PROFESSIONAL ACCOUNT AGREEMENT BEAR XXXXXXX
The Bear Xxxxxxx Companies Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Title: LaSalle/Kross Partners, Limited Partnership Account No. 00000000-26
This agreement ("Agreement") sets forth the terms and conditions under which
subsidiaries of The Bear Xxxxxxx Companies Inc. will open and maintain
account(s) in your name and otherwise transact business with you.
1. Parties. You hereby agree that the parties to this Agreement shall
consist of you, each and every subsidiary of The Bear Xxxxxxx Companies listed
on the signature page hereof and any other subsidiary of The Bear Xxxxxxx
Companies Inc. now existing or hereafter created, at which you open an account
or accounts or with which you otherwise transact business (which shall
automatically become a party hereto by virtue thereof) each of which
subsidiaries, listed or presently unlisted herein, being referred to
hereinafter as a "Bear Xxxxxxx entity" and all such entities being collectively
referred to as "Bear Xxxxxxx").
2. Applicable Law and Regulations. All transactions shall be subject to
all applicable law and the rules and regulations of all federal, state and
self-regulatory agencies, including, but not limited to, the Board of Governors
of the Federal Reserve System and the constitution, rules and customs of the
exchange or market (and clearing house) where executed.
3. Security Interest and Lien. As security for the payment and
performance of all of your obligations and liabilities to any Bear Xxxxxxx
entity, each Bear Xxxxxxx entity shall have a continuing security interest in
all property in which you have an interest held by or through any Bear Xxxxxxx
entity, including, but not limited to, securities, commodity futures contracts,
commercial paper, monies, any after-acquired property and all rights you may
have against any Bear Xxxxxxx entity. In addition, in order to satisfy any
such outstanding liabilities or obligations, Bear Xxxxxxx may, at any time and
without prior notice to you, use, apply or transfer any of such securities or
property interchangeably (including cash and fully-paid securities).
4. Deposits on Transactions. Whenever Bear Xxxxxxx, in its sole
discretion, considers it necessary for its protection, it may require you, and
you hereby agree, to deposit cash or collateral immediately in your account(s)
prior to any applicable settlement date in order to assure due performance of
your open contractual commitments.
5. Breach, Bankruptcy or Default. Any breach of or default under this
Agreement or any other agreement you may have with any Bear Xxxxxxx entity, or
the filing of a petition or other proceeding in bankruptcy or insolvency or for
the appointment of a receiver by or against you, the levy of an attachment
against your accounts with Bear Xxxxxxx, or your death, mental incompetence or
dissolution, or any other grounds for insecurity (including any indication of
your refusal or inability to promptly meet a margin call or other deposit
requirement hereunder) as determined by Bear Xxxxxxx in its sole discretion,
shall constitute, at Bear Xxxxxxx' election, a default by you under all
agreements you may then have with Bear Xxxxxxx, whether heretofore or hereafter
entered into. In the event of default, each Bear Xxxxxxx entity reserves the
right to sell, without prior notice to you, any and all property in which you
have an interest held by or through any Bear Xxxxxxx entity, to buy any or all
property which may have been sold short, to accelerate, cancel, liquidate,
close out and net the settlement payments and/or delivery obligations of any
or all outstanding transactions (including contracts and options for foreign
currency or any other commodity) and/or to purchase or sell any other
securities or property to offset market risk, after which you shall be liable
to Bear Xxxxxxx for any remaining deficiency, loss, costs or expenses sustained
by Bear Xxxxxxx in connection therewith. Such purchases and/or sales may be
effected publicly or privately without notice or advertisement in such manner,
in such order and at such time as Bear Xxxxxxx may in its sole discretion
determine. At any such sale or purchase, Bear Xxxxxxx may purchase or sell the
property free of any right of redemption. In addition, Bear Xxxxxxx shall have
the right to set off, net, recoup or otherwise apply any amount owing from any
Bear Xxxxxxx entity to you against any indebtedness in any of your accounts,
whether matured or unmatured.
