Exhibit 10.6
ASSET MANAGEMENT ACCOUNT
SERVICES AGREEMENT
This Agreement dated as of May 15, 2001 is made by and between
CBNY Investment Services Corp. ("Customer"), a company incorporated under
the laws of the State of New York and the Boston Safe Deposit and Trust
Company ("Bank"), a Massachusetts trust company, affiliated with Mellon
Bank, N.A., Mellon Bank (DE) and their affiliates ("Affiliates").
1. Services Provided.
a) The Customer will offer to certain clients an integrated
financial services program (Asset Management Account)
("AMA Program"), which may include a securities account
provided by the Customer, one or more money market funds,
and certain banking services provided by or through the
Bank.
b) The banking services may include draft writing services,
electronic funds transfer services, credit and/or debit
card issuance and other services offered by the Bank and
selected by the Customer ("Services").
c) The Bank may designate or contract with any of the Bank's
affiliates or independent third parties to provide the
Services under this AMA Program Agreement without
providing notice to the Customer. Any such designation or
contract does not alter the obligations and
responsibilities of Bank to provide the Services.
2. Applicable Provisions Governing Services.
a) AMA Services Agreement. The basic provisions applicable
to all of the Services are contained in this Agreement.
The provisions contained in this Agreement, Schedule A to
the AMA Services Agreement or similar document which the
Bank may require to be executed in connection with a
particular AMA related service together with any Asset
Management Account Services Operating Guidelines (the
"AMA Operating Guidelines"), are referred to collectively
as the AMA Services Agreement ("AMA Services Agreement").
b) Additional Applicable Provisions. In addition to the AMA
Services Agreement, the Services provided to the Customer
are subject to the Mellon Global Cash ManagementSM
Services Terms and Conditions (the "Terms and
Conditions") to the extent directly applicable or in the
absence of any provision in the AMA Services Agreement,
or other Services' descriptions or procedures, the
applicable provisions of any software license
agreement(s) whether or not executed by the Customer, and
any applicable law or governmental regulation.
3. Definitions. The following terms shall have the meanings specified
herein:
a) ACH Transaction - an electronic transfer of funds between
banks through an Automated Clearing House ("ACH")
network.
b) AMA Account - the account of an Account Holder on the
books of the Customer which Customer designates as an AMA
Account.
c) AMA Account Program - an integrated financial services
program offered by the Customer to Account Holders.
d) AMA Operating Guidelines - operational terms and
conditions of the services provided under the AMA
Services Agreement incorporated herein by reference. The
same may be amended from time to time, in accordance with
Section 17 hereof.
e) Account Holder - Customer's client or clients, in the
case of joint accounts (but not an Additional Holder),
who participates in Customer's AMA Account Program, or
such client's attorney-in-fact authorized by such client
in accordance with the terms and conditions of this
Agreement. In the case of a joint account, each Holder
may act individually without the consent of the other(s)
unless the Bank is specifically advised in writing of
instructions to the contrary. The Bank may decline to
honor such instructions if in the Bank's judgment, it is
unreasonable to honor the instructions.
e) Additional Holder - an individual to whom an additional
debit card has been issued in the manner prescribed by
the Bank and who can, among other things, cause Debit
Card Transactions to be executed but who does not have
the authority to draw drafts.
f) Available Assets - the aggregate value in an Account
Holder's AMA Account of cash balances, net asset value of
money market fund shares, and/or margin value of
marginable securities, if any, as determined by Customer.
g) Business Day - any day other than Saturday, Sunday or
other day on which banks in Massachusetts are authorized
by law to close.
h) Chargeback - a Debit Card Transaction returned by an
Issuer in accordance with the rules and regulations of
MasterCard(R), which shall result in a liability for the
merchant in the amount of the Debit Card Transaction
evidenced by the MasterMoney(TM) Notice.
i) Clearing Account - the account established by the
Customer at the Bank for the purpose of processing and
settling for items.
l) Communications Network - all components of that system
designed and developed by, and under control of, the Bank
for its Customers for the purpose of transmitting and
receiving AMA Account data by means of electronic
devices.
m) Debit Card - A MasterMoney(TM) Card bearing the logos and
tradestyles of MasterCard(R) (including debit cards and
additional cards issued pursuant to an additional card
request) issued by the Bank to an Account Holder or
Additional Holder upon request and approved by the
Customer in connection with an AMA Account.
