FORM OF
CUSTODY AGREEMENT
AGREEMENT, dated as of April 26, 2001 between each fund listed
on Exhibit A hereto (each the "Fund") and The Bank of New York, a New York
corporation authorized to do a banking business having its principal office and
place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Custodian").
W I T N E S S E T H:
that for and in consideration of the mutual promises hereinafter set forth the
Fund and Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words shall have the
meanings set forth below:
1. "AUTHORIZED PERSON" shall be any person, whether or not an
officer or employee of the Fund, duly authorized by the Fund's board to execute
any Certificate or to give any Oral Instruction with respect to one or more
Accounts, such persons to be designated in a Certificate annexed hereto as
Schedule I hereto or such other Certificate as may be received by Custodian from
time to time.
2. "BNY AFFILIATE" shall mean any office, branch or subsidiary of
The Bank of New York Company, Inc.
3. "BOOK-ENTRY SYSTEM" shall mean the Federal Reserve/Treasury
book-entry system for receiving and delivering securities, its successors and
nominees.
4. "BUSINESS DAY" shall mean any day on which Custodian and relevant
Depositories are open for business.
5. "CERTIFICATE" shall mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement to be given to
Custodian, which is actually received by Custodian by letter or facsimile
transmission and signed on behalf of the Fund by an Authorized Person or a
person reasonably believed by Custodian to be an Authorized Person.
6. "COMPOSITE CURRENCY UNIT" shall mean the Euro or any other
composite currency unit consisting of the aggregate of specified amounts of
specified currencies, as such unit may be constituted from time to time.
7. "DEPOSITORY" shall include (a) the Book-Entry System, (b) the
Depository Trust Company, (c) any other clearing agency or securities depository
registered with the Securities and Exchange Commission identified to the Fund
from time to time, and (d) the respective successors and nominees of the
foregoing.
8. "FOREIGN DEPOSITORY" shall mean (a) Euroclear, (b) Clearstream
Banking, societe anonyme, (c) each Eligible Securities Depository as defined in
Rule 17f-7 under the Investment Company Act of 1940, as amended, identified to
the Fund from time to time, and (d) the respective successors and nominees of
the foregoing.
9. "INSTRUCTIONS" shall mean communications transmitted by electronic
or telecommunications media, including S.W.I.F.T., computer-to-computer
interface, or dedicated transmission lines.
10. "ORAL INSTRUCTIONS" shall mean verbal instructions received by
Custodian from an Authorized Person or from a person reasonably believed by
Custodian to be an Authorized Person.
11. "SERIES" shall mean the various portfolios, if any, of the Fund
listed on Schedule II hereto, and if none are listed references to Series shall
be references to the Fund.
12. "SECURITIES" shall include, without limitation, any common stock
and other equity securities, bonds, debentures and other debt securities, notes,
mortgages or other obligations, and any instruments representing rights to
receive, purchase, or subscribe for the same, or representing any other rights
or interests therein (whether represented by a certificate or held in a
Depository or by a Subcustodian).
13. "SUBCUSTODIAN" shall mean a bank (including any branch thereof) or
other financial institution (other than a Foreign Depository) located outside
the U.S. which is utilized by Custodian in connection with the purchase, sale or
custody of Securities hereunder and identified to the Fund from time to time,
and their respective successors and nominees.
ARTICLE II
APPOINTMENT OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS, WARRANTIES, AND COVENANTS
1. (a) The Fund hereby appoints Custodian as custodian of all
Securities and cash at any time delivered to Custodian during the term of this
Agreement, and authorizes Custodian to hold Securities in registered form in its
name or the name of its nominees. Custodian hereby accepts such appointment and
agrees to establish and maintain one or more securities accounts and cash
accounts for each Series in which Custodian will hold
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Securities and cash as provided herein. Custodian shall maintain books and
records segregating the assets of each Series from the assets of any other
Series. Such accounts (each, an "Account"; collectively, the "Accounts") shall
be in the name of the Fund.
(b) Custodian may from time to time establish on its books and
records such sub-accounts within each Account as the Fund and Custodian may
agree upon (each a "Special Account"), and Custodian shall reflect therein such
assets as the Fund may specify in a Certificate or Instructions.
(c) Custodian may from time to time establish pursuant to a
written agreement with and for the benefit of a broker, dealer, future
commission merchant or other third party identified in a Certificate or
Instructions such accounts on such terms and conditions as the Fund and
Custodian shall agree, and Custodian shall transfer to such account such
Securities and money as the Fund may specify in a Certificate or Instructions.
2. The Fund hereby represents and warrants, which representations
and warranties shall be continuing and shall be deemed to be reaffirmed upon
each delivery of a Certificate or each giving of Oral Instructions or
Instructions by the Fund, 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, approved by a resolution of its board, constitutes a
valid and legally binding obligation of the Fund, enforceable in accordance with
its terms, and 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;
(c) It is conducting its business in substantial compliance
with all applicable laws and requirements, both state and federal, and has
obtained all regulatory licenses, approvals and consents necessary to carry on
its business as now conducted;
(d) It will not use the services provided by Custodian
hereunder in any manner that is, or will result in, a violation of any law, rule
or regulation applicable to the Fund;
(e) Its board or its foreign custody manager, as defined in
Rule 17f-5 under the Investment Company Act of 1940, as amended (the "`40 Act"),
has determined that use of each Subcustodian (including any Replacement
Custodian) and each
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Depository which Custodian or any Subcustodian is authorized to utilize in
accordance with Section 1(a) of Article III hereof, satisfies the applicable
requirements of the `40 Act and Rules 17f-4 or 17f-5 thereunder, as the case may
be;
(f) The Fund or its investment adviser, after consideration of
the information provided by Custodian, has determined that the custody
arrangements of each Foreign Depository provide reasonable safeguards against
the custody risks associated with maintaining assets with such Foreign
Depository within the meaning of Rule 17f-7 under the x00 Xxx.;
(g) It is fully informed of the protections and risks
associated with various methods of transmitting Instructions and Oral
Instructions and delivering Certificates to Custodian, understands that there
may be more secure methods of transmitting or delivering the same than the
methods selected by the Fund, agrees that the security procedures (if any) to be
utilized provide a commercially reasonable degree of protection in light of its
particular needs and circumstances, and acknowledges and agrees that
Instructions need not be reviewed by Custodian, may conclusively be presumed by
Custodian to have been given by person(s) duly authorized, and may be acted upon
as given;
(h) It shall manage its borrowings, including, without
limitation, any advance or overdraft (including any day-light overdraft) in the
Accounts, so that the aggregate of its total borrowings for each Series does not
exceed the amount such Series is permitted to borrow under the `40 Act;
(i) Its transmission or giving of, and Custodian acting upon
and in reliance on, Certificates, Instructions, or Oral Instructions pursuant to
this Agreement shall at all times comply with the `40 Act;
(j) It shall impose and maintain restrictions on the
destinations to which cash may be disbursed by Instructions to ensure that each
disbursement is for a proper purpose; and
(k) It has the right to make the pledge and grant the security
interest and security entitlement to Custodian contained in Section 1 of Article
V hereof, free of any right of redemption or prior claim of any other person or
entity, such pledge and such grants shall have a first priority subject to no
setoffs, counterclaims, or other liens or grants prior to or on a parity
therewith, and it shall take such additional steps as Custodian may require to
assure such priority.
3. The Fund hereby covenants that it shall from time to time
complete and execute and deliver to Custodian upon Custodian's request a Form FR
U-1 (or successor
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form) whenever the Fund borrows from Custodian any money to be
used for the purchase or carrying of margin stock as defined in Federal Reserve
Regulation U.
