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Exhibit 16(d)-8
PROFESSIONAL ACCOUNT AGREEMENT [BEAR STEARNS LETTERHEAD]
Title: VERDE REINSURANCE CO., LTD. Account or Family No.:
PLEASE READ CAREFULLY, SIGN AND RETURN
This agreement ("Agreement") sets forth the terms and conditions on which
subsidiaries of The Bear Stearns Companies Inc. will open and maintain
account(s) in your name and otherwise transact business with you. If these
accounts are cash accounts and you have fully paid for all securities therein,
the provisions of paragraphs 17 and 18 shall not bind you unless you enter into
a margin transaction.
1. PARTIES. You hereby agree that the parties to this Agreement shall
consist of you and each and every subsidiary of The Bear Stearns Companies Inc.,
whether now existing or hereafter created (each such subsidiary being referred
to hereinafter as a "Bear Stearns entity" and all such subsidiaries being
collectively referred to hereinafter as "Bear Stearns").
2. APPLICABLE LAWS, RULES AND REGULATIONS. All transactions shall be
subject to the applicable laws, rules and regulations of all federal, state and
self-regulatory authorities, including, but not limited to, the rules and
regulations of the Board of Governors of the Federal Reserve System and the
constitution, rules and customs of the exchange or market (and clearing house)
where such transactions are executed.
3. SECURITY INTEREST AND LIEN; REGISTRATION OF SECURITIES. As security for
the payment and performance of all of your obligations and liabilities from time
to time outstanding to any Bear Stearns entity, whether under this Agreement or
otherwise, each Bear Stearns entity shall have a continuing first lien and
security interest in (i) all property in which you now have or hereafter acquire
an interest which is now or hereafter held by or through any Bear Stearns
entity, including, but not limited to, any and all accounts, instruments,
documents, contract rights, commodities and commodity futures contracts,
commercial paper and other securities, monies, deposit accounts and general
intangibles, and (ii) any and all rights, claims or causes of action you may now
or hereafter have against any Bear Stearns entity: You hereby acknowledge and
agree that all such property of yours held by or through any Bear Stearns entity
is held as collateral by such Bear Stearns entity as agent and bailee for itself
and all other Bear Stearns entities and, as such, each Bear Stearns entity shall
comply with any orders or instructions originated by any other Bear Stearns
entity with respect to such security without your further consent. You represent
that all of the above-described collateral shall at all times be free and clear
of all liens, claims and encumbrances of any nature other than the security
interest created hereby. In addition, in order to satisfy any of your
outstanding liabilities or obligations to any Bear Stearns entity, Bear Stearns
may, to the fullest extent permitted by law, at any time in its discretion and
without prior notice to you, use, apply or transfer any and all securities or
other property including, without limitation, fully-paid securities and cash).
You hereby agree that, except as otherwise specifically agreed in writing, Bear
Stearns may register and hold the securities and other property in your accounts
in its name or the name of its designee.
4. DEPOSITS ON TRANSACTIONS. Whenever Bear Stearns, in its sold discretion,
considers it necessary in order to assure the due performance of your open
contractual commitments, it may require you, and you hereby agree, to deposit
cash or collateral immediately in your account(s) prior to any applicable
settlement date.
