BANK SERVICE AGREEMENT
Agreement ("Agreement") made this, the 21st day of April, 1997, between R H
Investment Corporation, Inc. (hereinafter referred to as "RHI") and Mercantile
National Bank (hereinafter referred to as "Bank").
W I T N E S S E T H:
WHEREAS, the Bank desires to make a broad array of securities and
investment services available to its Customers (hereinafter referred to as
"Customers"); and
WHEREAS, RHI desires to provide the Bank's Customers with such securities
and investment services.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties covenant and agree as follows:
1. The Bank and RHI each agree that they will share with the other such
information regarding the Customer, as may be reasonably necessary to carry
out the intent of this Agreement.
2. SERVICES TO BE PERFORMED BY RHI - RHI may accept, establish, and maintain
securities and other investment accounts for Customers of the Bank in
conformity with its policies, as may be changed from time to time by RHI,
and in accordance with all applicable rules, regulations, laws, and
procedures, including those pursuant to the Securities Exchange Act of
1934, and the National Association of Securities Dealers, Inc., and such
other regulatory authorities as to which RHI may be subject.
a.) RHI will cause to be prepared, printed, and mailed; monthly statements
and confirmations to the accounts, as shown on the books and records
of RHI.
b.) RHI will comply with any, and all, prospectus delivery requirements
relating to options or other securities.
c.) RHI will maintain books and records of all transactions executed
through it, in accordance with any applicable rules, regulations or
laws, in conformity with industry standards.
d.) RHI will provide any required information pursuant to federal, state
or local tax laws, rules, or regulations, as may be in effect from
time to time, and shall be responsible for causing the withholding of
dividend payments as may be required, pursuant to federal law.
e.) RHI will comply with Bank policy pertaining to the Investment Services
Division and all applicable bank regulatory guidelines for retail non
deposit investment sales.
f.) RHI will provide the Bank with all necessary material and forms
required for its Customers to open and maintain securities and other
investment accounts with RHI, and RHI shall be responsible for the
compliance of such items with all applicable laws, rules or
regulations.
f.) RHI will designate, which designation may be changed form time to time
by RHI, an individual to whom the Bank may address inquiries about the
implementation and
maintenance of this agreement, and such accounts as shall be opened
pursuant hereto.
g.) RHI reserves the right, at its sole discretion, to accept or reject
any accounts for any Customer of the Bank, any order from any such
Customer of the Bank, whether said Customer has an existing account
with RHI or not, and to terminate any account previously accepted by
RHI for such Customer. RHI agrees that it will not act unreasonably
in exercising such discretion.
h.) ORDERS - RHI shall be responsible for screening orders prior to
execution, acceptance or rejection of such orders, errors in execution
and settlement of Customer contracts;
i.) RESTRICTED SECURITIES - RHI shall be responsible for its own
compliance with, and the obtaining of, information on any sale of
restricted/control stock.
3. SERVICES TO BE PROVIDED BY THE BANK - The bank will use its best efforts,
with its Customers, to promote, develop, and maintain accounts with RHI.
The Bank will render all reasonable assistance to its Customers, as shall
be necessary in order to open accounts on their behalf with RHI.
a.) The Bank shall make available to its Customers appropriate new account
forms and such documentation as shall be necessary to open and
maintain accounts with RHI. The Bank will render all reasonable
assistance to its Customers as shall be necessary in order to open
accounts on their behalf with RHI.
b.) The Bank will perform only such clerical and ministerial functions as
shall be necessary to open and operate accounts on behalf of its
Customers, unless those Bank employees, performing more than clerical
or ministerial functions, are duly qualified and registered with RHI
as registered representatives, pursuant to the appropriate regulatory
requirements.
c.) Bank agrees that no employee of the bank shall receive commission
related compensation for any brokerage activities unless such employee
is duly licensed and registered with RHI.
d.) The Bank shall clearly identify RHI as the entity performing all such
brokerage services, and will further advise its Customers that such
services are being provided by RHI on a fully disclosed basis.
