Exhibit 10.5
FORM OF CUSTOMER AGREEMENT
This Customer Agreement ("Agreement") between UBS Securities LLC ("UBS-S
LLC") and ____________________ ("Customer") shall govern the purchase and sale
by UBS-S LLC of certain futures contracts, options thereon and options
contracts for the account and risk of Customer through one or more accounts
carried by UBS-S LLC on behalf and in the name of Customer (collectively, the
"Account"), as more fully described below.
1. UBS-S LLC'S AUTHORIZATION TO ACT AS BROKER
Customer authorizes UBS-S LLC, acting through employees and agents
selected by it in its sole discretion, to purchase and sell for the Account
contracts for certain futures contracts, options thereon and options contracts
for which UBS-S LLC has notified Customer that UBS-S LLC is prepared to
execute transactions (collectively, "Contracts") within or outside the United
States of America in accordance with Customer's instructions.
2. CUSTOMER'S REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties. Customer represents and warrants as
follows:
(i) Authority. Customer has full right, power and authority to
enter into this Agreement and the Contracts, and the person executing
this Agreement on behalf of Customer is authorized to do so. This
Agreement is binding on Customer and enforceable against Customer in
accordance with its terms;
(ii) Lawful Agreement. Customer may lawfully establish and open
the Account for the purpose of effecting purchases and sales of
Contracts through UBS-S LLC. Transactions entered into pursuant to this
Agreement will not violate any "Applicable Law" (as defined below) to
which Customer is subject or any agreement to which Customer is subject
or a party and the execution, delivery and performance of this Agreement
by Customer require no action by or in respect of or filing with any
governmental body, agency or official;
(iii) Customer's Statements. The statements made to UBS-S LLC by
Customer regarding Customer's futures trading (including any financial
statements submitted therewith) are true and correct to the best of
Customer's knowledge;
(iv) Interest or Control of Account. If any person or entity has,
or during the term of this Agreement will have, any interest in the
Account other than Customer, Customer hereby agrees to so notify UBS-S
LLC immediately (and no later than within one business day); and
(v) Designation. If Customer is not a citizen or resident of the
United States, Customer has been informed by UBS-S LLC of Commodity
Futures Trading Commission ("CFTC") Regulations concerning the
designation of a futures commission merchant as the agent of foreign
brokers, customers of a foreign broker and foreign traders for certain
purposes as set forth in CFTC Regulation ss.15.05 and concerning
special calls for information from futures commission merchants, foreign
brokers and members of contract markets as set forth in CFTC Regulation
ss.21.03.
(b) Notice of Change. Customer shall immediately (and no later than
within one business day) notify UBS-S LLC in writing if any of the
representations contained herein materially change or cease to be true and
correct.
3. APPLICABLE LAW
The Account and all transactions and agreements in respect of the
Account shall be subject to the regulations of all applicable Federal, state
and self-regulatory agencies or authorities, including but not limited to: (a)
the provisions of the Commodity Exchange Act, as amended, and any rules,
regulations, orders and interpretations promulgated thereunder by the CFTC;
(b) the constitution, by-laws, rules, regulations, orders and interpretations
of the relevant board of trade, trading facility, market, or exchange and its
clearing house, if any (each, an "exchange") on or subject to the rules of
which such transactions are executed and/or cleared, and any relevant
registered futures association, including, without limitation, the National
Futures Association ("NFA"); and (c) custom and usage of the trade. All such
provisions, rules, regulations, orders, interpretations, constitution,
by-laws, custom and usage, as in effect from time to time, are hereinafter
collectively referred to as "Applicable Law."
4. RELIANCE ON INSTRUCTIONS
UBS-S LLC 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, including, but not limited
to, any individual identified in writing by 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.
5. ACCEPTANCE OF ORDERS; POSITION LIMITS
(a) Acceptance of Orders. UBS-S LLC shall have the right to limit the
size of open positions (net or gross) of Customer with respect to the Account
at any time and to refuse acceptance of orders to establish new positions
(whether such refusal or limitation is required by, and whether such refusal
is based on position limits imposed under, Applicable Law). UBS-S LLC shall
immediately notify Customer of its rejection of any order. Unless specified by
Customer, UBS-S LLC may designate the exchange or trading system on which it
will attempt to execute orders.
(b) Position Limits. Customer shall not, either alone or in combination
with others, violate any position or exercise limit established by or under
Applicable Law. If Customer intends at any time to exceed such position
limits, Customer shall cause to be filed an application with the CFTC or the
relevant exchange requesting authorization for Customer to exceed such
position limits and shall provide UBS-S LLC with a copy of such application
and such other information as UBS-S LLC may reasonably request with respect to
such application. Customer shall indemnify and hold UBS-S LLC harmless from
and against all claims, damages, fines or assessments of any kind whatsoever,
including reasonable attorneys' fees in connection with the
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defense thereof, made and incurred in connection with any violation by
Customer of its obligations under this Section 5(b).
