EXHIBIT 10.1
CA CALYON
FINANCIAL
------------------------------------------------------
Futures Account Agreement
Thank you for your interest in opening a futures trading account with Calyon
Financial Inc.
This package includes the agreements and forms necessary to establish a
futures trading account as well as certain documentation which may, at your
discretion, be completed by you to allow specific types of trading activities.
Included is a set of Disclosure Statements required by different exchanges and
regulators for certain types of activities. You should review these statements
to understand some of the risks of trading and be aware of how your rights in
certain markets might be limited. These Statements should be kept by you and
copies should be distributed to the relevant parties within your organization.
In addition to the attached documents, specific legal and financial
information may be required from you prior to approving a new account.
Employees of banks and brokerage firms will be asked to submit an Employee
Consent Letter.
If your account will be traded by a party other than yourself under a Power of
Attorney, additional documentation will be required prior to the start of
trading.
Hedge clients must be sure to complete the Hedge Election section on page 15
of the Futures Account Agreement.
Encl: Futures Account Agreement
Calyon Financial Inc. Disclosure Documents
CALYON FINANCIAL INC.
FUTURES ACCOUNT AGREEMENT
In consideration of the acceptance by Calyon Financial Inc. ("Calyon
Financial") of one or more accounts of the undersigned ("Customer") (if more
than one account is at any time opened or reopened with Calyon Financial, all
are covered by this Agreement and are referred to individually and
collectively as the "Account"), and Calyon Financial's agreement to act as
broker, directly or indirectly, or as dealer, for the execution, clearance
and/or carrying of transactions for the purchase and sale of commodity
interests, including commodities, spot and forward contracts, commodity
futures contracts, options on commodity futures contracts, security futures
product contracts, and transactions involving the exchange of futures for cash
commodities or the exchange of futures in connection with cash commodity
transactions, Calyon Financial and Customer agree as follows:
1 APPLICABLE RULES AND REGULATIONS
The Account and each transaction therein shall be subject to the terms
of this Agreement and to (a) all applicable laws and the regulations,
rules and orders (collectively "regulations") of all regulatory and
self-regulatory organizations having jurisdiction and (b) the
constitution, by-laws, rules, regulations, orders, resolutions,
interpretations and customs and usages (collectively "rules") of the
market and any associated clearing organization or clearing house (each
an "exchange") on or subject to the rules of which such transaction is
executed and/or cleared. The reference in the preceding sentence to
exchange rules is solely for Calyon Financial's protection and Calyon
Financial's failure to comply therewith shall not constitute a breach of
this Agreement or relieve Customer of any obligation or responsibility
under this Agreement. Calyon Financial shall not be liable to Customer
as a result of any action or omission by Calyon Financial, its officers,
directors, employees or agents to comply with any exchange rule.
2 PAYMENTS TO CALYON FINANCIAL
Customer agrees to pay to Calyon Financial immediately on request (a)
commissions, give-up charges, fees and service charges as are in effect
from time to time for the Customer, together with all applicable
regulatory and self-regulatory organization and exchange fees, charges,
including all such fees, charges or costs assessed against Calyon
Financial with respect to any equity securities of Customer deposited
for margin obligations, and taxes; (b) the amount of any debit balance
or any other liability that may result from transactions executed for
the Account; and (c) interest on such debit balance or liability at the
prevailing rate charged by Calyon Financial at the time such debit
balance or liability arises and service charges on any such debit
balance or liability together with any reasonable attorneys' fees and
costs incurred in collecting any such debit balance or liability.
Customer understands that most of the payment obligations enumerated in
subsection (a) above are automatically charged against its Account after
each transaction. Customer acknowledges that Calyon Financial may charge
commissions at other rates to other customers.
3 CUSTOMER'S DUTY TO MAINTAIN ADEQUATE MARGIN
Customer shall at all times maintain adequate margin (also known as
"performance bond") in the Account so as continually to meet the
original and maintenance margin requirements established by Calyon
Financial for Customer. Calyon Financial may change such requirements
from time to time at Calyon Financial's discretion upon notice to
Customer. Such margin requirements may exceed the margin requirements
set by any exchange or other regulatory authority and may vary from
Calyon Financial's requirements for other customers.
1
May 2005
Customer agrees, when so requested, orally or by written notice, on the
business day it is received, unless sooner required by Calyon Financial
for an intraday requirement, to wire transfer (by the Fed wire system to
the account of Calyon Financial) margin funds, and to furnish Calyon
Financial with names of bank officers for immediate verification of such
transfers. Customer acknowledges and agrees that Calyon Financial may
receive and retain as its own any interest, increment, profit, gain or
benefit, directly or indirectly, accruing from any of the funds Calyon
Financial receives from Customer.
4 DELIVERY; OPTION EXERCISE, ASSIGNMENT AND EXPIRATION
A. Delivery. If Customer desires to make or take delivery under a
commodity interest contract, Customer agrees to give Calyon
Financial timely notice of such intent for open positions maturing
in a current delivery month according to applicable rules and
regulations of the exchange or clearing house and Calyon
Financial's instructions. Sufficient funds to take delivery or the
necessary delivery documents must be delivered by Customer to
Calyon Financial according to Calyon Financial's instructions. If
funds, documents or Customer's intentions with respect to delivery
are not received, Calyon Financial may, without notice, either
liquidate Customer's position or make or receive delivery on
behalf of Customer upon such terms and by such methods as Calyon
Financial reasonably determines. Customer understands that Calyon
Financial may, upon prior notice to Customer, establish cut-off
times for timely notification that may be earlier than the times
established by the applicable rules and regulations of the
exchanges or clearing houses to ensure that Calyon Financial
complies with such rules and regulations. If Customer desires to
make or take delivery of a security futures product, Customer
agrees to open a securities account pursuant to Calyon Financial's
Securities and Options Account Agreement to effect such delivery.
If, at any time, Customer fails to deliver to Calyon Financial any
property previously sold by Calyon Financial on Customer's behalf
in compliance with commodity interest contracts, or Calyon
Financial shall deem it necessary (whether by reason of the
requirements of any exchange, clearing house or otherwise) to
replace any securities, commodity interest contracts, financial
instruments, or other property previously delivered by Calyon
Financial for the Account of Customer with other property of like
or equivalent kind or amount, Customer hereby authorizes Calyon
Financial to borrow or to buy any property necessary to make
delivery thereof, or to replace any such property previously
delivered, or to deliver the same to such other party or to whom
delivery is to be made. Calyon Financial may subsequently repay
any borrowing or purchase thereof with property purchased or
otherwise acquired for the Account of Customer. Customer shall pay
Calyon Financial for any actual costs, losses and damages from the
foregoing, including, but not limited to, consequential damages,
penalties and fines that Calyon Financial may incur or that Calyon
Financial may sustain from its inability to borrow or buy any such
property.
B. Option Exercise, Assignment and Expiration. Customer agrees to
give Calyon Financial timely notice if Customer intends to
exercise or abandon an option contract according to the rules and
regulations of the exchanges or clearing houses. Customer
understands that most exchanges and clearing houses have
established cut-off times for the tender of exercise or
abandonment instructions, and that an option will become worthless
if instructions are not delivered before such expiration time.
Customer also understands
2
May 2005
that certain exchanges and clearing houses will automatically
exercise some "in-the-money" options unless instructed otherwise.
