Exhibit (h)(2)
FUNDS TRANSFER AGREEMENT, dated as of May 18, 2005 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
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 one or more Funds or
in the name of the transfer agent for such Funds for the purpose of 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. "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.
16. "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%.
17. "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 funds transfer
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). The Bank hereby accepts appointment as such agent for each
Fund and agrees to establish and maintain one or more 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; and
(c) It is conducting its business in compliance with all applicable laws
and regulations, both state and federal, and has obtained all regulatory
licenses, approvals and consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order or judgment binding on
it and no provision of its charter or by-laws, nor of any mortgage, indenture,
credit agreement or other contract binding on it or affecting its property which
would prohibit its execution or performance of this Agreement.
3. Board Resolutions. 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 and utilization of an 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
the Account for the Fund(s).
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ARTICLE III
FUNDS TRANSFER SERVICES
1. Receipt of Money. The Bank shall receive money for credit to an
Account only:
(i) 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;
(ii) by transfer to an account identified in writing by the Bank to a
Fund through the New York Automated Clearing House;
(iii) by transfer from another Account maintained by such Fund with the
Bank under this Agreement;
(iv) by transfer from another account maintained by such Fund with the
Bank, including such Fund's custodian account under its Custody
Agreement with the Bank as Custodian; or
(v) 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 the 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); or
(ii) 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.
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, such advance, overdraft or indebtedness shall be deemed a loan made
by the Bank to the Fund 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. With respect to any
Account maintained for the benefit of more than one Fund, 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. In order to secure repayment of each Fund's indebtedness to the Bank
hereunder, each Fund hereby agrees 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 advance, overdraft or indebtedness together with
interest due thereon at the Overdraft Rate against any balance of
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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.
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 the Account(s). 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; 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). 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.
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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 (if any) 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).
(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.
(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.
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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 further agrees that Bank may deactivate any encryption features at any
time, without notice or liability to Customer, 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 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 gross
negligence, bad faith or wilful 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; or
(c) the propriety and/or legality of any transaction in any Account.
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 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.
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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 to the Fund or of its own counsel, at the
expense of the 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 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 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.
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 90 days after the
date of the giving of such notice. Notwithstanding the foregoing, the Bank
reserves the right to terminate this Agreement (a) at any time upon 30 days
prior written notice if the condition precedent set forth in Article II,
paragraph 3 is unfulfilled, and (b) upon notice if a Fund either (i) fails to
comply with Article IV, Section 3, or (ii) borrows funds from the Bank in an
amount exceeding the Bank's legal lending limit.
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2. Obligations Upon Termination. Upon termination, the Bank's sole
obligations, which shall arise only after, and not before, each Fund which is
the subject of such termination has paid to the Bank all out-of-pocket expenses,
fees, compensation, negative Calendar Month Earnings Credits and other amounts
owed by 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 00
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Division
Manager - Mutual Funds, or at such other place as the Bank may from time to time
designate in writing.
(b) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to a Fund shall be sufficiently given if addressed to
a Fund and received by it at 000 Xxxxx Xxxxxx, 00xx xxxxx, XX, 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 Schedules I and II
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.
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.
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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.
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/Dail St. Claire
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on behalf of each Fund
identified on Schedule A
attached hereto
THE BANK OF NEW YORK By:
----------------
Title:
SCHEDULE A
Name of Fund
EXHIBIT A
I,_________________________________________________________,
of________________________________________________ (the "Fund"),
a___________________________________[corporation] [business trust],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 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
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Title:
