CUSTODY AGREEMENT
AGREEMENT, dated as of ________________, 2002 between each
entity listed on Schedule II, each a corporation organized and
existing under the laws of the State of Maryland having its
principal office and place of business at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Fund") and The Bank of
New York, a New York corporation authorized to do a banking
business having its principal office and place of business at Xxx
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Custodian").
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter
set forth the Fund and Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words shall
have the meanings set forth below:
1. "Authorized Person" shall be any person, whether or not
an officer or employee of the Fund, duly authorized by the Fund's
board to execute any Certificate or to give any Oral Instruction
with respect to one or more Accounts, such persons to be
designated in a Certificate annexed hereto as Schedule I hereto
or such other Certificate as may be received by Custodian from
time to time.
2. "BNY Affiliate" shall mean any office, branch or
subsidiary of The Bank of New York Company, Inc.
3. "Book-Entry System" shall mean the Federal
Reserve/Treasury book-entry system for receiving and delivering
securities, its successors and nominees.
4. "Business Day" shall mean any day on which Custodian and
relevant Depositories are open for business.
5. "Certificate" shall mean any notice, instruction, or
other instrument in writing, authorized or required by this
Agreement to be given to Custodian, which is actually received by
Custodian by letter or facsimile transmission and signed on
behalf of the Fund by an Authorized Person or a person reasonably
believed by Custodian to be an Authorized Person.
6. "Composite Currency Unit" shall mean the Euro or any
other composite currency unit consisting of the aggregate of
specified amounts of specified currencies, as such unit may be
constituted from time to time.
7. "Depository" shall include (a) the Book-Entry System, (b)
the Depository Trust Company, (c) any other clearing agency or
securities depository registered with the Securities and Exchange
Commission identified to the Fund from time to time, and (d) the
respective successors and nominees of the foregoing.
8. "Foreign Depository" shall mean (a) Euroclear, (b)
Clearstream Banking, societe anonyme, (c) each Eligible
Securities Depository as defined in Rule 17f-7 under the
Investment Company Act of 1940, as amended, identified by
Custodian to the Fund from time to time, and (d) the respective
successors and nominees of the foregoing, which similarly qualify
under the Rule.
9. "Instructions" shall mean communications transmitted by
electronic or telecommunications media, including S.W.I.F.T.,
computer-to-computer interface, or dedicated transmission lines.
10. "Oral Instructions" shall mean verbal instructions
received by Custodian from an Authorized Person or from a person
reasonably believed by Custodian to be an Authorized Person.
11. "Series" shall mean the various portfolios, if any, of
the Fund listed on Schedule II hereto, and if none are listed
references to Series shall be references to the Fund.
12. "Securities" shall include, without limitation, any
common stock and other equity securities, bonds, debentures and
other debt securities, notes, mortgages or other obligations, and
any instruments representing rights to receive, purchase, or
subscribe for the same, or representing any other rights or
interests therein (whether represented by a certificate or held
in a Depository or by a Subcustodian).
13. "Subcustodian" shall mean a bank (including any branch
thereof) or other financial institution (other than a Foreign
Depository) located outside the U.S. which is utilized by
Custodian in connection with the purchase, sale or custody of
Securities hereunder and identified to the Fund from time to
time, and their respective successors and nominees.
ARTICLE II
APPOINTMENT OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS, WARRANTIES, AND COVENANTS
1. (a) The Fund hereby appoints Custodian as custodian of
all Securities and cash at any time delivered to Custodian during
the term of this Agreement, and authorizes Custodian to hold
Securities in registered form in its name or the name of its
nominees. Custodian hereby accepts such appointment and agrees to
establish and maintain one or more securities accounts and cash
accounts for each Series in which Custodian will hold Securities
and cash as provided herein. Custodian shall maintain books and
records segregating the assets of each Series from the assets of
any other Series. Such accounts (each, an "Account";
collectively, the "Accounts") shall be in the name of the Fund.
(b) Custodian may from time to time establish on its
books and records such sub-accounts within each Account as the
Fund and Custodian may agree upon (each a "Special Account"), and
Custodian shall reflect therein such assets as the Fund may
specify in a Certificate or Instructions.
(c) Custodian may from time to time establish pursuant
to a written agreement with and for the benefit of a broker,
dealer, future commission merchant or other third party
identified in a Certificate or Instructions such accounts on such
terms and conditions as the Fund and Custodian shall agree, and
Custodian shall transfer to such account such Securities and
money as the Fund may specify in a Certificate or Instructions.
