Exhibit (K)(2)
MASTER FUNDS TRANSFER AGREEMENT
This Master Funds Transfer Agreement (herein called "Agreement") sets
forth the rights, duties and obligations of Fifth Third Bank ("Bank"), and
Xxxxxx Funshares, Inc. whose business address is 0000 X. 0xx Xx. 0xx Xxxxx,
Xxxxxxxxx, XX 00000 ("Customer") with respect to the transfer of funds, issuance
of foreign drafts, or any other means of transferring money (collectively
referred to as "Funds Transfer") within the United States and internationally
and includes one or more addenda, which pertain to specific means of affecting
such transfer. The undersigned wire transfer customer hereby requests the Bank
to execute and charge Customer's account(s) for oral, written or electronically
transmitted instructions to transfer funds on the terms and conditions set forth
herein.
1. CUSTOMER REPRESENTATIVES AUTHORIZED TO EXECUTE AGREEMENT AND
INSTRUCTIONS. As a condition to the Bank's obligations hereunder, (a) by written
resolutions acceptable to the Bank, Customer shall designate those individuals
(herein referred to as "Signatory Customer Representative(s)") who shall be
authorized on behalf of Customer to execute and deliver to the Bank this
Agreement, any modifications hereto and any other documents and notices
described herein, and (b) such Signatory Customer Representative(s) shall
designate by written exhibit hereto at least two "Authorized Customer
Representatives" as the sole representatives of Customer authorized to transmit
and verify wire transfer instructions hereunder on behalf of Customer.
Designation of Authorized Customer Representatives may be altered or revoked
from time to time upon written notice to the Bank from any Signatory Customer
Representative, provided that the Bank may in its sole discretion act upon
verbal notice of revocation which the Bank reasonably believes to be from any
Signatory Customer Representative, which revocation shall later be confirmed in
writing by a Signatory Customer Representative.
2. AUTHORIZATIONS. Customer hereby authorizes the Bank:
(a) to execute and charge to Customer's accounts at the Bank
all wire transfer instructions transmitted by an Authorized Customer
Representative in accordance with this Agreement;
(b) to transfer funds (i) from specific Customer accounts with
the Bank to any other specified Customer bank accounts, whether such accounts
are with the Bank or other banks or financial institutions ("Intra-Customer
Transfer"), and (ii) (unless Customer requests otherwise as hereinafter set
forth) from Customer accounts with the Bank to any accounts of a third party,
whether such third-party accounts are with the Bank or other banks or financial
institutions ("Third-Party Transfer");
(c) in the Bank's sole discretion, to record mechanically any
voiced instructions transmitted to the Bank:
(d) in the Bank's sole discretion, to execute wire transfer
instructions transmitted by Customer (or others) in any order convenient to the
Bank, in compliance with The Payment System Risk Reduction Policy of The Federal
Reserve System, and to select such means and routes for the transfer of funds as
the Bank considers appropriate under the circumstances; and
(e) to accept and deposit incoming transfers of funds as
designated on the incoming wire transfer; and Customer may request, and Bank
will, in its sole discretion, attempt to carry-out any special instructions,
however, Customer remains solely responsible for the accuracy and timeliness of
all instructions; and
(f) to charge Customer (i) such reasonable wire transfer fees
as the Bank may impose from time to time in accordance with its customary
pricing policies, and (ii) any direct or indirect transfer charges incurred by
the Bank arising out of the Bank's execution of Customer's wire transfer
instructions. In the Bank's sole discretion, such charges may be assessed
directly against Customer's accounts, or may be imposed or charged to Customer
indirectly through account analysis and/or balance requirements.
3. PERSONAL IDENTIFICATION NUMBERS ("PINS"). Following the execution
hereof, the Bank shall issue PINs to Customer, one for each Authorized Customer
Representative, for use in the transmission of wire transfer
instructions. The Bank shall be entitled to reissue replacement PINs as the Bank
in its sole discretion shall from time to time deem advisable.
