FORM OF CUSTODY AGREEMENT
Exhibit
23G
AGREEMENT,
dated as of ________________, 2006 between The Blue Fund, a business trust
organized and existing under the laws of the State of ** having its principal
office and place of business at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX 00000 (the “Fund”) and The Bank of New York, a New York corporation
authorized to do a banking business having its principal office and place of
business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(“Custodian”).
W
I T N E S S E T H:
that
for
and in consideration of the mutual promises hereinafter set forth the Fund
and
Custodian agree as follows:
ARTICLE
I
DEFINITIONS
Whenever
used in this Agreement, the following words shall have the meanings set forth
below:
1. “Authorized
Person”
shall be
any person, whether or not an officer or employee of the Fund, duly authorized
by the Fund’s board to execute any Certificate or to give any Oral Instruction
with respect to one or more Accounts, such persons to be designated in a
Certificate annexed hereto as Schedule I hereto or such other Certificate as
may
be received by Custodian from time to time.
2. “Custodian
Affiliate”
shall
mean any office, branch or subsidiary of The Bank of New York Company,
Inc.
3. “Book-Entry
System”
shall
mean the Federal Reserve/Treasury book-entry system for receiving and delivering
securities, its successors and nominees.
4. “Business
Day”
shall
mean any day on which Custodian and relevant Depositories are open for
business.
5. “Certificate”
shall
mean any notice, instruction, or other instrument in writing, authorized or
required by this Agreement to be given to Custodian, which is actually received
by Custodian by letter or facsimile transmission and signed on behalf of the
Fund by an Authorized Person or a person reasonably believed by Custodian to
be
an Authorized Person.
6. “Composite
Currency Unit”
shall
mean the Euro or any other composite currency unit consisting of the aggregate
of specified amounts of specified currencies, as such unit may be constituted
from time to time.
7. “Depository”
shall
include (a) the Book-Entry System, (b) the Depository Trust Company, (c) any
other clearing agency or securities depository registered with the Securities
and
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Exchange
Commission identified to the Fund from time to time, and (d) the respective
successors and nominees of the foregoing.
8. “Foreign
Depository”
shall
mean (a) Euroclear, (b) Clearstream Banking, societe anonyme, (c) each Eligible
Securities Depository as defined in Rule 17f-7 under the Investment Company
Act
of 1940, as amended, identified to the Fund from time to time, and
(d)
the respective successors and nominees of the foregoing.
9. “Instructions”
shall
mean communications
actually received by Custodian by S.W.I.F.T., tested telex, letter, facsimile
transmission, or other method or system specified by Custodian as available
for
use in connection with the services hereunder.
10. “Oral
Instructions”
shall
mean verbal instructions received by Custodian from an Authorized Person or
from
a person reasonably believed by Custodian to be an Authorized
Person.
11. “Series”
shall
mean the various portfolios, if any, of the Fund listed on Schedule II hereto,
and if none are listed references to Series shall be references to the
Fund.
12. “Securities”
shall
include, without limitation, any common stock and other equity securities,
bonds, debentures and other debt securities, notes, mortgages or other
obligations, and any instruments representing rights to receive, purchase,
or
subscribe for the same, or representing any other rights or interests therein
(whether represented by a certificate or held in a Depository or by a
Subcustodian).
13. “Subcustodian”
shall
mean a bank (including any branch thereof) or other financial institution (other
than a Foreign Depository) located outside the U.S. which is utilized by
Custodian in connection with the purchase, sale or custody of Securities
hereunder and identified to the Fund from time to time, and their respective
successors and nominees.
ARTICLE
II
APPOINTMENT
OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS,
WARRANTIES, AND COVENANTS
1. (a)The
Fund
hereby appoints Custodian as custodian of all Securities and cash at any time
delivered to Custodian during the term of this Agreement, and authorizes
Custodian to hold Securities in registered form in its name or the name of
its
nominees. Custodian hereby accepts such appointment and agrees to establish
and
maintain one or more securities accounts and cash accounts for each Series
in
which Custodian will hold Securities and cash as provided herein. Custodian
shall maintain books and records segregating the assets of each Series from
the
assets of any other Series. Such accounts (each, an “Account”; collectively, the
“Accounts”) shall be in the name of the Fund.
(b) Custodian
may from time to time establish on its books and records such sub-accounts
within each Account as the Fund and Custodian may agree upon (each a “Special
Account”), and Custodian shall reflect therein such assets as the Fund may
specify in a Certificate or Instructions.
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(c) Custodian
may from time to time establish pursuant to a written agreement with and for
the
benefit of a broker, dealer, future commission merchant or other third party
identified in a Certificate or Instructions such accounts on such terms and
conditions as the Fund and Custodian shall agree, and Custodian shall transfer
to such account such Securities and money as the Fund may specify in a
Certificate or Instructions.
2. The
Fund
hereby represents and warrants, which representations and warranties shall
be
continuing and shall be deemed to be reaffirmed upon each delivery of a
Certificate or each giving of Oral Instructions or Instructions by the Fund,
that:
(a) It
is
duly organized and existing under the laws of the jurisdiction of its
organization, with full power to carry on its business as now conducted, to
enter into this Agreement, and to perform its obligations
hereunder;
(b) This
Agreement has been duly authorized, executed and delivered by the Fund, approved
by a resolution of its board, constitutes a valid and legally binding obligation
of the Fund, enforceable in accordance with its terms, and there is no statute,
regulation, rule, order or judgment binding on it, and no provision of its
charter or by-laws, nor of any mortgage, indenture, credit agreement or other
contract binding on it or affecting its property, which would prohibit its
execution or performance of this Agreement;
(c) It
is
conducting its business in substantial compliance with all applicable laws
and
requirements, both state and federal, and has obtained all regulatory licenses,
approvals and consents necessary to carry on its business as now
conducted;
(d) It
will
not use the services provided by Custodian hereunder in any manner that is,
or
will result in, a violation of any law, rule or regulation applicable to the
Fund;
(e) Its
board
or its foreign custody manager, as defined in Rule 17f-5 under the Investment
Company Act of 1940, as amended (the “‘40 Act”), has determined that use of each
Subcustodian (including any Replacement Custodian) which Custodian is authorized
to utilize in accordance with Section 1(a) of Article III hereof satisfies
the
applicable requirements of the ‘40 Act and Rule 17f-5
thereunder;
(f) The
Fund
or its investment adviser has determined that the custody arrangements of each
Foreign Depository provide reasonable safeguards against the custody risks
associated with maintaining assets with such Foreign Depository within the
meaning of Rule 17f-7 under the ‘40 Act;
(g) It
is
fully informed of the protections and risks associated with various methods
of
transmitting Instructions and Oral Instructions and delivering Certificates
to
Custodian, shall, and shall cause each Authorized Person, to safeguard and
treat
with extreme care any user and authorization codes, passwords and/or
authentication keys, understands that there may be more secure methods of
transmitting or delivering the same than the methods selected by it, agrees
that
the security procedures (if any) to be followed in connection therewith provide
a commercially reasonable degree of protection in light of its particular needs
and
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circumstances,
and acknowledges and agrees that Instructions need not be reviewed by Custodian,
may conclusively be presumed by Custodian to have been given by person(s) duly
authorized, and may be acted upon as given;
(h) It
shall
manage its borrowings, including, without limitation, any advance or overdraft
(including any day-light overdraft) in the Accounts, so that the aggregate
of
its total borrowings for each Series does not exceed the amount such Series
is
permitted to borrow under the ‘40 Act;
(i) Its
transmission or giving of, and Custodian acting upon and in reliance on,
Certificates, Instructions, or Oral Instructions pursuant to this Agreement
shall at all times comply with the ‘40 Act;
(j) It
shall
impose and maintain restrictions on the destinations to which cash may be
disbursed by Instructions to ensure that each disbursement is for a proper
purpose; and
(k) It
has
the right to make the pledge and grant the security interest and security
entitlement to Custodian contained in Section 1 of Article V hereof, free of
any
right of redemption or prior claim of any other person or entity, such pledge
and such grants shall have a first priority subject to no setoffs,
counterclaims, or other liens or grants prior to or on a parity therewith,
and
it shall take such additional steps as Custodian may require to assure such
priority.
