EXHIBIT 8
CUSTODY AGREEMENT
This AGREEMENT is entered into as of June 24, 1994, between First Pacific
Mutual Fund, Inc. on behalf of First Hawaii Intermediate Municipal Fund (the
"Fund"), having its principal office and place of business at 0000 Xxxxx Xxxx
Xxxxxx #000, Xxxxxxxx, Xxxxxx 00000 and The Bank of California, National
Association (the "Bank"), a National Banking Association organized under the
laws of the United States with its principal place of business at 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, XX 00000.
In consideration of the mutual promises set forth below, the Fund and the Bank
agree as follows:
1. Definitions.
Whenever used in this Agreement or in any Schedules to this Agreement, the words
and phrases set forth below shall have the following meanings, unless the
context otherwise requires:
1.2 "Authorized Person" shall be deemed to include the President, and
any Vice President, the Secretary, the Assistant Secretary, the Treasurer and
any Assistant Treasurer of the Fund, or any other person, including persons
employed by the Investment Manager, whether or not any such person is an officer
of the Fund, duly authorized by the Board of Directors of the Fund to give Oral
Instructions and Written Instructions on behalf of the Fund and listed in the
certification annexed hereto as Appendix A or such other certification as may be
received by the Bank from time to time.
1.2 "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency securities, its successor
or successors and its nominee or nominees.
1.3 "Depository" shall mean The Depository Trust Company ("DTC"), a
clearing agency registered with the Securities and Exchange Commission under
Section 17(a) of the Securities Exchange Act of 1934, as amended, its successor
or successors and its nominee or nominees, in which the Bank is hereby
specifically authorized to make deposits. The term "Depository" shall further
mean and include any other person to be named in Written Instructions authorized
to act as a depository under the 1940 Act, its successor or successors and its
nominee or nominees.
1.4 "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest and principal
by the Government of the United States or agencies or instrumentalities thereof,
and repurchase and reverse repurchase agreements with respect to any of the
foregoing types of securities, commercial paper, bank certificates of deposit,
bankers' acceptances and short-term corporate obligations, where the purchase or
sale of such securities normally requires settlement in federal funds on the
same day as such purchase or sale.
1.5 "Prospectus" shall mean the Series' current prospectus and
statement of additional
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information relating to the registration of the Series' Shares under the
Securities Act of 1933, as amended.
1.6 "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and other
securities and investments from time to time owned by each Series.
1.7 "Shares" refers to the shares of beneficial interest of a Series
of the Fund.
1.8 "Series" refers to portfolios of the Fund shown on Schedule A,
attached hereto and made a part hereof by this reference, and any such other
Series as may from time to time be created and designated.
1.9 "Transfer Agent" shall mean the person which performs the transfer
agent, dividend disbursing agent and shareholder servicing agent functions for
the Fund.
1.10 "Written Instructions" shall mean a written or electronic
communication actually received by the Bank from an Authorized Person or from a
person reasonably believed by the Bank to be an Authorized Person by telex or
any other such system whereby the receiver of such communication is able to
verify through codes or otherwise with a reasonable degree of certainty the
authenticity of the sender of such communication.
1.11 The "1940 Act" refers to the Investment Company Act of 1940, and
the rules and regulations thereunder, all as amended from time to time.
2. Appointment of Custodian
2.1 The Fund hereby constitutes and appoints the Bank as custodian of
all the Securities and moneys owned by or in the possession of the Fund during
the period of this Agreement.
2.2 The Bank hereby accepts appointment as custodian for the Fund and
agrees to perform the duties thereof as hereinafter set forth.
3. Compensation
3.1 The Fund will compensate the Bank for its services rendered under
this Agreement in accordance with the fees set forth in the Fee Schedule
attached as Schedule B and made a part of this Agreement by this reference.
3.2 The parties to this Agreement will agree upon the compensation for
acting as Custodian for any Series hereafter established and designated, and at
the time that the Bank commences serving as such for said Series, such agreement
shall be reflected in a Fee Schedule for the Fund, which shall be attached to
Schedule B of this Agreement.
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3.3 Any compensation agreed to hereunder may be adjusted from time to
time by not less than 90 days advance written notice of such fee increase from
Bank to Fund.
3.4 The Bank will xxxx the Fund as soon as practicable after the end
of the month, and said xxxxxxxx will be detailed in accordance with the Fee
Schedule. The Fund will promptly pay to the Bank the amount of such billing. In
the event such xxxx is not promptly paid, the Bank may charge against any money
specifically allocated to the Fund such compensation and any expenses incurred
by the Bank in the performance of its duties pursuant to such agreement. The
Bank shall also be entitled to charge against any money held by it and
specifically allocated to the Fund the amount of any loss, damage, liability or
expense incurred with respect to such Fund, including counsel fees, for which it
shall be entitled to reimbursement under the provision of this Agreement.
The expenses which the Bank may charge against such account include,
but are not limited to, the expenses of Sub-Custodians and foreign branches of
the Bank incurred in settling transactions outside of San Francisco or New York
City involving the purchase and sale of Securities of the Fund.
4. Custody of Cash and Securities.
4.1 Receipt and Holding of Assets. The Fund will deliver or cause to
be delivered to the Bank all Securities and moneys owned by it, including cash
received from the issuances of its Shares, at any time during the period of this
Agreement and shall specify the Series to which the Securities and moneys are to
be specifically allocated. The Bank shall physically segregate and keep apart on
its books, the assets of each Series, including separate identification of
Securities held in the Book-Entry System. The Bank will not be responsible for
such Securities and moneys until actually received by it. The Fund shall
instruct the Bank from time to time in its sole discretion, by means of Written
Instructions as to the manner in which and in what amounts Securities and moneys
of a Series are to be deposited on behalf of such Series in the Book-Entry
System or the Depository and specifically allocated on the books of the Bank to
such Series. Securities and moneys of the Fund deposited in the Book-Entry
System or the Depository will be represented in accounts which include only
assets held by the Bank for customers, including but not limited to accounts in
which the Bank acts in a fiduciary or representative capacity.
4.2 Accounts and Disbursements. The Bank shall establish and maintain
a separate account for each Series and shall credit to the separate account of
each Series all moneys received by it for the account of such Series and shall
disburse the same only:
4.2.1 In Payment for Securities purchased for such Series,
as provided in Section 5 hereof;
4.2.2 In payment of dividends or distributions with respect
to the Shares of such Series;
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4.2.3 In payment of original issue or other taxes with
respect to the Shares of such Series;
4.2.4 In payment for Shares which have been redeemed by such
Series;
4.2.5 Pursuant to Written Instructions, setting forth the
name of such Series, the name and address of the person to whom the
payment is to be made, the amount to be paid and the purpose for which
payment is to be made; or
4.2.6 In payment of fees and in reimbursement of the
expenses and liabilities of the Bank attributable to such Series.
