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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(AMENDMENT NO. 1)
Under the Securities Exchange Act of 1934*
Syntroleum Corporation
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(Name of Issuer)
Common stock, par value $ 0.01 per share
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(Title of Class of Securities)
871630 10 9
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(CUSIP Number)
Kenneth L. Agee
Syntroleum Corporation
1350 South Boulder
Suite 1100
Tulsa, Oklahoma 74119-3295
(918) 592-7900
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
August 18, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of (S)(S) 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See (S) 240.13d-7(b) for other
parties to whom copies are to be sent.
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AMENDMENT NO. 1 TO SCHEDULE 13D.
Kenneth L. Agee ("Mr. Agee") hereby amends and supplements his statement on
Schedule 13D, as originally filed by Mr. Agee on August 17, 1998 (the "Original
Statement"), with respect to the common stock, par value $.01 per share (the
"Common Stock"), of Syntroleum Corporation, a Kansas corporation. Unless
otherwise indicated, each capitalized term used but not defined herein shall
have the meaning assigned to such term in the Original Statement.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Item 6 to the Schedule 13D is hereby amended and supplemented as follows:
On August 18, 1998, Mr. Agee entered into an agreement (the "J. P.
Morgan Agreement") with J. P. Morgan Securities Inc. ("J. P. Morgan") with
respect to a margin account. On August 24, 1998, Mr. Agee deposited 257,980
shares of Common Stock (the "J. P. Morgan Margin Shares") with J. P. Morgan as
security for a margin loan. The J. P. Morgan Agreement provides that J. P.
Morgan has a general lien on the J. P. Morgan Margin Shares for the discharge of
all obligations of Mr. Agee to J. P. Morgan. Pursuant to the J. P. Morgan
Agreement and subject to applicable law, J. P. Morgan may sell any or all of
the J. P. Morgan Margin Shares without notice to Mr. Agee, whenever, in J. P.
Morgan's judgment, it is necessary for its protection. A form of the J. P.
Morgan Agreement is filed as Exhibit D hereto and is incorporated herein by
reference.
On August 14, 1998, Mr. Agee entered into an agreement (the "A. G.
Edwards Agreement") with A. G. Edwards & Sons, Inc. ("A. G. Edwards") with
respect to a margin account. On August 18, 1998, Mr. Agee deposited 64,495
shares of Common Stock (the "A. G. Edwards Margin Shares") with A. G. Edwards as
security for a margin loan. The A. G. Edwards Agreement provides that A. G.
Edwards has a general lien on the A. G. Edwards Margin Shares for the discharge
of all obligations of Mr. Agee to A. G. Edwards. Pursuant to the A. G. Edwards
Agreement and subject to applicable law, A. G. Edwards may sell any or all of
the A. G. Edwards Margin Shares without notice to Mr. Agee, whenever, in A. G.
Edwards' judgment, it is necessary for its protection. A form of the A. G.
Edwards Agreement is filed as Exhibit E hereto and is incorporated herein by
reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit D J.P. Morgan Accounts - General Terms for Accounts and
Services - Account Agreements
Exhibit E Total Asset Account Agreement
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After reasonable inquiry and to the best of his knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Date: October 8, 1998.
/s/ Kenneth L. Agee
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Kenneth L. Agee
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EXHIBIT 99(D)
J.P. MORGAN ACCOUNTS
GENERAL TERMS FOR ACCOUNTS AND SERVICES
ACCOUNT AGREEMENTS
JPMORGAN
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J.P. MORGAN RISK DISCLOSURES
THIS RISK DISCLOSURE DOES NOT PURPORT TO DISCLOSE OR DISCUSS ALL OF THE RISKS
AND OTHER SIGNIFICANT ASPECTS OF THE TRANSACTIONS DISCUSSED IN MORE DETAIL
BELOW. YOU HAVE ADVISED ME TO CONSULT, AND I HAVE CONSULTED WITH, MY OWN LEGAL,
TAX, FINANCIAL AND ACCOUNTING ADVISORS TO THE EXTENT I HAVE DEEMED NECESSARY.
IN MAKING INVESTMENTS IN ANY OF THE TRANSACTIONS DESCRIBED BELOW, I HAVE RELIED
ON MY OWN EVALUATION OF INFORMATION THAT I HAVE RECEIVED.
OTC DERIVATIVES
Most OTC Derivatives take one of four basic forms, although the forms can be
overlapping and one transaction can involve elements of all four forms. These
basic forms are 1) swaps, 2) options, 3) forwards and 4) hybrid instruments
(which are debt obligations with an embedded swap, option or forward). OTC
Derivatives can be settled in cash or settled by physical delivery of property
against cash. No matter what form is involved, a common feature of all OTC
Derivatives is that the obligations of one or both of the parties are based on
price movements in an underlying financial or commodity market from which the
transaction is derived.
I acknowledge that I should not enter into an OTC Derivative unless I
understand:
. the fundamentals of the market underlying such OTC Derivative;
. the legal terms and conditions of the documentation for such OTC derivative;
. the extent of the economic risk to which I am exposed as a result of such OTC
Derivative (and determine that such risk is suitable for me in light of my
financial circumstances and objectives);
. the income tax treatment of such OTC Derivative, which can be complex; and
. the regulatory treatment of such OTC Derivative.
The following specific points should be considered in deciding whether to enter
into a particular OTC Derivative:
. Market risk. To the extent my payments or receipts in an OTC Derivative are
linked to prices in a particular market, I will be exposed to price
volatility in that market.
. Credit Risk. Morgan Guaranty Trust Company of New York ("MGT") will generally
be my counterparty in an OTC Derivative arranged by any Morgan Affiliate,
including J.P. Morgan Securities, Inc. I will therefore be dependent upon the
financial capacity of my counterparty, MGT, to meet its obligations to me
under each option contract prior to the expiration date, and will be an
unsecured creditor of MGT (as opposed to being a creditor of a central
clearing corporation as would be the case with exchange traded futures and
options). An OTC Derivative with MGT as my counterparty will not represent a
deposit or savings account and my claim against MGT will not be insured by
the FDIC or any other government entity.
. Non-Transferability and Non-Marketability. OTC Derivatives will not be
registered under the Securities Act of 1933, as amended (the "Securities
Act"), or under the securities laws of any state unless otherwise specified
in writing. OTC Derivatives will ordinarily be sold and offered exempt from
registration under the Securities Act by virtue of Section 4(2) of the Act
and/or Regulation D thereunder. There will be no public market for OTC
Derivatives. I will be required to represent that I am acquiring OTC
Derivatives for investment purposes only and not with a view to resale or
distribution. OTC Derivatives purchased from you or the Morgan Affiliate
cannot be assigned or transferred without your prior written consent or that
of the Morgan Affiliate. Further, I must bear the economic risk of my
investment. An OTC Derivative generally cannot be assigned or transferred
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without the consent of the other party. If the OTC Option is an American
Option, I may exercise it according to its terms and realize any intrinsic
value it may have at any time. If it is a European Option, it may only be
exercised at its expiration unless you agree to early termination. You may,
but are not obligated to, consent to the early termination of any OTC
Derivative prior to its scheduled maturity. It therefore may be impossible
for me to liquidate any OTC Derivatives prior to maturity. Because OTC
Derivatives are not standardized, engaging in an OTC Derivative transaction
with another dealer to offset an OTC Derivative I have entered into with you
will not automatically close out those positions (as would be true in the
case of equivalent exchange-traded futures and options) and will not
necessarily function as a perfect hedge. I will continue to be obligated as
the seller of an OTC Option unless it is exercised or sold back to you.
. Price Transparency. Because the prices and characteristics of OTC Derivatives
are individually negotiated and there is no central source for obtaining
prices, dealers in OTC Derivatives may quote different prices for similar
transactions. You do not warrant that your prices will always be the best
prices available to me.
. Option risk. Option transactions can be very risky. The risk of selling
(writing) options is considerably greater than the risk involved in buying
options. If I buy an option, I cannot lose more than my premium. If I sell
(write) an option, the risk can be unlimited. For example, if I sell a call
to you, I will give up the rights to any appreciation of the call above the
strike price. The risk can be reduced if I own a position in the asset
underlying the option. I am aware that fluctuations in currency exchange
rates may affect the value of any OTC Option on securities trading in or
denominated in a foreign currency, as well as the value of any payment or
delivery of securities in connection with such OTC Option. I also understand
that fluctuations in currency exchange rates may affect the value of any
payment or delivery of securities in connection with such OTC Option.
. Documentation. To ensure that I clearly understand the terms and conditions
of OTC Derivatives entered into by me, my counsel and I should review
carefully the documentation for any OTC Derivative.
. Collateral. You may require that I provide collateral at special levels to
support my obligations under OTC Derivatives with you. I may be required to
deliver additional collateral to meet collateral requirements. You will not
provide collateral to me.
YOU STRONGLY SUGGEST THAT I REVIEW ALL MATERIALS PERTAINING TO THE RISKS
ASSOCIATED WITH OTC DERIVATIVES. ACCORDINGLY, WHEN I ENTER INTO OTC DERIVATIVES
WITH YOU, YOU ASSUME THAT I UNDERSTAND THE CHARACTERISTICS AND RISK ASSOCIATED
WITH SUCH TRANSACTIONS.
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EMERGING MARKETS
I understand that emerging markets securities and other transactions involving
emerging markets securities are subject to substantial risk relating to a number
of factors including, but not limited to: (1) economic and political instability
in the region(s) where issuers of emerging markets securities conduct business,
(2) significant volatility in the markets for emerging markets securities and
the currencies in which they may be denominated and (3) the potential for loss
of my entire investment as a result of insolvency, market or government action,
or other similar factors which could render the securities valueless.
I am also aware that generally less information is publicly available with
respect to emerging markets issuers and obligors than is available with respect
to United States companies and that many emerging markets companies are not
subject to the uniform accounting and financial reporting requirements
applicable to issuers and obligors in the United States; additionally,
accounting, auditing, financial and other reporting standards in emerging
markets jurisdictions are often not equivalent to the standards established in
the United States and therefore disclosure of certain material information may
not be made.
There may exist only small markets for certain emerging markets securities,
resulting in low or nonexistent volumes of trading in such assets, and therefore
a lack of liquidity and price volatility of such assets. Settlement periods for
transactions of emerging markets securities may also be longer than settlement
times for assets of United States issuers, and settlement systems may be
unreliable. This may also affect the liquidity and price volatility of emerging
markets securities.
I understand the risks are significantly more pronounced in derivative
instruments (options, swaps, futures, etc.) on emerging markets securities. I
assume responsibility for the risks as they relate to my investment decisions in
derivative instruments on emerging markets securities.
I understand that you are acting solely upon my instructions and I acknowledge
that neither you nor any Morgan Affiliate has made any representation or
warranty, expressly or implied, as to the purchase or sale of emerging markets
securities or any information relating thereto and I assume responsibility for
all risks relating to my investments in emerging markets transactions.
UNCOVERED OPTIONS
There are special risks associated with uncovered option writing which expose
the investor to potentially significant loss. Therefore, this type of strategy
may not be suitable for all clients approved for options transactions.
The potential loss of uncovered call writing is unlimited. The writer of an
uncovered call is in an extremely risky position and may incur large losses if
the value of the underlying instrument increases above the exercise price.
As with writing uncovered calls, the risk of writing uncovered put options is
substantial. The writer of an uncovered put option bears a risk of loss if the
value of the underlying instrument declines below the exercise price. Such loss
could be substantial if there is a significant decline in the value of the
underlying instrument.
Uncovered option writing is thus suitable only for the knowledgeable investor
who understands the risks, has the financial capacity and willingness to incur
potentially SUBSTANTIAL losses, and has sufficient liquid assets to meet
applicable margin requirements. In this regard, if the value of the underlying
instrument moves against an uncovered writer's options position, you may
liquidate stock or options positions in the investor's account, with little or
no prior notice in accordance with the investor's margin agreement.
For combination writing, where the investor writes both a put and a call on the
same underlying instrument, the potential risk is unlimited.
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If a secondary market in options were to become unavailable, investors could not
engage in closing transactions, and an option writer would remain obligated
until expiration or assignment.
The writer of an American-style option is subject to being assigned an exercise
at any time after he has written the option until the option expires. By
contrast, the writer of a European-style option is subject to exercise
assignment only during the exercise period.
I confirm that I have received and read the booklet entitled CHARACTERISTICS AND
RISKS OF STANDARDIZED OPTIONS.
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INTRODUCTION
GENERAL TERMS FOR ACCOUNTS AND SERVICES
Important Disclosures
1. Types of Accounts
Individual Accounts
Accounts for Minors
Joint Accounts with Right of Survivorship
Community Property Accounts
Tenants in Common Accounts
Tenants by the Entirety Accounts
Fiduciary Accounts
Accounts "In Trust For"
Sole Proprietorship Accounts
Entity Accounts
2. Authorized Instructions
3. Telephone Recording and Monitoring
4. Notices
5. Periodic Reports; Special Mailing Instructions; Check Truncation
6. Security Interest
7. Right to Debit and Set-off
8. Fees
9. Foreign Currency Risks
10. Consumer Credit Reports
11. Funds Availability Policy Statement
12. Confidentiality
13. Limitations on Responsibilities and Liabilities
14. Force Majeure
15. Indemnification
16. Inactive Accounts
17. Compliance with Laws
18. Rules of Exchanges and Clearinghouses
19. Successors and Assigns; Subcontracting
20. Termination
21. Amendments and Waivers; Severability
22. Counterparts; Headings; Integration
23. Evidence
24. Governing Law; Jurisdiction
25. Waiver of Jury Trial
26. Definitions
APPENDIX: IMPORTANT TAX INFORMATION
AGREEMENTS FOR ACCOUNTS AND SERVICES
Asset Account Agreement
Brokerage Agreement
Margin Agreement
Investment Management Account Agreement
Money Market Investment Account Agreement
Checking Account Agreement
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VISA(R) Gold Check Card Agreement and Electronic Services
IRA Agreements
RISK DISCLOSURES
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INTRODUCTION
These General Terms for Accounts and Services (the "General Terms") along with
the Application and any additional Account Agreements including but not limited
to the Asset, Brokerage, Margin, Investment Management, Money Market Investment
Account and Checking Account Agreements, Fee Schedules, Risk Disclosures and
Supplemental Forms comprise the Agreement between you and me.
By signing the Application, I acknowledge that I have read and agreed to the
Agreement and that the Agreement is binding on me, my heirs, executors, legal
representatives, successors and assigns.
Certain information about the Accounts and Services is also contained in the
applicable Fee Schedules while additional information is found in the
accompanying Risk Disclosure.
Definitions of capitalized terms used in these General Terms are found at the
end of these General Terms.
GENERAL TERMS FOR ACCOUNTS AND SERVICES
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLOSURES:
I AGREE THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, MORGAN AFFILIATES (INCLUDING
JPMSI) MAY SHARE WITH EACH OTHER INFORMATION ARISING FROM BUSINESS WITH ME.
THIS INCLUDES INFORMATION THAT I PROVIDE IN CONNECTION WITH ANY ACCOUNT OR THAT
IS OBTAINED AS A RESULT OF TRANSACTIONS OR OTHER ACTIVITY, INCLUDING
DOCUMENTATION SUCH AS RELATED TRUST AGREEMENTS, TAX FORMS, PARTNERSHIP AND
CORPORATION DOCUMENTS AND AUTHORIZATIONS. IT ALSO INCLUDES INFORMATION ABOUT MY
ACCOUNTS AND ANY EVALUATION OF MY CREDITWORTHINESS. I UNDERSTAND THAT ONE
PURPOSE FOR SHARING SUCH INFORMATION, AMONG OTHERS, COULD BE TO OFFER ME
PRODUCTS OR SERVICES THAT MORGAN AFFILIATES BELIEVE MAY BE OF INTEREST TO ME.
YOU MAY BE THE INVESTMENT ADVISOR AND/OR PROVIDE OTHER SERVICES TO J.P. MORGAN
AND AMERICAN CENTURY FUNDS WHICH I MAY PURCHASE FOR WHICH YOU ARE SEPARATELY
COMPENSATED. YOU MAKE SUCH FUNDS AVAILABLE SOLELY IN YOUR CAPACITY AS
SHAREHOLDER SERVICING AGENT FOR CLIENTS.
INVESTMENTS IN SECURITIES AND MUTUAL FUNDS, INCLUDING J.P. MORGAN AND AMERICAN
CENTURY FUNDS, ARE NOT DEPOSITS OR OBLIGATIONS OF, AND ARE NOT INSURED,
GUARANTEED, OR ENDORSED BY MORGAN GUARANTY TRUST COMPANY OF NEW YORK ("MGT") OR
ANY OTHER MORGAN AFFILIATE OR BANK. SECURITIES AND SHARES OF THE J.P. MORGAN
AND AMERICAN CENTURY FUNDS ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION ("FDIC"), THE FEDERAL RESERVE BOARD, OR ANY OTHER GOVERNMENTAL
AGENCY.
ALTHOUGH THE J.P. MORGAN AND AMERICAN CENTURY MONEY MARKET FUNDS SEEK TO
MAINTAIN A STABLE NET ASSET VALUE OF $1.00 PER SHARE, THERE CAN BE NO ASSURANCE
THAT THEY WILL CONTINUE TO DO SO.
AN INVESTMENT IN ANY OF THE J.P. MORGAN AND AMERICAN CENTURY FUNDS IS SUBJECT TO
RISK THAT MAY CAUSE THE VALUE OF THE INVESTMENT TO FLUCTUATE, AND WHEN THE
INVESTMENT IS REDEEMED, THE VALUE MAY BE HIGHER OR LOWER THAN THE AMOUNT
ORIGINALLY INVESTED BY THE INVESTOR. I WILL REFER TO THE PROSPECTUS FOR EACH
J.P. MORGAN AND AMERICAN CENTURY FUND FOR DETAILED INFORMATION BEFORE I DECIDE
TO INVEST.
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JPMSI OBLIGATIONS AND SECURITIES SOLD, OFFERED, OR RECOMMENDED BY JPMSI ARE NOT
DEPOSITS AND ARE NOT INSURED BY THE FDIC. JPMSI IS NOT A BANK AND IS A SEPARATE
LEGAL ENTITY FROM MGT AND ANY OTHER MORGAN AFFILIATE. THE OBLIGATIONS OF JPMSI
ARE NOT OBLIGATIONS OF MGT OR ANY OTHER MORGAN AFFILIATE (UNLESS EXPLICITLY
STATED OTHERWISE), AND NEITHER MGT NOR ANY OTHER MORGAN AFFILIATE IS RESPONSIBLE
FOR SECURITIES SOLD, OFFERED, OR RECOMMENDED BY JPMSI. MGT AND ANY OTHER MORGAN
AFFILIATE MAY BE LENDERS TO ISSUERS OF SECURITIES THAT JPMSI UNDERWRITES, IN
WHICH CASE PROCEEDS OF OFFERINGS UNDERWRITTEN BY JPMSI MAY BE USED FOR THE
REPAYMENT OF SUCH LOANS. I AGREE TO REFER TO THE DISCLOSURE DOCUMENTS RELATING
TO PARTICULAR SECURITIES FOR DISCUSSION OF ANY SUCH LENDING RELATIONSHIPS.
1. TYPES OF ACCOUNTS
NOTE: Certain forms of ownership of accounts may not be available in all states.
Structuring financial accounts to suit the needs of individual and family
circumstances often raises legal and tax issues. For example, the title under
which accounts are opened, the selection of the type of account, or opening an
account for a minor under various states' Uniform Transfers or Gifts to Minors
Act (UTMA/UGMA) may often have important consequences for taxes, control of
assets, and wealth and estate planning. It is always wise to discuss such
issues with a legal or tax advisor. Material provided by J.P. Morgan is not
intended to provide, and should not be relied on for, accounting, legal, estate
planning or tax advice.
INDIVIDUAL ACCOUNTS. Accounts established in a natural person's name are
individual accounts. For those accounts,, I represent that:
. I am of the age of majority according to the laws of my place of residence;
. All information given to you and provided on the Application is accurate
and true. You will be notified if any information has changed, or must be
updated or revised.
ACCOUNTS FOR MINORS. If I select to open an account for a minor under the
applicable state's Uniform Transfers or Gifts to Minors Act, I will furnish you
with the minor's Social Security number. My gift to the minor is irrevocable,
but I may revocably name myself or someone else as custodian to control the
account for the use and benefit of the minor. When the minor reaches age 21 (or
18 if allowed by law if so specified when I open the account), full control of
the account must be turned over to the minor by the custodian.
