(9)(h) Form of Cash Management Agreement to be Between Registrant and
The Bank of New York
CASH MANAGEMENT AND RELATED SERVICES AGREEMENT, dated as of February 1,
1996 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").
W I T N E S S E T H:
That in consideration of the mutual agreements and covenants herein
contained, the Bank and each Fund hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, unless the context otherwise requires, the
following words shall have the meanings set forth below:
1. "Account Available Balance" shall mean with respect to an Account for
any given day during a calendar month a positive or negative dollar amount equal
to (A) if such day is a Business Day, the Account Available Balance as of the
close of the last preceding Business Day plus a positive or negative dollar
amount equal to the difference, if any, between the Chargeable Credits with
respect to such day and such Account and the Chargeable Debits with 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.
2. "ACCESS" shall mean any on-line communication system provided by the
Bank hereunder whereby either the receiver of such communication is able to
verify by codes or otherwise with a reasonable degree of certainty the identiy
of the sender of such communication, or the sender is required to provide a
password or other identification code.
3. "Authorized Person" shall mean either (A) any person duly authorized by
corporate resolutions of the board of directors or board of trustees of a Fund,
as appropriate, to give Oral and/or Written Instructions on behalf of such Fund,
such persons to be designated in a certificate, substantially in the form of
Exhibit A, which contains a specimen signature of such person, or (B) any person
sending or transmitting any instruction or direction through ACCESS.
4. "Business Day" shall mean any day on which the Federal Reserve Bank of
New York is open for business, except for any such day on which the Bank is
required by law or regulation to be closed, or elects to be closed.
5. "Calendar Month Earnings Credit" shall mean with respect to an Account
for any calendar month the dollar amount, whether positive or negative, equal to
the sum of the Gross Calendar Month Earnings Credit with respect to such Account
for such calendar month and the Monthly Overdraft Charges with respect to such
Account for such calendar month.
6. "Chargeable Credits" shall mean with respect to an Account for any given
day during a calendar month a positive amount of dollars equal to the sum, if
any, of (A) the aggregate dollar amount of Federal Funds credited to such
Account by the Bank of accordance with the then applicable availability schedule
of the Federal Reserve Bank of New York, and (B) the aggregate dollar amount of
Bank internal transfers of Federal Funds to such Account.
7. "Chargeable Debits" shall mean with respect to an Account for any given
day during a calendar month a negative dollar amount equal to the sum, if any,
of (A) the aggregate dollar amount of Federal Funds relating to such Account
charged against the Bank by the Federal Reserve Bank of New York on or as of
such day, and (B) the aggregate dollar amount of drafts drawn on such Account
which are deposited in the Bank by customers of the Bank on such day, or Bank
internal transfers from, or charges to, such Account.
8. "Daily Earnings" shall mean with respect to an Account for any day
during a calendar month a positive dollar amount equal to the product of (A) the
positive Account Available Balance, if any, of such Account for such day,
multiplied by (B) the Daily Earnings Rate for such day. The Daily Earnings with
respect to an Account for any day during a calendar month on which the Account
Available Balance of such Account is negative shall be zero.
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9. "Daily Earnings Rate" shall mean for any day during a calendar month one
three hundred and sixty-fifth of the 91 day U.S. Treasury Xxxx discount rate of
the Monday auction first preceding such day (whether or not such day is a
Monday, and whether or not such Monday auction was in the immediately prior
month), as such Monday auction 91 day U.S. Treasury Xxxx discount rate is
reported in The Wall Street Journal.
10. "Daily Overdraft Charges" shall mean with respect to an Account for any
day during any calendar month a negative dollar amount equal to the product, if
any, of (A) the negative Account Available Balances, if any, with respect to
such Account for such day during such calendar month, multiplied by (B) the
Overdraft Rate.
11. "Federal Funds" shall mean immediately available same day funds.
