This (‘‘Agreement’’) between UBS Securities LLC(‘‘UBS-S LLC’’) and(‘‘Customer’’) shall govern the purchase andsale by UBS-S LLC of certain futures contracts, options thereon andoptions contracts for the account and risk of Customer through one ormore accounts carried by UBS-S LLC on behalf and in the name ofCustomer (collectively, the ‘‘Account’’), asmore fully described below.
|1.||UBS-S LLC’SAUTHORIZATION TO ACT AS BROKER|
Customer authorizes UBS-S LLC,acting through employees and agents selected by it in its solediscretion, to purchase and sell for the Account contracts for futuredelivery of financial instruments, foreign currency or precious metalsand any other instruments and commodities and for option contracts forwhich UBS-S LLC has notified Customer that UBS-S LLC is prepared toexecute transactions (collectively,‘‘Contracts’’) within or outside the UnitedStates of America in accordance with Customer’sinstructions.
2. CUSTOMER’S REPRESENTATIONS ANDWARRANTIES
(a) Representations andWarranties. Customer represents and warrants asfollows:
(i) Authority. Customer hasfull right, power and authority to enter into this Agreement, and theperson executing this Agreement on behalf of Customer is authorized todo so. This Agreement is binding on Customer and enforceable againstCustomer in accordance with its terms;
(ii) Lawful Agreement. Customer maylawfully establish and open the Account for the purpose of effectingpurchases and sales of Contracts through UBS-S LLC. Transactionsentered into pursuant to this Agreement will not violate any‘‘Applicable Law’’ (as defined below) to whichCustomer is subject or any agreement to which Customer is subject or aparty and the execution, delivery and performance of this Agreement byCustomer require no action by or in respect of or filing with anygovernmental body, agency orofficial;
(iii) Customer’sStatements. The statements made to UBS-S LLC by Customerregarding Customer’s futures trading (including any financialstatements submitted therewith) are true and correct to the best ofCustomer’s knowledge;
(iv) Interest orControl of Account. If any person or entity has, or duringthe term of this Agreement will have, any interest in the Account otherthan Customer, Customer hereby agrees to so notify UBS-S LLCimmediately (and no later than within one business day);and
(v) Designation. If Customer isnot a citizen or resident of the United States, Customer has beeninformed by UBS-S LLC of Commodity Futures Trading Commission(‘‘CFTC’’) Regulations concerning thedesignation of a futures commission merchant as the agent of foreignbrokers, customers of a foreign broker and foreign traders for certainpurposes as set forth in CFTC Regulation §15.05 and concerningspecial calls for information from futures commission merchants,foreign brokers and members of contract markets as set forth in CFTCRegulation §21.03.
(b) Notice ofChange. Customer shall immediately (and no later than withinone business day) notify UBS-S LLC in writing if any of therepresentations contained herein materially change or cease to be trueand correct.
3. APPLICABLE LAW
The Account and alltransactions and agreements in respect of the Account shall be subjectto the regulations of all applicable Federal, state and self-regulatoryagencies or authorities, including but not limited to: (a) theprovisions of the Commodity Exchange Act, as amended, and any rules,
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regulations, orders and interpretationspromulgated thereunder by the CFTC; (b) the constitution, by-laws,rules, regulations, orders and interpretations of the contract market(and its clearing house, if any) on which such transactions areexecuted and cleared, and any relevant registered futures association,including, without limitation, the National Futures Association(‘‘NFA’’); and (c) custom and usage of thetrade. All such provisions, rules, regulations, orders,interpretations, constitution, by-laws, custom and usage arehereinafter collectively referred to as ‘‘ApplicableLaw.’’
UBS-S LLC shall be entitled to rely on anyinstructions, notices and communications, whether oral or in writing,that it believes to be that of an individual authorized to act onbehalf of Customer, including, but not limited to, any individualidentified in writing by Customer as authorized to act on its behalf,and Customer shall be bound thereby. Customer hereby waives any defensethat any such instruction was not in writing as may be required by theStatute of Frauds or any other similar law, rule orregulation.
|5.||ACCEPTANCE OF ORDERS; POSITIONLIMITS|
(a) Acceptance of Orders. UBS-S LLCshall have the right, acting in a commercially reasonable manner, tolimit the size of open positions (net or gross) of Customer withrespect to the Account at any time and to refuse acceptance of ordersto establish new positions (whether such refusal or limitation isrequired by, and whether such refusal is based on position limitsimposed under, Applicable Law). UBS-S LLC shall immediately notifyCustomer of its rejection of any order. Unless specified by Customer,UBS-S LLC may designate the exchange or other markets (including,without limitation, GLOBEX) on which it will attempt to executeorders.
