FULLY DISCLOSED CLEARING AGREEMENT
This Fully Disclosed Clearing Agreement (the "Agreement") is
executed and entered into by and between Southwest Securities, Inc.
("Southwest"), a Delaware corporation, and Xxxxx Financial Group, Inc.
("Correspondent"), a Georgia corporation.
WHEREAS, Correspondent is in the process of registering or is
registered with the Securities Exchange Commission ("SEC") as a
broker-dealer of securities in accordance with Section 15(b) of the
Securities and Exchange Act of 1934 (the "Act") and is applying for
membership or is a member of the National Association of Securities
Dealers, Inc. ("NASD"), and desires to enter into an agreement with
Southwest for Southwest to clear and maintain customer accounts on
behalf of Correspondent; and
WHEREAS, Southwest meets all requirements of the SEC to function
as a clearing broker or dealer, and desires to enter into an agreement
to clear and maintain cash, margin or other accounts ("Accounts") for
Correspondent or customers of Correspondent ("Customers"), (such
Accounts of Correspondent and Customers being hereinafter referred to
as "Correspondent Accounts" and "Customer Accounts," respectively).
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and of guarantee of this Agreement by any
guarantor(s), and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties
agree as follows:
1. REPRESENTATIONS AND WARRANTIES; AGENCY RELATIONSHIP
(a) Representations and Warranties of Correspondent. Correspondent
represents and warrants to Southwest that:
(i) Correspondent is a corporation duly organized, validly
existing and in good standing under the laws of the
state of its incorporation, and authorized to conduct
Exhibit 10.4 - Pg. 1
business in each state where such authorization is
required.
(ii) Correspondent has all the requisite authority in
conformity with all applicable laws and regulations to
enter into this Agreement and to retain the services of
Southwest in accordance with the terms hereof.
(iii) Correspondent shall not conduct any securities business
in accordance with the terms of this Agreement unless or
until it is accepted as a member in good standing of the
NASD, its registration with the SEC is effective, and it
is duly licensed in accordance with the provisions of
any applicable state securities laws.
(iv) Correspondent shall not conduct any business in
securities unless it has all requisite authority,
whether arising under applicable federal or state laws,
rules and regulations, or under the bylaws and rules of
any securities exchange or securities association to
which Correspondent is subject.
(v) Correspondent has no arrangement with any other firm for
the provision by such other firm of clearing services
for any Customer Acc9ounts or Correspondent Accounts, or
if any such arrangement exists Correspondent has fully
disclosed the nature of such arrangement to Southwest in
writing.
(b) Representations and Warranties of Southwest. Southwest
represents and warrants to Correspondent that:
(i) Southwest is a corporation duly organized, validly
existing and in good standing under the laws of the
state of Delaware and authorized to do business in each
state where such authorization is required.
(ii) Southwest is registered as a broker-dealer with the SEC
and is in compliance with the rules and regulations
thereof.
Exhibit 10.4 - Pg. 2
(iii) Southwest is a member corporation in good standing of
the NASD and is in compliance with the rules and
regulations thereof.
(iv) Southwest is in compliance with the rules and
regulations of each national securities exchange of
which it is a member.
2. CUSTOMER AND CORRESPONDENT ACCOUNTS
Responsibility for compliance with the provisions of the NASD Rules of
Fair Practice regarding opening, approving and monitoring Customer
Accounts shall be allocated between Southwest and Correspondent as set
forth in this Section 2.
(a) Account Documentation. Correspondent will be responsible for
obtaining and verifying all required information and the
identity of each potential Customer. Correspondent will be
responsible for obtaining and furnishing to Southwest all
customary and necessary documents related to Customer Accounts
and Correspondent Accounts, and such other documentation as
Southwest may reasonably require from time to time, all in
such form as shall be reasonably acceptable to Southwest.
Correspondent also will be responsible for the transmissions
of all required documents to Southwest on a timely basis, but
in any event within seven (7) days after a request to open an
account is made to Southwest. Correspondent acknowledges its
obligations to retain all documents in an easily accessible
place in accordance with any applicable rules and regulations
of regulatory or self-regulatory agencies or bodies, and
Correspondent agrees to provide original documents by
overnight delivery or a legible copy by facsimile transmission
of such documents within twenty-four (24) hours of a request
from Southwest. Correspondent will be responsible for
complying with the requirement of SEC 15c2-5, if applicable.
(b) Knowledge of Customer and Customer's Investment Objectives.
Correspondent will be responsible for learning and documenting
all the facts relative to every Customer necessary to insure
Exhibit 10.4 - Pg. 3
compliance by Correspondent with applicable rules and
regulations, including the information and instructions
submitted to Southwest pursuant to Section 2(a), any
additional facts relative to the Customer's investment
objects, and to the nature of every Customer Account, every
order and every person holding power of attorney over any
Customer Account. Correspondent shall by solely responsible
for any issues regarding the suitability of any investments
for its Customers.
(c) Acceptance of Accounts. An authorized officer of Correspondent
shall accept and approve each Customer and Customer Account.
Each Customer and Customer Account approved by Correspondent
and opened with Southwest shall be subject to Southwest's
acceptance. Southwest reserves the right to withhold
acceptance of, or to reject, for any reason, any Customer,
Customer Account, correspondent Account or any transaction for
any Account and to terminate any Account previously accepted
by Southwest. Acceptance of each Account shall be conditioned
upon Southwest's receipt of all required completed forms as
required by Section 2(a). Correspondent shall not submit such
forms with respect to any Customer Account unless
Correspondent has in its possession the documentation of all
information required pursuant to Section 2(b). Southwest
shall be under no obligation to accept any Account as to which
any documentation required to be submitted to Southwest or
maintained by Correspondent pursuant to Section 2(a) and (b)
is incomplete. Prior to acceptance of any Account, no action
taken by Southwest or any of its employees, including, without
being limited to, clearing a trade in any Account, shall be
deemed to be or shall constitute acceptance of such Account.
(d) Supervision of Transactions and Accounts. Correspondent
will be responsible for the review and supervision of, and the
suitability of, investments made by each and every one of its
Customers and for the supervision and monitoring of all
discretionary Accounts maintained by Correspondent, and
Exhibit 10.4 - Pg. 4
Southwest shall have no responsibility for such. An
authorized officer of Correspondent shall approve each
transaction in each Customer Account accepted by Southwest.