A custodial account may not be in the name of more than one minor, and only one
person may be named to act as custodian at one time. I may, however, name a
successor custodian to perform the custodian's duties if the original custodian
resigns or is unable to act.
JOINT ACCOUNTS WITH RIGHT OF SURVIVORSHIP ("JTWROS"). If the joint account with
right of survivorship alternative is selected on the Application, then the
Property in the Account is the Property of each Accountholder and you may
release any or all of the Property in the Account to any Accountholder during
the lifetime of all the Accountholders. On the death of one party to a joint
account, all sums in the Account on the date of death vest in and belong to the
surviving party as his or her separate property and estate. Each Accountholder
of a joint account has the INDIVIDUAL authority to:
. give instructions of any kind to you which you shall follow without inquiry
into the purpose of those instructions;
. receive, transfer and withdraw funds by check and other payment orders
during the lifetime of and after the death of any other Accountholder;
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. buy, sell, transfer, exchange and otherwise dispose of Securities and other
Property held in the Accounts;
. receive notices, statements, payments, demands and other communications,
receipt of which will be considered notice to all Accountholders;
. borrow money and grant security interests in the joint account or any other
securities or other Property held in the joint account for the obligations
of anyone;
. sign any documents or agreements relating to the joint account;
. appoint one or more attorneys-in-fact for the joint account;
. in all other ways act alone regarding the joint account, this Agreement,
and any related matters.
You may require the written authorization of all Accountholders if one
Accountholder has requested you not to pay or deliver funds or Property in a
joint account, if you receive inconsistent instructions or a court order, or on
other reasonable grounds. You may suspend activity in any account pending
judicial instructions related to the instructions required by each or all of the
joint Accountholders.
Each Accountholder is jointly and severally liable for obligations related to
the Account such as overdrafts, credit facilities, charges, fees and reasonable
legal fees arising out of any disputes between the Accountholders, regardless of
who incurred the obligation or benefited or participated in the action. You may
set off any joint Accountholder's obligation to J.P. Morgan against our
accounts, whether the debt was incurred individually or jointly.
In addition, you may be required by service of legal process to remit funds held
in the Account to satisfy a judgment entered against, or other valid debt
incurred by, any Accountholder.
The surviving Accountholder(s) will immediately notify you if there is an event,
such as death, divorce, or assignment of interest that causes a change in the
ownership of an Account, and you may take any action, including requiring
documentation or restricting activity in the Account, that you consider
appropriate. You shall treat the Account as the sole property of the
survivor(s) after the death of any Accountholder, and full ownership and control
of the balance of the account will pass to the surviving Accountholder(s). The
estate of an Accountholder and a departing Accountholder by assignment or
divorce shall remain liable, jointly and severally, with the remaining
Accountholder(s) for any obligations related to an Account incurred in
liquidating the Account or in the adjustment of the interest of the
Accountholders, including estate taxes. All property in a joint account may be
deemed part of the estate of the deceased Joint Accountholder for estate and
inheritance tax purposes and generally will not be included in a deceased
Accountholder's probate estate.
COMMUNITY PROPERTY ACCOUNTS
If my Account is located in a state and if I am domiciled in a state that
recognizes community property (such as California or Texas) and the community
property account alternative is selected in the Application, then an Account
will differ from a joint account with right of survivorship in the following
respects:
. Each deposit made, and any additions hereto, shall become the property of
each Accountholder as community property (rather than as a joint tenant);
and
. Instead of the right of survivorship provided by the joint account, upon
the death of either Accountholder, the deceased Accountholder's share of
the Account will go to the Accountholder's executor or other legal
successor. Prior to your receipt of notice of such death, you shall not be
liable for any withdrawals made by a surviving Accountholder. After receipt
of such notice, until separate shares are established, you may require the
written
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authorization of both the surviving Accountholder and such executor
or other successor for any further payments or deliveries.
NOTE: This Community Property Account is NOT recommended for married couples
living in Texas. Texas residents should consult local counsel with respect to
the effect of contributing separate or community property to a Community
Property Account.
TENANTS IN COMMON ACCOUNTS
If in the Application I have selected an Account that is to be maintained as a
tenancy in common, then such Account will differ from a JTWROS in the following
respect:
. Each deposit made to the Account will be the property of all Accountholders
as tenants in common (and not as joint tenants); and
. Instead of the right of survivorship provided by the joint account where
full ownership of the property passes to the surviving Accountholder(s),
upon the death of any Accountholder(s), the balance remaining on deposit
will belong to the survivor(s) and the estate(s) of the Accountholder(s)
who is deceased as tenants in common; the Account may be drawn against upon
the joint signatures of the survivor(s) and the duly appointed
representative(s) of the estate(s) of all Accountholders who are deceased.
Prior to your receipt of notice of such death, you shall not be liable for
any withdrawals made by a surviving Accountholder.
TENANCY BY THE ENTIRETY ACCOUNTS
If my Account is located in a state and I am domiciled in a state that
recognizes property held by tenants by the entirety and I have selected in the
Application that such Account is to be maintained as a tenancy by the entirety,
then such Account will differ from a joint account in the following respects:
. In a tenancy by the entirety, there can only be two Accountholders who must
be husband and wife; and
. Each deposit made to the Account will be the property of both
Accountholders as tenants by the entirety (and not as joint tenants);
. You are generally not required to remit funds held in the Account to
satisfy a judgment entered against, or other valid debt incurred by, only
one spouse Accountholder (however, you may still set off either spouse's
obligation to J.P. Morgan against the account, whether the obligation was
incurred individually or jointly).
NOTE: In New York, Property held in a Tenancy by the Entirety Account may be
used to satisfy the debt incurred only by one spouse. New York residents should
consult with Local Counsel in assessing the benefits of establishing tenancy by
the entirety accounts.
FIDUCIARY ACCOUNTS
If I establish the Account when acting in a fiduciary capacity, I certify: (i)
all beneficial interests in the estate, trust or other account for which I am a
fiduciary are owned by individuals or by non-profit organizations and (ii) I am
legally empowered to enter into and perform this Agreement in such capacity.
ACCOUNTS "IN TRUST FOR" (TOTTEN TRUST)
If the "In Trust For" (ITF) alternative is selected in the Application for an
Account, the Account will be a tentative trust of cash deposits and any
additional cash deposits made to the Account will be revocable by me at will.
If I am a sole owner of the account, upon my death, ownership of the funds
passes to the designated beneficiary(ies) named in the
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Application and the funds are not part of my estate. If the account is owned
jointly, upon the death of the last surviving owner, ownership of the funds
passes to the beneficiary(ies) named in the Application and they are not part of
the last surviving owner's estate.
SOLE PROPRIETORSHIP ACCOUNTS
If in the Application I have selected that the Account is to be maintained in
the name of a Sole Proprietorship, I certify that:
. I am the sole owner of the Sole Proprietorship (the "Company"); and
. The Company is doing business under the name and style of, and at the
location, given in the Application.
I also agree that I will be personally responsible for any debts arising in the
Company's Account. Checks drawn on the Company's Account may be debited against
any Account I hold, in my individual name or jointly, with you.
I will promptly notify you of any change in ownership in the Sole
Proprietorship.
ENTITY ACCOUNTS (INCLUDING TRUSTS, CORPORATIONS, ETC.)
For accounts opened for clients other than a natural person, the Accountholder
represents and warrants as of the date of the Agreement and until it is
terminated that:
. it has the power to enter into and perform under the Agreement and all
necessary actions have been taken and approvals received in accordance with
its organizational documents and applicable law and regulation;
. it is duly organized and in good standing in the jurisdiction in which it
is organized;
. the person signing the Application has the authority to bind the
Accountholder to the Agreement; and
. all information given to you and provided on the Application is accurate
and true. You will be notified if any information must be changed, updated
or revised.
2. AUTHORIZED INSTRUCTIONS
I agree to be bound by all instructions that you believe are authorized and to
have been given by an Authorized Person(s), regardless of the means by which
those instructions have been transmitted to you. I will designate Authorized
Persons on forms provided to you. Persons shall continue to be Authorized
Persons until I, or another Authorized Person with the power to do so, has given
you written instructions revoking their authority. I agree that no Morgan
Affiliate will be liable for any loss, cost, or expense for acting upon
instructions reasonably believed to be authorized. I authorize you to accept
instructions by telephone, tested telex, facsimile transmission, in writing or
any other method that we may agree to use.
For certain types of payment orders or instructions, you will provide additional
reasonable security procedures, such as call back procedures, that will be used
when I give you instructions. If I refuse to use any security procedures you
offer and advise me to use, I will bear all liability for any loss, cost or
expense related to those instructions.
3. TELEPHONE RECORDING AND MONITORING
I agree that you may record and monitor any telephone conversations that we may
have for various purposes, including, but not limited to, verification,
recordkeeping and quality control.
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4. NOTICES
I will send written notices and communications to you at the address indicated
on my statement. You will send all notices and communications to me at my last
given address, and I will promptly notify you if this address changes. Any
notice that you send to me will be deemed delivered to me personally the earlier
of when received or five Business Days after it is sent by mail, telecopy,
messenger or otherwise to my address. Notices that I send to you are deemed
delivered upon receipt. I certify that the mailing address I have provided to
you is an address where I personally receive communications unless it is the
address of a custodian who is authorized to receive securities and disburse
funds for me and is not affiliated with any investment advisor exercising
discretion over my account.
5. PERIODIC REPORTS; SPECIAL MAILING INSTRUCTIONS; CHECK TRUNCATION
You will provide me with periodic statements detailing the activity (if
applicable) (i) in my Asset Account, including activity in my Brokerage Account
(if I have elected one), (ii) in my Margin Account, (iii) in my Investment
Management Account, (iv) arising out of Card Transactions, (v) relating to the
Asset Account Line of Credit, (vi) involving mutual fund shares purchased or
redeemed, (vii) in my Checking Account, (viii) in my Money Market Investment
Account, or (ix) involving other credit facilities and showing the ending and
beginning balances of my Accounts. You will also confirm Brokerage Account
transactions when required by applicable law and regulation but will otherwise
not send me a confirmation unless otherwise required by applicable law or
regulation. I will not receive confirmations relating to my Asset Account or
Investment Management Account activity other than details in the periodic
statements, unless I request that you send them to me. You will not return any
checks written against my Asset Account with my statement, but you will provide
me with a photographic image of the front side of each check that has been paid.
I UNDERSTAND THAT IT IS MY RESPONSIBILITY TO REVIEW STATEMENTS AND CONFIRMATIONS
PROMPTLY AND TO IMMEDIATELY NOTIFY YOU OF ANY ERRORS, OMISSIONS, IMPROPER
PAYMENTS, OR TRANSFERS. UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW OR
REGULATION, I WILL BE PRECLUDED FROM ASSERTING ANY CLAIM AGAINST YOU BASED ON
ANY ERROR, OMISSION, IMPROPER PAYMENT, OR TRANSFER DISCLOSED BY A CONFIRMATION
OR STATEMENT IF I FAIL TO NOTIFY YOU OF IT WITHIN THREE BUSINESS DAYS AFTER ITS
DELIVERY IN THE CASE OF A CONFIRMATION, AND WITHIN 10 BUSINESS DAYS AFTER ITS
DELIVERY IN THE CASE OF A STATEMENT.
6. SECURITY INTEREST
In order to secure the prompt and complete payment when due of any and all
Obligations I may ever have to you or any Morgan Affiliate, to the extent
permitted by law, I pledge and grant to you and each of them a continuing
security interest in the Collateral. This security interest shall apply to any
Collateral (and proceeds thereof) now or at any time in the future held in or
credited to any Account or other accounts maintained for me.
Without affecting any rights that you or any other Morgan Affiliate may have
pursuant to other agreements to which I may be a party or subject to, I
specifically do not grant to you or any other Morgan Affiliate a security
interest pursuant to this Agreement in any shares of any J.P. Morgan or American
Century Fund, or any equity security or debt obligation issued by any Morgan
Affiliate or any security entitlement with respect thereof.
I acknowledge and agree that where you or any other Morgan Affiliate hold
Collateral or are a securities intermediary in respect of any Collateral, you
each hold the Collateral for yourself and also as agent for all other Morgan
Affiliates who are secured parties hereunder pursuant to the Intercompany J.P.
Morgan Securities Account Control Agreement among Morgan Guaranty Trust Company
of New York, J.P. Morgan California, J.P. Morgan Trust Company of Delaware, J.P.
Morgan Florida, FSB and J.P. Morgan Securities Inc., dated November 1, 1997, as
amended or restated from time to time. Collateral held in any account will be
treated as a "financial asset" within the meaning of section 8-102(a)(9) of the
Uniform Commercial Code in effect in the State of New York, except that,
reference shall be to the Uniform Commercial Code of the state that has adopted
Revised Article 8 of the Uniform Commercial Code where a relevant Account is
established or the law chosen to govern the Account, if different. You and
other Morgan Affiliates have the right to take, and I hereby consent to your
taking any further action necessary to perfect your respective
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security interests in the Collateral, including marking your books and records,
filing financing statements and entering into agreements to comply with
entitlement orders of yourself or other Morgan Affiliates without my consent and
sending confirmations. I also agree to execute any documents and take other
action as you or any other Morgan Affiliate shall reasonably request, in order
to allow you or any other Morgan Affiliate to perfect rights with respect to the
Collateral. I appoint you and any other Morgan Affiliate as my attorney-in-fact
to act on my behalf to sign, seal, execute and deliver all documents and to do
all acts as may be required to realize upon all rights in the Collateral. Such
power is coupled with this interest and shall survive my death or disability.
I agree that you will have full control of the Collateral, and any transfer
affecting the Collateral is subject to your approval. Any contrary instruction
I give shall be of no effect regardless of any action you take. I may
substitute Collateral as long as it is substantially similar to the Collateral
originally held by you, provided, however, you may elect not to accept such
substitution. If you do not enforce your rights, you will not be deemed to have
waived your rights in the Collateral. At any time that I have not met any
Obligation, including the payment of any overdraft, advance, or credit, or if an
Event of Default has occurred you may: liquidate, sell or transfer all or any
portion of the Collateral to satisfy my Obligations in whatever priority you, in
your sole discretion, may lawfully choose; exercise all rights and remedies
available to you under applicable law with respect to the Collateral you or any
other Morgan Affiliate hold; or exercise any other rights or remedies available
to you pursuant to other agreements or applicable law.
Except for such notice as may be required under applicable law, you may make
such sale or transfer without notice to me and sell any Collateral in any
public, private, or restricted sale. You or any other Morgan Affiliate may be a
purchaser at any sale of Collateral under this section. Each purchaser of any
Collateral shall receive the Collateral free of any right and claim I may have
of whatsoever kind, including any equity of redemption which I hereby waive.
I agree that I will not pledge or grant to any entity other than you or a Morgan
Affiliate a security interest in or permit a lien of any kind to attach or exist
with respect to (i) any Collateral that I am pledging under the Agreement or
(ii) any shares of any J.P. Morgan or American Century Fund that you hold for
me.
If at any time you or any Morgan Affiliate reasonably believes that I may not
perform any of my Obligations, you or it may demand, and I shall give, adequate
assurance of due performance by me within 24 hours or within any shorter period
of time that you or it demands that is reasonable under the circumstances. The
adequate assurance of performance that you or any Morgan Affiliate may demand
may include, but shall not be limited to, the delivery by me to you or it of
additional Property acceptable to you or it as Collateral.
To the extent permitted by applicable law, without prior notice to me, you and
any Morgan Affiliate, including JPMSI, are authorized to transfer Collateral
from any Account to yourself or another Morgan Affiliate to satisfy any margin
maintenance, collateral or similar requirement.
No provision of this Agreement concerning liens or security interests shall
apply to my Account or the cash, Securities, or Property therein, to the extent
that such application would result in an adverse tax consequence to my Account
under any provision of the Internal Revenue Code relating to early distribution
or withdrawal of assets held in qualified retirement accounts.
I represent that I have the power to grant a security interest in the Collateral
I hereby transfer to you and I am the sole owner of or have the right to
transfer the Collateral to you, free and clear of all other security interests,
liens, encumbrances or other restrictions. Upon the transfer of Collateral to
you, you will have a valid and perfected first priority security interest in the
Collateral.
7. RIGHT TO DEBIT AND SET-OFF
To the greatest extent permitted by law, you have the right to debit any of my
Accounts held by you or any other Morgan Affiliate for any amount payable by me
in connection with any and all Obligations to you or any other Morgan Affiliate
whether or not they relate to or arise under this Agreement. At any time when I
have not honored any
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Obligation to you or any other Morgan Affiliate, you or it shall have the right,
to the greatest extent permitted by law, without notice to me (to retain or set-
off against any Obligations that you or any other Morgan Affiliate may have to
me, whether matured, unmatured, or contingent, and without regard to any
Collateral) and any assets you or any other Morgan Affiliate may directly or
indirectly hold for my account, any of my Obligations (whether matured,
unmatured, contingent, or without regard to the sufficiency of other
collateral), in addition to your and their respective rights under applicable
law and other agreements. To the greatest extent permitted by law, any of my
assets or your Obligations to me may be transferred within and among you or any
other Morgan Affiliate in order to effect the above rights. I may set-off claims
against your and any other Morgan Affiliate's claims or obligations only if my
claims are undisputed or have been confirmed by a final court decision.
8. FEES
I agree to pay all fees, charges and commissions associated with this Agreement
and the Accounts and Services you provide to me.
I also agree to pay taxes, legal and other expenses (including reproduction and
search charges) associated with this Agreement and the Accounts and Services.
You are authorized to charge my Accounts directly for payment for all applicable
fees which are contained in the fee schedules supplied to me from time to time.
9. FOREIGN CURRENCY RISKS
I will pay my Obligations in the relevant currency. Should I be unable to pay
in the specified currency, I shall be liable to you for the U.S. dollar
equivalent of the amount of the foreign currency transferred at your then-
prevailing rate of exchange. I understand and agree that in processing foreign
currency payments, other banks you use may deduct their fees from the payment
order given to them and may charge my payment order for exchange costs for
payments not made in the local currency. I am responsible for complying with
all local currency restrictions and any other local law governing my
transactions.
10. CONSUMER CREDIT REPORTS
You, on behalf of yourself and other Morgan Affiliates, may ask credit reporting
agencies for consumer reports of my credit history. Upon my request, you will
inform me whether you have obtained any such consumer reports on your own behalf
as well as that of other Morgan Affiliates and, if you have, you will inform me
of the name and address of the consumer reporting agency that furnished the
reports to you. Any consumer reports that you receive will be deemed to have
been obtained by each Morgan Affiliate for its own benefit.
11. FUNDS AVAILABILITY POLICY STATEMENT
Your policy is to make funds from my deposits available to me on the first
Business Day after the day you receive my deposit. Electronic direct deposits
will be available on the day you receive the deposit. Once they are available,
I can withdraw the funds in cash and you will use the funds to pay checks that I
have written or other transactions presented to you for payment.
For determining the availability of my deposits, every day is a Business Day,
except Saturdays, Sundays, and uniform Federal Reserve holidays. If I made a
deposit before 3:00 p.m. on a Business Day that you are open, you will consider
that day to be the day of my deposit. However, if I make a deposit after 3:00
p.m. or on a day you are not open, you will consider that the deposit was made
on the next Business Day you are open.
LONGER DELAYS MAY APPLY
In some cases, you will not make all of the funds that I deposit by check
available to me on the first Business Day after the day of my deposit.
Depending on the type of check that I deposit, funds may not be available until
the fifth Business
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Day after the day of my deposit. However, the first $100 of my deposits will be
available on the first Business Day after the day of my deposit.
If you are not going to make all of the funds from my deposit available on the
first Business Day, you will notify me at the time I make my deposit. You will
also tell me when the funds will be available. If my deposit is not made
directly to one of your employees, or if you decide to take this action after I
have left the premises, you will mail me the notice by the day after you receive
my deposit.
If I will need the funds from a deposit right away, I should ask you when the
funds will be available.
In addition, funds I deposit by check may be delayed for a longer period under
the following circumstances:
. You believe a check I deposit will not be paid.
. There is an emergency, such as failure of communications or computer
equipment.
You will notify me if you delay my availability to withdraw funds for any of
these reasons, and you will tell me when the funds will be available. They will
generally be available no later than the third Business Day after the day of my
deposit.
In addition, deposits by a check drawn on a bank which does not have a U.S.
branch or is payable in a currency other than U.S. dollars will be not available
until collected.
SPECIAL RULES FOR NEW ACCOUNTS
If I am a new client, the following special rules will apply during the first 30
days my account is open.