3. The
Fund
hereby covenants that it shall from time to time complete and execute and
deliver to Custodian upon Custodian’s request a Form FR U-1 (or successor form)
whenever the Fund borrows from Custodian any money to be used for the purchase
or carrying of margin stock as defined in Federal Reserve Regulation
U.
ARTICLE
III
CUSTODY
AND RELATED SERVICES
1. (a)Subject
to the terms hereof, the Fund hereby authorizes Custodian to hold any Securities
received by it from time to time for the Fund’s account. Custodian shall be
entitled to utilize, subject to subsection (c) of this Section 1, Depositories,
Subcustodians, and, subject to subsection (d) of this Section 1, Foreign
Depositories, to the extent possible in connection with its performance
hereunder. Securities and cash held in a Depository or Foreign Depository will
be held subject to the rules, terms and conditions of such entity. Securities
and cash held through Subcustodians shall be held subject to the terms and
conditions of Custodian’s agreements with such Subcustodians. Subcustodians may
be authorized to hold Securities in Foreign Depositories in which such
Subcustodians participate. Unless otherwise required by local law or practice
or
a particular subcustodian agreement, Securities deposited with a Subcustodian,
a
Depositary or a Foreign Depository will be held in a commingled account, in
the
name of Custodian, holding only Securities held by Custodian as custodian for
its customers. Custodian shall identify on its books and records the Securities
and cash belonging to the Fund, whether held directly or indirectly through
Depositories, Foreign Depositories, or Subcustodians. Custodian shall, directly
or indirectly through Subcustodians, Depositories, or Foreign Depositories,
endeavor, to the extent feasible, to hold Securities in the country or other
jurisdiction in which the principal
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trading
market for such Securities is located, where
such Securities are to be presented for cancellation and/or payment and/or
registration, or where such Securities are acquired. Custodian at any time
may
cease utilizing any Subcustodian and/or may replace a Subcustodian with a
different Subcustodian (the “Replacement Subcustodian”). In the event Custodian
selects a Replacement Subcustodian, Custodian shall not utilize such Replacement
Subcustodian until after the Fund’s board or foreign custody manager has
determined that utilization of such Replacement Subcustodian satisfies the
requirements of the ‘40 Act and Rule 17f-5 thereunder.
(b) Unless
Custodian has received a Certificate or Instructions to the contrary, Custodian
shall hold Securities indirectly through a Subcustodian only if (i) the
Securities are not subject to any right, charge, security interest, lien or
claim of any kind in favor of such Subcustodian or its creditors or operators,
including a receiver or trustee in bankruptcy or similar authority, except
for a
claim of payment for the safe custody or administration of Securities on behalf
of the Fund by such Subcustodian, and (ii) beneficial ownership of the
Securities is freely transferable without the payment of money or value other
than for safe custody or administration.
(c) With
respect to each Depository, Custodian (i) shall exercise due care in accordance
with reasonable commercial standards in discharging its duties as a securities
intermediary to obtain and thereafter maintain Securities or financial assets
deposited or held in such Depository, and (ii) will provide, promptly upon
request by the Fund, such reports as are available concerning the internal
accounting controls and financial strength of Custodian.
(d) With
respect to each Foreign Depository, Custodian shall exercise reasonable care,
prudence, and diligence (i) to provide the Fund with an analysis of the custody
risks associated with maintaining assets with the Foreign Depository, and (ii)
to monitor such custody risks on a continuing basis and promptly notify the
Fund
of any material change in such risks. The Fund acknowledges and agrees that
such
analysis and monitoring shall be made on the basis of, and limited by,
information gathered from Subcustodians or through publicly available
information otherwise obtained by Custodian, and shall not include any
evaluation of Country Risks. As used herein the term “Country Risks” shall mean
with respect to any Foreign Depository: (a) the financial infrastructure of
the
country in which it is organized, (b) such country’s prevailing custody and
settlement practices, (c) nationalization, expropriation or other governmental
actions, (d) such country’s regulation of the banking or securities industry,
(e) currency controls, restrictions, devaluations or fluctuations, and (f)
market conditions which affect the order execution of securities transactions
or
affect the value of securities.
2. Custodian
shall furnish the Fund with an advice of daily transactions (including a
confirmation of each transfer of Securities) and a monthly summary of all
transfers to or from the Accounts.
3. With
respect to all Securities held hereunder, Custodian shall, unless otherwise
instructed to the contrary:
(a) Receive
all income and other payments and advise the Fund as promptly as practicable
of
any such amounts due but not paid;
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(b) Present
for payment and receive the amount paid upon all Securities which may mature
and
advise the Fund as promptly as practicable of any such amounts due but not
paid;
(c) Forward
to the Fund copies of all information or documents that it may actually receive
from an issuer of Securities which, in the opinion of Custodian, are intended
for the beneficial owner of Securities;
(d) Execute,
as custodian, any certificates of ownership, affidavits, declarations or other
certificates under any tax laws now or hereafter in effect in connection with
the collection of bond and note coupons;
(e) Hold
directly or through a Depository, a Foreign Depository, or a Subcustodian all
rights and similar Securities issued with respect to any Securities credited
to
an Account hereunder; and
(f) Endorse
for collection checks, drafts or other negotiable instruments.
4. (a)Custodian
shall notify the Fund of rights or discretionary actions with respect to
Securities held hereunder, and of the date or dates by when such rights must
be
exercised or such action must be taken, provided that Custodian has actually
received, from the issuer or the relevant Depository (with respect to Securities
issued in the United States) or from the relevant Subcustodian, Foreign
Depository, or a nationally or internationally recognized bond or corporate
action service to which Custodian subscribes, timely notice of such rights
or
discretionary corporate action or of the date or dates such rights must be
exercised or such action must be taken. Absent actual receipt of such notice,
Custodian shall have no liability for failing to so notify the
Fund.
