HomeMy WebLinkAbout12 - Custodial Services Agreement with the Bank of New YorkAgenda Item No. 12
CITY OF NEWPORT BEACH
Administrative Services Department
Resource Management • Accounting • Revenue • Management Information Services • Fiscal Services
January 8, 2002
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
From: Dennis Danner, Administrative Services Director a
SUBJ: CUSTODIAL SERVICES AGREEMENT WITH THE BANK OF NEW YORK
RECOMMENDED ACTION
Adopt the attached Resolution authorizing the Administrative Services Director to sign an
agreement for Custodial Services for Securities, and related documents, with the Bank of New
York Western Trust Company. Copies of the documents are also attached
BACKGROUND
Over the next few years, the City will be receiving $25 million from Irvine Ranch Water District.
These funds will be distributed for Special Assessment relief, and for other purposes, over an
extended period in accordance with the terms of the Newport Coast Annexation Agreement.
Distribution is limited to the principal amount and a small portion of the first year investment
earnings. The purpose of this proposed custodial services agreement is to establish a repository
for cash, and short-term investments, and securities purchased with these funds. The City
Council Investment Policy governs all investment decisions regarding these funds.
The investment portfolio that is under the City's control is currently divided among four
investment advisors and three short-term accounts for day -to -day investment and cash
management actions. Four custodial accounts are in place, one for each of the investment
advisors. Because of the large amount of the additional funds to be received, and the well -
structured schedule for their arrival and subsequent application, we believe it will be prudent
and, in the long -term, simpler to physically separate them in their own investment account. The
first step in this process is to establish a new custodial account. The decision to establish an
additional investment advisor account, or not, in the future has not yet been made. Because of the
structure of the cash flows, the expense of such an account may not be warranted. But no matter
what we do in that regard, a new custodial account is the first step.
The City had a similar custodial account with the Bank of New York several years ago, and the
service was highly satisfactory in every respect. The only reason the account was closed was
because it was no longer needed at the time. Their current proposal compares favorably with our
existing accounts, cost wise. (A copy of the fee schedule is also attached.) The Assistant City
Attorney has reviewed the proposed agreement as to form and content.
RESOLUTION NO. 2002 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH
AUTHORIZING AN AGREEMENT FOR CUSTODIAL SERVICES WITH
THE BANK OF NEW YORK.
The undersigned hereby certifies to BNY WESTERN TRUST COMPANY that the City of
Newport Beach duly adopted the following resolution on the 8'h day of January, 2002, and that
such resolution is in full force and effect:
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Newport
Beach that the City Treasurer whose name appears below, be and hereby authorized and
empowered to enter into a Custody Agreement with BNY Western Trust Company substantially
in the form attached hereto with such changes thereto as the person executing the same shall
deem advisable. The execution of such Agreement by such person to be conclusive evidence of
such approval.
Name Title
Dennis C. Danner Administrative Services Director
BE IT FURTHER RESOLVED that any one of the following persons, acting alone, be
and hereby are authorized from time to time to designate in writing to BNY Western Trust
Company those officers, employees and other agents of this municipality who will be authorized
to issue instructions under such Agreement, including, without limitation, with respect to the
deposit or withdrawal of cash and the deposit, withdrawal, purchase or sale of securities and
other property without limitation as to price, items or conditions and otherwise to deal therewith,
all pursuant to the provisions of such Custody Agreement:
Name Title
Dennis C. Danner Administrative Services Director
Richard C. Kurth Deputy Administrative Services Director
Dan Matusiewicz Accounting Manager
BE IT FURTHER RESOLVED that notice of any change in this resolution be
communicated in writing to BNY Western Trust Company, and until BNY Western Trust
Company has actually received such notice, it is authorized to act pursuant to these resolutions.
ADOPTED the 8`h day of January, 2002.
18jr-ML60
ATTEST:
CITY CLERK
BNY Western Trust Company
A SUBSIDIARY OF
THE BANK OF NEW YORK COMPANY, INC.
FEESCHEDULE
THE CITY OF NEWPORT BEACH
ASSET MAINTENANCE
(ANNUAL, PRO -RATED MONTHLY)
ACCOUNT MAINTENANCE
(MONTHLY, PER ACCOUNT)
ACTIVITY CHARGES
BOOK ENTRY(PURCHASE, SALE, CALL, REDEMPTION, MATURITY,
FREE RECEIVE/DELIVER
PHYSICAL (PURCHASES, SALE, CALL, REDEMPTION, MATURITY,
FREE RECEIVE /DELIVER
OUTGOING FED WIRES
ON -LINE SYSTEM ACCESS (INFORM)
Minimum Monthly Fee
1 B.P. OF MARKET VALUE
WANED
$15.00 EACH
$15.00 EACH
$15.00 EACH
WAIVED
$500.00
Fees are quoted in annual terms, billed and payable quarterly in arrears. Out -of- pocket expenses
are billed as incurred at cost. There are no set -up fees or charges for conversion of accounts to
BNY Western Trust Company.
11/02/01
GLOBAL CUSTODY AGREEMENT
AGREEMENT, dated as of
and BNY Western Trust Company ( "Custodian ").
between
ARTICLE I
Whenever used in this Agreement, the following words shall have the meanings set forth below:
( "Customer')
1. "Authorized Person" shall be any person, whether or not an officer or employee of Customer, duly authorized by
Customer to give Oral and/or Written Instructions with respect to one or more Accounts, such persons to be designated in a Certificate
of Authorized Persons which contains a specimen signature of such person.
2. "BNY Affiliate" shall mean any office, branch or subsidiary of The Bank of New York Company, Inc.
3. "Book -Entry System" shall mean the Federal Reserve/Treasury book -entry system for receiving and delivering
securities, its successors and nominees.
4. "Business Day" shall mean any day on which Custodian, Book -Entry System and relevant Depositories are open for
business
5. "Composite Currency Unit" shall mean the Euro or any other composite currency unit consisting of the aggregate
of specified amounts of specified currencies, as such unit may be constituted from time to time.
6. "Depository" shall include the Book -Entry System; the Depository Trust Company, Euroclear, Cedel, S.A. and any
other securities depository, book -entry system or clearing agency (and their respective successors and nominees) authorized to act as a
securities depository, book -entry system or clearing agency pursuant to applicable law and identified to Customer from time to time.
7. "Oral Instructions" shall mean verbal instructions received by Custodian from an Authorized Person or from a
person reasonably believed by Custodian to be an Authorized Person.
8. "Securities" shall include, without limitation, any common stock and other equity securities, bonds, debentures and
other debt securities, notes, mortgages or other obligations, and any instruments representing rights to receive, purchase, or subscribe
for the same, or representing any other rights or interests therein (whether represented by a certificate or held in a Depository or a
Subcustodian).
9. " Subcustodfan" shall mean a bank or other financial institution (other than a Depository) which is utilized by
Custodian in connection with the purchase, sale or custody of Securities hereunder and identified to Customer from time to time.
10. "Written Instructions" shall mean any notices, instructions or other instruments in writing received by Custodian
from an Authorized Person or from a person reasonably believed by Custodian to be an Authorized Person by letter, telex, facsimile
transmission, Custodian's on -line communication system, or any other method whereby Custodian is able to verify with a reasonable
degree of certainty the identity of the sender of such communications or the sender is required to provide a password or other
identification code.
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ARTICLE II
APPOINTMENT OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS AND WARRANTIES
1. Customer hereby appoints Custodian as custodian of all Securities and cash at any time delivered to Custodian
during the term of this Agreement, and authorizes Custodian to hold Securities in registered form in its name or the name of its
nominees. Custodian hereby accepts such appointment and agrees to establish and maintain one or more securities accounts and cash
accounts in which Custodian will hold Securities and cash as provided herein. Such accounts (each, an "Account "; collectively, the
"Accounts ") shall be in the name of Customer.
2. (a) Custodian may in accordance with customary practice hold any currency or Composite Currency Unit in
which any cash account is denominated on deposit in, and effect transactions relating thereto through, an account (a "Foreign
Account ") with a BNY Affiliate or another bank in the country where such currency is the lawful currency or in other countries where
such currency or Composite Currency Unit may be lawfully held on deposit.
