FORM OF CUSTODIAN AGREEMENT
FORM
OF
THIS
CUSTODIAN AGREEMENT
(this
“Agreement”), dated as of January __, 2008, is entered into among UNITED
STATES GASOLINE FUND, LP,
a
limited partnership organized under the laws of the State of Delaware (the
Fund),
VICTORIA
BAY ASSET MANAGEMENT, LLC,
a
Delaware limited liability company and General Partner of the Fund (the
General
Partner),
and
XXXXX
BROTHERS XXXXXXXX & CO.,
a
limited partnership formed under the laws of the State of New York (BBH&Co.
or the
Custodian),
WITNESSETH:
WHEREAS,
the
General Partner has exclusive responsibility for the management and control
of
the business and affairs of the Fund; and
WHEREAS,
the
General Partner wishes to employ BBH&Co. to act as custodian for the Fund’s
Investments (as defined in Section 13.15) and to provide related services,
all
as provided herein, and BBH&Co. is willing to accept such employment,
subject to the terms and conditions herein set forth;
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements herein contained, the
Fund
and BBH&Co. hereby agree, as follows:
1. Appointment
of Custodian.
The Fund
and the General Partner hereby appoint BBH&Co. as the Fund’s custodian for
its Investments, and BBH&Co. hereby accepts such appointment. All
Investments of the Fund delivered to the Custodian or its agents or
Subcustodians (as defined in Section 13) shall be dealt with as provided in
this
Agreement. The duties of the Custodian with respect to the Fund’s Investments
shall be only as set forth expressly in this Agreement, which duties are
generally comprised of safekeeping and various administrative duties that will
be performed in accordance with Instructions and as reasonably required to
effect Instructions.
2. Representations,
Warranties and Covenants of the Fund.
The Fund
and the General Partner each hereby represents, warrants and covenants each
of
the following:
2.1 This
Agreement has been, and at the time of delivery of each Instruction (as defined
in Section 4) such Instruction will have been, duly authorized, executed and
delivered by the Fund and the General Partner. This Agreement does not violate
any Applicable Law (as defined in Section 13) or conflict with or constitute
a
default under the Fund’s prospectus or other organic document, agreement,
judgment, order or decree to which the Fund or the General Partner is a party
or
by which it or its Investments is bound.
2.2 By
providing an Instruction with respect to the first acquisition of an Investment
in a jurisdiction other than the United States of America, the Fund and the
General Partner shall be deemed to have confirmed to the Custodian that the
Fund
has (a) made all determinations required to be made by the Fund under Applicable
Law, and (b) appropriately and adequately disclosed to its unitholders and
all
persons who have rights in or to such Investments, all material investment
risks, including those relating to the custody and settlement infrastructure
or
the servicing of securities in such jurisdiction.
2.3 The
Fund
and the General Partner shall safeguard and shall be solely responsible for
the
safekeeping of any testkeys, identification codes, passwords, other security
devices or statements of account with which the Custodian provides them. In
furtherance and not limitation of the foregoing, in the event the Fund and/or
the General Partner utilizes any on-line service offered by the Custodian,
the
Fund, the General Partner and the Custodian shall be fully responsible for
the
security of each party’s respective connecting terminal, access thereto and the
proper and authorized use thereof and the initiation and application of
continuing effective safeguards in respect thereof. Additionally, if the Fund
and/or the General Partner uses any on-line or similar communications service
made available by the Custodian, the Fund and the General Partner shall be
solely responsible for ensuring the security of their access to the service
and
for the use of the service, and shall only attempt to access the service and
the
Custodian’s computer systems as directed by the Custodian. If the Custodian
provides any computer software to the Fund and/or the General Partner relating
to the services described in this Agreement, the Fund and/or the General Partner
will only use the software for the purposes for which the Custodian provided
the
software to the Fund and/or the General Partner, and will abide by the license
agreement accompanying the software and any other security policies which the
Custodian provides to the Fund and the General Partner.
3. Representations
and Warranties of BBH&Co.
BBH&Co. hereby represents and warrants that this Agreement has been duly
authorized, executed and delivered by BBH&Co. and does not violate any
Applicable Law or conflict with or constitute a default under BBH&Co.’s
limited partnership agreement or any agreement, instrument, judgment, order
or
decree to which BBH&Co. is a party or by which it is bound.
4. Instructions.
Unless
otherwise explicitly indicated herein, the Custodian shall perform its duties
pursuant to Instructions. As used herein, the term Instruction
shall
mean a directive initiated by the Fund and/or the General Partner, acting
directly or through its board of directors, officers or other Authorized
Persons, which directive shall conform to the requirements of this Section
4.
4.1 Authorized
Persons.
For
purposes hereof, an Authorized
Person
shall be
a person or entity authorized to give Instructions for or on behalf of the
Fund
and/or the General Partner by written notices to the Custodian or otherwise
in
accordance with procedures delivered to and acknowledged by the Custodian,
including without limitation the Fund’s Investment Advisor (as defined in
Section 13). The Custodian may treat any Authorized Person as having full
authority of the Fund and/or the General Partner to issue Instructions hereunder
unless the notice of authorization contains explicit limitations as to said
authority. The Custodian shall be entitled to rely upon the authority of
Authorized Persons until it receives appropriate written notice from the Fund
to
the contrary.
2
The
Fund
hereby designates the Marketing Agent (as such term is defined under an
Authorized Purchaser Agreement entered into by the General Partner on behalf
of
the Fund, as approved by the Custodian (the Authorized
Purchaser Agreement))
as an
Authorized Person from whom the Custodian is hereby authorized to receive
Instructions to accept deposits of cash and securities in connection with the
purchase of Units (as such term is defined under the Authorized Purchaser
Agreement) and the distribution of cash and securities in connection with the
redemption of Units.
4.2 Form
of Instruction.
Each
Instruction shall be transmitted by such secured or authenticated
electro-mechanical means as the Custodian shall make available to the Fund
from
time to time unless the Fund and/or the General Partner shall elect to transmit
such Instruction in accordance with Subsections 4.2.1 through 4.2.3 of this
Section.
4.2.1
Fund
Designated Secured-Transmission Method. Instructions
may be transmitted through a secured or tested electro-mechanical means
identified by the Fund, the General Partner or by an Authorized Person entitled
to give Instructions and acknowledged and accepted by the Custodian; it being
understood that such acknowledgment shall authorize the Custodian to receive
and
process such means of delivery but shall not represent a judgment by the
Custodian as to the reasonableness or security of the method determined by
the
Authorized Person.
4.2.2
Written
Instructions.
Instructions may be transmitted in a writing that bears the manual signature
of
Authorized Persons.
4.2.3
Other
Forms of Instruction.
Instructions may also be transmitted by another means determined by the Fund,
the General Partner or Authorized Persons and acknowledged and accepted by
the
Custodian (subject to the same limits as to acknowledgements as is contained
in
Subsection 4.2.1, above) including Instructions given orally or by SWIFT, telex
or telefax (whether tested or untested).
When
an
Instruction is given by means established under Subsections 4.2.1 through 4.2.3,
it shall be the responsibility of the Custodian to use reasonable care to adhere
to any security or other procedures established in writing between the Custodian
and the Authorized Person with respect to such means of Instruction, but such
Authorized Person shall be solely responsible for determining that the
particular means chosen is reasonable under the circumstances. Oral Instructions
shall be binding upon the Custodian only if and when the Custodian takes action
with respect thereto. With respect to telefax instructions, the parties agree
and acknowledge that receipt of legible instructions cannot be assured, that
the
Custodian cannot verify that authorized signatures on telefax instructions
are
original or properly affixed, and that the Custodian shall not be liable for
losses or expenses incurred through actions taken in reliance on inaccurately
stated, illegible or unauthorized telefax instructions. The provisions of
Section 4A of the Uniform Commercial Code as
currently in effect in the State of New York
shall
apply to the Fund’s transfers performed in accordance with Instructions. The
Funds Transfer Services Schedule (as defined in Section 13) and the Electronic
and Online Services Schedule to this Agreement shall each comprise a designation
of form of a means of delivering Instructions for purposes of this Section
4.2.
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4.3 Completeness
and Contents of Instructions.
The
Authorized Person shall be responsible for assuring the adequacy and accuracy
of
Instructions. Particularly, upon any acquisition or disposition or other dealing
in the Fund’s Investments and upon any delivery and transfer of any Investment
or moneys, the person initiating such Instruction shall give the Custodian
an
Instruction with appropriate detail, including, without limitation:
4.3.1
The
transaction date and the date and location of settlement;
4.3.2
The
specification of the type of transaction;
4.3.3
A
description of the Investments or moneys in question, including, as appropriate,
quantity, price per unit, amount of money to be received or delivered and
currency information. Where an Instruction is communicated by electronic means,
or otherwise where an Instruction contains an identifying number such as a
CUSIP, SEDOL or ISIN number, the Custodian shall be entitled to rely on such
number as controlling notwithstanding any inconsistency contained in such
Instruction, particularly with respect to the Investment description;
and
4.3.4
The
name of the broker or similar entity concerned with execution of the
transaction.
If
the
Custodian shall determine that an Instruction is either unclear or incomplete,
the Custodian may give prompt notice of such determination to the Fund and/or
the General Partner, and the Fund and/or the General Partner shall thereupon
amend or otherwise reform such Instruction. In such event, the Custodian shall
have no obligation to take any action in response to the Instruction initially
delivered until the redelivery of an amended or reformed
Instruction.
4.4 Timeliness
of Instructions.
