CASH MANAGEMENT AND RELATED SERVICES AGREEMENT, dated as of July
27, 1992 between each entity 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 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 respects 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.
2. "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.
3. "Authorized Person" shall mean either (A) any person duly authorized
by corporate resolutions of the board of directors of a Fund to give Oral and/or
Written Instructions on behalf of such Fund, 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.
4. "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.
5. "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.
6. "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.
7. "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.
8. "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.
9. "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,
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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.
10. "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.
11. "Federal Funds" shall mean immediately available same day funds.
12. "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.
13. "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.
14. "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.
15. "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%.
16. "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.
17. "Shareholder" shall mean any record holder of any Shares, as
identified to the Bank from time to time pursuant to this Agreement.
18. "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. Each Fund hereby appoints
the Bank as its agent for the term of this Agreement to perform 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). The Bank hereby accepts appointment as such
agent for each appointing Fund and agrees to establish and maintain one or more
separate accounts with respect to each Fund (each, an "Account"; collectively,
the "Accounts") in order to receive and disburse money for the purposes set
forth in this Agreement.
2. Representations and Warranties. Each Fund hereby represents and
warrants only as to itself, and not jointly, 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 Fund in accordance with all requisite corporate action and constitutes a
valid and legally binding obligation of the 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,
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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. Each Fund shall provide the Bank with a
certified copy of a resolution of the board of directors of such Fund appointing
the Bank as its agent to act hereunder and providing for the creation of such
Fund's Account and the execution by such Fund 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 such Fund.
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;
(ii) 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;
(iii) by transfer to an account identified in writing by the Bank to
a Fund through the New York Automated Clearing House;
(iv) by transfer from another Account maintained by such Fund with
the Bank under this Agreement;
(v) 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; and
(vi) 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. The Bank
shall be entitled to reverse any credits previously made to a Fund's Account
where money is not finally collected or where a credit to such Fund's Account
was in error.
2. Disbursement of Money. The Bank shall disburse money credited
to a Fund's 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 such Fund or its agent on such
Account; and
(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. All instructions directing the disbursement of money credited to an
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 Draft's Shareholder Information. (a) Each 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
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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 as promptly as practicable give such
notice which may be less than sixty (60) days.
(b) Each Fund 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.
4. Redemption Draft Returns. 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 any 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 from a Fund with respect to any redemption
drafts.
ARTICLE IV
OVERDRAFTS OR INDEBTEDNESS
If the Bank in its sole discretion advances funds, or if there shall
arise for whatever reason an overdraft or other indebtedness in connection with
any Account, such advancement of funds or overdraft with respect to such Account
shall be deemed a loan made by the Bank to the Fund to which the Account 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. Each Fund hereby
agrees with respect to its Account(s) and any such advancement of funds or
overdraft 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 the Fund either
hereunder or under such Fund's Custody Agreement with the Bank, 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 Fund's Custody Agreement with the
Bank. Each Fund authorizes the Bank, in its sole discretion, at any time to
charge any such 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 Fund. In
addition, each Fund hereby covenants that on each Business Day on which either
it intends to enter a reverse repurchase agreement and/or otherwise borrow from
a third party, or which next succeeds a Business Day on which at the close of
business the Fund had outstanding a reverse repurchase agreement or such a
borrowing, it shall prior to 9:00 a.m. (New York City time) advise the Bank, in
writing, of each such borrowing, shall specify the portfolio or series to which
the same relates, and shall not incur any indebtedness not so specified other
than from the Bank.
ARTICLE V
ACCESS: CALL-BACK SECURITY PROCEDURE
1. Services Generally. Each Fund shall be permitted to utilize ACCESS
to obtain direct on-line access to its Accounts. ACCESS shall permit each Fund
at the times mutually agreed upon by the Bank and such Fund 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) 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. Each Fund 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) 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. Each
Fund shall keep the Information confidential by using the same care and
discretion that each Fund
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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, each Fund shall
return to the Bank any and all copies of the Information which are in such
Fund'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. Modification. The Bank reserves the right to modify ACCESS from time
to time without notice to any Fund. Each Fund agrees not to modify or attempt to
modify ACCESS without the Bank's prior written consent. Each Fund acknowledges
that ACCESS is the property of the Bank and, accordingly, each Fund agrees that
any modifications to ACCESS, whether by such Fund or the Bank and whether with
or without the Bank's consent, shall become the property of the Bank.
