Exhibit (g) (2)
CUSTODY AGREEMENT
AGREEMENT, dated as of November 19, 2002 between AmSouth Funds, a business
trust organized and existing under the laws of the Commonwealth of Massachusetts
having its principal office and place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000 (the "Fund") and The Bank of New York, a New York
corporation authorized to do a banking business having its principal office and
place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("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 other 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 of the Series at any time delivered to Custodian during the term of
this Agreement, and authorizes Custodian to hold such 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 such Series'
respective Securities and cash as provided herein, segregated on Custodian's
books and records from the assets of any other Series. Such accounts (each, an
"Account"; collectively, the "Accounts") shall be in the name of the Series for
- 2 -
which it is maintained. Each Account (other than the cash accounts) shall
constitute "securities accounts" as that term is used in Section 8-501 of the
Uniform Commercial Code in effect in the State of New York ("UCC"), and all
assets (other than cash) credited to the Accounts shall constitute "financial
assets" within the meaning of UCC Section 8-102(a)(9).
(b) Custodian may from time to time establish on its books and records
such sub-accounts within each Account as the Fund and Custodian may agree upon
(each a "Special Account"), and Custodian shall reflect therein such assets as
the Fund may specify in a Certificate or Instructions.
(c) Custodian shall 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, including the
Investment Company Act of 1940, as amended (the "`40 Act"), rule or regulation
applicable to the Fund;
(e) Its foreign custody manager, as defined in Rule 17f-5 under the
`40 Act, has determined that use of each Subcustodian (including any Replacement
Custodian) and each Depository which Custodian or any Subcustodian is authorized
to utilize in accordance with Section 1(a) of Article III hereof, satisfies the
applicable requirements of the `40 Act and Rules 17f-4 or 17f-5 thereunder, as
the case may be, provided that such representation and warranty with respect to
- 3 -
Subcustodians shall not be made nor deemed made on any day when The Bank of New
York is acting as the Fund's foreign custody manager.
(f) The Fund or its investment adviser has determined that the custody
arrangements of each Foreign Depository in a country in which a Series invests
or has Securities held hereunder 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
those methods of transmitting Instructions and Oral Instructions and delivering
Certificates to Custodian that are utilized by the Fund, understands that there
may be more secure methods of transmitting or delivering the same than the
methods selected by the Fund, agrees that the security procedures (if any) to be
utilized provide a commercially reasonable degree of protection in light of its
particular needs and circumstances. Custodian may conclusively presume that
Instructions that it receives have been given by person(s) duly authorized, and
Custodian may act upon such Instructions without, in the case of any
Instructions which are neither a Certificate nor Oral Instructions and are
transmitted either through an on-line communications system offered by Custodian
or through S.W.I.F.T., reviewing the same, provided that (i) Custodian has
complied with any security procedures to be utilized in connection with its
receipt of such Instructions, and (ii) the results of such security procedures
do not indicate that the Instructions have been given by a person who is not
duly authorized;
(h) It shall manage its borrowings, including, without limitation, any
advance or overdraft (including any day-light overdraft) in the Accounts, so
that the aggregate of its total borrowings for each Series does not exceed the
amount such Series is permitted to borrow under the `40 Act;
(i) Its transmission or giving of, and Custodian acting upon and in
reliance on, Certificates, Instructions, or Oral Instructions pursuant to this
Agreement shall at all times comply with the `40 Act;
(j) It shall impose and maintain restrictions on the destinations to
which cash may be disbursed by Instructions to ensure that each disbursement is
for a proper purpose; and
(k) It has the right to make the pledge and grant the security
interest to Custodian contained in Section 1 of Article V hereof, free of any
right of redemption or prior claim of any other person or entity and except to
the extent now or hereafter otherwise agreed by Custodian, 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.
- 4 -
ARTICLE III
CUSTODY AND RELATED SERVICES
1. (a) Subject to the terms hereof, the Fund hereby authorizes Custodian
to hold any Securities and cash received by it from time to time for the account
of a Series. Custodian shall be entitled to utilize Depositories, Subcustodians,
and, subject to subsection(c) of this Section 1, Foreign Depositories, 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
foreign custody manager has determined that utilization of such Replacement
Subcustodian satisfies the requirements of the `40 Act and Rule 17f-5
thereunder.
