CUSTODIAN AGREEMENT
THIS AGREEMENT, dated as of August 11, 2006, between Quaker Investment Trust (the Trust),
on behalf of its series listed on Schedule A hereto (the Funds), and XXXXX BROTHERS XXXXXXXX & CO.,
a limited partnership formed under the laws of the State of New York (BBH&Co. or the Custodian),
W I T N E S S E T H:
WHEREAS, the Trust acting through its Board of Trustees wishes to employ BBH&Co. to act as
custodian for the Funds 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 Trust hereby appoints BBH&Co. as the Fund’s Custodian, and
BBH&Co. hereby accepts such appointment. All Investments of the Funds delivered to the Custodian
or its agents or Subcustodians 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 Trust. The Trust hereby represents, warrants
and covenants each of the following:
2.1 This Agreement has been, and at the time of delivery of each Instruction such Instruction
will have been, duly authorized, executed and delivered by the Fund. Neither this Agreement nor
any
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Instruction issued thereunder violates any Applicable Law or conflicts with or constitutes a
default under the Fund’s prospectus, articles of organization or other constitutive document or any
agreement, judgment, order or decree to which the Fund 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 Trust shall be deemed to have confirmed
to the Custodian that the Fund has (a) assessed and accepted all material Country or Sovereign
Risks and accepted responsibility for their occurrence, (b) made all determinations required to be
made by the Fund under the 1940 Act, and (iii) appropriately and adequately disclosed to its
shareholders, other investors 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 Trust shall safeguard and shall solely be responsible for the safekeeping of any
testkeys, identification codes, passwords, other security devices or statements of account with
which the Custodian provides it. If the Trust uses any on-line or similar communications service
made available by the Custodian, the Trust shall be solely responsible for ensuring the security of
its 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 Trust relating to the services described in this Agreement,
the Trust will only use the software for the purposes for which the Custodian provided the software
to the Trust, and will abide by the license agreement accompanying the software and any other
security policies which the Custodian provides to the Trust.
3. Representation and Warranty 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 and will 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.
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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 Trust, acting through its board of directors or trustees or other Authorized
Person, 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 to the Custodian by written notices or otherwise for or on
behalf of the Trust in accordance with procedures delivered to and acknowledged by the Custodian.
The Custodian may treat any Authorized Person as having the full authority of the Trust 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 Trust to the contrary.
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 Trust from time
to time unless the Trust shall elect to transmit such Instruction in accordance with Subsections
4.2.1 through 4.2.3 of this Section.
4.2.1 Trust Designated Secured-Transmission Method. Instructions may be transmitted
through a secured or tested electro-mechanical means identified by the Trust or by an
Authorized Person entitled to give Instruction and acknowledged and accepted by the
Custodian, it being understood that such acknowledgment shall authorize the Custodian to
accept such means of delivery but shall not represent a judgment by the Custodian as to the
reasonableness or security of the means utilized 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 Trust or Authorized Persons and acknowledged and accepted by the
Custodian (subject to the same limits as to acknowledgements as are 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 the Authorized Person shall be solely responsible for
determining that the particular means
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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 shall apply to
Funds Transfers performed in accordance with Instructions. The Funds Transfer Services Schedule and
the Electronic and Online Services Schedule to this Agreement shall each comprise a designation of
a means of delivering Instructions for purposes of this Section 4.2.
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 the 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 the Instruction, particularly with respect
to Investment description; and
4.3.4 The name of the broker or similar entity concerned with execution of the
transaction.
If the Custodian determines that an Instruction is either unclear or incomplete, the Custodian
may give prompt notice of such determination to the Trust, and the Trust shall thereupon amend or
otherwise reform the 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 Trust shall take into
consideration
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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; or, (b) pre-existing faults or defects in Investments that
are delivered to the Custodian or its Subcustodians. 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 or income event. 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.