12. "Gross Calendar Month Earnings Credit" shall mean with respect to an
Account for any calendar month a positive dollar amount equal to the aggregate
sum of the Daily Earnings of such Account for such calendar month.
13. "Monthly Overdraft Charges" shall mean with respect to an Account for
any calendar month a negative dollar amount equal to the aggregate sum of the
Daily Overdraft Charges with respect to such Account for such calendar month
which have not been previously paid to the Bank by the Fund to which such
Account relates.
14. "Oral Instructions" shall mean verbal instructions actually received by
the Bank from an Authorized Person or from a person reasonably believed by the
Bank to be an Authroized Person.
15. "Overdraft Rate" shall mean with respect to an Account for any calendar
day during any calendar month a rate equal to one three hundred and sixtieth of
the sum of (A) one-half percent, and (B) the greater of (i) the prime commercial
lending rate of The Bank of New York, as publicly announced to be in effect from
time to time, in effect on such calendar day, and (ii) 6%.
16. "Shareholder" shall mean any record holder of any Shares, as identified
to the Bank from time to time pursuant to this Agreement.
17. "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.
18. "Written Instructions" shall mean written instructions actually
received by the Bank from an Authorized Person or from a person reasonably
believed by the Bank to be an Authorized Person by letter, memorandum, telegram,
cable, telex, telecopy facsimilie or through ACCESS.
ARTICLE II
APPOINTMENT OF BANK; REPRESENTATIONS AND WARRANTIES
1. Appointment; Establishment of Accounts. Each Fund hereby appoints the
Bank as its agent for the term of this Agreement to perform the cash management
services set forth herein and in Schedules I and II attached hereto and made a
part hereof (as such Schedules may be amended or supplemented from time to time
by mutual agreement). The Bank hereby accepts appointment as such agent for
each appointing Fund and agrees to establish and maintain one or more separate
accounts with respect to each Fund (each, an "Account"; collectively, the
"Accounts") in order to receive and disburse money for the purposes set forth in
this Agreement.
2. Representations and Warranties. Each Fund hereby represents and
warrants only as to itself, and not jointly, to the Bank, which representations
and warranties shall be deemed to be continuing and to be reaffirmed upon
delivery to the Bank of any Oral or Written Instructions, that:
(a) It is duly organized and existing under the laws of the jurisdiction of
its organization, with full power to carry on its business as now conducted, to
enter into this Agreement and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered by the
Fund in accordance with all requisite corporate action and constitutes a valid
and legally binding obligation of the Fund enforceable in accordance with its
terms, except to the extent such enforcement may be limited by general equity
principles or bankruptcy principles; and
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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 the board of directors or board of trustees of such
Fund, as appropriate, appointing the Bank as its agent to act hereunder and
providing for the creation of such Fund's Account(s) and the execution by such
Fund of this Agreement, it being understood that receipt of the same by the Bank
shall be a condition precedent to the Bank's establishing an Account for such
Fund.
ARTICLE III
CASH MANAGEMENT SERVICES
1. Receipt of Money. The Bank shall receive money for credit to an Account
only:
(i) by personal presentment of drafts by a Fund, but not by a Shareholder
of such Fund, at the branch or branches in Manhattan identified from time to
time by the Bank to such Fund, provided such presentment is in accordance with
the time frames specified by the Bank to such Fund;
(ii) by mailing of drafts to a post office box designated by the Bank for
such purpose, provided such drafts are accompanied by a properly completed
investment stub;
(iii) by wire transfer to an account maintained at the Federal Reserve Bank
of New York as identified in writing by the Bank to a Fund;
(iv) by transfer to an account identified in writing by the Bank to a Fund
through the New York Automated Clearing House;
(v) by transfer from another Account maintained by such Fund with the Bank
under this Agreement;
(vi) by transfer from another account maintained by such Fund with the
Bank, including such Fund's custodian account under its Custody Agreement with
the Bank as Custodian; and
(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. The
Bank shall be entitled to reverse any credits previouly made to a Fund's Account
where money is not finally collected or where a credit to such Fund's Account
was in error.
