CASH MANAGEMENT AND RELATED SERVICES AGREEMENT, dated as of April 26,
2001 between each mutual fund, portfolio or series of each mutual fund listed on
Schedule A hereto (each a "Fund", collectively the "Funds") and The Bank of New
York (the "Bank").
W I T N E S S E T H :
That in consideration of the mutual agreements and covenants herein
contained, and subject to the terms and conditions of this Agreement, 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. "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 an
Electronic Service.
4. "Bank" shall have the meaning as set forth in the opening paragraph of this
Agreement.
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.
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12. "Electronic Service" shall mean an electronic service and related equipment
as may be available to a Fund and constituted during the term of this Agreement
which, (A) disseminates electronically to A Fund information concerning its
Accounts and Omnibus Accounts hereunder, and/or (B) permits a Fund to send to
the Bank Written Instructions and in certain circumstances as provided hereunder
Oral Instructions to perform various banking activities, including, without
limitation, services marketed under the names The Bank of New York Office
Manager(R), CA$H-Register(R), Micro/CA$H-Register(TM), or CA$H-Register Plus(R),
as well as other services that the Bank may offer from time to time.
13. "Exception Draft" shall mean a Shareholder Draft that the Bank detects may
contain an irregular or unauthorized signature, or that is missing a signature.
14. "Federal Funds" shall mean immediately available same day funds.
15. "Funds" shall have the meaning as set forth in the opening paragraph of this
Agreement.
16. "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.
17. "Information" shall mean the Software, any database, and any proprietary
data, processes, information or documentation made available as part of the
Electronic Service (other than any such which are or become part of the public
domain or are legally required to be made available to the public, or which are
demonstrably known to such a Fund previously).
18. "MICR" shall mean Magnetic Incription Character Recognition.
19. "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.
20. "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.
21. "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.
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22. "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) the fed funds rate and (b) during the first ten days of an overdraft
1%, and thereafter 2%.
23. "Procedure" shall mean the Call-Back Security Procedure set forth on
Schedule III hereto.
24. "Processed Draft" shall mean an image of each Shareholder Draft of such Fund
presented to the Bank for payment, identified as a Shareholder item and
processed through the Bank's check processing control system.
25. "Return Draft" shall mean any of the Processed Drafts of the previous
Business Day which the Fund does not want the Bank to honor and which it desires
the Bank to return to the presenter on its behalf.
26. "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.
27. "Shareholder" Shareholders shall mean any record holder of any class of
shares or other interest of a Fund that has been authorized and/or issued from
time to time, as identified to the Bank from time to time pursuant to this
Agreement.
28. "Shareholder Draft" shall mean a redemption draft in a form and substance
approved by the Bank and issued by a Shareholder.
29. "Software" shall mean computer software, in the event it is provided by the
Bank, for use in connection with the Electronic Service.
30. "Upgrade" shall mean enhancements, revisions or updates, that the Bank, in
its sole discretion, may make, to the Electronic Service or the Software and
which the Bank so designate as an Upgrade.
31. "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 the Electronic Service.
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
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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:
(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
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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; 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 an Electronic Service (except as otherwise provided
in Article V, Section 10), 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 Drafts (as appropriate for the particular
Account), subject to the terms hereof; or
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(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 an Electronic Service 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 that is designated in such instruction to act
as an intermediary in a funds transfer.
3. Shareholder Drafts. Subject to the terms and conditions of this
Agreement, Shareholders may issue Shareholder Drafts payable through the Bank,
which shall be payable from the Omnibus Account and the related Account of the
Fund.
(a) Each Fund shall supply its Shareholders with Shareholder
Drafts, but only in a form and substance agreed to by the Bank. The Bank agrees
to give each Fund ninety (90) days prior notice of any changes to the form or
substance of Shareholder 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 ninety (90) days prior notice of such change.
(b) Each Fund will promptly furnish to the Bank, in a format and
manner designated by the Bank from time to time the name, mailing address,
telephone number, and specimen signature of each Shareholder of such Fund
authorized to issue Shareholder Drafts (whether on their own behalf or on behalf
of third parties). Each Fund will promptly advise the Bank, in a manner and
format designated by the Bank from time to time, of individuals no longer
authorized to issue Shareholder Drafts, and those individuals newly authorized.
