MASTER AGREEMENT
Terms and Conditions
Cash Management Services
Company Name: Twentieth Century
Master Agreement Number: 00-0000000
COMMERCE BANK, N.A. ("Bank")
Twentieth Century Services, Inc. ("Company")
Introduction. Bank shall perform Services described in separate Service
Agreements and corresponding Service Manuals in accordance with this
Master Agreement and the respective Service Agreements and Service
Manuals. Banks may utilize outside service providers and agents in the
performance of all or any of the Services. If the terms of any of the
Service Agreements and/or Service Manuals conflict with this Master
Agreement, this Master Agreement shall control.
1. Company's Records and Media. The Company will provide to the Bank
all records and data processing media necessary to perform the Service.
The records will be legible, correct, complete and in the format
specified in the Service Agreements, Service Manuals and any related
schedules. The records will contain totals and proof information
satisfactory to the Bank. All data processing media supplied by the
company; must be specified by, or acceptable to, the Bank. Checks must
be MICR encoded in accordance with the Bank's specifications.
When any Service Agreement is terminated, the Company will instruct the
Bank in writing within sixty (60) days whether the Bank should return
or destroy any data processing media furnished by the Company and any
records produced as a part of terminated Services. If the company does
not instruct the Bank within such sixty (60) day period, the Bank may
destroy or return any such materials, and shall have no liability to
the company or any third party if such materials are destroyed or
otherwise not retained.
All specifications, tapes or other media, programs and procedures owned
by the Bank or its service providers in connection with the performance
of the Services, will be and remain the sole property of the Bank. The
Company will return such materials tot he Bank promptly upon request,
and shall be responsible for any damage to any such materials incurred
in shipping and usage other than normal wear and tear.
2. Company Failure to Furnish Satisfactory Records and Media. The
Bank's performance of Services is subject to the Bank's receipt of
timely, accurate and complete data for each Service, in form and on
media specified by, or acceptable to the Bank. If any of these
requirements are not met by the Company:
a. The Bank shall no longer be bound by the applicable production
and delivery schedules; and
b. The Bank shall be authorized to produce and deliver whatever
portion of the Services can be performed under the
circumstances.
In addition to the foregoing, the Company shall compensate the Bank at
the Bank's then current rates for the time and materials for converting
data from nonstandard form to standard form, or for completing missing
data.
3. Company's Duty to Inspect. The Company shall be responsible for
inspecting the work product for all Services performed, when received,
and for notifying the Bank immediately upon the discovery of any
errors. The Company must notify the Bank within a reasonable time after
receipt of the material containing any error, or of a report or
statement reflecting any error, and in any event, within the time
periods specified in the applicable Service Manuals. Except to the
extent otherwise provided by applicable law or this Agreement, failure
to notify the Bank of errors within the applicable time period will
relieve the Bank of any and all responsibility and liability relating
thereto.
4. Limitation of Liability. Except to the extent otherwise provided by
applicable law, the Bank's liability will be limited as set forth
herein. The Bank's liability shall be limited to actual damages
sustained by the Company and only to the extent such damages are a
direct result of the Bank's failure to act in good faith and exercise
ordinary care (as measured by the standard of care as set forth in
Section 12 below). The Bank shall not be liable for any act or omission
of th3 Company or any third party. Each Service Agreement shall
constitute a contract solely between the Bank and the Company, and the
Bank shall have no liability thereunder to any third party, or for any
charges imposed by any third party, EXCEPT TO THE EXTENT OTHERWISE
LIMITED BY APPLICABLE LAW, IN NO EVENT SHALL THE BANK BE XXXXXX FOR
SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY
KIND, INCLUDING LSOT PROFITS (WHETHER OR NOT THE BANK HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.)
For transfers governed under Article 4A of the Uniform Commercial Code,
the Bank will compensate the Company, to the extent required by
applicable law, for the Company's loss of interest on funds as a direct
result of the Bank's failure to comply with such law in executing a
transfer, such compensation shall be based upon the Fed Funds Rate at
the Federal Reserve Bank of New York in effect at the time of the
claimed loss of interest (as determined by the Bank in its reasonable
discretion). Except to the extent otherwise provided by applicable law
or this Agreement, the Bank shall not be liable for the Company's
attorney's fees in connection with any claim for loss of interest, or
otherwise.
5. Fees. The Company shall compensate the Bank for the Services in
accordance with the Bank's fee schedules in effect from time to time.