2. Disbursement of Money. The Bank shall disburse money credited to 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; and
(iii) in payment of charges to such Account representing amounts payable to
the Bank, and chargeable against such Account, as provided in this Agreement.
The Bank shall be required to disburse money in accordance with the foregoing
only insofar as such money is immediately available and on deposit with the
Bank. All instructions directing the disbursement of money credited to an
Account under this Agreement (whether through ACCESS or by Oral Instructions
pursuant to Article V hereof) must identify an account to which such money shall
be transferred, and include all other information reasonably required by the
Bank from time to time. It is understood and agreed that with respect to any
such instructions, when instructed to credit or pay a party by both name and a
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unique numeric or alpha-numeric identifer (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 of substance of redemption
drafts required by the Bank, provided that if such change is required by
applicable rules or procedures of the Federal Reserve or any clearinghouse
through which such drafts may be presented, the Bank may as promptly as
practicable give such notice which may less than sixty (60) days.
(b) Each Fund will promptly furnish to the Bank (i) the name, mailing
address and telephone number of each Shareholder of such Fund, and (ii) specimen
signatures for all individuals authorized to draw redemption drafts (whether on
their own behalf or on behalf of third parties). Each Fund will promptly
advise the Bank of individuals no longer authorized to draw redemption drafts,
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 any such compliance would not prejudice or impair any rights or privileges
of the Bank under prevailing draft return procedures and would not be contrary
to prevailing industry rules, procedures, customs or practices. Notwithstanding
the foregoing, or any other provision in this Agreement or the Schedules hereto,
the Bank (i) may return redemption drafts with unauthorized or missing
signatures to the presenting financial institution in accordance with prevailing
banking industry draft return procedures, and (ii) shall have no obligation to
request Oral or Written Instructions from a Fund with respect to any redemption
drafts.
ARTICLE IV
OVERDRAFTS OR INDEBTEDNESS
If the Bank in its sole discretion advnaces funds, or if there shall arise
for whatever reason an overdraft or other indebtedness in connection with any
Account, such advancement of funds or overdraft with respect to such Account
shall be deemed a loan made by the Bank to the Fund to which the Account relates
payable on demand, and bearing interest from the date incurred at the Overdraft
Rate, such Overdraft Rate to be adjusted on the effective date of any change in
the prime commercial lending rate constituting a part thereof. Upon any advance
or overdraft in connection with an omnibus Account maintained for the benefit of
more than one Fund, the Bank shall be furnished promptly with Written
Instructions identifying each Fund to which such advance or overdraft relates,
and the amount allocable thereto. Each Fund hereby agrees with respect to its
Account(s) and any advancement of funds or overdraft that the Bank shall have a
continuing lien and security interest in and to any property at any time held by
it for the benefit of the Fund either hereunder or under such Fund's Custody
Agreement with the Bank, or in which the Fund may have an interest which is then
in the Bank's possession or control or in possession or control of any third
party acting in the Bank's behalf, including in its behalf as Custodian under
the Fund's Custody Agreement with the Bank. Each Fund authorizes the Bank, in
its sole discretion, at any time to charge any such overdraft or indebtedness
together with interest due thereon at the Overdraft Rate against any balance of
accounts standing to the Fund's credit on the books of the Bank, including those
books maintained by the Bank in its capacity as Custodian for the Fund under its
Custody Agreement with the Fund. In addition, each Fund hereby convenants that
on each Business Day on which either it intends to enter a reverse repurchase
agreement and/or otherwise borrow from a third party, or which next succeeds a
Business Day on which at the close of business the Fund had outstanding a
reverse repurchase agreement on such a borrowing, it shall prior to 9:00 a.m.