4. INSTRUCTIONS.
(a) STANDARD OPERATING PROCEDURES. All wire transfer
instructions shall be originated in accordance with current "Standard Operating
Procedures" published by the Bank for such purpose. The Bank shall be entitled
to modify Standard Operating Procedures from time to time on at least ten (10)
days notice to Customer. Any such modifications not objected to in writing by
Customer within said ten (10) day period shall be deemed accepted by Customer.
(b) REPETITIVE INSTRUCTIONS. "Repetitive Instructions" are
wire transfer instructions which remain constant except for the amount and date
of transfer. Customer may request the Bank to establish one or more series of
Repetitive Instructions, and to execute transfers pursuant thereto, by providing
for each such series all wire transfer information which will remain constant
for such series, in the form of an exhibit hereto as the Bank may from time to
time designate. For each such series the Bank shall issue "Repetitive Numbers"
for use by Customer in the transmission of Repetitive Instructions.
(c) CUSTOMER RESPONSIBILITY. Customer is liable for the
accuracy of all instructions regardless of the method used to communicate said
instructions to Bank. Whenever telephonic audio instructions are communicated by
Customer to Bank, the Customer is responsible for the accuracy of the initial
communication of the instructions as well as the accuracy of any confirmatory
reading of or callback of the instructions made on the part of the Bank.
Notwithstanding any other provision of this Agreement, the Bank shall not be
responsible for any losses associated with effecting transfers pursuant to
instructions provided by Customer or any third party in Customer's behalf,
regardless of whether the account number recipient or routing instructions
provided by Customer are incorrect. Customer shall indemnify and hold Bank
harmless for all costs and expenses (including, without limitation, reasonable
attorney's fees) incurred by Bank in connection with retrieving funds
transferred by Bank pursuant to instructions provided by Customer or any third
party on Customer's behalf.
5. SECURITY OF PINs AND REPETITIVE NUMBERS. Customer shall protect PINs
and Repetitive Numbers with the highest level of security, shall establish
procedures to ensure the confidentiality thereof and shall make the same known
only to the Authorized Customer Representatives who will use the same. Customer
shall promptly notify the Bank of any breach of such security involving PINs or
Repetitive Numbers, including without limitation, the actual or suspected
misuse, loss, misplacement or unauthorized disclosure of same.
6. CUSTOMER CALLBACK: ADDITIONAL SECURITY MEASURES: CUSTOMER REQUESTED
SECURITY MEASURES; THE BANK'S STANDARD OF CARE.
(a) CUSTOMER CALLBACK. The Bank shall, in its sole discretion,
be entitled to verify wire transfer instructions, as a condition to the Bank's
execution of the same, by way of return telephone call to an Authorized Customer
Representative other than the Authorized Customer Representative originating
such instructions (herein referred to as "Customer Callback"). The Bank shall be
entitled to execute instructions whether or not Customer Callback is obtained,
and shall not be liable to Customer or others solely because the Bank was unable
or otherwise failed to obtain a Customer Callback. For Customer convenience, the
Bank, at its option, may designate in its Standard Operating Procedures, the
categories of wire transfer instructions subject to Customer Callback, without
limitation, however, as to the Bank's entitlement to require Customer Callback
for any wire transfer. The Customer agrees that such Customer Callback policy
provided herein, including, without limitation, the Bank's policy limiting
Customer Callback to non-repetitive transfers is "commercially reasonable" and
such non-repetitive transfers shall be deemed "verified" as set forth in Section
6(d) of this Agreement.
(b) ADDITIONAL SECURITY MEASURES. In addition to the use of
PINs, Repetitive Numbers and
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Customer Callback, the Bank shall, in its sole discretion, be entitled to
institute such additional measures affecting Customer's transmission of
instructions as the Bank reasonably believes necessary or advisable to maintain
the security and confidentiality of the wire transfer services which it
provides, whether or not such additional measures are required of other
customers of the Bank.
(c) CUSTOMER REQUESTED SECURITY MEASURES. Nothing herein shall
prevent Customer, upon written agreement with the Bank, from requesting the Bank
to follow such additional requirements as Customer may desire respecting
Customer Callback or other security measures, provided that the terms of the
same shall be recorded in the form of an exhibit hereto.