4. No Representations or Warranties. Neither the Bank nor any
manufacturers or suppliers it utilizes or any Fund 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. 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. Each Fund 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 any Fund'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 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 a Fund has used ACCESS if 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 a Fund fails to comply with the provisions of Section
6(d).
(b) The Bank's liability for its negligence in executing or failing to
execute a Fund's Written Instructions received through ACCESS shall be only with
respect to a transfer of funds which is not made in accordance with such Written
Instructions after such instructions have been duly acknowledged by the Bank,
and shall be contingent upon the Fund complying with the provisions of Section
6(d) below, and shall be limited to (i) restoration of the principal amount
mistransferred, if and to the extent that the Bank would be required to make
such restoration under applicable law, and (ii) the lesser of (A) a Fund's
actual pecuniary loss incurred by reason of its loss of use of the
mistransferred funds or the funds which were not transferred, as the case may
be, or (B) compensation for the loss of the use of the mistransferred funds or
the funds which were not transferred, as the case may be, at a rate per annum
equal to the average federal funds rate as computed from the Federal Reserve
Bank of New York's daily determination of the effective rate for federal funds
for the period during which a Fund has lost use of such funds. 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.
(c) 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 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.
(d) 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.
7. Funds Transfer Back-Up Procedure. (a) In the event ACCESS is
inoperable and a Fund is unable to utilize ACCESS for the transmission of
Written Instructions to the Bank to transfer funds, the Fund may give Oral
Instructions
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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, each Fund shall deliver to the Bank a Funds Transfer Telephone
Instruction Authorization in the form of Schedule III-A hereto, identifying the
individuals authorized to deliver and/or confirm all such Oral Instructions.
Each Fund understands and agrees that the Procedure is intended to determine
whether Oral Instructions received pursuant to this Section are authorized but
are not intended to detect any errors contained in such instructions. 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 Banks 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 Care. 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 a Fund, except
those costs, expenses, damages, liabilities or claims arising out of the Banks
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
respective 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 documentation evidencing such claim and loss.
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. In no event shall
the Bank be liable to 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. 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 attorneys 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 willful misconduct. This indemnity shall be a
continuing obligation of each Fund notwithstanding the termination of this
Agreement, or any 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 a
Fund in connection with this Agreement;
(b) The genuineness of any drawer signature on any draft deposited in
any 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
whether such endorsement or marking is a forgery, it 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 pursuant to Oral or
Written Instructions by the Fund shall be borne by 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;
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(e) any discrepancy between the written amount for which any draft is
drawn and the Magnetic Inscription Character Recognition ("MICR") code inscribed
thereon by any bank other than the Bank on any draft presented, provided the
Bank has acted in accordance with the MICR code;
(f) any disbursement directed by any 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 orders with respect
to any Shares, proceeds, or money, other than a stop payment placed by a Fund on
a draft drawn by such Fund on its Account;
(j) the propriety and/or legality of any transaction in any 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
(1) whether any redemption drafts 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. Each Fund agrees to
forward to the Bank Written Instructions confirming Oral Instructions in such
manner so that such Written Instructions are received by the Bank by the dose of
business of the same day that such Oral Instructions are given to the Bank. 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 the transactions
previously authorized.
6. Force Majeur. 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 in this Agreement against the
Bank. The Bank's duties and responsibilities hereunder shall be performed 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 a Fund for Oral or Written Instructions with respect to any matter
arising in connection with the Bank's duties and obligations with respect to an
Account of such Fund, 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 under this
Agreement and the date on and/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 such Fund'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 each Fund or of its own counsel, at the expense of a
Fund, 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 delegate, agent or
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attorney-in-fact shall have been selected or approved by a Fund. 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, 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 each Fund with a
monthly activity analysis 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. 'Me Bank may, and is hereby authorized by
each Fund, to charge such amounts to the appropriate Funds Account(s), but only
if such amounts remain unpaid for fifteen (15) days after the end of the period
to which such amounts relate.
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 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 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.
ARTICLE VII
TERMINATION
1. Prior Notice. This Agreement may be terminated by either the Bank
giving to any Fund, or any Fund giving to the Bank, a notice in writing
specifying the date of such termination, 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 at any time upon 30 days
prior written notice if any of the conditions precedent set forth in Article II,
paragraph 3 are unfulfilled.
