Exhibit 1
Customer Agreement by and between PGLP and Bear, Xxxxxxx Securities Corp.
dated as of December 21, 1994.
BEAR, XXXXXXX SECURITIES CORP.
BEAR XXXXXXX XXX XXXXXXXXX XXXXXX XXXXX
XXXXXXXX, XXX XXXX 00000-0000
(000) 000-0000
CUSTOMER AGREEMENT
PLEASE READ CAREFULLY, SIGN AND RETURN
This agreement ("Agreement") sets forth the terms and conditions
under which Bear, Xxxxxxx Securities Corp., Bear, Xxxxxxx & Co. Inc., and
their successors and assigns (collectively "Bear Xxxxxxx") will transact
business with you including but not limited to the maintenance of your
account(s). If these accounts are cash accounts and you have fully paid for
all securities therein, the provisions of paragraphs 16 and 17 shall not bind
you unless you enter into a margin transaction.
1. 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.
2. SECURITY INTEREST AND LIEN. As security for the payment of
all of your obligations and liabilities to Bear Xxxxxxx, Bear Xxxxxxx shall
have a continuing security interest in all property in which you have an
interest held by or through Bear Xxxxxxx or its affiliates, including, but
not limited to, securities, commodity futures contracts, commercial paper,
monies and any after-acquired property. 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 such securities
or property interchangeably. In the event of a breach or default under this
Agreement Bear Xxxxxxx shall have all rights and remedies available to a
secured creditor under any applicable law in addition to the rights and
remedies provided herein.
3. DEPOSITS ON TRANSACTIONS. Whenever Bear Xxxxxxx, in its sole
discretion, considers it necessary for its protection, it may require you 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.
4. BREACH, BANKRUPTCY OR DEFAULT. Any breach of this Agreement
or the filing of a petition or other proceeding in bankruptcy, insolvency, or
for the appointment of a receiver by or against you, the levy of an
attachment against your account(s) with Bear Xxxxxxx, or your death, mental
incompetence or dissolution, or any other grounds for insecurity, as
determined by Bear Xxxxxxx, in its sole discretion, shall continue, at Bear
Xxxxxxx' election, a default by you under all agreements Bear Xxxxxxx may
then have with you, whether heretofore or hereafter entered
into. In the event of default, Bear Xxxxxxx reserves the right to sell,
without prior notice to you, any and all property in which you have an
interest held by or through Bear Xxxxxxx or any of its affiliates, to buy any
or all property which may have been sold short to cancel any or all
outstanding transactions and/or to purchase or sell any other securities or
property to offset market risk, and to offset any indebtedness you may have
(either individually or jointly with others), after which you shall be liable
to Bear Xxxxxxx for any remaining deficiency, loss, cost or expenses
sustained by 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 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 and apply any amount owing from Bear Xxxxxxx
or any of its affiliates to you against any indebtedness in your accounts,
whether matured or unmatured.
5. 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 commissions
and fees may be changed from time to time, upon thirty days' prior written
notice to you, and you agree to be bound thereby.
6. TRANSACTION REPORTS AND ACCOUNT STATEMENTS. Reports of the
execution of orders and statements of your account(s) 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.
7. 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
account(s), in accordance with the methods described in such statement or in
any amendment 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.
8. CLEARANCE ACCOUNTS. Bear, Xxxxxxx Securities Corp. carries
your account(s) as clearing agent for your broker. Unless Bear, Xxxxxxx
Securities Corp. receives from you prior written notice to the contrary,
Bear, Xxxxxxx Securities Corp. 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.
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9. COST 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.
10. 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(s) in 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.
11. WAIVER, ASSIGNMENT AND NOTICES. Neither Bear Xxxxxxx' failure
to insist at any time upon strict compliance with the 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 your rights and
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. Notices or other
communications, including margin calls, delivered or mailed to the address
provided by you, shall, until Bear Xxxxxxx has received notice in writing of
a different address, be deemed to have been personally delivered to you.
12. FREE CREDIT BALANCES. You hereby direct Bear Xxxxxxx to use
any free credit balance awaiting investment or reinvestment in your
account(s) 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 account(s) and for the
amounts of cash so used.
13. RESTRICTIONS ON ACCOUNTS. You understand that Bear Xxxxxxx,
in its sole discretion, may restrict or prohibit trading of securities or
other property in your account(s).
14. CREDIT INFORMATION AND INVESTIGATION. You authorize Bear
Xxxxxxx and your broker in 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 description of the nature and
scope of the reports made or obtained by Bear Xxxxxxx.
