EXHIBIT 99.h15
G. NEW ACCOUNT AGREEMENT
This agreement ("NEW ACCOUNT AGREEMENT") sets forth the respective rights and
obligations of Xxxxxxx Xxxxx and the legal entity identified in the New Account
Application and anyone else on whose behalf this New Account Agreement has been
signed ("CLIENT") in connection with Client's account. As used herein, the term
"ACCOUNT" refers to each and every account (cash, margin or otherwise) that
GS&Co. has established in Client's name, or in Client's name together with
others, or in which Client has a beneficial interest, now or in the future. The
term "GS" or "XXXXXXX SACHS" refers, collectively and individually, to Xxxxxxx,
Xxxxx & Co. ("GS&Co."), its present and future affiliates, and their
respective partners, officers, directors, employees and agents.
Both the New Account Agreement and any applicable Supplements are subject to
GS&Co. approval. GS&Co. and Client hereby agree to the following with
respect to any of Client's Accounts with GS&Co. and all transactions with
GS.
1. OWNERSHIP. Client represents that no one except the Client has a direct
beneficial interest in Client's Account unless such interest is revealed in the
title of such Account or is otherwise disclosed to GS in writing and in any such
case, Client has the interest indicated in such title. Client warrants it will
inform GS&Co. of any changes in the information supplied to GS&Co. in
connection with the establishment and maintenance of an Account for Client.
Client agrees that all funds, securities and other property held for the account
and the proceeds thereof shall be held for the Account in the manner indicated
in the account title, with all the legal and equitable rights of every nature
and kind, and subject to all the obligations and conditions, that such form of
ownership imposes. As used herein, the term "SECURITIES AND/OR OTHER PROPERTY"
shall include securities and other property currently in or in the future held,
carried or maintained by GS, or in the possession or control of GS, in or for
any of Client's current or future Accounts, including any Account in which
Client may have an interest, and regardless of the purpose for which the
securities and other property are so held, carried, maintained, possessed or
controlled.
2. EXCHANGE OR MARKET. Client's Account and transactions effected and/or
executed through the Account will be subject to and shall be in accordance with
the rules and customs of any applicable national securities exchange, electronic
communication network, national securities association, alternative trading
system, contract market, derivatives transaction execution facility or other
exchange or market (domestic or foreign) (each an "EXCHANGE" and collectively
"EXCHANGES") and their respective clearing houses, as well as any applicable
self-regulatory organization, if any, where the transactions are executed, or
that otherwise apply to Client's Account or transactions, and in conformity with
applicable law and regulations of governmental authorities and future amendments
or supplements thereto, and Client agrees to use the Accounts only in accordance
with such rules, customs, laws and regulations. Client understands that the
Exchanges have the right to break any executed transaction on various grounds,
including if the executed transaction was, in their opinion, "clearly
erroneous," and GS will not be liable for such broken transactions.
3. GENERAL LIEN: DELIVERY OF COLLATERAL. Client hereby grants a first priority
perfected security interest in, and right of setoff against, all securities and
other property, and the proceeds thereof, and all obligations, whether or not
due, which are held, carried or maintained by GS or in the possession or control
of GS or which are, or may become, due to Client (either individually or jointly
with others or in which Client has any interest) and all rights Client may have
against GS as security for the performance of all Client's obligations to GS.
Client further agrees that GS may, in its discretion at any time and from time
to time, require Client to deliver collateral to margin and secure Client's
performance of any obligations to GS. Such collateral shall be delivered, upon
demand, in such amount and form and to such account or recipient as GS shall
specify. GS may, in its discretion and without notice to Client, deduct any
amounts from Client's Account and apply or transfer any of Client's securities
and other property interchangeably between any of Client's Accounts, each of
which constitutes unconditional security for all obligations of Client. Client
acknowledges that GS&Co. and its present and future affiliates act as agents
for each other in respect of the assets subject to the security interest as
described above and that GS&Co. and each such affiliate shall comply with
any entitlement orders or instructions originated by any of them with respect to
such assets or distribute any value in respect of any such assets at the
direction of any of them, in each case without any further consent of Client.
For purposes of Articles 8 and 9 of the New York Uniform Commercial Code
("UCC"), to the extent that Client has any control with respect to any such
assets, upon the occurrence of a Close-Out Event as defined below, Client shall
no longer have any control over such assets. GS&Co. and each such affiliate
and Client agree that all such assets credited to any securities account
maintained on the books of GS&Co. or any such affiliate shall be treated as
a financial asset for purposes of the UCC. GS&Co. and each such affiliate
hereby notify each other of, and each of them acknowledges, the first priority
perfected security interest granted by Client hereunder. The Client (and each
person acting on the Client's behalf) agrees that any assets pledged as
collateral by the Client in connection with any transaction entered into under
this New Account Agreement will not constitute "plan assets" under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of
the Internal Revenue Code of 1986 (the "CODE").