2. The Fund hereby represents and warrants, which
representations and warranties shall be continuing and shall be
deemed to be reaffirmed upon each delivery of a Certificate or
each giving of Oral Instructions or Instructions by the Fund,
that:
(a) It is duly organized and existing under the laws of
the jurisdiction of its organization, with full power to carry on
its business as now conducted, to enter into this Agreement, and
to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed
and delivered by the Fund, approved by a resolution of its board,
constitutes a valid and legally binding obligation of the Fund,
enforceable in accordance with its terms, and there is no
statute, regulation, rule, order or judgment binding on it, and
no provision of its charter or by-laws, nor of any mortgage,
indenture, credit agreement or other contract binding on it or
affecting its property, which would prohibit its execution or
performance of this Agreement;
(c) It is conducting its business in substantial
compliance with all applicable laws and requirements, both state
and federal, and has obtained all regulatory licenses, approvals
and consents necessary to carry on its business as now conducted;
(d) It will not use the services provided by Custodian
hereunder in any manner that is, or will result in, a violation
of any law, rule or regulation applicable to the Fund;
(e) Its board or its foreign custody manager, as
defined in Rule 17f-5 under the Investment Company Act of 1940,
as amended (the "`40 Act"), has determined that use of each
Subcustodian (including any Replacement Subcustodian, as defined
herein) 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;
(g) It is fully informed of the protections and risks
associated with various methods of transmitting Instructions and
Oral Instructions and delivering Certificates to Custodian,
understands that there may be more secure methods of transmitting
or delivering the same than the methods selected by the Fund,
agrees that the security procedures (if any) to be utilized
provide a commercially reasonable degree of protection in light
of its particular needs and circumstances, and acknowledges and
agrees that Instructions need not be reviewed by Custodian, may
conclusively be presumed by Custodian to have been given by
person(s) duly authorized, and may be acted upon as given;
(h) It shall manage its borrowings, including, without
limitation, any advance or overdraft (including any day-light
overdraft) in the Accounts, so that the aggregate of its total
borrowings for each Series does not exceed the amount such Series
is permitted to borrow under the `40 Act;
(i) Its transmission or giving of, and Custodian acting
upon and in reliance on, Certificates, Instructions, or Oral
Instructions pursuant to this Agreement shall at all times comply
with the `40 Act;
(j) It shall impose and maintain restrictions on the
destinations to which cash may be disbursed by Instructions to
ensure that each disbursement is for a proper purpose; and
(k) It has the right to make the pledge and grant the
security interest and security entitlement to Custodian contained
in Section 1 of Article V hereof, free of any right of redemption
or prior claim of any other person or entity, such pledge and
such grants shall have a first priority subject to no setoffs,
counterclaims, or other liens or grants prior to or on a parity
therewith, and it shall take such additional steps as Custodian
may require to assure such priority.
3. The Fund hereby covenants that it shall from time to time
complete and execute and deliver to Custodian upon Custodian's
request a Form FR U-1 (or successor form) whenever the Fund
borrows from Custodian any money to be used for the purchase or
carrying of margin stock as defined in Federal Reserve Regulation
U.
ARTICLE III
CUSTODY AND RELATED SERVICES
1. (a) Subject to the terms hereof, the Fund hereby
authorizes Custodian to hold any Securities received by it from
time to time for the Fund's account. Custodian shall be entitled
to utilize Depositories, Subcustodians, and, subject to
subsection(c) of this Section 1, Foreign Depositories, to the
extent possible in connection with its performance hereunder.
Securities and cash held in a Depository or Foreign Depository
will be held subject to the rules, terms and conditions of such
entity. Securities and cash held through Subcustodians shall be
held subject to the terms and conditions of Custodian's
agreements with such Subcustodians. Subcustodians may be
authorized to hold Securities in Foreign Depositories in which
such Subcustodians participate. Unless otherwise required by
local law or practice or a particular subcustodian agreement,
Securities deposited with a Subcustodian, a Depositary or a
Foreign Depository will be held in a commingled account, in the
name of Custodian, holding only Securities held by Custodian as
custodian for its customers. Custodian shall identify on its
books and records the Securities and cash belonging to the Fund,
whether held directly or indirectly through Depositories, Foreign
Depositories, or Subcustodians. Custodian shall, directly or
indirectly through Subcustodians, Depositories, or Foreign
Depositories, endeavor, to the extent feasible, to hold
Securities in the country or other jurisdiction in which the
principal trading market for such Securities is located, where
such Securities are to be presented for cancellation and/or
payment and/or registration, or where such Securities are
acquired. Custodian at any time may cease utilizing any
Subcustodian and/or may replace a Subcustodian with a different
Subcustodian (the "Replacement Subcustodian"). In the event
Custodian selects a Replacement Subcustodian, Custodian shall not
utilize such Replacement Subcustodian until after the Fund's
board or foreign custody manager has determined that utilization
of such Replacement Subcustodian satisfies the requirements of
the `40 Act and Rule 17f-5 thereunder.
(b) Unless Custodian has received a Certificate or
Instructions to the contrary, Custodian shall hold Securities
indirectly through a Subcustodian only if (i) the Securities are
not subject to any right, charge, security interest, lien or
claim of any kind in favor of such Subcustodian or its creditors
or operators, including a receiver or trustee in bankruptcy or
similar authority, except for a claim of payment for the safe
custody or administration of Securities on behalf of the Fund by
such Subcustodian, and (ii) beneficial ownership of the
Securities is freely transferable without the payment of money or
value other than for safe custody or administration.
(c) With respect to each Foreign Depository, Custodian
shall exercise reasonable care, prudence, and diligence such a
person having responsibilities for the safekeeping of the Fund's
assets would exercise (i) to provide the Fund and its investment
adviser 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 and its investment adviser 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, trade
associations of which Custodian is a member from time to time,
through publicly available information otherwise obtained by
Custodian, and shall include such other publicly available
information as Custodian believes is necessary for Custodian to
have acted with reasonable care, prudence, and diligence, but
shall not include any evaluation of Country Risks. Custodian will
endeavor to include in its analysis and monitoring, where
appropriate among other things, a Foreign Depository's expertise
and market reputation, the quality of its services, its financial
strength, any insurance or indemnification arrangements, the
extent and quality of regulation and independent examination of
the depository, its standing in published ratings, its internal
controls and other procedures for safeguarding investments, and
any legal protections. 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,
but not of any Foreign Depository to the extent covered by an
analysis described in clause (i) of this Section, (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 with an advice of daily
transactions (including a confirmation of each transfer of
Securities) and a monthly summary of all transfers to or from the
Accounts.