(b) Unless Custodian has received a Certificate or Instructions to the
contrary, Custodian shall hold Securities indirectly through a Subcustodian only
if (i) the Securities are not subject to any right, charge, security interest,
lien or claim of any kind in favor of such Subcustodian or its creditors or
operators, including a receiver or trustee in bankruptcy or similar authority,
except for a claim of payment for the safe custody or administration of
Securities on behalf of the Fund by such Subcustodian, and (ii) beneficial
ownership of the Securities is freely transferable without the payment of money
or value other than for safe custody or administration.
(c) With respect to each Foreign Depository, Custodian shall exercise
reasonable care, prudence, and diligence (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. Subject to
Custodian's exercise of such reasonable care, prudence and diligence, the Fund
acknowledges and agrees that such analysis and monitoring shall be made on the
basis of, and limited by, information gathered from Subcustodians, Foreign
Depositories, trade associations of which Custodian is a member from time to
time, or consistent with Securities and Exchange Commission ("SEC") Release
IC-23815, through publicly available information (including published ratings
and industry surveys) otherwise obtained by Custodian, and shall not include any
evaluation of Country Risks. Custodian will endeavor to include in its analysis
- 5 -
and monitoring, among other things, a Foreign Depository's expertise and market
reputation, the quality of its services, its financial strength, any insurance
or indemnification agreements, the extent and quality of regulation and
independent examination of the depository, its standing in published ratings,
its internal controls and other procedures for safeguarding investments, and any
related legal protections. In the event that the Fund reasonably believes that
there is a discrepancy between Custodian's performance of its obligations in
clauses (i) or (ii) of this paragraph and the requirements of paragraphs
(a)(1)(i)(A) of (B) of the Rule, respectively, and provides a detailed
notification to Custodian, Custodian shall reasonably cooperate with the Fund
and endeavor to resolve any such discrepancy. As used herein the term "Country
Risks" shall mean with respect to any Foreign Depository: (a) the financial
infrastructure of the country in which it is organized, but not of any Foreign
Depository to the extent covered by the analysis described in clause (i) of this
paragraph, (b) such country's prevailing custody and settlement practices, (c)
nationalization, expropriation or other governmental actions, (d) such country's
regulation of the banking or securities industry, (e) currency controls,
restrictions, devaluations or fluctuations, and (f) market conditions which
affect the order execution of securities transactions or affect the value of
securities.
2. Custodian shall furnish the Fund with an advice of daily transactions
(including a confirmation of each transfer of Securities) and a monthly summary
of all transfers to or from the Accounts.
3. With respect to all Securities held hereunder, Custodian shall, unless
otherwise instructed to the contrary:
(a) Receive all income and other payments and advise the Fund as
promptly as practicable of any such amounts due but not paid;
(b) Present for payment and receive the amount paid upon all
Securities which may mature and advise the Fund as promptly as practicable of
any such amounts due but not paid;
(c) Promptly 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) Promptly 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.
(g) Deliver to the Fund all notices, proxy solicitation materials,
consents and other written information (including, without limitation, notices
of tender offers and exchange offers, pendency of calls, maturities of
- 6 -
Securities and expiration of rights) relating to Securities held pursuant to
this Agreement which are actually received by the Custodian, such proxies and
other similar materials to be executed by the registered owner (if Securities
are registered otherwise than in the name of the Fund), but without indicating
the manner in which proxies or consents are to be voted; and
(h) Pursuant to Certificates, pay interest, taxes, management fees or
operating expenses (including, without limitation thereto, Board of Trustees'
fees and expenses, and fees for legal, accounting and auditing services), which
Certificates set forth the name and address of the person to whom payment is to
be made, state the purpose of such payment and designate the Series for whose
account the payment is to be made.
4. (a) Custodian shall promptly 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 promptly mail to the Fund any
documents (including proxy statements, annual reports and signed proxies)
actually received by Custodian relating to the exercise of such voting rights.
With respect to Securities issued outside of the United States, Custodian's only
duty shall be to provide the Fund with access to a provider of global proxy
services at the Fund's request. The Fund shall be responsible for all costs
associated with its use of such services.