4. PAYMENT AND SETTLEMENT. Client agrees to pay on demand all balances
(including accrued but unpaid interest thereon) and any other obligations owing
with respect to Client's Account. Client agrees that all cash account
transactions will be handled on a cash basis and Client shall pay for any
security purchased for Client's cash account, and deliver any securities sold
for Client's cash account, on or before the settlement date. Client warrants
that for all cash accounts, no sale of securities is contemplated before the
securities are paid for as provided above and that each item sold will be owned
by Client at the time of sale.
5. DEFAULT. If Client defaults in the performance of any obligation under any
transaction or agreement with GS, or becomes bankrupt, insolvent or subject to
any voluntary or involuntary bankruptcy, reorganization, insolvency or similar
proceeding, if the security interest hereunder is not or ceases to be a first
priority perfected security interest, or if for any reason XX xxxxx it advisable
for its protection (each a "CLOSE-OUT EVENT"), GS may, without notice or demand
to Client, and at such times and places as GS may determine, cancel, terminate,
accelerate, liquidate and/or close-out any or all transactions and agreements
between Client and GS, sell or otherwise transfer any securities or other
property which GS may hold for Client or which is due to Client (either
individually or jointly with others) and apply the proceeds to the discharge of
Client's obligations, set-off, net and recoup any obligations (whether physical
or financial and whether or not then due) to Client against any obligations
(whether physical or financial and whether or not then due) to GS, exercise all
rights and remedies of a secured creditor in respect of all collateral in which
GS has a security interest under the UCC (whether or not the UCC is otherwise
applicable in the relevant jurisdiction) or right of set-off, cover any open
positions of Client (by buying in or borrowing securities or otherwise) and take
such other actions as XX xxxxx appropriate, provided that if applicable law
would stay or otherwise impair the ability of GS to take any such action upon
any such bankruptcy, reorganization, insolvency or similar proceeding, GS will
be deemed to have taken such action with respect to the cancellation,
termination, acceleration, liquidation and/or close-out of transactions, and the
application of appropriate set-offs, and if and to the extent XX xxxxx it
appropriate, the sale or disposition of securities or other property of Client,
the exercise of rights of a secured creditor, and the application of proceeds
immediately prior to such bankruptcy, reorganization, insolvency or similar
proceeding. Client shall remain liable for any deficiency and shall promptly
reimburse GS for any loss or expense incurred thereby, including losses
sustained by reason of an inability to borrow any securities or other property
sold for Client's Account. Client agrees to immediately notify GS&Co. upon
the occurrence of a Close-Out Event, but the failure to provide such notice
shall not prejudice GS' right to determine that a Close-Out Event has occurred.
6. INTEREST, FEES. Client agrees to pay interest charges which may be imposed by
GS&Co. in accordance with GS&Co.'s usual custom, with respect to late
payments in conjunction with any transaction, including for securities
purchased, in Client's Account and prepayments in Client's Account (i.e., the
crediting of the proceeds of sale prior to settlement date or prior to receipt
by GS&Co. of the item sold in good deliverable form). Client acknowledges
receipt of the attached supplement entitled "Interest Charges and Margin
Requirements Disclosure Statement" and a side rate letter, if applicable, and
agrees to be bound thereby. Client agrees to pay promptly any amount which may
become due in order to meet requests for additional deposits or marks to market
with respect to any transactions including unissued securities purchased or sold
by Client. Client agrees to pay promptly any custody or other fees which may be
imposed by GS&Co. with respect to the account. Client authorized GS&Co.
to automatically debit Client's Account in payment of any charges posted to the
Account. Except as required by applicable law, each payment by Client, and all
deliveries of margin or collateral, under this New Account Agreement shall be
made, and the value of any margin or collateral shall be calculated, without
withholding or deducting any taxes, levies, imposts, duties, charges,
assessments or fees of any nature, including interest, penalties and additions
thereto that are imposed by any taxing authority ("TAXES"). If any Taxes are
required to be withheld or deducted, Client shall pay such additional amounts as
necessary to ensure that the actual net amount received by GS is equal to the
amount that GS would have received had no such withholding or deduction been
required. With respect to payments by GS to Client under this New Account
Agreement, Client will provide GS with any forms or documentation reasonably
requested by GS in order to reduce or eliminate withholding tax thereon. GS is
hereby authorized to withhold Taxes from any payment made hereunder and remit
such Taxes to the relevant taxing authorities to the extent required by
applicable law.