(b) Custodian shall have no liability for any loss or damage arising from the applicability of any law or regulation now
or hereafter in effect, or from the occurrence of any event, which may affect the transferability, convertibility, or availability of any
currency or Composite Currency Unit in the countries where such Foreign Accounts are maintained and in no event shall Custodian be
obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose
transferability, convertibility or availability has been affect by such law, regulation or event. To the extent that any such law,
regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash
currency or Composite Currency Unit, such cost or charge shall be for the account of Customer. If pursuant to any such law or
regulation, or as a result of any such event, Custodian cannot deal in any component currency of a Composite Currency Unit or effect a
particular transaction in a Composite Currency Unit on Customer's behalf, Custodian may thereafter treat any account denominated in
an affected Composite Currency Unit as a group of separate accounts denominated in the relevant component currencies.
3. Customer hereby represents and warrants, which representations and warranties shall be continuing and shall be
deemed to be reaffirmed upon each Oral or Written Instruction given by Customer, that:
(a) Customer 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 Customer, constitutes a valid and legally
binding obligation of Customer, enforceable in accordance with its terms, and no statute, regulation, rule, order, judgment or contract
binding on Customer prohibits Customer's execution or performance of this Agreement; and
(c) Either Customer owns the Securities in the Accounts free and clear of all liens, claims, security interests and
encumbrances (except those granted herein) or, if the Securities in an Account are owned beneficially by others, Customer has the right
to pledge such Securities to the extent necessary to secure Customers obligations hereunder, free of any right of redemption or prior
claim by the beneficial owner. Custodians security interest pursuant to Article V hereof shall be a first lien and security interest
subject to no setoffs, counterclaims or other liens prior to or on a parity with it in favor of any other party (other than specific liens
granted preferred status by statute), and Customer shall take any and all additional steps which Custodian requires to assure itself of
such priority and status, including notifying third parties or obtaining their consent to, Custodian's security interest.
ARTICLE III
CUSTODY AND RELATED SERVICES
1. (a) Subject to the terms hereof, Customer hereby authorizes Custodian to hold any Securities received by it
from time to time for Customers account. Custodian shall be entitled to utilize Depositories and Subcustodians to the extent possible
in connection with its performance hereunder. Securities and cash deposited by Custodian in a Depository will be held subject to the
rules, terns and conditions of such Depository. Securities and cash held through Subcustodians shall be held subject to the terms and
conditions of Custodian's agreements with such Subcustodians. Subcustodians may be authorized to hold Securities in central
securities depositories or clearing agencies in which such Subcustodians participate. Unless otherwise required by local law or
practice or a particular subcustodian agreement, Securities deposited with Subcustodians will be held in a commingled account in the
name of Custodian as custodian or trustee for its customers. Custodian shall identify on its books and records the Securities and cash
belonging to Customer, whether held directly or indirectly through Depositories or Subcustodians.
C.
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(b) Unless Custodian has received Oral or Written Instructions to the contrary or applicable law otherwise requires,
Custodian shall hold Securities indirectly through a Subcustodian only if (i) the Securities are not subject to any right, charge, security
interest, lien or claim of any kind in favor of such Subcustodian or its creditors, including a receiver or trustee in bankruptcy or similar
authority, except for a claim of payment for the safe custody or administration of Securities or for funds advanced on behalf of
Customer by such Subcustodian, and (ii) beneficial ownership of the Securities is freely transferable without the payment of money or
value other than for safe custody or administration.
2. Custodian shall furnish Customer with an advice of daily transactions and a monthly summary of all transfers to or
from the Accounts.
3. With respect to all Securities held hereunder, Custodian shall, unless otherwise instructed to the contrary:
(a) Receive all income and other payments and advise Customer as promptly as practicable of any such amounts due but
not paid;
(b) Present for payment and receive the amount paid upon all Securities which may mature and advise Customer as
promptly as practicable of any such amounts due but not paid;
(c) Forward to Customer copies of all information or documents that it may receive from an issuer of Securities which,
in the opinion of Custodian, are intended for the beneficial owner of Securities;
(d) Execute, as custodian, any certificates of ownership, affidavits, declarations or other certificates under any tax laws
now or hereafter in effect in connection with the collection of bond and note coupons;
(e) Hold directly or through a Depository or Subcustodian all rights and similar Securities issued with respect to any
Securities credited to an Account hereunder; and
(f) Endorse for collection checks, drafts or other negotiable instruments.
4. (a) Custodian shall notify Customer of such rights or discretionary actions or of the date or dates by when such
rights must be exercised or such action must be taken provided that Custodian has received, from the issuer or the relevant Depository
(with respect to Securities issued in the United States) or from the relevant Subcustodian, Depository or a nationally or internationally
recognized bond or corporate action service to which Custodian subscribes, timely notice of such rights or discretionary corporate
action or of the date or dates such rights must be exercised or such action must be taken. Absent actual receipt of such notice,
Custodian shall have no liability for failing to so notify Customer.
(b) Whenever Securities (including, but not limited to, warrants, options, tenders, options to tender or non - mandatory
puts or calls) confer optional rights on Customer or provide for discretionary action or alternative courses of action by Customer,
Customer shall be responsible for making any decisions relating thereto and for directing Custodian to act. In order for Custodian to
act, it must receive Customer's Written Instructions at Custodian's offices, addressed as Custodian may from time to time request, not
later than noon (California time) at least two (2) Business Days prior to the last scheduled date to act with respect to such Securities (or
such earlier date or time as Custodian may notify Customer). Absent Custodian's timely receipt of such Written Instructions,
Custodian shall not be liable for failure to take any action relating to or to exercise any rights conferred by such Securities.
5. All voting rights with respect to Securities, however registered, shall be exercised by Customer or its designee. For
Securities issued in the United States, Custodian's only duty shall be to mail to Customer any documents (including proxy statements,
annual reports and signed proxies) relating to the exercise of such voting rights. With respect to Securities issued outside of the United
States, Custodian's only duty shall be to provide Customer with access to a provider of global proxy services at Customer's request.
Customer shall be responsible for all costs associated with its use of such services.
6. Custodian shall promptly advise Customer upon its notification of the partial redemption, partial payment or other
action affecting less than all Securities of the relevant class. If Custodian, any Subcustodian or Depository holds any Securities in
which Customer has an interest as part of a fungible mass, Custodian, such Subcustodian or Depository may select the Securities to
participate in such partial redemption, partial payment or other action in any non - discriminatory manner that it customarily uses to
make such selection.
7. Custodian shall not under any circumstances accept bearer interest coupons which have been stripped from United
States federal, state or local government or agency securities unless explicitly agreed to by Custodian in writing.
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8. Customer shall be liable for all taxes, assessments, duties and other governmental charges, including any interest or
penalty with respect thereto ( "Taxes "), with respect to any cash or Securities held on behalf of Customer or any transaction related
thereto. Customer shall indemnify Custodian and each Subcustodian for the amount of any Tax that Custodian, any such Subcustodian
or any other withholding agent is required under applicable laws (whether by assessment or otherwise) to pay on behalf of, or in
respect of income earned by or payments or distributions made to or for the account of Customer (including any payment of Tax
required by reason of an earlier failure to withhold). Custodian shall, or shall instruct the applicable Subcustodian or other withholding
agent to, withhold the amount of any Tax which is required to be withheld under applicable law upon collection of any dividend,
interest or other distribution made with respect to any Security and any proceeds or income from the sale, loan or other transfer of any
Security. In the event that Custodian or any Subcustodian is required under applicable law to pay any Tax on behalf of Customer,
Custodian is hereby authorized to withdraw cash from any cash account in the amount required to pay such Tax and to use such cash,
or to remit such cash to the appropriate Subcustodian, for the timely payment of such Tax in the manner required by applicable law. If
the aggregate amount of cash in all cash accounts is not sufficient to pay such Tax, Custodian shall promptly notify Customer of the
additional amount of cash (in the appropriate currency) required, and Customer shall directly deposit such additional amount in the
appropriate cash account promptly after receipt of such notice, for use by Custodian as specified herein. In the event that Custodian
reasonably believes that Customer is eligible, pursuant to applicable law or to the provisions of any tax treaty, for a reduced rate of, or
exemption from any Tax which is otherwise required to be withheld or paid on behalf of Customer under any applicable law,
Custodian shall, or shall instruct the applicable Subcustodian or withholding agent to, either withhold or pay such Tax at such reduced
rate or refrain from withholding or paying such Tax, as appropriate; l2rovide d that Custodian shall have received from Customer all
documentary evidence of residence or other qualification for such reduced rate or exemption required to be received under such
applicable law or treaty. In the event that Custodian reasonably believes that a reduced rate of, or exemption from, any Tax is
obtainable only by means of an application for refund, Custodian and the applicable Subcustodian shall have no responsibility for the
accuracy or validity of any forms or documentation provided by Customer to Custodian hereunder. Customer hereby agrees to
indemnify and hold harmless Custodian and each Subcustodian in respect of any liability arising from any underwithholding or
underpayment of any Tax which results from the inaccuracy or invalidity of any such forms or other documentation, and such
obligation to indemnify, shall be a continuing obligation of Customer, its successors and assigns, notwithstanding the termination of
this Agreement.