Customer acknowledges full responsibility for taking action either
to exercise or to prevent the exercise of an option contract, as
the case may be, and Calyon Financial is not required to take any
action with respect to an option contract, including without
limitation any action to exercise an option prior to its
expiration date, or to prevent the automatic exercise of an
option, except upon Customer's express instructions. Customer
further understands that Calyon Financial may, upon prior notice
to Customer, establish exercise instruction cut-off times that may
be earlier than the times established by the applicable rules and
regulations of the exchanges and clearing houses to ensure that
Calyon Financial complies with such rules and regulations.
Customer understands that (a) all short option positions are
subject to assignment at any time, including positions established
on the same day that exercises are assigned, and (b) exercised
assignment notices are allocated in a manner that has been
approved by the applicable exchange or clearing house from among
all Calyon Financial customers' short options positions that are
subject to assignment.
5 FOREIGN CURRENCY
If Calyon Financial enters into any transaction for Customer effected in
a currency other than U.S. dollars: (a) any profit or loss caused by
changes in the rate of exchange for such currency shall be for
Customer's Account and risk and (b) unless another currency is
designated in Calyon Financial's confirmation of such transaction, all
margin for such transaction and the profit or loss on the liquidation of
such transaction shall be in U.S. dollars at a rate of exchange
determined by Calyon Financial on the basis of then prevailing market
rates of exchange for such foreign currency.
6 CALYON FINANCIAL MAY LIMIT POSITIONS HELD
Customer agrees that Calyon Financial, upon notice to Customer, may
limit the number of open positions (net or gross) that Customer may
execute, clear and/or carry with or acquire through it. Customer agrees
(a) not to make any trade that would have the effect of exceeding such
limits, (b) that Calyon Financial may require Customer to reduce open
positions carried with Calyon Financial and (c) that Calyon Financial
may refuse to accept orders to establish new positions. Calyon Financial
may impose and enforce such limits, reduction or refusal whether or not
they are required by applicable law, regulations or rules. Customer
shall comply with all position limits established by any regulatory or
self-regulatory organization or any exchange. In addition, Customer
agrees to notify Calyon Financial promptly if Customer is required to
file position reports with any regulatory or self-regulatory
organization or with any exchange.
7 NO WARRANTY AS TO INFORMATION OR RECOMMENDATION
Customer acknowledges that:
(a) Any market recommendations and information Calyon Financial may
communicate to Customer, although based upon information obtained
from sources believed by Calyon Financial to be reliable, may be
incomplete and not subject to verification;
(b) Calyon Financial makes no representation, warranty or guarantee as
to, and shall not be responsible for, the accuracy or completeness
of any information or trading recommendation furnished to
customer;
3
May 2005
(c) Recommendations to Customer as to any particular transaction at
any given time may differ among Calyon Financial's personnel due
to diversity in analysis of fundamental and technical factors and
may vary from any standard recommendation made by Calyon Financial
in its research reports or otherwise; and
(d) Calyon Financial has no obligation or responsibility to update any
market recommendations, research or information it communicates to
Customer.
Customer understands that Calyon Financial and its officers, directors,
affiliates, stockholders, representatives or associated persons may have
positions in and may intend to buy or sell commodity interests that are
the subject of market recommendations furnished to Customer, and that
the market positions of Calyon Financial or any such officer, director,
affiliate, stockholder, representative or associated person may or may
not be consistent with the recommendations furnished to Customer by
Calyon Financial.
8 LIMITS ON CALYON FINANCIAL DUTIES; LIABILITY
Customer agrees:
(a) That Calyon Financial has no duty to apprise Customer of news or
of the value of any commodity interests or collateral pledged or
in any way to advise Customer with respect to the market;
(b) That the commissions, which Calyon Financial receives, are
consideration solely for the execution, clearing, carrying and
reporting of Customer's trades;
(c) If there is an Account Manager, an Account Manager's Agreement for
the Account Manager will be provided to Calyon Financial. The
Account Manager specified therein is authorized to exercise
discretion and to act on behalf of Customer with respect to the
Account.
(1) Account Manager is duly organized, empowered and authorized
to make the representations set forth in Section 17 hereof
as if the Account Manager were substituted for the term
Customer therein.
(2) Account Manager shall direct Customer to take such action in
respect of the Account as is required of Customer under this
Agreement or under the rules and regulations.
(3) Customer agrees that (1) Account Manager is authorized to
act on Customer's behalf with respect to the Account,
including the authority to select and authorize the payment
of executing brokers, and to receive and give
communications, instructions and authorizations; and (2) any
right of Calyon Financial arising in connection with this
Agreement is enforceable against all of Customer's assets,
notwithstanding that Account Manager may exercise discretion
over less than all of the assets of Customer.
(4) Account Manager represents that it has provided to Customer
and Customer represents it has received: (1) a disclosure
document concerning such Account Manager's trading advice,
including, in the event the Account Manager will trade
4
May 2005
options, the options strategies to be utilized, or (2) a
written statement explaining why Account Manager is not
required under applicable law to provide such a disclosure
document to Customer; o and
(5) Customer acknowledges, understands and agrees that (1) any
communication, notice, report, statement, advice or
information given to Account Manager by Calyon Financial or
received from Account Manager by Calyon Financial in respect
of the Account shall be deemed to have been given to, or
received from, Customer as the case may be; (2) any
decision, instruction or action of, or authorization by,
Account Manager in respect of the Account shall be deemed to
constitute the decision, instruction, action or
authorization of Customer; (3) Customer has carefully
examined the provision of the documents by which it has
given trading authority or control over the Account to the
Account Manager and understands fully the obligations which
it has assumed by executing such document; (4) Calyon
Financial is in no way responsible for any loss to Customer
occasioned by the actions of the Account Manager and Calyon
Financial does not by implication or otherwise endorse the
operating methods or trading strategies or programs of the
Account Manager; and (5) Customer gives the Account Manager
authority to exercise Customer's rights over the Account,
and does so at its own risk.
(d) That Calyon Financial or its shareholders, directors, officers,
employees, agents, affiliates and controlling persons shall have
no liability for damages, claims, losses or expenses caused by any
errors, omissions or delays: (a) of sub-agents employed by Calyon
Financial, provided that Calyon Financial has used reasonable care
in their selection; or (b) of Calyon Financial itself, except
those caused by Calyon Financial's gross negligence or willful
misconduct.
9 EXTRAORDINARY EVENTS
Customer agrees that Calyon Financial shall have no liability for
damages, claims, losses or expenses caused by any errors, omissions or
delays resulting from an act, condition or cause beyond the reasonable
control of Calyon Financial, including, but not limited to: war;
insurrection; riot; strike; act of God; fire; flood; extraordinary
weather conditions; accident; action of government authority; action of
exchange, clearing house or clearing organization; communications or
power failure; equipment or software malfunction (including any
electronic order routing or direct execution trading system or
facility); error, omission or delay in the report of transactions;
prices, exchange rates or other market or transaction information; or
the insolvency, bankruptcy, receivership, liquidation or other financial
difficulty of any bank, clearing broker, exchange, market, clearing
house or clearing organization.