(b) Position Limits. Customer shallnot, either alone or in combination with others, violate any positionor exercise limit established by or under Applicable Law. If Customerintends at any time to exceed such position limits, Customer shallcause to be filed an application with the CFTC or the relevant contractmarket requesting authorization for Customer to exceed such positionlimits and shall provide UBS-S LLC with a copy of such application andsuch other information as UBS-S LLC may reasonably request with respectto such application. Customer shall immediately (and no later thanwithin one business day) notify UBS-S LLC of any positions for whichCustomer is required to file reports under Applicable Law, includingany large trader reports filed with the CFTC or any contract market.Customer shall indemnify and hold UBS-S LLC harmless from and againstall claims, damages, fines or assessments of any kind whatsoever,including reasonable attorneys’ fees in connection with thedefense thereof, made and incurred in connection with any violation byCustomer of its obligations under this Section5(b).
|6.||ORIGINAL AND VARIATION MARGIN; PREMIUMS; OTHERCONTRACT OBLIGATIONS|
With respect to every Contract purchased,sold or cleared for the Account, Customer shall make, or cause to bemade, all applicable original margin, variation margin, intra-daymargin and premium payments, and perform all other obligationsattendant to transactions or positions in such Contracts, as may berequired by Applicable Law or by UBS-S LLC in its reasonablediscretion. Requests for margin deposits and/or premium payments may,at UBS-S LLC’s election, be communicated to Customer orally,telephonically or in writing. Margin requirements established by UBS-SLLC may with prior notice to customer where reasonably practical exceedthe margin requirements set by any contract market or clearingorganization on which transactions are executed or cleared or caused tobe executed or cleared by UBS-S LLC or any agent thereof for Customerand may be changed by UBS-S LLC without prior notice to Customer.Except as otherwise provided herein, all such margin and premiumpayments shall be in the form, as UBS-S LLC permits, of cash in U.S.dollars, securities of the U.S. Government, or a combination thereof.If at any time Customer fails timely to deposit or maintain requiredmargin, or Customer fails timely to make any premium payments, UBS-SLLC may at any time, without further notice to Customer, close outCustomer’s open position in whole or in part and take any actionit deems appropriate, subject to section 10(b).
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|7.||SECURITY INTEREST AND RIGHTSRESPECTING COLLATERAL|
All Contracts, cash, securities, and/orother property of Customer, including all proceeds of all such propertysuch as profits from Account transactions (collectively, the‘‘Collateral’’) now or at any future time inthe Account or otherwise held by UBS-S LLC or its affiliates, anyclearing house through which trades of the Account are executed and/orpositions are held, or any other entity authorized to act as an agentof UBS-S LLC or Customer, hereby are pledged to UBS-S LLC and shall besubject to a general lien and security interest in UBS-S LLC’sfavor to secure any indebtedness or other amounts at any time owingfrom Customer to UBS-S LLC, and to secure any and all other obligationsand liabilities of Customer to UBS-S LLC (collectively, the‘‘Customer’s Liabilities’’). Customerhereby grants UBS-S LLC the right to borrow, pledge, repledge,hypothecate, rehypothecate, loan or invest any of the Collateralwithout notice to Customer, and without any obligation to pay or toaccount to Customer for any interest, income or benefit that may bederived therefrom. UBS-S LLC shall be under no obligation to deliver toCustomer the identical Collateral in the Account, but shall only beunder an obligation to deliver to Customer Collateral of like orequivalent kind and amount. The rights of UBS-S LLC set forth aboveshall be qualified by any applicable requirements for segregation ofcustomer’s property under ApplicableLaw.
8. PAYMENT OBLIGATIONS OFCUSTOMER
(a) Charges to the Account. Withrespect to every Contract purchased, sold or cleared for the Account,Customer shall pay UBS-S LLC upon demand and UBS-S LLC hereby isauthorized to charge Customer’s Account for: (i) allbrokerage charges, give-up fees, commissions and service fees per theattached schedule, which shall only be changed by written agreementbetween UBS-S LLC and Customer; (ii) all contract market,clearing house, clearing member, NFA or CFTC fees or charges, fines orpenalties; (iii) any tax imposed on such transactions by anycompetent taxing authority; (iv) the amount of any tradinglosses in the Account; (v) any debit balance or deficiency inthe Account; (vi) interest and service charges on any debitbalances or deficiencies in the Account, any advances or any loan(including interest on the amount of variation margin calls, untilsatisfaction of such calls, when the Customer posts U.S. Treasury Billsfor original margin purposes), at the rate customarily charged by UBS-SLLC (which may be at the prevailing and/or allowable rates according tothe laws of the State of Illinois) from the day any such deficit wasincurred to (but not including) the day of payment (calculated on thebasis of a 360 day year and for the actual number of days elapsed forall deficits, except for those denominated in foreign currencies forwhich generally accepted accounting principles require that theinterest rate shall be calculated otherwise), together with costs andreasonable attorneys’ fees incurred in collecting any suchdeficit; (vii) all storage and delivery service fees; and(viii) any other amounts owed by Customer to UBS-S LLC withrespect to the Account or any transactionstherein.