n) Debit Card Transactions - (i) point of sale ("POS")
transfers made on a Debit Card; (ii) cash withdrawal made
at any participating automatic teller machine ("ATM") or
bank in the MasterCard(R) network; (iii) delinquency
assessments in connection with a Debit Card; and (iv) any
other charges or fees which are made or incurred in
connection with a Debit Card.
o) Drafts - shall have the meaning as stated in Article 3
and 4 of the Uniform Commercial Code, meeting
specifications reasonably established by the Bank after
consultation with the Customer, and issued to, and drawn
by, Account Holders payable through the Bank in
connection with AMA Accounts. The use of the terms such
as checkbook and check clearing are references to the
payable through draft service offered by the Bank as part
of the AMA Services.
p) Draft Writing Privileges - an Account Holder's or
Additional Account Holder's right to draw drafts.
q) Governmental Authority - shall mean any state or federal
governmental or political subdivision or any agency,
bureau, commission, department or instrumentality
thereof, or any court, tribunal, grand jury or
arbitration panel, in each case whether foreign or
domestic.
r) Interest Factor - the economic loss resulting from the
inability to earn interest on funds, or the economic loss
resulting from the failure to be reimbursed for funds
previously extended. The Interest Factor shall be
determined by the Bank using the Daily Effective Federal
Funds Rate published by the New York Federal Reserve Bank
for the period involved.
s) Item(s) - drafts, ACH transactions, and other payment
instruments used in connection with the AMA Account
Program, but not including Debit Card Transactions.
t) Law - any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance,
order, injunction, writ, decree or award of any
Governmental Authority.
u) MasterCard(R) - credit and debit card services provided
by MasterCard International to customers through
financial institutions.
v) MasterMoneyTM Notice - A properly completed MasterMoney
voucher, electronic record or communication, transaction
form, or other evidence of an adjustment or of a
cardholder indebtedness arising from and documenting a
transaction in a form acceptable to Boston Safe and in
compliance with the MasterCard rules and regulations.
w) Properly Payable - shall have the meaning as stated in
Article 4 of the Uniform Commercial Code.
4. Services. Pursuant to the AMA Services Agreement, the Bank will
provide the Services shown on Schedule A. Any services provided,
whether or not shown on Schedule A and initialed by the Customer,
shall be deemed to be provided in accordance with this AMA
Services Agreement, and any other applicable agreement between the
Customer and the Bank. The Bank may provide additional services
which are not within the AMA product line, in which case the
parties agree that those services will be provided in accordance
with, and governed by, separate agreements between the Customer
and the Bank. The following is a brief description of some of the
AMA Services shown on Schedule A and more fully explained in the
AMA Operating Guidelines:
a) Draft Processing: The Bank assumes no liability in
conjunction with this draft processing service and
Customer agrees to release the Bank from all obligations
arising under Articles 3 and 4 of the Uniform Commercial
Code or otherwise concerning examination of items
presented for payment. The Bank is not the drawee or the
payor of the Drafts, because the Drafts are "payable
through drafts" as defined in Article 4 of the Uniform
Commercial Code. The Bank will not be deemed to have
failed to exercise ordinary care or good faith by not
examining items to see if they are properly signed by
authorized individuals or for not otherwise inspecting
items. With respect to deposit accounts and draft
writing, Customer agrees to indemnify and hold harmless
the Bank against all damage or expense incurred by the
Bank arising out of the use of the facsimile signature
the Customer authorized. Bank may rely on a facsimile
signature specimen that appears to resemble the
appropriate facsimile signature specimen provided by the
Customer regardless of how the facsimile signature came
to be placed on the item.
i) Optional Signature Verification Service: If this option
is selected on the Schedule A, the Bank will modify the
draft process and perform a proprietary signature review
based on the current signature on file of the Account
Holder as presented by the Customer, and be subject to
the defenses and limitations of the Uniform Commercial
Code or other applicable law.
The Customer is solely responsible for ensuring that a
current updated signature is received by the Bank and the
Bank is not liable for the information on the signature.