5.1 Use of Securities Depositories. The Custodian may deposit and maintain Investments in
any Securities Depository, 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 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
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account, the Custodian, the Subcustodian or other agent shall as appropriate segregate such
Investments for benefit of the Fund or for 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 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 loss
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 such other lesser amount as shall be agreed by the parties.
6. Administrative Duties of the Custodian. The Custodian shall perform the following
administrative duties with respect to Investments of the Fund.
6.1 Purchase of Investments. Pursuant to Instruction, 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 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
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such Investment.
6.2 Sale of Investments. Pursuant to Instruction, 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 Instruction, 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 Options. If, pursuant to an Instruction, the Custodian shall become a
party to an agreement with the Fund and a futures commission merchant regarding margin (Tri-Party
Agreement), the Custodian shall (a) receive and retain, to the extent the same are provided to the
Custodian, confirmations or other documents evidencing the purchase or sale by the Fund of
exchange-traded futures contracts and commodity options, (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 Agreement. Alternatively, the Custodian
may deliver Investments, in accordance with an Instruction, to a futures commission merchant for
purposes of margin requirements in accordance with Rule 17f-6 under the 1940 Act. The Custodian
shall in no event be responsible for the acts and omissions of any futures commission merchant to
whom Investments are delivered pursuant to this Section; for the sufficiency of Investments held in
any Margin Account; or, for the performance of any terms of any exchange-traded futures contracts
and commodity options.
6.5 Contractual Obligations and Similar Investments. From time to time, the Fund’s
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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
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 Instruction, to
include such arrangements in reports made to the Fund.
6.6 Exchange of Securities. Unless otherwise directed by Instruction, the Custodian shall:
(a) exchange securities held for the account of the Fund for other securities in connection with
any reorganization, recapitalization, conversion, stock split, 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 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 Instruction, the Custodian shall (a) deliver
warrants, puts, calls, rights or similar securities to the issuer or trustee thereof, or to any
agent of the issuer or trustee, for purposes of exercising such rights or selling such securities,
and (b) deliver securities in response to any tender offer.
6.9 Mandatory Corporate Actions. Unless otherwise directed by 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.
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6.10 Income Collection. Unless otherwise directed by Instruction, the Custodian shall
collect any amount due and payable to the Trust with respect to Investments and promptly credit the
amount collected to a Principal or Agency Account; 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.
6.11 Corporate Action Information. In fulfilling the duties set forth in Sections 6.6
through 6.10 above, the Custodian shall provide to the Company such 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 Company via any of the services described in the
Electronic and Online Services Schedule shall constitute the delivery of such information by the
Custodian. 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 be reversed by the Custodian.
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. Information relative to any pending corporate
action made available to the Company via any of the services described in the Electronic and Online
Services Schedule shall constitute the delivery of such information by the Custodian.
6.13 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.
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With respect to securities issued in the United States of America, the Custodian [ ] may [ ]
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.
6.14. 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.
6.15 Other Dealings. The Custodian shall otherwise act as directed by Instruction,
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 the payment or delivery is made.
6.16 Nondiscretionary Details and Minor Expenses. 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 Instruction, and may make payments to itself or
others for minor expenses of administering Investments under this Agreement, provided that the
Trust shall have the right to request an accounting with respect to such expenses.
6.17 Use of Agents. The Custodian may at any time 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
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this Agreement (Agents), provided, however, that the appointment of an 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 Trust 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 the 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 the cash 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.
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7.3 Currency and Related Risks. The Fund bears the 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
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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 the Fund has executed a foreign exchange contract or option, (b) may make
free outgoing payments of cash in the form of 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 in safekeeping all confirmations, certificates and other documents and
agreements received by the Custodian and evidencing or relating to such foreign
exchange transactions. The Fund accepts full responsibility for its use of
third-party foreign exchange dealers and for execution of the 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.