In
giving an Instruction, the Fund and/or the General Partner shall take into
consideration delays which may occur due to the involvement of a Subcustodian
or
agent, differences in time zones, and other factors particular to a given
market, exchange or issuer. When the Custodian has established specific timing
requirements or deadlines with respect to particular classes of Instruction,
or
when an Instruction is received by the Custodian at such a time that it could
not reasonably be expected to have acted on such Instruction due to time zone
differences or other factors beyond its reasonable control, the execution of
any
Instruction received by the Custodian after such deadline or at such time
(including any modification or revocation of a previous Instruction) shall
be at
the risk of the Fund.
5. Safekeeping
of Fund Assets. The
Custodian shall hold Investments delivered to it or Subcustodians for the Fund
in accordance with the provisions of this Section. The Custodian shall not
be
responsible for (a) the safekeeping of Investments not delivered or that are
not
caused to be issued to it or its Subcustodians; (b) pre-existing faults or
defects in Investments that are delivered to the Custodian or its Subcustodians;
or (c) the safekeeping of Gasoline Interests and Gasoline Forward Contracts
(each as defined in the Fund’s prospectus). The Custodian is hereby authorized
to hold with itself or a Subcustodian, and to record in one or more accounts,
all Investments delivered to and accepted by the Custodian, any Subcustodian
or
their respective agents pursuant to an Instruction or in consequence of any
corporate action. The Custodian shall hold Investments for the account of the
Fund and shall segregate Investments from assets belonging to the Custodian
and
shall cause its Subcustodians to segregate Investments from assets belonging
to
the Subcustodian in an account held for the Fund or in an account maintained
by
the Subcustodian generally for non-proprietary assets of the Custodian.
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5.1 Use
of Securities Depositories. The
Custodian may deposit and maintain Investments in any Securities Depository
(as
defined in Section 13), either directly or through one or more Subcustodians
appointed by the Custodian. Investments held in a Securities Depository shall
be
held (a) subject to the agreement, rules, statement of terms and conditions
or
other document or conditions effective between the Securities Depository and
the
Custodian or the Subcustodian, as the case may be, and (b) in an account for
the
Fund or in bulk segregation in an account maintained for the non-proprietary
assets of the entity holding such Investments in the Securities Depository.
If
market practice or the rules and regulations of the Securities Depository
prevent the Custodian, the Subcustodian or any agent of either from holding
its
client assets in such a separate account, the Custodian, the Subcustodian or
other agent shall as appropriate segregate such Investments for benefit of
the
Fund or for the benefit of clients of the Custodian generally on its own
books.
5.2 Certificated
Assets.
Investments which are certificated may be held in registered or bearer form:
(a)
in the Custodian’s vault; (b) in the vault of a Subcustodian or agent of the
Custodian or a Subcustodian; or (c) in an account maintained by the Custodian,
Subcustodian or agent at a Securities Depository; all in accordance with
customary market practice in the jurisdiction in which any Investments are
held.
5.3 Registered
Assets.
Investments
which are registered may be registered in the name of the Custodian, a
Subcustodian, or in the name of the Fund or a nominee for any of the foregoing,
and may be held in any manner set forth in Section 5.2 above with or without
any
identification of fiduciary capacity in such registration.
5.4 Book
Entry Assets.
Investments which are represented by book-entry may be so held in an account
maintained by the Book-entry Agent (as defined in Section 13) on behalf of
the
Custodian, a Subcustodian or another agent of the Custodian, or a Securities
Depository.
5.5 Replacement
of Lost Investments.
In the
event of a loss of Investments for which the Custodian is responsible under
the
terms of this Agreement, the Custodian shall replace such Investment, or in
the
event that such replacement cannot be effected, the Custodian shall pay to
the
Fund the fair market value of such Investment based on the last available price
as of the close of business in the relevant market on the date that a claim
was
first made to the Custodian with respect to such loss, or, if less, such other
amount as shall be agreed by the parties as the date for settlement.
6. Administrative
Duties of the Custodian. The
Custodian shall perform the following administrative duties with respect to
Investments of the Fund.
5
6.1 Purchase
of Investments. Pursuant
to Instructions, Investments purchased for the account of the Fund shall be
paid
for (a) against delivery thereof to the Custodian or a Subcustodian, as the
case
may be, either directly or through a Clearing Corporation (as defined in Section
13) or a Securities Depository (in accordance with the rules of such Securities
Depository or such Clearing Corporation), or (b) otherwise in accordance with
an
Instruction, Applicable Law, generally accepted trade practices, or the terms
of
the instrument representing such Investment.
6.2 Sale
of Investments.
Pursuant
to Instructions, Investments sold for the account of the Fund shall be delivered
(a) against payment therefor in cash, by check or by bank wire transfer, (b)
by
credit to the account of the Custodian or the applicable Subcustodian, as the
case may be, with a Clearing Corporation or a Securities Depository (in
accordance with the rules of such Securities Depository or such Clearing
Corporation), or (c) otherwise in accordance with an Instruction, Applicable
Law, generally accepted trade practices, or the terms of the instrument
representing such Investment.
6.3 Delivery
and Receipt in Connection with Borrowings of the Fund or other Collateral and
Margin Requirements.
Pursuant
to Instructions and subject to the last sentence in Section 6.4 below, the
Custodian may deliver or receive Investments or cash of the Fund in connection
with borrowings or loans by the Fund and other collateral and margin
requirements.
6.4 Futures
and Over-the-Counter (OTC) Contracts.
If,
pursuant to an Instruction, the Custodian shall become a party to an agreement
with the Fund and a futures commission merchant regarding margin or a
counterparty to an OTC contract (Tri-Party
Agreement),
the
Custodian shall (a) receive and retain, to the extent the same is provided
to
the Custodian, confirmations or other documents evidencing the purchase or
sale
by the Fund of exchange-traded futures contracts or the entering into of an
option, forward or other derivatives transaction by the Fund; (b) when required
by such Tri-Party Agreement, deposit and maintain in an account opened pursuant
to such Agreement (Margin
Account)
segregated either physically or by book-entry in a Securities Depository for
the
benefit of any futures commission merchant, such Investments as the Fund shall
have designated as initial, maintenance or variation “margin” deposits or other
collateral intended to secure the Fund’s performance of its obligations under
the terms of any exchange-traded futures contracts and commodity options; and
(c) thereafter pay, release or transfer Investments into or out of the Margin
Account in accordance with the provisions of such Tri-Party Agreement.
Alternatively, the Custodian may deliver Investments, in accordance with an
Instruction, to a futures commission merchant for margin purposes or to the
counterparty or its custodian. The Custodian shall in no event be responsible
for the acts and omissions of any futures commission merchant or the
counterparty or its custodian, to whom Investments are delivered pursuant to
this Section; for the sufficiency of Investments held in any Margin Account;
for
funding margin deposits or otherwise providing Advances (as defined in Section
13) for the purpose of margin or other collateral in any Margin Account; or,
for
the performance of any terms of any exchange-traded futures contracts, commodity
options, forward contracts and other derivative transactions. In addition,
the
Custodian shall not be required to transfer
margin or any other assets of the Fund to a Margin Account if at the time of
such request, such transfer would reduce the aggregate market value of all
unencumbered securities, cash, cash equivalents and other unencumbered liquid
assets of the Fund in the custody of the Custodian to less than ten (10) percent
of the then current net asset value of the Fund.
6
6.5 Contractual
Obligations and Similar Investments.
From
time to time, the Fund’s Investments may include Investments that are not
ownership interests as may be represented by certificate (whether registered
or
bearer), by entry in a Securities Depository or by book entry agent, registrar
or similar agent for recording ownership interests in the relevant Investment.
If the Fund shall at any time acquire such Investments, including without
limitation deposit obligations, loan participations, repurchase agreements
and
derivative arrangements, the Custodian shall (a) receive and retain, to the
extent the same are provided to the Custodian, confirmations or other documents
evidencing the arrangement; and (b) perform on the Fund’s account in accordance
with the terms of the applicable arrangement, but only to the extent directed
to
do so by an Instruction. The Custodian shall have no responsibility for
agreements running to the Fund as to which it is not a party other than to
retain, to the extent the same are provided to the Custodian, documents or
copies of documents evidencing the arrangement and, in accordance with an
Instruction, to include such arrangements in reports made to the
Fund.
6.6 Exchange
of Securities.
Unless
otherwise directed by an Instruction, the Custodian shall: (a) exchange
securities held for the account of the Fund for other securities in connection
with any reorganization, recapitalization, conversion, split-up, change of
par
value of shares or similar event, and (b) deposit any such securities in
accordance with the terms of any reorganization or protective plan.
6.7 Surrender
of Securities.
Unless
otherwise directed by an Instruction, the Custodian may surrender securities:
(a) in temporary form for definitive securities; (b) for transfer into the
name
of an entity allowable under Section 5.3; and (c) for a different number of
certificates or instruments representing the same number of shares or the same
principal amount of indebtedness.
6.8 Rights,
Warrants, Etc.
Pursuant
to an Instruction, the Custodian shall (a) deliver warrants, puts, calls, rights
or similar securities to the issuer or trustee thereof, or to any agent of
such
issuer or trustee, for purposes of exercising such rights or selling such
securities, and (b) deposit securities in response to any invitation for the
tender thereof.
6.9 Mandatory
Corporate Actions.
Unless
otherwise directed by an Instruction, the Custodian shall: (a) comply with
the
terms of all mandatory or compulsory exchanges, calls, tenders, redemptions
or
similar rights of securities ownership affecting securities held on the Fund’s
account and promptly notify the Fund of such action, and (b) collect all stock
dividends, rights and other items of like nature with respect to such
securities.