6. ORIGINAL AND VARIATION MARGIN; PREMIUMS; OTHER CONTRACT OBLIGATIONS
With respect to every Contract purchased, sold or cleared for the
Account, Customer shall make, or cause to be made, all applicable original
margin, variation margin, intra-day margin and premium payments, and perform
all other obligations attendant to transactions or positions in such
Contracts, as may be required by Applicable Law or by UBS-S LLC in its sole
and absolute discretion. 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-S LLC may
exceed the margin requirements set by any exchange on which transactions are
executed or cleared or caused to be executed or cleared by UBS-S LLC or any
agent thereof for Customer and may be changed by UBS-S LLC without prior
notice to Customer. Except as otherwise provided herein, all such margin and
premium payments 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 required margin, or
Customer fails timely to make any premium payments, UBS-S LLC may at any time,
without further notice to Customer, close out Customer's open position in
whole or in part and take any action it deems appropriate.
7. SECURITY INTEREST AND RIGHTS RESPECTING COLLATERAL
All Contracts, cash, securities, and/or other property of Customer,
including all proceeds of all such property such as profits from Account
transactions (collectively, the "Collateral") now or at any future time in the
Account or otherwise held by UBS-S LLC or its affiliates, any exchange through
which trades of the Account are executed and/or positions are held, or any
other entity authorized to act as an agent of UBS-S LLC or Customer, hereby
are pledged to UBS-S LLC and shall be subject to a first priority lien and
security interest in UBS-S LLC's favor to secure any indebtedness or other
amounts at any time owing from Customer to UBS-S LLC, and to secure any and
all other obligations and liabilities of Customer to UBS-S LLC (collectively,
the "Customer's Liabilities"). Customer hereby grants UBS-S LLC the right to
borrow, pledge, repledge, hypothecate, rehypothecate, loan or invest any of
the Collateral without notice to Customer, and without any obligation to pay
or to account to Customer for any interest, income or benefit that may be
derived therefrom. UBS-S LLC shall be under no obligation to deliver to
Customer the identical Collateral in the Account, but shall only be under an
obligation to deliver to Customer Collateral of like or equivalent kind and
amount. The rights of UBS-S LLC set forth above shall be qualified by any
applicable requirements for segregation of customer's property under
Applicable Law.
8. PAYMENT OBLIGATIONS OF CUSTOMER
(a) Charges to the Account. With respect to every Contract purchased,
sold or cleared for the Account, Customer shall pay UBS-S LLC upon demand and
UBS-S LLC hereby is authorized to charge Customer's Account for: (i) all
brokerage charges, give-up fees, commissions and service fees as UBS-S LLC may
from time to time charge; (ii) all exchange,
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clearing member, NFA or CFTC fees or charges, fines or penalties; (iii) any
tax imposed on such transactions by any competent taxing authority; (iv) the
amount of any trading losses in the Account; (v) any debit balance or
deficiency in the Account; (vi) interest and service charges on any debit
balances or deficiencies in the Account, any advances or any loan (including
interest on the amount of variation margin 1calls, until satisfaction of such
calls, when the Customer posts U.S. Treasury Bills for original margin
purposes), at the rate customarily charged by UBS-S LLC (which may be at the
prevailing and/or allowable rates according to the laws of the State of
Illinois) from the day any such deficit was incurred to (but not including)
the day of payment (calculated on the basis of a 360 day year and for the
actual number of days elapsed for all deficits, except for those denominated
in foreign currencies for which generally accepted accounting principles
require that the interest rate shall be calculated otherwise), together with
costs and reasonable attorneys' fees incurred in collecting any such deficit;
(vii) all storage and delivery service fees; and (viii) any other amounts owed
by Customer to UBS-S LLC with respect to the Account or any transactions
therein.
(b) Payment in U.S. Dollars. Any and all payment obligations of
Customer, if not deducted from Customer's Account as permitted hereunder,
shall be made upon demand in immediately available U.S. dollars to UBS-S LLC
or at such other place and at such time and in such manner as UBS-S LLC
notifies Customer. The obligation of Customer to make all payments due
hereunder shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment, which is expressed in or converted into any other
currency other than U.S. dollars, except to the extent that such tender or
recovery shall result in the actual receipt by UBS-S LLC of the full amount of
such U.S. dollars expressed to be payable in respect of such amounts. Customer
agrees that its obligations to make payment in U.S. dollars as aforesaid shall
be enforceable as an alternative or additional cause of action for the purpose
of recovery of the amount (if any) by which such actual receipt shall fall
short of the full amount of U.S. dollars expressed to be payable in respect of
such amount due hereunder, and shall not be affected by judgment being
obtained for other sums due hereunder.
(c) Setoff. Any Collateral may at any time or from time to time without
notice or compliance with any condition precedent (which notice hereby is
expressly waived) be setoff, appropriated and applied by UBS-S LLC against any
and all payment obligations of Customer hereunder including, but not limited
to, any deficit balance or margin deficiency in the Account (or any
sub-account within the Account), in such manner as UBS-S LLC in its discretion
may determine.