5. BREACH, BANKRUPTCY OR DEFAULT. Any breach of or default under this
Agreement or any other agreement you may have with any Bear Stearns entity,
whether heretofore or hereafter entered into, or the filing of a petition or
other commencement of a proceeding in bankruptcy or insolvency, or the
appointment of a receiver, by or against you or any guarantor, co-signer or
other party liable on or providing security for your obligations to any Bear
Stearns entity, or the levy of an attachment against your or any such other
party's account(s) with any Bear Stearns entity, or your death, mental
incompetence or dissolution, or any other grounds for insecurity, as determined
by Bears Stearns in its sole discretion (including, without limitation, any
indication of your refusal or inability to satisfy promptly any margin call or
other deposit requirement hereunder), shall constitute, at Bear Stearns'
election, a default by you under any or all agreements you may then have with
any Bears Stearns entity, whether heretofore or hereafter entered into. In the
event of any such default, each Bear Stearns entity shall have all of the rights
of a secured party upon default under the New York Uniform Commercial Code and
other applicable laws, rules and regulations, including, without limitation, the
right, without prior notice to you: to sell any and all property in which you
have an interest held by or through any Bear Stearns entity, to buy any or all
property which may have been sold short, to exercise any and all options and
other rights,to accelerate, cancel, terminate, liquidate, close out and net the
settlement payments and/or delivery obligations under any or all outstanding
transactions and/or to purchase or sell any other securities or property to
offset market risk, and to offset any indebtedness you may have (either
individually or jointly with others), after which you shall be liable to Bear
Stearns for any remaining deficiency, loss, costs or expenses incurred or
sustained by Bears Stearns in connection therewith. Such purchases and/or sales
may be effected publicly or privately without notice or advertisement in such
manner as Bear Stearns may in its sole discretion determine. At any such sale or
purchase, any Bear Stearns entity may purchase or sell the property to or from
itself or third parties free of any right of redemption. In addition, each Bear
Stearns entity shall have the right, at any time and from time to time, to set
off and otherwise apply any and all amounts owing by such Bear Stearns entity to
you or for your account or credit against any and all amounts now or hereafter
owing by you to any Bear Stearns entity (including, without limitation, any
indebtedness in your accounts), whether matured or unmatured, fixed, contingent
or otherwise and irrespective of whether any Bear Stearns entity shall have made
any demand therefor. Bear Stearns agrees to notify you of any such set-off and
application; provided, however, that the failure to
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give such notice shall not affect the validity of any such set-off and
application.
6. EXECUTION FEES AND SERVICE CHARGES. You understand that your account(s)
will be charged brokerage commissions or mark-ups/mark-downs in connection
with the execution of transactions (Execution Fees) and may be charged certain
other fees for custody and other services furnished to you ("Service Fees").
All such fees shall be determined by Bear Stearns unless your account(s) is
(are) introduced to Bear Stearns by another broker, in which case all Execution
Fees and certain Service Fees shall be determined by such other broker. You
further understand that Execution Fees may be changed from time to time without
prior notice to you and Service Fees may be changed from time to time upon
thirty days' prior written notice to you, and, in each case, you agree to be
bound thereby.
7. TRANSACTION REPORTS AND ACCOUNT STATEMENTS. Reports of the execution of
orders and other activity in your account(s) which have been provided or made
available to you by 10:00 a.m. (New York time) on the business day immediately
following the trade date shall be conclusive if not objected to by 12:00 noon
(New York time) on that day or, if such reports are provided or made available
to you after 10:00 a.m. (New York time) on the business day immediately
following the trade date, then no later than two hours after such reports have
been provided or made available to you; provided, however, that if you are a
registered options trader, then by the market opening on the day following
trade date. Information contained in monthly statements of account, to the
extent not included in an activity report, shall be conclusive if not objected
to within fifteen (15) days after such statements have been provided or made
available to you.
8. DEBIT BALANCES; TRUTH-IN-LENDING. You hereby acknowledge receipt of Bear
Stearns' Truth-in-Lending disclosure statement. You understand that interest
will be charged on any debit balances in your account(s) in accordance with the
methods described in such statement or in any amendment or revision thereto
which may be provided to you. Any debit balance which is not paid at the close
of an interest period will be added to the opening balance for the next interest
period.
9. CLEARANCE ACCOUNTS. If any of your accounts is carried by any Bear Stearns
entity as clearing agent for your broker, unless such Bear Stearns entity
receives from you prior written notice to the contrary, it may accept from such
introducing broker, without any inquiry or investigation: (a) orders for the
purchase or sale of securities and other property in your account(s), on margin
or otherwise, and (b) any other instructions concerning your account(s) or the
property therein. You understand and agree that Bear Stearns shall have no
responsibility or liability to you for any acts or omissions of your broker, its
officers, employees or agents. You agree that your broker and its employees are
third-party beneficiaries of this Agreement, and that the terms and conditions
hereof, including the arbitration provisions, shall be applicable to all matters
between or among any of you, your broker and its employees and Bear Stearns and
its employees.
