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EXHIBIT (g)(5)
CASH MANAGEMENT AND RELATED SERVICES AGREEMENT, dated as of
between each mutual fund and/or portfolio series of each mutual
fund listed on Schedule A hereto (each a "Fund", collectively the "Funds"), and
The Bank of New York (the "Bank").
WITNESSETH:
That in consideration of the mutual agreements and covenants herein
contained, the Bank and each Fund hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, unless the context otherwise requires,
the following words shall have the meanings set forth below:
1. "ACCOUNT" shall mean an account in the name of a Fund or such
Fund's transfer agent for receiving and disbursing money as provided in this
Agreement.
2. "ACCOUNT AVAILABLE BALANCE" shall mean with respect to an
Account for any given day during a calendar month a positive or negative dollar
amount equal to (A) if such day is a Business Day, the Account Available Balance
as of the close of the last preceding Business Day plus a positive or negative
dollar amount equal to the difference, if any, between the Chargeable Credits
with respect to such day and such Account and the Chargeable Debits with respect
to such day and such Account, and (B) if such day is not a Business Day, the
Account Available Balance as of close of the last preceding Business Day, except
that both (A) and (B) shall be reduced by the United States Federal Reserve
reserve requirements then applicable to the Bank with respect to such Account.
The Account Available Balance of an Account shall be zero on the date
immediately preceding the first date on which an entry, consisting of either a
Chargeable Credit or Chargeable Debit, is first made to such Account hereunder.
3. "ACCESS" shall mean any on-line communication system provided by
the Bank hereunder whereby either the receiver of such communication is able to
verify by codes or otherwise with a reasonable degree of certainty the identity
of the sender of such communication, or the sender is required to provide a
password or other identification code.
4. "AUTHORIZED PERSON" shall mean either (A) any person duly
authorized by corporate resolutions of the board of directors or board of
trustees of a Fund (each, a "Board") to give Oral and/or Written Instructions on
behalf of such Fund, such persons to be designated in a certificate,
substantially in the form of Exhibit A, which contains a specimen signature of
such person, or (B) any person sending or transmitting any instruction or
direction through ACCESS.
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5. "BUSINESS DAY" shall mean any day on which the Federal Reserve
Bank of New York is open for business, except for any such day on which the Bank
is required by law or regulation to be closed, or elects to be closed.
6. "CALENDAR MONTH EARNINGS CREDIT" shall mean with respect to an
Account for any calendar month the dollar amount, whether positive or negative,
equal to the sum of the Gross Calendar Month Earnings Credit with respect to
such Account for such calendar month and the Monthly Overdraft Charges with
respect to such Account for such calendar month.
7. "CHARGEABLE CREDITS" shall mean with respect to an Account for
any given day during a calendar month a positive amount of dollars equal to the
sum, if any, of (A) the aggregate dollar amount of Federal Funds credited to
such Account by the Bank in accordance with the then applicable availability
schedule of the Federal Reserve Bank of New York, and (B) the aggregate dollar
amount of Bank internal transfers of Federal Funds to such Account.
8. "CHARGEABLE DEBITS" shall mean with respect to an Account for any
given day during a calendar month a negative dollar amount equal to the sum, if
any, of (A) the aggregate dollar amount of Federal Funds relating to such
Account charged against the Bank by the Federal Reserve Bank of New York on or
as of such day, and (B) the aggregate dollar amount of drafts drawn on such
Account which are deposited in the Bank by customers of the Bank on such day, or
Bank internal transfers from, or charges to, such Account.
9. "DAILY EARNINGS" shall mean with respect to an Account for any
day during a calendar month a positive dollar amount equal to the product of (A)
the positive Account Available Balance, if any, of such Account for such day,
multiplied by (B) the Daily Earnings Rate for such day. The Daily Earnings with
respect to an Account for any day during a calendar month on which the Account
Available Balance of such Account is negative shall be zero.
10. "DAILY EARNINGS RATE" shall mean for any day during a calendar
month one three hundred and sixty-fifth of the 91 day U.S. Treasury Xxxx
discount rate of the Monday auction first preceding such day (whether or not
such day is a Monday, and whether or not such Monday auction was in the
immediately prior month), as such Monday auction 91 day U.S. Treasury Xxxx
discount rate is reported in The Wall Street Journal.
11. "DAILY OVERDRAFT CHARGES" shall mean with respect to an Account
for any day during any calendar month a negative dollar amount equal to the
product, if any, of (A) the negative Account Available Balances, if any, with
respect to such Account for such day during such calendar month, multiplied by
(B) the Overdraft Rate.
12. "FEDERAL FUNDS" shall mean immediately available same day funds.
13. "GROSS CALENDAR MONTH EARNINGS CREDIT" shall mean with respect to
an Account for any calendar month a positive dollar amount equal to the
aggregate sum of the Daily Earnings of such Account for such calendar month.
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14. "MONTHLY OVERDRAFT CHARGES" shall mean with respect to an Account
for any calendar month a negative dollar amount equal to the aggregate sum of
the Daily Overdraft Charges with respect to such Account for such calendar month
which have not been previously paid to the Bank by the Fund to which such
Account relates.