(d) Netting. UBS-S LLC may at any time or from time to time without
notice or compliance with any condition precedent (which notice hereby is
expressly waived) net (i) any Collateral held in or on behalf of the Account
(or any sub-account within the Account) or liabilities or payment obligations
of UBS-S LLC to Customer or the Account (or any sub-account within the
Account) against (ii) any liabilities or payment obligations of Customer
thereunder, including, but not limited to any deficit balance or margin
deficiency in the Account (or any sub-account within the Account), paying to
Customer only the amount by which the aggregate amount of (i) above exceeds
the aggregate amount of (ii) above.
(e) Gross-Up. All payments made by Customer to UBS-S LLC hereunder will
be made without setoff or counterclaim free and clear and without deduction or
withholding for, any
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present or future taxes, levies, assessments or other charges of whatever
nature, now or hereinafter imposed by any jurisdiction or by any agency, state
or other political subdivision or taxing authority thereof or therein, and all
interest, penalties, or similar liabilities with respect thereto
(collectively, "Taxes"). If any Taxes are so levied or imposed, Customer
agrees to pay the full amount of such Taxes, and such additional amounts as
may be necessary so that every net payment of all amounts due hereunder, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein. Customer will furnish to UBS-S LLC, within
thirty days after the date the payment of any Taxes is due pursuant to
Applicable Law, certified copies of tax receipts evidencing such payment by
Customer.
9. DELIVERY PROCEDURES; OPTIONS ALLOCATION PROCEDURE
(a) Instructions. Customer will provide UBS-S LLC with instructions
either to liquidate Contracts previously established by Customer, make or take
delivery under any such Contracts, or exercise options entered into by
Customer, within such time limits as may be specified by UBS-S LLC. UBS-S LLC
shall have no responsibility to take any action on behalf of Customer,
including, without limitation, exercising option Contracts, unless and until
UBS-S LLC receives oral or written instructions reasonably acceptable to UBS-S
LLC indicating the action UBS-S LLC is to take. Any instructions, if given
orally to UBS-S LLC, shall immediately be confirmed in writing by Customer.
Funds sufficient to take delivery pursuant to such Contract or deliverable
grade commodities to make delivery pursuant to such Contract must be delivered
to UBS-S LLC at such time and location as UBS-S LLC may require in connection
with any delivery.
(b) Allocation Procedures. Short option Contracts may be subject to
exercise at any time. Exercise notices received by UBS-S LLC with respect to
option Contracts sold by Customer may be allocated to Customer pursuant to a
random allocation procedure, and Customer shall be bound by any such
allocation of exercise notices. Such notices may be allocated to Customer
after the close of trading on the day on which such notices have been
allocated to UBS-S LLC by the applicable exchange. In the event of any
allocation to Customer, unless UBS-S LLC has previously received instructions
from Customer, UBS-S LLC's sole responsibility shall be to use commercially
reasonable efforts to notify Customer by telephone of such allocation at any
time before trading commences on the first day on which such option Contracts
are traded on the applicable exchange following the day on which the
applicable contract market has allocated such notices to UBS-S LLC.
(c) Failure to Provide Instructions. If Customer fails to comply with
any of the foregoing obligations, UBS-S LLC may, in its sole and absolute
discretion, liquidate any open positions, make or receive delivery of any
commodities or instruments, or exercise or allow the expiration of any
options, in such manner and on such terms as UBS-S LLC, in its sole and
absolute discretion, deems necessary or appropriate. Any such action taken
shall be in the sole and absolute discretion of UBS-S LLC and Customer shall
remain fully liable for all costs, losses, expenses, liabilities and damages
(including special, indirect and consequential damages, penalties and fines)
which UBS-S LLC may be required to pay or which it has sustained in connection
with such transactions and for any remaining debit balance in the Account.
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10. EVENTS OF DEFAULT; UBS-S LLC'S REMEDIES
(a) Events of Default. As used herein, each of the following shall be
deemed an "Event of Default": (i) the commencement of a case under any
bankruptcy, insolvency or reorganization law or similar law effecting
creditors' rights of any jurisdiction, or the filing of a petition for the
appointment of a receiver by or against Customer, an assignment made by
Customer for the benefit of creditors, an admission in writing by Customer
that it is insolvent or is unable to pay its debts when they mature, or the
suspension by the Customer of its usual business or any material portion
thereof; (ii) the issuance of any warrant or order of attachment against the
Account or the levy of a judgment against the Account; (iii) if Customer is an
employee benefit plan, the termination of Customer or the filing by Customer
of a notice of intent to terminate with the Pension Benefit Guaranty
Corporation (or other similar governmental agency or body of any
jurisdiction), or the receipt of a notice of the Pension Benefit Guaranty
Corporation's (or other similar governmental agency's or body's) intent to
terminate Customer, or the inability of Customer to pay benefits under the
relevant employee benefit plan when due; (iv) the failure by Customer to
deposit or maintain margins, to pay required premiums, or to make payments
required by Section 8 hereof; (v) UBS-S LLC in its sole and absolute
discretion determines that the Collateral in Customer's Account, regardless of
current market quotations, is inadequate to secure the Account and Customer's
obligations to UBS-S LLC hereunder; (vi) the Account shall incur a deficit
balance; (vii) the failure by Customer to perform, in any material respect,
its obligations respecting delivery, exercise or a notice of allocation of
exercise, payment for delivery, or settlement under Contracts held in the
Account (it being understood that any failure to comply with any Applicable
Law shall be deemed material); or (viii) the failure by Customer, in any
material respect, to perform any of its other obligations hereunder (it being
understood that any failure to comply with any Applicable Law shall be deemed
material).