3. With respect to all Securities held hereunder, Custodian
shall, unless otherwise instructed to the contrary:
(a) Receive all income and other payments and advise
the Fund as promptly as practicable of any such amounts due but
not paid;
(b) Present for payment and receive the amount paid
upon all Securities which may mature and advise the Fund as
promptly as practicable of any such amounts due but not paid;
(c) Forward to the Fund copies of all information or
documents that it may actually receive from an issuer of
Securities which, in the opinion of Custodian, are intended for
the beneficial owner of Securities;
(d) Execute, as custodian, any certificates of
ownership, affidavits, declarations or other certificates under
any tax laws now or hereafter in effect in connection with the
collection of bond and note coupons;
(e) Hold directly or through a Depository, a Foreign
Depository, or a Subcustodian all rights and similar Securities
issued with respect to any Securities credited to an Account
hereunder; and
(f) Endorse for collection checks, drafts or other
negotiable instruments.
4. (a) Custodian shall notify the Fund of rights or
discretionary actions with respect to Securities held hereunder,
and of the date or dates by when such rights must be exercised or
such action must be taken, provided that Custodian has actually
received, from the issuer or the relevant Depository (with
respect to Securities issued in the United States) or from the
relevant Subcustodian, Foreign Depository, or a nationally or
internationally recognized bond or corporate action service to
which Custodian subscribes, timely notice of such rights or
discretionary corporate action or of the date or dates such
rights must be exercised or such action must be taken. Absent
actual receipt of such notice, Custodian shall have no liability
for failing to so notify the Fund.
(b) Whenever Securities (including, but not limited to,
warrants, options, tenders, options to tender or non-mandatory
puts or calls) confer discretionary rights on the Fund or provide
for discretionary action or alternative courses of action by the
Fund, the Fund shall be responsible for making any decisions
relating thereto and for directing Custodian to act. In order for
Custodian to act, it must receive the Fund's Certificate or
Instructions at Custodian's offices, addressed as Custodian may
from time to time request, not later than noon (New York time) at
least two (2) Business Days prior to the last scheduled date to
act with respect to such Securities (or such earlier date or time
as Custodian may specify to the Fund). Absent Custodian's timely
receipt of such Certificate or Instructions, Custodian shall not
be liable for failure to take any action relating to or to
exercise any rights conferred by such Securities.
5. All voting rights with respect to Securities, however
registered, shall be exercised by the Fund or its designee. For
Securities issued in the United States, Custodian's only duty
shall be to mail to the Fund any documents (including proxy
statements, annual reports and signed proxies) actually received
by Custodian relating to the exercise of such voting rights. With
respect to Securities issued outside of the United States,
Custodian's only duty shall be to provide the Fund with access to
a provider of global proxy services at the Fund's request. The
Fund shall be responsible for all costs associated with its use
of such services.
6. Custodian shall promptly advise the Fund upon Custodian's
actual receipt of notification of the partial redemption, partial
payment or other action affecting less than all Securities of the
relevant class. If Custodian, any Subcustodian, any Depository,
or any Foreign Depository holds any Securities in which the Fund
has an interest as part of a fungible mass, Custodian, such
Subcustodian, Depository, or Foreign Depository may select the
Securities to participate in such partial redemption, partial
payment or other action in any non-discriminatory manner that it
customarily uses to make such selection.
7. Custodian shall not under any circumstances accept bearer
interest coupons which have been stripped from United States
federal, state or local government or agency securities unless
explicitly agreed to by Custodian in writing.
8. The Fund shall be liable for all taxes, assessments,
duties and other governmental charges, including any interest or
penalty with respect thereto ("Taxes"), with respect to any cash
or Securities held on behalf of the Fund or any transaction
related thereto. The Fund shall indemnify Custodian and each
Subcustodian for the amount of any Tax that Custodian, any such
Subcustodian or any other withholding agent is required under
applicable laws (whether by assessment or otherwise) to pay on
behalf of, or in respect of income earned by or payments or
distributions made to or for the account of the Fund (including
any payment of Tax required by reason of an earlier failure to
withhold). Custodian shall, or shall instruct the applicable
Subcustodian or other withholding agent to, withhold the amount
of any Tax which is required to be withheld under applicable law
upon collection of any dividend, interest or other distribution
made with respect to any Security and any proceeds or income from
the sale, loan or other transfer of any Security. In the event
that Custodian or any Subcustodian is required under applicable
law to pay any Tax on behalf of the Fund, Custodian is hereby
authorized to withdraw cash from any cash account in the amount
required to pay such Tax and to use such cash, or to remit such
cash to the appropriate Subcustodian or other withholding agent,
for the timely payment of such Tax in the manner required by
applicable law. If the aggregate amount of cash in all cash
accounts is not sufficient to pay such Tax, Custodian shall
promptly notify the Fund of the additional amount of cash (in the
appropriate currency) required, and the Fund shall directly
deposit such additional amount in the appropriate cash account
promptly after receipt of such notice, for use by Custodian as
specified herein. In the event that Custodian reasonably believes
that Fund is eligible, pursuant to applicable law or to the
provisions of any tax treaty, for a reduced rate of, or exemption
from, any Tax which is otherwise required to be withheld or paid
on behalf of the Fund under any applicable law, Custodian shall,
or shall instruct the applicable Subcustodian or withholding
agent to, either withhold or pay such Tax at such reduced rate or
refrain from withholding or paying such Tax, as appropriate;
provided that Custodian shall have received from the Fund all
documentary evidence of residence or other qualification for such
reduced rate or exemption required to be received under such
applicable law or treaty. In the event that Custodian reasonably
believes that a reduced rate of, or exemption from, any Tax is
obtainable only by means of an application for refund, Custodian
and the applicable Subcustodian shall have no responsibility for
the accuracy or validity of any forms or documentation provided
by the Fund to Custodian hereunder. The Fund hereby agrees to
indemnify and hold harmless Custodian and each Subcustodian in
respect of any liability arising from any underwithholding or
underpayment of any Tax which results from the inaccuracy or
invalidity of any such forms or other documentation, and such
obligation to indemnify shall be a continuing obligation of the
Fund, its successors and assigns notwithstanding the termination
of this Agreement.
