Exhibit 99-(g)(1)
FORM OF
CUSTODY AGREEMENT
AGREEMENT, dated as of March 13, 2003 between each entity listed in
Exhibit A hereto (each a "Fund"; and collectively, the "Funds") and The Bank of
New York, a New York corporation authorized to do a banking business having its
principal office and place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Custodian").
W I T N E S S E T H:
that for and in consideration of the mutual promises hereinafter set forth the
Fund and Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words shall have the
meanings set forth below:
1. "AUTHORIZED PERSON" shall be any person, whether or not an
officer or employee of the Fund, duly authorized by the Fund's board of
trustees/directors ("board") execute any Certificate or to give any Oral
Instruction with respect to one or more Accounts, such persons to be designated
in a Certificate annexed hereto as Schedule I or such other Certificate as may
be received by Custodian from time to time.
2. "BNY AFFILIATE" shall mean any office, branch or subsidiary of
The Bank of New York Company, Inc.
3. "BOOK-ENTRY SYSTEM" shall mean the Federal Reserve/Treasury
book-entry system for receiving and delivering securities, its successors and
nominees.
4. "BUSINESS DAY" shall mean any day on which the Fund, the
Custodian and relevant Depositories are open for business.
5. "CERTIFICATE" shall mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement to be given to
Custodian, which is actually received by Custodian by letter or facsimile
transmission and signed on behalf of the Fund by an Authorized Person.
6. "COMPOSITE CURRENCY UNIT" shall mean the Euro or any other
composite currency unit consisting of the aggregate of specified amounts of
specified currencies, as such unit may be constituted from time to time.
7. "DEPOSITORY" shall include (a) the Book-Entry System, (b) the
Depository Trust Company, (c) any other clearing agency or securities depository
registered with the Securities and Exchange Commission identified to the Fund
from time to time, and (d) the respective successors and nominees of the
foregoing.
8. "FOREIGN DEPOSITORY" shall mean (a) Euroclear, (b) Clearstream
Banking, societe anonyme, (c) each Eligible Securities Depository as defined in
Rule 17f-7 under the Investment Company Act of 1940, as amended, identified to
the Fund from time to time, and (d) the respective successors and nominees of
the foregoing.
9. "INSTRUCTIONS" shall mean communications transmitted by
electronic or telecommunications media, including S.W.I.F.T.,
computer-to-computer interface, or dedicated transmission lines.
10. "ORAL INSTRUCTIONS" shall mean verbal instructions received by
Custodian from an Authorized Person or from a person reasonably believed by
Custodian to be an Authorized Person.
11. "SERIES" shall mean the various portfolios, if any, of the
Fund listed on Exhibit A hereto, and if none are listed references to Series
shall be references to the Fund.
12. "SECURITIES" shall have the same meaning as when used in
Securities Act of 1933, including without limitation, any common stock and other
equity securities, bonds, debentures and other debt securities, notes, mortgages
or other obligations, and any instruments representing rights to receive,
purchase, or subscribe for the same, or representing any other rights or
interests therein (whether represented by a certificate or held in a
Depository).
13. "SUBCUSTODIAN" shall mean a bank (including any branch
thereof) or other financial institution (other than a Foreign Depository)
located outside the U.S. which is utilized by Custodian in connection with the
purchase, sale or custody of Securities hereunder and identified to the Fund
from time to time, and their respective successors and nominees.
ARTICLE II
APPOINTMENT OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS, WARRANTIES, AND COVENANTS
1. (a) Each Fund hereby appoints Custodian as custodian
of all Securities and cash at any time delivered to Custodian during the term
of this Agreement, and authorizes Custodian to hold Securities in registered
form in its name or the name of its nominees. Custodian hereby accepts such
appointment and agrees to establish and maintain one or more securities
accounts and cash accounts for each Series in which Custodian will hold
Securities and cash as provided herein. Custodian shall maintain books and
records segregating the assets of each Series from the assets of any other
Series. Such accounts (each, an "Account"; collectively, the "Accounts") shall
be in the name of the Fund.
(b) Custodian may from time to time establish on its
books and records such sub-accounts within each Account as the Fund and
Custodian may agree upon (each
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a "Special Account"), and Custodian shall reflect therein such assets as the
Fund may specify in a Certificate or Instructions.
(c) Custodian may from time to time establish
pursuant to a written agreement with and for the benefit of a broker, dealer,
future commission merchant or other third party identified in a Certificate or
Instructions such accounts on such terms and conditions as the Fund and
Custodian shall agree, and Custodian shall transfer to such account such
Securities and money as the Fund may specify in a Certificate or Instructions.
2. The Fund hereby represents and warrants, which representations
and warranties shall be continuing and shall be deemed to be reaffirmed upon
each delivery of a Certificate or each giving of Oral Instructions or
Instructions by the Fund, that:
(a) It is duly organized and existing under the laws
of the jurisdiction of its organization, with full power to carry on its
business as now conducted, to enter into this Agreement, and to perform its
obligations hereunder;
(b) This Agreement has been duly authorized, executed
and delivered by the Fund, approved by a resolution of its board, constitutes a
valid and legally binding obligation of the Fund, enforceable in accordance with
its terms, and to its knowledge there is no statute, regulation, rule, order or
judgment binding on it, and no provision of its charter or by-laws, nor of any
mortgage, indenture, credit agreement or other contract binding on it or
affecting its property, which would prohibit its execution or performance of
this Agreement;
(c) It is conducting its business in substantial
compliance with all applicable laws and requirements, both state and federal,
and has obtained all regulatory licenses, approvals and consents necessary to
carry on its business as now conducted;
(d) It will not knowingly use the services provided
by Custodian hereunder in any manner that is, or will result in, a violation of
any law, rule or regulation applicable to the Fund;
(e) Unless The Bank of New York is acting as the
Foreign Custody manager of the Fund, the Fund's board or its foreign custody
manager, as defined in Rule 17f-5 under the Investment Company Act of 1940, as
amended (the "`40 Act"), has determined that use of each Subcustodian (including
any Replacement Custodian) and each Depository which Custodian or any
Subcustodian is authorized to utilize in accordance with Section 1(a) of Article
III hereof, satisfies the applicable requirements of the '40 Act and Rules 17f-4
or 17f-5 thereunder, as the case may be;
(f) The Fund or its investment adviser has determined
that the custody arrangements of each Foreign Depository provide reasonable
safeguards against the custody risks associated with maintaining assets with
such Foreign Depository within the meaning of Rule 17f-7 under the `40 Act;
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(g) It is fully informed of the protections and risks
associated with various methods of transmitting Instructions and Oral
Instructions and delivering Certificates to Custodian, understands that there
may be more secure methods of transmitting or delivering the same than the
methods selected by the Fund, agrees that the security procedures (if any) to be
utilized provide a commercially reasonable degree of protection in light of its
particular needs and circumstances, and acknowledges and agrees that
Instructions need not be reviewed by Custodian, may conclusively be presumed by
Custodian to have been given by person(s) duly authorized, and may be acted upon
as given;
(h) It shall manage its borrowings, including,
without limitation, any advance or overdraft (including any day-light overdraft)
in the Accounts, so that the aggregate of its total borrowings for each Series
does not exceed the amount such Series is permitted to borrow under the `40 Act;
(i) Its transmission or giving of, and Custodian
acting upon and in reliance on, Certificates, Instructions, or Oral Instructions
pursuant to this Agreement shall at all times comply with the `40 Act;
(j) It shall impose and maintain restrictions on the
destinations to which cash may be disbursed by Instructions to ensure that each
disbursement is for a proper purpose; and
(k) It has the right to make the pledge and grant the
security interest to Custodian contained in Section 1 of Article V hereof, free
of any right of redemption or prior claim of any other person or entity, such
pledge and such grants shall have a first priority subject to no setoffs,
counterclaims, or other liens or grants prior to or on a parity therewith, and
it shall take such additional steps as Custodian may require to assure such
priority.
3. The Custodian hereby represents and warrants, which
representations and warranties shall be continuing and shall be deemed to be
reaffirmed upon each receipt of a Certificate or of Oral Instructions or
Instruction by the Fund, that:
(a) It is duly organized and existing under the laws
of the jurisdiction of its organization, with full power to carry on its
business as now conducted, to enter into this Agreement, and to perform its
obligations hereunder;
(b) This Agreement has been duly authorized, executed
and delivered by the Fund, approved by a resolution of its board, constitutes a
valid and legally binding obligation of Custodian, enforceable in accordance
with its terms, and there is no statute, regulation, rule, order or judgment
binding on it, and no provision of its charter or by-laws, nor of any mortgage,
indenture, credit agreement or other contract binding on it or affecting its
property, which would prohibit its execution or performance of this Agreement;
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(c) It is conducting its business in substantial
compliance with all applicable laws and requirements, both state and federal,
and has obtained all regulatory licenses, approvals and consents necessary to
carry on its business as now conducted;
(d) It will not knowingly use the Securities and cash
delivered to Custodian hereunder in any manner that is, or will result in, a
violation of any law, rule or regulation applicable to the Custodian; and
(e) It has at least the minimum qualifications
required by Section 17(f)(1) of the Investment Company Act of 1940, as amended
(the "40 Act"), to act as custodian of the portfolio securities and cash of the
Fund, and has indicated its willingness to so act, subject to the terms and
conditions of this agreement.
4. The Fund hereby covenants that it shall from time to time
complete and execute and deliver to Custodian upon Custodian's request a Form FR
U-1 (or successor form) whenever the Fund borrows from Custodian any money to be
used for the purchase or carrying of margin stock as defined in Federal Reserve
Regulation U.
ARTICLE III
CUSTODY AND RELATED SERVICES
1. (a) Subject to the terms hereof, the Fund hereby authorizes
Custodian to hold any Securities received by it from time to time for the Fund's
account. Custodian shall be entitled to utilize Depositories, Subcustodians,
and, subject to subsection (c) of this Xxxxxxx 0, Xxxxxxx Xxxxxxxxxxxx, to the
extent possible in connection with its performance hereunder. Securities and
cash held in a Depository or Foreign Depository will be held subject to the
rules, terms and conditions of such entity. Securities and cash held through
Subcustodians shall be held subject to the terms and conditions of Custodian's
agreements with such Subcustodians. Subcustodians may be authorized to hold
Securities in Foreign Depositories in which such Subcustodians participate.
Unless otherwise required by local law or practice or a particular subcustodian
agreement, Securities deposited with a Subcustodian, a Depositary or a Foreign
Depository will be held in a commingled account, in the name of Custodian,
holding only Securities held by Custodian as custodian for its customers.
Custodian shall identify on its books and records the Securities and cash
belonging to the Fund, whether held directly or indirectly through Depositories,
Foreign Depositories, or Subcustodians. Custodian shall, directly or indirectly
through Subcustodians, Depositories, or Foreign Depositories, endeavor, to the
extent feasible, to hold Securities in the country or other jurisdiction in
which the principal trading market for such Securities is located, where such
Securities are to be presented for cancellation and/or payment and/or
registration, or where such Securities are acquired. Custodian at any time may
cease utilizing any Subcustodian and/or may replace a Subcustodian with a
different Subcustodian (the "Replacement Subcustodian"). In the event Custodian
selects a Replacement Subcustodian, Custodian shall not utilize such Replacement
Subcustodian until after the Fund's board or foreign custody manager has
determined that utilization of such Replacement Subcustodian satisfies the
requirements of the '40 Act and Rule 17f-5 thereunder.
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(b) Unless Custodian has received a Certificate or
Instructions to the contrary, Custodian shall hold Securities indirectly through
a Subcustodian only if (i) the Securities are not subject to any right, charge,
security interest, lien or claim of any kind in favor of such Subcustodian or
its creditors or operators, including a receiver or trustee in bankruptcy or
similar authority, except for a claim of payment for the safe custody or
administration of Securities on behalf of the Fund by such Subcustodian, and
(ii) beneficial ownership of the Securities is freely transferable without the
payment of money or value other than for safe custody or administration.
(c) With respect to each Foreign Depository,
Custodian shall exercise reasonable care, prudence, and diligence (i) to provide
the Fund with an analysis of the custody risks associated with maintaining
assets with the Foreign Depository, and (ii) to monitor such custody risks on a
continuing basis and promptly notify the Fund of any material change in such
risks. The Fund acknowledges and agrees that such analysis and monitoring shall
be made on the basis of, and limited by, information gathered from Subcustodians
or through publicly available information otherwise obtained by Custodian, and
shall not include any evaluation of Country Risks. As used herein the term
"Country Risks" shall mean with respect to any Foreign Depository: (a) the
financial infrastructure of the country in which it is organized, (b) such
country's prevailing custody and settlement practices, (c) nationalization,
expropriation or other governmental actions, (d) such country's regulation of
the banking or securities industry, (e) currency controls, restrictions,
devaluations or fluctuations, and (f) market conditions which affect the order
execution of securities transactions or affect the value of securities.
2. Custodian shall furnish the Fund on-line access to daily
transactions on a real time or near real time basis (including a confirmation of
each transfer of Securities) and a monthly summary of all transfers to or from
the Accounts.
3. With respect to all Securities held hereunder, Custodian
shall, unless otherwise instructed to the contrary:
(a) Receive all income and other payments and advise
the Fund as promptly as practicable of any such amounts due but not paid;
(b) Present for payment and receive the amount paid
upon all Securities which may mature and advise the Fund as promptly as
practicable of any such amounts due but not paid;
(c) Forward to the Fund copies of all information or
documents that it may actually receive from an issuer of Securities which, in
the opinion of Custodian, are intended for the beneficial owner of Securities;
(d) Execute, as custodian, any certificates of
ownership, affidavits, declarations or other certificates under any tax laws now
or hereafter in effect in connection with the collection of bond and note
coupons;
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(e) Hold directly or through a Depository, a Foreign
Depository, or a Subcustodian all rights and similar Securities issued with
respect to any Securities credited to an Account hereunder; and
(f) Endorse for collection checks, drafts or other
negotiable instruments.
4. (a) Custodian shall notify the Fund of rights or discretionary
actions with respect to Securities held hereunder, and of the date or dates by
when such rights must be exercised or such action must be taken, provided that
Custodian has actually received, from the issuer or the relevant Depository
(with respect to Securities issued in the United States) or from the relevant
Subcustodian, Foreign Depository, or a nationally or internationally recognized
bond or corporate action service to which Custodian subscribes, timely notice of
such rights or discretionary corporate action or of the date or dates such
rights must be exercised or such action must be taken. Absent actual receipt of
actual notice, Custodian shall have no liability for failing to so notify the
Fund.
(b) Whenever Securities (including, but not limited
to, warrants, options, tenders, options to tender or non-mandatory puts or
calls) confer discretionary rights on the Fund or provide for discretionary
action or alternative courses of action by the Fund, the Fund shall be
responsible for making any decisions relating thereto and for directing
Custodian to act. In order for Custodian to act, it must receive the Fund's
Certificate or Instructions at Custodian's offices, addressed as Custodian may
from time to time request, not later than noon (New York time) at least one (1)
Business Day prior to the last scheduled date to act with respect to such
Securities (or such earlier date or time as Custodian may specify to the Fund).
Absent Custodian's timely receipt of such Certificate or Instructions, Custodian
shall not be liable for failure to take any action relating to or to exercise
any rights conferred by such Securities, unless Custodian has failed to timely
receive the Fund's Certificate or Instruction and such failure is attributable
to Custodian's own negligence or willful misconduct.
5. All voting rights with respect to Securities, however
registered, shall be exercised by the Fund or its designee. For Securities
issued in the United States, Custodian's only duty shall be to mail to the Fund
any documents (including proxy statements, annual reports and signed proxies)
actually received by Custodian relating to the exercise of such voting rights.
With respect to Securities issued outside of the United States, Custodian's only
duty shall be to provide the Fund with access to a provider of global proxy
services at the Fund's request. The Fund shall be responsible for all costs
associated with its use of such services.
6. Custodian shall promptly advise the Fund upon Custodian's
actual receipt of notification of the partial redemption, partial payment or
other action affecting less than all Securities of the relevant class. If
Custodian, any Subcustodian, any Depository, or any Foreign Depository holds any
Securities in which the Fund has an interest as part of a fungible mass,
Custodian, such Subcustodian, Depository, or Foreign Depository may select the
Securities to participate in such partial redemption, partial payment or other
action in any non-discriminatory manner that it customarily uses to make such
selection.
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7. Custodian shall not under any circumstances accept bearer
interest coupons which have been stripped from United States federal, state or
local government or agency securities unless explicitly agreed to by Custodian
in writing.
8. The Fund shall be liable for all taxes, assessments, duties
and other governmental charges, including any interest or penalty with respect
thereto ("Taxes"), with respect to any cash or Securities held on behalf of the
Fund or any transaction related thereto. The Fund shall indemnify Custodian and
each Subcustodian for the amount of any Tax that Custodian, any such
Subcustodian or any other withholding agent is required under applicable laws
(whether by assessment or otherwise) to pay on behalf of, or in respect of
income earned by or payments or distributions made to or for the account of the
Fund (including any payment of Tax required by reason of an earlier failure to
withhold). Custodian shall, or shall instruct the applicable Subcustodian or
other withholding agent to, withhold the amount of any Tax which is required to
be withheld under applicable law upon collection of any dividend, interest or
other distribution made with respect to any Security and any proceeds or income
from the sale, loan or other transfer of any Security. In the event that
Custodian or any Subcustodian is required under applicable law to pay any Tax on
behalf of the Fund, Custodian is hereby authorized to withdraw cash from any
cash account in the amount required to pay such Tax and to use such cash, or to
remit such cash to the appropriate Subcustodian or other withholding agent, for
the timely payment of such Tax in the manner required by applicable law. If the
aggregate amount of cash in all cash accounts is not sufficient to pay such Tax,
Custodian shall promptly notify the Fund of the additional amount of cash (in
the appropriate currency) required, and the Fund shall directly deposit such
additional amount in the appropriate cash account promptly after receipt of such
notice, for use by Custodian as specified herein. In the event that Custodian
reasonably believes that Fund is eligible, pursuant to applicable law or to the
provisions of any tax treaty, for a reduced rate of, or exemption from, any Tax
which is otherwise required to be withheld or paid on behalf of the Fund under
any applicable law, Custodian shall, or shall instruct the applicable
Subcustodian or withholding agent to, either withhold or pay such Tax at such
reduced rate or refrain from withholding or paying such Tax, as appropriate;
provided that Custodian shall have received from the Fund all documentary
evidence of residence or other qualification for such reduced rate or exemption
required to be received under such applicable law or treaty. In the event that
Custodian reasonably believes that a reduced rate of, or exemption from, any Tax
is obtainable only by means of an application for refund, Custodian and the
applicable Subcustodian shall have no responsibility for the accuracy or
validity of any forms or documentation provided by the Fund to Custodian
hereunder. The Fund hereby agrees to indemnify and hold harmless Custodian and
each Subcustodian in respect of any liability arising from any underwithholding
or underpayment of any Tax which results from the inaccuracy or invalidity of
any such forms or other documentation, and such obligation to indemnify shall be
a continuing obligation of the Fund, its successors and assigns notwithstanding
the termination of this Agreement.