ARTICLE III
CUSTODY AND RELATED SERVICES
1. (a) Subject to the terms hereof, the Fund hereby authorizes
Custodian to hold any Securities received by it from time to time for the Fund's
account. Custodian shall be entitled to utilize Depositories, Subcustodians,
and, subject to subsection(c) of this Section 1, Foreign Depositories, to the
extent possible in connection with its performance hereunder. Securities and
cash held in a Depository or Foreign Depository will be held subject to the
rules, terms and conditions of such entity. Securities and cash held through
Subcustodians shall be held subject to the terms and conditions of Custodian's
agreements with such Subcustodians. Subcustodians may be authorized to hold
Securities in Foreign Depositories in which such Subcustodians participate.
Unless otherwise required by local law or practice or a particular subcustodian
agreement, Securities deposited with a Subcustodian, a Depositary or a Foreign
Depository will be held in a commingled account, in the name of Custodian,
holding only Securities held by Custodian as custodian for its customers.
Custodian shall identify on its books and records the Securities and cash
belonging to the Fund, whether held directly or indirectly through Depositories,
Foreign Depositories, or Subcustodians. Custodian shall, directly or indirectly
through Subcustodians, Depositories, or Foreign Depositories, endeavor, to the
extent feasible, to hold Securities in the country or other jurisdiction in
which the principal trading market for such Securities is located, where such
Securities are to be presented for cancellation and/or payment and/or
registration, or where such Securities are acquired. Custodian at any time may
cease utilizing any Subcustodian and/or may replace a Subcustodian with a
different Subcustodian (the "Replacement Subcustodian"). In the event Custodian
selects a Replacement Subcustodian, Custodian shall not utilize such Replacement
Subcustodian until after the Fund's board or foreign custody manager has
determined that utilization of such Replacement Subcustodian satisfies the
requirements of the `40 Act and Rule 17f-5 thereunder.
(b) Unless Custodian has received a Certificate or
Instructions to the contrary, Custodian shall hold Securities indirectly through
a Subcustodian only if (i) the Securities are not subject to any right, charge,
security interest, lien or claim of any kind in favor of such Subcustodian or
its creditors or operators, including a receiver or trustee in bankruptcy or
similar authority, except for a claim of payment for the safe custody or
administration of Securities on behalf of the Fund by such Subcustodian, and
(ii) beneficial ownership of the Securities is freely transferable without the
payment of money or value other than for safe custody or administration.
(c) With respect to each Foreign Depository, Custodian shall
exercise reasonable care, prudence, and diligence (i) to provide the Fund with
an analysis of the
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custody risks associated with maintaining assets with the Foreign Depository,
and (ii) to monitor such custody risks on a continuing basis and promptly notify
the Fund of any material change in such risks. The Fund acknowledges and agrees
that such analysis and monitoring shall be made on the basis of, and limited by,
information gathered from Subcustodians or through publicly available
information otherwise obtained by Custodian, and shall not include any
evaluation of Country Risks. As used herein the term "Country Risks" shall mean
with respect to any Foreign Depository: (a) the financial infrastructure of the
country in which it is organized, (b) such country's prevailing settlement
practices, (c) nationalization, expropriation or other governmental actions, (d)
such country's regulation of the banking or securities industry, (e) currency
controls, restrictions, devaluations or fluctuations, and (f) market conditions
which affect the order execution of securities transactions or affect the value
of securities.
2. Custodian shall furnish the Fund with an advice of daily
transactions (including a confirmation of each transfer of Securities) and a
monthly summary of all transfers to or from the Accounts.
3. With respect to all Securities held hereunder, Custodian shall,
unless otherwise instructed to the contrary:
(a) Receive all income and other payments and advise the
Fund as promptly as practicable of any such amounts due but not paid;
(b) Present for payment and receive the amount paid upon all
Securities which may mature and advise the Fund as promptly as practicable of
any such amounts due but not paid;
(c) Forward to the Fund copies of all information or documents
that it may actually receive from an issuer of Securities which, in the opinion
of Custodian, are intended for the beneficial owner of Securities;
(d) Execute, as custodian, any certificates of ownership,
affidavits, declarations or other certificates under any tax laws now or
hereafter in effect in connection with the collection of bond and note coupons;
(e) Hold directly or through a Depository, a Foreign
Depository, or a Subcustodian all rights and similar Securities issued with
respect to any Securities credited to an Account hereunder; and
(f) Endorse for collection checks, drafts or other negotiable
instruments.
4. (a) Custodian shall notify the Fund of rights or discretionary
actions with respect to Securities held hereunder, and of the date or dates by
when such rights must be exercised or such action must be taken, provided that
Custodian has actually received,
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from the issuer or the relevant Depository (with respect to Securities issued in
the United States) or from the relevant Subcustodian, Foreign Depository, or a
nationally or internationally recognized bond or corporate action service to
which Custodian subscribes, timely notice of such rights or discretionary
corporate action or of the date or dates such rights must be exercised or such
action must be taken. Absent actual receipt of such notice, Custodian shall have
no liability for failing to so notify the Fund.
(b) Whenever Securities (including, but not limited to,
warrants, options, tenders, options to tender or non-mandatory puts or calls)
confer discretionary rights on the Fund or provide for discretionary action or
alternative courses of action by the Fund, the Fund shall be responsible for
making any decisions relating thereto and for directing Custodian to act. In
order for Custodian to act, it must receive the Fund's Certificate or
Instructions at Custodian's offices, addressed as Custodian may from time to
time request, not later than noon (New York time) at least two (2) Business Days
prior to the last scheduled date to act with respect to such Securities (or such
earlier date or time as Custodian may specify to the Fund). Absent Custodian's
timely receipt of such Certificate or Instructions, Custodian shall not be
liable for failure to take any action relating to or to exercise any rights
conferred by such Securities.
5. All voting rights with respect to Securities, however
registered, shall be exercised by the Fund or its designee. For Securities
issued in the United States, Custodian's only duty shall be to mail to the Fund
any documents (including proxy statements, annual reports and signed proxies)
actually received by Custodian relating to the exercise of such voting rights.
With respect to Securities issued outside of the United States, Custodian's only
duty shall be to provide the Fund with access to a provider of global proxy
services at the Fund's request. The Fund shall be responsible for all costs
associated with its use of such services.
6. Custodian shall promptly advise the Fund upon Custodian's actual
receipt of notification of the partial redemption, partial payment or other
action affecting less than all Securities of the relevant class. If Custodian,
any Subcustodian, any Depository, or any Foreign Depository holds any Securities
in which the Fund has an interest as part of a fungible mass, Custodian, such
Subcustodian, Depository, or Foreign Depository may select the Securities to
participate in such partial redemption, partial payment or other action in any
non-discriminatory manner that it customarily uses to make such selection.
7. Custodian shall not under any circumstances accept bearer
interest coupons which have been stripped from United States federal, state or
local government or agency securities unless explicitly agreed to by Custodian
in writing.