(New York City time) advise the Bank, in writing, of each such borrowing, shall
specify the portfolio or series to which the same relates, and shall not incur
any indebtedness not so specified other than from the Bank.
ARTICLE V
ACCESS: CALL-BACK SECURITY PROCEDURE
1. Services Generally. Each Fund shall be permitted to utilize ACCESS to
obtain direct on-line access to its Accounts. ACCESS shall permit each Fund at
the times mutually agreed upon by the Bank and such Fund to receive reports,
make inquiries, instruct the Bank to disburse money in accordance with Article
III, and perform such other functions as are more fully set forth in Schedule I
hereto.
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2. Permitted Use; Proprietary Information. (a) Each Fund shall use ACCESS
and the services available thereby only for its own internal and proper business
purposes and shall not sell, lease or otherwise provide, directly or indirectly,
ACCESS or any of such services or any portion thereof to any other person or
entity. Each Fund shall obtain and maintain at its own cost and expense all
equipment and services, including but not limited to communications services,
necessary for it to utilize ACCESS and receive the services thereby, and the
Bank shall not be responsible for the reliability or availability of any such
equipment or any services used in connection with ACCESS.
(b) Each Fund acknowledges that all data bases made available as part of,
or through ACCESS, and any proprietary data, processes, information and
documentation (other than any such which are or become part of the public domain
or are legally required to be made available to the public) (collectively, the
"Information"), are the exclusive and confidential property of the Bank. Each
Fund shall keep the Information condifential 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) 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 from time
to time without notice to any Fund. Each Fund agrees not to modify or attempt
to modify ACCESS without the Bank's prior written consent. Each Fund
acknowledges that ACCESS is the property of the Bank and, accordingly, each Fund
agrees that any modifications to ACCESS, whether by such Fund or the Bank and
whether with or without the Bank's consent, shall become the property of the
Bank.
4. No Representations or Warranties. Neither the Bank nor any
manufacturers or suppliers it utilizes or any Fund utilizes in obtaining ACCESS
makes any warranties or representations, express or implied, in fact or in law,
including but not limited to warranties of merchantability and fitness for a
particular purposes.
5. Security; Reliance; Unauthorized Use. Each Fund will, and will cause
all persons utilizing ACCESS to, treat the user and authorization codes,
passwords and authentication keys applicable to ACCESS with extreme care. The
Bank is hereby irrevocably authorized to act in accordance with and rely on
Written Instructions received by it through ACCESS. Each Fund acknowledges that
it is its sole responsibility to assure that only authorized persons use ACCESS
and that the Bank shall not be responsible nor liable for any unauthorized use
thereof.
6. Limitations of Liability. (a) Except as otherwise specifically provided
in Section 6(b) below, the Bank shall have no liability for any losses, damages,
injuries, claims, costs or expenses of a Fund arising out of or in connection
with any failure, malfunction or other problem relating to any Fund's use of
ACCESS, except for money damages suffered as the direct result of the negligence
of the Bank in an amount not exceeding, in the aggregate for all such losses,
damages, injuries, claims, costs and expenses of a Fund arising during any
month, the total charges paid by such Fund to the Bank for ACCESS and services
hereunder which caused such loss, damage, injury, claim, cost or expense during
the 12 months preceding the month in question, or such lesser number of months
as a Fund has used ACCESS if such Fund has not received 12 months use of ACCESS;
provided however, that the Bank shall have no liability under this Section 6(a)
if a Fund fails to comply with the provisions of Section 6(d).
(b) The Bank's liability for its negligence in executing or failing to
execute a Fund's Written Instructions received through ACCESS shall be only with
respect to a transfer, 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) Withoug 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
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consequential damages which a Fund may incur arising out of or in connection
with ACCESS or the services provided thereby, even if the Bank or such
manufacturer or supplier has been advised of the possibility of such damages
and regardless of the form of action.