9. (a) For the purpose of settling Securities and foreign
exchange transactions, the Fund shall provide Custodian with
sufficient immediately available funds for all transactions by
such time and date as conditions in the relevant market dictate.
As used herein, "sufficient immediately available funds" shall
mean either (i) sufficient cash denominated in U.S. dollars to
purchase the necessary foreign currency, or (ii) sufficient
applicable foreign currency, to settle the transaction. Custodian
shall provide the Fund with immediately available funds each day
which result from the actual settlement of all sale transactions,
based upon advices received by Custodian from Subcustodians,
Depositories, and Foreign Depositories. Such funds shall be in
U.S. dollars or such other currency as the Fund may specify to
Custodian.
(b) Any foreign exchange transaction effected by
Custodian in connection with this Agreement may be entered with
Custodian or a BNY Affiliate acting as principal or otherwise
through customary banking channels. The Fund may issue a standing
Certificate or Instructions with respect to foreign exchange
transactions, but Custodian may establish rules or limitations
concerning any foreign exchange facility made available to the
Fund. The Fund shall bear all risks of investing in Securities or
holding cash denominated in a foreign currency.
(c) To the extent that Custodian has agreed to provide
pricing or other information services in connection with this
Agreement, Custodian is authorized to utilize any vendor
(including brokers and dealers of Securities) reasonably believed
by Custodian to be reliable to provide such information. The Fund
understands that certain pricing information with respect to
complex financial instruments (e.g., derivatives) may be based on
calculated amounts rather than actual market transactions and may
not reflect actual market values, and that the variance between
such calculated amounts and actual market values may or may not
be material. Where vendors do not provide information for
particular Securities or other property, an Authorized Person may
advise Custodian in a Certificate regarding the fair market value
of, or provide other information with respect to, such Securities
or property as determined by it in good faith. Custodian shall
not be liable for any loss, damage or expense incurred as a
result of errors or omissions with respect to any pricing or
other information utilized by Custodian hereunder.
10. Custodian shall promptly send to the Fund (a) any
reports it receives from a Depository on such Depository's system
of internal accounting control, and (b) such reports on its own
system of internal accounting control as the Fund may reasonably
request from time to time.
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)
against receipt with the expectation of receiving later payment
for such Securities. The Fund assumes full responsibility for all
risks, including, without limitation, credit risks, involved in
connection with such deliveries of Securities.
3. Custodian may, as a matter of bookkeeping convenience or
by separate agreement with the Fund, credit the Account with the
proceeds from the sale, redemption or other disposition of
Securities or interest, dividends or other distributions payable
on Securities prior to its actual receipt of final payment
therefor. All such credits shall be conditional until Custodian's
actual receipt of final payment and may be reversed by Custodian
to the extent that final payment is not received. Payment with
respect to a transaction will not be "final" until Custodian
shall have received immediately available funds which under
applicable local law, rule and/or practice are irreversible and
not subject to any security interest, levy or other encumbrance,
and which are specifically applicable to such transaction.
ARTICLE V
OVERDRAFTS OR INDEBTEDNESS
1. If Custodian should in its sole discretion advance funds
on behalf of any Series which results in an overdraft (including,
without limitation, any day-light overdraft) because the money
held by Custodian in an Account for such Series shall be
insufficient to pay the total amount payable upon a purchase of
Securities specifically allocated to such Series, as set forth in
a Certificate, Instructions or Oral Instructions, or if an
overdraft arises in the separate account of a Series for some
other reason, including, without limitation, because of a
reversal of a conditional credit or the purchase of any currency,
or if the Fund is for any other reason indebted to Custodian with
respect to a Series, including any indebtedness to The Bank of
New York under the Fund's Cash Management and Related Services
Agreement (except a borrowing for investment or for temporary or
emergency purposes using Securities as collateral pursuant to a
separate agreement and subject to the provisions of Section 2 of
this Article), such overdraft or indebtedness shall be deemed to
be a loan made by Custodian to the Fund for such Series payable
on demand and shall bear interest from the date incurred at a
rate per annum ordinarily charged by Custodian to its
institutional customers, as such rate may be adjusted from time
to time. In addition, the Fund hereby agrees that Custodian shall
to the maximum extent permitted by law have a continuing lien,
security interest, and security entitlement in and to any
property, including, without limitation, any investment property
or any financial asset, of such Series at any time held by
Custodian for the benefit of such Series or in which such Series
may have an interest which is then in Custodian's possession or
control or in possession or control of any third party acting in
Custodian's behalf. The Fund authorizes Custodian, in its sole
discretion, at any time to charge any such overdraft or
indebtedness together with interest due thereon against any
balance of account standing to such Series' credit on Custodian's
books.