4. REPRESENTATIONS AND WARRANTIES OF RHI - RHI represents and warrants as
follows:
a.) RHI is a member, in good standing, of the National Association of
Securities Dealers, Inc.
b.) RHI is and, during the term of this Agreement, will remain duly
licensed and in good standing as a broker/dealer under applicable
federal and state laws and regulations.
c.) RHI has the requisite authority, in conformity with all applicable
laws and regulations, to enter into and perform the services
contemplated by this Agreement.
d.) RHI is in compliance with and, during the term of this Agreement, will
remain in compliance with the capital and financial reporting
requirements of each national securities exchange or association of
which it is a member, the Securities and Exchange Commission, and in
each state in which it is licensed.
e.) RHI will keep confidential any information not otherwise generally
available to the public, which it may acquire as a result of this
Agreement regarding the business and affairs of the Bank. RHI will
treat the names of account holders and Customers as confidential, and
shall not provide such names to third parties, other than its
corporate affiliates, as shall be
reasonably necessary to implement this Agreement, except as authorized
in writing, by the Bank, or the Customer, or as required by applicable
statutes, rules or regulations. The provisions of this paragraph
shall survive the termination of this Agreement.
f.) RHI has full legal right, power and authority to enter into and
perform this Agreement, and this Agreement has been duly authorized,
executed and delivered by RHI and constitutes a legal, valid and
binding Agreement of RHI.
g.) RHI is authorized to contact the customer directly to service the
accounts and activities contemplated by this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF BANK - Bank represents and warrants as
follows:
a.) The Bank has full legal right, power, and authority to enter into and
perform this Agreement, and that this Agreement has been duly
authorized, executed, and delivered by the Bank, and constitutes a
legal, valid and binding obligation of the Bank. The Bank has all of
the requisite authority and conformity, with applicable law and
regulations, to enter into this Agreement.
b.) The Bank is entering into this Agreement pursuant to an exemption from
registration as a broker/dealer, as provided by Rule 3b-9, promulgated
pursuant to the Securities Exchange Act of 1934, as amended. It will
continue to qualify for such exemption, or it will be duly registered
as a broker/dealer throughout the term of this Agreement.
c.) The Bank is, and will remain, in compliance with all applicable laws,
rules and regulations that may apply to it from time to time by any
state blue sky law, banking laws, or other applicable requirements of
regulatory bodies or agencies having jurisdiction.
d.) The Bank shall not permit any activity on its behalf, or by its
employees, insofar as such acts may relate to this Agreement, which is
not in compliance with all applicable laws, rules, and regulations of
federal, state and local law.
e.) The Bank shall keep confidential any information not otherwise
generally available to the public, which it may acquire as a result of
this Agreement regarding the business affairs of RHI, which
requirement shall survive the termination of this Agreement.
6. DESIGNATION OF ACCOUNTS - RHI shall maintain, on its books and records, a
notation of each account opened with a Customer of the Bank. Not less than
annually, RHI will forward to the Bank, a list of all such accounts which
have been opened with Customers of the Bank, and the Bank, within thirty
days of receipt of such list, shall verify to RHI the accuracy of such
list. The purpose of the preparation and verification of this list is for
the Bank to be able to verify that it is being paid the fees to which it is
entitled, pursuant to this Agreement, and for RHI to verify that the
persons or entities with whom it is dealing are, in fact, Customers of the
Bank.
7. SUPERVISORY RESPONSIBILITY
a.) EMPLOYEES - The Bank shall have the sole and exclusive responsibility
for supervising activities of its employees involved in carrying out
the functions encompassed in this Agreement. RHI shall have the sole
and exclusive responsibility for supervising the activities of its
employees involved in the activities encompassed by this Agreement.
In the event that there are employees who are dually employed by the
Bank and RHI, the Bank shall have supervisory responsibility for the
employees' bank related activities and RHI shall have supervisory
responsibility for the employees' securities related activities.
b.) CUSTOMERS - RHI shall have sole responsibility for complying with the
requirements of knowing Customers with whom it is dealing, knowing
their investment objectives and rendering investment advice to such
Customers, to the extent that such investment advice may be given.