7. ORDERS. Except as provided in the next sentence, the giving of each sell
order by Client shall constitute a designation of the sale as "long" and a
certification that the securities to be sold are owned by Client and, if such
securities are not in GS&Co.'s possession, the placing of such order shall
constitute a warranty and covenant by Client that Client shall deliver such
securities to GS&Co. on or before settlement date. If Client maintains a
margin account, Client agrees to designate all sell orders as "long", "short",
or "short exempt". Client agrees that GS&Co. may cancel or "buy-in" any sell
order, if such securities are not in the Account, are not timely delivered or
are not in "good deliverable form." In a "buy-in," the party that failed to
deliver the securities, or failed to deliver the securities in good deliverable
form, is accountable for any resulting losses or expenses. See Section 11 below
regarding "mandatory close-outs." Prior to placing an order for the sale or
transfer of any securities subject to Rule 144 or Rule 145(d) or Regulation S
under the Securities Act of 1933 or any other rule relating to restricted or
control securities or securities that are otherwise contractually restricted
("RESTRICTED SECURITIES"), Client agrees that it will advise GS&Co. of the
status of the securities and furnish GS&Co. with the necessary documents
(including opinions of legal counsel, if GS&Co. so requests) to satisfy
legal transfer requirements. Restricted Securities may not be sold or
transferred until they satisfy legal transfer requirements. Client agrees that
even if the necessary documents are furnished in a timely manner, there may be
delays in the processing of Restricted Securities, which may result in delays in
the delivery of securities and the crediting of cash to Client's Account. Client
is responsible for any delays, expenses and losses associated with compliance or
failure to comply with all of the requirements and rules relating to Restricted
Securities, and agrees to hold GS&Co. harmless in connection therewith.
Client acknowledges that when Client or GS sends an order for Client's Account
to an Exchange for execution, such order may be matched with a bid or offer by
affiliated entities of The Xxxxxxx Xxxxx Group, Inc. that are specialists,
market-makers and traders of these products on exchanges and in other
marketplaces. Client hereby consents to the execution of all or part of Client's
orders with such entities.
8. ORDERS, RECOMMENDATIONS, AVERAGE PRICE TRADES. Client acknowledges that, on
occasion, GS&Co. may not be in a position to make a recommendation or render
an opinion with respect to any security. Client acknowledges that GS&Co.
may, in its sole discretion and without prior notice to Client, refuse to accept
or execute any order from Client and, in such case, GS&Co. shall endeavor to
give Client notice of such refusal as soon as practical. Client agrees that
GS&Co., in its sole discretion, may, but is not required to combine or
"bunch" orders for Client's account with orders for other clients' accounts or
accounts in which GS&Co. has beneficial interest and allocate the securities
as proceeds acquired among the participating accounts in a manner that
GS&Co. believes is fair and equitable, and/or in accordance with directions
of Client's agents, if applicable. In addition, there may be circumstances in
which GS does not obtain the same price or execution for all of Client's order
or for the bunched order described above. In either event, Client will receive
an average price for these transactions, unless Client's agent otherwise
instructs. Client agrees that the GS&Co. confirmation price for such
transactions will reference an average price execution and that details will be
furnished upon request.
Client acknowledges that, unless GS&Co. has expressly agreed in writing
otherwise, GS&Co. is acting in the capacity of Client's broker or dealer in
connection with any transaction executed for or with Client's Account and not as
a financial adviser or a fiduciary, and no advice provided by GS has formed or
shall form a primary basis for any investment decision by or on behalf of
Client. GS may make available certain information about securities and
investment strategies, including its own research reports and market
commentaries as well as materials prepared by others. None of this information
is personalized or in any way tailored to reflect Client's personal financial
circumstances or investment objectives and the securities or investment
strategies discussed might not be suitable for Client. Therefore, Client should
not view the fact that GS is making this information available as a
recommendation to Client of any particular security or investment strategy. To
the extent that Client's transactions differ from a specific recommendation made
by GS, if any, to Client with respect to the security, size, price and timing of
a recommended transaction, or to the extent there have been variations in the
facts relevant to the transaction, Client agrees that GS has no responsibility
for determining the suitability of these transactions to Client.
9. INFORMATION, REPORTS, STATEMENTS, COMMUNICATIONS. Client will promptly
furnish to GS any information (including financial information) about Client
upon GS's request. Client represents (which representation shall be deemed
repeated on each on which this New Account Agreement is in effect) that Client's
financial statements or similar documents previously or hereafter provided to GS
(i) do or will fairly present the financial condition of Client as of the date
of such financial statements and the results of its operations for the period
for which such financial statements are applicable, (ii) have been prepared in
accordance with generally accepted account principles consistently applied and,
(iii) if audited, have been certified without reservation by a firm of
independent public accountants.