2. If the Fund borrows money from any bank (including
Custodian if the borrowing is pursuant to a separate agreement)
for investment or for temporary or emergency purposes using
Securities held by Custodian hereunder as collateral for such
borrowings, the Fund shall deliver to Custodian a Certificate
specifying with respect to each such borrowing: (a) the Series to
which such borrowing relates; (b) the name of the bank, (c) the
amount of the borrowing, (d) the time and date, if known, on
which the loan is to be entered into, (e) the total amount
payable to the Fund on the borrowing date, (f) the Securities to
be delivered as collateral for such loan, including the name of
the issuer, the title and the number of shares or the principal
amount of any particular Securities, and (g) a statement
specifying whether such loan is for investment purposes or for
temporary or emergency purposes and that such loan is in
conformance with the `40 Act and the Fund's prospectus. Custodian
shall deliver on the borrowing date specified in a Certificate
the specified collateral against payment by the lending bank of
the total amount of the loan payable, provided that the same
conforms to the total amount payable as set forth in the
Certificate. Custodian may, at the option of the lending bank,
keep such collateral in its possession, but such collateral shall
be subject to all rights therein given the lending bank by virtue
of any promissory note or loan agreement. Custodian shall deliver
such Securities as additional collateral as may be specified in a
Certificate to collateralize further any transaction described in
this Section. The Fund shall cause all Securities released from
collateral status to be returned directly to Custodian, and
Custodian shall receive from time to time such return of
collateral as may be tendered to it. In the event that the Fund
fails to specify in a Certificate the Series, the name of the
issuer, the title and number of shares or the principal amount of
any particular Securities to be delivered as collateral by
Custodian, Custodian shall not be under any obligation to deliver
any Securities.
ARTICLE VI
SALE AND REDEMPTION OF SHARES
1. Whenever the Fund shall sell any shares issued by the
Fund ("Shares") it shall deliver to Custodian a Certificate or
Instructions specifying the amount of money and/or Securities to
be received by Custodian for the sale of such Shares and
specifically allocated to an Account for such Series.
2. Upon receipt of such money, Custodian shall credit such
money to an Account in the name of the Series for which such
money was received.
3. Except as provided hereinafter, whenever the Fund desires
Custodian to make payment out of the money held by Custodian
hereunder in connection with a redemption of any Shares, it shall
furnish to Custodian a Certificate or Instructions specifying the
total amount to be paid for such Shares. Custodian shall make
payment of such total amount to the transfer agent specified in
such Certificate or Instructions out of the money held in an
Account of the appropriate Series.
4. Notwithstanding the above provisions regarding the
redemption of any Shares, whenever any Shares are redeemed
pursuant to any check redemption privilege which may from time to
time be offered by the Fund, Custodian, unless otherwise
instructed by a Certificate or Instructions, shall, upon
presentment of such check, charge the amount thereof against the
money held in the Account of the Series of the Shares being
redeemed, provided, that if the Fund or its agent timely advises
Custodian that such check is not to be honored, Custodian shall
return such check unpaid.
ARTICLE VII
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. Whenever the Fund shall determine to pay a dividend or
distribution on Shares it shall furnish to Custodian Instructions
or a Certificate setting forth with respect to the Series
specified therein the date of the declaration of such dividend or
distribution, the total amount payable, and the payment date.
2. Upon the payment date specified in such Instructions or
Certificate, Custodian shall pay out of the money held for the
account of such Series the total amount payable to the dividend
agent of the Fund specified therein.
ARTICLE VIII
CONCERNING CUSTODIAN
1. (a) Except as otherwise expressly provided herein,
Custodian shall not be liable for any costs, expenses, damages,
liabilities or claims, including attorneys' and accountants' fees
(collectively, "Losses"), incurred by or asserted against the
Fund, except those Losses arising out of Custodian's own
negligence or willful misconduct. Custodian shall have no
liability whatsoever for the action or inaction of any
Depositories, or, except to the extent such action or inaction is
a direct result of the Custodian's failure to fulfill its duties
hereunder, of any Foreign Depositories. With respect to any
Losses incurred by the Fund as a result of the acts or any
failures to act by any Subcustodian (other than a BNY Affiliate),
Custodian shall take appropriate action to recover such Losses
from such Subcustodian; and Custodian's sole responsibility and
liability to the Fund shall be limited to amounts so received
from such Subcustodian (exclusive of costs and expenses incurred
by Custodian). In no event shall 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 Custodian or any
Subcustodian be liable: (i) for acting in accordance with any
Certificate or Oral Instructions actually received by Custodian
and reasonably believed by Custodian to be given by an Authorized
Person; (ii) for acting in accordance with Instructions without
reviewing the same; (iii) for conclusively presuming that all
Instructions are given only by person(s) duly authorized; (iv)
for conclusively presuming that all disbursements of cash
directed by the Fund, whether by a Certificate, an Oral
Instruction, or an Instruction, are in accordance with Section
2(i) of Article II hereof; (v) for holding property in any
particular country, including, but not limited to, Losses
resulting from nationalization, expropriation or other
governmental actions; regulation of the banking or securities
industry; exchange or currency controls or restrictions,
devaluations or fluctuations; availability of cash or Securities
or market conditions which prevent the transfer of property or
execution of Securities transactions or affect the value of
property; (vi) for any Losses due to forces beyond the control of
Custodian, including without limitation strikes, work stoppages,
acts of war or terrorism, insurrection, revolution, nuclear or
natural catastrophes or acts of God, or interruptions, loss or
malfunctions of utilities, communications or computer (software
and hardware) services; (vii) for the insolvency of any
Subcustodian (other than a BNY Affiliate), any Depository, or,
except to the extent such action or inaction is a direct result
of the Custodian's failure to fulfill its duties hereunder, any
Foreign Depository; or (viii) for any Losses arising from the
applicability of any law or regulation now or hereafter in
effect, or from the occurrence of any event, including, without
limitation, implementation or adoption of any rules or procedures
of a Foreign Depository, which may affect, limit, prevent or
impose costs or burdens on, the transferability, convertibility,
or availability of any currency or Composite Currency Unit in any
country or on the transfer of any Securities, and in no event
shall Custodian be obligated to substitute another currency for a
currency (including a currency that is a component of a Composite
Currency Unit) whose transferability, convertibility or
availability has been affected, limited, or prevented by such
law, regulation or event, and to the extent that any such law,
regulation or event imposes a cost or charge upon Custodian in
relation to the transferability, convertibility, or availability
of any cash currency or Composite Currency Unit, such cost or
charge shall be for the account of the Fund, and Custodian may
treat any account denominated in an affected currency as a group
of separate accounts denominated in the relevant component
currencies.