6. Custodian shall promptly advise the Fund upon Custodian's actual receipt
of notification of the partial redemption, partial payment or other action
affecting less than all Securities of the relevant class. If Custodian, any
Subcustodian, any Depository, or any Foreign Depository holds any Securities in
which the Fund has an interest as part of a fungible mass, Custodian, such
Subcustodian, Depository, or Foreign Depository may select the Securities to
- 7 -
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), except
to the extent that such payment is required by reason of Custodian's negligence
or willful misconduct. 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.
- 8 -
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.
10. Custodian shall promptly send to the Fund (a) any reports it receives
from a Depository on such Depository's system of internal accounting control,
and (b) such reports on its own system of internal accounting control as the
Fund may reasonably request from time to time.
11. Until such time as Custodian receives a Certificate to the contrary
with respect to a particular Security, Custodian may release the identity of the
Fund to an issuer which requests such information pursuant to the Shareholder
Communications Act of 1985 for the specific purpose of direct communications
between such issuer and shareholder.
12. In the event that, for any reason, Custodian does not have or ceases to
have an agreement enabling it to utilize a Subcustodian in a market in which a
Series invests, Custodian shall promptly notify the Fund.
ARTICLE IV
PURCHASE AND SALE OF SECURITIES;
CREDITS TO ACCOUNT
1. Promptly after each purchase or sale of Securities by the Fund, the Fund
shall deliver to Custodian a Certificate or Instructions, or with respect to a
purchase or sale of a Security generally required to be settled on the same day
the purchase or sale is made, Oral Instructions specifying all information
Custodian may reasonably request to settle such purchase or sale. Custodian
shall account for all purchases and sales of Securities on the actual settlement
date unless otherwise agreed by Custodian.
2. The Fund understands that when Custodian is instructed to deliver
Securities against payment, delivery of such Securities and receipt of payment
therefor may not be completed simultaneously. Notwithstanding any provision in
this Agreement to the contrary, settlements, payments and deliveries of
Securities may be effected by Custodian or any Subcustodian in accordance with
- 9 -
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 under this Agreement, if any, (except a borrowing for investment or for
temporary or emergency purposes using Securities as collateral pursuant to a
separate agreement and subject to the provisions of Section 2 of this Article),
such overdraft or indebtedness shall be deemed to be a loan made by Custodian to
the Fund for such Series payable on demand and shall bear interest from the date
incurred at a rate per annum ordinarily charged by Custodian to its
institutional customers, as such rate may be adjusted from time to time. In
addition, the Fund hereby agrees that Custodian shall to the maximum extent
permitted by law have a continuing lien, security interest, and security
entitlement in and to any property, including, without limitation, any
investment property or any financial asset, of such Series at any time held by
Custodian for the benefit of such Series or in which such Series may have an
interest which is then in Custodian's possession or control or in possession or
control of any third party acting in Custodian's behalf. The Fund authorizes
Custodian, in its sole discretion, at any time to charge any such overdraft or
indebtedness together with interest due thereon against any balance of Account
standing to such Series' credit on Custodian's books.
2. Upon receipt of a Certificate or Instructions, Custodian shall deliver
to lenders or their agents, or if so directed in such Certificate or
Instructions, establish a segregated account for and enter into a control
agreement satisfactory to the Fund and to Custodian with respect to, specified
Securities of a Series as collateral for borrowings effected by such Series,
provided that unless otherwise specified in such Certificate or Instructions,
- 10 -
any such delivery to a lender or its agent shall be against payment of the
amount of such borrowing.
ARTICLE VI
SALE AND REDEMPTION OF SHARES
1. Whenever the Fund shall sell any shares issued by the Fund ("Shares") it
shall deliver to Custodian a Certificate or Instructions specifying the amount
of money and/or Securities to be received by Custodian for the sale of such
Shares and specifically allocated to an Account for such Series.
2. Upon receipt of such money, Custodian shall credit such money to an
Account in the name of the Series for which such money was received.
3. Except as provided hereinafter, whenever the Fund desires Custodian to
make payment out of the money held by Custodian hereunder in connection with a
redemption of any Shares, it shall furnish to Custodian a Certificate or
Instructions specifying the total amount to be paid for such Shares. Custodian
shall make payment of such total amount to the transfer agent specified in such
Certificate or Instructions out of the money held in an Account of the
appropriate Series.