15. "OMNIBUS ACCOUNT" shall mean an account at the Bank for the
benefit of the Funds into which money (A) to be deposited into an Account is
initially credited pending its transfer to such Account pursuant to Article III
hereof, or (B) transferred from an Account pursuant to Article III is deposited
pending its disbursement pursuant to Article III.
16. "ORAL INSTRUCTIONS" shall mean verbal instructions actually
received by the Bank from an Authorized Person or from a person reasonably
believed by the Bank to be an Authorized Person.
17. "OVERDRAFT RATE" shall mean with respect to an Account for any
calendar day during any calendar month a rate equal to one three hundred and
sixtieth of the fed funds rate plus 1%.
18. "SHAREHOLDER" shall mean any record holder of any Shares, as
identified to the Bank from time to time pursuant to this Agreement.
19. "SHARES" shall mean all or any part of each class of the shares
of capital stock, beneficial interest, or limited partnership interest of a
Fund, as the case may be, which are authorized and/or issued from time to time.
20. "WRITTEN INSTRUCTIONS" shall mean written instructions actually
received by the Bank from an Authorized Person or from a person reasonably
believed by the Bank to be an Authorized Person by letter, memorandum, telegram,
cable, telex, facsimile or through ACCESS.
ARTICLE II
APPOINTMENT OF BANK; REPRESENTATIONS AND WARRANTIES
1. Appointment; Establishment of Accounts. Each Fund hereby appoints
the Bank as its agent for the term of this Agreement to perform the cash
management services set forth herein and in Schedule I attached hereto and made
a part hereof (as such Schedule may be amended or supplemented from time to time
by mutual agreement) which are selected by the Funds from time to time. The Bank
hereby accepts appointment as such agent for each Fund and agrees to establish
and maintain one or more Accounts and/or Omnibus Accounts as the parties shall
determine are necessary to receive and disburse money as provided in this
Agreement.
2. Representations and Warranties. Each Fund hereby represents and
warrants only as to itself, and not jointly, to the Bank, which representations
and warranties shall be deemed to be continuing and to be reaffirmed upon
delivery to the Bank of any Oral or Written Instructions, that:
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(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and
delivered by the Fund in accordance with all requisite corporate action and
constitutes a valid and legally binding obligation of the Fund enforceable in
accordance with its terms, except to the extent such enforcement may be limited
by general equity principles or bankruptcy principles; and
(c) It is conducting its business in compliance with all
applicable laws and regulations, both state and federal, and has obtained all
regulatory licenses, approvals and consents necessary to carry on its business
as now conducted; there is no statute, regulation, rule, order or judgment
binding on it and no provision of its charter or by-laws, nor of any mortgage,
indenture, credit agreement or other contract binding on it or affecting its
property which would prohibit its execution or performance of this Agreement.
3. Board Resolutions. Each Fund shall provide the Bank with a
certified copy of a resolution of its Board appointing the Bank as its agent to
act hereunder and providing for the creation of such Fund's Account(s), the
utilization by such Fund of one or more Omnibus Accounts and the execution by
such Fund of this Agreement, it being understood that receipt of the same by the
Bank shall be a condition precedent to the Bank's establishing an Account for
such Fund or such Fund's utilization of an Omnibus Account.
ARTICLE III
CASH MANAGEMENT SERVICES
1. Receipt of Money. The Bank shall receive money for credit to an
Account only:
(i) by personal presentment of drafts by a Fund, but not by a
Shareholder of such Fund, at the branch or branches in Manhattan identified from
time to time by the Bank to such Fund, provided such presentment is in
accordance with the time frames specified by the Bank to such Fund;
(ii) by mailing of drafts to a post office box designated by the
Bank for such purpose, provided such drafts are accompanied by a properly
completed investment stub;
(iii) by wire transfer to an account maintained at the Federal
Reserve Bank of New York as identified in writing by the Bank to a Fund;
(iv) by transfer to an account identified in writing by the Bank
to a Fund through the New York Automated Clearing House;
(v) by transfer from another Account maintained by such Fund
with the Bank under this Agreement;
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(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; or
(vii) by transfer from any other account maintained with the Bank.
All money received by the Bank shall be credited upon receipt, but subject to
final payment and receipt by the Bank of immediately available funds, and
receipt by the Bank of such forms, documents and information as are required by
the Bank from time to time and received in the appropriate time frames. If an
Omnibus Account has been established for the Funds, such money shall be
initially credited to the Omnibus Account pending its allocation to, and deposit
in, an Account. The Bank shall be entitled to reverse any credits previously
made to a Fund's Account or an Omnibus Account where money is not finally
collected or where a credit to such account was in error.
2. Disbursement of Money. The Bank shall disburse money credited to
an Account only:
(i) pursuant to Written Instructions of such Fund transmitted
through ACCESS (except as otherwise provided in Article V, Section 7 hereof), to
transfer funds as directed by such Fund (including transfers through the Federal
Reserve Bank of New York transfer wire and the New York Automated Clearing
House);
(ii) in payment of drafts drawn by an Authorized Person or
Shareholder (as appropriate for the particular Account), subject to the terms
hereof; or
(iii) in payment of charges to such Account representing amounts
payable to the Bank, and chargeable against such Account, as provided in this
Agreement.