2. Obligations upon Termination. Upon any 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 such Fund to the Bank, shall be (i) to deliver to such Fund such
records, if any, as may be owned by such Fund, in the form and manner kept by
the Bank on such date of termination, and (H) to pay any funds held hereunder
for such Fund to such Fund.
ARTICLE VIII
MISCELLANEOUS
1. Certificates of Authorized Person. Each Fund agrees to furnish to
the Bank a new certificate of Authorized Persons in the event that any present
Authorized Person of such Fund 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 000
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.
-9-
(b) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to a Fund shall be sufficiently given if addressed
to a1und and received by it at x/x XXX Xxxxxxxx Distributors, Inc., 000 X. 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxxxxx Xxxxxxxx, or at such
other place as such Fund 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.
5. Amendments. This Agreement may not be amended or modified in any
manner except by a written agreement executed by the Bank and 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 each Fund's board of
directors.
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: July Trial Waiver. This
Agreement shall be construed in accordance with the laws of the State of New
York without giving effect to conflict of law 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 the Party Beneficiaries. The provisions of this Agreement
are intended to benefit only the Bank and 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 any Fund
without the written consent of the Bank and authorized or approved by a
resolution of such Fund's board of directors.
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 Funds are several and not joint, that a Fund shall be liable for any
amount owing by another Fund and that the Funds have executed one instrument for
convenience only.
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
By: /s/
----------------------------------------
on behalf of each Fund identified
on Schedule A attached hereto
THE BANK OF NEW YORK
By: /s/
----------------------------------------
Title: VP
SCHEDULE A
Name of Fund
------------
XXX Xxxxxxxx Xxxxx Xxxx
XXX Xxxxxxxx Intermediate Government Fund
BNY Xxxxxxxx Intermediate New York Tax-Exempt Fund
BNY Xxxxxxxx Equity Income Fund
EXHIBIT A
I, __________________ of _________________ (the "Fund"), a ___________
corporation do hereby certify that:
The following individuals have been duly authorized by the Board of
Directors of the Fund in conformity with the Fund's Articles of Incorporation
and By-Laws to give Oral Instructions and Written Instructions on behalf of the
Fund, for purposes of the Fund's Cash Management and Related Services Agreement,
and the signatures set forth opposite their respective names are their true and
correct signatures.
Name Signature
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
-----------------------------------
[Title of Officer]
4/6/92
CASH MANAGEMENT FEE SCHEDULE
CHECKING ACCOUNT SERVICES FEE COMMENTS
------------------------- --- --------
Monthly Maintenance $ 50.00 Checking Account
Deposit Ticket 1.10 Cash Letter/Deposit
Deposit Item .15 Uncoded Cash Letter Item
Deposited Item Returned OCR 7.00 e.g. Cash Letter; OCR
Deposited Item Returned Other 10.00
Re-Deposit of Return Items 1.00
Dup Advice for Return Items 2.00
Check .17
Returned Check 15.00 Dram on BNY
Certified Check 10.00
Stop Payment 20.00 Written/Oral
Internal Debit .50
Internal Credit .50
Special Statement Handling - Dups 7.50 Special Cutoff e.g.
- Special Cutoff 20.00 Weekly and/or Duplicate
Excessive Encoded Rejects .25
??? Name/Check Copy 7.50
??? Item Photocopy 7.50
FDIC Insurance per FDIC schedule Based on Avg. Monthly
Ledger Bal (Current rate is
.195%)
Check Microfilm Copy (Each) 7.50
Foreign Collection Item (debit
from principal) 50.00 e.g. Drawn on Foreign Bank;
Domestic Note
Foreign Return Check 25.00 Over and above Collection
Item Charge
Microfilm (Reel or Cassette) 25.00 Paid checks; reports, etc.
Microfiche 5.00 Lock Box/reports, etc.
Data Transmission 25.00 Redemption Checks; Paid
Checks; OCR Detail; ACH
Files, etc.