The legitimacy of the Account Holder's signature on the
physical signature card is the responsibility of
Customer. All signature cards remain the property of
Customer. Any digitized signature database, however,
shall be the property of the Bank and will be turned over
to Customer only at the discretion of the Bank and at
Customer's expense. In the event there is no signature on
file, it is the responsibility of Customer to obtain a
signature card and forward it to the Bank to prevent
on-going signature violations. In the interim, the Bank
will accept a written guarantee by an authorized officer
of the Customer to honor all drafts on an account without
a signature card or scan a signature from an Account
Holder's draft if so directed by Customer. The Bank will
not be liable for any service fees, interest adjustments
or damages claimed resulting from a draft which was
returned for a signature violation if the Account
Holder's signature was not provided to the Bank.
If Customer authorizes the payment of drafts by a
facsimile signature, the Bank will not be liable for any
damages arising from reliance on a facsimile signature
that resembles the appropriate facsimile signature
specimen given to the Bank and appears to have been made
through an authorized medium, regardless of how the
facsimile signature came to be placed on the draft.
Account Holder is responsible for ensuring that adequate
controls are in place over equipment used to generate
facsimile signatures and Customer agrees to indemnify the
Bank for any damages resulting from unauthorized use of
such equipment.
ii) Stop Payment: If this option is selected on Schedule A,
stop payment services shall be provided in accordance
with the AMA Operating Guidelines and subject to Article
4 of the Uniform Commercial Code and any other applicable
law. The Bank is not responsible for verification of stop
payment information. Customer and/or Account Holder are
responsible for notifying the Bank of any discrepancy and
providing an updated stop payment with the corrected
information.
b) MASTERMONEY(TM)CARD. The Bank, is authorized by
MasterCard to serve as a MasterCard issuer, and is duly
authorized to perform the MasterMoney(TM)issuing
activities as set forth in the AMA Operating Guidelines.
The Bank at all times maintains control of all
MasterMoney(TM)accounts and may terminate an Account
Holder's card privileges without permission from
Customer. The Bank reserves the right to approve Personal
Identification Number (PIN) assignment procedures
associated with card issuance. Customer is responsible
for assuring that the brand names used on the card are
available for such use and that all MasterCard design
requirements are met. The Bank, as MasterCard issuer,
will establish maximum daily ATM and POS withdrawal
limits. These limits are subject to change at the
discretion of the Bank, as needed, with prior written
notice to the Customer. Processing services may be
provided directly by the Bank or through third parties
selected by the Bank.
This service shall be provided subject to the Electronic
Funds Transfer Act, Regulation E, MasterCard regulations,
and any applicable law. By accepting such service,
Customer warrants that it will comply with all
requirements thereunder including, but not limited to,
those governing disclosure to Account Holders. Proper
disclosure, including compliance with state or other
superseding laws is the responsibility of Customer. The
Bank assumes no liability and Customer agrees to
indemnify the Bank for any and all damages arising from
unauthorized Debit Card Transactions.
Optional MasterCard Services Liability Coverage: If this
option is selected on Schedule A, the Bank will assume
liability coverage for damages resulting from
unauthorized MasterMoney(TM) transactions, up to the
Bank's daily established ATM and POS limits and subject
to the defenses and limitations provided in the Uniform
Commercial Code or applicable law. The Bank, however,
does not assume any liability for damages incurred due to
cards placed in a lost or stolen status in error.
c) ACH Services: As part of the AMA Services Agreement, the
Bank offers AMA Account Holders ACH receiving only
services. Customer may offer the AMA Account Holder ACH
origination or sending services. ACH origination services
will be provided in accordance with Terms and Conditions.
The Bank will follow the NACHA Rules and incorporate them
by reference into the AMA Services Agreement, except to
the extent that they are modified by the AMA Services
Agreement. Under the NACHA Rules, the Bank makes certain
warranties in providing ACH Service, and the Customer
makes similar warranties to the Bank.
5. Processing Items. The Bank agrees to process Items received by it
in accordance with this Agreement stated herein and the AMA
Operating Guidelines. All references to times of a day in this
Agreement shall refer to Eastern Time as to when each is in effect
in Boston, Massachusetts. The Bank is under no obligation to cash
an item at any of its offices as it is only payable through, not
payable at, the Bank.
6. Paying Items. The Bank will, in accordance with the AMA Operating
Guidelines, pay Items which can be paid in full based upon the
Account Holder's Available Assets. For the purposes of making the
decision whether or not to pay Items, Customer and the Bank will
communicate with each other by means of the Communications Network
and/or telephone.
