FIRST AMENDMENT TO AMENDED AND RESTATED WIRING AGREEMENT
Exhibit (h)(1)
FIRST AMENDMENT TO AMENDED AND RESTATED
WIRING AGREEMENT
WIRING AGREEMENT
THIS FIRST AMENDMENT is made as of July 18, 1994 by and among STATE STREET BANK AND TRUST
COMPANY, a Massachusetts banking corporation (“State Street”), XXXXXXX, XXXXX & CO., a New York
limited partnership (“Goldman”), and THE NORTHERN TRUST COMPANY, an Illinois banking corporation
(“Northern”) and shall amend that certain Amended and Restated Wiring Agreement dated as of January
25, 1994 executed by and among State Street, Goldman and Northern (the “Amended and Restated Wiring
Agreement”).
WITNESSETH:
WHEREAS, State Street has been appointed custodian of the securities and cash of the open-end
management investment companies registered under the Investment Company Act of 1940 that are listed
on the attached Exhibit A of the Amended and Restated Wiring Agreement;
WHEREAS, the Amended and Restated Wiring Agreement provided for Northern to act as its
sub-custodian pursuant to each custodian agreement that governs a Portfolio (as defined in the
Amended and Restated Wiring Agreement), and to perform the services provided for in the Amended and
Restated Wiring Agreement relating to maintaining the accounts referred to therein; and
WHEREAS, the parties hereto desire to amend the Amended and Restated Wiring Agreement to allow
for the receipt of checks in connection with the purchase of shares or units of a Portfolio as set
forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Terms Used. Terms used but not otherwise defined herein are used with the same
meanings as in the Amended and Restated Wiring Agreement, as amended hereby.
2. Section 1.01. Section 1.01 of the Amended and Restated Wiring Agreement is hereby
deleted in its entirety and the following is substituted in lieu thereof:
“1.01 Transfer of Remittances Received to State Street.
Northern will receive remittances in purchase of units of a
Portfolio by Federal Reserve wire from existing and prospective
unitholders of a Portfolio or by check deposited by Goldman. For
purposes of this Agreement, the term “check” shall be deemed to
include money orders.
(a) Transfer of Remittances Received by Federal Reserve Wire to State
Street. Subject to the terms of Section 1.02, remittances for a Portfolio
received by Northern by Federal Reserve wire in collected federal funds before the
Closing Hour established by the Federal Reserve Bank in Chicago in
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accordance with Appendix A of its Operating Circular No. 8, as revised from
time to time, for acceptance of third party wire transfers (“Transfer Deadline”) on
each “Business Day” (as such term is defined in Article 7 hereof) will be
transferred periodically during such Business Day to State Street by Federal Reserve
wire for crediting to a Portfolio’s custodial account pursuant to and in accordance
with Instructions from Goldman. For purposes of this Agreement, transfers to State
Street shall be deemed effected at such time as they are accepted by the Federal
Reserve Bank of Chicago. Remittances received by Northern by Federal Reserve wire
in collected federal funds on any Business Day will be so transferred as early as
practicable on the following Business Day upon Instructions from Goldman. Northern
shall make available to Goldman by 9:00 a.m., Chicago time, on each Business Day
information concerning the amount of any federal funds received by Northern on the
preceding Business Day by Federal Reserve wire that were not transferred to State
Street on such preceding Business Day, including the amount of any returned wires
described in Section 1.06. The phrase “received by Northern”, or its equivalent,
wherever appearing in this Agreement means received by Northern in Chicago unless
otherwise indicated.
(b) Transfer of Remittances Received by Check from Goldman to State
Street. Subject to the terms of Section 1.02, remittances for a Portfolio
received by Northern by check deposited by Goldman will be transferred no earlier
than on such check’s Check Transfer Date (as defined hereinbelow) to State Street by
Federal Reserve wire for crediting to a Portfolio’s custodial account pursuant to
and in accordance with Instructions from Goldman. Remittances so received by
Northern by check will be so transferred as early as practicable but in no event
prior to the appropriate Check Transfer Date, as set forth in this Section 1.01(b)
above, upon Instructions from Goldman. The term “Check Transfer Date” shall mean a
Business Day two (2) Business Days after the receipt of any check by Northern if
received by Northern no later than 2:00 p.m. on the date of receipt or three (3)
Business Days if received by Northern later than 2:00 p.m. on the date of receipt.”
