CASH MANAGEMENT AND RELATED SERVICES AGREEMENT, dated as of 11/13/99
between each mutual fund and/or portfolio series of each mutual fund listed on
Schedule A hereto (each a "Fund", collectively the "Funds"), and The Bank of New
York (the "Bank").
WITNESSETH:
That in consideration of the mutual agreements and covenants herein
contained, the Bank and each Fund hereby agree as follows:
ARTICLE I
DEFINITIONS
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Whenever used in this Agreement, unless the context otherwise requires, the
following words shall have the meanings set forth below:
1. "ACCOUNT" shall mean an account in the name of a Fund or such Fund's
transfer agent for receiving and disbursing money as provided in this Agreement.
2. "ACCOUNT AVAILABLE BALANCE" shall mean with respect to an Account
for any given day during a calendar month a positive or negative dollar
amount equal to (A) if such day is a Business Day, the Account Available
Balance as of the close of the last preceding Business Day plus a positive or
negative dollar amount equal to the difference, if any, between the
Chargeable Credits with respect to such day and such Account and the
Chargeable Debits with respect to such day and such Account, and (B) if such
day is not a Business Day, the Account Available Balance as of close of the
last preceding Business Day, except that both (A) and (B) shall be reduced by
the United States Federal Reserve reserve requirements then applicable to the
Bank with respect to such Account. The Account Available Balance of an
Account shall be zero on the date immediately preceding the first date on
which an entry, consisting of either a Chargeable Credit or Chargeable Debit,
is first made to such Account hereunder.
3. "ACCESS" shall mean any on-line communication system provided by the
Bank hereunder whereby either the receiver of such communication is able to
verify by codes or otherwise with a reasonable degree of certainty the identity
of the sender of such communication, or the sender is required to provide a
password or other identification code.
4. "AUTHORIZED PERSON" shall mean either (A) any person duly authorized
by corporate resolutions of the board of directors or board of trustees of a
Fund (each, a "Board") 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.
5. "BUSINESS DAY" shall mean any day on which the Federal Reserve Bank
of New York is open for business, except for any such day on which the Bank is
required by law or regulation to be closed, or elects to be closed.
6. "CALENDAR MONTH EARNINGS CREDIT" shall mean with respect to an
Account for any calendar month the dollar amount, whether positive or negative,
equal to the sum of the Gross Calendar Month Earnings Credit with respect to
such Account for such calendar month and the Monthly Overdraft Charges with
respect to such Account for such calendar month.
7. "CHARGEABLE CREDITS" shall mean with respect to an Account for any
given day during a calendar month a positive amount of dollars equal to the sum,
if any, of (A) the aggregate dollar amount of Federal Funds credited to such
Account by the Bank in accordance with the then applicable availability schedule
of the Federal Reserve Bank of New York, and (B) the aggregate dollar amount of
Bank internal transfers of Federal Funds to such Account.
8. "CHARGEABLE DEBITS" shall mean with respect to an Account for any
given day during a calendar month a negative dollar amount equal to the sum, if
any, of (A) the aggregate dollar amount of Federal Funds relating to such
Account charged against the Bank by the Federal Reserve Bank of New York on or
as of such day, and (B) the aggregate dollar amount of drafts drawn on such
Account which are deposited in the Bank by customers of the Bank on such day, or
Bank internal transfers from, or charges to, such Account.
9. "DAILY EARNINGS" shall mean with respect to an Account for any day
during a calendar month a positive dollar amount equal to the product of (A) the
positive Account Available Balance, if any, of such Account for such day,
multiplied by (B) the Daily Earnings Rate for such day. The Daily Earnings with
respect to an Account for any day during a calendar month on which the Account
Available Balance of such Account is negative shall be zero.
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10. "DAILY EARNINGS RATE" shall mean for any day during a calendar month
one three hundred and sixty-fifth of the 91 day U.S. Treasury Xxxx discount rate
of the Monday auction first preceding such day (whether or not such day is a
Monday, and whether or not such Monday auction was in the immediately prior
month), as such Monday auction 91 day U.S. Treasury Xxxx discount rate is
reported in The Wall Street Journal.
11. "DAILY OVERDRAFT CHARGES" shall mean with respect to an Account for
any day during any calendar month a negative dollar amount equal to the product,
if any, of (A) the negative Account Available Balances, if any, with respect to
such Account for such day during such calendar month, multiplied by (B) the
Overdraft Rate.
12. "FEDERAL FUNDS" shall mean immediately available same day funds.
13. "GROSS CALENDAR MONTH EARNINGS CREDIT" shall mean with respect to an
Account for any calendar month a positive dollar amount equal to the aggregate
sum of the Daily Earnings of such Account for such calendar month.
14. "MONTHLY OVERDRAFT CHARGES" shall mean with respect to an Account for
any calendar month a negative dollar amount equal to the aggregate sum of the
Daily Overdraft Charges with respect to such Account for such calendar month
which have not been previously paid to the Bank by the Fund to which such
Account relates.
15. "OMNIBUS ACCOUNT" shall mean an account at the Bank for the benefit
of the Funds into which money (A) to be deposited into an Account is initially
credited pending its transfer to such Account pursuant to Article III hereof, or
(B) transferred from an Account pursuant to Article III is deposited pending its
disbursement pursuant to Article III.
