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EXHIBIT 8(d)
CASH MANAGEMENT AND RELATED SERVICES AGREEMENT, dated as
September 24, 1996 between The Sessions Group, an Ohio business trust (the
"Group"), on behalf of each portfolio series of the Group listed on Schedule A
hereto (each a "Fund", collectively the "Funds"), and The Bank of New York (the
"Bank").
WITNESSETH:
That in consideration of the mutual agreements and covenants herein
contained, the Bank and each Fund hereby agree as follows:
ARTICLE I
DEFINITIONS
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Whenever used in this Agreement, unless the context otherwise requires,
the following words shall have the meanings set forth below:
1. "ACCOUNT" shall mean an account registered in the name of a Fund or
such Fund's transfer agent for receiving and disbursing money as provided in
this Agreement.
2. "ACCOUNT AVAILABLE BALANCE" shall mean with respect to an Account
for any given day during a calendar month a positive or negative dollar amount
equal to (A) if such day is a Business Day, the Account Available Balance as of
the close of the last preceding Business Day plus a positive or negative dollar
amount equal to the difference, if any, between the Chargeable Credits with
respect to such day and such Account and the Chargeable Debits with respect to
such day and such Account, and (B) if such day is not a Business Day, the
Account Available Balance as of close of the last preceding Business Day, except
that both (A) and (B) shall be reduced by the United States Federal Reserve
reserve requirements then applicable to the Bank with respect to such Account.
The Account Available Balance of an Account shall be zero on the date
immediately preceding the first date on which an entry, consisting of either a
Chargeable Credit or Chargeable Debit, is first made to such Account hereunder.
3. "ACCESS" shall mean any on-line communication system provided by the
Bank hereunder whereby either the receiver of such communication is able to
verify by codes or otherwise with a reasonable degree of certainty the identity
of the sender of such communication, or the sender is required to provide a
password or other identification code.
4. "AUTHORIZED PERSON" shall mean either (A) any person duly authorized
by corporate resolutions of the board of directors or board of trustees of the
Group (the "Board") to give Oral and/or Written Instructions on behalf of the
Funds, such persons to be designated in a certificate, substantially in the form
of Exhibit A, which contains a specimen signature of such person, or (B) any
person sending or transmitting any instruction or direction through ACCESS.
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5. "BUSINESS DAY" shall mean any day on which the Federal Reserve Bank
of New York is open for business, except for any such day on which the Bank is
required by law or regulation to be closed, or elects to be closed.
6. "CALENDAR MONTH EARNINGS CREDIT" shall mean with respect to an
Account for any calendar month the dollar amount, whether positive or negative,
equal to the sum of the Gross Calendar Month Earnings Credit with respect to
such Account for such calendar month and the Monthly Overdraft Charges with
respect to such Account for such calendar month.
7. "CHARGEABLE CREDITS" shall mean with respect to an Account for any
given day during a calendar month a positive amount of dollars equal to the sum,
if any, of (A) the aggregate dollar amount of Federal Funds credited to such
Account by the Bank in accordance with the then applicable availability schedule
of the Federal Reserve Bank of New York, and (B) the aggregate dollar amount of
Bank internal transfers of Federal Funds to such Account.
8. "CHARGEABLE DEBITS" shall mean with respect to an Account for any
given day during a calendar month a negative dollar amount equal to the sum, if
any, of (A) the aggregate dollar amount of Federal Funds relating to such
Account charged against the Bank by the Federal Reserve Bank of New York on or
as of such day, and (B) the aggregate dollar amount of drafts drawn on such
Account which are deposited in the Bank by customers of the Bank on such day, or
Bank internal transfers from, or charges to, such Account.
9. "DAILY EARNINGS" shall mean with respect to an Account for any day
during a calendar month a positive dollar amount equal to the product of (A) the
positive Account Available Balance, if any, of such Account for such day,
multiplied by (B) the Daily Earnings Rate for such day. The Daily Earnings with
respect to an Account for any day during a calendar month on which the Account
Available Balance of such Account is negative shall be zero.
10. "DAILY EARNINGS RATE" shall mean for any day during a calendar
month one three hundred and sixty-fifth of the 91 day U.S. Treasury Xxxx
discount rate of the Monday auction first preceding such day (whether or not
such day is a Monday, and whether or not such Monday auction was in the
immediately prior month), as such Monday auction 91 day U.S. Treasury Xxxx
discount rate is reported in The Wall Street Journal.
11. "DAILY OVERDRAFT CHARGES" shall mean with respect to an Account for
any day during any calendar month a negative dollar amount equal to the product,
if any, of (A) the negative Account Available Balances, if any, with respect to
such Account for such day during such calendar month, multiplied by (B) the
Overdraft Rate.
12. "FEDERAL FUNDS" shall mean immediately available same day funds.