(b) Remedies. Upon the occurrence of an Event of Default or in the event
UBS-S LLC, in its sole and absolute discretion, considers it necessary for its
protection, UBS-S LLC shall have the right, in addition to any other remedy
available to UBS-S LLC at law or in equity, and in addition to any other
action UBS-S LLC may deem appropriate under the circumstances, to liquidate,
spread or roll-forward any or all open Contracts held in or for the Account,
sell any or all of the securities or other property of Customer held by UBS-S
LLC and its affiliates and to apply the proceeds thereof to any amounts owed
by Customer to UBS-S LLC, borrow or buy any options, securities, Contracts or
other property for the Account and cancel any unfilled orders for the purchase
or sale of Contracts for the Account, or take such other or further actions as
UBS-S LLC, in its reasonable discretion, deems necessary or appropriate for
its protection, all without demand for margin and without notice or
advertisement. In the event UBS-S LLC's position would not be jeopardized
thereby, UBS-S LLC will make reasonable efforts under the circumstances to
notify Customer prior to taking any such action. Any such liquidation, sale,
purchase, borrowing or cancellation shall be made at the discretion of UBS-S
LLC on, through or subject to the rules of an exchange, on other markets, at
public auction or by private transaction, including, without limitation, by an
exchange for physical transaction or similar transaction wherein UBS-S LLC may
act as agent and/or as principal in such transaction. Customer acknowledges
and agrees that a prior demand or margin call of any kind from UBS-S LLC or
prior notice from UBS-S LLC shall not be considered a waiver of UBS-S LLC's
right to take any action without notice or demand. In any transaction
described above, UBS-S LLC may sell any Collateral to itself or its affiliates
or buy any Collateral from itself or its affiliates. UBS-
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S LLC may, to the extent permitted by law, purchase the whole or any part
thereof free from any right of redemption. In all cases, Customer shall remain
liable for and shall pay to UBS-S LLC on demand the amount of any deficiency
in its Account resulting 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 with the exercise of its
remedies and the recovery of any such costs, losses, penalties, fines, taxes
and damages.
11. EXCULPATION AND INDEMNIFICATION
(a) Exculpation. Neither UBS-S LLC nor any of its managing directors,
officers, employees or affiliates shall be liable for any costs, losses,
penalties, fines, Taxes and damages sustained or incurred by Customer other
than as a result of UBS-S LLC's gross negligence or reckless or intentional
misconduct. In no event will UBS-S LLC be liable to Customer for
consequential, incidental or special damages. Without limiting the generality
of the foregoing, neither UBS-S LLC nor any of its managing directors,
officers, employees or affiliates shall have any responsibility or liability
to Customer hereunder for any costs, losses, penalties, fines, Taxes and
damages, including consequential, incidental or special damages, sustained or
incurred by Customer, (i) in connection with the performance or
non-performance by any exchange, clearing firm or other third party (including
other exchange members, banks and floor brokers) to UBS-S LLC of its
obligations in respect of any Contract or other property of Customer; (ii) as
a result of any prediction, recommendation or advice made or given by a
representative of UBS-S LLC whether or not made or given at the request of
Customer; (iii) as a result of any delay in the performance or non-performance
of any of UBS-S LLC's obligations hereunder to the extent that losses arising
therefrom are, directly or indirectly, caused by the occurrence of any
contingency beyond the control of UBS-S LLC including, but not limited to, the
unscheduled closure of an exchange or contract market or delays in the
transmission of orders due to breakdowns or failures of transmission or
communication facilities, execution, and/or trading facilities or other
systems; (iv) as a result of any action taken by UBS-S LLC, its managing
directors, officers, employees, agents (including other clearing firms through
which transactions are effected on behalf of Customer) or floor brokers, to
comply with Applicable Law; or (v) for any acts or omissions of those neither
employed nor supervised by UBS-S LLC. Moreover, UBS-S LLC shall have no
responsibility for compliance by Customer with any law or regulation governing
Customer's conduct as a fiduciary, if applicable.
(b) Force Majeure and Acts of State. In the event that UBS-S LLC's
performance of any of its obligations and undertakings hereunder shall be
interrupted or delayed by any occurrence not occasioned by the conduct of
either party hereto, whether such occurrence shall be an act of God or the
common enemy or the result of war, riot, fire, flood, civil commotion, acts of
terrorism, sovereign conduct or other acts of State, or the act or conduct of
any person or persons not party or privy hereto, then UBS-S LLC shall be
excused from performance for such period of time as is reasonably necessary
after such occurrence to remedy the effects thereof and neither UBS-S LLC nor
any of its managing directors, officers, employees or affiliates shall be
directly or indirectly responsible for losses occasioned thereby.