10 INDEMNIFICATION OF CALYON FINANCIAL, CONTRIBUTION AND REIMBURSEMENT
(a) To the extent permitted by law, Customer agrees to indemnify and
hold harmless Calyon Financial and its shareholders, directors,
officers, employees, agents, affiliates and controlling persons
against any liability for damages, claims, losses or expenses
which they may incur as a result, directly or indirectly of: (x)
Customer's violation of federal or state laws or regulations, or
of rules of any exchange or self-regulatory organization; (y) any
other breach of this Agreement by Customer; or (z) Customer's
failure to timely deliver any security, commodity or other
property previously sold by Calyon Financial on Customer's
5
May 2005
behalf. Such damages, claims, losses or expenses shall include
reasonable legal fees and all expenses, costs of settling claims,
interest, and fines or penalties imposed by the exchanges, self
regulatory organization or governmental authority.
(b) Customer agrees to reimburse Calyon Financial and its
shareholders, directors, officers, employees, agents, affiliates
and controlling persons on demand for any costs incurred in
collecting any sums Customer owes under this Agreement and any
costs of successfully defending against claims asserted against
them by Customer.
11 NOTICES; TRANSMITTALS
Calyon Financial shall transmit all communications to Customer at
Customer's address, facsimile or telephone number set forth below or to
such other address as Customer may hereafter direct in writing. Customer
shall transmit all communications to Calyon Financial regarding this
Agreement (except routine inquiries concerning the Account) to 000 Xxxx
Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000-0000; facsimile, (312)
441-4264, Attention: Legal Department. All payments and deliveries to
Calyon Financial shall be made as instructed by Calyon Financial from
time to time and shall be deemed received only when actually received by
Calyon Financial.
12 CONFIRMATION
All confirmations, correction notices and account statements
(collectively, "Statements") shall be submitted to Customer and shall be
deemed to be accurate unless the Customer notifies Calyon Financial 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 Statement; provided that with
respect to monthly Statements, Customer may notify Calyon Financial of
any objection thereto within three business days after receipt of such
monthly Statement, provided the objection could not have been raised at
the time the prior Statement, e.g. confirmations and correction notices,
was received by the Customer as provided for above. Any such notice of
objection, if given orally, shall be confirmed promptly in writing by
the Customer. Neither Customer nor Calyon Financial shall be bound by
any transaction or price reported in error.
13 SECURITY INTEREST
Customer hereby grants to Calyon Financial a first lien upon and a
security interest in any and all cash, securities, whether certificated
or uncertificated, security entitlements, investment property, financial
assets, foreign currencies, commodity interests, commodity accounts,
commodity contracts and other property (including securities and
options) and the proceeds of all of the foregoing (together the
"Collateral") belonging to Customer or in which Customer may have an
interest, now or in the future, and held by Calyon Financial or in
Calyon Financial's control or carried in any of Customer's Accounts, or
in Customer's accounts carried under other agreements with Calyon
Financial or its affiliates. Such security interest is granted as
security for the performance by Customer of its obligations hereunder
and for the payment of all loans and other liabilities which Customer
has or may in the future have to Calyon Financial, whether under this
Agreement or any other agreement between the parties hereto. Customer
agrees to execute such further instruments, documents, filings and
agreements as may be requested at any time by Calyon Financial in order
to perfect and maintain perfected the foregoing lien and security
interest. Calyon Financial, in its discretion, may liquidate any
Collateral to satisfy any margin or Account deficiencies or to transfer
the Collateral to the general ledger account of Calyon
6
May 2005
Financial. Terms defined in the Uniform Commercial Code, as enacted in
the State of Illinois, shall for purposes of this paragraph have the
meanings set forth therein.
In the event that the provisions of Section 13, which relate to
Collateral in any account carried by Calyon Financial for Customer other
than an Account established hereunder, conflict with the agreement under
which such other account was established, such other agreement between
Calyon Financial and Customer shall take precedence over the provisions
of this Section 13.
14 TRANSFER OF FUNDS
At any time and from time to time, Calyon Financial may transfer from
one account to another account in which Customer has any interest, such
excess funds, equities, securities or other property as in Calyon
Financial's judgment may be required for margin, or to reduce any debit
balance or to reduce or satisfy any deficits in such other accounts
except that no such transfer may be made from a segregated account
subject to the Commodity Exchange Act to another account maintained by
Customer unless either Customer has authorized such transfer in writing
or Calyon Financial is effecting such transfer to enforce Calyon
Financial's security interest pursuant to Section 13. Calyon Financial
promptly shall confirm all transfers of funds made pursuant hereto to
Customer in writing.
15 CALYON FINANCIAL'S RIGHT TO LIQUIDATE CUSTOMER POSITIONS
In addition to all other rights of Calyon Financial set forth in this
Agreement:
(a) When directed or required by a regulatory or self-regulatory
organization or exchange having jurisdiction over Calyon Financial
or the Account;
(b) Whenever, in its discretion, Calyon Financial considers it
necessary for its protection because of margin requirements or
otherwise;
(c) If Customer or any affiliate of Customer repudiates, violates,
breaches or fails to perform on a timely basis any term, covenant
or condition on its part to be performed under this Agreement or
another agreement with Calyon Financial or an affiliate of Calyon
Financial; and such repudiation, violation, breach, or failure
continues for (3) business days after notice thereof from Calyon
Financial or an affiliate of Calyon Financial, except that such
grace period shall not be applied to a term, covenant, or
condition that relates to any financial obligations on Customer's
part, including, but not limited to, the payment of margin or any
delivery requirements;
(d) If a case of bankruptcy is commenced or if a proceeding under any
insolvency or other law for the protection of creditors or for the
appointment of a receiver, liquidator, trustee, conservator,
custodian or similar officer is filed by or against Customer or
any affiliate of Customer or if Customer or any affiliate of
Customer makes or proposes to make any arrangement or composition
for the benefit of its creditors, or if Customer or (any such
affiliate) or any or all of its property is subject to any
agreement, order, judgment or decree providing for Customer's
dissolution, winding-up, liquidation, merger, consolidation,
reorganization or for the appointment of a receiver, liquidator,
trustee, conservator, custodian or similar officer of Customer,
such affiliate or such property;
7
May 2005
(e) In the case of a natural person, Calyon Financial is informed of
Customer's death or mental incapacity; or
(f) If an attachment or similar order is levied against the Account or
any other account maintained by a Customer or any affiliate of
Customer with Calyon Financial or an affiliate of Calyon
Financial;
Calyon Financial shall have the right to (i) satisfy any obligations due
Calyon Financial out of any Customer's property (also referred to as
"Collateral") in Calyon Financial's custody or control, (ii) liquidate
any or all of Customer's commodity interest positions, such liquidation
shall include transactions involving the exchange of futures for cash
commodities or the exchange of futures in connection with cash commodity
transactions (iii) cancel any or all of Customer's outstanding orders,
(iv) treat any or all of Customer's obligations due Calyon Financial as
immediately due and payable, (v) sell any or all of Customer's property
in Calyon Financial's custody or control in such manner as Calyon
Financial determines to be commercially reasonable, and/or (vi)
terminate any or all of Calyon Financial's obligations for future
performance to Customer, all without any notice to or demand on
Customer, if deemed necessary by Calyon Financial. Any action hereunder
may be made in any commercially reasonable manner. Customer agrees that
a prior demand, call or notice shall not be considered a waiver of
Calyon Financial's right to act without demand or notice as herein
provided, that Customer shall at all times be liable for the payment of
any debit balance owing in each Account upon demand whether occurring
upon a liquidation as provided under this Section 15 or otherwise under
this Agreement, and that in all cases Customer shall be liable for any
deficiency remaining in each Account in the event of liquidation thereof
in whole or in part together with interest thereon and all costs
relating to liquidation and collection (including reasonable attorneys'
fees). In the event that the provisions of Section 15, which relate to
Collateral in any account carried by Calyon Financial for Customer other
than an Account instituted hereunder, conflict with the agreement under
which such other account was instituted, such other agreement between
Calyon Financial and Customer shall take precedence over the provisions
of this Section 15.
