Exhibit 10.19
The Investor CreditLine/SM/ Service Client Agreement
NOTE: CMA, CBA and WCMA clients who have already signed this agreement need
not return this form.
In consideration of your accepting and carrying one or more accounts for
the undersigned, the undersigned hereby consents and agrees that:
1. Applicable Rules and Regulations
All transactions shall be subject to the constitution, rules, regulations,
customs and usages of the exchange or market and its clearinghouse, if any, on
which such transactions are executed by you (Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated) or your agents, including your subsidiaries and affiliates.
2. Definition
For purposes of this agreement, "securities and other property" shall
include, but not be limited to, money, securities, financial instruments and
commodities of every kind and nature and all contracts and options relating
thereto, whether for present or future delivery.
3. Collateral Requirements and Credit Charges for the Investor CreditLine
Service
The undersigned will maintain such securities and other property in the
accounts of the undersigned for collateral purposes as you shall require from
time to time; and the monthly debit balance of such accounts shall be charged,
in accordance with your usual custom, with interest at a rate permitted by the
laws of the State of New York. It is understood that the interest charge made to
the undersigned's account at the close of a charge period will, unless paid, be
added to the opening balance for the next charge period and that interest will
be charged upon such opening balance, including all interest so added.
4. Security Interest
All securities and other property now or hereafter held, carried or
maintained by you or by any of your affiliates in your possession or control, or
in the possession or control of any such affiliate, for any purpose, in or for
any account of the undersigned now or hereafter opened, including any account in
which the undersigned may have an interest, shall be subject to a lien for the
discharge of all the indebtedness and other obligations of the undersigned to
you, and are to be held by you as security for the payment of any liability or
indebtedness of the undersigned to you in any of said accounts. You shall have
the right to transfer securities and other property so held by you from or to
any other of the accounts of the undersigned whenever in your judgment you
consider such a transfer necessary for your protection. In enforcing your lien,
you shall have the discretion to determine which securities and property are to
be sold and which contracts are to be closed.
5. Representations as to Beneficial Ownership and Control
The undersigned represents that, with respect to securities against which
credit is or may be extended by you: (a) the undersigned is not the beneficial
owner of more than three percent (3%) of the number of outstanding shares of any
class of equity securities, and (b) does not control, is not controlled by, and
is not under common control with, the issuer of any such securities. In the
event that any of the foregoing representations are inaccurate or become
inaccurate, the undersigned will promptly so advise you in writing.
6. Calls for Additional Collateral--Liquidation Rights
(a) You shall have the right to require additional collateral:
(1) in accordance with your general policies for the Investor
CreditLine/SM/ service maintenance requirements, as such may be modified,
amended or supplemented from time to time; or
(2) if in your discretion you consider it necessary for your
protection at an earlier or later point in time than called for by said general
policies; or
(3) in the event that a petition in bankruptcy or for appointment of a
receiver is filed by or against the undersigned; or
(4) if an attachment is levied against the accounts of the
undersigned; or
(5) in the event of the death of the undersigned.
(b) If the undersigned does not provide you with additional collateral as
you may require in accordance with (a) (1) or (2), or should an event described
in (a) (3), (4) or (5) occur (whether or not you elect to require additional
collateral), you shall have the right:
(1) to sell any or all securities and other property in the accounts
of the undersigned with you or with any of your affiliates, whether carried
individually or jointly with others;
(2) to buy any or all securities and other property which may be short
in such accounts; and
(3) to cancel any open orders and to close any or all outstanding
contracts.
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You may exercise any or all of your rights under (b) (1), (2) or (3) without
further demand for additional collateral, or notice of sale or purchase, or
other notice or advertisement. Any such sales or purchases may be made at your
discretion on any exchange or other market where such business is usually
transacted, or at public auction or private sale; and you may be the purchaser
for your own account. It is understood that your giving of any prior demand or
call or prior notice of the time and place of such sale or purchase shall not be
considered a waiver of your right to sell or buy without any such demand, call
or notice as herein provided.
7. Payment of Indebtedness Upon Demand
The undersigned shall at all times be liable for the payment upon demand of
any debit balance or other obligations owing in any of the accounts of the
undersigned with you, and the undersigned shall be liable to you for any
deficiency remaining in any such accounts in the event of the liquidation
thereof, in whole or in part, by you or by the undersigned; and the undersigned
shall make payment of such obligations and indebtedness upon demand.
8. Liability for Costs of Collection
To the extent permitted by the laws of the State of New York, the
reasonable costs and expenses of collection of the debit balance and any unpaid
deficiency in the accounts of the undersigned with you, including but not
limited to, attorney's fees incurred and payable or paid by you, shall be
payable to you by the undersigned.
9. Pledge of Securities and Other Property
All securities and other property now or hereafter held, carried or
maintained by you in your possession or control in any of the accounts or the
undersigned may be pledged and repledged by you from time to time without notice
to the undersigned, either separately or in common with other such securities
and other property, for any amount due in the accounts of the undersigned, or
for any greater amount, and you may do so without retaining in your possession
or under your control for delivery a like amount of similar securities or other
property.
10. Lending Agreement
In return for the extension or maintenance of any credit by you, the
undersigned acknowledges and agrees that the securities in the undersigned's
account, together with all attendant rights of ownership may be lent to you or
lent out to others to the extent not prohibited by applicable laws, rules and
regulations. In connection with such securities loans, and in connection with
securities loans made to me to facilitate short sales, you may receive and
retain certain benefits to which the undersigned will not be entitled. The
undersigned understands that, in certain circumstances, such loans could limit
the undersigned's ability to exercise voting rights, in whole or in part, with
respect to the securities lent.