(c) By approximately 3:00 p.m. on each Business Day, the Bank
will make available to each Fund via an Electronic Service a Processed Draft as
of 3:00 p.m. on such day. The Funds understand and acknowledge that the
availability of a Shareholder Draft via an Electronic Service may be delayed or
incomplete if the Bank does not receive in a timely manner all information it
needs to process such Shareholder Draft.
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In the event that an Electronic Service shall be unavailable
at any time during the term of this Agreement, images of Processed Drafts shall
be made available to a Fund in a form and manner as shall be agreed upon by the
Fund and the Bank.
(d) The Bank will, on a Fund's behalf, review the maker's
signature on Shareholder Drafts presented for payment in accordance with the
Bank's standard signature verification procedures for mutual fund shareholder
drafts, as in effect as of the time of such review. Each Fund hereby agrees that
the Bank's review of the signatures on such Shareholder Drafts in accordance
with such procedures shall constitute ordinary care by the Bank in its
performance pursuant to this Agreement. In the event that the Bank detects an
Exception Draft, the Bank will, by the close of business on the Business Day
that the Shareholder Draft is presented for payment and identified as a
Shareholder item, make an image of such Exception Draft available for review by
the related Fund via an Electronic Service (if the Fund subscribes to such
service).
(e) Each Fund shall promptly review each Processed Draft and each
Exception Draft relating to such Fund and shall notify the Bank no later than
11:00 A.M. on the next Business Day, in a manner and format specified by the
Bank from time to time, of (i) Return Drafts, and the reason for the return, and
(ii) any Exception Drafts of the previous Business Day which a Fund desires the
Bank to honor. Notwithstanding the previous sentence, a Fund may provide the
notice with respect to Return Drafts by 2 p.m. on such next Business Day for up
to six Shareholder Drafts per day. Failure to notify the Bank that any
Shareholder Draft other than a Shareholder Draft identified by the Bank as an
Exception Draft constitutes a Return Draft by the times set forth in this
Section shall be construed as the Fund's authorization to make final settlement
for the Shareholder Draft on its behalf. Failure to notify the Bank that the
Fund desires the Bank to honor any Exception Draft by the time set forth in this
Section shall be construed as the Fund's authorization and direction to the Bank
not to honor such Exception Draft. Notwithstanding anything in this Agreement to
the contrary, the Bank is authorized but not required to return any Shareholder
Draft with a missing or apparently unauthorized signature to the presenting
institution in accordance with prevailing industry practices.
(f) By the close of business on each Business Day, the Bank shall
debit the Omnibus Account and the related Account appropriate for the total
dollar amount of all Shareholder Drafts of a Fund presented for payment and
processed by the Bank on that day and will re-credit the appropriate Account in
the amount of any Shareholder Draft previously charged against such Account
which is not settled for on the Fund's behalf as herein provided.
(g) If a Fund subscribes to the Paid Draft Inquiry portion of the
Electronic Service the Bank will, on each Business Day, provide interim
notifications, and a final notification by approximately 2 p.m., of the
approximate aggregate dollar amount of Shareholder Drafts received by the Bank
and identified as Shareholder items as of the time of notification.
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(h) On any given Business Day, if the available balance in a
Fund's Account at the close of business is less than the total dollar amount of
the Shareholder Draft(s) presented for payment against such Account, the Bank
shall use available balances in other Accounts or the Fund's other concentration
accounts with the Bank, including the Omnibus Account, to cover such Shareholder
Draft(s). The Bank shall not be obligated to pay any Shareholder Draft if the
available balances in the Account or the Omnibus Account are not sufficient to
cover such Shareholder Draft and the Bank shall have no duty or obligation to
pay drafts in a manner that minimizes the number of Shareholder Drafts which are
not paid. If the Bank chooses to pay any such Shareholder Draft(s) the
provisions of Article IV shall apply.
(i) (i) In the event that a Shareholder Draft is presented for
payment to the Bank over-the-counter, or is not presented to the Bank in a
timely manner, it may be received too late to be identified and processed as a
Shareholder item or, if appropriate, identified as an Exception Draft, on that
Business Day. The Bank will include images of any such Shareholder Drafts among
the images of Drafts to be made available to the Fund, and, if appropriate,
identified as an Exception Draft, on the next Business Day.