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13. "GROSS CALENDAR MONTH EARNINGS CREDIT" shall mean with respect to
an Account for any calendar month a positive dollar amount equal to the
aggregate sum of the Daily Earnings of such Account for such calendar month.
14. "MONTHLY OVERDRAFT CHARGES" shall mean with respect to an Account
for any calendar month a negative dollar amount equal to the aggregate sum of
the Daily Overdraft Charges with respect to such Account for such calendar month
which have not been previously paid to the Bank by the Fund to which such
Account relates.
15. "OMNIBUS ACCOUNT" shall mean an account at the Bank for the benefit
of the Funds into which money (A) to be deposited into an Account is initially
credited pending its transfer to such Account, or (B) transferred from an
Account is deposited pending its disbursement.
16. "ORAL INSTRUCTIONS" shall mean verbal instructions actually
received by the Bank from an Authorized Person or from a person reasonably
believed by the Bank to be an Authorized Person.
17. "OVERDRAFT RATE" shall mean with respect to an Account for any
calendar day during any calendar month a rate equal to one three hundred and
sixtieth of the sum of (A) one-half percent, and (B) the greater of (i) the
prime commercial lending rate of The Bank of New York, as publicly announced to
be in effect from time to time, in effect on such calendar day, and (ii) 6 %.
18. "SHAREHOLDER" shall mean any record holder of any Shares, as
identified to the Bank from time to time pursuant to this Agreement.
19. "SHARES" shall mean all or any part of each class of the shares of
capital stock, beneficial interest, or limited partnership interest of a Fund,
as the case may be, which are authorized and/or issued from time to time.
20. "WRITTEN INSTRUCTIONS" shall mean written instructions actually
received by the Bank from an Authorized Person or from a person reasonably
believed by the Bank to be an Authorized Person by letter, memorandum, telegram,
cable, telex, telecopy facsimile or through ACCESS.
ARTICLE II
APPOINTMENT OF BANK: REPRESENTATIONS AND WARRANTIES
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1. APPOINTMENT; ESTABLISHMENT OF ACCOUNTS. The Group hereby appoints
the Bank as its agent for the term of this Agreement to perform on behalf of
each Fund the cash management services set forth herein and in Schedules I and
II attached hereto and made a part
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hereof (as such Schedules may be amended or supplemented from time to time by
mutual agreement) which are selected by the Group from time to time. The Bank
hereby accepts appointment as such agent and agrees to establish and maintain
one or more Accounts and/or Omnibus Accounts as the parties shall determine are
necessary to receive and disburse money as provided in this Agreement.
2. REPRESENTATIONS AND WARRANTIES. The Group, for itself and each Fund,
hereby represents and warrants to the Bank, which representations and warranties
shall be deemed to be continuing and to be reaffirmed upon delivery to the Bank
of any Oral or Written Instructions, that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and delivered by
the Group in accordance with all requisite corporate action and constitutes a
valid and legally binding obligation of the Group and each Fund enforceable in
accordance with its terms, except to the extent such enforcement may be limited
by general equity principles or bankruptcy principles; and
(c) It is conducting its business in compliance with all applicable
laws and regulations, both state and federal, and has obtained all regulatory
licenses, approvals and consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order or judgment binding on
it and no provision of its charter or by-laws, nor of any mortgage, indenture,
credit agreement or other contract binding on it or affecting its property which
would prohibit its execution or performance of this Agreement.
3. BOARD RESOLUTIONS. The Group shall provide the Bank with a certified
copy of a resolution of its Board appointing the Bank as its agent to act
hereunder and providing for the creation of each Fund's Account(s), the
utilization by the Funds of one or more Omnibus Accounts and the execution by
the Group of this Agreement, it being understood that receipt of the same by the
Bank shall be a condition precedent to the Bank's establishing an Account for
each Fund and such Fund's utilization of an Omnibus Account.
ARTICLE III
CASH MANAGEMENT SERVICES
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1. RECEIPT OF MONEY. The Bank shall receive money for credit to
an Account only:
(i) by personal presentment of drafts by a Fund, but not by a
Shareholder of such Fund, at the branch or branches in
Manhattan identified from time to time by the
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Bank to such Fund, provided such presentment is in accordance
with the time frames specified by the Bank to such Fund;
(ii) by mailing of drafts to a post office box designated by the
Bank for such purpose, provided such drafts are accompanied by
a properly completed investment stub;
(iii) by wire transfer to an account maintained at the Federal
Reserve Bank of New York as identified in writing by the Bank
to a Fund;
(iv) by transfer to an account identified in writing by the Bank to
a Fund through the New York Automated Clearing House;
(v) by transfer from another Account maintained by such Fund with
the Bank under this Agreement;
(vi) by transfer from another account maintained by such Fund with
the Bank, including such Fund's custodian account under its
Custody Agreement with the Bank as Custodian; or
(vii) by transfer from any other account maintained with the Bank.