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11. Presumption of Receipt of Communications
Communications may be sent to the undersigned at the address of the
undersigned or at such other address as the undersigned may hereafter give you
in writing. All communications so sent, whether by mail, telegraph, messenger or
otherwise, shall be deemed given to the undersigned personally, whether actually
received or not.
12. Accounts Carried as Clearing Broker
If you are carrying the account of the undersigned as clearing broker by
arrangement with another broker through whose courtesy the account of the
undersigned has been introduced to you, then until receipt from the undersigned
of written notice to the contrary, you may accept from such other broker,
without inquiry or investigation by you (a) orders for the purchase or sale in
said account of securities and other property on credit or otherwise, and (b)
any other instructions concerning said account. You shall not be responsible or
liable for any acts or omissions of such other broker or its employees.
13. Agreement to Arbitrate Controversies
o Arbitration is final and binding on the parties.
o The parties are waiving their right to seek remedies in court, including
the right to jury trial.
o Prearbitration discovery is generally more limited than and different
from court proceedings.
o 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.
o The panel of arbitrators will typically include a minority of arbitrators
who were or are affiliated with the securities industry.
The undersigned agrees that all controversies which may arise between us,
including, but not limited to, those involving any transaction or the
construction, performance or breach of this or any other agreement between us,
whether entered into prior, on or subsequent to the date hereof, shall be
determined by arbitration. Any arbitration under this agreement shall be
conducted only before the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. or arbitration facility provided by any other exchange of which
you are a member, the National Association of Securities Dealers, Inc. or the
Municipal Securities Rulemaking Board, and in accordance with its arbitration
rules then in force. The undersigned may elect in the first instance whether
arbitration shall be conducted before the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., other exchanges of which you are a member, the
National Association of Securities Dealers, Inc. or the Municipal Securities
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Rulemaking Board, but if the undersigned fails to make such election, by
registered letter or telegram addressed to you at the office where the
undersigned maintains the account, before the expiration of five days after
receipt of a written request from you to make such election, then you may make
such election. Judgment upon the award of arbitrators may be entered in any
court, state or federal, having jurisdiction.
No person shall bring a putative or certified class action to arbitration,
nor seek to enforce any predispute 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.
14. Joint and Several Liability
If the undersigned shall consist of more than one person, their obligations
under this agreement shall be joint and several.
15. Representation as to Capacity to Enter Into Agreement
The undersigned represents that no one except the undersigned has an
interest in the account or accounts of the undersigned with you. If a natural
person, the undersigned represents that the undersigned is of full age, is not
an employee of any exchange, nor of any corporation of which any exchange owns a
majority of the capital stock, nor of a member of any exchange, nor of a member
firm or member corporation registered on any exchange, nor of a bank, trust
company, insurance company or any corporation, firm or individual engaged in the
business of dealing either as broker or as principal in securities, bills of
exchange, acceptances or other forms of commercial paper. If any of the
foregoing representations is inaccurate or becomes inaccurate, the undersigned
will promptly so advise you in writing.
16. Extraordinary Events
You shall not be liable for loss caused directly or indirectly by
government restrictions, exchange or market rulings, suspension of trading, war,
strikes or other conditions beyond your control.
17. The Laws of the State of New York Govern
This agreement and its enforcement shall be governed by the laws of the
State of New York; and shall cover individually and collectively all accounts
which the undersigned may open or reopen with you; and shall inure to the
benefit of your successors, whether by merger, consolidation, or otherwise, and
assigns, and you may transfer the accounts of the undersigned to your successors
and assigns; and this agreement shall be binding upon the heirs, executors,
administrators, successors and assigns of the undersigned.
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18. Amendments
The undersigned agrees that you shall have the right to amend this
Agreement, by modifying or rescinding any of its existing provisions or by
adding any new provision. Any such amendment shall be effective as of the date
to be established by you, which shall not be earlier than thirty days after you
send notification of any such amendment to the undersigned.
19. Separability
If any provision or condition of this agreement shall be held to be invalid
or unenforceable by any court, or regulatory or self-regulatory agency or body,
such invalidity or unenforceability shall attach only to such provision or
condition. The validity of the remaining provisions and conditions shall not be
affected thereby and this agreement shall be carried out as if any such invalid
or unenforceable provision or condition were not contained herein.
20. Headings Are Descriptive
The heading of each provision hereof is for descriptive purposes only and
shall not be deemed to modify or qualify any of the rights or obligations set
forth in each such provision.
CMA, CBA, and WCMA clients may have already signed and returned this
agreement. If so, please disregard.
BY SIGNING THIS AGREEMENT, THE UNDERSIGNED ACKNOWLEDGES: (1) THAT, IN
ACCORDANCE WITH PARAGRAPH 13,THE UNDERSIGNED IS AGREEING IN ADVANCE TO ARBITRATE
ANY CONTROVERSIES THAT MAY ARISE WITH YOU; (2) THAT, PURSUANT TO PARAGRAPH 10
ABOVE CERTAIN OF THE UNDERSIGNED'S SECURITIES MAY BE LOANED TO YOU OR LOANED OUT
TO OTHERS; AND (3) RECEIPT OF A COPY OF THIS AGREEMENT.
Xxxxxx Communications, Inc.
By:
Signature /s/ Xxxxxx X. Xxxxxxx Date 2/30/02
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Title Executive Vice President
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(for special accounts, example Trustee)
Signature Date
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Title
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(for special accounts, example Co-Trustee)
Account No.
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