Exhibit 10.07
PLEASE READ THIS COMMODITY CUSTOMER AGREEMENT CAREFULLY
ING (U.S.) Securities, Futures & Options Inc. 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
In consideration of your accepting its account and your agreement to
act as its broker, Customer agrees to the following with respect to any and
all of its accounts with ING (U.S.) Securities, Futures & Options Inc.
("ING") for the purchase and sale of securities, monies, physical
commodities, futures contracts, options on futures, foreign futures
contracts, options on foreign futures, forward contracts, exchange for
physical and foreign exchange contracts (collectively referred to as
"commodities" or "property"):
1. Customer represents that it is the sole owner of its accounts
and that no person or entity, except as disclosed to you, has any interest
therein. The Customer agrees to notify you of the identity of any other
person or entity who controls the trading of the account, has a financial
interest of 10% or more in the account or the identity of any other account
in which the Customer controls or has a 10% or more ownership interest. The
Customer shall maintain its account(s) in accordance with and shall be solely
responsible for compliance with the rules, regulations and/or guidelines
issued by any federal, state or administrative bodies having oversight or
regulatory authority over its activities, and any statutes governing its
activities.
2. All transactions for Customer's account(s) shall be subject to
the regulations of all applicable federal, state and self-regulatory agencies
including the constitution, rules and customs, as the same may be constituted
from time to time, of the exchanges, market or place (and the clearing
associations, if any) where executed or, if different, your house rules. This
paragraph is solely for your protection and your failure to comply with any
such regulations, constitutions, rules and/or customs shall not be a breach
of this Agreement and shall not relieve Customer of any of its obligations
under this Agreement.
3. Customer agrees not to exceed the position limits of any federal
agency or exchange for its account(s), acting alone or in concert with
others. Customer will promptly notify you of positions for which Customer is
required to file reports with the Commodity Futures Trading Commission
("CFTC") or any exchange.
4. Customer understands that you have at your sole and absolute
discretion the right to limit positions in its account(s), to decline to
accept any orders and to require that its account(s) be transferred to
another firm. Customer understands that if Customer does not promptly
transfer its positions upon your demand you reserve the right to liquidate
positions in its account(s) at your sole and absolute discretion. Customer
also understands that you may
transfer its account to another firm upon written notice unless Customer
objects to the proposed transfer within a reasonable period of time after the
receipt of such notice.
5. Customer understands that you act as agent and not as principal
for your clients' commodity futures and commodity options transactions which
are effected on exchanges. Consequently, you do not guarantee the
performance of the obligations of any party to the futures or options
contracts purchased and/or sold by your clients. Customer understands you
may act as principal in certain cash, forward, foreign commodity and foreign
exchange transactions.
6. Any property belonging to Customer or in which Customer has an
interest, either individually or jointly with others, held by you or any of
your subsidiaries or affiliates or carried in any account(s) shall be subject
to a general lien and security interest for the discharge of Customer's
obligations to you, wherever or however arising and without regard to whether
or not you have made advances with respect to such property, and you are
hereby authorized to sell and/or purchase any and all such property without
notice to satisfy such general lien and security interest. Customer
irrevocably appoints you as its attorney-in-fact with power of substitution
to execute any documents for the perfection or registration of such general
lien and security interest.
7. Customer agrees to maintain such collateral and/or margin as you
may from time to time, in your sole and absolute discretion, require and
agrees to pay immediately on demand any amount owing with respect to any of
Customer's accounts. Margin requirements may be increased at ING's sole and
absolute discretion and may differ from those established by the exchange on
which the transaction is executed. Margin requirements are subject to change
without notice and will be enforced retroactively and prospectively. Customer
shall make deposits of margin as ING requests within a reasonable time after
such request. It is agreed and understood that one hour may be deemed to be
a reasonable time; provided, however, that ING, in its sole and absolute
discretion, may request that deposits be made in a lesser period of time.