(b) Custodian may enter into subcontracts, agreements
and understandings with any BNY Affiliate, whenever and on such
terms and conditions as it deems necessary or appropriate to
perform its services hereunder. No such subcontract, agreement or
understanding shall discharge Custodian from its obligations
hereunder.
(c) The Fund agrees to indemnify Custodian and hold
Custodian harmless from and against any and all Losses sustained
or incurred by or asserted against Custodian by reason of or as a
result of any action or inaction, or arising out of Custodian's
performance hereunder, including reasonable fees and expenses of
counsel incurred by Custodian in a successful defense of claims
by the Fund; provided however, that the Fund shall not indemnify
Custodian for those Losses arising out of Custodian's own
negligence or willful misconduct. This indemnity shall be a
continuing obligation of the Fund, its successors and assigns,
notwithstanding the termination of this Agreement.
2. Without limiting the generality of the foregoing,
Custodian shall be under no obligation to inquire into, and shall
not be liable for:
(a) Any Losses incurred by the Fund or any other person
as a result of the receipt or acceptance of fraudulent, forged or
invalid Securities, or Securities which are otherwise not freely
transferable or deliverable without encumbrance in any relevant
market;
(b) The validity of the issue of any Securities
purchased, sold, or written by or for the Fund, the legality of
the purchase, sale or writing thereof, or the propriety of the
amount paid or received therefor;
(c) The legality of the sale or redemption of any
Shares, or the propriety of the amount to be received or paid
therefor;
(d) The legality of the declaration or payment of any
dividend or distribution by the Fund;
(e) The legality of any borrowing by the Fund;
(f) The legality of any loan of portfolio Securities,
nor shall Custodian be under any duty or obligation to see to it
that any cash or collateral delivered to it by a broker, dealer
or financial institution or held by it at any time as a result of
such loan of portfolio Securities is adequate security for the
Fund against any loss it might sustain as a result of such loan,
which duty or obligation shall be the sole responsibility of the
Fund. In addition, Custodian shall be under no duty or obligation
to see that any broker, dealer or financial institution to which
portfolio Securities of the Fund are lent makes payment to it of
any dividends or interest which are payable to or for the account
of the Fund during the period of such loan or at the termination
of such loan, provided, however that Custodian shall promptly
notify the Fund in the event that such dividends or interest are
not paid and received when due;
(g) The sufficiency or value of any amounts of money
and/or Securities held in any Special Account in connection with
transactions by the Fund; whether any broker, dealer, futures
commission merchant or clearing member makes payment to the Fund
of any variation margin payment or similar payment which the Fund
may be entitled to receive from such broker, dealer, futures
commission merchant or clearing member, or whether any payment
received by Custodian from any broker, dealer, futures commission
merchant or clearing member is the amount the Fund is entitled to
receive, or to notify the Fund of Custodian's receipt or
non-receipt of any such payment; or
(h) Whether any Securities at any time delivered to, or
held by it or by any Subcustodian, for the account of the Fund
and specifically allocated to a Series are such as properly may
be held by the Fund or such Series under the provisions of its
then current prospectus and statement of additional information,
or to ascertain whether any transactions by the Fund, whether or
not involving Custodian, are such transactions as may properly be
engaged in by the Fund.
3. Custodian may, with respect to questions of law
specifically regarding an Account, obtain the advice of counsel
and shall be fully protected with respect to anything done or
omitted by it in good faith in conformity with such advice.
4. Custodian shall be under no obligation to take action to
collect any amount payable on Securities in default, or if
payment is refused after due demand and presentment.
5. Custodian shall have no duty or responsibility to inquire
into, make recommendations, supervise, or determine the
suitability of any transactions affecting any Account.
6. The Fund shall pay to Custodian the fees and charges as
may be specifically agreed upon from time to time and such other
fees and charges at Custodian's standard rates for such services
as may be applicable. The Fund shall reimburse Custodian for all
costs associated with the conversion of the Fund's Securities
hereunder and the transfer of Securities and records kept in
connection with this Agreement. The Fund shall also reimburse
Custodian for out-of-pocket expenses which are a normal incident
of the services provided hereunder.
7. Custodian has the right to debit any cash account for any
amount payable by the Fund in connection with any and all
obligations of the Fund to Custodian. In addition to the rights
of Custodian under applicable law and other agreements, at any
time when the Fund shall not have honored any of its obligations
to Custodian, Custodian shall have the right without notice to
the Fund to retain or set-off, against such obligations of the
Fund, any Securities or cash Custodian or a BNY Affiliate may
directly or indirectly hold for the account of the Fund, and any
obligations (whether matured or unmatured) that Custodian or a
BNY Affiliate may have to the Fund in any currency or Composite
Currency Unit. Any such asset of, or obligation to, the Fund may
be transferred to Custodian and any BNY Affiliate in order to
effect the above rights.
8. The Fund agrees to forward to Custodian a Certificate or
Instructions confirming Oral Instructions by the close of
business of the same day that such Oral Instructions are given to
Custodian. The Fund agrees that the fact that such confirming
Certificate or Instructions are not received or that a contrary
Certificate or contrary Instructions are received by Custodian
shall in no way affect the validity or enforceability of
transactions authorized by such Oral Instructions and effected by
Custodian. If the Fund elects to transmit Instructions through an
on-line communications system offered by Custodian, the Fund's
use thereof shall be subject to the Terms and Conditions attached
as Appendix I hereto, and Custodian shall provide user and
authorization codes, passwords and authentication keys only to an
Authorized Person or a person reasonably believed by Custodian to
be an Authorized Person.