(d) THE BANK'S STANDARD OF CARE. Notwithstanding anything
herein to the contrary, Customer and the Bank expressly agree that the standards
established herein or in any exhibits hereto with respect to the Bank's
execution of wire transfer instructions are reasonable in the context of
Customer's operations, requirements and internal procedures. Customer's election
to continue this agreement in effect notwithstanding modifications or amendments
to such procedures as provided herein shall constitute reaffirmation of such
agreement by Customer. Customer further agrees that the procedures outlined in
this Agreement shall be deemed "commercially reasonable" security procedures and
any payment orders executed as set forth herein shall be deemed "verified", as
such terms are used in Article 4A of the Uniform Commercial Code in determining
whether Customer is obligated to make payment of such amount to Bank.
7. LIMITATIONS ON OBLIGATIONS AND LIABILITIES OF THE BANK.
(a) LIMITATIONS ON THE BANK'S OBLIGATIONS. The Bank shall be
entitled, in its sole discretion, to elect not to execute wire transfer
instructions transmitted by Customer in the event such instructions are
inconsistent with information previously supplied to the Bank or are transmitted
other than in accordance with the terms hereof, or, in general, if the Bank
reasonably believes that execution of such instructions might result in an
unauthorized or erroneous transfer of funds. The Bank may reasonably rely on any
instructions received from someone purporting to be an Authorized Customer
Representative, provided such instructions are given in a manner consistent with
the terms of this Agreement. The Bank shall have no duty beyond that of acting
in good faith to discover and report to Customer any actual or suspected breach
of security or unauthorized disclosure respecting PINs, Repetitive Numbers, or
any other security procedures, rules or regulations from time to time
established by the Bank.
(b) LIMITATIONS ON THE BANK'S LIABILITIES. Except for
liability occasioned by the Bank's willful or intentional acts, the Bank shall
not be liable for any claims, demands, expenses (including attorney's fees and
costs), loss or damage of any nature whatsoever arising directly or indirectly
out of the Bank's execution of or failure to execute wire transfer instructions
transmitted by Customer hereunder. Customer agrees to indemnify and hold the
Bank harmless from any and all of such claims, demands, expenses (including
attorney's fees and costs), loss or damage asserted against the Bank by Customer
or any third party. In no event shall the Bank be liable to Customer or any
third party for consequential, punitive or indirect damages, or special losses
or damages. Customer acknowledges the Bank's inability in the ordinary course to
foresee, due to the complexity and volume of the Bank's wire transfer system,
any special circumstances attendant to any particular wire transfer instruction
which may result in special or unusual losses to Customer or others beyond the
dollar amounts specified in such instructions. Without limiting the foregoing,
the Bank shall not be liable for any claims, demands, expenses (including
attorney's fees and costs), loss or damage resulting from execution of wire
transfer instructions transmitted to the Bank from authorized persons
accompanied by proper PINs or wire transfers which are refused or rejected by
the receiving bank, regardless of the reason for such refusal. Subject to the
requirements of Section 10 below, and irrespective of the actual or any alleged
degree of care or lack thereof exercised by the Bank. Customer or any other
person or entity, Customer and the Bank agree that, with respect to any wire
transfer instructions or execution thereof, no controversy shall be submitted to
arbitration, nor any claim asserted in a court of law or otherwise by one party
hereto against the other, after one (1) year from the time at which the Bank
first provides Customer with advice of such transfer, whether by separate
transfer advice or by account statement.
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(c) CAUSES BEYOND BANK'S CONTROL. The Bank shall not be
responsible for any liability, loss or damage resulting from any execution of,
priority or delay in execution of or failure to execute, any wire transfer
instructions transmitted to the Bank, or to perform any other obligations under
this Agreement, which is caused by an act of God, fire, floods, adverse weather
conditions or other catastrophes; war, sabotage, riots, acts of a public enemy,
or acts of governmental authority; labor difficulties; equipment or computer
failure or destruction or the unavailability, interruption or malfunction of
communications facilities or utilities; acts of, delays or failure to act by,
Customer or recipients of transferred funds and their personnel; intermediary
bank insolvency; criminal acts; or generally any cause reasonably beyond the
Bank's control.