9. (a) For the purpose of settling Securities and foreign exchange transactions, Customer shall provide Custodian
with sufficient immediately available funds for all transactions by such time and date as conditions in the relevant market dictate. As
used herein, "sufficient immediately available funds" shall mean either (i) sufficient cash denominated in the currency of Customer's
home jurisdiction to purchase the necessary foreign currency, or (ii) sufficient applicable foreign currency, to settle the transaction.
Custodian shall provide Customer with immediately available funds each day which result from the actual settlement of all sale
transactions, based upon advices received by Custodian from its Subcustodian and Depositories. Such funds shall be in the currency
of Customer's home jurisdiction or such other currency as Customer may specify to Custodian
(b) Any foreign exchange transaction effected by Custodian in connection with this Agreement may be entered with
Custodian or a BNY Affiliate acting as principal or otherwise through customary banking channels. Customer may issue standing
Written Instructions with respect to foreign exchange transaction but Custodian may establish rules or limitations concerning any
foreign exchange facility made available to Customer. Customer shall bear all risks of investing in Securities or holding cash
denominated in a foreign currency. Without limiting the foregoing, Customer shall bear the risks that rules or procedures imposed by
Depositories, exchange controls, asset freezes or other laws, rules, regulation or orders shall prohibit or impose burden or costs on
the transfer to, by or for the account of Customer of Securities or cash held outside Customer's jurisdiction or denominated in a
currency other than its home jurisdiction or the conversion of cash from one currency into another currency. Custodian shall not be
obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose
transferability, convertibility or availability has been affected by such law, regulation, rule or procedure. Neither Custodian nor any
Subcustodian shall be liable to Customer for any loss resulting from any of the foregoing events.
10. To the extent that Custodian has agreed to provide pricing or other information services in connection with this
Agreement, Custodian is authorized to utilize any vendor (including brokers and dealers of Securities) reasonably believed by
Custodian to be reliable to provide such information. Customer understands that certain pricing information with respect to complex
financial instruments (ems., derivatives) may be based on calculated amounts rather than actual market transactions and may not reflect
actual market values, and that the variance between such calculated amounts and actual market values may or may not be material.
Where vendors do not provide information for particular Securities or other property, an Authorized Person may advise Custodian
regarding the fair market value of, or provide other information with respect to, such Securities or property as determined by it in good
faith. Custodian shall not be liable for any loss, damage or expense incurred as a result of errors or omission with respect to any
pricing or other information utilized by Custodian hereunder.
11. As an accommodation to Customer, Custodian may provide consolidated recordkeeping services pursuant to which
Custodian reflects on Account statements Securities positions for which Custodian has no safekeeping or other responsibility under this
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Agreement ( "Non- Custody Securities "). Non - Custody Securities shall be designated on Custodians books as "shares not held" or by
other similar characterization. Customer acknowledges and agrees that Custodian shall rely, without independent verification, on
information provided by Customer regarding Non - Custody Securities (including but not limited to Account positions and market
valuations) and shall have no responsibility whatsoever with respect to Non - Custody Securities or the accuracy of any information
maintained on Custodians books or set forth on account statements concerning Non - Custody Securities.
12. From time to time Custodian may make available to Customer or its agent(s) certain investment and analytic tools
( "Tools ") which may be used to evaluate Securities in the Account and compliance with Customer's investment guidelines and
investment criteria. Such Tools, whether or not modified to meet specific needs of Customer, are provided "AS IS" and CUSTODIAN
DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TOOLS, INCLUDING BUT
NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON - INFRINGEMENT AND FITNESS FOR A
PARTICULAR PURPOSE. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, CUSTODIAN
SHALL NOT BE LIABLE FOR ANY LOSS, EXPENSE, DAMAGE, LIABILITY OR CLAIM SUFFERED OR INCURRED BY
CUSTOMER OR ANY OTHER PERSON AS A RESULT OF USE OF, OR RELIANCE UPON, ANY TOOLS BY CUSTOMER OR
ANY OTHER PERSON.
ARTICLE IV
PURCHASE AND SALE OF SECURITIES;
CREDITS TO ACCOUNT
1. Promptly after each purchase or sale of Securities by Customer, Customer shall deliver to Custodian Written
Instructions specifying all information necessary for Custodian to settle such purchase or sale. Custodian shall account for all
purchases and sales of Securities on the actual settlement date unless otherwise agreed by Custodian.
2. Customer understands that when Custodian is instructed to deliver Securities against payment, delivery of such
Securities and receipt of payment therefor may not be completed simultaneously. Customer assumes full responsibility for all credit
risks involved in connection with Custodian's delivery of Securities pursuant to instructions of Customer.
3. Custodian may, as a matter of bookkeeping convenience or by separate agreement with Customer, credit the Account
with the proceeds from the sale, redemption or other disposition of Securities or interest, dividends or other distributions payable on
Securities prior to its actual receipt of final payment therefor. All such credits shall be conditional until Custodians actual receipt of
final payment and may be reversed by Custodian to the extent that final payment is not received. Payment with respect to a transaction
will not be "final" until Custodian shall have received immediately available funds which under applicable local law, role and/or
practice are irreversible and not subject to any security interest, levy or other encumbrance, and which are specifically applicable to
such transaction.
4. Upon Customer's Oral or Written Instructions (which may include standing instructions), Custodian shall invest
Customer's cash balances in certificates of deposit, savings accounts or other similar instruments issued by Custodian or a BNY
Affiliate or in money market or other mutual funds for which Custodian or a BNY Affiliate may serve as investment advisor,
administrator, custodian, shareholder servicing agent or other capacity, notwithstanding that Custodian or a BNY Affiliate collects fees
from such mutual funds for providing such services.
ARTICLE V
OVERDRAFTS OR INDI
I. If Custodian in its sole discretion advances funds in any currency hereunder or there shall arise for whatever reason
an overdraft in an Account (including, without limitation, overdrafts incurred in connection with the settlement of securities
transactions, funds transfers or foreign exchange transactions) or if Customer is for any other reason indebted to Custodian, Customer
agrees to repay Custodian on demand the amount of the advance, overdraft or indebtedness plus accrued interest at a rate ordinarily
charged by Custodian to its institutional custody customers in the relevant currency.
2. In order to secure repayment of Customer's obligations to Custodian hereunder, Customer hereby pledges and grants
to Custodian a continuing lien and security interest in, and right of set -off against, all of Customers right, title and interest in and to the
Accounts and the Securities, money and other property now or hereafter held in the Accounts (including proceeds thereof), and any
other property at any time held by it for the account of Customer. In this regard, Custodian shall be entitled to all the rights and
remedies of a pledgee and secured creditor under applicable laws, rules or regulations as then in effect.
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As
ARTICLE VI
CONCERNING CUSTODIAN
I. (a) Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses,
damages, liabilities or claims, including attorneys' and accountants' fees (collectively, "Losses "), incurred by or asserted against
Customer, except those Losses arising out of the negligence or wilful misconduct of Custodian. Custodian shall have no liability
whatsoever for the action or inaction of any Depository. Subject to Section I(b) below, Custodian's responsibility with respect to any
Securities or cash held by a Subcustodian is limited to the failure on the part of Custodian to exercise reasonable care in the selection
or retention of such Subcustodian in light of prevailing settlement and securities handling practices, procedures and controls in the
relevant market. With respect to any Losses incurred by Customer as a result of the acts or the failure to act by any Subcustodian
(other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's
sole responsibility and liability to Customer shall be limited to amounts so received from such Subcustodian (exclusive of costs and
expenses incurred by Custodian). hi no event shall Custodian be liable to Customer or any third party for special, indirect or
consequential damages, or lost profits or loss of business, arising in connection with this Agreement.
(b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on
such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or
understanding shall discharge Custodian from its obligations hereunder.
(c) Customer agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained
or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's
performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by
Customer; provided however, that Customer shall not indemnify Custodian for those Losses arising out of Custodian's negligence or
wilful misconduct. This indemnity shall be a continuing obligation of Customer, its successors and assigns, notwithstanding the
termination of this Agreement.
2. Without limiting the generality of the foregoing, Custodian shall be under no obligation to inquire into, and shall not
be liable for, any losses incurred by Customer or any other person as a result of the receipt or acceptance of fraudulent, forged or
invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market.