4. Notwithstanding the above provisions regarding the redemption of any
Shares, in the event the Fund determines subsequent to the date of execution of
this Agreement to offer any check redemption privilege, whenever any Shares are
redeemed pursuant to any such check redemption privilege payable by or through
The Bank of New York, 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.
- 11 -
ARTICLE VIII
CONCERNING CUSTODIAN
1. (a) Custodian shall use reasonable care in the performance of its
duties hereunder. Except as otherwise expressly provided herein, Custodian shall
not be liable for any costs, expenses, damages, liabilities or claims, including
attorneys' and accountants' fees (collectively, "Losses"), incurred by or
asserted against the Fund, except those Losses arising out of Custodian's own
negligence or willful misconduct. Custodian shall have no liability whatsoever
for the action or inaction of any Depositories, or, except to the extent such
action or inaction is a direct result of the Custodian's failure to fulfill its
duties hereunder described in Section 1(c) of Article II, 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), provided that such limitation shall
not apply if Custodian fails to use reasonable care in selecting such
Subcustodian. 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) subject to the proviso set forth in Section 2(g) of
Article II hereof, 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 which are neither a Certificate nor Oral Instructions and are
transmitted either through an on-line communications system offered by Custodian
or through S.W.I.F.T. without reviewing the same, subject to the proviso set
forth in Section 2(g) of Article II hereof; (iii) for conclusively presuming
that all Instructions which satisfy Custodian's security procedures with respect
to receipt of 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(j) of Article II hereof; (v) for holding property in
any particular country, including, but not limited to, Losses resulting from
nationalization, expropriation or other governmental actions; regulation of the
banking or securities industry; exchange or currency controls or restrictions,
devaluations or fluctuations; availability of cash or Securities or market
conditions which prevent the transfer of property or execution of Securities
transactions or affect the value 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, provided
that Custodian has established and maintains a disaster recovery plan and backup
system satisfying the requirements of New York and federal law applicable to the
Custodian, or, if it has not, that such Loss would have occurred even if
Custodian had established and maintained such plan and system; (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
- 12 -
Foreign Depository, which may affect, limit, prevent or impose costs or burdens
on, the transferability, convertibility, or availability of any currency or
Composite Currency Unit in any country or on the transfer of any Securities, and
in no event shall Custodian be obligated to substitute another currency for a
currency (including a currency that is a component of a Composite Currency Unit)
whose transferability, convertibility or availability has been affected,
limited, or prevented by such law, regulation or event, and to the extent that
any such law, regulation or event imposes a cost or charge upon Custodian in
relation to the transferability, convertibility, or availability of any cash
currency or Composite Currency Unit, such cost or charge shall be for the
account of the Fund, and Custodian may treat any account denominated in an
affected currency as a group of separate accounts denominated in the relevant
component currencies.
(b) Custodian may enter into subcontracts, agreements and
understandings with any BNY Affiliate, whenever and on such terms and conditions
as it deems necessary or appropriate to perform its services hereunder. No such
subcontract, agreement or understanding shall discharge Custodian from its
obligations hereunder.
(c) The Fund agrees to indemnify Custodian and hold Custodian harmless
from and against any and all Losses sustained or incurred by or asserted against
Custodian by reason of or as a result of any action or inaction, or arising out
of Custodian's performance hereunder, including reasonable fees and expenses of
counsel incurred by Custodian in a successful defense of claims by the Fund;
provided however, that the Fund shall not indemnify Custodian for those Losses
arising out of Custodian's own negligence or willful misconduct. This indemnity
shall be a continuing obligation of the Fund, its successors and assigns,
notwithstanding the termination of this Agreement.