16. "ORAL INSTRUCTIONS" shall mean verbal instructions actually received
by the Bank from an Authorized Person or from a person reasonably believed by
the Bank to be an Authorized Person.
17. "OVERDRAFT RATE" shall mean with respect to an Account for any
calendar day during any calendar month a rate equal to one three hundred and
sixtieth of the fed funds rate plus 1%.
18. "SHAREHOLDER" shall mean any record holder of any Shares, as
identified to the Bank from time to time pursuant to this Agreement.
19. "SHARES" shall mean all or any part of each class of the shares of
capital stock, beneficial interest, or limited partnership interest of a Fund,
as the case may be, which are authorized and/or issued from time to time.
20. "WRITTEN INSTRUCTIONS" shall mean written instructions actually
received by the Bank from an Authorized Person or from a person reasonably
believed by the Bank to be an Authorized Person by letter, memorandum, telegram,
cable, telex, 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 Schedule I attached hereto and made a part
hereof (as such Schedule may be amended or supplemented from time to time by
mutual agreement) which are selected by the Funds from time to time. The Bank
hereby accepts appointment as such agent for each Fund and agrees to establish
and maintain one or more Accounts and/or Omnibus Accounts as the parties shall
determine are necessary to receive and disburse money as provided in this
Agreement.
2. REPRESENTATIONS AND WARRANTIES. 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
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(c) It is conducting its business in compliance with all applicable laws
and regulations, both state and federal, and has obtained all regulatory
licenses, approvals and consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order or judgment binding on
it and no provision of its charter or by-laws, nor of any mortgage, indenture,
credit agreement or other contract binding on it or affecting its property which
would prohibit its execution or performance of this Agreement.
3. BOARD RESOLUTIONS. Each Fund shall provide the Bank with a certified
copy of a resolution of its Board appointing the Bank as its agent to act
hereunder and providing for the creation of such Fund's Account(s), the
utilization by such Fund of one or more Omnibus Accounts 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 or such Fund's utilization of an Omnibus Account.
ARTICLE III
CASH MANAGEMENT SERVICES
------------------------
1. RECEIPT OF MONEY. The Bank shall receive money for credit to an
Account only:
(i) by personal presentment of drafts by a Fund, but not by a Shareholder
of such Fund, at the branch or branches in Manhattan identified from
time to time by the Bank to such Fund, provided such presentment is
in accordance with the time frames specified by the Bank to such
Fund;
(ii) by mailing of drafts to a post office box designated by the Bank for
such purpose, provided such drafts are accompanied by a properly
completed investment stub;
(iii) by wire transfer to an account maintained at the Federal Reserve Bank
of New York as identified in writing by the Bank to a Fund;
(iv) by transfer to an account identified in writing by the Bank to a Fund
through the New York Automated Clearing House;
(v) by transfer from another Account maintained by such Fund with the
Bank under this Agreement;
(vi) by transfer from another account maintained by such Fund with the
Bank, including such Fund's the Bank account under its Custody
Agreement with the Bank as The Bank; or
(vii) by transfer from any other account maintained with the Bank.
All money received by the Bank shall be credited upon receipt, but subject to
final payment and receipt by the Bank of immediately available funds, and
receipt by the Bank of such forms, documents and information as are required by
the Bank from time to time and received in the appropriate time frames. If an
Omnibus Account has been established for the Funds, such money shall be
initially credited to the Omnibus Account pending its allocation to, and deposit
in, an Account. The Bank shall be entitled to reverse any credits previously
made to a Fund's Account or an Omnibus Account where money is not finally
collected or where a credit to such account was in error.
2. DISBURSEMENT OF MONEY. The Bank shall disburse money credited to an
Account only:
(i) pursuant to Written Instructions of such Fund transmitted through
ACCESS (except as otherwise provided in Article V, Section 7 hereof),
to transfer funds as directed by such Fund (including transfers
through the Federal Reserve Bank of New York transfer wire and the
New York Automated Clearing House);
(ii) in payment of drafts drawn by an Authorized Person or Shareholder (as
appropriate for the particular Account), subject to the terms hereof;
or
(iii) in payment of charges to such Account representing amounts payable to
the Bank, and chargeable against such Account, as provided in this
Agreement.
The Bank shall be required to disburse money in accordance with the foregoing
only insofar as such money is immediately available and on deposit with the
Bank. If an Omnibus Account has been established for the Funds, such money shall
be credited to the Omnibus Account pending such disbursement. All instructions
directing the disbursement of money credited to an Account or Omnibus Account
under this Agreement (whether through ACCESS or by Oral Instructions pursuant to
Article V hereof) must identify an account to which such money shall be
transferred, and include all other information reasonably required by the Bank
from time to time. It is understood and agreed that with respect to any such
instructions, when instructed to credit or pay a party by both
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name and a unique numeric or alpha-numeric identifier (E.G., ABA number or
account number), the Bank and any other financial institution participating in
the funds transfer may rely solely on the unique identifier, even if it
identifies a party different than the party named. Such reliance on a unique
identifier shall apply to beneficiaries named in such instructions as well as
any financial institution which is designated in such instruction to act as an
intermediary in a funds transfer.
