EXHIBIT 1
Margin Account Application and Agreement
This agreement sets forth the rights and obligations of
Xxxxxxxx Xxxxxx Refsnes, Inc. and its affiliate, Regional
Operations Group, Inc., by which its accounts are carried and
through which its trades are cleared and settled on a fully
disclosed basis and the undersigned ("Customer," whether one or
more) in connection with a margin account or accounts established
for the Customer. If this account is introduced by Xxxxxxxx
Xxxxxx Refsnes, Inc. to Regional Operations Group, Inc., Customer
acknowledges having received a notice pursuant to Rule 382 of the
New York Stock Exchange describing the responsibilities with
respect to this account of each of such firms. If this account
is introduced to Regional Operations Group, Inc. by another
brokerage firm through the courtesy of RPR Correspondent
Services, a division of Xxxxxxxx Xxxxxx Refsnes, Inc., Customer
acknowledges having received a notice pursuant to such Rule
describing the responsibilities with respect to this account of
each of such firms. As used in this agreement, the term "RPR"
shall refer to Xxxxxxxx Xxxxxx Refsnes, Inc., RPR Correspondent
Services and/or Regional Operations Group, Inc. as the context
requires and as determined by such entities pursuant to the
applicable clearing agreement entered into by them with the
introducing broker. RPR and Customer agree to the following with
respect to any of Customer's accounts with RPR for the purchase
and sale of securities:
1. All transactions in RPR accounts for Customer will be
handled in accordance with and subject to: (a) applicable
constitutions, rules, regulations, bylaws, customs, and usages of
the National Association of Securities Dealers, Inc. and of the
exchanges, markets, and clearing corporations, if any, where the
transactions are executed and cleared by RPR; and (b) applicable
federal laws and rules and regulations promulgated under such
laws.
2. Customer understands that RPR is not acting for Customer as
a trustee or in any other fiduciary capacity under this agreement
and that RPR's responsibility is expressly limited to acting as a
broker or dealer with respect to trades executed pursuant to
Customer's instructions. Confirmation of transactions and
statements of Customer's account will be conclusive as to
accuracy and authorization of RPR to execute the trades indicated
on the confirmations or statements if not objected to in writing
by Customer within 10 days after mailing by RPR to Customer.
3. Any cash balance in Customer's account as of the end of the
business day will be automatically deposited in the RPR Credit
Interest Program ("CIP") which will pay Customer interest at
rates that will vary with market conditions. Customer represents
to RPR that any deposit of funds into CIP is with the intention
of investing such funds, and not merely for the purpose of
receiving interest. If Customer places a buy or sell order while
the account has insufficient cash or securities, respectively, to
settle the transaction,
then customer will deposit promptly (and not later than the
settlement date) into the account cash or securities to settle
the respective buy or sell order.
4. Customer represents that the undersigned has all required
legal capacity and authorization to enter into this agreement and
to place orders to purchase or sell securities or other assets in
the account and otherwise give instructions to RPR under this
agreement. RPR and Customer may have entered into, or may
subsequently enter into, additional written agreements with each
other concerning, for example, trading in options, or
establishing additional accounts which may or may not be joint
accounts. This agreement, including the arbitration provisions,
supplements without replacing or being replaced by any other
agreements between RPR and Customer. If any provision of this
agreement is found invalid or unenforceable in any respect, then
that finding will not affect the validity of the remaining
provisions of the agreement.
5. CUSTOMER UNDERSTANDS THAT THIS AGREEMENT CONTAINS A PRE-
DISPUTE ARBITRATION CLAUSE IN PARAGRAPH 6 BELOW, AND THAT:
(A) ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
(B) THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN
COURT, INCLUDING THE RIGHT TO JURY TRIAL;
(C) PRE-ARBITRATION AND DISCOVERY IS GENERALLY MORE LIMITED
THAN AND DIFFERENT FROM COURT PROCEEDINGS;
(D) 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; AND
(E) THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A
MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH
THE SECURITIES INDUSTRY.
6. CUSTOMER AND RPR AGREE THAT ALL CONTROVERSIES THAT MAY ARISE
AT ANY TIME BETWEEN CUSTOMER AND RPR CONCERNING ANY TRANSACTION
OR OTHERWISE RELATING, DIRECTLY OR INDIRECTLY, TO THE
CONSTRUCTION, PERFORMANCE, OR ASSERTED BREACH OF THIS OR ANY
OTHER AGREEMENT OR OBLIGATION BETWEEN RPR AND CUSTOMER WHETHER
ENTERED INTO PRIOR, ON, OR SUBSEQUENT TO THE DATE HEREOF, WILL BE
DETERMINED BY ARBITRATION. ANY SUCH ARBITRATION WILL BE GOVERNED
BY THE SUBSTANTIVE AND PROCEDURAL ARBITRATION LAW OF THE STATE OF
NEW YORK, WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS. SUCH
ARBITRATION WILL BE IN ACCORDANCE WITH THE ARBITRATION RULES THEN
IN EFFECT OF THE NEW YORK STOCK EXCHANGE, INC. OR OF ANY OTHER
EXCHANGE OF
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WHICH RPR IS A MEMBER, THE NATIONAL ASSOCIATION OF SECURITIES
DEALERS, INC., OR THE MUNICIPAL SECURITIES RULEMAKING BOARD.