4.3 Confirmations and Statements. Promptly after the close of business
each day, the Bank shall make available to the Fund information with respect to
all transfers to and from the account of a Series during that day. The Bank need
not send written confirmation or a summary of all such transfers to or from the
account of each Series. Provided, however that upon the written request of
Funds, Bank shall provide within 5 business days of such written request a copy
of any confirmations which include transactions of the Fund. Where securities
purchased by a Series are in a fungible bulk of Securities registered in the
name of the Bank (or its nominee) or shown on the Bank's account on the books of
the Depository or the Book-Entry System, the Bank shall by book entry or
otherwise identify the quantity of those securities belonging to such Series. At
least monthly, the Bank shall furnish the Fund with a detailed statement of the
Securities and moneys held for each Series under this Agreement.
4.4 Registration of Securities and Physical Separation.
All Securities held for a Series which are issued or issuable only in
bearer form, except such Securities as are held in the Book-Entry System, shall
be held by the Bank in that form; all other Securities held for a Series may be
registered, in the name of any duly appointed registered nominee of the Bank as
the Bank may from time to time determine, or in the name of the Book-Entry
System or the Depository of their successor or successors, or their nominee or
nominees. When a reference is made in this Agreement to an action to be taken by
Bank it is understood by the parties that the action may be taken directly or in
the case of book-entry securities, through the appropriate depository. The Fund
agrees to furnish to the Bank appropriate instruments to enable the Bank to hold
or deliver in proper form for transfer, or to register in the name of its
registered nominee or in the name of the Book-Entry System or the Depository,
and Securities which it may hold for the account of a Series. The Bank (or its
sub-custodians) shall hold all such Securities specifically allocated to a
Series which are not held in the Book-Entry System or the Depository in a
separate account for such series in the name of such Series physically
segregated at all times from those of any other person or persons.
4.5 Collection: of Income and Other Matters Affecting Securities.
Unless otherwise instructed to the contrary by Written Instructions, the Bank
shall with respect to all Securities held
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for a Series in accordance with this Agreement:
4.5.1 Collect all income due or payable and credit such
income promptly on the contractual settlement date, whether or not
actually received, to the account of the appropriate Series, except
for income from foreign issues. Income which has not been collected
after reasonable effort, within a time agreed upon between the
parties, shall be repaid to the Bank pending final collection at such
date as may be mutually agreed upon by the Fund and the Bank.
4.5.2 Present for payment and collect the amount payable
upon all Securities which may mature or be called, redeemed or
retired, or otherwise become payable. Bank shall make a good faith
effort to inform Fund of any call, redemption or retirement date with
respect to securities which are owned by a Series and held by the Bank
or its nominee. Notwithstanding the foregoing, the Bank shall have no
responsibility to the Fund or a Series for monitoring or ascertaining
of any call, redemption or retirement date with respect to securities
which are held by a Series and held by Bank or its nominee. Nor shall
the Bank have any responsibility or liability to the Fund or to a
Series for any loss by a Series for any missed payment or other
default resulting therefrom unless the Bank received timely general
notification, which shall not be less than 5 business days from the
Fund or the Series specifying the time, place and manner for the
presentment of any put bond owned by a Series and held by the Bank or
its nominee. The Bank shall not be responsible and assumes no
liability to the Fund or a Series for the accuracy or completeness of
any notification the Bank shall provide to the Fund or a series with
respect to put securities;
4.5.3 Execute any necessary declarations or certificates of
ownership under the Federal income tax laws or the laws or regulations
of any other taxing authority now or hereafter in effect; and
4.5.4 Hold for the account of each Series all rights and
other Securities issued with respect to any Securities held by the
Bank hereunder for such Series.
4.6 Delivery of Securities and Evidence of Authority. Upon receipt of
Written Instructions, the Bank shall:
4.6.1 Execute and deliver or cause to be executed and
delivered to such persons as may be designated in such Written
Instructions, proxies, consents, authorization, and any other
instruments whereby the authority of the Fund as owner of any
Securities may be exercised;
4.6.2 Deliver or cause to be delivered any Securities held
for a Series in exchange for other Securities or cash issued or paid
in connection with the liquidation, reorganization, refinancing,
merger, consolidation or recapitalization of any Fund, or the exercise
of any conversion privilege;
4.6.3 Deliver or cause to be delivered any Securities held
for a Series to any protective committee, reorganization committee or
other person in connection with the
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reorganization, refinancing, merger, consolidation or recapitalization
or sale of assets of any Fund, and receive and hold under the terms of
this Agreement in the separate (bookkeeping) account for each Series
such certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
4.6.4 Make or cause to be made such transfers or exchanges
of the assets and take such steps as shall be stated in said Written
Instructions to be for the purpose of effectuating any duly authorized
plan of liquidation, reorganization, merger, consolidation or
recapitalization of the Fund;
4.6.5 Deliver Securities owned by any Series upon sale of
such Securities for the account of such Series pursuant to Section 5;
4.6.6 Deliver Securities owned by any Series upon the
receipt of payment in connection with any repurchase agreement related
to such Securities entered into by such Series;
4.6.7 Deliver Securities owned by any Series to the issuer
thereof or its agent when such Securities are called, redeemed,
retired or otherwise becomes payable; provided, however, that in any
such case the cash or other consideration is to be delivered to the
Bank.
4.6.8 Deliver Securities owned by any Series in connection
with any loans of Securities made by such Series but only against
receipt of adequate collateral as agreed upon from time to time by the
Bank and the Fund which may be in any form permitted under the 1940
Act or any interpretations thereof issued by the Securities and
Exchange Commission or its staff;
4.6.9 Deliver Securities owned by any Series for delivery as
security in connection with any borrowings by such Series requiring a
pledge of Series assets, but only against receipt of amount borrowed;
4.6.10 Deliver Securities owned by any Series upon receipt
of instructions from such Series for delivery to the Transfer Agent or
to the holders of Shares of such Series in connection with
distributions in kind, as may be described from time to time in the
Series' Prospectus, in satisfaction of requests by holders of Shares
for repurchase or redemption; and
4.6.11 Deliver Securities owned by any Series for any other
proper business purpose, but only upon receipt of, in addition to
Written Instructions, a certified copy of a resolution of the Board of
Directors signed by an Authorized Person and certified by the
Secretary or Assistant Secretary of the Fund, specifying the
Securities to be delivered, setting forth the purpose for which such
delivery is to be made, declaring such purpose to be a proper business
purpose, and naming the person or persons to whom delivery of such
Securities shall be made.