6. Fees and Charges. You understand that Bear Xxxxxxx may charge
commissions and other fees for execution, custody or any other service
furnished to you, and you agree to pay such commissions and fees at Bear
Xxxxxxx' then prevailing rates. You understand further that such fees may be
changed from time to time, upon thirty days' prior written notice to you, and
you agree to be bound thereby.
7. Transaction Reports and Account Statements. Reports of the execution
of orders and statements of account shall be conclusive if not objected to in
writing within five days in the case of reports of execution, and ten days in
the case of account statements, after such documents have been transmitted to
you by mail or otherwise.
8. Debit Balances/Truth-in-Lending. You hereby acknowledge receipt of
Bear Xxxxxxx' Truth-in-Lending disclosure statement. You understand that
interest will be charged on any debit balances in your accounts in accordance
with the methods described in such statement or in any amendment thereof or
revision thereto, which may be provided to you. Any debit balance which is not
paid at the close of an interest period will be added to the opening balance
for the next interest period.
9. Clearance Accounts. If any of your account(s) is carried by any Bear
Xxxxxxx entity as clearing agent for your broker, unless such Bear Xxxxxxx
entity receives from you prior written notice to the contrary, it may accept
from such other broker, without any inquiry or investigation: (a) orders for
the purchase or sale of securities and other property in your account(s) on
margin or otherwise and (b) any other instructions concerning your account(s)
or the property therein. You understand and agree that Bear Xxxxxxx shall have
no responsibility or liability to you for any acts or omissions of such broker,
its officers, employees or agents. You agree that your broker and its
employees are third-party beneficiaries of this Agreement and that the terms
and conditions hereof, including the arbitration provision, shall be applicable
to all matters between or among any of you, your broker and its employees and
Bear Xxxxxxx and its employees.
10. Costs of Collection. You hereby authorize Bear Xxxxxxx to charge you
for any reasonable direct or indirect costs of collection, including, but not
limited to, attorneys' fees, court costs and other expenses.
11. Impartial Lottery Allocation. You agree that, in the event Bear
Xxxxxxx holds on your behalf bonds or preferred stocks in street name or bearer
form which are callable in part, you will participate in the impartial lottery
allocation system of the called securities in accordance with the rules of the
New York Stock Exchange, Inc. or any other appropriate self-regulatory
organization. When any such call is favorable, no allocation will be made to
any account with respect to which Bear Xxxxxxx has actual knowledge that its
officers, directors or employees have any financial interest until all other
customers are satisfied on an impartial lottery basis.
12. Waiver, Assignment and Notices. Neither Bear Xxxxxxx' failure to
insist at any time upon strict compliance with this Agreement or with any of
the terms hereof nor any continued course of such conduct on its part shall
constitute or be considered a waiver by Bear Xxxxxxx of any of its rights or
privileges hereunder. Any assignment of any of your rights or obligations
hereunder or interest in any property held by or through Bear Xxxxxxx without
obtaining the prior written consent of an authorized representative of Bear
Xxxxxxx shall be null and void. Bear Xxxxxxx reserves the right to assign any
of its rights or obligations hereunder to any Bear Xxxxxxx entity without prior
notice to you. Notices or other communications will be delivered or mailed to
the address provided by you unless and until Bear Xxxxxxx has received notice
in writing from you of a different address. Margin calls may be communicated
orally and need not be confirmed in writing.
13. Free Credit Balances. You hereby authorize Bear Xxxxxxx to use any
free credit balance awaiting investment or reinvestment in any of your accounts
in accordance with all applicable rules and regulations and to pay interest
thereon at such rate or rates and under such conditions as are established from
time to time by Bear Xxxxxxx for such accounts and for the amounts of cash so
used.
14. Restrictions on Account. You understand that Bear Xxxxxxx, in its sole
discretion, may restrict or prohibit trading of securities or other property
in any of your accounts.
15. Credit Information and Investigation. You authorize Bear Xxxxxxx and,
if applicable, your broker, in its or their discretion, to make and obtain
reports concerning your credit standing and business conduct. You may make a
written request within a reasonable period of time for a description of the
nature and scope of the reports made or obtained by Bear Xxxxxxx.