Reports or confirmations of the execution of orders and statements of Client's
Account shall be conclusive if not objected to in writing within ten (10) days
after forwarding by GS&Co. to Client by mail, web-reporting or otherwise.
Communications mailed, electronically transmitted or otherwise sent to Client at
the address specified in GS&Co.'s records shall, until GS&Co. has
received notice in writing of a different address and has updated its records
(which update may take up to three (3) business days after receipt), be deemed
to have been forwarded by GS&Co. when sent and the Client waives all claims
resulting from failure to receive such communications.
10. CUSTODIAL ARRANGEMENTS. If GS&Co. acts as custodian for the securities
and other property in Client's Account, GS&Co. is authorized to register
such securities and other property in the name of GS&Co., or any nominee,
including sub-custodians, or cause such securities and other property to be
registered in the name of, or in the name of the nominee of, a recognized
depository or clearing organization. Client understands that when GS&Co.
holds on Client's behalf bonds or preferred stocks that are callable in part by
the issuer, such securities will be subject to an impartial lottery allocation
system in which the probability of Client's securities being selected as called
is proportional to the holdings of all clients of such securities held in bulk
by or for GS&Co. Client further understands that GS&Co. will withdraw
such securities from any depository prior to the first date on which such
securities may be called unless such depository has adopted an impartial lottery
system which is applicable to all participants. GS&Co. is authorized to
withdraw securities sold or otherwise disposed of, and to credit Client's
Account with the proceeds thereof or make such other disposition thereof as
Client may direct. GS&Co. is further authorized to collect all income and
other payments which may become due on Client's securities, to surrender for
payment maturing obligations and those called for redemption and to exchange
certificates in temporary form for like certificates in definitive form, or, if
the par value of any shares is changed, to effect the exchange for new
certificates. It is understood and agreed by Client that although GS&Co.
will use reasonable efforts to effect the authorization set forth in the
preceding sentence, GS&Co. will incur no liability for its failure to do so.
GS&Co. is subject to Exchange rules and regulations that may require it to
forward to its clients certain written materials relating to the securities and
other property in such client's account (including proxy materials). Except as
otherwise required by these rules and regulations, GS&Co. is not otherwise
responsible for obtaining, notifying Client of its receipt of, or forwarding to
Client, any written materials relating to the securities and other property in
Client's Account.
Under SEC Rule 15c3-3, GS&Co. is required to obtain and, thereafter, to
maintain possession or control of customer fully-paid securities and excess
margin securities, as such terms are defined in that rule. If GS&Co.
determines that it does not have sufficient securities under its possession or
control as required (such a condition is referred to as a segregation
deficiency), it is required by that rule to take certain steps to obtain
possession or control, including, without limitation, recalling securities from
loans, and is permitted the period of time set forth in that rule in which to
obtain possession or control. To the extent that GS&Co. has a segregation
deficiency in shares over a record date for a vote, dividend or other corporate
action or distribution, GS&Co. will allocate such deficiency to either (a)
the client(s) to whom such a deficiency is attributed (if any); or (b) if the
deficiency cannot practically be attributed to any particular customer,
GS&Co. will allocate such deficiency to its customers using a random
impartial lottery. Client understands and agrees that GS may change its
allocation method at any time. The customers to whom such deficiency is
allocated will be unable to vote or give consent in respect of such corporate
action.
11. LOCATES OF BORROWABLE SECURITIES. Subject to certain limited exceptions,
before executing a short sale, a broker-dealer is required to make an
"affirmative determination" as to whether the broker-dealer will receive
delivery of the security from the customer or the securities can be borrowed by
the settlement date. This process is commonly referred to as "OBTAINING A
LOCATE." If a sufficient quantity of securities is not available from the
broker-dealer's inventory, the broker-dealer may, among other things, contact
third-party lenders to ascertain whether they have securities available for
lending. If a sufficient quantity of securities appears borrowable, the
broker-dealer may proceed to execute the short sale on behalf of its customer. A
locate is simply an indication that, as of the time the locate is obtained, it
appears that securities will be available for borrowing on the settlement date.