Correspondent shall be responsible for insuring that all
transactions in and activities related to all Accounts opened
by it with Southwest, including discretionary Accounts, will
be in compliance with all applicable laws, rules and
regulations of the United States, the states thereof, and
regulatory and self-regulatory agencies and bodies, including
any laws relating to Correspondent's fiduciary
responsibilities to Customers, either under the Employee
Retirement Income Security Act of 1974 or otherwise; and in
this connection, Correspondent shall diligently supervise the
activities of its officers, employees and representatives with
respect to such Accounts. Southwest will perform clearing
services provided for in this Agreement for Accounts accepted
by it in accordance with the terms of this Agreement, as it
may be amended from time to time, and otherwise in accordance
with its reasonable business judgment. To the extent, if any,
that Southwest accepts from Correspondent orders for execution
in accordance with Section 7(a),Correspondent shall be
responsible for informing Southwest of the location of the
securities that are the subject of the order so that Southwest
may comply with the provisions of 3110 of the NASD Conduct
Rules.
(e) Accounts of Associated Persons. In each case in which a
Customer is an employee or otherwise associated with an NASD
member, Correspondent shall be responsible for notifying such
member in accordance with the provisions of Article III,
Section 28 of the NASD Rules of Fair Practice.
(f) Account Responsibility for Certain Purposes. Notwithstanding
anything herein to the contrary, for purposes of the
Securities Investment Protection Act of 1970 and the financial
responsibility rules of the Securities and Exchange Commission
only, the Customer Accounts are the responsibility of
Exhibit 10.4 - Pg. 5
Southwest. Nothing in this Section 2(f) will otherwise change
or affect the provisions of this Agreement of any information
provided to Customers (including the Customer Information
Brochure provided to Correspondent by Southwest), which
provide that each Customer remains a Customer of Correspondent
for all other purposes, including but not limited to sales
practices, supervision, suitability, et. Further, it is
understood that Correspondent is not Southwest's agent for
sales purposes and neither Correspondent nor any of its
employees or agents can bind Southwest or make representations
on Southwest's behalf to any Customers regarding any
transaction cleared by Southwest on Correspondent's behalf.
3. EXTENSION OF CREDIT
Responsibility for compliance with the provisions of Regulation T
issued by the Board of Governors of the Federal Reserve System
pursuant to the Securities Exchange Act of 1934 ("Regulation T") and
all other applicable rules, regulations and requirements of any
exchange or regulatory agency affecting the extension of credit shall
be allocated between Southwest and Correspondent as set forth in this
Section 3.
(a) Margin Agreements. At the time of opening of each margin
account, Correspondent will furnish Southwest with a
Southwest Margin and Short Account Customer Agreement,
executed by Customer, on the form furnished to Correspondent
by Southwest.
(b) Margin and Margin Maintenance. Correspondent is responsible for
assuring Customer's payment of Customer's initial margin
requirements and of all amounts necessary to meet subsequent
maintenance calls in each Customer Account, to insure
compliance with Regulation T and the house rules of
Southwest. Correspondent is responsible for the payment of
initial margin requirements and of all amounts necessary to
meet subsequent margin calls in each Correspondent Account.
Southwest shall have the unlimited right to buy in or sell
out positions in Accounts whenever Southwest in its sole
Exhibit 10.4 - Pg. 6
discretion deems such action appropriate, and without regard
to whether, if the Account is a Margin Account, any such
Account is then in compliance with applicable margin
maintenance requirement or has requested an extension of time
for any Account to make any payment required by Regulation T.
Correspondent acknowledges that Southwest has the right to
demand payment on any debit balance and that Correspondent is
responsible to Southwest for any unsecured debit balance
resulting from any failure of a Customer to make any such
payments upon demand.
(c) Margin Requirements. Southwest will by responsible for
setting minimum margin requirements and advising Correspondent
when calls are issued. Southwest may change the margin
requirements applicable to any Account or class of accounts,
as described in its house rules; Correspondent shall be
responsible for advising its Customers of the changed
requirements and for the payment by Customer of any
additional margin necessary to insure compliance with such
increased requirements. Correspondent may establish for any
of its Customer Accounts higher minimum margin requirements
than those requirements established by Southwest; however
Southwest will not be responsible for monitoring the higher
minimum on behalf of Correspondent, unless the higher
standard is one that can be accommodated by the Southwest
computer system.
(d) Extensions. Correspondent will be responsible for advising
Southwest to obtain extensions under appropriate federal
regulations. Only Southwest shall perform the clerical
function of obtaining requested extensions from the
applicable regulatory authorities.
(e) Losses. In addition to, and not in limitation of,
Correspondent's agreement to indemnify Southwest pursuant to
the provisions of Section 10, Correspondent indemnifies and
holds harmless Southwest from and against any and all loss,
cost, expense and liability (including legal and accounting
fees and expenses) sustained by Southwest arising out of any
of the following events:
Exhibit 10.4 - Pg. 7
any failure by any Customer to comply with the terms of its
Customer Margin and Short Account Agreement with Southwest;
Southwest's re-booking of margin transactions as cash
transactions;
Southwest's broker's execution of a transaction for the account
of a Customer;
the failure of Correspondent or any Customer, in a margin
transaction, to comply with Regulation T;
the failure of Correspondent to satisfy its obligations under
this Section 3; or
in a cash transaction, the failure of delivery of securities
sold or failure of payment for securities purchased in
accordance with the provisions of Regulation T; the return to
Southwest unpaid ofany check given to Southwest by Correspondent
or any Customer; or the payment for and/or delivery of all "when
issued" transactions which southwest may accept or execute for
the Accounts.
4. MAINTENANCE OF BOOKS AND RECORDS
(a) Southwest's Books and Records. Southwest will maintain
stock records and other records on a basis consistent with
generally accepted practices in the securities industry and will
maintain copies of such records as are produced by Southwest,
in accordance with all applicable rules and regulations of
regulatory and self-regulatory agencies and bodies, including
the NASD and SEC guidelines for record retention in effect
from time to time. In connection with Customer Accounts,
Southwest will maintain and preserve such books and records
pertaining thereto, pursuant to the requirements of SEC Rule
17a-3, as are customarily made and kept by Southwest.
(b) Correspondent's Books and Records. Notwithstanding the
provisions of Section 4(a), Correspondent shall maintain
ledgers (or other records) reflecting all assets and
liabilities, income and expenses and capital accounts; monies
Exhibit 10.4 - Pg. 8
borrowed and monies loaned (together with a record of the
collateral therefore and any substitution in such collateral);
a record of the computation of aggregate indebtedness and bet
capital pursuant to SEC Rule 15c3-1; and personnel files
including applications for employment executed by each
"associated person". Correspondent also shall maintain a
memorandum of each brokerage order, and of any other
instruction, given or received for the purchase or sale of
securities, whether executed or unexecuted. Such memorandum
shall show the terms and conditions of the order or
instructions and of any modification or cancellation thereof,
the account for which entered, the time of entry, the price at
which executed and, to the extent feasible, the time of
execution or cancellation.