9. (a) For the purpose of settling Securities and foreign
exchange transactions, the Fund shall provide Custodian with sufficient
immediately available funds for all
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transactions by such time and date as conditions in the relevant market dictate.
As used herein, "sufficient immediately available funds" shall mean either (i)
sufficient cash denominated in U.S. dollars to purchase the necessary foreign
currency, or (ii) sufficient applicable foreign currency, to settle the
transaction. Custodian shall provide the Fund with immediately available funds
each day which result from the actual settlement of all sale transactions, based
upon advice received by Custodian from Subcustodians, Depositories, and Foreign
Depositories. Such funds shall be in U.S. dollars or such other currency as the
Fund may specify to Custodian.
(b) Any foreign exchange transaction effected by Custodian in
connection with this Agreement may be entered with Custodian or a BNY Affiliate
acting as principal or otherwise through customary banking channels. The Fund
may issue a standing Certificate or Instructions with respect to foreign
exchange transactions, but Custodian may establish rules or limitations
concerning any foreign exchange facility made available to the Fund. The Fund
shall bear all risks of investing in Securities or holding cash denominated in a
foreign currency.
10. Custodian shall promptly send to the Fund (a) any reports it
receives from a Depository on such Depository's system of internal accounting
control, and (b) such reports on its own system of internal accounting control
as the Fund may reasonably request from time to time.
11. Until such time as Custodian receives a certificate to the
contrary with respect to a particular Security, Custodian may release the
identity of the Fund to an issuer which requests such information pursuant to
the Shareholder Communications Act of 1985 for the specific purpose of direct
communications between such issuer and shareholder.
ARTICLE IV
PURCHASE AND SALE OF SECURITIES;
CREDITS TO ACCOUNT
1. Promptly after each purchase or sale of Securities by the
Fund, the Fund shall deliver to Custodian a Certificate or Instructions, or with
respect to a purchase or sale of a Security generally required to be settled on
the same day the purchase or sale is made, Oral Instructions specifying all
information Custodian may reasonably request to settle such purchase or sale.
Custodian shall account for all purchases and sales of Securities on the actual
settlement date unless otherwise agreed by Custodian.
2. The Fund understands that when Custodian is instructed to
deliver Securities against payment, delivery of such Securities and receipt of
payment therefor may not be completed simultaneously. Notwithstanding any
provision in this Agreement to the contrary, settlements, payments and
deliveries of Securities may be effected by Custodian or any Subcustodian in
accordance with the customary or established securities trading or securities
processing practices and procedures in the jurisdiction in which the transaction
occurs, including, without limitation, delivery to a purchaser or dealer
therefor (or agent)
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against receipt with the expectation of receiving later payment for such
Securities. The Fund assumes full responsibility for all risks, including,
without limitation, credit risks, involved in connection with such deliveries of
Securities.
3. Custodian may, as a matter of bookkeeping convenience or by
separate agreement with the Fund, credit the Account with the proceeds from the
sale, redemption or other disposition of Securities or interest, dividends or
other distributions payable on Securities prior to its actual receipt of final
payment therefor. All such credits shall be conditional until Custodian's actual
receipt of final payment and may be reversed by Custodian to the extent that
final payment is not received. Payment with respect to a transaction will not be
"final" until Custodian shall have received immediately available funds which
under applicable local law, rule and/or practice are irreversible and not
subject to any security interest, levy or other encumbrance, and which are
specifically applicable to such transaction.
ARTICLE V
OVERDRAFTS OR INDEBTEDNESS
1. If Custodian should in its sole discretion advance funds on
behalf of any Series which results in an overdraft (including, without
limitation, any day-light overdraft) because the money held by Custodian in an
Account for such Series shall be insufficient to pay the total amount payable
upon a purchase of Securities specifically allocated to such Series, as set
forth in a Certificate, Instructions or Oral Instructions, or if an overdraft
arises in the Account of a particular Series for some other reason, including,
without limitation, because of a reversal of a conditional credit or the
purchase of any currency, or if the Fund is for any other reason indebted to
Custodian with respect to a Series (except a borrowing for investment or for
temporary or emergency purposes using Securities as collateral pursuant to a
separate agreement and subject to the provisions of Section 2 of this Article),
such overdraft or indebtedness shall be deemed to be a loan made by Custodian to
the Fund for such Series payable on demand and shall bear interest from the date
incurred at a rate per annum as the Fund and Custodian may agree from time to
time. In addition, the Fund hereby agrees that to the extent of the overdraft or
indebtedness and interest thereon, Custodian shall have a continuing lien and
security interest in and to any property specifically allocated to such Series
at any time held by Custodian for the benefit of such Series or in which such
Series may have an interest which is then in Custodian's possession or control
or in possession or control of any third party acting in Custodian's behalf. The
Fund authorizes Custodian, in its sole discretion, at any time to charge any
such overdraft or indebtedness together with interest due thereon against any
balance of account standing to such Series' credit on Custodian's books.
Custodian shall promptly advise the Fund whenever such Fund has an overdraft or
indebtedness bearing interest as provided in this Article, or whenever Custodian
intends to realize upon its lien or security interest.
