EXHIBIT 10.02
----------------------------
For Office Use Only
CORPORATE/PARTNERSHIP/TRUST
ACCOUNT FORM
____________________________
Customer Name
____________________________
Account Number/Salescode
____________________________
Approval
----------------------------
ING BARINGS
FUTURES & OPTIONS CLEARING SERVICES
ING (U.S) Securities, Futures & Options, Inc.
233 South Wacker Drive
Suite 5200
Chicago, Illinois 60606
Telephone: (312) 496-7000
Facsimile: (312) 496-7125
RISK DISCLOSURE STATEMENT FOR FUTURES AND OPTIONS
This brief statement does not disclose all of the risks and other
significant aspects of trading in futures and options. In light of the risks,
you should undertake such transactions only if you understand the nature of the
contracts (and contractual relationships) into which you are entering and the
extent of your exposure to risk. Trading in futures and options is not suitable
for many members of the public. You should carefully consider whether trading is
appropriate for you in light of your experience, objectives, financial resources
and other relevant circumstances.
Futures
1. Effect of 'Leverage' or 'Gearing'
Transactions in futures carry a high degree of risk. The amount of initial
margin is small relative to the value of the futures contract so that
transactions are 'leveraged' or 'geared'. A relatively small market movement
will have a proportionately larger impact on the funds you have deposited or
will have to deposit: this may work against you as well as for you. You may
sustain a total loss of initial margin funds and any additional funds deposited
with the firm to maintain your position. If the market moves against your
position or margin levels are increased, you may be called upon to pay
substantial additional funds on short notice to maintain your position. If you
fail to comply with a request for additional funds within the time prescribed,
your position may be liquidated at a loss and you will be liable for any
resulting deficit.
2. Risk-reducing orders or strategies
The placing of certain orders (e.g., 'stop-loss' orders, where permitted
under local law, or 'stop-limit' orders) which are intended to limit losses to
certain amounts may not be effective because market conditions may make it
impossible to execute such orders. Strategies using combinations of positions,
such as 'spread' and 'straddle' positions may be as risky as taking simple
'long' or 'short' positions.
-1-
Options
3. Variable degree of risk
Transactions in options carry a high degree of risk. Purchasers and sellers
of options should familiarize themselves with the type of option (i.e., put or
call) which they contemplate trading and the associated risks. You should
calculate the extent to which the value of the options must increase for your
position to become profitable, taking into account the premium and all
transaction costs.
The purchaser of options may offset or exercise the options or allow the
options to expire. The exercise of an option results either in a cash settlement
or in the purchaser acquiring or delivering the underlying interest. If the
option is on a future, the purchaser will acquire a futures position with
associated liabilities for margin (see the section on Futures above). If the
purchased options expire worthless, you will suffer a total loss of your
investment which will consist of the option premium plus transaction costs. If
you are contemplating purchasing deep-out-of-the-money options, you should be
aware that the chance of such options becoming profitable ordinarily is remote.
Selling ('writing' or 'granting') an option generally entails considerably
greater risk than purchasing options. Although the premium received by the
seller is fixed, the seller may sustain a loss well in excess of that amount.
The seller will be liable for additional margin to maintain the position if the
market moves unfavorably. The seller will also be exposed to the risk of the
purchaser exercising the option and the seller will be obligated to either
settle the option in cash or to acquire or deliver the underlying interest. If
the option is on a future, the seller will acquire a position in a future with
associated liabilities for margin (see the section on Futures above). If the
option is 'covered' by the seller holding a corresponding position in the
underlying interest or a future or another option, the risk may be reduced. If
the option is not covered, the risk of loss can be unlimited.
Certain exchanges in some jurisdictions permit deferred payment of the
option premium, exposing the purchaser to liability for margin payments not
exceeding the amount of the premium. The purchaser is still subject to the risk
of losing the premium and transaction costs. When the option is exercised or
expires, the purchaser is responsible for any unpaid premium outstanding at that
time.
Additional risks common to futures and options
4. Terms and conditions of contracts
You should ask the firm with which you deal about the terms and conditions
of the specific futures or options which you are trading and associated
obligations (e.g., the circumstances under which you may become obligated to
make or take delivery of the underlying interest of a futures contract and, in
respect of options, expiration dates and restrictions on the time for exercise).