(c) Books and Records of Both Parties. Southwest and
Correspondent shall each be responsible for preparing and filing
the reports required by the regulatory and self-regulatory
agencies and bodies that have jurisdiction over each, and
Southwest and Correspondent will each provide the other with such
information, if any, which is in the control of one party but
is required by the other to prepare any such reports.
5. RECEIPT, DELIVERY AND SAFEGUARDING OF FUNDS AND SECURITIES
(a) Receipt and Delivery in the Ordinary Course of Business.
As between Southwest and Correspondent, the party having
possession of Customer funds or securities shall be
responsible for safeguarding such funds and securities.
Correspondent shall promptly transmit securities and/or funds
to Southwest when securities and/or funds are to be delivered
to Southwest. However, Southwest will mot be responsible for
any funds or securities delivered by a Customer or
Correspondent, its agents or employees, until such funds or
securities are physically delivered to Southwest's premises
and accepted by an authorized representative of Southwest or
deposited in bank accounts maintained in Southwest's name.
Exhibit 10.4 - Pg. 9
Correspondent shall be responsible for the prompt payment to
Southwest for securities purchased and prompt delivery of
securities sold in Customer Accounts. Correspondent shall be
responsible for the authenticity of all certificates and
delivery of certificates in good form by Customers to
Southwest.
With respect to all payments made or to be made to Southwest,
by or for a Customer of Correspondent, Correspondent shall
immediately forward all such funds to Southwest, either by U.
S. Mail or mutually acceptable courier service or by deposit
to local depositary bank, and an officer of Correspondent
shall verify and warrant that said funds are credited to the
proper Southwest Customer Account, and further shall notify
Southwest to enter on Southwest's books and records said
deposit of Customer Funds.
With respect to any securities certificates delivered to
Southwest for a Customer of Correspondent, an officer of
Correspondent shall verify and warrant (i) that any
securities not bearing a restricted legend are fully paid for
and freely tradable; (ii) that Correspondent has no reason to
suspect any defect or irregularity with respect to any
securities and any endorsements thereon; (iii) that the
securities are free of any liens and adverse claims, (iv)
that the party transferring the securities has legal title to
them or the authority to effect the proposed transfer; an
d(v) that the regulatory requirements restricting the sale or
transfer of securities that bear a restrictive legend
(pursuant to SEC Rules 144 or 145 or otherwise) have been
satisfied or will be satisfied within the appropriate time
frames.
Correspondent acknowledges that it is solely responsible for
satisfying any loss or shortfall of a Customer Account, or
for any other event which causes the assets in a Customer
Account to be insufficient in amount or otherwise unavailable
Exhibit 10.4 - Pg. 10
to timely meet the obligations of Customer to Southwest.
(b) Custody Services. Whenever Southwest has been instructed
to act as custodian of the securities in any Correspondent or
Customer Account, or to hold such securities in
"safekeeping," Southwest may hold the securities in the
Customer's name or may cause such securities to be registered
in the name of Southwest or its nominee or in the names of
nominees of any depository used by Southwest. Southwest will
perform the services required in connection with acting as
custodian for securities in Correspondent and Customer
accounts, such as (i) collection and payment of dividends;
(ii) transmittal and handling (through Correspondent) of
tenders or exchanges pursuant to tender offers and exchange
offers; (iii) transmittal of proxy materials and other
shareholder communications; and (iv) handling of exercises or
expirations of rights and warrants, and of redemptions of
securities.
(c) Receipt and Delivery Pursuant to Special Instruction.
Upon instruction from Correspondent and/or a Customer, Southwest
will make such transfers of securities or Accounts as may be
requested. Correspondent shall be responsible for
determining if any securities held in Correspondent or
Customer Accounts are "restricted securities" or "control
stock" as defined by the rules of the Sec and that orders
executed for such securities are in compliance with the
applicable laws, rules and regulations.
(d) Draft-Issuing Authority. At its discretion Southwest may
authorize certain of Correspondent's employees to sign
drafts, with correspondent as the drawer, payable to
Correspondent's Customers in amounts and pursuant to
conditions as may be determined by Southwest from time to
time. Correspondent agrees that it will not request
Southwest to authorize someone to sign drafts who is not an
employee of Correspondent. With respect to any drafts so
issued by Correspondent, an officer of Correspondent shall
Exhibit 10.4 - Pg. 11
verify and warrant before causing the draft to be issued (i)
that the funds to be transmitted are due payee and that payee
has the authority to receive those funds; (ii) that the funds
are free of any liens or adverse claims at the time of
payment, and are not expected to become subject to any such
liens or claims within the foreseeable future; and (iii) that
the funds are not needed at the time of payment to satisfy
margin or other collateral requirements of the Customer.
Correspondent agrees to fully indemnify Southwest from the
negligence, fraud or mistakes of Correspondent,
Correspondent's employees, independent agents and contractors
and Customers in connection with any draft issuing authority
granted hereunder. Southwest may in its discretion require
Correspondent or post a performance bond in such amount and
with such deductible as Southwest may determine in order to
protect Southwest against any such losses. Furthermore,
Correspondent authorizes Southwest to charge any
Correspondent Account or other assets of Correspondent held
by Southwest with the amount of any such losses.
Notwithstanding Section 5(a), Southwest will not be
responsible for the safeguarding of funds withdrawn by
Correspondent of Correspondent's employees pursuant to such
draft issuing authority. Southwest may withdraw this draft
issuing privilege without notice at any time during the term
of this Agreement. Notwithstanding anything herein to the
contrary, Southwest may at any time, at its sole discretion,
despite any prior authorization, refuse payment on any draft
for which Correspondent is drawer and Southwest is drawee.
6. CONFIRMATIONS AND STATEMENTS.
(a) Preparation and Transmissions. Southwest will prepare
and send to Customers monthly statements of accounts (or
quarterly statements if no activity occurs in an account during
Exhibit 10.4 - Pg. 12
the calendar quarter covered by such statement), which statements
shall meet Southwest's requirements as to format and quality
and will indicate that correspondent introduced the Account.
Unless otherwise agreed, Southwest will be responsible for
preparing and transmitting confirmations; subject to prior
approval by Southwest and compliance by Correspondent with the
provisions of 2230 NASD Conduct Rules. Correspondent shall
not generate and/or prepare any statements, xxxxxxxx or
confirmations respecting any Account except as provided in
this Agreement or pursuant to an agreement executed between
Southwest and Correspondent that authorizes Correspondent to
print and mail statements to Accounts on behalf of Southwest.
If such an agreement has been executed, Correspondent
covenants that it shall comply with all requirements for
statements imposed upon Southwest of which Correspondent has
notice or has been advised of by Southwest under all
applicable laws, rules and regulations, including, but not
limited to, the SEC, NASD, Federal Reserve Board and all other
regulatory and self-regulatory agencies and bodies.