(ii) In the event that a Shareholder Draft is misread or rejected
by the Bank's checks processing equipment, it may not be identified as a
Shareholder item in time for its image to be included among the images of those
Shareholder Drafts to be made available to the Fund, and, if appropriate,
identified as an Exception Draft, on that Business Day. In such instances,
however, the Bank agrees that, if it identifies any such Shareholder Draft, it
will make images of such Shareholder Drafts available to the Fund by 10 a.m. on
the following Business Day. An Authorized Person of the Fund shall advise the
Bank in writing by facsimile as to the disposition of such Shareholder Draft(s)
(along with any reason for non-payment, if applicable) as soon as possible but
in no event later than 11:00 a.m. on that Business Day.
(iii) It is understood and agreed that in either case described
in Section 3(e) or (f) of this Article, or in any other case, the Bank shall not
be responsible if any such Shareholder Draft, although designated as a Return
Draft, cannot be returned to the presenter because of the deadlines imposed by
federal or state law. In the event that any such Shareholder Draft is finally
settled for by the Bank on the Fund's behalf, the Bank agrees to provide the
Fund with such assistance as may be reasonably required in order to recover the
amount paid on the Shareholder Draft.
ARTICLE IV.
ADVANCES, OVERDRAFTS OR INDEBTEDNESS
1. Advances, 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 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,
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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. Lien and Setoff. 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 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. Conformity with Investment Company Act of 1940. Each Fund agrees that
upon allocation of all advances, overdrafts or indebtedness to its account
pursuant to Section 1 of this Article, 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.
ELECTRONIC SERVICE
1. License; Right of Use; Equipment. (a) Delivery of Software shall
constitute the granting by the Bank to the Funds of a non-exclusive,
non-transferable license to use such Software and related documentation
(inclusive of any modifications or replacements thereto), without additional
charge, for so long as this Agreement remains in effect. The Funds acknowledge
that the Bank and its suppliers retain and shall have title to 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. Except as set forth in this
Agreement, no license or right of any kind is granted to the Funds with respect
to the Software. The Funds further acknowledge that
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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. The Funds
shall not take any action with respect to the Software or documentation
inconsistent with the foregoing acknowledgments, nor shall the Funds attempt to
decompile, reverse engineer or modify the Software. The Funds agree that it will
not remove any statutory copyright notice or other notice included in the
Software or on any media containing the Software. The Fund shall reproduce any
such notice on any reproduction of the Software and shall add any statutory
copyright notice or other notice to the Software or media upon the Bank's
request.
(b) A Fund will use the Electronic Service and any related
Software only for its own internal and proper business purposes, and will not
use the Electronic Service or Software in the operation of a service bureau. The
Funds will not sell, lease or otherwise provide, directly or indirectly, any of
the Electronic Service or Software or any portion thereof to any other person or
entity. A Fund may, subject to the terms of this Agreement and upon advance
written notice to the Bank, provide a copy of the Software to its agents that
require Electronic Service to provide other services to a Fund, provided that
such agents agree in writing to be bound by the terms of this Agreement. The
Fund shall include on any such copy all of the Bank's proprietary notices. Upon
cessation of any such agent's services, the Fund shall retrieve from the agent
any copies of the Software and destroy them. Except as set forth in Section 1 of
this Article, the Funds will not copy the Software without the written consent
of the Bank.
(c) If a Fund subscribes to any database service which is a
part of the Electronic Service, delivery of such database to a Fund shall
constitute the granting by the Bank to a Fund of a non-exclusive,
non-transferable license to use such database for so long as this Agreement is
in effect. It is understood and agreed that any database supplied by the Bank is
derived from sources which the Bank believes to be reliable but the Bank does
not and could not for the fees charged, guarantee or warrant that the data is
correct, complete or current. All such databases are provided as an
accommodation by the Bank to its customers and are compiled without any
independent investigation by the Bank. However, the Bank will endeavor to update
and revise each database on a periodic basis, as the Bank, in its discretion,
deems necessary and appropriate. The Funds also acknowledge and agree that each
Fund will promptly install all updates and revisions to each database which the
Bank provides and that the Bank cannot bear any responsibility whatsoever for
any Fund's failure to do so. THE BANK IS NOT RESPONSIBLE FOR ANY RESULTS
OBTAINED BY ANY OF THE FUNDS FROM USE OF DATABASE SERVICES PROVIDED BY THE BANK.