7.4.2 Foreign Exchange with the Custodian as Principal. The Custodian, as
principal, may undertake such foreign exchange transactions with the Fund as the
Custodian and the Fund may agree from time to time. In this 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 Instruction in the absence of specific agreement, the 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 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
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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), the Trust 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 pursuant to Section 9-206
of the Uniform Commercial Code as in effect in the State of New York from time to time;
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 Trust 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.
14
7.8 Integrated Account. For purposes hereof, deposits maintained in all Principal Accounts
(whether or not denominated in 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 Trust 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 Clearing Agencies, (c) generally accepted trade practice in the
applicable local market, (d) the terms and characteristics of the particular Investment, or (e) the
terms of Instructions.
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, including The Depository Trust Company,
provided such Depository meets applicable requirements of the Federal Reserve Bank or of the
Securities and Exchange Commission. The Custodian may,, from time to time, appoint any bank as
defined in Section 2(a)(5) of the 1940 Act meeting the requirements of a custodian under Section
17(f) of the 1940 Act and the rules and regulations thereunder to act on behalf of the Fund as a
Subcustodian for purposes of holding
15
Investments of the Fund in the United States.
8.2 Foreign Subcustodians and Securities Depositories. Unless instructed otherwise by the
Fund, the Custodian may deposit and/or maintain non-U.S. Investments of the Fund in any non-U.S.
Securities Depository provided such Securities Depository meets the requirements of an “eligible
securities depository” under Rule 17f-7 promulgated under the 1940 Act, or any successor rule or
regulation (“Rule 17f-7”) or which by order of the Securities and Exchange Commission is exempted
therefrom. Prior to the time that securities are placed with such depository, but subject to the
provisions of Section 8.2.4 below, the Custodian shall have prepared an assessment of the custody
risks associated with maintaining assets with the Securities Depository and shall have established
a system to monitor such risks on a continuing basis in accordance with subsection 8.2.3 of this
Section. Additionally, the Custodian may, from time to time, appoint (a) any bank, trust company
or other entity meeting the requirements of an “eligible foreign custodian” under Rule 17f-5 or
which by order of the Securities and Exchange Commission is exempted therefrom, or (b) any bank as
defined in Section 2(a)(5) of the 1940 Act meeting the requirements of a custodian under Section
17(f) of the 1940 Act and the rules and regulations thereunder, to act on behalf of the Fund as a
Subcustodian for purposes of holding Investments of the Fund outside the United States.
8.3 Delegation of Board Review of Subcustodians. From time to time, the Custodian may agree
to perform certain reviews of Subcustodians and of Subcustodian Contracts as the delegate of the
Trust’s Board. In such event, the Custodian’s duties and obligations with respect to this
delegated review will be performed in accordance with the terms of the attached 17f-5 Delegation
Schedule to this Agreement.
8.4 Board Approval of Foreign Subcustodians. Unless and except to the extent that the Board
has delegated to the Custodian and the Custodian has accepted delegation of review of certain
matters concerning the appointment of Subcustodians pursuant to Subsection 8.3, the Custodian
shall, prior to the appointment of any Subcustodian for purposes of holding Investments of the Fund
outside the United States, obtain written confirmation of the approval of the Board of Trustees or
Directors of the Trust with respect to (a) the identity of a Subcustodian, and (b) the Subcustodian
agreement which shall govern such appointment, such approval to be signed by an Authorized Person.
An Instruction to open an account in a given country shall comprise authorization of the Custodian
to hold assets in such country in accordance
16
with the terms of this Agreement. The Custodian shall not be required to make independent
inquiry as to the authorization of the Fund to invest in such country.