Correspondent further covenants that it shall not modify or
amend the agreed upon statement form provided without the
prior written consent of Southwest.
(b) Examination and Notification of Errors. Correspondent
shall examine promptly all monthly statements of account, monthly
statements of clearing services and other reports provided to
Correspondent by Southwest. Correspondent shall notify
Southwest of any error claimed by Correspondent in any Account
in connection with (i) any transaction prior to the settlement
date of such transaction, (ii) information appearing on daily
reports within seven (7) calendar days of such report, and
(iii) information appearing on monthly statements or reports
within thirty (30) calendar days of Correspondent's receipt of
any monthly statement or report. Any notice of error shall be
accompanied by such documentation as may be necessary to
Exhibit 10.4 - Pg. 13
substantiate Correspondent's claim. Correspondent shall
provide promptly upon Southwest's request any additional
documentation which Southwest reasonably believes is necessary
or desirable to determine and correct any such error.
7. ACCEPTANCE OF ORDERS, EXECUTION OF TRANSACTION, OTHER SERVICES.
(c) Customer's Orders. Orders received by Correspondent can be
executed by Correspondent or forwarded to southwest for
execution. The party executing the order shall be responsible
for errors in execution. Acceptance of orders from Customers
shall be the responsibility of Correspondent, and
Correspondent shall be responsible for the authenticity of all
orders. Correspondent shall promptly transmit all orders to
Southwest, and Southwest shall have no responsibility for
orders not promptly transmitted. Correspondent shall advise
each of its Customers that its relationship with Southwest is
solely that of an introducing broker to a clearing broker and
that, except as set forth in Section 2(f) above, Correspondent
bears all responsibility for the Customer's Account.
Southwest reserves the right to reject any Customer order
transmitted to Southwest for execution or any order executed
by Correspondent and reported to Southwest for clearance.
Correspondent assumes the risk of failure by any dealer with
which correspondent executes an order in the event such dealer
fails to perform, and will reimburse Southwest for any loss
and/or costs incurred by it in the transaction.
(d) Transaction Clearing. During the term of this Agreement,
Southwest will clear transactions on a fully disclosed basis
for Accounts of Correspondent and the Customers that
Correspondent introduces and Southwest accepts as provided in
Section2(c); provided that Southwest reserves the right not to
clear any transactions for Correspondent or Correspondent's
Customers.
Exhibit 10.4 - Pg. 14
(e) Other Services. Southwest will perform such other
services, upon such terms and at such prices, as Southwest and
Correspondent shall agree from time to time.
8. FEES AND SETTLEMENTS FOR SECURITIES TRANSACTIONS
(a) Commissions; Fees for Clearing Services
(i) Correspondent has provided to Southwest its basic
commission schedule and Southwest will charge each
Customer the commission shown on such schedule or which
Correspondent otherwise directs Southwest to charge on
each transaction. Correspondent's basic commission
schedule may be amended from time to time by written
instructions to Southwest from Correspondent; provided,
however, that Southwest shall be required to implement
such changes only to the extent they are within the
usual capabilities of Southwest's data processing and
operations systems and only over such reasonable time
as Southwest may deem necessary or desirable to avoid
disruption of Southwest's normal operational
capabilities. Southwest may charge Correspondent for
changes in the basic commission schedule.
Correspondent's basic commission schedule shall by
within the format of Southwest's computer system
(ii) Southwest will charge Correspondent for clearing
services according to the fee schedule set forth in
Schedule A attached hereto and, if applicable, Schedule
B.
(iii) Southwest may charge Correspondent expenses incurred by
Southwest on behalf of Correspondent pursuant to this
Agreement. Expenses incurred by Southwest on behalf of
Correspondent that may be deducted from any payments
due to Correspondent from Southwest include, but are
not limited to, overlay of forms, system equipment
expenses, special programming, changes to commissions
Exhibit 10.4 - Pg. 15
schedules and financial report information related
thereto, installation of data communication lines and
brokerage related credit inquiries, legal tranfers,
Regulation T extension, Mailgrams (buy-in or sellout),
microfiche of records, insurance protection for
Accounts in excess of the amounts provided by the
Security Investors Protection Corporation, third party
vendor fees and costs incurred in failure of
Correspondent or Customers to provide correct social
security of tax identification numbers.
(b) Settlements. Southwest will collect commission from Customers
on behalf of Correspondent and through Correspondent. As soon
as practicable after the end of each month, Southwest will
forward to the Correspondent a statement showing the amount of
commission and other amounts collected by Southwest on
Correspondent's behalf, and all amounts due to Southwest from
Correspondent (including, without being limited to, clearing
charges, other charges, other fees and Customer's unsecured
debit items, however arising), together with the amount by
which the total owed Correspondent exceeds the total owed
Southwest. If such statement indicates that Correspondent
owes monies to Southwest, Correspondent shall promptly pay
Southwest the amount by which the total owed Southwest exceeds
the total owed Correspondent. If Correspondent fails to make
such payment within the time period indicated on such
statement, or in any event within thirty (30) calendar days,
Southwest shall have the right to charge any other Account
maintained by Southwest for Correspondent or any other assets
of Correspondent held by Southwest (including the deposit
required pursuant to Section 9 and positions and balances in
Correspondent Accounts) for the net amount due Southwest. Any
failure by Southwest to charge any Account or assets of
Correspondent held by Southwest shall not act as a waiver of
Exhibit 10.4 - Pg. 16
Southwest's right to demand payment of, or to charge
Correspondent's Accounts for, the full amount due at any time.
9. DEPOSIT
(a) Required Clearing Deposit. Contemporaneously with
the signing of this Agreement, Correspondent will
deliver cash to Southwest, as specified in Schedule A
attached, for deposit in an account maintained by
Southwest. If at any subsequent time Southwest, in
its sole discretion, requires an additional deposit,
Correspondent will deposit additional cash in an
amount specified by Southwest. Any failure by
Southwest to demand compliance with the requirement
that Correspondent deposit additional amounts shall
not act as a waiver of Southwest's right to demand
compliance with such requirements at any time. If
the deposit is not adequately funded as required by
Southwest, Southwest may, in addition to all other
rights under this Agreement, transfer cash or
securities of Correspondent held by Southwest to the
deposit account. Southwest shall be entitled to set-
off against any deposit in addition to any and all
other rights or remedies Southwest may have under
this Agreement or otherwise.