(d) Each Fund will obtain and maintain at its own cost and
expense all equipment and communications services necessary for it to receive
the Electronic Service, and the Bank shall not be responsible for the
reliability or availability of any
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such equipment or any communications services used in connection with the
Electronic Service.
(e) EXPORT OF CERTAIN SOFTWARE PROVIDED BY THE BANK IS
PROHIBITED BY UNITED STATES LAW. EACH FUND AND THEIR RESPECTIVE AGENTS MAY NOT
UNDER ANY CIRCUMSTANCES RESELL, DIVERT, TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE
OF ANY SOFTWARE PROVIDED BY THE BANK (IN ANY FORM) IN OR TO ANY OTHER COUNTRY.
IF THE BANK DELIVERED THE SOFTWARE TO A 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. If the
Software is delivered to a Fund outside of the United States, the Fund hereby
authorizes the Bank to report the Fund's name and address to the United States
Bureau of Export Administration and other United States agencies requiring such
information, to the extent required by law.
2. Trade Secrets; Confidentiality. (a) Each Fund acknowledges that the
Information is the exclusive and confidential property of the Bank or its
suppliers. Each Fund shall, and shall cause others to which it discloses the
Information to, 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, but in no event less than reasonable care.
(b) 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 each
Fund's possession or under its control. The provisions of Section 2 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 to Electronic Service. (a) The Bank reserves the right to
modify an Electronic Service from time to time without notice to the Funds,
provided, however, that any such modification does not affect the functionality
of, nor the user interface to, an Electronic Service. The Bank will give the
Fund at least 30 days notice prior to making any modifications to an Electronic
Service that would materially alter their functionality or the user interface.
(b) The Bank may make Upgrades to an Electronic Service or the
Software which may affect their functionality and user interface. Each Fund
shall use its
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best efforts to install and use any Upgrade offered by the Bank within 90 days
of the date that the Bank provides such Upgrade to the Funds. In the event that
a Fund fails to install an Upgrade for any reason, the Bank may refuse to
provide support to a Fund, and the Bank shall have no liability for any losses,
claims or damages that would have been avoided by use of the Upgrade.
(c) Each Fund agrees not to modify or attempt to modify an Electronic
Service without the prior written consent of the Bank. Each Fund acknowledges
that the Electronic Service are the property of the Bank and, accordingly, each
Fund agrees that any modifications to an Electronic Service, whether by a Fund
or the Bank and whether with or without the consent of the Bank, become the
property of the Bank.
4. On-Line Inquiry and Modification of Records. The Bank may, at a Fund's
request, permit a Fund to enter data directly into a Bank database via an
Electronic Service for the purpose of modifying certain information maintained
by the Bank's systems, including, but not limited to, change of address
information. To the extent that a Fund is granted such access, the Fund agrees
to indemnify and hold the Bank and its affiliates harmless from all loss,
liability, cost, damage and expense (including reasonable attorney's fees) to
which any of them may be subjected, or which may be incurred in connection with
any claim which may arise out of or as a result of changes to database records
initiated by a Fund.
5. Funds Transfer Services. (a) With respect to instructions for a transfer
of funds issued through an Electronic Service, 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, its affiliates, and any other bank
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 instructions to
act as an intermediary in a funds transfer.
(b) It is understood and agreed that unless otherwise specifically
provided herein, and to the extent permitted by applicable law, the parties
hereto shall be bound by the rules of any funds transfer system utilized to
effect a funds transfer hereunder.