9. The books and records pertaining to the Fund which are in
possession of Custodian shall be the property of the Fund. Such
books and records shall be prepared and maintained as required by
the `40 Act and the rules thereunder. The Fund, or its authorized
representatives, shall have access to such books and records
during Custodian's normal business hours. Upon the reasonable
request of the Fund, copies of any such books and records shall
be provided by Custodian to the Fund or its authorized
representative. Upon the reasonable request of the Fund,
Custodian shall provide in hard copy or on computer disc any
records included in any such delivery which are maintained by
Custodian on a computer disc, or are similarly maintained.
10. It is understood that Custodian is authorized to supply
any information regarding the Accounts which is required by any
law, regulation or rule now or hereafter in effect. The Custodian
shall provide the Fund with any report obtained by the Custodian
on the system of internal accounting control of a Depository, and
with such reports on its own system of internal accounting
control as the Fund may reasonably request from time to time.
11. Custodian shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are
specifically set forth in this Agreement, and no covenant or
obligation shall be implied against Custodian in connection with
this Agreement.
ARTICLE IX
TERMINATION
1. Either of the parties hereto may terminate this Agreement
by giving to the other party a notice in writing specifying the
date of such termination, which shall be not less than ninety
(90) days after the date of giving of such notice. In the event
such notice is given by the Fund, it shall be accompanied by a
copy of a resolution of the board of the Fund, certified by the
Secretary or any Assistant Secretary, electing to terminate this
Agreement and designating a successor custodian or custodians,
each of which shall be a bank or trust company having not less
than $2,000,000 aggregate capital, surplus and undivided profits.
In the event such notice is given by Custodian, the Fund shall,
on or before the termination date, deliver to Custodian a copy of
a resolution of the board of the Fund, certified by the Secretary
or any Assistant Secretary, designating a successor custodian or
custodians. In the absence of such designation by the Fund,
Custodian may designate a successor custodian which shall be a
bank or trust company having not less than $2,000,000 aggregate
capital, surplus and undivided profits. Upon the date set forth
in such notice this Agreement shall terminate, and Custodian
shall upon receipt of a notice of acceptance by the successor
custodian on that date deliver directly to the successor
custodian all Securities and money then owned by the Fund and
held by it as Custodian, after deducting all fees, expenses and
other amounts for the payment or reimbursement of which it shall
then be entitled.
2. If a successor custodian is not designated by the Fund or
Custodian in accordance with the preceding Section, the Fund
shall upon the date specified in the notice of termination of
this Agreement and upon the delivery by Custodian of all
Securities (other than Securities which cannot be delivered to
the Fund) and money then owned by the Fund be deemed to be its
own custodian and Custodian shall thereby be relieved of all
duties and responsibilities pursuant to this Agreement, other
than the duty with respect to Securities which cannot be
delivered to the Fund to hold such Securities hereunder in
accordance with this Agreement.
ARTICLE X
MISCELLANEOUS
1. The Fund agrees to furnish to Custodian a new Certificate
of Authorized Persons in the event of any change in the then
present Authorized Persons. Until such new Certificate is
received, Custodian shall be fully protected in acting upon
Certificates or Oral Instructions of such present Authorized
Persons.
2. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to Custodian, shall be
sufficiently given if addressed to Custodian and received by it
at its offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
at such other place as Custodian may from time to time designate
in writing.
3. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund shall be
sufficiently given if addressed to the Fund and received by it at
its offices at ***, 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 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.
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.
Family or Fund Name
By:
-------------------------------
Name:
Title:
Tax Identification No:
THE BANK OF NEW YORK
By:
-------------------------------
Name:
Title:
SCHEDULE I
CERTIFICATE OF AUTHORIZED PERSONS
(The Fund - Oral and Written Instructions)
The undersigned hereby certifies that he/she is the duly
elected and acting ________________________ of * (the "Fund"),
and further certifies that the following officers or employees of
the Fund have been duly authorized in conformity with the Fund's
Charter and By-Laws to deliver Certificates and Oral Instructions
to The Bank of New York ("Custodian") pursuant to the Custody
Agreement between the Fund and Custodian dated _______________,
and that the signatures appearing opposite their names are true
and correct:
__________________ __________________ __________________
Name Title Signature
__________________ __________________ __________________
Name Title Signature
__________________ __________________ __________________
Name Title Signature
__________________ __________________ __________________
Name Title Signature
__________________ __________________ __________________
Name Title Signature
__________________ __________________ __________________
Name Title Signature
__________________ __________________ __________________
Name Title Signature
__________________ __________________ __________________
Name Title Signature
This certificate supersedes any certificate of Authorized
Persons you may currently have on file.
[seal] By: ________________________
Title:
Date:
SCHEDULE II
Fund Name Tax ID#
--------- -------
Alliance Institutional Reserves, Inc.
Prime Portfolio
Government Portfolio
Treasury Portfolio
Tax-Free Portfolio
California Tax-Free Portfolio
New York Tax-Free Portfolio
Trust Portfolio
APPENDIX I
THE BANK OF NEW YORK
ON-LINE COMMUNICATIONS SYSTEM (THE "SYSTEM")
TERMS AND CONDITIONS
1. License; Use. Upon delivery to an Authorized Person or a
person reasonably believed by Custodian to be an Authorized
Person the Fund of software enabling the Fund to obtain access to
the System (the "Software"), Custodian grants to the Fund a
personal, nontransferable and nonexclusive license to use the
Software solely for the purpose of transmitting Written
Instructions, receiving reports, making inquiries or otherwise
communicating with Custodian in connection with the Account(s).