A locate is not a guarantee that securities will actually be available for
lending and delivery on the settlement date or that the lender will not
thereafter require the return of the borrowed securities at any time. If the
securities are not available for borrowing for any reason by the settlement
date, Client, as the seller, will "fail to deliver" to the purchaser. A
purchaser or securities lender may, in addition to other remedies and at any
time after the giving of any required notice, buy-in the securities that were
not timely delivered and Client will be responsible for all losses and costs of
the buy-in. If GS&Co. (i) executes a short sale of any securities on behalf
of Client, (ii) is responsible for settling a short sale on behalf of Client
that was executed at another firm, or (iii) if Client fails to deliver any
securities it has sold in a long sale, GS&Co. is authorized to borrow the
securities necessary to enable GS&Co. to make delivery. Client agrees to be
responsible for any cost or loss GS&Co. may incur in sourcing and
maintaining the borrow, or the cost GS&Co. may incur in obtaining the
securities if GS&Co. is unable to borrow such securities. Client hereby
appoints GS&Co. as its agent to complete all such transactions and
authorizes GS&Co. to make advances and expend monies as are required. In
respect of short positions maintained by Client over a corporate action record
date, GS&Co. will, on the relevant payment date for such corporate action,
if any, charge Client's Account for money or property equal in value to the cost
of such corporate action attributable to Client's short position, including the
costs of any lost tax benefits for the lenders. Client acknowledges that
GS&Co. may source a borrow of securities from its own proprietary accounts
or from customer margin shares. Client is ultimately responsible for the
delivery of securities on the settlement date, the consequences of a failure to
deliver, the timely return of securities borrowed on Client's behalf, and all
costs associated with such borrowings, including costs relating to any corporate
actions.
12. MANDATORY CLOSE-OUT & PRE-BORROW REQUIREMENT. Regulations applicable to
GS&Co. mandate that GS&Co. close-out sale transactions in certain equity
securities for which delivery has not occurred within the period prescribed by
the regulations after the normal settlement date. The close-out is to be
effected by GS&Co. purchasing in the market securities of like kind and
quantity for which delivery is owed. Any loss arising from this close-out will
be for the account of the customer whose positions are closed out. A list of
securities subject to this mandatory close-out requirement is or will be
published by U.S. exchanges and U.S. securities associations for the securities
that trade on that exchange or association.
If such failing to deliver transactions are not closed out, regulations
applicable to GS&Co., upon their effective date, will mandate that, until
such failing to deliver transactions are closed out, GS&Co. (i) not accept
short sale orders for those accounts determined by GS&Co. to have
contributed to the fail unless GS&Co. or the Client has entered into a
bona-fide arrangement to borrow the securities; or (ii) impose a "pre-borrow"
requirement on all short sale orders for the firm's or any client's account.
To the extent that GS&Co. effects a close-out transaction by buying-in
shares as described above, it will allocate the shares so acquired to those of
its clients maintaining short positions on a pro-rata basis. Such allocation
methodology is subject to change at any time in GS&Co.'s sole discretion
based on individual facts and circumstances, provided that, in no case will any
client who obtained a "locate" from GS for such shares be allocated more than
its pro-rata shares of the buy-in.
13. CLOSE-OUT OR LIQUIDATION OF LISTED OPTION POSITIONS. In addition to the
rights granted to GS&Co. under this New Account Agreement and any other
agreement between GS and Client, Client expressly authorizes GS&Co. to
liquidate or close-out any of Client's listed option positions, without notice
to Client and without Client's prior consent, in GS&Co.'s sole and absolute
discretion, (i) if and when Client's open positions exceed applicable position
limits so as to reduce such open positions to a level that is in compliance with
such limits, or (ii) upon the occurrence of a Close-Out Event. Client will bear
and be solely responsible for any losses associated with such a reduction or
liquidation.
14. BUY-IN OF GOVERNMENT SECURITIES. Regulations issued under the Government
Securities Act of 1986 require GS&Co. to initiate buy-in procedures for
mortgage-backed securities that have been purchased for Client and that remain
in a fail-to-receive status for more than 60 calendar days (referred to below as
"FULLY PAID FAILS"). Mandatory buy-ins are also required to complete a sale by
Client (referred to below as "SELL ORDER FAILS") of government securities which
have not been received from Client within 30 calendar days after the settlement
date (or in the case of mortgage-backed securities, 60 calendar days after
settlement date). The Bond Market Association Buy-in Procedures for Mortgage
Backed Securities and the Bond Market Association Buy-in Procedures for
Government Securities permit the use of alternatives other than purchasing
securities (e.g., securities may be borrowed, substituted or bought back) in
closing out fully paid fails and sell order fails and also provide an exemption
for short sales.
15. ADDITIONAL LISTED OPTIONS PROVISIONS; OPTIONS "STYLE," EXERCISE ASSIGNMENT
NOTICES. If Client trades listed option contracts, Client is aware of and agrees
to be bound by all laws and rules applicable to the trading of option contracts.