All money received by the Bank shall be credited upon receipt, but subject to
final payment and receipt by the Bank of immediately available funds, and
receipt by the Bank of such forms, documents and information as are required by
the Bank from time to time and received in the appropriate time frames. If an
Omnibus Account has been established for the Funds, such money shall be
initially credited to the Omnibus Account pending its allocation to, and deposit
in, an Account. The Bank shall be entitled to reverse any credits previously
made to a Fund's Account or an Omnibus Account where money is not finally
collected or where a credit to such account was in error.
2. DISBURSEMENT OF MONEY. The Bank shall disburse money credited to an
Account or an Omnibus Account only:
(i) pursuant to Written Instructions of such Fund transmitted
through ACCESS (except as otherwise provided in Article V,
Section 7 hereof), to transfer funds as directed by such Fund
(including transfers through the Federal Reserve Bank of New
York transfer wire and the New York Automated Clearing House);
(ii) in payment of drafts drawn by an Authorized Person or
Shareholder (as appropriate for the particular Account),
subject to the terms hereof; or
(iii) in payment of charges to such Account representing amounts
payable to the Bank, and chargeable against such Account, as
provided in this Agreement.
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The Bank shall be required to disburse money in accordance with the foregoing
only insofar as such money is immediately available and on deposit with the
Bank. If an Omnibus Account has been established for the Funds, such money shall
be credited to the Omnibus Account pending such disbursement. All instructions
directing the disbursement of money credited to an Account or Omnibus Account
under this Agreement (whether through ACCESS or by Oral Instructions pursuant to
Article V hereof) must identify an account to which such money shall be
transferred, and include all other information reasonably required by the Bank
from time to time. It is understood and agreed that with respect to any such
instructions, when instructed to credit or pay a party by both name and a unique
numeric or alpha-numeric identifier (E.G., ABA number or account number), the
Bank and any other financial institution participating in the funds transfer may
rely solely on the unique identifier, even if it identifies a party different
than the party named. Such reliance on a unique identifier shall apply to
beneficiaries named in such instructions as well as any financial institution
which is designated in such instruction to act as an intermediary in a funds
transfer.
3. REDEMPTION DRAFTS; SHAREHOLDER INFORMATION. (a) Where a Fund offers
its Shareholders draft redemption privileges, each such Fund shall be entitled
to supply its Shareholders with redemption drafts, but only in a form and
substance agreed to by the Bank. The Bank agrees to give each Fund sixty (60)
days prior notice of any changes to the form or substance of redemption drafts
required by the Bank, provided that if such change is required by applicable
rules or procedures of the Federal Reserve or any clearinghouse through which
such drafts may be presented, the Bank may give less than sixty (60) days prior
notice of such change.
(b) Each Fund which offers its Shareholders draft redemption
privileges will promptly furnish to the Bank (i) the name, mailing address and
telephone number of each Shareholder of such Fund, and (ii) specimen signatures
for all individuals authorized to draw redemption drafts (whether on their own
behalf or on behalf of third parties). Each Fund will promptly advise the Bank
of individuals no longer authorized to draw redemption drafts, and those
individuals newly authorized. Such information shall be provided to the Bank in
a mutually agreed upon format.
4. REDEMPTION DRAFT RETURNS. The Group, on behalf of a Fund, may give
the Bank Oral or Written Instructions from time to time to return unpaid
redemption drafts of the Fund to the presenting financial institution for any
reason, and the Bank shall use reasonable efforts to comply with such Oral or
Written Instructions provided that such compliance would not prejudice or impair
any rights or privileges of the Bank under prevailing draft return procedures
and would not be contrary to prevailing industry rules, procedures, customs or
practices. Notwithstanding the foregoing, or any other provision in this
Agreement or the Schedules hereto, the Bank (i) may return redemption drafts
with unauthorized or missing signatures to the presenting financial institution
in accordance with prevailing banking industry draft return procedures, and (ii)
shall have no obligation to request Oral or Written Instructions with respect to
any redemption drafts.
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ARTICLE IV
ADVANCES, OVERDRAFTS OR INDEBTEDNESS
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1. If the Bank in its sole discretion advances funds, or if there shall
arise for whatever reason an overdraft or other indebtedness (except fee
indebtedness, the payment of which shall be governed solely by Article VI,
paragraph 10(b) hereof) in connection with any Account or Omnibus Account, such
advance, overdraft or indebtedness shall be deemed a loan made by the Bank to
the Group on behalf of the Fund to which the Account relates, or in the case of
an Omnibus Account, to which such advance, overdraft or indebtedness relates,
payable on demand and bearing interest from the date incurred at the Overdraft
Rate, such Overdraft Rate to be adjusted on the effective date of any change in
the prime commercial lending rate constituting a part thereof. In the event of
any advance, overdraft or other indebtedness in connection with an Omnibus
Account, the Bank shall be furnished promptly (and in any event by 12:00 p.m. on
the next Business Day after such advance, overdraft or indebtedness) with
Written Instructions identifying each Fund to which such advance, overdraft or
indebtedness relates. and the amount allocable to such Fund(s).
