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Exhibit 7. 2
GENERAL ACCOUNT AGREEMENT
To: Everen Securities, Inc.
in account with Everen Clearing Corp.
Gentlemen:
In consideration of your accepting one or more accounts of the undersigned, it
is agreed as follows:
1. All transactions under this Agreement shall be subject to the
constitution, rules, regulations, customs, usages, rulings and interpretations
of the exchange or market and its clearing house, if any, where executed, and to
all governmental acts and statutes and to rules and regulations made thereunder
insofar as applicable. Whenever any act or statute shall be enacted, or any
regulation shall be made under any act or statute or any rule or regulation
shall be made by any exchange or market of which you are a member, which shall
be applicable to and affect in any manner or be inconsistent with any of the
provisions hereof, the provisions of this Agreement so affected shall be deemed
modified or superseded, as the case may be, by such act, statute, rule or
regulation and all other provisions of this Agreement and the provisions as so
modified shall in all respects continue and be in full force and effect.
2. All orders for the purchase or sale of any property are given by the
undersigned and executed with the express understanding that an actual purchase
or sale is intended and that it is the undersigned's intention and obligation 4n
every case to deliver certificates or commodities to cover any and all of the
undersigned's sales and in the case of purchases to receive and pay for
certificates or commodities and that the undersigned will do so in compliance
with all applicable regulations.
3. Except as herein otherwise expressly provided, no provision of this
Agreement may be waived, altered, modified, or amended unless such waiver,
alteration, modification or amendment is in writing and signed by a duly
authorized officer of your corporation.
4. All monies, securities, commodities or other property which you may
at any time be carrying for the undersigned or which may at any time be in your
possession for any purpose, including safekeeping, shall be held by you as
security for the payment of any liability of the undersigned to you,
irrespective of whether or not you have made advances in connection with such
securities, commodities or other property, and irrespective of the number of
accounts the undersigned may have with you.
5. All securities and commodities or any other property, now or
hereafter held by you, or carried by you for the undersigned (either
individually or jointly with others) or deposited to secure the same, may be
held in your name or that of any nominee, and may from time to time and without
notice to the undersigned, be carried in your general loans and may be pledged,
re-pledged, hypothecated, or re-hypothecated, or loaned by you to either
yourselves as brokers or to others, separately or in common with other
securities and commodities or any other property, for the sum due to you from
the undersigned or for a greater sum and without retaining in your possession
and control for delivery a like amount of similar securities, commodities, or
other property.
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6. You are authorized to make such advances and to expend such monies
as in your opinion may be required in respect of all transactions hereunder. The
undersigned agrees to pay customary brokerage and commission charges. Debit
balances of the accounts of the undersigned shall be charged with interest in
accordance with your usual custom, and with any increases in rates caused by
money market conditions, and with such other charges as you may make to cover
your facilities and extra services. Credit balances shall not earn interest. It
is understood and agreed that the interest charge made to the undersigned's
account at the close of one charge period will be compounded, that is, added to
the opening balance for the next charge period unless paid, thereby becoming
part of the principal amount and bearing like interest. A statement disclosing
your credit terms currently applicable to margin transactions is set forth as
part of this Agreement, but is subject to change from time to time as set forth
therein.
7. All securities, other property and collateral deposited for the
protection of the undersigned's collateral and/or margin account may be
deposited with the Depository Trust Company or any other recognized clearing
corporation or depository trust company, and may be held in street name and used
there by you until the undersigned shall demand and become entitled to delivery
thereof; you shall have a reasonable time after such a demand for delivery to
ship securities, other property or collateral from New York or from any other
place where they may be to the place where the same are to be delivered to the
undersigned, and shall only be required to deliver securities, other property or
collateral of the same kind and character as originally deposited.
8. You shall not be responsible for delays in the transmission of
orders due to breakdown or failure of transmission or communication facilities,
and you shall not be liable for loss caused directly or indirectly by
governmental restrictions, war, strikes, or any other cause or causes beyond
your reasonable control or anticipation.