ING's failure to require satisfaction of a margin call within one hour, or
any shorter time period, on any occasion shall not be deemed to be a waiver
of its right to do so in the future. Customer shall provide ING with the
names of bank officers and information necessary for immediate verification
of wire transfers.
8. In the event Customer fails to deposit sufficient funds to pay
for any commodities and/or to satisfy any demands for original and/or
variation margin, or whenever in your sole and absolute discretion you
consider it necessary, you may, without prior demand or notice, when and if
you deem appropriate, notwithstanding any rule of any exchange, liquidate the
positions in Customer's account(s), hedge and/or offset those positions in
the case market or otherwise, sell any property belonging to Customer or in
which Customer has an interest, cancel any open orders for the purchase and
sale of any property, or borrow or buy any property required to make delivery
against any sales, including a short sale, effected for Customer, all for
Customer's sole account and risk. Such sale or purchase may be public or
private and may be made without advertising or notice to Customer and in such
manner as you may, in your sole and absolute discretion, determine, and no
demands, tenders or notices which you may make or give shall invalidate
Customer's aforesaid waiver. Customer agrees that ING has no duty and is not
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required to liquidate positions in Customer's account(s) and that the
provisions of this paragraph are solely for the protection of ING. The
proceeds of such transactions, if any, are to be applied to reduce any
indebtedness owing by Customer to you.
9. Customer acknowledges that Customer shall be liable for all
losses in its account(s) whether or not its account(s) is liquidated and for
any debts and deficiencies, including, but not limited to, interest, costs,
expense and attorneys' fees, including all debts and deficiencies resulting
from a liquidation of Customer's account(s). Customer further agrees that
ING shall have full authority to set off all debts owned to ING by Customer
against any and all accounts which Customer has or in which Customer has an
interest at ING.
10. Customer agrees to pay storage and delivery charges and service
fees charged to its account(s). Customer authorizes you to pay and charge
its account(s) any give-up or give-in fee that may be charged by any
executing firm or broker whom Customer or its agents have authorized to
execute transactions for its account(s). Customer agrees to pay such fees,
brokerage and commission charges as you may impose or which may be imposed by
any exchange or regulatory organization. Unless otherwise agreed, you may
charge exchange, clearing, brokerage and NFA fees as separate items for each
transaction in its account(s). Customer understands that current NFA fees
are $.14 per each futures round turn and $.07 per each option side and are
charged pro-rata for Mid America Commodity Exchange contracts and such fees
are subject to change without notice. Customer acknowledges that
transactions on the Mid America Commodity Exchange may include a "changer
fee" and the amount of such fee, if any, included in a transaction price will
be provided upon request. In the event a debit balance occurs in Customer's
account(s), you shall be entitled to receive and charge to its account(s)
interest at the greater of the following rates: twelve (12) percent per year,
or at the rate determined by adding one (1) percent to the rate announced
from time to time by Xxxxxx Trust and Savings Bank of Chicago as its prime
commercial rate for the entire period that such debit shall exist. Customer
agrees that any and all interest earned on any available cash balances in
Customer's account(s) may accrue to, and may be retained by ING. In the
event that Customer's account(s) is transferred to another futures commission
merchant, a reasonable transfer charge may be imposed and charged against
Customer's account(s).
11. This agreement shall be binding upon Customer, its successors
and assigns and in the event of dissolution, liquidation, bankruptcy or any
similar act, you may cancel or complete any open orders for the purchase or
sale of any property; you may place orders for the sale of property which you
may be carrying for it, or buy any property of which its account(s) may be
short, or any part thereof, under the same terms and conditions as
hereinabove stated, as though Customer was still in existence, without prior
notice to its trustees, successors or assigns and without prior demand upon
any of them.