10. COLLECTION AND OTHER ACCOUNT-RELATED COSTS. You hereby agree to pay, on
demand, all reasonable direct and indirect costs, liabilities and damages
incurred by Bear Stearns (including, without limitation, costs of collection,
attorneys' fees, court costs and other expenses) in connection with (i)
enforcing its rights hereunder, (ii) any investigation, litigation or
proceeding involving your account or any property therein (including, without
limitation, claims to such property by third parties), (iii) your use of or
access to any Bear Stearns or third-party system or (iv) Bear Stearns' acting
in reliance upon your instructions, including, but not limited to instructions
transmitted via facsimile from the undersigned or its authorized agents or, if
your account is introduced to Bear Stearns by another broker, the instructions
of such other broker. In each case and whether or not demand has been made
therefor, you hereby authorize Bear Stearns to charge your account(s) for any
and all such costs, including, without limitation, costs incurred in connection
with the liquidation of any property held in your account(s).
11. IMPARTIAL LOTTERY ALLOCATION. You agree that, in the event Bear Stearns
holds on your behalf securities in its name, in the name of its designee or in
bearer form which are called in part, you will participate in the impartial
lottery allocation system for such called securities in accordance with the
rules of the New York Stock Exchange, Inc. or any other appropriate
self-regulatory organization. When any such call is favorable, no allocation
will be made to any account in which, to the knowledge of Bear Stearns, any
officer, director or employee of Bear Stearns has any financial interest until
all other customers have been satisfied on an impartial lottery basis.
12. WAIVER, ASSIGNMENT AND NOTICES. Neither Bear Stearns' failure to insist at
any time upon strict compliance with this Agreement or with any of the terms
hereof nor any continued course of such conduct on its part shall constitute or
be considered a waiver by Bear Stearns of any of its rights or privileges
hereunder. Any assignment of your rights and obligations hereunder or your
interest in any property held by or through Bear Stearns without obtaining the
prior written consent of an authorized representative of Bear Stearns shall be
null and void. Each Bear Stearns entity reserves the right to assign any of its
rights or obligations hereunder to any other Bear Stearns entity without prior
notice to you. Notices and other communications (including, without limitation,
margin calls) delivered, faxed, sent by express delivery service or mailed to
the address provided by you shall, until Bear Stearns has received notice in
writing of a different address be deemed to have personally delivered to you.
Margin calls may also be communicated orally, without subsequent written
confirmation.
13. FREE CREDIT BALANCES. You hereby authorize Bear Stearns to use any free
credit balance awaiting investment or reinvestment in your account(s) in
accordance with all applicable rules and regulations and to pay interest
thereon at such rate or rates and under such conditions as are established from
time to time by Bear Stearns for such account(s) and for the amounts of cash so
used.
14. RESTRICTIONS ON ACCOUNT. You understand that Bear Stearns, in its sole
discretion, may restrict or prohibit trading of securities or other property in
your account(s) and may terminate your account(s), and you shall nevertheless
remain liable for all of your obligations to Bear Stearns under this Agreement
or otherwise.
15. CREDIT INFORMATION AND INVESTIGATION. You authorize Bear Stearns and, if
applicable, your introducing broker, in its or their discretion, at any time
and from time to time, to make or obtain reports concerning your credit
standing and business conduct. You may make a written request for a description
of the nature and scope of the reports made or obtained by Bear Stearns and the
same will be provided to you within a reasonable period of time.
16. SHORT AND LONG SALES. In placing any sell order for a short account, you
will designate the order as such and hereby authorize Bear Stearns to mark the
order as being "short."