In particular, Client, either acting alone or in concert with others, agrees not
to violate directly or indirectly (through GS as broker or otherwise), or
contribute to the violation of the position or exercise limits of the Exchanges,
which limits can be obtained by contacting a GS&Co. sales representative.
Client acknowledges that the "style" of an option refers generally to when that
option is exercisable. Specifically, (i) an "American-style" option is an option
that may be exercised at any time (i.e., on a business day in which the option
Exchange on which the option trades is open for trading) prior to its
expiration, (ii) a "European-style" option is an option that may be exercised
only on a specified exercise date (or expiration date) or during a specified
time period before the option expires, and (iii) a "capped" option is an option
that is automatically exercised prior to expiration if the market or Exchange on
which the option trades determines that the value of the underlying interest at
a specified time has reached the "cap price" for the option. Client understands
that exercise assignment notices for option contracts are allocated among
customer short positions pursuant to an automated procedure that randomly
selects from among all customer short option positions, including positions
established on the day of assignment, those contracts which are subject to
exercise. Client understands and agrees that GS may change its allocation method
at any time. Client further understands that all short positions in
"American-style" options are liable for assignment at any time. A more detailed
description of this random allocation procedure is available upon request.
16. TERMINATION. Each party agrees that the Accounts maintained hereunder may be
terminated by either party at any time effective upon the giving of notice of
such termination to the other party. All applicable provisions will survive the
termination of the Accounts and this New Account Agreement. Without limiting the
foregoing, upon any such termination, the provisions of this New Account
Agreement shall remain in effect with respect to all securities and other
property then held in such Accounts, all assets subject to the security interest
hereunder, and all transactions and agreements then outstanding between Client
and GS.
17. POWER AND AUTHORITY. Client (and each person acting on the Client's behalf)
represents and warrants that it has all necessary power and authority to execute
and perform this Agreement and that the execution and performance of this
Agreement will not cause it to violate any provisions in its charter, by-laws,
partnership agreement, trust agreement or other constituent agreement or
instrument, and that neither this Agreement nor any transaction entered into or
contemplated hereunder will violate any applicable law, rule, regulation or
constitutional provision (including, without limitation, any provision of ERISA,
Section 4975 of Code or any tax "qualification" rule under the Code). Client
further represents and warrants that this Agreement, as amended from time to
time, is a legal, valid and binding obligation, enforceable against Client in
accordance with its terms. Each of the persons executing this Agreement on
Client's behalf represents that he or she acting alone has full power and
authority to deal with GS&Co. on Client's behalf without notice to Client or
any other undersigned person. Client agrees that GS will be entitled to act upon
the instructions of any officer, director or employee of the Client having
actual or apparent authority to act on behalf of the Client.
18. NOTICE OF BANKRUPTCY, INSOLVENCY, REORGANIZATION, DISSOLUTION, TERMINATION,
INCOMPETENCE & DEATH. In the event of any change which affects the manner in
which the securities and other property in the Account is held (including, as
applicable and without limitation, the death, resignation or incompetence of a
joint owner or general partner or the bankruptcy, insolvency, reorganization, or
dissolution of Client or other similar event that affects Client's legal
standing), Client shall immediately give GS written notice thereof and, in
addition to the actions permitted under this New Account Agreement and any other
agreements relating to Client's Account, GS&Co. is authorized to take such
action, require such documents and tax waivers, and retain such portion of or
restrict transactions in the Account, all as GS&Co. may deem advisable.
19. MARGIN. If Client maintains a margin account, Client represents and warrants
to GS&Co. that Client has had an opportunity to discuss with GS the risks
associated with the use of margin and that the use of margin is consistent with
Client's investment objectives. Client agrees to maintain margins for Client's
Account as GS&Co. may require from time to time. Client agrees to promptly
satisfy all margin and maintenance calls, pay interest charges which are
imposed, in accordance with GS&Co.'s usual custom, with respect to Client's
Account and to pay on demand any debit balance owing with respect to Client's
Account. Client agrees that securities and other property in Client's Account
may be carried in GS&Co.'s general loans and may be pledged, repledged,
hypothecated, rehypothecated, sold, lent or otherwise transferred or used
separately or in common with other securities and any other property for the
sums due to GS thereon or for a greater sum. Client understands (1) that
GS&Co. might not retain in its possession or control for delivery a like
amount of similar securities or other property and (2) that certain rights of
ownership, including the right to vote such securities, may be transferred to
GS&Co. or by GS&Co. to others. Client agrees that GS&Co. may, in its
sole discretion, transfer securities held in Client's other Accounts with
GS&Co., including Client's cash account, to Client's margin account. Any
securities so transferred may be used by GS&Co. as provided in this New
Account Agreement. Client understands that notwithstanding a general policy of
giving clients notice of a margin deficiency, GS&Co. is not obligated to
request additional margin from Client, and that there may be circumstances where
GS&Co. will liquidate securities in the Account without notice to Client in
accordance with Section 5 of this New Account Agreement.