3. REDEMPTION DRAFTS: SHAREHOLDER INFORMATION. (a) 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 prior notice of any changes to the form or substance of
redemption drafts required by the Bank, provided that if such change is
required by applicable rules or procedures of the Federal Reserve or any
clearinghouse through which such drafts may be presented, the Bank may give
less than sixty (60) days prior notice of such change.
(b) Each Fund will promptly furnish to the Bank (i) the name, mailing
address and telephone number of each Shareholder of such Fund, and (ii) specimen
signatures for all individuals authorized to draw redemption drafts (whether on
their own behalf or on behalf of third parties). Each Fund will promptly advise
the Bank of individuals no longer authorized to draw redemption drafts, and
those individuals newly authorized. Such information shall be provided to the
Bank in a mutually agreed upon format.
4. REDEMPTION DRAFT RETURNS. A Fund may give the Bank Oral or Written
Instructions from time to time to return unpaid redemption drafts of the Fund to
the presenting financial institution for any reason, and the Bank shall use
reasonable efforts to comply with such Oral or Written Instructions provided
that such compliance would not prejudice or impair any rights or privileges of
the Bank under prevailing draft return procedures and would not be contrary to
prevailing industry rules, procedures, customs or practices. Notwithstanding the
foregoing, or any other provision in this Agreement or Schedule I 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
ADVANCES, OVERDRAFTS OR INDEBTEDNESS
------------------------------------
1. If the Bank in its sole discretion advances funds, or if there shall
arise for whatever reason an overdraft or other indebtedness in connection with
any Account or Omnibus Account, such advance, overdraft or indebtedness shall be
deemed a loan made by the Bank to the Fund to which the Account relates, or in
the case of an Omnibus Account, to which such advance, overdraft or indebtedness
relates, payable on demand and bearing interest from the date incurred at the
Overdraft Rate, such Overdraft Rate to be adjusted on the effective date of any
change in the fed funds rate constituting a part thereof. In the event of any
advance, overdraft or other indebtedness in connection with an Omnibus Account,
the Bank shall be furnished promptly (and in any event by 12:00 p.m. on the next
Business Day after such advance, overdraft or indebtedness) with Written
Instructions identifying each Fund to which such advance, overdraft or
indebtedness relates, and the amount allocable to such Fund(s).
2. Each Fund hereby agrees with respect to its Account(s), any Omnibus
Account(s) and any advances, overdrafts or other indebtedness that the Bank
shall have a continuing lien and security interest in and to any property at any
time held by it for the benefit of 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 The Bank under the Fund's Custody Agreement with the Bank. Each Fund
authorizes the Bank, in its sole discretion, at any time to charge any advance,
overdraft or indebtedness together with interest due thereon at the Overdraft
Rate against any balance of accounts standing to the Fund's credit on the books
of the Bank, including those books maintained by the Bank in its capacity as The
Bank for the Fund under its Custody Agreement with the Fund.
3. Each Fund agrees that upon allocation of all advances, overdrafts or
indebtedness to its account pursuant to paragraph 1 above, its total borrowings
from all sources (including the Bank) shall be in conformity with the
requirements and limitations set forth in the Investment Company Act of 1940, as
amended, and the Fund's Prospectus. Each Fund shall promptly (and in any event
within one Business Day) notify the Bank in writing whenever it fails to comply
with any of the foregoing requirements.
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 and Omnibus 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.
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2. PERMITTED USE; PROPRIETARY INFORMATION; EQUIPMENT. (a) Upon delivery
to a Fund of software enabling such Fund to utilize ACCESS (the "Software"), the
Bank grants to the Fund a personal, nontransferable and nonexclusive license to
use the Software solely for the purpose of transmitting Written Instructions,
receiving reports, making inquiries or otherwise communicating with the Bank in
connection with the Account(s) or the Omnibus Account. Each Fund shall use
the Software 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 any Fund with respect to the Software. Each Fund
acknowledges that the Bank and its suppliers retain and have title and exclusive
proprietary rights to the Software, 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. Each Fund further
acknowledges that all or a part of the Software may be copyrighted or
trademarked (or a registration or claim made therefor) by the Bank or its
suppliers. No Fund shall take any action with respect to the Software
inconsistent with the foregoing acknowledgments, nor shall any Fund attempt to
decompile, reverse engineer or modify the Software. No Fund may copy, sell,
lease or provide, directly or indirectly, any of the Software or any portion
thereof to any other person or entity without the Bank's prior written consent.
No Fund may remove any statutory copyright notice or other notice included in
the Software or on any media containing the Software. Each Fund 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 the Bank's
request.
(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 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) 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.
(d) 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. MODIFICATIONS. The Bank reserves the right to modify ACCESS or the
Software from time to time without notice to any Fund. Each Fund agrees not to
modify or attempt to modify ACCESS or the Software without the Bank's prior
written consent. Each Fund acknowledges that ACCESS and the Software are the
property of the Bank and, accordingly, each Fund agrees that any modifications
to ACCESS or the Software, 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. The Bank and its manufacturers and
suppliers make no 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, in connection with any Fund's use of ACCESS or the
Software.
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, and agrees that the security procedures to be followed in connection
with the Fund's transmission of Written Instructions through ACCESS provide to
it a commercially reasonable degree of protection in light of its particular
needs and circumstances.