SHAREHOLDER CHECK CLEARING SERVICES
-----------------------------------
OCR Lock Box Processing
-----------------------
- Monthly Maintenance 125.00 Each Post Office Box
- Lockbox Item .50
- Special Handling .00 Xxxxxxxxxx Remittance
Document and/or Multiple
Items
- Hardcopy Reports 420.00 Monthly charge
ACH Processing
--------------
Monthly Maintenance 125.00 Per Family of Funds
Debit/Credit Transaction .10 Incoming and/or outgoing
via Automated Clearing
House (Fed charges are
out-of-pocket expenses
Originating 2,501-10,000/mo .08
Returned Debit/Credit 15.00 1 - 15
8.00 16 - 30
4.00 31 and over
REDEMPTION CHECK PROESSING
--------------------------
- Check Item .18 Without Signature
Verification
- Tel Notification of Xx.Xx. 250.00/mo
Totals
- Check Item .50 Includes Signature
Verification, Pulls on
Customer Instruction and
File Maintenance
- Microfilm (Reel or Cassette) 25.00
- Fine Sort .03 Each Check
- Return check 15.00
- Return Check under Min. 15.00
- Forgery Coverage 500.00 Per Fund
.05 Per Check Paid
MONEY TRANSFERS
---------------
Automated Outgoing Fed Funds/CHIPS
- FAST Process 6.50
- Operator Intervention 8.00
Automated Book to Book
- FAST Process 6.00
- Operator Intervention 9.00
-2-
Incoming Fed Funds/CHIPS
- FAST Process 4.00 Current Fed Charges are
- Operator Intervention out-of-pocket expenses.
(for Fund A/C's) 7.50
For Omnibus Accounts 5.50
- Manual Inquires 50.00
Telephone Advice 5.00 Notify recipient for
outgoing wire. Notify sender
for incoming wire. Upon
request only.
ACCOUNT RECONCILIATION SERVICES
-------------------------------
Controlled Disbursement 95.00/month Per Account
-----------------------
Full Account Reconciliation
---------------------------
Monthly Maintenance 150.00/Acct. Assumes Mo. Cycle
Full ARP Paid Item with
Controlled Disbursement Includes Paid Check and
History
under 50,000 = .185
over 50,000 = .155
Full ARP Paid Item without Controlled
Disbursement Includes Paid Check and
History
under 50,000 = .205
over 50,000 = .175
Fine Sort .03
Partial Account Reconciliation
------------------------------
Monthly Maintenance 75.00/Acct. Assumes Mo. Cycle
Partial ARP Paid Item with
Controlled Disbursement Includes Paid Check and
History
under 50,000 = .175
over 50,000 = .145
Partial ARP Paid Item without Controlled Includes Paid Check and
Disbursement History
under 50,000 = .195
over 50,000 = .165
Fine Sort .03
Additional Tape Input 30.00 Optional
-3-
Check Warehousing .01/check Maximum Three Years
-----------------
DDA Zero Balance Service
------------------------
Monthly Maintenance 65.00
Internal Transfer .60
Paid Check .17 Without Full or Partial ARP
ELECTRONIC BANKING SERVICES
---------------------------
Balance Reporting Prior Day Information
-----------------
Per Access 4.50
Per Summary/Detail Field .30
Time Critical Reports
---------------------
Dynamic Report Intra-Day Balance/Detail
--------------
Per Access 3.00 Per Account
Per Item .25
Automatic Advice Same Day Wire Status
----------------
Per Month 167.00 Per Account
Per Item N.Y.C. = .75
Metropolitan N.Y. = .80
Eastern U.S.A. = 1.15
Western U.S.A. = 1.35
Mail Advice .50
Micro Cash Register
Software Maintenance
--------------------
Micro Cash Register
Installation 400.00 Per Installation
Per Customer ID 50.00 Per Month
Item Status Report Same Day Wire Status
------------------
Per Month 50.00 Per Family of Funds
Direct Financial Link NO CHARGE
---------------------
Direct Customer Inquiry NO CHARGE
-----------------------
ARP Inquiry
-----------
Per month 75.00 Per Family of Funds
Stop Payment 6.00 On-line stops
Connect Time .375 Per minute
-4-
EFT Inquiry (Totals)
--------------------
Per month 75.00 Per Family of Funds
Connect Time .375 Per minute
Draft Check Inquiry (Totals)
----------------------------
Per month 75.00 Per Family of Funds
Connect Time .375 Per minute
Zero Balance Inquiry 75.00 Per Family of Funds
-------------------- .375 Per Minute
Zero Balance Detail 75.00 Per Family of Funds
------------------- .375 Per Minute
Note: Out-of-pocket expenses resulting from the delivery of services, including
but not limited to, courier, stationary and supplies, research, Federal
Reserve surcharges, postage expenses, etc. will be charged in addition to
the above fees.