6.10 Income
Collection.
Unless
otherwise directed by an Instruction, the Custodian shall collect any amount
due
and payable to the Fund with respect to Investments and promptly credit the
amount collected to a Principal Account or an Agency Account (each defined
in
Section 13); provided, however, that the Custodian shall not be responsible
for:
(a) the collection of amounts due and payable with respect to Investments that
are in default, or (b) the collection of cash or share entitlements with respect
to Investments that are not registered in the name of the Custodian or its
Subcustodians. The Custodian is hereby authorized to endorse and deliver any
instrument required to be so endorsed and delivered to effect collection of
any
amount due and payable to the Fund with respect to Investments.
7
6.11 Ownership
Certificates and Disclosure of the Fund’s Interest.
The
Custodian is hereby authorized to execute on behalf of the Fund ownership
certificates, affidavits or other disclosure required under Applicable Law
or
established market practice in connection with the receipt of income, capital
gains or other payments by the Fund with respect to Investments, or in
connection with the sale, purchase or ownership of Investments.
With
respect to securities issued in the United States of America, the
Custodian o
may x may not 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 the Fund. IF NO BOX IS CHECKED, THE
CUSTODIAN SHALL
RELEASE
SUCH
INFORMATION UNTIL IT RECEIVES CONTRARY INSTRUCTIONS FROM THE FUND. With respect
to securities issued outside of the United States of America, information shall
be released in accordance with law or custom of the particular country in which
such security is located.
6.12 Proxy
Materials. The
Custodian shall deliver, or cause to be delivered, to the Fund proxy forms,
notices of meeting, and any other notices or announcements materially affecting
or relating to Investments received by the Custodian or any
nominee.
6.13 Taxes.
The
Custodian shall, where applicable, assist the Fund in the reclamation of taxes
withheld on dividends and interest payments received by the Fund. In the
performance of its duties with respect to tax withholding and reclamation,
the
Custodian shall be entitled to rely on the advice of counsel and upon
information and advice regarding the Fund’s tax status that is received from or
on behalf of the Fund without duty of separate inquiry.
6.14 Other
Dealings.
The
Custodian shall otherwise act as directed by Instructions, including without
limitation effecting the free payments of moneys or the free delivery of
securities, provided that such Instruction shall indicate the purpose of such
payment or delivery and that the Custodian shall record the party to whom such
payment or delivery is made.
The
Custodian shall attend to all nondiscretionary details in connection with the
sale or purchase or other administration of Investments, except as otherwise
directed by an Instruction, and may make payments to itself or others for minor
expenses of administering Investments under this Agreement; provided that the
Fund shall have the right to request an accounting with respect to such
expenses.
8
In
fulfilling the duties set forth in Sections 6.6 through 6.10 above, the
Custodian shall provide to the Fund all material information pertaining to
a
corporate action which the Custodian actually receives; provided that the
Custodian shall not be responsible for the completeness or accuracy of such
information. Information relative to any pending corporate action made available
to the Fund via any of the services described in the Electronic and Online
Services Schedule shall constitute the delivery of such information by the
Custodian hereunder. Any advance credit of cash or shares expected to be
received as a result of any corporate action shall be subject to actual
collection and may, when the Custodian deems collection unlikely, be reversed
by
the Custodian.
The
Custodian may at any time or times in its discretion appoint (and may at any
time remove) agents (other than Subcustodians) to carry out some or all of
the
administrative provisions of this Agreement (Agents),
provided, however, that the appointment of such agent shall not relieve the
Custodian of its administrative obligations under this Agreement.
7. Cash
Accounts, Deposits and Money Movements. Subject
to the terms and conditions set forth in this Section 7, the Fund and the
General Partner each hereby authorizes the Custodian to open and maintain,
with
itself or with Subcustodians, cash accounts in United States Dollars, in such
other currencies as are the currencies of the countries in which the Fund
maintains Investments or in such other currencies as the Fund shall from time
to
time request by Instruction.
7.1 Types
of Cash Accounts.
Cash
accounts opened on the books of the Custodian (Principal
Accounts)
shall
be opened in the name of the Fund. Such accounts collectively shall be a deposit
obligation of the Custodian and shall be subject to the terms of this Section
7
and the general liability provisions contained in Section 9. Cash accounts
opened on the books of a Subcustodian may be opened in the name of the Fund
or
the Custodian or in the name of the Custodian for its customers generally
(Agency
Accounts).
Such
deposits shall be obligations of the Subcustodian and shall be treated as an
Investment of the Fund. Accordingly, the Custodian shall be responsible for
exercising reasonable care in the administration of such accounts but shall
not
be liable for their repayment in the event such Subcustodian, by reason of
its
bankruptcy, insolvency or otherwise, fails to make repayment.
7.2 Payments
and Credits with Respect to the Cash Accounts.
The
Custodian shall make payments from or deposits to any of said accounts in the
course of carrying out its administrative duties, including but not limited
to
income collection with respect to the Fund’s Investments, and otherwise in
accordance with Instructions. The Custodian and its Subcustodians shall be
required to credit amounts to the cash accounts only when moneys are actually
received in cleared funds in accordance with banking practice in the country
and
currency of deposit. Any credit made to any Principal or Agency Account before
actual receipt of cleared funds shall be provisional and may be reversed by
the
Custodian in the event such payment is not actually collected. Unless otherwise
specifically agreed in writing by the Custodian or any Subcustodian, all
deposits shall be payable only at the branch of the Custodian or Subcustodian
where the deposit is made or carried.
9
7.3 Currency
and Related Risks.
The Fund
and the General Partner each bears risks of holding or transacting in any
currency, including any xxxx to market exposure associated with a foreign
exchange transaction undertaken with the Custodian. The Custodian shall not
be
liable for any loss or damage arising from the applicability of any law or
regulation now or hereafter in effect, or from the occurrence of any event,
which may delay or affect the transferability, convertibility or availability
of
any currency in the country (a) in which such Principal or Agency Accounts
are
maintained or (b) in which such currency is issued, and in no event shall the
Custodian be obligated to make payment of a deposit denominated in a currency
during the period during which its transferability, convertibility or
availability has been affected by any such law, regulation or event. Without
limiting the generality of the foregoing, neither the Custodian nor any
Subcustodian shall be required to repay any deposit made at a foreign branch
of
either the Custodian or Subcustodian if such branch cannot repay the deposit
due
to a cause for which the Custodian would not be responsible in accordance with
the terms of Section 9 of this Agreement unless the Custodian or such
Subcustodian expressly agrees in writing to repay the deposit under such
circumstances. All currency transactions in any account opened pursuant to
this
Agreement are subject to exchange control regulations of the United States
and
of the country where such currency is the lawful currency or where the account
is maintained. Any taxes, costs, charges or fees imposed on the convertibility
of a currency held by the Fund shall be for the account of the
Fund.
7.4 Foreign
Exchange Transactions.
The
Custodian shall, subject to the terms of this Section, settle foreign exchange
transactions (including contracts, futures, options and options on futures)
on
behalf and for the account of the Fund with such currency brokers or banking
institutions, including Subcustodians, as the Fund may direct pursuant to
Instructions. The Custodian may act as principal in any foreign exchange
transaction with the Fund in accordance with Section 7.4.2 of this Agreement.
The obligations of the Custodian in respect of all foreign exchange transactions
(whether or not the Custodian shall act as principal in such transaction) shall
be contingent on the free, unencumbered transferability of the currency
transacted on the actual settlement date of the transaction.
7.4.1
Third
Party Foreign Exchange Transactions.
The
Custodian shall process foreign exchange transactions (including without
limitation contracts, futures, options, and options on futures), where any
third
party acts as principal counterparty to the Fund on the same basis it performs
duties as agent for the Fund with respect to any other of the Fund’s
Investments. Accordingly, the Custodian shall only be responsible for delivering
or receiving currency on behalf of the Fund in respect of such contracts
pursuant to Instructions. The Custodian shall not be responsible for the failure
of any counterparty (including any Subcustodian) in such agency transaction
to
perform its obligations thereunder. The Custodian (a) shall transmit cash and
Instructions to and from the currency broker or banking institution with which
a
foreign exchange contract or option has been executed pursuant hereto, (b)
may
make free outgoing payments of cash in the form of United States Dollars or
foreign currency without receiving confirmation of a foreign exchange contract
or option or confirmation that the countervalue currency completing the foreign
exchange contract has been delivered or received or that the option has been
delivered or received, and (c) shall hold all confirmations, certificates and
other documents and agreements received by the Custodian and evidencing or
relating to such foreign exchange transactions in safekeeping. The Fund accepts
full responsibility for its use of third-party foreign exchange dealers and
for
execution of said foreign exchange contracts and options and understands that
the Fund shall be responsible for any and all costs and interest charges which
may be incurred by the Fund or the Custodian as a result of the failure or
delay
of third parties to deliver foreign exchange.
10
7.4.2
Foreign
Exchange with the Custodian as Principal.
The
Custodian may as principal undertake foreign exchange transactions with the
Fund
as the Custodian and the Fund may agree from time to time. In such event, the
foreign exchange transaction will be performed in accordance with the particular
agreement of the parties, or in the event a principal foreign exchange
transaction is initiated by an Instruction in the absence of specific agreement,
such transaction will be performed in accordance with the usual commercial
terms
of the Custodian. In
the
event that the Fund defaults on the settlement of any such foreign exchange
transaction with the Custodian, the Fund shall be liable for contracted currency
of the transaction together with any xxxx to market exposure associated with
the
replacement purchase of the contracted currency undertaken with the Custodian.