9. All orders given by the undersigned for the purchase or sale of
securities or other property, which may be listed on more than one exchange or
market, may be executed on any exchange or market selected by you.
10. Whenever in your discretion you consider it necessary for your
protection, or in the event that one or more of the undersigned by judicially
declared incompetent, or dies, or a petition in bankruptcy or for the
appointment of a receiver is filed by or against one or more of the undersigned,
or an assignment is made by one or more of the undersigned for the benefit of
creditors, or an attachment is levied against one or more of the undersigned's
accounts, or the collateral deposited to protect the undersigned's account is
determined by you in your absolute and uncontrolled discretion, and regardless
of current market quotations, to be inadequate to properly secure the account,
then, in any such case, any one of which shall be a default hereunder, you are
authorized to close out the account in whole or in part and in connection
therewith you may sell any or all the securities and commodities or other
property which may be in your possession, or which you may be carrying for the
undersigned, or you may buy in any securities, commodities or property of which
the account or accounts of the undersigned may be short, or cancel any
outstanding orders in order to close out the account or accounts of the
undersigned in whole or in part in order to close out any commitment made on
behalf of the undersigned. Such sale, purchase or cancellation may be made
according to your judgement and may be made, at your discretion, on the exchange
or other market where such business is then usually transacted, or at public
auction or at private sale without advertising the same and without notice to
the undersigned or to the personal representatives of the undersigned, and
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without prior tender, demand or call of any kind upon the undersigned or upon
the personal representative of the undersigned, and you may purchase the whole
or any part thereof free from any right of redemption, and the undersigned shall
remain liable for any deficiency; it being understood that a prior tender,
demand or call of any kind from you, or prior notice from you, of the time and
place of such sale or purchase shall not be considered a waiver of your right to
sell or buy any securities and/or commodities and/or other property held by you,
or owed you by the undersigned, at any time without prior tender, demand, call
or notice. All costs and expenses of such transaction(s), including commissions
and transfer and stamp taxes, shall be charged to the undersigned.
11. The undersigned understands that you require the maintenance of
certain margin levels in said accounts and that you may, in your discretion,
periodically increase or decrease such requirements. The undersigned will at all
times maintain margins for said accounts in accordance with the then existing
maintenance requirements.
12. You may at any time terminate any accounts of the undersigned with
you and thereupon all amounts advanced by you and other balances owing, with
interest at the current rate, and any and all commissions due under your current
rate schedule, shall be immediately due and payable upon demand. The undersigned
undertakes, at any time upon your demand, to discharge obligations of the
undersigned to you, including obligations with respect to any account guaranteed
by the undersigned, or, in the event of a closing of any account of the
undersigned in whole or in part by you or the undersigned, and/or a similar
closing of any account guaranteed by the undersigned, to pay the deficiency, if
any, and the undersigned agrees to reimburse you for any costs or expenses
incurred by you in collecting such amounts, including reasonable attorney's
fees. No oral agreement or instructions to the contrary shall be recognized.
13. All transactions for or in connection with the account of the
undersigned shall be deemed to be included in a single account notwithstanding
the fact that such transactions may be segregated on your records into separate
accounts, either severally or jointly with others; and at any time and from time
to time, in your discretion, you may without notice to the undersigned, apply
and/or transfer any or all monies, securities, commodities and/or other property
of the undersigned interchangeably between any accounts of the undersigned or
from any of the undersigned's accounts to any account guaranteed by the
undersigned (other than from Regulated Commodity Accounts.)
14. When placing with you any sell order for short account, the
undersigned will designate it as such and hereby authorizes you to xxxx such
order as being "short", and when placing with you any order for long account,
will designate it as such and hereby authorizes you to xxxx such order as being
"long". Any sell order which the undersigned shall designate as being for long
account as above provided, is for securities then owned by the undersigned and,
if such securities are not then deliverable by you from any account of the
undersigned, the placing of such an order shall constitute a representation by
the undersigned that he will deliver them forthwith. Further, in case of the
sale of any security, commodity or other property by you at the direction of the
undersigned and your inability to deliver the same to the purchaser by reason of
failure of the undersigned to supply you therewith in deliverable form subject
to no restrictions on transfer, then and in such event the undersigned
authorizes you, in your discretion to borrow or buy in any security, commodity,
or other property necessary to make delivery thereof, and the undersigned hereby
agrees to be responsible for any loss which you may sustain thereby and any
premiums which you may be required to pay thereon, and for any loss which you
may sustain by
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reason of your inability to borrow or as a result of your buy in of such
security, commodity or other property sold.