4.7 Endorsement and Collection of Checks. Etc. The Bank is hereby
authorized to endorse and collect all checks, drafts or other orders for the
payment of money received by the
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Bank for the account of a Series.
5. Purchase and Sale of Investments of the Series.
5.1 Promptly after each purchase of Securities for a Series, the Fund
shall deliver to the Bank Written Instructions specifying with respect to each
purchase: (1) the name of the Series to which such Securities are to be
specifically allocated; (2) the name of the issuer and the title of the
Securities; (3) the number of shares or the principal amount purchased and
accrued interest, if any; (4) the date of purchase and settlement; (5) the
purchase price per unit; (6) the total amount payable upon such purchase; (7)
the name of the person from whom or the broker through whom the purchase was
made, if any; (8) whether or not such purchase is to be settled through the
Book- Entry System or the Depository; and (9) whether the Securities purchased
are to be deposited in the Book-Entry System or the Depository. The Bank shall
receive all Securities purchased by or for a Series and upon receipt of such
Securities shall pay out of the moneys held for the account of such Series the
total amount payable upon such purchase, provided that the same conforms to the
total amount payable as set forth in such Written Instructions.
5.2 Promptly after each sale of Securities of a Series, the Fund shall
deliver to the Bank Written Instructions specifying with respect to such sale:
(1) the name of the Series to which the Securities sold were specifically
allocated; (2) the name of the issuer and the title of the Securities; (3) the
number of shares or principal amount sold, and accrued interest, if any; (4) the
date of sale; (5) the sale price per unit; (6) the total amount payable to the
Series upon such sale; (7) the name of the broker through whom or the person to
whom the sale was made; and (8) whether or not such sale is to be settled
through the Book-Entry System or the Depository. The Bank shall deliver or cause
to be delivered the Securities to the broker or other person designated by the
Fund upon receipt of the total amount payable to such Series upon such sale,
provided that the same conforms to the total amount payable to such Series as
set forth in such Written Instructions. Subject to the foregoing, the Bank may
accept payment in such form as shall be satisfactory to it, and may deliver
Securities and arrange for payment in accordance with the customs prevailing
among dealers in Securities.
6. Payment of Dividends or Distributions.
6.1 The Fund shall furnish to the Bank the resolution of the Board of
Directors of the Fund certified by the Secretary or Assistant Secretary (i)
authorizing the declaration of dividends or distributions with respect to a
Series on a specified periodic basis and authorizing the Bank to rely on Written
Instructions specifying the date of the declaration of such dividend or
distribution, the date of payment thereof, the record date as of which
shareholders entitled to payment shall be determined, the amount payable per
share to the shareholders of record as of the record date and the total amount
payable per share to the shareholders of record as of the record date and the
total amount payable to the Transfer Agent on the payment date, or (ii) setting
forth the date of declaration of any dividend or distribution by a Series, the
date of payment thereof, the record date as of which shareholders entitled to
payment shall be determined, the amount payable per share to
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the shareholders of record as of the record date and the total amount payable to
the Transfer Agent on the payment date.
6.2 Upon the payment date specified in such resolution or Written
Instructions the Bank shall pay out the moneys specifically allocated to and
held for the account of the appropriate Series the total amount payable to the
Transfer Agent of the Fund.
7. Sale and Redemption of Shares of a Series.
7.1 Whenever the Fund shall sell or redeem any Shares of a Series, the
Fund shall deliver or cause to be delivered to the Bank Written Instructions
duly specifying:
7.1.1 The name of the Series whose Shares were sold or
redeemed;
7.1.2 The number of Shares sold or redeemed, trade date, and
price; and
7.1.3 The amount of money to be received or paid by the Bank
for the sale or redemption of such Shares.
7.2 Upon receipt of such money from the Transfer Agent, the Bank shall
credit such money to the separate account of the Series.
7.3 Upon issuance of any Shares of a Series in accordance with the
foregoing provisions of this Section 7, the Bank shall pay, out of the moneys
specifically allocated and held for the account of such Series, all original
issue or other taxes required to be paid in connection with such issuance upon
the receipt of Written Instructions specifying the amount to be paid.
7.4 Upon receipt from the Transfer Agent of advice setting forth the
number of Shares of a Series received by the Transfer Agent for redemption and
that such Shares are valid and in good form for redemption, the Bank shall make
payment to the Transfer Agent out of the moneys specifically allocated to and
held for the account of the Series.
8. Indebtedness.
8.1 The Fund will cause to be delivered to the Bank by any bank
(excluding the Bank) from which the Fund borrows money for temporary
administrative or emergency purposes using Securities as collateral for such
borrowings, a notice or undertaking in the form currently employed by any such
bank setting forth the amount which such bank will loan to the Fund against
delivery of a stated amount of collateral. The Fund shall promptly deliver to
the Bank Written Instructions stating with respect to each such borrowing: (1)
the name of the Series for which the borrowing is to be made; (2) the name of
the bank; (3) the amount and terms of the borrowing, which may be set forth by
incorporating by reference an attached promissory note, duly endorsed by the
Fund, or other loan agreement; (4) the time and date, if known, on which the
loan is to be entered into (the
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"borrowing date"); (5) the date on which the loan becomes due and payable; (6)
the total amount payable to the Fund for the separate account of the Series on
the borrowing date; (7) the market value of Securities to be delivered as
collateral for such loan, including the name of the issuer, the title and the
number of shares or the principal amount of any particular Securities; (8)
whether the Bank is to deliver such collateral through the Book-Entry System or
the Depository; and (9) a statement that such loan is in conformance with the
1940 Act and the Series' Prospectus.
8.2 Upon receipt of the Written Instructions referred to above, the
Bank shall deliver on the borrowing date the specified collateral and the
executed promissory note, if any, against delivery by the lending bank of the
total amount of the loan payable, provided that the same conforms to the total
amount payable as set forth in the Written Instructions. The Bank may, at the
option of the lending bank keep such collateral in its possession, but such
collateral shall be subject to all rights therein given the lending bank by
virtue of any promissory note or loan agreement. The Bank shall deliver as
additional collateral in the manner directed by the Fund from time to time such
Securities specifically allocated to such Series as may be specified in Written
Instructions to collateralize further any transaction described in this Section
8. The Fund shall cause all Securities released from collateral status to be
returned directly to the Bank, and the Bank shall receive from time to time such
return of collateral as may be tendered to it. In the event that the Fund fails
to specify in Written Instructions all of the information required by this
Section 8, the Bank shall not be under any obligation to deliver any Securities.