7.5 Delays.
If no
event of Force Majeure shall have occurred and be continuing and in the event
that a delay shall have been caused by the negligence or willful misconduct
of
the Custodian in carrying out an Instruction to credit or transfer cash, the
Custodian shall be liable to the Fund: (a) with respect to Principal Accounts,
for interest to be calculated at the rate customarily paid on such deposit
and
currency by the Custodian on overnight deposits at the time the delay occurs
for
the period from the day when the transfer should have been effected until the
day it is in fact effected; and, (b) with respect to Agency Accounts, for
interest to be calculated at the rate customarily paid on such deposit and
currency by the Subcustodian on overnight deposits at the time the delay occurs
for the period from the day when the transfer should have been effected until
the day it is in fact effected. The Custodian shall not be liable for delays
in
carrying out such Instructions to transfer cash which are not due to the
Custodian’s own negligence or willful misconduct.
7.6 Advances.
If, for
any reason in connection with this Agreement the Custodian or any Subcustodian
makes an Advance to facilitate settlement or otherwise for the benefit of the
Fund (whether or not any Principal or Agency Account shall be overdrawn either
during, or at the end of, any Business Day (defined as any day other than a
day
on which the American Stock Exchange, the New York Mercantile Exchange or the
New York Stock Exchange is closed for regular trading)), the Fund and the
General Partner each hereby does:
7.6.1
acknowledge that the Fund shall have no right, title or interest in or to any
Investments purchased with such Advance or proceeds of such Investments, and
that any credit to an account of Fund shall be provisional, until: (a) the
debit
of the Principal or Agency Account by Custodian for an amount equal to Advance
Costs; and/or (b) if such debit produces an overdraft in such account,
reimbursement to the Custodian or Subcustodian for the amount of such
overdraft;
7.6.2
acknowledge that the Custodian has an automatically perfected statutory security
interest in Investments purchased with any such Advance (as defined in Section
13) pursuant to Section 9-206 of the Uniform Commercial Code as in effect
in the State of New York from time to time;
11
7.6.3
in
addition, in order to secure the obligations of the Fund to pay or perform
any
and all obligations of the Fund pursuant to this Agreement, including without
limitation to repay any Advance made pursuant to this Agreement, grant to the
Custodian a security interest in all Investments and proceeds thereof (as
defined in the Uniform Commercial Code as currently in effect in the State
of
New York); and agree to take, and agree that the Custodian may take, in respect
of the security interest referenced above, any further actions that the
Custodian may reasonably require.
7.7 Custodian’s
Rights Neither
the Custodian nor any Subcustodian shall be obligated to make any Advance or
to
allow an Advance to occur to the Fund, and in the event that the Custodian
or
any Subcustodian does make or allow an Advance, any such Advance and any
transaction giving rise to such Advance shall be for the account and risk of
the
Fund and shall not be deemed to be a transaction undertaken by the Custodian
for
its own account and risk. If such Advance shall have been made or allowed by
a
Subcustodian or any other person, the Custodian may assign all or part of its
security interest referenced above and any other rights granted to the Custodian
hereunder to such Subcustodian or other person. If the Fund shall fail to repay
the Advance Costs when due, the Custodian or its assignee, as the case may
be,
shall be entitled to a portion of the available cash balance in any Agency
or
Principal Account equal to such Advance Costs, and the Fund authorizes the
Custodian, on behalf of the Fund, to pay an amount equal to such Advance Costs
irrevocably to such Subcustodian or other person, and to dispose of any property
in such Account to the extent necessary to make such payment. Any Investments
and funds credited to accounts subject to this Agreement created pursuant hereto
shall be treated as financial assets credited to securities accounts under
Articles 8 and 9 of the Uniform Commercial Code as in effect in the State of
New
York from time to time. Accordingly, the Custodian and any Subcustodian shall
have the rights and benefits of a secured creditor that is a securities
intermediary under such Articles 8 and 9.
7.8 Integrated
Account.
For
purposes hereof, deposits maintained in all Principal Accounts (whether or
not
denominated in United States Dollars) shall collectively constitute a single
and
indivisible current account with respect to the Fund’s obligations to the
Custodian or its assignee, and balances in the Principal Accounts shall be
available for satisfaction of the Fund’s obligations under this Section 7. The
Custodian shall further have a right of offset against the balances in any
Agency Account maintained hereunder to the extent that the aggregate of all
Principal Accounts is overdrawn.
8. Subcustodians
and Securities Depositories.
Subject
to the provisions hereinafter set forth in this Section 8, the Fund and the
General Partner each hereby authorizes the Custodian to utilize Securities
Depositories to act on behalf of the Fund and to appoint from time to time
and
to utilize Subcustodians. With respect to securities and funds held by a
Subcustodian, either directly or indirectly (including by a Securities
Depository or Clearing Corporation), notwithstanding any provisions of this
Agreement to the contrary, payment for securities purchased and delivery of
securities sold may be made prior to receipt of securities or payment,
respectively, and securities or payment may be received in a form, in accordance
with (a) governmental regulations, (b) rules of Securities Depositories and
the
Clearing Corporations, (c) generally accepted trade practice in the applicable
local market, (d) the terms and characteristics of the particular Investment,
or
(e) the terms of the Instructions.
12
8.1 Domestic
Subcustodians and Securities Depositories.
The
Custodian may deposit and/or maintain, either directly or through one or more
agents appointed by the Custodian, Investments of the Fund in any Securities
Depository in the United States of America, including The Depository Trust
Company, provided such Securities Depository meets applicable requirements
of
the Federal Reserve Bank or of the Securities and Exchange Commission. The
Custodian may, at any time and from time to time, appoint any bank meeting
the
requirements of a custodian and the rules and regulations thereunder, to act
on
behalf of the Fund as a Subcustodian for purposes of holding Investments of
the
Fund in the United States.
8.2 Responsibility
for Subcustodians.
The
Custodian shall be liable to the Fund for any loss or damage to the Fund caused
by or resulting from the acts or omissions of any domestic Subcustodian to
the
extent that such acts or omissions would be deemed to be negligence, gross
negligence or willful misconduct in accordance with the terms of the relevant
subcustodian agreement under the laws, circumstances and practices prevailing
in
the place where the act or omission occurred.
9. Responsibility
of the Custodian.
In
performing its duties and obligations hereunder, the Custodian shall use
reasonable care under the facts and circumstances prevailing in the market
where
performance is effected. Subject to the specific provisions of this Section,
the
Custodian shall be liable for any direct damage incurred by the Fund in
consequence of the Custodian’s negligence, bad faith or willful misconduct. In
no event shall the Custodian be liable hereunder for any special, indirect,
punitive or consequential damages arising out of, pursuant to or in connection
with this Agreement even if the Custodian has been advised of the possibility
of
such damages. It is agreed that the Custodian shall have no duty to assess
the
risks inherent in the Fund’s Investments or to provide investment advice with
respect to such Investments and that the Fund as principal shall bear any risks
attendant to particular Investments such as failure of a counterparty or issuer.
9.1 Limitations
of Performance.
The
Custodian shall not be responsible under this Agreement for any failure to
perform its duties, and shall not be liable hereunder for any loss or damage
in
association with such failure to perform, for or in consequence of the following
causes:
9.1.1
Force
Majeure. Force
Majeure
shall
mean any circumstance or event which is beyond the reasonable control of the
Custodian, a Subcustodian or any agent of the Custodian or a Subcustodian and
which adversely affects the performance by the Custodian of its obligations
hereunder, by the Subcustodian of its obligations under its Subcustody Agreement
or by any other agent of the Custodian or the Subcustodian, including any event
caused by, arising out of or involving (a) an act of God, (b) accident, fire,
water damage or explosion, (c) any computer, system or other equipment failure
or malfunction caused by any computer virus or the malfunction or failure of
any
communications medium, (d) any interruption of the power supply or other utility
service, (e) any strike or other work stoppage, whether partial or total, (f)
any delay or disruption resulting from or reflecting the occurrence of any
Sovereign Risk, (g) any disruption of, or suspension of trading in, the
securities, commodities or foreign exchange markets, whether or not resulting
from or reflecting the occurrence of any Sovereign Risk, (h) any encumbrance
on
the transferability of a currency or a currency position on the actual
settlement date of a foreign exchange transaction, whether or not resulting
from
or reflecting the occurrence of any Sovereign Risk, or (i) any other cause
similarly beyond the reasonable control of the Custodian.
13
9.1.2
Sovereign
Risk. Sovereign
Risk
shall
mean, in respect of any jurisdiction, including the United States of America,
where Investments are acquired or held hereunder or under a subcustody
agreement, (a) any act of war, terrorism, riot, insurrection or civil commotion,
(b) the imposition of any investment, repatriation or exchange control
restrictions by any Governmental Authority, (c) the confiscation, expropriation
or nationalization of any Investments by any Governmental Authority, whether
de
facto or de jure, (d) any devaluation or revaluation of the currency, (e) the
imposition of taxes, levies or other charges affecting Investments, (f) any
change in the Applicable Law, or (g) any other economic or political risk
incurred or experienced.
9.2 Limitations
on Liability.
The
Custodian shall not be liable for any loss, claim, damage or other liability
arising from the following causes:
9.2.1
Failure
of Third Parties.
The
failure of any third party including: (a) the General Partner; (b) any futures
commission merchant(s); (c) any issuer of Investments or book-entry or other
agent of and issuer; (d) any counterparty with respect to any Investment,
including any issuer of exchange-traded or other futures, option, derivative
or
commodities contract; (e) failure of an Investment Advisor or other agent of
the
Fund; or (f) failure of other third parties similarly beyond the control or
choice of the Custodian.