(b) Payment in U.S. Dollars. Any andall payment obligations of Customer, if not deducted fromCustomer’s Account as permitted hereunder, shall be made upondemand in immediately available U.S. dollars to UBS-S LLC or at suchother place and at such time and in such manner as UBS-S LLC notifiesCustomer. The obligation of Customer to make all payments due hereundershall not be discharged or satisfied by any tender, or any recoverypursuant to any judgment, which is expressed in or converted into anyother currency other than U.S. dollars, except to the extent that suchtender or recovery shall result in the actual receipt by UBS-S LLC ofthe full amount of such U.S. dollars expressed to be payable in respectof such amounts. Customer agrees that its obligations to make paymentin U.S. dollars as aforesaid shall be enforceable as an alternative oradditional cause of action for the purpose of recovery of the amount(if any) by which such actual receipt shall fall short of the fullamount of U.S. dollars expressed to be payable in respect of suchamount due hereunder, and shall not be affected by judgment beingobtained for other sums duehereunder.
(c) Setoff. Any Collateral may atany time or from time to time without notice or compliance with anycondition precedent (which notice hereby is expressly waived) besetoff, appropriated and applied by UBS-S LLC against any and allpayment obligations of Customer hereunder including, but not limitedto, any deficit balance in the Account, in such manner as UBS-S LLC inits discretion may determine.
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(d) Gross-Up. Allpayments made by Customer to UBS-S LLC hereunder will be made withoutsetoff or counterclaim free and clear and without deduction orwithholding for, any present or future taxes, levies, assessments orother charges of whatever nature, now or hereinafter imposed by anyjurisdiction or by any agency, state or other political subdivision ortaxing authority thereof or therein, and all interest, penalties, orsimilar liabilities with respect thereto (collectively,‘‘Taxes’’). If any Taxes are so levied orimposed, Customer agrees to pay the full amount of such Taxes, and suchadditional amounts as may be necessary so that every net payment of allamounts due hereunder, after withholding or deduction for or on accountof any Taxes, will not be less than the amount provided for herein.Customer will furnish to UBS-S LLC, within thirty days after the datethe payment of any Taxes is due pursuant to Applicable Law, certifiedcopies of tax receipts evidencing such payment byCustomer.
|9.||DELIVERY PROCEDURES; OPTIONS ALLOCATIONPROCEDURE|
(a) Instructions. Customer willprovide UBS-S LLC with instructions either to liquidate Contractspreviously established by Customer, make or take delivery under anysuch Contracts, or exercise options entered into by Customer, withinsuch reasonable time limits as may be specified by UBS-S LLC. UBS-S LLCshall have no responsibility to take any action on behalf of Customer,including, without limitation, exercising option Contracts, unless anduntil UBS-S LLC receives oral or written instructions reasonablyacceptable to UBS-S LLC indicating the action UBS-S LLC is to take. Anyinstructions, if given orally to UBS-S LLC, shall immediately beconfirmed in writing by Customer. Funds sufficient to take deliverypursuant to such Contract or deliverable grade commodities to makedelivery pursuant to such Contract must be delivered to UBS-S LLC atsuch time as UBS-S LLC may require in connection with anydelivery.
(b) Allocation Procedures. Shortoption Contracts may be subject to exercise at any time. Exercisenotices received by UBS-S LLC with respect to option Contracts sold byCustomer may be allocated to Customer pursuant to a random allocationprocedure, and Customer shall be bound by any such allocation ofexercise notices. Such notices may be allocated to Customer after theclose of trading on the day on which such notices have been allocatedto UBS-S LLC by the applicable contract market. In the event of anyallocation to Customer, unless UBS-S LLC has previously receivedinstructions from Customer, UBS-S LLC’s sole responsibility shallbe to use its best efforts to notify Customer by telephone of suchallocation at any time before trading commences on the first day onwhich such option Contracts are traded on the applicable contractmarket following the day on which the applicable contract market hasallocated such notices to UBS-S LLC.
(c) Failure toProvide Instructions. If Customer fails to comply with any ofthe foregoing obligations, UBS-S LLC may, in its reasonable discretion,liquidate any open positions, make or receive delivery of anycommodities or instruments, or exercise or allow the expiration of anyoptions, in such manner and on such terms as UBS-S LLC, in itsreasonable discretion, deems necessary or appropriate. Any such actiontaken shall be in the REASONABLE discretion of UBS-S LLC and Customershall remain fully liable for all costs, losses, expenses, liabilitiesand damages (including special, indirect and consequential damages,penalties and fines) which UBS-S LLC may be required to pay or which ithas sustained in connection with such transactions and for anyremaining debit balance in the Account.