2. The Group, on behalf of each Fund, hereby agrees with respect to
such Fund's Account(s), any Omnibus Account(s) and any advances, overdrafts or
other indebtedness that the Bank shall have a continuing lien and security
interest in and to any property at any time held by it for the benefit of such
Fund either hereunder or under the Group's Custody Agreement with the Bank with
respect to such Fund, or in which the Fund may have an interest which is then in
the Bank's possession or control or in possession or control of any third party
acting in the Bank's behalf, including in its behalf as Custodian under the
Group's Custody Agreement with the Bank, having at the time such overdraft or
indebtedness is incurred a fair market value equal to 150% of such overdraft or
indebtedness. Subject to the provisions of Article VI, paragraph 10(b) hereof,
the Group, on behalf of each Fund, authorizes the Bank, in its sole discretion,
at any time to charge any advance, overdraft or indebtedness together with
interest due thereon at the Overdraft Rate against any balance of accounts
standing to the Fund's credit on the books of the Bank, including those books
maintained by the Bank in its capacity as Custodian for the Fund under its
Custody Agreement with the Group. Nothing contained herein shall be construed as
a waiver by any Fund of any right to contest in appropriate proceedings any
charge by the Bank pursuant hereto.
3. The Group, on behalf of each Fund, agrees that upon allocation of
all advances, overdrafts or indebtedness to its account pursuant to paragraph 1
above, its total borrowings from all sources (including the Bank) shall be in
conformity with the requirements and limitations set forth in the Investment
Company Act of 1940, as amended, and the Fund's Prospectus and Statement of
Additional Information. The Group, on behalf of each Fund, shall promptly (and
in any event within one Business Day) notify the Bank in writing whenever it
fails to comply with any of the foregoing requirements.
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ARTICLE V
ACCESS; CALL-BACK SECURITY PROCEDURE
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1. SERVICES GENERALLY. The Group, on behalf of each Fund, shall be
permitted to utilize ACCESS to obtain direct on-line access to its Accounts and
Omnibus Accounts. ACCESS shall permit the Group at the times mutually agreed
upon by the Bank and the Group to receive reports, make inquiries, instruct the
Bank to disburse money in accordance with Article III, and perform such other
functions as are more fully set forth in Schedule I hereto.
2. PERMITTED USE; PROPRIETARY INFORMATION. (a) The Group, on behalf of
each Fund, shall use ACCESS and the services available thereby only for its own
internal and proper business purposes and shall not sell, lease or otherwise
provide, directly or indirectly, ACCESS or any of such services or any portion
thereof to any other person or entity. The Group shall obtain and maintain at
its own cost and expense all equipment and services, including but not limited
to communications services, necessary for it to utilize ACCESS and receive the
services thereby, and the Bank shall not be responsible for the reliability or
availability of any such equipment or any services used in connection with
ACCESS.
(b) The Group, on behalf of each Fund, acknowledges that all data bases
made available as part of, or through ACCESS, and any proprietary data,
processes, information and documentation (other than any such which are or
become part of the public domain or are legally required to be made available to
the public) (collectively, the "Information"), are the exclusive and
confidential property of the Bank. The Group, on behalf of each Fund, shall keep
the Information confidential by using the same care and discretion that it uses
with respect to its own confidential property and trade secrets, and shall
neither make nor permit any disclosure without the express prior written consent
of the Bank.
(c) Upon termination of this Agreement for any reason, the Group, on
behalf of each Fund, shall return to the Bank any and all copies of the
Information which are in the Group's possession or under its control, or
distributed to third parties. The provisions of this Article shall not affect
the copyright status of any of the Information which may be copyrighted and
shall apply to all Information whether or not copyrighted.
3. MODIFICATIONS. The Bank reserves the right to modify ACCESS from
time to time without notice to any Fund. The Group, on behalf of each Fund,
agrees not to modify or attempt to modify ACCESS without the Bank's prior
written consent. The Group acknowledges that ACCESS is the property of the Bank
and, accordingly, agrees that any modifications to ACCESS, whether by the Group
or the Bank and whether with or without the Bank's consent, shall become the
property of the Bank.
4. NO REPRESENTATIONS OR WARRANTIES. Neither the Bank nor any
manufacturers or suppliers it utilizes or the Group utilizes in obtaining ACCESS
makes any warranties or
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representations, express or implied, in fact or in law, including but not
limited to warranties of merchantability and fitness for a particular purpose.
5. SECURITY; RELIANCE; UNAUTHORIZED USE. The Group, on behalf of each
Fund, will, and will cause all persons utilizing ACCESS to, treat the user and
authorization codes, passwords and authentication keys applicable to ACCESS with
extreme care. The Bank is hereby irrevocably authorized to act in accordance
with and rely on Written Instructions received by it through ACCESS. The Group
acknowledges that it is its sole responsibility to assure that only authorized
persons use ACCESS and that the Bank shall not be responsible nor liable for any
unauthorized use thereof.
