CUSTODY AGREEMENT
AGREEMENT,
dated as of November 22, 2005 between Cullen International High Dividend Fund, a
business trust organized and existing under the laws of the State of New York
having its principal office and place of business at 000 Xxxxx Xxxxxx, XX, XX
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 (“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 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 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.
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(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 Custodian) which Custodian is authorized
to utilize in accordance with Section 1(a) of Article III hereof satisfies the
applicable requirements of the ’40 Act and Rule 17f-5
thereunder;
(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, shall, and shall cause each Authorized Person, to safeguard and treat
with extreme care any user and authorization codes, passwords and/or
authentication keys, understands that there may be more secure methods of
transmitting or delivering the same than the methods selected by it, 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;
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(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, subject to subsection (c) of this Section 1,
Depositories, Subcustodians, and, subject to subsection (d) 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.
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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 Depository, Custodian (i) shall exercise due care in accordance
with reasonable commercial standards in discharging its duties as a securities
intermediary to obtain and thereafter maintain Securities or financial assets
deposited or held in such Depository, and (ii) will provide, promptly upon
request by the Fund, such reports as are available concerning the internal
accounting controls and financial strength of Custodian.
(d) 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 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;
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(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.
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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.
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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.
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.
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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.
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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.
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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 of any Foreign Depositories, except in
each case to the extent such action or inaction is a direct result of the
Custodian’s failure to fulfill its duties hereunder. 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 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,
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.
-11-
(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;
-12-
(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.
-13-
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.
-14-
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.
-15-
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.
-16-
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/ Xxxxxx X. Xxxxxx | |
| Title: Vice President | |
| Tax Identification No: 00-0000000 | |
| THE BANK OF NEW YORK | |
| By: /s/ Xxxxxx X. XxXxxx | |
| Title: Xxxxxx X. XxXxxx | |
|
Managing Director
|
|
-17-
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 Declaration of Trust 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:
|
Xxxxx X. Xxxxxx
Name
|
President
Title
|
/s/ Xxxxx X. Xxxxxx
Signature
|
|
Xxxx Xxxxx
Name
|
Vice President
Title
|
/s/ Xxxx X. Xxxxx
Signature
|
|
Xxxxx Xxxxxx
Name
|
Secretary
Title
|
/s/ Xxxxx Xxxxxx
Signature
|
|
Xxxxxx Xxxx
Name
|
Treasurer
Title
|
/s/ Xxxxxx X. Xxxx
Signature
|
|
Xxxxxx Xxxxxx
Name
|
Vice President
Title
|
/s/ Xxxxxx X. Xxxxxx
Signature
|
|
Name
|
Title
|
Signature
|
|
Name
|
Title
|
Signature
|
This
certificate supersedes any certificate of Authorized Persons you may currently
have on file.
| [seal] |
By: /s/ Xxxxx X.
Xxxxxx
Title:
|
Date:
SCHEDULE
II
SERIES
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.