16 CALYON FINANCIAL'S RIGHT TO SET-OFF
Any amount payable to Calyon Financial by the Customer in the case where
an event under Section 15 has occurred, will, at the option of Calyon
Financial, be reduced by its set-off against any amounts payable by
Calyon Financial or any affiliate of Calyon Financial to Customer under
this Agreement or any other agreement between Calyon Financial or any
affiliate of Calyon Financial and Customer, or instrument or undertaking
in favor of Calyon Financial or an affiliate of Calyon Financial (the
"Calyon Financial payable amount"). The Calyon Financial payable amount
will be discharged promptly and in all respects to the extent it is so
set-off. Calyon Financial will give notice to Customer of any set-off
effected under this Section 16. If a Customer's obligation to Calyon
Financial or an affiliate is unascertained, Calyon Financial may, in
good faith, estimate that obligation and set off any amount owing by
Calyon Financial or any affiliate to Customer on any account in respect
of the estimate, which amount will be revised when the obligation is
ascertained. This Section and Section 15 shall be without prejudice and
in addition to any right of set-off, combination of accounts, lien or
other right to which Calyon Financial is at any time otherwise entitled
whether by operation of law, contract or otherwise. For purposes of this
Section and Section 15, an "affiliate" of Calyon Financial shall mean:
Calyon S.A., Calyon Financial SNC, Calyon Financial Pte Ltd., Calyon
Capital Markets Asia, B.V. (Tokyo Branch), and Altura Markets, A.V.,
S.A.
8
May 2005
17 CUSTOMER REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Customer represents and warrants to and agrees with Calyon Financial
that:
(a) Customer has full power and authority to enter into this Agreement
and to engage in the transactions and perform its obligations
hereunder and contemplated hereby, and:
(1) If Customer is a corporation or partnership, Customer
represents and warrants that (a) it is duly organized and in
good standing under the laws of the jurisdiction in which it
is established and in every state in which it does business;
(b) is empowered to enter into and perform this Agreement
and to effectuate transactions in commodity interests,
financial instruments and foreign currency as contemplated
hereby; and (c) no person or entity has any interest in or
control of the Account to which this Agreement pertains
except as disclosed by Customer to Calyon Financial in
writing.
(2) If Customer is a trust, Customer represents and warrants
that (a) it is a duly formed and existing trust under the
laws of the state of its formation or such other laws as are
applicable, including ERISA or similar state law, and the
party or parties designated as trustee or trustees by
Customer to Calyon Financial in writing submitted herewith
constitute the only or all of the proper trustees thereof;
(b) the trustee or trustees are empowered to enter into and
perform this Agreement and to effectuate transactions in
commodity interests, financial instruments, and foreign
currency as contemplated hereby; (c) the trustee or trustees
make the representations set forth in Section 17 hereof as
if the term trustee(s) were substituted for the term
Customer therein; and (d) no person or entity has any
interest in or control of the Account to which this
Agreement pertains except as disclosed by Customer to Calyon
Financial in writing.
(b) To the best of its knowledge, neither Customer nor any partner,
director, officer, member, manager or employee of Customer nor any
affiliate of Customer is a partner, director, officer, member,
manager or employee of a futures commission merchant, introducing
broker, bank, broker-dealer, exchange or self-regulatory
organization or an employee or commissioner of the Commodity
Futures Trading Commission (the "CFTC"), except as previously
disclosed in writing to Calyon Financial;
(c) To help the government fight the funding of terrorism and
money-laundering activities, U.S. Federal law requires Calyon
Financial to obtain, verify and record information that identifies
each and every person for which an account is opened by Calyon
Financial, whether that person is an individual, association,
partnership, corporation, trust or other entity.
Customer will furnish information and documentation as requested
by Calyon Financial so that Calyon Financial can verify Customer's
identity as required by U.S. Federal law. Any financial statements
or information, or identifying information and documentation
furnished to Calyon Financial are true, correct and complete.
Customer hereby authorizes Calyon Financial to contact such banks,
financial institutions and credit agencies as Calyon Financial
shall deem appropriate for verification of such financial
statements or other information. Upon the Customer's request,
Calyon Financial will inform the Customer whether it has obtained
credit reports, and if so, Calyon Financial will inform the
Customer of the name and address of the reporting agency that
furnished those reports.
9
May 2005
Except as disclosed in writing, (i) Customer is not a commodity
pool or is exempt from registration under the rules of the CFTC,
and (ii) Customer is acting solely as principal and no one other
than Customer has any interest in any Account of Customer.
(d) Customer has determined that trading in commodity interests is
appropriate for Customer, is prudent in all respects and does not
and will not violate Customer's charter or by-laws (or other
comparable governing document) or any law, rule, regulation,
judgment, decree, order or agreement to which Customer or its
property is subject or bound;
(e) As required by CFTC regulations, Customer shall create, retain and
produce upon request of the applicable contract market, the CFTC
or other regulatory authority documents (such as contracts,
confirmations, telex printouts, invoices and documents of title)
with respect to cash transactions underlying exchanges of futures
for cash commodities or exchange of futures in connection with
cash commodity transactions;
(f) Customer consents to the electronic recording, at Calyon
Financial's discretion, of any or all telephone conversations with
Calyon Financial (without automatic tone warning device), the use
of same as evidenced by either party in any action or proceeding
arising out of the Agreement and in Calyon Financial's erasure, at
its discretion, of any recording as part of its regular procedure
for handling of recordings;
(g) Absent a separate written agreement between Customer and Calyon
Financial with respect to give-ups, Calyon Financial, in its
discretion, may, but shall have no obligation to, accept from
other brokers commodity interest transactions executed by such
brokers on an exchange for Customer and proposed to be "given-up"
to Calyon Financial for clearance and/or carrying in the Account;
(h) Calyon Financial, for and on behalf of Customer, is authorized and
empowered to place orders for commodity interest transactions
through one or more electronic or automated trading or order
routing systems maintained or operated by or under the auspices of
an exchange or by Calyon Financial, or any third party vendors,
that Calyon Financial shall not be liable or obligated to Customer
for any losses, claims, damages, liabilities, costs or expenses
(including but not limited to loss of profits, loss of use, direct
or indirect incidental or consequential damages) incurred or
sustained by Customer and arising in whole or in part, directly or
indirectly, from any error, fault, failure, inadequate performance
or nonperformance, delay, omission, malfunction, inaccuracy or
termination of an electronic trading system or order routing
system or Calyon Financial's inability to enter, cancel or modify
an order on behalf of Customer on or through an electronic trading
system or order routing system. The provisions of this Section
17(h) shall apply regardless of whether any customer claim arises
in contract, negligence, tort, strict liability, breach of
fiduciary obligations or otherwise; and
(i) Calyon Financial shall be entitled to rely on any instructions,
notices and communications, whether oral or in writing, that it
reasonably believes to be from an individual authorized to act on
behalf of Customer, including, but not limited to, any
individual(s) 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 relevant statutes or any other
similar law, rule or regulation.