Funds from electronic direct deposits to my account will be available on the day
you receive the deposit. Funds from deposits of cash, wire transfers, and the
first $5,000 of a day's total deposits of cashier's, certified, teller's,
traveler's, and federal, state and local government checks will be available on
the first Business Day after the day of my deposit if the deposit meets certain
conditions. For example, the checks must be payable to me (and I may have to
use a special deposit slip). The excess over $5,000 will be available on the
fifth Business Day after the day of my deposit. If my deposit of these checks
(other than a U.S. Treasury check) is not made in person to one of your
employees, the first $5,000 will not be available until the second Business Day
after the day of my deposit.
Funds from all other check deposits will be available on the fifth Business Day
after the day of my deposit.
12. CONFIDENTIALITY
I have a right to confidentiality and you will not make information contained in
your books and records concerning my Accounts available for inspection or
examination except as follows:
. to any person authorized to act for you, including your employees and
agents, and to any Morgan Affiliate;
. to any federal or state instrumentality or agency authorized to inspect or
examine your books and records;
. as compelled by a court of competent jurisdiction;
. as compelled under certain circumstances by legislative subpoena;
. pursuant to a subpoena, to any federal or state law enforcement or
prosecutorial instrumentality authorized to investigate suspected criminal
activity;
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. as authorized by your board of directors for the purpose of meeting the
needs of commerce and providing fair and accurate credit information,
including without limitation where necessary to complete funds transfers
and other transactions and for credit reporting and check approval;
. to any person when I have authorized you to do so.
13. LIMITATIONS ON RESPONSIBILITIES AND LIABILITIES
You shall be responsible for the performance of only those duties that are set
forth in this Agreement.
EXCEPT AS OTHERWISE LIMITED, I UNDERSTAND AND AGREE THAT YOUR SOLE LIABILITY AND
THAT OF MORGAN AFFILIATES TO ME FOR ANY WRONGFUL ACT OR FAILURE TO ACT IN
CONNECTION WITH ANY OF THE PRODUCTS OR SERVICES PROVIDED TO ME SHALL BE ANY
DIRECT DAMAGES I INCUR BECAUSE OF YOUR NEGLIGENCE. DIRECT DAMAGES WILL BE
LIMITED TO THE AMOUNT OF ANY FUNDS OR THE FAIR MARKET VALUE OF ANY PROPERTY LOST
BECAUSE OF SUCH GROSS NEGLIGENCE, TOGETHER WITH COMPENSATORY INTEREST AND A
CREDIT FOR YOUR FEES WITH RESPECT TO ANY RELEVANT TRANSACTION. I UNDERSTAND
THAT UNDER NO CIRCUMSTANCE SHALL YOU BE LIABLE TO ME OR ANY OTHER PERSON FOR ANY
SERVICES PROVIDED BY THIRD PARTIES (E.G., CLEARING AGENCIES, CENTRAL
DEPOSITORIES, COMMUNICATIONS CARRIERS) EXCEPT FOR ANY SECURITIES SUBCUSTODIANS
THAT YOU DIRECTLY ENGAGE AS SUBCONTRACTOR FOR THE CUSTODY SERVICES PROVIDED BY
YOU UNDER THIS AGREEMENT. I AGREE THAT YOU ARE NOT LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF EITHER OF US IS AWARE OF
A POSSIBILITY THAT SUCH DAMAGES MAY OCCUR. YOU DISCLAIM ANY AND ALL WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
14. FORCE MAJEURE
You will not be responsible for your actions or failure to take action if your
action or inaction is due to labor disputes, strikes, acts of God, floods, fire,
lightning, severe weather, shortages of materials, rationing, utility or
communication failures, computer, equipment, system failure (including those
related to the year 2000 AD) or failure or delay in receiving electronic data,
earthquakes, war, revolution, civil commotion, acts of public enemies, blockade,
embargo, or any law, or legal or regulatory requirements, exchange or market
rulings, suspension of trading or any other event which is beyond your
reasonable control.
15. INDEMNIFICATION
I agree to indemnify and to hold you and all Morgan Affiliates harmless from any
claim, loss, liability, or expense, including, without limitation, collection
costs, reproduction and search costs, and the reasonable fees and disbursements
of counsel and other legal advisors incurred by them in rendering services
hereunder or in connection with any breach of this Agreement by me, except any
claim, loss, or liability that results from your gross negligence or willful
misconduct.
16. INACTIVE ACCOUNTS
An Account that has no activity for an extended period of time, which varies by
state, is considered abandoned; the Property in the Account must be transferred
to the relevant state comptroller, treasurer, or similar official.
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You will attempt to notify me at my last known mailing address before you
transfer Property to any state in accordance with its abandoned property law.
To avoid having my property declared abandoned, you recommend that I communicate
with you at least once a year.
17. COMPLIANCE WITH LAWS
I certify that I have observed and will continue to observe all laws and
regulations that apply to my activities and relationship with you or any Morgan
Affiliate.
18. RULES OF EXCHANGES AND CLEARINGHOUSES
Notwithstanding the terms of this Agreement, my transactions will be effected in
accordance with (i) applicable rules, regulations, customs, and usages of the
exchanges or markets and clearinghouses where my transactions are executed by
you or any Morgan Affiliate or your agents and (ii) all applicable laws, rules,
and regulations of the United States and non-United States governmental
authorities and self-regulatory agencies.
19. SUCCESSORS AND ASSIGNS; SUBCONTRACTING
This Agreement shall be binding upon and inure to the benefit of each of us and
our successors, assigns, heirs, and representatives. I will not assign any of
my respective rights or obligations under this Agreement without your prior
written consent. Except where prohibited by applicable law or regulation, each
Morgan Affiliate providing accounts and services under this Agreement may assign
its rights to any other party without notice to me or my consent.
I agree that each Morgan Affiliate may arrange for another Morgan Affiliate or
other entity to perform on its behalf any act required to be performed by you
under this Agreement.
20. TERMINATION
At any time, I may give you notice of my termination of this Agreement or some
or all of the products, features and services I have selected. However, all
provisions of this Agreement will remain in effect until you acknowledge the
termination in writing, and your rights pursuant to any security interest in
Collateral that I have given you, or any other set-off rights against my
Property held with you or any other Morgan Affiliate, will not terminate until I
have satisfied all my Obligations to you arising under this Agreement, whether
arising before or after termination. I understand that you may terminate any
part of or all of the Agreement at any time in your sole discretion.
Termination of one or more of the services and features of an Account may result
in the cancellation of some or all of the features or privileges described in
this Agreement. I understand that I remain responsible for all charges, debit
items, or other transactions initiated or authorized by me or Authorized
Persons, whether arising before or after termination.
21. AMENDMENTS AND WAIVERS; SEVERABILITY
You reserve the right to amend any provision of this Agreement and change the
terms and conditions of, or impose restrictions upon, any aspect of an Account
at any time following written notice. You do not waive any right under this
Agreement or under applicable law because you delay in exercising that right.
Your exercise of any single or partial right thereof does not preclude your
exercise or further exercise of that right or any other right or remedy. Your
rights are cumulative under this Agreement and do not exclude any rights or
remedies provided by law. The determination that any provision of this
Agreement is held to be invalid, illegal, void, or unenforceable, by reason of
any law, rule, administrative order, or judicial decision, will not affect the
validity of the remaining provisions of this Agreement.
22. COUNTERPARTS; HEADINGS; INTEGRATION
This Agreement may be signed in any number of counterparts with the same effect
as if the signatures were upon the same instrument. The section headings used
in this Agreement are for information only and shall not affect the
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interpretation of any provision of this Agreement. This Agreement constitutes
the entire agreement between me, you, and other Morgan Affiliates and supersedes
any prior agreements, oral or written, relating to the subject matter of this
Agreement.
23. EVIDENCE
Your books and records (whether recorded on paper, micrographics, electronic or
magnetic media, or any other mechanically reproducible form or otherwise) shall
be deemed to constitute, in the absence of manifest error, sufficient evidence
of the facts stated therein and of my Obligations to you.
24. GOVERNING LAW; JURISDICTION
EXCEPT AS OTHERWISE PROVIDED IN ANY OTHER AGREEMENT, THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS
CHOICE OF LAW OR CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW).
I submit to the non-exclusive jurisdiction of any federal or New York state
court in the Borough of Manhattan, New York City, for all legal proceedings
arising out of this Agreement. I irrevocably waive any objection that I may now
or later have to a defense of inconvenient forum.
25. WAIVER OF JURY TRIAL
I KNOWINGLY WAIVE MY RIGHT TO A TRIAL BY A JURY OF ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
26. DEFINITIONS
"Account" means an account or accounts maintained by one or more Morgan
Affiliates that are subject to the General Terms and an additional Account
Agreement.
"Accountholder" means the person(s) or entity(ies) maintaining Accounts with you
or any Morgan Affiliate pursuant to the terms of this Agreement.
"Application" means the application I have signed accompanying this Agreement
and any supplemental application(s) for products and services offered by J.P.
Morgan.
"Asset Account" means a J.P. Morgan Asset Account.
"Authorized Persons" means me or those persons who have been authorized by me to
act on my behalf in connection with an Account. I will provide appropriate
documentation to you identifying those persons.
"Brokerage Account" means a brokerage account with JPMSI.
"Business Day" unless otherwise specified in the Agreement means a day on which
you or any other Morgan Affiliate (as applicable) is open for business.
"Collateral" means all of my rights, title, and interest in and to any Property
maintained in any Account and any other Property maintained by me from time to
time with a Morgan Affiliate under this Agreement or otherwise and any proceeds
thereof.
"Custody Account" means the custody account I have opened as part of the Asset
Account.
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"Event of Default" means my failure to pay or meet any Obligation pursuant to
this Agreement or any other agreements I may have with you or another Morgan
Affiliate; my failure to observe or perform any action contained in this
Agreement or any other agreement with you or another Morgan Affiliate; my making
of any materially incorrect representation, warranty, certification or statement
in this Agreement or other document delivered to you or another Morgan
Affiliate; the commencement of a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to myself, or my debts
under any bankruptcy, insolvency or other similar law, or seeking the
appointment of a trustee, receiver or similar official of me or a substantial
part of my property, or consent to any such relief, appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against me; or the making of a general assignment for the benefit of
my creditors; or my failure generally to pay debts as they become due, or taking
any corporate action to authorize any of the forgoing; the commencement of an
involuntary case or other proceeding against me seeking liquidation,
reorganization or other relief with respect to me or my debts under any
bankruptcy, insolvency or similar law or seeking the appointment of a trustee,
receiver or other similar official of me or any substantial part of my property
and such involuntary case or proceeding remains undismissed for 60 days; or the
entering of an order for relief against me under applicable bankruptcy laws.
"I" or "me" means the Accountholder(s).
"JPMSI" means J.P. Morgan Securities Inc.
"Line of Credit" means the line of credit you may provide to me as part of the
Asset Account or as part of the Investment Management Account.
"J.P. Morgan and/or American Century Fund" means a mutual fund which Morgan
Guaranty Trust Company of New York, J.P. Morgan Investment Management Inc. or
American Century Investment Management advises or to which it provides other
services for which it is separately compensated.
"J.P. Morgan" or "Morgan Affiliate" means J.P. Morgan & Co. Incorporated or any
entity controlled by, controlling, or under common control with J.P. Morgan &
Co. Incorporated. For the purpose of this definition, "control" means ownership
of more than 50% of the voting securities of an entity or the ability to elect a
majority of the board of directors or other governing body of such entity.
"Obligations" means all obligations I have to you or any Morgan Affiliate
arising under this Agreement or any other agreement, including but not limited
to agreements for borrowed money, floors, collars, swaps, (e.g., rate, basis,
commodity, equity, equity index cross currency), options (e.g., equity, forward
rate, bond, interest rate, currency) and foreign exchange transactions (or any
similar transaction or combination of these types of transactions) and,
including but not limited to obligations, to pay fees, to provide information,
to make accurate representations, to provide security.
"Property" means, but is not limited to, securities and securities entitlements
of all kinds, money, deposits, banks' acceptances, commercial paper, contract
rights of all kinds, accounts, goods, documents, general intangibles, chattel
paper, commodities and commodity interests and the distributions, proceeds,
products and accessions of any of and to the above.
"Security or Securities" means any share (including a mutual fund share or unit
of a unit investment trust), stock, bond, debenture, note, certificate of
indebtedness, warrant, option, or other security (whether represented by a
certificate or by a book entry on the records of the issuer or other entity
responsible for recording such book entries), and any security entitlement in
respect of any of the foregoing.
"This Agreement" means these General Terms and the attached Agreements
designated in the Application as being applicable to those products and services
that I have selected, the Application, Fee Schedules, Disclosures, and
applicable Supplemental forms.
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"You" means Morgan Guaranty Trust Company of New York or, in the case of a
product or service furnished by, or Account with, or Obligations owed to another
Morgan Affiliate.
APPENDIX: IMPORTANT TAX INFORMATION
SUBSTITUTE FORM W-9 INSTRUCTIONS FOR U.S. CITIZENS OR RESIDENT ALIENS
PURPOSE OF TAX INFORMATION AND CERTIFICATION
A person who is required to file an information return with the Internal Revenue
Service (IRS) must get my correct TIN to report income paid to me, real estate
transactions, mortgage interest I paid, the acquisition or abandonment of
secured property, cancellation of debt, or contributions I made to an IRA. I
will use the Tax Certification (1) to certify that the TIN I am giving is
correct, (2) to certify I am not subject to backup withholding, or (3) to claim
exemption from backup withholding if I am an exempt payee. Giving my correct
TIN and making the appropriate certifications will prevent certain payments from
being subject to backup withholding. The tax information and certification
serves as a substitute to Form W-9, Request for Taxpayer Identification Number
and Certification.
WHAT IS BACKUP WITHHOLDING?
Persons making certain payments to me must withhold and pay to the IRS 31% of
such payments under certain conditions. This is called "backup withholding."
Payments that could be subject to backup withholding include interest,
dividends, and broker transactions.
If I give you my current TIN, make the proper certifications, and report all my
taxable interest and dividends on my tax return, my payment will not be subject
to backup withholding. Payments I receive will be subject to backup withholding
if;
. You do not furnish my TIN to the requester, or
. The IRS tells the requester that I furnished an incorrect TIN, or
. The IRS tells me that I am subject to backup withholding because I did not
report all my interest and dividends on my tax return (for reportable
interest and dividends only), or
. I do not certify to the requester that I am not subject to backup
withholding under the above bullet, or
. I do not certify my TIN.
Certain payees and payments are exempt from backup withholding and information
reporting. These will be described later in the instructions.
IF I DON'T HAVE A TIN
I will not be able to open an account if I don't have a TIN. Accordingly, if I
do not have a TIN, I must apply for one immediately. To apply for a TIN, I will
get Form SS-5, Application for a Social Security Number (SSN) Card (for
individuals), from my local office of the Social Security Administration, or
Form SS4, Application for Employer Identification Number (EIN) (for businesses
and all other entities), from my local IRS office.
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PENALTIES
FAILURE TO FURNISH TIN
If I fail to furnish my correct TIN to a requester, I am subject to a penalty of
$50 for each such failure unless my failure is due to reasonable cause and not
to willful neglect.
CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.
If I make a false statement with no reasonable basis that results in no backup
withholding, I am subject to a $500 penalty.
CRIMINAL PENALTY FOR FALSIFYING INFORMATION
Willfully falsifying certifications or affirmations may subject me to criminal
penalties including fines and/or imprisonment.
MISUSE OF TINS
If the requester discloses or uses TINs in violation of federal law, the
requester may be subject to civil and criminal penalties.
SPECIFIC INSTRUCTIONS FOR COMPLETING FORM W-9
NAME. If I am an individual, I must generally enter the name shown on my Social
Security card. However, if I have changed my last name, for instance, due to
marriage, without informing the Social Security Administration of the name
change, I will enter my first name, the last name shown on my Social Security
card, and my new last name.
SOLE PROPRIETOR. I must enter my individual name. (I will enter either my SSN
or EIN in the appropriate box.) I may also enter my business name or "doing
business as" name on the second name line. I will enter my name as shown on my
Social Security card and business name as it was used to apply for my EIN on
Form SS-4.
TAXPAYER IDENTIFICATION NUMBER (TIN)
I must enter my TIN in the appropriate box. If I am a sole proprietor, I may
enter my SSN or EIN. I will also see the accompanying chart for further
clarification of name and TIN combinations. If I do not have a TIN, I will
refer to the section entitled "If I Don't Have a TIN" on page ___.
FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING
Individuals (including sole proprietors) are not exempt from backup withholding.
Corporations are exempt from backup withholding for certain payments, such as
interest and dividends. A complete list of exempt payees and payments is
provided later in these instructions.
If I am exempt from backup withholding, I should still complete this form to
avoid possible erroneous backup withholding. I will enter my correct TIN, write
"Exempt" above the box that asks for my Social Security number/Tax ID number on
the account application where applicable, and sign and date the form. If I am a
nonresident alien or a foreign entity not subject to backup withholding, I will
give the requester a completed Form W-8, Certificate of Foreign Status, or
substitute Form W-8.
CERTIFICATION
For a joint account, only the person whose TIN is shown on the application
should sign.
I must sign the certification or backup withholding will apply. If I am subject
to backup withholding and I am merely providing my correct TIN to the requester,
I must cross out item 2 in the certification before signing the form.
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PRIVACY ACT NOTICE
Section 6109 requires me to give my correct TIN to persons who must file
information returns with the IRS to report interest, dividends, and certain
other income paid to me, mortgage interest I paid, the acquisition or
abandonment of secured property, cancellation of debt, or contributions I made
to an IRA. The IRS uses the numbers for identification purposes and to help
verify the accuracy of my tax return. I must provide my TIN whether or not I am
required to file a tax return. Payers must generally withhold 31% of taxable
interest, dividend, and certain other payments to a payee who does not give a
TIN to a payer. Certain penalties may also apply.
FOR THIS TYPE OF ACCOUNT:
1. Individual
2. Two or more individuals (joint account)
3. Custodian account of a minor (Uniform Transfers to Minors Act)
4a. The usual revocable savings trust (grantor is also trustee)
4b. So-called trust account that is not a legal or valid trust under state law.
5. Sole proprietorship
GIVE NAME AND SSN
1. The individual
2. The actual owner of the account or, if combined funds, the first individual
on the account/1/
3. The minor/2/
4a. The grantor-trustee/1/
4b. The actual owner/1/
5. The owner/3/
FOR THIS TYPE OF ACCOUNT:
6. Sole proprietorship
7. A valid trust, estate, or pension trust
8. Corporation
9. Association, club, religious, charitable, educational, or other tax-exempt
organization
10. Partnership
11. A broker or registered nominee
12. Account with the Department of Agriculture in the name of a public entity
(such as a state or local government, school district, or person) that
receives agriculture program payments
- ----------------
/1/List first and circle the name of the person whose number you furnish.
/2/Circle the minor's name and furnish the minor's SSN.
/3/I must show my individual name, but I may also enter my business or "doing
business as" name. I may either my SSN or EIN.
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GIVE NAME AND EIN OF:
6. The owner/3/
7. Legal entity/4/
8. The corporation
9. The organization
10. The partnership
11. The Broker or nominee
12. The public entity
NOTE: If no name is circled when more than one name is listed, the number will
be considered to be that of the first name listed.
PAYEES AND PAYMENTS EXEMPT FROM BACKUP WITHHOLDING
The following is a list of payees exempt from backup withholding and for which
no information reporting is required. For interest and dividends, all listed
payees are exempt except item (9). For broker transactions, payees listed in
items (1) through (13) and a person registered under the Investment Advisors Act
of 1940 who regularly acts as a broker are exempt. Payments subject to
reporting under sections 6041 and 6041A are generally exempt from backup
withholding only if made to payees described in items (1) through (7), except a
corporation that provides medical and health care services or bills and collects
payments for such services is not exempt from backup withholding or information
reports.
1. A corporation.
2. An organization exempt from taxes under section 501(a), or an IRA, or a
custodial account under section 403(b)(7).
3. The United States or any of its agencies or instrumentalities.
4. A state, the District of Columbia, a possession of the United States, or any
of their political subdivisions or instrumentalities.
5. A foreign government or any of its political subdivisions, agencies, or
instrumentalities.
6. An international organization or any of its agencies or instrumentalities.
7. A foreign central bank of issue.
8. A dealer in securities or commodities required to register in the United
States or a possession of the United States.
9. A futures commission merchant registered with the Commodity Futures Trading
Commission.