(c) Electronic Trading Systems Waiver. In consideration of UBS-S LLC
making electronic trading systems or services available, in whole or in part,
directly or indirectly,
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Customer agrees that neither UBS-S LLC, the electronic trading systems or
services provided, exchanges whose products may be traded on or through such
electronic trading systems or services, nor any other entities controlling,
controlled by or under common control with such entities, nor their respective
directors, officers, or employees, shall be liable for any losses, damages,
costs or expenses (including, but not limited to, loss of profits, loss of
use, incidental or consequential damages), regardless of the cause, arising
from any fault, delay, omission, inaccuracy or termination of the electronic
trading systems or services, or the inability to enter or cancel orders, or
any other cause in connection with the furnishing, performance, maintenance,
or use of or inability to use all or any part of the electronic trading
systems or services. The foregoing shall apply regardless of whether a claim
arises in contract, tort, negligence, strict liability or otherwise.
(d) Indemnification of UBS-S LLC. Customer agrees to indemnify and hold
UBS-S LLC and its managing directors, officers, employees and affiliates
harmless from and against any and all costs (including reasonable attorneys'
fees), losses, penalties, fines, taxes and damages incurred by UBS-S LLC as a
result of any action taken or not taken by UBS-S LLC in reliance upon any
instructions, notices and communications which UBS-S LLC believes to be that
of an individual authorized to act on behalf of Customer, or in connection
with UBS-S LLC's recovery of any such costs, losses, penalties, fines, taxes
and damages.
12. TERMINATION
This Agreement may be terminated at any time by Customer or UBS-S LLC by
written notice to the other; provided, however, that any such termination
shall not relieve either party of any obligations in connection with any debit
or credit balance in the Account or other liability or obligation arising or
accruing prior to such termination. In the event of such notice, Customer
shall either close out open positions in the Account or arrange for such open
positions to be transferred to another futures commission merchant. Upon
satisfaction by Customer of all of Customer's Liabilities, UBS-S LLC shall
transfer to another futures commission merchant all Contracts, if any, then
held for the Account, and shall transfer to Customer or to another futures
commission merchant, as Customer may instruct, all cash, securities and other
property held in the Account, whereupon this Agreement shall terminate.
13. LIQUIDATION OF OFFSETTING POSITIONS
UBS-S LLC shall liquidate any Contract for which an offsetting order is
entered by Customer, unless Customer instructs UBS-S LLC not to liquidate such
Contract and to maintain the offsetting Contracts as open positions; provided,
that UBS-S LLC shall not be obligated to comply with any such instructions
given by Customer if Customer 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 such
offsetting Contracts against each other would result in a violation of
Applicable Law.
14. REPORTS AND OBJECTIONS
(a) All confirmations, purchase and sale notices, correction notices and
account statements (collectively, "Reports") shall be submitted to Customer
and shall be conclusive and
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binding on Customer unless Customer notifies UBS-S LLC of any objection
thereto prior to the opening of trading on the contract market on which such
transaction occurred on the business day following the day on which Customer
receives such Report; provided, that with respect to monthly statements,
Customer may notify UBS-S LLC of any objection thereto within five business
days after receipt of such monthly statement, provided the objection could not
have been raised at the time any prior Report was received by Customer as
provided for above. Any such notice of objection, if given orally to UBS-S
LLC, shall immediately (and in no event later than within one business day) be
confirmed in writing by Customer.
(b) Customer consents to the electronic delivery of Reports via
facsimile, electronic mail, computer networks (e.g., local area networks,
commercial on-line services and SwisKey, Abacus or any similar online
statement delivery system) or other electronic means agreed upon by Customer
and UBS-S LLC. Customer may revoke its consent at any time upon reasonable
notice to UBS-S LLC.
15. FOREIGN CURRENCY TRANSACTIONS
In the event that the Customer directs UBS-S LLC to enter into any
Contract on an exchange on which such transactions are effected in a currency
other than the U.S. dollar, any profit or loss arising as a result of a
fluctuation in the exchange rate affecting such currency will be entirely for
the account and risk of the Customer. All initial and subsequent deposits for
margin purposes, and the return to the Customer of any funds, are expected to
be made in the currency of contract settlement. Should the Customer elect to
deposits funds other than the currency of settlement or instruct UBS-S LLC to
convert funds which are already on deposit in another currency, UBS-S LLC
shall debit or credit the Account of Customer at a rate of exchange determined
by UBS-S LLC in its sole discretion on the basis of the then prevailing market
rate of exchange for such foreign currency. Customer authorizes UBS-S LLC to
deposit Customer funds in depositories located outside of the United States
consistent with the requirements of Applicable Law.
16. UBS-S LLC'S RESPONSIBILITY
UBS-S LLC is not acting as a fiduciary, foundation manager, commodity
pool operator, commodity trading advisor or investment adviser in respect of
any Account opened by Customer and UBS-S LLC 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.
