CUSTODY AGREEMENT
AMENDED AND REINSTATED AGREEMENT, dated as of April 10, 2003 between each
registered investment company listed on Exhibit A hereto (each a "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 a 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 a 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 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 the respective successors and
nominees of the foregoing.
9. "INSTRUCTIONS" shall mean communications (other than Certificates)
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 each 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 an Eligible Foreign Custodian as defined in Rule 17f-5 under
the Investment Act of 1940, as amended and which is utilized by Custodian in
connection with the purchase, sale or custody of Securities, cash, or other
property 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,
cash, and other property 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, cash,
and other property 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 related 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, cash or other property
as the Fund may specify in a Certificate or Instructions.
2. Each 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
such 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
it, approved by a resolution of its board, constitutes its valid and legally
binding obligation, 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 in Section 1(a) of Article III hereof) 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, except that no
Fund shall make such representation or warranty with respect to any Eligible
Foreign Custodian, as defined in Rule 17f-5 under the Investment Act of 1940, as
amended, selected by The Bank of New York pursuant to an Amended and Restated
Foreign Custody Manager Agreement with such Fund;
(f) The Fund or its investment adviser has determined, or will have
determined prior to causing any Securities, cash, or other property to be held
at any Foreign Depository, that the custody arrangements of such 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 1940 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
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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 agreed to by the Fund and the Custodian provide a
commercially reasonable degree of protection in light of its particular needs
and circumstances, and acknowledges and agrees that Instructions (other than
Certificates and Oral Instructions) need not be reviewed by Custodian, may
conclusively be presumed by Custodian to have been given by the appropriate
number of 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. Each 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, each Fund hereby authorizes Custodian
to hold any Securities, cash, and other property received by it from time to
time for the account of any Series or such Fund. Custodian shall be entitled to
utilize Depositories, Subcustodians either subject to a representation and
warranty under Section 2(e) of Article II hereof or selected under the Amended
and Restated Foreign Custody Manager Agreement cited in such Section 2(e), and,
subject to subsection (b) of this Section 1, Foreign Depositories, to the extent
possible in connection with its performance hereunder. Securities, cash, and
other property held in a Depository or Foreign Depository will be held subject
to the rules, terms and conditions of such entity. Securities, cash, and other
property 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, cash, and other property in Foreign
Depositories in which such Subcustodians participate. Unless otherwise required
by local law or practice or a particular
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subcustodian agreement, Securities, cash, and other property 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, cash, and other
property held by Custodian as custodian for its customers. Custodian shall
identify on its books and records the Securities, cash, and other property
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 and other property 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) 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, from trade
associations of which Custodian is a member, from the Foreign Depository 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 orderly
execution of securities transactions or affect the value of securities.
2. Custodian shall furnish each Fund with an advice of daily transactions
(including a confirmation of each transfer of Securities) and a monthly summary
for each Account of all transfers to or from such Accounts.
3. With respect to all Securities, cash, or other property 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
and other property which may mature and advise the Fund as promptly as
practicable of any such amounts due but not paid;
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(c) Forward to the Fund copies of all information or documents that it
may actually receive from an issuer of Securities or other property which, in
the opinion of Custodian, are intended for the beneficial owner of Securities or
other property;
(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 each Fund of rights or discretionary actions
with respect to Securities or other property 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, the relevant
Depository, the relevant Subcustodian, a 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 by which 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 notify the Fund.
(b) Whenever Securities (including, but not limited to, warrants,
options, tenders, options to tender or non-mandatory puts or calls) or other
property confer discretionary rights on a Fund or provide for discretionary
action or alternative courses of action by the Fund, a 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, provided that if Custodian receives a Certificate
or Instructions that are not timely, Custodian shall endeavor to act in
accordance with the same but shall not be liable for a failure to do so.
5. All voting rights with respect to Securities, however registered, shall
be exercised by each Fund or its designee. For Securities issued in the United
States, Custodian's only duty shall be to mail to the Fund or, if Custodian
elects in its sole discretion, transmit in a commercially reasonable manner by
some other means, 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 each 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
or other property in which a Fund has an interest as part of a fungible mass,
Custodian, such Subcustodian, Depository, or Foreign Depository may select the
Securities or other property 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. Each 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, other property, 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 provided by the Fund or prepared in
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accordance with a Certificate or Instructions of the Fund, 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 transactions in Securities, foreign
exchange, or other property, each 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
each 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 each 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 and all Country Risks, market
risks, investment risks, and non-custodial risks of holding cash denominated in
a foreign currency.
10. Custodian shall promptly send to the Fund (a) any reports it receives
from a Depository on such Depository's system of internal accounting control,
and (b) such reports on its own system of internal accounting control as the
Fund may reasonably request from time to time.
11. Until such time as Custodian receives a U.C. certificate to the
contrary with respect to a particular Security, Custodian shall not release the
identity of the Customer 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 or other property by
a Fund, such 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. Each Fund understands that when Custodian is instructed to deliver
Securities or other property against payment, delivery of such Securities or
other property and receipt of
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payment therefor may not be completed simultaneously. Notwithstanding any
provision in this Agreement to the contrary, settlements, payments and
deliveries of Securities or other property 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 or other property.
3. Custodian may, as a matter of bookkeeping convenience or by separate
agreement with the Fund, credit the Account with any proceeds from the sale,
redemption or other disposition of Securities or other property, or interest,
dividends or other distributions payable on Securities or other property 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. No
payment with respect to a transaction will 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 or other property 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, each Fund hereby agrees that subject to any applicable
restriction of the relevant Fund or Series set forth in the related Statement of
Additional Information, 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
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indebtedness together with interest due thereon against any balance of account
standing to such Series' credit on Custodian's books.