9.2.2
Information Sources.
The
Custodian may rely upon information received from issuers of Investments or
agents of such issuers, information received from Subcustodians and from other
commercially reasonable sources such as commercial data bases and the like,
but
shall not be responsible for specific inaccuracies in such information, provided
that the Custodian has relied upon such information in good faith, or for the
failure of any commercially reasonable information provider.
9.2.3 Reliance
on Instruction.
Action
by the Custodian or the Subcustodian in accordance with an Instruction, even
when such action conflicts with, or is contrary to any provision of, the Fund’s
or the General Partner’s limited partnership agreement, certificate of
incorporation or by-laws, Applicable Law, or actions by the directors or
unitholders of the Fund or the General Partner.
9.2.4
Restricted Securities.
The
limitations inherent in the rights, transferability or similar investment
characteristics of a given Investment of the Fund.
14
10. Indemnification.
10.1 The
Fund
and the General Partner each hereby indemnifies the Custodian and each
Subcustodian, and their respective agents, nominees and the partners, employees,
officers and directors, and agrees to hold each of them harmless from and
against all claims and liabilities, including counsel fees and taxes, reasonably
incurred or assessed against any of them in connection with the performance
of
this Agreement and any Instruction.
10.2 The
Custodian hereby indemnifies the Fund and the General Partner, and their
respective agents, nominees and the partners, employees, officers and directors,
and agrees to hold each of them harmless from and against all claims and
liabilities, including counsel fees and taxes, reasonably incurred or assessed
against any of them as a direct result of the Custodian’s negligence, willful
misconduct or bad faith in its performance of this Agreement and any
Instruction.
11. Reports
and Records.
The
Custodian shall:
11.1 create
and maintain records relating to the performance of its obligations under this
Agreement;
11.2 make
available to the Fund and/or the General Partner, its auditors, agents and
employees, upon reasonable request and during normal business hours of the
Custodian, all records maintained by the Custodian pursuant to Section 11.1
above, subject, however, to all reasonable security requirements of the
Custodian then applicable to the records of its custody customers generally;
and
11.3 make
available to the Fund all Electronic Reports (as defined in Section 13); it
being understood that the Custodian shall not be liable hereunder for the
inaccuracy or incompleteness thereof or for errors in any information included
therein.
The
Fund
and the General Partner shall examine all records, howsoever produced or
transmitted, promptly upon receipt thereof and notify the Custodian promptly
of
any discrepancy or error therein. Unless the Fund or the General Partner
delivers written notice of any such discrepancy or error within a reasonable
time after its receipt thereof, such records shall be deemed to be true and
accurate. It is understood that the Custodian now obtains and will in the future
obtain information on the value of assets from outside sources which may be
utilized in certain reports made available to the Fund and the General Partner.
The Custodian deems such sources to be reliable but it is acknowledged and
agreed that the Custodian does not verify nor represent nor warrant as to the
accuracy or completeness of such information and accordingly shall be without
liability in selecting and using such sources and furnishing such
information.
12. Miscellaneous.
12.1 Proxies,
etc.
The Fund
and/or the General Partner will promptly execute and deliver, upon request,
such
proxies, powers of attorney or other instruments as may be necessary or
desirable for the Custodian to provide, or to cause any Subcustodian to provide,
custody services.
15
12.2 Entire
Agreement.
This
Agreement (including any schedules and exhibits attached hereto and thereto)
contains all of the agreements among the parties hereto and thereto with respect
to the transactions contemplated hereby and thereby and supersedes all prior
agreements or understandings, whether written or oral, among the parties with
respect thereto.
12.3 Amendment
and Modification.
This
Agreement may be amended, modified or supplemented only by a written instrument
executed by all parties hereto.
12.4 Successors
and Assigns; Assignment.
All the
terms and provisions of this Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns.
This Agreement shall not be assigned by any party without the prior written
consent of the other parties and any assignment without such consent shall
be
null and void.
12.5 Waiver
of Compliance.
Except
as otherwise provided in this Agreement, any failure of any of the parties
to
comply with any obligation, covenant, agreement or condition herein may be
waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but any such waiver, or
the
failure to insist upon strict compliance with any obligation, covenant,
agreement or condition herein, shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure or breach.
12.6 Severability.
The
parties hereto desire that the provisions of this Agreement be enforced to
the
fullest extent permissible under the law and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, in the event that
any
provision of this Agreement would be held in any jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
such
provision in any other jurisdiction. Notwithstanding the foregoing, if such
provision could be more narrowly drawn so as not to be invalid, prohibited
or
unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so
narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
12.7 Notices.
All
notices, waivers, or other communications pursuant to this Agreement shall
be in
writing and shall be deemed to be sufficient if delivered personally, by
facsimile (and, if sent by facsimile, followed by delivery by
nationally-recognized express courier), sent by nationally-recognized express
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
|
(1)
|
if
to General Partner, to:
|
||
|
Victoria
Bay Asset Management, LLC
|
|||
|
c/o
Xxxxxxxx X. Xxxxxx
|
|||
|
X.X.
Xxx 0000
|
|||
|
|
Xxxxxx,
XX 00000
|
16
|
if
to the Custodian, to:
|
|||
|
Xxxxx
Brothers Xxxxxxxx & Co.
|
|||
|
00
Xxxxx Xxxxxx
|
|||
|
Xxxxxx,
Xxxxxxxxxxxxx 00000
|
|||
|
Attn:
Manager, Securities Department
|
|||
|
Telephone:
(000) 000-0000
|
|||
|
Facsimile:
(000) 000-0000,
|
or
such
other address as the Fund or the Custodian may have designated in writing to
the
other.
All
such
notices and other communications shall be deemed to have been delivered and
received (i) in the case of personal delivery or delivery by a
nationally-recognized express courier, on the date of such delivery if delivered
during business hours on a Business Day or, if not delivered during business
hours on a Business Day, the first Business Day thereafter, and (ii) in the
case
of mailing or delivery by facsimile, upon receipt by the intended
party.
12.8 Governing
Law; Jurisdiction.
12.8.1 All
questions concerning the construction, interpretation and validity of this
Agreement shall be governed by and construed and enforced in accordance with
the
domestic laws of the State of New York, without giving effect to any choice
or
conflict of law provision or rule (whether in the State of New York or any
other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of New York. In furtherance of the foregoing, the internal
law of the State of New York will control the interpretation and construction
of
this Agreement, even if under such jurisdiction’s choice of law or conflict of
law analysis, the substantive law of some other jurisdiction would ordinarily
or
necessarily apply.
12.8.2 Each
party irrevocably consents and agrees, for the benefit of the other parties,
that any legal action, suit or proceeding against it with respect to its
obligations, liabilities or any other matter arising out of or in connection
with this Agreement or any related agreement may be brought in the courts of
the
State of New York and hereby irrevocably consents and submits to the
non-exclusive jurisdiction of each such court in personam, generally and
unconditionally with respect to any action, suit or proceeding for itself and
in
respect of its properties, assets and revenues. Each party irrevocably waives
any immunity to jurisdiction to which it may otherwise be entitled or become
entitled (including sovereign immunity, immunity to pre-judgment attachment
and
execution) in any legal suit, action or proceeding against it arising out of
or
based on this Agreement or any related agreement or the transactions
contemplated hereby or thereby which is instituted in any court of the State
of
New York.
The
provisions of this Section 12.8 shall survive any termination of this Agreement,
in whole or in part.
12.9 No
Partnership.
The
Custodian acts as an independent contractor with respect to the services
provided under this Agreement. The terms and conditions of this Agreement do
not
create a partnership relationship between the Custodian and the General Partner
or between the Custodian and the Fund. Each of the General Partner and the
Fund
acknowledges that the Custodian may enter into similar agreements with others
without the consent of the General Partner or the Fund.
17
12.10 Interpretation.
The
article and section headings contained in this Agreement are solely for the
purpose of reference, are not part of the agreement of the parties and shall
not
in any way affect the meaning or interpretation of this Agreement.
12.11 No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rule of strict construction
will
be applied against any party.
12.12 Counterparts;
Facsimile Signatures.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument. Facsimile counterpart signatures to this Agreement shall be
acceptable and binding.
12.13 Other
Usages.
The
following usages shall apply in interpreting this Agreement: (i) references
to a
governmental or quasi-governmental agency, authority or instrumentality shall
also refer to a regulatory body that succeeds to the functions of such agency,
authority or instrumentality; and (ii) “including” means “including, but not
limited to.”
12.14 Confidentiality.
The
parties hereto agree that each shall treat confidentially the terms and
conditions of this Agreement and all information provided by each party to
the
other regarding its business and operations. All confidential information
provided by a party hereto shall be used by the other party hereto solely for
the purpose of rendering or obtaining services pursuant to this Agreement and,
except as may be required in carrying out this Agreement, shall not be disclosed
to any third party without the prior consent of such providing party. The
foregoing shall not apply to any information that is publicly available when
provided or thereafter becomes publicly available other than through a breach
of
this Agreement, or that is required to be disclosed by or to any bank examiner
of the Custodian or any Subcustodian, any Regulatory Authority, any auditor
of
the parties hereto, or by judicial or administrative process or otherwise by
Applicable Law.
12.15 Counsel.
In
fulfilling its duties hereunder, the Custodian shall be entitled to receive
and
act upon the advice of (i) counsel regularly retained by the Custodian in
respect of such matters, (ii) counsel for the Fund or (iii) such counsel as
the
Fund, the General Partner and the Custodian may agree upon, with respect to
all
matters. The Custodian shall not be considered to have engaged in any misconduct
or to have acted negligently when soliciting and following such
advice.