8.5 Monitoring and Risk Assessment of Securities Depositories. Prior to the
placement of any assets of the Fund with a non-U.S. Securities Depository, the Custodian: (a)
shall provide to the Fund or its authorized representative an assessment of the custody risks
associated with maintaining assets within such Securities Depository; and (b) shall have
established a system to monitor the custody risks associated with maintaining assets with such
Securities Depository on a continuing basis and to promptly notify the Fund or its Investment
Adviser of any material changes in such risk. In performing its duties under this subsection, the
Custodian shall use reasonable care and may rely on such reasonable sources of information as may
be available including but not limited to: (i) published ratings; (ii) information supplied by a
Subcustodian that is a participant in such Securities Depository; (iii) industry surveys or
publications; (iv) information supplied by the depository itself, by its auditors (internal or
external) or by the relevant Foreign Financial Regulatory Authority. It is acknowledged that
information procured through some or all of these sources may not be independently verifiable by
the Custodian and that direct access to Securities Depositories is limited under most
circumstances. Accordingly, the Custodian shall not be responsible for errors or omissions in its
duties hereunder provided that it has performed its monitoring and assessment duties with
reasonable care. The risk assessment shall be provided to the Fund or its Investment Advisor by
such means as the Custodian shall reasonably establish. Advices of material change in such
assessment may be provided by the Custodian in the manner established as customary between the
Trust and the Custodian for transmission of material market information.
8.6 Responsibility for Subcustodians. Except as provided in the last sentence of this
Section 8.6, 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 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
17
subcustodian agreement under the laws, circumstances and practices prevailing in the place where
the act or omission occurred. The liability of the Custodian in respect of the countries and
Subcustodians designated by the Custodian, from time to time on the Global Custody Network Listing
shall be subject to the additional condition that the Custodian actually recovers such loss or
damage from the Subcustodian.
8.7 New Countries. The Trust shall be responsible for informing the Custodian sufficiently
in advance of a proposed investment which is to be held in a country in which no Subcustodian is
authorized to act in order that the Custodian shall, if it deems appropriate to do so, have
sufficient time to establish a subcustodial arrangement in accordance herewith. In the event, the
Custodian is unable to establish such arrangements prior to the time the investment is to be
acquired, the Custodian is authorized to designate at its discretion a local safekeeping agent, and
the use of the local safekeeping agent shall be at the sole risk of the Fund, and accordingly the
Custodian shall be responsible to the Fund for the actions of such agent if and only to the extent
the Custodian shall have recovered from such agent for any damages caused the Fund by such agent.
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
counterparty or issuer.
18
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 or wind 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 Country or 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 Country
or 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 Country or
Sovereign Risk, or (i) any other cause similarly beyond the reasonable control of
the Custodian.
9.1.2 Country Risk. Country Risk shall mean, with respect to the acquisition,
ownership, settlement or custody of Investments in a jurisdiction, all risks
relating to, or arising in consequence of, systemic and markets factors affecting
the acquisition, payment for or ownership of Investments including (a) the
prevalence of crime and corruption, (b) the inaccuracy or unreliability of business
and financial information, (c) the instability or volatility of banking and
financial systems, or the absence or inadequacy of an infrastructure to support
such systems, (d) custody and settlement infrastructure of the market in which such
Investments are transacted and held, (e) the acts, omissions and operation of any
Securities Depository, (f) the risk of the bankruptcy or insolvency of banking
agents, counterparties to cash and securities transactions, registrars or transfer
agents, and (g) the existence of market conditions which prevent the orderly
execution or settlement of transactions or which affect the value of assets.
9.1.3 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) any
19
issuer of Investments or Book-Entry Agent or other agent of an issuer; (b) any
counterparty with respect to any Investment, including any issuer of
exchange-traded or other futures, option, derivative or commodities contract; (c)
failure of an Investment Advisor, foreign custody manager or other agent of the
Fund; or (d) 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 Trust’s declaration of trust, certificate of
incorporation or by-laws or other constitutive document, Applicable Law, or actions
by the trustees, directors or shareholders of the Fund.
9.2.4 Restricted Securities. The limitations inherent in the rights,
transferability or similar investment characteristics of a given Investment of the
Fund.
