The Investor CreditLineSM Service Client
Agreement
Note: CMA M 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:
Applicable Rules and Regulations
1. 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 (Xxxxxx
Xxxxx, Xxxxxx, Xxxxxx & Xxxxx, Inc.) or your
agents, including your subsidiaries and
affiliates.
Definition
2. 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.
Collateral Requirements and Credit Charges for
the Investor CreditLineSM Service
3. The undersigned will maintain such
securities and other property in the account
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.
Security Interest
4. 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.
Representations as to Beneficial Ownership and
Control
5. 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.
Calls for Additional Collateral - Liquidation
Rights
6. (a) You shall have the right to require
additional collateral:
(1) in accordance with your general
policies for the Investor
CreditLineSM 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 (3),
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.
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.
Payment of Indebtedness Upon Demand
7. 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.
Liability for Costs of Collection
8. 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.
Pledge of Securities and Other Property
9. All securities and other property now or
hereafter held, carried or maintained by you
in your possession or control in any of the
accounts of 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.
Lending Agreement
10. 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, 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 part, with respect to the
securities lent.
Presumption of Receipt of Communications
11. 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.
Accounts Carried as Clearing Broker
12. 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
Page 17 of 19 Pages
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 his
employees.
Agreement to Arbitrate Controversies
13. Arbitration is final and binding on the
parties
The parties are waiving their
right to seek remedies in court,
including the right to jury trial.
Prearbitration 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 an
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.
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 or 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 exchange
of which you are a member, the National
Association of Securities Dealers, Inc. or the
Municipal Securities Rulemakeing 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. Judgement 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 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.
Joint and Several Liability
14. If the undersigned shall consist of more
than one person, their obligations under this
agreement shall be joint and several.
Representation as in Capacity to Enter into
Agreement
15. 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 a broker or as principal in
securities, bills or 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.
Extraordinary Events
16. You shall not be liable for loss caused
directly or indirectly by government
restrictions, exchange or market rulings,
suspension or trading, war, strikes or other
conditions beyond your control.
The Laws of the State of New York Govern
17. This agreement and is 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; shall
inure to the benefit of your successors,
whether my 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.
Amendments
18. 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 a date
to be established by you, which shall not be
earlier than thirty days after you send
modification of any such amendment to the
undersigned.
Separability
19. 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.
Headings are Descriptive
20. 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 T ARBITRATE ANY CONTROVERSIES THAT MAY
ARISE WITH YOU; (2) THAT, PURSUANT TO
XXXXXXXXX 00 XXXXX, XXXXXXX OF THE
UNDERSIGNED'S SECURITIES MAY BE LOANED TO YOU
OR LOANED OUT TO OTHERS; AND (3) RECEIPT OF A
COPY OF THIS AGREEMENT.
Signature /s/Xxxx X. Xxxxx Date 11-25-97
Title N/A
(For special accounts, example: Trustee)
Signature N/A Date
(Second party if joint account: Co-Trustee)
Title N/A
(For special accounts, example: Co-Trustee)
Account No. _________________
Page 18 of 19 Pages