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In placing any sell order for a long account, you will designate the
order as such and hereby authorize Bear Stearns to mark the order as being
"long." The designation of a sell order as being for a long account shall
constitute a representation that you own the security with respect to which the
order has been placed, that such security is not restricted under Rules 144 and
145 under The Securities Act of 1933 or any other applicable law, rule or
regulation and, as such, may be sold without restriction in the open market and
that, if Bear Stearns does not have the security in its possession at the time
you place the order, you shall deliver the security by settlement date in good
deliverable form or pay to Bear Stearns any losses and expenses it may incur or
sustain as a result of your failure to make delivery on a timely basis.
17. MARGIN AND OTHER COLLATERAL REQUIREMENTS. You hereby agree to deposit
and maintain such margin in your margin accounts, if any, as Bear Stearns may in
its sole discretion require, and you agree to pay forthwith on demand any debit
balance owing with respect to any of your margin accounts. In addition, you
further agree to deposit promptly and maintain such other collateral with Bear
Stearns as is required by any other agreement or open transaction you may have
with any Bear Stearns entity. Upon your failure to make any such payment or
deposit, or if at any time Bear Stearns, in its sole discretion, deems it
necessary for its protection, whether with or without prior demand, call or
notice, Bear Stearns shall be entitled to exercise all rights and remedies
provided in paragraphs 3, 5 and 29 hereof. No demands, calls, tenders or notices
that Bear Stearns may have made or given in the past in any one or more
instances shall invalidate your waiver of the requirement to make or give the
same in the future. You further acknowledge and agree that any positions in your
margin account(s) shall be deemed "securities contracts" within the meaning of
Sections 555 and 741(7) of the U.S. Bankruptcy Code and any successors thereto.
Unless you advise Bear Stearns in writing to the contrary, you represent that
you are not an affiliate (as defined in Rule 144(a)(1) under The Securities Act
of 1933) of the issuer of any security held in any of your accounts.
18. CONSENT TO LOAN OR PLEDGE OF SECURITIES IN MARGIN ACCOUNTS. Within the
limits of applicable law and regulations, you hereby authorize Bear Stearns to
lend either to itself or to others any securities held by Bear Stearns in any of
your margin accounts, to convey therewith all attendant rights of ownership
(including voting rights) and to use all such property as collateral for its
general loans. Any such property, together with all attendant rights of
ownership, may be pledged, repledged, hypothecated or rehypothecated either
separately or in common with other property for any amounts due to Bear Stearns
thereon or for a greater sum, and Bear Stearns shall have no obligation to
retain a like amount of similar property in its possession and control. You
hereby acknowledge that, as a result of such activities, Bear Stearns may
receive and retain certain benefits to which you will not be entitled. In
certain circumstances, such loans may limit, in whole or in part, your ability
to exercise voting and other attendant rights of ownership with respect to the
loaned or pledged securities.
19. GIVE-UPS; FREE DELIVERIES. In the event: (i) your orders are not
executed by Bear Stearns and you give-up Bear Stearns' name for clearance and/or
settlement, or (ii) you require Bear Stearns to make a free delivery of cash or
securities in connection with the settlement of such orders, the following terms
and conditions shall apply:
(a) You agree that you will only execute bona-fide orders, and if required for
settlement, you will request a free delivery of cash or securities only when you
have reasonable grounds to believe that the contra-party and the broker who
executed your order have the financial capability to complete any contemplated
transaction;
(b) Bear Stearns reserves the right at any time to place a limit (of either
dollars or number of securities) on the size of transactions that Bear Stearns
will accept for clearance. If after you have received notice of such limitation
you execute an order in excess of the limit established by Bear Stearns, Bear
Stearns shall have the right, exercisable in its sole discretion, to decline to
accept the transaction for clearance and settlement. In the event any claim is
asserted against Bear Stearns by the broker who executed your order because of
such action by Bear Stearns, you agree to indemnify and hold Bear Stearns
harmless from any loss, liability, damage, claim, cost or expense (including,
but not limited to fees and expenses of legal counsel) arising directly or
indirectly therefrom; and
(c) Bear Stearns will on a best efforts basis attempt to clear such transactions
within a reasonable period of time and utilize the same procedures it utilizes
when clearing transactions executed by it. Notwithstanding Paragraph #7 or any
other provision herein to the contrary, Bear Stearns shall have the right but
not the obligation to take action at any time in its sole discretion to correct
errors in such transactions. You hereby agree to release, indemnify and hold
harmless Bear Stearns from all loss, liability, damage, claim, cost or expense
(including, but not limited to fees and expenses of legal counsel) arising out
of or incurred in connection with your failure or the failure of the broker who
executed your order to settle the transaction, to return any free delivery upon
demand, or to object to any information provided or made available to you under
paragraph #7 hereof, and Bear Stearns shall have no liability whatsoever to you
in any such circumstance.