16. Short and Long Sales. In placing any sell order for a short account,
you will designate the order as such and hereby authorize Bear Xxxxxxx to xxxx
the order as being "short." In placing any sell order for a long account, you
will designate the order as such and hereby authorize Bear Xxxxxxx to xxxx the
order as being "long." The designation of a sell order as being for a long
account shall constitute a representation that you own the security with
respect to which the order has been placed, that such security may be sold
without restriction in the open market and that, if Bear Xxxxxxx does not have
the security in its possession at the time you place the order, you shall
deliver the security by settlement date in good deliverable form or pay to Bear
Xxxxxxx any losses or expenses incurred by it as a result of your failure to
make delivery on a timely basis.
17. Margin and Other Collateral Requirements. You hereby agree to deposit
and maintain such margin in any of your margin accounts as Bear Xxxxxxx may in
its sole discretion require, and you agree to pay forthwith on demand any debit
balance owing with respect to any of your margin accounts. In addition, you
further agree to promptly deposit and maintain such other collateral with Bear
Xxxxxxx as is required by any other agreement or open transaction you may have
with it. Upon your failure to make any such payment, or at any time Bear
Xxxxxxx in its sole discretion deems it necessary for its protection, whether
with or without prior demand, call or notice, Bear Xxxxxxx shall be entitled
to exercise all rights and remedies provided in paragraphs 3, 5 and 29 hereof.
No demands, calls, tenders or notices that Bear Xxxxxxx may have made or given
in the past in any one or more instances shall invalidate your waiver of any
requirement that Bear Xxxxxxx make or give the same in the future. Unless you
expressly advise Bear Xxxxxxx to the contrary, you hereby represent that you
are not an "affiliate" (as defined in Rule 144(a)(1) under the Securities Act
of 1933) of the issuer of any security held in any of your accounts.
18. Consent to Loan or Pledge of Securities. Within the limits of
applicable law and regulations, you hereby authorize Bear Xxxxxxx to lend
either to itself or to others any securities held by it in any of your margin
accounts, together with all attendant rights of ownership, and to use all such
property as collateral for its general loans. Any such property, together with
all attendant rights of ownership, may be pledged, repledged, hypothecated or
rehypothecated either separately or in common with other such property for any
amounts due to Bear Xxxxxxx thereon or for a greater sum, and Bear Xxxxxxx
shall have no obligation to retain a like amount of similar property in its
possession and control.
19. Give-ups; Free deliveries. In the event: (i) your orders are not
executed by Bear Xxxxxxx and you give-up Bear Xxxxxxx' name for clearance and
settlement, or (ii) you require Bear Xxxxxxx to make a free delivery of cash
or securities in connection with the settlement of such orders, the following
terms and conditions shall apply:
(i) You agree that you will only execute bona-fide orders and if
required for settlement, you will request a free delivery of
cash or securities only when you have reasonable grounds to
believe that the contra-party and the broker who executed your
order have the financial capability to complete any
contemplated transaction;
(ii) Bear Xxxxxxx reserves the right at any time to place a limit
(of either dollars or number of securities) on the size of
transactions that Bear Xxxxxxx will accept for clearance. If
after you have received notice of such limitation you execute
an order in excess of the limit established by Bear Xxxxxxx,
Bear Xxxxxxx shall have the right, exercisable in its sole
discretion, to decline to accept the transaction for clearance
and settlement. In the event any claim is asserted against
Bear Xxxxxxx by the broker who executed your order because of
such action by Bear Xxxxxxx, you agree to indemnify and hold
Bear Xxxxxxx harmless from any loss, liability, damage, cost
or expense (including, but not limited to fees and expenses of
legal counsel) arising directly or indirectly therefrom; and
(iii) Bear Xxxxxxx will on a best efforts basis attempt to clear
such transactions within a reasonable period and utilize the
same procedures it utilizes when clearing transactions on
behalf of other customers. If either you or the broker who
executed your order fails for any reason to settle the
transaction and/or return any free delivery within a
reasonable period of time, as determined by Bear Xxxxxxx, you
will be solely liable to Bear Xxxxxxx for any and all loss,
including expenses, caused thereby. Bear Xxxxxxx shall have
no liability whatsoever to you in any such circumstance.