|10.||EVENTS OFDEFAULT; UBS-S LLC’S REMEDIES|
(a) Events ofDefault. As used herein, each of the following shall be deemedan ‘‘Event of Default’’: (i) thecommencement of a case under any bankruptcy, insolvency orreorganization law or similar law effecting creditors’ rights ofany jurisdiction, or the filing of a petition for the appointment of areceiver by or against Customer, an assignment made by Customer for thebenefit of creditors, an admission in writing by Customer that it isinsolvent or is unable to pay its debts when they mature, or thesuspension by the Customer of its usual business or any materialportion thereof; (ii) the issuance of any warrant or order ofattachment against the Account or the levy of a judgment against theAccount; (iii) if Customer is an employee benefit plan, thetermination of Customer or the filing
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by Customer of a notice of intent to terminatewith the Pension Benefit Guaranty Corporation (or other similargovernmental agency or body of any jurisdiction), or the receipt of anotice of the Pension Benefit Guaranty Corporation’s (or othersimilar governmental agency’s or body’s) intent toterminate Customer, or the inability of Customer to pay benefits underthe relevant employee benefit plan when due; (iv) the failure byCustomer to deposit or maintain margins, to pay required premiums, orto make payments required by Section 8 hereof; (v) UBS-S LLC inits reasonable discretion determines that the Collateral inCustomer’s Account, regardless of current marked quotations, isinadequate to secure the Account and Customer’s obligations toUBS-S LLC hereunder; (vi) the Account shall incur a deficitbalance; (vii) the failure by Customer to perform, in anymaterial respect, its obligations respecting delivery, exercise or anotice of allocation of exercise, payment for delivery, or settlementunder Contracts held in the Account (it being understood that anyfailure to comply with any Applicable Law shall be deemed material); or(viii) the failure by Customer, in any material respect, toperform any of its other obligations hereunder (it being understoodthat any failure to comply with any Applicable Law shall be deemedmaterial) provided, however, that notwithstanding the foregoing, anEvent of Default shall not occur under (iii)-(vi), above if, asdemonstrated to the reasonable satisfaction of UBS-S LLC, (x)the event or condition referred to in (v) and (vi) or the failure topay referred to in (iii), (iv) (v) is a failure to pay caused by anerror or omission of an administrative or operational nature; and (y)funds or deliverables were available to Customer to enable it to makethe relevant payment or delivery when due; and (z) such relevantpayment or delivery is made within two Business Days following receiptof written notice from UBS-S LLC of such failure topay.
(b) Remedies. Upon the occurrence of anEvent of Default or in the event UBS-S LLC, in its reasonablediscretion, considers it necessary for its protection, UBS-S LLC shallhave the right, in addition to any other remedy available to UBS-S LLCat law or in equity, and in addition to any other action UBS-S LLC maydeem appropriate under the circumstances, to liquidate any or all openContracts held in or for the Account, sell any or all of the securitiesor other property of Customer held by UBS-S LLC and to apply theproceeds thereof to any amounts owed by Customer to UBS-S LLC, borrowor buy any options, securities, Contracts or other property for theAccount and cancel any unfilled orders for the purchase or sale ofContracts for the Account, or take such other or further actions ingood faith as UBS-S LLC, in its reasonable discretion, deems necessaryor appropriate for its protection, all without demand for margin andwithout advertisement. UBS-S LLC will make reasonable efforts under thecircumstances to notify Customer prior to taking any such action UBS-SLLC shall exercise its reasonable efforts to mitigate consequences tothe account of such liquidation or other actions, Any such liquidation,sale, purchase, borrowing or cancellation shall be made at thediscretion of UBS-S LLC on a contract market, through a clearing house,on other markets, at public auction or by private transaction. Customeracknowledges and agrees that a prior demand or margin call of any kindfrom UBS-S LLC or prior notice from UBS-S LLC shall not be considered awaiver of UBS-S LLC’s right to take any action without notice ordemand. In any transaction described above, UBS-S LLC may sell anyCollateral to itself or its affiliates or buy any Collateral fromitself or its affiliates. UBS-S LLC may, to the extent permitted bylaw, purchase the whole or any part thereof free from any right ofredemption. In all cases, Customer shall remain liable for and shallpay to UBS-S LLC on demand the amount of any deficiency in its Accountresulting from any such transaction, and Customer shall reimburse,compensate and indemnify UBS-S LLC for any and all costs, losses,penalties, fines, taxes and damages which UBS-S LLC may incur,including reasonable attorneys’ fees incurred in connection withthe exercise of its remedies and the recovery of any such costs,losses, penalties, fines, taxes anddamages.