17. ADVICE
All advice communicated by UBS-S LLC with respect to any Account opened
by Customer hereunder is incidental to the conduct of UBS-S LLC's business as
a futures commission merchant, does not constitute an offer to sell or the
solicitation of an offer to buy any Contract, and such advice will not serve
as the primary basis for any decision by or on behalf of Customer. UBS-S LLC
shall have no discretionary authority, power or control over any decisions
made by or on behalf of Customer in respect of the Account, regardless of
whether Customer relies on the advice of UBS-S LLC in making any such
decision. Any such advice,
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although based upon information from sources UBS-S LLC believes to be
reliable, may be incomplete or inaccurate, may not be verified and may be
changed without notice to Customer. UBS-S LLC makes no representation as to
the accuracy, completeness, reliability or prudence of any such advice or
information or as to the tax consequences of Customer's futures or options
trading. UBS-S LLC is a separate and independent corporate entity, distinct
from its affiliates and it shall be free to purchase and sell Contracts for
any affiliates without limitation or restriction. The relationship between
UBS-S LLC and Customer as described herein shall not affect any provisions of
credit to Customer by UBS AG or any other subsidiary of UBS AG. Moreover,
Customer acknowledges that UBS-S LLC and its managing directors, officers,
employees and affiliates may take or hold positions in, or advise other
customers concerning, contracts which are the subject of advice from UBS-S LLC
to Customer. The positions and advice of UBS-S LLC and its managing directors,
officers, employees and affiliates may be inconsistent with or contrary to
positions of, and the advice given by, UBS-S LLC to Customer.
18. FINANCIAL AND OTHER INFORMATION
Customer agrees to furnish appropriate financial statements to UBS-S LLC
and to inform UBS-S LLC of any material changes in the financial position of
Customer and to furnish promptly such other information concerning Customer as
UBS-S LLC reasonably requests. UBS-S LLC is authorized from time to time to
contact banks, financial institutions and credit agencies for verification of
the financial condition of Customer. Customer agrees that UBS-S LLC may, from
time to time, share with its branches, agencies and affiliates, certain
non-public information concerning Customer.
19. RECORDING
UBS-S LLC, in its sole and absolute discretion, may record, on tape or
otherwise, any telephone conversation between UBS-S LLC 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 UBS-S LLC or in any other proceeding to which UBS-S LLC is a
party or in which UBS-S LLC's records are subpoenaed. Customer acknowledges
that UBS-S LLC may erase such recordings after a reasonable period of time.
20. ACCOUNTS INTRODUCED BY OTHER BROKERS
If UBS-S LLC is carrying the Account of Customer as executing or
clearing broker by arrangement with another broker through whose courtesy the
Account has been introduced to UBS-S LLC, then, until receipt from Customer of
written notice to the contrary, UBS-S LLC may accept from such 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 be responsible or liable for any acts or
omissions of such other broker or its employees.
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21. SEVERABILITY
If any provision of this Agreement is, or at any time becomes,
inconsistent with any present or future Applicable Law, and if any of these
authorities have jurisdiction over the subject matter of this Agreement, the
inconsistent provision shall be deemed superseded or modified to conform with
such law, rule or regulation but in all other respects, this Agreement shall
continue and remain in full force and effect.
22. BINDING EFFECT
This Agreement shall be binding on and inure to the benefit of the
parties and their successors. In accordance with CFTC regulations, UBS-S LLC
may assign Customer's Account(s) and this Agreement to another registered
Futures Commission Merchant ("FCM") by notifying Customer of the date and name
of the intended assignee FCM. Unless Customer objects to the assignment prior
to the scheduled date for the assignment, the assignment will be binding on
Customer. Customer may not assign this Agreement without UBS-S LLC's prior
consent.
23. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties and
supersedes any prior agreements between the parties as to the subject matter
hereof. No provision of this Agreement shall in any respect be waived,
altered, modified, or amended unless such waiver, alteration, modification or
amendment is signed by the party against whom such waiver, alteration,
modification or amendment is to be enforced.
24. INSTRUCTIONS, NOTICES OR COMMUNICATIONS
(a) Except as specifically otherwise provided in this Agreement, all
instructions, notices or other communications may be oral or written. All oral
instructions, unless custom and usage of trade dictate otherwise, shall be
promptly confirmed in writing. All written instructions, notices or other
communications shall be addressed as follows:
(i) if to UBS-S LLC:
UBS Securities LLC
Xxx Xxxxx Xxxxxx XxxxxXxxxxxx, XX 00000
Attn: ETD Legal Department, 31st Floor
(ii) if to Customer at the address as indicated on the New Account
Information Form.
(b) All instructions, notices or other communications sent, whether by
mail, telex, facsimile transmission or otherwise, shall be deemed given when
deposited in the mail, or sent by telex or facsimile transmission or other
electronic means acceptable to the recipient thereof, and deemed delivered to
Customer personally, whether actually received by Customer or not. All
instructions, notices or other communications to UBS-S LLC shall be directed
to UBS-S
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LLC's office at the address listed above or such other addresses as UBS-S LLC
may hereafter direct to Customer in writing.