15. SHORT AND LONG SALES. In placing any sell order to 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 placed
the order, you shall deliver the security by settlement date in good
deliverable form or pay to Bear Xxxxxxx any losses or expenses incurred as a
result of your failure to make delivery.
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16. MARGIN ACCOUNTS. You hereby agree to deposit and maintain
such margin in your margin account(s) as Bear Xxxxxxx may in its sole
discretion require, and you agree to pay forthwith on demand any debt balance
owing with respect to any of your margin account(s). Upon your failure to
pay, or at any time Bear Xxxxxxx, in its discretion, deems 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 2 and 4 above. No demand, 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 the requirement to make or give the sum in the
future. Unless you advise Bear Xxxxxxx to the contrary, you 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 your account(s).
17. 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 Bear Xxxxxxx in your
account(s), 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 for a greater sum, and
Bear Xxxxxxx shall have no obligation to retain a like amount of similar
property in its possession and control.
18. LEGALLY BINDING. You hereby agree that this Agreement and all
the terms hereof shall be binding upon you and your estate, heirs, executors,
administrators, personal representatives, successors and assigns. You 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 other similar law, rule or regulation.
19. AMENDMENT; ENTIRE AGREEMENT. You agree that Bear Xxxxxxx may
modify the terms of this Agreement at any time upon prior written notice. By
continuing to accept services from Bear Xxxxxxx, you will have indicated your
acceptance of any such modifications. If you do not accept such
modifications, you must notify Bear Xxxxxxx in writing; your account may then
be terminated by Bear Xxxxxxx, after which you will remain liable to Bear
Xxxxxxx for all remaining liabilities or obligations. Otherwise, this
Agreement may not be waived or modified absent a written instrument signed by
an authorized representative of Bear Xxxxxxx. Except as set forth above,
this Agreement represents the entire agreement and understanding between you
and Bear Xxxxxxx concerning the subject matter hereof.
20. 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 LAW
OF THE STATE OF NEW YORK.
21. ARBITRATION.
- ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
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- THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN
COURT, INCLUDING THE RIGHT TO 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 OR 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
FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER
OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.
YOU AGREE, AND BY MAINTAINING AN ACCOUNT FOR YOU BEAR XXXXXXX
AGREES, THAT CONTROVERSIES ARISING BETWEEN YOU AND BEAR XXXXXXX, ITS CONTROL
PERSONS, PREDECESSORS, SUBSIDIARIES AND AFFILIATES AND ALL RESPECTIVE
SUCCESSORS, ASSIGNS AND EMPLOYEES, 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
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WHICH BEAR XXXXXXX ACTS AS CLEARING AGENT, SUCH ELECTION SHALL BE MADE BY
REGISTERED MAIL TO SUCH BROKER AT ITS PRINCIPAL PLACE OF BUSINESS. THE AWARD
OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT
UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL, HAVING
JURISDICTION.
22. SEVERABILITY. If any provision herein 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.
23. CAPACITY TO CONTRACT; CUSTOMER AFFILIATION. 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.
24. EXTRAORDINARY EVENTS. Bear Xxxxxxx shall not be liable for
losses caused directly or indirectly by government restrictions, exchange or
market rulings, suspension of trading, war, strikes or other conditions
beyond its control.
25. 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.
26. TELEPHONE CONVERSATIONS. For the protection of both you and
Bear Xxxxxxx, and as a tool to correct misunderstandings, you hereby
authorize Bear Xxxxxxx at Bear Xxxxxxx' discretion and without prior notice
to you, to monitor and/or record any or all telephone conversations between
you, Bear Xxxxxxx and any of Bear Xxxxxxx' employees or agents.
If this is a Joint Account, both parties must sign. Persons signing on behalf
of others should indicate the titles or capacities in which they are signing.
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 BEAR XXXXXXX OR LOANED OUT TO OTHERS; AND
2. YOU HAVE RECEIVED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PARAGRAPH 21. THIS
AGREEMENT DATED AS OF DECEMBER 21, 1994.
Prime Group Limited Partnership 00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
/s/ Xxxxxxx X. Xxxxxxx Xxxxxxx, Xxxxxxxx, 00000 Attn. Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx, Managing General Partner Acct. No.
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(Typed or Printed Name)
X_______________________________ Date: December 21, 1994
_______________________________
(Signature)
Accepted By: __________________________ Date: __________________________________
(Bear, Xxxxxxx Securities Corp.)
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