10
May 2005
(j) If Customer is subject to the Financial Institution Reform,
Recovery and Enforcement Act of 1989, the certified resolutions
set forth following this Agreement have been caused to be
reflected in the minutes of Customer's Board of Directors (or
other comparable governing body) and this Agreement is and shall
be, continuously from the date hereof, an official record of
Customer.
(k) Customer is aware of and agrees to be bound by the rules of the
NASD applicable to the trading of security futures product
contracts.
(l) Customer is aware of and agrees not to violate applicable security
futures product position limits.
(m) Customer acknowledges that Calyon Financial has furnished it with
a copy of the current Security Futures Risk Disclosure Statement.
Customer agrees to promptly notify Calyon Financial in writing if any of
the warranties and representations contained in this Section 17 become
inaccurate or in any way cease to be true, complete and correct.
18 CALYON FINANCIAL'S REPRESENTATIONS AND WARRANTIES
Calyon Financial represents and warrants that:
(a) Calyon Financial is registered as a futures commission merchant
with the CFTC and is a member of the National Futures Association.
(b) Calyon Financial has all requisite authority, whether arising
under applicable federal or state laws and rules and regulations,
or the rules and regulations of any contract market or other
self-regulatory organization to which Calyon Financial is subject,
to enter into this Agreement.
(c) This Agreement does not violate any applicable law, any judgment,
order or agreement to which Calyon Financial or any of its
property is subject or by which it or its property is bound.
(d) This Agreement is a valid and binding agreement of Calyon
Financial enforceable against Calyon Financial in accordance with
its terms and the person signing and delivering the Agreement is
duly authorized to do so on behalf of Calyon Financial.
19 SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of Calyon Financial, its
successors and assigns, and shall be binding upon Customer and
Customer's executors, trustees, administrators, successors and assigns,
provided, however, that this Agreement is not assignable by Customer
without the prior written consent of Calyon Financial, which consent
shall not be unreasonably withheld if such assignment is approved in
accordance with Calyon Financial's credit policies and procedures.
20 MODIFICATION OF AGREEMENT; NON-WAIVER PROVISION
This Agreement may only be altered, modified or amended by mutual
written consent of the parties. The rights and remedies conferred upon
the parties shall be cumulative, and its
11
May 2005
forbearance to take any remedial action available to it under this
Agreement shall not waive its right at any time or from time to time
thereafter to take such action.
21 SEVERABILITY
If any term or provision hereof or the application thereto to any
persons or circumstances shall to any extent be contrary to any
exchange, government or self-regulatory regulation or contrary to any
federal, state or local law or otherwise be invalid or unenforceable,
the remainder of this Agreement or the application of such term or
provision to persons or circumstances other than those as to which it is
contrary, invalid or unenforceable, shall not be affected thereby.
22 CAPTIONS
All captions used herein are for convenience only, are not a part of
this Agreement, and are not to be used in construing or interpreting any
aspect of this Agreement.
23 TERMINATION
This Agreement shall continue in force until written notice of
termination is given by Customer or Calyon Financial. Termination shall
not relieve either party of any liability or obligation incurred prior
to such notice. Upon giving or receiving notice of termination, Customer
will promptly take all action necessary to transfer all open positions
in each Account to another futures commission merchant.
24 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between Customer and
Calyon Financial with respect to the subject matter hereof and
supersedes any prior agreements between the parties with respect to such
subject matter.
25 GOVERNING LAW; CONSENT TO JURISDICTION
(a) In case of a dispute between Customer and Calyon Financial arising
out of or relating to the making or performance of this Agreement
or any transaction pursuant to this Agreement (i) this Agreement
and its enforcement shall be governed by the laws of the State of
Illinois without regard to principles of conflicts of laws, and
(ii) Customer will bring any legal proceeding against Calyon
Financial in, and Customer hereby consents in any legal proceeding
by Calyon Financial to the jurisdiction of, any state or federal
court located within Chicago, Illinois, in connection with all
legal proceedings arising directly, indirectly or otherwise in
connection with, out of, related to or from Customer's Account,
transactions contemplated by this Agreement or the breach thereof.
Customer hereby waives all objections Customer, at any time, may
have as to the propriety of the court in which any such legal
proceedings may be commenced. Customer also agrees that any
service of process mailed to Customer at any address specified to
Calyon Financial shall be deemed a proper service of process on
the undersigned. Customer agrees that venue of all proceedings
shall be in Chicago, Illinois.
(b) Notwithstanding the provisions of Section 25(a)(ii), Customer may
elect at this time to have all disputes described in this Section
resolved by arbitration. To make such election, Customer must sign
the Arbitration Agreement set forth in Section 26. Notwithstanding
such election, any question relating to whether Customer or Calyon
Financial has commenced an arbitration proceeding in a timely
manner, whether a dispute is within the
12
May 2005
scope of the Arbitration Agreement or whether a party (other than
Customer or Calyon Financial) has consented to arbitration and all
proceedings to compel arbitration shall be determined by a court
as specified in Section 25(a)(ii).
26 ARBITRATION AGREEMENT (OPTIONAL)
Every dispute between Customer and Calyon Financial arising out of or
relating to the making or performance of this Agreement or any
transaction pursuant to this Agreement, shall be settled by arbitration
in accordance with the rules, then in effect, of the National Futures
Association, the contract market upon which the transaction giving rise
to the claim was executed, or the National Association of Securities
Dealers as Customer may elect. If Customer does not make such election
by registered mail addressed to Calyon Financial at 000 Xxxx Xxxxxxx
Xxxx., Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Legal
Department, within 45 days after demand by Calyon Financial that the
Customer make such election, then Calyon Financial may make such
election. Calyon Financial agrees to pay any incremental fees which may
be assessed by a qualified forum for making available a "mixed panel" of
arbitrators, unless the arbitrators determine that Customer has acted in
bad faith in initiating or conducting the proceedings. Judgment upon any
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
THREE FORUMS EXIST FOR THE RESOLUTION OF COMMODITY DISPUTES: CIVIL COURT
LITIGATION, REPARATIONS AT THE COMMODITY FUTURES TRADING COMMISSION ("CFTC")
AND ARBITRATION CONDUCTED BY A SELF-REGULATORY OR OTHER PRIVATE ORGANIZATION.
THE CFTC RECOGNIZES THAT THE OPPORTUNITY TO SETTLE DISPUTES BY
ARBITRATION MAY IN SOME CASES PROVIDE MANY BENEFITS TO CUSTOMERS, INCLUDING
THE ABILITY TO OBTAIN AN EXPEDITIOUS AND FINAL RESOLUTION OF DISPUTES WITHOUT
INCURRING SUBSTANTIAL COSTS. THE CFTC REQUIRES, HOWEVER, THAT EACH CUSTOMER
INDIVIDUALLY EXAMINE THE RELATIVE MERITS OF ARBITRATION AND THAT YOUR CONSENT
TO THIS ARBITRATION AGREEMENT BE VOLUNTARY.
