EXHIBIT NO. 10.01(b)
ADM Investor Services, Inc.
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 low 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' liability 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 indemnity 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 customers agents) and other costs to ADMIS occasioned
by carrying the account of the customers; (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 attorney's 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 from other accounts of customer including
transfers between CFTC Segregated and other accounts. Failure of
ADMIS to so act in such circumstance, 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 for 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
has 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 to U.S. Dollars at the discretion of ADMIS at an
exchange rate 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
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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 made 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 statue. 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, at 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
ADM 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 all losses, liabilities, and damages (including
attorney's 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
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 exchange contracts 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 in 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 form trading in commodities, commodity futures
contracts, options contracts, forward contracts, foreign exchange or other
physical or cash 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)_______________________
X Name (Signature)__________________ X Name (Signature)___________________
Customer/Officer/Partner Customer/Officer/Partner
Date_______________ Date_______________
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