The Bank may amend the fee schedules at any time and will endeavor to
give written notice thirty (30) days in advance, to the Company of
changes in fee schedules relating to Services then being performed for
the Company. If acceptable to the Bank, fees may be payable through the
maintenance by the Company of required compensating collected balances
in specified account(s) of the Company; the compensation collected
balance requirements will be measured by Bank's standard "analysis" of
the Company's specified account(s). In the alternative, Bank may xxxx
the Company for fees, by invoice. Each invoice shall be due and payable
within sixty (60) days of the date of invoice.
In addition to the fees to be paid by the Company, the Company agrees
to pay all sales, use or other taxes applicable to the Services
provided hereunder, excluding, however, taxes based upon the Bank's net
income.
6. Overdrafts; Set-off. In the event any actions by the Company should
result in an overdraft in any of its accounts, the Company shall be
responsible for immediately covering the overdraft (with immediately
available funds), together with interest thereon at a per annum rate
equal to two percent (2%) in excess of the Bank's published prime Rate.
Notwithstanding the foregoing, Bank shall no duty or obligation to
honor or effect any transfer which will result in an overdraft in any
of Company's accounts.
7. Credit Limits; Documentation. In the event the Services selected by
the Company and to be performed by the Bank may result in credit
exposure to the Bank, the Bank may limit the Company's transaction
volume of dollar amount and refuse to execute transactions that exceed
any such limit. The Company shall, upon request by the Bank from time
to time, provide to the Bank financial information and statements and
such other documentation as the Bank determines to be reasonably
necessary or appropriate to enable the Bank to evaluate its credit
exposure and the Company's credit worthiness. The Company shall provide
to the Bank, as the Bank may request from time to time, such
documentation (such as resolutions, incumbency certificates,
authorizations, agreements and other documents) relating to (without
limitation) the Company's authority to contract for the Services and/or
the Company's establishment of any deposit accounts.
8. Security Procedures. If the Services involve the establishment of
security procedures to be implemented and followed by Company, the
Company agrees that is shall be solely responsible to assure that such
security procedures are followed, as they may be amended from time to
time. If such security procedures are breached or violated, the Company
agrees to immediately notify Bank of any such breach or violation. THE
COMPANY ACKNOWLEDGES THAT IT HAS REVIEWED ALL APPLICABLE COMPANY
SECURITY PROCEDURES AND HAS DETERMINED, AS OF THE DATE HEROF, THAT
THOSE PROCEDURES ARE COMEMRCIALLY REASONABALE. THE COMPANY ALSO AGREES
THAT ITS EXECUTION OF ANY SERVICE AGAREEMENS IN THE FUTURE WILL
CONSTITUTE ITS ACKNOWLEDGMENET THAT ALL COMPANY SECURITY PROCEDURES
APPLCIABLE TO THE RESPECTIVE SERVICES ARE COMMERCIALLY REASONABLE. This
Section 8 shall survive termination of all Service Agreements.
9. Indemnity. The Company shall indemnify and hold the Bank harmless
from any and all claims, damages, losses, liabilities, costs and
expenses, including reasonable attorney's fees, which result from any
breach of a Service Agreement or this Master Agreement by the Company,
or which relate in any manner to the Services performed under this
Maser Agreement and the respective Service Agreements and Service
Manuals, except to the extent arising from the Bank's failure to
perform Services in accordance with the standard of care a set forth in
Section 12 below.
Bank hereby represents and warrants: (a) that Bank owns all
Bank-provided software, or has the authority to license the software as
provided in the Agreement; and (b) that the software does not now and
will not infringe any United States patent, copyright, trade secret or
other proprietary right of any third party. Bank, at its expense,
hereby agrees to indemnify and hold harmless Company, and defend any
actin brought against Company with respect to any claim, demand, cause
of action, cost, loss, damage, expense (including reasonable attorneys'
fees) or liability, arising from or based in any respect on a claim by
any third party that Company's use of any Bank-provided software or
documentation infringe, violate or in any manner contravene, breach or
constitute an unauthorized use of misappropriation of any patent,
copyright, license, trade secret or other property or proprietary
right.
10. Term. Each Service Agreement shall continue until terminated by
either party upon thirty (30) days prior written notice; provided,
however, each Service Agreement shall automatically terminate without
notice (i) upon the filing by or against the Company of any bankruptcy
petition for the appointment of a receiver, or upon the filing of any
other action alleging, or if a determination is made, that the Company
is insolvent, (ii) in the event that the Company's designated accounts
with the Bank are closed, (iii) u0pon termination of a third party
contract which is necessary for the performance of the Services, or
(iv) if either the Bank or the Company is hereafter prohibited by law
from performing or contracting for the Services. The Bank may also
terminate any Service Agreement immediately with or without notice if
the Bank determines that the Company has failed to maintain a financial
condition deemed necessary by the Bank, or in the event of a material
breach by the company of any agreement between the Company; and the
Bank.