BY SIGNING THIS AGREEMENT, YOU (1) MAY BE WAIVING YOUR RIGHT TO XXX IN A
COURT OF LAW AND (2) ARE AGREEING TO BE BOUND BY ARBITRATION OF ANY CLAIMS OR
COUNTERCLAIMS WHICH YOU OR CALYON FINANCIAL MAY SUBMIT TO ARBITRATION UNDER
THIS AGREEMENT. YOU ARE NOT, HOWEVER, WAIVING YOUR RIGHT TO ELECT INSTEAD TO
PETITION THE CFTC TO INSTITUTE REPARATIONS PROCEEDINGS UNDER SECTION 14 OF THE
COMMODITY EXCHANGE ACT WITH RESPECT TO ANY DISPUTE WHICH MAY BE ARBITRATED
PURSUANT TO THIS AGREEMENT. IN THE EVENT A DISPUTE ARISES, YOU WILL BE
NOTIFIED IF CALYON FINANCIAL INTENDS TO SUBMIT THE DISPUTE TO ARBITRATION. IF
YOU BELIEVE A VIOLATION OF THE COMMODITY EXCHANGE ACT IS INVOLVED AND IF YOU
PREFER TO REQUEST A SECTION 14 "REPARATIONS" PROCEEDINGS BEFORE THE CFTC, YOU
WILL HAVE 45 DAYS FROM THE DATE OF SUCH NOTICE IN WHICH TO MAKE THAT ELECTION.
YOU NEED NOT AGREE TO THIS ARBITRATION AGREEMENT TO OPEN AN ACCOUNT WITH
CALYON FINANCIAL.
See 17 CFR 166.5.
Acceptance of this arbitration agreement requires a separate signature on page
15.
27 CONSENT TO TAKE THE OTHER SIDE OF ORDERS (OPTIONAL)
Without its prior notice, Customer agrees that when Calyon Financial
executes sell or buy orders on Customer's behalf, Calyon Financial, its
directors, officers, employees, agents, affiliates, and
13
May 2005
any floor broker may take the other side of Customer's transaction
through any Account of such person subject to its being executed at
prevailing prices in accordance with and subject to the limitations and
conditions, if any, contained in applicable rules and regulations.
28 AUTHORIZATION TO TRANSFER FUNDS (OPTIONAL)
Without limiting other provisions herein, Calyon Financial is authorized
to transfer from any segregated account subject to the Commodity
Exchange Act carried by Calyon Financial for the Customer to any other
account carried by Calyon Financial for the Customer such amount of
excess funds as in Calyon Financial's judgment may be necessary at any
time to avoid a margin call or to reduce a debit balance in said
account. It is understood that Calyon Financial will confirm in writing
each such transfer of funds made pursuant to this authorization within a
reasonable time after such transfer.
29 TRANSMISSION OF STATEMENTS (CUSTOMER TO ELECT)
Customer may elect and consent until further notice to receive
statements solely by electronic means, including without limitation, by
electronic mail or facsimile, and not by mail. Customer shall not incur
any costs or fees in connection with the receipt of such statements by
electronic transmission.
By subscribing to electronic document delivery, the Customer understands
and agrees to the following:
(a) Customer has the right to receive daily and monthly statements by
mail or electronically or a combination thereof.
(b) The Customer has the right to request and receive a written
confirmation of a specific trade and/or monthly statement, even if
the Customer chooses to receive daily and monthly statements only
by electronic means.
(c) The Customer will not receive any other notice regarding the
delivery of electronic documents, and the Customer takes sole
responsibility for promptly notifying Calyon Financial in the
event that documents fail to be properly delivered electronically.
(d) The Customer may terminate the option to receive electronic
document delivery at any time by notifying Calyon Financial in
writing.
14
May 2005
OPTIONAL ELECTIONS/ACKNOWLEDGMENTS
The following provisions, which are set forth in this Agreement, need not be
entered into to open the Account. Customer agrees that by its signature or
checking the box (|X|) after each such election below its optional elections
are as follows:
A) ARBITRATION AGREEMENT: (Agreement Paragraph 26)
(must sign and date) /s/ Xxxx Xxxxx, 1/23/07
-------------------------------------
B) CONSENT TO TAKE THE OTHER SIDE OF ORDERS: (Agreement Paragraph 27) |_|
C) AUTHORIZATION TO TRANSFER FUNDS: (Agreement Paragraph 28) |_|
D) INSTRUCTIONS TO RECEIVE STATEMENTS: (Agreement Paragraph 29)
Customer must complete the following:
Customer, until further notice, elects delivery by electronic or
facsimile or mail transmission for each category or a combination
thereof (check the appropriate box(es)):
Electronic Facsimile Mail
Daily Statements x |_| |_|
(including confirmations and purchase and sale statements)
Monthly Statements x |_| |_|
E) HEDGE ELECTION
I) Customer confirms that all transactions in the Account will
represent bona fide hedging transactions, as defined by the
Commodity Futures Trading Commission, unless Calyon Financial is
notified otherwise not later than the time an order is placed for
the Account: |_|
II) Pursuant to CFTC Regulation 190.06(d), Customer specifies and
agrees, with respect to hedging transactions in the Account, that
in the unlikely event of Calyon Financial's bankruptcy, it prefers
that the bankruptcy trustee [check appropriate box]:
A) Liquidate all open contracts without first seeking
instructions either from or on behalf of Customer |_|
B) Attempt to obtain instructions with respect to the
disposition of all open contracts. |_|
(If neither box is checked, Customer shall be deemed to
elect A).
15
May 2005
REQUIRED DISCLOSURE/ACKNOWLEDGMENT
The undersigned hereby acknowledges (by checking the box below |X|) its
separate receipt from Calyon Financial of the following documents, and its
understanding of the following required document prior to the opening of the
Account:
DISCLOSURE DOCUMENTS FOR FUTURES TRADING
o Risk Disclosure Statement for Futures and Options x
o Direct Foreign Order Transmittal
o Electronic Trading and Order Routing Systems Disclosure
Statement
o Questions and Answers to Address Key Features of CME Rule
553 - Average Price System
o Special Notice to Foreign Brokers and Foreign Traders -
Designation of Calyon Financial Inc. as Agent
o Position Limit and Large Open Position Reporting
Requirements for Options and Futures Traded on The Hong Kong
Exchanges
o A Guide to the Structure and Market Terminology of the
London Metal Exchange
REQUIRED CUSTOMER SIGNATURES
The undersigned has received, read, understands and agrees to all the
provisions of this Agreement, and by checking the applicable boxes or signing
above acknowledges that it has received and understood each such disclosure
statement and/or made such consents or elections, and agrees to promptly
notify Calyon Financial in writing if any of the warranties and
representations contained herein become inaccurate or in any way cease to be
true, complete and correct.
AIS FUTURES FUND IV, L.P.
------------------------------------------------------------------------------
Customer Name(s)
/s/ Xxxx Xxxxx 1/23/07
------------------------------------------------------------------------------
Authorized Signature(s) (Date)
Xxxxxxx X. Xxxxx
------------------------------------------------------------------------------
[If applicable, print name and title of signatory]
CALYON FINANCIAL INC.
Accepted and Agreed:
By: /s/ Xxxxxxxxx Xxxxxx
------------------------
Name: Xxxxxxxxx Xxxxxx
------------------------
Title: Senior V.P.