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).
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(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, or failure to transfer, funds not 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.
(e) The Bank shall acknowledge through ACCESS its receipt of each Written
Instruction communicated through ACCESS, and in the absence of such
acknowledgement the Bank shall not be liable for any failure to act in
accordance with such Written Instruction and the Funds may not claim that such
Written Instruction was received by the Bank.
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 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
is 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 Bank's liability for its
negligence in executing or failing to execute any such Oral Instructions shall
be determined by reference to Section 6(b) of this Article.
(c) The Bank reserves the right to suspend acceptance of Oral
Instructions pursuant to this Section 7 if conditions exist which the Bank, in
its sole discretion, believes have created an unacceptable security risk.
8. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY UNITED
STATES LAW. EACH FUND AGREES THAT IT WILL NOT UNDER ANY CIRCUMSTANCES RESELL,
DIVERT, TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY FORM)
IN OR TO ANY OTHER COUNTRY. IF THE BANK DELIVERED THE SOFTWARE TO ANY FUND
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. Each Fund hereby authorizes the Bank to report its name
and address to government agencies to which the Bank is required to provide such
information by law.
9. ENCRYPTION. Each Fund acknowledges and agrees that encryption may not
be available for every communication through ACCESS, or for all data. Each Fund
agrees that The Bank may deactivate any encryption features at any time, without
notice or liability to any Fund, for the purpose of maintaining, repairing or
troubleshooting ACCESS or the Software.
ARTICLE VI
CONCERNING THE BANK
-------------------
1. STANDARD OF CARE: PRESENTMENT OF CLAIMS. Except as otherwise provided
herein, the Bank shall not be liable for any costs, expenses, damages,
liabilities or claims (including attorney's fees) incurred by a Fund, except
those costs, expenses, damages, liabilities or claims arising out of the Bank's
own negligence, bad faith or willful misconduct. Notwithstanding the foregoing
or
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anything contained in Schedule I 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 reasonable 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. Notwithstanding
any other provision elsewhere contained in this Agreement, 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 attorney's fees and expenses, which
the Bank may sustain or incur or which may be asserted against the Bank by
reason of or as a result of any action taken or omitted by the Bank in
connection with its performance under this Agreement, except those costs,
expenses, damages, liabilities or claims arising out of the Bank's own
negligence, bad faith or wilful misconduct. This indemnity shall be a
continuing obligation of each Fund notwithstanding the termination of this
Agreement, any Account or Omnibus Account with respect to a Fund.
4. NO OBLIGATION TO INQUIRE. Without limiting the generality of the
foregoing, the Bank shall in no event be under any obligation to inquire into,
and shall not be liable for:
(a) the due authority of any Authorized Person acting on behalf of a Fund
in connection with this Agreement;
(b) the genuineness of any drawer signature on any draft deposited in any
Account or Omnibus Account, or whether such signature is a forgery, other than
the signature of the drawer of any draft drawn on the Bank;
(c) the existence or genuineness of any endorsement or any marking
purporting to be an endorsement on any draft deposited in any Account or Omnibus
Account, or whether such endorsement or marking is a forgery, 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 or Omnibus
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;
(e) any discrepancy between the written amount for which any draft is
drawn and the Magnetic Incription Character Recognition ("MICR") code enscribed
thereon by any bank other than the Bank on any draft presented, provided the
Bank has acted in accordance with the MICR code;
(f) any disbursement directed by a Fund, regardless of the purpose
therefor;
(g) any determination of the Share balance of any Shareholder whose name
is signed on any redemption draft;
(h) any determination of length of time any Shares have been owned by any
Shareholder or the method of payment utilized to purchase such Shares by such
Shareholder;
(i) any claims, liens, attachments, stays or stop payment orders with
respect to any Shares, proceeds, or money, other than a stop payment order
placed by a Fund on a draft drawn by such Fund on its Account or an Omnibus
Account;
(j) the propriety and/or legality of any transaction in any Account or
Omnibus Account;
(k) the lack of authority of any person signing as a drawer of a draft,
provided such person and his specimen signature is specified in the certificate
of authorized signatures last received by the Bank; or
(l) whether any redemption draft equals or exceeds any minimum amount.
5. RELIANCE UPON INSTRUCTIONS. The Bank shall be entitled to rely upon
any Written or Oral Instructions received by the Bank. 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 close
of business of the same day that such Oral Instructions are given to the
-8-
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 transactions
previously authorized.
6. FORCE MAJEURE. The Bank shall not be responsible or liable for any
failure or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
control, including acts of God; earthquakes; fires; floods; wars; civil or
military disturbances; sabotage; epidemics; riots; interruptions, loss or
malfunctions of utilities, computers (hardware or software), transportation, or
communications service; mechanical breakdowns; interruption or loss of ACCESS
(except as otherwise provided in Section 7 of Article V); accidents; acts of
civil or military authority; governmental actions; labor disputes; or inability
to obtain labor, material equipment or transportation.