(a) Exculpation. NeitherUBS-S LLC nor any of its managing directors, officers, employees oraffiliates shall be liable for any costs, losses, penalties, fines,Taxes and damages sustained or incurred by Customer other than as aresult of UBS-S LLC’s negligence or reckless or intentionalmisconduct. In no event will UBS-S LLC be liable to Customer forconsequential, incidental or special damages. Without limiting thegenerality of the foregoing, neither UBS-S LLC nor any of its managingdirectors, officers, employees or affiliates shall have anyresponsibility or liability to Customer
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hereunder for any costs, losses, penalties,fines, Taxes and damages, including consequential, incidental orspecial damages, sustained or incurred by Customer, (i) in connectionwith the performance or non-performance by any contract market,clearing house, clearing firm or other third party (including otherexchange members, banks and floor brokers) to UBS-S LLC of itsobligations in respect of any Contract or other property of Customer;(ii) as a result of any prediction, recommendation or advice made orgiven by a representative of UBS-S LLC whether or not made or given atthe request of Customer; (iii) as a result of any delay in theperformance or non-performance of any of UBS-S LLC’s obligationshereunder to the extent that losses arising therefrom are, directly orindirectly, caused by the occurrence of any contingency beyond thecontrol of UBS-S LLC including, but not limited to, the unscheduledclosure of an exchange or contract market or delays in the transmissionof orders due to breakdowns or failures of transmission orcommunication facilities, execution, and/or trading facilities or othersystems; (iv) as a result of any action taken by UBS-S LLC, itsmanaging directors, officers, employees, agents (including otherclearing firms through which transactions are effected on behalf ofCustomer) or floor brokers, to comply with Applicable Law; or (v) forany acts or omissions of those neither employed nor supervised by UBS-SLLC. Moreover, UBS-S LLC shall have no responsibility for compliance byCustomer with any law or regulation governing Customer’s conductas a fiduciary, if applicable.
(b) Force Majeure andActs of State. In the event that UBS-S LLC’s performanceof any of its obligations and undertakings hereunder shall beinterrupted or delayed by any occurrence not occasioned by the conductof either party hereto, whether such occurrence shall be an act of Godor the common enemy or the result of war, riot, civil commotion,sovereign conduct or other acts of State, or the act or conduct of anyperson or persons not party or privy hereto, then UBS-S LLC shall beexcused from performance for such period of time as is reasonablynecessary after such occurrence to remedy the effects thereof andneither UBS-S LLC nor any of its managing directors, officers,employees or affiliates shall be directly or indirectly responsible forlosses occasioned thereby.
(c) GLOBEXWaiver. In consideration of UBS-S LLC making GLOBEX servicesavailable, in whole or in part, directly or indirectly, Customer agreesthat neither UBS-S LLC, the Chicago Mercantile Exchange(‘‘CME’’), the Board of Trade of the City ofChicago (‘‘CBOT’’), any other exchange whoseproducts may be traded on the GLOBEX System, the GLOBEX Joint Venture,L.P. (‘‘JV’’), P-M-T Limited Partnership, CeresTrading Limited Partnership, GLOBEX Corporation, Reuters America Inc.,nor any other entities controlling, controlled by or under commoncontrol with such entities, nor their respective directors, officers,or employees, shall be liable for any losses, damages, costs orexpenses (including, but not limited to, loss of profits, loss of use,incidental or consequential damages), regardless of the cause, arisingfrom any fault, delay, omission, inaccuracy or termination of GLOBEXservices, or the inability to enter or cancel orders, or any othercause in connection with the furnishing, performance, maintenance, oruse of or inability to use all or any part of the GLOBEX System or anyJV, CME or CBOT facility or service. The foregoing shall applyregardless of whether a claim arises in contract, tort, negligence,strict liability or otherwise.
(d) Indemnification ofUBS-S LLC. Customer agrees to indemnify and hold UBS-S LLC andits managing directors, officers, employees and affiliates harmlessfrom and against any and all costs (including reasonableattorneys’ fees), losses, penalties, fines, taxes and damagesincurred by UBS-S LLC as a result of any action taken or not taken byUBS-S LLC in reliance upon any instructions, notices and communicationswhich UBS-S LLC reasonably believes to be that of an individualauthorized to act on behalf of Customer, or in connection with UBS-SLLC’s recovery of any such costs, losses, penalties, fines, taxesand damages.
This Agreementmay be terminated at any time by Customer or UBS-S LLC by writtennotice to the other; provided, however, that any such termination shallnot relieve either party of any obligations in connection with anydebit or credit balance in the Account or other liability or obligationarising or accruing prior to such termination. In the event of suchnotice, Customer shall either close out open positions in the Accountor arrange for such open positions to be transferred to another futurescommission merchant. Upon satisfaction by Customer of all ofCustomer’s Liabilities,
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UBS-S LLC shall transfer to another futurescommission merchant all Contracts, if any, then held for the Account,and shall transfer to Customer or to another futures commissionmerchant, as Customer may instruct, all cash, securities and otherproperty held in the Account, whereupon this Agreement shallterminate.
|13.||LIQUIDATION OF OFFSETTINGPOSITIONS|
UBS-S LLC shall liquidate any Contract for which anoffsetting order is entered by Customer, unless Customer instructsUBS-S LLC not to liquidate such Contract and to maintain the offsettingContracts as open positions; provided, that UBS-S LLC shall notbe obligated to comply with any such instructions given by Customer ifCustomer fails to provide UBS-S LLC with any representations,documentation or information reasonably requested by UBS-S LLC or if,in UBS-S LLC’s reasonable judgment, any failure to liquidate suchoffsetting Contracts against each other would result in a violation ofApplicable Law.