20. PRIME BROKERAGE SERVICES.
(a) Prior to the commencement of any prime brokerage activity, Bear Stearns
will enter into an agreement with your executing broker(s) that will set forth
the terms and conditions under which your executing broker(s) will be authorized
to accept orders from you for settlement by Bear Stearns (the "Prime Brokerage
Agreement"). Bear Stearns will accept for clearance and settlement trades
executed on your behalf by such executing broker(s) as you may designate from
time to time. On the day following each such transaction, Bear Stearns will send
you a notification of each trade placed with your executing broker for
settlement by us based upon the information provided by you or your agent.
(b) Bear Stearns shall be responsible for settling trades executed on your
behalf by your executing broker(s) and reported to Bear Stearns by you and your
executing broker(s) provided that you have reported to Bear Stearns on trade
date, by the time designated to you by Bear Stearns, all the details of such
trades including, but not limited to, the contract amount, the security
involved, the number of shares or the number of units and whether the
transaction was a long or short sale or a purchase, and further provided that
Bear Stearns has either affirmed or not "DK'd" ("Indicated it does not know")
and has not subsequently disaffirmed such trades. In the event that Bear Stearns
determines not to settle a trade, Bear Stearns shall not have settlement
responsibility for such trade and shall, instead, send you a cancellation
notification to offset the notification sent to you under subparagraph a of this
paragraph. You shall be solely responsible and liable to your executing
broker(s) for settling such trade. In addition, Bear Stearns may be required to
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cease providing prime brokerage services to you in accordance with the Prime
Brokerage Agreement.
(c) In the event of: (i) the filing of a petition or other proceeding in
bankruptcy, insolvency or for the appointment of a receiver by or against your
executing broker, (ii) the termination of your executing broker's registration
and the cessation of business by it as a broker-dealer, or (iii) your executing
broker's failure, inability or refusal, for any reason whatsoever or for no
reason at all, to settle a trade, if Bear Stearns agrees to settle any trades
executed on your behalf by such executing broker, regardless whether Bear
Stearns either affirmed or did not DK and did not disaffirm such trades, you
shall be solely responsible, and liable to Bear Stearns, for any losses arising
out of or incurred in connection with Bear Stearns' agreement to settle such
trades.
(d) You shall maintain in your account with Bear Stearns such minimum net
equity in cash or securities as Bear Stearns, in its sole discretion may
require, from time to time (the "Bear Stearns Net Equity Requirements"), which
shall in no event be less than the minimum net equity required by the SEC
Letter, as defined in sub-paragraph (g) of this paragraph (the "SEC Net Equity
Requirements"). In the event your account falls below the SEC Net Equity
Requirements, you hereby authorize Bear Stearns to notify promptly all executing
brokers with whom it has a Prime Brokerage Agreement on your behalf of such
event. Moreover, if you fail to restore your account to compliance with the SEC
Net Equity Requirements within the time specified in the SEC Letter, Bear
Stearns shall: (i) notify all such executing brokers that Bear Stearns is no
longer acting as your prime broker and (ii) either not affirm or "DK" ("indicate
that it does not know") all prime brokerage transactions on your behalf with
trade date after the business day on which such notification was sent. In the
event either: (i) your account falls below the Bear Stearns Net Equity
Requirements, (ii) Bear Stearns determines that there would not be enough cash
in your account to settle such transactions or that a maintenance margin call
may be required as a result of settling such transactions, or (iii) Bear Stearns
determines that the continuation of prime brokerage services to you presents an
unacceptable risk to Bear Stearns taking into consideration all the facts and
circumstances, Bear Stearns may disaffirm all your prime brokerage transactions
and/or cease to act as your prime broker.