7. NO IMPLIED DUTIES; PERFORMANCE ACCORDING TO APPLICABLE LAW. The Bank
shall have no duties or responsibilities except such duties and responsibilities
as are specifically set forth in this Agreement and Schedule I hereto, and no
covenant or obligation shall be implied 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 hereunder, and
the Bank shall not be liable for any action taken or permitted by it in good
faith in accordance with such Oral or Written Instructions. Such application
for Oral or Written Instructions may, at the option of the Bank, set forth in
writing any action proposed to be taken or omitted by the Bank with respect
to its duties or obligations hereunder and the date on or after which such
action shall be taken, and the Bank shall not be liable for any action taken
or omitted in accordance with a proposal included in any such application on
or after the date specified therein (which shall be at least 5 days after the
date of 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 (at its
own expense), and shall be fully protected with respect to anything done or
omitted by it in good faith in conformity with such advice or opinion.
9. DELEGATION OF DUTIES. The Bank may delegate any of its duties and
obligations hereunder to any delegee and may employ agents or attorneys-in-fact;
provided however, that no such delegation or employment by the Bank shall
discharge the Bank from its obligations hereunder. The Bank shall have no
liability or responsibility whatsoever if any delegee, agent or attorney-in-fact
shall have been selected or approved by 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 Schedule 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. The Bank may, and is hereby authorized by each Fund,
to charge such amounts to an Omnibus Account or the appropriate Fund's
Account(s), but only if such amounts remain unpaid for 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.
-9-
ARTICLE VII
TERMINATION
-----------
1. 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 60 days after the
date of the giving of such notice. Notwithstanding the foregoing, the Bank
reserves the right to terminate this Agreement (a) at any time upon 30 days
prior written notice if the condition precedent set forth in Article II,
paragraph 3 is unfulfilled, and (b) upon notice if a Fund either (i) fails to
comply with Article IV, Section 3, or (ii) borrows funds from the Bank in an
amount exceeding the Bank's legal lending limit.
2. OBLIGATIONS UPON TERMINATION. Upon termination, the Bank's sole
obligations, which shall arise only after, and not before, each Fund which is
the subject of such termination has paid to the Bank all out-of-pocket expenses,
fees, compensation, negative Calendar Month Earnings Credits and other amounts
owed by such Fund to the Bank, shall be (i) to deliver to the affected Fund(s)
such records, if any, as may be owned by such Fund(s), in the form and manner
kept by the Bank on such date of termination, and (ii) to pay to the affected
Fund(s) any monies held for their account hereunder.
ARTICLE VIII
MISCELLANEOUS
1. CERTIFICATES OF AUTHORIZED PERSONS. 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, Xxx Xxxx, Xxx Xxxx 00000, ATTENTION: Division Manager - Mutual Funds, or
at such other place as the Bank may from time to time designate in writing.
(b) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to a Fund shall be sufficiently given if addressed to
a Fund and received by it at 0000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
Xxxxxxxx 00000, 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 Schedule I hereto,
authorized or approved by a resolution of each Fund's Board.
6. HEADINGS. The headings in this Agreement are inserted for convenience
and identification only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provisions
hereof.
7. APPLICABLE LAW; CONSENT TO JURISDICTION; JURY TRIAL WAIVER. This
Agreement shall be construed in accordance with the laws of the State of New
York without giving effect to conflict of laws principles thereof. Each party
hereby consents to the jurisdiction of a state or federal court situated in New
York City, New York in connection with any dispute arising hereunder and hereby
waives its right to trial by jury.
8. NO THIRD PARTY BENEFICIARIES. The provisions of this Agreement are
intended to benefit only the Bank and each Fund and their respective permitted
successors and assigns, and no right shall be granted to any other person by
virtue of this Agreement.
-10-
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.
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 no Fund shall be liable for any amount
owing by another Fund and that the Funds have executed one instrument for
convenience only.
12. YEAR 2000. Each Fund and the Bank hereby warrants to the other that
it will use commercially reasonable efforts to ensure that the computer software
and hardware systems ("Systems") that are owned by it and used by it to provide
services to its clients ("Services") are 2000 Compliant or will be made 2000
Compliant before December 31, 1999. With respect to software that the Bank or a
Fund licenses from third parties and uses in providing Services ("Third Party
Software"), if the Bank or a Fund cannot certify any Third Party Software as
2000 Compliant, the Bank or such Fund, as the case may be, will use commercially
reasonable efforts to replace such Third Party Software with software that is
warranted or certified by its vendor as 2000 Compliant, if such replacement is
available, compatible with the Bank's or such Fund's Systems (as the case may
be) and deemed by the Bank or such Fund as appropriate under the circumstances.
In the event that the Bank or a Fund uses third party service providers to
provide Services or any portion thereof, ("Third Party Services"), the Bank and
such Fund each warrants to the other that it has in place a program under which
it will use commercially reasonable efforts to contact such service providers
and obtain from them assurances that the Systems that they use in providing
Services are 2000 Compliant. As used herein, the term "2000 Compliant" means
that the Systems will function without material error caused by introduction of
dates falling on or after January 1, 2000. Notwithstanding the foregoing, the
parties hereto acknowledge and agree that the Bank and each Fund cannot and does
not warrant that the Systems, Third Party Software or Third Party Services used
by it will continue to interface with the hardware, firmware, software
(including operating systems), records or data used by the other party or third
parties, nor does the Bank or any Fund make any warranties hereunder with
respect to any public utility, communications service provider, correspondent
bank, securities depository, securities or commodities exchange, or funds
transfer network.