20. Prime Brokerage Services.
(a) Prior to the commencement of any prime brokerage activity, Bear
Xxxxxxx will enter into an agreement with your executing broker(s) that
will set forth the terms and conditions under which your executing
broker(s) will be authorized to accept orders from you for settlement
by Bear Xxxxxxx (the "Prime Brokerage Agreement"). Bear Xxxxxxx will
accept for clearance and settlement trades executed on your behalf by
such executing broker(s) as you may designate from time to time. On the
day following each transaction, Bear Xxxxxxx will send you a
notification of each trade placed with your executing broker based upon
the information provided by you. This notification contains some but
not all of the information required to appear in a confirmation.
(b) Bear Xxxxxxx shall be responsible for settling trades executed on
your behalf by your executing broker(s) and reported to Bear Xxxxxxx
by you and your executing broker(s) provided that you have reported to
Bear Xxxxxxx on trade date, by the time designated to you by Bear
Xxxxxxx, all the details of such trades including, but not limited to,
the contract amount, the security involved, the number of shares or the
number of units and whether the transaction was a long or short sale
or a purchase, and further provided that Bear Xxxxxxx has either
affirmed or not DK'd and has not subsequently disaffirmed such trades.
In the event that Bear Xxxxxxx determines not to settle a trade, Bear
Xxxxxxx shall not have settlement responsibility for such trade and
shall, instead, send you a cancellation notification to offset the
notification sent to you under sub-paragraph a of this paragraph. You
shall be solely responsible and liable to your executing broker(s) for
settling such trades. In addition, Bear Xxxxxxx may be required to
cease providing prime brokerage services to you in accordance with the
Prime Brokerage Agreement.
(c) In the event of: (i) the filing of a petition or other proceeding
in bankruptcy, insolvency or for the appointment of a receiver by or
against your executing broker, (ii) the termination of your executing
broker's registration and the cessation of business by it as a broker-
dealer, or (iii) your executing broker's failure, inability or refusal,
for any reason whatsover or for no reason at all, to settle a trade,
if Bear Xxxxxxx agrees to settle any trades executed on your behalf by
such executing broker, regardless whether Bear Xxxxxxx either affirmed
or did not DK and did not disaffirm such trades, you shall be solely
responsible, and liable to Bear Xxxxxxx, for any losses arising out of
or incurred in connection with Bear Xxxxxxx' agreement to settle such
trades.
(d) You shall maintain in your account with Bear Xxxxxxx such minimum
net equity in cash or securities as Bear Xxxxxxx, in its sole
discretion may require, from time to time (the "Bear Xxxxxxx Net Equity
Requirements"), which shall in no event be less that the minimum net
equity required by the SEC Letter (the "SEC Net Equity Requirements").
In the event your account falls below the SEC Net Equity Requirements,
you hereby authorize Bear Xxxxxxx to notify promptly all executing
brokers with whom it has a Prime Brokerage Agreement on your behalf of
such event. Moreover, if you fail to restore your account to
compliance with the SEC Net Equity Requirements within the time
specified in the SEC Letter, Bear Xxxxxxx shall: (i) notify all such
executing brokers that Bear Xxxxxxx is no longer acting as your prime
broker and (ii) either not affirm or indicate that it does not know
("DK") all prime brokerage transactions on your behalf with trade date
after the business day on which such notification was sent.
In the event either: (i) your account falls below the Bear Xxxxxxx Net
Equity Requirements, (ii) Bear Xxxxxxx determines that there would not
be enough cash in your account to settle such transactions or that a
maintenance margin call may be required as a result of settling such
transactions, or (iii) Bear Xxxxxxx determines that the continuation
of prime brokerage services to you presents an unacceptable risk to
Bear Xxxxxxx taking into consideration all the facts and circumstances,
Bear Xxxxxxx may disaffirm all your prime brokerage transactions and/or
cease to act as your prime broker.
(e) If you have instructed your executing broker(s) to send
confirmations to you in care of Bear Xxxxxxx, as your prime broker, the
confirmation sent by such executing broker is available to you promptly
from Bear Xxxxxxx, at no additional charge.