3. Section 1.02. Section 1.02 of the Amended and Restated Wiring Agreement is hereby
deleted in its entirety and the following is substituted in lieu thereof:
“1.02 Delayed Transfers. Remittances in purchase of units
of a Portfolio which are being held pending transfer by Northern as
described in Section 1.01 will be deposited in an account or
accounts in the name of State Street as custodian for a Portfolio
(collectively, the “Purchase Account”).
(a) If all of the funds in the Purchase Account which are received by Northern
by Federal Reserve wire in collected federal funds not later than 15 minutes before
the Transfer Deadline are not transferred to State Street on the same day such funds
are received by Northern, Northern shall be penalized and
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shall be liable to State
Street as custodian for a Portfolio a penalty with respect to all or such portion of
the funds that were not so transferred pending transfer of such funds to State
Street. Such penalty shall be computed using the Federal Funds Rate Less Reserves
(as defined in Section 7.07) applicable to each day of
the period for which such penalty shall be payable as such Rate may change from
day to day during such period (the “Penalty Amount”). Under the following
circumstances Northern may be penalized and may be liable to State Street as
custodian for a Portfolio with respect to certain other remittances (including
remittances returned by State Street as described in Section 1.06): (1) In the
event remittances in the aggregate amount of less than $10,000,000 are received by
Northern by federal Reserve wire in collected federal funds during the period
beginning 15 minutes before the Transfer Deadline and ending 15 minutes after the
Transfer Deadline are not transferred to State Street on the same day such funds are
received by Northern, Northern shall be penalized and shall be liable to State
Street as custodian for a Portfolio for the Penalty Amount with respect to all or
such portion of such aggregate amount that was not so transferred pending transfer
of such funds to State Street; (2) In the event (a) remittances in the aggregate
amount of $10,000,000 or more are received by Northern by Federal Reserve wire in
collected federal funds later than 15 minutes before the Transfer Deadline, or (b)
remittances in any amount are received by Northern by Federal Reserve wire in
collected federal funds later than 15 minutes after the Transfer Deadline, Northern
shall be required to use only its best efforts to transfer the funds to State
Street, and any penalty for Northern’s failure to transfer such funds to State
Street on the same day the funds are received by Northern shall be limited to such
amount, if any, as State Street, Goldman and Northern agree upon, and if they are
unable to agree, as Northern determines, in its sole discretion, is reasonable and
appropriate under the circumstances. Northern shall be responsible for the
safekeeping of all funds held in the Purchase Account, and the amounts due State
Street under this Section shall be transferred to State Street as soon as
practicable upon receipt of Instructions from State Street.
(b) If all of the funds in the Purchase Account which are received by Northern
by check are not transferred to State Street on the relevant Check Transfer Date
upon Instructions to so transfer received from Goldman Northern shall be penalized
and shall be liable to State Street as custodian for a Portfolio for a penalty equal
to the Penalty Amount with respect to all or such portion of the funds that were not
so transferred pending transfer of such funds to State Street. Northern shall be
responsible for the safekeeping of all funds held in the Purchase Account, and the
amounts due State Street under this Section shall be transferred to State Street as
soon as practicable upon receipt of Instructions from State Street.”
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4. Captions. The captions employed with respect to Sections in this First Amendment
are for convenient reference solely and will not affect the construction or interpretation hereof.
5. Successors and Assign. This First Amendment shall be binding upon and shall inure
to the benefit of the parties hereto, their respective successors and assigns.
6. Governing Law. The laws of the State of Illinois shall govern the construction and
interpretation hereof.
7. Counterparts. This First Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day
and year first above written.
| STATE STREET BANK AND TRUST COMPANY |
||||
| By | /s/ Xxxxxx X. Xxxxxx | |||
| NAME: Xxxxxx X. Xxxxxx | ||||
| TITLE: Vice President | ||||
| XXXXXXX, SACHS & CO. |
||||
| By | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| NAME: Xxxxxxx X. Xxxxxxxxx | ||||
| TITLE: General Partner | ||||
| THE NORTHERN TRUST COMPANY |
||||
| By | /s/ Xxxxx X’Xxxxx | |||
| NAME: Xxxxx X’Xxxxx | ||||
| TITLE: Second Vice President | ||||
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