12.16 Conflict.
Nothing
contained in this Agreement shall prevent the Custodian and its associates
from
(i) dealing as a principal or an intermediary in the sale, purchase or loan
of
the Fund’s Investments to, or from the Custodian or its associates; (ii) acting
as a custodian, a subcustodian, a trustee, an agent, securities dealer, an
investment manager or in any other capacity for any other client; or (iii)
buying, holding, lending, and dealing in any way in any assets for the benefit
of its own account, for the account of any other client, or for the account
of
the Fund.
18
12.17 Privacy.
In the
course of carrying out its obligations under this Agreement, each party shall
maintain physical, procedural and/or electronic safeguards reasonably designed
to protect information regarding the Fund and its investors that such party
has
obtained or to which such party has gained access.
13. Definitions.
The
following defined terms will have the respective meanings set forth
below.
13.1 Advance(s)
shall
mean any extension of credit by or through the Custodian or by or through any
Subcustodian and shall include, without limitation, amounts due to the Custodian
as the principal counterparty to any foreign exchange transaction with the
Fund
as described in Section 7.4.2 hereof, or paid to third parties for account
of
the Fund or in discharge of any expense, tax or other item payable by the
Fund.
13.2 Advance
Costs shall
mean any Advance, interest on the Advance and any related expenses, including
without limitation any xxxx to market loss of the Custodian or Subcustodian
on
any Investment to which Section 7.6.1 applies.
13.3 Agency
Account(s)
shall
mean any deposit account opened on the books of a Subcustodian or other banking
institution in accordance with Section 7.1.
13.4 Agent(s)
shall
have the meaning set forth in the last sentence of Section 6.
13.5 Applicable
Law
shall
mean with respect to each jurisdiction, all (a) laws, statutes, treaties,
regulations, guidelines (or their equivalents); (b) orders, interpretations,
licenses and permits; and (c) judgments, decrees, injunctions, writs, orders
and
similar actions by a court of competent jurisdiction; compliance with which
is
required or customarily observed in such jurisdiction.
13.6 Authorized
Person(s)
shall
mean any person or entity authorized to give Instructions on behalf of the
Fund
and/or the General Partner in accordance with Section 4.1.
13.7 Book-entry
Agent
shall
mean an entity acting as agent for the issuer of Investments for purposes of
recording ownership or similar entitlement to Investments, including without
limitation a transfer agent or registrar.
13.8 Business
Day
shall
have the meaning set forth in Section 7.6 hereof.
13.9 Clearing
Corporation
shall
mean any entity or system established for purposes of providing securities
settlement and movement and associated functions for a given
market.
13.10 Electronic
and Online Services Schedule
shall
mean any separate agreement entered into among the Custodian, the General
Partner and the Fund or its authorized representative with respect to certain
matters concerning certain electronic and online services as described therein
and as may be made available from time to time by the Custodian to the
Fund.
19
13.11 Electronic
Reports
shall
mean any reports prepared by the Custodian and remitted to the Fund, the General
Partner or its authorized representative via the internet or electronic
mail.
13.12 Funds
Transfer Services Schedule
shall
mean any separate agreement entered into among the Custodian, the General
Partner and the Fund or its authorized representative with respect to certain
matters concerning the processing of payment orders from Principal Accounts
of
the Fund.
13.13 Instruction(s)
shall
have the meaning assigned in Section 4.
13.14 Investment
Advisor
shall
mean any person or entity who is an Authorized Person to give Instructions
with
respect to the investment and reinvestment of the Fund’s
Investments.
13.15 Investment(s)
shall
mean any investment asset of the Fund issued in the United States of America,
including without limitation: securities, bonds, notes, and debentures as well
as receivables, derivatives, contractual rights or entitlements and other
intangible assets, but excluding Gasoline Forward Contracts and Gasoline
Interests (each as defined in the Fund’s prospectus).
13.16 Margin
Account shall
have the meaning set forth in Section 6.4 hereof.
13.17 Principal
Account(s)
shall
mean deposit accounts of the Fund carried on the books of BBH&Co. as
principal in accordance with Section 7.
13.18 Safekeeping
Account shall
mean an account established on the books of the Custodian or any Subcustodian
for purposes of segregating the interests of the Fund (or clients of the
Custodian or Subcustodian) from the assets of the Custodian or any
Subcustodian.
13.19 Securities
Depository
shall
mean a central or book entry system or agency established under Applicable
Law
for purposes of recording the ownership and/or entitlement to investment
securities for a given market.
13.20 Subcustodian(s)
shall
mean each bank appointed by the Custodian pursuant to Section 8 hereof, but
shall not include Securities Depositories.
13.21 Tri-Party
Agreement
shall
have the meaning set forth in Section 6.4 hereof.
14. Compensation.
The Fund
and the General Partner agree to pay to the Custodian (a) a fee in an amount
set
forth in the fee letter among the Fund, the General Partner and the Custodian
in
effect on the date hereof or as amended from time to time, and (b) all
reasonable out-of-pocket expenses incurred by the Custodian, including the
fees
and expenses of all Subcustodians, and payable from time to time. Amounts
payable by the Fund under and pursuant to this Section 14 shall be payable
by
wire transfer to the Custodian at BBH&Co. in New York, New
York.
20
15. Termination.
This
Agreement may be terminated by either party in accordance with the provisions
of
this Section. The provisions of this Agreement and any other rights or
obligations incurred or accrued by any party hereto prior to termination of
this
Agreement shall survive any termination of this Agreement.
15.1 Term,
Notice and Effect.
This
Agreement shall have an initial term of two (2) years from the date hereof.
Thereafter, this Agreement shall automatically renew for successive one (1)
year
periods unless either party terminates this Agreement by written notice
effective no sooner than seventy-five (75) days following the date that notice
to such effect shall be delivered to the other party at its address set forth
in
Section 12.5 hereof. Notwithstanding the foregoing provisions, either party
may
terminate this Agreement at any time upon thirty (30) calendar days’ written
notice to the other party in the event that the either party is adjudged
bankrupt or insolvent, or there shall be commenced against such party a case
under any applicable bankruptcy, insolvency, or other similar law now or
hereafter in effect.
15.2 Successor
Custodian.
In the
event of the appointment of a successor custodian, it is agreed that the
Investments of the Fund held by the Custodian or any Subcustodian shall be
delivered to the successor Custodian in accordance with reasonable Instructions.
The Custodian agrees to cooperate with the Fund in the execution of documents
and performance of other actions necessary or desirable in order to facilitate
the succession of the new custodian. If no successor custodian shall be
appointed, the Custodian shall in like manner transfer the Fund’s Investments in
accordance with Instructions.
15.3 Delayed
Succession.
If no
Instruction has been given as of the effective date of termination, the
Custodian may at any time on or after such termination date and upon ten (10)
consecutive calendar days written notice to the Fund and the General Partner
either (a) deliver the Investments of the Fund held hereunder to the Fund at
the
address designated for receipt of notices hereunder; or (b) deliver any
Investments held hereunder to a bank or trust company having a capitalization
of
$50,000,000 equivalent and operating under the Applicable Law of the
jurisdiction where such Investments are located, such delivery to be at the
risk
of the Fund. In the event that Investments or moneys of the Fund remain in
the
custody of the Custodian or its Subcustodians after the date of termination
owing to the failure of the Fund to issue Instructions with respect to their
disposition or owing to the fact that such disposition could not be accomplished
in accordance with such Instructions despite diligent efforts of the Custodian,
the Custodian shall be entitled to compensation for its services with respect
to
such Investments and moneys during such period as the Custodian or its
Subcustodians retain possession of such items and the provisions of this
Agreement shall remain in full force and effect until disposition in accordance
with this Section is accomplished.
21
The
undersigned acknowledges that (I/we) have received a copy of this
document.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly
executed as of the date first above written.
XXXXX
BROTHERS XXXXXXXX & CO.
By:
__________________________________
Name:
Title:
Date:
By:
Victoria Bay Asset Management, LLC, as General Partner
By:
________________________________
Name:
Title:
Date:
VICTORIA
BAY ASSET MANAGEMENT, LLC
By:__________________________________
Name:
Title:
Date:
22
FUNDS
TRANSFER SERVICES SCHEDULE
1. Execution
of Payment Orders.
Xxxxx
Brothers Xxxxxxxx & Co. (the Custodian) is hereby instructed by United
States Gasoline Fund, LP (the Fund) and Victoria Bay Asset Management, LLC
(the
General Partner) to execute each payment order, whether denominated in United
States Dollars or other applicable currencies, received by the Custodian in
the
Fund’s name as sender and authorized and confirmed by an Authorized Person as
defined in a Custodian Agreement dated as of _____________________ by and among
the Custodian, the General Partner and the Fund, as amended or restated from
time thereafter (the Agreement), provided that the Fund has sufficient available
funds on deposit in a Principal Account as defined in the Agreement and provided
that the order (i) is received by the Custodian in the manner specified in
this
Funds Transfer Services Schedule or any amendment hereafter; (ii) complies
with
any written instructions and restrictions of the Fund as set forth in this
Funds
Transfer Services Schedule or any amendment hereafter; (iii) is authorized
by
the Fund or is verified by the Custodian in compliance with a security procedure
set forth in Paragraph 2 below for verifying the authenticity of a funds
transfer communication sent to the Custodian in the name of the Fund or for
the
detection of errors set forth in any such communication; and (iv) contains
sufficient data to enable the Custodian to process such transfer.
2. Security
Procedure.