(f) If your account is managed on a discretionary basis, you hereby
acknowledge that your prime brokerage transactions may be aggregated
with those of other accounts of your advisor, according to your
advisor's instructions, for execution by your executing broker(s) in
a single bulk trade and for settlement in bulk by Bear Xxxxxxx. You
hereby authorize Bear Xxxxxxx to disclose your name, address and tax
I.D. number to your executing broker(s). In the event any trade is
disaffirmed, as soon as practicable thereafter, Bear Xxxxxxx shall
supply your executing broker(s) with the allocation of the bulk trade,
based upon information provided by your advisor.
(g) The prime brokerage services hereunder shall be provided in a
manner not inconsistent with the no-action letter dated January 25,
1994 issued by the Division of Market Regulation of the Securities and
Exchange Commission (the "SEC Letter"), and any supplements or
amendments thereto.
21. Legally Binding. You and Bear Xxxxxxx hereby agree that this
Agreement shall extend to and be binding upon all of the parties hereto
(whether now existing or hereafter added) and their respective successors and
assigns. If you are a natural person, this Agreement shall extend to and be
binding upon your estate, heirs, executors, administrators and personal
representatives. You further agree that all purchases and sales shall be for
your account(s) in accordance with your oral or written instructions. You
hereby waive any and all defenses that any such instruction was not in writing
as may be required by the Statute of Frauds or any similar law, rule or
regulation.
22. Amendment. You agree that Bear Xxxxxxx may modify the terms of this
Agreement at any time upon prior written notice to you. By continuing to
accept services from Bear Xxxxxxx, you will have indicated your acceptance of
any such modification. If you do not accept any such modification, you must
notify Bear Xxxxxxx thereof in writing and your account may then be terminated,
but you will still be liable thereafter to Bear Xxxxxxx for all remaining
liabilities and obligations. Otherwise, this Agreement may not be waived or
modified absent a written instrument signed by an authorized representative of
Bear Xxxxxxx.
23. New York Law to Govern. This Agreement shall be deemed to have been
made in the State of New York and shall be construed, and the rights and
liabilities of the parties determined, in accordance with the laws of the State
of New York without giving effect to the conflicts of law principles thereof.
24. Arbitration. You agree and, by maintaining accounts for you, Bear
Xxxxxxx agrees that controversies arising between you and any Bear Xxxxxxx
entity or any broker for which Bear Xxxxxxx acts as clearing agent, whether
arising prior to, on or subsequent to the date hereof, shall be determined by
arbitration. Any arbitration under this Agreement shall be held at the
facilities and before an arbitration panel appointed by the New York Stock
Exchange, Inc., The American Stock Exchange, Inc., or the National Association
of Securities Dealers, Inc. (and only before such exchanges or association).
You may elect one of the foregoing forums for arbitration, but if you fail to
make such election by registered mail or telegram addressed to Bear, Xxxxxxx
Securities Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Legal Officer (or any other address of which you are advised in writing),
before the expiration of ten days after receipt of a written request from Bear
Xxxxxxx to make such election, then Bear Xxxxxxx may make such election. For
any arbitration solely between you and a broker for which Bear Xxxxxxx acts as
clearing agent, such election shall be made by registered mail to such broker
at its principal place of business. Judgment upon the award of the arbitrators
may be entered in any state or federal court having jurisdiction thereover.
With respect to the resolution of any such controversy, you and Bear Xxxxxxx
further acknowledge that:
--arbitration is final and binding on the parties.
--the parties are waiving their right to seek remedies in court,
including the right to a jury trial.
--pre-arbitration discovery is generally more limited than and
different from court proceedings.
--the arbitrators' award is not required to include factual findings
or legal reasoning and any party's right to appeal or to seek modification of
rulings by the arbitrators is strictly limited.
--the panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities industry.
