Exhibit 8(ii) under Form N-1A
Exhibit 10 under Item 601/Reg. X-X
XXXX MANAGEMENT AND RELATED SERVICES AGREEMENT, dated as of October 1,
1996, between each entity 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 AVAILABLE BALANCE" shall mean with respect to an Account for
any given day during a calendar month a positive or negative dollar amount equal
to (A) if such day is a Business Day, the Account Available Balance as of the
close of the last preceding Business Day plus a positive or negative dollar
amount equal to the difference, if any, between the Chargeable Credits with
respect to such day and such Account and the Chargeable Debits with respect to
such day and such Account, and (B) if such day is not a Business Day, the
Account Available Balance as of close of the last preceding Business Day, except
that both (A) and (B) shall be reduced by the United States Federal Reserve
reserve requirements then applicable to the Bank with respect to such Account.
The Account Available Balance of an Account shall be zero on the date
immediately preceding the first date on which an entry, consisting of either a
Chargeable Credit or Chargeable Debit, is first made to such Account hereunder.
2. "ACCESS" shall mean any on-line communication system provided by the
Bank hereunder whereby either the receiver of such communication is able to
verify by codes or otherwise with a reasonable degree of certainty the identity
of the sender of such communication, or the sender is required to provide a
password or other identification code.
3. "AUTHORIZED PERSON" shall mean either (A) any person authorized by
corporate resolutions of the board of directors of a Fund to give Oral and/or
Written Instructions on behalf of such Fund, such persons to be designated in a
certificate, substantially in the form of Exhibit A, which contains a specimen
signature of such person, or (B) any person sending or transmitting any
instruction or direction through ACCESS.
4. "BUSINESS DAY" shall mean any day on which the Federal Reserve Bank of
New York is open for business, except for any such day on which the Bank is
required by law or regulation to be closed, or elects to be closed.
5. "CALENDAR MONTH EARNINGS CREDIT" shall mean with respect to an Account
for any calendar month the dollar amount, whether positive or negative, equal to
the sum of the Gross Calendar Month Earnings Credit with respect to such Account
for such calendar month and the Monthly Overdraft Charges with respect to such
Account for such calendar month.
6. "CHARGEABLE CREDITS" shall mean with respect to an Account for any
given day during a calendar month a positive amount of dollars equal to the sum,
if any, of (A) the aggregate dollar amount of Federal Funds credited to such
Account by the Bank 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.
7. "CHARGEABLE DEBITS" shall mean with respect to an Account for any given
day during the calendar month a negative dollar amount equal to the sum, if any,
of (A) the aggregate dollar amount of Federal Funds relating to such Account
charged against the Bank by the Federal Reserve Bank of New York on or as of
such day, and (B) the aggregate dollar amount of drafts drawn on such Account
which are deposited in the Bank by customers of the Bank on such day, or Bank
internal transfers from, or charges to, such Account.
8. "DAILY EARNINGS" shall mean with respect to an Account for any day
during a calendar month a positive dollar amount equal to the product of (A) the
positive Account Available Balance, if any, of such Account for such day,
multiplied by (B) the Daily Earnings Rate for such day. The Daily Earnings with
respect to an Account for any day during a calendar month on which the Account
Available Balance of such Account is negative shall be zero.
9. "DAILY EARNINGS RATE" shall mean for any day during a calendar month
one three hundred and sixty-fifth of the 91 day U.S. Treasury Xxxx discount rate
of the Monday auction first preceding such day (whether or not such day is a
Monday, and whether or not such Monday auction was in the immediately prior
month), as such Monday auction 91 day U.S. Treasury Xxxx discount rate is
reported in The Wall Street Journal.
10. "DAILY OVERDRAFT CHARGES" shall mean with respect to an Account for
any day during any calendar month a negative dollar amount equal to the product,
if any, of (A) the negative Account Available Balances, if any, with respect to
such Account for such day during such calendar month, multiplied by (B) the
Overdraft Rate.
11. "FEDERAL FUNDS" shall mean immediately available same day funds.
12. "GROSS CALENDAR MONTH EARNINGS CREDIT" shall mean with respect to an
Account for any calendar month a positive dollar amount equal to the aggregate
sum of the Daily Earnings of such Account for such calendar month.
13. "MONTHLY OVERDRAFT CHARGES" shall mean with respect to an Account for
any calendar month a negative dollar amount equal to the aggregate sum of the
Daily Overdraft Charges with respect to such Account for such calendar month
which have not been previously paid to the Bank by the Fund to which such
Account relates.