6. Security Procedures; Authorization; Encryption. (a) The Bank will
establish security procedures to be followed in connection with an Electronic
Service as described in the Manuals. Each Fund understands and agrees that the
security procedures are intended to determine whether instructions received by
the Bank pursuant to this
13
Agreement are authorized but are not (unless otherwise specified in writing)
intended to detect any errors contained in such instructions. Each Fund will,
and will cause its officers, employees and agents to, treat the user and
authorization codes, passwords, keys and other authentication methods applicable
to an Electronic Service with extreme care. Each Fund agrees to be bound
irrevocably by any payment order, instructions or other transmissions received
by the Bank or any Bank affiliate through an Electronic Service and accepted by
the Bank or such affiliate in compliance with the security procedures, whether
or not authorized. Each Fund will indemnify the Bank and its affiliates for all
costs incurred and losses suffered by any of them arising from or in connection
with unauthorized use of an Electronic Service by persons gaining access thereto
from or through a Fund.
(b) The Software or an Electronic Service may contain features designed
to encrypt portions of certain communications between the Funds and the Bank.
The Bank may also make hardware encryption devices available to the Funds for an
additional charge. Certain browser-based Electronic Service may utilize
encryption capabilities offered by the Fund's web browser software, and each
Fund is solely and fully responsible for ensuring that such capabilities are
adequate for each Funds. Encryption may not be available for every communication
or Electronic Service, or for all data. Each Funds agrees that the Bank may
deactivate any encryption features at any time, without notice or liability to
any Fund, for the purpose of maintaining, repairing or troubleshooting the
Software, Electronic Service or any Bank equipment.
7. COMPLETE DISCLAIMER OF WARRANTY. THE BANK, ITS AFFILIATES AND ITS
MANUFACTURERS AND SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS HEREUNDER,
EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EACH FUND ACKNOWLEDGES
THAT THE SOFTWARE AND ALL ELECTRONIC SERVICES ARE PROVIDED "AS IS."
8. Statements; Errors. (a) Except as provided in Section 8(b) of this
Article relating to funds transfers, a Fund shall notify the Bank of any errors,
omissions or interruptions in, or delay or unavailability of, an Electronic
Service 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 a Fund which reflects such error.
(b) The Bank and its affiliates, as applicable, will periodically provide
a Fund with advices and statements (in written or electronic form) reflecting
funds transfer
14
transactions effected hereunder. Each Funds acknowledges that in the case of any
unauthorized payment order, prompt notification of the facts and circumstances
surrounding such unauthorized payment order, to the extent known, may have a
direct bearing on the ability to recover the funds in full. Therefore, each Fund
will examine each advice and statement and notify the Bank of any error,
omission or discrepancy by the end of the next business day following discovery
thereof. Each Fund further acknowledges that, unless the Fund notifies the Bank
of any error, omission or discrepancy by the end of the next business day
following discovery thereof or within a reasonable period of time, not to exceed
30 days after receipt of the first advice or statement to the Fund reflecting
such error, omission or discrepancy, whichever is earlier, such advice or
statement shall be deemed correct and conclusive in all respects, and the Fund
shall be precluded from asserting the error, omission or discrepancy against the
Bank or any of its affiliates. In addition, if a Fund learns of any erroneous
funds transfers involving its account(s) before receiving an advice or statement
reflecting such erroneous transfers, the Fund will notify the Bank of such
erroneous transfers within one business day after discovery thereof.
9. Security; Reliance; Unauthorized Use. Each Fund will, and will cause all
persons utilizing Electronic Service to, treat the user and authorization codes,
passwords and authentication keys applicable to Electronic Service with extreme
care. The Bank is hereby irrevocably authorized to act in accordance with and
rely on Written Instructions received by it through Electronic Service. Each
Fund acknowledges that it is its sole responsibility to assure that only
Authorized Persons use Electronic Service 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 Electronic Service provide to it a commercially
reasonable degree of protection in light of its particular needs and
circumstances.
10. Funds Transfer Back-Up Procedure. (a) In the event an Electronic
Service is inoperable and a Fund is unable to utilize an Electronic Service 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 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
15
Section 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 3 of Article VI.
(c) The Bank reserves the right to suspend acceptance of Oral
Instructions 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 gross negligence or willful misconduct or, with respect to Shareholder
Drafts, its negligence in failing to follow its then-current signature
verification procedures for mutual fund shareholder drafts. The Bank will be
liable to a Fund for direct money damages arising out of the Bank's failure to
act in accordance with such applicable standard of care. All claims against the
Bank hereunder (including with respect to Shareholder Drafts) shall be made by
the respective Fund as promptly as practicable, and in any event within six (6)
months from the date of the action or inaction on which such claim is based, and
shall include reasonable documentation evidencing such claim and loss.