Under certain circumstance the specifications of outstanding contracts
(including the exercise price of an option) may be modified by the exchange or
clearing house to reflect changes in the underlying interest.
5. Suspension or restriction of trading and pricing relationships
Market conditions (e.g., illiquidity) and/or the operation of the rules of
certain markets (e.g., the suspension of trading in any contract or contract
month because of price limits or 'circuit breakers') may increase the risk of
loss by making it difficult or impossible to effect transactions or
-2-
liquidate/offset positions. If you have sold options, this may increase the risk
of loss.
Further, normal pricing relationships between the underlying interest and
the future, and the underlying interest and the option may not exist. This can
occur when, for example, the futures contract underlying the option is subject
to price limits while the option is not. The absence of an underlying reference
price may make it difficult to judge 'fair' value.
6. Deposited cash and property
You should familiarize yourself with the protections accorded money or
other property you deposit for domestic and foreign transactions, particularly
in the event of a firm insolvency or bankruptcy. The extent to which you may
recover your money or property may be governed by specific legislation or local
rules. In some jurisdictions, property which had been specifically identifiable
as your own will be pro-rated in the same manner as cash for purposes of
distribution in the event of a shortfall.
7. Commission and other charges
Before you begin to trade, you should obtain a clear explanation of all
commission, fees and other charges for which you will be liable. These charges
will affect your net profit (if any) or increase your costs.
8. Transactions in other jurisdictions
Transactions on market in other jurisdictions, including markets formally
linked to a domestic market, may expose you to additional risk. Such markets may
be subject to regulation which may offer different or diminished investor
protection. Before you trade you should enquire about any rules relevant to your
particular transactions. Your local regulatory authority will be unable to
compel the enforcement of the rules of regulatory authorities or markets in
other jurisdictions where your transactions have been effected. You should ask
the firm with which you deal for details about the types of redress available in
both your home jurisdiction and other relevant jurisdictions before you start to
trade.
9. Currency risks
The profit or loss in transactions in foreign currency-denominated
contracts (whether they are traded in your own or another jurisdiction) will be
affected by fluctuations in currency rates where there is a need to convert from
the currency denomination of the contract to another currency.
10. Trading facilities
Most open-outcry and electronic trading facilities are supported by
computer-based component systems for the order-routing, execution, matching,
registration or clearing of trades. As with all facilities and systems, they are
vulnerable to temporary disruption or failure. Your ability to recover certain
losses may be subject to limits on liability imposed by the system provider, the
market, the clearing house and/or member firms. Such limits may vary; you should
ask the firm with which you deal for details in this respect.
11. Electronic trading
Trading on an electronic trading system may differ not only from trading in
an open-outcry market but also from trading on other electronic trading systems.
If you undertake transactions on an electronic trading system, you will be
exposed to risks associated with the system including the failure of hardware
and software. The result of any system failure may be that your order
-3-
is either not executed according to your instructions or is not executed at all.
12. Off-exchange transactions
In some jurisdictions, and only then in restricted circumstances, firms are
permitted to effect off-exchange transactions. The firm with which you deal may
be acting as your counterparty to the transaction. It may be difficult or
impossible to liquidate an existing position, to assess the value, to determine
a fair price or to assess the exposure to risk. For these reasons, these
transactions may involve increased risks. Off-exchange transactions may be less
regulated or subject to a separate regulatory regime. Before you undertake such
transactions, you should familiarize yourself with applicable rules and
attendant risks.
The undersigned hereby acknowledges that the undersigned has received and
understood this risk disclosure statement.
PROFUTURES BULL & BEAR FUND, L.P.
By: ProFutures, Inc., General Partner
By: /s/ Gary Halbert
----------------------
Name: Gary Halbert
Title: President
Date: October 22, 1997
-4-
PLEASE READ THIS COMMODITY AGREEMENT CAREFULLY
----------------------------------------------
ING (U.S.) Securities, Futures & Options Inc.
233 South Wacker Drive
Suite 5200
Chicago, Illinois 60606
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 physicals 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
-1-
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 at all times such collateral and/or margin
in accordance with exchange minimum margin requirements as established by the
exchange on which the transaction is executed 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 cash 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 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.