12. Written confirmation of actual transactions and/or orders,
purchase and sales notices, correction notices and statements of Customer's
account(s) (collectively "statements") shall be conclusive and deemed
ratified by Customer unless ING shall receive oral notice from Customer to
the contrary IMMEDIATELY upon Customer's receipt thereof and thereafter
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confirmed by Customer in writing. Oral notice shall be given to ING by
telephoning ING at (000) 000-0000, Attention: Compliance Department. In any
event, such statements shall be conclusive and deemed ratified by Customer if
not objected to in writing with SEVEN days after mailing by you to it. In
the event Customer fails to receive statements for its account within SEVEN
days from the date of a transaction in its account, such transaction shall be
conclusive and deemed ratified by Customer unless Customer notifies you
IMMEDIATELY in writing of its failure to receive such statements.
Communications mailed to Customer at the address specified hereon shall,
until you have received notice in writing of a different address, be deemed
to have been personally delivered to Customer and Customer agrees to waive
all claims resulting from failure to receive such communications. Written
notice to ING under this paragraph shall be sent to: ING (U.S.) Securities,
Futures & Options Inc., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX.,
00000 Attention: Compliance Department.
13. Customer understands they you are not responsible for any
losses resulting directly or indirectly from any government restriction,
exchange ruling, suspension of trading, actions of independent floor brokers,
or other persons beyond your control, war, strike, national disaster or wire
malfunction, delay in mails or any other delay or inaccuracy in the
transmission of orders or the information because of a breakdown or failure
of transmission or communication facilities. All price quotations, commodity
information, or trade reports given to Customer are also subject to change
and errors, as well as delays in reporting and Customer acknowledges that
reliance upon such information is at its own risk. Customer understands that
Customer is bound to the actual executions of transactions on the exchange(s)
and that you are not bound by erroneous reports of executions transmitted to
it.
14. Customer acknowledges that you are hereby specifically
authorized for your account and benefit, from time to time and without notice
to Customer, either separately or with other, to lend, pledge, repledge,
hypothecate or rehypothecate, either to yourself or to others, any and all
property (including, but not limited to, metals, warehouse receipts or other
negotiable instruments) held by you in any of its accounts and you shall not
at any time be required to deliver to Customer identical property, but may
fulfill your obligations to Customer by delivery of property of the same kind
and amount.
15. If Customer initiates a transaction on an exchange or in a
market which margins or settles the position(s) in a currency different than
the type held or deposited in its account(s), you shall have the right to
convert such currency from one type to another (e.g. U.S. to foreign
currency, foreign currency to U.S. currency, or foreign currency to other
foreign currency) as you in your sole and absolute discretion may determine
at an exchange rate determined by you in your discretion based on prevailing
money markets. Any profit or loss from a fluctuation in the exchange rate of
such currency will be for Customer's sole account and risk. Unless Customer
instructs you otherwise, monies Customer deposits with you in currency other
than U.S. dollars and unrealized profits in currency other than U.S. dollars
are not intended to margin, guarantee or secure transactions on United States
contract markets.
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16. No provision of this Agreement can be amended or waived except
in writing signed by a Principal of ING. No oral agreements or instructions
contrary to any provisions of this Agreement shall be recognized or
enforceable. Customer agrees to be bound by any amendments to this Agreement
to which Customer has not objected in writing within three business days
after receipt thereof. The failure of ING to enforce, at any time, any
provision of this Agreement shall not be construed to be a waiver of such
provision and shall not in any way affect the validity of this Agreement or
the right of ING thereafter to enforce each and every provision of this
Agreement. No waiver or amendment shall be implied from your conduct, action
or inaction.
17. NOTICE OF CFTC Reg. Section 15.05 and Reg. Section 21.03,
relating to Foreign Brokers and Foreign Traders. A Foreign Broker is any
non-U.S. resident who carries an account in commodities for any other person.
A Foreign Trader is any non-U.S. resident who owns or controls an account in
commodities. If Customer is a foreign trader or foreign broker Customer
understands that pursuant to CFTC Regulation 15.05, you are its agent or the
agent of its customers for purposes of accepting delivery and service of any
communications issued by the CFTC with respect to any futures or options
contracts which are or have been maintained in accounts carried by you.