13. A copy of the Declaration of Trust of each Fund organized as a trust
is on file with the Secretary of The Commonwealth of Massachusetts, and notice
is hereby given that this instrument is executed on behalf of the Board of
Trustees of each such Fund as Trustees and not individually and that the
obligations of this instrument are not binding upon any of the Trustees or
shareholders individually, but are binding only upon the assets and property of
such Fund; provided however, that the Declaration of Trust of each Fund provides
that the assets of a particular Fund shall under no circumstances be charged
with liabilities attributable to any other Fund and that all persons extending
credit to, or contracting with or having any claim against a particular Fund
shall look only to the assets of that particular Fund for payment of such
credit, contract or claim.
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/ Xxxxxxxx X. Xxxxxx
--------------------------------------
on behalf of each Fund identified
on Schedule A attached hereto
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Title: XXXXX X. XXXXX, VP
SCHEDULE A
NAME OF FUND
Xxx Xxxxx 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][Board of Trustees) of the Fund in conformity with the Fund's
[Articles of Incorporation][Declaration of Trust] and By-Laws to 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
Xxxx Xxxxxx /s/ Xxxx Xxxxxx
------------------------ -----------------------
Xxxxx XxXxxxxx /s/ Xxxxx XxXxxxxx
------------------------ -----------------------
Xxxx Xxxxxxxxx /s/ Xxxx Xxxxxxxxx
------------------------ -----------------------
Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
------------------------ -----------------------
Xxxx Xxxx /s/ Xxxx Xxxx
------------------------ -----------------------
/s/ Xxxxxxxx X. Xxxxxx
----------------------
[Title of Officer]
Asst. Sec.
THE TUSCARORA INVESTMENT TRUST
ASSISTANT SECRETARY CERTIFICATE
I, Xxxxxxxx X. Xxxxxx, hereby certify that I am a duly elected and acting
Assistant Secretary of The Tuscarora Investment Trust, a Massachusetts business
trust (the "Trust"), and further certify that the following resolutions were
adopted by the Board of Trustees of the Trust at a meeting duly held on November
2, 1999, at which a quorum was at all times present and that such resolutions
have not been modified or rescinded and remain in full force and effect as of
the date hereof.
RESOLVED, that the form of Bank of New York ("BONY") Cash Management
and Related Services Agreement (the "Agreement") presented to this meeting
by and between the Trust and BONY be, and it hereby is, approved, subject
to such changes in terms and form as may be approved by the officer or
officers executing the same on behalf of the Trust, such execution to
constitute conclusive evidence of such approval.
FURTHER RESOLVED, that in conformity with the Declaration of Trust and
By-Laws of the Trust, the following persons be, and they hereby are,
authorized to give Oral Instructions and Written Instructions (as such
terms are defined in the Agreement) on behalf of the Trust for purpose of
the Agreement.
AUTHORIZED PERSONS
Xxxx Xxxxxx Xxxxx XxXxxxxx
Xxxx Xxxxxxxxx Xxx Xxxxxxx
Xxxx Xxxx Xxxxxx X. Xxxxxxx, III
Xxxxx X. Xxxx, Xx. Xxxxxxxx X. Xxxxxx
FURTHER RESOLVED, that the appropriate officers of the Trust be, and
each of them hereby is, authorized in the name and on behalf of the Trust
to do all such further acts, including establishing one or more accounts
with BONY, and to execute and deliver all such instruments and documents as
may be necessary or, in the opinion of the officer or officers acting,
desirable and proper to carry into effect the purposes of the foregoing
resolutions and to effect the performance by the Trust of its obligations
under the Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand, as of the 17th day of
November, 1999.
/s/ Xxxxxxxx X. Xxxxxx
------------------------------
Xxxxxxxx X. Xxxxxx
Assistant Secretary
SCHEDULE I
CASH MANAGEMENT SERVICES
I. DRAFT DEPOSITS
a) LOCK BOX
- Mail pick-ups will be made several times a day from designated
P.O. Boxes.
- Upon receipt by the OCR Processing Department, all payments will
be processed by reading optical character recognition (OCR)
information printed on the remittance document. The payment
amount will be based on the draft(s) accompanying the document.
- The Bank will microfilm investment drafts daily and forward
original remittance stubs grouped by batch as instructed by the
Fund. Film research on payment drafts will be handled by the
Bank. The Bank will respond in two business days.
- The Bank will endorse and microfilm drafts received through a
mutually agreed upon cut-off time and transmit a daily file of
the items processed at a mutually agreed upon time via access.
Each transmission will include for each transaction, the fund
code, account number, batch control number and investment amount.
The Bank will allow up to two blocking sorts to be defined by the
Fund and agreed on by the Bank. (The transmitted file will be
retained by the Bank for 5 business days).
b) OCR SPECIAL HANDLING ITEMS
- In the absence of a machine readable remittance stub, the Bank
will create a substitute document if the investor's fund code and
account number is written on the face of the draft.
- Multiple drafts with one remittance stub will be processed
provided the amount stated on the remittance document proves to
the sum of the drafts. If an amount is not indicated, the payment
will be processed based on the total of the drafts. The longest
hold period will govern the blocking indicator.