2. If a 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, and the related
Statement of Additional Information for such Series. If such Fund has appointed
the lending bank as a custodian, 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 if such lending bank has been appointed
by the Fund as a custodian, and shall, if such Fund has not appointed the
lending bank as a custodian, keep such collateral in its possession, on terms
and conditions mutually agreed to by the lending bank and Custodian, provided
that 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 a Fund shall sell any shares issued by a series of such 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 a 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
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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 a 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 Series 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 a 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 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 in which a
Subcustodian is located,
-11-
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) Each 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 such Fund;
provided however, that such 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 a 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;
-12-
(b) The validity of the issue of any Securities purchased, sold, or
written by or for a 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 a Fund;
(e) The legality of any borrowing by a 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 a Fund against any loss it might sustain as a result of such loan,
which duty or obligation shall be the sole responsibility of such 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 cash, property 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.,
-13-
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. Each 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. Each 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 of a Series for any
amount payable by such Series 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
such Fund to retain or set-off, against such obligations of such Fund, any
Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold
for the account of such Fund, and any obligations (whether matured or unmatured)
that Custodian or a BNY Affiliate may have to such Fund in any currency or
Composite Currency Unit. Any such asset of, or obligation to, such 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 persons reasonably believed by
Custodian to be Authorized Persons.
9. The books and records pertaining to the Fund which are in possession of
Custodian shall be the property of such Fund. Such books and records shall be
prepared and maintained as required by the `40 Act and the rules thereunder.
Such Fund, or its authorized representatives, shall have access to such books
and records during Custodian's normal business hours. Upon the reasonable
request of such Fund, copies of any such books and records shall be provided by
Custodian to such Fund or its authorized representative. Upon the reasonable
request of such 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 such 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
-14-
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. Any Fund or Custodian 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 a Fund, it shall be accompanied by a copy
of a resolution of the board of such 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, cash, and other property 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, a 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),
cash, and other property 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.
-15-
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 a Fund shall be sufficiently given if addressed to
the Fund and received by it at its offices at Xxx Xxxxxxxxx Xxxxxx, Xxx, Xxx
Xxxx 00000-0000, or at such other place as such 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 Custodian and each Fund to be affected
by such amendment or modification, except that any amendment to the Schedule I
hereto need be signed only by the Fund or Funds with respect to which a change
in such Schedule I is being made, 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 party.
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. Each 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, each 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/ XXXXX X. XXXXXX
------------------------------
Title: Executive Vice President
THE BANK OF NEW YORK
By: /s/ XXXXXX X. XXXXXX
------------------------------
Title: Vice President
-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
Executive Vice President and Treasurer of Xxxxxxxx Funds, Inc. (the "Company"),
and further certifies that the following officers or employees of the Company
have been duly authorized in conformity with the Company's Articles of Amendment
and Restatement and By-Laws to deliver Certificates and Oral Instructions to The
Bank of New York ("Custodian") pursuant to the Custody Agreement between the
Company and Custodian dated April 10, 2003, and that the signatures appearing
opposite their names are true and correct:
XXXXX X. XXXXXXX
----------------------------- ---------------------------- -------------------
Name Title Signature
Executive Vice President and
XXXXX X. XXXXXX TREASURER /s/ XXXXX X. XXXXXX
----------------------------- ---------------------------- -------------------
Name Title Signature
Vice President and Assistant
XXX X. XXXXXXXXXX Treasurer /s/ XXX X. XXXXXXXXXX
----------------------------- ---------------------------- ---------------------
Name Title Signature
XXXXXX XXXXXXXXXXXX /s/ XXXXXX XXXXXXXXXXXX
----------------------------- ---------------------------- -----------------------
Name Title Signature
XXXXX X. XXXXX Secretary /s/ XXXXX X. XXXXX
----------------------------- ---------------------------- ------------------
Name Title Signature
XXXXXX XXXXXX /s/ XXXXXX XXXXXX
----------------------------- ---------------------------- -----------------
Name Title Signature
XXXXX X. XXXXXXXX /s/ XXXXX X. XXXXXXXX
----------------------------- ---------------------------- ---------------------
Name Title Signature
XXXXXXXX XXXXXXXXXXX /s/ XXXXXXXX XXXXXXXXXXX
----------------------------- ---------------------------- ------------------------
Name Title Signature
XXXXXX X.X. XXXXXX ASSISTANT SECRETARY /s/ XXXXXX X.X. XXXXXX
----------------------------- ---------------------------- ----------------------
Name Title Signature
XXXXX XXXXX ASSISTANT TREASURER /s/ XXXXX XXXXX
----------------------------- ---------------------------- ---------------
Name Title Signature
XXXXX XXXXXX /s/ XXXXX XXXXXX
----------------------------- ---------------------------- ----------------
Name Title Signature
XXXXXXX XXXXX /s/ XXXXXXX XXXXX
----------------------------- ---------------------------- -----------------
Name Title Signature
XXXXXXX XXXXXXX /s/ XXXXXXX XXXXXXX
----------------------------- ---------------------------- -------------------
Name Title Signature
XXXXXX XXXXXXXXX /s/ XXXXXX XXXXXXXXX
----------------------------- ---------------------------- --------------------
Name Title Signature
This certificate supersedes any certificate of Authorized Persons you may
currently have on file.
[seal] By: /s/ Xxxxx X. Xxxxxx
--------- ----------------------
Title: Executive Vice President
And Treasurer
Date:
-7-
EXHIBIT A
XXXXXXXX FUNDS INC.
FUND NAME TAX ID NUMBER
--------- -------------
Xxxxxxxx Strategy Fund 00-0000000
Xxxxxxxx Capital Value Fund 00-0000000
-8-
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 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.