6. LIMITATIONS OF LIABILITY. (a) Except as otherwise specifically
provided in Section 6(b) below, the Bank shall have no liability for any losses,
damages, injuries, claims, costs or expenses of a Fund arising out of or in
connection with any failure, malfunction or other problem relating to the
Group's use of ACCESS, except for money damages suffered as the direct result of
the negligence of the Bank in an amount not exceeding, in the aggregate for all
such losses, damages, injuries, claims, costs and expenses of a Fund arising
during any month, the total charges paid by the Group on behalf of such Fund to
the Bank for ACCESS and services hereunder which caused such loss, damage,
injury, claim, cost or expense during the 12 months preceding the month in
question, or such lesser number of months as the Group has used ACCESS if the
Group, on behalf of such Fund, has not received 12 months use of ACCESS;
provided however, that the Bank shall have no liability under this Section 6(a)
if the Group fails to comply with the provisions of Section 6(c).
(b) Without limiting the generality of the foregoing, it is hereby
agreed that in no event shall the Bank or any manufacturer or supplier of its
computer equipment, software or services be responsible for any special,
indirect, incidental or consequential damages which the Group or a Fund may
incur arising out of or in connection with ACCESS or the services provided
thereby, even if the Bank or such manufacturer or supplier has been advised of
the possibility of such damages and regardless of the form of action.
(c) The Group, on behalf of each Fund, shall notify the Bank of any
errors, omissions or interruptions in, or delay or unavailability of, ACCESS as
promptly as practicable, and in any event within one Business Day after the
earliest of (i) discovery thereof, (ii) the date discovery should have occurred
through the exercise of reasonable care, and (iii) in the case of any error, the
date of the earliest notice to such Fund which reflects such error.
(d) The Bank shall acknowledge through ACCESS its receipt of each
Written Instruction communicated through ACCESS, and in the absence of such
acknowledgement the Bank shall not be liable for any failure to act in
accordance with such Written Instruction and the Group may not claim that such
Written Instruction was received by the Bank.
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(e) In no event shall the Bank have any liability for failing to
execute Written Instructions for the transfer of funds which are received by it
through ACCESS other than through the applicable transfer module for the
particular instructions.
7. FUNDS TRANSFER BACK-UP PROCEDURE. (a) In the event ACCESS is
inoperable and the Group is unable to utilize ACCESS for the transmission of
Written Instructions to the Bank to transfer funds, the Group may give Oral
Instructions regarding funds transfers, it being expressly understood and agreed
that the Bank's acting pursuant to such Oral Instructions shall be contingent
upon the Bank's verification of the authenticity thereof pursuant to the
Call-Back Security Procedure set forth on Schedule III hereto (the "Procedure").
In this regard, the Group, on behalf of each Fund shall deliver to the Bank a
Funds Transfer Telephone Instruction Authorization in the form of Schedule 111-A
hereto, identifying the individuals authorized to deliver and/or confirm all
such Oral Instructions. The Group understands and agrees that the Procedure is
intended to determine whether Oral Instructions received pursuant to this
Section are authorized but is not intended to detect any errors contained in
such instructions. The Group, on behalf of each Fund, hereby accepts the
Procedure and confirms its belief that the Procedure is commercially reasonable.
(b) The Bank shall have no liability whatsoever for any funds transfer
executed in accordance with Oral Instructions delivered and confirmed pursuant
to this Section 7 and Schedule III hereto. The Bank's liability for its
negligence in executing or failing to execute any such Oral Instructions shall
be determined by reference to Section 6(b) of this Article.
(c) The Bank reserves the right to suspend acceptance of Oral
Instructions pursuant to this Section 7 if conditions exist which the Bank, in
its sole discretion, believes have created an unacceptable security risk.
ARTICLE VI
CONCERNING THE BANK
1. STANDARD OF CARE; PRESENTMENT OF CLAIMS. Except as otherwise
provided herein, the Bank shall not be liable for any costs, expenses, damages,
liabilities or claims (including attorney's fees) incurred by the Group or a
Fund, except those costs, expenses, damages, liabilities or claims arising out
of the Bank's own negligence, bad faith or willful misconduct. Notwithstanding
the foregoing or anything contained in the Schedules hereto, the Bank shall not
be liable for any loss or damage, including attorney's fees, resulting from the
Bank paying any redemption draft containing a forged drawer signature, unless
such loss or damage arises out of the Bank's gross negligence, bad faith or
willful misconduct. All claims against the Bank hereunder shall be made by the
Group on behalf of the affected Fund as promptly as practicable, and in any
event within 6 months from the date of the action or inaction on which such
claim is based, and shall include reasonable documentation evidencing such claim
and loss.