(a) All confirmations, purchase and salenotices, correction notices and account statements (collectively,‘‘Reports’’) shall be submitted to Customer andshall be conclusive and binding on Customer unless Customer notifiesUBS-S LLC of any objection thereto prior to the opening of trading onthe contract market on which such transaction occurred on the businessday following the day on which Customer receives such Report;provided, that with respect to monthly statements, Customer maynotify UBS-S LLC of any objection thereto within five business daysafter receipt of such monthly statement, provided the objection couldnot have been raised at the time any prior Report was received byCustomer as provided for above. Any such notice of objection, if givenorally to UBS-S LLC, shall immediately (and in no event later thanwithin one business day) be confirmed in writing by Customer.
(b) Customer consents to the electronic delivery of Reportsvia facsimile, electronic mail, computer networks (e.g., local areanetworks, commercial on-line services and SwisKey) or other electronicmeans agreed upon by Customer and UBS-S LLC. Customer may revoke itsconsent at any time upon reasonable notice to UBS-SLLC.
|15.||FOREIGN CURRENCY TRANSACTIONS|
In theevent that the Customer directs UBS-S LLC to enter into any Contract onan exchange on which such transactions are effected in a currency otherthan the U.S. dollar, any profit or loss arising as a result of afluctuation in the exchange rate affecting such currency will beentirely for the account and risk of the Customer. All initial andsubsequent deposits for margin purposes, and the return to the Customerof any funds, are expected to be made in the currency of contractsettlement. Should the Customer elect to deposits funds other than thecurrency of settlement or instruct UBS-S LLC to convert funds which arealready on deposit in another currency, UBS-S LLC shall debit or creditthe Account of Customer at a rate of exchange determined by UBS-S LLCin its sole discretion on the basis of the then prevailing market rateof exchange for such foreign currency.
UBS-S LLC is not acting as afiduciary, foundation manager, commodity pool operator, commoditytrading advisor or investment adviser in respect of any Account openedby Customer and UBS-S LLC shall have no responsibility hereunder forcompliance with any law or regulation governing the conduct offiduciaries, foundation managers, commodity pool operators, commoditytrading advisors or investment advisers. UBS-S LLC shall at all timesexercise due diligence in the transmission, execution and clearing oforders for the account.
All advicecommunicated by UBS-S LLC with respect to any Account opened byCustomer hereunder is incidental to the conduct of UBS-S LLC’sbusiness as a futures commission merchant,
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does not constitute an offer to sell or thesolicitation of an offer to buy any Contract, and such advice will notserve as the primary basis for any decision by or on behalf ofCustomer. UBS-S LLC shall have no discretionary authority, power orcontrol over any decisions made by or on behalf of Customer in respectof the Account, regardless of whether Customer relies on the advice ofUBS-S LLC in making any such decision. Any such advice, although basedupon information from sources UBS-S LLC believes to be reliable, may beincomplete or inaccurate, may not be verified and may be changedwithout notice to Customer. UBS-S LLC makes no representation as to theaccuracy, completeness, reliability or prudence of any such advice orinformation or as to the tax consequences of Customer’s futuresor options trading. UBS-S LLC is a separate and independent corporateentity, distinct from its affiliates and it shall be free to purchaseand sell Contracts for any affiliates without limitation orrestriction. The relationship between UBS-S LLC and Customer asdescribed herein shall not affect any provisions of credit to Customerby UBS AG or any other subsidiary of UBS AG. Moreover, Customeracknowledges that UBS-S LLC and its managing directors, officers,employees and affiliates may take or hold positions in, or advise othercustomers concerning, contracts which are the subject of advice fromUBS-S LLC to Customer. The positions and advice of UBS-S LLC and itsmanaging directors, officers, employees and affiliates may beinconsistent with or contrary to positions of, and the advice given by,UBS-S LLC to Customer.
|18.||FINANCIAL AND OTHERINFORMATION|
Customer agrees to furnish appropriate financialstatements upon request to UBS-S LLC and to inform UBS-S LLC of anymaterial changes in the financial position of Customer and to furnishpromptly such other information concerning Customer as UBS-S LLCreasonably requests. UBS-S LLC is authorized from time to time tocontact banks, financial institutions and credit agencies forverification of the financial condition of Customer. Customer agreesthat UBS-S LLC may, from time to time, share with its branches,agencies and affiliates, certain non-public information concerningCustomer..