(b) Whenever
Securities (including, but not limited to, warrants, options, tenders, options
to tender or non-mandatory puts or calls) confer discretionary rights on the
Fund or provide for discretionary action or alternative courses of action by
the
Fund, the Fund shall be responsible for making any decisions relating thereto
and for directing Custodian to act. In order for Custodian to act, it must
receive the Fund’s Certificate or Instructions at Custodian’s offices, addressed
as Custodian may from time to time request, not later than noon (New York time)
at least two (2) Business Days prior to the last scheduled date to act with
respect to such Securities (or such earlier date or time as Custodian may
specify to the Fund). Absent Custodian’s timely receipt of such Certificate or
Instructions, Custodian shall not be liable for failure to take any action
relating to or to exercise any rights conferred by such Securities.
5. All
voting rights with respect to Securities, however registered, shall be exercised
by the Fund or its designee. Custodian will make available to the Fund proxy
voting services upon the request of, and for the jurisdictions selected by,
the
Fund in accordance with terms and conditions to be mutually agreed upon by
Custodian and the Fund.
6. Custodian
shall promptly advise the Fund upon Custodian’s actual receipt of notification
of the partial redemption, partial payment or other action affecting less than
all
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Securities
of the relevant class. If Custodian, any Subcustodian, any Depository, or any
Foreign Depository holds any Securities in which the Fund has an interest as
part of a fungible mass, Custodian, such Subcustodian, Depository, or Foreign
Depository may select the Securities to participate in such partial redemption,
partial payment or other action in any non-discriminatory manner that it
customarily uses to make such selection.
7. Custodian
shall not under any circumstances accept bearer interest coupons which have
been
stripped from United States federal, state or local government or agency
securities unless explicitly agreed to by Custodian in writing.
8. The
Fund
shall be liable for all taxes, assessments, duties and other governmental
charges, including any interest or penalty with respect thereto (“Taxes”), with
respect to any cash or Securities held on behalf of the Fund or any transaction
related thereto. The Fund shall indemnify Custodian and each Subcustodian for
the amount of any Tax that Custodian, any such Subcustodian or any other
withholding agent is required under applicable laws (whether by assessment
or
otherwise) to pay on behalf of, or in respect of income earned by or payments
or
distributions made to or for the account of the Fund (including any payment
of
Tax required by reason of an earlier failure to withhold). Custodian shall,
or
shall instruct the applicable Subcustodian or other withholding agent to,
withhold the amount of any Tax which is required to be withheld under applicable
law upon collection of any dividend, interest or other distribution made with
respect to any Security and any proceeds or income from the sale, loan or other
transfer of any Security. In the event that Custodian or any Subcustodian is
required under applicable law to pay any Tax on behalf of the Fund, Custodian
is
hereby authorized to withdraw cash from any cash account in the amount required
to pay such Tax and to use such cash, or to remit such cash to the appropriate
Subcustodian or other withholding agent, for the timely payment of such Tax
in
the manner required by applicable law. If the aggregate amount of cash in all
cash accounts is not sufficient to pay such Tax, Custodian shall promptly notify
the Fund of the additional amount of cash (in the appropriate currency)
required, and the Fund shall directly deposit such additional amount in the
appropriate cash account promptly after receipt of such notice, for use by
Custodian as specified herein. In the event that Custodian reasonably believes
that Fund is eligible, pursuant to applicable law or to the provisions of any
tax treaty, for a reduced rate of, or exemption from, any Tax which is otherwise
required to be withheld or paid on behalf of the Fund under any applicable
law,
Custodian shall, or shall instruct the applicable Subcustodian or withholding
agent to, either withhold or pay such Tax at such reduced rate or refrain from
withholding or paying such Tax, as appropriate; provided
that
Custodian shall have received from the Fund all documentary evidence of
residence or other qualification for such reduced rate or exemption required
to
be received under such applicable law or treaty. In the event that Custodian
reasonably believes that a reduced rate of, or exemption from, any Tax is
obtainable only by means of an application for refund, Custodian and the
applicable Subcustodian shall have no responsibility for the accuracy or
validity of any forms or documentation provided by the Fund to Custodian
hereunder. The Fund hereby agrees to indemnify and hold harmless Custodian
and
each Subcustodian in respect of any liability arising from any underwithholding
or underpayment of any Tax which results from the inaccuracy or invalidity
of
any such forms or other documentation, and such obligation to indemnify shall
be
a continuing obligation of the Fund, its successors and assigns notwithstanding
the termination of this Agreement.
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9. (a)For
the
purpose of settling Securities and foreign exchange transactions, the Fund
shall
provide Custodian with sufficient immediately available funds for all
transactions by such time and date as conditions in the relevant market dictate.
As used herein, “sufficient immediately available funds” shall mean either (i)
sufficient cash denominated in U.S. dollars to purchase the necessary foreign
currency, or (ii) sufficient applicable foreign currency, to settle the
transaction. Custodian shall provide the Fund with immediately available funds
each day which result from the actual settlement of all sale transactions,
based
upon advices received by Custodian from Subcustodians, Depositories, and Foreign
Depositories. Such funds shall be in U.S. dollars or such other currency as
the
Fund may specify to Custodian.
(b) Any
foreign exchange transaction effected by Custodian in connection with this
Agreement may be entered with Custodian or a Custodian Affiliate acting as
principal or otherwise through customary banking channels. The Fund may issue
a
standing Certificate or Instructions with respect to foreign exchange
transactions, but Custodian may establish rules or limitations concerning any
foreign exchange facility made available to the Fund. The Fund shall bear all
risks of investing in Securities or holding cash denominated in a foreign
currency.
(c) To
the
extent that Custodian has agreed to provide pricing or other information
services in connection with this Agreement, Custodian is authorized to utilize
any vendor (including brokers and dealers of Securities) reasonably believed
by
Custodian to be reliable to provide such information. The Fund understands
that
certain pricing information with respect to complex financial instruments
(e.g.,
derivatives) may be based on calculated amounts rather than actual market
transactions and may not reflect actual market values, and that the variance
between such calculated amounts and actual market values may or may not be
material. Where vendors do not provide information for particular Securities
or
other property, an Authorized Person may advise Custodian in a Certificate
regarding the fair market value of, or provide other information with respect
to, such Securities or property as determined by it in good faith. Custodian
shall not be liable for any loss, damage or expense incurred as a result of
errors or omissions with respect to any pricing or other information utilized
by
Custodian hereunder.
10. Until
such time as Custodian receives a certificate to the contrary with respect
to a
particular Security, Custodian may release the identity of the Fund to an issuer
which requests such information pursuant to the Shareholder Communications
Act
of 1985 for the specific purpose of direct communications between such issuer
and shareholder.
ARTICLE
IV
PURCHASE
AND SALE OF SECURITIES;
CREDITS
TO ACCOUNT
1. Promptly
after each purchase or sale of Securities by the Fund, the Fund shall deliver
to
Custodian a Certificate or Instructions, or with respect to a purchase or sale
of a Security generally required to be settled on the same day the purchase
or
sale is made, Oral Instructions specifying all information Custodian may
reasonably request to settle such purchase or sale. Custodian shall account
for
all purchases and sales of Securities on the actual settlement date unless
otherwise agreed by Custodian.