(b) Return of Required Clearing Deposit. When this
Agreement has been terminated in accordance with the
provisions hereof, and Southwest has received payment
in full of any and all amounts owing to Southwest
hereunder and Correspondent has satisfied each and
every of Correspondent's outstanding obligations to
Southwest hereunder, Southwest shall return the
required clearing deposit to Correspondent within
Exhibit 10.4 - Pg. 17
thirty (30) calendar days of the date on which all of
said payments have been received and obligations
satisfied. These obligations include, but are not
limited to, any open and unsettled litigation matters
between Correspondent or Customers and Southwest, any
unresolved unsecured Correspondent Account or
Customer Account debit balances, any open fails as a
result of trades executed on behalf of Correspondent
Accounts or Customer Accounts, and any failures to
transfer to another broker any Customer Accounts
introduced by Correspondent.
10. INDEMNIFICATION
(a) Indemnity. Correspondent agrees to indemnify and hold
harmless Southwest, each person who controls Southwest within
the meaning of the Securities Exchange Act of 1934 and any
directors, officers, employees, agents and attorneys of
Southwest ("Southwest Indemnified Persons") for and against
all claims, demands, proceedings, suits and actions and all
liabilities, losses, expenses and costs (including any legal
and accounting fees and expenses)relating to Southw4est's
defense of any failure, for any reson, fraudulent or
otherwise, by Correspondent, Correspondent's employees,
independent agents or contractors, or Customers to comply with
any obligation under this Agreement or any other agreement
executed and delivered to Southwest in connection with
Southwest's performance of services hereunder and any act or
failure to act by Southwest Indemnified Persons, except any
act or failure to act which is the result of gross negligence
or willful misconduct on the part of any such Southwest
Indemnified Person. Without limiting the generality of the
foregoing, such failure is explicitly intended by the parties
to include failure resulting from (i) suspension of trading or
bankruptcy or insolvency of any company, securities of which
Exhibit 10.4 - Pg. 18
are held in Customer's Accounts; (ii) failure by any Customer
to maintain adequate margin; or (iii) breach of any obligation
existing between Correspondent and a customer of Correspondent
or any law, rule or regulation of the United States, a state
or territory thereof, or any regulatory or self-regulatory
agency or body, applicable to any transaction contemplated by
this Agreement.
Southwest shall indemnify and hold Correspondent harmless
against any losses, claims, damages, liabilities or expenses
including without limitation those asserted by Customers
(which shall include, but not be limited, to. All costs of
defense and investigation and all attorney's fees) to which
Correspondent may become subject, insofar as such losses,
claims, damages, liabilities or expenses arise out of, or are
based upon the gross negligence or willful misconduct of
Southwest or its employees in providing the services
contemplated hereunder.
Promptly after receipt by any indemnified party under this
section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section, notify
the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve
it from any liability that it may have to any indemnified
party otherwise than under this Section.
In case any such action is brought against any indemnified
party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled
to participate in and, to the extent that it may wish, to
assume the defense thereof, subject to the provisions herein
stated, with counsel satisfactory to such indemnified party.
After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party will not be liable to the indemnified party
Exhibit 10.4 - Pg. 19
under this Section for any legal or other expense subsequently
incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
The indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall not
be at the expense of the indemnifying party if the
indemnifying party has assumed the defense of the action with
counsel satisfactory to the indemnified party.
(b) security Interest and Authorization to Charge.
Correspondent grants to Southwest a first lien and security
interest in any Correspondent Account maintained by Southwest
and any other assets of Correspondent now or hereafter held by
Southwest and authorizes Southwest to discharge such lien by
charging such Account and assets with all amounts owing to
Southwest including, but not limited to, (i) any losses
resulting from unsecured debit balances in any Customer or
Correspondent Account, (ii) any losses resulting from unsecured
debit balances in any Customer or Correspondent Account,
(iii) any losses resulting from the failure by a Customer or
Correspondent to promptly satisfy upon demand by Southwest and
indebtedness of Customer or Correspondent to Southwest,
including but not limited to any debit balances n any Customer
Account or Correspondent Account and (iv) any amount to which
Southwest is otherwise entitled pursuant to the provisions of
Section 10(a). Southwest shall have discretion to liquidate
or sell any securities without notice to Correspondent, and to
determine which securities to sell. Such charge may be made
against Correspondent Accounts or assets at any time and in
such amount as Southwest deems appropriate. No delay in
charging any Correspondent Account or asset shall operate as a
waiver of Southwest's right to do so at any time as and when
Southwest deems appropriate. Southwest shall have the
unlimited right to set-off any indebtedness or other
Exhibit 10.4 - Pg. 20
obligations of Correspondent under this Agreement of otherwise
(absolute or contingent, matured or unmatured) against any
obligations of Southwest to Correspondent, including from the
required clearing deposit (as described in Section 9) and/or
any other money, securities, or other property of
Correspondent in Southwest's possession.
(c) Reserves. In connection with any claim that does or could
give rise to a claim for indemnification under this Section for
Southwest or a Southwest Indemnified Person, Southwest may, in
its discretion, in addition to any and all other rights and
remedies under this Agreement, reserve and retain any money,
securities or other property of Correspondent pending a
determination of such claim. The money, securities or other
property of Correspondent set aside in such a reserve shall be
subject to Southwest's standard lien and security interest
described in Section 10(b) above.
11. UNDERTAKINGS OF CORRESPONDENT
(a) Financial Statements and Other Reports. Correspondent will
furnish to Southwest promptly upon request copies of
Correspondent's balance sheet and statement of earnings for
the current fiscal year and for each of Correspondent's
previous fiscal years. Each such balance sheet and statement
of earnings shall be certified by independent public
accountants. Correspondent also shall furnish to Southwest
promptly upon request copies of Correspondent's monthly and
quarterly Focus filing, and the results and/or reports of all
exams from self-regulatory bodies, federal or state securities
agencies.
(b) Exclusive Agreement. It is intended by the parties that
Southwest will be the exclusive provider of clearing services
to Correspondent and its Customers during the term of the
Agreement. Correspondent will not, without the express
written consent of Southwest, retain any other broker or other
entity to provide clearing services during the term of this
Exhibit 10.4 - Pg. 21
Agreement.
(c) Disciplinary Action. In the event that Correspondent or
and employee of Correspondent shall become subject to any
disciplinary action, including but not limited to expulsion,
suspension or restriction by any regulatory or self-regulatory
agency or body having jurisdiction over Correspondent and
Correspondent's securities business, Correspondent will notify
Southwest immediately and Correspondent authorizes Southwest
to take such steps as may be necessary for Southwest to
maintain compliance with the rules and regulations to which
Southwest is subject. Correspondent further authorizes
Southwest, in any event, to comply with directives or demands
made upon Southwest by any regulatory or self-regulatory
agency of body relative to Correspondent and Customers. In
connection with such directives or demands, Southwest may seek
advice or legal counsel and Correspondent will reimburse
Southwest for reasonable fees and expenses of such counsel.