The Bank shall be required to disburse money in accordance with the foregoing
only insofar as such money is immediately available and on deposit with the
Bank. If an Omnibus Account has been established for the Funds, such money shall
be credited to the Omnibus Account pending such disbursement. All instructions
directing the disbursement of money credited to an Account or Omnibus Account
under this Agreement (whether through ACCESS or by Oral Instructions pursuant to
Article V hereof) must identify an account to which such money shall be
transferred, and include all other information reasonably required by the Bank
from time to time. It is understood and agreed that with respect to any such
instructions, when instructed to credit or pay a party by both name and a unique
numeric or alphanumeric identifier (e.g., ABA number or account number), the
Bank and any other financial institution participating in the funds transfer may
rely solely on the unique identifier, even if it identifies a party different
than the party named. Such reliance on a unique identifier shall apply to
beneficiaries named in such instructions as well as any financial institution
which is designated in such instruction to act as an intermediary in a funds
transfer.
3. Redemption Drafts; Shareholder Information. (a) Each Fund shall be
entitled to supply its Shareholders with redemption drafts, but only in a form
and substance agreed to by the
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Bank. The Bank agrees to give each Fund sixty (60) days prior notice of any
changes to the form or substance of redemption drafts required by the Bank,
provided that if such change is required by applicable rules or procedures of
the Federal Reserve or any clearinghouse through which such drafts may be
presented, the Bank may give less than sixty (60) days prior notice of such
change.
(b) Each Fund will promptly furnish to the Bank (i) the name,
mailing address and telephone number of each Shareholder of such Fund, and (ii)
specimen signatures for all individuals authorized to draw redemption drafts
(whether on their own behalf or on behalf of third parties). Each Fund will
promptly advise the Bank of individuals no longer authorized to draw redemption
drafts, and those individuals newly authorized. Such information shall be
provided to the Bank in a mutually agreed upon format.
4. Redemption Draft Returns. A Fund may give the Bank Oral or Written
Instructions from time to time to return unpaid redemption drafts of the Fund to
the presenting financial institution for any reason, and the Bank shall use
reasonable efforts to comply with such Oral or Written Instructions provided
that such compliance would not prejudice or impair any rights or privileges of
the Bank under prevailing draft return procedures and would not be contrary to
prevailing industry rules, procedures, customs or practices. Notwithstanding the
foregoing, or any other provision in this Agreement or Schedule I hereto, the
Bank (i) may return redemption drafts with unauthorized or missing signatures to
the presenting financial institution in accordance with prevailing banking
industry draft return procedures, and (ii) shall have no obligation to request
Oral or Written Instructions from a Fund with respect to any redemption drafts.
ARTICLE IV
ADVANCES, OVERDRAFTS OR INDEBTEDNESS
1. If the Bank in its sole discretion advances funds, or if there
shall arise for whatever reason an overdraft or other indebtedness in connection
with any Account or Omnibus Account, such advance, overdraft or indebtedness
shall be deemed a loan made by the Bank to the Fund to which the Account
relates, or in the case of an Omnibus Account, to which such advance, overdraft
or indebtedness relates, payable on demand and bearing interest from the date
incurred at the Overdraft Rate, such Overdraft Rate to be adjusted on the
effective date of any change in the fed funds rate constituting a part thereof.
In the event of any advance, overdraft or other indebtedness in connection with
an Omnibus Account, the Bank shall be furnished promptly (and in any event by
12:00 p.m. on the next Business Day after such advance, overdraft or
indebtedness) with Written Instructions identifying each Fund to which such
advance, overdraft or indebtedness relates, and the amount allocable to such
Fund(s).
2. Each Fund hereby agrees with respect to its Account(s), any
Omnibus Account(s) and any advances, overdrafts or other indebtedness that the
Bank shall have a continuing lien and security interest in and to any property
at any time held by it for the benefit of the Fund either hereunder or under
such Fund's Custody Agreement with the Bank, or in which the Fund may have an
interest which is then in the Bank's possession or control or in possession or
control of any third party acting in the Bank's behalf, including in its behalf
as Custodian under the Fund's Custody Agreement with the Bank. Each Fund
authorizes the Bank, in its sole discretion, at any time to
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charge any advance, overdraft or indebtedness together with interest due thereon
at the Overdraft Rate against any balance of accounts standing to the Fund's
credit on the books of the Bank, including those books maintained by the Bank in
its capacity as Custodian for the Fund under its Custody Agreement with the
Fund.
3. Each Fund agrees that upon allocation of all advances, overdrafts
or indebtedness to its account pursuant to paragraph 1 above, its total
borrowings from all sources (including the Bank) shall be in conformity with the
requirements and limitations set forth in the Investment Company Act of 1940, as
amended, and the Fund's Prospectus. Each Fund shall promptly (and in any event
within one Business Day) notify the Bank in writing whenever it fails to comply
with any of the foregoing requirements.
ARTICLE V
ACCESS; CALL-BACK SECURITY PROCEDURE
1. Services Generally. Each Fund shall be permitted to utilize ACCESS
to obtain direct on-line access to its Accounts and Omnibus Accounts. ACCESS
shall permit each Fund at the times mutually agreed upon by the Bank and such
Fund to receive reports, make inquiries, instruct the Bank to disburse money in
accordance with Article III, and perform such other functions as are more fully
set forth in Schedule I hereto.
