Exhibit 10.1
Form of Customer Agreement
To: ADM Investor Services, Inc.
141 West Jackson Blvd.
Chicago, IL 60604
Gentlemen:
In consideration of the acceptance by ADM Investor Services, Inc. ("ADMIS")
acting as broker, of one or more accounts of the undersigned ("Customer") for
the purchase or sale of commodity futures, commodity options, forward contracts,
foreign exchange, physical or cash commodities, and exchange for physical
("EFP") transactions (collectively "contracts") it is agreed as follows:
1. Customer acknowledges the following:
(a) The purchase and sale of commodity futures contracts,
exchange-traded and dealer options (commodity options) is
speculative, involves a high degree of risk and is suitable only
for persons who can assume the risk of loss in excess of their
margin deposits or of the entire option cost. Customer
understands that because of the law margin normally required in
commodity futures trading, price changes in commodity futures
contracts may result in significant Customer losses, which losses
may substantially exceed Customer's margin deposits and any other
deposits he may make. Customer also acknowledges that he has
received, has read and understands this agreement.
(b) Customer authorizes ADMIS to execute such transactions for the
Customer's account and exercise commodity options for Customer's
account in accordance with Customer's oral or written
instructions. ADMIS shall have the right to refuse to accept any
orders. ADMIS shall also have the right to tape record all
telephone conversations with Customer.
(c) Customer understands that ADMIS or its affiliates will at times
act as principal in regard to cash, forward, or foreign exchange
transactions.
(d) ADMIS shall not be responsible to Customer in any case for a
floor brokers' inability to execute orders, or for error or
negligence on the part of floor brokers who are not employees of
ADMIS. Furthermore, ADMIS is not obligated to quote a price for
any principal transaction.
(e) The Customer acknowledges that the execution of a futures
contract always anticipates making or accepting delivery.
Customer hereby authorizes ADMIS to take all action deemed
necessary by ADMIS in the event ADMIS takes physical delivery for
Customer and Customer hereby agrees to indemnify ADMIS from all
costs associated therewith. ADMIS may, in its sole discretion,
liquidate any short position in Customer's account if Customer
has not delivered to ADMIS certificates, receipts, or other
appropriate instruments of delivery at least seven days prior to
the last trading day of the futures contract.
(f) Customer acknowledges the right of ADMIS to limit, without notice
to Customer, the number of open positions which Customer may
maintain or acquire through ADMIS.
2. Customer shall deposit with ADMIS (1) the applicable initial and
maintenance requirements; pay interest, commission charges in effect from time
to time (which commissions may be shared by more than one of Customer's agents)
and other costs to ADMIS occasioned by carrying the account of the Customer; (2)
deposit the amount of any deficit balance that may result from transactions
executed by ADMIS for Customer's account, and (3) pay the interest and service
charges on any Customer deficit balances at the rates customarily charged by
ADMIS together with ADMIS's cost and attorneys' fees incurred in collecting any
such deficit or defending claims brought by Customer in which ADMIS is the
prevailing party.
3. Customer understands and acknowledges that ADMIS acts as agent for all
transactions which are executed on commodity futures exchanges and among other
requirements, is financially liable to the exchange clearing houses of which it
is a member and to the clearing members through which it clears transactions on
exchanges of which it is not a clearing member, for deficit balances occurring
in the Customer's accounts; because of this, ADMIS is the guarantor of the
financial responsibility of the Customer. Therefore, Customer agrees to hold
ADMIS harmless with respect to any and all losses sustained by ADMIS resulting
from deficit balances which may occur in the Customer's account.
4. Customer shall, without notice or demand from ADMIS, at all times,
maintain adequate margins, so as continually to meet the margin requirements
established by ADMIS. Such margin requirements established by ADMIS, in its sole
and absolute discretion, may exceed the margin requirements set by any commodity
exchange, or other regulatory authority. Customer agrees, when required, to wire
transfer margins to ADMIS or any monies so required, and to furnish ADMIS with
names of bank officers for immediate verification of such transfers.