Correspondent shall, during the term of this Agreement, notify
Southwest if Correspondent fails to remain in compliance with
the net capital and financial reporting and record keeping
requirements of the SEC, and state which has jurisdiction over
Correspondent, or any regulatory or self-regulatory body which
has jurisdiction over Correspondent.
(d) Fixed Price Offerings. Correspondent agrees that in making
sales of securities, as part of a fixed price offering, it
will comply with all applicable rules of the NASD, including,
without limitation, the NASD's Interpretations with respect to
Free-Riding and Withholding and under 2740 of NASD Conduct
Rules.
(e) Customer Transactions. Correspondent represents that all
orders and other transactions received by Southwest will be in
accordance with their Customer's instruction. The parties
hereto expressly agree that Southwest shall not be bound to
any investigation into the facts surrounding any transaction
that Correspondent may have with its Customers or other
persons, nor shall Southwest be under any responsibility for
Exhibit 10.4 - Pg. 22
compliance by Correspondent with any laws or regulations which
may be applicable to Correspondents.
(f) Inquiries on Certificates. Southwest agrees to act as
Correspondent's direct inquirer under the Lost and Stolen
Securities Program under SEC Rule 17f-1. (17 CFR 240.17f-1).
(g) Compliance with Rules and Regulations. Correspondent shall
comply with, and shall be responsible for complying with, all
laws, rules and regulations to which it is subject, including
but not limited to those promulgated by the SEC, the MASD and
securities exchanges of which Correspondent is a member.
(h) Certain Expenses. Correspondent will not hold Southwest
responsible for any of Correspondent's office expenses or
operating costs. Correspondent will reimburse Southwest for
any costs or expenses Southwest may incur in complying with
any request by a court, or regulatory or self-regulatory
agency or body for any documents, papers or dat in any form
pertaining to any matters relating to this Agreement. If
Southwest deems it necessary to retain legal counsel to advise
Southwest in connection with any matter governed by this
Agreement, including but not limited to Southwest's manner of
handling any transaction on behalf of Correspondent or a
Customer, Correspondent will reimburse Southwest for the fees
of such counsel.
(i) Option Transactions. Correspondent shall appoint a
Registered Option Principal before handling option transactions.
Correspondent shall comply with all requirements of the NASD
and other regulatory bodies regarding the handling of option
transactions.
(j) Correspondent Accounts. Correspondent shall be required to
pay for securities purchased for its own Accounts on the
settlement date, Notwithstanding the foregoing, Correspondent
may finance any portion of the debit balance in a
Correspondent Account under applicable stock exchange and
Federal Reserve regulations. If such financing is extended by
Southwest, Correspondent agrees to satisfy the debit balance
Exhibit 10.4 - Pg. 23
of such Account upon demand by southwest. Southwest shall
charge interest on such debit balances at a rate set at the
discretion of Southwest. Interest will be calculated by
multiplying the average daily debit balance by the average
interest rat (1/360 of the annual interest rate) times the
number of days in the interest period. The rate of interest
and method of calculation may be changed Southwest
automatically and without notice from time to time.
Correspondent agrees to maintain in any Account which has a
debit balance such positions and margins as may be required by
applicable statutes, rules, regulation, procedures and
customs, or as may be requested by Southwest from time to
time. Any financing described in this Section11(j) shall be
subject to all other terms and provisions of this Agreement
relating to obligations of the Correspondent to Southwest,
including but not limited to being secured by the lien and
security interest granted by Correspondent pursuant to
Section10(b) of this Agreement.
In the case of an Event of Default, as defined below, all
debit balances in any Correspondent Account, and interest
thereon, shall bear interest at the highest lawful rate. An
Event of Default shall be deemed to have occurred it (i)
Correspondent fails to meet any call by Southwest for
additional collateral to be deposited in a Correspondent
Account; (ii) Correspondent fails to make payment of any debit
balance in a Correspondent Account upon demand by Southwest;
(iii) Correspondent becomes insolvent, makes an assignment for
the benefit of creditors, applies for or consents to the
appointment of a receiver, or institutes or has instituted
against it any insolvency, reorganization, liquidation,
dissolution or similar proceeding; (iv) a petition naming
Correspondent as debtor shall be filed under the United States
Bankruptcy Code; or (v) an attachment is levied against any
Correspondent Account or Account in which Correspondent has an
Exhibit 10.4 - Pg. 24
interest.
Regardless of any provision of this Section 11(j), any other
section of this Agreement or any other agreement between
Southwest and Correspondent, all agreements between Southwest
and Correspondent, whether now existing or hereafter arising
and whether written or oral, are hereby expressly limited so
that in no contingency or event whatsoever, whether by reason
of demand being made in respect of an amount due from
Correspondent to Southwest, shall the amount paid, or agreed
to be paid, for the use, forbearance or detention of money
loaned by Southwest to Correspondent exceed the maximum
nonusurious rate of interest permitted to be charged under
applicable law (the "Highest Lawful Rate"). If, as a result
of any circumstance whatsoever, fulfillment of or compliance
with any provision hereof or of any of such other agreements
at the time performance of such provisions shall be due or at
any other time shall involve exceeding the amount permitted to
contracted for, taken, reserved, charged or received by
Southwest under applicable usury law, then ipso facto, the
obligation to be fulfilled or complied with shall be reduced
to the limit prescribed by such applicable usury law, and if,
from any such circumstance, Southwest shall ever receive
interest or anything that might be deemed interest under
applicable law which would exceed the Highest Lawful Rate,
such amount which would be excess interest shall be applied to
the reduction of the principal amount owing on the
Correspondent Account in question or the amounts owing on the
obligations of Correspondent to Southwest, or in such
excessive interest exceeds the unpaid principal balance of any
amount owing on other obligations of Correspondent to
Southwest, such excess shall be refunded to Correspondent.
All sums paid or agreed to be paid to Southwest shall, to the
extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full term of such
Exhibit 10.4 - Pg. 25
indebtedness until payment in full of the principal (including
the period of any renewal or extension thereof) so that the
interest on account of such indebtedness shall not exceed the
Highest Lawful Rate. Notwithstanding anything to the contrary
contained in any agreement between Correspondent and
Southwest, it is understood and agreed that if at any time the
rate of interest which accrues on the outstanding balance of
any indebtedness of Correspondent to Southwest shall exceed
the Highest Lawful Rate, the rate of interest which accrues on
the outstanding principal balance of any such indebtedness
shall be limited to the Highest Lawful Rate, but any
subsequent reduction in the rate of interest which accrued on
the outstanding principal balance of any indebtedness shall
not reduce the rate of interest which accrues on the
outstanding principal balance of any indebtedness below the
Highest Lawful Rate until the total amount of interest accrued
on the outstanding principal of any indebtedness equals the
amount of interest that would have accrued if such interest
rate had been in effect at all time.