8. The Fund shall be liable for all taxes, assessments, duties and
other governmental charges, including any interest or penalty with respect
thereto ("Taxes"), with respect to any cash or Securities held on behalf of the
Fund or any transaction
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related thereto. The Fund shall indemnify Custodian and each Subcustodian for
the amount of any Tax that Custodian, any such Subcustodian or any other
withholding agent is required under applicable laws (whether by assessment or
otherwise) to pay on behalf of, or in respect of income earned by or payments or
distributions made to or for the account of the Fund (including any payment of
Tax required by reason of an earlier failure to withhold). Custodian shall, or
shall instruct the applicable Subcustodian or other withholding agent to,
withhold the amount of any Tax which is required to be withheld under applicable
law upon collection of any dividend, interest or other distribution made with
respect to any Security and any proceeds or income from the sale, loan or other
transfer of any Security. In the event that Custodian or any Subcustodian is
required under applicable law to pay any Tax on behalf of the Fund, Custodian is
hereby authorized to withdraw cash from any cash account in the amount required
to pay such Tax and to use such cash, or to remit such cash to the appropriate
Subcustodian or other withholding agent, for the timely payment of such Tax in
the manner required by applicable law. If the aggregate amount of cash in all
cash accounts is not sufficient to pay such Tax, Custodian shall promptly notify
the Fund of the additional amount of cash (in the appropriate currency)
required, and the Fund shall directly deposit such additional amount in the
appropriate cash account promptly after receipt of such notice, for use by
Custodian as specified herein. In the event that Custodian reasonably believes
that Fund is eligible, pursuant to applicable law or to the provisions of any
tax treaty, for a reduced rate of, or exemption from, any Tax which is otherwise
required to be withheld or paid on behalf of the Fund under any applicable law,
Custodian shall, or shall instruct the applicable Subcustodian or withholding
agent to, either withhold or pay such Tax at such reduced rate or refrain from
withholding or paying such Tax, as appropriate; provided that Custodian shall
have received from the Fund all documentary evidence of residence or other
qualification for such reduced rate or exemption required to be received under
such applicable law or treaty. In the event that Custodian reasonably believes
that a reduced rate of, or exemption from, any Tax is obtainable only by means
of an application for refund, Custodian and the applicable Subcustodian shall
have no responsibility for the accuracy or validity of any forms or
documentation provided by the Fund to Custodian hereunder. The Fund hereby
agrees to indemnify and hold harmless Custodian and each Subcustodian in respect
of any liability arising from any underwithholding or underpayment of any Tax
which results from the inaccuracy or invalidity of any such forms or other
documentation, and such obligation to indemnify shall be a continuing obligation
of the Fund, its successors and assigns notwithstanding the termination of this
Agreement.
9. (a) For the purpose of settling Securities and foreign exchange
transactions, the Fund shall provide Custodian with sufficient immediately
available funds for all transactions by such time and date as conditions in the
relevant market dictate. As used herein, "sufficient immediately available
funds" shall mean either (i) sufficient cash denominated in U.S. dollars to
purchase the necessary foreign currency, or (ii) sufficient
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applicable foreign currency, to settle the transaction. Custodian shall provide
the Fund with immediately available funds each day which result from the actual
settlement of all sale transactions, based upon advices received by Custodian
from Subcustodians, Depositories, and Foreign Depositories. Such funds shall be
in U.S. dollars or such other currency as the Fund may specify to Custodian.
(b) Any foreign exchange transaction effected by Custodian in
connection with this Agreement may be entered with Custodian or a BNY Affiliate
acting as principal or otherwise through customary banking channels. The Fund
may issue a standing Certificate or Instructions with respect to foreign
exchange transactions, but Custodian may establish rules or limitations
concerning any foreign exchange facility made available to the Fund. The Fund
shall bear all risks of investing in Securities or holding cash denominated in a
foreign currency.
(c) To the extent that Custodian has agreed to provide pricing
or other information services in connection with this Agreement, Custodian is
authorized to utilize any vendor (including brokers and dealers of Securities)
reasonably believed by Custodian to be reliable to provide such information. The
Fund understands that certain pricing information with respect to complex
financial instruments (e.g., derivatives) may be based on calculated amounts
rather than actual market transactions and may not reflect actual market values,
and that the variance between such calculated amounts and actual market values
may or may not be material. Where vendors do not provide information for
particular Securities or other property, an Authorized Person may advise
Custodian in a Certificate regarding the fair market value of, or provide other
information with respect to, such Securities or property as determined by it in
good faith. Custodian shall not be liable for any loss, damage or expense
incurred as a result of errors or omissions with respect to any pricing or other
information utilized by Custodian hereunder.
10. Custodian shall promptly send to the Fund (a) any reports it
receives from a Depository on such Depository's system of internal accounting
control, and (b) such reports on its own system of internal accounting control
as the Fund may reasonably request from time to time.
ARTICLE IV
PURCHASE AND SALE OF SECURITIES;
CREDITS TO ACCOUNT
1. Promptly after each purchase or sale of Securities by the Fund,
the Fund shall deliver to Custodian a Certificate or Instructions, or with
respect to a purchase or sale of a Security generally required to be settled on
the same day the purchase or sale is made, Oral Instructions specifying all
information Custodian may reasonably request to settle such purchase or sale.
Custodian shall account for all purchases and sales of Securities on the actual
settlement date unless otherwise agreed by Custodian.
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2. The Fund understands that when Custodian is instructed to
deliver Securities against payment, delivery of such Securities and receipt of
payment therefor may not be completed simultaneously. Notwithstanding any
provision in this Agreement to the contrary, settlements, payments and
deliveries of Securities may be effected by Custodian or any Subcustodian in
accordance with the customary or established securities trading or securities
processing practices and procedures in the jurisdiction in which the transaction
occurs, including, without limitation, delivery to a purchaser or dealer
therefor (or agent) against receipt with the expectation of receiving later
payment for such Securities. The Fund assumes full responsibility for all risks,
including, without limitation, credit risks, involved in connection with such
deliveries of Securities.
3. Custodian may, as a matter of bookkeeping convenience or by
separate agreement with the Fund, credit the Account with the proceeds from the
sale, redemption or other disposition of Securities or interest, dividends or
other distributions payable on Securities prior to its actual receipt of final
payment therefor. All such credits shall be conditional until Custodian's actual
receipt of final payment and may be reversed by Custodian to the extent that
final payment is not received. Payment with respect to a transaction will not be
"final" until Custodian shall have received immediately available funds which
under applicable local law, rule and/or practice are irreversible and not
subject to any security interest, levy or other encumbrance, and which are
specifically applicable to such transaction.
ARTICLE V
OVERDRAFTS OR INDEBTEDNESS
1. If Custodian should in its sole discretion advance funds on
behalf of any Series which results in an overdraft (including, without
limitation, any day-light overdraft) because the money held by Custodian in an
Account for such Series shall be insufficient to pay the total amount payable
upon a purchase of Securities specifically allocated to such Series, as set
forth in a Certificate, Instructions or Oral Instructions, or if an overdraft
arises in the separate account of a Series for some other reason, including,
without limitation, because of a reversal of a conditional credit or the
purchase of any currency, or if the Fund is for any other reason indebted to
Custodian with respect to a Series, including any indebtedness to The Bank of
New York under the Fund's Cash Management and Related Services Agreement (except
a borrowing for investment or for temporary or emergency purposes using
Securities as collateral pursuant to a separate agreement and subject to the
provisions of Section 2 of this Article), such overdraft or indebtedness shall
be deemed to be a loan made by Custodian to the Fund for such Series payable on
demand and shall bear interest from the date incurred at a rate per annum
ordinarily charged by Custodian to its institutional customers, as such rate may
be adjusted from time to time. In addition, the Fund hereby agrees that
Custodian shall to the maximum extent permitted by law have a continuing lien,
security interest, and security entitlement in and to any property, including,
without limitation, any investment
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property or any financial asset, of such Series at any time held by Custodian
for the benefit of such Series or in which such Series may have an interest
which is then in Custodian's possession or control or in possession or control
of any third party acting in Custodian's behalf. The Fund authorizes Custodian,
in its sole discretion, at any time to charge any such overdraft or indebtedness
together with interest due thereon against any balance of account standing to
such Series' credit on Custodian's books.