2. Permitted Use; Proprietary Information; Equipment. (a) Upon
delivery to a Fund of software enabling such Fund to utilize ACCESS (the
"Software"), the Bank grants to the Fund a personal, nontransferable and
nonexclusive license to use the Software solely for the purpose of transmitting
Written Instructions, receiving reports, making inquiries or otherwise
communicating with the Bank in connection with the Account(s) or the Omnibus
Account. Each Fund shall use the Software solely for its own internal and proper
business purposes and not in the operation of a service bureau. Except as set
forth herein, no license or right of any kind is granted to any Fund with
respect to the Software. Each Fund acknowledges that the Bank and its suppliers
retain and have title and exclusive proprietary rights to the Software,
including any trade secrets or other ideas, concepts, know-how, methodologies,
or information incorporated therein and the exclusive rights to any copyrights,
trademarks and patents (including registrations and applications for
registration of either), or other statutory or legal protections available in
respect thereof. Each Fund further acknowledges that all or a part of the
Software may be copyrighted or trademarked (or a registration or claim made
therefor) by the Bank or its suppliers. No Fund shall take any action with
respect to the Software inconsistent with the foregoing acknowledgments, nor
shall any Fund attempt to decompile, reverse engineer or modify the Software. No
Fund may copy, sell, lease or provide, directly or indirectly, any of the
Software or any portion thereof to any other person or entity without the Bank's
prior written consent. No Fund may remove any statutory copyright notice or
other notice included in the Software or on any media containing the Software.
Each Fund shall reproduce any such notice on any reproduction of the Software
and shall add any statutory copyright notice or other notice to the Software or
media upon the Bank's request.
(b) Each Fund acknowledges that all data bases made available as
part of, or through ACCESS, and any proprietary data, processes, information and
documentation (other than
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any such which are or become part of the public domain or are legally required
to be made available to the public) (collectively, the "Information"), are the
exclusive and confidential property of the Bank. Each Fund shall keep the
Information confidential by using the same care and discretion that each Fund
uses with respect to its own confidential property and trade secrets, and shall
neither make nor permit any disclosure without the express prior written consent
of the Bank.
(c) Each Fund shall obtain and maintain at its own cost and
expense all equipment and services, including but not limited to communications
services, necessary for it to utilize ACCESS and receive the services thereby,
and the Bank shall not be responsible for the reliability or availability of any
such equipment or any services used in connection with ACCESS.
(d) Upon termination of this Agreement for any reason, each Fund
shall return to the Bank any and all copies of the Information which are in such
Fund's possession or under its control, or distributed to third parties. The
provisions of this Article shall not affect the copyright status of any of the
Information which may be copyrighted and shall apply to all Information whether
or not copyrighted.
3. Modifications. The Bank reserves the right to modify ACCESS or the
Software from time to time without notice to any Fund. Each Fund agrees not to
modify or attempt to modify ACCESS or the Software without the Bank's prior
written consent. Each Fund acknowledges that ACCESS and the Software are the
property of the Bank and, accordingly, each Fund agrees that any modifications
to ACCESS or the Software, whether by such Fund or the Bank and whether with or
without the Bank's consent, shall become the property of the Bank.
4. No Representations or Warranties. The Bank and its manufacturers
and suppliers make no warranties or representations, express or implied, in fact
or in law, including but not limited to warranties of merchantability and
fitness for a particular purpose, in connection with any Fund's use of ACCESS or
the Software.
5. Security; Reliance; Unauthorized Use. Each Fund will, and will
cause all persons utilizing ACCESS to, treat the user and authorization codes,
passwords and authentication keys applicable to ACCESS with extreme care. The
Bank is hereby irrevocably authorized to act in accordance with and rely on
Written Instructions received by it through ACCESS. Each Fund acknowledges that
it is its sole responsibility to assure that only Authorized Persons use ACCESS
and that the Bank shall not be responsible nor liable for any unauthorized use
thereof, and agrees that the security procedures to be followed in connection
with the Fund's transmission of Written Instructions through ACCESS provide to
it a commercially reasonable degree of protection in light of its particular
needs and circumstances.
6. Limitations of Liability. (a) Except as otherwise specifically
provided in Section 6(b) below, the Bank shall have no liability for any losses,
damages, injuries, claims, costs or expenses of a Fund arising out of or in
connection with any failure, malfunction or other problem relating to any Fund's
use of ACCESS, except for money damages suffered as the direct result of the
negligence of the Bank in an amount not exceeding, in the aggregate for all such
losses, damages, injuries, claims, costs and expenses of a Fund arising during
any month, the total charges paid by
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such Fund to the Bank for ACCESS and services hereunder which caused such loss,
damage, injury, claim, cost or expense during the 12 months preceding the month
in question, or such lesser number of months as a Fund has used ACCESS if such
Fund has not received 12 months use of ACCESS; provided however, that the Bank
shall have no liability under this Section 6(a) if a Fund fails to comply with
the provisions of Section 6(d).