8. DAILY DEADLINES. The Bank shall be entitled to establish daily
deadlines for the transmission of wire transfer instructions. The Bank shall use
its best efforts to execute on the day received all instructions transmitted to
the Bank before the daily deadline, but shall not be responsible to Customer or
others for delays in the execution of such instructions, including, without
limitation, delay until the Bank's next business day of execution of
instructions received late in the day, or delay occasioned by the fact that such
day is not a business day for any communications facility or other bank through
which such instructions are routed. The Bank shall be entitled, in its sole
discretion, to change daily deadlines.
9. FINALITY OF INSTRUCTIONS. Customer shall have no right to reverse,
revoke or alter a wire transfer instruction after such time as any action
implementing the execution of such instruction, including electronic or
computerized processing thereof, has been initiated by the Bank, except upon
mutual agreement. Except upon its own initiative or upon instructions therefor
from Customer, the Bank shall have no obligation to request a return of funds
from any transferee or intermediary wire transfer agent, regardless of the
extent, if any, of irregularity, erroneousness or lack of authority of such
transfer.
10. TRANSFER ADVICES; STATEMENT OF ACCOUNTS. The Bank shall provide
advice of Customer's wire transfers in the form (at the option of the Bank) of
either a separate transfer advice or a periodic statement of account. Customer
shall promptly review and reconcile all transfer advices and statements of
accounts received by it. Failure to report any discrepancies or objections
with respect to any wire transfer within thirty (30) days after advice thereof
is first transmitted by the Bank to Customer (whether by separate transfer
advice or by statement of account) shall relieve the Bank of all responsibility
for any claims, demands, expenses (including attorney's fees and costs), loss or
damage with respect to such discrepancies or objections. In the event that
Customer has not notified Bank within such 30 day period of the receipt of any
statement pertaining to Customer's account at Bank of any inaccuracies in such
statement, Customer shall be deemed to have approved any transfer detailed in
such statement. This provision shall apply notwithstanding any provision of
applicable law, including without limitation, Article 4A of the Uniform
Commercial Code.
11. OVERDRAFTS. The Bank shall have no obligation to execute wire
transfer instructions if the collected balance of the account to which such
instructions relate is not sufficient to complete the transfer. Customer shall
be liable, and shall upon demand promptly reimburse the Bank, for any amount
transferred in excess of the collected balance in any Customer account.
12. ASSIGNMENT. Neither party may assign this Master Agreement or
related addenda and its rights and duties hereunder, and any attempted
assignment shall be null and void. This Master Agreement contains the entire
agreement of the parties with respect to its subject matter, and no oral or
prior written statements or representations not contracted herein shall have any
force or effect, nor shall any part of this Master Agreement be amended,
supplemented, waived or otherwise modified except in writing by both Customer
and Bank.
13. TERMINATION. This Master Agreement shall remain in full force until
terminated by either party. Such termination shall be effective upon receipt
of written notice.
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14. MISCELLANEOUS. Except as otherwise provided in the Master
Agreement, notices required to be given shall be effective if given in writing,
hand delivered, or sent by postage prepaid mail and addressed as follows:
Bank: The Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Wire Transfer Department
Customer: Xxxxxx Xxxxxx
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Xxxxxx Funshares, Inc.
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0000 X. 0xx Xxxxxx 0xx Xxxxx
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Xxxxxxxxx, Xxxx 00000
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Attention: Xxxxxx X. Xxxxxx
----------------------
This Agreement, together with any and all exhibits and schedules hereto
and additional written agreements which may be incorporated herein by
reference, constitutes the entire agreement of the Bank and Customer, and
supersedes any and all other agreements, either oral or in writing, between the
parties with respect to the subject matter hereof. No representation promise or
other agreement not expressed in this Agreement or incorporated herein by
written instrument will have any force or effect. All notices to the Bank
hereunder shall be in writing and directed to the address therefor at the
heading hereof. The Bank shall have a reasonable time in which to act on any
notice addressed to it, which shall be at least two (2) business days. Any
transfer advice or account statement shall for purposes hereof be deemed
transmitted by the Bank to Customer if hand delivered to Customer or mailed by
first class mail to the mailing address provided by Customer for such purpose in
its Designation of Authorized Customer Representatives, which mailing address
may be changed by Customer upon notice to the Bank. This Agreement shall be
governed by the laws, including choice of law principles, of the State of Ohio.