3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice of counsel and
shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice.
4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if
payment is refused after due demand and presentment.
5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the
suitability of any transactions affecting any Account.
6. Customer shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such
other fees and charges at Custodian's standard rates for such services as may be applicable. Customer shall reimburse Custodian for all
costs associated with the conversion of Customers Securities hereunder and the transfer of Securities and records kept in connection
with this Agreement. Customer shall also reimburse Custodian for out -of- pocket expenses which are a normal incident of the services
provided hereunder.
7. Custodian has the right to debit any cash account for any amount payable by Customer in connection with any and all
obligations of Customer to Custodian, whether or not relating to or arising under this Agreement. In addition to the rights of Custodian
under applicable law and other agreements, at any time when Customer shall not have honored any and all of its obligations to
Custodian, Custodian shall have the right without notice to Customer to retain or set -off, against such obligations of Customer, any
Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of Customer, and any obligations
(whether matured or unmatured) that Custodian or a BNY Affiliate may have to Customer in any currency or Composite Currency
Unit. Any such asset of, or obligation to, Customer may be transferred to Custodian and any BNY Affiliate in order to effect the above
rights.
8. Custodian shall be entitled to rely upon any Written or Oral Instruction actually received by Custodian and
reasonably believed by Custodian to be duly authorized and delivered. Customer agrees to forward to Custodian Written Instructions
confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. Customer
agrees that the fact that such confirming Written Instructions are not received or that contrary Written Instructions are received by
n
l
arm
Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by
Custodian If Customer elects to transmit Written Instructions through an on -line communication system offered by Custodian,
Customers use thereof shall be subject to the Terms and Conditions attached hereto as Appendix I.
9. Upon reasonable request and provided Custodian shall suffer no significant disruption of its normal activities,
Customer shall have access to Custodian's books and records relating to the Accounts during Custodian s normal business hours. Upon
reasonable request, copies of any such books and records shall be provided to Customer at Customers expense.
10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by
any law, regulation or rule now or hereafter in effect.
11. Custodian 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 reasonable control, including without limitation,
acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or
malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or
military authority or governmental actions; it being understood that Custodian shall use its best efforts to resume performance as soon
as practicable under the circumstances.
12. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are
specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this
Agreement.
ARTICLE VII
TERMINATION
Either party may terminate this Agreement by giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than ninety (90) days after the date of such notice. Upon termination hereof, Customer shall pay to
Custodian such compensation as may be due to Custodian, and shall likewise reimburse Custodian for other amounts payable or
reimbursable to Custodian hereunder. Custodian shall follow such reasonable Oral or Written Instructions concerning the transfer of
custody of records, Securities and other items as Customer shall give; provided, that (a) Custodian shall have no liability for shipping
and insurance costs associated therewith, and (b) full payment shall have been made to Custodian of its compensation, costs, expenses
and other amounts to which it is entitled hereunder. If any Securities or cash remain in any Account, Custodian may deliver to
Customer such Securities and cash. Upon termination of this Agreement, except as otherwise provided herein, all obligations of the
parties to each other hereunder shall cease.
ARTICLE VIII
MISCELLANEOUS
1. Customer agrees to furnish to Custodian a new Certificate of Authorized Persons in the event of any change in the
then present Authorized Persons. Until such new Certificate is received, Custodian shall be fully protected in acting upon Oral
Instructions and Written Instructions of such present Authorized Persons.
2. Any notice or other instrument in writing, authorized or required by this Agreement to be given to Custodian, shall be
sufficiently given if addressed to Custodian and received by it at its offices at: Las Angeles Office: 700 South Flower Street, Suite
200, Los Angeles, California 900174104; San Francisco Office: 550 Kearny St., Suite 600, San Francisco, California 94108;
Seattle Office: Two Union Square, 601 Union Street, Suite 520, Seattle, Washington 98101 -2321, or at such other place as Custodian
may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by this Agreement to be given to Customer shall be
sufficiently given if addressed to Customer and received by it at its offices at
or at such
other place as Customer may from time to time designate in writing.
4. Each and every right granted to either party 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 either party to exercise, and no delay in exercising, any right will operate as a waiver thereof, nor will any single or partial exercise
by either party of any right preclude any other or future exercise thereof or the exercise of any other right.
n
W-11!
5. 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 shall not in any way be affected thereby. This
Agreement may not be amended or modified in any manner except by a written agreement executed by both parties. 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 either party without the written consent of the other.
6. (a) This Agreement shall be construed in accordance with the substantive laws of the State of California,
without regard to conflicts of laws principles thereof. Customer and Custodian hereby consent to the jurisdiction of a state or federal
court situated in California in connection with any dispute arising hereunder. Customer hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such proceeding brought
in such a court and any claim that such proceeding brought in such a court has been brought in an inconvenient forum. Customer and
Custodian each hereby irrevocably waives any and all rights to trial by jury in any legal proceeding arising out of or relating to this
Agreement.
(b) For Governmental Entities: To the extent that in any jurisdiction Customer may now or hereafter be entitled to
claim, for itself or its assets, immunity from suit, execution, attachment (before or after judgment) or other legal process, Customer
irrevocably agrees not to claim, and it hereby waives, such immunity.
7. The parties hereto agree that in performing hereunder, Custodian is acting solely on behalf of Customer and no
contractual or service relationship shall be deemed to be established hereby between Custodian and any other person.
8. 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.
IN WITNESS WHEREOF, Customer and Custodian have caused this Agreement to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
Title:
Tax Identification No:
BNY WESTERN TRUST COMPANY
an
Title:
bnyw ust.dm
trot
APPENDIX 1
THE BANK OF NEW YORK
ON -LINE COMMUNICATIONS SYSTEM (THE "SYSTEM ")
TERMS AND CONDITIONS
I. License: Use. (a) This Appendix I shall govern Customer's use of the System and any computer software provided by BNY to Customer in
connection herewith (collectively, the "Software "). In the event of any conflict between the terms of this Appendix 1 and the main body of this Agreement with respect
to Customer's use of the System, the terms of this Appendix I shall control.
(b) Upon delivery to Customer of Software and /or System access codes, Custodian grants to Customer a personal, nontransferable and nonexclusive license
to use the Software and the System solely for the purpose of transmitting Written Instructions, receiving reports, making inquiries or otherwise communicating with
Custodian in connection with the Account(s). Customer shall use the Software and the System solely for its own internal and proper business purposes and not in the
operation of a service bureau. Except as set forth herein, no license or right of any kind is granted to Customer with respect to the Software or the System. Customer
acknowledges that Custodian and its suppliers retain and have title and exclusive proprietary rights to the Software and the System, including any trade secrets or other
ideas, concepts, know -how, methodologies, or information incorporated therein and the exclusive rights to any copyrights, trademarks and patents (including
registrations and applications for registration of either), or other statutory or legal protections available in respect thereof. Customer further acknowledges that all or a
part of the Software or the System may be copyrighted or trademarked (or a registration or claim made therefor) by Custodian or its suppliers. Customer shall not take
any action with respect to the Software or the System inconsistent with the foregoing acknowledgments, nor shall Customer attempt to decompile, reverse engineer or
modify the Software. Customer may not copy, sell, lease or provide, directly or indirectly, any of the Software or any portion thereof to any other person or entity
without Custodian's prior written consent. Customer may not remove any statutory copyright notice or other notice included in the Software or on any media
containing the Software. Customer shall reproduce any such notice on any reproduction of the Software and shall add any statutory copyright notice or other notice to
the Software or media upon Custodian's request.
(c) If Customer subscribes to any database service provided by Custodian in connection with its use of the System, delivery of such database to Customer
shall constitute the granting by Custodian to Customer of a non - exclusive, non - transferable license to use such database for so long as this Appendix 1 is in effect. It is
understood and agreed that any database supplied by Custodian is derived from sources which Custodian believes to be reliable but Custodian does not, and cannot for
the fees charged, guarantee or warrant that the data is correct, complete or current. All such databases are provided as an accommodation by Custodian to its customers
and are compiled without any independent investigation by Custodian. However, Custodian will endeavor to update and revise each database on a periodic basis as
Custodian, in its discretion, deems necessary and appropriate. Customer also agrees that Customer will promptly install all updates and revisions to each database
which Custodian provides and that Custodian cannot bear any responsibility whatsoever for Customer's failure to do so. CUSTODIAN IS NOT RESPONSIBLE FOR
ANY RESULTS OBTAINED BY CUSTOMER FROM USE OF DATABASE SERVICES PROVIDED BY CUSTODIAN.