--no person shall bring a putative or certified class action to
arbitration, nor seek to enforce any pre-dispute arbitration agreement against
any person who has initiated in court a putative class action; who is a member
of a putative class who has not opted out of the class with respect to any
claims encompassed by the putative class action until: (i) the class
certification is denied; (ii) the class is decertified; or (iii) the customer
is excluded from the class by the court. Such forebearance to enforce an
agreement to arbitrate shall not constitute a waiver of any rights under this
Agreement except to the extent stated herein.
25. Severability. If any provision hereof is or should become inconsistent
with any present or future law, rule or regulation of any sovereign government
or regulatory body having jurisdiction over the subject matter of this
Agreement, such provision shall be deemed to be rescinded or modified in
accordance with any such law, rule or regulation. In all other respects, this
Agreement shall continue to remain in full force and effect.
26. Extraordinary Events. Bear Xxxxxxx shall not be liable for losses in
any of your accounts which are caused directly or indirectly by government
restrictions, exchange or market rulings, suspension of trading, war, strikes
or any other condition beyond its control.
27. Headings. The headings of the provisions hereof are for descriptive
purposes only and shall not modify or qualify any of the rights or obligations
set forth in such provisions.
28. Telephone Conversations. For the protection of both you and Bear
Xxxxxxx, and as a way of correcting misunderstandings, you hereby authorize
Bear Xxxxxxx, at its discretion and without prior notice to you, to monitor
and/or record any or all telephone conversations between you and any of Bear
Xxxxxxx' employees or agents.
29. Additional Rights and Remedies. The rights and remedies granted herein
to Bear Xxxxxxx are in addition to, and supersede any limitations on, any other
rights and remedies provided to Bear Xxxxxxx in any other agreement you may
have with it, and you hereby appoint Bear Xxxxxxx as your agent to take any
action necessary to perfect the security interest granted to it in paragraph
3 hereof. In the event of a breach or default under this Agreement or any
other agreement you may have with any Bear Xxxxxxx entity, each Bear Xxxxxxx
entity shall have all rights and remedies available to a secured creditor under
any applicable law in addition to the rights and remedies provided herein.
30. Authority; Capacity. By signing this Agreement, you represent that you
are of legal age and that, unless you have notified Bear Xxxxxxx to the
contrary, neither you nor any member of your immediate family is an employee
of any exchange or member thereof, the National Association of Securities
Dealers, Inc., or a member thereof, or of any corporation, firm or individual
engaged in the business of dealing, as broker or principal, in securities,
options or futures, or of any bank, trust company or insurance company. If you
are signing on behalf of an institution, you represent that the institution on
whose behalf you are acting is authorized to enter into this Agreement and that
you are duly authorized to sign this Agreement in its name.
By signing this Agreement you acknowledge that:
1. The securities in your margin account(s) and any securities for which
you have not fully paid, together with all attendant ownership rights, may be
loaned to the Clearing Broker or loaned out to others; and
2. You have received a copy of this Agreement.
A pre-dispute arbitration clause is contained in paragraph 24 hereof.
INSTITUTIONAL CLIENT (please complete):
LaSALLE/KROSS PARTNERS, L.P.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
/S/ XXXXXXX X. XXXXXX
March 6, 1996
EACH OF THE FOLLOWING SUBSIDIARIES OF THE BEAR XXXXXXX COMPANIES INC.:
Bear, Xxxxxxx & Co. Inc., Bear Xxxxxxx Securities Corp., Bear, Xxxxxxx
International Limited, Bear Xxxxxxx Capital Markets Inc., Bear Xxxxxxx Capital
Markets Inc. II, Bear Xxxxxxx Mortgage Capital Corporation, Bear Xxxxxxx N.Y.
Inc., Bear Xxxxxxx Global Asset Trading Ltd., Bear Xxxxxxx Global Asset
Holdings, Ltd., Bear Xxxxxxx Forex Inc., Bear Xxxxxxx U.K. Limited, Bear
Xxxxxxx International Trading Limited, Bear Xxxxxxx (Japan), Ltd., Bear Xxxxxxx
Asia Limited and Bear Xxxxxxx Hong Kong Limited; and any other subsidiary of
The Bear Xxxxxxx Companies Inc. later added as a party hereto pursuant to
paragraph 1 hereof.
By: /S/