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2. NO LIABILITY. The Bank shall have no obligation hereunder for costs,
expenses, damages, liabilities or claims, including attorney's fees, which are
sustained or incurred by reason of any action or inaction by the Federal Reserve
wire transfer system or the New York Automated Clearing House. Notwithstanding
any other provision elsewhere contained in this Agreement, in no event shall the
Bank be liable to the Group or any Fund or any third party for special, indirect
or consequential damages, or lost profits or loss of business, arising under or
in connection with this Agreement, even if previously informed of the
possibility of such damages and regardless of the form of action.
3. INDEMNIFICATION. The Group, on behalf of each Fund, shall indemnify
and exonerate, save and hold harmless the Bank from and against any and all
costs, expenses, damages, liabilities or claims, including reasonable attorney's
fees and expenses, which the Bank may sustain or incur or which may be asserted
against the Bank by reason of or as a result of any action taken or omitted by
the Bank in connection with its performance under this Agreement, except those
costs, expenses, damages, liabilities or claims arising out of the Bank's own
negligence, bad faith or wilful misconduct. This indemnity shall be a continuing
obligation of the Group on behalf of each Fund notwithstanding the termination
of this Agreement, any Account or Omnibus Account with respect to a Fund.
4. NO OBLIGATION TO INQUIRE. Without limiting the generality of the
foregoing, the Bank shall in no event be under any obligation to inquire into,
and shall not be liable for:
(a) the due authority of any Authorized Person acting on behalf of the
Group or a Fund in connection with this Agreement;
(b) the genuineness of any drawer signature on any draft deposited in
any Account or Omnibus Account, or whether such signature is a forgery, other
than the signature of the drawer of any draft drawn on the Bank;
(c) the existence or genuineness of any endorsement or any marking
purporting to be an endorsement on any draft deposited in any Account or Omnibus
Account, or whether such endorsement or marking is a forgery, is being expressly
understood that all risks associated with the acceptance by the Bank of any
draft payable to a payee other than a Fund for deposit in any Account or Omnibus
Account pursuant to Oral or Written Instructions by the Group shall be borne by
the Group on behalf of such Fund;
(d) any discrepancy between the pre-printed investment stub (other than
a substitute stub created by the Bank) and the payee either named on a draft or
written on the face thereof, provided the Bank has acted in accordance with the
investment stub;
(e) any discrepancy between the written amount for which any draft is
drawn and the Magnetic Inscription Character Recognition ("MICR") code inscribed
thereon by any bank other than the Bank on any draft presented, provided the
Bank has acted in accordance with the MICR code;
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(f) any disbursement directed by the Group on behalf of a Fund,
regardless of the purpose therefor;
(g) any determination of the Share balance of any Shareholder whose
name is signed on any redemption draft,
(h) any determination of length of time any Shares have been owned by
any Shareholder or the method of payment utilized to purchase such Shares by
such Shareholder;
(i) any claims, liens, attachments, stays or stop payment orders with
respect to any Shares, proceeds, or money, other than a stop payment order
placed by the Group on a draft drawn by it on behalf of a Fund on its Account or
an Omnibus Account;
(j) the propriety and/or legality of any transaction in any Account or
Omnibus Account;
(k) the lack of authority of any person signing as a drawer of a draft,
provided such person and his specimen signature is specified in the certificate
of authorized signatures last received by the Bank; or
(l) whether any redemption draft equals or exceeds any minimum amount.
5. RELIANCE UPON INSTRUCTIONS. The Bank shall be entitled to rely upon
any Written or Oral Instructions received by the Bank. The Group agrees to
forward to the Bank Written Instructions confiding Oral Instructions in such
manner so that such Written Instructions are received by the Bank by the close
of business of the same day that such Oral Instructions are given to the Bank.
The Group, on behalf of each Fund, agrees that the fact that such confirming
Written Instructions are not timely received or that contrary Written
Instructions are received by the Bank shall in no way affect the validity or
enforceability of transactions previously authorized.
6. FORCE MAJEURE. The Bank shall not be responsible or liable for any
failure or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
control, including acts of God; earthquakes; fires; floods; wars; civil or
military disturbances; sabotage; epidemics; riots; interruptions, loss or
malfunctions of utilities, computers (hardware or software), transportation, or
communications service; mechanical breakdowns; interruption or loss of ACCESS
(except as otherwise provided in Section 7 of Article V); accidents; acts of
civil or military authority; governmental actions; labor disputes; or inability
to obtain labor, material, equipment or transportation.