10. A real estate investment trust.
11. An entity registered at all times during the tax year under the Investment
Company Act of 1940.
12. A common trust fund operated by a bank under section 584(a).
- ----------------
/4/List first and circle the name of the legal trust, estate, or pension trust.
(Do not furnish the TIN of the personal representative or trustee unless the
legal entity itself is not designated in the account title.)
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13. A financial institution.
14. A middleman known in the investment community as a nominee or listed in the
most recent publication of the American Society of Corporate Secretaries,
Inc., Nominee List.
15. A trust exempt from tax under section 664 or described in section 4947.
EXEMPT PAYMENTS
Payments of dividends and patronage dividends generally not subject to backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the United
States and that have at least one nonresident partner.
. Payments of patronage dividends not paid in money.
. Payments made by certain foreign organizations.
Payments of interest generally not subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals.
NOTE: You may be subject to backup withholding if this interest is $600
or more and is paid in the course of the payer's trade or business and I
have not provided my correct TIN to the payer.
. Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
. Payments described in section 6049(b)(5) to nonresident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations
. Mortgage interest paid by me.
Payments that are not subject to information reporting are also not subject to
backup withholding. For details, see section 6041, 6041A(a), 6042, 6044, 6045,
6049, 6050A and 6050N, and their regulations.
***********
ASSET ACCOUNT AGREEMENT
THE IMPORTANT DISCLOSURES IN BOLD IN THE FRONT OF THE GENERAL TERMS APPLY TO
THIS AGREEMENT. I HAVE CAREFULLY READ AND UNDERSTAND THOSE PROVISIONS (I) IN
WHICH I AGREE TO ALLOW MORGAN AFFILIATES TO SHARE INFORMATION ABOUT ME WITH EACH
OTHER AND (II) WHICH RELATE TO THE RISKS OF INVESTING IN J.P. MORGAN AND
AMERICAN CENTURY FUNDS.
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ASSET ACCOUNT
When I open an Asset Account, I agree to the following terms and conditions:
1. GENERAL TERMS AND CONDITIONS
This Agreement for Asset Account services is subject to the General Terms and
Agreements for Accounts and Services (the "General Terms"). Capitalized terms
not defined in this Agreement have the meanings given to them in the General
Terms. To the extent there are any conflicts between the General Terms and this
Agreement, this Agreement shall prevail.
2. GENERAL INFORMATION
J.P. Morgan accounts and services are provided by different Morgan Affiliates to
provide clients with the most convenient accounts and fullest range of services
possible. My statement will indicate the Morgan Affiliate(s) at which my
account(s) is (are) held or which provide services.
I understand that my Cash Account will be at Morgan Guaranty Trust Company of
New York ("MGT"). Depending on the alternative I have selected in the
Application, excess balances in my Cash Account will be swept into an interest-
bearing account at MGT, an overnight time deposit at MGT's Nassau branch or a
J.P. Morgan or American Century Money Market Fund (each referred to as the
"Sweep" or "Sweep Account").
Custody Accounts are maintained at the Morgan Affiliate determined to be most
convenient when an account is opened. The Morgan Affiliate with which my Custody
Account is held is identified on my monthly statements. For example, if I
reside in California and my client advisor is located in Los Angeles or San
Francisco, my Cash Account will be at MGT, but my Custody Account will be held
by J.P. Morgan California. Similarly, if I reside in Illinois and my client
advisor is located in Chicago, my Cash Account will be at MGT, but my Custody
Account will be held by J.P. Morgan Trust Company of Illinois. My line of
credit will be extended by MGT, and if I apply for and am given a VISA(R) card
it will be issued by MGT. I may license P.C. Link or MicroLink from MGT.
My Brokerage Account, if I have elected to open one, will be provided by JPMSI.
In addition to the accounts and services included in the Asset Account. J.P.
Morgan makes available discretionary investment management accounts and, through
JPMSI, securities margin accounts. These accounts and services are described in
other agreements that are not part of the Asset Account Agreement.
The Asset Account is a group of accounts and financial services linked to a non-
interest-bearing account ("Cash Account") for which I will receive an integrated
and comprehensive statement. I may select any of the following other accounts
or services to link to my Cash Account:
Accounts and Services included in the Asset Account:
. an automatic sweep of balances in the Cash Account into an interest bearing
deposit account or a J.P. Morgan or American Century Money Market Fund
allowing me to earn interest on those balances;
. a Custody Account which will hold my Securities and other Property;
. direct purchase of J.P. Morgan and American Century Funds;
. a line of credit;
. a VISA(R) Check Card ("Card") issued by MGT which I may use to withdraw
funds from my Cash Account or to make purchases at participating merchants;
. electronic banking and funds transfer services, including information about
the Asset Account using PC Link or Quicken(R); and
. an optional brokerage account with JPMSI through which I can execute
securities and similar transactions.
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Each of these is described in more detail below or in other Agreements (e.g.,
the JPMSI Brokerage Agreement).
3. THE CASH ACCOUNT AND ASSET POWER AMOUNT
The Cash Account is a demand deposit checking account with MGT. I will be
notified if my Cash Account is transferred to another Morgan Affiliate. I may
make deposits to and withdrawals from this Account. Any deposit I make or
credit that is entered to the Cash Account will be provisional until you receive
final settlement. You may revoke any provisional credit and charge back the
amount to my Cash Account or I will reimburse you for that amount. I can
withdraw available funds in my Cash Account by using my Card, initiating a
payment order or drawing a check.
Under the following circumstances, you may refuse withdrawals from my Cash
Account:
. Funds I intend to withdraw are not available (see the Funds Availability
section of the General Terms);
. The Account is pledged as collateral;
. You suspect fraud or irregularity;
. You are served with legal process in any judicial proceeding, and you
believe that you are required or it is prudent to do so until final
determination of the judicial proceeding; or
. Other: Please refer to the General Terms for other limitations that may
apply.
I agree that if there are insufficient funds in the Cash Account you may
transfer funds to cover any debit to my Cash Account from the following other
sources in the following priority:
. first, from funds in any Sweep Account (or proceeds from redemptions of my
Sweep); and
. second (at the discretion of MGT), from proceeds of a loan drawn on my Line
of Credit, if I have selected this option.
On any day, and subject to the limitations described in this Agreement, I can
withdraw from my Cash Account the total of (i) available funds in my Cash
Account, (ii) the available balance in my Sweep Account, and (iii) the unused
portion of my Line of Credit. This total amount is referred to as my "Asset
Power Amount."
In the event that my Asset Power Amount is zero or less or in any other
circumstance when funds cannot be transferred into my Cash Account to cover
debits or withdrawals that would result in an overdraft in the Cash Account, you
will have no obligation to honor any withdrawal, debit to or instruction to
transfer funds from my Cash Account, including payments for purchases of
Securities or other Property. At your sole discretion, if such an overdraft
would be created or exists in my Cash Account, you may make payments from my
Cash Account and extend credit to me to cover those payments under the terms
described in the Line of Credit section of this Agreement to cover overdrafts,
4. SWEEP OPTIONS
From time to time, I may have balances in my Cash Account which I would like to
have automatically transferred to an interest bearing account, overnight time
deposit or investment which pays interest and/or dividends. For this purpose, I
may select one of the available Sweep alternatives on the Application. After I
have received and reviewed the available Sweep prospectus, I may choose to
change the Money Market Sweep I have previously selected on the Application from
time to time by letting you know of such change in writing. The change will be
effective upon the sending of your written confirmation.
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. MORGAN DEPOSIT ACCOUNT. The Morgan Deposit Account ("MDA") is a NOW with
MGT, unless I am notified that it will be with another Morgan Affiliate. It
is only available to clients such as natural persons (or trusts where the
beneficiary is a natural person) or qualified charitable organizations that
have a Cash Account. You reserve the right to require seven days' prior
written notice of an intended withdrawal from the MDA, although at your
option you may permit withdrawals without such notice and without waiving
your right to require such notice for any other withdrawal.
. MORGAN NASSAU DEPOSIT ACCOUNT. The Morgan Nassau Deposit Account ("MNDA")
is an overnight deposit with MGT, Nassau, Bahamas branch, unless I am
notified that such deposit will be with another branch office of MGT or
with a Morgan Affiliate. The MNDA is payable solely at MGT, Nassau, Bahamas
branch. If any withdrawal from the MNDA would cause the balance to be less
than $100,000, that remaining balance shall automatically be transferred to
the Cash Account. Deposits to MNDA must be at least $100,000.
THE MNDA IS NOT INSURED BY THE FDIC, THE FEDERAL RESERVE BOARD OR ANY
OTHER GOVERNMENTAL AGENCY; AMOUNTS IN THE MNDA DO NOT HAVE THE BENEFIT OF
ANY DOMESTIC DEPOSITOR PREFERENCE APPLICABLE TO U.S. BANKS.
SWEEPS INTO MDA OR MNDA. At the end of each Business Day, you are
authorized to withdraw collected U.S. dollar balances from my Cash Account
and to invest those balances in the MDA or MNDA. Collected balances of
$100,000 will be invested in the MNDA. In order to sweep balances when
received, I will advise you of the amount, the sending date and the
sending institution's name of any incoming funds transfers to my Cash
Account at least 24 hours before I expect you to receive it.
INFORMATION RELATING TO INTEREST EARNED IN MY MDA OR MDNA. Funds
deposited in my MDA/MNDA earn interest daily from the day of deposit to
the day of withdrawal, without the benefit of any grace periods, at an
interest rate with an annual percentage yield ("Annual Percentage Yield")
set by you from time to time at your discretion. The interest rate and
Annual Percentage Yield in effect as of the date of the Application are
described to me in the current rates schedule. They may be lowered or
raised by you as soon as the following Business Day. Thereafter, the
interest rate and Annual Percentage Yield on my MDA/MNDA may be lowered or
raised by you from time to time in your discretion as frequently as once
each Business Day. You will fix the interest rate and Annual Percentage
Yield without application of a specific index, formula, or schedule. To
determine the current interest rate and Annual Percentage Yield in effect
on any Business Day, I can contact my client service specialist. There is
no limitation on the amount that the interest rate and the Annual
Percentage Yield may change. Except as noted above for the MNDA, there is
no minimum balance required to obtain the Annual Percentage Yield
disclosed to me.
You will use the daily balance method to calculate the interest on my
MDA/MNDA. This method applies a daily periodic rate to the principal in
my MDA/MNDA each day. Interest earned during each month will be credited
to my Cash Account monthly on the first Business Day of the month
following the month during which it is earned. The amount of interest I
earn each month will be shown on my Asset Account statement. If I close my
MDA/MNDA before interest is credited, I will be entitled to receive the
accrued interest.
. THE MONEY MARKET SWEEP. If I have selected one of the J.P. Morgan or
American Century Funds as my Sweep ("Money Market Sweep") on the
Application, you are authorized to invest collected U.S. dollar balances in
my Cash Account each Business Day in the Money Market Sweep specified in
the Application or such other Sweep that I may later select.
Upon instructions from an Authorized Person, you are authorized to redeem
my Money Market Sweep shares. You are also authorized to redeem the
shares in my Money Market Sweep to discharge any obligation I owe you or
any Morgan Affiliate or as required by the prospectus of the applicable
Money Market Sweep Account.
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I appoint you, or a Morgan Affiliate that you may designate, as my
attorney-in-fact with full power and authority to purchase or redeem
shares of the Money Market Sweep or otherwise to effect transactions with
my Money Market Sweep. The Money Market Sweep is authorized to accept
your instructions relating to such Money Market Sweep received by
telephone, facsimile, in writing or electronic transmission.
You are not obligated to continue to provide Money Market Sweep services
during any time that the Money Market Sweep Account I select is not
available to accept collected balances for investment.
YOU ARE UNDER NO DUTY TO SUPERVISE ANY MONEY MARKET SWEEP AND HAVE NOT
PROVIDED ME WITH ANY INVESTMENT ADVICE OR RECOMMENDATION IN CONNECTION
WITH MY INVESTMENT IN THE MONEY MARKET SWEEP I SELECT FROM TIME TO TIME.
FURTHER, I ACKNOWLEDGE THAT YOU ARE NOT RESPONSIBLE FOR ANY ACT OR
OMISSION, OR THE SOLVENCY OF, ANY MONEY MARKET SWEEP. I UNDERSTAND THAT
THE TRANSFER AGENT OR DISTRIBUTOR OF THE MONEY MARKET SWEEP ACCOUNT I
SELECT FROM TIME TO TIME HAS THE SOLE RESPONSIBILITY TO PROVIDE
INFORMATION TO ME ABOUT IT.
5. THE CUSTODY ACCOUNT
Either MGT or a Morgan Affiliate (which will be indicated on my statement) will
open and maintain a Custody Account for me.
TERMS OF CUSTODY
. You will record, on your books, my interest in Property that you hold
directly or indirectly to my account as my custodial agent. You shall make
purchases, sales, and deliveries only in accordance with instructions given
by an Authorized Person. You may hold Property directly or indirectly
through one or more subcustodians or securities depositories.
. You will make payments for Securities only to the extent that my Asset
Power Amount can cover the payment.
. I agree that any issue of Securities that you hold for me directly or
indirectly through any subcustodian or depository may be treated as
fungible with all other securities of the same issue pursuant to the
provisions of applicable law.
. Property may be registered in the name of your nominee or in the name of
the nominee of any depository or subcustodian that you use.
. You may, in your discretion, hold non-US dollar currencies in my Cash
Account to be used in connection with transactions denominated in non-U.S.
dollar currencies. You have the right to convert one currency into another
at any time and without prior notice at the current market rate for spot
foreign exchange transactions as determined by you or any Morgan Affiliate
and in such manner as you, in your sole discretion, determine to be
reasonable.
. You may hold any currency (other than U.S. dollars) on deposit with, and
effect transactions through, an account with an affiliate or another bank
in the country where such currency is the lawful currency or in other
countries where such currency may be lawfully held on deposit.
. You will exchange or transfer Securities only if sufficient Securities are
actually in the Custody Account and available for delivery.
. Until you receive an instruction from an Authorized Person to the contrary,
you will:
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collect dividends, interest, and other payments made and stock
distributions, rights, and similar distributions made or issued with
respect to Securities and present for payment maturing Securities, and
those called for redemption, in each case net of any applicable taxes
or other charges withheld by the maker of such payment or distribution;
exchange temporary certificates for definitive ones, or to obtain new
certificates if the par value of any shares is changed;
promptly after becoming aware thereof, notify me of any rights offering
by an issuer of Securities. If you do not receive an instruction from
an Authorized Person regarding the exercise of rights under such
offering by the deadline set by it in such notice, then to the extent
permitted by applicable law and consistent with local market practice,
you or the applicable subcustodian shall sell the rights in the
principal market and deposit the proceeds of the sale in the Cash
Account. You are also authorized to sell any fractional interests in
Securities you receive as a result of a dividend of Securities;
promptly after becoming aware you will notify me of the partial
redemption of any Securities. If you or any subcustodian or securities
depository hold any Securities in which I have an interest as part of a
fungible mass, you or the subcustodian or securities depository may
select the Securities to participate in partial redemptions, partial
payments, or other actions affecting less than all Securities of the
relevant class in any non-discriminatory manner that you or it
customarily uses to make such selection;
promptly after receipt you will forward to me those communications
relating to any Securities held in my Securities Custody Account that
call for voting, the exercise of rights, or other specific action
(including materials relating to legal proceedings intended to be
transmitted to holders of the Securities);
perform or instruct the appropriate subcustodian to perform the
following: (i) execute in my name any ownership and other certificates
required to obtain payment, or exercise any rights in respect of any
Securities; (ii) accept and open all mail directed to me, and (iii)
retain or dispose of fractional interests received as a result of stock
dividends in accordance with local law and practice. With respect to
any corporate events not listed above, you will (in the absence of an
instruction from an Authorized Person within any prescribed deadline)
take any action that you consider appropriate under the circumstances.
. Unless I have instructed you otherwise in writing, you are authorized to
release to issuing companies my name, address, and share positions, in
compliance with applicable laws.
. I shall be solely responsible for compliance with any notification or other
requirement of any jurisdiction relating to or affecting my beneficial
ownership of Property, and you will not be liable for my non-compliance
with such requirements.
. In some securities markets and cash clearing systems, deliveries of
Securities and cash may be reversed under certain circumstances.
Accordingly, credits of Securities to the Custody Account and cash to the
Cash Account are provisional and subject to reversal if, in accordance with
relevant local law and practice, the delivery of the Securities or cash is
reversed.
POWER OF ATTORNEY
I appoint you as my attorney-in-fact to represent me in every respect, in my
name and place, with regard to my Securities Custody Account. You are
authorized to execute endorsements, assignments, or other instruments of
conveyance or transfers of Securities or other Property or to execute any other
documents that you deem to be necessary or desirable and proper in connection
with the transfer of any Property. Your signature, as well as any and all
declarations on other documents, shall be fully binding on me, and I hereby
declare myself fully liable for any and all dispositions made by you. This
power is coupled with an interest and shall survive my disability or
incompetence. Your
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appointment as attorney-in-fact pursuant to this paragraph will not be
understood to impose upon for any additional duties not expressly undertaken in
this Agreement.
STANDING BROKER TRANSACTIONS
You are authorized to accept and act on all instructions received from Morgan
Affiliates to either receive or deliver Property against payment into or from my
Custody Account and to charge my Cash Account for any transaction, service, or
other fee on behalf of such affiliate. In carrying out any Securities
transaction, I understand that I will not send you separate settlement
instructions. I agree to assume all risks that may result from any action you
take in reliance in good faith on such instructions.
I authorize you to receive from or deliver to any broker Securities as specified
by the broker through the Depository Trust Company ("DTC") Interactive
Institutional Delivery System. You will accept instruction through DTC from any
broker and will automatically affirm and settle for my Custody Account each
Securities transaction when my broker provides information to you through DTC's
Interactive Institutional Delivery System or any other electronic execution,
affirmation, confirmation, or delivery system for Securities in common use in
the relevant market or markets for any particular instrument that you determine
to be appropriate under the circumstances in your sole discretion. In carrying
out these transactions, my broker will furnish me with confirmations directly
and my broker will be responsible for the accuracy of the trade and any other
transaction details.
6. DIRECT PURCHASE OF J.P. MORGAN AND AMERICAN CENTURY FUNDS
I may purchase shares directly in one or more J.P. Morgan or American Century
Funds after I have received and reviewed its prospectus. If I purchase shares
in a J.P. Morgan and American Century Fund, I request that information on my
investment in such J.P. Morgan and American Century Fund be included on my Asset
Account statement. I understand that I will not receive a separate J.P. Morgan
and American Century Fund statement.
All cash proceeds of redemptions of J.P. Morgan and American Century Money
Market shares will be credited to my Cash Account. Dividends and capital gains
distributions from my J.P. Morgan and American Century Funds will be reinvested
unless I otherwise notify you at the time of purchase.
7. LINE OF CREDIT
By NOT checking the applicable box in the Application, I am requesting you to
extend credit to me from time to time as provided for in this Agreement. In
your sole discretion you will determine the amount of my credit limit from time
to time based on what you may determine to be the lending value of assets held
in my Asset Account ("Line of Credit"), but it will generally not exceed
$3,000,000.
Each Asset Account statement will show the total amount available under my Line
of Credit and the amount(s) which I have drawn under my Line of Credit (each, a
"Loan"). Subject to the terms of this Agreement, a Loan may be made whenever
the collected balance in my Cash Account is insufficient to pay a check, VISA
Card transaction or any debit to my Cash Account. I recognize that you may at
any time withdraw or modify the Line of Credit and demand repayment of the Loan,
without prior notice, even though this may cause checks drawn on the Cash
Account to be returned unpaid, authorizations for Card Transactions to be
denied, or other debits to the Cash Account to be rejected. Each Loan is secured
by any Collateral in which I have granted you a security interest as described
in the General Terms.
I represent and warrant that I have not requested JPMSI to arrange for you to
finance my purchase of any Security underwritten or placed by JPMSI during the
period of underwriting or placement, or for 30 days thereafter, or to provide
financing against such a Security as Collateral.
I agree to repay you:
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. ON DEMAND for the principal amount of any Loan under my Line of Credit and
any related finance charges and other fees and charges; and
. in U.S. Dollars in same day funds.
Whenever there are Loans or related fees or other charges (collectively, the
"Loan Balance") outstanding under my Line of Credit, you will charge me, and I
agree to pay, finance charges determined as described below. Finance charges
begin to accrue on the day a Loan is made, or a fee or other charge is due, and
continue to accrue until the Loan Balance is paid in full.