The Customer and Bank hereby agree that the state and federal courts located in
Xxxxxxxx County, Ohio, or any other court in which Bank institutes proceedings,
shall have exclusive jurisdiction over all matters arising under this
Agreement. All substantive and procedural provisions hereof relative to
liabilities of the parties shall survive any termination of this Agreement. This
Agreement may be amended only by written instrument executed by the Bank and any
Signatory Customer Representative on behalf of Customer.
15. AGENTS. Customer hereby acknowledges that Bank may retain the
services of any other wholly-owned subsidiary of Fifth Third Bancorp
(collectively the "Affiliates") as its agent to assist Bank in providing the
services and performing its duties and obligations hereunder and under any
addendums attached hereto. Customer hereby approves of such agency relationship
and hereby agrees that, notwithstanding any other provision set forth herein to
the contrary, all approvals, authority, indemnities, limitations of liability,
standards of care, rights and protections granted to Bank hereunder and under
any addendums attached hereto will also apply to and will inure to the benefit
of each of the Affiliates and their respective officers and employees.
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16. CUSTOMER HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY OF ANY MATTERS
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Submitted this 17 day of Sept, 2001
Customer: Xxxxxx Funshares, Inc.
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By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chairman
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Accepted by the Bank this ___ day of_______________, 20_
Bank:
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By:
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Name:
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Title:
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[FIFTH THIRD BANK LOGO]
FIFTH THIRD BANK
FUNDS TRANSFER AUTHORIZATION
PRINT OR TYPE
Customer Name : Xxxxxx Funshares, Inc Date :
--------------------------------- --------------------
Mailing Address :
Street: 0000 Xxxx 0xx Xxxxxx 6th Floor
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City: Cleveland State: Ohio Zip: 44114
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Telephone :
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Account Numbers to be Used:
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Authorized Customer Telephone Number Authorized Limit per Non Verify
Representative Transfer ($) Repetitive Repetitive Callback
{X} (X) (X)
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Xxxxxx X. Xxxxxx 1-216-274-5388 X X X
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Xxxxx X. Xxxxxxx 0-000-000-0000 X X X
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Customer Approval:
By: Xxxxxxxxx Xxxxxxxxxxx Date: Sept 17, 2001
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SIGNATORY CUSTOMER REPRESENTATIVE
Name : /s/ Xxxxxxxxx X. Xxxxxxxxxxx
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Title: Secretary
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FIFTH THIRD BANK USE ONLY
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ACCOUNT OFFICER NAME: PHONE:
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BRANCH NAME : PHONE:
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OFFICER APPROVAL : DATE:
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FUNDS TRANSFER MAINTENANCE
ENTERED BY : DATE :
--------------------------------- -----------------
VERIFIED BY: DATE:
--------------------------------- -----------------
WHITE - FUNDS TRANSFER YELLOW - CUSTOMER
(HEREAFTER REFERRED TO AS BANK")
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Name (Primary Owner) Account No.
Xxxxxx Funshares, Inc
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Street Address Type
0000 X. 0xx Xxxxxx 6th Floor
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City and State Zip
Xxxxxxxxx, Xxxx 00000
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Home Phone Date of Birth Mother's Maiden Name
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Employer Work Phone
216-274-5388
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Tax ID or S.S. Number [ ] NEW [ ] ADD [ ] REPL
00-0000000
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Ownership Opened by BC No. Date
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[X] Corporation [ ] Non Resident Alien [ ] LLC [ ] Government [ ] Non Profit [501(c)(3)]
[ ] Sole Proprietorship [ ] Partnership [ ] LLP [ ] Trust [ ] Other________________
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THE UNDERSIGNED AGREES TO THE TERMS AND CONDITIONS AT THE RIGHT.