(e) If you have instructed your executing broker(s) to send confirmations
to you in care of Bear Stearns, as your prime broker, the confirmation sent by
such executing broker is available to you promptly from Bear Stearns, at no
additional charge.
(f) If your account is managed on a discretionary basis, you hereby
acknowledge that your prime brokerage transactions may be aggregated with those
of other accounts of your advisor, according to your advisor's instructions, for
execution by your executing broker(s) in a single bulk trade and for settlement
in bulk by Bear Stearns. You hereby authorize Bear Stearns to disclose your
name, address and tax I.D. number to your executing broker(s). In the event any
trade is disaffirmed, as soon as practicable thereafter, Bear Stearns shall
supply your executing broker(s) with the allocation of the bulk trade, based
upon information provided by your advisor.
(g) The prime brokerage services hereunder shall be provided in a manner
not inconsistent with the no-action letter dated January 25, 1994 issued by the
Division of Market Regulation of the Securities and Exchange Commission (the
"SEC Letter"), and any supplements or amendments thereto.
21. LEGALLY BINDING. You hereby agree that this Agreement and all of
the terms hereof shall be binding upon you and your estate, heirs, executors,
administrators, personal representatives, successors and assigns. You further
agree that all purchases and sales shall be for your account(s) in accordance
with your oral or written instructions. You hereby waive any and all defenses
that any such oral instruction was not in writing as may be required by any
applicable law, rule or regulation.
22. AMENDMENT. You agree that Bear Stearns may modify the terms of
this Agreement at any time upon prior written notice to you. By continuing to
accept services from Bear Stearns thereafter, you will have indicated your
acceptance of any such modification. If you do not accept such modification, you
must notify Bear Stearns in writing; your account may then be terminated by Bear
Stearns, after which you will remain liable to Bear Stearns for all outstanding
liabilities and obligations. Otherwise, this Agreement may not be modified
absent a written instrument signed by an authorized representative of Bear
Stearns.
23. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE
STATE OF NEW YORK AND SHALL BE CONSTRUED, AND THE CONTRACTUAL AND ALL OTHER
RIGHTS AND LIABILITIES OF THE PARTIES DETERMINED, IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES
THEREOF.
24. ARBITRATION. YOU AGREE THAT CONTROVERSIES ARISING BETWEEN YOU AND
YOUR INTRODUCING BROKER AND / OR BEAR STEARNS, AND ANY OF YOUR OR THEIR CONTROL
PERSONS, PREDECESSORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS AND
EMPLOYEES, SHALL BE DETERMINED BY ARBITRATION.
WITH RESPECT TO THE RESOLUTION OF ANY SUCH CONTROVERSY, YOU FURTHER ACKNOWLEDGE
THAT:
- - ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
- - EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PARTIES ARE WAIVING THEIR RIGHT TO
SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL.
- - PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM
COURT PROCEEDINGS.
- - THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL
REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY
THE ARBITRATORS IS STRICTLY LIMITED.
- - THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO
WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
- - NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION NOR
SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS
INITIATED IN COURT A PUTATIVE CLASS ACTION OR WHO IS A MEMBER OF A PUTATIVE
CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED
BY THE
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PUTATIVE CLASS ACTION UNTIL: THE CLASS CERTIFICATION IS DENIED; (II) THE CLASS
IS DECERTIFIED; OR (III) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE COURT.
SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A
WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.
- - ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE HELD AT THE FACILITIES AND
BEFORE AN ARBITRATION PANEL APPOINTED BY THE NEW YORK STOCK EXCHANGE, INC., THE
AMERICAN STOCK EXCHANGE, INC. OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS,
INC. OR, IF THE TRANSACTION WHICH GIVES RISE TO SUCH CONTROVERSY IS EFFECTED IN
ANOTHER UNITED STATES MARKET WHICH PROVIDES ARBITRATION FACILITIES, BEFORE SUCH
OTHER FACILITIES. YOU MAY ELECT ONE OF THE FOREGOING FORUMS FOR ARBITRATION, BUT
IF YOU FAIL TO MAKE SUCH ELECTION BY REGISTERED MAIL OR TELEGRAM ADDRESSED TO
BEAR, STEARNS SECURITIES CORP., 245 PARK AVENUE, NEW YORK, NEW YORK 10167,
ATTENTION: CHIEF LEGAL OFFICER (OR ANY OTHER ADDRESS OF WHICH YOU ARE ADVISED IN
WRITING), BEFORE THE EXPIRATION OF TEN DAYS AFTER RECEIPT OF A WRITTEN REQUEST
FROM BEAR STEARNS TO MAKE SUCH ELECTION, THEN BEAR STEARNS MAY MAKE SUCH
ELECTION. FOR ANY ARBITRATION SOLELY BETWEEN YOU AND A BROKER FOR WHICH BEAR
STEARNS ACTS AS CLEARING AGENT, SUCH ELECTION SHALL BE MADE BY REGISTERED MAIL
TO SUCH BROKER AT ITS PRINCIPAL PLACE OF BUSINESS. THE AWARD OF THE ARBITRATORS,
OR OF A MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT UPON THE AWARD RENDERED
MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL, HAVING JURISDICTION.
25. SEVERABILITY. If and to the extent any term or provision herein is or
should become invalid or unenforceable under any present or future law, rule or
regulation of any sovereign government or regulatory body having jurisdiction
over the subject matter of this Agreement, then (i) the remaining terms and
provisions hereof shall be unimpaired and remain in full force and effect and
(ii) the invalid or unenforceable provision or term shall be replaced by a term
or provision that is valid and enforceable and that comes closest to expressing
the intention of such invalid or unenforceable term or provision.
26. LIMITATION OF LIABILITY. Bear Stearns shall not be liable for any
losses caused directly or indirectly by any inability of Bear Stearns to perform
occasioned by suspension of trading, wars, civil disturbances, strikes, natural
calamities, labor or material shortages, government restrictions, acts or
omissions of exchanges, specialists, markets, clearance organizations or
information providers, delays in mails, delays or inaccuracies in the
transmission of orders or information, governmental, exchange or self-regulatory
organization laws, rules or actions, or any other causes beyond Bear Stearns'
control, or for any consequential, incidental, punitive, special or indirect
damages, economic loss or lost profits, even if Bear Stearns has been advised of
the possibility of such damages or loss.
27. HEADINGS. The headings of the provisions hereof are for ease of
reference only and shall not affect the interpretation or application of this
Agreement or in any way modify or qualify any of the rights provided for
hereunder.
28. TELEPHONE CONVERSATIONS. For the protection of both you and Bear
Stearns, and as a tool to correct misunderstandings, you hereby authorize Bear
Stearns, at Bear Stearns' discretion and without prior notice to you, to monitor
and/or record any or all telephone conversations or electronic communications
between you and Bear Stearns or any of Bear Stearns' employees or agents. You
acknowledge that Bear Stearns may determine not to make or keep any of such
recordings and that such determination shall not in any way affect any party's
rights.