10. Indemnification. The Trust 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, incurred or assessed against any of them in connection with the performance of this
Agreement and any Instruction. If a Subcustodian or any other person indemnified under the
preceding sentence, gives written notice of claim to the Custodian, the Custodian shall promptly
give written notice to the Trust. Not more than thirty days following the date of such notice,
unless the Custodian shall be liable under Section 8 hereof in respect of such claim, the Trust
will pay the amount of such claim or reimburse the Custodian for any payment made by the Custodian
in respect thereof.
11. Reports and Records. The Custodian shall:
11.1 create and maintain records relating to the performance of its obligations under this
20
Agreement;
11.2 make available to the Fund, 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; 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.
11.4 The Fund shall examine all records, however produced or transmitted, promptly upon
receipt and notify the Custodian promptly of any discrepancy or error. Unless the Fund delivers
written notice of any such discrepancy or error within a reasonable time after its receipt of the
records, the records shall be deemed to be true and accurate.
11.5 The Fund acknowledges that the Custodian obtains information on the value of assets from
outside sources which may be utilized in certain reports made available to the Fund. The Custodian
deems such sources to be reliable but the Fund acknowledges and agrees that the Custodian does not
verify such information nor make any representations or warrantees as to its accuracy or
completeness and accordingly shall be without liability in selecting and using such sources and
furnishing such information.
12. Miscellaneous.
12.1 Powers of Attorney, etc. The Fund 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.
12.2 Entire Agreement; Amendment. This Agreement constitutes the entire understanding and
agreement of the parties hereto and supersedes any other oral or written agreements heretofore in
effect between the Trust and the Company with respect to the subject matter hereof. No provision of
this Agreement may be amended or terminated except by a statement in writing signed by the party
against
21
which enforcement of the amendment or termination is sought, provided, however, that an Instruction
shall, whether or not such Instruction shall constitute a waiver, amendment or modification for
purposes hereof, be deemed to have been accepted by the Custodian when it commences actions
pursuant thereto or in accordance therewith. In the event of a conflict between the terms of this
Agreement and the terms of a service level agreement or other operating agreement in place between
the parties from time to time, the terms of this Agreement shall control.
12.3 Binding Effect; Assignment. This Agreement shall be binding upon and shall inure to
the benefit of the Custodian and the Fund and their successors and assignees, provided that the
Trust may not assign this Agreement without the prior written consent of the
[Custodian/Administrator]. Each party agrees that only the parties to this Agreement and/or their
successors in interest shall have a right to enforce the terms of this Agreement. Accordingly, no
client of the Company or other third party shall have any rights under this Agreement and such
rights are explicitly disclaimed by the parties.
12.4 GOVERNING LAW, JURISDICTION AND VENUE. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PRINCIPLES OF SUCH STATE. THE PARTIES HERETO IRREVOCABLY CONSENT TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS LOCATED IN NEW YORK
CITY. THE TRUST IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY ACTION OR PROCEEDING IN ANY OF THE AFORESAID COURTS AND ANY CLAIM THAT ANY SUCH ACTION
OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. FURTHERMORE, EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
22
12.5 Notices. Notices and other writings contemplated by this Agreement, other than
Instructions, shall be delivered (a) by hand, (b) by first class registered or certified mail,
postage prepaid, return receipt requested, (c) by a nationally recognized overnight courier, or (d)
by facsimile transmission, provided that any notice or other writing sent by facsimile transmission
shall also be mailed, postage prepaid, to the party to whom such notice is addressed. All such
notices shall be addressed, as follows:
Telephone:
(000) 000-0000
If to the Custodian:
Xxxxx Brothers Xxxxxxxx & Co.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxx, Investor Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxxx, Investor Services
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as the Trust or the Custodian may have designated in writing to the
other.
12.6 Headings. Paragraph headings included herein are for convenience of reference only and
shall not modify, define, expand or limit any of the terms or provisions hereof.