------------------------
Date: 02/06/07
------------------------
16
May 2005
SECURITY FUTURES PRODUCT REGULATORY
PROTECTIONS AND ACCOUNT ELECTIONS
This disclosure document is furnished to a customer that desires to engage in
the trading of securities futures products pursuant to ss.41.41(b) of the
Commodity Exchange Act and ss.240.15c3-3(o) of the Securities Exchange Act of
1934.
1. Set forth below are descriptions of protections provided by the
requirements set forth (i) under the Securities Exchange Act Rule 15c3-3 and
the Securities Investor Protection Act of 1970 applicable to a securities
account, and (ii) under Section 4d of the Commodity Exchange Act applicable to
a futures account.
A. Protections for Securities Accounts. Positions in security futures
products carried in a securities account are covered by SEC rules
governing the safeguarding of customer funds and securities, which are
Section 15(c)(3) of the Securities Exchange Act of 1934 and Rule 15c3-3
thereunder. Calyon Financial Inc. ("Calyon Financial") is required to
follow these rules as a broker/dealer. These rules prohibit a
broker/dealer from using customer funds and securities to finance its
business. As a result, the broker/dealer is required to set aside funds
equal to the net of all its excess payables to customers over
receivables from customers. The rules also require a broker/dealer to
segregate all customer fully paid and excess margin securities carried
by the broker/dealer for customers.
The Securities Investor Protection Corporation ("SIPC") also covers
positions held in securities accounts. SIPC was created in 1970 as a
non-profit, non-government, membership corporation, funded by member
broker/dealers. Its primary role is to return funds and securities to
customers if the broker/dealer holding these assets becomes insolvent.
SIPC coverage applies to customers of current (and in some cases former)
SIPC members. Most broker/dealers registered with the SEC are SIPC
members; those few that are not must disclose this fact to their
customers. SIPC members must display an official sign showing their
membership. Calyon Financial is a member of SIPC.
SIPC coverage is limited to $500,000 per customer, including up to
$100,000 for cash. For example, if a customer has 1,000 shares of XYZ
stock valued at $200,000 and $10,000 cash in the account, both the
security and the cash balance would be protected. However, if the
customer has shares of stock valued at $500,000 and $100,000 in cash,
only a total of $500,000 of those assets will be protected.
For purposes of SIPC coverage, customers are persons who have securities
or cash on deposit with a SIPC member for the purpose of, or as a result
of, securities transactions. SIPC does not protect customer funds placed
with a broker/dealer just to earn interest. Insiders of the
broker/dealer, such as its owners, officers, and partners, are not
customers for purposes of SIPC coverage.
B. Protections for Futures Accounts. If positions in security futures
products are carried in a futures account, they must be segregated from
a futures commission merchants' ("FCMs") or brokerage firm's own funds
and cannot be borrowed or otherwise used for the firm's own purposes
according to Section 4d of the Commodity Exchange Act and the rules
thereunder.
17
May 2005
Calyon Financial is a registered FCM and is required to follow these
rules. If the funds are deposited with another entity (e.g., a bank,
clearing broker, or clearing organization), that entity must acknowledge
that the funds belong to customers and cannot be used to satisfy the
FCM's debts. Moreover, although a brokerage firm may carry funds
belonging to different customers in the same bank or clearing account,
it may not use the funds of one customer to margin or guarantee the
transactions of another customer. As a result, the brokerage firm must
add its own funds to its customers' segregated funds to cover customer
debits and deficits. Brokerage firms must calculate their segregation
requirements daily.
A customer may not be able to recover the full amount of any funds in
its account if, in the unlikely event, Calyon Financial becomes
insolvent and has insufficient funds to cover its obligations to all of
its customers. However, customers with funds in segregation receive
priority in bankruptcy proceedings. Furthermore, all customers whose
funds are required to be segregated have the same priority in
bankruptcy, and there is no ceiling on the amount of funds that must be
segregated for or can be recovered by a particular customer.
Please be aware that a futures account, including any contracts that may
be defined as security futures products that are maintained in that
account, is not provided with any protections under the Securities
Investor Protection Act of 1970.
Calyon Financial is also required to separately maintain funds invested
in security futures contracts traded on a foreign exchange (foreign
security futures contract). However, these funds may not receive the
same protections once they are transferred to a foreign entity (e.g., a
foreign broker, exchange or clearing organization) to satisfy margin
requirements for those products.
2. Customer may choose or elect to hold its positions in and margin for
security futures products ("SFPs") in either a securities account or futures
account established and maintained by Calyon Financial.
3. Customer's election of account type for positions in and related margin for
SFPs shall be made by completing the Account Election Form attached and
returning it to Calyon Financial.
4. Customer may not change an election of account type after trading has
commenced in SFPs.
5. The regulatory protections afforded a customer in connection with trading
in security futures products differ depending on whether the positions are
carried in a securities account or a futures account. If positions are carried
in a securities account, Customer will not receive the protections available
for futures accounts. Similarly, if positions are carried in a futures
account, Customer will not receive the protections available for securities
accounts.
18
May 2005
Futures Account Election
|_| Customer elects to hold positions in and related margin for securities
futures products in a futures account established by Calyon Financial
pursuant to Calyon Financial's Futures Account Agreement. [Please note
if you elect to trade security futures products in a futures account,
you must also complete account paperwork to open a securities account in
the event that you take delivery on a security futures product.]
or
Securities Account Election
|_| Customer elects to hold positions in and related margin for securities
futures products in a securities account established by Calyon Financial
pursuant to Calyon Financial's Securities & Options Account Agreement.
[Please note if you elect to trade security futures products in a
securities account, you must also complete account paperwork to open a
securities account.]
AIS FUTURES FUND IV, L.P.
---------------------------------
(Name of Customer)
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
---------------------------------
Title: Vice President
---------------------------------
Date: 01/23/07
---------------------------------
19
May 2005
FOR QUEBEC CUSTOMERS ONLY
ADDENDUM TO THE FUTURES ACCOUNT AGREEMENT OF CALYON FINANCIAL INC.
THIS ADDENDUM ("Addendum") to the Futures Account Agreement ("Futures Account
Agreement") dated ______________ ___, _____ between Calyon Financial Inc.
("Calyon Financial") and ________________________________ ("Customer") is made
as of ________________.
Customer Name
Effective as of the date hereof, Customer and Calyon Financial agree that the
Futures Account Agreement shall be amended in accordance with the following
terms and conditions:
I. WITH RESPECT TO QUEBEC CUSTOMERS ONLY:
A. Section 17 of the Futures Account Agreement is hereby amended to
add subdivisions (n):
"Customer represents and warrants to and agrees with Calyon
Financial that:
. . .