7. NO IMPLIED DUTIES; PERFORMANCE ACCORDING TO APPLICABLE LAW. The Bank
shall have no duties or responsibilities except such duties and responsibilities
as are specifically set forth in this Agreement and Schedules I and II hereto,
and no covenant or obligation shall be implied against the Bank. The Bank's
duties and responsibilities hereunder shall be performed
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in accordance with applicable laws, regulations and rules, including but not
limited to Federal Reserve Regulation CC and the Operating Rules of the New York
Automated Clearing House, and the Bank shall have no obligation to take actions
which in the reasonable opinion of the Bank are either inconsistent with, or
prejudice or impair the Bank's rights under, any such laws, regulations and
rules.
8. REQUESTS FOR INSTRUCTIONS. At any time the Bank may apply to an
officer of the Group for Oral or Written Instructions with respect to any matter
arising in connection with the Bank's duties and obligations hereunder, and the
Bank shall not be liable for any action taken or permitted by it in good faith
in accordance with such Oral or Written Instructions. Such application for Oral
or Written Instructions may, at the option of the Bank, set forth in writing any
action proposed to be taken or omitted by the Bank with respect to its duties or
obligations hereunder and the date on or after which such action shall be taken,
and the Bank shall not be liable for any action taken or omitted in accordance
with a proposal included in any such application on or after the date specified
therein (which shall be at least 5 days after the date of the Group's receipt of
such application) unless, prior to taking or omitting any such action, the Bank
has received Oral or Written Instructions in response to such application
specifying the action to be taken or omitted. The Bank may apply for and obtain
the advice and opinion of counsel to the Group or of its own counsel, at the
expense of the Group, and shall be fully protected with respect to anything done
or omitted by it in good faith in conformity with such advice or opinion.
9. DELEGATION OF DUTIES. The Bank may delegate any of its duties and
obligations hereunder to any delegee and may employ agents or attorneys-in-fact;
provided however, that no such delegation or employment by the Bank shall
discharge the Bank from its obligations hereunder. The Bank shall have no
liability or responsibility whatsoever if any delegee, agent or attorney-in-fact
shall have been selected or approved by the Group. Notwithstanding the
foregoing, nothing contained in this paragraph shall obligate the Bank to effect
any delegation or to employ any agent or attorney-in-fact.
10. FEES; INVOICES. (a) For its services hereunder, the Group, on
behalf of each Fund, agrees to pay the Bank (i) its out-of-pocket expenses, (ii)
the monthly fees and compensation set forth on Schedules I and II attached
hereto, and (iii) any negative Calendar Month Earnings Credits, and such other
amounts as may be mutually agreed upon from time to time. The Bank shall provide
the Group with a monthly activity analysis for each Fund detailing service
volumes, and including average Account Available Balances and average ledger
balances, and all fees owing for such month.
(b) The Bank shall submit periodic invoices specifying the amount of
all out-of-pocket expenses, fees, compensation and negative Calendar Month
Earnings Credits then due hereunder. The Bank may, and is hereby authorized by
the Group on behalf of each Fund, to charge such amounts to an Omnibus Account
or the appropriate Fund's Account(s), but only if such amounts remain unpaid for
ninety (90) days after the date an invoice for such amounts is sent to the
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Group and the Group has not contested such amounts in good faith by delivery of
written notice thereof to the Bank within such 90 days.
11. APPLICATION OF CALENDAR MONTH EARNINGS CREDITS. (a) Any positive
Calendar Month Earnings Credit for a calendar month shall be applied only as
follows and only in the specified order:
(i) First, applied against such compensation, fees, but not
out-of-pocket expenses, payable by the Group on behalf of such
Fund to the Bank under this Agreement for such month; and
(ii) Second, applied against such compensation, fees, and negative
Calendar Month Earnings Credits, but not out-of-pocket
expenses, payable by the Group on behalf of such Fund to the
Bank under this Agreement for any subsequent month in the same
calendar year.
(b) Except as provided above, in no event may any Calendar Month
Earnings Credit be applied to any month other than the month in which it was
earned. Calendar Month Earnings Credits may not be transferred to, or utilized
by, any other Fund, person or entity. The portion, if any, of any Calendar Month
Earnings Credit not used by a Fund may be carried, but only forward; provided,
however, that in no event may any Calendar Month Earnings Credit, including
those earned during the fourth calendar quarter, be carried beyond the end of
the calendar year in which earned.
12. ALLOCATION OF CALENDAR MONTH EARNINGS CREDITS. The Group agrees
that the Bank may pay Calendar Month Earnings Credits with respect to any
Omnibus Account as mutually agreed, and that it is the Group's responsibility to
allocate such Calendar Month Earnings Credits among and between the Funds.
ARTICLE VII
TERMINATION
1. NOTICE. This Agreement may be terminated by either the Bank giving
to the Group, or the Group giving to the Bank, a notice in writing specifying
the date of such termination and the affected Fund(s), which date shall be not
less than 90 days after the date of the giving of such notice. Notwithstanding
the foregoing, the Bank reserves the right to terminate this Agreement (a) at
any time upon 30 days prior written notice if the condition precedent set forth
in Article II, paragraph 3 is unfulfilled, and (b) upon notice if the Group, on
behalf of a Fund, either (i) fails to comply with Article IV, Section 3, or (ii)
borrows funds from the Bank in an amount exceeding the Bank's legal lending
limit.