In consideration for Southwest opening or maintaining one or
more inventory Accounts for Correspondent, Correspondent
agrees to allow Southwest at any time within the Limitations
imposed by applicable laws, rules and regulations, to pledge,
hypothecate, and/or make deliveries with any and all
securities in such Accounts, including fully paid and excess
margin securities, without notice to Correspondent. Such
securities will be segregated from other bona fide customers
of Southwest in the event that they are pledged as collateral
for bank loans. Without abrogating any of Southwest's rights
under this Agreement and subject to any indebtedness of
Correspondent to Southwest. Correspondent is entitled, upon
demand, to receive delivery of fully paid for securities in
Correspondent's inventory Accounts.
Exhibit 10.4 - Pg. 26
The provisions of this Section 11(j) shall be construed in
conjunction with the express terms and conditions of any
separate applicable Account agreement(s) between Southwest and
Correspondent.
(k) Forms BD and U4. Within thirty (30) days after the
execution of this Agreement, Correspondent shall provide to
Southwest a copy of Correspondent's Form BD and copies of the
Forms U4 for the principals and all registered employees of
Correspondent, and copies of any other documents relating to
Correspondent, its principals or employees that are available
on the Central Registration Depository ("CRD"). Thereafter,
within thirty (30) days after the firing of any new employee,
Correspondent shall provide to Southwest a copy of such new
employee's Form U4 and other documents available on the CRD.
Additionally, throughout the term of this Agreement,
Correspondent shall promptly provide copies of any subsequent
amendments of all Forms and other documents described in this
Section 11(k).
(l) Advertising. Correspondent shall obtain Southwest's prior
written consent before using Southwest's name or logo, or the
name or logo of any affiliate of Southwest, in any advertising
in print, broadcast, electronic or any other media. Without
the express written consent of Southwest, Correspondent also
shall not display the name or logo of Southwest or any of its
affiliates on any Internet web page or other electronic
advertising; nor shall Correspondent display on any such web
page or electronic advertising, a hyperlink to or the Internet
address of any web page or electronic advertising of Southwest
or any of its affiliates.
12. TERMINATION OF AGREEMENT; TRANSFER OF ACCOUNTS
(a) Effectiveness. This Agreement shall commence to be
effective on the date set forth on the signature page hereof,
subject to any required approval by the NASD and other
regulatory or self-regulatory agencies or bodies, and shall
Exhibit 10.4 - Pg. 27
remain in effect as more fully described in Schedule A.
(b) Automatic Termination. In addition to any other provision
for termination herein, this Agreement shall terminate
immediately in the event that either Correspondent or Southwest
ceases to conduct its business or the Southwest:
(i) is no loner registered as a broker/dealer with
the SEC; or
(ii) is not longer a member in good standing of the
NASD; or
(iii) is suspended by any national securities exchange
of which Southwest is a member for failure to
comply with the rules and regulations thereof.
(c) Survival. Termination of this Agreement shall not affect
Southwest's rights or liabilities relating to business
transacted prior to the effective date of such termination.
From the date of termination until transfer or delivery of all
Customer and Correspondent Accounts, Southwest's rights and
liabilities relating to business transacted after such
termination shall be governed by the same terms as those set
forth in this Agreement.
(d) No Obligation to Release. Southwest shall not be required
to release to Correspondent any securities or cash held by
Southwest for Correspondent in one or more Correspondent
Accounts until any and all amounts owing to Southwest pursuant
to the provisions of this Agreement are paid; and
Correspondent's outstanding obligations hereunder to Southwest
are determined, including determination of any disputed
amounts, and satisfied, and any property of Southwest in the
possession of Correspondent is returned to Southwest.
(e) Conversion of Accounts Upon Termination. In the event that
this Agreement is terminated for any reason, it shall be
Correspondent's responsibility to arrange for the conversion
of Correspondent and Customer Accounts to another clearing
broker. Correspondent will give Southwest notice (the
"Conversion Notice") of:
Exhibit 10.4 - Pg. 28
(i) the name of the broker that will assume responsibility
for clearing services for Customers and Correspondent;
(ii) the date on which such broker will commence providing such
services;
(iii) Correspondent's undertaking, in form and substance
satisfactory to Southwest, that Correspondent's agreement
with such broker provides that such broker will accept on
conversion all Correspondent and Customer Accounts, then
maintained by Southwest, and all position of such Accounts;
and
(iv) The name of an individual within that organization who
Southwest can contact to coordinate the conversion. The
Conversion Notice shall accompany Correspondent's notice of
termination or within thirty (30) days of the occurrence of
an event specified in Section 12(b).
If correspondent fails to give the Conversion Notice to Southwest,
Southwest may give to Customer such notice as Southwest deems
appropriate of the termination of this Agreement and may make such
arrangements as Southwest deems appropriate for transfer or delivery
of Customer and Correspondent Accounts. In addition, Correspondent
shall pay any costs incurred by Southwest as billed by an third
party vendors such as transfer agents, etc.
(f) Other Transfers of Accounts. When Southwest receives a properly
executed authorization to transfer a Customer Account from the
receiving broker/dealer, Southwest shall promptly transfer the
Customer Account to such receiving broker/dealer.
Correspondent shall discontinue doing business in any Customer
Account scheduled for transfer.
13. CONFIDENTIALITY.
(a) Documents and Business Information. All agreements,
documents, papers and data in any form, supplied by
either party hereto concerning the disclosing party's
business or any Customers shall be treated by the
receiving party as confidential. To the extent such
Exhibit 10.4 - Pg. 29
documents or data are retained by the receiving party,
they shall be kept in a safe place and shall be made
available to third parties only as authorized by the
disclosing party in writing or pursuant to any order or
request of a court or regulatory body having appropriate
jurisdiction. The receiving party shall give the
disclosing party prompt notice of the receipt by the
receiving party of any such order or subpoena, unless
prohibited from doing so by the issuing authority, which
notice shall be given prior to receiving party's
compliance therewith. Such documents shall be made
available by the receiving party for inspection and
examination by the disclosing party's auditors, by
properly authorized agents or employees of any regulatory
bodies or commissions or by such other persons as the
disclosing party may authorize in writing.
Notwithstanding anything herein to the contrary, the
disclosing party expressly authorizes the receiving
party, its business, or Customers to any regulatory body
having appropriate authority.
(b) Term of Agreement. Correspondent agrees that it shall
not disclose to any third party the terms and conditions
of this Agreement, including but not limited to pricing
information, except to the extent Correspondent is
required to do so by the provisions of any law, rule or
regulation, or in response to the order or request of a
court or regulatory body having appropriate jurisdiction.