25. RIGHTS AND REMEDIES CUMULATIVE
All rights and remedies arising under this Agreement as amended and
modified from time to time are cumulative and not exclusive of any rights or
remedies which may be available at law or otherwise.
26. NO WAIVER
No failure on the part of UBS-S LLC to exercise, and no delay in
exercising, any contractual right will operate as a waiver thereof, nor will
any single or partial exercise by UBS-S LLC of any right preclude any other or
future exercise thereof or the exercise of any other partial right.
27. GOVERNING LAW
THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE RIGHTS,
OBLIGATIONS AND REMEDIES OF THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
PRINCIPLES OF CHOICE OF LAW.
28. CONSENT TO JURISDICTION
Any litigation between UBS-S LLC and Customer relating to this Agreement
or transactions hereunder shall take place in the Courts of the State of
Illinois located in Xxxx County or in the United States District Court for the
Northern District of Illinois, and the parties agree to submit to such
exclusive jurisdiction. Customer consents to the service of process by the
mailing to Customer of copies of such court filing by certified mail to the
address of Customer as it appears on the books and records of UBS-S LLC, such
service to be effective ten days after mailing. Customer hereby waives
irrevocably any immunity to which it might otherwise be entitled in any
arbitration, action at law, suit in equity or any other proceeding arising out
of or based on this Agreement or any transaction in connection herewith.
29. WAIVER OF JURY TRIAL
Customer hereby waives trial by jury in any action or proceeding arising
out of or relating to this Agreement or any transaction in connection
herewith.
30. ACCEPTANCE OF AGREEMENT
This Agreement shall not be deemed to be accepted by UBS-S LLC or become
a binding contract between Customer and UBS-S LLC until approved by a duly
authorized officer of UBS-S LLC in writing.
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31. CUSTOMER ACKNOWLEDGEMENTS (please check boxes below with an "x" where
applicable):
| | (a) RISK DISCLOSURE STATEMENT
CUSTOMER HEREBY ACKNOWLEDGES THAT IT HAS RECEIVED, UNDERSTANDS AND
CONSENTS TO THE RISK DISCLOSURE STATEMENT FOR FUTURES AND OPTIONS
FURNISHED HEREWITH INCLUDING DISCLOSURES REGARDING:
Notice Regarding Average Pricing
Electronic Trading and Order Routing Systems Disclosure Statement
UBS-S LLC Special Disclosure Statement
Cross Trade Consent
Foreign Futures and Options Direct Order Transmittal Customer
Disclosure Statement
LME Guidelines (applicable to customers trading LME contracts)
Hong Kong Position Limit Notice (applicable to customers trading
on Hong Kong Exchanges)
| | (b) CONSENT TO TRANSFER FUNDS
The undersigned acknowledges that UBS-S LLC may, until it receives a
written notice of revocation with respect thereto, in its sole and
absolute discretion and without prior notice to the undersigned,
transfer any funds, securities, commodities, Contracts or other property
from any account (segregated, secured or non-regulated) maintained by
the undersigned to any other account (segregated, secured or
non-regulated) of the undersigned maintained by UBS-S LLC or any of its
affiliates. UBS-S LLC will promptly confirm in writing each transfer of
funds, securities, commodities, Contracts or other property pursuant
hereto. UBS-S LLC shall not be liable for making or failing to make any
transfer authorized hereby.
32. HEDGING REPRESENTATION (The following must be completed by Customers who
will engage in transactions for bona fide hedging purposes only.) Customer has
indicated on the New Account Information Form that the Account is for hedging
purposes. Customer represents that it is familiar with CFTC and exchange
rules, regulations, and advisories concerning hedging. Unless Customer
specifically notifies UBS-S LLC to the contrary in writing with respect to any
transaction, all transactions effected for the Account will be bona fide
hedging transactions as described in Section 4a of the Commodity Exchange Act,
as amended,
13
and Rule 1.3(z) promulgated thereunder (a copy of which may be obtained from
UBS-S LLC upon request). As such, in accordance with CFTC Rule 190.06,
Customer may specify whether, in the unlikely event of UBS-S LLC's bankruptcy,
Customer prefers that the trustee liquidate open commodity contracts in the
Account without seeking Customer's instructions. Accordingly, in the event of
UBS-S LLC's bankruptcy, the trustee should (check one of the following):
| | Attempt to contact Customer for instructions regarding the disposition
of open contracts in the Account.
| | Liquidate open commodity contracts without seeking Customer's
instructions.
This instruction may be changed at any time by written notice sent to
UBS-S LLC.
Specify Commodities to be Hedged: ______________________________________
______________________________________________________________________________
______________________________________________________________________________
* * * * *
(signature page on next page)
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IN WITNESS WHEREOF, Customer has executed this Agreement on the date
indicated below.