SCHEDULE I
CASH MANAGEMENT SERVICES
One draft with multiple remittance stubs will be processed
provided amounts are stated on the stubs and they prove in the
aggregate.
Multiple drafts and/or multiple stubs not in proof will be
forwarded no later than the end of the next business day by
overnight courier as directed by the for disposition.
- Any drafts received below the minimum acceptance amount will be
forwarded no later than close of business on the next business
day by overnight courier as directed by the Fund for disposition.
- Any drafts received by the Bank for investment which cannot
reasonably be processed will be forwarded no later than close of
business on the next business day by overnight courier as
directed by the Fund for disposition.
- Except for drafts drawn on Canadian banks in U.S. dollars (which
shall be processed), drafts drawn on other foreign banks in U.S.
dollars will be forwarded to the Bank's foreign collection
department for remittance. Drafts not drawn in U.S. dollars,
including Canadian banks, will be forwarded no later than the end
of the next business day as directed by the Fund by overnight
courier for disposition.
- Correspondence accompanying any investment will be forwarded
unread as directed by the Fund with an indication "Payment in
Process". The payment will be processed according to the
accompanying stub. If no stub is included, the Bank will use
reasonable efforts to invest the draft.
c) DEPOSITS
- The Bank will accept deposits of encoded and unencoded items
(batched separately) at mutually agreed upon intervals.
- The Bank will notify the Fund of any discrepancies between the
deposit total and the amount written on the deposit slip. The
deposit will be posted for the amount equal to the drafts.
d) RETURN ON DEPOSITS
- The Bank will forward return items as directed by the Fund by
overnight courier no later than the closed on the next business
day.
SCHEDULE I
CASH MANAGEMENT SERVICES
II. REDEMPTION DRAFTS
- The Bank will provide, interim notifications by Fund, of the
aggregate dollar amount of drafts received by the Bank up to the
time of notification with a final notification by approximately
2:00 P.M. New York time via access.
- The Bank will send as directed by the Fund an electronic
transmission(s) via access containing the fund code, account
number, amount, draft number and microfilm reference number for
drafts presented that day by approximately 3:00 P.M. on each
business day. The Bank will also send no later than the end of
the next business day by overnight courier a hard copy report
reflecting the data previously sent by electronic transmission as
directed by the Fund.
- The Bank will provide a microfilmed copy of all paid redemptions
drafts.
- The Bank will verify signatures to a file maintained and updated
and made available on-line by the Fund to the Bank or a file
maintained by the Bank and updated by the Fund. At its
discretion, the Bank will return unpaid any draft if it believes
the signature of drawer is invalid, as well as, unsigned drafts.
Any person authorized by the Fund may review these items and
override the Bank's decision by providing an authorization to pay
a draft at a mutually agreed upon cut-off time.
- The Bank will return redemption drafts provided written
instructions are received from an authorized person at a mutually
agreed upon cut-off time. The reason for the return must be
included with such instructions.
- The Bank will either warehouse or forward paid redemption drafts
sorted upon request as directed by the Fund for disposition.
SCHEDULE I
CASH MANAGEMENT SERVICES
III. INCOMING FED WIRES
- The Bank will post all incoming Funds Transfer transactions when
the complete Demand Deposit Account is provided on the wire.
- The Bank will use reasonable efforts to apply incoming Funds
Transfer transactions when only the name of the Fund is provided
on the wire.
IV. OUTGOING FED WIRES
- The Bank will send all wires with respect to which instructions
are received via access by 4:00 P.M. each Bank business day by
the close of business that day.
- The Bank will send all wires with respect to which instructions
are received and confirmed via the funds Transfer Call Back
Security Procedure by 4:00 each Bank business day, by the close
of business that day.
V. DRAFTS DRAWN BY THE FUND
a) ARP
- The Bank will provide the Transfer Agent with full or with
partial reconciliation and, if requested, on-line inquiry
capability via access.
- The Fund will arrange for transmission via access of an automated
drafts issued file to the Bank daily, weekly or monthly in the
Bank's format, if the Fund selects the Bank's full reconciliation
package.
- The Bank will provide daily/monthly transmissions via access for
updates on paid items.
b) STOP PAYMENT (EXCLUDING REDEMPTION DRAFTS)
- The Bank will accept written stop payment requests on drafts
issued by the Fund, and maintain appropriate stop payment files
in accordance with applicable regulations and banking practices.
c) WAREHOUSING
- The Bank will warehouse paid drafts up to seven years as directed
by the Fund.
SCHEDULE I
CASH MANAGEMENT SERVICES
VII. ACH PROCESSING
a) PRE-NOTIFICATION
- The Bank will accept pre-notifications via access in ACH format
to be forwarded pursuant to ACH processing guidelines.
b) ACH RECEIVES
- The Bank will post ACH items received via access in good order to
the account for each Fund on settlement day. Details will be
transmitted or displayed via access.
c) ACH ORIGINATED
- Upon receipt via access of properly formatted ACH files by
5:30 P.M. the Bank will process ACH items by applicable NYACH
deadlines for next day settlement and post the appropriate Fund
account on settlement day.
d) ACH REVERSALS
- ACH reversal items will be transmitted via access and the Bank
will debit/credit the appropriate Fund account on settlement day.
e) ACH RETURNS AND NOTIFICATION OF CHANGES
- The Bank will forward ACH returns and notification of charges as
directed by the Fund no later than the end of the next business
day after settlement.