(d) Each Fund shall notify the Bank of any errors, omissions or
interruptions in, or delay or unavailability of, ACCESS as promptly as
practicable, and in any event within one Business Day after the earliest of (i)
discovery thereof, (ii) the date discovery should have occurred through the
exercise of reasonable care, and (iii) in the case of any error, the date of the
earliest notice to such Fund which reflects such error.
7. Funds Transfer Back-Up Procedure. (a) In the event ACCESS is
inoperable and a Fund is unable to utilize ACCESS for the transmission of
Written Instructions to the Bank to tranfer 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.
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 anything contained in the Sechedules hereto, the Bank shall not be liable for
any loss or damage, including attorney's fees, resulting from the Bank paying
any redemption draft containing a forged drawer signature, unless such loss or
damage arises out of the Bank's gross negligence, bad faith or willful
misconduct. All claims against the Bank hereunder shall be made by the
respective Fund as promptly as practicable, and in any event within 6 months
from the date of the action or inaction on which such claim is based, and shall
include documentation evidencing such claim and loss.
2. No Liability. The Bank shall xxxx 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 fo 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, 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;
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(b) the genuineness of any drawer signature on any draft deposited in any
Account, or whether such signature is a forgery, other than the signature of
the drawer of any draft drawn on the Bank;
(c) the existence or genuineness of any endorsement or any marking
purporting to be an endorsement on any draft deposited in any Account, or
whether such endorsement or marking is a forgery, it being expressly understood
that all risks associated with the acceptance by the Bank of any draft payable
to a payee other than a Fund for deposit in any Account pursuant to Oral or
Written Instructiosn 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 any Fund, regardless of the purpose
therefor;
(g) any determination of the Share balance of any Shareholder whose name is
signed on any redemption draft;
(h) any determination of length of time any Shares have been owned by any
Shareholder or the method of payment utilized to purchase such Shares by such
Shareholder;
(i) any claims, liens, attachments, stays or stop orders with respect to
any Shares, proceeds, or money, other than a stop payment placed by a Fund on a
draft drawn by such Fund on its Account;
(j) the propriety and/or legality of any transaction in any Account;
(k) the lack of authority of any person signing as a drawer of a draft,
provided such person and his specimen signature is specified in the certificate
of authorized signatures last received by the Bank; or
(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 Bank. Each Fund
agrees that the fact that such confirming Written Instructions are not timely
received or that contrary Written Instructions are received by the Bank shall in
no way affect the validity or enforceability of the transactions previsouly
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 distrubances; 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 and II hereto,
and no convenant or obligation shall be implied in this Agreement against the
Bank. The Bank's duties and responsibilities hereunder shall be performed in
accordance with applicable laws, regulations and rules, including but not
limited to Federal Reserve Regulations CC and the Operating Rules of the New
York Automated Clearing House, and the Bank shall have no obligation to take
actions which in the reasonable opinion of the Bank are either inconsistent
with, or prejudice or impair the Bank's rights under, any such laws, regulations
and rules.
8. Requests for Instructions. At any time the Bank may apply to an officer
of a Fund for Oral or Written Instructions with respect to any matter arising in
connection with the Bank's duties and obligations with respect to an Account of
such Fund, and the Bank shall not be liable for any action taken or permitted by
it in good faith in accordance with such Oral or
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Written Instructions. Such application for Oral or Written Instructions
may, at the option of the Bank, set forth in writing any action proposed
to be taken or omitted by the Bank with respect to its duties or
obligations under this Agreement and the date on and/or after which such
action shall be taken, and the Bank shall not be liable for any action
taken or omitted in accordance with a proposal included in any such
application on or after the date specified therein (which shall be at
least 5 days after the date of such Fund's receipt of such application)
unless, prior to taking or omitting any such action, the Bank has
received Oral or Written Instructions in response to such application
specifying the action to be taken or omitted. The Bank may apply for and
obtain the advice and opinion of counsel to each Fund or of its own
counsel, at the expense of a Fund, and shall be fully protected with
respect to anything done or omitted by it in good faith in conformity
with such advice or opinion.