You will determine the applicable finance charge by applying the Daily Periodic
Rate to the Daily Balance of my Line of Credit.
The Daily Balance is the beginning balance of my Line of Credit each day plus
the amount of any Loans or other debits made during the day minus the amount of
any payments or other credits made during the day.
The Daily Periodic Rate and corresponding Annual Percentage Rate are variable
rates and therefore may increase or decrease from one billing cycle to another.
The Daily Periodic Rate will be equal to one divided by 360 and then multiplied
by the sum of (i) the rate of interest announced by you from time to time as
your Asset Account Preferred Rate (the "Preferred Rate") plus or minus (ii) the
percentage amount, if any, that I will be advised of by you when you advise me
of my credit limit ("Spread Percentage"). The corresponding Annual Percentage
Rate is the Preferred Rate plus the Spread Percentage, if any.
The Daily Periodic Rate and corresponding Annual Percentage Rate increase when
the Preferred Rate increases and decrease when the Preferred Rate decreases. An
increase in the Daily Periodic Rate and corresponding Annual Percentage Rate
means I pay a larger finance charge. A decrease in the Daily Periodic Rate and
corresponding Annual Percentage Rate means I pay a smaller finance charge.
There is no limit on the amount by which the Daily Periodic Rate and
corresponding Annual Percentage Rate may change at any one time or over the life
of my Line of Credit. If the Daily Periodic Rate changes, it will be increased
or decreased on the effective date of such change. The new Daily Periodic Rate
will be applied to the Daily Balance beginning on that day.
If I am in default on any obligation under the terms of my Line of Credit, I
agree to pay a finance charge at two percentage points (2%) above the Annual
Percentage Rate that otherwise would apply.
Without prejudice to my obligation to make payment on demand, I agree to pay all
of my finance charges on the first Business Day of each month. I understand
that such amount will automatically be paid from my Cash Account to the extent
there are sufficient available funds in my Cash Account. In the event the
balance in my Cash Account is insufficient, I agree to pay such finance charges
from other sources upon your demand.
In the event that my Loan Balance on any day exceeds my Line of Credit for any
reason, I authorize you to liquidate sufficient Collateral and/or to redeem
sufficient J.P. Morgan or American Century Funds, as you choose in your sole
discretion, and to apply the proceeds to bring my Loan Balance within my Line of
Credit.
The following sections contain important information about my rights and your
responsibilities under the Fair Credit Billing Act.
NOTIFICATION IN CASE OF ERRORS OR QUESTIONS ABOUT MY STATEMENT. If I think
there is an error on my Asset Account statement relating to my Line of Credit,
or if I need more information about a Line of Credit transaction on my
statement, I will send you a letter as soon as possible to the address listed on
my statement. You must hear from me no later than 60 days after you have sent
me the first statement on which the error or problem has appeared. I can
telephone you but doing so will not preserve my rights.
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In my letter, I will give you the following information:
. My name and Asset Account number;
. The dollar amount of the suspected error; and
. A description of the error and explanation, if I can furnish one, of why I
believe there is an error. If I need more information, I will describe the
item I am not sure about.
MY RIGHTS AND YOUR RESPONSIBILITIES AFTER YOU RECEIVE MY WRITTEN NOTICE. You
must acknowledge my letter within 30 days, unless you have corrected the error
by then. Within 90 days, you must either correct the error or explain why you
believe the statement was correct.
After you receive my letter, you cannot try to collect any amount I question or
report me as delinquent. You can continue to bill me for the amount I question,
including finance charges, and you can apply any unpaid amount against my credit
limit. I do not have to pay any questioned amount while you are investigating,
but I am still obligated to pay the parts of my bill that are not in question.
If you find a mistake on my statement, I will not have to pay any finance
charges related to any questioned amount. If you did not make a mistake, I may
have to pay finance charges, and I will have to make up any missed payments on
the questioned amount. In either case, you will send me a statement of the
amount I owe and the date that it is due.
If I fail to pay the amount that you think I owe, you may report me as
delinquent. However, if your explanation does not satisfy me, and I write to
you within 10 days telling you that I still refuse to pay, you must tell anyone
you report me to that I have a question about my statement. You must tell me
the name of anyone to whom you reported me. You must tell anyone you report me
to that the matter has been settled between us when it finally is.
If you do not follow these rules, you cannot collect the first $50 of the
questioned amount, even if your bill was correct.
8. FUNDS TRANSFERS
I may elect to transfer funds into or out of my Account by funds transfers,
payment orders or automated clearing house ("ACH") transactions.
If I have requested you to arrange for domestic and/or international funds
transfers and related services, I authorize you to accept funds transfer
instructions from me by telephone, tested telex, facsimile transmission, or in
writing or other methods upon which we may agree and to receive funds sent to my
Account ("Payment Orders"). Payment Orders are funds transfer instructions NOT
governed by the Electronic Funds Transfer Act.
I authorize you to charge my Account in accordance with the terms of any Payment
Order. However, you may delay acting upon or refuse to accept any Payment
Order, and I agree that you are not responsible for any losses, including
attorneys' fees, which result, from your acting or refusing to act on any
Payment Order.
I understand you will receive and process a Payment Order only on a Business Day
and within your established cut-off hours, which you may revise from time to
time without prior notice to me. You may process and route a late Payment Order
in any manner you select on the day of receipt, or you may hold the Payment
Order and send it on your next Banking Business Day. I shall be responsible for
identifying the routing of a funds transfer. You are authorized to select any
conventional means to effect my Payment Order, including funds transfer systems,
intermediary banks, and other organizations. I understand that none of those
organizations are your agents and you are not responsible for their acts and
omissions.
Any Payment Order I make from my Account will include the following information:
. Name of receiving bank
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. Street address of receiving bank
. City, country
. Beneficiary account title
. Beneficiary account number
You shall have no obligation to cancel or modify a Payment Order, but you shall
make reasonable efforts to do so.
You shall notify me if a Payment Order is rejected or not executed.
You may rely on a standard identifying or a bank account number of an
intermediary bank, beneficiary's bank, or beneficiary as proper identification
of each, even if the number, no matter where located in a Payment Order,
identifies a person different from the bank or beneficiary identified by name.
I shall be responsible for any funds transfer made in accordance with such
number, notwithstanding any inconsistency between the number and any name or
other non-numerical identification. You have no obligation to verify the
account number belonging to an intended beneficiary. I shall be the originator
of each funds transfer payment unless I inform you.
I shall notify you of any unauthorized, duplicate, or otherwise erroneous
Payment Order within a reasonable time, not to exceed 10 days after the date I
receive notice from you that the Payment Order was accepted or executed or that
my Account was debited. You shall not be liable for any such errors or
discrepancies reported after 10 Business Days.
With respect to any delayed Payment Order, your liability shall not exceed
interest at customary bank rates for the period from the day when the Payment
Order should have been sent until the day when the Payment Order is actually
carried out. However, you shall be liable for only 10 days' interest if I shall
fail to report a delayed Payment Order to you within 10 Business Days from the
date the payment should have been sent.
You shall not be responsible for any act or omission of any intermediary bank or
payment system. I shall bear the risk of insolvency of an intermediary bank or
payment system and shall immediately reimburse to you any amount you have paid
the insolvent intermediary bank or payment system. I shall also bear any costs
imposed by receiving banks in processing Payment Orders.
9. THE CHECK CARD
You may provide a VISA(R) Gold Check Card ("Card") in connection with the Cash
Account. I understand that I must refer to the separately provided disclosures
and agreements concerning the Card, including those set forth in your VISA(R)
Gold Check Card Agreement and Disclosure Statement.
**********
ASSET ACCOUNT BROKERAGE AGREEMENT
J.P. MORGAN SECURITIES INC.
J.P. MORGAN SECURITIES INC. ("JPMSI") IS A WHOLLY-OWNED SUBSIDIARY OF J.P.
MORGAN & CO. INCORPORATED. JPMSI IS A BROKER/DEALER REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION AND IS A MEMBER OF THE NEW YORK STOCK
EXCHANGE INC., THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., SECURITIES
INVESTOR PROTECTION CORPORATION, THE AMERICAN STOCK EXCHANGE, AND OTHER
EXCHANGES AND SELF-REGULATORY ORGANIZATIONS.
JPMSI OBLIGATIONS AND THE SECURITIES SOLD, OFFERED, OR RECOMMENDED BY JPMSI ARE
NOT DEPOSITS AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION
("FDIC"). JPMSI IS NOT A BANK AND IS A SEPARATE LEGAL ENTITY FROM MORGAN
GUARANTY TRUST COMPANY OF NEW YORK ("MGT") AND ALL OTHER MORGAN AFFILIATES. THE
OBLIGATIONS OF JPMSI ARE NOT OBLIGATIONS OF MGT OR ANY OTHER MORGAN AFFILIATE
(UNLESS EXPLICITLY STATED OTHERWISE), AND NEITHER MGT NOR ANY OTHER MORGAN
AFFILIATE IS RESPONSIBLE FOR SECURITIES SOLD, OFFERED, OR RECOMMENDED BY JPMSI.
MGT AND OTHER MORGAN AFFILIATE MAY BE LENDERS TO ISSUERS OF SECURITIES THAT
JPMSI
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UNDERWRITES, IN WHICH CASE PROCEEDS OF OFFERINGS UNDERWRITTEN BY JPMSI MAY BE
USED FOR THE REPAYMENT OF SUCH LOANS. I AGREE TO REFER TO THE DISCLOSURE
DOCUMENTS RELATING TO PARTICULAR SECURITIES FOR DISCUSSION OF ANY SUCH LENDING
RELATIONSHIPS.
AS A MATTER OF POLICY, JPMSI DOES NOT RECEIVE PAYMENT FOR ORDER FLOW IN RETURN
FOR DIRECTING CUSTOMER ORDER FLOW TO PARTICULAR BROKER/DEALERS OR MARKET
CENTERS. IT IS JPMSI'S POLICY TO ROUTE CUSTOMER ORDERS TO THE MARKET WHERE IT
BELIEVES CLIENTS WILL RECEIVE THE BEST EXECUTION, TAKING INTO ACCOUNT PRICE,
RELIABILITY, MARKET DEPTH, QUALITY OF SERVICE, SPEED, AND EFFICIENCY.
THE IMPORTANT DISCLOSURES IN BOLD IN THE FRONT OF THE GENERAL TERMS APPLY TO
THIS AGREEMENT. I HAVE CAREFULLY READ AND UNDERSTAND THOSE PROVISIONS (I) WHICH
ALLOW MORGAN AFFILIATES TO SHARE INFORMATION ABOUT ME WITH EACH OTHER AND (II)
WHICH RELATE TO THE RISKS OF INVESTING IN J.P. MORGAN AND AMERICAN CENTURY
FUNDS.
BROKERAGE ACCOUNT(S).
When I open one or more Brokerage Accounts with JPMSI, I agree to the following
terms and conditions:
1. GENERAL TERMS AND CONDITIONS; DEFINITIONS
This Agreement is subject to the General Terms for Accounts and Services (the
"General Terms"). Capitalized terms not defined in this Agreement have the
meanings given to them in the General Terms. To the extent there are any
conflicts between the General Terms and this Agreement, this Agreement shall
prevail.
2. CUSTODY
Unless I specify otherwise on the Application, MGT or a Morgan Affiliate will
act as custodian of the Property transacted through my Brokerage Accounts. MGT
or any other Morgan Affiliate that acts as my custodian will provide custody
services in accordance with the provisions relating to the Custody Account
contained in the Asset Account Agreement.
3. REPRESENTATIONS
I represent that the information I have provided on the Application and my
additional documentation I have provided to you with respect to whether I am an
employee or a member of any exchange, the National Association of Securities
Dealers Inc. ("NASD"), or employee of a bank, trust company, or insurance
company is correct. If that information changes, I agree to notify JPMSI
promptly.
I agree to designate all sell orders for Securities as "long" or "short." If I
designate a sale of a Security as "long," I certify that I own the Securities to
be sold, and, if such Securities are not in JPMSI's possession, I will deliver
such Securities to JPMSI on or before settlement date.
4. FAILURE OR INABILITY TO DELIVER
a. if I instruct JPMSI to sell any Property and I fail to make the Property
available for delivery, I authorize JPMSI to borrow, purchase or obtain any
Property necessary to make delivery. I agree to be responsible for fees charged
in connection with my failure to make delivery and for any loss, expenses,
premiums and other costs that JPMSI may sustain which are related to such
borrowing, purchase or obtaining of any Property or to its inability to do so.
b. JPMSI may charge my Brokerage Account with customary charges as JPMSI may
determine to cover JPMSI's services and facilities, including transaction fees.
I will promptly pay JPMSI any deficiency that might arise in my
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Brokerage Account. I understand and agree that a finance charge may be charged
on any debit balance I have with JPMSI; JPMSI is authorized to obtain payment
from other accounts I maintain with Morgan Affiliates if amounts in my Brokerage
Account are insufficient or I fail to pay JPMSI any deficiency. If any
transactions are effected on an exchange in which a foreign currency is used,
any profit or loss as a result of a fluctuation in the exchange rate will be
charged or credited to my Brokerage Account.
5. RESTRICTIONS ON TRADING
I understand that JPMSI may in its sole discretion prohibit or restrict my
trading of Securities.
THE FOLLOWING SECTION REGARDING ARBITRATION APPLIES ONLY TO BROKERAGE AND MARGIN
ACCOUNTS WITH JPMSI AND NOT TO ANY OTHER ACCOUNT.
6. ARBITRATION
To the extent permitted by applicable law, I agree that any controversy (i)
arising out of or relating to any of my Brokerage Accounts maintained with JPMSI
in any capacity, or (ii) relating to my transactions or accounts with any of
JPMSI's successor firms by merger, acquisition, or other business combination
after the inception of such Brokerage Account; or (iii) with respect to
transactions of any kind executed by, through, or with JPMSI, its officers,
directors, agents, and/or employees; or (iv) with respect to this Brokerage
Agreement, or the claimed breach thereof, shall be resolved solely and
exclusively by arbitration conducted only at the New York Stock Exchange,
American Stock Exchange, National Association of Securities Dealers, Inc.
("NASD") or through any other self-regulatory organization ("SRO") subject to
the jurisdiction of the Securities and Exchange Commission, and pursuant to the
arbitration procedures then in effect of any such exchange or SRO as I may
elect. If I do not make such election by registered mail addressed to JPMSI at
its main office within five days after demand by JPMSI that I make such
election, then JPMSI will have the right to elect the arbitration tribunal of
its choice. Judgment upon any award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
a. I acknowledge that JPMSI has advised me of the following:
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;
PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM
COURT PROCEEDINGS.
THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL
REASONING, AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY
THE ARBITRATORS IS STRICTLY LIMITED; AND
THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO
WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR
SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS
INITIATED IN COURT A PUTATIVE CLASS ACTION [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;
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(II) THE CLASS IS DECERTIFIED; OR
(III) THE CLIENT IS EXCLUDED FROM THE CLASS BY THE COURT.
SUCH FORBEARANCE TO ENFORCE AN AGREEMENT SHALL NOT CONSTITUTE A WAIVER OF ANY
RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.
This arbitration provision may be waived only with the written agreement of
JPMSI.
I agree that the terms of any settlement or any award determined by arbitration
shall be confidential and shall not be disclosed by JPMSI or any other Morgan
Affiliate under any circumstances unless required by applicable law, judicial
proceeding, or self-regulatory organization rule.
7. OTHER ACCOUNTS
The provisions of this Agreement shall be continuous, shall cover individually
and collectively all accounts that I may open or reopen with JPMSI, and shall
inure to the benefit of JPMSI's present organization, and any successor
organization or assigns.
PLEASE NOTE THAT FOR TRADING IN OPTIONS, DERIVATIVES, OR MARGIN LENDING,
ADDITIONAL DOCUMENTATION IS REQUIRED.
8. NO INVESTMENT DECISIONS; ADVICE
I acknowledge that all investments, unless otherwise agreed expressly in
writing, executed through my JPMSI brokerage account are made upon my sole
discretion, risk and responsibility. At your discretion you may contact me
about investment opportunities you believe may be of interest to me. I
understand that you are not obliged to provide me with any financial, market or
investment information and do not act as my investment advisor, nor do you
provide legal, estate planning, accounting or tax advice with respect to any
opportunities you present to me. You assume no responsibility for the accuracy
and completeness of or the performance or outcome or tax consequences of any
investment made by me as a result of receiving information from you, and you
have no obligation to update the information or recommendation provided. Your
recommendation does not imply any endorsement or guarantee.
9. MARGIN ACCOUNT
In your sole discretion if I have applied for it, you may provide margin to me
in connection with my Brokerage Account pursuant to a separate Margin Agreement.
***********
MARGIN AGREEMENT
J.P. MORGAN SECURITIES INC.
MARGIN ACCOUNT(S)
When I open a Margin Account with JPMSI, I agree to the following terms and
conditions:
1. GENERAL TERMS AND CONDITIONS; DEFINITIONS
This Agreement is subject to the General Terms for Accounts and Services (the
"General Terms") and to the terms and conditions contained in the Brokerage
Agreement, including but not limited to terms and conditions relating to pre-
dispute arbitration and security interest. Capitalized terms not defined in
this Agreement have the meanings given to them in the General Terms and the
Brokerage Agreement. To the extent there are any conflicts between the General
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Terms and the terms of this Agreement, this Agreement will prevail. To the
extent there are any conflicts between this Agreement and the Brokerage
Agreement, this Agreement will prevail.
2. INTEREST AND FEES
I agree to pay interest charges and other fees which are imposed in connection
with my Margin Account, and to pay promptly on demand any debit balance in my
Margin Account.
3. SHORT AND LONG SALES
I agree to designate all sell orders for Securities as either "long," or short".
If I designate a sale of a Security "long" I certify that I own the Securities
to be sold and, if such Securities are not in JPMSI's possession, I will deliver
such Securities to JPMSI on or before the settlement date.
4. MARGIN CUSTODY
JPMSI will hold Collateral in my Margin Account in accordance with the
provisions relating to the Custody Account contained in the Asset Account
Agreement.
5. MAINTENANCE OF COLLATERAL
I agree that Collateral in my Margin Account in JPMSI's possession or control
may be used as collateral for JPMSI's general loans and may be pledged,
repledged, hypothecated or rehypothecated separately or in common with other
Securities and any other Property to JPMSI for the sum due to JPMSI or for a
greater sum and without retaining in JPMSI's possession and control for delivery
a like amount of similar Securities or other Property.
6. LENDING OF SECURITIES
As permitted by applicable law and regulation, JPMSI is hereby authorized to
lend, to itself as broker and to others, any Securities JPMSI holds on margin in
JPMSI's possession or control together with all attendant rights of ownership
(including the right to vote the Securities).
7. ADDITIONAL REPRESENTATIONS; MARGIN REQUIREMENT
I hereby represent and warrant as of the date of my signed Application and on
every day on which I incur an additional obligation to JPMSI or any Morgan
Affiliate, that: (i) no other party has an interest in my Margin Account; (ii)
I will at all times maintain Collateral at levels in my Margin Account as JPMSI
may require from time to time in JPMSI's sole discretion; (iii) except as I have
informed or may from time to time inform JPMSI in writing, I am not an affiliate
(as defined in Rule 144(a)(1) under the Securities Act of 1933) of the issuer of
any security held in my Margin Account; (iv) since the date of my most recent
audited or unaudited financial statements (if any) there has been no material
adverse change in my business, financial condition, results of operations or
prospects; (v) all of my other representations made under the General Terms and
Brokerage Agreement continue to be true.
8. MAXIMUM INTEREST
I will never be required to pay interest in excess of the maximum amount
permitted to be charged by JPMSI under applicable state or federal law. If for
any reason, I pay interest in excess of such maximum amount, upon determination
that such excess has been paid, JPMSI, at its option will either refund such
excess amount to me or apply such excess to the principal owing under my Margin
Agreement.
**********
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INVESTMENT MANAGEMENT AGREEMENT
THE IMPORTANT DISCLOSURES IN BOLD IN THE FRONT OF THE GENERAL TERMS APPLY TO
THIS AGREEMENT. I HAVE CAREFULLY READ AND UNDERSTOOD THOSE PROVISIONS WHICH
ALLOW MORGAN AFFILIATES TO SHARE INFORMATION ABOUT ME WITH EACH OTHER.