2. No Liability. The Bank shall have no obligation hereunder for costs,
expenses, damages, liabilities or claims, including attorney's fees, which are
sustained or incurred by reason of any action or inaction by the Federal Reserve
wire transfer system or the New York Automated Clearing House.
3. Limitation of Liability.
(a) Notwithstanding any other provision elsewhere contained in this
Agreement, including, without limitation, Section 1 of this Article, and WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, IT IS HEREBY AGREED THAT IN NO EVENT
SHALL THE BANK, ANY OF ITS AFFILIATES, OR ANY MANUFACTURER OR SUPPLIER OF
EQUIPMENT, SOFTWARE OR ELECTRONIC SERVICE BE RESPONSIBLE OR LIABLE FOR ANY
SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHICH A FUND MAY INCUR OR EXPERIENCE
BY REASON OF ITS HAVING ENTERED INTO OR RELIED ON THIS AGREEMENT OR ANY
SUPPLEMENTS OR ARISING OUT OF OR IN CONNECTION WITH THE ELECTRONIC SERVICE, EVEN
IF THE BANK, SUCH AFFILIATE, OR SUCH MANUFACTURER OR SUPPLIER HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL THE BANK, OR ANY AFFILIATE, OR ANY
SUCH MANUFACTURER OR SUPPLIER BE LIABLE FOR ACTS OF GOD, MACHINE OR COMPUTER
BREAKDOWN OR MALFUNCTION,
16
INTERRUPTION OR MALFUNCTION OF COMMUNICATION FACILITIES, LABOR DIFFICULTIES OR
ANY OTHER SIMILAR OR DISSIMILAR CAUSE BEYOND SUCH PERSON'S REASONABLE CONTROL.
(b) Except as otherwise specifically provided in Section 3(c) of this
Article and Section 8(b) of Article V with respect to funds transfers, or in any
other written agreement between the Bank and each Fund for banking and
banking-related products (notwithstanding the use of an Electronic Service in
conjunction with such banking or banking-related products), the Bank and its
affiliates shall have no liability to any Fund for any loss, damage, cost or
expense arising out of this Agreement, except for liability arising as a direct
result of the Bank's gross negligence or willful misconduct in performing, or
failing to perform, an Electronic Service. Any such liability shall be
contingent upon a Fund's compliance with Section 8(a) of Article V, and shall be
limited to (i) restoration, as promptly as reasonably practicable, of any
Electronic Service which is interrupted or is delayed or becomes unavailable, or
(ii) re-performance of the Electronic Service affected at the Bank's expense
and, failing (i) and (ii), compensation to such Fund for the amount of any
actual monetary loss, cost or expense that such Fund incurs as a direct result
of the Bank's gross negligence or willful misconduct in performing, or failing
to perform, the Electronic Service, in an amount not to exceed the lesser of (y)
the actual amount of such loss, cost or expense, or (z) the aggregate amount of
the fees paid by such Fund to the Bank for the Electronic Service affected
during the 12-month period immediately preceding the date on which such loss,
damage, injury, claim, cost or expense occurred, or such lesser number of months
that the such Fund has received the Electronic Service if the such Fund has not
received 12 months of the Electronic Service.
(c) The liability of the Bank and its affiliates (regardless of
whether such liability is based in contract, tort (including negligence),
warranty or other legal or equitable grounds) for the failure to properly
execute a payment order for the transfer of funds received through an Electronic
Service after such instructions have been duly acknowledged by the Bank's
computer systems, or with respect to a transfer of funds which is not effective
as a Fund's authorized payment order or which is not a payment order which is
enforceable against a Fund in whole or in part, shall be limited to (i)
restoration of the principal amount mis-transferred, if and to the extent such
restoration is required under applicable law, and (ii) compensation for the loss
of the use of the mis-transferred funds or the funds which were not transferred,
as the case may be, if and to the extent that such compensation is required
under applicable law, in an amount not to exceed the sum of (A) a Fund's actual
incidental expenses resulting directly from the mis-transfer or failure, and (B)
contingent upon the Fund's complying with the provisions of Section 8(b) of
Article V, interest, at a rate per annum equal to the average federal funds rate
as computed from the Federal Reserve Bank of New York's daily determinations of
the effective rate for federal funds, for the period during which the Fund lost
the use of such funds. In no event shall the Bank or any of its affiliates have
any liability for failing to execute instructions for the transfer of funds
which are received
17
through any Electronic Service other than that specified by the Bank to initiate
funds transfer requests.