(n) the undersigned has read the following definitions of an
"accredited investor" as defined in Multilateral Instrument
45-103 or a "sophisticated purchaser" as defined in the
Securities Act (Quebec) and certifies that the undersigned
is resident in Quebec or is otherwise subject to the laws of
Quebec and is purchasing as principal for its own account
and not for the benefit of another and is an accredited
investor or sophisticated purchaser as indicated below
[check one or more] or purchasing as agent or trustee for
managed accounts and is an accredited investor as indicated
below [check one or more]:
1. |_| a Canadian financial institution (meaning a
bank, loan corporation, trust company, insurance
company, treasury branch, credit union or caisse
populaire authorized to carry on business in
Canada or a province or territory of Canada), or
an authorized foreign bank listed in Schedule
III of the Bank Act (Canada);
2. |_| the Business Development Bank of Canada
incorporated under the Business Development Bank
of Canada Act (Canada);
3. |_| an association under the Cooperative Credit
Associations Act (Canada) located in Canada or a
central cooperative credit society for which an
order has been made under section 473(1) of that
Act An association under the Cooperative Credit
Associations Act (Canada) located in Canada or a
central cooperative credit society for which an
order has been made under section 473(1) of that
Act;
4. |_| a subsidiary of any person or company referred
to in paragraphs 1 to 3 above, if the person or
company owns all of the voting securities of the
subsidiary, except the voting securities
required by law to be owned by directors of that
subsidiary;
5. |_| a person or company registered under the
securities legislation of a jurisdiction of
Canada, as an adviser or dealer, other than a
limited
20
May 2005
market dealer registered under the Securities
Act (Ontario) or the Securities Act
(Newfoundland and Labrador);
6. |_| an individual registered or formerly registered
under the securities legislation of a
jurisdiction of Canada, as a representative of a
person or company referred to in paragraph 5
above;
7. |_| the government of Canada or a jurisdiction of
Canada, or any crown corporation, agency or
wholly owned entity of the government of Canada
or a jurisdiction of Canada;
8. |_| a municipality, public board or commission in
Canada;
9. |_| any national, federal, state, provincial,
territorial or municipal government of or in any
foreign jurisdiction, or any agency of that
government;
10 |_| a pension fund that is regulated by either the
Office of the Superintendent of Financial
Institutions (Canada) or a pension commission or
similar regulatory authority of a jurisdiction
of Canada;
11. |_| an individual who, either alone or jointly with
a spouse, beneficially owns, directly or
indirectly, financial assets having an aggregate
realizable value that before taxes, but net of
any related liabilities, exceeds Cdn$1,000,000;
12. |_| an individual whose net income before taxes
exceeded Cdn$200,000 in each of the two most
recent years or whose net income before taxes
combined with that of a spouse exceeded
Cdn$300,000 in each of the two most recent years
and who, in either case, reasonably expects to
exceed that net income level in the current
year;
13. |_| a person or company, other than a mutual fund or
non-redeemable investment fund, that, either
alone or with a spouse, has net assets of at
least Cdn$5,000,000, and unless the person or
company is an individual, that amount is shown
on its most recently prepared financial
statements;
14. |_| a mutual fund or non-redeemable investment fund
that, in the local jurisdiction, distributes its
securities only to persons or companies that are
accredited investors;
15. |_| a mutual fund or non-redeemable investment fund
that, in the local jurisdiction, distributes its
securities under one or more prospectuses for
which the regulator has issued receipts;
16. |_| a trust company or trust corporation registered
or authorized to carry on business under the
Trust and Loan Companies Act (Canada) or under
comparable legislation in a jurisdiction of
Canada or a foreign jurisdiction, trading as a
trustee or agent on behalf of a fully managed
account;
17. |_| a person or company trading as agent on behalf
of a fully managed account if that person or
company is registered or authorized to carry on
business under the securities legislation of a
jurisdiction of Canada or a foreign jurisdiction
as a portfolio manager or under an equivalent
category of adviser or is exempt from
registration as a portfolio manager or the
equivalent category of adviser;
18. |_| a registered charity under the Income Tax Act
(Canada) that, in regard to the trade, has
obtained advice from an eligibility adviser or
other adviser registered to provide advice on
the securities being traded;
21
May 2005
19. |_| an entity organized in a foreign jurisdiction
that is analogous to any of the entities
referred to in paragraphs 1 to 5 and paragraph
10 above in form and function;
20. |_| a person or company in respect of which all of
the owners of interests, direct or indirect,
legal or beneficial, are persons or companies
that are accredited investors;
21. |_| the Caisse centrale Xxxxxxxxxx du Quebec;
22. |_| a financial services cooperative within the
meaning of an Act Respecting Financial Services
Cooperatives (Quebec);
23. |_| a person designated as a "sophisticated
purchaser" by the Quebec Autorite des marches
financiers.
For the purposes of this Addendum, the following definitions apply:
"financial assets" means cash and securities;
"mutual fund" includes an issuer of a security that entitles the holder
to receive on demand, or within a specified period after demand, an
amount computed by reference to the value of a proportionate interest in
the whole or in a part of the net assets, including a separate fund or
trust account, of the issuer of the security;
"person" includes an individual, corporation, partnership, party, trust,
fund, association and any other organized group of persons and the
personal or other legal representative of a person to whom the context
can apply according to law;
"related liabilities" means
(a) liabilities incurred or assumed for the purpose of financing the
acquisition or ownership of financial assets, or
(b) liabilities that are secured by financial assets.
"subsidiary" means an issuer that is controlled by another issuer.
For the purposes of this Addendum, an issuer is affiliated with another
issuer if:
(a) one of them is the subsidiary of the other, or
(b) each of them is controlled by the same person or company.
For the purposes of this Addendum, an issuer is controlled by a person
or company if,
(a) voting securities of the issuer are held, other than by way of
security only, by or for the benefit of that person, and
(b) the voting rights attached to those voting securities are
entitled, if exercised, to elect a majority of the directors of
the issuer.
The undersigned: (a) if an individual, is making the above statement
based on personal knowledge of his/her financial situation and has
reviewed personal financial documentation with an accountant, financial
advisor or other financial professional to
22
May 2005
determine the above statement is true; or (b) if other than an
individual, is making the above statement based on a review of its
financial statements for the most recently completed financial year and
any interim financial statements prepared since the end of such
financial year and has undertaken such other review and due diligence
necessary to determine and certify that it is an "accredited investor"
as that term is defined in Multilateral Instrument 45-103 "Capital
Raising Exemptions"; and the undersigned understands that Calyon
Financial is relying on this certificate as evidence of the Customer's
status as accredited investor or sophisticated purchaser.
B. The parties have requested that this Futures Account Agreement and
all related documents and agreements be drawn up in the English
language only. Les parties aux presentes ont demande que la
presente convention et tous les documents et conventions s'y
rapportant soient redigees en langue anglaise seulement.
C. Except as herein modified or amended, the provisions, conditions
and terms of the Futures Account Agreement shall remain unchanged
and in full force and effect.
D. In the case of any inconsistency between the provisions of the
Futures Account Agreement and this Addendum, the provisions of
this Addendum shall govern and control.
E. The capitalized terms used in this Addendum shall have the same
definitions as set forth in the Futures Account Agreement to the
extent that such capitalized terms are defined therein and not
redefined in this Addendum.
CALYON FINANCIAL INC. AIS FUTURES FUND IV L.P.
-------------------------------------
(Customer Name)
By: ______________________________ By: /s/ Xxxx Hummel_____________
Name: ______________________________ Name: Xxxx Hummel_________________
Title: ______________________________ Title: President, AIS Futures
Management, LLC, its general
partner
Date: ______________________________ Date: ____________________________
23
May 2005
Chicago
Calyon Financial Inc.
000 Xxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
PHONE: 0-000-000-0000
FAX: 0-000-000-0000
New York
Calyon Financial Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
PHONE: 0-000-000-0000
FAX: 0-000-000-0000