14. EMPLOYEES
Neither party will solicit, engage in negotiations to employ, or
employ any person who is, or within the preceding twelve (12)
months has been, employed by the other party, without first
obtaining such other party's express written consent.
Exhibit 10.4 - Xx. 00
00. NOTICE TO CUSTOMERS
Subject to the requirements of the NASD Rules of Fair Practice,
Correspondent shall provide to each Customer upon the opening of
a Customer Account, in a manner which is reasonably acceptable to
Southwest, a written notice which shall be furnished by Southwest
describing the general nature of the services being performed by
Southwest in accordance with this Agreement.
16. CUSTOMER COMPLAINT PROCEDURES
Correspondent will be responsible for the initial handling of all
Customer complaints. Any Customer who initiates a complaint with
Southwest will be referred by Southwest to Correspondent. If any
such complaint is based upon an alleged act or failure to act by
Southwest, Correspondent will notify Southwest promptly of such
complaint and the basis therefore; and will consult with
Southwest. And the Parties will cooperate in determining the
validity of such complaint and the appropriate action to be
taken.
17. REMEDIES CUMULATIVE
The enumeration herein of specific remedies shall not be
exclusive of any other remedies. Any delay or failure by any
party to this Agreement to exercise any right, power, remedy or
privilege herein contained, or now or hereafter existing under
any applicable statute or law, shall not be construed to be a
waiver of such right, power, remedy or privilege, nor to limit
the exercise of such right, power, remedy or privilege, nor shall
it preclude the further exercise thereof or the exercise of any
other right, power, remedy or privilege.
18. GUARANTEE
The corporation or individual(s) who guarantee the obligations of
Correspondent under this Agreement by executing the signature
lines designated for such purpose at the end of the Agreement
Exhibit 10.4 - Pg. 31
(the "Guarantor(s)"), in consideration of Southwest's entering
into the Agreement do(es) hereby personally guarantee(s) (jointly
and severally, if more than one) the performance by Correspondent
of the provisions of this Agreement (including without limitation
the indemnification provisions of Section 10) and shall promptly
pay any amount that is not paid by Correspondent to Southwest
under this Agreement. This is an absolute, unconditional and
unlimited guarantee of payment and may be proceeded upon by
Southwest or a Southwest Indemnified Person before filing any
action against Correspondent or after any action against
Correspondent has been commenced. Guarantor(s) grant(s) to
Southwest a first lien and security interest in any and all money
and securities of Guarantor(s) held by Southwest. Southwest
shall have the unlimited right to set-off any amounts owed to it
by Correspondent or a Guarantor(s) against any obligation of
Southwest to any Guarantor(s). Southwest also shall have the
absolute and unlimited right to sell, transfer, or liquidate any
of the assets in any of Guarantor(s)' accounts with Southwest for
any amounts owed to it by Correspondent or a Guarantor(s). The
obligations of Guarantor(s) shall not be discharged or impaired
or otherwise affected by the failure of Southwest or a Southwest
Indemnified Person to assert, claim, demand or enforce any remedy
under this Agreement, nor by waiver, modification or amendment of
this Agreement or any compromise, settlement or discharge of
obligations of Correspondent under this Agreement, or any release
or impairment of any collateral by Southwest or a Southwest
Indemnified Person.
19. LIMIT ON LIABILITY; NO CONSEQUENTIAL DAMAGES
In any action by Correspondent against Southwest for any claim
arising out of the relationship created by this Agreement,
Southwest shall only be liable to Correspondent in cases of
gross negligence or willful misconduct, and in such cases
Southwest shall only be liable for the amount or actual monetary
losses suffered by Correspondent. Correspondent shall not, in
Exhibit 10.4 - Pg. 32
any such action or proceeding or otherwise, assert any claim
against Southwest for consequential damages on account of any
loss, cost, damage or expense which Correspondent may suffer or
incur related to transactions in connection with this Agreement
or otherwise.
20. MISCELLANEOUS
(a) Modification. Except as otherwise expressly provided
herein, this Agreement may be modified only by a writing
signed by both parties to this Agreement. Such modification
shall not be deemed as a cancellation of this Agreement.
Subject to the MASD Rules of Fair Practice and other
applicable rules and regulations, this Agreement and all
modifications may be required to be submitted to the NASD and
other regulatory or self-regulatory agencies or bodies prior
to effectiveness. It is expressly understood that services
cannot be provided under this Agreement until such approval,
if required, is received.
(b) Assignment. This Agreement shall be binding upon all
successors, assigns, or transferees of both parties hereto
irrespective of any change with regard to the name or of the
personnel of Correspondent or Southwest. Any assignment of
this Agreement shall be subject to the requisite review and/or
approval of any regulatory or self-regulatory agency or body
whose review and/or approval must be obtained prior to the
effectiveness and validity of such assignment. No assignment
of this Agreement shall be valid unless the non-assignment
party, in its sole discretion, consents to such an assignment
it writing. Not withstanding the foregoing, Southwest, upon
giving written notice to Correspondent, may assign it rights
and obligations under this Agreement to any entity that
purchases a majority of the stock or assets of Southwest or of
any of Southwest's subsidiaries or affiliates, to any
majority-owned subsidiary that Southwest may create or to any
entity directly or indirectly controlled by, controlling or
under common control with Southwest, and an assignment by
Southwest to any such party will be deemed valid and
Exhibit 10.4 - Pg. 33
enforceable in the absence of any consent from Correspondent.
Neither this Agreement nor any operation hereunder is intended
to be, shall not be deemed to be, and shall not the treated as
a general or limited partnership, association, or joint
venture or agency relationship between Correspondent and
Southwest.
(c) Choice of Law. The construction and effect of every
provision of this Agreement, the rights of the parties
hereunder and any questions arising out of the Agreement,
shall be subject to the statutory and common law of the State
of Texas, without regard to the choice of law provisions
thereof.
(d) Severability. 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 with
appropriate jurisdiction, 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.
(e) Notice. For the purposes of any and all notices,
consents, directions, approvals, restrictions, requests or
other communications required or permitted to be delivered
hereunder, Southwest's address shall be:
Southwest Securities, Inc.
0000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X Xxxxxx, Senior Executive VP
And Correspondent's Address shall be:
Xxxxx Financial Group, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx
Either party may provide notice or change its address for
notice purposes by giving written notice pursuant to
Exhibit 10.4 - Pg. 34
registered or certified mail, return receipt requested,
addressed to the other party at its address of notice.
(f) Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall
constitute a single agreement. When each party has executed
and delivered to the other a counterpart, this Agreement will
become binding on both parties, subject only to any required
approval by the NASD.
Exhibit 10.4 - Pg. 35