(d) The Bank shall have no liability for any loss, cost, damages or
expenses that the a Fund may incur or experience in connection with Shareholder
Drafts except for either (i) damages resulting directly from the Bank's gross
negligence or willful misconduct or (ii) the Bank's negligent failure to follow
its then-current signature verification procedures for mutual fund shareholder
drafts. Any such liability shall not exceed the amount of such Shareholder
Draft.
(e) In the event of conflicting claims, disputes, or instructions
involving a Fund or third parties, the Bank and any of its affiliates may at
their option decline to comply with any or all instructions until they are
indemnified, or such dispute or claims are resolved to their satisfaction. If a
Fund has not provided the Bank or any of its affiliates, as the case may be,
with sufficient collected funds which in their sole discretion are applicable to
a Fund's funds transfer instructions, the Bank and its affiliates shall not
incur any liability whatsoever for failing to execute such instructions.
(f) In no event shall the Bank be liable to 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.
4. 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 or willful misconduct (including its negligence in failing to follow
its then current signature verification procedures for Shareholder Drafts). 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.
5. 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 or
Shareholder 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;
18
(c) the existence or genuineness of any endorsement or any marking
purporting to be an endorsement on any draft or Shareholder 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 Shareholder 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 or
Shareholder Draft is drawn and the 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 Shareholder Draft;
(h) any determination of length of time any Shares have been owned by
any Shareholder or the method of payment utilized to purchase such Shares by
such Shareholder;
(i) any claims, liens, attachments, stays or stop 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 Shareholder Draft equals or exceeds any minimum
amount.
6. 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
19
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.
7. No Implied Duties; Performance According To Applicable Law. The Bank
shall have no duties or responsibilities except such duties and responsibilities
as are specifically set forth in this Agreement and Schedule I hereto, and no
covenant or obligation shall be implied against the Bank. The Bank's duties and
responsibilities hereunder shall be performed in accordance with applicable
laws, regulations and rules, including but not limited to Federal Reserve
Regulation CC and the Operating Rules of the New York Automated Clearing House,
and the Bank shall have no obligation to take actions which in the reasonable
opinion of the Bank are either inconsistent with, or prejudice or impair the
Bank's rights under, any such laws, regulations and rules.
8. Requests for Instructions. At any time the Bank may apply to an officer
of a Fund for Oral or Written Instructions with respect to any matter arising in
connection with the Bank's duties and obligations hereunder, and the Bank shall
not be liable for any action taken or permitted by it in good faith in
accordance with such Oral or Written Instructions. Such application for Oral or
Written Instructions may, at the option of the Bank, set forth in writing any
action proposed to be taken or omitted by the Bank with respect to its duties or
obligations hereunder and the date on or after which such action shall be taken,
and the Bank shall not be liable for any action taken or omitted in accordance
with a proposal included in any such application on or after the date specified
therein (which shall be at least 5 days after the date of such Fund's receipt of
such application) unless, prior to taking or omitting any such action, the Bank
has received Oral or Written Instructions in response to such application
specifying the action to be taken or omitted. The Bank may apply for and obtain
the advice and opinion of counsel to the Fund or of its own counsel, at the
expense of the Fund, and shall be fully protected with respect to anything done
or omitted by it in good faith in conformity with such advice or opinion.
9. Delegation of Duties. The Bank may delegate any of its duties and
obligations hereunder to any delegee and may employ agents or attorneys-in-fact.
The Bank shall have no liability or responsibility whatsoever if any delegee,
agent or attorney-in-fact shall have been selected by the Bank with due care or
have been selected or approved by a Fund. Notwithstanding the foregoing, nothing
contained in this Section 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, (iii) any negative
Calendar Month Earnings Credits, and (iv)
20
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 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, Section
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.