Collateral returned to the Bank shall be held hereunder as it was prior to being
used as collateral.
9. Persons Having Access to Assets of the Series.
9.1 No director, officer, employee or agent of the Fund, and no
officer, director, employee or agent of the Advisor, shall have physical access
to the assets of the Fund held by the Bank or be authorized or permitted to
withdraw any investments of the Fund, nor shall the Bank deliver any assets of
the Fund to any such person. No officer, director, employee or agent of the Bank
who holds any similar position with the Fund, the Advisor shall have access to
the assets of the Fund.
9.2 The individual employees of the Bank initially duly authorized by
the Board of Directors of the Bank to have access to the assets of the Fund are
listed on Schedule C which is attached and made a part of this Agreement by this
reference. The Bank shall advise the Fund of any change in the individuals
authorized to have access to the assets of the Fund by written notice to the
Fund.
9.3 Nothing in this Section 9 shall prohibit any officer, employee or
agent of the Fund, or any officer, director, employee or agent of the Advisor,
from giving Written Instructions to the Bank so long as it does not result in
delivery of or access to assets of the Fund prohibited by this Section 9.
10. Concerning the Bank.
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10.1 Standard of Conduct. The Bank shall not be responsible for the
title, validity or genuineness of any property or evidence of title thereto
received by it or delivered by it pursuant to this Agreement and reasonably
believed by it to be valid or genuine and shall be held harmless in acting upon
proper instructions, resolutions, any notice, request, consent, certificate or
other instrument reasonably believed by it to be genuine and to be signed by the
proper party or parties and shall be entitled to receive as conclusive proof of
any fact or matter required to be ascertained by it hereunder, a certificate
signed by the President, a Vice President, the Treasurer, the Secretary or an
Assistant Secretary of the Fund. The Bank may receive and accept a resolution as
conclusive evidence (a) of the authority of any person to act in accordance with
such vote or (b) of any determination or of any action by the Board of Directors
as described in such vote, and such vote may be considered as in full force and
effect until receipt by the Bank of written notice from the Secretary or an
Assistant Secretary to the contrary.
The Bank shall be entitled to rely on and may act upon advice of
counsel (who may be counsel for the Fund) on all matters, and shall be without
liability for any action reasonably taken or omitted pursuant to such advice.
Provided, however, that if such reliance involves a potential material loss to
the Fund, the Bank shall advise the Fund of any such actions to be taken in
accordance with such advice of counsel to the Bank.
The Bank shall be held to the exercise of reasonable care in carrying
out the provisions of this Agreement but shall be liable only for its own
negligent or bad faith acts or wilful misconduct or wilful failures to act by
the Bank and its agents or Employees. Bank shall have no responsibility for
reviewing or questioning the acts or records of any prior custodian. The Fund
shall indemnify the Bank and hold it harmless from and against all losses,
liabilities, demands, claims, actions, expenses, attorneys' fees, and taxes with
respect to each Series which the Bank may suffer or incur on account of being
custodian hereunder except to the extent that such losses, liabilities, demands,
claims, actions, expenses, attorneys fees or taxes arise from the Bank's own
gross negligence or bad faith. Notwithstanding the foregoing the Bank shall be
liable to the Fund for any loss or damage resulting from the use of the
Book-Entry System or the Depository arising by reason of any negligence,
misfeasance or misconduct on the part of the Bank or any of its employees or
agents.
If a Series requires the Bank to take any action with respect to
Securities, which action involves the payment of money or which action may, in
the opinion of the Bank, result in the Bank or its nominee assigned to such
Series being liable for the payment of money or incurring liability of some
other form, such Series, as a prerequisite to requiring the Bank to take such
action, shall, prior to the Bank taking such action, provide indemnity in
writing to the Bank in an amount and form satisfactory to it.
10.2 Limit of Duties. Without limiting the generality of the
foregoing, the Bank shall be under no duty or obligation to inquire into, and
shall not be liable for:
10.2.1 The validity of the issue of any Securities purchased
by any Series, the legality of the purchase thereof, the
permissibility of the purchase thereof under the Fund's governing
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documents, or the propriety of the amount paid therefor;
10.2.2 The legality of the sale of any Securities by any
Series, the permissibility of such sale under the fund's governing
documents, or the propriety of the amount for which the same are sold;
10.2.3 The legality of the issue or the sale of any Shares,
or the sufficiency of the amount to be received therefor;
10.2.4 The legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor;
10.2.5 The legality of the declaration or payment of any
dividend or other distribution of any Series;
10.2.6 The legality of any borrowing for temporary or
emergency administrative purposes.
10.3 No Liability Until Receipt. the Bank shall not be liable for, or
considered to be the custodian of, any money, whether or not represented by any
check, draft, or other instrument for the payment of money, received by it on
behalf of any Series until the Bank actually receives and collects such money
directly or by the final crediting of the account representing the Fund's
interest in the Book-Entry System or the Depository.
10.4 Collection Where Payment Refused. The Bank shall not be under any
duty or obligation to take action to effect collection of any amount, if the
Securities upon which such amount is payable are in default, or if payment is
refused after due demand or presentation, unless and until (a) it shall be
directed to take such action by Written Instructions and (b) it shall be assured
to its satisfaction of reimbursement of its costs and expenses in connection
with any such action.
10.5 Appointment of Agents and Sub-Custodians. The Bank may appoint
one or more banking institutions, including but not limited to banking
institutions located in foreign countries, to act as Depository or Depositories
or as Sub-Custodian or as Sub-Custodians of Securities and moneys at any time
owned by any Series, upon terms and conditions specified in Written
Instructions. The Bank shall use reasonable care in selecting a Depository
and/or Sub- Custodian located in a country other than the United States
("Foreign Sub-Custodian"), and shall oversee the maintenance of any Securities
or moneys of the Fund by any Foreign Sub-Custodian.
10.6 No Duty to Ascertain: Authority. The Bank shall not be under any
duty or obligation to ascertain whether any Securities at any time delivered to
or held by it for the Fund and specifically allocated to a Series are such as
may properly be held by the Series and specifically allocated to such Series
under the provisions of the Declaration of Fund and the Series' Prospectus.
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10.7 Reliance on Certificates and Instructions. The Bank shall be
entitled to rely upon any Written Instructions or Oral Instructions actually
received by the Bank pursuant to the applicable Sections of this Agreement and
reasonably believed by the Bank to be genuine and to be given by an Authorized
Person. The Fund agrees to forward to the Bank Written Instructions from an
Authorized Person confirming such Oral Instructions in such manner so that such
Written Instructions are received by the Bank, whether by hand delivery, telex,
or otherwise, by the close of business on the same day that such Oral
Instructions are given to the Bank. The Fund agrees that the fact that such
confirming instructions are not received by the Bank shall in no way affect the
validity for the transactions or enforceability of the transactions hereby
authorized by the Fund. The Fund agrees that the Bank shall incur no liability
to the Fund in acting upon Oral Instructions given to the Bank hereunder
concerning such transactions provided such instructions reasonably appear to
have been received from a duly Authorized Person.