12.7 Severability. In the event any provision of this Agreement is determined to be void or
unenforceable, such determination shall not affect the remainder of this Agreement, which shall
continue
23
to be in force.
12.8 Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original. This Agreement shall become effective when one or more
counterparts have been signed and delivered by the Trust and the Custodian. A photocopy or telefax
of the Agreement shall be acceptable evidence of the existence of the Agreement and the Custodian
shall be protected in relying on the photocopy or telefax until the Custodian has received the
original of the Agreement.
12.9 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 any 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 be applicable 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.
12.10 Tape-recording. The Trust on behalf of itself and its Customers authorizes the
Custodian to tape record any and all telephonic or other oral instructions given to the Custodian
by or on behalf of the Trust, including from any Authorized Person. This authorization will remain
in effect until and unless revoked by the Trust in writing. The Trust further agrees to solicit
valid written or other consent from any of its employees with respect to telephone communications
to the extent such consent is required by applicable law.
12.11 Counsel/ Certified Public Accountant. In fulfilling its duties hereunder, the
Custodian shall be entitled to receive and act upon the advice of (i) counsel and/or a certified
public
24
accountant regularly retained by the Custodian in respect of such matters, (ii) counsel and/or a
certified public accountant for the Trust or (iii) such counsel or certified public accountant as
the Trust and the Custodian may agree upon, with respect to all matters, and the Custodian shall be
without liability for any action reasonably taken or omitted pursuant to such advice.
12.12 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 whose interests may be adverse to the interest of the Fund; or (iii)
buying, holding, lending, and dealing in any way in any assets for the benefit of its own account,
or for the account of any other client whose interests may be adverse to the Fund notwithstanding
that the same or similar assets may be held or dealt in by, or for the account of the Fund by the
Custodian. The Trust hereby voluntarily consents to, and waives any potential conflict of interest
between the Custodian and/or its associates and the Trust, and agrees that:
(a) | the Custodian’s and/or its associates’ engagement in any such transaction shall not disqualify the Custodian from continuing to perform as the custodian of the Fund under this Agreement; | ||
(b) | the Custodian and/or its associates shall not be under any duty to disclose any information in connection with any such transaction to the Fund; | ||
(c) | the Custodian and/or its associates shall not be liable to account to the Fund for any profits or benefits made or derived by or in connection with any such transaction; and | ||
(d) | the Fund shall use all reasonable efforts to disclose this provision, among other provisions in this Agreement, to its shareholders. |
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
25
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 hereof.
13.4 Agent(s) shall have the meaning set forth in the last sentence of Section 6 hereof.
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 Trust in accordance with Section 4.1 hereof.
13.7 Book-entry Agent(s) 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 Clearing Corporation shall mean any entity or system established for purposes of
providing securities settlement and movement and associated functions for a given market(s).
13.9 Delegation Schedule shall mean any separate schedule entered into between the Custodian
and the Trust or its authorized representative with respect to certain matters concerning the
appointment and administration of Subcustodians delegated to the Custodian pursuant to Rule 17f-5
under the 1940 Act.
13.10 Electronic and Online Services Schedule shall mean any separate agreement entered into
between the Custodian and the Trust 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 Trust.
26
13.11 Electronic Reports shall mean any reports prepared by the Custodian and remitted to the
Fund or its authorized representative via the internet or electronic mail.
13.12 Foreign Custody Manager shall mean the Trust’s foreign custody manager appointed
pursuant to Rule 17f-5 of the 1940 Act.
13.13 Foreign Financial Regulatory Authority shall have the meaning given by Section 2(a)(50)
of the 0000 Xxx.
13.14 Funds Transfer Services Schedule shall mean any separate schedule entered into between
the Custodian and the Fund or its authorized representative with respect to certain matters
concerning the processing of payment orders from Principal Accounts of the Fund.
13.15 Global Custody Network Listing shall mean the Countries and Subcustodians approved for
Investments in non-U.S. Markets.
