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EXHIBIT (8)(d)
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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
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.
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.
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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
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 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
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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
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 Bank to such Fund, provided such presentment is in
accordance with the time frames specified by the Bank to such Fund;
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(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.
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
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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
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
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.
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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 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 Incription Character Recognition ("MICR") code
enscribed 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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January 29, 1997
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 SESSIONS GROUP
By /s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx, President
THE BANK OF NEW YORK
By /s/ Xxxxxxx X. Grunston, V.P.
---------------------------------
(name) (title)
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