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2. The
Fund
understands that when Custodian is instructed to deliver Securities against
payment, delivery of such Securities and receipt of payment therefor may not
be
completed simultaneously. Notwithstanding any provision in this Agreement to
the
contrary, settlements, payments and deliveries of Securities may be effected
by
Custodian or any Subcustodian in accordance with the customary or established
securities trading or securities processing practices and procedures in the
jurisdiction in which the transaction occurs, including, without limitation,
delivery to a purchaser or dealer therefor (or agent) against receipt with
the
expectation of receiving later payment for such Securities. The Fund assumes
full responsibility for all risks, including, without limitation, credit risks,
involved in connection with such deliveries of Securities.
3. Custodian
may, as a matter of bookkeeping convenience or by separate agreement with the
Fund, credit the Account with the proceeds from the sale, redemption or other
disposition of Securities or interest, dividends or other distributions payable
on Securities prior to its actual receipt of final payment therefor. All such
credits shall be conditional until Custodian’s actual receipt of final payment
and may be reversed by Custodian to the extent that final payment is not
received. Payment with respect to a transaction will not be “final” until
Custodian shall have received immediately available funds which under applicable
local law, rule and/or practice are irreversible and not subject to any security
interest, levy or other encumbrance, and which are specifically applicable
to
such transaction.
ARTICLE
V
OVERDRAFTS
OR INDEBTEDNESS
1. If
Custodian should in its sole discretion advance funds on behalf of any Series
which results in an overdraft (including, without limitation, any day-light
overdraft) because the money held by Custodian in an Account for such Series
shall be insufficient to pay the total amount payable upon a purchase of
Securities specifically allocated to such Series, as set forth in a Certificate,
Instructions or Oral Instructions, or if an overdraft arises in the separate
account of a Series for some other reason, including, without limitation,
because of a reversal of a conditional credit or the purchase of any currency,
or if the Fund is for any other reason indebted to Custodian with respect to
a
Series, including any indebtedness to The Bank of New York under the Fund’s Cash
Management and Related Services Agreement (except a borrowing for investment
or
for temporary or emergency purposes using Securities as collateral pursuant
to a
separate agreement and subject to the provisions of Section 2 of this Article),
such overdraft or indebtedness shall be deemed to be a loan made by Custodian
to
the Fund for such Series payable on demand and shall bear interest from the
date
incurred at a rate per annum ordinarily charged by Custodian to its
institutional customers, as such rate may be adjusted from time to time.
In addition, the Fund hereby agrees that Custodian shall to the maximum extent
permitted by law have a continuing lien, security interest, and security
entitlement in and to any property, including, without limitation, any
investment property or any financial asset, of such Series at any time held
by
Custodian for the benefit of such Series or in which such Series may have an
interest which is then in Custodian’s possession or control or in possession or
control of any third party acting in Custodian’s behalf. The Fund
authorizes Custodian, in its sole discretion, at any time to charge any such
overdraft or indebtedness together with interest due thereon against any balance
of account standing to such Series’ credit on Custodian’s books.
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2. If
the
Fund borrows money from any bank (including Custodian if the borrowing is
pursuant to a separate agreement) for investment or for temporary or emergency
purposes using Securities held by Custodian hereunder as collateral for such
borrowings, the Fund shall deliver to Custodian a Certificate specifying with
respect to each such borrowing: (a) the Series to which such borrowing relates;
(b) the name of the bank, (c) the amount of the borrowing, (d) the time and
date, if known, on which the loan is to be entered into, (e) the total amount
payable to the Fund on the borrowing date, (f) the Securities to be delivered
as
collateral for such loan, including the name of the issuer, the title and the
number of shares or the principal amount of any particular Securities, and
(g) a
statement specifying whether such loan is for investment purposes or for
temporary or emergency purposes and that such loan is in conformance with the
‘40 Act and the Fund’s prospectus. Custodian shall deliver on the borrowing date
specified in a Certificate the specified collateral against payment by the
lending bank of the total amount of the loan payable, provided that the same
conforms to the total amount payable as set forth in the Certificate.
Custodian may, at the option of the lending bank, keep such collateral in its
possession, but such collateral shall be subject to all rights therein given
the
lending bank by virtue of any promissory note or loan agreement. Custodian
shall
deliver such Securities as additional collateral as may be specified in a
Certificate to collateralize further any transaction described in this Section.
The Fund shall cause all Securities released from collateral status to be
returned directly to Custodian, and Custodian shall receive from time to time
such return of collateral as may be tendered to it. In the event that the
Fund fails to specify in a Certificate the Series, the name of the issuer,
the
title and number of shares or the principal amount of any particular Securities
to be delivered as collateral by Custodian, Custodian shall not be under any
obligation to deliver any Securities.
ARTICLE
VI
SALE
AND REDEMPTION OF SHARES
1. Whenever
the Fund shall sell any shares issued by the Fund (“Shares”) it shall deliver to
Custodian a Certificate or Instructions specifying the amount of money and/or
Securities to be received by Custodian for the sale of such Shares and
specifically allocated to an Account for such Series.
2. Upon
receipt of such money, Custodian shall credit such money to an Account in the
name of the Series for which such money was received.
3. Except
as
provided hereinafter, whenever the Fund desires Custodian to make payment out
of
the money held by Custodian hereunder in connection with a redemption of any
Shares, it shall furnish to Custodian a Certificate or Instructions specifying
the total amount to be paid for such Shares. Custodian shall make payment of
such total amount to the transfer agent specified in such Certificate or
Instructions out of the money held in an Account of the appropriate
Series.
4. Notwithstanding
the above provisions regarding the redemption of any Shares, whenever any Shares
are redeemed pursuant to any check redemption privilege which may from time
to
time be offered by the Fund, Custodian, unless otherwise instructed by a
Certificate or Instructions, shall, upon presentment of such check, charge
the
amount thereof against the money
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held
in
the Account of the Series of the Shares being redeemed, provided, that if the
Fund or its agent timely advises Custodian that such check is not to be honored,
Custodian shall return such check unpaid.
ARTICLE
VII
PAYMENT
OF DIVIDENDS OR DISTRIBUTIONS
1. Whenever
the Fund shall determine to pay a dividend or distribution on Shares it shall
furnish to Custodian Instructions or a Certificate setting forth with respect
to
the Series specified therein the date of the declaration of such dividend or
distribution, the total amount payable, and the payment date.
2. Upon
the
payment date specified in such Instructions or Certificate, Custodian shall
pay
out of the money held for the account of such Series the total amount payable
to
the dividend agent of the Fund specified therein.