2. Without limiting the generality of the foregoing, Custodian shall be
under no obligation to inquire into, and shall not be liable under this
Agreement for:
(a) Any Losses incurred by the Fund or any other person as a result of
the receipt or acceptance of fraudulent, forged or invalid Securities, or
Securities which are otherwise not freely transferable or deliverable without
encumbrance in any relevant market;
(b) The validity of the issue of any Securities purchased, sold, or
written by or for the Fund, the legality of the purchase, sale or writing
thereof, or the propriety of the amount paid or received therefor;
(c) The legality of the sale or redemption of any Shares, or the
propriety of the amount to be received or paid therefor;
(d) The legality of the declaration or payment of any dividend or
distribution by the Fund;
(e) The legality under the '40 Act 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
- 13 -
by it at any time as a result of such loan of portfolio Securities is adequate
security for the Fund against any loss it might sustain as a result of such
loan, which duty or obligation shall be the sole responsibility of the Fund. In
addition, Custodian shall be under no duty or obligation to see that any broker,
dealer or financial institution to which portfolio Securities of the Fund are
lent makes payment to it of any dividends or interest which are payable to or
for the account of the Fund during the period of such loan or at the termination
of such loan, provided, however that Custodian shall promptly notify the Fund in
the event that such dividends or interest are not paid and received when due;
(g) The sufficiency or value of any amounts of money and/or Securities
held in any Special Account in connection with transactions by the Fund; whether
any broker, dealer, futures commission merchant or clearing member makes payment
to the Fund of any variation margin payment or similar payment which the Fund
may be entitled to receive from such broker, dealer, futures commission merchant
or clearing member, or whether any payment received by Custodian from any
broker, dealer, futures commission merchant or clearing member is the amount the
Fund is entitled to receive, or to notify the Fund of Custodian's receipt or
non-receipt of any such payment; or
(h) Whether any Securities at any time delivered to, or held by it or
by any Subcustodian, for the account of the Fund and specifically allocated to a
Series are such as properly may be held by the Fund or such Series under the
provisions of its then current prospectus and statement of additional
information, or to ascertain whether any transactions by the Fund, whether or
not involving Custodian, are such transactions as may properly be engaged in by
the Fund.
3. Custodian may, with respect to questions of law specifically regarding
an Account, obtain the advice of counsel and shall be fully protected with
respect to anything done or omitted by it in good faith in conformity with such
advice.
4. Custodian shall be under no obligation to take action to collect any
amount payable on Securities in default, or if payment is refused after due
demand and presentment.
5. Custodian shall have no duty or responsibility to inquire into, make
recommendations, supervise, or determine the suitability of any transactions
affecting any Account.
6. The Fund shall pay to Custodian the fees and charges as may be
specifically agreed upon from time to time and such other fees and charges at
Custodian's standard rates for such services as may be applicable. The Fund
shall reimburse Custodian for all costs associated with the conversion of the
Fund's Securities hereunder and the transfer of Securities and records kept in
connection with this Agreement. The Fund shall also reimburse Custodian for
out-of-pocket expenses which are a normal incident of the services provided
hereunder.
7. Custodian has the right to debit any cash Account of a Series for any
amount payable hereunder by such Series in connection with any and all
obligations of such Series to Custodian. In addition to the rights of Custodian
under applicable law and other agreements, at any time when a Series shall not
- 14 -
have honored any of its obligations to Custodian hereunder, Custodian shall have
the right to retain or set-off, against such obligations of the Series, any
Securities or cash Custodian may directly or indirectly hold for the account of
the Series, and any obligations (whether matured or unmatured) that Custodian
may have to the Series 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. Custodian will treat as confidential all information provided to it by
the Fund, shall use such information, including without limitation, any
nonpublic, personal information relating to consumers and customers of the Fund
for purposes of the Xxxxx-Xxxxx-Xxxxxx Act and SEC Regulation S-P ("Personal
Information"), solely for the purpose of rendering services pursuant to this
Agreement, and shall not disclose such information except as permitted by law.
Without limitation of the foregoing, it is understood that Custodian is
authorized to supply information regarding the Accounts as required by any law,
regulation or rule now or hereafter in effect. Custodian has adopted and will
maintain appropriate technical, physical and administrative measured designed
to: (i) ensure the security and confidentiality of Personal Information; (ii)
protect against reasonably foreseeable threats or hazards to Personal
Information; and (iii) protect against unauthorized access to or use of Personal
Information that could result in substantial harm or inconvenience to any
customer of the Fund.
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.