Generally, Investment Management Accounts are maintained at and my Investment
Advisor is with the Morgan Affiliate determined to be most convenient for me
when the Account is opened. The Morgan Affiliate with which my Investment
Management Account is held is identified on my monthly statements. For example,
if I reside in California and my client advisor is located in Los Angeles or San
Francisco, my Account will be with J.P. Morgan California. Similarly, if I
reside in Illinois or Florida, and my client advisor is located in Chicago or
Palm Beach, my Account will be at J.P. Morgan Trust Company of Illinois or J.P.
Morgan Florida, respectively.
INVESTMENT MANAGEMENT ACCOUNT.
When I open one or more Investment Management Accounts with you as my Investment
Manager, I agree to the following terms and conditions:
1. GENERAL TERMS AND CONDITIONS; DEFINITIONS
This Agreement is subject to the General Terms for Accounts and Services (the
"General Terms"). Capitalized terms not otherwise defined in this Agreement
have the meanings given to them in the General Terms. To the extent there are
any conflicts between the General Terms and this Agreement, this Agreement shall
prevail.
2. INVESTMENT MANAGEMENT
I appoint you as investment manager for each Account established under this
Agreement. I request you, as discretionary investment manager, to make sales,
exchanges or investments, or to take any other action that you deem necessary or
desirable as to the Property held in the Account. You will manage the Account
following your own judgment and discretion, subject to the Asset Allocation
Guidelines contained in my Application to this Agreement but without other
instructions from me. If at any time I believe changes should be made in the
Asset Allocation Guidelines, I will discuss them with you. You will implement
any such changes after our mutual agreement and my written confirmation.
I may from time to time discuss with you my overall wealth or investment
strategy, referring to assets outside my Investment Management Account. I
understand that your exercise of judgment and discretion under this Agreement
covers only the Investment Management Account, and not any other account I may
have with any Morgan Affiliate including my Asset Account or any other
institution. I acknowledge that investment decisions regarding my other assets
will be at my own direction, even if executed through you or other Morgan
Affiliates.
If, at any time, because of major fluctuations in market prices, abnormal market
conditions or any other reason beyond your control, there is a deviation from
the Asset Allocation Guidelines, you will not be deemed to be in breach of the
Asset Allocation Guidelines, provided that you take steps to comply with the
Asset Allocation Guidelines within a reasonable period of time. If, in your
judgment, compliance with the Asset Allocation Guidelines is not in my best
interest, you may recommend the most appropriate way to deal with the deviation,
and unless I direct you to the contrary within 14 Business Days of your
transmittal of the recommendation, you are authorized to act in accordance with
your recommendation.
3. PERMISSIBLE INVESTMENTS AND CONFLICTS OF DUTY
Investments will be as determined by you in accordance with my Asset Allocation
Guidelines and with considerations of availability and applicable fiduciary
standards. Investments which may be made for my Account include stocks, bonds,
warrants, puts, calls, swaps. forwards, futures, options, debentures, notes,
mutual funds, unit trusts and other
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types of pooled interest funds and commingled investment vehicles, currencies,
precious metals and other commodities, bank deposits, mortgages, limited
partnership interests, and all other securities, obligations and derivatives of
every description in which you may legally invest for my Account, regardless of
investment grade, in any currency, whether registered or unregistered,
restricted or unrestricted, publicly traded or not and on or off any exchange,
and any documents or other instruments evidencing my rights or interests
therein.
You are authorized to act on my behalf even though you or any Morgan Affiliates
may have a potential conflict of duty or interest in a transaction. This
includes the fact that you or any Morgan Affiliate may: provide brokerage
services to other clients; act as a financial advisor or lender to an issuer of
securities; act as underwriter, broker, dealer or placement agent with respect
to securities; invest on my behalf in mutual or unit trust funds or other types
of pooled interest funds and commingled investment vehicles established,
sponsored, advised, managed by or otherwise affiliated with you (and you may be
compensated separately for such functions); act as a counterparty in currency
exchange, swap, option and other derivative transactions; act in the same
transaction as agent for more than one client; have a material interest in an
issue of securities; earn fees and profits from any of the above-listed
activities in addition to the fees charged to me for your services under this
Agreement; issue time deposits or certificates of deposit in which you invest on
my behalf; and effect transactions between the Account and any other account for
which you or any other Morgan Affiliate acts as broker-dealer.
You are authorized to arrange for the execution of transactions involving
Securities or other Property, either by executing such transactions yourself or
by means of brokers or other financial organizations of your choosing, including
Morgan Affiliates. In addition, when you buy or sell Securities or other
Property for which you or another Morgan Affiliate acts as a dealer or
underwriter, you may buy or sell such Securities or other Property from or to
either yourself or such other Morgan Affiliate, as principal.
You may aggregate purchases or sales of Securities for the Account with
purchases or sales of the same Securities by your other accounts, including
accounts in which you, your officers and employees or a Morgan Affiliate or
their respective officers and employees have a financial interest.
You may effect purchases or sales of Securities for the Account which may
coincide with purchases or sales of the same Securities by your other accounts
or for your account or the account of Morgan Affiliates. In such instances, you
will make allocations in a manner believed by you to be equitable to each
client.
You, your officers and employees or a Morgan Affiliate may have directly or
indirectly a position in or enter into a purchase and sale transaction in
Securities recommended for the Account.
You may place instructions to execute transactions for the Account with brokers,
dealers and banks who supply research to you and such research may be used by
you in advising other accounts.
You are not required to notify me, before engaging in any transaction, including
the transactions described above.
4. RISKS OF CERTAIN INVESTMENTS
If appropriate under the Asset Allocation guidelines, you are authorized to
invest in securities issued by real estate companies. Such securities may be
subject to risks associated with the direct ownership of real estate, including
the cyclical nature of real estate values, general and local economic and
political conditions, overbuilding and increased competition, environmental
liabilities, and changes in zoning laws and tax laws.
If appropriate under the Asset Allocation guidelines, you are authorized to
invest in real estate investment trusts ("REITs"). Direct investment in REITs
carries certain risks, including changes in the value of the underlying
properties and defaults by borrowers or tenants, limited diversification in a
REIT, the possible failure of a REIT to qualify as a REIT under the Internal
Revenue Code of 1986, as amended, and changes in interest rates.
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If appropriate under the Asset Allocation Guidelines, you may invest in unlisted
or privately placed securities. These securities may involve a high degree of
business and financial risk that can result in substantial losses. Because of
the absence of any trading market for such investments or privately placed
securities and any restrictions on resale as a result of regulatory or
contractual restrictions, it may take longer to liquidate these positions than
would be the case for publicly traded securities. Although these securities may
be resold in privately negotiated transactions, the prices realized on these
sales could be less than those originally paid by the Account. Further,
companies whose securities are not publicly traded may not be subject to public
disclosure and other investor protection requirements applicable to publicly
traded securities.
5. CUSTODY ACCOUNT
. You may hold Property directly or indirectly through one or more
subcustodians or securities depositories.
. I agree that any Securities that you hold for me directly or indirectly
through any subcustodian or securities depository may be treated as
fungible with all other securities of the same issue pursuant to the
provisions of applicable law.
. You shall record, on your books, my interest in any Property that you hold
directly or indirectly to my Account as my custodial agent.
. Property may be registered in the name of your nominee, or in the name of
the nominee of any depository or subcustodian that you use.
. You may, in your discretion. hold non-US dollar currencies in my Account to
be used in connection with transactions for my Account denominated in
non-U.S. dollar currencies. You have the right to convert one currency into
another at any time and without prior notice at the current market rate for
spot foreign exchange transactions as determined by you or any Morgan
Affiliate in such manner as you, in your sole discretion determine to be
reasonable.
. You may hold any currency on deposit with, and effect transactions through,
an account with an affiliate or another bank in the country where such
currency is the lawful currency or in other countries where such currency
may be lawfully held on deposit.
You will perform or instruct the appropriate subcustodian to perform the
following: (i) execute in my name any ownership and other certificates as
may be required to obtain payment, or exercise any rights, in respect of
any Property; (ii) accept and open all mail directed to me; and (iii)
retain or dispose of fractional interests received by you or a
subcustodian as a result of stock dividends in accordance with local law
and practice. With respect to any corporate events not listed above, you
shall take any action that you consider appropriate under the
circumstances.
. I shall be solely responsible for compliance with any notification or other
requirement of any jurisdiction relating to or affecting my beneficial
ownership of Property, and you will not be liable for my non-compliance
with such requirements.
. In some securities markets and cash clearing systems, deliveries of
Securities and cash may be reversed under certain circumstances.
Accordingly, credits of Securities to the Custody Account and cash to the
Cash Account are provisional and subject to reversal if, in accordance with
relevant local law and practice, the delivery of the Securities or cash is
reversed.
If you do not act as custodian for my Account, I will provide additional
information relating to my custodian or the Application. In this situation, I
will promptly advise you of any contributions to or withdrawals from the Account
as they may occur from time to time.
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6. POWER OF ATTORNEY
I appoint you as my attorney-in-fact to represent me, in my name and place, with
regard to my Account. You are authorized to execute endorsements, assignments,
or other instruments of conveyance or transfer of Securities or other Property
or to execute any other documents that you deem to be necessary or desirable and
proper in connection with the transfer of any Property. Your signature, as well
as any and all declarations other documents, shall be fully binding on me, and I
hereby declare myself fully liable for any and all dispositions made by you.
This power shall be coupled with an interest and shall survive my disability or
incompetence.
7. GENERAL DISCLOSURE COVERING OUTSIDE ACTIVITIES
Nothing in this Agreement shall limit or restrict the right of any of your
directors, officers, employees or agents to engage in any other business or to
devote his or her time and attention in part to the management or other aspects
of any other business, whether of similar or dissimilar nature.
8. CREDIT FACILITY
By not checking the applicable box on the Application to this Agreement, I am
requesting you to make extensions of credit to me from time to time. Such
extensions of credit, including lines of credit, will be in excess of $25,000.
I will execute any additional documentation related to this extension of credit.
9. APPLICATION INFORMATION
The Application to this Agreement must be fully completed before you will be
able to provide investment management services. If it is incomplete, you will
contact me to obtain additional information. I will be sent a completed copy of
this form based on the information you received from me by telephone or other
means. If there are any inaccuracies in the copy I receive, I will notify you
within 10 days of your sending me a completed copy. I will also notify you of
any future changes to this information. Absent notification, the information
contained in this form will be deemed accurate and complete.
**********
MONEY MARKET INVESTMENT ACCOUNT ("MMIA") AGREEMENT
MONEY MARKET INVESTMENT ACCOUNT
When I open a Money Market Investment Account with MGT, I agree to the following
terms and condition:
1. GENERAL TERMS AND CONDITIONS; DEFINITIONS
This Agreement is subject to the General Terms and Agreements for Accounts and
Services (the "General Terms"). Capitalized terms not defined in this Agreement
have the meanings given to them in the General Terms. To the extent there are
any conflicts between the General Terms and this Agreement, this Agreement shall
prevail.
2. MINIMUM OPENING DEPOSIT AND MINIMUM BALANCE REQUIRED TO EARN INTEREST
The MMIA holds only U.S. dollar deposits. My initial opening deposit must be no
less than $10,000.
In order to earn the annual percentage yield on any given day, (i) I must
maintain a minimum balance of $10,000 in my MMIA on that day and (ii) I cannot
make more than six transfers or non-cash withdrawals from my MMIA during any
month. However, if I use my VISA(R) Gold Check Card (the "Card") at an ATM,
there is no limit on the number of
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transfers I can make between the MMIA and other accounts I have with you or the
number of cash withdrawals I can make from my MMIA.
3. INTEREST RATE AND ANNUAL PERCENTAGE YIELD
Interest accrues daily on funds deposited in my MMIA on the Business Day I
deposit cash or non-cash items to the day of withdrawal, without the benefit of
any grace periods. The balances in my MMIA will earn an initial annual interest
rate with an annual percentage yield described in the current rates schedule in
effect as of the day on which I make my initial deposit, based upon the balance
that I have in my MMIA each day. My interest rate and annual percentage yield
may change. You may change the interest rate on my MMIA daily at your
discretion without application of a specific index, formula or schedule. For
current interest rate and annual percentage yield information, I will call my
client service specialist.
Interest is calculated on my MMIA using the daily balance method. This method
applies a daily periodic rate to the principal in my MMIA at the end of each
day. Interest earned during each month will be compounded (added to principal)
monthly and credited to my MMIA monthly on the last Business Day of the month in
which it was earned, effective as of the last calendar day of that month.
Interest, when credited, will be treated as a deposit and will bear interest
from the first Business Day of the month after the month in which it was
credited.
If I close my Account before interest is credited, I will receive the interest
accrued through the prior day.
4. WITHDRAWALS FROM MY MMIA; LIMITATIONS ON WITHDRAWALS AND TRANSFERS
My MMIA is with the New York office of Morgan Guaranty Trust Company of New
York. I will be notified if my MMIA is transferred to another branch office or
Morgan Affiliate. Any deposit I make or credit that is entered to my MMIA will
be provisional until you receive final settlement. You may revoke any
provisional credit and charge back the amount to my MMIA or I will reimburse you
for that amount. I can withdraw funds in my MMIA by using my Card or initiating
a payment order.
Federal regulations require you to limit the number of transfers of the
following types from MMIA accounts: recurring payments I set up in advance; or
payments and transfers I authorize using a telephone or personal computer.
The maximum number of transfers of these types permitted are: six per statement
period from MMIAs, of which no more than three may be by check. If I have
reached either of these limits, you may refuse to process a transfer that I am
requesting using a telephone or personal computer. If these limits are exceeded
three times in a calendar year, you will be obliged to restrict or close my
MMIA. There is no limit on the number of transfers I can make in person at a
branch or at ATMs. In addition, you will not pay any interest on my MMIA the
month following any statement period in which I made more than six such
transfers.
Under the following circumstances, you may refuse withdrawals from my MMIA:
. You reserve the right to require seven days' advance written notice before
permitting a withdrawal from my MMIA, although you do not presently
exercise this right.
. You suspect fraud or irregularity.
. You are served with legal process in any judicial proceeding, and you in
good faith believe that you are required or it is prudent to do so until
final determination of the judicial proceeding.
. Funds I wish to withdraw are not available (see the Funds Availability
Policy in the General Terms).
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. If the Account is pledged as collateral.
. Other: Please refer to the General Terms and Disclosures for other
limitations that may apply.
5. FUNDS TRANSFERS
The Funds Transfer section of the Asset Account Agreement will apply to all
funds transfer payment orders I make from or to my MMIA.
6. INSUFFICIENT FUNDS
You may refuse to make any withdrawal, debit to or instruction to transfer funds
from my MMIA if such withdrawal, debit or transfer will result in an overdraft
in my MMIA. At your sole discretion, if an overdraft would be created or exists
in my MMIA, you may make payments from my MMIA and extend credit to me to cover
those payments under the terms described below and in the applicable Fee
Schedule.
I agree to repay you:
. ON DEMAND for the principal amount of any advance you make to me to cover
my overdrafts or any part thereof, including any, finance charges and other
fees and charges related to that amount; and
. in U.S. Dollars in same day funds.
I will be deemed to have received demand for payment of any overdraft when the
corresponding debit to my MMIA is entered, and I shall repay the amount of the
overdraft immediately.
Whenever there are outstanding overdrafts, or unpaid fees or other charges
relating to my MMIA (collectively, the "Loan Balance"), you will charge me, and
I agree to pay, finance charges at the applicable Annual Percentage Rate (which
I understand is determined by applying a Daily Periodic Rate to a Daily Balance
as described in your Fee Schedule). Finance charges begin to accrue on the day
an overdraft, fee, or other charge is due, and continue to accrue until the Loan
Balance is paid in full.
If I am in default on any payment obligation, I agree to pay a finance charge at
two percentage points (2%) above the Annual Percentage Rate that otherwise would
apply.
Without prejudice to my obligation to make payment on demand, I agree to pay all
of my finance charges on the first Business Day of each month. I understand
that such amount will automatically be paid from my MMIA to the extent there are
sufficient available funds in my MMIA. In the event the balance in my MMIA is
insufficient, I agree to pay such finance charges from other sources upon your
demand.
7. THE CHECK CARD
You may provide a Card in connection with the MMIA and I understand that I
should refer to the separately provided agreements and disclosures covering the
Card. I will not be able to make purchases by using the Card.
**********
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CHECKING ACCOUNT AGREEMENT
CHECKING ACCOUNT
When I open a Checking Account with you, I agree to the following terms and
conditions:
1. GENERAL TERMS AND CONDITIONS; DEFINITIONS
This Agreement is subject to the General Terms for Accounts and Services (the
"General Terms"). Capitalized terms not defined in this Agreement have the
meanings given to them in the General Terms. To the extent there are any
conflicts between the General Terms and this Agreement, this Agreement shall
prevail.
2. MINIMUM OPENING DEPOSIT AND MINIMUM BALANCE REQUIRED TO AVOID ADDITIONAL
FEES
The Checking Account holds only U.S. dollar deposits. My initial opening
deposit must be no less than $10,000, and I must maintain this minimum balance
or I will be charged a quarterly account maintenance fee as set forth in the
applicable fee schedule.
3. WITHDRAWALS FROM MY ACCOUNT; LIMITATIONS ON WITHDRAWALS AND TRANSFERS
My Checking Account is with the New York office of Morgan Guaranty Trust Company
of New York. I will be notified if my Checking Account is transferred to
another office or Morgan Affiliate. Any deposit I make or credit that is
entered to my Checking Account will be provisional until you receive final
settlement. You may revoke any provisional credit and charge back the amount to
my Checking Account or I will reimburse you for that amount. I can withdraw
funds in my Checking Account by using my Card, initiating a payment order or
drawing a check.
Under the following circumstances, you may refuse withdrawals from my Checking
Account.
. Funds I intend to withdraw are not available (see the Funds Availability
section of the General Terms).
. If the Account is pledged as collateral.
. If you suspect fraud or irregularity.
. If you are served with legal process in any judicial proceeding, and you in
good faith believe that you are required or it is prudent to do so until
final determination of the judicial proceeding.
. Other: Please refer to the General Terms and Disclosure for other
limitations that may apply.
4. FUNDS TRANSFERS
The provisions of the Funds Transfer section of the Asset Account Agreement will
apply to any Funds Transfers I make to or from my Checking Account.
5. INSUFFICIENT FUNDS
You may refuse to make any withdrawal, debit to or instruction to transfer funds
from my Checking Account if such, withdrawal, debit or transfer will result in
an overdraft in my Checking Account. At your sole discretion, if an overdraft
would be created or exists in my Checking Account, you may make payments from my
Checking Account and extend credit to me to cover those payments under the terms
described below and in the applicable Fee Schedule.
I agree to repay you:
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. ON DEMAND for the principal amount of any advance you make to me to cover
my overdrafts or any part thereof, including interest, finance charges and
fees related to that amount; and
. in U.S. Dollars in same day funds.
I shall be deemed to have received demand for payment of any overdraft, advance
or credit upon the transfer of funds creating the debit to my Checking Account,
and I shall repay immediately the amount of the overdraft, advance or credit.
You will charge my Checking Account at a rate computed in accordance with the
applicable Fee Schedule.
Whenever there are unpaid advances, interest payments or fees (collectively, the
"Loan Balance") outstanding, you will charge me, and I agree to pay, finance
charges. Finance charges begin to accrue on the day you make an advance to me
and will continue until the Loan Balance is paid in full. Finance charges on my
outstanding advances will be determined by applying a Daily Periodic Rate to a
Daily Balance.
If I am in default of my payment obligations, you may charge, and I agree to pay
interest at two percentage points (2%) above the Annual Percentage Rate as
described in your Fee Schedule that would otherwise apply.
In addition to making payment upon demand, I agree to pay all of my finance
charges each month on the first Business Day of the month. Such amount will be
automatically paid from my Cash Account. In the event my Checking Account
balance is insufficient, I agree to pay such finance charge from other sources
upon your demand.
6. THE CHECK CARD
You may provide a Card in connection with the Checking Account and I understand
that I must refer to the separately provided agreements and disclosures covering
the Card.
**********
ELECTRONIC SERVICES AGREEMENT
Electronic Services refers to transactions in which the transfer of money begins
electronically and includes: balance and transaction inquiries, funds transfers
and withdrawals I make at available automated teller machines ("ATMs") by using
my VISA(R) Gold Check Card, automatic transfers such as regularly recurring
direct deposits of interest, dividend payments and salary, or payments to third
parties; purchases I make by using my VISA(R) Gold Check Card which directly
transfer funds from one of my Accounts; transfers that begin as instructions to
you on my personal computer and end as a check or electronic payments; and
transfers between my accounts for household purposes by telephone. Federal
regulations refer to these types of transactions as Electronic Funds Transfers.