In the event that Customer is unable to transmit funds to the Bank
within the specified deadlines, the Bank may agree to pay Items,
in accordance with Customer's written instructions and promise to
pay for such Items no later than the Bank's next business day
together with compensation for Items so paid. Such written
instructions and promise to pay must be made by an authorized
officer of Customer and received by Bank prior to the Bank
agreeing to pay such Items.
7. Return Items and Adjustments. The Bank will rely on the
instructions and information supplied by Customer to the Bank
regarding return items, subject to the Bank's right to return
Items in accordance with the AMA Operating Guidelines. The Bank
will process AMA Account adjustments and chargebacks, as provided
in the AMA Operating Guidelines.
8. Month End Statements. The Bank will provide Customer with enhanced
data, as set forth in the AMA Operating Guidelines. Customer will
utilize this data to provide, among other things, the Account
Holder with a descriptive month-end statement of Items and Debit
Card Transactions processed by the Bank, in accordance with
applicable state or federal law or regulation, or MasterCard
rules. The Bank will retain the original canceled authorized
drafts for a period of not less than ninety (90) days following
cancellation thereof. After the 90 day period, the original drafts
will be destroyed or returned to the Customer, if elected. The
Bank will make microfilm or image copies of all authorized drafts
and retain such copies as required by applicable law. The Bank is
not responsible for maintaining copies of MasterMoney(TM)Notices
or any other records of Debit Card Transactions.
9. Forms Approval and Inventory. Customer will provide at its cost
any forms necessary in connection with the opening of AMA
Accounts. Customer warrants that the forms will meet the
disclosure and any other requirements under law necessary for the
provision of the Services in connection with Customer's AMA
Account Program.
10. Establishing Clearing Account. The Clearing Account will be
established by the Customer with the Bank. The Clearing Account
may be used only for the purposes and in the manner stated herein,
and be subject to the Terms and Conditions. If there are any
conflicts, regarding the Clearing Account, between the AMA
Services Agreement and the Mellon Global Cash Management Terms and
Conditions, the Terms and Conditions will govern.
11. Daily Net Settlement. The daily outstanding net settlement balance
between Customer and the Bank will be satisfied by wire transfer
of immediately available funds on each day which is a Business
Day, in accordance with the AMA Operating Guidelines. Unless
otherwise agreed to by Customer and the Bank, Customer will
utilize the Federal Reserve Communications System ("Fedwire"), to
execute wire transfers.
In the event any daily outstanding settlement balance is owed to
the Bank, Customer will pay the Bank by credit to the Clearing
Account. In the event any daily outstanding settlement balance is
owed to Customer, the Bank will pay customer by crediting the
Clearing Account.
Customer and the Bank agree to establish and follow special
procedures in order to exchange data and settle daily outstanding
balances on days which are a business day for one but not for both
parties. For this purpose, the parties shall notify each other of
their respective holidays for the upcoming year no later than
December 15, or such time as they become known.
12. Inability to Use Communications Network. If, for any reason,
Customer or the Bank is unable to use the Communications Network
or Fedwire, Customer and the Bank shall use their best efforts to
transmit and receive data and immediately available funds by
alternative means. Such alternative means shall include without
limitation:
o use of courier services;
o use of telephone services;
o use of other wire transfer systems;
o electronic transmission to or from another location,
provided that such other location's communication interface
specifications are consistent with those used in connection
with the Communications Network; or
o such other means which may be reasonable under the
circumstances.
However, neither Customer nor the Bank shall be required to
utilize any such alternative means if such party, in its
reasonable judgment, determines that use thereof would be
commercially unreasonable or impractical.
If Customer and the Bank are unable to communicate with each other
after attempting to use reasonable alternative means, then
Customer hereby directs the Bank to return all Items received by
the Bank for payment.
13. Termination of Holder's Privileges. The Bank will terminate an
Account Holder's draft writing and Debit Card privileges with
respect to an AMA Account effective upon termination of an Account
Holder's AMA Account with Customer. Customer will promptly notify
the Bank of the termination of any AMA Account. Customer is
responsible for the recovery of Account Holder's drafts and Debit
Cards, if any, upon termination. Customer is liable for any
unauthorized use of drafts or Debit Cards following termination,
or in the event of a breach of termination by Account Holder.