15. In all transactions between you and the undersigned, the
undersigned understands that you are acting as the brokers of the undersigned,
except when you disclose to the undersigned by your formal confirmation or
otherwise in writing that you are acting, with respect to a particular
transaction, as dealers for your own account or as broker for some other person.
You may employ sub-brokers or other agents, as your agents or as agents of the
undersigned, in connection with the execution of any order or the consummation
of any other transaction hereunder, and you shall be responsible only for
reasonable care in their selection.
16. Reports of the execution of orders and statements of the accounts
of the undersigned shall be conclusive if not objected to in writing at once.
17. Communications may be sent to the undersigned at the address of the
undersigned indicated on the last page of this Agreement or at such other
address as the undersigned may hereafter give you in writing, and all
communications so sent, whether by mail, telegraph, messenger or otherwise,
shall be deemed given to the undersigned personally, whether actually received
or not.
18. The provisions of this Agreement shall in all respects be construed
according to, and the rights and liabilities of the parties hereto shall in all
respects be governed by the laws of the State of Illinois.
19. The provisions of this Agreement shall be continuous and shall
cover individually and collectively all accounts which the undersigned may open
or reopen with you and shall enure to the benefit of yourselves, your successors
and assigns and shall be binding upon the undersigned, and/or the estate,
executors, administrators and assigns of the undersigned.
20. Any order given to you by the undersigned shall be binding upon the
undersigned and his personal representative until you have actual notice of his
death and notice thereof shall not in any way affect your rights under this
Agreement to take any action which you could have taken if the undersigned had
not died.
21. You shall not be liable for refusing to obey any orders given by or
for the undersigned with respect to an account(s) which has or have been the
subject of attachment or sequestration in any legal proceeding against the
undersigned, and you shall be under no obligation to contest the validity of any
such attachment or sequestration.
22. The undersigned agrees to indemnify and to hold you harmless from
any loss, damage or liability arising out of any transaction in which you act,
directly or indirectly as agent of the undersigned, absent any willful or
grossly negligent conduct.
23. Should any valid federal or state law or final determination of any
administrative agency or court of competent jurisdiction affect any provision of
this Agreement, the provision or provisions so affected shall be automatically
conformed to the law or determination and otherwise this Agreement shall
continue in full force and effect.
24. The undersigned understands in connection with this Agreement an
investigation may be made whereby information is obtained through personal
interviews with neighbors, friends or others with whom he is acquainted. This
inquiry includes information as to his character, general reputation, personal
characteristics and mode of living. The undersigned has the right to make a
written request within a reasonable period of time for a complete and accurate
disclosure of additional information concerning the nature and scope of this
investigation.
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25. Arbitration Disclosures
Arbitration is final and binding on all 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 arbitrator's award is not required to include factual findings or legal
reasoning and any party's right to appeal or seek modification of rulings by the
arbitrators is strictly limited.
The panel of arbitrators will typically include a minority of arbitrators who
were or are affiliated with the securities industry.
It is agreed that any claim, dispute or controversy between us or involving any
affiliate of Everen Securities, Inc. shall be submitted to arbitration conducted
under (i) the provisions of the Constitution and Rules of the Board Of Governors
of the New York Stock Exchange, Incorporated as to any matter, or (ii) with
respect to transactions effected on any other stock exchanges, under the
arbitration rules of such stock exchange, or (iii) pursuant to the code of
Arbitration procedures of the National Association of Securities Dealers,
Incorporated, as the undersigned may elect. The award of the arbitrators will be
final and judgement upon the award rendered may be entered in any court, state
or federal, having jurisdiction. Copies of such arbitration rules may be
obtained from Everen Securities, Inc., or any such organization.