2. Equipment. Customer 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 the Software and obtain access to the System and Custodian shall not be responsible for the reliability or
availability of any such equipment or services.
3. Proprietary Information. The Software, any data base and any proprietary data, processes, information and documentation made available to
Customer (other than 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 Custodian or its suppliers. However, for the avoidance of doubt, reports generated by Customer containing information relating
to the Account(s) are not deemed to be within the meaning of the term "Information ". Customer shall keep the Information confidential by using the same care and
discretion that Customer uses with respect to its own confidential property and trade secrets, but not less than reasonable care. Upon termination of the Agreement or
the licenses granted herein for any reason, Customer shall return to Custodian any and all copies of the Information which are in its possession or under its control.
The provisions of this Section 3 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.
4. Modifications. Custodian reserves the right to modify the Software from time to time and Customer shall install new releases of the Software as
Custodian may direct. Customer agrees not to modify or attempt to modify the Software without Custodian's prior written consent. Customer acknowledges that any
modifications to the Software, whether by Customer or Custodian and whether with or without Custodian's consent, shall become the property of Custodian.
5. NO REPRESENTATIONS OR WARRANTIES. CUSTODIAN AND ITS MANUFACTURERS AND SUPPLIERS MAKE NO WARRANTIES
OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, THE SYSTEM, ANY SERVICES OR ANY DATABASE, EXPRESS OR IMPLIED, IN FACT
OR IN LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER
ACKNOWLEDGES THAT THE SOFTWARE, THE SYSTEM, ANY SERVICES AND ANY DATABASE ARE PROVIDED "AS IS." TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT,
INDIRECT SPECIAL, OR CONSEQUENTIAL, WHICH CUSTOMER MAY INCUR IN CONNECTION WITH THE SOFTWARE, SERVICES OR ANY
DATABASE, EVEN IF CUSTODIAN OR SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL
CUSTODIAN OR ANY SUPPLIER BE LIABLE FOR ACTS OF GOD, MACHINE OR COMPUTER BREAKDOWN OR MALFUNCTION, INTERRUPTION OR
MALFUNCTION OF COMMUNICATION FACILITIES, LABOR DIFFICULTIES OR ANY OTHER SIMILAR OR DISSIMILAR CAUSE BEYOND THEIR
REASONABLE CONTROL.
6. Security: Reliance: Unauthorized Use. Custodian will establish security procedures to be followed in connection with the System. Customer
understands and agrees that the security procedures are intended to determine whether instructions received by Custodian through the System are authorized but are not
(unless otherwise specified in writing) intended to detect any errors contained in such instructions. Customer will cause all persons utilizing the Software and the
System to treat all applicable user and authorization codes, passwords and authentication keys with the highest degree of care and confidentiality. Custodian is hereby
irrevocably authorized to comply with and rely upon on Written Instructions, whether or not authorized, received by it through the System in accordance with the
security procedures. Customer acknowledges that it is its sole responsibility to assure that only Authorized Persons use the System and that to the fullest extent
permitted by applicable law Custodian shall not be responsible nor liable for any unauthorized use thereof or for any losses sustained by Customer arising from or in
connection with the use of the System or Custodian's reliance upon and compliance with Written Instructions received through the System.
12
7. System Acknowledomnts. Custodian shall acknowledge through the System its receipt of each transmission communicated through the System,
and in the absence of such acknowledgment Custodian shall not be liable for any failure to act in accordance with such transmission and Customer may not claim that
such transmission was received by Custodian.
9. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY UNITED STATES LAW. CUSTOMER MAY NOT
UNDER ANY CIRCUMSTANCES RESELL, DIVERT, TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY FORM) IN OR TO
ANY OTHER COUNTRY. IF CUSTODIAN DELIVERED THE SOFTWARE TO CUSTOMER OUTSIDE OF THE UNITED STATES, THE SOFTWARE WAS
EXPORTED FROM THE UNITED STATES IN ACCORDANCE WITH THE EXPORT ADMINISTRATION REGULATIONS. DIVERSION CONTRARY TO U.S.
LAW IS PROHIBITED. Customer hereby authorizes Custodian to report its name and address to government agencies to which Custodian is required to provide such
information by law.
9. Encryption. Customer acknowledges and agrees that encryption may not be available for every communication through the System, or for all
data. Customer agrees that Custodian may deactivate any encryption features at any time, without notice or liability to Customer, for the purpose of maintaining,
repairing or troubleshooting the System or the Software.
10. On -Line Inpuiry and Modification of Records. In connection with Customer's use of the System, Custodian may, at Customer's request, permit
Customer to enter data directly into a Custodian database for the purpose of modifying certain information maintained by Custodian's systems, including, but not
limited to, change of address information. To the extent that Customer is granted such access, Customer agrees to indemnify and hold Custodian harmless from all
loss, liability, cost, damage and expense (including attorney's fees and expenses) to which Custodian may be subjected or which may be incurred in connection with
any claim which may arise out of or as a result of changes to Custodian database records initiated by Customer.
J
CERTIFICATE OF AUTHORIZED PERSONS
(Customer - Oral and Written Instructions)
The undersigned hereby certifies that he /she is the duly elected and acting of
(the "Corporation "), and
further certifies that the following officers or employees of the Corporation have been duly authorized in conformity with the
Corporation's Articles of Incorporation and By -Laws to deliver Oral and Written Instructions to BNY Western Trust Company
( "BNY ") pursuant to the Custody Agreement between the Corporation and BNY dated and that the signatures
appearing opposite their names are true and correct:
Name
Title
Signature
Name
Title
Signature
Name
Title
Signature
Name
Title
Signature
Name
Title
Signature
Name
Title
Signature
Name
Title
Signature
Name
Title
Signature
Name
Title
Signature
This certificate supersedes any certificate of authorized individuals you may currently have on file.
[corporate
seal]
Title:
Date:
oon
SC ARYARY OF
THE IiMNK OF NEW YORK COM'NY. M.
NON - REPETITIVE CALLBACK WIRE TRANSFER AUTHORIZATION
We hereby authorize BNY Western Trust Company ( "Bank") to accept, confirm and execute funds transfer
and free delivery instructions from the persons listed on this authorization form. Furthermore, the
undersigned ratifies and confirms any direction previously received by the Bank which is consistent with the
terns hereof, and ratifies and confirms any action taken by the Bank in reliance upon such direction. This
authorization replaces and supersedes all prior authorization and will remain in effect until revoked or
amended in writing.
Account
Account
I. Names of persons authorized to initiate funds transfer or free delivery instructions by
telephone and/or facsimile:
NAME TELEPHONE NUMBER SAMPLE SIGNATURE
(Please type or print)
II. Names of persons authorized to confirm funds transfer or free delivery instructions: (If desired, the
same names may be listed to initiate and confirm.)
NAME TELEPHONE NUMBER SAMPLE SIGNATURE
(Please type or print)
Signature:
Name:
uATeamPFOrm\ 1999Forms \Cal IBack.doc
SHAREHOLDER COMMUNICATIONS ACT OF 1985
Disclosure Authorization
Client Name:
On December 28, 1985, the Shareholder Communications Act of 1985 was enacted into law. Its
effective date was December 28, 1986. The Act confers upon the Securities and Exchange
Commission the authority to prescribe rules and regulations relating to the proxy processing
activities of banks. The purpose of the Act, and the SEC rules adopted to enforce the Act, is to
improve the communications between a company and its shareholders.
The rules require a bank to contact all beneficial owners of securities held by the bank and
request that such holders indicate whether or not they object to disclosure of their name, address
and security positions to the company. A beneficial holder is any person who has or shares
voting power.
Since you account was not in existence prior to December 28, 1986, the cut -off date set forth in
the regulations, the Act requires us to disclose the information to an inquiring company. Under
the ACT, we will be required to disclose your identity to an inquiring company, unless you
object in writing. Therefore, it is required that you indicate, on the enclosed copy of this letter,
whether or not you object to disclosure of aforementioned information, and return the executed
copy to your account administrator.
I (we) object to the disclosure of our name, address and security positions
maintained at BNY Western Trust Company, to the requesting company.
I (we) do NOT object to the disclosure of our name, address and security
positions maintained at BNY Western Trust Company, to the requesting
company.
I (we) do not have a beneficial interest in securities accounts maintained at
BNY Western Trust Company.
AUTHORIZED SIGNATURE
DATE
/h
Client Name:
As Trustee /Custodian for your securities, we are required to mail proxies in accordance with
your instructions. Please indicate by checlong your choice below and return to my attention.
Send to our office at the address on file
Send to our respective Investment Manager (s).