14. Fees. For the Initial Term (as defined in Section 16 (a) herein)
of the AMA Services Agreement, the Customer shall pay for
participation in the activities described in this Agreement. After
the Initial Term, Fees may be amended upon 30 days written notice
to the Customer, unless such change is due to an adjustment in
rates by MasterCard, in which case such change to reflect any such
adjustment shall be effective on the date set forth in such
written notice. The Customer shall be advised as to the amount of
all fees, and the Customer agrees to pay such fees on receipt of
such advice.
15. Taxes. In the event that the relationship created between the Bank
and Customer under this Agreement gives rise to any tax liability,
exclusive of income and similar taxes, whether local, state or
federal, such obligation, regardless of whether or not assessed
against Customer, will be the sole responsibility of Customer.
Customer shall reimburse the Bank for any such demand therefore,
provided, however, that Customer reserves the right to contest or
have the Bank contest, on Customer's behalf and at Customer's
expense, such tax assessment.
16. Term and Termination of the AMA Services Agreement.
a) Term. This AMA Services Agreement shall commence when
signed by authorized officers of the Bank and Customer
and shall continue in full force and effect for a period
of three years (the "Initial Term") from the date signed
by the Bank, unless terminated early in accordance with
16 (b) or (c).
b) Termination. During the Initial Term, the AMA Services
Agreement shall continue in full force and effect unless
one party gives the other party at least sixty (60) days
prior written notice of its intent to terminate the AMA
Services Agreement. After the Initial Term, either party
may terminate the AMA Services Agreement reserving all
other remedies and rights hereunder in whole or in part,
upon sixty (60) days written notice to the other party
without cause.
c) Early Termination. Either party may terminate the AMA
Services Agreement immediately with cause and notice to
the other party of such termination. If a Force Majeure
situation continues for more than 30 days, then each
party shall have the right to terminate this Agreement
upon written notice to the other party.
d) Rights Upon Termination. The termination of the AMA
Services Agreement shall not terminate, affect or impair
any rights, obligations or liabilities of either party
hereto which may accrue prior to such termination or
which, under the terms of the AMA Services Agreement,
continue after the termination. Without limiting the
generality of the foregoing, the parties agree that
Customer and the Bank will process all Items made before
the termination which are received for payment or credit
after the termination of the Agreement, upon the same
terms and conditions applicable to the Bank and Customer
as are provided herein and with respect thereto Customer
shall debit or credit the respective AMA Accounts and
transmit payment therefore to the Bank in accordance with
the terms of the AMA Services Agreement as if such
termination had not occurred.
e) Duties After Termination. In order to preserve the
goodwill of Account Holders after termination of the
Agreement, both parties shall cooperate in order to help
facilitate a smooth and orderly transition of AMA
Accounts.
17. AMA Operating Guidelines.
Customer and the Bank acknowledge and agree that they
each have a copy of the AMA Operating Guidelines. The
Customer shall be agree to be bound by the provisions of
the AMA Operating Guidelines by utilizing the Services
selected on the Schedule A, which may be amended from
time to time and effective when accepted by the Bank. The
AMA Operating Guidelines may be amended from time to time
by the Bank.
18. Liability.
a) Scope of Liability. Except as otherwise provided in the
AMA Services Agreement or applicable law, the Bank's
liability relating to any Service is limited to the
actual proven damages arising directly from its own
negligence or willful misconduct. The Bank will not be
liable for any special, incidental (except as may be
required by law), indirect, consequential or punitive
damages, or attorneys' fees. In addition, the Bank will
not be liable for any losses or damages caused by the
action or inaction of Customer, or any agent or employee
of Customer or any other third party whatsoever, whether
or not such action or inaction constitutes negligence or
a breach of the AMA Services Agreement.
b) Force Majeure. The Bank will not be liable for
inabilities to perform, delays, interruptions of service
agencies or any damages caused by strike, fire, flood,
war, industrial disturbances, equipment malfunction,
electrical or mechanical failure, acts of God, civil
commotion, governmental action, delays by third parties,
unusually severe weather or other events or circumstances
beyond its reasonable control. Customer agrees that the
fees charged for the performance of the Services have
been established in contemplation of these limitations on
liability.
c) Duration of Liability. The parties acknowledge that the
reconstruction of events causing Customer to sustain
damages becomes difficult and may be inaccurate more than
one year following the occurrence of such events.