10.8 Inspection of Books and Records. The books and records of the
Bank regarding the Fund shall be open to inspection and audit at reasonable
times by officers and auditors employed by the Fund and by employees of the
Securities and Exchange Commission. The Bank shall provide the Fund, upon
request, with any report obtained by the Bank on the system of internal
accounting control of the Book-Entry System or the Depository and with such
reports on its own systems of internal accounting control as the Fund may
reasonably request from time to time. Provided, however, that in the event that
the Fund shall require a report of internal accounting control produced by the
auditors of the Series rather than of the Bank, then such report shall be
prepared at the expense of the Series, and the Series agrees to pay for the time
expended by Bank on such audit and report at the hourly rate set forth on the
Fee agreement.
11. Term and Termination.
11.1 This Agreement shall become effective on the date first set forth
above (the "Effective Date") and shall continue in effect thereafter as the
parties may mutually agree.
11.2 Either of the parties hereto may terminate this Agreement with
respect to any Series by giving to the other party a notice in writing
specifying the date of such termination, which shall be not less than 90 days
after the date of receipt of such notice. In the event such notice is given by
the Fund, it shall designate a successor custodian or custodians, which shall be
a person qualified to so act under the 1940 Act. In the event such notice is
given by the Bank, the Fund shall, on or before the termination date, deliver to
the Bank, Written Instructions designating a successor Custodian or Custodians.
In the absence of such designation by the Fund, the Bank may designate a
successor Custodian, which shall be a person qualified to so Act under the 0000
Xxx. If the Fund fails to designate a successor Custodian for any Series, the
Fund shall upon the date specified in the notice of termination of this
Agreement and upon the delivery by the Bank of all Securities (other than
Securities held in the Book-Entry Systems which cannot be delivered to the Fund)
and moneys then owned by such Series, be deemed to be its own Custodian and the
bank shall thereby be relieved of all duties and responsibilities pursuant to
this Agreement, other than the duty with respect to Securities held in the
Book-Entry system which cannot be delivered to the Fund.
12
11.3 Upon the date set forth in such notice under paragraph (b) of
this Section, this Agreement shall terminate to the extent specified in such
notice, and the Bank shall upon receipt of a notice of acceptance by the
successor Custodian on that date deliver directly to the successor Custodian all
Securities and moneys then held by the Bank and specifically allocated to the
Series or Series specified, after deducting all fees, expenses and other amounts
for the payment or reimbursement of which it shall then be entitled with respect
to such Series or Series.
12. Additional Services by Bank.
12.1 If allowed by the prospectus, Investment Manager may direct that
the assets of any Series be invested in deposits in Bank or its affiliates
bearing a reasonable rate of interest.
12.2 Other Bank Services. Any authorized person may direct Bank to
utilize other services or facilities provided by BanCal Tri-State Corp.
13. Miscellaneous.
13.1 Annexed hereto as Schedule C is a certification signed by two of
the present Directors of the Fund setting forth the names and the signatures of
the present Authorized Persons. The Fund agrees to furnish to the Bank a new
certification in similar form in the event that any such present Authorized
Person ceases to be such an Authorized Person or in the event that other or
additional Authorized Persons are elected or appointed. Until such new
certification shall be received, the Bank shall be fully protected in acting
under the provisions of this Agreement upon Oral Instructions or signatures of
the present Authorized Persons as set forth in the last delivered certification.
13.2 Annexed hereto as Appendix B is a certification signed by two of
the present Directors of the Fund setting forth the names and the signatures of
the present Directors of the Fund. The Fund agrees to furnish to the Bank a new
certification in similar form in the event any such present Director ceases to
be a Director of the Fund or in the event that other or additional Directors are
elected or appointed. Until such new certification shall be received, the Bank
shall be fully protected in acting under the provisions of this Agreement upon
the signature of the officers as set forth in the last delivered certification.
13.3 Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Bank, shall be sufficiently given if
addressed to the Bank and mailed or delivered to it at its offices at:
The Bank of California, N.A.
Mutual Fund Services Dept., Trust Group
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
or such other place as the Bank may from time to time designate in writing.
13
13.4 Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Fund, shall be sufficiently given if
addressed to the Fund and mailed or delivered to it at its offices at:
First Pacific Mutual Fund, Inc.
0000 Xxxxx Xxxx Xxxxxx Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
or at such other place as the Fund may from time to time designate in writing.
13.5 This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the same formality
as this Agreement, and as may be permitted or required by the 0000 Xxx.
13.6 This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Fund without the written
consent of the Bank, or by the Bank without the written consent of the Fund
authorized or approved by a resolution of the Board of Directors of the Fund,
and any attempted assignment without such written consent shall be null and
void.
13.7 This Agreement shall be construed in accordance with the laws of
the State of California.
13.8 It is expressly agreed to that the obligations of the Fund
hereunder shall not be binding upon any of the Directors, shareholders,
nominees, officers, agents or employees of the Fund, personally, but bind only
the property of the Fund. The execution and delivery of this Agreement have been
authorized by the Directors of the Fund and signed by an authorized officer of
the Fund, acting as such, and neither such authorization by such Directors nor
such execution and delivery by such officer shall be deemed to have been made by
any of them individually or to impose any liability on any of them personally,
but shall bind only the property of the Fund.
13.9 The captions of the Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
13.10 This Agreement may be executed in any number of counterparts ,
each of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunder duly authorized as of the day
and year first above written.
First Pacific Mutual Fund, Inc.
By:____________________________________
Xxxxxxxx X.X. Xxx, President
Date: June 24, 1994
The Bank of California, N.A.
By:____________________________________
Xxxx Xxxxxx, Vice President
Date: June 22, 1994
15
Schedule A - Series
First Hawaii Intermediate Municipal Fund
First Pacific Mutual Fund, Inc.
By:____________________________________
Xxxxxxxx X.X. Xxx, President
Date: June 24, 1994
The Bank of California, N.A.
By:____________________________________
Xxxx Xxxxxx, Vice President
Date: June 22, 1994
16
Schedule B
Mutual Fund Services
Schedule of Fees
Custody
$3,000 minimum per year per portfolio - or 2 basis points for the first fifty
million and 1.5 basis points in excess of fifty million per portfolio. The Bank
will offset 100% of the incurred fee with credits received for uninvested cash
balances. The Bank will retain as fee all credits received from cash balances
whether they are smaller or larger than the fee quoted above.