Customer understands that ING will transmit the communication promptly to it
in a manner which is reasonable under the circumstances or as specified by
the CFTC. Customer also understands CFTC Regulation 21.03 requires it to
provide to the CFTC upon special call, market information concerning it or
its customers' options and futures trading. If Customer fails to respond to
the special call, the CFTC may direct the appropriate contract market and all
brokers to prohibit or restrict further trades for or on its or its customers
behalf. (Customer understands that copies of Reg. Section 15.05 and Section
21.03 are available from ING upon its written request.)
18. Customer understands that some exchanges and clearing houses
have established cut-off times for the tender of exercise instructions and
that an option will become worthless if instructions are not received by ING
before such expiration time. Customer also understands that certain
exchanges and clearing houses automatically exercise some "in-the-money"
options unless instructed otherwise. Customer acknowledges full
responsibility for taking action either to exercise or to prevent the
automatic exercise of an option contract, as the case may be, and you are 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 its automatic exercise, except upon Customer's express
instructions. Customer further understands that you may establish exercise
cut-off times which may be different from the times established by exchanges
and clearing houses. Customer understands that all short option positions are
subject to assignment at any time including positions established on the same
day that exercises are assigned, and assignment notices are allocated
randomly from among all your customers' short options positions which are
subject to assignment.
19. This Agreement shall enure to the benefit of ING's present
organization, and any successor organization, irrespective of any change or
changes at any time in the personnel thereof for any cause whatsoever, and to
any of ING's assigns. Customer agrees that all of its
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rights and obligations under this Agreement shall not be assigned,
transferred, sold or otherwise conveyed, and any such attempted assignment,
transfer, sale or conveyance shall be null and void and of no force or
effect. In any event, ING may, subject to the applicable rules and
regulations of the CFTC and the National Futures Association ("NFA"), assign
this Agreement and transfer Customer's account(s) to another duly registered
futures commission merchant.
20. You are authorized to accept oral or telephonic orders as
Customer or its authorized agent may give for transactions in its account(s).
Customer hereby waives any defense that such order was not in writing or
evidenced by a memorandum in writing as required by the Statute of Frauds or
any other statute. Although authorized, you are not required to accept oral
or telephonic orders. You are further authorized to record whether by tape,
wire or other method, with or without a periodic tone signal, any and all
telephonic or other oral communications between us, with or without notice
thereof.
21. Should you become a party, without fault on your part, to any
action or proceeding arising out of Customer's account(s) or orders given to
you, Customer agrees to indemnify and hold you harmless therefrom and to pay
you such attorneys' fees and costs incurred by you as the court or
arbitration panel may determine. Customer shall further indemnify you and
hold you harmless from and against any and all liabilities, losses, damages,
costs and expenses, including attorneys' fees, which arise out of, or which
in any manner or way whatsoever are related to any representation made by
Customer in this Agreement, or by its failure to perform any of its
agreements made herein, including, but not limited to, the failure to
immediately pay any deficit balances which may arise in its account(s).
22. I agree that this account documentation and any and all
subparts contained herein, or any other documentation delivered in connection
with the maintenance of the undersigned account, may be delivered by
facsimile and such delivery shall have the same effect as the delivery of
originally executed account documentation. I authorize you to rely on and
release you from any and all claims arising out of your reliance on such
facsimiles. I agree to indemnify and save you harmless from and against any
and all liabilities, losses, damages, costs and expenses, including attorneys
fees which may arise out of, or which in any manner or way whatsoever are
related to your acceptance of the facsimiles referenced herein.
23. This Agreement has been made and delivered at Chicago,
Illinois. Its validity, construction and enforcement shall be governed by
and construed with the substantive laws of the State of Illinois, without
reference to its principal of conflicts of laws. This Agreement constitutes
the entire understandings among the parties with respect to the subject
matter hereof. Wherever possible, each portion of this Agreement shall be
interpreted in such a manner to be valid and effective under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such
provisions or the remaining provisions of this Agreement. CUSTOMER AGREES
NOT TO COMMENCE ANY LEGAL OR ADMINISTRATIVE PROCEEDING AGAINST ING UNTIL ANY
DEFICIT BALANCE IN THE ACCOUNT(S) IS SATISFIED.