14. "ORAL INSTRUCTIONS" shall mean verbal instructions actually received
by the Bank from an Authorized Person or from a person reasonably believed by
the Bank to be an Authorized Person.
15. "OVERDRAFT RATE" shall mean with respect to an Account for any
calendar day during any calendar month a rate equal to one three hundred and
sixtieth of the sum of (A) one-half percent, and (B) the greater of (i) the
prime commercial lending rate of The Bank of New York, as publicly announced to
be in effect from time to time, in effect on such calendar day, and (ii) 6%.
16. "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.
17. "SHAREHOLDER" shall mean any record holder of any Shares, as
identified to the Bank from time to time pursuant to this Agreement.
18. "WRITTEN INSTRUCTIONS" shall mean written instructions actually
received by the Bank from an Authorized Person or from a person reasonably
believed by the Bank to be an Authorized Person by letter, memorandum, telegram,
cable, telex, telecopy 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 Schedules I and II attached hereto and made a
part hereof (as such Schedules may be amended or supplemented from time to time
by mutual agreement). The Bank hereby accepts appoints as such agent for each
appointment Fund and agrees to establish and maintain one or more separate
accounts with respect to each Fund (each, an "Account"; collectively, the
"Accounts") in order to receive and disburse money for the purposes set forth in
this Agreement.
2. Representations and Warranties. Each Fund hereby represents and
warrants only as it itself, and not jointly, to the Bank, which representations
and warranties shall be continuing and to be reaffirmed upon delivery tothe Bank
of any Oral or Written Instructions, that:
(a) It is duly organized and existing under the laws of the jurisdiction
of its organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered by the
Fund in accordance with all requisite corporate action and constitutes a valid
and legally binding obligation of the Fund enforceable in accordance with its
terms, except to the extent such enforcement may be limited by general equity
principles or bankruptcy principles; and
(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.
ARTICLE III
CASH MANAGEMENT SERVICES
1. Receipt of Money. The Bank shall receive money for credit to an Account
only:
(i) by personal presentment of drafts by a Fund, but not by a
Shareholder of such Fund, at the branch or branches in Manhattan
identified from time to time by the Bank to such Fund, provided such
presentment is in accordance with the time frames specified by the
Bank to such Fund;
(ii) by mailing of drafts to a post office box designated by the Bank for
such purpose, provided such drafts are accompanied by a properly
completed investment stub;
(iii) by wire transfer to an account maintained at the Federal Reserve
Bank of New York as identified in writing by the Bank to a Fund;
(iv) by transfer to an account identified in writing by the Bank to a Fund
through the New York Automated Clearing House;
(v) by transfer from another Account maintained by such Fund with the Bank
under this Agreement;
(vi) by transfer from another account maintained by such Fund with the
Bank, including such Fund's custodian account under its Custody
Agreement with the Bank as Custodian; and
(v) by transfer from any other account maintained with the Bank.
All money received by the Bank shall be credited upon receipt, but subject to
final payment and receipt by the Bank of immediately available funds, and
receipt by the Bank of such forms, documents and information as are required by
the Bank from time to time and received in the appropriate time frames. The Bank
shall be entitled to reverse any credits previously made to a Fund's Account
where money is not finally collected or where a credit to such Fund's Account
was in error.
2. Disbursement of Money. The Bank shall disburse money credit to an
account only:
(i) pursuant to Written Instructions of such Fund transmitted through
ACCESS (except as otherwise provided in Article V, Section 7
hereof), to transfer funds as directed by such Fund (including
transfers through the Federal Reserve Bank of New York transfer wire
and the New York Automated Clearing House);
(ii) in payment of drafts drawn by an Authorized Person or Shareholder
(as appropriate for the particular Account), subject to the terms
hereof; and
(iii) in payment of charges to such Account representing amounts payable
to the Bank, and chargeable against such Account, as provided in
this Agreement.
The Bank shall be required to disburse money in accordance with the foregoing
only insofar as such money is immediately available and on deposit with the
Bank. All instructions directing the disbursement of money credited to an
Account under this Agreement (whether through ACCESS or by Oral Instructions
pursuant to Article V hereof) must identify an account to which such money shall
be transferred, and include all other information reasonably required by the
Bank from time to time. It is understood and agreed that with respect to any
such instructions, when instructed to credit or pay a party by both name and a
unique numeric or alpha-numeric identifier (e.g., ABA number or account number),
the Bank and any other financial institution participating in the funds transfer
may rely solely on the unique identifier, even if it identifies a party
different than the party named. Such reliance on a unique identifier shall apply
to beneficiaries named in such instructions as well as any financial institution
which is designated in such instruction to act as an intermediary in a funds
transfer.
3. Redemption Drafts: Shareholder Information. (a) Each Fund shall be
entitled to supply its Shareholders with redemption drafts, but only in a form
and substance agreed to by the Bank. The Bank agrees to give each Fund sixty
(60) days prior notice of any changes to the form or substance of redemption
drafts required by the Bank, provided that if such change is required by
applicable rules or procedures of the Federal Reserve or any clearinghouse
through which such drafts may be presented, the Bank may as promptly as
practicable give such notice which may be less than sixty (60) days.
(b) Each Fund will promptly furnish to the Bank (i) the name, mailing
address and telephone number of each Shareholder of such Fund, and (ii) specimen
signatures for all individuals authorized to draw redemption drafts (whether on
their own behalf or on behalf of third parties). Each Fund will promptly advise
the Bank of individuals no longer authorized to draw redemption drafts, and
those individuals newly authorized. Such information shall be provided to the
Bank in a mutually agreed upon format.
4. Redemption Draft Returns. A Fund may give the Bank Oral or Written
Instructions from time to time to return unpaid redemption drafts of the Fund to
the presenting financial institution for any reason, and the Bank shall use
reasonable efforts to comply with such Oral or Written Instructions provided
that any such compliance would not prejudice or impair any rights or privileges
of the Bank under prevailing draft return procedures and would not be contrary
to prevailing industry rules, procedures, customs or practices. Notwithstanding
the foregoing, or any other provision in this Agreement or the Schedules hereto,
the Bank (i) may return redemption drafts with unauthorized or missing
signatures to the presenting financial institution in accordance with prevailing
banking industry draft return procedures, and (ii) shall have no obligation to
request Oral or Written Instructions from a Fund with respect to any redemption
drafts.
ARTICLE IV
OVERDRAFTS OR INDEBTEDNESS
If the Bank in its sole discretion advances funds, or if there shall arise
for whatever reason an overdraft or other indebtedness in connection with any
Account, such advancement of funds or overdraft with respect to such Account
shall be deemed a loan made by the Bank to the Fund or such portfolio series
("Series") of the Fund to which the Account relates, payable on demand and
bearing interest from the date incurred at the Overdraft Rate, such Overdraft
Rate to be adjusted on the effective date of any change in the prime commercial
lending rate constituting a part thereof. Upon any such advance or overdraft,
the Bank shall be furnished promptly with Written Instructions identifying the
Fund(s) or Series to which it relates, and the amount allocable thereto. Each
Fund hereby agrees that the Bank shall be a continuing lien and security
interest in and to the net assets specifically allocated to such Fund or Series
at any time held by it for the benefit of such Fund or Series 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 change any
such overdraft or indebtedness together with interest due thereon at the
Overdraft Rate against any balance of accounts standing to such Fund's Custody
Agreement with the Bank. Each Fund authorizes the Bank, in its sole discretion,
at any time to charge any such overdraft or indebtedness together with interest
due thereon at the Overdraft Rate against any balance of accounts standing to
such Fund's or Series' credit on the books of the Bank, including those books
maintained by the Bank in its capacity as Custodian for the Fund under its
Custody Agreement with the Fund. In addition, each Fund hereby covenants that on
each business Day on which either it intends to enter a reverse repurchase
agreement and/or otherwise borrow from a third party, or which next succeeds a
Business Day on which at the close of business the Fund had outstanding a
reverse repurchase agreement or such borrowing, it shall prior to 9:00 a.m. (New
York City time) or as soon as practicable advise the Bank, in writing, of each
such borrowing, shall specify the Series to which the same relates, and shall
not incur any indebtedness not so specified other than from the Bank.
ARTICLE V
ACCESS: CALL-BACK SECURITY PROCEDURE
1. Services Generally. Each fund shall be permitted to utilize ACCESS to
obtain direct on-line access to its Accounts. ACCESS shall permit each Fund at
all time 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. (a) Each Fund shall use ACCESS
and the services available thereby only for its own internal and proper business
purposes and shall not sell, lease or otherwise provide, directly or indirectly,
ACCESS or any of such services or any portion thereof to any other person or
entity. Each Fund shall obtain and maintain at its own cost and expense all
equipment and services, including but not limited to communications services,
necessary for it to utilize ACCESS and receive the services thereby, and the
Bank shall not be responsible for the reliability or availability of any such
equipment or any services used in connection with ACCESS.
(b) Each Fund acknowledge that all data bases made available as part of,
or through ACCESS, and any proprietary data, processes, information and
documentation (other than any such which are or become part of the public domain
or are legally required to be made available to the public and other than any
data or other information relating to the Fund's Shareholders and the
transactions covered by this Agreement) (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) Upon termination of this Agreement for any reason, each Fund shall
return to the Bank any and all copies of the Information which are in such
Fund's possession or under its control, or distributed to third parties. The
provisions of this Article shall not affect the copyright status of any of the
Information which may be copyrighted and shall apply to all Information whether
or not copyrighted.
3. Modifications. The Bank reserves the right to modify ACCESS from time
to time without notice to any Fund. Each Fund agrees not to modify or attempt to
modify ACCESS without the Bank's prior written consent. Each Fund acknowledges
that ACCESS is the property of the Bank and, accordingly, each Fund agrees that
any modifications to ACCESS, whether by such Fund or the Bank and whether with
or without the Bank's consent, shall become the property of the Bank.
4. No Representations or Warranties. Neither the Bank nor any
manufacturers or suppliers it utilizes or any Fund utilizes in obtaining ACCESS
makes any warranties or representations, express or implied, in fact or in law,
including but not limited to warranties of merchantability and fitness for a
particular purpose.
5. Security: Reliance: Unauthorized Use. Each Fund will, and will cause
all persons utilizing ACCESS to, treat the user and authorization codes,
passwords and authentication keys applicable to ACCESS with extreme care. The
Bank is hereby irrevocably authorized to act in accordance with and rely on
Written Instructions received by it through ACCESS. Each Fund acknowledges that
it is its sole responsibility to assure that only authorized persons use ACCESS
and that the Bank shall not be responsible nor liable for any unauthorized use
thereof.
6. Limitations of Liability. (a) Except as otherwise specifically provided
in Section 6(b) below, the Bank shall have no liability for any losses, damages,
injuries, claims, costs or expenses of a Fund arising out of or in connection
with any failure, malfunction or other problem relating to any Fund's use of
ACCESS, except for money damages suffered as the direct result of the negligence
of the Bank in an amount not exceeding, for any incident, $100,000; 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 shall be liable for any loss or damage to a Fund arising out
of its own negligence of willful misconduct in operating ACCESS. 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 less 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 earlier of (i)
discovery thereof, (ii) the date discovery should have occurred through the
exercise of reasonable care, and (iii) in the case of any error, the date of the
earliest notice to such Fund which reflects such error.
7. Fund's Transfer Back-Up Procedure. (a) In the event ACCESS is
inoperable and a Fund is unable to utilize ACCESS for the transmission of
Written Instructions to the Bank to transfer funds, the Fund may give Oral
Instructions regarding funds transfers, it being expressly understood and agreed
that the Bank's acting pursuant to such Oral Instructions shall be contingent
upon the Bank's verification of the authenticity thereof pursuant to the
Call-Back Security Procedure set forth on Schedule III hereto (the "Procedure").
In this regard, each Fund shall deliver to the Bank a Funds Transfer Telephone
Instruction Authorization in the form of Schedule III-A hereto, identifying the
individuals authorized to delivery and/or confirm all such Oral Instructions.
Each Fund understands and agrees that the Procedure is intended to determine
whether Oral Instructions received pursuant to this Section are authorized but
is not intended to detect any errors contained in such Instructions. Each Fund
hereby accepts the Procedure and confirms its belief that the Procedure is
commercially reasonable.
(b) The Bank shall have no liability whatsoever for any funds transfer
executed in accordance with Oral Instructions delivered and confirmed pursuant
to this Section 7 and Schedule III hereto. The Bank's liability for its
negligence in executing or failing to execute any such Oral Instructions shall
be determined by reference to Section 6(b) of this Article.
(c) The Bank reserves the right to suspend acceptance of Oral Instructions
pursuant to this Section 7 if conditions exist which the Bank, in its sole
discretion, believes have created an unacceptable security risk.
ARTICLE VI
CONCERNING THE BANK
1. Standard of Care: Presentment of Claims. Except as otherwise provided
herein, the Bank shall not be liable for any costs, expenses, damages,
liabilities or claims (including attorney's fees) incurred by a Fund, except
those costs, expenses, damages, liabilities or claims arising out of the Bank's
own negligence, bad faith or willful misconduct. Notwithstanding the foregoing
or anything contained in the Schedules 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 arising 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 12 months
from the date of the action or inaction on which such claim is based, and shall
include documentation evidencing such claim and loss.
2. No Liability. The Bank shall have no obligation hereunder for costs,
damages, liabilities or claims, including attorney's fees, which are sustained
or incurred by reason of any action or inaction by the Federal Reserve wire
transfer system or the New York Automated Clearing House. Notwithstanding any
other provision elsewhere contained in this Agreement, in no event shall be 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 willful misconduct. This indemnity shall be a
continuing obligations of each Fund notwithstanding the termination of this
Agreement, or any Account, with respect to a Fund.
4. No Obligations to Inquire. Without limiting the generality of the
foregoing, the Bank shall in no event be under any obligation to inquire into,
and shall not be liable for:
(a) the due authority of any Authorized Person acting on behalf of a Fund
in connection with this Agreement;
(b) the genuineness of any drawer signature on any draft deposited in any
Account, or whether such signature is a forgery, other than the signature of the
drawer of any draft drawn on the Bank;
(c) the existence or genuineness of any endorsement or any marking
purporting to be an endorsement on any draft deposited in any Account, or
whether such endorsement or marking is a forgery, it being expressly understood
that all risks associated with the acceptance by the Bank of any draft payable
to a payee other than a Fund for deposit in any Account pursuant to Oral or
Written Instructions by the Fund shall be borne by such Fund.
(d) 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, as long as the
Bank has acted in accordance with the MICR code; provided however, that the Bank
will diligently pursue claims against banks presenting such drafts to the Bank
pursuant to applicable law;
(e) any disbursement directed by any Fund, regardless of the purpose
therefor;
(f) any determination of the Share balance of any Shareholder whose name
is signed on any redemption draft;
(g) 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;
(h) any claims, liens, attachments, stays or stop orders with respect to
any Shares, proceeds, or money, other than a stop payment placed by a Fund on a
draft drawn by such Fund on its Account;
(i) the propriety and/or legality of any transaction in any Account;
(j) 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
(k) whether any redemption draft equals or exceeds any minimum amount.
5. Reliance Upon Instructions. The Bank shall be entitled to rely upon any
Written or Oral Instructions received by the Bank. Each Fund agrees to forward
to the Bank Written Instructions confirming Oral Instructions in such manner so
that such Written Instructions are received by the Bank by the close of business
of the same day that such Oral Instructions are given to the Bank. Each Fund
agrees that the fact that such confirming Written Instructions are not timely
received or that contrary Written Instructions are received by the Bank shall in
no way affect the validity or enforceability of the transactions 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 Banks
shall have no duties or responsibilities except such duties and responsibilities
as are specifically set forth in this Agreement and Schedules I and II hereto,
and no covenant or obligation shall be implied in this Agreement against the
Bank. The Bank's duties and responsibilities hereunder shall be performed in
accordance with applicable laws, regulations and rules, including but not
limited to Federal Reserve 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
Authorized Person for Oral or Written Instructions with respect to any matter
arising in connection with the Bank's duties and obligations with respect to an
Account of such Fund, and the Bank shall not be liable for any action taken or
permitted by it in good faith in accordance with such Oral or Written
Instructions. Such application for Oral or Written Instructions may, at the
option of the Bank, set forth in writing any action proposed to be taken or
omitted by the Bank with respect to its duties or obligations under this
Agreement and the date on and/or after which such action shall be taken, and the
Bank shall not be liable for any action taken or omitted in accordance with a
proposal included in any such application on or after the date specified therein
(which shall be at least 5 days after the date of such Fund's receipt of such
application) unless, prior to taking or omitting any such action, the Bank has
received Oral or Written Instructions in response to such application specifying
the action to be taken or omitted. The Bank may apply for and obtain the advice
and opinion of counsel to each Fund or of its own counsel, at the expense of a
Fund, and shall be fully protected with respect to anything done or omitted by
it in good faith in conformity with such advice or opinion.