- 15 -
ARTICLE IX
TERMINATION
1. Either of the parties hereto may terminate this Agreement in its
entirety or with respect to one or more Series 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, specifying the Series to which
such termination applies and designating a successor custodian or custodians
meeting the requirements of the '40 Act. 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 meeting
the requirements of the '40 Act. Upon the date set forth in such notice this
Agreement shall terminate, in its entirety or with respect to the designated
Series, as appropriate 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 affected Series
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 affected Series be deemed to be its own custodian
and Custodian shall thereby be relieved of all duties and responsibilities with
respect thereto 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.
- 16 -
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 the following address: AmSouth Funds, 000
Xxxxxxxxxx Xxxxxxx Xxxx, XXX-0, Xxxxxxxxxx, Xxxxxxx 00000, Attn: Xxxx Xxxxxxx,
President, or at such other place as the Fund may from time to time designate in
writing.
4. Each and every right granted to either party hereunder or under any
other document delivered hereunder or in connection herewith, or allowed it by
law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of either party to exercise, and no delay in exercising, any
right will operate as a waiver thereof, nor will any single or partial exercise
by either party of any right preclude any other or future exercise thereof or
the exercise of any other right.
5. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any exclusive jurisdiction, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected thereby. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties, except that any
amendment to the Schedule I hereto need be signed only by the Fund and any
amendment to Appendix I hereto need be signed only by Custodian. This Agreement
shall extend to and shall be binding upon the parties hereto, and their
respective successors and assigns; provided, however, that this Agreement shall
not be assignable by either party without the written consent of the other.
6. This Agreement shall be construed in accordance with the substantive
laws of the State of New York, without regard to conflicts of laws principles
thereof. The Fund and Custodian hereby consent to the jurisdiction of a state or
federal court situated in New York City, New York in connection with any dispute
arising hereunder. The Fund hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection which it may now or hereafter have to
the laying of venue of any such proceeding brought in such a court and any claim
that such proceeding brought in such a court has been brought in an inconvenient
forum. The Fund and Custodian each hereby irrevocably waives any and all rights
to trial by jury in any legal proceeding arising out of or relating to this
Agreement.
7. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
8. A copy of the Declaration of Trust of the Fund is on file with the
Secretary of the Commonwealth of Massachusetts, and notice is hereby given that
this instrument is executed on behalf of the Board of Trustees of the Fund as
Trustees and not individually and that the obligations of this instrument are
not binding upon any of the Trustees or shareholders individually but are
binding only upon the assets and property of the Fund; provided, however, that
the Declaration of Trust of the Fund provides that the assets of a particular
Series of the Fund shall under no circumstances be charged with liabilities
attributable to any other Series of the Fund and that all persons extending
credit to, or contracting with or having any claim against a particular Series
of the Fund shall look only to the assets of that particular Series for payment
of such credit, contract or claim.
- 17 -
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.
AMSOUTH FUNDS
By:
--------------------------
Title:
Tax Identification No:
THE BANK OF NEW YORK
By:
--------------------------
Title:
- 18 -
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 AmSouth Funds (the "Fund"), and further certifies
-------------------------
that the following persons 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") on behalf of the Series
indicated below pursuant to the Custody Agreement between the Fund and Custodian
dated , and that the signatures appearing opposite their names
---------------
are true and correct:
With respect to AmSouth International Equity Fund:
-------------------- -------------------- --------------------
Name Title Signature
-------------------- -------------------- --------------------
Name Title Signature
-------------------- -------------------- --------------------
Name Title Signature
-------------------- -------------------- --------------------
Name Title Signature
-------------------- -------------------- --------------------
Name Title Signature
-------------------- -------------------- --------------------
Name Title Signature
-------------------- -------------------- --------------------
Name Title Signature
This certificate supersedes any certificate of Authorized Persons you may
currently have on file.
[seal] By:
--------------------
Title:
Date:
SCHEDULE II
SERIES
AmSouth International Equity Fund
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 of the Fund of
software enabling the Fund to obtain access to the System (the "Software"),
Custodian grants to the Fund a personal, nontransferable and nonexclusive
license to use the Software solely for the purpose of transmitting 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, provided, however, that the Fund may provide
the Software to, and the Software may be used in accordance with and subject to
the terms and conditions hereof by, any investment adviser, administrator or
other agent of the Fund to the extent that such party is acting on behalf of a
Series. 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.