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CONSENT TO JURISDICTION
ALL ACTIONS, DISPUTES, CLAIMS OR PROCEEDINGS, INCLUDING, BUT NOT
LIMITED TO, ANY ARBITRATION PROCEEDING, INCLUDING NFA ARBITRATIONS, ARISING
DIRECTLY OR INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED TO OR FROM THE
CUSTOMER AGREEMENT, ANY OTHER AGREEMENT BETWEEN THE CUSTOMER AND ING (U.S.)
SECURITIES, FUTURES & OPTIONS INC. OR ANY ORDERS ENTERED OR TRANSACTIONS
EFFECTED FOR CUSTOMER'S ACCOUNT(S), WHETHER OR NOT INITIATED BY ING, SHALL BE
ADJUDICATED ONLY IN COURTS OR OTHER DISPUTE RESOLUTION FORUMS WHOSE SITUS IS
WITHIN THE CITY OF CHICAGO, STATE OF ILLINOIS, AND CUSTOMER HEREBY
SPECIFICALLY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT OR ARBITRATION PROCEEDINGS LOCATED WITHIN THE CITY OF CHICAGO, STATE OF
ILLINOIS.
CUSTOMER WAIVES ANY CLAIM CUSTOMER MAY HAVE THAT (A) CUSTOMER IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT OR
ARBITRATION PROCEEDING LOCATED WITHIN THE STATE OF ILLINOIS, (B) CUSTOMER IS
IMMUNE FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION OR OTHERWISE)
WITH RESPECT TO CUSTOMER OR CUSTOMER'S PROPERTY, (C) ANY SUCH SUIT, ACTION OR
PROCEEDINGS IS BROUGHT IN AN INCONVENIENT FORUM, (D) THE VENUE OF AN SUCH
SUIT, ACTION OR PROCEEDING IS IMPROPER OR (E) THIS CONSENT OR THE CUSTOMER
AGREEMENT BETWEEN CUSTOMER AND ING MAY NOT BE ENFORCED IN OR BY SUCH COURT OR
ARBITRATION PROCEEDING.
BY SIGNING THE CONTRACT CONTAINING THIS CONSENT TO JURISDICTION,
CUSTOMER ASSENTS TO JURISDICTION AS SET FORTH ABOVE, AND ACKNOWLEDGES THAT
THESE CLAUSES WERE FREELY AND KNOWINGLY NEGOTIATED BETWEEN THE PARTIES.
THIS COMMODITY CUSTOMER AGREEMENT IS A CONTRACTUAL AGREEMENT, DO NOT
SIGN IT UNTIL YOU HAVE READ IT CAREFULLY, BY SIGNING BELOW, THE UNDERSIGNED
REPRESENTS AND WARRANTS TO YOU THAT ALL INFORMATION CONTAINED HEREIN, OR IN
ANY OTHER ACCOUNT FORM OR OTHER DOCUMENT FROM THE UNDERSIGNED IS TRUE AND
CORRECT AND THAT IF ANY CHANGE TO SUCH INFORMATION OCCURS, THE UNDERSIGNED
WILL IMMEDIATELY INFORM YOU, IN WRITING, OF SUCH CHANGE. BY SIGNING BELOW,
THE UNDERSIGNED ACKNOWLEDGES THAT (S)HE HAS READ AND UNDERSTANDS ALL OF THE
TERMS AND CONDITIONS OF THE COMMODITY CUSTOMER AGREEMENT AND AGREES TO BE
BOUND BY THEM.
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X_________________________________
President, Secretary, Chairman or
CEO's Signature Required
(If a Partnership Account, General
Partner's Signature Required)
(If a Trust Account, Trustee(s)
Signature Required)
Date:____________ Time:___________
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