2. If the Fund borrows money from any bank (including Custodian
if the borrowing is pursuant to a separate agreement) for investment or for
temporary or emergency purposes using Securities held by Custodian hereunder as
collateral for such
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borrowings, the Fund shall deliver to Custodian a Certificate specifying with
respect to each such borrowing: (a) the Series to which such borrowing relates;
(b) the name of the bank, (c) the amount of the borrowing, (d) the time and
date, if known, on which the loan is to be entered into, (e) the total amount
payable to the Fund on the borrowing date, (f) the Securities to be delivered as
collateral for such loan, including the name of the issuer, the title and the
number of shares or the principal amount of any particular Securities, and (g) a
statement specifying whether such loan is in conformance with the '40 Act and
the Fund's then-current prospectus and statement of additional information.
Custodian shall deliver on the borrowing date specified in a Certificate the
specified collateral against payment by the lending bank of the total amount of
the loan payable, provided that the same conforms to the total amount payable as
set forth in the Certificate. Custodian may, at the option of the lending bank,
keep such collateral in its possession, but such collateral shall be subject to
all rights therein given the lending bank by virtue of any promissory note or
loan agreement. Custodian shall deliver such Securities as additional collateral
as may be specified in a Certificate to collateralize further any transaction
described in this Section. The Fund shall cause all Securities released from
collateral status to be returned directly to Custodian for the Account of the
Series for which such Securities were last use as collateral, and Custodian
shall receive from time to time such return of collateral as may be tendered to
it.
ARTICLE VI
SALE AND REDEMPTION OF SHARES
1. Whenever the Fund shall sell any shares issued by the Fund
("Shares") it shall deliver to Custodian a Certificate or Instructions
specifying the amount of money and/or Securities to be received by Custodian for
the sale of such Shares and specifically allocated to an Account for the
appropriate Series.
2. Upon receipt of such money, Custodian shall credit such money
to an Account in the name of the Series for which such money was received.
3. Except as provided hereinafter, whenever the Fund desires
Custodian to make payment out of the money held by Custodian hereunder in
connection with a redemption of any Shares, it shall furnish to Custodian a
Certificate or Instructions specifying the total amount to be paid for such
Shares. Custodian shall make payment of such total amount to the transfer agent
specified in such Certificate or Instructions out of the money held in an
Account of the appropriate Series.
4. Notwithstanding the above provisions regarding the redemption
of any Shares, whenever any Shares are redeemed pursuant to any check redemption
privilege which may from time to time be offered by the Fund, Custodian, unless
otherwise instructed by a Certificate or Instructions, shall, upon presentment
of such check, charge the amount thereof against the money held in the Account
of the Series of the Shares being redeemed, provided, that if the Fund or its
agent timely advises Custodian that such check is not to be honored, Custodian
shall return such check unpaid.
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ARTICLE VII
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. Whenever the Fund shall determine to pay a dividend or
distribution on Shares it shall furnish to Custodian Instructions or a
Certificate setting forth with respect to the Series specified therein the date
of the declaration of such dividend or distribution, the total amount payable,
and the payment date.
2. Upon the payment date specified in such Instructions or
Certificate, Custodian shall pay out of the money held for the Account of such
Series the total amount payable to the dividend agent of the Fund specified
therein.
ARTICLE VIII
CONCERNING CUSTODIAN
1. (a) Custodian shall exercise such good faith, reasonable care,
diligence, and prudence as a professional custodian for securities would
exercise in carrying out all of these duties and obligations. Except as
otherwise expressly provided herein, Custodian shall not be liable for any
costs, expenses, damages, liabilities or claims, including attorneys' and
accountants' fees (collectively, "Losses"), incurred by or asserted against the
Fund, except those Losses arising out of Custodian's own negligence or willful
misconduct. Custodian shall have no liability whatsoever for the action or
inaction of any Depositories, or, except to the extent such action or inaction
is a direct result of the Custodian's failure to fulfill its duties hereunder,
of any Foreign Depositories. With respect to any Losses incurred by the Fund as
a result of the acts or failures to act by a Subcustodian listed on part 1 of
Schedule 1, Custodian shall be liable to the Fund for such Losses, but only to
the extent such Losses arise out of or are caused by acts or failure to act by
such Subcustodian for which it is liable under the terms of its agreement with
Custodian and the laws governing such agreement. With respect to any Losses
incurred by the Fund as a result of the acts or omission of a Subcustodian
either not listed on part 1 of Schedule 1 or listed on part 2 of Schedule 1,
Custodian shall take appropriate action to recover such Losses, and Custodian's
liability shall be limited to the amount recovered net of costs and expenses. In
no event shall Custodian be liable to the Fund or any third party for special,
indirect or consequential damages, or lost profits or loss of business, arising
in connection with this Agreement, nor shall BNY or any Subcustodian be liable:
(i) for acting in accordance with any Certificate or Oral Instructions actually
received by Custodian and reasonably believed by Custodian to be given by an
Authorized Person; (ii) for acting in accordance with Instructions without
reviewing the same; (iii) for conclusively presuming that all Instructions are
given only by person(s) duly authorized; (iv) for conclusively presuming that
all disbursements of cash directed by the Fund by an Instruction, are in
accordance with Section 2(j) of Article II hereof; (v) for holding property in
any particular country, including, but not limited to, Losses resulting from
nationalization, expropriation or other governmental actions; regulation of the
banking or securities industry; exchange or currency controls or restrictions,
devaluations or fluctuations; availability of cash or Securities or market
conditions which prevent the transfer of property or execution of Securities
transactions or affect the value
12
of property; (vi) for any Losses due to forces beyond the reasonable control of
Custodian, including without limitation strikes, work stoppages, acts of war or
terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of
God, or interruptions, loss or malfunctions of utilities, non-internal
communication services, but only to the extent beyond Custodian's reasonable
control, and, but only if Custodian is maintaining such back-up system(s) and
disaster recovery plan(s) as are required by its regulators and all laws
applicable to Custodian, interruption, loss or malfunction of internal
communication services or of computer (software or hardware) services; it being
understood that Custodian shall use commercially reasonable best efforts to
resume performance as soon as practicable under the circumstances; (vii) for the
insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or,
except to the extent such action or inaction is a direct result of the
Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or
(viii) for any Losses arising from the applicability of any law or regulation
now or hereafter in effect, or from the occurrence of any event, including,
without limitation, implementation or adoption of any rules or procedures of a
Foreign Depository, which may affect, limit, prevent or impose costs or burdens
on, the transferability, convertibility, or availability of any currency or
Composite Currency Unit in any country or on the transfer of any Securities, and
in no event shall Custodian be obligated to substitute another currency for a
currency (including a currency that is a component of a Composite Currency Unit)
whose transferability, convertibility or availability has been affected,
limited, or prevented by such law, regulation or event, and to the extent that
any such law, regulation or event imposes a cost or charge upon Custodian in
relation to the transferability, convertibility, or availability of any cash
currency or Composite Currency Unit, such cost or charge shall be for the
account of the Fund, and Custodian may treat any account denominated in an
affected currency as a group of separate accounts denominated in the relevant
component currencies.