2. If the Fund borrows money from any bank (including Custodian if
the borrowing is pursuant to a separate agreement) for investment or for
temporary or emergency purposes using Securities held by Custodian hereunder as
collateral for such borrowings, the Fund shall deliver to Custodian a
Certificate specifying with respect to each such borrowing: (a) the Series to
which such borrowing relates; (b) the name of the bank, (c) the amount of the
borrowing, (d) the time and date, if known, on which the loan is to be entered
into, (e) the total amount payable to the Fund on the borrowing date, (f) the
Securities to be delivered as collateral for such loan, including the name of
the issuer, the title and the number of shares or the principal amount of any
particular Securities, and (g) a statement specifying whether such loan is for
investment purposes or for temporary or emergency purposes and that such loan is
in conformance with the `40 Act and the Fund's prospectus. Custodian shall
deliver on the borrowing date specified in a Certificate the specified
collateral against payment by the lending bank of the total amount of the loan
payable, provided that the same conforms to the total amount payable as set
forth in the Certificate. Custodian may, at the option of the lending bank,
keep such collateral in its possession, but such collateral shall be subject to
all rights therein given the lending bank by virtue of any promissory note or
loan agreement. Custodian shall deliver such Securities as additional collateral
as may be specified in a Certificate to collateralize further any transaction
described in this Section. The Fund shall cause all Securities released from
collateral status to be returned directly to Custodian, and Custodian shall
receive from time to time such return of collateral as may be tendered to it. In
the event that the Fund fails to specify in a Certificate the Series, the name
of the issuer, the title and number of shares or the principal amount of any
particular Securities to be delivered as collateral by Custodian, Custodian
shall not be under any obligation to deliver any Securities.
ARTICLE VI
SALE AND REDEMPTION OF SHARES
1. Whenever the Fund shall sell any shares issued by the Fund
("Shares") it shall deliver to Custodian a Certificate or Instructions
specifying the amount of money and/or Securities to be received by Custodian for
the sale of such Shares and specifically allocated to an Account for such
Series.
2. Upon receipt of such money, Custodian shall credit such money to
an Account in the name of the Series for which such money was received.
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3. Except as provided hereinafter, whenever the Fund desires
Custodian to make payment out of the money held by Custodian hereunder in
connection with a redemption of any Shares, it shall furnish to Custodian a
Certificate or Instructions specifying the total amount to be paid for such
Shares. Custodian shall make payment of such total amount to the transfer agent
specified in such Certificate or Instructions out of the money held in an
Account of the appropriate Series.
4. Notwithstanding the above provisions regarding the redemption of
any Shares, whenever any Shares are redeemed pursuant to any check redemption
privilege which may from time to time be offered by the Fund, Custodian, unless
otherwise instructed by a Certificate or Instructions, shall, upon presentment
of such check, charge the amount thereof against the money held in the Account
of the Series of the Shares being redeemed, provided, that if the Fund or its
agent timely advises Custodian that such check is not to be honored, Custodian
shall return such check unpaid.
ARTICLE VII
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. Whenever the Fund shall determine to pay a dividend or
distribution on Shares it shall furnish to Custodian Instructions or a
Certificate setting forth with respect to the Series specified therein the date
of the declaration of such dividend or distribution, the total amount payable,
and the payment date.
2. Upon the payment date specified in such Instructions or
Certificate, Custodian shall pay out of the money held for the account of such
Series the total amount payable to the dividend agent of the Fund specified
therein.
ARTICLE VIII
CONCERNING CUSTODIAN
1. (a) Except as otherwise expressly provided herein, Custodian
shall not be liable for any costs, expenses, damages, liabilities or claims,
including attorneys' and accountants' fees (collectively, "Losses"), incurred by
or asserted against the Fund, except those Losses arising out of Custodian's own
negligence or willful misconduct. Custodian will be liable to the Fund for
direct money damages arising out of Custodian's own negligence or willful
misconduct. Custodian shall have no liability whatsoever for the action or
inaction of any Depositories, or, except to the extent such action or inaction
is a direct result of the Custodian's failure to fulfill its duties hereunder,
of any Foreign Depositories. With respect to any Losses incurred by the Fund as
a result of the acts or any failures to act by any Subcustodian (other than a
BNY Affiliate), Custodian shall take appropriate action to recover such Losses
from such Subcustodian; and Custodian's sole responsibility and liability to the
Fund shall be limited to amounts so received from such Subcustodian (exclusive
of costs and expenses incurred by Custodian). In no event shall
-12-
Custodian be liable to the Fund or any third party for special, indirect or
consequential damages, or lost profits or loss of business, arising in
connection with this Agreement, nor shall BNY or any Subcustodian be liable: (i)
for acting in accordance with any Certificate or Oral Instructions actually
received by Custodian and reasonably believed by Custodian to be given by an
Authorized Person; (ii) for acting in accordance with Instructions without
reviewing the same; (iii) for conclusively presuming that all Instructions are
given only by person(s) duly authorized; (iv) for conclusively presuming that
all disbursements of cash directed by the Fund, whether by a Certificate, an
Oral Instruction, or an Instruction, are in accordance with Section 2(i) of
Article II hereof; (v) for holding property in any particular country,
including, but not limited to, Losses resulting from nationalization,
expropriation or other governmental actions; regulation of the banking or
securities industry; exchange or currency controls or restrictions, devaluations
or fluctuations; availability of cash or Securities or market conditions which
prevent the transfer of property or execution of Securities transactions or
affect the value of property; (vi) for any Losses due to forces beyond the
control of Custodian, including without limitation strikes, work stoppages, acts
of war or terrorism, insurrection, revolution, nuclear or natural catastrophes
or acts of God, or interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; (vii) for the
insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or,
except to the extent such action or inaction is a direct result of the
Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or
(viii) for any Losses arising from the applicability of any law or regulation
now or hereafter in effect, or from the occurrence of any event, including,
without limitation, implementation or adoption of any rules or procedures of a
Foreign Depository, which may affect, limit, prevent or impose costs or burdens
on, the transferability, convertibility, or availability of any currency or
Composite Currency Unit in any country or on the transfer of any Securities, and
in no event shall Custodian be obligated to substitute another currency for a
currency (including a currency that is a component of a Composite Currency Unit)
whose transferability, convertibility or availability has been affected,
limited, or prevented by such law, regulation or event, and to the extent that
any such law, regulation or event imposes a cost or charge upon Custodian in
relation to the transferability, convertibility, or availability of any cash
currency or Composite Currency Unit, such cost or charge shall be for the
account of the Fund, and Custodian may treat any account denominated in an
affected currency as a group of separate accounts denominated in the relevant
component currencies.
(b) Custodian may enter into subcontracts, agreements and
understandings with any BNY Affiliate, whenever and on such terms and conditions
as it deems necessary or appropriate to perform its services hereunder. No such
subcontract, agreement or understanding shall discharge Custodian from its
obligations hereunder.
-13-
(c) The Fund agrees to indemnify Custodian and hold Custodian
harmless from and against any and all Losses sustained or incurred by or
asserted against Custodian by reason of or as a result of any action or
inaction, or arising out of Custodian's performance hereunder, including
reasonable fees and expenses of counsel incurred by Custodian in a successful
defense of claims by the Fund; provided however, that the Fund shall not
indemnify Custodian for those Losses arising out of Custodian's own negligence
or willful misconduct. This indemnity shall be a continuing obligation of the
Fund, its successors and assigns, notwithstanding the termination of this
Agreement.