8. INDEMNIFICATION - RHI shall indemnify and hold Bank harmless against any
losses, claims, damages, liabilities or expenses (which shall include, but
not be limited to, all costs of defense and investigation, and all
reasonable attorney's fees), to which the bank may be subject, insofar as
such losses, claims, damages, liabilities or expenses arise out of, or are
based upon, any of the following:
a.) The gross negligence or willful misconduct of RHI or its employees to
perform any of its obligations under this agreement or any act or
omission in connection herewith..
b.) The failure of RHI to perform its obligations under this Agreement,
including the provisions of the Independent Registered Representative
Agreement for each bank employee registered with RHI;
c.) The loss of securities or cash after receipt by RHI, prior to receipt
of securities or cash by the Bank from RHI;
d.) The operation of margin accounts in a manner not in conformity with
applicable laws, provided that such lack of conformity is not the
result of the failure by the Bank to follow instructions of RHI, as
provided herein;
e.) Failure of RHI to remain a duly licensed broker/dealer in good
standing under applicable law;
f.) Failure of the forms and materials, provided by RHI in connection to
the services contemplated hereunder, to comply with any applicable
securities laws, regulations and rules;
g.) Failure of any marketing materials, which RHI approves, to comply with
any applicable securities laws, regulations and rules;
h.) Failure of RHI to comply with Bank policy pertaining to the Investment
Services Division and all applicable bank regulatory guidelines for
retail non deposit investment sales.
9. The Bank shall indemnify and hold RHI harmless against any losses, claims,
damages, liabilities or expenses (which shall include, but not be limited
to, all costs of defense and investigation, and all attorney's fees) to
which RHI may become subject, insofar as such losses, claims, damages,
liabilities, or expenses arise out of, or are based upon, any of the
following:
a.) The gross negligence or willful misconduct of the Bank or its
employees to perform any of its obligations under this agreement or
any act or omission in connection herewith.
b.) Failure of the Bank and/or its employee/representative to
satisfactorily perform its obligations under this Agreement and the
Independent Registered Representative Agreement;
The parties agree that upon receipt of any claim or notice of any action
prompt written notice of such claim or action shall be communicated to all
parties to this Agreement. Upon assumption by any party of the defense of
a claim or action by counsel reasonable acceptable to the indemnified party
within the scope of its indemnity, such party shall not thereafter be
responsible for legal, accounting or paralegal expenses of the indemnified
party. Any indemnified party may at its own expense retain
counsel and the indemnifying party and its counsel shall reasonably keep
informed any such additional counsel selected by an indemnified party.
10. FEES AND COMMISSIONS;
a.) RHI will distribute fifty percent (50%) of "net commissions" to the
Bank received by it on all transactions of RHI at a Bank branch in
connection with existing and future customers through the Bank. Such
fees shall be paid on a monthly basis and shall include fees and
commissions generated by transactions in branch office customer
accounts payable to and received by RHI. RHI shall exercise
reasonable and diligent efforts to collect all fees and commissions
due it in connection with such transactions. "NET COMMISSIONS" for
purposes of this agreement is defined to include commissions and fees
net of all clearing and brokerage charges set forth in "10c" below and
any direct cost mutually agreed upon by the Bank and RHI.
b.) Employees of the Bank will receive discounts on all personal
securities trades in their accounts.
c.) The following schedule sets for the total commission and brokerage
charges for securities transactions executed through RHI. This
schedule is subject to change upon written notice by RHI to the Bank
or pursuant mutual agreement by the parties hereto.
Order Variable Charges
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Listed: $25.00 + $0.20/share (Market orders 1-4, 999 shares)
Stocks + $0.30/share (Limit orders 1-4, 999 shares) or
+ $0.25/share (Market or Limit 5,000 shares and over)
Bonds $50.00
OTC Principal:
Stocks $35.00 + $0.25/share (Market or Limit orders on shares under $5,000)
+ $0.150/share (5,000 and over)
GNMA $50.00
Muni $50.00
Corporate $50.00
Treasury $50.00
Syndicate $50.00
Mutual Funds:
Load $50.00
No-Load $50.00
Exchange Fee $50.00
11. TERM, TERMINATION, EVENT OF DEFAULT - This Agreement shall continue for an
initial term of two (2) years form the date first executed and may be
canceled by either party upon ninety (90) days written notice of
termination to the other party. Notwithstanding the foregoing, the Bank
may terminate this Agreement effective immediately, if the Bank's decision
is a result of an order by a court or regulator, or is made as a result of
litigation, challenging the offering of this service in which the Bank is a
party defendant.