CUSTOMER AUTHORIZES RPR TO ELECT AMONG THESE SPONSORING
ORGANIZATIONS IF CUSTOMER DOES NOT MAKE AN ELECTION BY SENDING TO
RPR WRITTEN NOTICE OF CUSTOMER'S ELECTION WITHIN FIFTEEN DAYS
AFTER RPR SENDS TO CUSTOMER WRITTEN NOTICE REQUESTING SUCH
ELECTION. THE AWARD OF THE ARBITRATORS, OR A MAJORITY OF THEM,
WILL BE FINAL AND BINDING AND JUDGMENT ON THE AWARD MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION. FOR PURPOSES OF THIS
PARAGRAPH, "RPR" INCLUDES ITS DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, AND PARENT, SUBSIDIARY, AFFILIATED, AND SUCCESSOR
COMPANIES.
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) THIS CUSTOMER IS EXCLUDED FROM THE CLASS BY THIS
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.
THIS AGREEMENT AND THE RIGHTS OF THE PARTIES UNDER IT WILL
BE GOVERNED BY NEW YORK LAW.
7. Customer agrees that all securities and other property which
RPR may hold or control for Customer or which are due to Customer
(either individually or jointly with others), and the proceeds
thereof, shall be subject to, and there is hereby granted, a
general lien, security interest and right of setoff to RPR for
the discharge of all Customer's obligations to RPR. RPR may, in
its discretion and without notice to Customer, deduct any amounts
which may become due to RPR from Customer's account and apply or
transfer any of Customer's securities and other property
interchangeably between any of Customer's accounts.
8. Customer agrees to maintain margins for Customer's account
as RPR may require from time to time. Customer agrees to pay
interest charges which are imposed, in
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accordance with RPR's usual custom, but in no event higher than
the maximum rate allowed by law, with respect to Customer's
account and to pay on demand any debit balance owing with respect
to Customer's account. Customer acknowledges review of the
disclosure on the back of this agreement concerning interest
charges to customers. Customer agrees to pay promptly any custody
or other fees which may be imposed by RPR with respect to the
account. Customer will pay agency commissions or dealer charges
determined by RPR on transactions in Customer accounts,
transaction fees and costs that RPR incurs in connection with
transactions in Customer accounts, and such charges as RPR may
make to cover RPR's facilities and extra services.
9. Customer agrees to designate all sell orders for securities
as either "long," or "short." The designation of a sale of a
security as "long" constitutes a certification that the
securities to be sold are owned by Customer and, if such
securities are not in RPR's possession, the placing of such order
shall constitute a warranty by Customer that Customer shall
deliver such securities to RPR on or before settlement date.
10. In the event of default of any obligation to RPR, or if for
any reason RPR may deem it advisable for its protection, RPR may,
without notice or demand to Customer, and at such time and place
as RPR may reasonably determine, sell any securities or other
property which RPR may hold for Customer or which is due to
Customer (either individually or jointly with others) and apply
the proceeds to the discharge of the obligation, or buy in or
borrow any securities or other property sold for Customer's
account but undelivered by Customer, and cancel any outstanding
orders and take such other action as RPR deems appropriate.
Customer shall remain liable for any deficiency and shall
promptly reimburse RPR for any loss or expense incurred thereby,
including losses sustained by reason of RPR's inability to borrow
any securities or other property sold for Customer's account.
Customer further agrees to pay to RPR reasonable attorneys fees
and costs incurred by RPR in order to collect any deficiency
which may arise in Customer's account. RPR's rights and
obligations under this agreement are assignable by RPR to any
company which is affiliated with RPR, with or without notice by
RPR to Customer.
11. Customer agrees that securities and other property in
Customer's account may be carried in RPR's general loans and may
be pledged or hypothecated separately or in common with other
securities and any other property for the sum due to RPR thereon
or for a greater sum and without retaining in RPR's possession
and control for delivery a like amount of similar securities or
other property. RPR is further authorized to collect all income
and other payments which may become due on Customer's securities.
12. Customer and RPR agree that the accounts maintained
hereunder may be terminated by RPR or Customer at any time
effective upon the giving of notice of such termination to
Customer or to RPR, as the case may be. Upon any such
termination, the provisions of this agreement shall nevertheless
remain in effect with respect to all
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securities and other property then held in such account or
accounts, all transactions previously executed by RPR hereunder
and all orders from Customer previously given to and accepted by
RPR hereunder and not otherwise canceled pursuant to the terms of
this agreement. Customer agrees that RPR may, in RPR's sole
discretion and without prior notice to Customer, refuse to accept
any order from Customer in connection with the purchase or sale
of securities by giving notice of such refusal to Customer as
soon as practicable after RPR is given such order.