Arbitration must be commenced by service upon the other party of a written
demand for arbitration or a written notice of intention to arbitrate, therein
electing the arbitration tribunal. In the event the undersigned does not much
such election within five (5) days of such demand notice, then the undersigned
authorizes you to do so on behalf of the undersigned.
Credit Terms in Margin Transactions
A finance charge is made by Everen Clearing Corp. ("KCC") for extensions of
credit to its customers for the purposes of enabling them to purchase, carry or
trade in any security. These finance charges are described in KCC's monthly
statements as "interest". The following is a statement concerning the method of
computation of total finance charges on credit extended to customers.
A. The annual rate of the interest charged on net debit balances is
computed at a select rate above the brokers call money rate. The brokers call
money rate is the rate banks charge securities brokers. A higher charge may be
levied against an account depending on various factors such as the evaluation of
the commission income generated by the account, the service required for the
account, etc.
B. Interest charges will be calculated monthly on the adjusted debit
balance in an account using a 360 day year basis. Interest charged is calculated
on a settlement date basis.
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C. Interest rates will be changed without notice to the customer in
accordance with changes in the brokers call money rate. Interest is charged
monthly, just prior to the statement date.
D. The daily net balance is determined by combining the daily closing
statement balances in all general (margin) accounts with any free credit balance
in cash accounts.
E. Any xxxx-to-the-market as a result of a short position, i.e. any
credit that appears in a statement due to short sales (including short sales
against the box) will be used to reduce any debit balance. Since KCC must borrow
the same security in order to deliver it to the buying broker, this credit is
not available to the customer. Therefore, on a daily basis, the market value of
a short sale is debited against the margin balance in order to arrive at the
adjusted debit balance for interest purposes. The daily closing price is used to
determine any appreciation or depreciation of a security sold short which will,
in turn, adjust the daily net balance. This practice is known as
"marking-to-the-market".
F. The amount of interest charges is based on the following formula:
Adjusted Debit Balance Rate Number of Days
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1 X 100 X 360
G. An interest charge (as described in A.) will be charged on all
prepayments resulting from proceeds of sales which are paid to the customer
prior to settlement date of the trade for which negotiable securities have been
received.
H. To the extent permitted by applicable law, all securities in all
accounts are collateral for any debit balances in account with KCC. A lien is
created by these debits to secure the amount of money owed KCC. In accordance
with the terms of the General Account Agreement which is signed below,
securities in accounts can be sold to reduce or liquidate entirely any debit
balances in accounts. The customer may be required to deposit additional
collateral in accordance with the rules and regulations of the appropriate
regulatory bodies and internal requirements. KCC reserves the right to require
additional collateral at any time it is deemed desirable.
I. The net debit balance in an account may be paid in full at any time,
thereby avoiding further interest charges.
J. The undersigned has read the foregoing in its entirety before
signing. Questions about interest charges should be directed to the Investment
Broker.
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BY SIGNING THIS AGREEMENT, I ACKNOWLEDGE THAT MY SECURITIES MAY BE LOANED TO YOU
OR LOANED OUT TO OTHERS TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND
REGULATIONS.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE SET FORTH IN PARAGRAPH
25 ABOVE. BY MY SIGNATURE BELOW, I ACKNOWLEDGE THAT I HAVE READ AND AGREE TO BE
BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT I HAVE RECEIVED
A COPY OF THIS AGREEMENT.
/s/ Xxxxxxx X. Xxxxxxx
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Date Signature
/s/ E. Xxxxx Xxxx /s/ Xxxxxxx X. Xxxxxxx
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Witness Signature
Xxxxxxx X. Xxxxxxx TTEE,
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Xxxxxxx X. Xxxxxxx Trust WY07-5999-0411
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Account Name Branch I.D. & Account Number
0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxx 00000
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Home Address
/s/ Xxxxx Xxx Xxxxxx
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Investment Broker's Signature
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