There will be no additional charges.
First Pacific Mutual Fund, Inc.
By:____________________________________
Xxxxxxxx X.X. Xxx, President
Date: June 24, 1994
The Bank of California, N.A.
By:____________________________________
Xxxx Xxxxxx, Vice President
Date: June 22, 1994
17
Schedule C
Authorized Persons
Part I - Access Persons of Bank
Xxxx Xxxxxx
Xxxx Xxxxxxxx
Xxxxxx Xxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxx
Part II - Authorized Persons of the Fund
Xxxxxxxx X.X. Xxx
Xxxx X. Xxxx
Xxxxxxxxx X. Xxxxx
Xxxxx X. X'Xxxxxx
Part III - Directors
First Pacific Mutual Fund, Inc.
By:____________________________________
Xxxxxxxx X.X. Xxx, President
Date: June 24, 1994
The Bank of California, N.A.
By:____________________________________
Xxxx Xxxxxx, Vice President
Date: June 22, 1994
18
Amendment to Schedule A of the
Custody Contract dated June 24, 1994 Between
the First Pacific Mutual Fund, Inc.
and
Bank of California, N.A.
First Hawaii Intermediate Municipal Fund
First Hawaii Municipal Bond Fund
First Pacific Mutual Fund, Inc.
By:____________________________________
Xxxxxxxx X.X. Xxx, President
Date: September 2, 1994
The Bank of California, N.A.
By:____________________________________
Xxxx Xxxxxx, Vice President
Date: August 29, 1994
19
Amendment to Schedule C of the
Custody Contract dated June 24, 1994 Between
the First Pacific Mutual Fund, Inc.
and
The Bank of California, N.A.
Part I- Access Persons of Bank
Xxxx Xxxxxx
Xxxx Xxxxxxxx
Xxxxxx Xxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
Part II- Authorized Persons of the Fund
Xxxxxxxx X.X. Xxx
Xxxx X. Xxxx
Xxxxxxxxx X. Xxxxx
Xxxxx X'Xxxxxx
First Pacific Mutual Fund, Inc.
By:____________________________________
Xxxxxxxx X.X. Xxx, President
Date: September 2, 1994
The Bank of California, N.A.
By:____________________________________
Xxxx Xxxxxx, Vice President
Date: August 29, 1994
20
WIRE TRANSFER AGREEMENT
This Agreement is entered into between the Bank of California, N.A. ("Bank"),
and the undersigned ("Client"), effective upon execution of the Agreement by
Client and acceptance by Bank. Acceptance will be deemed to have occurred on the
date Client is authorized to initiate Payment Orders as defined below. Pursuant
to the terms and conditions stated herein, Appendix A which is attached hereto,
and the information contained in the applicable Wire Transfer Specification
Sheet or such other written document provided by Client ("Spec Sheet"), Bank
agrees as follows. During normal Bank business hours Bank will allow Client
through its representatives designated in the Spec Sheet ("Authorized Client
Representative") to initiate wire transfer requests from Client's account(s) at
Bank ("Account(s)") and to initiate outgoing reverse wire transfer requests to
Client's Account(s), and, if authorized by Client, Bank agrees to honor incoming
reverse wire transfer requests for funds from banks requesting Bank to debit
Client's Account(s). The preceding transfer requests are collectively referred
to as "Payment Orders" in this Agreement.
SPEC SHEET. Clients will initiate Payment Orders in accordance with the Spec
Sheet, regardless of any multiple signature requirements on the Account(s)
listed on the Spec Sheet. Changes to the Spec Sheet may be made by written
notice thereof by Client, and these changes will be effective after actual
receipt by Bank and after Bank has had a reasonable opportunity to act on the
notice.
SECURITY PROCEDURES. Client and Bank shall comply with the security procedure
requirements described in Appendix A, in any applicable user guide, and in any
applicable confidential code confirmation. These security procedures are not
designed to detect Client error. A Payment Order shall not be considered
received by Bank until Bank has performed all verification procedures set forth
in this Agreement.
PROCESSING, TRANSMITTAL AND SETTLEMENT BY BANK. Bank shall use its best efforts
to transmit Payment Orders on the day of receipt if receipt is prior to Bank's
cut-off time, which is set forth in Appendix A. Bank may change its cut-off time
without prior notice to Client.
Client agrees that reverse wire agreements shall be in effect with any bank
sending Bank an incoming reverse wire request.
Client understands and agrees that Bank may not effect requests for Payment
Orders in the order of receipt. Payment Orders made by telephone may be recorded
and Client hereby consents to such recording without being notified at the time
of each such recording. The decision to record any telephone conversation shall
be solely by Bank, and Bank shall have no liability for failing to do so.
Client agrees to maintain sufficient collected balances to effect Payment
Orders. Client authorizes Bank to charge its Account(s) for any Payment Order
Bank reasonably believes is authorized by Client. Bank will be under no
obligation to honor a Payment Order from a Client Account which (1) exceeds
Client's collected funds on deposit with Bank, (2) is not authenticated pursuant
to, or
21
is not otherwise in accordance with, this Agreement, (3) Bank has reason to
believe may not be authorized by Client, (4) is incomplete or ambiguous, (5)
involves funds subject to a hold, dispute, or legal process preventing their
withdrawal, or is otherwise deemed unsatisfactory to Bank in its sole
discretion.
In the event there are insufficient available funds in the Account to cover
Client's obligations under this Agreement, Client agrees that Bank may debit any
account maintained by Client with Bank or that Bank may set off against any
amount it owes to Client, in order to obtain payment of Client's obligations
under this Agreement. If Bank creates an overdraft to complete a Payment Order,
Client agrees to immediately repay Bank the amount of such overdraft, whether or
not demand is made, as well as any other applicable charges previously disclosed
to Client.
TERMINAL-INITIATED PAYMENT ORDERS. For terminal-initiated payment orders using
Bank's Terminal Funds Transfer (TFT) product, Client will furnish, at Client's
expense, its own computer hardware and software necessary to access Bank's wire
transfer system ("System"). For all terminal-initiated payment orders, Client
agrees to follow the instructions contained in the applicable terminal-initiated
wire transfer user's guide ("Guide") in making any terminal-initiated Payment
Order. Bank will have no obligation to verify the validity of a Payment Order
which has been received on the System.