9. Delegation of Duties. The Bank may delegate any of its duties
and obligations hereunder to any delegee and may employ agents or
attorneys-in-fact; provided however, that no such delegation or
employment by the Bank shall discharge the Bank from its obligations
hereunder. The Bank shall have no liability or responsibility whatsoever
if any 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 Schedules I and II attached hereto,
and (iii) any negative Calendar Month Earnings Credits, and such other
amounts as may be mutually agreed upon from time to time. The Bank shall
provide each Fund with a monthly activity analysis detailing service
volumes, and including average Account Available Balances and average
ledger balances, and all fees owing for such month.
(b) The Bank shall submit periodic invoices specifying the amount
of all out-of-pocket expenses, fees, compensation and negative Calendar
Month Earnings Credits then due hereunder. 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. Prior Notice. This Agreement may be terminated by either the
Bank giving to any Fund, or any Fund giving to the Bank, a notice in
writing specifying the date of such termination, which date shall be not
less than 90 days after the date of the giving of such notice.
Notwithstanding the foregoing, the Bank reserves the right to terminate
this Agreement at any time upon 30 days prior written notice if any of
the conditions precedent set forth in Article II, paragraph 3 are
unfulfilled.
2. Obligations Upon Termination. Upon any termination, the Bank's
sole obligations, which shall arise only after, and not before, each
Fund which is the subject of such termination has paid to the Bank all
out-of-pocket expenses, fees, compensation, negative Calendar Month
Earnings Credits and other amounts owed by such Fund to the Bank, shall
be (i) to deliver to such Fund such records, if any, as may be owned by
such Fund, in the form and manner kept by the Bank on such date of
termination, and (ii) to pay any funds held hereunder for such Fund to
such Fund.
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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 it at
_____________________________________________________________________,
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 therof, nor will any single or partial exercise by the Bank of
any right preclude any other or future exercise thereof or the exercise
of any other right.
4. Severability. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations shall not in any way be affected or impaired
thereby, and if any provision is inapplicable to any person or
circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
5. Amendments. This Agreement may not be amended or modified in any
manner except by a written agreement executed by the Bank and each Fund
to be bound thereby, and, except in the case of an amendment to
Schedules I and II hereto, authorized or approved by a resolution of
each Fund's board of directors or board of trustees, as appropriate.
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 of directors, or board of
trustees, as appropriate.
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.
-10-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by this respective corporate officers, thereunto duly
authorized, as of the day and year first above written.
By: /s/ Xxxxxxx X. Xxxxxx, Secretary
------------------------
on behalf of each Fund identified
on Schedule A attached hereto
THE BANK OF NEW YORK
By: /s/ TK
------------------------
Title: Vice President
SCHEDULE A
Name of Fund
THE MILESTONE FUNDS - TREASURY OBLIGATIONS PORTFOLIO
EXHIBIT A
I, Xxxxxxx X. Xxxxxx of the Milestone Fund Treasury Obligation
Portfolio (the "Fund"), a Delaware Trust to hereby certify that:
The following individuals have been duly authorized by the Board of
Directors of the Fund in conformity with the Fund's Articles of
Incorporation and By-Laws to give Oral Instructions and Written
Instructions on behalf of the Fund, for purposes of the Fund's Cash
Management and Related Services Agreement, and the signatures set forth
opposite their respective names are their true and correct signatures.
Name Signature
Xxxx Xxxxxxx /s/ Xxxx Xxxxxxx
----------------------------- -----------------------------
Xxxxx Xxxxx /s/ Xxxxx Xxxxx
----------------------------- -----------------------------
Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx
----------------------------- -----------------------------
Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
----------------------------- -----------------------------
----------------------------- -----------------------------
/s/ Xxxxxxx Xxxxx
-----------------------------
[Title of Officer]
Secretary
