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 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 of 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 to 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 maters 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 all 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 case 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 requirements
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.
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) provide 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 whatsoever 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 is has a Prime Brokerage Agreement
on your behalf of such event. Moreover, if you fail to restore you
account to compliance with the SEC Net Equity Requirements with 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 of 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 our 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 our 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 a 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 were advised in writing), before the expiration of ten days after
receipt of 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) any 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 in 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/