29. CUMULATIVE RIGHTS; ENTIRE AGREEMENT. The rights of each Bear Stearns
entity set forth in this Agreement and in each other agreement you may have with
any Bear Stearns entity, whether heretofore or hereafter entered into, are
cumulative and in addition to any other rights and remedies that any Bear
Stearns entity may have and shall supersede any limitation on or any requirement
for the exercise of such rights and remedies that is inconsistent with the terms
of this or any other such agreement (including, without limitation, any
requirement that time elapse or notice or demand be given prior to the exercise
of remedies). The provisions of this Agreement shall supersede any inconsistent
provisions of any other agreement heretofore or hereafter entered into by you
and any Bear Stearns entity to the extent that the subject matter thereof is
dealt with in this Agreement and the provisions of such other agreement would
deny any Bear Stearns entity any benefit or protection afforded to it under this
Agreement. You hereby appoint Bear Stearns as your agent and attorney-in-fact to
take any action (including, but not limited to, the filing of financing
statements) necessary or desirable to perfect and protect the security interest
granted in paragraph 3 hereof or to otherwise accomplish the purposes of this
Agreement. Except as set forth above, this Agreement represents the entire
agreement and understanding between you and Bear Stearns concerning the subject
matter hereof.
30. CAPACITY TO CONTRACT; AFFILIATIONS. You represent that you are of
legal age and that, unless you have notified Bear Stearns to the contrary,
neither you nor any member of your immediate family is: (i) an employee or
member of any exchange, (ii) an employee or member of the National Association
of Securities Dealers, Inc., (iii) an individual or an employee of any
corporation or firm engaged in the business of dealing, as broker or principal,
in securities, options or futures or (iv) an employee of any bank, trust company
or insurance company. If the undersigned is signing on behalf of others, the
undersigned hereby represents that the person(s) or entity(ies) on whose behalf
it is signing is/are authorized to enter into this Agreement and that the
undersigned is duly authorized to sign this Agreement and make the
representations contained herein in the name and on behalf of such other
person(s) or entity(ies). You hereby authorize Bear Stearns to accept faxed
copies of this or any other document or instruction as if it were the original
and further to accept signatures on said faxes as if they were original.
6
31. PROPRIETARY ACCOUNTS OF BROKERS. If you are a U.S. registered
broker-dealer and any of the accounts opened and maintained hereunder is your
proprietary account, the following shall apply in order to enable you to
continue to treat the assets in your proprietary account as allowable assets in
your net capital computation after June 1, 1999 pursuant to the Securities and
Exchange Commission No-Action Letter (the PAIB No-Action Letter), dated
November 3, 1998 relating to the net capital treatment of assets in proprietary
accounts of introducing brokers ("PAIB"):
(a) Bear Stearns hereby agrees to perform a computation for PAIB assets
for the proprietary accounts of all of its introducing brokers and to maintain
a separate special PAIB reserve account in accordance with the customer reserve
computation set forth in SEC Rule 15c3-3 and the modifications and exclusions
thereto as set forth in the PAIB No-Action Letter.
(b) You hereby represent that you are neither a guaranteed subsidiary of a
clearing broker nor a guarantor of a clearing broker and you agree to notify
Bear Stearns immediately in the event of any change as to the accuracy of this
representation.
(c) You hereby agree to notify your Designated Examining Authority in
writing within two days of the execution of this Agreement that you have
entered into a PAIB Agreement with Bear Stearns.
ALL ACCOUNTS: PLEASE COMPLETE THIS INFORMATION AND SIGN ON THE FOLLOWING
PAGE WHERE APPROPRIATE. PLEASE NOTE THAT INVESTMENT MANAGERS DO NOT USUALLY
HAVE THE AUTHORITY TO SIGN ON BEHALF OF MANAGED ACCOUNTS.
THIS AGREEMENT IS DATED AS OF 8/20 , 1999
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VERDE REINSURANCE CO., LTD.
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NAME OF ACCOUNT OWNER
2525 E. CAMELBACK, SUITE 1150 U.S.A.
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STREET ADDRESS COUNTRY
PHOENIX, AZ 85016
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CITY, STATE ZIP CODE+4