Therefore, Customer agrees that any claim, action, suit
or proceeding against the Bank for damages resulting from
its acts or omissions in the performance of the Services
must be brought within one year from the date of the
Bank's alleged act or omission, unless action is brought
by an Account Holder against the Customer for any action
for which Bank may be liable to the Customer hereunder.
However, if applicable law does not allow reduction of
the statute of limitations to one year, then all claims,
actions, suits or proceedings against the Bank must be
brought within the shortest period of time which such law
allows for agreements limiting periods of time for the
filing of such suits.
d) Liability for Third Parties. Provision of certain
Services is dependent upon the receipt by the Bank of
certain services from third parties. In the event
Services from any such third party becomes unavailable,
the Bank shall use reasonable efforts to obtain
equivalent services from an alternative provider or may,
in its discretion, discontinue the related Service upon
such prior written notice to Customer. The Bank will have
no liability for the performance or nonperformance of any
such third party.
e) Third Party Vendors. Customer may utilize a third party
vendor (such as an ACH third party processor) to deliver
or receive banking transactions and, in so doing,
Customer agrees at all times and in all respects (i) the
vendor is the agent of Customer and not the Bank; (ii)
the Bank makes no representation or warranty regarding
and assumes no responsibility with respect to any
Services performed or promised by the vendor; and (iii)
Customer assumes all risk of loss (including loss or
theft by third parties or employees of Customer or
vendor) prior to the Bank's acceptance of such
transactions from the vendor and subsequent to the
vendor's acceptance of transactions from the Bank.
Customer agrees that it and the vendor will be
responsible for all loss recovery procedures and
processes, although the Bank will undertake reasonable
efforts to facilitate such loss recovery.
f) Indemnification. Customer agrees to indemnify, defend and
hold the Bank, its Affiliates and directors, officers,
employees and agents harmless from and against any
damage, loss or liability of any kind, including without
limitation, settlement costs, reasonable attorneys' fees
and court costs, the Bank may incur i) if the Customer
makes a false representation or breaches a warranty, ii)
if the Customer fails to perform its obligations under
the Agreement or applicable law, or iii) as a result of
the Bank's performance to the Customer in good faith and
without negligence..
g) Survival. The terms of this Section shall survive the
termination of this Agreement.
19. WARRANTIES. THE BANK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN
LAW OR IN FACT, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND OF
MERCHANTABILITY, EITHER TO CUSTOMER OR TO ANY OTHER PARTY WITH
RESPECT TO ANY COMPUTER PROGRAMS OR OTHER SOFTWARE PRODUCTS
PROVIDED BY THE BANK PURSUANT TO ANY SERVICE.
20. Governing Law. The AMA Services Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts and all applicable Federal law.
21. Use of Trademarks and Names. Neither party shall use the
registered trademarks, service marks, logos, names, or any other
proprietary designations of the other party without that party's
prior written approval.
22. Relationship of the Parties. The Bank and Customer agree that in
performing their responsibilities pursuant to the AMA Services
Agreement they are in the position of independent contractors. The
AMA Services Agreement is not intended to create, nor does it
create and shall not be construed to create, a relationship of
partner or joint venture or any association for profit between and
among the Bank and Customer.
23. Representations, Warranties and Covenants. The Customer hereby
makes the following representations, warranties and covenants
which shall be true and correct on the date hereof and shall
continue to be true and correct so long as this AMA Services
Agreement is in effect, or so long as the Customer has any
obligations to the Bank hereunder:
a) Organization. The Customer has the requisite power and
authority required to own its properties and assets, to
carry on its businesses as now being conducted and is
qualified to do business in every jurisdiction in which
it is required to qualify to do business.
b) Validity and Binding Nature. The Customer has the power
to execute, deliver, and perform the AMA Service
Agreement and when executed and delivered, the AMA
Services Agreement will be a valid and binding obligation
of the Customer, enforceable in accordance with its
terms.
c) Due Authorization. The execution, delivery and
performance of the AMA Services Agreement has been duly
authorized by all corporate action required for the
lawful creation and issuance and performance thereof and
will not violate any Law or the constituent documents and
by-laws of the Customer.