ARTICLE
VIII
CONCERNING
CUSTODIAN
1. (a)Except
as
otherwise expressly provided herein, Custodian shall not be liable for any
costs, expenses, damages, liabilities or claims, including attorneys’ and
accountants’ fees (collectively, “Losses”), incurred by or asserted against the
Fund, except those Losses arising out of Custodian’s own negligence or willful
misconduct. Custodian shall have no liability whatsoever for the action or
inaction of any Depositories or of any Foreign Depositories, except in each
case
to the extent such action or inaction is a direct result of the Custodian’s
failure to fulfill its duties hereunder. With respect to any Losses incurred
by
the Fund as a result of the acts or any failures to act by any Subcustodian
(other than a Custodian Affiliate), Custodian shall take appropriate action
to
recover such Losses from such Subcustodian; and Custodian’s sole responsibility
and liability to the Fund shall be limited to amounts so received from such
Subcustodian (exclusive of costs and expenses incurred by Custodian). In no
event shall Custodian be liable to the Fund or any third party for special,
indirect or consequential damages, or lost profits or loss of business, arising
in connection with this Agreement, nor shall Custodian or any Subcustodian
be
liable: (i)
for
acting in accordance with any Certificate or Oral Instructions actually received
by Custodian and reasonably believed by Custodian to be given by an Authorized
Person; (ii)
for
acting in accordance with Instructions without reviewing the same; (iii)
for
conclusively presuming that all Instructions are given only by person(s) duly
authorized; (iv)
for
conclusively presuming that all disbursements of cash directed by the Fund,
whether by a Certificate, an Oral Instruction, or an Instruction, are in
accordance with Section 2(i) of Article II hereof; (v)
for
holding property in any particular country, including, but not limited to,
Losses resulting from nationalization, expropriation or other governmental
actions; regulation of the banking or securities industry; exchange or currency
controls or restrictions, devaluations or fluctuations; availability of cash
or
Securities or market conditions which prevent the transfer of property or
execution of Securities transactions or affect the value of property;
(vi)
for any
Losses due to forces beyond the control of Custodian, including without
limitation strikes, work stoppages, acts of war or terrorism, insurrection,
revolution, nuclear or natural catastrophes or acts of God, or interruptions,
loss or malfunctions of utilities, communications or computer
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(software
and hardware) services; (vii) for the insolvency of any Subcustodian (other
than
a Custodian Affiliate), any Depository, or, except to the extent such action
or
inaction is a direct result of the Custodian’s failure to fulfill its duties
hereunder, any Foreign Depository; or (viii)
for any
Losses arising from the applicability of any law or regulation now or hereafter
in effect, or from the occurrence of any event, including, without limitation,
implementation or adoption of any rules or procedures of a Foreign Depository,
which may affect, limit, prevent or impose costs or burdens on, the
transferability, convertibility, or availability of any currency or Composite
Currency Unit in any country or on the transfer of any Securities, and in no
event shall Custodian be obligated to substitute another currency for a currency
(including a currency that is a component of a Composite Currency Unit) whose
transferability, convertibility or availability has been affected, limited,
or
prevented by such law, regulation or event, and to the extent that any such
law,
regulation or event imposes a cost or charge upon Custodian in relation to
the
transferability, convertibility, or availability of any cash currency or
Composite Currency Unit, such cost or charge shall be for the account of the
Fund, and Custodian may treat any account denominated in an affected currency
as
a group of separate accounts denominated in the relevant component
currencies.
(b) Custodian
may enter into subcontracts, agreements and understandings with any Custodian
Affiliate, whenever and on such terms and conditions as it deems necessary
or
appropriate to perform its services hereunder. No such subcontract, agreement
or
understanding shall discharge Custodian from its obligations
hereunder.
(c) The
Fund
agrees to indemnify Custodian and hold Custodian harmless from and against
any
and all Losses sustained or incurred by or asserted against Custodian by reason
of or as a result of any action or inaction, or arising out of Custodian’s
performance hereunder, including reasonable fees and expenses of counsel
incurred by Custodian in a successful defense of claims by the Fund; provided
however, that the Fund shall not indemnify Custodian for those Losses arising
out of Custodian’s own negligence or willful misconduct. This indemnity shall be
a continuing obligation of the Fund, its successors and assigns, notwithstanding
the termination of this Agreement.
2. Without
limiting the generality of the foregoing, Custodian shall be under no obligation
to inquire into, and shall not be liable for:
(a) Any
Losses incurred by the Fund or any other person as a result of the receipt
or
acceptance of fraudulent, forged or invalid Securities, or Securities which
are
otherwise not freely transferable or deliverable without encumbrance in any
relevant market;
(b) The
validity of the issue of any Securities purchased, sold, or written by or for
the Fund, the legality of the purchase, sale or writing thereof, or the
propriety of the amount paid or received therefor;
(c) The
legality of the sale or redemption of any Shares, or the propriety of the amount
to be received or paid therefor;
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(d) The
legality of the declaration or payment of any dividend or distribution by the
Fund;
(e) The
legality of any borrowing by the Fund;
(f) The
legality of any loan of portfolio Securities, nor shall Custodian be under
any
duty or obligation to see to it that any cash or collateral delivered to it
by a
broker, dealer or financial institution or held by it at any time as a result
of
such loan of portfolio Securities is adequate security for the Fund against
any
loss it might sustain as a result of such loan, which duty or obligation shall
be the sole responsibility of the Fund. In addition, Custodian shall be under
no
duty or obligation to see that any broker, dealer or financial institution
to
which portfolio Securities of the Fund are lent makes payment to it of any
dividends or interest which are payable to or for the account of the Fund during
the period of such loan or at the termination of such loan, provided, however
that Custodian shall promptly notify the Fund in the event that such dividends
or interest are not paid and received when due;
(g) The
sufficiency or value of any amounts of money and/or Securities held in any
Special Account in connection with transactions by the Fund; whether any broker,
dealer, futures commission merchant or clearing member makes payment to the
Fund
of any variation margin payment or similar payment which the Fund may be
entitled to receive from such broker, dealer, futures commission merchant or
clearing member, or whether any payment received by Custodian from any broker,
dealer, futures commission merchant or clearing member is the amount the Fund
is
entitled to receive, or to notify the Fund of Custodian’s receipt or non-receipt
of any such payment; or
(h) Whether
any Securities at any time delivered to, or held by it or by any Subcustodian,
for the account of the Fund and specifically allocated to a Series are such
as
properly may be held by the Fund or such Series under the provisions of its
then
current prospectus and statement of additional information, or to ascertain
whether any transactions by the Fund, whether or not involving Custodian, are
such transactions as may properly be engaged in by the Fund.
3. Custodian
may, with respect to questions of law specifically regarding an Account, obtain
the advice of counsel and shall be fully protected with respect to anything
done
or omitted by it in good faith in conformity with such advice.
4. Custodian
shall be under no obligation to take action to collect any amount payable on
Securities in default, or if payment is refused after due demand and
presentment.
5. Custodian
shall have no duty or responsibility to inquire into, make recommendations,
supervise, or determine the suitability of any transactions affecting any
Account.
6. The
Fund
shall pay to Custodian the fees and charges as may be specifically agreed upon
from time to time and such other fees and charges at Custodian’s standard rates
for such services as may be applicable. The Fund shall reimburse Custodian
for
all costs associated with
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the
conversion of the Fund’s Securities hereunder and the transfer of Securities and
records kept in connection with this Agreement. The Fund shall also reimburse
Custodian for out-of-pocket expenses which are a normal incident of the services
provided hereunder.
7. Custodian
has the right to debit any cash account for any amount payable by the Fund
in
connection with any and all obligations of the Fund to Custodian. In addition
to
the rights of Custodian under applicable law and other agreements, at any time
when the Fund shall not have honored any of its obligations to Custodian,
Custodian shall have the right without notice to the Fund to retain or set-off,
against such obligations of the Fund, any Securities or cash Custodian or a
Custodian Affiliate may directly or indirectly hold for the account of the
Fund,
and any obligations (whether matured or unmatured) that Custodian or a Custodian
Affiliate may have to the Fund in any currency or Composite Currency Unit.