See the Funds Transfers section of the Asset Account Agreement for information
about other types of transfers.
I agree to the following terms and conditions in obtaining Electronic Services
from you:
GENERAL TERMS AND CONDITIONS; DEFINITIONS
This Agreement is subject to the General Terms for Accounts and Services (the
"General Terms"). Capitalized terms not otherwise defined in this Agreement
have the same meanings given to them in the General Terms. To the extent there
are any conflicts between the General Terms and this Agreement, this Agreement
will prevail.
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VISA(R) GOLD CHECK CARD
1. CARD USES
At my request and after you receive my completed Application, you may issue a
VISA(R) Gold Check Card (the "Card") to me and any additional persons I
indicate.
I may use my Card to:
. Withdraw cash from, transfer funds between and find out the available
balances in my Checking Account, MMIA or Asset Account at an ATM displaying
the MAC(R) or PLUS System(R) worldwide; and,
. Pay for purchases at merchants that display the VISA(R) logo ("Purchase"),
obtain cash from a merchant (such as a supermarket) as part of a purchase
at a merchant terminal or obtain cash from a financial institution that
displays the VISA(R) logo.
Each of these is referred to as a "Card Transaction."
The amount of any cash withdrawals and Purchases will be deducted from either my
Checking Account or my Asset Account. When I apply for the Card, I will select
the Account from which Purchases should be deducted. Monies in my MMIA are not
available to pay for Purchases made with the Card.
2. PERSONAL IDENTIFICATION NUMBER
To use my Card, I must select a personal identification number ("PIN"). A PIN
is required for all Card Transactions at network ATMs. My Card PIN is an
identification code and a security procedure which is intended to ensure that
only transactions I authorize are made with the Card. You advise me to choose a
PIN that is easy to remember, but difficult for anyone else to guess. It should
not be a birth date or part of any other number I carry with me (e.g., social
security number, address). I understand that I must take all reasonable
precautions to keep my PIN confidential and not to reveal my PIN to anyone.
3. POINT OF SALE TRANSACTIONS
I can use my Card at participating merchants or financial institutions to obtain
cash or pay for goods and services directly with cash in my Checking or Asset
Account. These Purchases are referred to as "point of sale" transactions.
You have no obligations, however, if any merchant or financial institution
refuses to honor my Card or retains my Card if authorization for its use is not
given. I understand that if I make a Purchase which is returned for a refund,
the refund normally will be made on a credit voucher which shall be credited to
my Account in the normal course of business.
4. LIMITATIONS ON CARD TRANSACTIONS
Not all services may be available at all ATMs or merchants where I can use the
Card.
I may use the Card for cash withdrawals at ATMs or merchants for up to $1,000
each day or the available balance in my Account, whichever is lower. Total
Purchases made with my Card may not exceed $25,000 each day (unless I am
otherwise notified in writing) and may be lower in some cases. The day for
withdrawal limits starts at 3:00 p.m. each day and ends at 3:00 p.m. the next
day.
For security reasons, there are limits on the number of transfers I can make
using the Card for cash withdrawals or Purchases. These limitations are imposed
and not revealed for security purposes.
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I agree that you will honor Card Transactions only if there are sufficient funds
available in my Account. If you, at your discretion, extend credit to me and
decide to pay the amount of a Card Transaction or transfer that exceeds funds
available in my Account, I agree to repay you in full immediately in accordance
with the provisions relating to extending credit contained in the Asset Account
or Checking Account Agreement. I also agree that any Card Transaction or
transfer may be subject to prior authorization by you or, if involving the Card,
by a VISA(R) authorization center.
5. CARD RENEWALS AND CANCELLATIONS
You will automatically send me a new Card before my current Card expires.
I may cancel my Card at any time for any reason. The Card you issue to me is
and remains your property. You have the right to demand its return and to
cancel it at any time. If you or I cancel the Card, I will destroy the Card or
return it to you to prevent its further use.
HOME BANKING SERVICES VIA QUICKEN(R)
1. BANKING BY PERSONAL COMPUTER - HOME BANKING SERVICES PROVIDED BY INTUIT
Home Banking Services refers to those Electronic Services which require the use
of a personal computer. Home Banking Services are provided by Intuit using its
Quicken(R) Software, not by you, and the terms, conditions, instructions and
other directions contained in the Quicken(R) Software users guide ("Users
Guide") are incorporated by reference in this Agreement. To the extent there
are any conflicts between the Users Guide and this Agreement will prevail.
2. COMPUTER REQUIREMENTS
To use the Home Banking Services, I will need the type of computer, related
equipment, and software described in the Users Guide. My computer , the related
equipment and software are referred to collectively as "my Computer."
I am responsible for the installation, maintenance, and operation of my
Computer. You are not responsible for any errors or failures from any
malfunction of my Computer, and you are not responsible for any computer virus
or related problems that may be associated with the use of the Home Banking
Services.
3. SECURITY CODE
When I first enroll in the Home Banking Services, I will be assigned a temporary
security code (my "Home Banking PIN" or "PIN".) During my first use of the Home
Banking Services, I am required to select my ongoing Home Banking PIN. I will
need my Home Banking PIN to gain access to Home Banking Services. I agree to
take all reasonable precautions to keep my Home Banking PIN confidential to
prevent unauthorized access to my accounts and to prevent unauthorized use of
the Home Banking Services.
If I forget my Home Banking PIN, I must contact you to have my Home Banking PIN
reset. You will reset my Home Banking PIN to the original number that I was
issued upon signing this Agreement. I will retain the original letter for
future reference.
4. HOME BANKING SERVICES
A Checking or Asset Account will be the primary account from or to which Home
Banking transactions will be posted. I may use the Home Banking Services to (a)
transfer funds between my linked Accounts, (b) obtain Account balances and
transaction information for these linked Accounts, (c) send electronic mail
("email") to you and receive email from you, and (d) pay bills directly using
the Home Banking Bill Payment Service from my Account in the amounts and on the
days I request. I may use my Computer to reach Intuit 24 hours a day, seven
days a week, except during any special
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maintenance periods. These features of the Home Banking Services are limited to
the extent, and subject to the terms, noted below:
. There will be at least a one-business-day delay in transferring funds
between linked Accounts. I should read the Users Guide for a more detailed
description of the delays involved in transferring funds from particular
types of Accounts.
. You will not immediately receive email that I send. Therefore, I should not
rely only on email if I need to communicate with you immediately--for
example, if I need to stop payment on a check, to report a lost or stolen
check card, or to report an unauthorized transaction from one of my
accounts. You will not take action based on my email requests until you
actually receive my message and have a reasonable opportunity to act.
. Transactional information for my linked Accounts will be available from the
Home Banking Services for a maximum of 60 calendar days prior to the date
of inquiry.
5. HOME BANKING BILL PAYMENT SERVICE
To subscribe to Home Banking Bill Payment, I must be a subscriber to the Home
Banking Services and have an Account, which can be operated with a single
signature and which will be used for bill payments. I have authorized Intuit to
make bill payments in the manner described below, and I authorize you to honor
these payments as if they had been initiated directly by me in writing to you.
To pay bills using Home Banking Bill Payment, I must use my Computer to
authorize a payment. After Intuit receives my instructions, it will make my
payment either by initiating a transfer of funds electronically from my Account
to the payee, or by preparing a check payable to the payee and sending the check
to the payee. Only payees with United States addresses can be paid using Home
Banking Bill Payment. The minimum bill payment amount is $1; the maximum bill
payment amount is $999,999.
If a payment is to be made by check, I authorize Intuit to draw a check on my
Account and sign it on my behalf. I agree not to order a bill payment unless
sufficient available funds will be in my Account to pay the check when it is
presented for payment. While most payments can be made using Home Banking Bill
Payment Services, Intuit has reserved the right to refuse to process payments to
certain payees. I may use Home Banking Bill Payment to authorize recurring
payments in order to automatically pay recurring bills. These payments must be
for the same amount each month, and they will be paid on the same calendar day
of each month, or on the following Business Day if the regular payment day falls
on a weekend or holiday.
When a payment I have initiated reaches you, I authorize you to debit my Account
accordingly. If there are insufficient available funds in the Account to make a
payment I have authorized, you may refuse to pay the item or you may make the
payment and thereby overdraw the Account. In either event, I am responsible for
any insufficient funds or overdraft charges you may impose.
You reserve the right to refuse to honor payments that reasonably appear to you
to be fraudulent or erroneous.
When scheduling a payment, I must enter and transmit my bill payment
instructions at least five Business Days before I wish the payment to be sent.
It is my responsibility to authorize my bill payments in such a manner that my
bills may be paid on time. I am responsible for any late payment or finance
charges that may be imposed as a result of my failure to transmit payment
instructions sufficiently in advance.
When I schedule a payment or series of payments, I may obtain a copy of my
instructions by printing my instruction screens. In addition, I may use my
Computer to view the payments I have scheduled for the future.
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Transactions I enter before 2:00 p.m. Eastern Time on a Business Day will be
executed on the following Business Day. Transactions I enter after 2:00 p.m. or
on a non-Business Day will be executed in two or more Business Days. All
transactions will be reflected in my Account records on the Business Day after
execution.
6. CANCELING AND STOPPING PAYMENTS ON-LINE
After payment requests are transmitted, I may use the Home Banking Services to
cancel a payment (if, for example, a payment date or a payment amount is
incorrect) if the request is transmitted using the Home Banking Services to
Intuit at least five Business Days before the payment is scheduled to be made.
If my cancellation request is not received at least five Business Days before
payment is to be made, I am responsible for the payment.
7. DATA RECORDING
When I contact Intuit to conduct transactions, the information and email
messages I enter will be recorded.
8. MY RESPONSIBILITY
I am responsible for all transfers and bill payments I authorize using the Home
Banking Services. If I permit other persons to use the Home Banking Services or
my Home Banking PIN, I am responsible for any transactions they authorize from
my linked Accounts.
9. SHARING OF INFORMATION
In order for me to use the Home Banking Services with my Accounts, I understand
that you must make information concerning my Accounts available to Intuit. By
using the Home Banking Services, I agree that you may provide this information
to Intuit.
10. TERMINATION
If I terminate the Home Banking Services, I authorize you to continue making
transfers and bill payments I have previously authorized until such time as you
have had a reasonable opportunity to act upon my termination notice. Once you
have acted upon my termination notice, you will make no further transfers or
payments from my Accounts using the Home Banking Services, including any
transfers or payments I have previously authorized. However, the termination of
my Home Banking Services will not terminate any other agreement or service I
have with you or close my Accounts.
ADDITIONAL TERMS AND DISCLOSURES APPLICABLE TO ELECTRONIC SERVICES INCLUDING MY
VISA(R) GOLD CHECK CARD AND HOME BANKING SERVICES USING QUICKEN(R).
RECORD OF TRANSACTIONS; STATEMENTS
I can get a receipt at the time I make any transfer to or from my Account using
an ATM or when I make a Purchase with my Card. I will get a monthly account
statement unless there are no transactions in a particular month. In any case,
I will get the statement at least quarterly. In addition to reflecting my other
Account activity, your statements will include any transfers or bill payments I
authorize using the Home Banking Services.
LIABILITY FOR UNAUTHORIZED TRANSFERS
I WILL CONTACT YOU AT ONCE if I believe my Card or PIN or Account Number has
been lost or stolen. Telephoning you at the phone number below is the best way
of keeping my losses down. I could lose all the money in my Account (plus my
maximum line of credit, if I have one).
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PURCHASE TRANSACTION
If I tell you within two Business Days after I learn of the loss or theft of my
Card or PIN, I will lose no money if someone used my Card for a Purchase without
my permission. If I tell you after two Business Days after I learn of the loss
or theft of my Card or PIN, I can lose no more than $50 if someone used my Card
for a Purchase without my permission.
OTHER TRANSFERS
For other transfers not involving a Purchase with a Card, or if (i) the Card is
used at an ATM (ii) use of my Card involved an unauthorized transaction, (iii)
you believe I am grossly negligent or (iv) you believe fraud is involved, the
following applies:
If I tell you within two Business Days, I can lose no more than $50 if someone
used my Card or PIN without my permission. If I believe my Card or PIN has been
lost or stolen, and I tell you within two Business Days after I learn of the
loss or theft, I can lose no more than $50 if someone used my Card or PIN
without my permission. If you can prove you could have stopped someone from
using my Card or PIN without my permission if I told you, I could lose as much
as $500. If my statement shows transfers that I did not make, I must tell you
at once. If I do not tell you within 60 days after the statement was mailed to
me, I may not get back any money I lost after the 60 days if you can prove that
you could have stopped someone from taking the money if I had told you in time."
If a good reason (such as a long trip or a hospital stay) kept me from telling
you, you will extend the time periods.
CONTACT IN EVENT OF UNAUTHORIZED TRANSFER
IF I BELIEVE MY CARD OR PIN HAS BEEN LOST OR STOLEN OR THAT SOMEONE HAS
TRANSFERRED OR MAY TRANSFER MONEY FROM MY ACCOUNT WITHOUT MY PERMISSION, I MUST
CALL: 1-800-576-6209 OR WRITE: J.P. MORGAN SERVICES, INC., 500 STANTON-
CHRISTIANA ROAD, PCSG-I/OPS3, NEWARK, DELAWARE 19713.
IN CASE OF ERRORS OR QUESTIONS ABOUT MY ELECTRONIC TRANSFERS
I will telephone you at 1-800-576-6209 or write you at: J.P. Morgan Services,
Inc., 500 Stanton-Christiana Road, PCSG-I/OPS3, Newark, Delaware 19713, as soon
as I can, if I think my statement or receipt contains an error or if I need more
information about a transfer listed on the statement or receipt. You must hear
from me no later than 60 days after you sent me the FIRST statement on which the
problem or error appeared. I must do the following:
. Tell you my name and account number;
. Describe the error or the transfer I am unsure about, and explain as
clearly as I can why I believe it is an error or why I need more
information; and
. Tell you the dollar amount of the suspected error.
. If I tell you orally, you may require that I send you my complaint or
question in writing within 10 Business Days. You will tell me the results
of your investigation within 10 Business Days for ATM Transactions or 20
Business Days for Purchase transactions or any transactions that were made
outside of the United States, the Commonwealth of Puerto Rico or any
political subdivisions thereof ("International Transactions") after you
hear from me and will correct any error promptly. If you need more time,
however, you may take up to 45 days for ATM Transactions or 90 days for
Purchase or International Transactions to investigate my complaint or
question. If you decide to do this, you will credit my Account within 5
business days or if you believe circumstances or my Account history
warrants (10 Business Days if it is a ATM Transaction or 20 Business Days
if it is a Purchase or International Transaction) for the amount I think is
in error, so that I will have the use of the money during the time it takes
you
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to complete your investigation. If you ask me to put my complaint or
question in writing and you do not receive it within 10 Business Days (20
days for Purchase or International Transactions) you may not credit my
Account.
. If you decide that there was no error, you will send me a written
explanation within three Business Days after you finish your investigation.
I may ask for copies of the documents that you used in your investigation.
PREAUTHORIZED CREDITS
If I have arranged to have direct deposits made to my Account at least once
every 60 days from the same person or company, I can call you at 1-800-576-6209
to find out whether or not the deposit has been made.
RIGHT TO STOP PAYMENT AND PROCEDURE FOR DOING SO
If I have told you in advance to make regular payments out of my Account, I can
stop any of these payments.
I must call you at 1-800-576-6209 or write you at J.P. Morgan Services, Inc.,
500 Stanton-Christiana Road, PCSG-I/OPS3, Newark, Delaware 19713, in time for
you to receive my request three Business Days or more before the payment is
scheduled to be made. If I call, you may also require me to put my request in
writing and get it to you within 14 days after I call. You will charge me for
each stop-payment order as stated in the appropriate fee schedule.
I will not be able to stop payments on any Card Transactions because these
transactions are immediately charged to my Account.
NOTICE OF VARYING AMOUNTS
If these regular payments may vary in amount, the person I am going to pay will
tell me, 10 days before each payment, when it will be made and how much it will
be. (I may choose instead to get this notice only when the payment would differ
by more than a certain amount from the previous payment, or when the amount
would fall outside certain limits that I set.)
YOUR LIABILITY FOR FAILURE TO STOP PAYMENT OF PREAUTHORIZED TRANSFER
If I order you to stop one of these payments three Business Days or more before
the transfer is scheduled, and you do not do so, you will be liable for my
actual losses or damages.
FEES
I agree, in addition to any Account charges, to pay service charges or fees for
the privilege of using the Card or Home Banking Services, and you may change the
amount of or institute such charges or fees from time to time. I also agree to
pay any transaction fees that are charged by third parties such as other
financial institutions to use an ATM they own.
YOUR LIABILITY FOR FAILURE TO COMPLETE AN ELECTRONIC FUND TRANSFER TRANSACTION
If you do not complete a transfer or a bill payment to or from my Account on
time or in the correct amount according to these terms and conditions with you,
you will be liable for my actual losses or damages. However, there are some
exceptions. You will not be liable, for instance, if:
. Through no fault of yours, I do not have enough money in my Account to make
the transfer, the money is unavailable or the Account is closed if;
. The ATM where I am making the transfer does not have enough cash or does
not offer the service that I request;
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. My Card has been reported lost or stolen and I am using the reported Card;
. You have reason to believe that the Card Transaction request is
unauthorized;
. My attempt to complete a Card Transaction at an ATM or merchant terminal
which is not a permissible transaction listed above;
. The transaction would exceed security limitations on the use of my Card;
. I have not properly followed software or the Home Banking Services
instructions on how to make a transfer or bill payment;
. I have not given Intuit complete, correct, and current instructions so that
the transfer or bill payment can be made;
. I do not authorize a bill payment soon enough for my payment to be made and
properly credited by the payee by the time it is due;
. Intuit makes a timely bill payment but the payee nevertheless does not
credit my payment promptly after receipt;
. Withdrawals from any of my Accounts have been prohibited by a court order
such as a garnishment or other legal process;
. The ATM, merchant terminal, my Computer, or the Home Banking Services were
not working properly and this problem should have been apparent to me when
I attempted to authorize a transfer or bill payment;
. Circumstances beyond Intuit's or your control prevent making a transfer or
payment from taking place, despite reasonable precautions that Intuit and
you have taken. Such circumstances include telecommunication outages,
postal strikes, delays caused by payees, fires, and floods;
. You had reasonable cause to believe I was trying to defraud you.
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EXHIBIT 99(E)
Total Asset Account Agreements Account Number _____________ TAA
AGREEMENT
This Agreement sets forth the terms and conditions governing the Total Asset
Account (the "TAA") financial service to which the undersigned is applying with
A.G. Edwards & Sons, Inc. ("Edwards"). The undersigned understands that before
the TAA service is provided, it will be necessary for Bank One, Columbus, N.A.,
Columbus, Ohio (the "Bank"), to accept the undersigned's application to open a
checking account and a VISA account (a Card-Check Account) pursuant to which the
undersigned may be provided checks ("Checks") and may be issued one or more VISA
cards ("Card") to be used in connection with the TAA service. An annual fee
will be charged by Edwards for the financial services provided to the
undersigned. the annual fee may be changed at any time upon ten (10) days'
notice to the undersigned. The undersigned understands that before TAA begins
operation, the undersigned's securities margin account must have at least
$10,000 in any combination of cash or securities for an individual or business
TAA.
In consideration of Edwards, or any successor thereof, accepting one or more
accounts of the undersigned (whether designated by name, number or otherwise)
for the purchase, sale or carrying of securities, commodities and options, or
contracts relating thereto, and other property (hereafter "property"), you (the
individual, corporation, or parties involved with this account) agree to the
following:
GENERAL TERMS
1. The TAA is a regular Edwards securities margin account (the "Securities
Account") which is linked to a no-load money market trust the undersigned
designates as primary herein (the "Fund") and a Card-Check Account with
checking and VISA Card services maintained by the Bank. The Securities
Account and the Check-Card Account are collectively referred to as the
Account.
2. The undersigned acknowledges receiving a copy of the Fund prospectus with
the Program Summary Description and the Truth in Lending Disclosure. These
documents shall be referred to in this Agreement as the "Documents."
Unless the context otherwise requires, the term "this Agreement" shall
include the Documents as amended from time to time.
The undersigned agrees that Edwards may amend this Agreement by modifying
or rescinding any of its existing provisions or by adding any new
provision, at any time by sending notice of the amendment to the
undersigned. The undersigned hereby appoints Edwards as its agent in order
to effectuate any such amendment. Any such amendment shall be effective as
of the date established by Edwards.