13.16 Instruction(s) shall have the meaning assigned in Section 4 hereof.
13.17 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.
13.18 Investment(s) shall mean any investment asset of the Fund, including without limitation
securities, bonds, notes, and debentures as well as receivables, derivatives, contractual rights or
entitlements and other intangible assets, but shall not include any Principal Account.
13.19 Margin Account shall have the meaning set forth in Section 6.4 hereof.
13.20 Principal Account(s) shall mean deposit accounts of the Fund carried on the books of
BBH&Co. as principal in accordance with Section 7 hereof.
13.21 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.
13.22 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 that, if a foreign Securities Depository, meets the definitional
requirements of Rule 17f-7 under the 1940 Act.
13.23 Subcustodian(s) shall mean each foreign bank appointed by the Custodian pursuant to
27
Section 8 hereof, but shall not include Securities Depositories.
13.24 Tri-Party Agreement shall have the meaning set forth in Section 6.4 hereof.
13.25 1940 Act shall mean the Investment Company Act of 1940.
14. Compensation. The Trust agrees to pay to the Custodian (a) a fee in an amount set forth in the
fee letter between the Trust and the Custodian in effect on the date hereof or as amended from time
to time, and (b) all out-of-pocket expenses incurred by the Custodian, including the fees and
expenses of all Subcustodians and other amounts paid by the Custodian to a third party for account
or benefit of the Fund, and payable from time to time. Amounts payable by the Trust under and
pursuant to this Section 14 shall be payable by wire transfer to the Custodian at BBH&Co. in New
York, New York.
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 two (2) 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 (a) for cause, which is a
material breach of the Agreement not cured within 60 days, in which case termination shall be
effective upon written receipt of notice by the non-terminating party, or (b) upon thirty (30) days
written notice to the other party in the event that either party
28
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 Notice and Succession. In the event a termination notice is given by a party hereto,
all reasonable costs and expenses associated with any required systems, facilities, procedures,
personnel, and other resourced modifications as well as the movement of records and materials and
the conversion thereof shall be paid by the company for which Services shall cease to be performed
hereunder. Furthermore, to the extent that it appears impracticable given the circumstances to
effect an orderly delivery of the necessary and appropriate records of BBH to a successor within
the time specified in the notice of termination as aforesaid, BBH and the Company agree that this
Agreement shall remain in full force and effect for such reasonable period as may be required to
complete necessary arrangements with a successor.
15.3 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.
15.4 Delayed Succession. If no Instruction has been given as of the effective date of
termination, Custodian may at any time on or after such termination date and upon ten (10)
consecutive calendar days written notice to the Fund 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
$2,000,000 USD 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
29
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.
16. Compliance Policies and Procedures. To assist the Trust in complying with Rule 38a-1 of the
1940 Act, BBH&Co. represents that it has adopted written policies and procedures reasonably
designed to prevent violation of the federal securities laws in fulfilling its obligations under
the Agreement and that it has in place a compliance program to monitor its compliance with those
policies and procedures. BBH&Co will upon request provide the Trust with information about our
compliance program as mutually agreed.
30
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of
the date first above written.
The undersigned acknowledges that (I/we) have received a copy of this document
XXXXX BROTHERS XXXXXXXX & CO.