Authorized Signature Date
/`1
BNY WESTERN TRUST COMPANY
A Subsidiary of The Bank of New York Company
FACSIMILE INSTRUCTIONS: AUTHORIZATION
Re: Custodial Agreement dated between
and BNY Western Trust Co.
Date: 1998
Customer Authorization, Limitation of Liability and Indemnity
( "Customer ") hereby authorizes BNY Western Trust Company
(the "Bank) to rely upon and comply with instructions and directions sent by facsimile or other
similar electronic methods by persons believed by the Bank to be authorized to give instructions
and directions on behalf of Customer. The Bank shall have no duty or obligation to verify or
confirm that the persons who sent such instructions or directions is, in fact, a person authorized
to give instructions or directions on behalf of Customer; and the Bank shall have no liability for
any losses, liabilities, costs or expenses incurred or sustained by Customer as a result of such
reliance upon or compliance with such instructions or directions.
Please be advised that there are more secure methods of sending instructions and directions to the
Bank. By executing this document, you elect to use the foregoing method of transmitting
instructions and directions over such secure methods.
This authorization shall remain in full force and effect until canceled, revoked or amended by
written notice received by the Bank; and replaces and supersedes any previous authorization from
Customer to the Bank relating to the giving of instructions by facsimile or other electronic
methods and is in addition to all other authorizations.
Customer agrees to indemnify and hold harmless the Bank against any and all claims, losses,
liabilities, judgments, costs or expenses (including attorneys' fees and expenses) (collectively,
"Losses ") incurred or sustained by the Bank as a result of or in connection with the Bank's
reliance upon and compliance with instructions and directions given by facsimile or electronic
methods, provided, however, that such Losses have not arisen from the negligence or willful
misconduct of the Bank, it being understood, for the avoidance of doubt, that the failure of the
Bank to verify or confirm that the person giving the instructions or directions, is, in fact, an
authorized person does not constitute negligence or willful misconduct.
Notwithstanding any revocation, cancellation or amendment of this authorization, any action
taken by the Bank pursuant to this authorization prior to the Bank's actual receipt of a notice of
revocation, cancellation or amendment shall not be affected by such notice.
1 -:3
Governing Law:
This document shall be governed by, and shall be construed in accordance with, the substantive
laws (and not the choice of law rules) of the State of California.
Representations and Warranties of Customer:
Customer hereby represents and warrants to the Bank that this authorization is properly given and
has been duly approved by a resolution of its Board of Directors.
Nothing contained herein shall, or be deemed to, alter or modify the rights and remedies of the
Bank as set forth in the Agreement.
The execution of this document by Customer constitutes acceptance of the foregoing.
Yours faithfully,
BNY WESTERN TRUST COMPANY
Name: Maria E. Allison
Title: Vice President
Customer hereby accepts and agrees to the terms and conditions set forth herein.
LE
Name:
Title:
Date:
(Name of Customer)
u:\forms\fxauth.doc
1J
Form W -9
Request for Taxpayer
Give form to the
(Rev. December 2000)
Identification Number and Certification
requester. Do not
Department or the Treasury
Send to the IRS.
Internal Revenue Service
Name (See Specific Instructions on page 2.)
rBusiness
name. if different from above. (See Specific Instructions on page 2.)
0
Check appropriate box: 11 IndividuavSole proprietor Corporation Partnership
Other ►
....... ...............................
a
Address (number. street and apt. or suite no.)
Requester's
name and address (optional)
m
a
Clry, slate. and ZIP code
Tax a er Identification Number (TIN)
List account
number(s) here (optionali
Enter your TIN in the appropriate box. For
individuals, this is your social security number Social security number
(SSN). However, for a resident alien, sole
proprietor, or disregarded entity, see the Part I
For U.S. Payees Exempt From
instructions on page 2. For other entities, it is your
employer identification number (EIN). If you do not or
Backup Withholding (See the
have a number, see How to get a TIN on page 2.
Employer identification number
instructions on page 2.)
Note: if the account is in more than one name, see
the chart on page 2 for guidelines on whose number
to enter.
1110�
Certification
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number (or I am wailing for a number to be issued to me). and
2. 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the internal
Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding. and
3. 1 am a U.S. person (including a U.S. resident alien).
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup
withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions. item 2 does not apply.
For mortgage interest paid, acquisition or abandonment of secured property. cancellation of debt, contributions to an individual retirement
arrangement (IRA), and generally, payments other than interest and dividends. you are not required to sign the Certification, but you must
provide your correct TIN. (See the instructions on page 2.)
Sign I Signature of
Here U.S. person ► Date ►
Purpose of Form
A person who is required to file an information
return with the IRS must get your correct
taxpayer identification number (TIN) to report, for
example. income paid to you, real estate
transactions. mortgage interest you paid,
acquisition or abandonment of secured property.
cancellation of debt. or contributions you made
to an IRA.
Use Form W -9 only if you are a U.S. person
(including a resident alien). to give your correct
TIN to the person requesting it (the requester)
and. when applicable, to:
1. Certify the TIN you are giving is correct (or
you are wailing for a number to be issued),
2. Certify you are not subject to backup
withholding, a
3. Claim exemption from backup withholding if
you are a U.S. exempt payee.
If you are a foreign person, use the
appropriate Form W -8. See Pub. 515,
Withholding of Tax on Nonresident Aliens and
Foreign Corporations.
Note: If a requester gives you a form other than
Form W -9 to request your TIN, you must use the
requesters form if it is substantially similar to this
Form W -9.
What Is backup withholding? Persons making
certain payments to you must withhold and pay
to the IRS 31% of such payments under certain
conditions. This is called 'backup withholding."
Payments that may be subject to backup
withholding include interest dividends. broker
and barter exchange transactions, rents,
royalties, nonemployee pay, and certain
payments from fishing boat operators. Real
estate transactions are not subject to backup
withholding.
If you give the requester your correct TIN.
make the proper certifications, and report all
your taxable interest and dividends on your tax
return. payments you receive will not be subject
to backup withholding. Payments you receive
will be subject to backup withholding if:
1. You do not furnish your TIN to the
requester, or
2. You do not certify your TIN when required
(see the Part III instructions on page 2 for
details), or
3. The IRS tells the requester that you
furnished an incorrect TIN, or
4. The IRS tells you that you are subject to
backup withholding because you did not report
all your interest and dividends on your lax return
(for reportable interest and dividends only). or
Cal No.10231X
5. You do not certify to the requester that you
are not subject to backup withholding under 4
above (for reportable interest and dividend
accounts opened after 1983 only).
Certain payees and payments are exempt
from backup withholding. See the Part 11
instructions and the separate Instructions for
the Requester of Form W -9.
Penalties
Failure to furnish TIN. If you fail to furnish your
correct TIN to a requester. you are subject to a
penalty of $50 for each such failure unless your
failure is due to reasonable cause and not to
willful neglect.
Civil penalty for false information with respect
to withholding. If you make a false statement
with no reasonable basis that results in no
backup withholding. you are subject to a $500
penalty.
Criminal penalty for falsifying information.
Willfully falsifying certifications or affirmations
may subject you to criminal penalties including
fines and/or imprisonment.
Misuse of TINS. If the requester discloses or
uses TINS in violation of Federal law. the
requester may be subject to civil and criminal
penalties.
Form W -9 (Rev. 12 -2000)
20
Form W -9 (Rev. 12 -2000) Page 2
Specific Instructions
Name. If you are an individual. you must
generally enter the name shown on your social
security card. However. if you have changed
your last name. for instance. due to marriage
without informing the Social Security
Administration of the name change. enter your
first name. the last name shown on your social
security card. and your new last name.
If the account is injoint names. list first and
then circle the name of the person or entity
whose number you enter in Part I of the form.
Sole proprietor. Enter your individual name
as shown on your social security card on the
"Name" line. You may enter your business.
trade. or "doing business as (DBA)" name on the
"Business name" line.
Limited liabdiity company (LLC). If you are a
single- member LLC (including a foreign LLC with
a domestic owner) that is disregarded as an
entity separate from its owner under Treasury
regulations section 301.7701 -3, enter the
owner's name on the "Name' line. Enter the
LLC's name on the "Business name' line.
Caution: A disregarded domestic entity that has
a foreign owner must use the appropriate
Form W -8.
Other entities. Enter your business name as
shown on required Federal tax documents on
the "Name' line. This name should match the
name shown on the charter or other legal
document creating the entity. You may enter any
business. trade. or DBA name on the `Business
name" line.
Part 1— Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box.