2. Without limiting the generality of the foregoing, Custodian
shall be under no obligation to inquire into, and shall not be liable for:
(a) Any Losses incurred by the Fund or any other person as a
result of the receipt or acceptance of fraudulent, forged or invalid Securities,
or Securities which are otherwise not freely transferable or deliverable without
encumbrance in any relevant market;
(b) The validity of the issue of any Securities purchased,
sold, or written by or for the Fund, the legality of the purchase, sale or
writing thereof, or the propriety of the amount paid or received therefor;
(c) The legality of the sale or redemption of any Shares,
or the propriety of the amount to be received or paid therefor;
(d) The legality of the declaration or payment of any dividend
or distribution by the Fund;
(e) The legality of any borrowing by the Fund;
(f) The legality of any loan of portfolio Securities, nor
shall Custodian be under any duty or obligation to see to it that any cash or
collateral delivered to it by a broker, dealer or financial institution or held
by it at any time as a result of such loan of portfolio Securities is adequate
security for the Fund against any loss it might sustain as a result of such
loan, which duty or obligation shall be the sole responsibility of the Fund. In
addition, Custodian shall be under no duty or obligation to see that any broker,
dealer or financial institution to which portfolio Securities of the Fund are
lent makes payment to it of any dividends or interest which are payable to or
for the account of the Fund during the period of such loan or at the termination
of such loan, provided, however that Custodian shall promptly notify the Fund in
the event that such dividends or interest are not paid and received when due;
(g) The sufficiency or value of any amounts of money and/or
Securities held in any Special Account in connection with transactions by the
Fund; whether any
-14-
broker, dealer, futures commission merchant or clearing member makes payment to
the Fund of any variation margin payment or similar payment which the Fund may
be entitled to receive from such broker, dealer, futures commission merchant or
clearing member, or whether any payment received by Custodian from any broker,
dealer, futures commission merchant or clearing member is the amount the Fund is
entitled to receive, or to notify the Fund of Custodian's receipt or non-receipt
of any such payment; or
(h) Whether any Securities at any time delivered to, or held
by it or by any Subcustodian, for the account of the Fund and specifically
allocated to a Series are such as properly may be held by the Fund or such
Series under the provisions of its then current prospectus and statement of
additional information, or to ascertain whether any transactions by the Fund,
whether or not involving Custodian, are such transactions as may properly be
engaged in by the Fund.
3. Custodian may, with respect to questions of law specifically
regarding an Account, obtain the advice of counsel and shall be fully protected
with respect to anything done or omitted by it in good faith in conformity with
such advice.
4. Custodian shall be under no obligation to take action to collect
any amount payable on Securities in default, or if payment is refused after due
demand and presentment.
5. Custodian shall have no duty or responsibility to inquire into,
make recommendations, supervise, or determine the suitability of any
transactions affecting any Account.
6. The Fund shall pay to Custodian the fees and charges as may be
specifically agreed upon from time to time and such other fees and charges at
Custodian's standard rates for such services as may be applicable. The Fund
shall reimburse Custodian for all costs associated with the conversion of the
Fund's Securities hereunder and the transfer of Securities and records kept in
connection with this Agreement. The Fund shall also reimburse Custodian for
out-of-pocket expenses which are a normal incident of the services provided
hereunder.
7. Custodian has the right to debit any cash account for any amount
payable by the Fund in connection with any and all obligations of the Fund to
Custodian. In addition to the rights of Custodian under applicable law and other
agreements, at any time when the Fund shall not have honored any of its
obligations to Custodian, Custodian shall have the right without notice to the
Fund to retain or set-off, against such obligations of the Fund, any Securities
or cash Custodian or a BNY Affiliate may directly or indirectly hold for the
account of the Fund, and any obligations (whether matured or unmatured) that
Custodian or a BNY Affiliate may have to the Fund in any currency or Composite
-15-
Currency Unit. Any such asset of, or obligation to, the Fund may be transferred
to Custodian and any BNY Affiliate in order to effect the above rights.
8. The Fund agrees to forward to Custodian a Certificate or
Instructions confirming Oral Instructions by the close of business of the same
day that such Oral Instructions are given to Custodian. The Fund agrees that the
fact that such confirming Certificate or Instructions are not received or that a
contrary Certificate or contrary Instructions are received by Custodian shall in
no way affect the validity or enforceability of transactions authorized by such
Oral Instructions and effected by Custodian. If the Fund elects to transmit
Instructions through an on-line communications system offered by Custodian, the
Fund's use thereof shall be subject to the Terms and Conditions attached as
Appendix I hereto, and Custodian shall provide user and authorization codes,
passwords and authentication keys only to an Authorized Person or a person
reasonably believed by Custodian to be an Authorized Person.
9. The books and records pertaining to the Fund which are in
possession of Custodian shall be the property of the Fund. Such books and
records shall be prepared and maintained as required by the `40 Act and the
rules thereunder. The Fund, or its authorized representatives, shall have access
to such books and records during Custodian's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records shall be
provided by Custodian to the Fund or its authorized representative. Upon the
reasonable request of the Fund, Custodian shall provide in hard copy or on
computer disc any records included in any such delivery which are maintained by
Custodian on a computer disc, or are similarly maintained.
10. It is understood that Custodian is authorized to supply any
information regarding the Accounts which is required by any law, regulation or
rule now or hereafter in effect. The Custodian shall provide the Fund with any
report obtained by the Custodian on the system of internal accounting control of
a Depository, and with such reports on its own system of internal accounting
control as the Fund may reasonably request from time to time.
11. Custodian shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied against Custodian in
connection with this Agreement.
ARTICLE IX
TERMINATION
1. Either of the parties hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than ninety (90) days after the date of
giving of such notice. In the event such notice is given by the Fund, it shall
be accompanied by a copy of a resolution of the board of the
-16-
Fund, certified by the Secretary or any Assistant Secretary, electing to
terminate this Agreement and designating a successor custodian or custodians,
each of which shall be a bank or trust company having not less than $2,000,000
aggregate capital, surplus and undivided profits. In the event such notice is
given by Custodian, the Fund shall, on or before the termination date, deliver
to Custodian a copy of a resolution of the board of the Fund, certified by the
Secretary or any Assistant Secretary, designating a successor custodian or
custodians. In the absence of such designation by the Fund, Custodian may
designate a successor custodian which shall be a bank or trust company having
not less than $2,000,000 aggregate capital, surplus and undivided profits. Upon
the date set forth in such notice this Agreement shall terminate, and Custodian
shall upon receipt of a notice of acceptance by the successor custodian on that
date deliver directly to the successor custodian all Securities and money then
owned by the Fund and held by it as Custodian, after deducting all fees,
expenses and other amounts for the payment or reimbursement of which it shall
then be entitled.
2. If a successor custodian is not designated by the Fund or
Custodian in accordance with the preceding Section, the Fund shall upon the date
specified in the notice of termination of this Agreement and upon the delivery
by Custodian of all Securities (other than Securities which cannot be delivered
to the Fund) and money then owned by the Fund be deemed to be its own custodian
and Custodian shall thereby be relieved of all duties and responsibilities
pursuant to this Agreement, other than the duty with respect to Securities which
cannot be delivered to the Fund to hold such Securities hereunder in accordance
with this Agreement.
ARTICLE X
MISCELLANEOUS
1. The Fund agrees to furnish to Custodian a new Certificate of
Authorized Persons in the event of any change in the then present Authorized
Persons. Until such new Certificate is received, Custodian shall be fully
protected in acting upon Certificates or Oral Instructions of such present
Authorized Persons.
2. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to Custodian, shall be sufficiently given
if addressed to Custodian and received by it at its offices at 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as Custodian may from
time to time designate in writing.
3. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund shall be sufficiently given
if addressed to the Fund and received by it at its offices specified in Exhibit
A, or at such other place as the Fund may from time to time designate in
writing.
-17-
4. Each and every right granted to either party hereunder or under
any other document delivered hereunder or in connection herewith, or allowed it
by law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of either party to exercise, and no delay in exercising, any
right will operate as a waiver thereof, nor will any single or partial exercise
by either party of any right preclude any other or future exercise thereof or
the exercise of any other right.
5. In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any exclusive jurisdiction, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected thereby. This Agreement may not be amended or modified in
any manner except by a written agreement executed by both parties, except that
any amendment to the Schedule I hereto need be signed only by the Fund and any
amendment to Appendix I hereto need be signed only by Custodian. This Agreement
shall extend to and shall be binding upon the parties hereto, and their
respective successors and assigns; provided, however, that this Agreement shall
not be assignable by either party without the written consent of the other.
6. This Agreement shall be construed in accordance with the
substantive laws of the State of New York, without regard to conflicts of laws
principles thereof. The Fund and Custodian hereby consent to the jurisdiction of
a state or federal court situated in New York City, New York in connection with
any dispute arising hereunder. The Fund hereby irrevocably waives, to the
fullest extent permitted by applicable law, any objection which it may now or
hereafter have to the laying of venue of any such proceeding brought in such a
court and any claim that such proceeding brought in such a court has been
brought in an inconvenient forum. The Fund and Custodian each hereby irrevocably
waives any and all rights to trial by jury in any legal proceeding arising out
of or relating to this Agreement.
7. 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.
8. This Section 8 shall apply solely to those Funds listed on
Exhibit A incorporated in the Commonwealth of Massachusetts. A copy of the
Declaration of Trust of the Fund 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 the 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 the Fund; provided, however, that the Declaration of
Trust of the Fund provides that the assets of a particular Series of the Fund
shall under no circumstances be charged with liabilities attributable to any
other Series of the Fund and that all persons extending credit to, or
contracting with or having any claim against a
-18-
particular Series of the Fund shall look only to the assets of that particular
Series for payment of such credit, contract or claim.
-19-
IN WITNESS WHEREOF, the Fund and Custodian have caused this
Agreement to be executed by their respective officers, thereunto duly
authorized, as of the day and year first above written.
[ON BEHALF OF EACH OF THE FUNDS LISTED ON EXHIBIT A]
By: /s/ Xxxxxxx Xx Xxxxxxx
-----------------------------------------------
Title: Treasurer
Name: Xxxxxxx Xx Xxxxxxx
THE BANK OF NEW YORK
By: /s/ Xxx X. Xxxxxx
-----------------------------------------------
Title: Vice President
Name: Xxx X. Xxxxxx
-20-
SCHEDULE I
CERTIFICATE OF AUTHORIZED PERSONS
(The Fund - Oral and Written Instructions)
The undersigned hereby certifies that he/she is the duly elected and acting
Treasurer of each fund listed on Exhibit A (the "Fund"), and further certifies
that the following officers or employees of the Fund have been duly authorized
in conformity with the Fund's Articles of Incorporation/Declaration of Trust and
By-Laws to deliver Certificates and Oral Instructions to The Bank of New York
("Custodian") pursuant to the Custody Agreement between the Fund and Custodian
dated April 26, 2001, and that the signatures appearing opposite their names are
true and correct:
Senior Vice President,
Xxxxxx Xxxxxx Research Director /s/ Xxxxxx Xxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxxx Xxxxxxxxx Senior Vice President, Trading /s/ Xxxxx Xxxxxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxx Xxxxxxx Vice President, Trading /s/ Xxxx Xxxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Junior Credit Analyst,
Xxxxxxx Xxxx Credit & Research /s/ Xxxxxxx Xxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxx Xxxxxxxx Trader /s/ Xxxx Xxxxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxxxx Xxxxxxx Senior Vice President, Trading /s/ Xxxxxx Xxxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Vice President,
Xxxxx Xxxxx Credit & Research /s/ Xxxxx Xxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxxx Xxxxxxxxx Trader /s/ Xxxxx Xxxxxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxxxx Xxxxxx * Senior Equity Trader /s/ Xxxxxx Xxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxxx Xxxxxxx * Equity Settlement's Administrator /s/ Xxxxx Xxxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxxx Xxxxxxxxx * Portfolio Administrator /s/ Xxxxx Xxxxxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxxx Xxxxxx * Portfolio Administrator /s/ Xxxxx Xxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxxxx Xxxxxx * Manager, Fixed Income Administration /s/ Xxxxxx Xxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxxxxx Xxxxxxxx * Fixed Income Settlement's Administrator /s/ Xxxxxxx Xxxxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxxx X. Xxxxxxxx * Senior Portfolio Administrator /s/ Xxxxx X. Xxxxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
Xxxxxxx Xxxxxx * Vice President, Equity Trading /s/ Xxxxxxx Xxxxxx
------------------- --------------------------------------- ----------------------------------------
Name Title Signature
* These are the only individuals authorized to deliver Certificates and
Oral Instructions to The Bank of New York for Delafield Fund, Inc.
This certificate supersedes any certificate of Authorized Persons you
may currently have on file.
By: /s/
---------------------------------------------
Xxxxxxx Xxxx
Title: Treasurer
Date:
SCHEDULE II
CERTIFICATE OF AUTHORIZED PERSONS FOR FUND EXPENSE PAYMENTS
(The Fund - Oral and Written Instructions)
The undersigned hereby certifies that he/she is the duly elected and acting
Treasurer of each fund listed on Exhibit A (the "Fund"), and further certifies
that the following officers or employees of the Fund have been duly authorized
in conformity with the Fund's Articles of Incorporation/Declaration of Trust and
By-Laws to deliver Written and Oral Instructions for the purpose of paying fund
expenses to The Bank of New York ("Custodian") pursuant to the Custody Agreement
between the Fund and Custodian dated April 26, 2001, and that the signatures
appearing opposite their names are true and correct:
Xxxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
--------------- ----------------------
Name Signature
Xxxxxxx XxXxxxxxx /s/ Xxxxxxx XxXxxxxxx
-------------- ----------------------
Name Signature
Xxxxx Xxxxxxxxx /s/ Xxxxx Xxxxxxxxx
------------ -----------------------
Name Signature
Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
--------------- ------------------------
Name Signature
Xxxx Xxxxxxx /s/ Xxxx Xxxxxxx
--------------- ------------------------
Name Signature
Xxxxxxx Xxxx /s/ Xxxxxxx Xxxx
--------------- ------------------------
Name Signature
This certificate supersedes any certificate of Authorized Persons you
may currently have on file.
By: /s/ Xxxxxxx Xxxx
---------------------------
Xxxxxxx Xxxx
Title: Treasurer
Date: December 20, 2004
EXHIBIT A
---------
Fund Tax ID SIC 1 Address
---- ------ ----- -------
California Daily Tax Free Income Fund, Inc. 00-0000000 MD
Connecticut Daily Tax Free Income Fund, Inc. 00-0000000 MD
Cortland Trust, Inc.
General Money Market Fund 00-0000000 MD
Municipal Money Market Fund 00-0000000 MD
U.S. Government Fund 00-0000000 MD
Daily Tax Free Income Fund, Inc. 00-0000000 MD
Delafield Fund, Inc. 00-0000000 MD
Florida Daily Municipal Income Fund, Inc. 00-0000000 MA BT2
Institutional Daily Income Fund
Money Market Portfolio 00-0000000 MA
U.S. Treasury Portfolio 00-0000000 MA
New Jersey Daily Municipal Income Fund, Inc. 00-0000000 MD
New York Daily Tax Free Income Fund, Inc. 00-0000000 MD
Pax World Money Market Fund, Inc. 00-0000000 MD
Short Term Income Fund, Inc.