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Title
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X /s/ Xxxxxx X. Xxxxxx
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X /s/ Illegible
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X /s/ Illegible
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X /s/ Xxxxxx X. Xxxxxx Sig.(s)
# Req'd
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Statement Address
Xx. Xxxxxxx Xxxxxxxxx
Mutual Shareholder Service
0000 Xxxxxxxxxxx Xxxx Xxxxx X
Xxxxxxxxxxx, Xxxx 00000
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UNDER PENALTIES OF PERJURY, I certify that:
1. THE NUMBER SHOWN ON THIS FORM IS MY CORRECT TAXPAYER IDENTIFICATION NUMBER
(OR I AM WAITING FOR A NUMBER TO BE ISSUED TO ME) AND,
2. I AM NOT SUBJECT TO BACKUP WITHHOLDING BECAUSE: (a) I AM EXEMPT FROM BACKUP
WITHHOLDING, OR (b) I HAVE NOT BEEN NOTIFIED BY THE INTERNAL REVENUE SERVICE
THAT I AM SUBJECT TO BACKUP WITHHOLDING AS A RESULT OF A FAILURE TO REPORT ALL
INTEREST OR DIVIDENDS, OR (c) THE IRS HAS NOTIFIED ME THAT I AM NO LONGER
SUBJECT TO BACKUP WITHHOLDING.
CERTIFICATION INSTRUCTIONS. YOU MUST CROSS OUT ITEM 2 ABOVE IF YOU HAVE BEEN
NOTIFIED BY THE IRS THAT YOU ARE CURRENTLY SUBJECT TO BACKUP WITHHOLDING
BECAUSE OF UNDERREPORTING INTEREST OR DIVIDENDS ON YOUR TAX RETURN.
X /s/ Xxxxxxxxx X. Xxxxxxxxxxx
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Signature
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COPY 1: BANK COPY 2: CHECK PROCESSING
[FIFTH THIRD BANK LOGO]
FIFTH THIRD BANK
SIGNATURE CARD
TERMS AND CONDITIONS
1. THE TERMS AND CONDITIONS STATED HEREIN, TOGETHER WITH RESOLUTIONS OR
AUTHORIZATIONS WHICH ACCOMPANY THIS SIGNATURE CARD, IF APPLICABLE, AND THE
RULES, REGULATIONS, AGREEMENTS, AND DISCLOSURES OF BANK CONSTITUTE THE DEPOSIT
AGREEMENT ("AGREEMENT") BETWEEN THE INDIVIDUAL(S) OR ENTITY(IES) NAMED HEREON
("DEPOSITOR") AND THE BANK.
2. THIS AGREEMENT INCORPORATES THE RULES, REGULATIONS, AGREEMENTS, AND
DISCLOSURES ESTABLISHED BY BANK FROM TIME TO TIME, CLEARING HOUSE RULES AND
REGULATIONS, STATE AND FEDERAL LAWS, RECOGNIZED BANKING PRACTICES AND CUSTOMS,
SERVICE CHARGES AS MAY BE ESTABLISHED FROM TIME TO TIME AND IS SUBJECT TO LAWS
REGULATING TRANSFERS AT DEATH AND OTHER TAXES.
3. ALL SIGNERS HEREBY AGREE THAT THE ABOVE NAMED BANK IS AUTHORIZED TO ACT AS A
DEPOSITORY UNDER THE TERMS AND CONDITIONS OF THE AGREEMENT.
4. BANK IS AUTHORIZED TO RECOGNIZE THE SIGNATURES EXECUTED HEREON IN SUCH
NUMBERS AS INDICATED, FOR THE WITHDRAWAL OF FUNDS OR TRANSACTIONS OF ANY OTHER
BUSINESS REGARDING THIS ACCOUNT UNTIL WRITTEN NOTICE TO THE CONTRARY IS
RECEIVED BY BANK.