If you are a resident alien and you do not
have and are not eligible to get an SSN. your
TIN is your IRS individual taxpayer identification
number (ITIN). Enter it in the social security
number box. If you do not have an ITIN. see
How to get a TIN below.
If you are a sole proprietor and you have an
EIN. you may enter either your SSN or EIN.
However. the IRS prefers that you use your SSN.
If you are an LLC that is disregarded as an
entity separate from its owner (see Limited
liabitity company (LLC) above). and are owned
by an individual. enter your SSN (or "pre -LLC"
EIN. if desired). If the owner of a disregarded
LLC Is a corporation. partnership, etc.. enter the
owner's EIN.
Note: See the chart on this page for further
clarification of name and TIN combinations.
How to get a TIN. If you do not have a TIN.
apply for one immediately. To apply for an SSN.
get Form SS -5, Application for a Social Security
Card. from your local Social Security
Administration office. Get Form W -7, Application
for IRS Individual Taxpayer Identification
Number. to apply for an ITIN or Form SS -4,
Application for Employer Identification Number.
to apply for an EIN. You can get Forms W -7 and
SS -4 from the IRS by calling 1 -800- TAX -FORM
(1 -800- 829 -3676) or from the IRS's Internet Web
Site at www.irs.gov.
If you do not have a TIN. write "Applied For"
in the space for the TIN. sign and date the form.
and give it to the requester. For interest and
dividend payments. and certain payments made
with respect to readily tradable instruments.
generally you will have 60 days to get a TIN and
give it to the requester before you are subject to
backup withholding on payments. The 60 -day
rule does not apply to other types of payments.
You will be subject to backup withholding on all
such payments until you provide your TIN to the
requester.
Note: Writing 'Applied For' means that you have
already applied for a TIN or that you intend to
apply for one soon.
Part II —For U.S. Payees Exempt From Backup
Withholding
Individuals (including sole proprietors) are not
exempt from backup withholding. Corporations
are exempt from backup withholding for certain
payments, such as interest and dividends. For
more information on exempt payees. see the
separate Instructions for the Requester of
Forth W -9.
If you are exempt from backup withholding.
you should still complete this form to avoid
possible erroneous backup withholding. Enter
your correct TIN in Part I. write "Exempt" in
Part 11. and sign and date the form.
If you are a nonresident alien or a foreign
entity not subject to backup withholding. give
the requester the appropriate completed Form
W -8.
Part III— Certification
To establish to the withholding agent that you
are a U.S. person. or resident alien. sign Form
W -9. You may be requested to sign by the
withholding agent even if items 1. 3. and 5
below indicate otherwise.
For ajoint account. only the person whose
TIN is shown in Part I should sign (when
required).
1. Interest, dividend, and barter exchange
accounts opened before 1984 and broker
accounts considered active during 1983. You
must give your correct TIN. but you do not have
to sign the certification.
2. Interest, dividend, broker, and barter
exchange accounts opened after 1983 and
broker accounts considered inactive during
1983. You must sign the certification or backup
withholding will apply. If you are subject to
backup withholding and you are merely providing
your correct TIN to the requester. you must
cross out item 2 in the certification before
signing the form.
3. Real estate transactions. You must sign
the certification. You may cross out item 2 of the
certification.
4. Other payments. You must give your
correct TIN. but you do not have to sign the
certification unless you have been notified that
you have previously given an incorrect TIN.
-Other payments" include payments made in the
course of the requester's trade or business for
rents. royalties. goods (other than bills for
merchandise). medical and health care services
(including payments to corporations). payments
to a nonemployee for services. payments to
certain fishing boat crew members and
fishermen. and gross proceeds paid to attorneys
(including payments to corporations).
S. Mortgage interest paid by you,
acquisition or abandonment of secured
property, cancellation of debt, qualified state
tuition program payments, IRA or MSA
contributions or distributions, and pension
distributions. You must give your correct TIN.
but you do not have to sign the certification.
Privacy Act Notice
Section 6109 of the Internal Revenue Code
requires you to give your correct TIN to persons
who must file information returns with the IRS to
:1,
report interest. dividends. and certain other
income paid to you. mortgage interest you paid.
the acquisition or abandonment of secured
property. cancellation of debt. or contributions
you made to an IRA or MSA. The IRS uses the
numbers for identification purposes and to help
verify the accuracy of your tax return. The IRS
may also provide this information to the
Department of Justice for civil and criminal
litigation. and to cities. states. and the District of
Columbia to carry out their tax laws.
You must provide your TIN whether or not you
are required to file a tax return. Payers must
generally withhold 31% of taxable interest
dividend. and certain other payments to a payee
who does not give a TIN to a payer. Certain
penalties may also apply.
What Name and Number To
Give the Requester
For this type of amount:
Give name and SSN of:
1. Individual
The intlividual
2. Two or more
The actual owner of the
Individuals goinl
account or. if combined
account)
funds. the first IndfNdual
on the account'
3. Custodian account of
The minor
a minor (Uniform Gift
to Minors Act)
4. a. The usual
The grantor - trustee `
revocable savings
trust (grantor is
also trustee)
b. So- called trust
The actual owner'
account that is not
a legal or valid bust
under state law
S. Sole proprietorship
The owner'
For this type of account:
Give name and EIN of:
6. Sole proprietorship
The owner'
7. A valid trust. estate. or
Legal entity'
pension trust
8. Corporate
The corporation
9. Association. club.
The organization
religious. charitable.
educational. or other
tax- exempt
organization
10. Partnership
The partnership
11. A broker or registered
The broker or nominee
nominee
12. Account with the
The public entity
Department of
A ricukure In the name
of a public entity (such
as a state or focal
government. school
district. or prison) that
receives agricultural
program payments
'List first and circle the name of the person whose
number you furnish. If on one person on a joint
account has an SSN. the person's number must be
furnished.
'Circle the minor's name and furnish the minor's SSN.
'You must show your Individual name. but you My 8150
enter your business or "DBA" name. You may use either
your SSN or EIN Of you have one).
, List first and circle the name of the legal trust estate.
or pension trust. (Do not furnish the TIN of the Personal
representative or trustee unless the legal entity itself i5
not designated in the account title.)
Note: If no name is circled when more than one
name B listed. the number MY be considered to
be that of the first name listed.
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22
AUTHORIZATION AND DIRECTION TO THE BANK OF NEW YORK
TO INVEST CASH BALANCES
IN MONEY MARKET MUTUAL FUNDS
CUSTOMER NAME (the "Customer "): City of Newport Beach
ACCOUNT (the "Account "):
AGREEMENT (Description):
ACCOUNT
FUND CHOICE (the "Fund "): Goldman Sachs FST Treasury Obligations
These instructions supersede any previous instructions which pertain to the investment of cash in
the Account.
AUTHORIZATION AND DIRECTION
The Bank of New York (`BNY ") is hereby authorized and directed to invest any available cash in
the Account in shares of the Fund and to redeem shares of the Fund to meet the cash
requirements of the Account. Customer may, from time to time, direct BNY in writing to redeem
and exchange shares of the Fund for shares of, or to invest available cash or the proceeds from
any redemption in, another eligible investment and BNY shall comply with such direction.
Customer represents and warrants to BNY that it is authorized and empowered to direct BNY to
make the investment specified herein and that the investment authorized herein is an authorized
investment.
PROSPECTUS: Customer has read the Prospectus of the Fund and has independently made the
determination to direct BNY to invest available cash in the Account in shares of the Fund.
Customer understands that the Fund is not an obligation of, or recommended, endorsed or
guaranteed in any way by, BNY, its affiliates or any other bank; that the Fund is not insured by
an agency or instrumentality of the United States, such as the Federal Deposit Insurance
Corporation; and that investments in the Fund may be subject to investment risks, including
possible loss of the principal amount invested. Customer further understands that, other than
with respect to the BNY Hamilton Funds, neither BNY nor its affiliates has participated in the
preparation of the Prospectus or is responsible for its content. With respect to the BNY Hamilton
Funds, Customer understands, and hereby acknowledges, that BNY provides investment advisory
and other services to the BNY Hamilton Funds, and is compensated for such services.
PERIODIC STATEMENTS: Customer agrees that transactions in the Fund will be reported
only in BNY's regular periodic account statements.
VOTING SHARES: Customer assumes the obligation and retains the right to vote all shares of
the Fund held by BNY for the benefit of the Account.