Money Market Portfolio 00-0000000 MD
U.S. Government Portfolio 00-0000000 MD
Tax Exempt Proceeds Fund, Inc. 00-0000000 MD
OFFSHORE FUNDS:
Daily Dollar International, Ltd. N/A BVI Corp.
U.S. Dollar Floatig Rate Fund, Ltd. N/A BVI Corp.
Daily Dollar International, Ltd II N/A Cayman
Islands
Exempted
Company
1. SIC: State of Inspection
2. MA BT: Massachusetts Business Trust
APPENDIX I
THE BANK OF NEW YORK
ON-LINE COMMUNICATIONS SYSTEM (THE "SYSTEM")
TERMS AND CONDITIONS
1. License; Use. Upon delivery to an Authorized Person or a person
reasonably believed by Custodian to be an Authorized Person of the Fund of
software enabling the Fund to obtain access to the System (the "Software"),
Custodian 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 Custodian in connection with the Account(s). The 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 the Fund with respect to the Software. The Fund
acknowledges that Custodian 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. The Fund further
acknowledges that all or a part of the Software may be copyrighted or
trademarked (or a registration or claim made therefor) by Custodian or its
suppliers. The Fund shall not take any action with respect to the Software
inconsistent with the foregoing acknowledgments, nor shall you attempt to
decompile, reverse engineer or modify the Software. The Fund may not copy, sell,
lease or provide, directly or indirectly, any of the Software or any portion
thereof to any other person or entity without Custodian's prior written consent.
The Fund may not remove any statutory copyright notice or other notice included
in the Software or on any media containing the Software. The 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
Custodian's request.
2. Equipment. The 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 the Software and obtain access to the
System, and Custodian shall not be responsible for the reliability or
availability of any such equipment or services.
3. Proprietary Information. The Software, any data base and any
proprietary data, processes, information and documentation made available to the
Fund (other than which are or become part of the public domain or are legally
required to be made
available to the public) (collectively, the "Information"), are the exclusive
and confidential property of Custodian or its suppliers. The Fund shall keep the
Information confidential by using the same care and discretion that the Fund
uses with respect to its own confidential property and trade secrets, but not
less than reasonable care. Upon termination of the Agreement or the Software
license granted herein for any reason, the Fund shall return to Custodian any
and all copies of the Information which are in its possession or under its
control.
4. Modifications. Custodian reserves the right to modify the Software
from time to time and the Fund shall install new releases of the Software as
Custodian may direct. The Fund agrees not to modify or attempt to modify the
Software without Custodian's prior written consent. The Fund acknowledges that
any modifications to the Software, whether by the Fund or Custodian and whether
with or without Custodian's consent, shall become the property of Custodian.
5. NO REPRESENTATIONS OR WARRANTIES. CUSTODIAN AND ITS MANUFACTURERS
AND SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE
SOFTWARE, SERVICES OR ANY DATABASE, EXPRESS OR IMPLIED, IN FACT OR IN LAW,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE FUND ACKNOWLEDGES THAT THE SOFTWARE, SERVICES AND ANY
DATABASE ARE PROVIDED "AS IS." IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE
LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT SPECIAL, OR CONSEQUENTIAL,
WHICH THE FUND MAY INCUR IN CONNECTION WITH THE SOFTWARE, SERVICES OR ANY
DATABASE, EVEN IF CUSTODIAN OR SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE LIABLE FOR ACTS
OF GOD, MACHINE OR COMPUTER BREAKDOWN OR MALFUNCTION, INTERRUPTION OR
MALFUNCTION OF COMMUNICATION FACILITIES, LABOR DIFFICULTIES OR ANY OTHER SIMILAR
OR DISSIMILAR CAUSE BEYOND THEIR REASONABLE CONTROL.
6. Security; Reliance; Unauthorized Use. The Fund will cause all
persons utilizing the Software and System to treat all applicable user and
authorization codes, passwords and authentication keys with extreme care, and it
will establish internal control and safekeeping procedures to restrict the
availability of the same to persons duly authorized to give Instructions.
Custodian is hereby irrevocably authorized to act in accordance with and rely on
Instructions received by it through the System. The Fund acknowledges that it is
its sole responsibility to assure that only persons duly authorized use the
System and that Custodian shall not be responsible nor liable for any
unauthorized use thereof.
7. System Acknowledgments. Custodian shall acknowledge through the
System its receipt of each transmission communicated through the System, and in
the absence of such acknowledgment Custodian shall not be liable for any failure
to act in accordance with such transmission and the Fund may not claim that such
transmission was received by Custodian.
8. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY UNITED
STATES LAW. THE FUND MAY NOT UNDER ANY CIRCUMSTANCES RESELL, DIVERT, TRANSFER,
TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY FORM) IN OR TO ANY OTHER
COUNTRY. IF CUSTODIAN DELIVERED THE SOFTWARE TO THE FUND OUTSIDE OF THE UNITED
STATES, THE SOFTWARE WAS EXPORTED FROM THE UNITED STATES IN ACCORDANCE WITH THE
EXPORTER ADMINISTRATION REGULATIONS. DIVERSION CONTRARY TO U.S. LAW IS
PROHIBITED. The Fund hereby authorizes Custodian to report its name and address
to government agencies to which Custodian is required to provide such
information by law.
9. ENCRYPTION. The Fund acknowledges and agrees that encryption may
not be available for every communication through the System, or for all data.
The Fund agrees that Custodian may deactivate any encryption features at any
time, without notice or liability to the Fund, for the purpose of maintaining,
repairing or troubleshooting the System or the Software.
Securities Processing Services
Mutual Funds
THE BANK OF
NEW
YORK
DOMESTIC CUSTODY FEE SCHEDULE
FOR
XXXXX & XXXX
Safekeeping/Income collection/All Reporting/DTC ID Affirmations/
----------------------------------------------------------------
All Systems Development and Usage Charges
-----------------------------------------
..5 basis points per annum on the first $5 billion in aggregate net assets
(inclusive of the value of short positions, reverse repos's, etc.).
..25 basis points thereafter
Security Transaction Charges/Paydowns
-------------------------------------
$5 Book Entry-DTC (PTC) FRB.
$12 Physical settlements, options, futures, mutual funds, etc.
$5 Paydowns
$40 Euro-Transactions
$12 Euro Time Deposit
Federal Funds Wires/Offical Checks
----------------------------------
$6 Federal Reserve wires not related to securities transactions and offical
check requests to pay expenses.
Earnings Credit on Balances/Interest on Overdrafts
--------------------------------------------------
Earnings credits are provided to each portfolio on 100% of the daily available
balance in the domestic custodian account after reduction for Federal Reserve
requirements, computed at the 90-day T-xxxx rate on the day of the balance.
Overdrafts, excluding bank errors, will cause a reduction of earnings credits
daily, computed at 1% above the Federal Funds rate on the day of the overdraft,
2% after 10 days.
Credits and debits will be accumulated daily and offset monthly against the
Bank's safekeeping custodian fees. To the extent a net debit is accumulated,
each portfolio will be billed for the expense. To the extent a net earnings
credit is generated, such excess earnings credit can be carried forward until
calendar year end or the Fund's fiscal year end. Any credits remaining after
that date will be forfeited.
1
Securities Processing Services
Mutual Funds
THE BANK OF
NEW
YORK
Out of Pocket Expenses:
-----------------------
-None-
Billing Cycle
-------------
The above fees will be billed monthly.