d) Authorization and Consents. The Customer has obtained all
necessary authorizations, consents, approvals, licenses
or exemptions from, and has made all necessary
registrations, qualifications, designations, declarations
or filings with, any Governmental Authority, for the
valid execution, delivery and performance by the Customer
of the AMA Services Agreement and the offering of AMA
Services by the Customer to its Account Holders.
e) Customer's Account Holders. The Customer, before
accepting an Account Holder and thereafter for so long as
any person or entity remains an Account Holder, performed
due diligence. The Customer will provide a certified
taxpayer identification number ("TIN"), when applicable,
for each Account Holder and assumes full responsibility
for not providing such number.
f) Disclosures to Account Holders. The Customer shall
provide to its Account Holders all disclosures,
prospectuses, information and notices regarding the AMA
Services, as required by all applicable Laws.
g) Compliance with Laws. Neither the execution and delivery
of the AMA Service Agreement by the Customer, nor
consummation by Customer of the transactions contemplated
herein, nor performance of or compliance with the terms
and conditions hereof, nor the offering of AMA Services
by the Customer to its Account Holders does or will
violate or conflict with any Law, including, but not
limited to, any Laws relating to the United States
Department of the Treasury Office of Foreign Assets
Control.
h) Misrepresentation/Complete Disclosure. Neither the AMA
Services Agreement, nor any other document, statement, or
certificate furnished to the Bank by or on behalf of the
Customer in connection herewith, either contains an
untrue statement of a material fact or omits to state a
material fact necessary which omission would render any
other statements contained therein misleading.
24. Notices. Except as otherwise provided hereon, all notices,
requests and approvals required by the AMA Services Agreement (i)
shall be in writing, (ii) shall be addressed to the parties as
indicated below unless notified in writing of a change of address,
and (iii) shall be deemed to have been given either when
personally delivered or, if sent by mail, overnight delivery
service, facsimile transmission, upon delivery thereof. The
addresses of the parties are as follows:
To the Bank: Boston Safe Deposit and Trust
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: 000 000-0000
Copy to: Mellon Global Cash Management
x/x Xxxxxx Xxxx, X.X,
Xxxxxx Client Service Center, Room 154-1380
Xxxxxxxxxx, XX 00000-0000
Attention: Document Control Group Manager
Facsimile Number: 000 000-0000
To Customer: CBNY Investment Services Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, Operations Department
Facsimile Number: _____________________
25. Entire Agreement: Modifications and Changes. The AMA Services
Agreement and Schedules A attached hereto, together with the AMA
Operating Guidelines, incorporated by reference, constitutes the
entire AMA Services Agreement between the parties relating to the
subject matter herein. The Bank may amend the Mellon Global Cash
ManagementSM Services Terms and Conditions, and/or the AMA
Operating Guidelines from time to time by giving notice to
Customer. In addition, the Bank may agree to modifications of this
AMA Services Agreement; however, such modifications will be
effective only if made in writing. The Customer may amend the
Schedule A by providing a new Schedule A properly completed and
authorized and subject to acceptance by the Bank prior to any
service implementation.
26. No Third Party Beneficiaries: Assignment. Subject to the
provisions of this Section, the AMA Services Agreement and the
rights and obligations created under it shall be binding upon and
inure solely to the benefit of the parties hereto and their
respective successors and assigns, and no other person shall
acquire or have any right under or by virtue of the AMA Services
Agreement. The AMA Services Agreement shall not be assigned or
transferred by the Customer, in whole or in part, voluntarily,
involuntarily or by operation of law, without the prior written
consent of the Bank. The Bank may, however, assign the AMA
Services Agreement to any affiliate without giving notice to the
Customer. Subject to the provisions of the foregoing, the AMA
Services Agreement will be binding upon and inure to the benefit
of the parties hereto and their respective representatives,
successors and assigns.
27. Effectiveness. The AMA Services Agreement shall become effective
when it has been accepted and executed on behalf of Customer by an
authorized officer and on behalf of the Bank by an authorized
officer. The AMA Services Agreement supercedes all prior and
contemporaneous understandings and agreements, whether written or
oral, among the parties hereto relating to the transactions
provided for herein and therein.
28. Waivers. Neither of the parties shall be deemed to have waived any
of its rights, powers or remedies hereunder unless such waiver is
approved in writing by the waiving party. No failure or delay by
either party in exercising any right, power or remedy with respect
to any of the provisions of the AMA Services Agreement will
operate as a waiver of such provisions with respect to subsequent
occurrences.