OWNERSHIP AND CONFIDENTIALITY. Client acknowledges that all computer programs,
data bases, any trade secrets, processes, proprietary data and information or
documentation related thereto made available by Bank ("Products") are the
exclusive and confidential property of Bank or the third parties from whom Bank
has secured the right to use such computer programs and data bases. Client will
treat as confidential and will not disclose or otherwise make available any of
the Products in any form, to any person other than employees of Client. Client
will instruct its employees who have access to the Products to keep the same
confidential by using the same care and discretion that Client uses with respect
to its own confidential property and trade secrets. Upon termination of this
Agreement, Client will return to Bank any and all copies of the Products which
are in its possession.
CLIENT REVIEW. Client will examine any confirmation or Account statement Bank
provides to Client reflecting a Payment Order and will report any discrepancies
to Bank within thirty (30) days after receipt of the advice or Account
statement, whichever is earlier. Client agrees Bank will not be liable for any
losses resulting from Client's failure to report any discrepancies within this
time.
NOTICE OF INCOMING WIRE TRANSFER. Client agrees that, unless specifically agreed
to in writing by Bank, Bank is not obligated to provide notice to Client of
receipt of an incoming wire transfer of funds other than on the Account
statement.
CANCELLATION OR AMENDMENT BY CLIENT. Client shall have no right to cancel or
amend a Payment Order after its receipt by Bank. However, Bank shall use
reasonable efforts to act on a request by Client for cancellation of a Payment
Order prior to transmitting it or, in the case of an on-us payment order, prior
to crediting a beneficiary's account, but shall have no liability if such
22
cancellation is not effected. A request to amend a Payment Order shall be
considered a request to cancel the Payment Order.
FUNDS TRANSFER RISK. Client assumes certain risks and responsibilities with
respect to the actions of Authorized Client Representatives and third parties
authorized by Client to act on its behalf. Client recognizes and agrees that no
individual should be allowed to initiate Payment Orders in the absence of proper
supervision and adequate safeguards. Client assumes full responsibility for any
and all loss, liability and damage associated with transfers, omissions and/or
instructions given to Bank by Authorized Client Representatives, individuals
purporting to be Authorized Client Representatives, or said third parties acting
or purporting to act on Client's behalf.
PROVISIONAL PAYMENT; INDEMNITY. Client represents to Bank and agrees that the
payment system used to effect transfer of a Payment Order may contain rules,
including without limitation a provision making payment by a receiving bank to
another receiving bank or beneficiary provisional until receipt by the receiving
bank of final settlement for such payment order. Client agrees that, if such
settlement is not received, the receiving bank shall be entitled to a refund
from another receiving bank or beneficiary of the amount credited and Client
shall not be deemed to have paid the receiving bank or beneficiary the amount of
the payment order. Client shall indemnify Bank against any loss, liability or
expense (including reasonable attorneys' fees and expenses) resulting from or
arising out of any breach of the foregoing.
LIABILITY, LIMITATIONS ON LIABILITY; INDEMNITY.
(a) Bank shall be responsible only for performing the services expressly
provided for in this Agreement, and shall be liable only for its negligence in
performing those services. Bank shall not be responsible for Client's acts or
omissions (including without limitation the amount, accuracy, timeliness of
transmittal or authorization of any Payment Order received from Client) or those
of any other person, including without limitation any Federal Reserve Bank or
transmission or communications facility, any receiving bank or any beneficiary,
and no such person shall be deemed Bank's agent. Client agrees to indemnify Bank
against any loss, liability or expense (including reasonable attorneys' fees and
expenses) resulting from or arising out of any claim of any person that Bank is
responsible for any act or omission of Client or any other person described in
this Section. The foregoing shall apply to the services provided for in this
Agreement, except as otherwise required by applicable law.
(b) IN NO EVENT SHALL BANK BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR
INDIRECT LOSS OR DAMAGE WHICH CLIENT MAY INCUR OR SUFFER IN CONNECTION WITH THIS
AGREEMENT, including without limitation loss or damage from subsequent wrongful
dishonor resulting from Bank's acts or omissions pursuant to this Agreement.
(c) Without limiting the generality of the foregoing provisions, Bank shall be
excused from failing to act or delay in acting if such failure or delay is
caused by legal constraint, interruption or transmission or communication
facilities, equipment failure, war, emergency conditions or other
23
circumstances beyond Bank's control. In addition, Bank shall be excused from
failing to transmit or delay in transmitting a Payment Order if such transmittal
would result in Bank's having exceeded any limitation upon its intra-day net
funds position established pursuant to present or future Federal Reserve
guidelines or in Bank's otherwise violating any provision of any present or
future risk control program of the Federal Reserve or any present of future
statute, regulation or government policy to which Bank is subject.
COMPLIANCE WITH SECURITY PROCEDURES.
(a) Except as otherwise required by applicable law, if a Payment Order (or a
request for cancellation or amendment of a Payment Order) received by Bank
purports to have been transmitted or authorized by Client, it will be deemed
effective as Client's Payment Order (or request) and Client shall be obligated
to pay Bank the amount of such Payment Order as provided herein even though the
Payment Order (or request) was not authorized by Client, provided Bank acted in
compliance with the security procedure referred to in Appendix A with respect to
such Payment Order.
(b) If a Payment Order (or request for cancellation or amendment of an Payment
Order) received by Bank was transmitted or authorized by Client, Client shall be
obligated to pay the amount of the Payment Order as provided herein whether or
not Bank complied with the security procedure referred to in Appendix A with
respect to that Payment Order.
INCONSISTENCY OF NAME AND BANK NUMBER; DESIGNATION OF FUNDS TRANSFER SYSTEM
AND/OR INTERMEDIARY BANK. Client acknowledges and agrees that, if a Payment
Order describes the intermediary or beneficiary's bank inconsistently by name
and bank number, execution of the Payment Order by Bank, an intermediary bank or
a funds transfer system may be made on the basis of the bank number or bank name
even if they are inconsistent, and that Client's obligation to pay the amount of
the Payment Order to Bank is not excused in such circumstances. In the event
Client fails to specify a funds transfer payment system, communication system or
intermediary bank when initiating a particular payment order, Client hereby
instructs Bank to use the following: FedWire System, Clearing House for
Interbank Payment System, Society for World-Wide Interbank Financial
Telecommunications, any intermediary bank identified by the foregoing systems as
a correspondent bank of the beneficiary bank, or any payment system or
intermediary bank which Bank deems reasonable under the circumstances. Client
agrees to be bound by the rules of any applicable funds transfer payment system.
INCONSISTENCY OF NAME AND ACCOUNT NUMBER. Client acknowledges and agrees that,
if an Payment Order describes the beneficiary inconsistently by name and account
number, payment of the Payment Order transmitted by Bank to the beneficiary's
bank might be made by that institution (or by Bank in the case of an on-us
Payment Order) on the basis of the account number even if it identifies a person
different from the named beneficiary, and that Client's obligation to pay the
amount of the Payment Order to Bank is not excused in such circumstances.