-2-
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, expenses 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 owed 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 to 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).
Moreover, 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 Harris 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 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 confirmed by Customer in writing.
Oral notice shall be given to ING by telephoning ING at (312) 496-7000,
Attention: Compliance Department. In any event, such statements shall be
conclusive and deemed ratified by Customer if not objected to in writing 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. However, the seven day time period does not apply if
statements are received by
-3-
Customer by facsimile transactions. In that case, Customer must notify ING of
any discrepancies by the opening of the market on the next trading day.
Communications mailed to Customer at the address specified hereon or faxed to
Customer at the fax number provided by Customer shall, until you have received
notice in writing of a different address or fax number, 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., 233 South Wacker Drive, Suite 5200, Chicago, IL, 60606 Attention:
Compliance Department.
13. Customer understands that 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 of
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 execution transmitted to it.
14. Customer acknowledges that you are hereby specifically authorized for
your account and benefit, from time to time without notice to Customer, either
separately or with others, 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 or 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 positions(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.
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
-4-
and every provision of this Agreement. No waiver or amendment shall be implied
from your conduct, action or inaction.
17. NOTICE OF CFTC Reg. (S)15.05 and Reg. (S)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 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. (S)15.05 and (S)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 in 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 ING's assigns. Customer agrees that all of its 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
-5-
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. Customer represents and warrants that Customer is under no legal
disability which would prevent Customer from trading in commodities or from
entering into this Agreement and that all of the information contained in the
Customer Information Sheet is true, complete, and correct as of the date hereof.
Customer will promptly notify ING in writing of any changes of such information
or any change in circumstances which would effect the representations and
information given ING or which would in any way affect Customer's ability to
make any transactions contemplated by this Agreement.
22. Customer authorizes ING to contact such banks, financial institutions
and credit agencies as ING shall deem appropriate from time to time to verify
the information regarding Customer which may be provided by Customer from time
to time. Customer further authorizes ING to conduct, or cause to be conducted,
an investigation into Customer's background, including but not limited to,
credit, regulatory and legal matters, and authorizes ING to retain a consumer
reporting agency for that purpose.
23. 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).
24. Customer agrees 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. Customer authorizes you to rely on and releases
you from any and all claims arising out of your reliance on such facsimiles.
Customer agrees to indemnify and save you harmless from and against any and all
liabilities, losses, damages, costs and expense, 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.
25. 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
principals of conflict of laws. This Agreement constitutes the entire
understanding 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 provisions 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
-6-
AGAINST ING UNTIL ANY DEFICIT BALANCE IN THE ACCOUNT(S) IS SATISFIED.
BASIC REPRESENTATIONS
---------------------
1. Status. If applicable, Customer is duly organized and validly existing
under the laws of the jurisdiction of Customer's organization or incorporation
and, if relevant under such laws, in good standing;
2. Powers. Customer has the power to execute this Agreement and any other
documentation relating to this Agreement to which Customer is party, to deliver
this Agreement and any other documentation relating to this Agreement that
Customer is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support
Document to which Customer is a party and has taken all necessary action to
authorize such execution, delivery and performance;
3. No Violation or Conflict. Such execution, delivery and performance do
not violate or conflict with any law applicable to Customer, any provision of
Customer's constitutional documents, any order or judgement of any court or
other agency of government applicable to Customer or any of Customer's assets or
any contractual restriction binding on or affecting Customer or any of
Customer's assets;
4. Consents. All governmental and other consents that are required to have
been obtained by Customer with respect to this Agreement or any Credit Support
Document to which Customer is a party have been obtained and are in full force
and effect and all conditions of any such consents have been complied with; and
5. Obligations Binding. Customer's obligations under this Agreement and
any Credit Support Document which Customer has submitted and to which Customer
is a party constitute Customer's legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to equitable
principles of general application (regardless of whether enforcement is sought
in a proceeding in equity or at law)).
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
-7-
ARBITRATION PROCEEDINGS 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 ANY 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.
PROFUTURES BULL & BEAR FUND, L.P.
By: ProFutures, Inc., General Partner
By: /s/ Gary Halbert
-------------------
Name: Gary Halbert
Title: President
Date: October 22, 1997
-8-