SHAREHOLDER SERVICES FEES: Customer acknowledges that the Fund is authorized to
make payments from its management fee or any other source available to parties such as banks or
broker - dealers ( "Service Organizations ") that provide shareholder support services to the Fund
and that Service Organizations currently are compensated at a rate of up to the Maximum Rate of
0.25% annually of the average net assets of each Fund with respect to which they provide or
have provided shareholder support services. Customer further acknowledges that BNY is a
Service Organization and is paid, and hereby consents to such payment, by the Fund up to the
Maximum Rate annually of the average daily balance of the Account invested in the Fund for
shareholder support services rendered to the Fund by BNY, which services may include, without
limitation, answering client's inquiries regarding the Fund, assistance to clients in changing
dividend options, account designations and addresses, processing purchase and redemption
transactions, providing periodic statements showing a client's account balance and the
integration of such statement with other transactions, arranging for BNY wires, and providing
such other information and services as the Fund's distributor or Customer reasonably may
request. Customer further acknowledges that such service may be the same as or similar to
services provided by BNY for which a fee may be separately charged under the Agreement.
Customer further acknowledges that the Fund may purchase securities from or through BNY or
its affiliates, may engage in repurchase transactions with BNY or its affiliates, may place funds
on deposit in accounts with BNY or its affiliates and receive interest income thereon and may
obtain other services from BNY for which BNY is paid a fee.
This Authorization and Direction is executed, acknowledged and consented to at
, on
[City] [State]
[Name of Customer]
By (Signature):
Name (Print):,
Title:
[Date]
AUTHORIZATION AND DIRECTION TO THE BANK OF NEW YORK
TO INVEST CASH BALANCES
IN MONEY MARKET MUTUAL FUNDS
CUSTOMER NAME (the "Customer "): City of Newport Beach
ACCOUNT (the "Account "):
AGREEMENT (Description):
ACCOUNT NUMBER:
FUND CHOICE (the "Fund "): Fidelity Institutional Treasury III
These instructions supersede any previous instructions which pertain to the investment of cash in
the Account.
AUTHORIZATION AND DIRECTION
The Bank of New York (`BNY') is hereby authorized and directed to invest any available cash in
the Account in shares of the Fund and to redeem shares of the Fund to meet the cash
requirements of the Account. Customer may, from time to time, direct BNY in writing to redeem
and exchange shares of the Fund for shares of, or to invest available cash or the proceeds from
any redemption in, another eligible investment and BNY shall comply with such direction.
Customer represents and warrants to BNY that it is authorized and empowered to direct BNY to
make the investment specified herein and that the investment authorized herein is an authorized
investment.
PROSPECTUS: Customer has read the Prospectus of the Fund and has independently made the
determination to direct BNY to invest available cash in the Account in shares of the Fund.
Customer understands that the Fund is not an obligation of, or recommended, endorsed or
guaranteed in any way by, BNY, its affiliates or any other bank; that the Fund is not insured by
an agency or instrumentality of the United States, such as the Federal Deposit Insurance
Corporation; and that investments in the Fund may be subject to investment risks, including
possible loss of the principal amount invested. Customer further understands that, other than
with respect to the BNY Hamilton Funds, neither BNY nor its affiliates has participated in the
preparation of the Prospectus or is responsible for its content. With respect to the BNY Hamilton
Funds, Customer understands, and hereby acknowledges, that BNY provides investment advisory
and other services to the BNY Hamilton Funds, and is compensated for such services.
PERIODIC STATEMENTS: Customer agrees that transactions in the Fund will be reported
only in BNY's regular periodic account statements.
VOTING SHARES: Customer assumes the obligation and retains the right to vote all shares of
the Fund held by BNY for the benefit of the Account.
SHAREHOLDER SERVICES FEES: Customer acknowledges that the Fund is authorized to
make payments from its management fee or any other source available to parties such as banks or
broker - dealers ( "Service Organizations') that provide shareholder support services to the Fund
and that Service Organizations currently are compensated at a rate of up to the Maximum Rate of
0.30% annually of the average net assets of each Fund with respect to which they provide or
have provided shareholder support services. Customer further acknowledges that BNY is a
Service Organization and is paid, and hereby consents to such payment, by the Fund up to the
Maximum Rate annually of the average daily balance of the Account invested in the Fund for
shareholder support services rendered to the Fund by BNY, which services may include, without
limitation, answering client's inquiries regarding the Fund, assistance to clients in changing
dividend options, account designations and addresses, processing purchase and redemption
transactions, providing periodic statements showing a client's account balance and the
integration of such statement with other transactions, arranging for BNY wires, and providing
such other information and services as the Fund's distributor or Customer reasonably may
request. Customer further acknowledges that such service may be the same as or similar to
services provided by BNY for which a fee may be separately charged under the Agreement.
Customer further acknowledges that the Fund may purchase securities from or through BNY or
its affiliates, may engage in repurchase transactions with BNY or its affiliates, may place funds
on deposit in accounts with BNY or its affiliates and receive interest income thereon and may
obtain other services from BNY for which BNY is paid a fee.
This Authorization and Direction is executed, acknowledged and consented to at
on
[City] [State] [Date]
[Name of Customer]
By (Signature):
Name (Print):
Title:
AUTHORIZATION AND DIRECTION TO THE BANK OF NEW YORK
TO INVEST CASH BALANCES
IN MONEY MARKET MUTUAL FUNDS
CUSTOMER NAME (the "Customer "): City of Newport Beach
ACCOUNT (the
AGREEMENT (Description):
ACCOUNT NUMBER:
FUND CHOICE (the "Fund "): BNY Hamilton Treasury Money Market Fund
These instructions supersede any previous instructions which pertain to the investment of cash in
the Account.
AUTHORIZATION AND DIRECTION
The Bank of New York ( "BNY ") is hereby authorized and directed to invest any available cash in
the Account in shares of the Fund and to redeem shares of the Fund to meet the cash
requirements of the Account. Customer may, from time to time, direct BNY in writing to redeem
and exchange shares of the Fund for shares of, or to invest available cash or the proceeds from
any redemption in, another eligible investment and BNY shall comply with such direction.
Customer represents and warrants to BNY that it is authorized and empowered to direct BNY to
make the investment specified herein and that the investment authorized herein is an authorized
investment.
PROSPECTUS: Customer has read the Prospectus of the Fund and has independently made the
determination to direct BNY to invest available cash in the Account in shares of the Fund.
Customer understands that the Fund is not an obligation of, or recommended, endorsed or
guaranteed in any way by, BNY, its affiliates or any other bank; that the Fund is not insured by
an agency or instrumentality of the United States, such as the Federal Deposit Insurance
Corporation; and that investments in the Fund may be subject to investment risks, including
possible loss of the principal amount invested. Customer further understands that, other than
with respect to the BNY Hamilton Funds, neither BNY nor its affiliates has participated in the
preparation of the Prospectus or is responsible for its content. With respect to the BNY Hamilton
Funds, Customer understands, and hereby acknowledges, that BNY provides investment advisory
and other services to the BNY Hamilton Funds, and is compensated for such services.
PERIODIC STATEMENTS: Customer agrees that transactions in the Fund will be reported
only in BNY's regular periodic account statements.
VOTING SHARES: Customer assumes the obligation and retains the right to vote all shares of
the Fund held by BNY for the benefit of the Account.
SHAREHOLDER SERVICES FEES: Customer acknowledges that the Fund is authorized to
make payments from its management fee or any other source available to parties such as banks or
broker - dealers ( "Service Organizations ") that provide shareholder support services to the Fund
and that Service Organizations currently are compensated at a rate of up to the Maximum Rate of
0.35% annually of the average net assets of each Fund with respect to which they provide or
have provided shareholder support services. Customer further acknowledges that BNY is a
Service Organization and is paid, and hereby consents to such payment, by the Fund up to the
Maximum Rate annually of the average daily balance of the Account invested in the Fund for
shareholder support services rendered to the Fund by BNY, which services may include, without
limitation, answering client's inquiries regarding the Fund, assistance to clients in changing
dividend options, account designations and addresses, processing purchase and redemption
transactions, providing periodic statements showing a client's account balance and the
integration of such statement with other transactions, arranging for BNY wires, and providing
such other information and services as the Fund's distributor or Customer reasonably may
request. Customer further acknowledges that such service may be the same as or similar to
services provided by BNY for which a fee may be separately charged under the Agreement.
Customer further acknowledges that the Fund may purchase securities from or through BNY or
its affiliates, may engage in repurchase transactions with BNY or its affiliates, may place funds
on deposit in accounts with BNY or its affiliates and receive interest income thereon and may
obtain other services from BNY for which BNY is paid a fee.
This Authorization and Direction is executed, acknowledged and consented to at
on
[City] [State] [Date]
[Name of Customer]
By (Signature):
Name (Print):
Title:
0
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