5. IN THE CASE OF OVERDRAFT OR OVERPAYMENT ON THIS ACCOUNT, WHETHER BY ERROR,
MISTAKE, INADVERTENCE OR OTHERWISE, THE AMOUNT OF SUCH OVERDRAFT OR OVERPAYMENT
SHALL BE IMMEDIATELY PAID TO THE BANK.
6. DEPOSITOR ACKNOWLEDGES AND AGREES THAT BANK, FOR ITSELF AND AS AGENT FOR ANY
AFFILIATE OF FIFTH THIRD BANCORP, IS GRANTED A SECURITY INTEREST IN, AND MAY, AT
ANY TIME, SET OFF, AGAINST ANY BALANCE IN THIS ACCOUNT, ANY DEBT OWED TO BANK BY
ANY PERSON HAVING THE RIGHT OF WITHDRAWAL OR ANY DEBT OWED TO BANK BY ANY ENTITY
LISTED UNDER THE ACCOUNT TITLE. A DEBT INCLUDES, BUT IS NOT LIMITED TO, AN
OBLIGATION OWING TO BANK, WHETHER NOW EXISTING OR HEREAFTER ACQUIRED BY BANK
WHENEVER PAYABLE AND WITHOUT REGARD TO WHETHER ARISING AS MAKER, DRAWER,
ENDORSER, OR GUARANTOR.
7. ALL SIGNERS AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREON AND
ACKNOWLEDGE RECEIPT OF A COPY OF THE RULES AND REGULATIONS, AGREEMENTS, AND
DISCLOSURES OF BANK AND AGREE TO THE TERMS SET FORTH THEREIN.
FIFTH THIRD BANK [LOGO]
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(Name and Address of Bank)
CORPORATE RESOLUTION
Taxpayer I.D. No. 00-0000000
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I, the undersigned, Secretary of Xxxxxx Funshares, Inc.
-----------------------------------,
a corporation organized under the laws of the State of Ohio , do hereby
-----------
certify that at a duly called meeting of the Board of Directors of said
corporation held on, July 17, 2001 a quorum being present, the following
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resolution was duly adopted and is set forth in the minutes of the said
meeting; and that the said resolution had not been rescinded or modified, and
that there is nothing in the regulations, by-laws, or directors' or
stockholders' resolutions of said corporation which in any way limits or
restricts its borrowing power or conflicts with said resolution.
RESOLVED, That Fifth Third Bank
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(Name and Address of Bank)
(hereinafter referred to as "Bank"), be and the same is hereby designated as a
depository for the bankable papers and funds of this corporation, including
checks, drafts and current items of every character whatsoever, which shall be
deposited in the name of this corporation endorsed with a rubber stamp or
otherwise.
BE IT FURTHER RESOLVED, That any two (2) of the following:
-----------------
(Insert Number)
CHECK SIGNING Xxxxxx X. Xxxxxx
-----------------------------------------------------
Insert TITLES Xxxxxx X. Xxxxxx
ONLY of officers -----------------------------------------------------
and NAMES of Xxxxx X. Xxxxxxx
persons signing -----------------------------------------------------
without titles Xxxxxx X. Xxxxxx
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are hereby authorized to sign on behalf of this
corporation any and all checks, drafts, acceptances
and other instruments and/or orders for the payment
and/or withdrawal of any and all moneys, credits,
items and property at any time held by said Bank for
the accounts of this corporation, including those
drawn to the individual order of any such officer(s)
or person(s) signing the same, without further
inquiry or regard to the authority of said officer(s)
or person(s) or the use of said checks, drafts, and
orders, or the proceeds thereof.