9. Delegation of Duties. The Bank may delegate any of its duties and
obligations hereunder to any delegee and may employ agents or attorneys-in-fact;
provided however, that no such delegation or employment by the Bank shall
discharge the Bank from its obligations hereunder. The Bank shall have no
liability or responsibility whatsoever if any delegee, agent or attorney-in-fact
shall have been selected or approved by a Fund. Notwithstanding the foregoing,
nothing contained in this paragraph shall obligate the Bank to effect any
delegation or to employ any agent or attorney-in-fact.
10. Fees; Invoices. (a) For its services hereunder, each Fund agrees to
pay the Bank (i) its out-of-pocket expenses, (ii) the monthly fees and
compensation set forth on Schedules I and II attached hereto, and (iii) any
negative Calendar Month Earnings Credits, and such other amounts as may be
mutually agreed upon from time to time. The Bank shall provide each Fund with a
monthly activity analysis detailing service volumes, and including average
Account Available Balances and average ledger balances, and all fees owing for
such month.
(b) The Bank shall submit periodic invoices specifying the amount of all
out-of-pocket expenses, fees, compensation and negative Calendar Month Earnings
Credits then due hereunder.
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, payment 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 even may any Calendar Month Earnings
Credit be applied to any month other than the month in which it was earned.
Calendar Month Earnings Credits may not be transferred to, or utilized by, any
other Fund, person or entity. The portion, if any, of any Calendar Month
Earnings Credit not used by a Fund may be carried, but only forward; provided,
however, that in no event may any Calendar Month Earnings Credit, including
those earned during the fourth calendar quarter, be carried beyond the end of
the calendar year in which earned.
ARTICLE VII
TERMINATION
1. Prior Notice. This Agreement may be terminated by either the Bank given
to any Fund, or any Fund giving to the Bank, a notice in writing specifying the
date of such termination, which date shall be not less than 90 days after the
date of the giving of such notice. Notwithstanding the foregoing, the Bank
reserves the right to terminate this Agreement at any time upon 30 days prior
written notice if any of the conditions precedent set forth in Article II,
paragraph 3 are unfulfilled.
2. Obligations Upon Termination. Upon termination, the Bank's sole
obligations, which shall arise only after, and not before, each Fund which is
the subject of such termination has paid to the Bank all out-of-pocket expenses,
fees, compensation, negative Calendar Month Earnings Credits and other amounts
owed by such Fund to the Bank, shall be (i) to deliver to such Fund such
records, if any, as may be owned by such Fund, in the form and manner kept by
the Bank on such date of termination, and (ii) to pay all funds held hereunder
for such Fund to such Fund.
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 c/o Nomura Corporate Research and Asset Management
Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000; Attention: , or
at such other place as such Fund may from time to time designate in writing.
3. Cumulative Rights and No Waiver. Each and every right granted to the
Bank hereunder or under any other document delivered hereunder or in connection
herewith, or allowed it by law or equity, shall be cumulative and may be
exercised from time to time. No failure on the part of the Bank to exercise, and
no delay in exercising, any right will operate as a waiver thereof, nor will any
single or partial exercise by the Bank of any right preclude any other future
exercise thereof or the exercise of any other right.
4. Severability. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or obligations
shall not in any way be affected or impaired thereby, and if any provision is
inapplicable to any person or circumstances, it shall nevertheless remain
applicable to all other persons and circumstances.
5. Amendments. This Agreement may not be amended or modified in any manner
except by a written agreement executed by the Bank and each Fund to be bound
thereby, and, except in the case of an amendment to Schedules I and II hereto,
authorized or approved by a resolution of each Fund's board of directors.
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 Waver. 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 successors
and assigns, and no right shall be granted to any other person by virtue of this
Agreement.
9. Successors and Assigns. This Agreement shall extend to and shall be
binding upon the parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by any Fund
without the written consent of the Bank and authorized or approved by a
resolution of such Fund's board of directors.
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunder duly authorized, as
of the day and year first above written.
By: /s/ Xxxxxx Xxxxxx
Title: President
on behalf of each Fund identified
on Schedule A attached hereto
THE BANK OF NEW YORK
By: /s/ Xxxxxx Xxxxxxx
Title: Vice President
FEDERATED SERVICES COMPANY
TRANSFER AGENT
PROPER INSTRUCTIONS/AUTHORIZED SIGNERS
I. CASH MOVEMENT
(A) ....approved to authorize the daily movement of funds between the
Transfer Agency and Custodian DDA accounts.