3. All transactions shall be handled by you in accordance with and shall be
subject to all applicable federal and state laws, rules and regulations;
the constitution, rules, customs and usages of the applicable exchange,
association, market or clearinghouse; and the customs and usages of those
transacting business on such exchange, market or clearinghouse.
This agreement shall be deemed modified as necessary to conform with any
changes in those laws, rules, regulations, constitutions, customs and
usages; as modified, it will remain in full force and effect.
4. Except as stated above, no provision of this printed agreement shall in any
respect be waived, modified, amended or deleted and acceptance of this
agreement and any accounts thereunder by Edwards shall not constitute
ratification of any changes and such acceptance shall not stop Edwards from
asserting and enforcing the original provisions of this agreement unless
such changes are expressly agreed to in a separate document signed by
Edwards' Director of Operations or a designee.
<PAGE>
5. You will settle transactions when due and will maintain with Edwards
collateral in the form of monies or property acceptable to Edwards of such
value as Edwards may require; on demand, you will immediately make payment
on the entire amount or such part as Edwards may require.
6. The following disclosure is required by various regulatory entities but
shall not limit the applicability of the following arbitration provision to
any controversy, claim or issue in any controversy or claim that may arise
between you and Edwards:
a) ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
b) THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO JURY TRIAL.
c) PREARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT
FROM COURT PROCEEDINGS.
d) THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING, AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK
MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
e) THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
f) NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION, OR 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; OR (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.
7. You agree, and, by carrying any account for you, Edwards agrees that all
controversies between you and Edwards and any of Edwards' present or former
officers, directors, agents or employees that may arise for any reason,
shall be determined by arbitration. Any arbitration under this agreement
shall be before the National Association of Securities Dealers, Inc., or
the New York Stock Exchange, Inc., or an arbitration facility provided by
any other securities exchange of which Edwards is a member, or the American
Arbitration Association, or the Municipal Securities Rulemaking Board, in
accordance with the rules pertaining to such organization. You may choose
in the first instance whether arbitration shall be before and in accordance
with the rules of one of the aforementioned arbitration forums by
registered letter or telegram addressed to Edwards at Edwards' office in
St. Louis, Missouri. If you fail to notify Edwards of your specific choice
within five (5) days after you receive from Edwards the request to make
such choice, then Edwards may make the choice of the arbitration forum to
be used to resolve the controversy.
At least one of the arbitrators appointed to hear any controversy to be
settled by arbitration shall be currently employed full time by a member
organization of the New York Stock Exchange, Inc., unless otherwise agreed
in writing before the time of the arbitration.
This arbitration provision shall apply to any controversy, claim or issue
in any controversy arising from events that occurred before, on or after
the execution of this arbitration agreement. This arbitration provision
shall
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be interpreted according to federal law and the Federal Arbitration Act.
The award of the arbitrators, or of the majority of them, shall be final,
and judgment on the award rendered may be entered in any court, state or
federal, that has jurisdiction.
8. NO EDWARDS EMPLOYEE IS AUTHORIZED TO ENTER TRADES FOR YOU WITHOUT YOUR
EXPRESS PRIOR APPROVAL. UNLESS YOU EXPRESSLY AGREE TO THAT AUTHORITY IN A
SEPARATE DOCUMENT SIGNED BY YOU AND EDWARDS' DIRECTOR OF OPERATIONS OR A
DESIGNEE; YOU ALSO AGREE TO IMMEDIATELY BRING ANY UNAUTHORIZED TRADING
ACTIVITY TO THE ATTENTION OF EDWARDS. Your acceptance of a transaction or
position in any of your accounts that was undertaken by an Edwards employee
on your behalf but was not expressly authorized by you before its entry and
not immediately objected to by you after its entry, renders that employee
your agent and precludes you from later denying that the employee was given
authority to enter orders for transactions or positions in your account at
the employee's discretion.
9. Each party executing this agreement or who is authorized to act on behalf
of the account under a separate agreement shall have authority on behalf of
the account, and for the risk and is the name of the account, and each does
hereby appoint the other his or her agent and attorney-in-fact in regard to
the account, to buy, sell (including short sales) and otherwise deal in
stocks, bonds, options and other securities, limited or unlimited, and
commodities for present or future delivery, on margin or otherwise in
accordance with Edwards' terms and conditions; to deposit with, withdraw
and receive payment or delivery from Edwards of money, commodities, stocks,
bonds, contracts for purchase or sale of commodities, and other negotiable
instruments, securities and other property; to execute checks on behalf of
the Card-Check Account; to make purchases of merchandise and services and
receive cash advances, all of which may be done for the Account or for the
individual use or Account of any one of the undersigned and all of which
will be chargeable to the Securities Account.
Each party executing this agreement indemnifies Edwards, its agents and
employees, and covenants to hold Edwards, its agents and employees,
harmless against all obligations, demands, losses or liabilities (including
attorney's fees) by whomsoever asserted, which are suffered, incurred or
paid by Edwards as a result of, or in any way arising out of, or
consequential to, transactions or actions by any other party, either
jointly or severally, or by any other party who is authorized to act on
behalf of the account.
10. Edwards may request and obtain an investigative consumer report indicating
your creditworthiness, credit standing, credit capacity, character, general
reputation, personal characteristics or mode of living. You have the
right, upon written request made within a reasonable period of time from
the date hereof, to receive from Edwards a complete and accurate disclosure
of the nature and scope of the investigation requested.
11. This agreement, its enforcement and the interest charged hereunder shall be
governed by the laws of the state of New York, shall cover individually and
collectively all accounts that you may at any time maintain with Edwards,
shall inure to the benefit of Edwards, any successor or assigns, and shall
be binding on you, your executors, administrators, successors, heirs and
assigns. Provisions concerning the Card/Card-Check account shall be
governed by the laws of the state of Ohio. This agreement shall continue
in effect until your written notice of revocation is received by Edwards'
Director of Operations. Notwithstanding any such revocation, this
agreement shall remain in effect with regard to all transactions entered
into or indebtedness incurred before such revocation and all matters
pertaining thereto.
12. Unless otherwise specified by you, Edwards is authorized to enter orders
for you in its name on any exchange or other market or place where such
business may be transacted for your account and risk. You hereby authorize
Edwards to employ agents on your behalf. The identity of any such agent so
employed by Edwards on your behalf shall be disclosed to you on request.
Edwards shall have no liability to you for the errors and omissions of such
agents who are independent contractors; provided, however, that in any
controversy between
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you and such agents, Edwards shall provide to you, without expense to you,
such records and testimony of the transaction that Edwards has in its
possession.
13. You will examine all statements, confirmations, and other reports or
notices when you receive them from Edwards. Such statements,
confirmations, reports or notices shall be deemed accepted by you as
correct and conclusive if you do not notify Edwards' Customer Service
Department otherwise in writing within ten (10) days after receipt; except
in regard to transactions in options, commodities and contracts relating
thereto, when notice of any discrepancies must be provided within three (3)
days of receipt. Any such notice will be made by you via both telephone
and in written form (facsimile, telegraph, next-day delivery mail, etc.)
directed to Edwards' office in St. Louis, Missouri. You acknowledge that
because of the nature of the markets involved, positions confirmed or
deleted in error or discrepancy to Edwards' attention within the periods
specified above, any responsibility and liability for the loss will be
yours.
14. Edwards shall not be liable to you for any default by a market (Exchange)
on which you may have acquired a position. You understand that Exchanges
may change terms, rules and procedures that may affect markets adversely;
the Exchange may also default on a duty to pay its obligations or may be
unable to take or make delivery of positions traded thereon.
15. Edwards may limit the number of securities, options and commodities, or
contracts related thereto that it will place or hold for your account and
reserves the right to cease accepting orders from you for additional
securities, options and commodities, or contracts related thereto, at any
time.
16. You recognize that Edwards' recommendations are opinions because they deal
with future developments that cannot be predicted with certainty. Edwards
is not obligated to keep you abreast of developments in the market
concerning securities, options and commodities, or contracts related
thereto, and you shall be responsible for remaining informed of those
securities, options, commodities and contracts related thereto.
17. a) Edwards may from time to time make recommendations concerning the
advisability of buying, selling or holding securities, options and
commodities, or contracts relating thereto, or using a trading method
or program. You are aware that Edwards is in the business of
generating brokerage commissions, and, since this is the case, the
more trades you make, the higher will be the amount of commissions
generated. Trading programs may result in a higher number of trades
being generated and commissions charged.
b) Transactions in securities, options and commodities, or contracts
related thereto, and the market activities of Edwards or any of its
officers, employees or shareholders may be inconsistent with Edwards'
recommendations to you.
18. All checks from you that are to be credited to your account with Edwards
shall be payable to "A.G. Edwards & Sons, Inc." Edwards may in its
discretion refuse to accept for your account checks payable to any party
other than you, and, if such checks are accepted, they shall be accepted
for collection only and shall not be considered credited to your account
until paid.
19. Any suit, arbitration proceeding, reparation proceeding, claim or action
against Edwards or its present or past officers, agents or employees shall
be brought and heard in the city where the Edwards branch sales office with
which you dealt is or was located. If the court, arbitration agency or
reparations tribunal does not conduct hearings in that city, then any such
action must be brought and heard in the locale closest to that city in
which the court, arbitration agency or reparation tribunal conducts
hearings. This paragraph shall apply even if you have related disputes
with other parties that cannot be resolved in the same locale.
20. The undersigned may terminate the TAA, upon receipt of written notice of
revocation by the Director of Operations of Edwards from the undersigned.
Notwithstanding any such revocation, this Agreement shall
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continue in effect as to all transactions entered into or an indebtedness
occurred prior to such revocation and all matters pertaining thereto. The
undersigned will remain responsible for any charges to the undersigned's
Securities Account or Card-Check Account whether arising before or after
termination.
Edwards may terminate the undersigned's TAA, including the Securities
Account at any time. Without limiting Edwards' rights in this regard, the
undersigned acknowledges that the deposit of Checks followed by the prompt
removal of funds for the primary purpose of earning dividends on Fund
shares violates this Agreement. If in Edwards' sole judgment, it appears
that the undersigned is so acting, Edwards may terminate the undersigned's
TAA.
If subscription to TAA is terminated for any reason, either by the
undesigned or by Edwards, the undersigned will promptly return all unused
Checks and Cards to Edwards. Failure to return such Checks and Cards to
Edwards may result in a delay in following the undersigned's instructions
as to the disposition of assets in the TAA. Should the TAA be terminated,
Edwards may and is hereby authorized to redeem all Fund shares owned by the
undersigned.
21. You shall be solely responsible for any expense, including attorney's fees,
incurred by Edwards in collection of a deficit from you. You will also be
solely responsible for any expense, including attorney's fees, incurred by
Edwards in defense of an action brought by you seeking rescission of any
agreement between you and Edwards or to recover damages for the actions of
Edwards or its employees.
22. If you are an individual, you represent that, unless Edwards' Director of
Operations has been notified in writing to the contrary, you have reached
the age of majority; are duly authorized to execute this agreement if
acting on behalf of another; are not insolvent; are not an employee of any
securities or commodities exchange, or of any corporation of which any such
exchange owns a majority of the capital stock, or of any member of any such
exchange, or of a member firm, corporation or organization registered with
any such exchange, or of a bank, trust company or insurance company, or of
any corporation, firm or individual engaged in the business of dealing
either as a broker or as principal in securities, bills of exchange,
acceptances or other forms of commercial paper; and are not registered with
any securities or commodities exchange, association or commission; and that
no one except you has an interest in any of your accounts with Edwards.
You agree to notify Edwards' Director of Operations promptly of any change
in your circumstances affecting the foregoing representations.
23. Communications directed to you at the address then appearing on your
account, sent by ordinary mail or delivered to such address, shall be
deemed to have been personally delivered to you whether or not actually
received.
24. Unless otherwise specified, any notice required by this agreement to be
given by you to Edwards shall be addressed to the Director of Operations at
Edwards' Home Office at One North Jefferson, St. Louis, Missouri 61103 or
at such other address as Edwards may instruct.
25. You hereby ratify all transactions and dealings with Edwards before the
execution of this agreement and after that all such transactions and
dealings are subject to all terms and provisions of this agreement as if
they had been subsequent to the execution thereof.
26. If any provision or clause of this agreement is deemed invalid or
unenforceable for any reason, such provision or clause shall be deemed to
be ineffective to the extent of such invalidity or unenforceability but
will not affect the remainder of this agreement, which shall continue in
full force and effect.
27. At Edwards' discretion, it may, without notice to you, transfer or apply
any of your monies or property between or within any of your accounts
(other than from Regulated Commodity Accounts, unless specifically agreed
to by you).
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28. If you fail to make any payment or deliver any property to Edwards when
due, fail to maintain in any of your accounts with Edwards collateral of
sufficient value to meet Edwards' then current requirements, or otherwise
fail to discharge any obligation to Edwards, or if you die, or if Edwards
for any reason deems it necessary for its protection, Edwards is authorized
to sell any securities, commodities or other property in any of your
accounts with Edwards or buy any property that may be short, or otherwise
effect settlement, or cancel any outstanding orders. Any such sale,
purchase, settlement or cancellation may be made at Edwards' discretion and
at its prevailing commission rates on any exchange or market where such
business is transacted, or at public auction or private sale without notice
to you, and without advertisement, tender or demand of any kind made to
you; such notice, advertisement, tender or demand is hereby expressly
waived by you. Edwards may purchase any such property for its own account
or on behalf of anyone else free from right of redemption. You shall
remain liable for any deficiency in any of your accounts. You shall also
be liable for any fines, assessments or other costs levied against Edwards
by any exchange, clearinghouse or regulatory authority resulting from your
failure to deliver or otherwise make available any property sold by Edwards
at your direction. No tender, demand, call or notice by Edwards shall
constitute a waiver of any right to take any other action permitted
hereunder then or in the future. The failure of Edwards to enforce its
rights under this paragraph, this agreement or any other agreement between
you and Edwards shall not act as a waiver of any such rights or preclude
Edwards from later exercising those rights.
29. All monies and property carried by Edwards at any time in any of your
accounts (held individually, jointly or otherwise) other than a Regulated
Commodity Account, or which may at any time be in Edwards' possession or
under its control for any reason, shall be collateral subject to a general
lien and security interest for the discharge of all your obligations to
Edwards, regardless of their nature.
30. Whenever you are indebted to Edwards or have a short position with Edwards,
any property carried by Edwards in any of your accounts may from time to
time and without notice to you be pledged, repledged, hypothecated or
rehypothecated by Edwards, separately or together with the property of
others, either for more or less than the amount of your indebtedness to
Edwards, without Edwards retaining in its possession or under its control
for delivery a like amount of similar property.
31. No arrangements conflicting with Edwards' usual requirements for initial or
maintenance margin shall be binding on Edwards or have any effect unless
expressly agreed to in a separate document signed by Edwards' Director of
Operations or a designee. No investment broker, branch office manager or
branch office employee is authorized to waive or modify Edwards' margin
demands or postpone sell-outs or buy-ins unless agreed to in writing by
Edwards' Director of Operations or a designee.
32. Interest shall be charged on any debit balance in any of your accounts at
rates related to Edwards' then-prevailing broker's call money rate. You
acknowledge receiving from Edwards and examining a statement explaining the
details and the conditions under which interest will be charged, the method
of computing such interest and the conditions under which additional
collateral may be required.
CHECKING/VISA ACCOUNT
The undersigned hereby applies to the Bank for a Card-Check Account and requests
that Checks be provided and that one or more VISA Cards be issued for use with
the undersigned's Card-Check Account (limited to a maximum of two VISA cards for
a business TAA). It is understood that this application for a Card-Check
Account is accepted by the Bank when Checks are provided and, as appropriate, a
Card is issued to the undersigned. The undersigned agrees that by signing,
using, or permitting another to use the Checks or Card, the undersigned will be
bound by the following terms and conditions.
33. The Card remains the property of the Bank and may be canceled by the Bank
at any time without prior notice. The undersigned agrees to surrender any
unused Checks and Card and to discontinue use of the Card-Check Account
immediately upon the request of the Bank or Edwards.
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34. It is understood that the Bank will open the undersigned's Card-Check
Account in the name supplied to the Bank by Edwards that information
concerning transactions in the undersigned's Card-Check Account or the
status of such account will be furnished to the undersigned by Edwards, and
that any error disputes or inquiries are to be directed to the Bank through
Edwards. It is also understood that Checks provided with the undersigned's
Card-Check Account will not be returned to the undersigned after
presentation to the Bank for payment.
35. The undersigned agrees to assume liability for all transactions made by the
undersigned, or by an authorized person, through the use of the Checks or
Card in connection with the undersigned's Card-Check Account. The
undersigned also agrees to pay the reasonable costs and expenses of
collection of any unpaid balance due on the undersigned's Card-Check
Account, including, but not limited to, attorney's fees.
36. Neither the undersigned nor any person authorized to act on behalf of the
undersigned will incur any charge by use of the Checks or Card in excess of
the amount authorized for the undersigned's Card-Check Account Total Inc.,
as established by the Bank based upon information furnished to the Bank by
Edwards. It is understood that the total line established for the
undersigned's Card-Check Account will be the aggregate amount of any
uninvested free credit cash balance in the undersigned's Securities Account
with Edwards, the net asset value of the undersigned's money market trust
shares, and the amount of cash reserve from the available margin loan value
of the securities in the undersigned's Securities Account with Edwards, as
mutually agreed between Edwards and the undersigned; provided, however,
that if the undersigned's Securities Account with Edwards is not a margin
account, then the undersigned's Total Inc. will not include such cash
reserve amount of available margin loan value of such securities. All
Card-Check Account Transactions within the undersigned's Total Inc. will be
paid to the Bank by Edwards from and through the undersigned's TAA, as
provided by this Agreement.
37. In the event Edwards does not pay the Bank for Card-Check Account
transactions, due to transactions exceeding the Total Inc., the Bank may
accept such transactions as an overdraft on the undersigned's Card-Check
Account, which is immediately due and payable to the Bank, plus FINANCE
CHARGES thereon. It is understood that FINANCE CHARGES will be incurred on
the Average Daily Balance of such overdraft at a periodic rate of .0684 per
day (25% ANNUAL PERCENTAGE RATE) from the date the undersigned's Card-Check
Account is overdrawn until paid in full. The Average Daily Balance is
calculated by dividing the total of the outstanding daily balances of
overdrafts by the number of days the Card-Check Account is overdrawn.
Payments will be applied, as of the date of receipt by the Bank, first to
previously billed and unpaid FINANCE CHARGES and then to the balance of
overdrafts. FINANCE CHARGES that accrue after the statement date will
appear on the following periodic billing statement.
The Ohio laws against discrimination require that all creditors make credit
equally available to all creditworthy customers, and that credit reporting
agencies maintain separate credit histories on each individual upon
receipt. The Ohio Civil Rights Commission administers compliance with this
law.
38. In the event of (i) cancellation of the undersigned's Card-Check Account,
(ii) the insolvency, death or termination of the existence of the
undersigned, (iii) the institution of attachment or garnishment proceedings
against the undersigned, (iv) any breach or default of this Agreement by
the undersigned or any person authorized to act on behalf of the
undersigned, or (v) upon the termination by Edwards of the TAA service of
the undersigned, the Card-Check Account will automatically terminate
without notice to the undersigned or to any representative of the
undersigned.
39. Except as provided in paragraph 2 with respect to modification, receipt and
retention of this agreement shall constitute acceptance thereof by Edwards
without signature thereon.
40. The provisions of this agreement shall inure to the benefit of any
successors or assigns of Edwards.
7
<PAGE>
By signing this Agreement, the undersigned acknowledges that:
a) the undersigned has received a duplicate of this Agreement;
b) the undersigned's securities may be loaned to Edwards or loaned out to
others, unless margin privileges are waived (refer to paragraph 30);
c) the undersigned has received the prospectus/summary description;
d) this Agreement contains a binding and enforceable arbitration provision on
this page.
THIS IS A BINDING CONTRACT. READ BOTH SIDES CAREFULLY BEFORE SIGNING.
Dated: 8-14-98 x /s/ Kenneth L. Agee
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(signature)
x /s/ Cindy A. Agee
----------------------
(signature)
[ ] Check here if you do not want maximum Total Inc. (margin) privileges. Your
Total Inc. will consist of only cash and a money market fund balance. No
VISA card will be issued and paragraphs 30 through 32 will not apply.
KEEP CLIENT COPY OF THIS CONTRACT FOR YOUR RECORDS.
8