20. USE OF NAME. Client agrees not to use GS's name for any purpose without GS's
prior written consent, including, but not limited to, in any advertisement,
publication or offering material.
21. BACKGROUND CHECK. Client authorizes GS&Co. and any agent or service
provider to use, verify and confirm any of the information that Client or its
agent provides, including obtaining reports concerning Client's (and its
principals') background, credit standing and business conduct and to share all
such information with their successors, assigns, agents and service providers to
determine Client's eligibility for an Account or any feature or otherwise. Upon
Client's written request, GS&Co. will inform Client whether GS&Co. has
obtained credit reports, and, if so, GS&Co. will provide Client with the
name and address of the reporting agency that furnished the reports. Client
agrees that, without notifying Client, GS&Co. may request a new credit
report in connection with any review, extension, or renewal of the Account.
Client further agrees that GS&Co. may submit information reflecting on
Client's credit record to a credit reporting agency. Client authorizes
GS&Co. to share with its affiliates credit bureau information, information
contained in Client's application to open an Account, information obtained from
third parties and similar information, or to use such information consistent
with GS&Co.'s privacy policy.
22. DISCLAIMER OF LIABILITY; INDEMNIFICATION. Except as otherwise provided by
law, no GS entity shall be liable for any expense, losses, damages, liabilities,
demands, charges, claims, penalties, fines and excise taxes of any kind or
nature (including legal expenses and reasonable attorneys' fees) ("LOSSES") by
or with respect to any matters pertaining to the Account, except to the extent
that such Losses are actual Losses and are determined by a court of competent
jurisdiction or an arbitration panel in a final non-appealable judgment or order
to have resulted solely from such GS entity's gross negligence or willful
misconduct. In addition, Client agrees that GS shall have no liability for, and
agrees to indemnify and hold GS harmless from, all Losses that result from: (a)
Client's or its agent's misrepresentation, act or omission or alleged
misrepresentation, act or omission, (b) GS following Client's or its agent's
directions or failing to follow Client's or its agent's unlawful or unreasonable
directions, (c) any activities or services of GS in connection with the Account
or otherwise (including, without limitation, any technology services, reporting,
trading, research or capital introduction services) and (d) the failure by any
person not controlled by GS to perform any obligations to Client.
Client consents to the use of automated systems or service bureaus by GS in
conjunction with Client's Account with GS&Co., including, but not limited
to, automated order entry and execution, recordkeeping, reporting and account
reconciliation and risk management systems (collectively "AUTOMATED SYSTEMS").
Client understands that the use of Automated Systems entails risks, such as
interruption or delays of service, system failure and errors in the design or
functioning of such Automated Systems (collectively, a "SYSTEM FAILURE") that
could cause substantial damage, expense or liability to Client. Client
understands and agrees that GS will have no liability whatsoever for any claim,
loss, cost, expense, damage or liability of Client arising out of or relating to
a System Failure. Client also agrees that GS will have no responsibility or
liability to Client in connection with the performance or non-performance by any
Exchange, market, clearing organization, clearing firm or other third party
(including banks) of its or their obligations relative to any securities or
other property of Client. Client agrees that GS will have no liability to Client
or to third parties, or responsibility whatsoever, for: (a) Losses resulting
from a cause over which GS does not have direct control, including the failure
of mechanical equipment, unauthorized access, theft, operator errors, government
restrictions, force majeure (i.e., earthquake, flood, severe or extraordinary
weather conditions, or other act of God, fire, war, insurrection, riot, labor
dispute, strike, or similar problems, accident, action of government,
communications, power failure or equipment or software malfunction), Exchange or
market rulings or suspension of trading, (b) any special, indirect, incidental,
consequential, punitive or exemplary damages (including lost profits, trading
losses and damages) that Client may incur in connection with Client's use of the
brokerage and other services provided by GS&Co., under this New Account
Agreement.
23. ENTIRE AGREEMENT. This New Account Agreement and all related documentation
hereto constitute the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior agreements, understandings and
negotiations, both written and oral, between the parties with respect to the
subject matter of this New Account Agreement. No representation, inducement,
promise, understanding, condition or warranty not set forth herein has been made
or relied upon by either party hereto. The rights and remedies set forth in this
New Account Agreement are intended to be cumulative and not exclusive. Neither
this New Account Agreement nor any provision hereof is intended to confer upon
any person other than the parties hereto any rights or remedies hereunder. If
any provision of this New Account Agreement is held to be invalid, void or
unenforceable by reason of any law or legal process, that determination will not
affect the validity of the remaining provisions of this New Account Agreement.