The
Fund and the General Partner hereby elect to use the procedure selected below
as
its security procedure (the Security Procedure). The Security Procedure will
be
used by the Custodian to verify the authenticity of a payment order or a
communication amending or canceling a payment order. The Custodian will act
on
instructions received provided the instruction is authenticated by the Security
Procedure. The Fund and the General Partner agree and acknowledge in connection
with (i) the size, type and frequency of payment orders normally issued or
expected to be issued by the Fund to the Custodian, (ii) all of the security
procedures offered to the Fund and the General Partner by the Custodian, and
(iii) the usual security procedures used by customers and receiving banks
similarly situated, that authentication through the Security Procedure shall
be
deemed commercially reasonable for the authentication of all payment orders
submitted to the Custodian. The Fund and the General Partner hereby elect
(please
choose one)
the
following Security Procedure as described below:
| o |
BIDS
and BIDS Worldview Payment Products.
BIDS and BIDS Worldview Payment Products, are on-line payment order
authorization facilities with built-in authentication procedures.
The
Custodian, the General Partner and the Fund shall each be responsible
for
maintaining the confidentiality of passwords or other codes to be
used by
them in connection with BIDS. The Custodian will act on instructions
received through BIDS without duty of further confirmation unless
the Fund
and/or the General Partner notifies the Custodian that its password
is not
secure.
|
| x |
SWIFT.
The Custodian, the General Partner and the Fund shall comply with
SWIFT’s
authentication procedures. The Custodian will act on instructions
received
via SWIFT provided the instruction is authenticated by the SWIFT
system.
|
23
|
o
|
Tested
Telex.
The Custodian will accept payment orders sent by tested telex, provided
the test key matches the algorithmic key the Custodian, the General
Partner and Fund have agreed to use.
|
|
o
|
Computer
Transmission.
The Custodian is able to accept transmissions sent from the Fund’s and/or
the General Partner’s computer facilities to the Custodian’s computer
facilities provided such transmissions are encrypted and digitally
certified or are otherwise authenticated in a reasonable manner based
on
available technology. Such procedures shall be established in an
operating
protocol among the Custodian, the General Partner and the
Fund.
|
|
o
|
Telefax
Instructions.
A
payment order transmitted to the Custodian by telefax transmission
shall
be transmitted by the Fund and/or the General Partner to a telephone
number specified from time to time by the Custodian for such purposes.
If
it detects no discrepancies, the Custodian will then
either:
|
| 1. |
if
the telefax requests a repetitive payment order, the Custodian may
call
the Fund and/or the General Partner at its last known telephone number,
request to speak to the Fund, the General Partner or Authorized Person,
and confirm the authorization and details of the payment order (a
Callback); or
|
| 2. |
if
the telefax requests a non-repetitive order, the Custodian will perform
a
Callback.
|
All
faxes
must be accompanied by a fax cover sheet which indicates the sender’s name, Fund
name, telephone number, fax number, number of pages, and number of transactions
or instructions attached.
o
Telephonic.
A
telephonic payment order shall be called into the Custodian at the telephone
number designated from time to time by the Custodian for that purpose.
The
caller shall identify herself/himself as an Authorized Person. The Custodian
shall obtain the payment order data from the caller. The Custodian shall
then:
| 1. |
if
a telephonic repetitive payment order, the Custodian may perform
a
Callback; or
|
| 2. |
if
a telephonic non-repetitive payment order, the Custodian will perform
a
Callback.
|
In
the
event the Fund and the General Partner choose a procedure which is not a
Security Procedure as described above, the Fund and the General Partner agree
to
be bound by any payment order (whether or not authorized) issued in their name
and accepted by the Custodian in compliance with the procedure selected by
the
Fund and the General Partner.
24
3. Rejection
of Payment Orders.
The
Custodian shall give the Fund and the General Partner timely notice of the
Custodian’s rejection of a payment order. Such notice may be given in writing or
orally by telephone, each of which is hereby deemed commercially reasonable.
In
the event the Custodian fails to execute a properly executable payment order
and
fails to give the Fund and/or the General Partner notice of the Custodian’s
non-execution, the Custodian shall be liable only for the Fund’s actual damages
and only to the extent that such damages are recoverable under UCC 4A (as
defined in Paragraph 7 below). Notwithstanding anything in this Funds Transfer
Services Schedule and the Agreement to the contrary, the Custodian shall in
no
event be liable for any consequential or special damages under this Funds
Transfer Services Schedule, whether or not such damages relate to services
covered by UCC 4A, even if the Custodian has been advised of the possibility
of
such damages. Whenever compensation in the form of interest is payable by the
Custodian to the Fund pursuant to this Funds Transfer Services Schedule, such
compensation will be payable in accordance with UCC 4A.
4. Cancellation
of Payment Orders.
The
Fund or the General Partner may cancel a payment order but the Custodian shall
have no liability for the Custodian’s failure to act on a cancellation
instruction unless the Custodian has received such cancellation instruction
at a
time and in a manner affording the Custodian reasonable opportunity to act
prior
to the Custodian’s execution of the order. Any cancellation shall be sent and
confirmed in the manner set forth in Paragraph 2 above.
5. Responsibility
for the Detection of Errors and Unauthorized Payment Orders.
Except
as may be provided in the Agreement, the Custodian is not responsible for
detecting any Fund or General Partner error contained in any payment order
sent
by the Fund or the General Partner to the Custodian. In the event that the
Fund’s or the General Partner’s payment order to the Custodian either (i)
identifies the beneficiary by both a name and an identifying or bank account
number and the name and number identify different persons or entities, or (ii)
identifies any bank by both a name and an identifying number and the number
identifies a person or entity different from the bank identified by name,
execution of the payment order, payment to the beneficiary, cancellation of
the
payment order or actions taken by any bank in respect of such payment order
may
be made solely on the basis of the number. The Custodian shall not be liable
for
interest on the amount of any payment order that was not authorized or was
erroneously executed unless the Fund and/or the General Partner so notifies
the
Custodian within thirty (30) Business Days following the Fund’s and/or the
General Partner’s receipt of notice that such payment order had been processed.
If a payment order in the name of the Fund and accepted by the Custodian was
not
authorized by the Fund or the General Partner, the liability of the parties
will
be governed by the applicable provisions of UCC 4A.
6. Laws
and Regulations.
The
rights and obligations of the Custodian, the General Partner and the Fund with
respect to any payment order executed pursuant to this Funds Transfer Services
Schedule will be governed by any applicable laws, regulations, circulars and
funds transfer system rules, the laws and regulations of the United States
of
America and of other relevant countries including exchange control regulations
and limitations on dealings or other sanctions, and including without limitation
those sanctions imposed under the law of the United States of America by the
Office of Foreign Assets Control. Any taxes, fines, costs, charges or fees
imposed by relevant authorities on such transactions shall be for the account
of
the Fund.
25
7. Miscellaneous.
All
accounts opened by the Fund, the General Partner or its authorized agents at
the
Custodian subsequent to the date hereof shall be governed by this Funds Transfer
Schedule. All terms used in this Funds Transfer Services Schedule shall have
the
meaning set forth in Article 4A of the Uniform Commercial Code as currently
in
effect in the State of New York (UCC 4A) unless otherwise set forth herein.
The
terms and conditions of this Funds Transfer Services Schedule are in addition
to, and do not modify or otherwise affect, the terms and conditions of the
Agreement and any other agreement or arrangement between the parties hereto.
8. Indemnification.
The
Custodian does not recommend the sending of instructions by telefax or
telephonic means as provided in Paragraph 2. BY
ELECTING TO SEND INSTRUCTIONS BY TELEFAX OR TELEPHONIC MEANS, THE FUND AND
THE
GENERAL PARTNER AGREE TO INDEMNIFY THE CUSTODIAN AND ITS PARTNERS, OFFICERS
AND
EMPLOYEES FOR LOSSES THEREFROM.
_____________________________________________
OPTIONAL:
The
Custodian will perform a Callback if instructions are sent by telefax or
telephonic means as provided in Paragraph 2. THE
FUND AND/OR THE GENERAL PARTNER MAY, AT ITS OWN RISK AND BY HEREBY AGREEING
TO
INDEMNIFY THE CUSTODIAN AND ITS PARTNERS, OFFICERS AND EMPLOYEES FOR ALL LOSSES
THEREFROM,
ELECT TO
WAIVE A CALLBACK BY THE CUSTODIAN BY INITIALING HERE: ____
_____________________________________________
The
undersigned acknowledges that (I/we) have received a copy of this
document.
Accepted
and agreed:
XXXXX
BROTHERS XXXXXXXX & CO.
