDGE ACCOUNT INSTRUCTIONS

If Client has indicated on the Futures Account Application that orders placed for the Account
represent bona fide hedging transactions, please complete the following. Client should note that
CFTC Regulation §190.06 permits Client to specify whether, in the unlikely event of Merrill Lynch’s
bankruptcy, Client prefers the bankruptcy trustee to liquidate all positions in the Account.
Accordingly, Client hereby elects as follows: (please check appropriate box):




o   Liquidate          o   Not Liquidate



If neither alternative is initialed, Client will be deemed to have elected to have all positions
liquidated. This election may be changed at any time by Client through written notice.




 









 







23. RECEIPT OF CLIENT ACKNOWLEDGMENTS

By checking the boxes and signing below, Client hereby expressly acknowledges and agrees that
Client has received, read and understood and has retained a copy of the “Risk Disclosure Statement
for Futures and Options” which includes the disclosures required by CFTC Rules 1.55, 30.6, 33.7 and
190.10(c), the specific disclosure statements below and other disclosure and risk statements
applicable to Client’s account as set forth in this Agreement and the “Client Account Application,
Disclosure Statements and Notices”. Please check all boxes.





	 	 	 	r Risk Disclosure Statement for Futures and Options
	 
	 	 	 	r Authorization to Transfer Client Funds (as set forth in Section 9)
	 
	 	 	 	r Authorization for Cross Transactions (as set forth in Section 3)




Client hereby acknowledges that Client has read and understands all the disclosures provided and
agrees to be bound by all of the terms contained in this Agreement. Client agrees to immediately
notify Merrill Lynch of any material changes to the information contained herein. Merrill Lynch and
Client agree that this Agreement may be executed in counterparts.



PLEASE NOTE: If this Agreement is executed on behalf of a corporation, a corporate resolution
authorizing the signature(s) below must be attached. If this Agreement is executed on behalf of a
partnership, then the signature(s) below is/are that of all of the General Partners and the
partnership agreement must be attached. If this Agreement is executed on behalf of a Trust, the
Trustee signature block below must be signed and the trust agreement provided. If this Agreement is
executed on behalf of a limited liability company or a non-US limited company, the operating
agreement or a resolution authorizing the signature(s) below must be attached. Persons signing
this Agreement must provide proof of identity. Additional documentation may be requested in
accordance with applicable anti-money laundering policies.



Please indicate your understanding and agreement of these terms by signing below.






      



Account Name:____________________________________________________________________________________
 





	 	 	 	 	 
	By:

	 	___________________________________________________
	 	___________________________________________________

	 

	 	Authorized Signature
	 	Date
	 

	 	___________________________________________________

	 	___________________________________________________

	 

	 	Print Name
	 	Title
	By:

	 	___________________________________________________
	 	___________________________________________________
	 

	 	Authorized Signature
	 	Date
	 

	 	___________________________________________________
	 	___________________________________________________

	 

	 	Print Name
	 	Title






	 	 	 
	____________________________________

	 Merril Lynch 
	 ________________________________________