|
Quaker Investment Trust (the Trust), on behalf of its series listed on Schedule A hereto (the Funds) | ||||
By:
|
/s/ Xxxxx X. Xxxx | By: | /s/ Xxxxx X. Xxxxxx | ||
Name:
|
Xxxxx X. Xxxx | Name: | Xxxxx X. Xxxxxx | ||
Title:
|
Managing Director | Title: | Chairman | ||
Date:
|
August 21, 2006 | Date: | August 11, 2006 |
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FUNDS TRANSFER SERVICES SCHEDULE TO CUSTODIAN AGREEMENT
1. Execution of Payment Orders. Xxxxx Brothers Xxxxxxxx & Co. (the Custodian) is hereby
instructed by Quaker Investment Trust (the Trust), on behalf of its series listed on Schedule A
hereto (the Funds) 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
, 2006 by and between the Custodian and the Trust, 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 hereby elects 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 agrees and acknowledges 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 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 hereby elects (please choose one) the
following Security Procedure as described below:
[ ] | 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 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 notifies the Custodian that its password is not secure. | ||
[ ] | SWIFT. The Custodian 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. | ||
[ ] | Tested Telex. The Custodian will accept payment orders sent by tested telex, provided the test key matches the algorithmic key the Custodian and Fund have agreed to use. | ||
[ ] | Computer Transmission. The Custodian is able to accept transmissions sent from the Fund’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 between the Custodian and the Fund. | ||
[ ] | Telefax Instructions. A payment order transmitted to the Custodian by telefax transmission shall transmitted by the Fund to a telephone number specified from time to time by the Custodian for such purposes. If it detects no discrepancies, the Custodian will follow one of the procedures below. |
32
1. | If the telefax requests a repetitive payment order, the Custodian may call the Fund at its last known telephone number, request to speak to the Fund or Authorized Person, and confirm the authorization and the 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,
company name, telephone number, fax number, number of pages, and number of transactions or
instructions attached.
[ ] | 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 chooses a procedure which is not a Security Procedure as described above, the
Fund agrees to be bound by any payment order (whether or not authorized) issued in its name and
accepted by the Custodian in compliance with the procedure selected by the Fund.
3. Rejection of Payment Orders. The Custodian shall give the Fund 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 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 as specified in UCC 4A.
4. Cancellation of Payment Orders. The Fund 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, the Custodian is not responsible for detecting any Fund error contained in any
payment order sent by the Fund to the Custodian. In the event that the Fund’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 so
notifies the Custodian within thirty (30) business days following the Fund’s
33
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, 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 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.
7. Miscellaneous. All accounts opened by the Fund 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 AGREES TO INDEMNIFY THE CUSTODIAN AND ITS PARTNERS, OFFICERS
AND EMPLOYEES FOR ALL LOSSES THEREFROM.
OPTIONAL: The Custodian will perform a Callback if instructions are sent by telefax
or telephonic means as provided in Paragraph 2 above. THE FUND 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 INITIALLING HERE:
The undersigned acknowledges that (I/we) have received a copy of this document
Accepted and agreed:
XXXXX BROTHERS XXXXXXXX & CO.
|
Quaker Investment Trust (the Trust), on behalf of its series listed on Schedule A hereto (the Funds) | |
By: /s/ Xxxxx X. Xxxx
|
By: /s/ Xxxxx X. Xxxxxx | |
Name: Xxxxx X. Xxxx
|
Name: Xxxxx X. Xxxxxx | |
Title: Managing Director
|
Title: Chairman | |
Date: August 21, 2006
|
Date: August 11, 2006 |
34
ELECTRONIC AND ON-LINE SERVICES
SCHEDULE
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 between
Xxxxx Brothers Xxxxxxxx & Co. (we, us our) and Quaker Investment Trust (the Trust), on behalf of
its series listed on Schedule A hereto (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 ,
, 2006 (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. | ||
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 |
35
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.
36
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 prior notice; provided that we may terminate your access to the Services with no prior notice (i) if your account with us is closed, (ii) if you fail to comply with any of the terms of this Agreement, (iii) if we believe that your continued access to the Services poses a security risk, or (iv) if we believe that you are violating or have violated applicable laws, 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. | ||
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 Agreement. 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. |
37
The undersigned acknowledges that (I/we) have received a copy of this document
Quaker Investment Trust (the Trust), on behalf of its series listed on Schedule A hereto (the Funds) |
||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Title: | Chairman | |||
Date: | August 11, 2006 | |||
38