5. If, at any time, Customer's account does not contain the amount of
margin required by ADMIS, or by any exchange, clearing house or other regulatory
authority, ADMIS may, at its sole and absolute discretion, at any time or from
time to time, without notice to Customer, close out Customer's open positions in
whole or in part or take any other action it deems necessary to satisfy such
requirements, including, but not necessarily limited to, transferring funds form
other accounts of Customer including transfers between CFTC Segregated and other
accounts. Failure of ADMIS to so act in such circumstances, in whole or in part,
shall not constitute a waiver of its rights so to do any time or from time to
time thereafter, nor shall ADMIS be subject to any liability to Customer or its
failure so to act. In addition, ADMIS has the right but not the obligation, to
liquidate the account(s) upon receipt of notice of the death of Customer (if
applicable).
6. All monies, securities, negotiable instruments, forward contracts,
foreign exchange contracts, physical or cash contracts, commodity options, open
position in futures contracts and commodities, or other property now or at any
future time in Customer's account, or held by ADMIS or its affiliates for
Customer, are hereby pledged with ADMIS, and shall be subject to a security
interest in ADMIS's favor to secure any indebtedness, at any time, owing from
Customer to ADMIS without regard to whether or not ADMIS or its affiliates had
made advances with respect to such property. Customer will not cause or allow
any of the property held in his accounts to be subject to any other liens,
security interests, mortgages or other encumbrances without the express written
approval of ADMIS.
7. Customer understands that obligations arising out of transactions
denominated and/or paid for in currencies other than U.S. Dollars may be
converted at the discretion of ADMIS at an exchange rate
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determined by ADMIS at its discretion based on prevailing market rates and
Customer will be required to pay ADMIS in U.S. Dollars.
8. Customer acknowledges that: (1) any market recommendations and
information communicated to Customer by ADMIS do not constitute an offer to
sell, or the solicitation of an offer to buy any commodity, or any commodity
futures contract; (2) such recommendations and information, although based upon
information obtained from sources believed by ADMIS to be reliable, may be
incomplete and may not be verified; and (3) ADMIS makes no representation,
warranty or guarantee as to, and shall be responsible for, the accuracy or
completeness of any information or trading recommendation furnished to Customer.
Customer understands that ADMIS and/or its officers, directors, affiliates,
stockholders or representatives may have a position or positions in and may
intend to buy or sell commodities or commodity futures contracts, which are the
subject of market recommendations furnished to Customer, and that the position
or positions of ADMIS or any such officer, director, affiliate, stockholder, or
representative may or may not be consistent with the recommendations furnished
to Customer by ADMIS.
9. All transactions by ADMIS on Customer's behalf shall be subject to the
applicable constitution, rules, regulations, customs, usages, rulings and
interpretations of the exchanges or markets on which such transactions are
executed by ADMIS or its agents for Customer's account (such as the Board of
Trade of the City of Chicago, The Chicago Mercantile Exchange, and the
MidAmerica Commodity Exchange and the clearing houses affiliated with each, if
any) and to all applicable governmental acts and statutes (such as the Commodity
Exchange Act of the Commodity Futures Trading Commission Act of 1974) and to
rules and regulations mad thereunder; ADMIS shall not be liable to Customer as a
result of any action taken by ADMIS, or its agents, to comply with any such
constitution, rule, regulation, custom, usage, ruling, interpretation, act or
statute. If Customer is subject to regulation, Customer agrees that ADMIS has no
duty to ascertain or ensure that Customer is in compliance with any governing
statutes or rules.
10. If, any time, Customer shall be unable to deliver to ADMIS any
security, commodity or other property previously bought or sold by ADMIS on
Customer's behalf, Customer authorizes ADMIS, in its discretion, to borrow or to
buy any security, commodity, or other property necessary to make delivery
thereof, and Customer shall pay and indemnify ADMIS for any cost, loss, and
damage (including consequential costs, losses and damages) which ADMIS may
sustain thereby and any premiums which ADMIS may be required to pay thereon, and
for any cost, loss and damage (including consequential costs, losses and
damages) which ADMIS may sustain thereby and any premiums which ADMIS may be
required to pay thereon, and for any cost, loss and damage (including
consequential costs, losses and damages) which ADMIS may sustain from its
inability to borrow or buy any such security, commodity or other property.