(b) The Bank's liability for its negligence in executing or
failing to execute a Fund's Written Instructions received through ACCESS shall
be only with respect to a transfer, or failure to transfer, funds not in
accordance with such Written Instructions after such instructions have been duly
acknowledged by the Bank, and shall be contingent upon the Fund complying with
the provisions of Section 6(d) below, and shall be limited to (i) restoration of
the principal amount mistransferred, if and to the extent that the Bank would be
required to make such restoration under applicable law, and (ii) the lesser of
(A) a Fund's actual pecuniary loss incurred by reason of its loss of use of the
mistransferred funds or the funds which were not transferred, as the case may
be, or (B) compensation for the loss of the use of the mistransferred funds or
the funds which were not transferred, as the case may be, at a rate per annum
equal to the average Federal Funds rate as computed from the Federal Reserve
Bank of New York's daily determination of the effective rate for Federal Funds,
for the period during which a Fund has lost use of such funds. In no event shall
the Bank have any liability for failing to execute Written Instructions for the
transfer of funds which are received by it through ACCESS other than through the
applicable transfer module for the particular instructions.
(c) Without limiting the generality of the foregoing, it is
hereby agreed that in no event shall the Bank or any manufacturer or supplier of
its computer equipment, software or services be responsible for any special,
indirect, incidental or consequential damages which a Fund may incur arising out
of or in connection with ACCESS or the services provided thereby, even if the
Bank or such manufacturer or supplier has been advised of the possibility of
such damages and regardless of the form of action.
(d) Each Fund shall notify the Bank of any errors, omissions or
interruptions in, or delay or unavailability of, ACCESS as promptly as
practicable, and in any event within one Business Day after the earliest of (i)
discovery thereof, (ii) the date discovery should have occurred through the
exercise of reasonable care, and (iii) in the case of any error, the date of the
earliest notice to such Fund which reflects such error.
(e) The Bank shall acknowledge through ACCESS its receipt of
each Written Instruction communicated through ACCESS, and in the absence of such
acknowledgement the Bank shall not be liable for any failure to act in
accordance with such Written Instruction and the Funds may not claim that such
Written Instruction was received by the Bank.
7. Funds Transfer Back-Up Procedure. (a) In the event ACCESS is
inoperable and a Fund is unable to utilize ACCESS for the transmission of
Written Instructions to the Bank to transfer funds, the Fund may give Oral
Instructions regarding funds transfers, it being expressly understood and agreed
that the Bank's acting pursuant to such Oral Instructions shall be contingent
upon the Bank's verification of the authenticity thereof pursuant to the
Call-Back Security Procedure set forth
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on Schedule III hereto (the "Procedure"). In this regard, each Fund shall
deliver to the Bank a Funds Transfer Telephone Instruction Authorization in the
form of Schedule III-A hereto, identifying the individuals authorized to deliver
and/or confirm all such Oral Instructions. Each Fund understands and agrees that
the Procedure is intended to determine whether Oral Instructions received
pursuant to this Section are authorized but is not intended to detect any errors
contained in such instructions. Each Fund hereby accepts the Procedure and
confirms its belief that the Procedure is commercially reasonable.
(b) The Bank shall have no liability whatsoever for any funds
transfer executed in accordance with Oral Instructions delivered and confirmed
pursuant to this Section 7 and Schedule III hereto. The Bank's liability for its
negligence in executing or failing to execute any such Oral Instructions shall
be determined by reference to Section 6(b) of this Article.
(c) The Bank reserves the right to suspend acceptance of Oral
Instructions pursuant to this Section 7 if conditions exist which the Bank, in
its sole discretion, believes have created an unacceptable security risk.
8. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY
UNITED STATES LAW. EACH FUND AGREES THAT IT WILL NOT UNDER ANY CIRCUMSTANCES
RESELL, DIVERT, TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY
FORM) IN OR TO ANY OTHER COUNTRY. IF THE BANK DELIVERED THE SOFTWARE TO ANY FUND
OUTSIDE OF THE UNITED STATES, THE SOFTWARE WAS EXPORTED FROM THE UNITED STATES
IN ACCORDANCE WITH THE EXPORT ADMINISTRATION REGULATIONS. DIVERSION CONTRARY TO
U.S. LAW IS PROHIBITED. Each Fund hereby authorizes the Bank to report its name
and address to government agencies to which the Bank is required to provide such
information by law.
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 Schedule I hereto, the Bank shall not be liable for any
loss or damage, including attorney's fees, resulting from the Bank paying any
redemption draft containing a forged drawer signature, unless such loss or
damage arises out of the Bank's gross negligence, bad faith or willful
misconduct. All claims against the Bank hereunder shall be made by the
respective Fund as promptly as practicable, and in any event within 6 months
from the date of the action or inaction on which such claim is based, and shall
include reasonable documentation evidencing such claim and loss.
2. No Liability. The Bank shall have no obligation hereunder for
costs, expenses, damages, liabilities or claims, including attorney's fees,
which are sustained or incurred by reason of any action or inaction by the
Federal Reserve wire transfer system or the New York Automated
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Clearing House. Notwithstanding any other provision elsewhere contained in this
Agreement, in no event shall the Bank be liable to any Fund or any third party
for special, indirect or consequential damages, or lost profits or loss of
business, arising under or in connection with this Agreement, even if previously
informed of the possibility of such damages and regardless of the form of
action.