During the term of this Agreement, the Bank will not offer or promote the
services contemplated by
the Agreement through or by any broker or similar provider other than RHI.
In the event of termination of this Agreement, RHI agrees to release to the
Bank, at the Bank's request, all information the Bank may reasonably
require to continue servicing such Customers. RHI may notify and service
the Bank's Customers, if the Bank terminates the service contemplated by
this Agreement, and the Bank does not, within ninety (90) days thereafter,
provide or arrange for similar services to be provided to its Customers.
Customers may terminate their accounts at any time.
In the event of a challenge by a regulatory body, individual, or other
entity relating to the legality of the performance, by either party, of its
obligations under the provisions of the Agreement, which challenge may
impact the ability to make payments to the Bank hereunder, then the
amounts which would have been paid to the Bank hereunder shall be held in
escrow by RHI, pending resolution of such challenge. If the making of such
challenge is terminated by a settlement agreement, which does not preclude
or limit the making of such payments, such escrow funds will be paid over
to the Bank, with interest; the escrow funds are to be invested in an
account at any federally insured national bank. If the making of such
payment is ultimately determined to be impermissible, or is precluded or
limited pursuant to a settlement agreement relating to such challenge, such
amounts shall be retained by RHI; and the parties hereto shall discuss the
disposition of such amounts, consistent with the original intent of this
Agreement, and the determination of impermissibility of settlement.
12. MISCELLANEOUS - Neither the Bank nor RHI shall hold itself out as an agent
of the other, or any of the subsidiaries, or the companies controlled
directly or indirectly by, or affiliated with, the other.
Neither the Bank nor RHI shall, without having obtained prior approval of
the other, (which approval shall not be unreasonably withheld), distribute
solicitation material, place or agree to place any advertisement in any
manner that makes reference to the other and/or any of the services
embodied in this Agreement.
This Agreement shall inure to the benefit of, and be binding upon, the
successors and assignees of the parties hereto. This Agreement may not be
assigned by any party without the prior written consent of the other
parties. Neither this Agreement, nor activity hereunder, is intended to be
and shall not be treated as, a general or limited partnership, association
or joint venture.
Neither party hereto shall use any service mark, trade name, or trademark
of the other party without the prior written consent of the other, which
consent shall not be unreasonably withheld.
Each party shall have the exclusive right to any such name or mark
developed by it in connection with services performed by it under this
Agreement.
For the purposes of any and all notices, consents, directions, approvals,
requests or other communications required or permitted to be delivered
hereunder:
If to RHI, as follows: R H Investment Corporation, Inc.
Attn: A. L. "Bud" Byrnes, III
15760 Ventura Blvd., Suite 2040
Encino, CA 91436
If to Bank, as follows: Mercantile National Bank
1840 Century Park East
Los Angeles, CA 90067
This Agreement shall be construed in accordance with the laws of the State of
California.
Any disputes under this Agreement, including interpretation of its terms and
conditions, and any rights and obligations of the parties hereunder shall be
arbitrated in accordance with the Rules of the N.A.S.D. with such arbitration to
occur in Los Angeles, California.
All obligations of the parties herein with respect to matters through the date
of termination of this Agreement shall survive the termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as delivered as of the day and year first above written.
R H INVESTMENT CORPORATION, INC. MERCANTILE NATIONAL BANK
By /s/ A.L. "BUD" BYRNES, III By /s/ JOSEPH W. KILEY III
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A.L. "Bud" Byrnes, III Joseph W. Kiley III
Chief Executive Officer Executive Vice President & CFO