11. Force Majeure. Neither party shall bear any responsibility for
non-performance of any Services caused by, or relating to, an event
beyond the applicable party's control, including, without limitation,
fire, casualty, breakdown in equipment of failure of telecommunications
or data processing services, sabotage, labor shortage, lockout, strike,
unavoidable accident, acts of God, riot, war or the enactment, issuance
or operation of any adverse governmental law, ruling, regulation, order
or decree, or an emergency or catastrophe that prevents or materially
interferes with the such party's normal operations. .
12. Standard of Care. Bank will exercise reasonable care to select and
use facilities, equipment, personnel and third party service providers
in connection with the activities to be performed under the respective
Service Agreements and this Master Agreement, with the same care as it
exercises in the conduct of its own banking operations. Bank shall
exercise reasonable care in performing its duties and obligations under
the Service Agreements.
13. Facsimile Signature. If the Company at any time authorizes or
permits utilization of a facsimile signature for any "authorized
signature", the Bank shall be entitled to honor and charge the Company
for all checks and other orders for payment of money so signed,
regardless of by whom or what means the purported or actual facsimile
signature may have been affixed thereto, is such orders are drawn in
the Company's name. Company agrees that all previous, present and
future authorizations shall continue in full force and effect until
Bank is advised din writing to the contrary and until Bank shall have
had a reasonable opportunity to at upon such advise.
14. Check Retention. If the Company chooses to have the Bank retain
copies of its paid checks, Company agrees not to make any claim against
the Bank arising out of the authorized destruction of the original
check, or the clarity of legibility of any copy that the Bank provides.
15. Business Purpose. The Company agrees that the Services to be
performed by the Bank will be sued by the Company solely for business
or commercial purposes and not for personal, family, or household
purposes.
16. Severability. If any provision of this Master Agreement or any
Service Agreement shall be determined by a court of competent
jurisdiction to be void or unenforceable as written, the affected
provision shall be interpreted so as to achieve, to the extent
permitted by applicable law, the purposes intended under the original
provision, and the remaining provisions of the Service Agreements and
this Master Agreement shall continue in full force and effect as
modified.
17. Headings; Complete Agreement. Headings are used for reference
purposes only and shall not be deemed a part of these Terms and
Conditions. The parties hereto acknowledge that each has read the
Service Agreements and this Master Agreement, understands them, and
agrees to be bound by the respective terms thereof. The parties further
agree that the Service Agreements, the Service Manuals and this Master
Agreement, and any written modifications made to any of the foregoing,
and the applicable deposit account agreements, shall constitute the
complete and exclusive expression of the agreements between the
parties, and shall specifically supersede all other proposals (whether
oral or written), understandings, representations, conditions,
warranties, covenants, and all other communications between the parties
relating to the subject matter of all of the foregoing.
18. Amendments; Assignments. The Bank may amend this Maser Agreement,
any Service Agreement and/or Service Manual at any time. Unless a
greater period is otherwise required by applicable law, the Bank will
use reasonable efforts to provide notice to the Company, at least (30)
days before the effective date, of any amendment which in the
reasonable opinion of Bank will materially alter the terms of this
Master Agreement, any Service Agreement and/or Service Manual. Company
may not assign any Service Agreement or any of its rights or duties
hereunder or thereunder to any person or entity without Bank's prior
written consent (which consent will not be unreasonably withheld or
delayed), and any attempted assignment without such consent shall be
null and void.
19. Notices. All notices required or permitted to be given hereunder
shall be effective when received if hand delivered or sent by
telecopier, or when deposited in the United States Mail, first class
postage prepaid, and addressed to the respective parties at the
addresses set forth below the respective signature lines contained
herein, or to such other address as either party shall have specified
in writing to the other.
20. Binding Agreement; Benefit. This Master Agreement shall be binding
upon and inure to the benefit of, and shall be enforceable exclusively
by and for the exclusive benefit of, the parties hereto and their
respective legal representatives, permitted successors and permitted
assigns.
21. Waiver of Jury Trial. COMPANY AND BANK HEREBY WAIVE THE RIGHT TO A
TRIAL BY JURY ON ANY MATTERS ARISING OUT OF THIS MASTER AGREEMENT OR
THE TRANSACTINS CONTEMPLETED HEREIN, IN THE SERVICE AGREEMENTS AND IN
THE SERVICE MANUALS.
22. Governing Law. This Master Agreement and the Service Agreements
shall be governed by, and interpreted in accordance with, the laws of
the State of Missouri.
Twentieth Century Services, Inc.