24. GOVERNING LAW, SUCCESSOR AND ASSIGNS, WAIVER. This New Account Agreement and
its enforcement, and each transaction entered into hereunder and all matters
arising in connection with this New Account Agreement and transactions hereunder
shall be governed by, and construed in accordance with, the laws of the State of
New York, without reference to its choice of law doctrine, and its provisions
shall cover individually and collectively all Accounts which Client may maintain
with GS&Co., provided, however, this shall not otherwise limit GS from
exercising rights available under any other agreement or by operation of law or
otherwise. Client understands that federal and state laws, and the rules and
regulations of Exchanges and self-regulatory organizations, are subject to
change, and therefore GS may be required to change its procedures to conform to
applicable law. This New Account Agreement is binding upon and inures to the
benefit of GS, Client and our respective legal representatives, successors and
permitted assigns. Neither GS&Co. nor Client may assign its rights or
delegate its obligations under this New Account Agreement, in whole or in part,
without the prior written consent of the other party, except for an assignment
and delegation by GS&Co. of all of GS&Co.'s rights and obligations
hereunder to any affiliate or successor, which may be undertaken without giving
Client notice. Notwithstanding the foregoing, any actions taken by or authorized
to be taken by GS&Co. under this New Account Agreement may be taken by or
through the use of agents of GS&Co., including GS, and any actions taken by
or authorized to be taken by GS under this New Account Agreement may be taken by
or through the use of agents of GS. No waiver of any provision of this New
Account Agreement shall be deemed a waiver of any other provision, or a
continuing waiver of the provision or provisions so waived. All waivers and
modifications must be in writing. Any purported assignment in violation of this
Section 24 will be void.
25. ERISA. If part or all of the assets of Client constitute the assets of an
employee benefit plan subject to Title I of the U.S. Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or Section 4975 of the Internal
Revenue Code of 1986 (the "Code") by reason of Department of Labor Regulation
Section 2510.3-101, Client represents and warrants on each day during the life
of this New Account Agreement and any transactions entered into hereunder, both
in its individual and fiduciary capacities that: (i) no transaction engaged in
by Client will constitute a non-exempt "prohibited transaction" within the
meaning of Section 4975 of the Code or Section 406 of ERISA; (ii) Client's
investment manager will be eligible to act as a "qualified professional asset
manager" within the meaning of Department of Labor Prohibited Transaction Class
Exemption 84-14 with respect to Client and each employee benefit plan the assets
of which constitute the assets of Client; (iii) Client's investment manager will
at all times meet the requirements of Section 412 of ERISA; (iv) neither this
New Account Agreement nor any transaction entered into or contemplated hereunder
will violate any applicable law, rule, regulation or constitutional provision
applicable to Client, and (v) GS has not provided nor will provide any advice
that has constituted or will constitute a primary basis of any investment
decision by Client, and GS is not nor shall GS become a fiduciary with respect
to Client by reason of its services provided hereunder.
26. ARBITRATION. THIS NEW ACCOUNT AGREEMENT CONTAINS A PREDISPUTE ARBITRATION
CLAUSE. BY SIGNING AN ARBITRATION AGREEMENT, THE PARTIES AGREE AS FOLLOWS:
(A) 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.
(B) ARBITRATION AWARDS ARE GENERALLY FINAL AND BINDING; A PARTY'S ABILITY
TO HAVE A COURT REVERSE OR MODIFY AN ARBITRATION AWARD IS VERY LIMITED.
(C) THE ABILITY OF THE PARTIES TO OBTAIN DOCUMENTS, WITNESS STATEMENTS AND
OTHER DISCOVERY IS GENERALLY MORE LIMITED IN ARBITRATION THAN IN COURT
PROCEEDINGS.
(D) THE ARBITRATORS DO NOT HAVE TO EXPLAIN THE REASON(S) FOR THEIR AWARD.
(E) THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY, UNLESS
CLIENT IS A MEMBER OF THE ORGANIZATION SPONSORING THE ARBITRATION FACILITY, IN
WHICH CASE ALL ARBITRATORS MAY BE AFFILIATED WITH THE SECURITIES INDUSTRY.
(F) 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.
(G) THE RULES OF THE ARBITRATION FORUM IN WHICH THE CLAIM IS FILED, AND ANY
AMENDMENTS THERETO, SHALL BE INCORPORATED INTO THIS NEW ACCOUNT AGREEMENT.
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 DETERMINED BY ARBITRATION 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.