29. Severability. If any provision of the AMA Services Agreement or
portion thereof is held invalid, illegal, void or unenforceable by
reason of any rule of law, administrative or judicial provision or
public policy, all other provisions of the AMA Services Agreement
shall nevertheless remain in full force and effect.
30. Headings. The headings contained herein are for convenience of
reference only and are not intended to define, limit, expand or
describe the scope or intent of any provision of the AMA Services
Agreement.
31. Singular Terms. Terms defined in the AMA Services Agreement in the
singular shall be deemed to include the plural and those defined
in the plural shall be deemed to include the singular.
32. Confidentiality. The Customer and Bank will use their best efforts
to protect the integrity and confidentiality of all data and
procedures, Customer information, and documents related to each
parties' in using the Service. Each will provide and take all
necessary or appropriate security precautions to ensure access to
such data, Customer information and documents shall be available
only to the personnel required in conjunction with the Service.
Each will not divulge or communicate to any third party not
involved in the Service and information concerning such data,
Customer information and documents unless required under
applicable law or so directed by an authorized person.
Remaining of Page Intentionally Left Blank
IN WITNESS WHEREOF, intending to be legally bound by the terms and
conditions of the AMA Services Agreement, the parties have caused this
Asset Management Account Services Agreement to be signed under seal as of
the day indicated below their signature.
CBNY INVESTMENT SERVICES CORP.
By: /s/ Xxxx Xxxxxxxxx Xxxxxxxx
-----------------------------
Name (Printed): Xxxx X. Xxxxxxxx
----------------
Title: President
-------------------------
Date: 5/15/01
-------------------------
BOSTON SAFE DEPOSIT AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name (Printed): Xxxxxx X. Xxxxxx
-------------------
Title: Vice President
----------------------------
Date: 5-17-01
----------------------------
ASSET MANAGEMENT ACCOUNT SERVICES AGREEMENT
SCHEDULE A
This Schedule forms an integral part of the Asset Management Account
Services Agreement ("AMA Services Agreement") executed by and between CBNY
Investment Services Corp. ("CBNY") and Boston Safe Deposit and Trust
Company ("Boston Safe"). The Services initialed below constitute the
Services provided pursuant to that Agreement. By selecting any such
Service, Customer concurrently selects all standard features thereunder.
I. DRAFT PROCESSING
A. Standard Features
o Daily Settlement and Funding Yes
o Return Processing Yes
o Stop Payment Processing Yes
o Adjustments Yes
o Signature Scanning Yes
o Photo Copy Requests Yes
o Forged Signature Claims Yes
o Forged Endorsement Claims Yes
B. Optional Features
o Signature Verification Yes
o Check Detail Enhancement Yes
o Collection Items Processing Yes
o Dollar Minimum/Maximum Cutoffs No
o Check Ordering and Testing Yes
o Account Holder Database Yes
o Cancelled Check Rendering No (exception basis only)
o Treasury, Tax and Loan Payments No
II. DEBIT CARD
A. Standard Features
o Daily Settlement and Funding Yes
o Chargebacks Yes
o Adjustments Yes
o Balance Files Daily
o Inquiries Yes
o Lost or Stolen MasterMoney
Card Claims Yes
o Unauthorized Master Money
Transactions Yes
B. Optional Features
o Card Ordering Will be handled by CBNY
o Account Holder Database Yes
o Liability Coverage (POS and ATM) $9,999 POS $1,000 ATM
III. ACH (Receiving)
A. Standard Features
o Daily Settlement and Funding Yes
o Reclamations (Government) No
o Return ACH Items Yes
B. Optional Features
o Credits only No
o Debits only No
o Both Credits and Debits Yes
IV. BONUS AWARDS PROGRAM
A. Standard Features
o Bonus Database No
CBNY Investment Services Corp.
By: /s/ Xxxx Xxxxxxxxx Xxxxxxxx
---------------------------------
Name (Printed): Xxxx X. Xxxxxxxx
--------------------
Title: President
----------------------------
ACCEPTED THIS 15 DAY OF MAY,
Boston Safe Deposit And Trust Company
By: /s/ Xxxxxx X. Xxxxxx
Name (Printed): Xxxxxx X. Xxxxxx
-----------------------
Title: Vice President
--------------------------------