Any 1 signature
Xxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxxxxxxx Xxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxx Xxxxxx X. Xxxxx
Xxxxxxxxx Xxxxxx Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxx Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxx
(B) ....approved to authorize the establishment of repetitive money
transfer wiring instructions with clearing/disbursement bank.
Any 2 signatures
Xxxxxx Xxxxxx
R. Xxxxxxx Xxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
(C) ....approved to authorize the execution of non-repetitive money
transfer wiring instructions.
Any 1 signature
Xxxxxx Xxxxxx
R. Xxxxxxx Xxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
CASH MOVEMENT (con't)
(D) ....approved to authorize the execution of repetitive money transfer
wiring instructions.
Any 1 signature
Xxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxxxxxxx Xxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxxxx Xxxxxx X. Xxxxx
Xxx Xxxxxx Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx Xxxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxx Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxx
(E) ....approved to sign fund redemption checks, dividend checks, dealer
commission checks.
Any 1 signature
Xxxxx X. Xxxxx
R. Xxxxxxx Xxxx
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
EXHIBIT A
I, Xxxx Xxxxxx, Officer of the "Battery Park High Yield Fund" (the "Fund"), a
Maryland corporation do hereby certify that:
The following individuals have been duly authorized by the Board of Directors of
the Fund in conformity with the Fund's Articles of Incorporation and By-Laws to
give Oral Instructions and Written Instructions on behalf of the Fund, for
purposes of the Fund's Cash Management and Related Services Agreement, and the
signatures set forth opposite their respective names are their true and correct
signatures:
NAME SIGNATURE
Xxxxx Xxxxxxxxxx /s/ Xxxxx Xxxxxxxxxx
Xxxxxxxx X. Xxxxxx /s/ Xxxxxxxx X. Xxxxxx
Xxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxxx
Xxxxxxxxx Xxxxxx /s/ Xxxxxxxxx Xxxxxx
Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxxxxxx
R. Xxxxxxx Xxxx /s/ R. Xxxxxxx Xxxx
Xxxx Xxxxx /s/ Xxxx Xxxxx
Xxxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
Xxxx Xxxxxxxxx /s/ Xxxx Xxxxxxxxx
Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
/s/ Xxxx Xxxxxx
Assistant Secretary
AUTHORIZATION
The authorized signers list for Transfer Agency has been reviewed and approved.
Reviewed by: Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx 10/19/95
Xxxxx X. Xxxxx Date
/s/ Xxxxx X. Xxxxx 10/17/95
Xxxxx X. Xxxxx Date
AUTHORIZED SIGNERS
NAME SIGNATURE INITIALS
Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx /s/ JJD
R. Xxxxxxx Xxxx /s/ R. Xxxxxxx Xxxx /s/ RJN
Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx /s/ EHE
Xxxxx X. Xxxxxxxxx /s/ Xxxxx X Xxxxxxxxx /s/ DGR
Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx /s/ TPS
Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx /s/ DMT
Xxxxxxxx X. Xxxxxxxx /s/ Xxxxxxxx X. Xxxxxxxx /s/ NRT
Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx /s/ GTV
Xxxxxxxx Xxxxxxxxxxx /s/ Xxxxxxxx Xxxxxxxxxxx /s/ MLC
Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxx /s/ RK
Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx /s/ AGP
AUTHORIZATION
The authorized signers list for Transfer Agency has been reviewed and approved.
Reviewed by: Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx 10/19/95
Xxxxx X. Xxxxx Date
/s/ Xxxxx X. Xxxxx 10/17/95
Xxxxx X. Xxxxx Date
AUTHORIZED SIGNERS
NAME SIGNATURE INITIALS
Xxxxx Xxxxxxxxxx /s/ Xxxxx Xxxxxxxxxx /s/ JB
Xxxxxxxx X. Xxxxxx /s/ Xxxxxxxx X. Xxxxxx /s/ KJC
Xxxxxxxxx Xxxxxx /s/ Xxxxxxxxx Xxxxxx /s/ CD
Xxx Xxxxxx /s/ Xxx Xxxxxx /s/ JH
Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx /s/ RRH
Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx /s/ NJ
Xxxxxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxxxxxx /s/ NL
Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx /s/ RXM
Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx /s/ DAM
Xxxxx Xxxxxx /s/ Xxxxx Xxxxxx /s/ BP
Xxxx Xxxxx /s/ Xxxx Xxxxx /s/ JP
SCHEDULE A
NAME OF FUND
Battery Park High Yield Fund