Xxxxx and Xxxx The Bank of New York
Approved by: /s/ Xxxxxxx Xx Xxxxxxx Submitted by: /s/ Xxxx Xxxxxx
Date: April 26, 2001 Date: May 2, 2001
2
AGREEMENT
Reference is made to the Custody Agreement between each mutual fund
idientified on the Appendix hereto (each, a "Fund"; collectively, the "Funds")
and The Bank of New York (the "Custodian"). All capitalized terms used herein
shall have the meanings given them in the Custody Agreement.
WHEREAS, each Fund has requested the Custodian to accept from the fund or
an Intermediary (as defined below) Electronic Instructions and other
communications transmitted by one or more electronic or telecommunications media
including Terminal Link, S.W.I.F.T., computer-to-computer interface, dedicated
transmission line, facsimile transmission (which may be signed by an Officer or
unsigned) and tested telex (collectively, "Electronic Instructions") and to deem
each such Electronic Instruction to be a Certificate; and
WHEREAS, each Fund has selected the method(s) by which the Fund may
transmit Electronic Instructions and the Custodian has agreed to accept such
Electronic Instructions with respect to any matter contemplated by the Custody
Agreement, subject to the terms hereof;
NOW THEREFORE, the parties hereby agree as follows:
1. License; Use. With respect to any software provided by the Custodian to
a Fund in order for the Fund to transmit Electronic Instructions to the
Custodian (the "Software"), the Custodian grants to such Fund a personal,
nontransferable and nonexclusive license to use the Software solely for the
purpose of transmitting Electronic Instructions to, and receiving communications
from, the Custodian in connection with its account(s). Each Fund agrees not to
sell, reproduce, lease or otherwise provide, directly or indirectly, the
Software or any portion thereof to any third party, including any Intermediary,
without prior written consent of the Custodian.
2. Equipment; Third Party Vendors and Services. 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 (or any Intermediary)
to utilize the Software and transmit Electronic Instructions to the Custodian.
The Custodian shall not be responsible for the reliability, compatibility with
the Software or availability of any such equipment or services or the
performance or nonperformance by any nonparty to this Agreement.
3. Proprietary Information. Each Fund acknowledges that the Software, all
data bases made available to the Fund (or an Intermediary) by utilizing the
Software (other than data bases relating solely to the assets of the Fund or
transactions with respect thereto), and any proprietary data, processes,
information and documentation (other than which are or become part of the public
domain or are legally required to be made available to the pubic) (collectively,
the "Information"), are the exclusive and confidential property of the
Custodian. Each Fund shall, and shall cause others to which it discloses the
information (including any Intermediary) to keep the Information confidential by
using the same care and discretion that the Fund uses with
respect to its own confidential property and trade secrets and shall neither
make nor permit any disclosure without the prior written consent of the
Custodian. Upon termination of the Custody Agreetment or the Software license
granted hereunder for any reason, each affected Fud shall return to the
Custodian all copies of the Information which are in its possession or under its
control or which the Fund distributed to third parties, including any
Intermediary.
4. Modifications. The Custodian reserves the right to modify the Software
from time to time upon reasonable prior notice and each Fund shall install, and
shall cause any Intermediary to install, new releases of the Software as the
Custodian may direct. The Funds agree not to modify, the Software without the
Custodian's prior written consent. Each Fund acknowledges that any modifications
to the Software, whethe by the Fund, an Intermediary or the Custodian and
whether with or without the Custodian's consent, shall become the property of
the Custodian.
5. No Representations or Warranties. The Custodian makes no warranties or
representations of any kind with regard to the Software or the method(s) by
which a Fund or Intermediary may transmit Electronic Instructions to the
Custodian, express or implied, including but not limited to any implied
warranties of merchantability or fitness for a particular purpose.
6. Systems Acknowledgments. Where the method for transmitting Electronic
Instruction involves an automatic systems acknowledgement by the Custodian of
its receipt of such Electronic Instructions, then in the absence of such
acknowledgment the Custodian shall not be liable for any failure to act pursuant
to such Electronic Instructions and the Fund may not claim that such Electronic
Instructions were received by the Custodian.
7. Security Procedures. (a) Each Fund agrees that where Electronic
Instructions are delivered to the Custodian hereunder, it shall be the Fund's
sole responsibility to ensure that only persons duly authorized by the Fund or
an Intermediary transmit such Electronic Instructions to the Custodian to treat
applicable user and authorization codes, passwords and authentication keys with
extreme care, and irrevocably authorizes the Custodian to act in accordance with
and rely upon Electronic Instructions received by it pursuant hereto, and deem
the same to be a Certificate.
(b) Each Fund hereb y represents, acknowledges and agrees that it is fully
informed of the protections and risks associated with the various methods of
transmitting Electronic Instructions to the Custodian and that there may be more
secure methods of transmitting Electronic Instructions to the Custodian than the
method(s) selected by the Fund. Each Fund hereby agrees that the security
procedures (if any) to be followed in connection with the Fund's or an
Intermediary's transmission of Electronic Instructions provide to it a
commercially reasonable degree of protection in light of its particular needs
and circumstances.
8. Representations, Warranties and Covenants. Each Fund hereby represents
and warrants to the Custodian that the transmission of Electronic Instructions
pursuant hereto shall at all times comply with the Investment Company Act of
1940, as amended.
9. In the event of any inconsistency between the terms of the Custody
Agreement and this Agreement, the terms of this Agreement shall control and be
deemed an amendment thereto. Except as amended hereby, the Custody Agreement
shall remain in full force and effect.
10. For purposes of this Agreement, "Intermediary" shall mean a third party
that maintains a transmission line to the Custodian and has been selected by the
Fund to receive electronic data transmissions from the Custodian or the Fund and
forward the same to the Fund or the Custodian, respectively.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the date
set forth below.
Date: April 26, 2001 /s/ Xxxxxxx XxXxxxxxx
-----------------------
on behalf of each Fund Treasurer
identified on the Appendix hereto
THE BANK OF NEW YORK
By: /s/ Xxx X.Xxxxxx
Xxx X.Xxxxxx
Title: Vice President
EXHIBIT A
---------
Fund Tax ID SIC 1 Address
---- ------ ----- -------
California Daily Tax Free Income Fund, Inc. 00-0000000 MD
Connecticut Daily Tax Free Income Fund, Inc. 00-0000000 MD
Cortland Trust, Inc.
General Money Market Fund 00-0000000 MD
Municipal Money Market Fund 00-0000000 MD
U.S. Government Fund 00-0000000 MD
Daily Tax Free Income Fund, Inc. 00-0000000 MD
Delafield Fund, Inc. 00-0000000 MD
Florida Daily Municipal Income Fund, Inc. 00-0000000 MA BT2
Institutional Daily Income Fund
Money Market Portfolio 00-0000000 MA
U.S. Treasury Portfolio 00-0000000 MA
New Jersey Daily Municipal Income Fund, Inc. 00-0000000 MD
New York Daily Tax Free Income Fund, Inc. 00-0000000 MD
Pax World Money Market Fund, Inc. 00-0000000 MD
Short Term Income Fund, Inc.
Money Market Portfolio 00-0000000 MD
U.S. Government Portfolio 00-0000000 MD
Tax Exempt Proceeds Fund, Inc. 00-0000000 MD
OFFSHORE FUNDS:
Daily Dollar International, Ltd. N/A BVI Corp.
U.S. Dollar Floatig Rate Fund, Ltd. N/A BVI Corp.
Daily Dollar International, Ltd II N/A Cayman
Islands
Exempted
Company
1. SIC: State of Inspection
2. MA BT: Massachusetts Business Trust