(b) Custodian may enter into subcontracts, agreements
and understandings with any BNY Affiliate, whenever and on such terms and
conditions as it deems necessary or appropriate to perform its services
hereunder. No such subcontract, agreement or understanding shall in any way
discharge Custodian from its obligations hereunder.
(c) The Fund agrees to indemnify Custodian and hold
Custodian harmless from and against any and all Losses sustained or incurred by
or asserted against Custodian by reason of or as a result of any action or
inaction, or arising out of Custodian's performance hereunder, including
reasonable fees and expenses of counsel, provided however, that the Fund shall
not indemnify Custodian for those Losses arising out of Custodian's own
negligence or willful misconduct or for any Losses which constitutes indirect,
special, or consequential damages or lost profits or loss of business. Custodian
agrees to indemnify the Fund and hold the Fund harmless from and against any and
all Losses, including reasonable fees ad expenses of counsel, sustained or
incurred by or asserted against the Fund arising out of the Custodian's
negligence or willful misconduct, provided, however, that the Custodian shall
not indemnify the Fund for nor be liable for any Losses which constitute
indirect, special, or consequential damages or lost profits or loss of business.
This indemnity shall be a continuing obligation of the
13
Fund and the custodian, their successors and assigns, notwithstanding the
termination of this Agreement.
2. Without limiting the generality of the foregoing,
Custodian shall be under no obligation to inquire into, and shall not be liable
for:
(a) Any Losses incurred by the Fund or any other
person as a result of the receipt or acceptance of fraudulent, forged or invalid
Securities, or Securities which are otherwise not freely transferable or
deliverable without encumbrance in any relevant market;
(b) The validity of the issue of any Securities
purchased, sold, or written by or for the Fund, the legality of the purchase,
sale or writing thereof, or the propriety of the amount paid or received
therefor;
(c) The legality of the sale or redemption of any
Shares, or the propriety of the amount to be received or paid therefor;
(d) The legality of the declaration or payment of any
dividend or distribution by the Fund;
(e) The legality of any borrowing by the Fund;
(f) The legality of any loan of portfolio Securities,
nor shall Custodian be under any duty or obligation to see to it that any cash
or collateral delivered to it by a broker, dealer or financial institution or
held by it at any time as a result of such loan of portfolio Securities is
adequate security for the Fund against any loss it might sustain as a result of
such loan, which duty or obligation shall be the sole responsibility of the
Fund. In addition, Custodian shall be under no duty or obligation to see that
any broker, dealer or financial institution to which portfolio Securities of the
Fund are lent makes payment to it of any dividends or interest which are payable
to or for the account of the Fund during the period of such loan or at the
termination of such loan, provided, however that Custodian shall promptly notify
the Fund in the event that such dividends or interest are not paid and received
when due;
(g) The sufficiency or value of any amounts of money
and/or Securities held in any Special Account in connection with transactions by
the Fund; whether any broker, dealer, futures commission merchant or clearing
member makes payment to the Fund of any variation margin payment or similar
payment which the Fund may be entitled to receive from such broker, dealer,
futures commission merchant or clearing member, or whether any payment received
by Custodian from any broker, dealer, futures commission merchant or clearing
member is the amount the Fund is entitled to receive, or to notify the Fund of
Custodian's receipt or non-receipt of any such payment; except that Custodian
shall notify the Fund of any difference between any amount the Fund has
specified in a Certificate or Oral Instructions as the amount to be received and
the amount custodian actually receives; or
14
(h) Whether any Securities at any time delivered to,
or held by it or by any Subcustodian, for the account of the Fund and
specifically allocated to a Series are such as properly may be held by the Fund
or such Series under the provisions of its then current prospectus and statement
of additional information, or to ascertain whether any transactions by the Fund,
whether or not involving Custodian, are such transactions as may properly be
engaged in by the Fund.
3. Custodian may, with respect to questions of law specifically
regarding an Account, obtain the advice of counsel and shall be fully protected
with respect to anything done or omitted by it in good faith in conformity with
such advice.
4. Custodian shall be under no obligation to take action to
collect any amount payable on Securities in default, or if payment is refused
after due demand and presentment.
5. Custodian shall have no duty or responsibility to inquire
into, make recommendations, supervise, or determine the suitability of any
transactions affecting any Account.
6. The Fund shall pay to Custodian the fees and charges as may be
specifically agreed upon from time to time and such other fees and charges at
Custodian's standard rates for such services as may be applicable. The Fund
shall reimburse Custodian for all costs associated with the conversion of the
Fund's Securities hereunder and the transfer of Securities and records kept in
connection with this Agreement. The Fund shall also reimburse Custodian for
out-of pocket expenses , subject to approval of the Fund, which are a normal
incident of the services provided hereunder.
7. With Instructions from an Authorized Person or Oral
Instructions, Custodian has the right to debit any cash account for any amount
payable by the Fund in connection with any and all obligations of the Series to
Custodian. In addition to the rights of Custodian under applicable law and other
agreements, at any time when the Fund shall not have honored any of its
obligations to Custodian, Custodian shall have the right without notice to the
Fund to retain or set-off, against such obligations of the Series, any
Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold
for the account of the Fund, and any obligations (whether matured or unmatured)
that Custodian or a BNY Affiliate may have to the Fund in any currency or
Composite Currency Unit and shall notify the Fund whenever it has exercised such
right.