___________________________________
("Customer")
By:___________________________ ________________________ ______________________
Print Name and Title Signature Date
By:___________________________ ________________________ ______________________
Print Name and Title Signature Date
______________________________________________________________________________
ACCEPTED BY UBS SECURITIES LLC
By:___________________________ ________________________ ______________________
Print Name and Title Signature Date
By:___________________________ ________________________ ______________________
Print Name and Title Signature Date
______________________________________________________________________________
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POWER OF ATTORNEY LIMITED TO PURCHASES AND SALES
OF FUTURES CONTRACTS
The undersigned hereby authorizes _____________________________ (the
"Advisor") as his/her agent and attorney to buy, sell and trade in commodities
and/or futures contracts and options thereon, whether domestic or foreign, in
accordance with UBS SECURITIES LLC ("UBS-S LLC") terms and conditions for the
undersigned's account and risk and in the undersigned's name through UBS-S LLC
as brokers. The undersigned hereby agrees to indemnify and hold UBS-S LLC
harmless from and to pay UBS-S LLC promptly on demand any and all losses
arising therefrom or debit balance due thereon. The undersigned confirms it
has received a copy of Advisor's Disclosure Document. If not, the undersigned
has attached a written explanation of the reason(s) therefor.
In all such purchases, sales or trades UBS-S LLC is authorized to follow the
instructions of the Advisor in every respect concerning the undersigned's
account with UBS-S LLC; and the Advisor is authorized to act for the
undersigned and on the undersigned's behalf in the same manner and with the
same force and effect as the undersigned might or could do with respect to
such purchases, sales or trades as well as with respect to all other things
necessary or incidental to the furtherance or conduct of such purchases, sales
or trades. The undersigned understands that UBS-S LLC is in no way responsible
for any loss to the undersigned occasioned by the actions of the Advisor and
that UBS-S LLC does not, by implication or otherwise, endorse the operating
methods of the Advisor. The undersigned hereby ratifies and confirms any and
all transactions with UBS-S LLC heretofore or hereafter made by the Advisor
for the undersigned's account.
This authorization and indemnity is in addition to (and in no way limits or
restricts) any rights which UBS-S LLC may have under any other agreement or
agreements between the undersigned and UBS-S LLC. This authorization and
indemnity is a continuing one and shall remain in full force and effect until
revoked by the undersigned by a written notice addressed to UBS-S LLC but such
revocation shall not affect any liability in any resulting transaction
initiated prior to such revocation. This authorization and indemnity shall
inure to the benefit of UBS-S LLC and any successors or assigns.
____________________________________ Signature:_____________________________
(Name of Customer - Please Print) Date:__________________________________
Name and Title - Please Print
________________________________________
________________________________________
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ACKNOWLEDGEMENT OF RECEIPT
OF
COMMODITY TRADING ADVISOR
DISCLOSURE DOCUMENT
(To be completed by Customer if Customer has received a copy of the Advisor's
Disclosure Document, otherwise Advisor must complete the exemption
statement below)
This is to acknowledge that I have received and read a copy of the
____________________________ 20_____ Disclosure Document of
_____________________ describing the trading program pursuant to which
_______________________________will direct my account.
READ AND ACKNOWLEDGED BY:
_________________________________ _______________________
Customer's Signature Date
_________________________________
Customer's Name
COMMODITY TRADING ADVISOR REGISTRATION EXEMPTION
(To be completed by Advisor if Advisor has not provided Customer with
a disclosure statement. Please provide copy of all exemption letters
as appropriate.)
I am not required to provide a disclosure document pursuant to CFTC Regulation
4.31 because (indicate which applies):
(a) I am not required to register as a commodity trading advisor pursuant to
Section 4 of the Commodity Exchange Act because:
(i) | | during the preceding 12 months I have not furnished commodity
trading advice to more than 15 persons and I do not hold myself
out generally to the public as a commodity trading advisor; or
(ii) | | I am otherwise exempt from registration as a commodity trading
advisor pursuant to CFTC Regulation 4.14 or
(b) | | I am registered as a commodity trading advisor but am exempt from
providing a disclosure document pursuant to CFTC Regulation 4.7.
_________________________ ________________________________
Date Signature of Account Controller
_________________________________
Name of Account Controller
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ACCOUNT TRANSFER FORM
________________________
Date
______________________________________________
Current Broker Name
______________________________________________
Address
______________________________________________
City, State Zip Code
Attn: Account Transfers
Dear Sir:
Please be advised that I (we) wish to transfer all open positions and/or
equity in account number(s) _______________________________________________
maintained at your firm to UBS SECURITIES LLC, 000 Xxxxxxxxxx Xxxx, Xxxxxxxx,
XX 00000 effective on the close of business on ___________________________ .
You are hereby directed to immediately transfer all open positions in the
account(s) and to issue a check representing the net available cash to UBS
SECURITIES LLC. In addition, all securities, certificates, warehouse receipts,
etc. are to be transferred immediately.
Please contact UBS SECURITIES LLC's futures client services group at (203)
719-3950 with any questions.
___________________________________
Print Name of Customer
By:________________________________
Signature
Name:______________________________
Title:_____________________________
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