3. Indemnification. Each Fund shall indemnify and exonerate, save and
hold harmless the Bank from and against any and all costs, expenses, damages,
liabilities or claims, including reasonable attorney's fees and expenses, which
the Bank may sustain or incur or which may be asserted against the Bank by
reason of or as a result of any action taken or omitted by the Bank in
connection with its performance under this Agreement, except those costs,
expenses, damages, liabilities or claims arising out of the Bank's own
negligence, bad faith or wilful misconduct. This indemnity shall be a continuing
obligation of each Fund notwithstanding the termination of this Agreement, any
Account or Omnibus Account with respect to a Fund.
4. No Obligation to Inquire. Without limiting the generality of the
foregoing, the Bank shall in no event be under any obligation to inquire into,
and shall not be liable for:
(a) the due authority of any Authorized Person acting on behalf
of a Fund in connection with this Agreement;
(b) the genuineness of any drawer signature on any draft
deposited in any Account or Omnibus Account, or whether such signature is a
forgery, other than the signature of the drawer of any draft drawn on the Bank;
(c) the existence or genuineness of any endorsement or any
marking purporting to be an endorsement on any draft deposited in any Account or
Omnibus Account, or whether such endorsement or marking is a forgery, it being
expressly understood that all risks associated with the acceptance by the Bank
of any draft payable to a payee other than a Fund for deposit in any Account or
Omnibus Account pursuant to Oral or Written Instructions by the Fund shall be
borne by such Fund;
(d) any discrepancy between the pre-printed investment stub
(other than a substitute stub created by the Bank) and the payee either named on
a draft or written on the face thereof, provided the Bank has acted in
accordance with the investment stub;
(e) any discrepancy between the written amount for which any
draft is drawn and the Magnetic Inscription Character Recognition ("MICR") code
enscribed thereon by any bank other than the Bank on any draft presented,
provided the Bank has acted in accordance with the MICR code;
(f) any disbursement directed by a Fund, regardless of the
purpose therefor;
(g) any determination of the Share balance of any Shareholder
whose name is signed on any redemption draft;
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(h) any determination of length of time any Shares have been
owned by any Shareholder or the method of payment utilized to purchase such
Shares by such Shareholder;
(i) any claims, liens, attachments, stays or stop payment orders
with respect to any Shares, proceeds, or money, other than a stop payment order
placed by a Fund on a draft drawn by such Fund on its Account or an Omnibus
Account;
(j) the propriety and/or legality of any transaction in any
Account or Omnibus Account;
(k) the lack of authority of any person signing as a drawer of a
draft, provided such person and his specimen signature is specified in the
certificate of authorized signatures last received by the Bank; or
(l) whether any redemption draft equals or exceeds any minimum
amount.
5. Reliance Upon Instructions. The Bank shall be entitled to rely
upon any Written or Oral Instructions received by the Bank. Each Fund agrees to
forward to the Bank Written Instructions confirming Oral Instructions in such
manner so that such Written Instructions are received by the Bank by the close
of business of the same day that such Oral Instructions are given to the Bank.
Each Fund agrees that the fact that such confirming Written Instructions are not
timely received or that contrary Written Instructions are received by the Bank
shall in no way affect the validity or enforceability of transactions previously
authorized.
6. Force Majeure. The Bank shall not be responsible or liable for any
failure or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
control, including acts of God; earthquakes; fires; floods; wars; civil or
military disturbances; sabotage; epidemics; riots; interruptions, loss or
malfunctions of utilities, computers (hardware or software), transportation, or
communications service; mechanical breakdowns; interruption or loss of ACCESS
(except as otherwise provided in Section 7 of Article V); accidents; acts of
civil or military authority; governmental actions; labor disputes; or inability
to obtain labor, material, equipment or transportation.
7. No Implied Duties; Performance According To Applicable Law. The
Bank shall have no duties or responsibilities except such duties and
responsibilities as are specifically set forth in this Agreement and Schedule I
hereto, and no covenant or obligation shall be implied against the Bank. The
Bank's duties and responsibilities hereunder shall be performed in accordance
with applicable laws, regulations and rules, including but not limited to
Federal Reserve Regulation CC and the Operating Rules of the New York Automated
Clearing House, and the Bank shall have no obligation to take actions which in
the reasonable opinion of the Bank are either inconsistent with, or prejudice or
impair the Bank's rights under, any such laws, regulations and rules.
8. Requests for Instructions. At any time the Bank may apply to an
officer of a Fund for Oral or Written Instructions with respect to any matter
arising in connection with the Bank's duties and obligations hereunder, and the
Bank shall not be liable for any action taken or permitted
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by it in good faith in accordance with such Oral or Written Instructions. Such
application for Oral or Written Instructions may, at the option of the Bank, set
forth in writing any action proposed to be taken or omitted by the Bank with
respect to its duties or obligations hereunder and the date on or after which
such action shall be taken, and the Bank shall not be liable for any action
taken or omitted in accordance with a proposal included in any such application
on or after the date specified therein (which shall be at least 5 days after the
date of such Fund's receipt of such application) unless, prior to taking or
omitting any such action, the Bank has received Oral or Written Instructions in
response to such application specifying the action to be taken or omitted. The
Bank may apply for and obtain the advice and opinion of counsel to the Fund or
of its own counsel, at the expense of the Fund, and shall be fully protected
with respect to anything done or omitted by it in good faith in conformity with
such advice or opinion.