PAYMENT FOR SERVICES. Client shall pay Bank the charges for the services
provided for
24
herein as set forth in pricing schedule previously provided to Client. Such
charges are in addition to the fees or charges provided for in the agreement
between Bank and Client with respect to the Account (the "Account Agreement").
AMENDMENTS. From time to time Bank may amend any of the terms and conditions
contained in this Agreement, including without limitation, any cut-off time, any
business day, and any part of Appendices A and B attached hereto. Such
amendments shall become effective upon mailing or otherwise giving notice to
Client or at such later date as may be stated in Bank's notice to Client.
NOTICES, INSTRUCTIONS, ETC. Bank shall be entitled to rely on any written notice
or other written communication believed by it in good faith to be genuine and to
have been signed by an Authorized Client Representative, and any such
communication shall be deemed to have been signed by such person. Except as
otherwise expressly provided herein, Bank shall not be required to act upon any
notice or instruction received from Client or any other person, or to provide
any notice or advice to Client or any other person with respect to any matter.
DATA RETENTION. Client shall retain data on file adequate to reconstruct Payment
Orders for one year following the date of their transmittal by Bank, and shall
provide such data to Bank upon its request.
TERMINATION. Client may terminate this Agreement at any time. Such termination
shall be effective on the second business day following the day of Bank's actual
receipt of written notice of such termination or such later date as is specified
in that notice. Bank reserves the right to terminate this Agreement immediately
upon providing written notice of such termination to Client. Any termination of
this Agreement shall not affect any of Client's obligations arising prior to
such termination.
ENTIRE AGREEMENT. This Agreement (including the Appendices attached hereto),
together with the Account Agreement, is the complete and exclusive statement of
the agreement between Bank and Client with respect to the subject matter hereof
and supersedes any prior agreement(s) between Bank and Client with respect to
such subject matter. In the event of any inconsistency between the terms of this
Agreement and the Account Agreement, the terms of this Agreement shall govern.
GENERAL.
(a) Client may not assign this Agreement or any of the rights or duties
hereunder to any person without Bank's prior written consent.
(b) This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective legal representatives, successors and assigns. This
Agreement is not for the benefit of any other person, and no other person shall
have any right against Bank or Client hereunder.
25
(c) Headings are used for reference purposes only and shall not be deemed a part
of this Agreement.
(d) This Agreement shall be construed in accordance with and governed by the
laws of the State of California.
(e) A Bank business day is Monday through Friday, excluding Bank holidays.
(f) In the absence of manifest error, Bank records shall be deemed conclusive
evidence of a Payment Order and related communications.
(g) Client agrees that no action, suit or other proceeding to recover for any
loss claimed under this Agreement shall be brought against Bank unless such
action, suit or proceeding shall have been commenced within one year from
receipt by Client of notification identifying the applicable Payment Order.
(h) Notwithstanding any provision of the California Commercial Code to the
contrary, the parties agree that attorney's fees will not be awarded in any
action regarding this Agreement.
CLIENT: First Pacific Recordkeeping, Inc.
By:_____________________________________
Xxxxxxxx X.X. Xxx, President
Date: June 24, 1994
26
Appendix A
SECURITY PROCEDURES - TELEPHONE-INITIATED WIRE REQUESTS TO BANK'S DOMESTIC WIRE
TRANSFER ROOM. Payment Orders may be initiated by telephone by an Authorized
Client Representative who is designated in the Spec Sheet as authorized to
initiate Payment Orders. When initiating a Payment Order, an Authorized Client
Representative shall present his/her personal identification number (PIN), which
shall previously have been provided to Client by Bank.
In addition to requiring a PIN when a Payment Order is initiated, Bank's
standard procedure to verify Client's authorization for non-repetitive,
telephone-initiated Payment Orders made to Bank's domestic wire transfer room
consists of a call-back whereby Bank telephones a second Authorized Client
Representative. The second Authorized Client Representative must also present
his or her PIN. This call-back procedure may be based on a non-disclosed floor
limit (a dollar amount under which a call-back will not be made). This call-back
procedure will not be used for repetitive Payment Orders unless Client has
specifically requested Bank in writing to do so. Bank will have no duty other
than as stated herein to verify that a Payment Order is made by an Authorized
Client Representative.
SECURITY PROCEDURES - TERMINAL-INITIATED WIRE TRANSFERS. An authorized Client
Representative will have access to Bank's System by following the procedures
specified in the applicable Guide. On or before the effective date of this
Agreement Bank will provide Client with the Guide and passwords and/or user
identification number and/or PINs, as applicable (collectively referred to as
Codes), to be used to access the System and make Payment Orders. Client agrees
that it will not issue any single Authorized Client Representative a combination
of Codes that may enable said Representative to make Payment Orders that would
otherwise require two Authorized Client Representatives.
CLIENT RESPONSIBILITY FOR PINS AND CODES, ETC. Client is responsible for
maintaining the confidentiality of all PINs, Codes, and other devices used to
protect the authenticity of a Payment Order. If Client has reason to believe
that any PINs, Codes or devices have or may have become known by, or have or may
become comprised by, unauthorized persons (whether or not employed by Client),
Client agrees to immediately notify Bank by telephone and agrees to confirm oral
notification in writing to Bank within 24 hours. Bank will issue new PINs and
Codes to Client in accordance with Bank's security requirements. Bank reserves
the right to change PINs and Codes at any time by giving reasonable prior notice
to Client.
CUT-OFF TIME. Bank agrees to use its best efforts to act on all Payment Orders
on the day received if receipt is prior to the 2:30 p.m. Pacific Time cut-off
time set by Bank, which time may be changed from time to time without prior
notice.
COMPENSATION. Subject to the foregoing limitations, Bank's liability for loss of
interest resulting from its error or delay shall be calculated by using a rate
equal to the average Federal Funds
27
rate at the Federal Reserve Bank of New York for the period involved.
NOTICES. Except as otherwise expressly provided herein, all notices will be in
writing and will be mailed by first class mail, postage prepaid, or personally
or electronically delivered to the Client at the address specified on the Spec
Sheet and to Bank as follows: The Bank of California, Wire Transfer Department,
X.X. Xxx 00000, Xxx Xxxxxxxxx, XX 00000; these addresses may be amended in
writing from time to time. Such notices will be effective upon receipt and,
except as otherwise set forth in the Wire Transfer Agreement, will be deemed to
be received within five days of mailing.
28