11. Customer acknowledges and agrees that ADMIS shall not be responsible to
Customer for any losses resulting from conduct or advice (including but not
limited to errors and negligence) on the part of any broker/dealer, futures
commission merchant, introducing broker, commodity trading advisor, or any other
person or entity introducing Customer to ADMIS or having trading authority over
the account of Customer at ADMIS. Customer specifically agrees that ADMIS shall
have no obligation to supervise the activities of any such person or entity and
Customer will indemnify ADMIS and hold ADMIS harmless from and against al
losses, liabilities, and damages (including attorneys' fees) incurred by ADMIS
as a result of any actions taken or not taken by such person or entity.
12. Customer authorizes ADMIS to contact such banks, financial
institutions, credit agencies and other references as ADMIS shall deem
appropriate from time to time verify the information regarding Customer which
may be provided by Customer. Customer understands that an investigation may be
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made pertaining to his personal and business credit standing and that Customer
may make a written request within a reasonable period of time for complete and
accurate disclosure of its nature and scope.
13. ADMIS shall not be responsible for delays in the execution of orders
due to breakdown, or failure of transmission, or communication facilities, or to
any other cause beyond ADMIS's control.
14. Confirmation of trades, contracts statements of account, margin calls,
and any other notices sent by ADMIS to Customer shall be sent to the address
shown in and to the attention of the person(s) named in the "Commodity
Agreement" and they shall be conclusively deemed accurate and complete, if not
objected to, in writing, prior to the opening of trading on the contract market
on which such transaction occurred on the next business day following the day on
which such communication was first received. The price at which an order is
executed shall be binding notwithstanding the fact an erroneous report is made.
An order which was executed but in error reported as not executed shall be
binding. Customer shall direct all objections to ADM Investor Services, Inc.,
141 West Jackson Boulevard, Suite #1600A, Chicago, Illinois 60604, Phone No.
(312) 435-7000.
15. All transactions for or on Customer's behalf shall be deemed to be
included in a single account whether or not such transactions are segregated on
ADMIS's records into separate accounts, either severally or jointly with others,
for purposes including reportable positions as required by regulatory
authorities.
16. The Agreement, including all authorizations, shall insure to the
benefit of ADMIS, its successors and assigns and shall be binding upon Customer
and Customer's personal representatives, executors, trustees, administrators,
agents, successors, and assigns. In the event that Customer's financial
condition becomes unsatisfactory to ADMIS, in its sole discretion, or that a
petition, voluntary or involuntary, in bankruptcy to reorganize, or to effect a
composition or extension, is filed by or against Customer, or in the event a
receiver is appointed of Customer's property or business in any proceeding
whatsoever, state or federal, or in the event of Customer's legal incapacity or
death (and whenever the Customer consists of more than one person, then upon the
occurrence or any of the aforementioned contingencies to any of them), ADMIS
may, at its sole and absolute discretion, either continue to carry or close and
liquidate the account of Customer, including the covering of short positions,
exercise of options or offset of forward contracts and foreign exchanges subject
to no liability to the personal representatives, executors, trustee,
administrators, agents, successors or assigns of Customer for the use of such
discretion.
17. The rights and remedies conferred upon the parties hereto shall be
cumulative, and the exercise or waiver of any thereof shall not preclude or
inhibit the exercise of additional rights or remedies.
18. Customer agrees that ADMIS may, from time to time, change the account
number assigned to any account covered by this Agreement, and that this
Agreement shall remain in full force and effect. Customer agrees further that
this account, as well as all additional accounts opened by him at ADMIS, shall
be covered by this same Agreement with the exception of any new account for
which a new Customer Agreement is signed.
19. All actions or proceedings arising directly, indirectly or otherwise in
connection with, out of, related to, or from this Agreement or any transaction
covered hereby shall be governed by the law of Illinois and may, at the
discretion and election of ADMIS, be litigated in courts whose situs is within
Illinois.
20. Customer represents that (1) he/she is (or, if Customer is a
corporation, that each officer and director is, if Customer is a partnership,
that each partner is) an adult of sound mind and is under no legal disability
which would prevent him/her from trading in commodities, commodity futures
contracts,
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options contracts, forward contracts, foreign exchange or other physical or case
contracts therein or entering into this Agreement; (2) he/she is (or its
officers and directors or its partners are) authorized to enter into this
Agreement.
Name (Print)____________________________ Name (Print)________________________
Name (Signature)________________________ Name (Signature)____________________
Customer/Officer/Partner Customer/Officer/Partner
Date___________________ Date___________________
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