-------------------------------- ---------------------------------
Company Commerce Bank, N.A
By: /s/ Xxxx Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxx
Xxxxxxxx Xxxxxx 8/29/96 Xxxxxx Xxxxx 1/22/97
Title: Vice President & Treasurer Title: Senior Vice President
Address for notice: Address for notice:
-------------- Commerce Bank, N.A.
-------------- Corporate Services
-------------- P.O. Box 419248
-------------- Xxxxxx Xxxx, XX 00000-0000
Commerce Bank, N.A.
The Cash Sweep Program
Sweep Service Agreement
I have received and reviewed the Xxxxxxx Xxxxx & Co. prospectus of the Financial
Square Trust Fund and appoint you, Commerce Bank, N.A. to implement a cash
management program whereby you will purchase service units in the Portfolio for
me [and the accompanying investment (purchase and redemption) requirements]. I
understand that you will purchase such units with funds which I may deliver to
you for such purpose, provided I maintain in my depository account with you (the
"Account") a minimum balance which shall be determined from time to time. As my
agent, you are also authorized and directed to purchase units in the Portfolio
with any cash balances remaining in my Account at the end of every business day
in excess of the minimum balance.
I understand that such cash balances in excess of the minimum balance will
either be invested directly at the end of every business day in units in the
Portfolio or will be swept into an omnibus account of the Bank which account, at
the beginning of the following business day, will invest such cash balances
directly in units in the Portfolio and that such units, when purchased, will be
allocated directly to the Account.
You are authorized to hold these units as unitholder of record and nominee for
my sole benefit and you are to maintain appropriate records of units purchased,
earnings on units held and units redeemed. Dividends on Portfolio units will be
reinvested in additional units. An accurate monthly statement showing all income
and principal cash received or disbursed by the Account during the period
covered shall be furnished.
You shall use "best efforts", as that term is understood in the investment
community, to invest all cash balances in excess of the minimum balance in
Portfolio units until you receive notice of any changes in this authorization.
Units held are to be redeemed as promptly as practicable and the cash received
for such redemptions credited to the Account whenever such cash is needed for
other uses as directed by me, to cover outstanding and unpaid checks drawn the
Account or to cover cash management fees and expense reimbursements charged to
the Account as described below. I Agree that I will not draw checks on my
deposit account in a fashion that will create an overdraft that will be used for
the purpose of buying, carrying or trading securities, or buying or carrying any
part of an investment contract security or obtaining such overdraft to repay
debt incurred for such purposes. I understand that the Bank shall immediately
obtain a security interest in the Portfolio units upon the occurrence of and to
the extent necessary to cover the amount of any overdraft incurred in the
Account for such period of time as said overdraft remains outstanding. The Bank,
in its sole discretion, alternatively may withhold from payment any outstanding
and unpaid check drawn on the Account until finds sufficient to cover such
outstanding and unpaid check have been credited to the Account as a result of
cash received from the redemption of Portfolio units.
This Agreement shall continue until you receive written notice of my revocation
or until you advise me that you do not wish to continue this service. Upon
revocation or termination, all Portfolio units then held shall be promptly
redeemed for cash and the proceeds delivered to my Account or to me after
payment of outstanding check or service fees, if any, as I may designate.
I understand that your responsibility is limited to the exercise of due care and
diligence in the custody of the assets you hold hereunder and in acting pursuant
to this Agreement. In no event, however, shall you be liable in any respect
except for negligence or willful breach of duties and in no event for losses due
to investment selection. I understand that Portfolio units are not insured or
guaranteed by the Federal Deposit Insurance Corporation or any other government
agency and do not constitute obligations of the Bank, but that the Bank acts
solely as agent for me in purchasing units.
I shall be responsible for all expenses, taxes, or other charges or liabilities
incurred by you in connection with the Account, and you are authorized to charge
my Account accordingly. You are authorized to supply information or to sign, as
my agent, documents required by any tax laws or other laws or regulations. In
addition, I expressly authorize you or your designee to act upon voice,
telegram, cablegram and radio messages received by you purporting to be sent by
me or by any dully authorized agent although bearing no test or other form of
confirmation. I assume all risk which may result from any action taken by you or
your designee in good faith in reliance on such communications.
I also acknowledge that fees will be paid monthly by the Portfolio and Xxxxxxx
Xxxxx Asset Management to the Bank as disclosed in the Portfolio prospectus.
This Agreement is governed by the laws of the State of Missouri.
I am completing the attached new account information form to facilitate the
establishment of this account.
Please confirm this authorization and direction with respect to the funds
delivered herein. This Agreement will be effective upon confirmation by you.
Signatures:
1. /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
2./s/-----------------
--------------------
Accepted this day of ----- 199
Commerce Bank, N.A.
By:/s/ Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx
Account # ---------------------------