8. The Fund agrees to forward to Custodian a Certificate or
Instructions confirming Oral Instructions by the close of business of the same
day that such Oral Instructions are given to Custodian. The Fund agrees that the
fact that such confirming Certificate or Instructions are not received by
Custodian shall in no way affect the validity or enforceability of transactions
authorized by such Oral Instructions and effected by Custodian. If the Fund
elects to transmit Instructions through an on-line communications system offered
by Custodian, the Fund's use thereof shall be subject to the Terms and
Conditions attached as Appendix I hereto, and Custodian shall provide
15
user and authorization codes, passwords and authentication keys only to an
Authorized Person or a person reasonably believed by Custodian to be an
Authorized Person.
9. The books and records pertaining to the Fund which are in
possession of Custodian shall be the property of the Fund. Such books and
records shall be prepared and maintained as required by the `40 Act and the
rules thereunder. The Fund, or its authorized representatives, all regulatory
authorities whose statutes, laws, rules and regulations are applicable to the
Fund shall have access to such books and records during Custodian's normal
business hours. Upon the reasonable request of the Fund, copies of any such
books and records shall be provided by Custodian to the Fund or its authorized
representative. Upon the reasonable request of the Fund, Custodian shall provide
in hard copy or on computer disc any records included in any such delivery which
are maintained by Custodian on a computer disc, or are similarly maintained.
10. It is understood that Custodian is authorized to supply any
information regarding the Accounts which is required by any law, regulation or
rule now or hereafter in effect. The Custodian shall provide the Fund with any
report obtained by Custodian on the system of internal accounting control of a
Depository, and with such reports on its own system of internal accounting
control as the Fund may reasonably request from time to time.
Custodian hereby specifically agrees that it will provide any
sub-certifications reasonably requested by the Fund in connection with any
certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or
regulations promulgated by the Securities and Exchange Commission thereunder,
provided the same do not change BNY's standard of care.12. Custodian will also
provide those custody related services not already described above that are
included in the Service Guidelines established and agreed between the parties as
the same may be revised from time to time by mutual agreement of the parties
hereto. The Service Guidelines will also govern the timeliness and performance
standards for custody related services where specified therein.
13. Custodian shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied against Custodian in
connection with this Agreement.
ARTICLE IX
TERMINATION
1. Either of the parties hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than ninety (60) days after the date of
giving of such notice. In the event such notice is given by the Fund, shall
designate a successor custodian or custodians, each of which shall meet the
requirements of 1940 Act. In the event such notice is given by Custodian, the
Fund shall, on or before the termination date, deliver to Custodian, written
notice designating a successor custodian or custodians. In the absence of such
designation by the Fund, Custodian may designate a successor custodian which
shall be a bank or trust
16
company having not less than $2,000,000 aggregate capital, surplus and undivided
profits. Upon the date set forth in such notice this Agreement shall terminate,
and Custodian shall upon receipt of a notice of acceptance by the successor
custodian on that date deliver directly to the successor custodian all
Securities and money then owned by the Fund and held by it as Custodian, after
deducting all fees, expenses and other amounts for the payment or reimbursement
of which it shall then be entitled.
2. If a successor custodian is not designated by the Fund or
Custodian in accordance with the preceding Section, the Fund shall upon the date
specified in the notice of termination of this Agreement and upon the delivery
by Custodian of all Securities (other than Securities which cannot be delivered
to the Fund) and money then owned by the Fund be deemed to be its own custodian
and Custodian shall thereby be relieved of all duties and responsibilities
pursuant to this Agreement, other than the duty with respect to Securities which
cannot be delivered to the Fund to hold such Securities hereunder in accordance
with this Agreement.
ARTICLE X
MISCELLANEOUS
1. The Fund agrees to furnish to Custodian a new Certificate of
Authorized Persons in the event of any change in the then present Authorized
Persons. Until such new Certificate is received, Custodian shall be fully
protected in acting upon Certificates or Oral Instructions of such present
Authorized Persons.
2. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to Custodian, shall be sufficiently given
if addressed to Custodian and received by it at its offices at 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as Custodian may from
time to time designate in writing.
3. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund shall be sufficiently given
if addressed to the Fund and received by it at its offices at 0000 Xxxx
Xxxxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000, or at such other place as the
Fund may from time to time designate in writing.
4. Each and every right granted to either party hereunder or
under any other document delivered hereunder or in connection herewith, or
allowed it by law or equity, shall be cumulative and may be exercised from time
to time. No failure on the part of either party to exercise, and no delay in
exercising, any right will operate as a waiver thereof, nor will any single or
partial exercise by either party of any right preclude any other or future
exercise thereof or the exercise of any other right.
5. In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any exclusive jurisdiction, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected thereby. This Agreement may not be amended or modified in
any manner except by a written
17
agreement executed by both parties, except that any amendment to the Schedule I
hereto need be signed only by the Fund and any amendment to Appendix I hereto
need be signed only by Custodian. This Agreement shall extend to and shall be
binding upon the parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by either party
without the written consent of the other.
6. This Agreement shall be construed in accordance with the
substantive laws of the State of New York, without regard to conflicts of laws
principles thereof. The Fund and Custodian hereby consent to the jurisdiction
of a state or federal court situated in New York City, New York in connection
with any dispute arising hereunder. The Fund hereby irrevocably waives, to the
fullest extent permitted by applicable law, any objection which it may now or
hereafter have to the laying of venue of any such proceeding brought in such a
court and any claim that such proceeding brought in such a court has been
brought in an inconvenient forum. The Fund and Custodian each hereby
irrevocably waives any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement.
7. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
8. A copy of the Declaration of trust of each Fund that is a
Massachusetts Business Trust is on file with the Secretary of the Commonwealth
of Massachusetts, and notice is hereby given that this instrument is executed on
behalf of the Board of Trustees of the Fund as Trustees and not individually and
that the obligations of this instrument are not binding upon any of the Trustees
or shareholders individually but are binding only upon the assets and property
of the Fund; provided, however, that the Declaration of trust of the Fund
provides that the assets of a particular Series of the Fund shall under no
circumstance be charged with liabilities attributable to any other Series of the
fund and that all person extending credit to, or contracting with or having any
claim against a particular Series of the Fund shall look only to the assets of
that particular Series for payment of such credit, contract or claim.
