EXHIBIT 99.h17
AMENDMENT NO. 1 TO PRIME BROKERAGE AGREEMENT, DATED AS OF
SEPTEMBER___, 2005, BY AND BETWEEN XXXXXXX, XXXXX & CO. AND
LONG/SHORT EQUITY FUND, A SERIES OF AMERICAN CENTURY
QUANTITATIVE EQUITY FUNDS, INC.
Reference is hereby made to the New Account Application and Agreement for
Entities (the "PRIME BROKERAGE Agreement"), dated as of September 29, 2005, by
and between XXXXXXX, SACHS & CO. and LONG/SHORT EQUITY FUND, A SERIES OF
AMERICAN CENTURY QUANTITATIVE EQUITY FUNDS, INC., to which this Amendment No. 1
is attached and made a part thereof. The Prime Brokerage Agreement is hereby
amended and supplemented as of September 29, 2005 as follows:
NEW ACCOUNT AGREEMENT
SECTION 3. GENERAL LIEN; DELIVERY OF COLLATERAL.
In the fourth line of Section 3, delete the words "by GS" and replace them with
the words "in the Special Custody Account on behalf of GS&Co."
In lines 5-7 of Section 3, delete the phrase "and all rights Client may have
against GS" and replace with "and all of Client's rights to or under any
agreement with GS".
SECTION 5. DEFAULT.
In the fifth line of Section 5, delete the phrase "or if for any reason XX xxxxx
it advisable for its protection and replace it with the following:
"or if GS reasonably believes that any creditor of Client is going to take
any action to enforce any material claims it has against Client or its
assets or if for any other reason GS in good xxxxx xxxxx it advisable for
GS' protection."
SECTION 6. INTEREST, FEES.
In Lines 12-14 of Section 6, delete the words "custody or other".
SECTION 9. INFORMATION, REPORTS, STATEMENTS, COMMUNICATIONS.
At the end of the last sentence of the third paragraph of Section 9, insert:
"unless such failure results from GS&Co.'s gross negligence, bad faith or
willful misconduct."
SECTION 11. LOCATES OF BORROWABLE SECURITIES.
In lines 9-10 of Section 11, delete the words "sufficient quantity of securities
appears borrowable" and replace it with the words "broker has reasonable grounds
to believe that the security can be borrowed".
SECTION 18. NOTICE OF BANKRUPTCY, INSOLVENCY, REORGANIZATION, DISSOLUTION,
TERMINATION, INCOMPETENCE & DEATH.
At the end of the last sentence of section 18, delete the words "deem advisable"
and replace with the words "deem reasonably advisable under the circumstances".
SECTION 22. DISCLAIMER OF LIABILITY; INDEMNIFICATION.
In lines 15 to18 of the first paragraph of Section 22, delete the following
words: "or otherwise (including, without limitation, any technology services,
reporting, trading, research or capital introduction services)".
In line 18 of the first paragraph of Section 22, insert the words "or an agent
of" after the words "any person not controlled by".
At the end of the third sentence of the second paragraph of Section 22, insert
the following language: "unless the System Failure related to an Automated
System within GS' direct control and was caused by GS' gross negligence or
willful misconduct; provided, however, that GS will have no liability whatsoever
for (i) any indirect or consequential losses, (ii) circumstances beyond its
reasonable control, including any force majeure event, (iii) the acts of any
clearing facility, clearing house, exchange, central bank or depositary, (iv)
acts of governmental or regulatory authorities or, (v) Client's own acts or
omissions."
SECTION 24. GOVERNING LAW, SUCCESSOR AND ASSIGNS, WAIVER.
In the eighth line of Section 24, insert "or Client" after the words "limit GS".
SECTION 26.
Section 26 is deleted in its entirety and replaced with the following language:
"SECTION 26. CHOICE OF DISPUTE RESOLUTION.