THIS IS A BINDING CONTRACT. READ IT CAREFULLY BEFORE
SIGNING. THIS AGREEMENT CONTAINS A PRE-DISPUTE CLAUSE AT
PARAGRAPH 5 AND 6.
LOAN CONSENT I ACKNOWLEDGE THAT MY SECURITIES WHEN BEING
USED AS COLLATERAL FOR A LOAN BY YOU MAY BE LOANED, SEPARATELY OR
TOGETHER WITH THE SECURITIES OF OTHERS, EITHER TO XXXXXXXX XXXXXX
REFSNES, INC., REGIONAL OPERATIONS GROUP, OR OTHERS.
/s/ XXXXXXX CAPITAL MGMT Dated: February
7, 1996.
Name of account if other than customer
Name(s)
World Trade Center x/s/XXXXXX X. XXXXXXX XX.
Streeet Address Signature of Customer (or
authorized Signature of Customer #2 (or
person, if applicable) authorized
person if applicable) if a joint
account
000 X. Xxxxx Xx., 00xx XX. Xxxxxx X. Xxxxxxx,
Xx.
Printed Name of Customer Printed Name of
Customer #2 (or
authorized person if
applicable) if a joint
account
Xxxxxxxxx, XX 00000 President
City, State and Zip Code Title, if applicable (e.g.
President, Title, if applicable (e.g. President,
Partner, Trustee, Custodian) Partner,
Trustee, Custodian)
000-000-0000
Telephone Number, Including area code
For Office Use Only
A/C# 2205-2211-5665 /S/ XXXXXX X. XXXXXXX, XX.
Account Executive Signature Branch
Manager Approval
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MARGIN ACCOUNT DISCLOSURE STATEMENT
Rule 10b-16 of the Securities and Exchange Commission requires
disclosure of the elements of interest cost which will be
incurred by a customer through his or her use of credit from
broker-dealers in margin transactions. Such borrowings through
margin account transactions are charged interest at variable
rates and these rates may be adjusted upward at any time without
notice to the borrower. Therefore, to comply with Rule 10b-16 and
to further explain the agreement a customer must sign to maintain
a margin account, set out below are the specific elements of the
costs of a margin transaction. Please read these elements
carefully to see that they are acceptable to you since all margin
transactions will be governed by them. (1.) An interest charge
is made on a customer's debit balance (amount borrowed). This
debit balance is reduced by any credit balance other than a short
account (type 6) credit. (2.) The annual rate of interest charged
the customer on his or her debit balance will be equal to the
Base Rate plus a percentage depending upon the size of the debit
balance. The Base Rate will be determined by RPR using the broker
call rate, prime rate, federal funds rate, and other commercially
recognized rates of interest. The annual rate of interest will
not exceed 5% above the Base Rate. The Base Rate will vary,
without notice, in accordance with market conditions and/or the
calculation of the Base Rate. As the rate is raised or lowered,
your rate may be raised or lowered without notice; however, in no
event shall the interest rate charged pursuant hereto be in
excess of the interest allowed by applicable law. When your
interest rate is to be increased for any reason other than as
stated above, at least 30 days prior written notice will be
given. (3.) Interest computation on net debit balances is on a
daily basis. Both the debit balance and the daily interest at
the aforesaid rates are computed each day. Your daily interest
charge for any day would be computed by multiplying your debit
balance by the annual rate of interest described above and
dividing by 360. (4.) No credit charges are charged other than
interest as herein explained. (5.) According to the rules of the
New York Stock Exchange, a customer must maintain minimum
maintenance cash value requirements in his or her margin account.
The minimum requirements, expressed in terms of percentages, vary
from time to time, and certain types of securities have greater
maintenance percentages than others. Although the New York Stock
Exchange has minimum standards, each New York Stock Exchange
member firm may set its maintenance requirements higher than the
New York Stock Exchange, and in some cases RPR may thus have a
higher minimum. Subject to the minimum set by the New York Stock
Exchange, the setting of minimum maintenance requirements for
customers' accounts is within the sole discretion of RPR. It
must be noted that these minimum maintenance requirements may
change without prior notice and, if raised, it is the customer's
obligation to add to his or her equity; conversely, if lowered,
the customer will have available more credit potential. (6.) A
lien is placed on securities held in both the customer's margin
and cash accounts whereby RPR may sell said securities if minimum
margin maintenance levels are not complied with. Such liens are
described more fully in the agreement which a customer must sign
when opening a margin account. Please refer to the agreement for
reference. Defined terms used herein
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have the same meanings ascribed to them under the agreement. (7.)
Margin (type 2), interest is calculated daily based on the debit
balance plus the market value of any short security in a type 6
account. For example, if an account has a settlement date debit
balance in the type 2 account of $9,900, and a short common stock
position with a market value of $15,000, we would adjust the
settlement date balance for interest calculation only by adding
the $15,000 market value to the $9,900 debit balance. The
resulting balance of $24,900 would be used for that day to
compute the interest charge.
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