Any
such asset of, or obligation to, the Fund may be transferred to Custodian and
any Custodian Affiliate in order to effect the above rights.
8. The
Fund
agrees to forward to Custodian a Certificate or Instructions confirming Oral
Instructions by the close of business of the same day that such Oral
Instructions are given to Custodian. The Fund agrees that the fact that such
confirming Certificate or Instructions are not received or that a contrary
Certificate or contrary Instructions are received by Custodian shall in no
way
affect the validity or enforceability of transactions authorized by such Oral
Instructions and effected by Custodian. If the Fund elects to transmit
Instructions through an on-line communications system offered by Custodian,
the
Fund’s use thereof shall be subject to the Terms and Conditions attached as
Appendix I hereto. If Custodian receives Instructions which appear on their
face
to have been transmitted by an Authorized Person via (i) computer facsimile,
email, the Internet or other insecure electronic method, or (ii) secure
electronic transmission containing applicable authorization codes, passwords
and/or authentication keys, the Fund understands and agrees that Custodian
cannot determine the identity of the actual sender of such Instructions and
that
Custodian shall conclusively presume that such Written Instructions have been
sent by an Authorized Person, and the Fund shall be responsible for ensuring
that only Authorized Persons transmit such Instructions to Custodian. If the
Fund elects (with Custodian’s prior consent) to transmit Instructions through an
on-line communications service owned or operated by a third party, the Fund
agrees that Custodian shall not be responsible or liable for the reliability
or
availability of any such service.
9. The
books
and records pertaining to the Fund which are in possession of Custodian shall
be
the property of the Fund. Such books and records shall be prepared and
maintained as required by the ‘40 Act and the rules thereunder. The Fund, or its
authorized representatives, shall have access to such books and records during
Custodian’s normal business hours. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by Custodian to the
Fund
or its authorized representative. Upon the reasonable request of the Fund,
Custodian shall provide in hard copy or on computer disc any records included
in
any such delivery which are maintained by Custodian on a computer disc, or
are
similarly maintained.
10. It
is
understood that Custodian is authorized to supply any information regarding
the
Accounts which is required by any law, regulation or rule now or hereafter
in
effect. The Custodian shall provide the Fund with any report obtained by the
Custodian on the system of
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internal
accounting control of a Depository, and with such reports on its own system
of
internal accounting control as the Fund may reasonably request from time to
time.
11. Custodian
shall have no duties or responsibilities whatsoever except such duties and
responsibilities as are specifically set forth in this Agreement, and no
covenant or obligation shall be implied against Custodian in connection with
this Agreement.
ARTICLE
IX
TERMINATION
1. Either
of
the parties hereto may terminate this Agreement by giving to the other party
a
notice in writing specifying the date of such termination, which shall be not
less than ninety (90) days after the date of giving of such notice. In the
event such notice is given by the Fund, it shall be accompanied by a copy of
a
resolution of the board of the Fund, certified by the Secretary or any Assistant
Secretary, electing to terminate this Agreement and designating a successor
custodian or custodians, each of which shall be a bank or trust company having
not less than $2,000,000 aggregate capital, surplus and undivided profits.
In the event such notice is given by Custodian, the Fund shall, on or before
the
termination date, deliver to Custodian a copy of a resolution of the board
of
the Fund, certified by the Secretary or any Assistant Secretary, designating
a
successor custodian or custodians. In the absence of such designation by
the Fund, Custodian may designate a successor custodian which shall be a bank
or
trust company having not less than $2,000,000 aggregate capital, surplus and
undivided profits. Upon the date set forth in such notice this Agreement
shall terminate, and Custodian shall upon receipt of a notice of acceptance
by
the successor custodian on that date deliver directly to the successor custodian
all Securities and money then owned by the Fund and held by it as Custodian,
after deducting all fees, expenses and other amounts for the payment or
reimbursement of which it shall then be entitled.
2. If
a
successor custodian is not designated by the Fund or Custodian in accordance
with the preceding Section, the Fund shall upon the date specified in the notice
of termination of this Agreement and upon the delivery by Custodian of all
Securities (other than Securities which cannot be delivered to the Fund) and
money then owned by the Fund be deemed to be its own custodian and Custodian
shall thereby be relieved of all duties and responsibilities pursuant to this
Agreement, other than the duty with respect to Securities which cannot be
delivered to the Fund to hold such Securities hereunder in accordance with
this
Agreement.
ARTICLE
X
MISCELLANEOUS
1. The
Fund
agrees to furnish to Custodian a new Certificate of Authorized Persons in the
event of any change in the then present Authorized Persons. Until such new
Certificate is received, Custodian shall be fully protected in acting upon
Certificates or Oral Instructions of such present Authorized
Persons.
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2. Any
notice or other instrument in writing, authorized or required by this Agreement
to be given to Custodian, shall be sufficiently given if addressed to Custodian
and received by it at its offices at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as Custodian may from time to time designate in
writing.
3. Any
notice or other instrument in writing, authorized or required by this Agreement
to be given to the Fund shall be sufficiently given if addressed to the Fund
and
received by it at its offices at ***, or at such other place as the Fund may
from time to time designate in writing.
4. Each
and
every right granted to either party hereunder or under any other document
delivered hereunder or in connection herewith, or allowed it by law or equity,
shall be cumulative and may be exercised from time to time. No failure on the
part of either party to exercise, and no delay in exercising, any right will
operate as a waiver thereof, nor will any single or partial exercise by either
party of any right preclude any other or future exercise thereof or the exercise
of any other right.
5. In
case
any provision in or obligation under this Agreement shall be invalid, illegal
or
unenforceable in any exclusive jurisdiction, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
thereby. This Agreement may not be amended or modified in any manner except
by a
written agreement executed by both parties, except that any amendment to the
Schedule I hereto need be signed only by the Fund and any amendment to Appendix
I hereto need be signed only by Custodian. This Agreement shall extend to and
shall be binding upon the parties hereto, and their respective successors and
assigns; provided, however, that this Agreement shall not be assignable by
either party without the written consent of the other.
6. This
Agreement shall be construed in accordance with the substantive laws of the
State of New York, without regard to conflicts of laws principles thereof.
The
Fund and Custodian hereby consent to the jurisdiction of a state or federal
court situated in New York City, New York in connection with any dispute arising
hereunder. The Fund hereby irrevocably waives, to the fullest extent permitted
by applicable law, any objection which it may now or hereafter have to the
laying of venue of any such proceeding brought in such a court and any claim
that such proceeding brought in such a court has been brought in an inconvenient
forum. The Fund and Custodian each hereby irrevocably waives any and all rights
to trial by jury in any legal proceeding arising out of or relating to this
Agreement.