BE IT FURTHER RESOLVED, That the Bank be and
it hereby is authorized and directed to honor as
genuine and authorized instruments of this
corporation any and all checks, drafts or other orders
for the payment of money drawn in the name of the
corporation and signed on its behalf with the
facsimile signature of any one of the following:
FACSIMILE SIGNATURE -----------------------------------------------------
Xxxxxx X. Xxxxxx
Insert TITLES -----------------------------------------------------
ONLY of officers Xxxxxx X. Xxxxxx
and NAMES of -----------------------------------------------------
persons signing Xxxxx X. Xxxxxxx
without titles -----------------------------------------------------
Xxxxxx X. Xxxxxx
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and that the clerk or secretary is authorized and
directed to certify to said Bank by specimen the
form(s) of facsimile signatures authorized by this
corporation for use by the above-named officer(s) or
person(s) and that this corporation assumes full
responsibility for any and all payments made by said
Bank in reliance upon the facsimile signature of any
officer(s) or person(s) named above and agrees to
indemnify and hold harmless said Bank against any and
all loss, cost, damage or expense suffered or incurred
by said Bank arising out of the misuse or unlawful or
unauthorized use by any person of such facsimile
signature or signatures.
BE IT FURTHER RESOLVED, That any one of
those officer(s) or person(s) described in the
preceding paragraphs, as well as any one of the
following:
STOP PAYMENTS Xxxxxx X. Xxxxxx
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Insert TITLES Xxxxxx X. Xxxxxx
of officers -----------------------------------------------------
and NAMES of Xxxxx X. Xxxxxxx
persons signing -----------------------------------------------------
without titles Xxxxxx X. Xxxxxx
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are hereby authorized on behalf of this corporation
to issue stop payment orders pertaining to any and
all instruments executed under the authority of the
preceding paragraphs.
BE IT FURTHER RESOLVED, That any two (2)
of the following: ------------
(Insert Number)
BORROWING &
GUARANTEES ----------------------------------------------------
Xxxxxx X. Xxxxxx
Insert TITLES ----------------------------------------------------
and NAMES of Xxxxxx X. Xxxxxx
persons signing ----------------------------------------------------
without titles
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are hereby authorized to borrow or to lease from
time to time in behalf of this corporation from said
Bank such sums of money, for such times and upon such
terms as may seem advisable to such officer(s) or
person(s), to sign and deliver on behalf of this
corporation notes or leases therefor, and to pledge
or mortgage all or any of the assets of this
corporation as security for such loans or leases
under such terms and conditions as may seem advisable
to such officer(s) or person(s); and also are hereby
authorized to endorse in the name of this corporation
and to negotiate to said Bank all or any of the notes,
bills receivable, accounts receivable and assets of
this corporation upon such terms as may seem
advisable to such officer(s) or person(s).
BE IT FURTHER RESOLVED, That the designation
of the Bank as a depository for this corporation and
the grants of the foregoing authority to said
officer(s) or person(s) shall continue until a
certified copy of a resolution of this Board revoking
or changing said designation of authority is filed
with said Bank by this corporation.
BE IT FURTHER RESOLVED, That this resolution
and the terms and conditions appearing on the
signature card(s) constitute the Deposit Agreement(s)
between this corporation and the Bank and that the
Secretary of this corporation is empowered to
subscribe to such Deposit Agreement(s) on behalf of
this corporation.
BE IT FURTHER RESOLVED, That the persons or
officers identified immediately above are hereby
authorized to GUARANTEE the payment of the debts,
loans, leases, or other indebtedness of another, for
such times and for such sums of money and upon such
terms as may seem advisable to such officer(s) or
person(s); to sign and deliver on behalf of this
corporation guarantee bonds or other documents
therefor as may be required; and to pledge or mortgage
all or any of the assets of this corporation as
security for such guarantees or as security for the
obligations of others under such terms and conditions
as may seem advisable to such officer(s) or
person(s).
I further certify that the following named persons are the officers of the said
corporation, duly qualified and now acting as such:
President Xxxxxx X. Xxxxxx Ass't Secretary
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Vice President Xxxxx X. Xxxxxxx Ass't Treasurer
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Vice President Chairman: Xxxxxx X. Xxxxxx
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Secretary Xxxxxxxxx X. Xxxxxxxxxxx
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Treasurer Xxxxx X. Xxxxxxx
---------------------------------------------- --------------------------------------------------------------
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my seal of
the said corporation, this day of
------------ -------------------------------
/s/ Xxxxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxxxxxxx X. Xxxxxxxxxxx
(Secretary)
90-048(1/99)