Either party in its soleand absolute discretion, may record, on tape or otherwise, anytelephone conversation between UBS-S LLC and Customer involving theirrespective officers, agents and employees. Both parties hereby agreeand consent to such recording, with or without the use of an automatictone warning device, and each waives any rightS IT may have to objectto the use or admissibility into evidence of such recording in anylegal proceeding between Customer and UBS-S LLC or in any otherproceeding to which IT is a party or in which its records aresubpoenaed. Each party acknowledges that the other party may erase suchrecordings after a reasonable period oftime.
|20.||ACCOUNTS INTRODUCED BY OTHER BROKERS|
IfUBS-S LLC is carrying the Account of Customer as executing or clearingbroker by arrangement with another broker through whose courtesy theAccount has been introduced to UBS-S LLC, then, until receipt fromCustomer of written notice to the contrary, UBS-S LLC may accept fromsuch other broker, without inquiry or investigation by UBS-S LLC, (i)orders for the purchase or sale in the Account of Contracts, and (ii)any other instructions concerning the Account. UBS-S LLC shall not beresponsible or liable for any acts or omissions of such other broker orits employees.
If any provisionof this Agreement is, or at any time becomes, inconsistent with anypresent or future Applicable Law, and if any of these authorities havejurisdiction over the subject matter of this Agreement, theinconsistent provision shall be deemed superseded or modified toconform with such law, rule or regulation but in all other respects,this Agreement shall continue and remain in full force andeffect.
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ThisAgreement shall be binding on and inure to the benefit of the partiesand their successors. UBS-S LLC shall have the right to transfer orassign this Agreement (and thereby the Account) to any successor entityor to another properly registered futures commission merchant only uponprior written consent of Customer.
This Agreement contains the entire agreement betweenthe parties and supersedes any prior agreements between the parties asto the subject matter hereof. No provision of this Agreement shall inany respect be waived, altered, modified, or amended unless suchwaiver, alteration, modification or amendment is signed by the partyagainst whom such waiver, alteration, modification or amendment is tobe enforced.
|24.||INSTRUCTIONS, NOTICES ORCOMMUNICATIONS|
(a) Except as specifically otherwiseprovided in this Agreement, all instructions, notices or othercommunications may be oral or written. All oral instructions, unlesscustom and usage of trade dictate otherwise, shall be promptlyconfirmed in writing. All written instructions, notices or othercommunications shall be addressed asfollows:
|(i)||if to UBS-S LLC:|
677 Washington Blvd
Stamford, CT 06901
Attn:Client Services Representative
|(ii)||if toCustomer at the address as indicated on the New Account InformationForm.|
(b) All instructions, notices or othercommunications sent, whether by mail, telex, facsimile transmission orotherwise, shall be deemed given when deposited in the mail, or sent bytelex or facsimile transmission or other electronic means acceptable tothe recipient thereof, and deemed delivered to Customer personally,whether actually received by Customer or not. All instructions, noticesor other communications to UBS-S LLC shall be directed to UBS-SLLC’s office at the address listed above or such other addressesas UBS-S LLC may hereafter direct to Customer inwriting.
|25.||RIGHTS AND REMEDIES CUMULATIVE|
Allrights and remedies arising under this Agreement as amended andmodified from time to time are cumulative and not exclusive of anyrights or remedies which may be available at law orotherwise.
No failure on the part ofUBS-S LLC to exercise, and no delay in exercising, any contractualright will operate as a waiver thereof, nor will any single or partialexercise by UBS-S LLC of any right preclude any other or futureexercise thereof or the exercise of any other partialright.
THE INTERPRETATION ANDENFORCEMENT OF THIS AGREEMENT AND THE RIGHTS, OBLIGATIONS AND REMEDIESOF THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITHTHE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO PRINCIPLES OFCHOICE OF LAW.
Any litigation between UBS-S LLC and Customerrelating to this Agreement or transactions hereunder shall take placein the Courts of the State of Illinois located in Cook County or in the
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United States District Court for theNorthern District of Illinois, and the parties agree to submit to suchexclusive jurisdiction. Customer consents to the service of process bythe mailing to Customer of copies of such court filing by certifiedmail to the address of Customer as it appears on the books and recordsof UBS-S LLC, such service to be effective ten days after mailing.Customer hereby waives irrevocably any immunity to which it mightotherwise be entitled in any arbitration, action at law, suit in equityor any other proceeding arising out of or based on this Agreement orany transaction in connection herewith.
|29.||WAIVER OFJURY TRIAL|
BOTH PARTIES hereby waive trial by jury in any actionor proceeding arising out of or relating to this Agreement or anytransaction in connection herewith.
This Agreement shall not be deemed to be accepted byUBS-S LLC or become a binding contract between Customer and UBS-S LLCuntil approved by a duly authorized officer of UBS-S LLC inwriting.