7. The
Fund
hereby
acknowledges that Custodian is subject to federal laws, including the Customer
Identification Program (CIP) requirements under the USA PATRIOT Act and its
implementing regulations, pursuant to which Custodian must obtain, verify and
record information that allows Custodian to identify the Fund. Accordingly,
prior to opening an Account hereunder Custodian will ask the Fund to provide
certain information including, but not limited to, the Fund’s name, physical
address, tax identification number and other information that will help
Custodian to identify and verify the Fund’s identity such as organizational
documents, certificate of good standing, license to do business, or other
pertinent identifying information. The Fund agrees that Custodian cannot open
an
Account hereunder unless and until Custodian verifies the Fund’s identity in
accordance with its CIP.
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8. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but such counterparts shall, together, constitute
only
one instrument.
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17
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IN
WITNESS WHEREOF,
the
Fund and Custodian have caused this Agreement to be executed by their respective
officers, thereunto duly authorized, as of the day and year first above
written.
The
Blue Fund Group
By:
Blue
Investment Management
By:_________________________
Title:
Tax
Identification No:
THE
BANK
OF NEW YORK
By:_________________________
Title:
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SCHEDULE
I
CERTIFICATE
OF AUTHORIZED PERSONS
(The
Fund - Oral and Written Instructions)
The
undersigned hereby certifies that he/she is the duly elected and acting
________________________ of The Blue Fund (the “Fund”), and further certifies
that the following officers or employees of the Fund have been duly authorized
in conformity with the Fund’s Declaration of Trust and By-Laws to deliver
Certificates and Oral Instructions to The Bank of New York (“Custodian”)
pursuant to the Custody Agreement between the Fund and Custodian dated
_______________, and that the signatures appearing opposite their names are
true
and correct:
|
|
|
|
________________________
Name
|
_______________________
Title
|
_______________________
Signature
|
|
________________________
Name
|
_______________________
Title
|
_______________________
Signature
|
|
________________________
Name
|
_______________________
Title
|
_______________________
Signature
|
|
________________________
Name
|
_______________________
Title
|
_______________________
Signature
|
|
________________________
Name
|
_______________________
Title
|
_______________________
Signature
|
|
________________________
Name
|
_______________________
Title
|
_______________________
Signature
|
|
________________________
Name
|
_______________________
Title
|
_______________________
Signature
|
This
certificate supersedes any certificate of Authorized Persons you may currently
have on file.
[seal]
By:_______________________________
Title:
Date:
SCHEDULE
II
SERIES
APPENDIX
I
ELECTRONIC
SERVICES TERMS AND CONDITIONS
1. License;
Use.
(a)
This Appendix I shall govern the Fund’s use of electronic communications,
information delivery, portfolio management and banking services, that The Bank
of New York and its affiliates (“Custodian”) may provide to the Fund, such as
The Bank of New York Inform ™ and The Bank of New York CA$H-Register
Plus®,
and any
computer software, proprietary data and documentation provided by Custodian
to
the Fund in connection therewith (collectively, the “Electronic
Services”).
In the
event of any conflict between the terms of this Appendix I and the main body
of
this Agreement with respect to the Fund’s use of the Electronic Services, the
terms of this Appendix I shall control.
(b)
Custodian grants to the Fund a personal, nontransferable and nonexclusive
license to use the Electronic Services to which the Fund subscribes solely
for
the purpose of transmitting instructions and information (“Written
Instructions”), obtaining reports, analyses and statements and other information
and data, making inquiries and otherwise communicating with Custodian in
connection with the Fund’s relationship with Custodian. The Fund shall use the
Electronic Services solely for its own internal and proper business purposes
and
not in the operation of a service bureau. Except as set forth herein, no license
or right of any kind is granted to with respect to the Electronic Services.
The
Fund acknowledges that Custodian and its suppliers retain and have title and
exclusive proprietary rights to the Electronic Services, including any trade
secrets or other ideas, concepts, know-how, methodologies, and information
incorporated therein and the exclusive rights to any copyrights, trade dress,
look and feel, trademarks and patents (including registrations and applications
for registration of either), and other legal protections available in respect
thereof. The Fund further acknowledges that all or a part of the Electronic
Services may be copyrighted or trademarked (or a registration or claim made
therefor) by Custodian or its suppliers. The Fund shall not take any action
with
respect to the Electronic Services inconsistent with the foregoing
acknowledgments, nor shall the Fund attempt to decompile, reverse engineer
or
modify the Electronic Services. The Fund may not copy, distribute, sell, lease
or provide, directly or indirectly, the Electronic Services or any portion
thereof to any other person or entity without Custodian’s prior written consent.
The Fund may not remove any statutory copyright notice or other notice included
in the Electronic Services. The Fund shall reproduce any such notice on any
reproduction of any portion of the Electronic Services and shall add any
statutory copyright notice or other notice upon Custodian’s
request.
(c)
Portions of the Electronic Services may contain, deliver or rely on data
supplied by third parties (“Third Party Data”), such as pricing data and
indicative data, and services supplied by third parties (“Third Party Services”)
such as analytic and accounting services. Third Party Data and Third Party
Services supplied hereunder are
obtained
from sources that Custodian believes to be reliable but are provided without
any
independent investigation by Custodian. Custodian and its suppliers do not
represent or warrant that the Third Party Data or Third Party Services are
correct, complete or current. Third Party Data and Third Party Services are
proprietary to their suppliers, are provided solely for the Fund’s internal use,
and may not be reused, disseminated or redistributed in any form. The Fund
shall
not use any Third Party Data in any manner that would act as a substitute for
obtaining a license for the data directly from the supplier. Third Party Data
and Third Party Services should not be used in making any investment decision.
CUSTODIAN AND ITS SUPPLIERS ARE NOT RESPONSIBLE FOR ANY RESULTS OBTAINED FROM
THE USE OF OR RELIANCE UPON THIRD PARTY DATA OR THIRD PARTY SERVICES.
Custodian’s suppliers of Third Party Data and Services are intended third party
beneficiaries of this Section 1(c) and Section 5 below.
(d)
The
Fund understands and agrees that any links in the Electronic Services to
Internet sites may be to sites sponsored and maintained by third parties.
Custodian make no guarantees, representations or warranties concerning the
information contained in any third party site (including without limitation
that
such information is correct, current, complete or free of viruses or other
contamination), or any products or services sold through third party sites.
All
such links to third party Internet sites are provided solely as a convenience
to
the Fund and the Fund accesses and uses such sites at its own risk. A link
in
the Electronic Services to a third party site does not constitute Custodian’s
endorsement, authorisation or sponsorship of such site or any products and
services available from such site.
2. Equipment.
The
Fund shall obtain and maintain at its own cost and expense all equipment and
services, including but not limited to communications services, necessary for
it
to utilize and obtain access to the Electronic Services, and Custodian shall
not
be responsible for the reliability or availability of any such equipment or
services.
3. Proprietary
Information.
The
Electronic Services, and any proprietary data (including Third Party Data),
processes, software, information and documentation made available to the Fund
(other than which are or become part of the public domain or are legally
required to be made available to the public) (collectively, the "Information"),
are the exclusive and confidential property of Custodian or its suppliers.