18
IN WITNESS WHEREOF, the Fund and Custodian have caused this Agreement
to be executed by their respective officers, thereunto duly authorized, as of
the day and year first above written.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
On behalf of each Fund identified on
Exhibit A hereto:
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. XxXxxx
---------------------
Title: Xxxxxx X. XxXxxx
Vice President
19
Schedule A
Name of Fund Name of Series
ING Get Fund GET V
20
APPENDIX I
THE BANK OF NEW YORK
ON-LINE COMMUNICATIONS SYSTEM (THE "SYSTEM")
TERMS AND CONDITIONS
1. License; Use. Upon delivery to an Authorized Person of the
Fund of software enabling the Fund to obtain access to the System (the
"Software"), Custodian grants to the Fund a personal, nontransferable and
nonexclusive license to use the Software solely for the purpose of transmitting
Written Instructions, receiving reports, making inquiries or otherwise
communicating with Custodian in connection with the Account(s). The Fund shall
use the Software solely for its own internal and proper business purposes and
not in the operation of a service bureau. Except as set forth herein, no license
or right of any kind is granted to the Fund with respect to the Software. The
Fund acknowledges that Custodian and its suppliers retain and have title and
exclusive proprietary rights to the Software, including any trade secrets or
other ideas, concepts, know-how, methodologies, or information incorporated
therein and the exclusive rights to any copyrights, trademarks and patents
(including registrations and applications for registration of either), or other
statutory or legal protections available in respect thereof. The Fund further
acknowledges that all or a part of the Software may be copyrighted or
trademarked (or a registration or claim made therefor) by Custodian or its
suppliers. The Fund shall not take any action with respect to the Software
inconsistent with the foregoing acknowledgments, nor shall you attempt to
decompile, reverse engineer or modify the Software. The Fund may not copy, sell,
lease or provide, directly or indirectly, any of the Software or any portion
thereof to any other person or entity without Custodian's prior written consent.
The Fund may not remove any statutory copyright notice or other notice included
in the Software or on any media containing the Software. The Fund shall
reproduce any such notice on any reproduction of the Software and shall add any
statutory copyright notice or other notice to the Software or media upon
Custodian's request. Custodian shall be responsible for all costs, if any,
associated with such request in the preceding sentence.
2. Equipment. The Fund shall obtain and maintain at its own cost
and expense all equipment and services, including but not limited to
communications services, necessary for it to utilize the Software and obtain
access to the System, and Custodian shall not be responsible for the reliability
or availability of any such equipment or services.
3. Proprietary Information. The Software, any data base and any
proprietary data, processes, information and documentation made available to the
Fund (other than which are or become part of the public domain or are legally
required to be made available to the public) (collectively, the "Information"),
are the exclusive and confidential property of Custodian or its suppliers. The
Fund shall keep the Information confidential by using the same care and
discretion that the Fund uses with respect to its
own confidential property and trade secrets, but not less than reasonable care.
Upon termination of the Agreement or the Software license granted herein for any
reason, the Fund shall return to Custodian any and all copies of the Information
which are in its possession or under its control.
4. Modifications. Custodian reserves the right to modify the
Software from time to time and the Fund shall install new releases of the
Software as Custodian may reasonably direct. Custodian shall be responsible for
all costs, if any, associated with the installation of such new releases. The
Fund agrees not to modify or attempt to modify the Software without Custodian's
prior written consent. The Fund acknowledges that any modifications to the
Software, whether by the Fund or Custodian and whether with or without
Custodian's consent, shall become the property of Custodian.
5. NO REPRESENTATIONS OR WARRANTIES. CUSTODIAN AND ITS
MANUFACTURERS AND SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT
TO THE SOFTWARE, SERVICES OR ANY DATABASE, EXPRESS OR IMPLIED, IN FACT OR IN
LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. THE FUND ACKNOWLEDGES THAT THE SOFTWARE, SERVICES AND ANY
DATABASE ARE PROVIDED "AS IS." IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE
LIABLE FOR ACTS OF GOD, MACHINE OR COMPUTER BREAKDOWN OR MALFUNCTION,
INTERRUPTION OR MALFUNCTION OF COMMUNICATION FACILITIES, LABOR DIFFICULTIES OR
ANY OTHER SIMILAR OR DISSIMILAR CAUSE BEYOND THEIR REASONABLE CONTROL, PROVIDED
THAT REASONABLE BACK-UP AND DISASTER RECOVER SYSTEMS WERE IN PLACE.
6. Security; Reliance; Unauthorized Use. The Fund will cause all
persons utilizing the Software and System to treat all applicable user and
authorization codes, passwords and authentication keys with the same care that
such persons would use with respect to the Fund's own computer Software and
System, and it will establish internal control and safekeeping procedures to
restrict the availability of the same to persons duly authorized to give
Instructions. Custodian is hereby irrevocably authorized to act in accordance
with and reasonably rely on Instructions received by it from an Authorized
Person through the System. The Fund acknowledges that it is its sole
responsibility to assure that only persons duly authorized use the System and
that Custodian shall not be responsible nor liable for any unauthorized use
thereof.
7. System Acknowledgments. Custodian shall acknowledge through
the System its receipt of each transmission communicated through the System, and
in the absence of such acknowledgment Custodian shall not be liable for any
failure to act in accordance with such transmission, provided Custodian did not
receive such acknowledgment.
8. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY
UNITED STATES LAW. THE FUND MAY NOT UNDER ANY
CIRCUMSTANCES RESELL, DIVERT, TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE
SOFTWARE (IN ANY FORM) IN OR TO ANY OTHER COUNTRY. IF CUSTODIAN DELIVERED THE
SOFTWARE TO THE FUND OUTSIDE OF THE UNITED STATES, THE SOFTWARE WAS EXPORTED
FROM THE UNITED STATES IN ACCORDANCE WITH THE EXPORTER ADMINISTRATION
REGULATIONS. DIVERSION CONTRARY TO U.S. LAW IS PROHIBITED. The Fund hereby
authorizes Custodian to report its name and address to government agencies to
which Custodian is required to provide such information by law.
9. ENCRYPTION. The Fund acknowledges and agrees that encryption
may not be available for every communication through the System, or for all
data. The Fund agrees that Custodian may deactivate any encryption features at
any time, upon one business day's notice to the Fund, without further notice or
liability to the Fund, for the purpose of maintaining, repairing or
troubleshooting the System or the Software.