By:
__________________________________
Name:
Title:
Date:
By:
Victoria Bay Asset Management, LLC, as General Partner
By:
________________________________
Name:
Title:
Date:
26
VICTORIA
BAY ASSET MANAGEMENT, LLC
By:__________________________________
Name:
Title:
Date:
27
ELECTRONIC
AND ON-LINE SERVICES SCHEDULE
This
Electronic and On-Line Services Schedule (this Schedule)
to a
Custodian Agreement dated as of _______________ (as amended from time to time
hereafter, the Agreement)
by and
among Xxxxx Brothers Xxxxxxxx & Co. (we,
us our),
Victoria Bay Asset Management, LLC (the General
Partner)
and
United States Gasoline Fund, LP (the Fund)
(the
General Partner and the Fund collectively, you,
your),
provides general provisions governing your use of and access to the Services
(as
hereinafter defined) provided to you by us via the Internet (at xxx.xxxxx.xxx
or
such other URL as we may instruct you to use to access our
products)
and via
a direct dial-up connection between your computer and our computers, as of
__________________ (the Effective
Date). Use
of
the Services constitutes acceptance of the terms and conditions of this
Schedule, any Appendices hereto, the Terms and Conditions posted on our web
site, and any terms and conditions specifically governing a particular Service
or our other products, which may be set forth in the Agreement or in a separate
related agreement (collectively, the Related
Agreements).
| 1. |
General
Terms.
|
|
You
will be granted access to our suite of online products, which
may include,
but shall not be limited to the following services via the Internet
or
dial-up connection (each separate service is a Service;
collectively referred to as the Services):
|
|
1.1.
|
BIDS®
and BIDS WorldView, a system for effectuating securities and fund
trade
instruction and execution, processing and handling instructions,
and for
the input and retrieval of other information;
|
|
1.2.
|
F/X
WorldView, a system for executing foreign exchange
trades;
|
|
1.3.
|
Fund
WorldView, a system for receiving fund and prospectus
information;
|
|
1.4.
|
BBHCOnnect,
a system for placing securities trade instructions and following
the
status and detail of trades;
|
|
1.5.
|
ActionViewSM,
a
system for receiving certain corporate action information;
|
|
1.6.
|
Risk
View, an interactive portfolio risk analysis tool; and
|
|
1.7.
|
Such
other services as we shall from time to time
offer.
|
|
2.
|
Security
/ Passwords.
|
|
2.1.
|
A
digital certificate and/or an encryption key may be required to access
certain Services. You may apply for a digital certificate and/or
an
encryption key by following the procedures set forth at
xxxx://xxx.xxx.xxx/xxxxx/. You
also will need an identification code (ID)
and password(s) (Password)
to access the Services.
|
|
2.2.
|
You
agree to safeguard your digital certificate and/or encryption key,
ID, and
Password and not to give or make available, intentionally or otherwise,
your digital certificate, ID, and/or Password to any unauthorized
person.
You must immediately notify us in writing if you believe that your
digital
certificate and/or encryption key, Password, or ID has been compromised
or
if you suspect unauthorized access to your account by means of the
Services or otherwise, or when a person to whom a digital certificate
and/or an encryption key, Password, or ID has been assigned leaves
or is
no longer permitted to access the Services.
|
28
|
2.3.
|
We
will not be responsible for any breach of security, or for any
unauthorized trading or theft by any third party, caused by your
failure
(be it intentional, unintentional, or negligent) to maintain the
confidentiality of your ID and/or Password and/or the security of
your
digital certificate and/or encryption key.
|
|
3.
|
Instructions.
|
|
3.1.
|
Proper
instructions under this Schedule shall be provided as designated
in the
Related Agreements (Instructions).
|
|
3.2.
|
The
following additional provisions apply to Instructions provided via
the
Services:
|
|
a.
|
Instructions
sent by electronic mail will not be accepted or acted
upon.
|
|
b.
|
You
authorize us to act upon Instructions received through the Services
utilizing your digital certificate, ID, and/or Password as though
they
were duly authorized written instructions, without any duty of
verification or inquiry on our part, and agree to hold us harmless
for any
losses you experience as a result.
|
|
c.
|
From
time to time, the temporary unavailability of third party
telecommunications or computer systems required by the Services may
result
in a delay in processing Instructions. In such an event, we shall
not be
liable to you or any third party for any liabilities, losses, claims,
costs, damages, penalties, fines, obligations, or expenses of any
kind
(including without limitation, reasonable attorneys’, accountants’,
consultants’, or experts’ fees and disbursements) that you experience due
to such a delay.
|
|
4.
|
Electronic
Documents.
|
We
may
make periodic statements, disclosures, notices, and other documents available
to
you electronically, and, subject to any delivery and receipt verification
procedures required by law, you agree to receive such documents electronically
and to check the statements for accuracy. If you believe any such statement
contains incorrect information, you must follow the procedures set forth in
the
Related Agreement(s).
|
5.
|
Malicious
Code.
|
You
understand and agree that you will be responsible for the introduction (by
you,
your employees, agents, or representatives) into the Services, whether
intentional or unintentional, of (i) any virus or other code, program, or
sub-program that damages or interferes with the operation of the computer system
containing the code, program or sub-program, or halts, disables, or interferes
with the operation of the Services themselves; or (ii) any device, method,
or
token whose knowing or intended purpose is to permit any person to circumvent
the normal security of the Services or the system containing the software code
for the Services (Malicious
Code).
You
agree to take all necessary actions and precautions to prevent the introduction
and proliferation of any Malicious Code into those systems that interact with
the Services.
|
6.
|
Indemnification.
|
For
avoidance of doubt, you hereby agree that the provisions in the Related
Agreement(s) related to your indemnification of us and any limitations on our
liability and responsibilities to you shall be applicable to this Agreement,
and
are hereby expressly incorporated herein. You agree that the Services are
comprised of telecommunications and computer systems, and that it is possible
that Instructions, information, transactions, or account reports might be added
to, changed, or omitted by electronic or programming malfunction, unauthorized
access, or other failure of the systems which comprise the Services, despite
the
security features that have been designed into the Services. You agree that
we
will not be liable for any action taken or not taken in complying with the
terms
of this Schedule, except for our willful misconduct or gross negligence. The
provisions of this paragraph shall survive the termination of this Schedule
and
the Related Agreements.
29
|
7.
|
Payment.
|
You
may
be charged for services hereunder as set forth in a fee schedule from time
to
time agreed by us.
|
8.
|
Term/Termination.
|
|
8.1.
|
This
Schedule is effective as of the date you sign it or first use the
Services, whichever is first, and continues in effect until such
time as
either you or we terminate the Schedule in accordance with this Section
8
and/or until your off-line use of the Services is
terminated.
|
|
8.2.
|
We
may terminate your access to the Services at any time, for any reason,
with five (5) Business Days’ (as defined in the Agreement) prior notice;
provided that we may terminate your access to the Services with no
prior
notice if (i) your account with us is closed, (ii) you fail to comply
with
any of the terms of this Agreement, (iii) we believe that your continued
access to the Services poses a security risk, or (iv) we believe
that you
are violating or have violated Applicable Laws (as defined in the
Agreement), and we will not be liable for any loss you may experience
as a
result of such termination. You may terminate your access to the
Services
at any time by giving us ten (10) Business Days notice. Upon termination,
we will cancel all your Passwords and IDs and any in-process or pending
Instructions will be carried out or cancelled, at our sole discretion.
|
|
9.
|
Miscellaneous.
|
|
9.1.
|
Notices.
All notices, requests, and demands (other than routine operational
communications, such as Instructions) shall be in such form and effect
as
provided in the Related Agreement(s).
|
|
9.2.
|
Inconsistent
Provisions.
Each Service may be governed by separate terms and conditions in
addition
to this Schedule and the Related Agreement(s). Except where specifically
provided to the contrary in this Schedule, in the event that such
separate
terms and conditions conflict with this Schedule and the Related
Agreement(s), the provisions of this Schedule shall prevail to the
extent
this Schedule applies to the transaction in
question.
|
|
9.3.
|
Binding
Effect; Assignment; Severability.
This Schedule shall be binding on you, your employees, officers and
agents. We may assign or delegate our rights and duties under this
Schedule at any time without notice to you. Your rights under this
Schedule may not be assigned without our prior written consent. In
the
event that any provision of this Schedule conflicts with the law
under
which this Schedule is to be construed or if any such provision is
held
invalid or unenforceable by a court with jurisdiction over you and
us,
such provision shall be deemed to be restated to effectuate as nearly
as
possible the purposes of the Schedule in accordance with applicable
law.
The remaining provisions of this Schedule and the application of
the
challenged provision to persons or circumstances other than those
as to
which it is invalid or unenforceable shall not be affected thereby,
and
each such provision shall be valid and enforceable to the full extent
permitted by law.
|
30
|
9.4.
|
Choice
of Law; Jury Trial.
This Schedule shall be governed by and construed, and the legal relations
between the parties shall be determined, in accordance with the laws
of
the State of New York, without giving effect to the principles of
conflicts of laws. Each party agrees to waive its right to trial
by jury
in any action or proceeding based upon or related to this Schedule.
The
parties agree that all actions and proceedings based upon or relating
to
this Schedule shall be litigated exclusively in the federal and state
courts located within New York City, New York.
|
|
9.5.
|
Confidentiality.
The
parties hereto agree that each shall treat confidentially the terms
and
conditions of this Schedule and all information provided by each
party to
the other regarding its business and operations. All confidential
information provided by a party hereto shall be used by any other
party
hereto solely for the purpose of rendering or obtaining services
pursuant
to this Schedule and, except as may be required in carrying out this
Schedule, shall not be disclosed to any third party without the prior
consent of such providing party. The foregoing shall not be applicable
to
any information that is publicly available when provided or thereafter
becomes publicly available other than through a breach of this Schedule,
or that is required to be disclosed by or to any bank examiner of
the
Custodian or any Subcustodian, any Regulatory Authority, any auditor
of
the parties hereto, or by judicial or administrative process or otherwise
by Applicable Law.
|
31
The
undersigned acknowledges that (I/we) have received a copy of this
document.
XXXXX
BROTHERS XXXXXXXX & CO.
By:
__________________________________
Name:
Title:
Date:
By:
Victoria Bay Asset Management, LLC, as General Partner
By:
________________________________
Name:
Xxxxxxxx X. Xxxxxx
Title:
President and Management Director
Date:
VICTORIA
BAY ASSET MANAGEMENT, LLC
By:__________________________________
Name:
Xxxxxxxx X. Xxxxxx
Title: President and Management Director
Date:
32