(a) CUSTOMER HEREBY ACKNOWLEDGES THAT ITHAS RECEIVED AND UNDERSTANDS THE FOLLOWING DISCLOSURE STATEMENTSFURNISHED HEREWITH (check where applicable):
|()||Risk Disclosure Statement for Futures andOptions|
(b) (The following must be completed byCustomers who will engage in transactions for hedging purposesonly.) Customer has indicated on the New Account InformationForm that the Account is for hedging purposes. Customer represents thatit is familiar with CFTC and exchange laws, rules, regulations, andadvisories concerning hedging. Unless Customer specifically notifiesUBS-S LLC to the contrary in writing with respect to any transaction,all transactions effected for the Account will be bona fide hedgingtransactions as described in Section 4a of the Commodity Exchange Act,as amended, and Rule 1.3(z) promulgated thereunder (a copy of which maybe obtained from UBS-S LLC upon request). As such, in accordance withCFTC Rule 190.06, Customer may specify whether, in the unlikely eventof UBS-S LLC’s bankruptcy, Customer prefers that the trusteeliquidate open commodity contracts in the Account without seekingCustomer’s instructions. Accordingly, in the event of UBS-SLLC’s bankruptcy, the trustee should (check one of thefollowing):
|( )||Attempt to contact Customer forinstructions regarding the disposition of open contracts in theAccount.|
|( )||Liquidate open commodity contractswithout seeking Customer’s instructions.|
This instructionmay be changed at any time by written notice sent to UBS-SLLC.
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IN WITNESS WHEREOF, Customer has executedthis Agreement on the date indicatedbelow.
ACCEPTEDBY UBS SECURITIES LLC
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CONSENT TO TRANSFER FUNDS
Theundersigned acknowledges that UBS-S LLC may, until it receives awritten notice of revocation with respect thereto, in its sole andabsolute discretion and without prior notice to the undersigned,transfer any funds, securities, commodities, Contracts or otherproperty from any account maintained by the undersigned to any otheraccount of the undersigned maintained by UBS-S LLC or any of itsaffiliates. UBS-S LLC will promptly confirm in writing each transfer offunds, securities, commodities, Contracts or other property pursuanthereto. UBS-S LLC shall not be liable for making or failing to make anytransfer authorized hereby.
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POWER OF ATTORNEY LIMITED TO PURCHASESAND SALES
OF FUTURES CONTRACTS
The undersigned herebyauthorizes (the ‘‘Advisor’’) as his/her agent and attorneyto buy, sell and trade in commodities and/or futures contracts andoptions thereon, in accordance with UBS SECURITIES LLC(‘‘UBS-S LLC’’) terms and conditions for theundersigned’s account and risk and in the undersigned’sname through UBS-S LLC as brokers. The undersigned hereby agrees toindemnify and hold UBS-S LLC harmless from and to pay UBS-S LLCpromptly on demand any and all losses arising therefrom or debitbalance due thereon. The undersigned confirms it has received a copy ofAdvisor’s Disclosure Document. If not, the undersigned hasattached a written explanation of the reason(s) therefor.
In allsuch purchases, sales or trades UBS-S LLC is authorized to follow theinstructions of the Advisor in every respect concerning theundersigned’s account with UBS-S LLC; and the Advisor isauthorized to act for the undersigned and on the undersigned’sbehalf in the same manner and with the same force and effect as theundersigned might or could do with respect to such purchases, sales ortrades as well as with respect to all other things necessary orincidental to the furtherance or conduct of such purchases, sales ortrades. The undersigned understands that UBS-S LLC is in no wayresponsible for any loss to the undersigned occasioned by the actionsof the Advisor and that UBS-S LLC does not, by implication orotherwise, endorse the operating methods of the Advisor. Theundersigned hereby ratifies and confirms any and all transactions withUBS-S LLC heretofore or hereafter made by the Advisor for theundersigned’s account.
This authorization and indemnity isin addition to (and in no way limits or restricts) any rights whichUBS-S LLC may have under any other agreement or agreements between theundersigned and UBS-S LLC. This authorization and indemnity is acontinuing one and shall remain in full force and effect until revokedby the undersigned by a written notice addressed to UBS-S LLC but suchrevocation shall not affect any liability in any resulting transactioninitiated prior to such revocation. This authorization and indemnityshall inure to the benefit of UBS-S LLC and any successors orassigns.
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COMMODITY TRADING ADVISOR
This is to acknowledge that I have received and read acopy of the
20 Disclosure Document of
describing the trading program pursuant to which
willdirect my account.
READ AND ACKNOWLEDGEDBY:
COMMODITY TRADING ADVISOR REGISTRATIONEXEMPTION
I am not required to provide a disclosuredocument pursuant to CFTC Regulation 4.31 because I am not required toregister as a commodity trading advisor pursuant to section 4 of theCommodity Exchange Act because during the preceding 12 months I havenot furnished commodity trading advise to more that 15 persons and I donot hold myself out generally to the public as a commodity tradingadvisor.