9. Delegation of Duties. The Bank may delegate any of its duties and
obligations hereunder to any delegee and may employ agents or attorneys-in-fact;
provided however, that no such delegation or employment by the Bank shall
discharge the Bank from its obligations hereunder. The Bank shall have no
liability or responsibility whatsoever if any delegee, agent or attorney-in-fact
shall have been selected or approved by a Fund. Notwithstanding the foregoing,
nothing contained in this paragraph shall obligate the Bank to effect any
delegation or to employ any agent or attorney-in-fact.
10. Fees; Invoices. (a) For its services hereunder, each Fund agrees
to pay the Bank (i) its out-of-pocket expenses, (ii) the monthly fees and
compensation set forth on Schedule II attached hereto, and (iii) any negative
Calendar Month Earnings Credits, and such other amounts as may be mutually
agreed upon from time to time. The Bank shall provide each Fund with a monthly
activity analysis detailing service volumes, and including average Account
Available Balances and average ledger balances, and all fees owing for such
month.
(b) The Bank shall submit periodic invoices specifying the
amount of all out-of- pocket expenses, fees, compensation and negative Calendar
Month Earnings Credits then due hereunder. The Bank may, and is hereby
authorized by each Fund, to charge such amounts to an Omnibus Account or the
appropriate Fund's Account(s), but only if such amounts remain unpaid for
fifteen (15) days after the end of the period to which such amounts relate.
11. Application of Calendar Month Earnings Credits. (a) Any positive
Calendar Month Earnings Credit for a calendar month shall be applied only as
follows and only in the specified order:
i. First, applied against such compensation, fees, but not
out-of-pocket expenses, payable by such Fund to the Bank under this
Agreement for such month; and
ii. Second, applied against such compensation, fees, and
negative Calendar Month Earnings Credits, but not out-of-pocket
expenses, payable by such Fund to the Bank under this Agreement for any
subsequent month in the same calendar year.
(b) Except as provided above, in no event may any Calendar Month
Earnings Credit be applied to any month other than the month in which it was
earned. Calendar Month
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Earnings Credits may not be transferred to, or utilized by, any other Fund,
person or entity. The portion, if any, of any Calendar Month Earnings Credit not
used by a Fund may be carried, but only forward; provided, however, that in no
event may any Calendar Month Earnings Credit, including those earned during the
fourth calendar quarter, be carried beyond the end of the calendar year in which
earned.
ARTICLE VII
TERMINATION
1. Notice. This Agreement may be terminated by either the Bank giving
to any Fund, or any Fund giving to the Bank, a notice in writing specifying the
date of such termination, which date shall be not less than 90 days after the
date of the giving of such notice. Notwithstanding the foregoing, the Bank
reserves the right to terminate this Agreement (a) at any time upon 30 days
prior written notice if the condition precedent set forth in Article II,
paragraph 3 is unfulfilled, and (b) upon notice if a Fund either (i) fails to
comply with Article IV, Section 3, or (ii) borrows funds from the Bank in an
amount exceeding the Bank's legal lending limit.
2. Obligations Upon Termination. Upon termination, the Bank's sole
obligations, which shall arise only after, and not before, each Fund which is
the subject of such termination has paid to the Bank all out-of-pocket expenses,
fees, compensation, negative Calendar Month Earnings Credits and other amounts
owed by such Fund to the Bank, shall be (i) to deliver to the affected Fund(s)
such records, if any, as may be owned by such Fund(s), in the form and manner
kept by the Bank on such date of termination, and (ii) to pay to the affected
Fund(s) any monies held for their account hereunder.
ARTICLE VIII
MISCELLANEOUS
1. Certificates of Authorized Persons. Each Fund agrees to furnish to
the Bank a new certificate of Authorized Persons in the event that any present
Authorized Person of such Fund ceases to be an Authorized Person or in the event
that any other Authorized Persons are appointed and authorized. Until such new
certificate is received, the Bank shall be fully protected in acting under the
provisions of this Agreement upon Oral or Written Instructions or signatures of
the present Authorized Persons as set forth in the last delivered certificate.
2. Notices. (a) Any notice or other instrument in writing, authorized
or required by this Agreement to be given to the Bank, shall be sufficiently
given if addressed to the Bank and received by it at its offices at 00
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Division
Manager - Mutual Funds, or at such other place as the Bank may from time to time
designate in writing.
(b) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to a Fund shall be sufficiently given if
addressed to a Fund and received by it at
, or at such other place as such Fund may from time to time
designate in writing.
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3. Cumulative Rights and No Waiver. Each and every right granted to
the Bank hereunder or under any other document delivered hereunder or in
connection herewith, or allowed it by law or equity, shall be cumulative and may
be exercised from time to time. No failure on the part of the Bank to exercise,
and no delay in exercising, any right will operate as a waiver thereof, nor will
any single or partial exercise by the Bank of any right preclude any other or
future exercise thereof or the exercise of any other right.
4. Severability. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or obligations
shall not in any way be affected or impaired thereby, and if any provision is
inapplicable to any person or circumstances, it shall nevertheless remain
applicable to all other persons and circumstances.