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2. OBLIGATIONS UPON TERMINATION. Upon termination, the Bank's sole
obligations, which shall arise only after, and not before, each Fund which is
the subject of such termination has paid to the Bank all out-of-pocket expenses,
fees, compensation, negative Calendar Month Earnings Credits and other amounts
owed by the Group on behalf of such Fund to the Bank, shall be (i) to deliver to
the Group such records, if any, as may be owned by the Group on behalf of such
Fund(s), in the form and manner kept by the Bank on such date of termination,
and (ii) to pay to the Group any monies held for the account of the affected
Fund(s) hereunder.
ARTICLE VIII
MISCELLANEOUS
1. CERTIFICATES OF AUTHORIZED PERSONS. The Group agrees to furnish to
the Bank a new certificate of Authorized Persons in the event that any present
Authorized Person ceases to be an Authorized Person or in the event that any
other Authorized Persons are appointed and authorized. Until such new
certificate is received, the Bank shall be fully protected in acting under the
provisions of this Agreement upon Oral or Written Instructions or signatures of
the present Authorized Persons as set forth in the last delivered certificate.
2. NOTICES. (a) 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 received by it at its offices at 00
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Division
Manager - Mutual Funds, or at such other place as the Bank may from time to time
designate in writing.
(b) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Group shall be sufficiently given if
addressed to the Group and received by it at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx,
or at such other place as the Group may from time to time designate in writing.
3. CUMULATIVE RIGHTS AND NO WAIVER. Each and every right granted to the
Bank hereunder or under any other document delivered hereunder or in connection
herewith, or allowed it by law or equity, shall be cumulative and may be
exercised from time to time. No failure on the part of the Bank to exercise, and
no delay in exercising, any right will operate as a waiver thereof, nor will any
single or partial exercise by the Bank of any right preclude any other or future
exercise thereof or the exercise of any other right.
4. SEVERABILITY. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or obligations
shall not in any way be affected or impaired thereby, and if any provision is
inapplicable to any person or circumstances, it shall nevertheless remain
applicable to all other persons and circumstances.
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5. AMENDMENTS. This Agreement may not be amended or modified in any
manner except by a written agreement executed by the Bank and the Group on
behalf of each Fund to be bound thereby, and, except in the case of an amendment
to Schedules I and II hereto, authorized or approved by a resolution of the
Group's Board.
6. HEADINGS. The headings in this Agreement are inserted for
convenience and identification only and are in no way intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provisions hereof.
7. APPLICABLE LAW; CONSENT TO JURISDICTION: JURY TRIAL WAIVER. This
Agreement shall be construed in accordance with the laws of the State of New
York without giving effect to conflict of laws principles thereof. Each party
hereby consents to the jurisdiction of a state or federal court situated in New
York City, New York in connection with any dispute arising hereunder and hereby
waives its right to trial by jury.
8. NO THIRD PARTY BENEFICIARIES. The provisions of this Agreement are
intended to benefit only the Bank and the Group, on behalf of each Fund, and
their respective permitted successors and assigns. and no right shall be granted
to any other person by virtue of this Agreement.
9. SUCCESSORS AND ASSIGNS. 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 Group
without the written consent of the Bank and authorized or approved by a
resolution of the Group's Board.
10. COUNTERPARTS. 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.
11. SEVERAL OBLIGATIONS. The parties acknowledge that the obligations
of the Group, on behalf of each Fund, are several and not joint, that no Fund
shall be liable for any amount owing by another Fund and that the Group has
executed one instrument on behalf of the Funds for convenience only.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized, as
of the day and year first above written.
THE SESSIONS GROUP
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
Title: President
-------------------------------
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Grunston
--------------------------------
Xxxxxxx X. Grunston
Title: Vice President
-------------------------------
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April __, 1998
SCHEDULE A
To Cash Management and Related Services Agreement
dated September 24, 1996
Between The Sessions Group and
The Bank of New York
SERIES
Name of Fund Date
------------ ----
The KeyPremier Prime Money Market Fund September 24, 1996
and The KeyPremier Pennsylvania Municipal
Bond Fund
The KeyPremier Established Growth Fund October 30, 1996
and The KeyPremier Intermediate Term
Income Fund
The KeyPremier Aggressive Growth Fund January 29, 1997
The KeyPremier U.S. Treasury Obligations June 30, 1997
Money Market Fund and The KeyPremier
Limited Duration Government Securities
Fund
The KeyPremier Emerging Growth Fund April __, 1998
THE SESSIONS GROUP
By
----------------------------------
Xxxxxx X. Xxxxx, President
THE BANK OF NEW YORK
By
----------------------------------
(name) (title)
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