21
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 Xxx Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Division Manager - Mutual Funds, or at such
other place as the Bank may from time to time designate in writing.
(b) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to a Fund shall be sufficiently given if addressed
to a Fund and received by it at 000 Xxxxx Xxxxxx, X.X., X.X. 00000, Xxxx:
Treasures, or at such other place as such Fund may from time to time designate
in writing.
3. Cumulative Rights and No Waiver. Each and every right granted to the
Bank hereunder or under any other document delivered hereunder or in connection
herewith, or allowed it by law or equity, shall be cumulative and may be
exercised from time to time. No failure on the part of the Bank to exercise, and
no delay in exercising, any right will operate as a waiver thereof, nor will any
single or partial exercise by the Bank of any right preclude any other or future
exercise thereof or the exercise of any other right.
4. Severability. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or obligations
shall not in any way be affected or impaired thereby, and if any provision is
inapplicable to any person or circumstances, it shall nevertheless remain
applicable to all other persons and circumstances.
5. Amendments. This Agreement may not be amended or modified in any
manner except by a written agreement executed by the Bank and each Fund to be
bound
22
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, nor assignable by the Bank without the consent
of a Fund, and authorized or approved by a resolution of such Fund's Board,
except that a merger, consolidation or reorganization of the Bank shall not be
deemed an assignment by the Bank.
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 a Fund shall not be liable for any
amount owing by another Fund and that the Funds have executed one instrument for
convenience only.
23
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.
[ON BEHALF OF EACH OF THE FUNDS LISTED ON SCHEDULE A]
By:/s/Xxxxxxx XxXxxxxxx
-----------------------
Name: Xxxxxxx XxXxxxxxx
Title: Treasurer
THE BANK OF NEW YORK
By:/s/Xxx Xxxxxx
-----------------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
24
SCHEDULE A
Fund Tax ID SIC1 Address
California Daily Tax Free Income Fund, Inc. 00-0000000 MD
Connecticut Daily Tax Free Income Fund, Inc. 00-0000000 MD
Cortland Trust, Inc.
General Money Market Fund 00-0000000 MD
Municipal Money Market Fund 00-0000000 MD
U.S. Government Fund 00-0000000 MD
Daily Tax Free Income Fund, Inc. 00-0000000 MD
Delafield Fund, Inc. 00-0000000 MD
Florida Daily Municipal Income Fund 00-0000000 MA BT2
Georgia Daily Municipal Income Fund, Inc. 00-0000000 MD
Institutional Daily Income Fund
Money Market Portfolio 00-0000000 MA
U.S. Treasury Portfolio 00-0000000 MA
New Jersey Daily Municipal Income Fund, Inc. 00-0000000 MD
New York Daily Tax Free Income Fund, Inc. 00-0000000 MD
North Carolina Daily Municipal Income Fund, Inc. 00-0000000 MD
Pax World Money Market Fund, Inc. 00-0000000 MD
Short Term Income Fund, Inc.
Money Market Portfolio 00-0000000 MD
U.S. Government Portfolio 00-0000000 MD
Tax Exempt Proceeds Fund, Inc. 00-0000000 MD
ADMINISTERED FUNDS:
Back Bay Funds, Inc. -Total Return Bond Fund 00-0000000 MD
OFFSHORE FUNDS:
Daily Dollar International, Ltd. N/A BVI Corp.
U.S. Dollar Floating Rate Fund, Ltd. N/A BVI Corp.
1. SIC: State of Incorporation
2. MA BT: Massachusetts Business Trust
EXHIBIT A
I, Treasurer of each fund listed on Schedule A (the "Fund"), 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 Xxxxxx /s/Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx /s/Xxxxxxx Xxxxxxx
Xxxxx Xxxxxxxx /s/Xxxxx Xxxxxxxx
Xxxxxxxx Xxxxxx /s/Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxxxxxx /s/Xxxxxxx Xxxxxxxxxx
Xxxx Xxxxxxx /s/Xxxx Xxxxxxx
/s/Xxxxxxx XxXxxxxxx
-------------------------------
Name: Xxxxxxx XxXxxxxxx
Title of Officer: Treasurer