5. Amendments. This Agreement may not be amended or modified in any
manner except by a written agreement executed by the Bank and each Fund to be
bound thereby, and, except in the case of an amendment to Schedule I hereto,
authorized or approved by a resolution of each Fund's Board.
6. Headings. The headings in this Agreement are inserted for
convenience and identification only and are in no way intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provisions hereof.
7. Applicable Law; Consent to Jurisdiction; Jury Trial Waiver. This
Agreement shall be construed in accordance with the laws of the State of New
York without giving effect to conflict of laws principles thereof. Each party
hereby consents to the jurisdiction of a state or federal court situated in New
York City, New York in connection with any dispute arising hereunder and hereby
waives its right to trial by jury.
8. No Third Party Beneficiaries. The provisions of this Agreement are
intended to benefit only the Bank and each Fund and their respective permitted
successors and assigns, and no right shall be granted to any other person by
virtue of this Agreement.
9. Successors and Assigns. This Agreement shall extend to and shall
be binding upon the parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by any Fund
without the written consent of the Bank and authorized or approved by a
resolution of such Fund's Board.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
11. Several Obligations. The parties acknowledge that the obligations
of the Funds are several and not joint, that no Fund shall be liable for any
amount owing by another Fund and that the Funds have executed one instrument for
convenience only.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized, as
of the day and year first above written.
By:
---------------------------------------
on behalf of each Fund identified on
Schedule A attached hereto
THE BANK OF NEW YORK
By:
---------------------------------------
Title:
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SCHEDULE A
Name of Fund
ASSET MANAGEMENT FUND, INC.
Money Market Portfolio
Short U.S. Government Securities Portfolio
Adjustable Rate Mortgage (ARM) Portfolio
Intermediate Mortgage Securities Portfolio
U.S. Government Mortgage Securities Portfolio
INSTITUTIONAL INVESTORS CAPITAL APPRECIATION FUND, INC.
M.S.B. FUND, INC.
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EXHIBIT A
I, of (the "Fund"), a
corporation do hereby certify that:
The following individuals have been duly authorized by the [Board of
Directors] [Board of Trustees] of the Fund in conformity with the Fund's
[Articles of Incorporation] [Declaration of Trust] and By-Laws to give Oral
Instructions and Written Instructions on behalf of the Fund for purposes of the
Fund's Cash Management and Related Services Agreement, and the signatures set
forth opposite their respective names are their true and correct signatures.
Name Signature
---------------------------------------------------------- --------------------------------------------------------
---------------------------------------------------------- --------------------------------------------------------
---------------------------------------------------------- --------------------------------------------------------
---------------------------------------------------------- --------------------------------------------------------
---------------------------------------------------------- --------------------------------------------------------
-------------------------------------
[Title of Officer]
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CASH MANAGEMENT SERVICES/FEES
FOR
SHAY ASSETS MANAGEMENT
DEPOSIT SERVICES
FEE COMMENTS
--- --------
Monthly Maintenance $35.00 Checking Account
Deposit Ticket $ 1.10 Cash Letter/Deposit
Deposit Item $ 0.17 Uncoded Cash Letter Item E.G. Cash Letter, OCR
Deposit Item Returned $10.00
Paid Check .17
Stop Payment/Manual 20.00 Written/Oral
Stop Payment/Automated 6.00
Internal Debit $ 0.50
Internal Credit $ 0.50
MicroFilm (Reel or Cassette) 25.00 Paid Checks; Reports, etc.
Microfiche 5.00 Lock Box/Reports, etc.
Data Transmission 10.00 Paid Checks; Reports, etc.
FUNDS TRANSFER
Outgoing Fed Funds/Chips
------------------------
- Book to Book $ 4.00 No Charge for Credits
- Fast Process $ 4.00
- Operator Interventions-Repair $ 5.00
Incoming Fed Funds/Chips
------------------------
- Fast Process 5.50
Telephone Advice 5.00
----------------
Official Check Issuance
-----------------------
- Fast Process $ 3.00
- Operator Intervention-Repair $ 5.00
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CASH MANAGEMENT SERVICES/FEES
FOR
SHAY ASSETS MANAGEMENT
ELECTRONIC BANKING SERVICES
Balance Reporting Prior Day Information
Per Access 4.50
Per Summary/Detail Fields Loaded .20
Per Summary/Detail Fields Reported .10
TIME CRITICAL REPORTS
DYNAMIC REPORT Intra-Day Balance/Detail
-------------- Per Account
Per Access 3.00
Per Item - Abbreviation Text .25
Per Item - Full Text 1.00
MICRO/CA$H-REGISTER SOFTWARE MAINTENANCE
Installation Waived Per Installation
Per Customer ID $25.00 Per Month, Basic
Fund Transfer $25.00 Per Month, Basic
ITEMS STATUS REPORT
-------------------
Per Month Waived
Direct Customer Inquiry No Charge
EARNINGS CREDIT
---------------
Calculated based on the 90 day U.S. Treasury Xxxx rate on the average daily
balances less reserves. The Credit is applied against your Cash Management fees.
OVERDRAFT CHARGES
-----------------
Overdraft charges will be computed at 1% above the Federal Funds Rate on the day
of the overdraft, based on negative account available balances.
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