SCHEDULE I
CASH MANAGEMENT SERVICES
IX. REPORTING SERVICES VIA ACCESS
a) BALANCE REPORTING
- The Bank will provide access to reports of prior business day
balances and information on total credits and total debits by
type of transaction. The service will be available on each
business day and is currently available at 8:00 A.M. however,
such time may be amended from time-to-time by the Bank.
- The detail report will provide information on the individual
debits and credits.
b) DYNAMIC INFORMATION REPORTING
- The Bank will provide access to an on-line, real time database
containing intra-day balance information. The detail report can
provide selected key information or full text, about each wire
transfer, debit and credit, as they are processed. The service
will be available on each business day and is currently available
from 7:00 A.M. to 10:00 P.M., New York time, however, such time
may be amended from time-to-time by the Bank.
c) AUTOMATIC ADVICE
- The Bank will provide via access the full text on all incoming
and outgoing transfers, through a dedicated and self-activating
high-speed terminal printer located at any site requested by the
Fund.
d) ITEM STATUS REPORT
- The Bank will provide via access a report which reflects the
current status of wire transfer payments sent through the Banks
micro/CA$H Register system. Three business days of history can
also be provided.
e) DIRECT CUSTOMER INQUIRY
- The Bank will provide direct on-line access to a history file to
retrieve the detail of incoming and outgoing wire transfers that
occurred during the most recent three month period. Different
search criteria may be used, e.g. transaction reference number,
account/amount date.
SCHEDULE III
FUNDS TRANSFER CALL BACK SECURITY PROCEDURE
I. INITIATING AND CONFIRMING FUNDS TRANSFERS INSTRUCTIONS
- The Fund caller will state his or her name and confidential
identification number.
- BNY will determine whether the Fund caller is authorized to give Funds
Transfer instructions, by reference to Schedule III-A hereto.
- If the Fund caller is authorized, BNY will telephone a Fund
individual, who is listed on Schedule III-A as a person authorized, to
confirm instructions.
- BNY will ask for the person's code. If correct, BNY will confirm the
instructions.
- Once confirmed, instructions cannot be revoked or amended unless
received in a subsequent confirmed instructions. BNY will attempt to
execute subsequent confirmed instructions, if practical under the
circumstances, but with no obligation to do so.
II. INSTRUCTIONS
- To avoid duplication, the Fund should not send written confirmations
of telephone instructions to BNY. If written instructions are
received, BNY will not be responsible for losses incurred as a result
of duplication.
- Charges or additions to Schedule III-A can only be made by written
instructions from a person believed by BNY to be an authorized officer
of the Fund.
- Deletions of any persona identified on Schedule III-A can be
telephoned into the manager of Funds Transfer. BNY will tape record
the conversion. The telephone call must be promptly confirmed in
writing by the Fund.
SCHEDULE III
FUNDS TRANSFER CALL BACK SECURITY PROCEDURE
III. RESPONSIBILITY
- BNY will change the authenticating codes periodically.
- New codes cannot be used until an Acknowledgement Form, signed by an
authorized officer of the Fund, is returned and received by BNY.
- The Fund is responsible to safeguard the confidentiality of the
assigned numbers and codes provided by BNY, and BNY shall not be
liable for any loss arising from any unauthorized use.
- BNY will request the assigned number, code and name. BNY will
verify the information given, however, BNY cannot verify the
identity of the caller, nor can BNY detect any errors contained in
the instructions.
SCHEDULE III-A
FUNDS TRANSFER TELEPHONE INSTRUCTIONS
AUTHORIZATION - CALL BACK SERVICE
TO: The Bank of new York
Funds Transfer Division
Xxxxx #0, Xxx 000
Xxxxxxx Xxxx
Xxxxxxxx, X.X. 00000
Attention: Manager Domestic Department
FROM: Company Name:
-----------------------
Attn:
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Address:
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The following individuals are authorized to Initiate (I), Call Back (C),
Initiate "and" Confirm (B), or Initiate "or" Confirm (E) funds transfer
instructions by telephone. Dollar Amount Limits are also indicated, along with
each individual's "Primary" Telephone Number:
PRIMARY SECURITY LEVEL DOLLAR
NAME TEL. NO. (L)(C)(B)(E) LIMIT
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"Contingency" Telephone Numbers are Listed Below:
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THE BANK OF NEW YORK
"AUTHORIZED DEBIT ACCOUNTS"
FOR FUNDS TRANSFER TELEPHONE SERVICE
ACCOUNT NUMBER ACCOUNT NAME
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NOTE:
Please Type. Strike through lines not used.
We hereby authorize The Bank of New York to accept, confirm, and execute Funds
Transfer instructions from the person(s) listed on the authorization form
pursuant to an in accordance with the terms and conditions attached, dated
11/14/91. This authorization replaces and supersedes all prior authorizations
and will remain in effect until revoked or amended in writing.
Dated: Corporate/Customer
Name: Name of Signer:
Effective when accepted and
implemented by
The Bank of New York
Funds Transfer Division
By:
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Xxxxx #0, Xxx 000
Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