The Fund shall use the Software solely for its own internal and
proper business purposes and not in the operation of a service
bureau. Except as set forth herein, no license or right of any
kind is granted to the Fund with respect to the Software. The
Fund acknowledges that Custodian and its suppliers retain and
have title and exclusive proprietary rights to the Software,
including any trade secrets or other ideas, concepts, know-how,
methodologies, or information incorporated therein and the
exclusive rights to any copyrights, trademarks and patents
(including registrations and applications for registration of
either), or other statutory or legal protections available in
respect thereof. The Fund further acknowledges that all or a part
of the Software may be copyrighted or trademarked (or a
registration or claim made therefor) by Custodian or its
suppliers. The Fund shall not take any action with respect to the
Software inconsistent with the foregoing acknowledgments, nor
shall you attempt to decompile, reverse engineer or modify the
Software. The Fund may not copy, sell, lease or provide, directly
or indirectly, any of the Software or any portion thereof to any
other person or entity without Custodian's prior written consent.
The Fund may not remove any statutory copyright notice or other
notice included in the Software or on any media containing the
Software. The Fund shall reproduce any such notice on any
reproduction of the Software and shall add any statutory
copyright notice or other notice to the Software or media upon
Custodian's request.
2. Equipment. The Fund shall obtain and maintain at its own cost
and expense all equipment and services, including but not limited
to communications services, necessary for it to utilize the
Software and obtain access to the System, and Custodian shall not
be responsible for the reliability or availability of any such
equipment or services.
3. Proprietary Information. The Software, any data base and any
proprietary data, processes, information and documentation made
available to the Fund (other than which are or become part of the
public domain or are legally required to be made available to the
public) (collectively, the "Information"), are the exclusive and
confidential property of Custodian or its suppliers. The Fund
shall keep the Information confidential by using the same care
and discretion that the Fund uses with respect to its own
confidential property and trade secrets, but not less than
reasonable care. Upon termination of the Agreement or the
Software license granted herein for any reason, the Fund shall
return to Custodian any and all copies of the Information which
are in its possession or under its control.
4. Modifications. Custodian reserves the right to modify the
Software from time to time and the Fund shall install new
releases of the Software as Custodian may direct. The Fund agrees
not to modify or attempt to modify the Software without
Custodian's prior written consent. The Fund acknowledges that any
modifications to the Software, whether by the Fund or Custodian
and whether with or without Custodian's consent, shall become the
property of Custodian.
5. NO REPRESENTATIONS OR WARRANTIES. CUSTODIAN AND ITS
MANUFACTURERS AND SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS
WITH RESPECT TO THE SOFTWARE, SERVICES OR ANY DATABASE, EXPRESS
OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE FUND ACKNOWLEDGES THAT THE SOFTWARE, SERVICES AND
ANY DATABASE ARE PROVIDED "AS IS." IN NO EVENT SHALL CUSTODIAN OR
ANY SUPPLIER BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT
SPECIAL, OR CONSEQUENTIAL, WHICH THE FUND MAY INCUR IN CONNECTION
WITH THE SOFTWARE, SERVICES OR ANY DATABASE, EVEN IF CUSTODIAN OR
SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE LIABLE
FOR ACTS OF GOD, MACHINE OR COMPUTER BREAKDOWN OR MALFUNCTION,
INTERRUPTION OR MALFUNCTION OF COMMUNICATION FACILITIES, LABOR
DIFFICULTIES OR ANY OTHER SIMILAR OR DISSIMILAR CAUSE BEYOND
THEIR REASONABLE CONTROL.
6. Security; Reliance; Unauthorized Use. The Fund will cause all
persons utilizing the Software and System to treat all applicable
user and authorization codes, passwords and authentication keys
with extreme care, and it will establish internal control and
safekeeping procedures to restrict the availability of the same
to persons duly authorized to give Instructions. Custodian is
hereby irrevocably authorized to act in accordance with and rely
on Instructions received by it through the System. The Fund
acknowledges that it is its sole responsibility to assure that
only persons duly authorized use the System and that Custodian
shall not be responsible nor liable for any unauthorized use
thereof.
7. System Acknowledgments. Custodian shall acknowledge through
the System its receipt of each transmission communicated through
the System, and in the absence of such acknowledgment Custodian
shall not be liable for any failure to act in accordance with
such transmission and the Fund may not claim that such
transmission was received by Custodian.
8. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY
UNITED STATES LAW. THE FUND MAY NOT UNDER ANY CIRCUMSTANCES
RESELL, DIVERT, TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE
SOFTWARE (IN ANY FORM) IN OR TO ANY OTHER COUNTRY. IF CUSTODIAN
DELIVERED THE SOFTWARE TO THE FUND OUTSIDE OF THE UNITED STATES,
THE SOFTWARE WAS EXPORTED FROM THE UNITED STATES IN ACCORDANCE
WITH THE EXPORTER ADMINISTRATION REGULATIONS. DIVERSION CONTRARY
TO U.S. LAW IS PROHIBITED. The Fund hereby authorizes Custodian
to report its name and address to government agencies to which
Custodian is required to provide such information by law.
9. ENCRYPTION. The Fund acknowledges and agrees that encryption
may not be available for every communication through the System,
or for all data. The Fund agrees that Custodian may deactivate
any encryption features at any time, without notice or liability
to the Fund, for the purpose of maintaining, repairing or
troubleshooting the System or the Software.
00250.0072 #345870