Client agrees that any and all controversies that may arise between
Client and GS, including, but not limited to, those arising out of or
relating to the transactions contemplated hereby, the Accounts
established hereunder, any activity or claim related to Client's
Accounts or the construction, performance, or breach of this New
Account Agreement or any other agreement between Client and GS shall
be settled by means of either arbitration or litigation in accordance
with the following procedures, unless the parties agree to other
procedures in writing when any dispute arises.
a. DISPUTE RESOLUTION MECHANISM. All disputes shall be resolved
by arbitration pursuant to the procedures set forth in
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subparagraph (b) below unless Client shall elect that a dispute be
resolved by litigation, in which case the dispute shall be resolved by
litigation pursuant to the procedures set forth in subparagraph (c)
below. Client shall make such election either (i) by instituting
litigation if neither party has already commenced arbitration
proceedings, or (ii) by electing to proceed by litigation in writing
by overnight mail or registered mail, addressed to GS&Co. at its
main office within ten (10) days of notification that GS&Co. has
taken the first step in the commencement of arbitration proceedings.
b. ARBITRATION. This New Account Agreement contains a predispute
arbitration clause. By signing an arbitration agreement, the parties
agree as follows:
1. All parties to this New Account Agreement are giving up the
right to xxx each other in court, including the right to a
trial by jury, except as provided by the rules of the
arbitration forum in which a claim is filed.
2. Arbitration awards are generally final and binding; a
party's ability to have a court reverse or modify an
arbitration award is very limited.
3. The ability of the parties to obtain documents, witness
statements and other discovery is generally more limited in
arbitration than in court proceedings.
4. The arbitrators do not have to explain the reason(s) for
their award.
5. The panel of arbitrators will typically include a minority
of arbitrators who were or are affiliated with the
securities industry.
6. The rules of some arbitration forums may impose time limits
for bringing a claim in arbitration. In some cases, a claim
that is ineligible for arbitration may be brought in court.
7. The rules of the arbitration forum in which the claim is
filed, and any agreements thereto, shall be incorporated
into this New Account Agreement.
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Arbitration shall be conducted before The New York Stock
Exchange, Inc. ("NYSE") or NASD Dispute Resolution ("NASD-DR"),
or, if the NYSE and NASD-DR decline to hear the matter, before
the American Arbitration Association, in accordance with their
arbitration rules then in force. The award of the arbitrator
shall be final, and judgment upon the award rendered may be
entered in any court, state or federal, having jurisdiction.
No person shall bring a putative or certified class action to
arbitration, nor seek to enforce any pre-dispute arbitration
agreement against any person who has initiated in court a
putative class action or who is a member of a putative class who
has not opted out of the class with respect to any claims
encompassed by the putative class action until: (i) the class
certification is denied; (ii) the class is decertified; or (iii)
Client 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 New Account
Agreement except to the extent stated herein.
c. LITIGATION. Any litigation commenced pursuant to this
subparagraph must be instituted in the United States Court for the
Southern District of New York, or in the event such court lacks
subject matter jurisdiction, the New York Supreme Court for the County
of New York. Client consents to personal jurisdiction in New York for
purposes of such litigation. Any right to trial by jury with respect
to any claim or action is hereby waived by all parties to this
agreement."
I. PRIME BROKERAGE SUPPLEMENT
SECTION 5. REPORTING OF TRADE INFORMATION; AFFIRMATION AND SETTLEMENT.
Begin the second sentence of the third paragraph of Section 5, with the
following words: "Provided GS&Co. has made and documented the locate of the
securities prior to effecting the short sale,".
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SECTION 11. TIMELY SETTLEMENT.
In the last line of Section 11, after the word "and" insert "absent GS&Co.'s
gross negligence, fraud or willful misconduct, ".
SECTION 13. PRIME BROKER CEASING TO ACT.
In line 6 of Section 13, change the word "promptly" to "as promptly as
possible".
GENERAL
1. Except as expressly amended and supplemented hereby, the Prime Brokerage
Agreement remains in full force and effect.
2. In the event of any conflict between the terms of this Amendment and the
terms of the Prime Brokerage Agreement, the terms of this Amendment shall
prevail.
3. Any capitalized terms used but not defined herein shall have their respective
meanings as set forth in the Prime Brokerage Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
to the Prime Brokerage Agreement as of the date specified above.
LONG/SHORT EQUITY FUND, A SERIES OF AMERICAN CENTURY
QUANTITATIVE EQUITY FUNDS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
Date: September 28, 2005
Address: 0000 Xxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Managing Director
Date: September 29, 2005
Address: 1 Xxx Xxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 212-493-0987
Accepted and Agreed:
AMERICAN CENTURY INVESTMENT MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Date: September 29, 2005
Address: 0000 Xxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
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