However, for the avoidance of doubt, reports generated by the Fund containing
information relating to its account(s) (except for Third Party Data contained
therein) are not deemed to be within the meaning of the term “Information.” The
Fund shall keep the Information confidential by using the same care and
discretion that the Fund uses with respect to its own confidential property
and
trade secrets, but not less than reasonable care. Upon termination of the
Agreement or the licenses granted herein for any reason, the Fund shall return
to Custodian any and all copies of the Information which are in its possession
or under its control (except that the Fund may retain reports containing Third
Party Data, provided
that
such
Third Party Data remains subject to the provisions of this Appendix). The
provisions of this Section 3 shall not affect the copyright status of any of
the
Information which may be copyrighted and shall apply to all information whether
or not copyrighted.
4. Modifications.
Custodian reserves the right to modify the Electronic Services from time to
time. The Fund agrees not to modify or attempt to modify the Electronic Services
without Custodian's prior written consent. The Fund acknowledges that any
modifications to the Electronic Services, whether by the Fund or Custodian
and
whether with or without Custodian's consent, shall become the property of
Custodian.
5. NO
REPRESENTATIONS OR WARRANTIES; LIMITATION OF LIABILITY.
CUSTODIAN AND ITS MANUFACTURERS AND SUPPLIERS MAKE NO WARRANTIES OR
REPRESENTATIONS WITH RESPECT TO THE ELECTRONIC SERVICES OR ANY THIRD PARTY
DATA
OR THIRD PARTY SERVICES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT
NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS
FOR A
PARTICULAR PURPOSE. THE FUND ACKNOWLEDGES THAT THE ELECTRONIC SERVICES, THIRD
PARTY DATA AND THIRD PARTY SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE
LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT SPECIAL, OR CONSEQUENTIAL,
WHICH CUSTOMER MAY INCUR IN CONNECTION WITH THE ELECTRONIC SERVICES, THIRD
PARTY
DATA OR THIRD PARTY SERVICES, EVEN IF CUSTODIAN OR SUCH SUPPLIER KNEW OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE
LIABLE FOR ACTS OF GOD, MACHINE OR COMPUTER BREAKDOWN OR MALFUNCTION,
INTERRUPTION OR MALFUNCTION OF COMMUNICATION FACILITIES, LABOR DIFFICULTIES
OR
ANY OTHER SIMILAR OR DISSIMILAR CAUSE BEYOND THEIR REASONABLE
CONTROL.
6. Security;
Reliance; Unauthorized Use; Funds Transfers.
Custodian will establish security procedures to be followed in connection with
the use of the Electronic Services, and the Fund agrees to comply with the
security procedures. The Fund understands and agrees that the security
procedures are intended to determine whether instructions received by Custodian
through the Electronic Services are authorized but are not (unless otherwise
specified in writing) intended to detect any errors contained in such
instructions. The Fund will cause all persons utilizing the Electronic Services
to treat any user and authorization codes, passwords, authentication keys and
other security devices with the highest degree of care and confidentiality.
Upon
termination of the Fund’s use of the Electronic Services, the Fund shall return
to Custodian any security devices (e.g., token cards) provided by Custodian.
Custodian is hereby irrevocably authorized to comply with and rely upon on
Written Instructions and other communications, whether or not authorized,
received by it through the Electronic Services. The Fund acknowledges
that
it
has sole responsibility for ensuring that only Authorized Persons use the
Electronic Services and that to the fullest extent permitted by applicable
law
Custodian shall not be responsible nor liable for any unauthorized use thereof
or for any losses sustained by the Fund arising from or in connection with
the
use of the Electronic Services or Custodian’s reliance upon and compliance with
Written Instructions and other communications received through the Electronic
Services. With respect to instructions for a transfer of funds issued through
the Electronic Services, when instructed to credit or pay a party by both name
and a unique numeric or alpha-numeric identifier (e.g. ABA number or account
number), the Custodian, its affiliates, and any other bank participating in
the
funds transfer, may rely solely on the unique identifier, even if it identifies
a party different than the party named. Such reliance on a unique identifier
shall apply to beneficiaries named in such instructions as well as any financial
institution which is designated in such instructions to act as an intermediary
in a funds transfer. It is understood and agreed that unless otherwise
specifically provided herein, and to the extent permitted by applicable law,
the
parties hereto shall be bound by the rules of any funds transfer system utilized
to effect a funds transfer hereunder.
7. Acknowledgments.
Custodian shall acknowledge through the Electronic Services its receipt of
each
Written Instruction communicated through the Electronic Services, and in the
absence of such acknowledgment Custodian shall not be liable for any failure
to
act in accordance with such Written Instruction and the Fund may not claim
that
such Written Instruction was received by Custodian. Custodian may in its
discretion decline to act upon any instructions or communications that are
insufficient or incomplete or are not received by Custodian in sufficient time
for Custodian to act upon, or in accordance with such instructions or
communications.
8. Viruses.
The
Fund agrees to use reasonable efforts to prevent the transmission through the
Electronic Services of any software or file which contains any viruses, worms,
harmful component or corrupted data and agrees not to use any device, software,
or routine to interfere or attempt to interfere with the proper working of
the
Electronic Services.
9. Encryption.
The
Fund acknowledges and agrees that encryption may not be available for every
communication through the Electronic Services, or for all data. The Fund agrees
that Custodian may deactivate any encryption features at any time, without
notice or liability to the Fund, for the purpose of maintaining, repairing
or
troubleshooting its systems.
10. On-Line
Inquiry and Modification of Records.
In
connection with the Fund’s use of the Electronic Services, Custodian may, at the
Fund’s request, permit the Fund to enter data directly into a Custodian database
for the purpose of modifying certain information maintained by Custodian’s
systems, including, but not limited to, change of address information. To the
extent that the Fund is granted such access, the Fund agrees
to
indemnify and hold Custodian harmless from all loss, liability, cost, damage
and
expense (including attorney’s fees and expenses) to which Custodian may be
subjected or which may be incurred in connection with any claim which may arise
out of or as a result of changes to Custodian database records initiated by
the
Fund.
11. Agents.
the Fund
may, on advance written notice to the Custodian, permit its agents and
contractors (“Agents”) to access and use the Electronic Services on the Fund’s
behalf, except that the Custodian reserves the right to prohibit the Fund’s use
of any particular Agent for any reason. The Fund shall require its Agent(s)
to
agree in writing to be bound by the terms of the Agreement, and the Fund shall
be liable and responsible for any act or omission of such Agent in the same
manner, and to the same extent, as though such act or omission were that of
the
Fund. Each submission of a Written Instruction or other communication by the
Agent through the Electronic Services shall constitute a representation and
warranty by the Fund that the Agent continues to be duly authorized by the
Fund
to so act on its behalf and the Custodian may rely on the representations and
warranties made herein in complying with such Written Instruction or
communication. Any Written Instruction or other communication through the
Electronic Services by an Agent shall be deemed that of the Fund, and the Fund
shall be bound thereby whether or not authorized. The Fund may, subject to
the
terms of this Agreement and upon advance written notice to the Bank, provide
a
copy of the Electronic Service user manuals to its Agent if the Agent requires
such copies to use the Electronic Services on the Fund’s behalf. Upon cessation
of any such Agent's services, the Fund shall promptly terminate such Agent’s
access to the Electronic Services, retrieve from the Agent any copies of the
manuals and destroy them, and retrieve from the Agent any token cards or other
security devices provided by Custodian and return them to Custodian.
